O'Donnell v Woollahra Council

Land and Environment Court (NSW)|2009-03-05|Before: Mr P

CITATION : O'Donnell v Woollahra Council [2009] NSWLEC 1066

APPLICANT Rebecca Lockhart O'Donnell PARTIES : RESPONDENT Woollahra Council

KEY ISSUES: DEVELOPMENT APPLICATION :- Modification of existing rear boundary wall and installation of sliding gates.

APPLICANT Mr G. Green, solicitor of Pikes Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr P. Rigg, solicitor of Deacons

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

11226 of 2008 Rebecca Lockhart O'Donnell v Woollahra Council

JUDGMENT Introduction 1 This appeal relates to a development application for the provision of an off-street car parking space on the property at 46 Cambridge Street, Paddington. More particularly the proposal requires the demolition of part of the existing rear boundary wall in Glenmore Road and the installation of sliding gates. An existing pedestrian gate is to be removed and the wall reinstated. A street tree is to be removed and a replacement tree provided.

2 The gate was originally proposed to be located in the centre of the site but following discussions and consideration of Council's without prejudice proposed conditions of consent the applicant now proposes that it be relocated almost at the southern extremity of the site so as to utilise the existing gateway and to minimise the extent to which the original stone base is to be removed.

3 The site is developed with a three-storey dwelling that is one of a row comprising four Victorian period Italianate style terrace houses. The subject rear masonry wall extends along the Glenmore Road frontage of three of the houses in the row and comprises a sandstone block base that supports a brick wall. It has gateways into the rear yards of the three dwellings. In 1987 the brickwork was rebuilt on and in front of a concrete plinth then rendered and painted in accordance with a development application submitted to the council in 1986. Whilst there is only limited information about the original wall I understand that the rebuilt wall is different from the original wall. The sandstone block base that is viewable from the street has various heights (varying between about 400-500 mm and zero) is the only remaining part of the original wall. Planning controls 4 The site is zoned 2(a) Residential under Woollahra Local Environmental Plan 1995 and is within the Paddington Heritage Conservation Area. Whilst the row of houses are not listed heritage items they are within the vicinity of the heritage listed Glenmore Road public school. Clause 28(1) of the LEP requires that inter alia, the demolition or alteration of a building or work within a conservation area may not be carried out without development consent. Also applicable is Paddington Development Control Plan 1999. Advertising and public submissions 5 The application was advertised and two submissions were received, one from a neighbour in Glenmore Road and one from the Paddington Society. Matters of concern raised in these objections include: o The vehicular crossing will have a detrimental effect on pedestrian and traffic movements and will result in the loss of on-street parking on Glenmore Road. A mature bottle brush tree will also need to be removed. o The proposed double gates will result in the removal of the heritage stonewall and rhythm of the wall be adversely affected by the proposed double gates. o Overall the proposal will not comply with various aspects of the DCP and will adversely affect the character of the conservation area.

Contentions 6 In essence the issues that form the basis for Council's contention that the application should be refused is: o Whether the proposal would have a negative impact on the character of the conservation area and the row of houses. In this regard particular concerns include: loss of original fabric (ie the stonewall); the loss of a mature street tree; and non-compliance with the variously applicable planning controls. o Whether approval of the proposal would create an adverse president. 7 Bearing in mind that the tree that is to be removed is in poor health there was no residual concern that the tree could be removed provided that an appropriate replacement tree is provided. The applicant now intends to provide an advanced replacement tree to Council's requirements.

8 Council's engineers have no objections to the proposal taking into account on-street parking access to the site and the dimensions of the access, the wall opening and the car space itself. The hearing and the evidence 9 The hearing began on-site when I heard from the two above-mentioned objectors who explained their concerns in further detail.

10 Expert heritage evidence was given by Mr M D'Alessio on behalf of the council and by Mr J. Oultram on behalf of the applicant. In addition to their individual reports these experts provided a joint report addressing the original contentions. The conservation area issue 11 Relevant to the merits issue, I was directed to the objectives of the LEP in clause 2(2)(c) that seek to ensure that new development be undertaken in a manner that does not detract from the heritage significance of heritage conservation areas. Also, clause 28 (2) of the LEP effectively provides that consent shall not be granted unless consideration has been given to the extent to which the proposal would affect the heritage significance of the conservation area. In this regard I note that the heritage experts agree that the effect of the proposal on the conservation area has been taken into consideration.

12 According to Part 1 of the DCP Paddington is a unique urban area of outstanding national heritage significance and the conservation of this significance should be the foremost outcome of development works. To this end a number of guiding principles identified. Its sense of place and significance results from the interrelationship of built forms, spaces, historical and social values. The principles nevertheless recognize that Paddington is a living place which will continue to undergo change and that appropriate contemporary design is encouraged provided of course that it respects significant characteristics. 13 Part 5.2.6 of the DCP deals with on-site vehicle parking and the relevantly identified objectives are: 01. To conserve original elements and structures on street frontages and lane boundaries. 08 to ensure that the designs of garages, carport, fences and gates are sympathetic in their massing, form and scale to the relevant aspects of the historic context and setting of the building. 14 The associated guidelines and controls recognize that on-site parking may not be permitted where inter alia, the parking of a vehicle will have a detrimental impact on the character of the streetscape. Also original or culturally significant structures on rear laneway is to be retained (although it is to be recognized that Glenmore Road is not a rear lane).

15 Part 5.3.2 deals with multi storey terrace houses and the relevant objectives seek to inter alia retain the rear forms and distinctive characteristics of terraces and groups of buildings. In addition the significance contribution and relationship of a building within the context of a group of buildings is to be retained or restored. 16 In their joint report the heritage experts agreed in relation to a number of matters: o The wall was largely rebuilt in 1987 to a different pattern to that extent at the time. Part of the lower wall (the sandstone block base) appears to date from the original construction of the terrace. Hence only part of the wall may be original. o The design approach is appropriate in the circumstances and council would have no objections if there was to be no removal of original fabric. o There will be no impact on the amenity of adjoining properties. o Council encourages parking to the rear of properties. 17 Despite these agreements they disagreed as to the impact of the proposal on the character of the conservation area and the row of houses.

18 Mr D'Alessio explained that the wall is part of the group characteristic of the rear of terraces to the Glenmore Road streetscape. It is important for its ability to reinforce the understanding of the subject site's relationship within the context of the group. He was of the opinion that the proposed substantial modifications to the wall, including the removal of a portion of its base, will have an adverse impact on the streetscape as a result of the removal of the shared characteristic of the row group. In this context he asserts that the wall is more important due to its high visibility in Glenmore Road.

19 Mr Oultram was of the opinion that the effect of the proposal on the conservation area is almost negligible. This is because the wall that is at the rear of the property can only be seen from local vantage points and the removal of original fabric is very limited. The design of the new gate is sympathetic and will complement the current timber gates and much of the wall will be retained, hence the visual changes are minor. The new opening will reuse stone from the base as an observable threshold. 20 More generally he argued that it is unreasonable to consider that rear fences have any particular significance, especially as the majority of the wall is not original and does not form part of the main building. It is not characteristic of this group of terraces that are not heritage listed. Nor is it in the relevant vicinity of a heritage item.

21 The wall has limited significance, well below that of the group and does not form part of the major characteristic of the terraces. Because the terraces are not identical and their rear wings vary Mr Oultram seems to be suggesting that the wall can vary along its length. The proposal nevertheless follows the detail of the current wall. Court's conclusions 22 Plainly, by converting a pedestrian gateway to a gateway by widening it by about 2.2 m so as to be capable of providing vehicular access, the appearance of the wall will be changed. Also, given that Glenmore Road is well used by cars and pedestrians, this change will be apparent to many. However I have not been persuaded, taking into account that the DCP anticipates change including appropriate contemporary design, that this change would adversely affect the wall in its context to the detriment of the conservation area. In this regard it is to be remembered that the Glenmore Road frontage is the site's secondary frontage.

23 In my opinion the simple existing wall design complements the simple forms of the rear of the three terraces that are to be contrasted with their ornate Italianate presentation to Cambridge Street and indeed with that of the attached dwelling at the corner of Glenmore Road and Cambridge Street. I am satisfied that the proposed larger opening and gate will do little to change this relationship. I have reached this conclusion despite the fact that it will change the pattern or rhythm of openings in the wall taking into account that the capping on the top of the wall will remain, providing continuity. Similarly I have been persuaded by the evidence of Mr Oultram that the significance and visual appeal of the group of houses, including the row of terraces, would not be adversely affected. In this regard I accept his evidence that the wall, being largely modern, is not such an important characteristic of the group that it can not be altered. 24 Whilst I understand the concern that if the garage doors are left open a car parked within the site will be apparent and that this is not a common characteristic of the area. I understand that the proposed sliding gate will be operated electronically and taking into account the applicant's concerns for security it is likely that the gate will be closed most of the time.

25 The council was also concerned that approval of this proposal would create an inappropriate precedent that might indicate that the two neighbours might also seek approval for the same kind of off-street parking. It is plain that the three terraces are, essentially identical (but for some detailing) and that the wall the subject of this application is common to the terraces. Whilst the subject site is at the end of the row and the proposed car space is adjacent to the tall wall of 321 Glenmore Road, these circumstances might be considered sufficient to form a basis to argue precedent. Despite this, and whilst I form no definite conclusion in this regard, I am not aware of any impacts different to those I have already considered that might cause me to conclude that such a precedent would be adverse. It is also important to remember that should subsequent applications arise these will be dealt with on their own merits that might include cumulative impacts and should they be found to be unsatisfactory of course they will be refused. 26 Taking all of these matters into account together with the applicants' not unreasonable desire to have off-street parking and notwithstanding that the proposal will cause some change to the character of this area, I have not been persuaded that the conservation area would be so affected that I should not grant the development consent as sought. Orders 27 For the above reasons the orders of the Court are: 1. The appeal is upheld 2. The development application for the provision of an off-street parking space including the creation of an opening in the existing boundary wall and associated gate at the rear of 46 Cambridge Street Paddington is determined by the granting of development consent subject to the conditions in Annexure A (Exhibits 4 and E) hereto. 3. Exhibit A is retained.

      T A Bly
      Commissioner of the Court

Annexure 'A' Conditions of Consent Woollahra Municipal Council ats O'Donnell 46 Cambridge Street, Paddington

A.1 Conditions Consent is granted subject to the following conditions imposed pursuant to section 80 of the Environmental Planning & Assessment Act 1979 ("the Act ") and the provisions of the Environmental Planning and Assessment Regulation 2000 ("the Regulation ") such conditions being reasonable and relevant to the development as assessed pursuant to section 79C of the Act. Standard Condition: A1

A.2 Definitions Unless specified otherwise words have the same meaning as defined by the Act , the Regulation and the Interpretation Act 1987 as in force at the date of consent.

Approved Plans mean the plans endorsed by Council referenced by this consent as amended by conditions of this consent.

AS or AS/NZS means Australian Standard ® or Australian/New Zealand Standard ®, respectively, published by Standards Australia International Limited.

BCA means the Building Code of Australia as published by the Australian Building Codes Board as in force at the date of issue of any Construction Certificate .

Local native plants means species of native plant endemic to Sydney's eastern suburbs (see the brochure titled "Local Native Plants for Sydney's Eastern Suburbs published by the Southern Sydney Regional Organisation of Councils).

Stormwater Drainage System means all works, facilities and documentation relating to:

a. The collection of stormwater, b. The retention of stormwater, c. The reuse of stormwater, d. The detention of stormwater, e. The controlled release of stormwater; and f. Connections to easements and public stormwater systems.

Owner means the owner of the site and successors in title to the site .

Owner Builder has the same meaning as in the Home Building Act 1989.

PCA means the Principal Certifying Authority under the Act .

Principal Contractor has the same meaning as in the Act or where a principal contractor has not been appointed by the owner of the land being developed Principal Contractor means the owner of the land being developed.

Professional Engineer has the same meaning as in the BCA.

Public Place has the same meaning as in the Local Government Act 1993.

SEE means the final version of the Statement of Environmental Effects lodged by the Applicant.

Site means the land being developed subject to this consent.

WLEP 1995 means Woollahra Local Environmental Plan 1995

a. the use of land in connection with development, b. the subdivision of land, c. the erection of a building, d. the carrying out of any work, e. the use of any site crane, machine, article, material, or thing, f. the storage of waste, materials, site crane, machine, article, material, or thing, g. the demolition of a building, h. the piling, piering, cutting, boring, drilling, rock breaking, rock sawing or excavation of land, i. the delivery to or removal from the site of any machine, article, material, or thing, or j. the occupation of the site by any person unless authorised by an occupation certificate .

Note : Interpretation of Conditions - Where there is any need to obtain an interpretation of the intent of any condition this must be done in writing to Council and confirmed in writing by Council. Standard Condition: A2

A.3 Approved Plans and supporting documents Those with the benefit of this consent must carry out all work and maintain the use and works in accordance with the plans and supporting documents listed below as submitted by the Applicant and to which is affixed a Council stamp "Approved DA Plans" unless modified by any following condition . Where the plans relate to alterations or additions only those works shown in colour or highlighted are approved.

Reference Description Author/Drawn Date(s) 03 Proposed Site Plan Interior Design Studio March 2008 04 Proposed Glenmore Road Elevation Interior Design Studio March 2008 05 Proposed Walla Elevation/ Section Interior Design Studio March 2008 No reference Arborist Report Glenyss Laws 18 March 2008

Note: Warning to Accredited Certifiers - You should always insist on sighting the original Council stamped approved plans. You should not rely solely upon the plan reference numbers in this condition. Should the applicant not be able to provide you with the original copy Council will provide you with access to its files so you may review our original copy of the approved plan.

Note: These plans and supporting documentation may be subject to conditions imposed under section 80A(1)(g) of the Act modifying or amending the development (refer to conditions which must be satisfied prior to the issue of any Construction Certificate .) Standard Condition: A5

A.4 Ancillary Aspect of the Development (s80A(2) of the Act) The owner must procure the repair, replacement or rebuilding of all road pavement, kerb, gutter, footway, footpaths adjoining the site or damaged as a result of work under this consent or as a consequence of work under this consent. Such work must be undertaken to Council's satisfaction in accordance with Council's "Specification for Roadworks, Drainage and Miscellaneous Works" dated January 2003 unless expressly provided otherwise by these conditions at the owner's expense.

Note : This condition does not affect the principal contractor's or any sub-contractors obligations to protect and preserve public infrastructure from damage or affect their liability for any damage that occurs. Standard Condition: A8 A.5 Prescribed Conditions Prescribed conditions in force under the Act and Regulation must be complied with. Note : It is the responsibility of those acting with the benefit of this consent to comply with all prescribed conditions under the Act and the Regulation . Free access can be obtained to all NSW legislation at www.legislation.nsw.gov.au Standard Condition: A30 A.6 Additional Condition

Any sandstone removed from the existing wall shall be reused to form a threshold between the Council footpath and the proposed carspace.

B. Conditions which must be satisfied prior to the demolition of any building or construction

B.1 Construction Certificate required prior to any demolition Where demolition is associated with an altered portion of, or an extension to an existing building the demolition of any part of a building is "commencement of erection of building" pursuant to section 81A(2) of the Act. In such circumstance all conditions in Part C and Part D of this consent must be satisfied prior to any demolition work. This includes, but is not limited to, the issue of a Construction Certificate, appointment of a PCA and Notice of Commencement under the Act.

Note: See Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125. Standard Condition: B1

C. Conditions which must be satisfied prior to the issue of any construction certificate

C.1 Modification of details of the development (s80A(1)(g) of the Act)

The approved plans must be amended and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation , must detail: a. To avoid crowding and suppressed growth of the proposed replacement Weeping Bottlebrush within the Glenmore Road frontage the proposed driveway crossover and car parking space shall be relocated 1 metre to the south of the current proposed location. This would enable the location of the replacement street tree to be closer to the existing location of the Weeping Bottlebrush proposed for removal therefore avoiding the potential for crowding and suppressed growth. b. The garage entrance is to be widened to 3.5m (from the proposed 3.0m).

Note : The effect of this condition is that it requires design changes and/or further information to be provided with the Construction Certificate drawings and specifications to address specific issues identified during assessment under section 79C of the Act .

Note : Clause 146 of the Regulation prohibits the issue of any Construction Certificate subject to this condition unless the Certifying Authority is satisfied that the condition has been complied with.

Note : Clause 145 of the Regulation prohibits the issue of any Construction Certificate that is inconsistent with this consent. Standard Condition: C4

C.2 Payment of Security, Levies and Fees (S80A(6) & S94 of the Act, Section 608 of the Local Government Act 1993)

The person(s) with the benefit of this consent must pay the following long service levy, security, development levy, and fees prior to the issue of any construction certificate, subdivision certificate or occupation certificate , as will apply.

The certifying authority must not issue any Part 4A Certificate until provided with the original receipt(s) for the payment of all of the following levy, security, contributions, and fees. Specifically

a. prior to the issue of a construction certificate , where a construction certificate is required; or b. prior to the issue of a subdivision certificate , where only a subdivision certificate is required; or c. prior to the issue of an occupation certificate in any other instance.

Description Amount Indexed Council Fee Code LONG SERVICE LEVY under Building and Construction Industry Long Service Payments Act 1986 Long Service Levy Contact LSL No Use Calculator: http://www.lspc.nsw.gov.au/levy_information/?levy_information/levy_calculator.stm Corporation or use their online calculator SECURITY under section 80A(6) of the Environmental Planning and Assessment Act 1979 Property Damage Security Deposit - Making good any damage caused to any property of the Council as a consequence of the doing of anything to which the consent relates. $2000 No T115 INSPECTION FEES under section 608 of the Local Government Act 1993 Public Road and Footpath Infrastructure Inspection Fee $363.25 No T45 Security Administration Fee $175 No T16 TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES $2538.25 Plus any relevant indexed amounts and long service levy

Building & Construction Industry Long Service Payment

The Long Service Levy under Section 34 of the Building & Construction Industry Long Service Payment Act , 1986, must be paid and proof of payment provided to the Certifying Authority prior to the issue of any Construction Certificate .

Note : The Levy can be paid directly to the Long Services Payments Corporation or to Council. Further information can be obtained from the Long Service Payments Corporation's website http://www.lspc.nsw.gov.au/ or by telephoning the Long Service Payments Corporation on 13 14 41.

a. Cash deposit with Council, b. Credit card payment with Council, or c. Bank cheque made payable to Woollahra Municipal Council.

The payment of a security may be made by a bank guarantee where:

a. the guarantee is by an Australian bank for the amount of the total outstanding contribution; b. the bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first; c. the bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent; and d. the bank's obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required. Standard Condition: C5 C.3 Road and Public Domain Works - Council approval required This development consent does NOT give approval to works or structures over, on or under public roads or footpaths excluding minor works subject to separate Road Opening Permit.

Detailed plans and specifications of all works (including but not limited to structures, road works, driveway crossings, footpaths and stormwater drainage) within existing roads, must be submitted to and approved by Council under the Roads Act 1993, before the issue of any Construction Certificate .

Specific works include: · Full width vehicular crossings having a width of 3.5m in accordance with Council's standard drawing RF2.

Access levels and grades to and within the development must match access levels and grades within the road approved under the Roads Act 1993.

All public domain works must comply with Council's " Specification for Roadworks, Drainage and Miscellaneous Works " dated January 2003 unless expressly provided otherwise by these conditions. This specification can be downloaded from www.woollahra.nsw.gov.au .

Note: To ensure that this work is completed to Council's satisfaction, this consent by separate condition, may impose one or more Infrastructure Works Bonds.

Note : Road has the same meaning as in the Roads Act 1993.

Note : The intent of this condition is that the design of the road, footpaths, driveway crossings and public stormwater drainage works must be detailed and approved prior to the issue of any Construction Certificate . Changes in levels may arise from the detailed design of buildings, road, footpath, driveway crossing grades and stormwater. Changes required under Road Act 1993 approvals may necessitate design and levels changes under this consent. This may in turn require the applicant to seek to amend this consent. Standard Condition: C13 C.4 Soil and Water Management Plan - Submission & Approval

The principal contractor or owner builder must submit to the Certifying Authority a soil and water management plan complying with:

a. " Do it Right On Site, Soil and Water Management for the Construction Industry " published by the Southern Sydney Regional Organisation of Councils, 2001; and

b. " Managing Urban Stormwater - Soils and Construction " published by the NSW Department of Housing 4th Edition" ( 'The Blue Book' ).

Where there is any conflict The Blue Book takes precedence. The Certifying Authority must be satisfied that the soil and water management plan complies with the publications above prior to issuing any Construction Certificate .

Note : This condition has been imposed to eliminate potential water pollution and dust nuisance.

Note : The International Erosion Control Association - Australasia http://www.austieca.com.au/ lists consultant experts who can assist in ensuring compliance with this condition. Where erosion and sedimentation plans are required for larger projects it is recommended that expert consultants produce these plans.

Note : The " Do it Right On Site, Soil and Water Management for the Construction Industry " publications can be down loaded free of charge from http://www.woollahra.nsw.gov.au/ .

Note : Pursuant to clause 161(1)(a)(5) of the Regulation an Accredited Certifier may satisfied as to this matter. Standard Condition: C25 C.5 Tree Management Details The Construction Certificate plans and specifications required by clause 139 of the Regulation must, show the following information; (a) trees to be numbered in accordance with these conditions, (b) shaded green where required to be protected and retained, (c) shaded yellow where required to be transplanted, (d) shaded blue where required to be pruned, (e) shaded red where authorised to be removed and, (f) references to applicable tree management plan, arborists report, transplant method statement or bush regeneration management plan. Standard Condition: C30 C.6 Professional Engineering Details

The Construction Certificate plans and specifications, required by clause 139 of the Regulation, must include detailed professional engineering plans and/or specifications for all structural, electrical, hydraulic, hydro-geological, geotechnical, mechanical and civil work complying with this consent, approved plans, the statement of environmental effects and supporting documentation. Detailed professional engineering plans and/or specifications must be submitted to the Certifying Authority with the application for any Construction Certificate .

Note: This does not affect the right of the developer to seek staged Construction Certificates

Standard Condition: C36 C.7 Bicycle, Car and Commercial Parking Details

The Construction Certificate plans and specifications required by clause 139 of the Regulation, must include detailed plans and specifications for all bicycle, car and commercial vehicle parking in compliance with AS2890.3:1993 Parking Facilities - Bicycle Parking Facilities , AS/NZS 2890.1:2004 : Parking Facilities - Off-Street Car Parking and AS 2890.2:2002 - Off-Street Parking: Commercial Vehicle Facilities respectively. The driveway levels on Glenmore Road are to be amended as follows - The existing footpath level and grade at the street alignment of the property must be maintained. - The internal garage floor slab is to be adjusted on private property to match the existing street alignment levels. - Any adjustments required between the garage slab and the street levels are to be carried out internally on private property. The driveway levels are to comply with AS2890.1 and Council's Standard Drawing RF2. - In order to assist access the garage the entrance is to be widened to a minimum of 3.5m

Access levels and grades must comply with access levels and grade required by Council under the Roads Act 1993. The existing footpath crossing grades and footpath levels at the road boundary must be maintained unless varied by an approval under the Roads Act 1993.

Revised plans are to be submitted and approved by Council with driveway application. An "Application to carry out works in a public road" available from Council's website http://www.woollahra.nsw.gov.au . must be completed with plans/sections complying with the above and submitted to Council's Customer Service Centre and approved by Council prior to the issue of a Construction Certificate. For any technical enquiries regarding alteration to existing footpath levels, alignments or inspections, please contact Council's Works Supervisor on 9391 7982.

The Certifying Authority has no discretion to reduce or increase the number or area of car parking or commercial parking spaces required to be provided and maintained by this consent. Standard Condition: C45 C.8 Stormwater discharge to existing Stormwater Drainage System (Clause 25(2) WLEP 1995)

The Construction Certificate plans and specifications required by clause 139 of the Regulation , must detail :

a. the location of the existing Stormwater Drainage System including all pipes, inspection openings, surface drains, pits and their discharge location, b. the state of repair of the existing Stormwater Drainage System , c. any remedial works required to upgrade the existing Stormwater Drainage System to comply with the BCA, d. any remedial works required to upgrade the existing Stormwater Drainage System crossing the footpath and any new kerb outlets, e. any new Stormwater Drainage System complying with the BCA, f. interceptor drain(s) at the site boundary to prevent stormwater flows from the site crossing the footpath, g. any rainwater tank required by BASIX commitments including their overflow connection to the Stormwater Drainage System , and h. general compliance with the Council's draft Development Control Plan Stormwater Drainage Management (draft version 1, public exhibition copy dated 14 December 2006)

Where any new Stormwater Drainage System crosses the footpath area within any road, separate approval under section 138 of the Roads Act 1993 must be obtained from Council for those works prior to the issue of any Construction Certificate .

All Stormwater Drainage System work within any road or public place must comply with Woollahra Municipal Council's Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003.

Note: Clause F1.1 of Volume 1 and Part 3.1.2 of Volume 2 of the BCA provide that stormwater drainage complying with AS/NZS 3500.3 Plumbing and drainage - Part 3: Stormwater drainage is deemed-to-satisfy the BCA. Council's specifications apply in relation to any works with any road or public place.

Note : Stormwater Drainage Systems must not discharge to any Sewer System. It is illegal to connect stormwater pipes and drains to the sewerage system as this can overload the system and cause sewage overflows. See: http://www.sydneywater.com.au/Publications/Factsheets/SewerfixLookingAfterYourSewerPipes.pdf

Note : Woollahra Municipal Council's Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003 and Council's draft Development Control Plan Stormwater Drainage Management (draft version 1.1, public exhibition copy dated 14 December 2006) can be downloaded from Council's website: www.woollahra.nsw.gov.au Standard Condition: C49

D. Conditions which must be satisfied prior to the commencement of any development work

D.1 Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989

For the purposes of section 80A (11) of the Act, the following conditions are prescribed in relation to a development consent for development that involves any building work:

a. that the work must be carried out in accordance with the requirements of the Building Code of Australia, b. 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 authorised to be carried out by the consent commences.

a. to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4), or b. to the erection of a temporary building.

In this condition, a reference to the BCA is a reference to that code as in force on the date the application for the relevant construction certificate is made.

Note : This condition must be satisfied prior to commencement of any work in relation to the contract of insurance under the Home Building Act 1989. This condition also has effect during the carrying out of all building work with respect to compliance with the Building Code of Australia. Standard Condition: D1

The Principal Contractor or owner builder must ensure that the sign required by clauses 98A and 227A of the Regulation is erected and maintained at all times.

For the purposes of section 80A (11) of the Act , the requirements of subclauses (2) and (3) are prescribed as conditions of a development consent for development that involves any building work, subdivision work or demolition work.

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

a. showing the name, address and telephone number of the principal certifying authority for the work, and b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and c. stating that unauthorised entry to the work site is prohibited.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

This clause does not apply in relation 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.

This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State's building laws."

Note : PCA and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which imposes a penalty exceeding $1,000).

Note : If Council is appointed as the PCA it will provide the sign to the principal contractor or owner builder who must ensure that the sign is erected and maintained as required by Clause 98A of the Regulation . Standard Condition: D12 D.3 Toilet Facilities

Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

a. must be a standard flushing toilet, and b. must be connected to a public sewer, or c. if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the council, or d. if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the council.

The provision of toilet facilities in accordance with this condition must be completed before any other work is commenced.

accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in clause 95B of the Local Government (Approvals) Regulation 1993.

approved by the council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993.

public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

Note : This condition does not set aside the requirement to comply with Workcover NSW requirements. Standard Condition: D13

The principal contractor or owner builder must install and maintain water pollution, erosion and sedimentation controls in accordance with:

a. The Soil and Water Management Plan if required under this consent; b. " Do it Right On Site, Soil and Water Management for the Construction Industry " published by the Southern Sydney Regional Organisation of Councils, 2001; and c. " Managing Urban Stormwater - Soils and Construction " published by the NSW Department of Housing 4th Edition" ('The Blue Book'). Where there is any conflict The Blue Book takes precedence. Note : The International Erosion Control Association - Australasia ( http://www.austieca.com.au/ ) lists consultant experts who can assist in ensuring compliance with this condition. Where Soil and Water Management Plan is required for larger projects it is recommended that this be produced by a member of the International Erosion Control Association - Australasia.

Note : The "Do it Right On Site, Soil and Water Management for the Construction Industry" publications can be down loaded free of charge from www.woollahra.nsw.gov.au .

Note : A failure to comply with this condition may result in penalty infringement notices, prosecution, notices and orders under the Act and/or the Protection of the Environment Operations Act 1997 without any further warning . It is a criminal offence to cause, permit or allow pollution.

Note : Section 257 of the Protection of the Environment Operations Act 1997 provides inter alia that "the occupier of premises at or from which any pollution occurs is taken to have caused the pollution"

Warning , irrespective of this condition any person occupying the site may be subject to proceedings under the Protection of the Environment Operations Act 1997 where pollution is caused, permitted or allowed as the result of their occupation of the land being developed. Standard Condition: D14 D.5 Building - Construction Certificate, Appointment of Principal Certifying Authority, Appointment of Principal Contractor and Notice of Commencement (s81A(2) of the Act) The erection of the building in accordance with this development consent must not be commenced until:

a. a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or 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 consent authority and the council (if the council is not the consent authority) 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 any 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 iv. given at least 2 days' notice to the council of the person's intention to commence the erection of the building.

Note: building has the same meaning as in section 4 of the Act and includes part of a building and any structure or part of a structure.

Note : new building has the same meaning as in section 109H of the Act and includes an altered portion of, or an extension to, an existing building.

Note : The commencement of demolition works associated with an altered portion of, or an extension to, an existing building is considered to be the commencement of building work requiring compliance with section 82A(2) of the Act (including the need for a Construction Certificate ) prior to any demolition work. See: Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.

Note : Construction Certificate Application, PCA Service Agreement and Notice of Commencement forms can be downloaded from Council's website www.woollahra.nsw.gov.au .

Note : It is an offence for any person to carry out the erection of a building in breach of this condition and in breach of section 81A(2) of the Act. Standard Condition: D15

D.6 Notification of Home Building Act 1989 requirements

a. For the purposes of section 80A (11) of the Act, the requirements of this condition are prescribed as conditions of a development consent for development that involves any residential building work within the meaning of the Home Building Act 1989 .

b. Residential building work within the meaning of the Home Building Act 1989 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 following information: i. in the case of work for which a principal contractor is required to be appointed: * the name and licence number of the principal contractor, and * the name of the insurer by which the work is insured under Part of that Act, ii. in the case of work to be done by an owner-builder: * the name of the owner-builder, and * if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit. c. If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) 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.

d. This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State's building laws. Standard Condition: D17

E. Conditions which must be satisfied during any development work

E.1 Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989

For the purposes of section 80A (11) of the Act, the following condition is prescribed in relation to a development consent for development that involves any building work:

a. that the work must be carried out in accordance with the requirements of the Building Code of Australia,

b. 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 authorised to be carried out by the consent commences.

This condition does not apply: a. to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4) of the Regulation, or b. to the erection of a temporary building.

In this clause, a reference to the BCA is a reference to that Code as in force on the date the application for the relevant construction certificate is made. Standard Condition: E1

E.2 Compliance with Australian Standard for Demolition

Demolition of buildings and structures must comply with Australian Standard AS 2601 - 1991: The Demolition of Structures, published by Standards Australia, and as in force at 1 July 1993. Standard Condition: E2

Any new information which comes to light during remediation, demolition or construction works which has the potential to alter previous conclusions about site contamination, heritage significance, threatened species or other relevant matters must be immediately notified to Council and the Principal Certifying Authority.

Critical stage inspections must be called for by the principal contractor or owner builder as required by the PCA, any PCA service agreement, the Act and the Regulation .

Work must not proceed beyond each critical stage until the PCA is satisfied that work is proceeding in accordance with this consent, the Construction Certificate(s) and the Act . critical stage inspections means the inspections prescribed by the Regulations for the purposes of section 109E(3)(d) of the Act or as required by the PCA and any PCA Service Agreement.

Note : The PCA may require inspections beyond mandatory critical stage inspections in order that the PCA be satisfied that work is proceeding in accordance with this consent.

Note : The PCA may, in addition to inspections, require the submission of Com pliance Certificates , survey reports or evidence of suitability in accordance with Part A2.2 of the BCA in relation to any matter relevant to the development. Standard Condition: E5

a. No work must take place on any Sunday or public holiday, b. No work must take place before 7am or after 5pm any weekday, c. No work must take place before 7am or after 1pm any Saturday, and d. No piling, piering, cutting, boring, drilling, rock breaking, rock sawing, jack hammering or bulk excavation of land or loading of material to or from trucks must take place before 9am or after 4pm any weekday, or before 9am or after 1pm any Saturday. e. No rock excavation being cutting, boring, drilling, breaking, sawing, jack hammering or bulk excavation of rock, must occur without a 15 minute break every hour.

This condition has been imposed to mitigate the impact of work upon the amenity of the neighbourhood. Impact of work includes, but is not limited to, noise, vibration, dust, odour, traffic and parking impacts.

Note : The use of noise and vibration generating plant and equipment and vehicular traffic, including trucks in particular, significantly degrade the amenity of neighbourhoods and more onerous restrictions apply to these activities. This more invasive work generally occurs during the foundation and bulk excavation stages of development. If you are in doubt as to whether or not a particular activity is considered to be subject to the more onerous requirement (9am to 4pm weekdays and 9am to 1pm Saturdays) please consult with Council.

Note : Each and every breach of this condition by any person may be subject to separate penalty infringement notice or prosecution.

Note : The delivery and removal of plant, equipment and machinery associated with wide loads subject to RTA and Police restrictions on their movement out side the approved hours of work will be considered on a case by case basis.

Note : Compliance with these hours of work does not affect the rights of any person to seek a remedy to offensive noise as defined by the Protection of the Environment Operations Act 1997, the Protection of the Environment Operations (Noise Control) Regulation 2000.

Note : EPA Guidelines can be down loaded from http://www.epa.nsw.gov.au/noise/nglg.htm .

E.6 Maintenance of Vehicular and Pedestrian Safety and Access

The principal contractor or owner builder and any other person acting with the benefit of this consent must:

a. Not erect or maintain any gate or fence swing out or encroaching upon the road or the footway. b. Not use the road or footway for the storage of any article, material, matter, waste or thing. c. Not use the road or footway for any work . d. Keep the road and footway in good repair free of any trip hazard or obstruction. e. Not stand any plant and equipment upon the road or footway.

This condition does not apply to the extent that a permit or approval exists under the section 73 of the Road Transport (Safety and Traffic Management) Act 1999, section 138 of the Roads Act 1993 or section 94 of the Local Government Act 1993 except that at all time compliance is required with:

a. Australian Standard AS 1742 (Set) Manual of uniform traffic control devices and all relevant parts of this set of standards. b. Australian Road Rules to the extent they are adopted under the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999.

Note : Section 73 of the Road Transport (Safety and Traffic Management) Act 1999 allows the Police to close any road or road related area to traffic during any temporary obstruction or danger to traffic or for any temporary purpose. Any road closure requires Police approval.

Note : Section 138 of the Roads Act 1993 provides that a person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority.

Note : Section 68 of the Local Government Act 1993 provides that a person may carry out certain activities only with the prior approval of the council including:

Part C Management of Waste: "1. For fee or reward, transport waste over or under a public place 2. Place waste in a public place 3. Place a waste storage container in a public place."

Part E Public roads: "1. Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway 2. Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to overhang any part of the road or outside a shop window or doorway abutting the road, or hang an article beneath an awning over the road."

Any work in, on or over the Road or Footway requires Council Approval and in the case of classified roads the NSW Roads and Traffic Authority. Road includes that portion of the road uses as a footway. Standard Condition: E7

E.7 Tree Preservation All persons must comply with Council's Tree Preservation Order ("the TPO"), other than where varied by this consent. The order applies to any tree, with a height greater than 5 metres or a diameter spread of branches greater than 3 metres, is subject to Council's Tree Preservation Order unless, exempted by specific provisions. Works to be carried out within a 5 metre radius of any tree, subject to the Tree Preservation Order, require the prior written consent of Council.

General Protection Requirements: a) There must be no excavation or work within the required Tree Protection Zone(s). The Tree Protection Zone(s) must be maintained during all development work .

b) Where excavation encounters tree roots with a diameter exceeding 40mm excavation must cease. The principal contractor must procure an inspection of the tree roots exposed by a qualified arborist. Excavation must only recommence with the implementation of the recommendations of the qualified arborist or where specific instructions are given by Council's Tree Management Officer in strict accordance with such Council instructions.

c) Where there is damage to any part of a tree the principal contractor must procure an inspection of the tree by a qualified arborist immediately. The principal contractor must immediately implement treatment as directed by the qualified arborist or where specific instructions are given by Council's Tree Management Officer in strict accordance with such Council instructions. Note : Trees must be pruned in accordance with Australian Standard AS 4373 - 2007 "Pruning of Amenity Trees" and Workcover NSW Code of Practice Amenity Tree Industry 1998. Standard Condition: E8

E.8 Tree Preservation & Approved Landscaping Works All landscape works must be undertaken in accordance with the approved landscape plan, arborist report, tree management plan and transplant method statement as applicable. a) The following trees must be retained:

Trees on Private Land Council Reference No: Species Location Dimension (Metres) 2, 3 Howea forsteriana Kentia Palms Rear yard northern side 3 x 3

b) The following trees must be transplanted and successfully established in the location(s) indicated on the approved landscape plan: Council Reference No: Species Location Dimension (Metres) 4 Murraya paniculata Mock Orange hedge Side northern boundary rear yard

Note: The tree trees required to be retained should appear coloured yellow on the construction certificate plans.

c) The following trees may be removed: Council Reference No: Species Location Dimension (Metres) 1 Callistemon viminalis Weeping Bottlebrush Council verge at rear of property 7 x 12

Note : The tree trees that may be removed should appear coloured red on the construction certificate plans.

E.9 Replacement trees which must be planted The following compensatory replacement plantings must be planted to ensure the preservation of the landscape character of the area. Species/Type Planting Location Container Size or Size of Tree Minimum Dimensions at Maturity (@ time of planting) 1 x Callistemon viminalis Weeping Bottlebrush Glenmore Road frontage of property approximately 1.7 metres from the northern edge of the proposed driveway crossover 200 litre Natural

E.10 Maintenance of Environmental Controls The principal contractor or owner builder must ensure that the following monitoring, measures and controls are maintained:

(a) Erosion and sediment controls; (b) Dust controls; (c) Dewatering discharges; (d) Noise controls; (e) Vibration monitoring and controls; and (f) Ablutions.

Note 1: See http://www.epa.nsw.gov.au/small_business/builders.htm for additional information. Standard Condition: E11

A person must not to do anything on or in relation to the site (the supporting land) that removes the support provided by the supporting land to any other land (the supported land) or building (the supported building).

For the purposes of this condition, supporting land includes the natural surface of the site, the subsoil of the site, any water beneath the site, and any part of the site that has been reclaimed.

Note : This condition does not authorise any trespass or encroachment upon any adjoining or supported land or building whether private or public. Where any underpinning, shoring, soil anchoring (temporary or permanent) or the like is considered necessary upon any adjoining or supported land by any person the principal contractor or owner builder must obtain: a) the consent of the owners of such adjoining or supported land to trespass or encroach, or b) an access order under the Access to Neighbouring Land Act 2000, or c) an easement under section 88K of the Conveyancing Act 1919, or d) an easement under section 40 of the Land & Environment Court Act 1979 as appropriate.

Note : Section 177 of the Conveyancing Act 1919 creates a statutory duty of care in relation to support of land. Accordingly, a person has a duty of care not to do anything on or in relation to land being developed (the supporting land) that removes the support provided by the supporting land to any other adjoining land (the supported land).

Note : Clause 20 of the Roads (General) Regulation 2000 prohibits excavation in the vicinity of roads as follows: " Excavations adjacent to road - A person must not excavate land in the vicinity of a road if the excavation is capable of causing damage to the road (such as by way of subsidence) or to any work or structure on the road." Separate approval is required under the Roads Act 1993 for any underpinning, shoring, soil anchoring (temporary)) or the like within or under any road. Council will not give approval to permanent underpinning, shoring, soil anchoring within or under any road.

Note : The encroachment of work or the like is a civil matter of trespass or encroachment and Council does not adjudicate or regulate such trespasses or encroachments except in relation to encroachments upon any road, public place, crown land under Council's care control or management, or any community or operational land as defined by the Local Government Act 1993. Standard Condition: E13 E.12 Erosion and Sediment Controls - Maintenance

The principal contractor or owner builder must maintain water pollution, erosion and sedimentation controls in accordance with:

a) The Soil and Water Management Plan required under this consent; b) " Do it Right On Site, Soil and Water Management for the Construction Industry " published by the Southern Sydney Regional Organisation of Councils, 2001; and c) " Managing Urban Stormwater - Soils and Construction " published by the NSW d) Department of Housing 4th Edition (" The Blue Book ").

Where there is any conflict The Blue Book takes precedence..

Note 1 : A failure to comply with this condition may result in penalty infringement notices, prosecution, notices and orders under the Act and/or the Protection of the Environment Operations Act 1997 without any further warning. It is a criminal offence to cause, permit or allow pollution.

Note 2 : Section 257 of the Protection of the Environment Operations Act 1997 provides that "the occupier of premises at or from which any pollution occurs is taken to have caused the pollution". Warning , irrespective of this condition any person occupying the site may be subject to proceedings under the Protection of the Environment Operations Act 1997 where pollution is caused, permitted or allowed as the result of the occupation of the land being developed whether or not they actually cause the pollution. Standard Condition: E15

The principal contractor or owner builder must ensure: a) Prior to pumping any water into the road or public stormwater system that approval is obtained from Council under section 138(1)(d) of the Roads Act 1993;

At a glance

Court

Decision date

Before

Source

Judgment (311 paragraphs)

Parties

Cases Cited (1)

Cited By (1)