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[2003] NSWLEC 345
appellant. The appeal was upheld. Development application No 02/2165 for demolition of the existing house and construction of 13 townhouses at 20R Helena Street and 59 Bligh Street, Kirrawee, was granted...
The Court allowed the developer's appeal and approved 13 townhouses, subject to extensive conditions. It accepted that some trees would be removed and that the development would be visible, but found that conditions for tree protection, planting, groundwater management and long-term environmental care could preserve the wildlife corridor. It also found the design and its effects on neighbours acceptable in the circumstances. The judgment records no cited cases and provides no information about how later courts treated it.
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In Oceanic Developments Australia Pty Limited v Sutherland Shire Council [2003] NSWLEC 345, Oceanic appealed the Council's deemed refusal of a development application for land at 20R Helena Street and 59 Bligh Street, Kirrawee. Commissioner Tuor heard the appeal on 25–30 September and 2 October 2003, and delivered judgment on 17 December 2003.
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The application changed during its assessment. It began as a proposal for 18 townhouses, was reduced to 15 after submissions and Council concerns, and was amended again at the hearing to 13 townhouses. That final amendment followed updated approval requirements identifying a 10-metre riparian zone from both watercourses on the site. The amended plans placed no building in that zone (paras 5–7).
The site presented a particular planning problem. It was an irregular, sloping, L-shaped site of about 8,045 square metres, with watercourses, bushland and existing trees. One allotment was landlocked between homes, the Royal National Park, a road reserve and the former F6 freeway corridor. The other contained a house, trees, drainage easements and a right of way (paras 2–4). Surrounding development consisted mainly of detached houses of differing heights and styles in a bushland setting.
The final proposal was for 13 two-storey townhouses, two adaptable units, basement parking and visitor spaces. Access for vehicles was to come from Bligh Street, through the existing house allotment. A riparian zone was to remain in the eastern part of the site, and a vegetative corridor was proposed along the southern part (paras 8–9).
The main questions were whether the proposal would have an acceptable effect on trees and the corridor, whether it was visually compatible with the area's character, whether its effects on neighbours' privacy and sunlight were acceptable, and whether its design responded appropriately to the site's constraints (para 20). The Court upheld the appeal and granted consent subject to conditions.
The Court's central environmental conclusion was that the amended proposal and its conditions would not have a significant adverse effect on the relevant wildlife corridor and vegetation links. Clause 32 of the Sutherland Shire LEP 2000 prevented consent unless the consent authority was satisfied that the development would not have a significant adverse effect on specified environmental matters, including wildlife corridors and vegetation links. Clause 30 also required consideration of existing vegetation and effects on the natural and built environment (paras 11–12).
The evidence about the trees was contested. The arborists agreed that 56 of the 177 trees on the retention plan would be removed as a direct result of the development, but disagreed about how many others would survive construction and the effects of excavation (para 27). They also disagreed about whether a significant angophora on the Bligh Street allotment would survive. The Court accepted that its long-term survival was not guaranteed, but found that removing a visitor space and using suitable tree-management measures would give it the best chance of survival. It did not treat retaining that tree as, by itself, a reason to refuse the application (para 28).
The southern corridor was a major focus. The ecologists agreed that the corridor's habitat function could be maintained if the trees shown for retention survived and suitable planting was provided. They also considered that canopy gaps should be no greater than 15 metres and that planting should continue over time as trees died (paras 34–35). The Court accepted that enough existing trees were likely to survive long enough for replacement trees to become established. It relied on proposed conditions requiring early planting, a detailed landscape plan, tree protection, possible passive irrigation if excavation altered groundwater conditions, and a management plan for the corridor (paras 31–37).
The Court also relied on an environmental covenant for ongoing management of the riparian zone and southern tree line. It concluded that the amended proposal with conditions satisfied cl 32, and that the relevant cl 30 criteria concerning vegetation and environmental effects had been addressed (paras 36–40). It noted that 870 square metres in the eastern part of the site would be retained as a riparian zone and that the land's ongoing maintenance would fall to the owners of the development (para 40).
On visual character, the Court did not decide the question by asking whether townhouses were the same as detached houses. It accepted that the development would be visible and read as a townhouse development, but said compatibility depended on several components of character, including height, width, building separation and landscaping (paras 45–46). The three building forms, single-storey sections, changes in roof form, stepping and articulated southern façade helped reduce the impression of a single long mass. The Court considered that retained trees and new landscaping would allow the proposal to be seen as a building in a bushland setting (paras 46–47).
The Court also considered the site's separation from surrounding development. It found the proposal would be read as a backdrop to development in Bligh Street and Meehan Place, rather than as part of those streetscapes. It considered a cumulative neighbourhood impact unlikely, partly because of the site's separation and the zoning of adjoining undeveloped land (paras 48–49).
For residential amenity, the Court accepted that some impacts would occur. It found, however, that the separation of about 20–27 metres, the elevated position, landscaping and existing site conditions would minimise privacy effects. It considered the additional winter overshadowing reasonable, noting that it affected four properties until about noon and did not increase after that time (paras 50–56). It also found that the development was not likely to create a traffic safety impact, having regard to the local-road character and the evidence before it (para 58).
Finally, the Court assessed whether the design responded to the site's constraints. It agreed that the initial design should have recognised the site's environmental sensitivity earlier, but did not treat that history as fatal. The Court considered that the amendments had resulted in a proposal that adequately addressed the constraints. It also considered that access from Bligh Street was a constraint for any development, and that detached houses might not necessarily produce less impact than the townhouse scheme (paras 60–64).
The judgment applied the planning instruments and statutory framework identified in its text. It referred to the Sutherland Shire LEP 2000, the publicly exhibited draft LEP 2003, the relevant development control plans, s 91A of the Environmental Planning and Assessment Act 1979, and the Rivers and Foreshores Improvement Act 1948 approval requirement (paras 10–19).
The judgment describes the operative LEP as zoning the site 2(a1) Residential, where townhouses were permissible with consent, subject to the stated qualification about internal allotments. Council accepted that this was not technically an internal allotment, although it argued that the site had characteristics of one (para 10). The parties agreed that the proposal complied with the LEP's development standards, including height, floor space ratio, landscaped area and allotment size (para 14).
The draft LEP was publicly exhibited and therefore considered. Under that draft, the site was proposed to be zoned Environmental Housing (High Risk), where townhouses would be prohibited. The Court recorded the proposed zoning but did not treat it as determinative. Its reasons assess the proposal against the existing controls, the draft instrument and the factual circumstances before it (para 15; see also paras 41, 64).
The judgment does not identify a prior legal rule that it changed, nor does it announce a broad change in planning law. Its reasoning is an application of the stated controls to this proposal and site. The most useful point for understanding its approach is the emphasis on assessing compatibility by reference to the components of character, rather than requiring a new development to be identical to surrounding buildings (para 45). Another practical point is that the Court considered whether conditions could address environmental effects, including through management and replacement planting, rather than treating tree removal as automatically decisive (paras 36–40).
The judgment gives no subsequent decisions or later statutory developments. It therefore does not, by itself, establish the present state of the law or show whether later courts adopted, limited or distinguished its reasoning.
At paragraph 38, the Court said it was satisfied that the amended proposal and conditions would not have a significant adverse effect on protection of wildlife corridors and vegetation links. In plain English, the Court considered the environmental outcome as a whole, including the promised management measures, rather than treating the proposal as if it involved no environmental change.
At paragraph 45, the Court said the question was not whether the townhouse development was the same as detached houses, but whether it was compatible with the area's scale, amenity and general character. In plain English, a different building type could still fit the area if its overall form, scale, separation and landscaping were compatible.
At paragraph 55, the Court acknowledged that neighbouring residents would experience some loss of amenity, but found the impact acceptable. This is a fact-specific conclusion: the reasons immediately following it explain the Court's assessment of privacy, landscaping and sunlight (paras 56–58).
At paragraph 62, the Court accepted that the application should have been designed to recognise the site's environmental sensitivity from the outset. It nevertheless concluded that the design changes had adequately addressed the constraints. In plain English, the Court treated the eventual amended proposal and its conditions as decisive to the assessment, rather than refusing the application solely because earlier versions had shortcomings.
At paragraph 63, the Court discussed the difficult access arrangement. It considered Helena Street a more logical access point, but said that securing access through the reserve, National Park or RTA land was not a reasonable burden to impose on the private owner on the evidence before it. This explains why access from Bligh Street was assessed as a constraint common to development of the site.
The judgment is most directly relevant as an example of a NSW development appeal involving residential development on a constrained site with existing vegetation, watercourses and a proposed wildlife corridor. It concerns a scheme where amendments and conditions were important to the final assessment, including a riparian setback, tree protection and replacement planting, groundwater management and long-term environmental covenants (paras 6–9, 31–40).
Its reasoning may be useful for understanding how this Court approached compatibility where the proposed building type differed from the predominant surrounding type. The decision considered the development's actual form and setting, including scale, articulation, separation, retained vegetation and visibility, rather than treating the distinction between attached and detached housing as conclusive (paras 45–49).
It may also be relevant to planning assessments where a development would cause some privacy or overshadowing effects, but the extent, location and duration of those effects must be evaluated against site-specific evidence. Here, the Court considered the separation distance, existing landscaping and structures, the affected properties and the timing of additional shade (paras 50–57).
The limits matter. The judgment upheld consent for this proposal under the planning controls and evidence then before the Court. It does not say that conditions will always cure vegetation impacts, that townhouse development is generally compatible with detached-house areas, or that similar amenity effects will always be acceptable. The reasons depend on the particular site, the final 13-unit design, the expert evidence and the conditions imposed.
The judgment itself contains no cited cases and gives no account of later decisions. On the material provided, no relationship between this decision and any later precedent can be identified. It would therefore be unsupported to say that later courts followed, distinguished, approved or rejected it.
The judgment can be described as a decision of Tuor C in the Land and Environment Court concerning one development application. Its reasoning explains how the Court applied the controls and evidence in that proceeding. Whether later courts have relied on the decision, and whether its reasoning remains relevant under subsequent planning instruments, cannot be determined from the judgment text supplied.
The judgment does not provide later judicial treatment or legislative history. It therefore leaves open whether subsequent cases have used its approach to visual compatibility, corridor management or site constraints, and whether later planning instruments have altered the relevant assessment framework.
There are also factual limits to its conclusions. The Court relied on conditions requiring detailed landscape and tree-management plans, monitoring and, if required, passive irrigation. The judgment establishes what those conditions required, but does not report whether the planting succeeded, whether the retained trees survived or whether the covenants were effective in practice (paras 11–12 of Annexure B; para 65 of the reasons).
The decision also does not establish a universal standard for acceptable privacy or overshadowing. It records the evidence and reaches a conclusion in this case, including the separation distance and the limited period of additional overshadowing (paras 51–56). Different site geometry, building form or affected outdoor areas could produce a different assessment.
Finally, the Court considered the publicly exhibited draft LEP but did not resolve the broader effect of draft zoning in other cases. Its treatment of that instrument is tied to the proposal and materials before it (paras 15, 64). The decision's continuing significance for any current proposal would require checking the applicable planning instruments and later authorities.
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Introduction 1 This is an appeal against the deemed refusal by Sutherland Shire Council (the council) of a development application for a medium density housing development at 20R Helena Street and 59 Bligh Street, Kirrawee. The site and its context 2 The site consists of two allotments being lot 2 DP605791 (20R Helena Street) and lot 121 DP 228631 (59 Bligh Street). It is L shaped with a combined site area of 8045m2. The allotment at 20R Helena Street is vacant with the eastern part being bushland with two watercourses. The remainder of the allotment has been disturbed but retains a number of trees. It is long, narrow and irregular in shape, with an area of 7243m2, a northern boundary of 253m and a western boundary of 44.21m. The land slopes about 6m from north to south. This allotment is land locked between residential properties to the south and east along Meehan Place and Bligh Street, the Royal National Park and Helena Street Road Reserve to the west and the former RTA F6 Freeway corridor reservation to the north. 3 The allotment at 59 Bligh Street has an area of 802m2 with a frontage of 26.7m to Bligh Street. The western part of the site has a two storey house located near two significant trees. Two drainage easements flow through the eastern part of the site. The site slopes steeply towards these and also slopes from north to south. A right of way that provides access to 61 Bligh Street and 1 Meehan Place also burdens the property.
4 Surrounding development is characterised by detached houses of a variety of heights and styles within a bushland setting. The houses in Bligh Street and Meehan Place are predominantly two storeys, often above a garage level. They overlook the National Park and because of the size of the houses and the slope of the land they are visible, through trees, in an elevated position above the street.
Background 5 A development application (DA 2002/2165) for the construction of 18 townhouses on the site was lodged on 3 December 2002. As a result of public submissions and matters raised by council staff, the application was amended to reduce the number of town houses to 15 and advertised a number of times before the hearing, The main issues of concern raised in submissions related to bulk and scale, overshadowing, traffic, loss of privacy and retention of trees. 6 The application is Integrated Development as a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 is required. The then Department of Sustainable Natural Resources (DSNR) issued General Terms of Approval on 2 May 2003 for the original application. These required a 10m Riparian zone west of the watercourse. Further General Terms of Approval from the Department of Infrastructure, Planning and Natural Resources (DIPNR), were issued on 24 September 2003 (the day before the hearing) in response to the amended application for 15 town houses. These clarified that the Riparian Zone was to be 10m from both watercourses.
7 At the hearing the applicant sought leave to rely on further amended plans prepared in response to the latest General Terms of Approval. These plans reduced the number of townhouses to 13 to remove any building from the Riparian Zone. The amendment also converted Unit 1 to be an adaptable unit and modified the access way and driveway. I granted leave for these amended plans and directed the experts to prepare joint statements on the amended plans.
The proposal 8 The proposal is to construct 13 town houses, including two adaptable townhouses, with basement parking for 26 cars and two visitor parking spaces on the allotment of 20R Helena Street. The proposal includes the demolition of the existing house at No 59 Bligh Street and construction of a driveway off Bligh Street through this allotment to provide vehicular access to the townhouses. Three further visitor parking spaces are provided off Bligh Street. Emergency access for fire vehicles, as well as pedestrian access, is available off Helena Street.
9 The town houses are two storeys over the basement car park. Due to the slope of the land, the car park is generally below natural ground level to the north and above ground to the south. Five townhouses have four bedrooms and eight have three bedrooms. Each townhouse has an area of private open space to the north, which is generally below natural ground level. The eastern part of the site is to be retained as a Riparian Zone and the southern part of the site forms a vegetative corridor that links the National Park with the bushland to the east and the former F6 Freeway.
Statutory framework 10 The site is zoned 2 (a1) Residential under the Sutherland Shire Local Environmental Plan 2000 (LEP 2000). Townhouses are permissible with consent, except on internal allotments. Council accepted that the site was not an internal allotment, although Mr Green's submission for the council was that it had the characteristics of one.
11 Clause 30 of the LEP provides criteria that must be taken into account in the assessment of whether residential development satisfies the objectives of the zone. These criteria are: (a) the impact that the proposed development may have on adjoining development, buildings and open space from loss of sunlight, views and privacy. (b) the effect of the proposed development on the quality of the streetscape, (c) the cumulative impact of successive development on the general character of the neighbourhood, (d) the impact of the proposed development on adjoining properties in terms of size, bulk, height and amount of landscaped area, (e) the retention and enhancement of existing vegetation, (f) any adverse impact on the natural and built environment, (g) the location of the proposed development in relation to potential risks, including flooding, bushfire and other hazards, (h) the impact that the proposed development may have on any public area or waterbody from loss of sunlight, views and visual amenity. 12 Cl 32 of LEP 2000 states that: Consent must not be granted to residential development unless the consent authority is satisfied that the proposed development will not have a significant adverse effect on: (a) the protection of rare and endangered flora and fauna species and the protection of habitats for native flora and fauna, or (b) the protection of wildlife corridors and vegetation links with other nearby vegetation, or (c) the protection of bushland vegetation as a natural stabiliser of the soil surface and the protection of existing landforms such as natural drainage lines, water courses and foreshores, or (d) the protection of bushland vegetation of scenic value and the retention of the unique visual identity of the landscape. 13 The objectives for the 2(a1) Residential zone in cl 33(1) of LEP 2000 are: A residential environment: (a) where the scale, amenity and general character of the area is preserved, and (b) where the streetscape is characterised by detached 1 and 2 storey residential buildings, and (c) where the predominantly single dwelling house character of a neighbourhood is not diminished by the cumulative impact of successive dual occupancy, townhouse or villa house development, 14 LEP 2000 also contains development standards that include height, floor space ratio, landscaped area and allotment size. The parties agreed that the proposal complied with these standards.
15 Sutherland Shire Draft Local Environmental Plan 2003 (LEP 2003) has been publicly exhibited and is therefore a matter for consideration. Under the draft LEP, the site is zoned Environmental Housing (High Risk) and townhouses are a prohibited use. The freeway land is proposed to be zoned open space. This is in response to the Minister's gazettal on 28 February 2003 that the freeway reservation would not be used for road purposes and that part of the reservation between the National Park and Gymea Station would be "preserved, as much as possible, for open space". 16 Sutherland Shire Landscape Development Control Plan and Sutherland Shire Townhouses and Villa Houses in 2(a1) & 2(a2) Residential Zones (the Residential DCP) are also relevant. The objectives of the Residential DCP include: (a) To ensure that townhouses and villa houses are compatible in scale and character with existing housing and do not adversely affect the local environment or the amenity of adjacent residents. 17 The Residential DCP provides more detailed provisions in addition to the standards in LEP 2000, including: siting and scale; landscape and private open space; streetscape and building design; car parking; privacy and overshadowing.
18 Under s91A of the Environmental Planning and Assessment Act 1979 (EPA Act) the proposal is integrated development and requires a permit under Part 3 of the Rivers and Foreshores Improvement Act 1948.
19 The parties did not agree on whether State Environmental Planning Policy No 19 - Urban Bushland (SEPP 19) applied to the site. Mr Green, for the council, and Mrs Kelly for the applicant agreed that the operative provisions did not apply but disagreed on whether the general and specific aims of the policy were relevant. The general aim is protect and preserve bushland with the urban area. This aim reflects sound planning principles and is similar to the criteria articulated in cl 32 of LEP 2000. I therefore do not need to address the applicability of SEPP 19 as the aim of the policy has been considered through the consideration of other planning controls.
Issues 20 The Statement of Issues contained 21 issues. The amended plans resolved a number of issues and those remaining can be catagorised into the following issues:
i) Whether the proposal has an acceptable impact on the natural environment, particularly the number of trees to be removed and whether the vegetative corridor will be retained.
ii) Whether the proposal has an acceptable visual impact and is compatible with the character of the area.
iii) Whether the proposal has an acceptable privacy and overshadowing impact on adjoining residences.
iv) Whether, considering the above impacts, the proposal is an appropriate design response to the site and statutory planning framework. 21 The following experts gave evidence: - For the council Mr M Devlin, town planner Mr M Lucchitti, architect Mr I Drinnan, environmental scientist Mr I English, arborist - For the applicant Mr T Byrnes, town planner/architect Mr B Lydon, arborist Mr G Mills, ecologist 22 Statements of Evidence and/or Joint Statements were also provided by the following experts but they were not required for cross examination: o For Council Mr Anderson, Development Assessment Officer, Engineering Mr B Walker, Geotechnical engineer o For the Applicant Mr L Marshall, Traffic engineer Mr R Best, Geotechnical engineer Mr G Jones, Drainage engineer 23 The Court also heard evidence from the following residents: Mr G Waters, 61 Bligh Street, Kirrawee Mr S Ward, 55 Bligh Street, Kirrawee Mr G Brooker, 76 Bligh Street, Kirrawee Mr B Roberts, 1 Meehan Place, Kirrawee Mr J Lawler, 7 Meehan Place, Kirrawee Mr P Schulties, 8 Meehan Place, Kirrawee Mrs L Baum, 5 Meehan Place, Kirrawee Mrs J Summerfield, 11 Meehan Place, Kirrawee 24 In addition to the issues raised above, the residents raised concerns about the impact of traffic in Bligh Street and Meehan Place as a result of the development.
Loss of trees, landscaping and vegetative corridor 25 The main areas of disagreement between the experts were whether: o the extent of trees to be removed was acceptable and whether those to be retained would survive, particularly as a result of the excavation on the site. o the landscaping plan provided sufficient detail and could be successfully implemented. o a sufficient number of trees would be retained to the south of the site to maintain a vegetative corridor between the National Park to the south west and the Riparian Zone and proposed open space to the north east of the site. 26 The issue of tree loss and landscaping is linked to the issue of whether the proposed development has an acceptable visual impact and maintains the character of the area, which I will discuss below. 27 Mr Lydon and Mr English agreed that of the 177 trees on the Tree Retention Plan, 56 would be removed as a direct result of the development: including the driveway; fire access trail and removal for bushfire mitigation. They disagreed on the number of trees to be retained, Mr English opinion was that 33 of these trees would decline within 3-5 years as a result of construction works, fire mitigation, or inadequate tree protection. In Mr Lydon opinion these trees would survive, although 2-3 may naturally decline due to poor health, irrespective of the proposal.
28 Mr English and Mr Lydon disagreed about whether the significant angophora tree (Tree No 166) on No 59 Bligh Street would survive. This tree plays an important role in screening the site from the south. The main area of disagreement was that Mr English considered a 6m tree preservation zone (TPZ) was the minimum requirement to ensure the tree's survival and that otherwise it would decline within 10 years. Whereas Mr Lydon considered a 4m TPZ was adequate. The applicant proposed the deletion of the visitor car parking space which would result in a TPZ greater than 4m in all directions except to the east where excavation is to occur for the driveway and footpath. While I accept that the survival of the tree may not be guaranteed past 10 years, the removal of the car space and appropriate measures incorporated into the tree management plan should ensure the best chance for its long term survival. Retention of the tree is not of itself a grounds for refusal, particularly as the impact results from the location of the driveway which is a constraint of the site for any development.
29 The other trees which the experts disagreed would be retained are mainly located to the south of the building and form part of the vegetative corridor. Mr English opinion that these trees would not survive was based on the assumption that the excavation of the basement car park would alter the drainage pattern to these trees: that they were located in rocky part of the site with shallow soil and would be sensitive to any change in their environment. He was also concerned that the landscape plan lacked detail and proposed trees in locations with shallow soil over rocky outcrops. He doubted the ability of trees to thrive in this environment and considered that there was no certainty that the landscape plan could be implemented. 30 Mr Lydon was confident that the landscape plan could be implemented. He said that it provided sufficient detail for a concept landscaped plan and that the conditions required a final plan to be prepared which addressed in greater detail the specific requirements of the site. The detailed plan is to incorporate the requirements of the ecologist in relation to the southern vegetative corridor.
31 In relation to the impact on groundwater from excavation, Mr Lydon based his opinion on the agreed statement of the Geotechnical experts, Mr R Best, for the applicant and Mr B Walker for the council. The experts agreed: That the development would be likely to affect shallow groundwater/soil moisture/groundwater flow in the strip of land to the south of the proposed basement car park. The effect would be to reduce the presence of groundwater (in any of its forms). The influence of the development on ground water would be limited to the subsurface above the level of the proposed basement car park. We agree that the provision of seepage pits fed by surface runoff would not exactly duplicate conditions prior to development. Such pits would however provide a source of shallow moisture/groundwater seepage within the depth where seepage/groundwater is affected by the proposed basement excavation. 32 Mr Lydon concluded that there would be little impact on the health of the trees particularly as they were generally below the level of the basement car park and their ground water would not be affected. For the trees above this level, Mr Lydon was confident that the pre development flows could match the post development flows so as not to impact on the health of the trees. To address this issue, the applicant has proposed a condition that requires that if after the bulk excavation of the car park the ground water conditions are altered then a passive irrigation system is to be provided. This is to be designed by a geotechnical engineer in consultation with the arborist to more closely replicate the pre development flows.
33 The other concern that Mr English had in relation to the trees to the south of the site was that they were mainly trees of low value or ones that had been recommended for removal by Mr Lydon. The evidence of Mr Lydon was that these trees had been classified as such because of poor form and structure. Although a few were also in poor health, it did not mean that the majority would not survive in the long term or could not be retained if this was required.
34 In Mr Mill's opinion trees would die as part of the natural process and what was critical was to ensure that sufficient trees were retained for a sufficient period of time to enable replacement trees to be established to maintain the vegetative corridor. To maximise the value of the corridor as a wildlife link he agreed with Mr Drinnan that the gap between canopy trees should be no greater than 15m and that this should be supplemented by lower planting and shrubs. In his opinion it was critical that this planting regime continue in the long term to ensure that as trees die they are replaced. 35 The ecologists agreed that: If the trees shown on the landscape plan proposed to be retained can be kept, combined with appropriate landscaping (planting of trees and shrubs) then habitat corridor function will be maintained. 36 Although the evidence of the arborists was inconclusive in relation to the number of trees likely to be retained in the southern corridor, I am satisfied that a sufficient number of the trees shown on the Tree Retention Plan and the Landscaped Concept Plan will survive for a sufficient period of time to enable replacement trees to be established. This will maintain the trees function as a wildlife corridor. The conditions suggested by the applicant include that the detailed landscape plan incorporate the ecologists requirements in relation to appropriate planting in this area as well as the requirement that these trees be planted prior to the completion of the ground floor slabs to enable a longer establishment period. The conditions also require a tree management plan to be prepared which includes measures to protect the trees to be retained in the southern corridor. These conditions, together with the management of ground water already discussed, make it likely that the corridor is will to be retained and enhanced. 37 In addition, the applicant has agreed to a condition that requires environmental covenants for the ongoing management of both the southern vegetative corridor and the Riparian Zone. The environmental covenant for the Riparian Zone was recommended in DIPNR's Terms of Approval and was suggested by the Court for the southern vegetative corridor as a mechanism to ensure that as trees die they will be replaced after the landscape plan has been implemented. Council did not oppose this condition.
38 I accept Mr Green's submission that adequate attention was not given to the environmental constraints of the site in the initial design stage and that further amendments to the design could provide for the retention of more significant trees. However, I am satisfied that the amended development with the proposed conditions satisfies cl 32 and "will not have a significant adverse effect on the protection of wildlife corridors and vegetation links with other nearby vegetation".
39 I am also satisfied that the proposed development has adequately addressed the criteria in cl 30, namely (e) the retention and enhancement of existing vegetation, (f) any adverse impact on the natural and built environment, 40 In reaching this conclusion I have had regard to the extent of the site being retained as open space, particularly the 870m2 to the east of the site required for the riparian zone. While I acknowledge that this area due to its topography, vegetation and proximity to water courses is unsuitable for development its on going maintenance will be the responsibility of the owners of the development. It provides an important link to the area to the north proposed to be public open space. 41 I have given weight to the evidence that the site complies with the standards in the LEP and has a floor space ratio, (even including the basement car park) that is below the maximum permissible, and a landscaped area (even excluding the Riparian Zone) that exceeds the minimum requirement. I do not accept Mr Green's submission that this is a case of development seeking to maximise the potential of the site. Rather it is development of a site with environmental constraints, which are not so significant as to preclude development of the site. Particularly as it zoned for development and not proposed for open space purposes.
Character of the area and visual impact 42 The main area of disagreement between the experts was the extent to which the development would be visible from the surrounding area; whether it had an acceptable visual impact; was consistent with the character of the area; and met the requirements of LEP 2000 and the Residential DCP.
43 Mr Devlin and Mr Lucchitti thought that the development would be clearly seen from a number of vantage points, including Bligh Street, the National Park, the Dog Park and properties to the north of the site. In their opinion the proposal was not characteristic of the area and would have an unacceptable visual impact for the following reasons: o The development will appear as a single building mass when viewed from adjoining properties, the street and public places. o The separation between the blocks and the single storey components were not sufficient to break up the mass of the building. o The elongated form of the development is not compatible with the character of the surrounding residential area, which consists of single detached dwellings scattered amongst trees. o The loss of trees from the site will result in the development being highly visible from the surrounding area. 44 Mr Byrnes considered that the development had an acceptable visual impact, was consistent with the character of the area and met the objectives of the zone for the following reasons: o The proposal would not be viewed as part of the streetscape of either Bligh Street or Meehan Place. The proposal is separated from existing development being set back some 60m from these streets in an elevated position. o The proposed development when viewed from the dog park will present as a single storey building. o The height, bulk and scale of the development, while clearly not detached dwellings, would "fit in" even if it were not the same as existing development. o The retention of trees and proposed landscaping mean that the proposal would be viewed as a building in a landscaped setting in a similar manner to the dwellings in the area. 45 I accept that the development will be visible from the surrounding area and will appear as a town house development. The general character of the area is of two storey dwellings in bushland settings. Although there is an existing medium density development off Bligh Street this does not alter the general character. The scale of the detached houses is relatively large; Mr Lucchitti described them as "dwellings that are generally 10 to 12 m wide about three metres apart". The proposal is not the same as detached houses. However, the question to be answered is not whether it is the same, as it is clearly not, but whether it is compatible and therefore retains "the scale, amenity and general character of the area". In answering this question, I am mindful that whether a dwelling is separate or attached is only one component of character, other components being height, width, separation between buildings and landscaping.
46 The development is generally two storeys in three separate buildings. The single storey sections, slight stepping of the buildings, and the different roof forms of metal sheeting and louvred skylights further break up the buildings. The low pitched roof also reduces the overall height of the buildings to below the height limit of 9m. The southern façade expresses the townhouse as separate elements generally 7m in length, which also reduces the overall impression of the length of the building and gives the appearance of contemporary terrace houses, which are of a scale that is compatible with the general character and have an acceptable visual impact. The bulk and scale of the building could have been further reduced if these techniques were used more, particularly separate buildings, single storey elements and changes in the vertical and horizontal plane of the building by stepping it along and down the site with the contours of the land. 47 The retention of trees, particularly to the west and in the riparian zone will ensure that the proposal is screened and appears as a building within a bushland setting. While a number of trees are being removed, particularly from the north and south of the site, those that will be retained on the site, the additional planting and the trees on adjoining land to the north will reinforce and maintain this character. The development would have no greater visual impact than a development of the site with up to 11 detached dwellings of a similar scale and character to that of the existing houses in the area. Views over the development to the tree canopy of the National Park from the Dog Park and from Bligh Street and the National Park to the tree canopy to the north of the site will be retained.
48 The site is essentially separated from other development, including the existing medium density development. It will be read as a backdrop to development in Bligh Street and Meehan Place, not as part of this streetscape. For the reasons I have already discussed, it meets the objective of a residential environment "where the streetscape is characterised by detached 1 and 2 storey residential buildings".
49 The separation of the site and the zoning (and proposed zoning in the draft LEP) of adjoining undeveloped land means that there is unlikely to be a cumulative impact from the proposal. It therefore satisfies the objective that "the predominantly single dwelling house character of a neighbourhood is not diminished by the cumulative impact of successive dual occupancy, townhouse or villa house development".
50 The main concern raised by Mr Devlin, Mr Lucchitti and the residents was the impact that the proposed development would have on the privacy of the ten dwelling to the south and the overshadowing to the rear of four of these properties. In Mr Devlin's opinion, while the site was not technically an internal allotment, it had the characteristics of one as front yards of the development would overlook the backyards of the adjoining houses. The development would be orientated towards the south to take advantage of the views of the National Park and due to the slope of the land it would be elevated above these properties and would overlook them. The pedestrian path near these properties would also enable overlooking and loss of privacy.
51 Mr Byrnes said that the separation between the proposal and the adjoining houses was about 20-27m, which was sufficient distance to minimise any privacy impacts. He referred to the AMCORD standard of 12m separation. The elevated position meant that the sight lines from the proposal would be over the adjoining properties and the existing trees and proposed landscaping would screen these properties. Mr Byrnes noted that that the living areas of the existing properties were generally orientated towards the views of the National Park and that the rear gardens were largely occupied by swimming pools with little landscaping. He said that the exposed nature of these areas currently resulted in a large degree of overlooking from adjoining properties. 52 In relation to overshadowing, the diagrams submitted by the applicant indicate that the rear of four dwellings will be overshadowed on 21 June up until approximately 12 noon. The evidence of Mr Devlin and Mr Lucchitti was that this was unsatisfactory and that while the areas are already overshadowed by trees the shadow caste by trees is different to that of buildings as it is filtered. Mr Byrnes evidence was that the overshadowing of the trees should be considered as well as the overshadowing that would result from the retaining walls and other structures in the adjoining houses which were not indicated on the shadow diagrams. Even if these factors were not taken into account, in Mr Byrnes opinion the development had an acceptable overshadowing impact as only four of the ten properties were impacted and the impact was limited up to 12 noon with no increase in overshadowing after this time.
53 The residents also raised concerns about the impact of increased traffic in Bligh Street and Meehan Place that would result from the development. They were particularly concerned about the safety of cars coming down Bligh Street due to speed and visibility.
54 Mr Waters was concerned about the safety of cars using the right of way and the potential conflict with cars coming up and down Bligh St and accessing the development. He was also raised the issue of the noise of cars using the driveway next to his property and the removal of the Banksia tree (Tree No 165A) from his property as a result of the proximity of the driveway and pedestrian path. 55 In my opinion, the proposed development will have some impact on the residential amenity of the adjoining properties however this impact is acceptable. The enjoyment of the residents, who currently use the site as an extension of their backyards and view it as open space, will be reduced. However, the site is in private ownership and the proposed development is permissible. It is therefore reasonable that the site will be developed and that instead of these properties adjoining an area of bushland, they will adjoin some form of residential development.
56 The question is whether this development has a reasonable impact on the amenity of these properties. In relation to privacy, I accept Mr Bynes evidence that the elevated position, the landscaping and the degree of separation will minimise any privacy impacts. The overshadowing of the properties is also reasonable. While I do not accept that the existing overshadowing of the trees should be considered, the overshadowing that results from the buildings themselves is acceptable. The open space of the properties affected are generally overshadowed by existing structures within their own properties such as retaining walls and the overshadowing impact does not occur after 12 noon.
57 The development provides private open space to the north of the town houses. However, this is below natural ground level and the level of the Dog Park. These area are therefore likely to be over shadowed by the proposed fence between the sites and the change in level. No detail was provided about the extent of overshadowing and it was not pressed as an issue by council. While I consider this to be a negative feature of the proposal, I do not consider it to be sufficient reason to refuse the application. 58 The evidence of Mr Marshall and Mr Anderson did not raise traffic safety or the potential conflict for users of the right of way as an issue. Bligh Street and Meehan Place are not through roads and carry only local traffic. The development is not likely to generate traffic that would impact on safety and is reasonable.
59 In Mr Byrne's opinion, the location of the driveway would not impact on Mr Waters as it is set down below his property and therefore noise would be minimised. He suggested that, if possible, the driveway should be moved away from the property to retain the Banksia. This would require further approval from DIPNR as the driveway would then encroach slightly into the Riparian Zone. The applicant has agreed to a condition that the driveway be moved subject to DIPNR's approval which would retain the Banksia. This is discussed further under conditions. Suitability of the site for development 60 Mr Green and Mrs Kelly agreed that the site had a number of environmental constraints including access, slope, vegetation, bush fire hazard and the watercourses. As well as constraints imposed by the relationship to existing development and residential amenity. They disagreed on whether the development was an appropriate response to these constraints within the context of the planning controls. Mr Green's submission was that the proposal had not been designed in response to these constraints but was "based on a number of fundamental false misconception". In his submission the proposal had been amended on a number of occasions to address these constraints but that the proposal still did not satisfy the arborial and landscape issues with any degree of certainty. In particular, the number of trees that are likely to be removed from the site and the impact on the vegetative corridor in Mr Green's submission did not satisfy cl 30 and cl 32 of LEP 2000
61 Mrs Kelly's submission was that the development had addressed the constraints of the site. In particular, any development of the site would need to obtain access from Bligh Street. The development retained the required Riparian Zone which meant that the eastern portion of the site would be retained as bushland. The proposal was setback from the south to maximize the separation between it and the existing residences and to retain the trees along the southern boundary as a vegetative link. The car park being underground enabled less hard driveways and hard surfaces at ground level and maximised the opportunities for landscaping. In her submission the proposal satisfied the requirements of LEP 2000 and achieved an appropriate balance between development of the site and satisfying environmental constraints. 62 I accept Mr Green's submission that the proposed development should have been designed from the outset to recognise the environmental sensitivity of the site. However, I do not accept that this is fatal to the application. The lengthy process and the number of amendments have resulted in development, which adequately addresses these constraints. While the development does have negative features these are not sufficient to warrant refusal of the application, particularly as some of these negative features would result from an alternate development of the site as they are inherent in responding to the site constraints. In particular, the access to the site off Bligh Street is now a constraint for whatever development is to occur on the site.
63 The site that was zoned for residential use in 1978 was essentially a land locked site and the only way currently to obtain access is by amalgamating it with another allotment. The only feasible access now is via No 59 Bligh Street. A more logical access would be off Helena Street but this would require access to be through the Helena Street Reserve and either the National Park or the RTA land used as a Dog Park. While this would make good planning sense, it is not reasonable to impose the logistics of achieving this onto a private owner and I have no evidence to suggest that council has or would assist in pursuing this option. Access to the site, the constraints it imposes and the impacts are therefore the same for any development of the site. 64 Inherent in the council's case was the opinion that the development of the site for single dwellings would be more appropriate and consistent with the proposed re zoning of the site under the draft LEP. Under the current controls 11 houses would be permissible on the site and under the draft LEP this would be reduced to 9 houses. I am not convinced that single dwelling houses would have less impact than a town house proposal. The size and lack of separation between the town houses results in a compact floor plate, which combined with the basement car park, means less of the site is covered with building or hard surfaces for driveways and paths. While the basement does necessitate excavation, for the reasons discussed above this is acceptable. The town house development also enables the Riparian Zone and the vegetative link to be common property and the ongoing maintenance to be a shared responsibility of the development. Detached houses with separate driveways and entry off an access road would not have these advantages, particularly if they were of a similar bulk and scale to those which already exist in the area.
Conditions 65 The main area of disagreement on conditions was in relation to whether the consent should be a deferred commencement. The applicant agreed to a condition to move the driveway further from the rear of No 61 Bligh Street to retain the Banksia tree (Tree No 165A). This may also achieve the retention of another tree (Tree No 42), which is identified as being significant. The movement of the drive way would encroach into the Riparian Zone and therefore would require the approval of DIPNR. In council's opinion, if DIPNR does not agree to the change, the application should fail and therefore it should be a deferred commencement condition. In the applicant's opinion the change is not fundamental to the application. I accept the applicant's submission as while the retention of the Banksia is desirable, particularly as it is on an adjoining property, any development of the site that provides a drive way and pedestrian path would need to satisfy the same constraints and be located within the Riparian Zone and the boundary of No 61. It is not reasonable to prevent development of the site by requiring the retention of one tree. 66 The parties disagreed on whether a visitor car space should be deleted. The purpose of this condition was to minimise construction near the angophora tree (Tree No 166) on No. 59 Bligh Street. I accept that this can be deleted as the development provides visitor parking in excess of the 2.6 spaces required by the DCP. Even with the deletion of this space there will still be two visitor parking spaces off Bligh Street and two within the basement car park. This is more than the DCP requires and is more than adequate to meet the needs for a development of 13 townhouses in a street that does not appear to have a shortage of parking.
67 Mr Green did not oppose the other conditions and changes proposed by the applicant but submitted that these did not satisfy the fundamental problems with the development. For the reasons outlined above, I have not accepted this submission.
68 I have made minor changes to some conditions which do not change their meaning.
Annelise Tuor
Commissioner of the Court
Oceanic Developments Australia Pty Limited -v- Sutherland Shire Council
Oceanic Developments Australia Pty Limited -v- Sutherland Shire Council
These general conditions are imposed to ensure that the development is carried out in accordance with the development consent, having regard to the environmental circumstances of the site.
Note 1: Nothing in this development consent whatsoever approves or authorises the commencement, erection or construction of any building, construction or subdivision works.
Note 2: Prior to the commencement of any building, construction, or subdivision work being carried out a 'construction certificate' shall be obtained from Council or an Accredited Certifier.
Note 3: Prior to any work being carried out relating to the development the subject of the consent, the person implementing the consent shall provide Council with: a) Notification of the appointment of a Principal Certifying Authority and a letter of acceptance from the PCA
b) Notification of the commencement of building and/or subdivision works with a minimum of 2 days notice of such commencement.
(c) Notification of the appointment of an Arborist and a letter of acceptance from the Arborist.
(d) Notification of the appointment of a Geotechnical Engineer and a letter of acceptance from the Geotechnical Engineer.
(e) Notification of the appointment of an Ecologist and a letter of acceptance from the Ecologist.
(f) Notification of the appointment of a Supervising Engineer as set out in Condition 18, and a letter of acceptance from the Supervising Engineer. 2. Prescribed Conditions The following are prescribed conditions of development consent pursuant to s.80A(11) of the Environmental Planning and Assessment Act 1979 and cl.98 of the Environmental Planning and Assessment Regulation 2000.
A. Compliance with the Building Code of Australia The development must be carried out in accordance with the provisions of the Building Code of Australia.
B. Residential building work 1. Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the Principal Certifying Authority (PCA) for the development to which the work relates: a) in the case of work to be done by a licensee under that Act: i) has been informed in writing of the licensee's name and contractor license number, and ii) Is satisfied that the licensee has complied with the requirements of Part 6 of that Act, or
b) in the case of work to be done by any other person: i) has been informed in writing of the person's name and owner-builder permit number, or ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of "owner-builder work" in section 29 of that Act, iii) and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs. 2. A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.
C. Details to be Provided to Council with the Notice of Commencement. Builders and Insurance details required under part B above shall be provided to Council with the Notice of Commencement. In relation to non-residential building work Builders details shall be provided to Council with the Notice of Commencement. 3. Requirements of IDA Approval Authorities The development shall be conducted in accordance with all conditions of approval of the following Approval Authorities under Section 91A of the Environmental Planning and Assessment Act 1979: (a) Department of Infrastructure, Planning and Natural Resources ( DIPNR ) A copy of the requirements of the approval Authority(s) is attached to this development consent.
NB: DIPNR incorporates the former Department of Sustainable Natural Resources ( DSNR ) which incorporated parts of the former Department of Land and Water Conservation ( DLWC ). Under clause 25(6) of the Public Sector Employment and Management (General) Order 2003, a reference in any document to DLWC is to be construed as a reference to DSNR and under clause 6(3) of the Public Sector Employment and Management (Infrastructure Planning and Natural Resources) Order 2003 a reference in any document to DSNR is to be construed as a reference to DPNR. Accordingly, any reference in the attached approval to DSNR and DLWC is to be read as a reference to DIPNR.
Bonds and Contributions The following security bonds and contributions have been levied in relation to the proposed development.
A request for release of the security may be made to Council 6 months after the occupation certificate has been issued or the completion of all works in the case of a Class 1 and 10 building. 6. Landscape Security (Effective Landscaping) Before the issue of a Construction Certificate the applicant shall provide security to the Council to the value of $50,000 for the payment of the cost of providing effective Tree protection and landscaping and maintenance for a period of 6 months from the date of the occupation certificate.
The security may be provided by way of a deposit with the Council or a guarantee satisfactory to the Council. This will be retained by Council for a period of 6 months following completion of work to enable the monitoring of the maintenance of the tree protection and landscape work. An application for refund of this bond or security may be made to Council following the expiration of this period.
If Council determines that works are necessary to ensure the landscaping and maintenance is effective and satisfactory in accordance with the terms of the development consent the cost of these works will be deducted from the security. 7. Public Risk Insurance Prior to the commencement of work or the issue of a Construction Certificate, the owner or contractor shall take out a Public Risk Insurance Policy with a minimum cover of $5 million in relation to the occupation of and works within Council's road reserve, for the full duration of the proposed works. Evidence of this policy shall be submitted to Council prior to commencement of work or the issue of a Construction Certificate.
Local reserve land acquisition $154,612 (A/c No. 2944LLA7GYMCS94) District reserve embellishment $4,593 (A/c No. 2944DRA7GYMCS94) Local reserve embellishment $17,690 (A/c No. 2944LRA7GYMCS94) This contribution has been assessed pursuant to s.94 of the Environmental Planning and Assessment Act, and the Sutherland Shire Contributions Plan - Open Space, after identifying the likelihood that this development will require or increase the demand for local and district open space within the area. It has been calculated on the basis of 44 new bedrooms with a concession for 2 existing allotments (6.28 bedrooms).
The contribution will be indexed on 1 July in each year in accordance with indexing methods outlined in the Plan, with amended rates being available from Council.
Payment shall be made prior to the issue of the Subdivision Certificate in the case of development applications involving subdivision or alternatively prior to the issue of a Occupation Certificate or submission of the Completion Report in the case of development applications involving building work.
The payment of monetary contributions may be deferred in accordance with clause 13 of the Contributions Plan.
The Contributions Plan may be inspected or a copy purchased at the Customer Service Counter in Council's Administration Centre, Eton Street, Sutherland during office hours.
NOTE: Council has resolved that in relation to Section 94 Contributions for Open Space that all applications from the date that the draft Sutherland Shire Contribution Plan - Open Space 2000 was publicly exhibited (28/11/2000), to allow payments of the Section 94 Contributions for Open Space to be in accordance with the plan applying at the time of payment.
This contribution has been assessed pursuant to s.94 of the Environmental Planning and Assessment Act, 1979 and the Sutherland Shire Contributions Plan - Community Facilities in the Established Area of the Shire, after identifying the likelihood that this development will require or increase the demand for community facilities within the area. It has been calculated on the basis of 13 very large new dwellings, with a concession for 2 existing allotments.
The contribution will be indexed on 1 July in each year in accordance with the indexing methods outlined in the Plan, with amended rates being available from Council.
Payment is required on or before the times stated in clause 4.2.1 of the Contributions Plan unless the Council accepts a deferred or periodic payment in accordance with clause 4.2.2 of the Contributions Plan.
The Contribution Plan may be inspected or a copy purchased at the Customer Service Counter in Council's Administration Centre, Eton Street, Sutherland during office hours.
MATTERS RELATING TO THE ISSUE OF A CONSTRUCTION CERTIFICATE The following conditions involve either modification to the development proposal or further investigation prior to the issue of a Construction Certificate, so as to ensure that there will be no adverse impact on the environment or adjoining development. This information shall be submitted with the Construction Certificate.
Design Conditions These design conditions are imposed to ensure the development, when constructed, meets appropriate standards for public safety and convenience.
a) Rainwater re - use tanks shall be provided as part of the stormwater management system in accordance with Clause 25 of Councils DCP for Townhouses and Villa Houses in 2 (a1) and 2(a2) zones. b) The letterboxes associated with the proposed development shall be relocated so as to be adjacent to the basement entry to the satisfaction of Australia Post. c) An intercom system is to be located at the garage entrance to enable visitors to contact residents for access to enclosed visitor parking spaces. The car park door is to be able to be controlled by the intercom system within each dwelling. d) The driveway grade within the basement shall be no greater than 1:14 so as to provide an alternate accessible path of travel. e) If DIPNR agrees to the following subject to there being no change to the requirements of DIPNR under the existing DIPNR approvals in relation to the development the driveway at chainages 40.935 and chainage 50 as indicated on DC 04 Amendment H can be moved away from 61 Bligh Street 1m and 3m respectively in a direction perpendicular to the driveway at those chainages. The driveway is to be recessed below natural surface level predominantly in accordance with the depth shown on the plans of Jones Nicholson Pty Limited. f) In the event that DIPNR does not agree to the movement of the driveway as provided in 10(e) no design change is required. g) Deletion of the northern most visitor car parking space at the Bligh Street entrance. Details of these design changes shall accompany the Construction Certificate.
a) At least 70% of the proposed new trees within the southern tree line adjacent to the townhouses are to be planted prior to the completion of the ground floor slabs to the dwellings to enable a longer establishment period. Temporary irrigation is to be provided to that planting area. The Arborist is to inspect the site and provide written advice to the principal Certifying Authority that the requirements have been met. b) Appropriate canopy planting shall be undertaken along the southern boundary of the site so as to achieve a minimum canopy spacing of 15 metres to assist in the maintenance of the wildlife/vegetative corridor. c) The riparian zone shall be planted with a diverse range of appropriate native plant species densely planted and fully structured to include, groundcovers, shrubs and trees so as to satisfy the requirements of DIPNR. d) Removal of any trees within the Bushfire Buffer Zones shall be undertaken in consultation with the Rural Fire Service. e) Tree and shrub screen planting shall be provided along the site boundaries to enhance the privacy of the adjoining properties. This planting shall be of a type that will achieve a minimum height of 1.8m. f) The communal open space areas shall be provided with a efficient water irrigation system to enable effective landscape maintenance. g) Street tree planting to enhance the visual character of the area shall be provided within the footpath area fronting the subject site utilising two (2) Eucalyptus Punctata minimum size 100 litre in accordance with Council's "Urban Street Tree Planting Guide". h) The detailed landscape plan shall incorporate the Ecologist requirements in relation to the vegetation of the southern tree line and rock outcrops along the southern edge of the site. The Ecologist is to consult the Arborist in determining those requirements. Issues to be addressed and details to be provided by the Ecologist with respect to requirements include: - Identification of native species to be provided for ground cover (height < 1m), lower canopy (height 1 to 4m) and upper canopy (height 4m+) so as to maintain and enhance the wildlife link; - Identification of a diversity of native species that are faster growing trees and other vegetation, provided to enhance the wildlife link in the short term; - Identification of measures to protect the rocky habitat along the southern boundary and other areas; and - Any special requirements for weed control.
The Ecologist is to inspect the site and issue a notice that all requirements have been met prior to the issue of an occupation certificate. i) A Vegetation Management Plan is to be prepared as part of the detailed landscape plan containing: - A schedule of local native plant species suitable for plantings in the riparian zones; - A schedule of local native plant species suitable for plantings along the southern wildlife link/tree line; - Measures to maintain rocky habitat; - A weed control program; - An appropriate monitoring and replanting program.
Certification from an Accredited Certifier, Ecologist and Arborist to the effect that the detailed landscape plan has been prepared having regard to these requirements shall be submitted with the construction certificate. 12. Tree Management Plan A detailed Tree Management Plan shall be prepared by a qualified arborist detailing which trees are to be removed and the protective measures that will be put in place during construction so as to facilitate the long term survival of the trees identified to be retained. These protective measures are to be in accordance with the requirements of Councils Landscape DCP and shall include:
a) The provision of protective fencing, exclusion of storage materials from within the drip zone, erosion control and soil pH maintenance. b) A protective barrier along southern side of the pathway which runs east west across the site below the townhouses so that the trees within the southern corridor are protected. c) Details setting out the parameters and constraints for design and construction of the Southern Pathway. d) Controls to be implemented during the demolition of the dwelling at 59 Bligh Street, in particular the protection of Trees 166 and 167. e) Requirements for root and canopy pruning. f) Requirements during excavation in relation to maintenance of tree protection zones. g) Supervision and reporting procedures.
A final report by the Arborist is to be prepared recommending to Sutherland Shire Council the full or partial return of the bond money prior to the release of the Landscape Security as set out at Condition 6.
On completion of the bulk earthworks and prior to the construction of the walls to the basement carpark, the Geotechnical Engineer and the Arborist shall inspect the site to determine if a passive irrigation system is required to the southern tree line, if a passive irrigation system is required it will be designed by the Geotechnical Engineer in consultation with the Arborist in accordance with Section 4 of the Joint Statement, Land and Environment Court Proceedings No 10214 of 2003, 20R Helena Street Kirrawee - Conference between Geotechnical Experts, signed by Mr Bruce Walker of Jeffery and Katauskas Pty Ltd and Mr Ross Best of Coffey Geosciences Pty Ltd on 24th September 2003.
The Geotechnical Engineer is to inspect the site and issue a notice that all requirements have been met prior to the issue of an occupation certificate.
Certification from an Accredited Certifier and arborist to the effect that the detailed tree management plan has been prepared having regard to these requirements shall be submitted with the construction certificate.
All trees and vegetation which are not expressly authorised by this development consent to be removed, damaged or interfered with shall be retained. Only trees and vegetation whose removal is expressly authorised by this development consent are permitted to be removed, damaged or interfered with.
The survey and design for the road frontage works may be either undertaken by Council's Engineering Division or by a NPER civil engineer certifying that the design has been carried out in accordance with all appropriate and relevant standards.
Note: Council's Engineering Division charges a fee for its services. A quotation may be obtained by contacting the Design Branch Manager on telephone 97100247.
Approval of the design plans as well as permission under the Roads Act, 1993 shall be obtained from Council prior to the issue of a Construction Certificate.
a) What actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from building activities, crossings by heavy equipment, plant and materials delivery, or static loads from cranes, concrete pumps and the like,
b) The proposed method of loading and unloading excavation machines, building materials, formwork and the erection of any part of the structure within the site,
c) The proposed areas within the site to be used for the storage of excavated material, construction materials and waste containers during the construction period,
d) How it is proposed to ensure that soil / excavated material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways,
e) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be certified by an Accredited Certifier in civil engineering.
f) The requirements of any site specific Development Control Plan that may affect this development site.
g) The footpath and road reserve shall not be used for construction purposes including site deliveries.
h) The footpath area shall not be used for vehicle parking.
i) Permission is to be sought from the adjoining landowners at the north west boundary of the site for construction access to Helena Street. Subject to that approval being obtained in a reasonable time and on reasonable conditions, the predominant construction access and egress is to be by way of Helena Street. All reasonable endeavours are to be made to obtain permission for construction access/egress as noted. Should such approval not be obtained, access and egress is to be via Bligh Street.
j) Rigid trucks without trailers are to be used to transport soil from the site. When possible, without the need for excessive reversing movements, trucks will enter and exit the site via Helena Street. At other times, only as necessary, trucks will enter and exit via Bligh Street.
k) Upstream stormwater runoff should be diverted to the east via a temporary mound towards the existing creek. The mound should have slow protection and sediment traps to ensure only clean water enters the riparian zone. Should extenuating circumstances exist then an application may be made to Council for approval under the Roads Act, 1993 to use the footpath or road reserve for construction purposes. These circumstances included where it is proposed to:
i. Pump concrete from within a public road reserve or laneway, ii. Stand a mobile crane within the public road reserve or laneway, iii. Use part of Council's road/footpath area, iv. Pump stormwater from the site to Council's stormwater drains, or v. Store waste containers, skip, bins, and/or building materials on part of Council's footpath or roadway
An application for a 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 adopted schedule of fees and charges, shall be submitted to Council and approval obtained prior to the commencement of work.
a) All possible sediment controls are installed before commencing work. b) To minimise the area of soils exposed at any one time. c) To conserve topsoil for re-use on site. d) To identify and protect proposed stockpile locations. e) To preserve existing vegetation and identify revegetation techniques and materials. f) To control surface water flows through the development construction site in a manner that: i. Diverts clean run-off around disturbed areas ii. Minimises slope gradient and flow distance within disturbed areas iii. Ensures surface run-off occurs at non-erodable velocities iv. Ensures disturbed areas are promptly rehabilitated. g) Trap sediment on site to prevent off site damage. Hay bales are not to be used as sediment control devices. To ensure regular monitoring and maintenance of erosion and sediment control measures and rehabilitation works until the site is stabilised (includes landscaping).
71 Conditions Relating to Works in the Road Reserve
These conditions are imposed to ensure that adequate road works are provided to minimise the adverse effect of traffic generated by the development.
Note: An application fee of $60.00 applies (Account No.49200).
The engineer shall: a) provide an acceptance in writing to supervise sufficient of the works to ensure compliance with: (i) all relevant statutory requirements, (ii) all relevant conditions of development consent, (iii) construction requirements detailed in the above Specification, and (iv) the requirements of all legislation relating to environmental protection, b) on completion of the works certify that the works have been constructed in compliance with the approved plans, specifications and conditions of approval, and, c) certify that the Works As Executed plans are a true and correct record of what has been built.
These conditions are imposed to avoid problems in servicing the development and reduce adverse impacts on the lot layout or the design of buildings or associated facilities.
Internal driveway profile The internal driveway profile shall be designed to :
a) Provide adequate sight distance for the safety of pedestrians using the footpath area; b) Align with Council's issued footpath crossing levels; c) Provide a maximum grade of 5% for the first 3 metres inside the property boundary; and d) Comply with AS2890.1(1993) and AS2890.2(2002) in relation to the design of vehicular access, parking and general manoeuvring. The design vehicle for AS 2840.2(2002) is the small rigid vehicle
A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.
Drainage Design - General The drainage for this development proposal shall be designed in accordance with the Institution of Engineers' publication "Australian Rainfall and Runoff" (1987), Council's "Urban Drainage Design" Manual together with Council's "Stormwater Management Policy and Guidelines" and "On-Site Stormwater Detention Policy and Technical Specification".
The design shall also take into account the specific requirements of any Development Control Plan, Catchment Management Plan or Stormwater Management Plan relevant to the site. This shall include the provision of rainwater tanks.
A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.
Drainage Design - Detailed Requirements A detailed drainage design shall be prepared in accordance with "Australian Rainfall and Runoff (1987)", Council's Drainage Design Manual and Council's "On-site Stormwater Detention Policy and Technical Specification.
The design shall include: a) A detailed drainage design supported by a catchment area plan and drainage calculations (including a Hydraulic Grade Line Analysis).
b) A layout of the drainage system showing existing and proposed pipe sizes, type, class, grades, lengths, invert levels, finished surface levels and location of all pipes with levels reduced to Australian Height Datum. Impacts on existing trees must be indicated on the plan.
c) A longitudinal section of the pipeline within the road reserve including existing natural surface levels, design surface levels, design invert levels of the proposed pipeline and the location, size and reduced level of all services to AHD where those services cross the drainage line.
d) Water from pathways and access drives shall be prevented from entering the road reserve as surface flow. This can be achieved by constructing a box drain at the boundary equipped with a 300mm wide grate and frame to collect the flow or directing the flow to a sag pit within the property.
e) The rate of discharge of stormwater from the site to a drainage system under Council's control shall be controlled so that it does not exceed the pre-development rate of discharge. Specific certification from the designer to this effect shall be incorporated in the submitted drainage plans / details.
f) The design floor level, including the level of any opening in the wall adjacent to the drainage easement, shall be set a minimum of 500 mm above the level of the overland flow of stormwater generated by a storm of design recurrence interval of 1 in 100 years, flowing along the overland escape route within the drainage easement within or adjacent to the site. Specific certification from a designer to this effect shall be incorporated in the submitted drainage design/details.
g) A drainage depression shall be provided for the full width and length of the drainage easement that facilitates the overland escape flow of stormwater. The escape route shall be designed to have the capacity to carry the difference between a 1 in 100 year flow and half the flow in the pipeline within the easement. Specific certification shall be provided by the designer to this effect as part of the submitted drainage design / details.
h) Details of the top water surface level of the 1in 100 year stormwater surcharge flows through No 59 Bligh Street.
i) The drainage easement boundaries shall be realigned to match the existing pipe location and boundaries of the 1 in 100 year stormwater surcharge flows. A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.
Design of structures adjoining drainage easements The walls of the dwelling / pool or of any structure adjoining the easement shall be designed to withstand all necessary forces should excavation be required within the easement down to the existing pipe invert levels. Certification to this effect shall be provided by an Accredited Certifier and this shall accompany the Construction Certificate.
Footing design adjoining easements All footings within 2m of the drainage easement shall be designed in such a manner that they are supported by foundations set at a minimum of 300mm below pipe invert levels or, alternatively, founded on sound rock. Certification to this effect shall be provided by an Accredited Certifier and this shall accompany the Construction Certificate.
Basement car park design The basement carpark shall be designed in accordance with AS 2890 and shall incorporate the following: a) The minimum headroom in the basement parking area shall be 2.2m measured from the parking floor to the underside of any beam, ventilation duct or service conduit, or to the underside of any door including a security door and fittings when those doors are in an open position. Where adaptable housing garages are provided this height shall be 2.5m.
b) Where garage doors are proposed, all garages shall have a minimum width of 3m with a minimum door opening of 2.75m wide x 2.2m high clear of any necessary hinges, jambs or fixtures required for the operation of the garage doors and any services within the garage area. Clearance of 2.5m shall be provided for the adaptable housing garages. 27. Parking areas and access All vehicular access, parking and manoeuvrability including loading areas for the proposed development shall be designed and constructed to comply with AS2890.1 - 1993. The following specific requirements shall be incorporated into the constructed works: a) The proposed vehicle turning area shall be clearly defined with suitable signposting and pavement markings. b) The internal driveway and car parking area shall be paved using materials other than plain or exposed aggregate concrete. c) The visitor parking spaces adjacent to the access driveway shall be constructed of a pervious material to allow rain water to penetrate into the ground. Both the pavement surface and the sub-base shall be permeable using materials such as "open form" pavers, stabilised gravel and the like.
a) The Building Code of Australia. b) AS 1668 Part 1 - 1991. c) AS 1668 Part 2 - 1991. d) The Public Health Act - 1991. e) The Public Health (Microbial Control) - Regulation 2000 f) AS 3666 - 1989. Details of all mechanical and / or natural ventilation systems, along with specific certification provided by an appropriately qualified person verifying compliance with the above mentioned requirements, shall accompany the Construction Certificate. 30. Energy Efficiency - Where NatHER Certificate is provided Details of how it is intended to achieve the Energy Efficiency requirements listed below, shall form part of the Construction Specifications or shall be detailed on the plans endorsed with the Construction Certificate:
a) A hot water system having a 3.5 rating, using SEDA's Greenhouse scored. b) AAA rated shower heads, wash basins, kitchen sink and toilet cisterns. c) Clothes dryers having a 3.5 rating, using SEDA's Greenhouse Scorecard.
PRE-COMMENCEMENT CONDITIONS The following conditions are imposed to ensure that all pre-commencement matters are attended to before work is commenced.
Signs to be Erected on Building and Demolition Sites Clearly visible all weather signage must be erected in a prominent position on any work site on which building work or demolition work is being carried out showing:
(a) the site address (correct house number and street name); (b) the Development Consent number; (c) Principal Certifying Authority details (name and contact phone number); (d) Builder (or Civil Contractor for subdivision) details including company name, ACN (if applicable), address, phone number, 24 hour contact name and phone number; (e) Demolition Contractor details (if applicable) including company name, ACN (if applicable), address, phone number, contact name and phone number; (f) that Unauthorised entry to the work site is prohibited (only applies where works affecting the external walls are being carried out). Any such sign is to be maintained while the building work or demolition work is being carried out, but must be removed when the work has been completed.
NOTE: Applicants are advised that a sign containing the required information in items (a) to (e) must be obtained from Council's Customer Service Centre during normal business hours. A sign required by item (f) is to be provided by the applicant. The applicant is reminded that the Demolition/Construction Information Sign application form issued with the Development Consent must be completed and returned to Council when picking up the sign.
These conditions are imposed to ensure the development does not unreasonably impact on the amenity of the locality during the construction or demolition phase.
Environmental Site Management DCP All construction work approved by this development consent shall be undertaken in accordance with the principles and objectives of Council's Environmental Site Management Development Control Plan.
Permitted hours for building and demolition work To minimise the noise impact on the surrounding environment all building and demolition work shall be carried out only between the hours of 7.00am and 6.00pm Monday to Friday inclusive, 8.00am and 5.00pm Saturdays. No work shall be carried out on Sundays and Public Holidays.
Toilet Facilities Toilet facilities shall 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. Each toilet provided: a) shall be a standard flushing toilet, and b) shall be connected: i. to a public sewer, or ii. if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or iii. 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 clause shall be completed before any other work is commenced.
Demolition Work To ensure that demolition of structures is carried out in an environmentally acceptable and safe manner: a) The demolition of the existing building shall be carried out strictly in accordance with Australian Standard 2601 - The Demolition of Structures, b) It is the applicant's responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a dilapidation report supported with suitable photographic records. This information shall be submitted to Council prior to the commencement of work. Any damage other than that noted prior to commencement of the demolition shall be the responsibility of the owner of the property for repair or reinstatement, and c) The applicant shall ensure that the demolition contractor has a current public risk insurance coverage for a minimum of $5 million. A copy of the Policy must be submitted to the Council prior to demolition. d) If the building contains asbestos sheeting or asbestos products, the demolition work shall only be carried out by persons licensed by the Workcover Authority.
Note: The formal approval of the Workcover Authority is required prior to commencement of work where the area of the sheeting or product exceeds 200 square metres.
Excavations and backfilling a) All earthworks including excavations and backfilling associated with the erection or demolition of a building shall be executed safely and in accordance with appropriate professional standards
b) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.
c) All trees to be retained on the site shall be suitably protected from damage during excavation. The extent of all affected root systems shall be identified on the ground and "pegged" by an experienced arborist prior to the commencement of work.
Protection of Public Places To protect public safety and convenience during the course of constructing the works covered by this consent, the following matters shall be complied with: a) If the work involved in the erection or demolition of a building: i. is likely to cause pedestrian or vehicular traffic in a public place to be obstructed, inconvenienced, or rendered unsafe; or ii. building involves the enclosure of a public place, A hoarding or fence shall be erected between the work site and the public place. b) If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.
c) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place. Any such hoarding, fence or awning shall be removed and any damage to any public place reinstated to Council's satisfaction when the work has been completed.
Noise control during construction and demolition To minimise the impact on the surrounding environment: a) For construction and demolition periods of 4 weeks or less the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the ambient background level by more than 20dB(A) when measured at the nearest affected premises.
b) For construction and demolition periods greater than 4 weeks and not exceeding 26 weeks the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 10 dB(A) when measured at the nearest affected premises.
c) For construction and demolition periods greater than 26 weeks the LAeq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 5 dB(A) when measured at the nearest affected premises.
Vibration damage To minimise vibration damage and loss of support to the buildings in close proximity where a hydraulic hammer is to be used within 30 metres of any building (other than a path or a fence) a report shall be prepared by a qualified geotechnical engineer detailing the maximum size of hammer to be used for excavation purposes. This report shall accompany the Construction Certificate. 42. Maintenance of Erosion Control Measures Erosion and sediment control measures shall be implemented and maintained at all times, during the course of construction, to minimise downstream sediment transfer particularly with respect to watercourses, stormwater outlets, fire trails, batters and disturbed ground. All control measures shall be maintained in accordance with Council's Environmental Site Management Development Control Plan and "Specification for Civil Works Associated with Subdivisions and Developments". 43. Run-off and Erosion Controls Run-off and erosion controls shall be installed prior to commencement of any site works and shall be continuously maintained during the period of construction or demolition. These control measures shall generally be in accordance with the requirements of Council's Environmental Site Management Development Control Plan and shall specifically address the following matters: a) diversion of uncontaminated runoff around cleared or disturbed areas, b) a silt fence or other device to prevent sediment and other debris escaping from the cleared or disturbed areas into drainage systems or waterways, c) controls to prevent tracking of sediment by vehicles onto adjoining roadways and public areas, and d) disturbed areas shall be stabilised either temporarily or permanently by the use of turf, mulch, paving or other methods approved by the Council.
Certification Requirement - Prior to pouring of concrete Certificate shall be provided from a registered surveyor at the following stages of construction to ensure that when completed the structure will comply with the design details endorsed and accompanying the Construction Certificate: a) Prior to the pouring of the basement and podium level floor slabs, verifying the location and level of the steel / formwork is such to ensure that the concrete when poured will comply with the approved floor level. b) Prior to the pouring of each floor slab, verifying the location and level of the steel/formwork is such to ensure that when completed, the building will comply with the approved roof height. accordance with Council's "Urban Street Tree Planting Guide".
Bushfire condition Category B sites (Ember & Radiant Heat Control) The following requirements have been imposed to reduce the risk of ignition to a building as a result of the passing of a bushfire front.
Decks Bearers and joists of a deck shall be constructed of non-combustible material.
Where timber flooring is used, the decking timbers shall be fixed with a gap between the timber deck flooring of not less than 5mm; and in order to provide access to extinguish fires or burning debris, the external perimeter of the deck is to remain open. No combustible materials shall be stored below the deck.
Windows All external glazing, fixed or openable, that faces towards the bushfire hazard must be either: a) glazed in toughened safety glass to a minimum thickness of 5 mm, within a non combustible frame; or,
b) protected by screens with corrosion-resistant steel or bronze mesh with a maximum aperture size of 1.8 mm.
To prevent entry of burning debris through open windows, the openable part of a window, including louvres, shall be screened with corrosion resistant steel, bronze or aluminium mesh with a maximum aperture size of 1.8mm.
External leadlight panels that face the bushfire hazard shall not be permitted.
Doors Doors shall be fitted with weather strips or draft excluders to prevent penetration or build up of burning debris beneath the door.
The openable part of all external doors shall be fitted with a tight-fitting screen door with corrosion resistant steel, bronze or aluminium mesh with a maximum aperture size of 1.8mm.
All external glazing, fixed or openable, that faces towards the bushfire hazard must be either:
a) glazed in toughened safety glass to a minimum thickness of 5 mm, within a non combustible frame; or,
b) protected by screens with corrosion-resistant steel or bronze mesh with a maximum aperture size of 1.8 mm.
External leadlight panels that face the bush fire hazard are not permitted.
Vents & Weepholes Openings including Vents and weepholes shall be protected with spark guards made from corrosion-resistant steel, bronze or aluminium mesh with a maximum aperture size of 1.8mm
Eaves All eaves shall be enclosed with the fascia sealed.
Roof Cladding Roof claddings shall be a suitable non-combustible material (such as tile, metal sheet roofing).
The roof shall be fully sarked, including the ridge, with sarking located directly below the battens. All sarking shall have a flammability index of not more than 5.
The openings at the exposed ends and sides of any metal sheet roofing shall be sealed. Similarly any other openings affording external access to the roof cavity shall be sealed.
Roof lights Roof light penetrations and associated shafts through the roof space shall be sealed with a non-combustible sleeve or lining.
A roof light may consist of thermoplastic sheets in a metal frame, provided the diffuser at ceiling level is of wired or toughened glass in a metal frame
Openings in ventilated roof lights shall be provided with corrosion resistant steel or bronze mesh with a maximum aperture size of 1.8mm.
Roof Ventilators All components of roof ventilators, including rotary ventilators, shall be of non-combustible material and have ventilation openings protected by corrosion-resistant steel or bronze mesh with a maximum aperture size of 1.8mm.
Floors A suspended timber floor with bearer and / or joist is less than 600mm above the ground shall be fully enclosed for the entire sub-floor area with masonry or such other approved materials to secure the area against the entry of wind blown embers.
( Note : This does not relate to decks and the like).
Supporting Posts or Columns The supporting posts or columns shall be any one, or any combination of the following:
a) Non-combustible b) Timber protected by a metal sheathing, minimum 0.6mm thick, extended to at least 400mm above the finished ground level. Note : The metal sheath shall be suitably protected against rusting, eg by galvanising. c) Timber mounted on galvanised metal shoes with a clearance of not less than 100mm from the finished ground level.
External Building Materials Combustible materials used on the exterior of the building should be eliminated or minimised
Walls Where the external skin of the wall is not masonry or concrete, the wall framing shall incorporate either: a) breather-type sarking, complying with flammability index of not more than 5, installed immediately behind the external cladding; or b) an approved insulation material.
Where the external wall cladding is not of non-combustible material, the cladding shall be protected for not less than 400mm above the adjacent finished ground level. The protection shall be non-combustible.
Timber wall cladding shall be smooth faced. No rough sawn timber cladding is permitted.
Service Pipes Service pipes shall be metal unless 300mm below finished ground level. 73 Bushfire Hazard Reduction
To minimise the opportunity for ignition of the dwelling from surrounding vegetation the areas identified on the plans as Asset Protection Zones and Inner Fire Protection Zones and shall be maintained as follows: o Removal of the majority of the shrub layer. Some isolated shrubs can be retained, as long as they do not form a continuous path across the asset protection zone/ inner fire protection zone to the dwelling. o Planting of bushfire resistant species. o Trees can be retained in the asset protection zone/inner fire protection zone, where their canopies do not interlock. However, trees located in close proximity to the dwelling should be trimmed so that the branches do not touch, or extend over the dwelling. o Well maintained lawn or other ground cover. o Ongoing removal of litter (bark, branches, leaves) from the ground.
POST CONSTRUCTION CONDITIONS These conditions are imposed to ensure all works are completed in accordance with the Development Consent prior to the issue of an Occupation Certificate or habitation / occupation of the development.
Section 73 Compliance Certificate A Compliance Certificate under s73 of the Sydney Water Act, 1994, shall be submitted to Council by the PCA prior to occupation and attached to the Occupation Certificate or before the issue of a Subdivision Certificate. Sydney Water may require the construction of works and/or the payment of developer charges.
Advice from Sydney Water: An application must be made through an authorised Water Servicing Coordinator. For details see the Sydney Water web site at www.sydneywater.com.au\customer\urban\index\ or by telephone 13 20 92.
Following application a "Notice of Requirements" will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water / sewer extensions can be time consuming and may impact on other services as well as building, driveway or landscaping design.
Works As Executed Information Certification shall be provided from a registered surveyor to the effect that:
a) All civil engineering works required by this development consent have been carried out in accordance with the terms of the development consent and the approved engineering drawings with regard to location and level.
b) All pipes, pits and detention facilities lay within their relevant existing or proposed easements.
c) All rights-of-way or positive covenants required by conditions of this development consent have been provided.
Works As Executed Drawings Certification shall be provided from the supervising engineer to the effect that:
a) All civil engineering and stormwater works associated with development have been carried out in accordance with the terms of the development consent, the approved engineering drawings and in the case of public works Council's "Specifications For Civil Works associated with Subdivisions and Developments".
b) The construction of the drainage system for the proposed development has been carried out generally in accordance with the requirements of the approved stormwater drainage plans, Council's stormwater management policy and guidelines and Council's On-site Detention Policy and has been carried out in order that stormwater runoff downstream is not increased as a result of the development and that all assumptions made during the design remain valid. Works-as-Executed drawings certified in the above manner and containing all relevant information as required by Council's "Specification for Civil Works Associated with Subdivisions and Developments" shall accompany the Subdivision / Occupation Certificate.
i. Need for Certification To ensure that all works are completed in accordance with the Development Consent, certification from an Accredited Certifier shall accompany the Occupation Certificate or Completion Report, to the effect that the following works have been completed:
Set out of Building Certificate from a Registered Surveyor certifying that the building has been set-out in accordance with the requirements of the development consent regarding location and levels.
Mechanical Ventilation Certification from a suitably qualified Mechanical Engineer certifying that all work associated with the installation of the mechanical ventilation systems has been carried out in accordance with the conditions of the development consent.
General Compliance Certification from the Principle Certifying Authority certifying that all works have been completed and comply with the approved plans, conditions and specifications.
Works in Roadway A Compliance Certificate from an Accredited Certifier certifying that all works undertaken in the road reserve have been completed in accordance with the conditions of the Road Opening Approval.
Energy Efficiency Certification shall be provided by an NatHERs accredited certifier verifying that the development has attained the energy efficiency rating requirements specified in this development consent and detailing the type and efficiency rating of any energy efficiency devices installed in the development.
Completion of Landscaping Certification shall be provided from an Accredited Certifier, Ecologist, Geotechnical Engineer and Arborist prior to occupation of the development verifying that the landscape works and tree preservation works (including fencing), pruning, and surgery has been completed in accordance with the detailed landscape plan and tree management plan approved in conjunction with the Construction Certificate.
Prior to Occupation or Use of the Development The Development shall not be occupied or used until: a) A Final Occupation Certificate and Completion Report is issued and provided to Council for the development, or b) Approval is obtained from Council to stage the development to permit occupation or use of part of the development covered by the Development Consent and c) An Interim Occupation Certificate and Completion Report is issued and provided to Council for the development.
Completion Report The Completion Report shall be submitted to Council by the Principal Certifying Authority which shall contain the following information. This report shall accompany the Final / Interim Occupation Certificate or shall be submitted prior to occupation. a) Subject property description. b) A description as to the whole or part of the development in respect of which the Completion Report is given. c) Development Consent reference number and Construction Certificate reference number. d) A description of any work/ stages that has been inspected, the date of the inspection and by whom such inspection was carried out. e) A list of any documents required by the Consent, referred to or relied upon in respect of which the Completion Report is given. f) A copy of any such documents referred to or relied upon within the report. g) A statement to the effect that the Principal Certifying Authority certifies that the subject stages of the development were inspected and found to be satisfactory. The whole development or described part (as the case maybe), is completed and complies with the issued development consent and construction certificate (approved plans, specifications and conditions). h) Name and signature of the Principal Certifying Authority (with Accreditation Number and Accreditation Body) making the report. i) Date of the report.
Final site Inspection Prior to the issue of the Occupation Certificate, a final site inspection relating to the public area shall be arranged by the applicant, and shall be undertaken by the applicant's Supervising Engineer and Council's Compliance Officer. The purpose of the inspection is to ensure that notwithstanding the submission of any certificates required by the development consent, all impacts within the public area caused by the development have been satisfactorily addressed. Note: An inspection fee of $145.00 applies (Account No. 1721550).
Endorsement of Linen Plans of Subdivision by Council To facilitate the issue of the Plan of Subdivision, following completion of the requirements detailed in the conditions of this Development Consent and the issue of the Subdivision Certificate by Council, a film and eight (8) paper copies of the Plan of Subdivision shall be submitted to Council together with the Instrument (in duplicate) under Section 88B of the Conveyancing Act, where required for ultimate lodgement at the Land Titles Office.
OPERATIONAL CONDITIONS These conditions are imposed to ensure that the use or operation of the development does not adversely impact on the amenity of the neighbourhood and the environment.
Common Property To ensure that the car parking area satisfies the demands of the development the nominated visitor carparking spaces shall be made available as common property in any future strata subdivision.
External Lighting All external lights shall be operated and maintained in accordance with the Australian Standard AS4282 - Control of the Obtrusive Effects of Outdoor Lighting so as not to cause a nuisance or adverse impact on the amenity of residents of the surrounding area nor to motorists on nearby roads.
Noise Control - Car Park Security Grills To minimise the impact on the amenity of surrounding residents, all sound producing plant, equipment, machinery or fittings within or forming part of the proposed security door fitted to the car parking area entrance shall be acoustically attenuated so that the noise emitted does not exceed an Leq sound pressure level of 5dB(A) above the ambient background noise level in any octave band from 31.5Hz to 8kHz centre frequencies inclusive, at the boundary of the subject site or on any balcony of the premises itself. Not withstanding the above, any noise emitted shall not be audible within any sole occupancy unit with its windows or doors closed. Note : The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1.
Details of the acoustic attenuation required to comply with this condition, shall be prepared by a practicing acoustic engineer and shall accompany the Construction Certificate.
To ensure ongoing maintenance of the riparian zone on the site and of the vegetation of the southern treeline along the southern edge of the site, covenants shall be created pursuant to section 88B of the Conveyancing Act 1919 in terms set out in Annexure "A" to this consent. If the design changes contemplated in condition 10(e) proceed, the plans accompanying Annexure A will be amended accordingly. The covenants are in addition to the requirements of DIPNR under condition 3 as attached to and forming part of the conditions of this consent.
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.
Oceanic Developments Australia Pty Limited
Sutherland Shire Council
CITATION : Oceanic Developments Australia Pty Limited v Sutherland Shire Council [2003] NSWLEC 345 APPLICANT Oceanic Developments Australia Pty Limited PARTIES : RESPONDENT Sutherland Shire Council
The appeal was upheld. Development application No 02/2165 for demolition of the existing house and construction of 13 townhouses at 20R Helena Street and 59 Bligh Street, Kirrawee, was granted consent in accordance with the plans in Annexure A and subject to the conditions in Annexure B.