Hazan v Waverley Council

Land and Environment Court (NSW)|2009-07-08

The applicant is to seek approval from Telstra regarding any possible modification to the service authorities infrastructure prior to the issue of a construction Certificate.

Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of: (a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or

(b) the name and permit number of the owner/builder who intends to do the work; and

The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences.

Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works.

All site works complying with the occupational health and safety requirements of WorkCover NSW.

Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.

Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.

All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.

Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on: (a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;

(c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW.

Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000.

CONSTRUCTION NOISE - PERIODS GREATER THAN 4 WEEKS

The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver.

All building work must be carried out in accordance with the requirements of the Building Code of Australia.

quality of construction act - inspections (dwelling houses class 1 and 10)

The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certificate.

MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.

In the case of a Class 1 and 10 building: (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 concrete building element; (d) prior to covering of the framework for any floor, roof or other building element; (e) prior to covering any 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.

The following additional inspections are required to be undertaken by the PCA: (a) sediment control measures prior to the commencement of building work; (b) foundation material prior to undertaking building work; (c) shoring of excavation works, retaining walls, piers, piling or underpinning works; (d) steel reinforcement, prior to pouring concrete; (e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns; (f) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls).

Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.

A new vehicle crossing is to be provided to access the proposed hardstand. A separate application is required for the modified vehicle crossing, with all work to be carried out with the approval of and in accordance with the requirements of Council. All new vehicle crossings to be Wheel Strips instead of full width concrete driveway wherever feasible.

The finished level at the property boundary on both sides of the vehicle crossing is to match the level of the existing concrete footpath.

All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council at the applicant's expense.

C. Compliance Prior to Occupation or During Occupation

The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied.

S Dixon 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.

CITATION : Hazan v Waverley Council [2009] NSWLEC 1262

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

87 The decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 makes clear that the precedent effect of an approval is a relevant consideration in an assessment of an application. However, in this appeal the approval is distinguished on the facts of the case and the particular constraints of this site in this particular streetscape. Various judgments were tendered to me during the course of the hearing either supporting or refusing car spaces controlled by council's WDCP. Each of those cases is able to be distinguished on their facts, as is this appeal. 88 After a consideration of all of the evidence and submissions, I am of the opinion that the following additional conditions should be incorporated in council's conditions. 1. Any vehicle parked in the car space must be fully contained in the property boundary. 2. The car space should have wheel stops at the western end to provide a cue to ensure the vehicle is parked as close as practicable to the dwelling. 3. A landscape condition requiring appropriate species selected from council's planting policy and planting on the southern boundary to be at a height to avoid conflict with the opening of car doors is desirable. 89 I ask the parties to incorporate the above conditions into the final conditions. To that end my Orders are as follows. 1. The appeal in matter number 09/10205 is upheld. 2. The development application as amended by the plans prepared by Land Studio, landscape architects, drawing number 09-513-LD01 dated June 2009 is determined by the granting of consent subject to the conditions in Annexure A. [Note, these conditions are to be forwarded electronically to the Court by Friday 10 July and are to reflect the findings in my judgment.]. 3. The exhibits will be returned when the judgment is published except for the conditions and the approved plans.

At a glance

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Decision date

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Judgment (30 paragraphs)

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Cases Cited (3)