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[2004] NSWLEC 405
Land and Environment Court (NSW)
2004-07-27
Mr P
Original judgment source is linked above.
CITATION : Stewart Ross Stevens v Sutherland Shire Council [2004] NSWLEC 405 APPLICANT: PARTIES : Stewart Ross Stevens RESPONDENT: Sutherland Shire Council FILE NUMBER(S) : 10393 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Townhouses and villas are prohibited under Draft Sutherland Local Environmental Plan 2004. (Issue 1(e)) - Bulk scale character and compatibility with "character of the neighbourhood" (Issue 1(a) (b) (c) and Issue 2) - Limiting multi-unit dwellings in each locality to be no more than 10% of all dwellings - Internal amenity for future occupants (Issue 3) - Parking. (Issue 4) - and - Points of objection raised by objectors. (Issue 5). LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2000, (SSLEP) - The Development Control Plan for Townhouses and Villa Houses in 2(al) and 2(a2) Residential Zones, (DCP - TV) - Draft Sutherland Shire Local Environmental Plan 2004, (DSSLEP2004) - Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: Novara Crescent v Sutherland Council - Smartspace v Parramatta City Council - Ciofuli v Canada Bay Council DATES OF HEARING: 08/07/2004 DATE OF JUDGMENT: 07/27/2004
APPLICANT: Mr P Clay, barrister, instructed by Mr S R Stevens, owner LEGAL REPRESENTATIVES: RESPONDENT: Mr R O'Gorman-Hughes, environmental lawyer
THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
10393 of 2004 Stewart Ross Stevens v Sutherland Shire Council
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Sutherland Shire Council (the council) of an integrated development application to demolish the existing structures and to originally construct five (5) townhouses (now four (4)) and one (1) villa house with basement parking and to strata subdivide into six (6) lots land at Lot 500 DP 752034, being No 81 Yala Road, Bangor. 2 I visited the land in company with the parties on the morning of the first day of the hearing. 3 I have concluded that the application is satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979. The land 4 The land is situated on the northern side of Yala Road at the intersection of Yala Road and Torumba Close. 5 The land is of irregular shape with a frontage of 27.39m to Yala Road, a frontage of 36.575m to Torumba Close, a depth ranging from 47.81m along the northern boundary and 36.865m along the western boundary with an area of 1,325.3m2. Erected on the land is a freestanding dwelling house near the northern and eastern boundaries. 6 The land has a cross-fall of about 1m from the southwestern corner to the northeastern corner. Pockets of vegetation and some significant trees are present. 7 The land is within a residential area characterised by detached dwellings. The distinctive visual characteristic of the locality is the landscaped streetscape with a backdrop of canopy trees. Relevant planning controls Sutherland Shire Local Environmental Plan 2000, (SSLEP) 8 Under the provisions of the SSLEP the land is zoned 2(al) Residential and the proposal is permissible with consent. 9 The objective of the 2(al) zone under the SSLEP is: 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, town house or villa house developments, and (d) where non-residential uses provide necessary services to the local neighbourhood without adversely affecting the residential amenity. 10 Dwelling houses require development consent and include: Townhouses, except on internal lots, Villa houses, except on internal lots, Demolition not included in development allowed without development consent. 11 Clause 30(a) of SSLEP states: When assessing the impact of residential land uses proposed in the residential zones by development applications and whether those uses satisfy the objectives of the zone concerned, the consent authority must take into consideration the following matters and must not grant consent unless it is satisfied that those matters have been adequately addressed by relevant documentation submitted to it: (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 Clause 32 of the SSLEP - Bushland Considerations states: 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 f ora and fauna species and the protection of habitats for native f ora and fauna, or (b) the protection of wildlife corridors and vegetation links with other nearby bushland 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 Clause 34(2) of SSLEP sets height limits: · 7.2 metres to any point on the uppermost ceiling; · 9 metres to the highest point of the roof; · villa houses must be 1 storey only and must not exceed 5.4 metres to the highest point of the roof; and · basement car parking must not exceed 1.5 metres above ground level to the top of the slab. 14 Clause 35(2) of SSLEP sets out the maximum floor space ratio for a 2(al) zone as 0.45:1. 15 Clause 36(2) of SSLEP sets out the minimum landscaped area for a 2(al) zone as 45% of the site area. 16 Clause 37(2) of SSLEP sets out the minimum lot size for 3 or more dwellings in a 2(al) zone as 1,200m2. 17 Clause 38(2) of SSLEP sets out the minimum lot width for 3 or more dwellings in a 2(al) zone as 25 metres. 18 Clause 41 of SSLEP addresses the question "can development within a residential zone be limited?" The clause states: Regardless of the development control tables in this plan, a development control plan relating to land within a residential zone may recommend restrictions on specific types of development otherwise permitted on the land. The Development Control Plan for Townhouses and Villa Houses in 2(al) and 2(a2) Residential Zones, (DCP - TV) 19 The council adopted the DCP - TV on 10 December 2001 and it came into effect on 20 December 2001. 20 The purpose of the DCP - TV, in cl 2, is stated to be: … to provide development controls to ensure that townhouse and villa house developments are compatible with other housing in the locality and will meet community expectations and the objectives of the 2(al) and 2(a2) zones. 21 The objectives of the DCP - TV are in cl 3, are stated: (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. (b) To encourage an increased housing choice for Shire residents. (c) To encourage the scattering of townhouses and villa houses throughout the 2(al) and 2(42) Residential zones. (d) To complement the statutory requirements of SSLEP 2000. 22 Clause 10 of the DCP - TV controls the location of townhouses and villa houses in the 2(a1) and 2(a2) zones. The objectives of this clause are:
60 The council's Director of Corporate Services reported favourably on the application to the council of the five town house and one villa proposal (six dwellings) and stated, [Note: Exhibit 7 p 29]: Council adopted the DSSLEP2004, with amendments, on 15 March 2004 and a report in accordance with s 68(4) of the EP&A Act was forwarded to the Department of Infrastructure, Planning & Natural Resources on 2 March 2004 for consideration and gazettal.
While the draft plan remains a relevant matter for consideration, the weight to be given to it is minimised because gazettal of the plan is neither imminent nor certain at this point in time.
61 In a letter from DIPNR to the council, received 4 June 2004, which postdated the decision of her Honour Pain J in the unreported decision of Novara Crescent v Sutherland Council, DIPNR suggested matters that require further attention by the council and advised that it has made a "…preliminary assessment of the draft plan" and that the Parliamentary Counsel "…may identify significant additional matters". DIPNR invited the council to consider the DSSLEP2004 and the matters raised in its letter and advise the Department on how it wishes to proceed. DIPNR did not raise rezoning concerns, however after considering this letter and other factors Mr Moody concluded: "…the draft plan is neither 'imminent nor certain', [Note: Exhibit 9 p 6]. 62 In this regard I accept the evidence of Mr Moody. I consider the SSLEP2004 is neither certain and imminent and I have given it little weight in the determination of this application. Bulk, scale, character and compatibility with "character of the neighbourhood" (Issue 1(a), (b), (c) and Issue 2) 63 Mr Moody calculated the floor space ratio, (FSR) of the amended four-town-house and one-villa proposal to be "…0.47:1, which exceeds the standard. The townhouses and villa above ground have floor space ratio of 0.39:1." [Note: Exhibit 9 p 10]. 64 Mr Moody calculated the GFA of the amended five-dwelling proposal to be around 622.8m2 on a site area of 1,325.3m2 or a FSR of 0.47:1 and thus would exceed the allowable FSR of 0.45:1. A State Environmental Planning Policy No 1 objection was lodged against strict compliance with the FSR standard, [Note: Exhibit E Annexure A p 26 and as amended in Exhibit F]. 65 The FSR objectives in cl 35(1) of SSLEP relevantly are: · To provide a degree of consistency for existing residences as to the size and bulk of potential buildings in their neighbourhood. · To allow buildings of sufficient scale to satisfy the needs of residents while preventing development of sites beyond community expectations and the environmental capacity of the zone.
66 Mr Moody stated that the amended proposal satisfies the objectives of the floor space ratio standard particularly in light of the following: · The setbacks for the proposed development comply with Council's requirements. In fact, the proposed front, side and rear setbacks either comply or are well in excess of Council's requirements. · The landscaped area and proposed courtyards easily comply with Council's requirements. The extra landscaped area and larger courtyards are largely as a result of the decision to put the carparking below ground. Thus a positive environmental outcome will result by achieving a well-landscaped development site. · The open space areas are well in excess of Council's requirements. · The heights of the proposed development (both ridge and eave) are well under Council's requirements. · There will be no unreasonable adverse amenity impacts on the adjoining properties. · The architectural appearance of the proposed development is very reasonable particularly with the introduction of a stepped form by the introduction of the villa on the northern portion of the subject site. · The basement carpark is essentially below ground and will largely not be visible and will not add to the bulk and scale of the development. If one excludes the area below ground, then the townhouses and villa easily comply with the floor space ratio standard. · The exceedence in the standard is very minor (4.4%). 67 With the reduction in the number of town houses from five to four there would be less bulk above ground and less than the 0.45:1 standard would allow. The additional bulk would be found within the basement substantially below ground, and brought about by calculating some of the car parking and access thereto as part of the gross floor area of the proposal. 68 There was no evidence to suggest other than that compliance with the development standard would be other than unreasonable or unnecessary in the circumstances of the case and that the "amended proposal satisfies the objectives of the floor space ratio standard", [Note: Exhibit 9 p 11]. 69 I am satisfied that the FSR objectives of SSLEP would be met by the application as it would be of a size, bulk and scale that would be consistent with existing residences in the neighbourhood and despite the resident objections to the proposal, would be of a scale that would be likely to be within community expectations and the environmental capacity of the zone. I uphold the SEPP1 objection. 70 I accept the evidence of Mr Moody and would not refuse the application for reason of excessive height, bulk, scale, character and compatibility. Limiting multi-unit dwellings in each locality to be no more than 10% of all dwellings 71 This issue of limiting multi-unit dwellings in each locality to be no more than 10% of all dwellings, also relates to the character of the area, and was dealt with in the respondent's submissions. 72 Referring to hand-written notes taken when the judgment of Pain J in Novara Crescent v Sutherland Council was handed down, the council's solicitors claimed that her Honour stated words to the effect that: "I accept that the 10% limit is an important control and should be enforced". I do not have any further details of that decision. However, I have assessed the application against that requirement. 73 Clause 10.1 of the DCP - TV states: …villa and townhouse development in each designated neighbourhood must not increase the number of multi-dwellings to more than 10% of the total multi-dwellings of that neighbourhood. 74 The objective of the 10% limit, as explained by Mr Moody, is to maintain the predominantly single-storey dwelling house character of the neighbourhood, to minimise congestion or overloading of services and roads, to minimise change to single dwelling house scale and character within cul-de-sacs and to retain streetscapes of predominantly one to two storey residential buildings within a landscaped setting. 75 On this point, the council's Director of Corporate Services, who recognised that the proposal would bring to around 11.6% the number of multi-unit dwellings in this area, advised in respect of this development that, [Note: Exhibit 7 p 26]: …notwithstanding the technical disparity, some discretion in insisting on full compliance is appropriate where it can be shown that there is no detrimental impact on nearby residential character. In this case there is an intense clustering of multi-unit development at the eastern boundary of the neighbourhood along Menai Road. There is no higher density development within the visual catchment of the subject site. Accordingly, the technical non-compliance in this location is acceptable.
76 Mr Moody agreed with the Director's comments, which were made in relation to the original six-dwelling proposal, and has been now reduced to five dwellings. Mr Moody was of the opinion that: As there is not a conglomeration of medium density developments in the nearby locality, the proposal will not unduly diminish the low scale residential character of the area. In fact, I consider that for the reasons outlined in the Statement, the proposal will be compatible with the existing residential development and is unlikely to result in congestion or overloading of services and roads. I should also note the comments of the letter from DIPNR, …which raises objection to the 10% limit when Council attempted to include this limit in the draft LEP 2004. DIPNR advises that "Many of the areas best served by public transport in Sutherland already have at least 10% medium density housing and this restriction would severely impact on future housing opportunities". 77 I am satisfied that the objective of the 10% control would be met, as there are few town house developments nearby. 78 I am also satisfied that the proposal would adequately meet the objective of the 2(al) zone under the SSLEP and within the residential environment, preserve the scale, amenity and general character of that area, and maintain the streetscape is characterised by detached single-storey and two-storey residential buildings. I am satisfied that the predominantly single-dwelling-house-character of a neighbourhood would not be unduly diminished by the proposed, town house and villa house development. 79 I would not refuse the application for this reason. Internal amenity for future occupants. (Issue 3) 80 Issue 3 of the statement of issues raised concern for: · The "small sizes of the townhouses"; · The level of sunshine to the outdoor areas to dwellings 2 and 5; and · The outdoor areas to all proposed dwellings will be subject to overlooking from upstairs rooms of the townhouses. 81 The proposed townhouses would have an area of about 100m2 and would comprise: · A living/ dining room, kitchen and WC at ground level; · 2 bedrooms at first floor level with a bathroom. 82 Mr Moody concluded that the proposed townhouses would be adequate in size for reason: · The townhouses are in the order of approximately 100m2 in area. This size would constitute a "medium size" unit and would be acceptable; · The proposed 2-bedroom townhouses will provide additional 2-3 bedroom accommodation which will increase the variety of housing stock in the area; · There is no minimum size requirement for townhouses under the Townhouses & Villas DCP of Council; and · For the reasons referred to in this Statement, the internal amenity of the future occupants will be very satisfactory. 83 Mr Haas considered the bedrooms to be like 'dog-boxes'. However a careful examination of the plans reveals that the bedrooms facing onto Torumba Close would be 3.4m x 3.0m excluding the built-in wardrobe and those facing the north would be 3.4m x 4.0m. They could hardly be described as dog-boxes and prior to the abandonment of the requirements of Ordinance 70 to the Local Government Act 1919, the minimum bedroom size was 10 foot x 8 foot or 3m x 2.4m. The proposed bedrooms would be of greater area than the previously minimum required and adequate by today's standards. 84 I accept the evidence of Mr Moody and I am satisfied that the size of the proposed townhouses would be adequate. I would not refuse the application for this reason. 85 The second area of concern was: The outdoor areas to dwellings 2-5 will not receive 60% direct sunlight at ground level for four hours in mid winter, as required by Clause 17.1 of the Townhouses & Villas DCP.
86 Mr Fletcher, stated, [Note: Exhibit E p 15]: The proposed development capitalises on the north and north-eastern orientation of the site, providing a long eastern elevation that contains windows to live-in areas. In addition, the courtyards to each dwelling will achieve high levels of solar excess. 87 Mr Moody examined the shadow diagrams and concluded that for the amended proposal, the courtyards of the units would appear to achieve a level of sunlight in excess of the council's requirement. Although he agreed that the whole of the courtyard to the front Unit No 1 would appear not to achieve sunlight to 60%, it would still achieve compliance with the requirement and would be satisfactory having regard to the fact that: · The courtyard to Unit No 1 is very large and is well in excess of the 6m x 4m requirement under the council's DCP. Unit No 1 has courtyard areas on three sides and particularly to the south to the extent that at least 14.4m2 of the private open space (being 60% of the minimum required 24m2 for private open space) is always in sun; · The proposed courtyard area to Unit No 1 is directly accessible to the living room (as with all the other proposed units); · The sunlight access to proposed Unit No 1 (as with the other units) is also very good. 88 Mr Moody determined that the proposal would comply in this regard on the basis that part of the private open space measuring 6m x 4m or 24m2 would comply with the requirement of 60% in sunlight. 89 I accept that evidence of Mr Moody and would not refuse the application for this reason. 90 The third internal amenity concern related to the possible overlooking from the second floor bedrooms of the proposed townhouses into the outdoor areas of the adjoining proposed townhouses. 91 Mr Moody accepted that there would be a degree of overlooking from the second floor bedrooms of the proposed townhouse into the neighbouring open space areas and he considered this not to be unreasonable. 92 He referred to the requirements of AMCORD and that in that document overlooking from bedrooms is not considered to be as great a problem as overlooking from living rooms. Also he pointed out that there are no large balconies or the like associated with the first floor windows. 93 He considered that vegetative planting might in due course provide an additional screening to reduce the level of overlooking. In addition he was satisfied that 1.8m high dividing fences between the proposed courtyards would assist low level screening. 94 Mr Moody further pointed out that there is unlikely to be unreasonable overlooking into adjoining properties in light of: · The proposed first floor of the townhouses would be about 12m to 16m distant from the adjoining property to the east and this would be in excess of the 9m separation distance recommended by AMCORD; · The first floor windows are associated with bedrooms, which do not normally generate unreasonable overlooking opportunities and there are no first floor terraces or balconies proposed; · Perimeter landscaping could be provided to the eastern boundary to further reduce level of overlooking; · The proposed single-storey villa would be unlikely to pose an adverse overlooking problem to the property to the north. 95 I accept Mr Moody's evidence that there would be no unreasonable overlooking of either the courtyards within the proposed development or of adjoining properties. I would not refuse the application for these reasons. Parking. (Issue 4) 96 In this regard Mr Moody was prepared to accept the conclusion of the council's reporting officer that the proposal "…complies with AS2890.1 except for the width of the access ramp to the basement carpark at a strategic point. A condition requiring appropriate ramp widening will correct this matter". 97 Prior to the hearing the width of the ramp had been addressed, however, it became clear that the gradient of the ramp did not comply with the standard. In order to comply it would be necessary for the top 6m of the ramp to be at a gradient of 1:20 commencing at the street alignment. Originally that 1:20 gradient section was only 3m in length and would not comply with the required 6m length. A 4m-length at 1:20 slope is now proposed and although this would not strictly comply I am satisfied that my discretion should be applied given the location and the small number of units. The reason for allowing the variation is that the number of units has been reduced to five and thus nearly falls into the category of 'domestic' under the AS, which is three units, or less. This would not of itself be sufficient reason to permit an exception and in Smartspace v Parramatta City Council I refused a development of five units for not providing a 6m section of 1:20 slope at the top of the ramp. In that case, the evidence was that the footpath, which was unmade, as here, was traversed by school children and thus a higher standard of safety was required. Here there is no evidence that great numbers school children would pass along the footpath at the top of the proposed ramp. 98 In Ciofuli v Canada Bay Council evidence was given that the 85%ile car could wholly stand on a 1:20 slope if it were 3.8m in length. This rounded up to 4m in length was sufficient length for the 85%ile car to stand and to enable the driver to have clear vision of people on the footpath. Although not fully in compliance with the 6m standard length, I am satisfied in the circumstances of this case that a 1:20 sloping section of 4m at the entrance of the ramp would be satisfactory for the proposed five units. 99 The applicant has submitted a revised plan showing a 4m-length of ramp at 1:20 gradient inside the entrance to the site. In other respects the evidence is that the basement car park would comply and I would not refuse the application for non-compliance with AS2890.1. Points of objection raised by objectors. (Issue 5) Over-development 100 Indicia of 'over-development' are bulk, height, scale and FSR is an indicator of over-development. I am satisfied that the above-ground part of the proposal would not exceed the allowable FSR of 0.45:1 and that the proposal would be consistent with the character of the area. Dilapidation report 101 Residents were concerned that the excavation required for the basement carpark might result in cracking of adjoining and nearby properties. A condition is to be imposed requiring dilapidation reports to be prepared on immediately adjoining properties at the applicant's cost both pre-excavation and post-excavation. Increased traffic 102 There was concern that there would be increased traffic in the locality generated by the proposal. Mr Moody was satisfied that the level of traffic generated by the proposed development would not, of itself, be a reason to refuse this application. I accept that evidence and would not refuse the application for this reason. Traffic noise 103 Mr and Mrs Featherstone, who reside at No 79 Yala Road, the adjoining property to the north requested a masonry wall be erected along the northern side of the basement ramp to a height of 1.8m above natural ground level and along the northern side of the courtyards and on the common boundary. They also required a 600mm section of lattice to be placed on top of the wall for further privacy screening. This the applicant agreed to. 104 In the amended plans the proposed driveway would not reach natural ground level until about 4m from the street alignment and would be behind a 1.8m high masonry wall at that point. Where the driveway runs past the Featherstone's dwelling, the driveway surface level would be some 3m to 4m below the top of the boundary wall. Thus the wall would interrupt line of sight between any vehicle on the ramp and the windows of the next-door dwelling. This would assist in attenuating noise impacts. 105 Mr Moody also required a condition be imposed requiring an acoustic report to be carried out on noise from the basement. The applicant also agreed to this. As a result Condition No 27 is proposed requiring an acoustic report. Headlight glare 106 Mr and Mrs Spencer, on behalf of Mrs Potter, resident of No 92 Yala Road, Bangor, raised this issue on the site inspection and in written submissions to the council. 107 The council's director of planning advised that: …headlights from vehicles exiting the subject drive will shine towards the home at No 92 Yala Road, opposite the proposed driveway. However, the grade of the driveway flattens before the site boundary and the dwelling opposite is more than 30 metres away. In any event there is unlikely to be a high number of late night vehicle movement out this residential complex. 108 Mr Moody agreed generally with the comments of the director on this aspect. On the site inspection I noted the distance between the top of the ramp and the dwelling opposite and I accept Mr Moody's evidence in that regard and I would not refuse the application for this reason. Basement security grille 109 Mr and Mrs Featherstone were concerned that the basement security grille might be noisy 24 hours a day. The council's director of planning would of the opinion that this concern could be addressed by the usual operating condition that requires the element to be independently mounted on rubber pads to prevent vibration noise. Based on his experience, Mr Moody accepted that security grilles might create an adverse noise impact. Despite this he recommended that the required acoustic report in relation to the basement carpark should also canvass the proposed security grille. Condition 27 would apply and as a result I would not refuse the application for this reason. Driveway location 110 Mr Moody was satisfied that as the proposed driveway would be well removed from the intersection of Yala Road and Torumba Close there would be no sustainable objection on this ground. He referred to the fact that council officers had raised no objection to the location of the proposed driveway and, based on his experience of traffic; he considered that there would be no unreasonable impact arising from the location of the driveway. I accept that evidence and would not refuse the application for this reason. Water pressure 111 Water Pressure in the locality will drop. Council officers did not raise a concern on this point. The appropriate service authority will assess the matter. I consider it unlikely to be a problem. Property values 112 Some of the nearby residents were concerned that if the proposal were approved that nearby property values would drop. There was no evidence in this regard and as the proposal is in accord with the zoning of the land I am satisfied that there would be little or no impact on property values. Mr Moody was also of this view. I would not refuse the application for this reason. Local infrastructure 113 Some residents were concerned for an unacceptable impact on local infrastructure. The council did not raise this issue and the relevant service authorities would be called upon to assess the matter in due course. Bushfire impact 114 The first 7m - 10m measured from the Yala Road alignment of the subject land was designated as bushfire prone land. The applicant's bushfire management consultant addressed this matter and recommended support of the application. The NSW Bushfire Service on 26 March 2004 wrote to the council and advised that whilst it disagrees with the consultant's suggestion that the site is not bushfire prone, it is nonetheless prepared to grant a Bush Fire Safety Authority subject to conditions which should be incorporated as conditions of any consent. The 'approval' of the Bush Fire Safety Authority indicates the risk to life and property is minor and would satisfy one of the objectives of the proposed environmental housing zone. Cul-de-sac location 115 Some residents expressed concern that all proposed vehicular access would be off Yala Road, which is not within the cul-de-sac. Clause 10.2 of the DCP - TV requires that multi-dwellings must not have access to a designated cul-de-sac and that villas and townhouses must not have access to a road with a width less than 6m kerb to kerb. The proposal complies with these requirements. Pump out system 116 Some of the residents were concerned that the pump out system in the detention tank might fail. Also the height of the detention tank might impact on Mr Fox's outlook from No 75A Yala Road, Bangor. The council officers advised that "…concerns about the pump failure in the detention tank are unwarranted because the tank will be required to drain by gravity to the nearby easement". 117 I am satisfied that the height of the detention tank in the northern corner of the land would not create an unreasonable visual impact and would be screened by the and the boundary fence or wall and softened by the proposed landscape treatment around the tank. 118 For the above reasons, the appeal is upheld. Conditions 119 The conditions are those in Exhibit 8 as amended during the hearing. Orders 120 My orders are:
Integrated development application No DA03/ 1834 lodged with the respondent council on 24 October 2003 to demolish the existing structures and to construct originally five (5) townhouses (now four (4)) and one (1) villa house with basement parking and to strata subdivide into six (6) lots land at Lot 500 DP 752034, being No 81 Yala Road, Bangor is approved subject to Conditions 1 to 55 in Annexure A.
The exhibits with the exception of Exhibits A, B, C, D, E, 8 and 11 are returned.
S J Watts Commissioner of the Court sw Conditions of integrated development consent Annexure A Stewart Ross Stevens v Sutherland Shire Council To demolish existing structures, and to construct four (4) townhouses and one villa with basement carparking and strata subdivision No 81 Yala Road, Bangor
GENERAL CONDITIONS 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.
The required information shall be submitted within 12 months of the date of issue of this development consent.
DA 01 Issue H, DA 02 Issue G, DA 03 Issue D, DA 04 Issue D, DA 05 Issue D, DA 10 Issue D, DA 14 issue C, prepared by Architecture and Building Works, and
Drawing Nos. 03MB1242/D01, 03MB1242/D02 and 03MB1242/D03, Issue A 3 dated March 03 prepared by United Consulting Engineers Pty Limited, and any details on the application form except as amended by the conditions specified and imposed hereunder.
2A. Boundary Fencing/Retaining Walls The boundary fencing to the north western boundary of the property (between the property and 79 Yala Road and between the property and 75AYala Road) shall be generally in accordance with plan DA 02 Issue G and more particularly as follows :
a. there shall be no fencing on the boundary from the front boundary to the side gate of 79 Yala Road; b. from the point of the gate to the boundary between 79 Yala and 75 A Yala, a 1.8m facebrick fence with 600mm lattice on top. The colour of the facebrick and the form of the lattice is to be agreed between the developer and the owners of 79 Yala and such agreement shall be obtained prior to construction Certificate.
c. from the boundary between 79 Yala and 75 A Yala,a 1.8m colorbond fence with 600mm lattice on top. The colour of the colorbond and the form of the lattice is to be agreed between the developer and the owners of 75A Yala and such agreement shall be obtained prior to Construction Certificate. d. in the event the gum tree (Tree No 23) on the boundary between the property and 75A Yala is approved by Council to be removed prior to the completion of the construction of the development then the fence in condition 3c shall be facebrick not colorbond but otherwise condition 3c shall apply.
2B. Retaining Walls The applicant shall construct a retaining wall at the Applicant's cost in the northern corner of the site where the ground level on the subject site is above the levels of the adjoining properties. The required wall shall be designed by a qualified engineer to the satisfaction of the PCA and the external materials where exposed to adjoining properties shall be agreed to between the applicant and the owners of adjoining properties.
(a) A Construction Certificate has been issued and detailed plans and specifications have been endorsed and lodged with Council, (b) A Principal Certifying Authority has been appointed . Council shall be notified of this appointment along with details of the Principal Certifying Authority, and their written acceptance of the appointment, and (c) Notice of commencement has been provided to Council 48 hours prior to commencement of construction work on the approved development.
Signs to be erected on Building and Demolition Sites Where proposed works affect the external walls of a building, a rigid and durable sign shall be erected prior to the commencement of work and maintained in a prominent position on any work site on which building work, subdivision work or demolition work is being carried out. The responsibility for this to occur is that of the principal certifying authority or the principal contractor.
The signage, which must be able to be easily read by anyone in any public road or other public place adjacent to the site, must:
(a) show the name, address and telephone number of the principal certifying authority for the work, and (b) show the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and (c) state that unauthorised entry to the work site is prohibited.
Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.
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.
Compliance with the Building Code of Australia The development must be carried out in accordance with the provisions of the Building Code of Australia.
Residential building work
(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.
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.
BONDS AND CONTRIBUTIONS The following security bonds and contributions have been levied in relation to the proposed development.
Council Property & Environment Damage Security - Construction Before the commencement of any works or the issue of a Construction Certificate the applicant shall provide security to the value of $15,000 for the payment of the cost of making good any damage caused to any Council property and / or the environment as a consequence of the implementation of this consent. The security may be provided by way of a deposit with the Council or a satisfactory guarantee. Council shall retain this for a period of 6 months following completion of the development for the purpose of remedying any damage to Council property or the environment that arises in this period. Should any public property and / or the environment sustain damage during the course of construction, or if the construction works put Council's assets or the environment at risk, Council may carry out any works necessary to repair the damage and / or remove the risk. The costs incurred shall be deducted from the security. The security will be released upon request 6 months after the completion of all works. (An administration fee is payable in relation to this bond.) 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 accompany the Construction Certificate.
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.
Acquisition and/or Embellishment of Public Open Space A monetary contribution of $41,338.18 shall be paid to Sutherland Shire Council for the cost of acquiring and embellishing public open space in lieu of its physical provision. The contribution is for the following:
Local reserve land acquisition $35,321.99 (A/c No. 2944LLA7MENCS94) District reserve embellishment $1,424.89 (A/c No. 2944DRA7MENCS94) Local reserve embellishment $4,591.30 (A/c No. 2944LRA7MENCS94)
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 15 new bedrooms with a concession of 1 existing allotment.
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 Occupation Certificate or the submission of the Completion Report.
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.
Community Facilities, Established Area of Shire A monetary contribution of $3,646.23 shall be made for the cost of providing community facilities. 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 5 new dwellings, with a concession for 1 existing dwelling.
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. PUBLIC UTILITY REQUIREMENTS 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.
Public Utility Authorities Arrangements shall be made to the satisfaction of all Utility Authorities including cable television network providers in respect to the services supplied to the development by those authorities. The necessity to provide or adjust conduits/ services within the road and footway areas shall be at full cost to the applicant. 13. Sydney Water - Notice of Requirements Prior to the issue of a Construction Certificate or Subdivision Certificate the applicant shall obtain a Notice of Requirements under the Sydney Water Act 1994, Part 6 Division 9 from Sydney Water and submit the Notice to the Council.
REQUIREMENTS OF NSW RURAL FIRE SERVICE 15. Note: Any future development application lodged for this subdivision under section 79BA of the Environmental Planning and Assessment Act 1979 will be subject to the requirements as set out in Planning for Bushfire Protection, 2001
The entire property shall be managed as an "Inner Protection Area" as outlined within section 4.2.2 in Planning for bushfire Protection 2001.
Construction shall comply with AS3959 - 1999 level 1 "Construction of buildings in bushfire prone areas".
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.
17A. A revised report shall be prepared by a qualified and experienced access consultant assessing the compliance of the proposed villa for adaptable housing as required by Clause 20 of the Townhouses and Villas Development Control Plan and provided to Council prior to issue of Construction Certificate. Plans are to be amended in accordance with the recommendations (and also to provide that the doorway access to the stairway to the basement carpark be a width of 0.92-1m) prior to the issue of a construction certificate.
Drainage Design 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".
A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.
Internal Driveway Profile/Disabled parking space 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 4 metres inside the property boundary; and (d) Comply with AS2890.1 (2004) and AS2890.2 (2002) in relation to the design of vehicular access, parking and general manoeuvring, save that only the first 4 metres of the driveway from the property boundary is required to be at a grade of no more than 5%. (e) The planter box and courtyard wall above the entrance to the car park is to be relocated to the north-west by a sufficient distance to provide the entrance with a 2.2 metre clearance when measured perpendicular to the road surface, as required by clause 5.3.1 and figure 5.3 of AS 2890.1 (2004). (f) The disabled parking space is to be 6 metres in length. 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.
(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 physical barrier (eg. concrete kerb or earth mound within the landscaping) shall be provided around the perimeter of the site to prevent the discharge of surface water flows onto adjoining properties or the road reserve.
(d) 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.
(e) An easement to drain water over adjoining properties shall be created under s.88B of the Conveyancing Act to allow discharge of stormwater through adjoining properties to a drainage system within the natural catchment under Council's control. The easement shall be created prior to the issue of a construction certificate.
(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) The proposed drainage line and detention tank adjacent to the north-eastern boundary in the vicinity of Tree 23 shall be relocated to the satisfaction of the PCA on the written advice of a qualified arborist to ensure retention of Tree 23. In the event that Tree 23 is approved by Council to be removed prior to completion of the construction of the development, this condition will not apply.
A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.
Environmental Site Management Plan A Construction and Site Management Plan shall accompany the Construction Certificate. This plan shall satisfy the objectives of Council's Environmental Site Management Development Control Plan and shall consider the following:
(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. 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.
Carwash Bay The visitor car parking space shall also be a car wash bay and drained to the sewer. Evidence of a permit issued for the car wash bay by Sydney Water, Wastewater Source Control Branch, shall accompany the construction certificate.
Stormwater re-use tank The storage capacity of the stormwater re use tank shall be 14.5 m3 and should have suitable containment screens and contain a first flush system to prevent the entry of any animals or pollutants into the water. Tanks must be mosquito proof by installing a strainer with mosquito net in all inlet and outlet pipes.Tanks taps are to be marked "Rainwater - not for human consumption "
Access Application An access application shall be made to Council to obtain footpath crossing and boundary alignment levels before commencing the final design of internal driveways, paths and car park area. A copy of the issued levels shall accompany the Construction Certificate.
Road Opening Approval Required No work whatsoever shall be carried out within the Public Road Reserve unless a "Road Opening Permit" under the Roads Act, 1993 (NSW) has been issued by either Council or the Roads and Traffic Authority for every opening of the public road reserve.
Nomination of Engineering Works Supervisor Prior to the issue of a Construction Certificate the applicant shall nominate an appropriately accredited certifier to supervise all public area civil and drainage works to ensure that they are constructed in compliance with Council's current "Specification for Civil Works Associated with Subdivisions and Developments".
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.
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 the proposed carpark, including the 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. ENERGY EFFICIENCY These conditions are imposed to ensure that development is energy efficient and is designed and constructed using appropriate materials and appliances to maximise the use of sustainable energy sources (such as sunlight) and use energy more efficiently.
Energy Efficiency Details demonstrating how it is intended to comply with the energy efficiency requirements of any relevant Development Control Plan through the use of recycled, plantation timber and non-polluting building materials etc shall accompany the Construction Certificate. Choice of materials shall be made from the items listed in the Sustainable Materials Schedule.
CONSTRUCTION CONDITIONS These conditions are imposed to ensure the development does not unreasonably impact on the amenity of the locality during the construction or demolition phase.
A dilapidation report shall be prepared by an appropriately qualified consultant on the 2 immediate adjoining dwellings to the north east (79 Yala Road, including its driveway area) and the south west (4 Torumba Close) evidencing the current state of condition of the two dwellings. Such report shall be prepared prior to the commencement of any site works and copies of the reports shall be provided to both Council and the owners of the two properties. Upon completion of the site and building works a second dilapidation report shall be prepared on the condition of the two dwellings and copies shall be provided to the Council and the owners of the two properties. The costs of the dilapidation reports shall be borne by the applicant.
Environmental Site Management 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 liability 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.
Retaining Walls and Drainage If the soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided, and adequate provision must be made for drainage.
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.
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.
Construction of Public Frontage Works The following road frontage works shall be constructed in accordance with the requirements of Council's adopted "Specification for Civil Works Associated with Subdivisions and Developments":
(a) A temporary concrete footpath crossing for construction vehicle access. (b) Demolition of existing kerb and gutter at the proposed point of access and replacement with a concrete layback crossing. (c) Removal of all redundant layback crossings and reconstruction with integral concrete kerb and gutter. (d) Removal of all redundant footpath crossings and reinstatement in accordance with Council's requirements. (e) The footpath crossing in Yala Road to be 6m wide. (f) Regrading, topsoiling and turfing of the footpath area to final design levels across the full frontage of the site and across adjacent properties if required. (g) Construction of a footpath crossing to the levels issued by the Council. (h) Provision of pedestrian kerb ramps at intersections. (i) Construction of a concrete footpath across the full frontage of the site. (j) Erosion and sediment controls.
Permission shall be obtained for the carrying out of the proposed works, under the Roads Act, 1993 prior to the commencement of works or the issue of a Construction Certificate.
Stockpiling of materials during construction Topsoil, excavated material, construction & landscaping supplies and on site debris shall be stockpiled within the erosion containment boundary and shall not encroach beyond the boundaries of the property. For further information, refer to Council's Environmental Site Management Development Control Plan.
Construction materials and machinery must be kept on site All construction materials, sheds, skip bins, temporary water closets, spoil, and the like, shall be kept within the property. No vehicles or machines shall be permitted to stand on Council's footpath. For further information, refer to Council's Environmental Site Management Development Control Plan.
Spoil deposited on public way (roads or reserves) Any spoil deposited on public roads during cartage of materials from or to the site shall be removed immediately to the satisfaction of Council. If Council determines that excessive depositing of spoil onto the public way is taking place then the cartage of spoil shall cease if so directed by Council.
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.
LANDSCAPING REQUIREMENTS These conditions are imposed to ensure the retention and enhancement of the existing landscaping. 43. Detailed Landscape Plan and Tree Management Plan A detailed landscape plan shall be prepared to ensure that the landscaping is appropriate to the development and provides reasonable amenity for neighbouring properties. The plan shall accord with Council's Landscape Development Control Plan, the plan of Ray Fuggle and Associates numbered L01 issue C dated 30 June 2004, and the relevant conditions of this development consent. However, the following changes are required to be made to the landscape concept as submitted with the development application:
(a) The detailed landscape plan shall show services, pits, pipes, drying areas and details of proposed surface and edge treatment and material finishes. (b) Planting in the front setbacks where there is deep soil shall include 6 medium size trees to balance the bulk and scale of the development. These trees can be deciduous due to the south facing orientation.
The detailed landscape plan shall accompany the Construction Certificate. Certification from an Accredited Certifier to the effect that the detailed landscape plan has been prepared having regard to these requirements shall be submitted with the Construction Certificate. All development shall be carried out in accordance with this detailed landscape plan.
Prior to the issue of the Construction Certificate the applicant shall engage a suitably qualified and experienced Arborist to investigate the existing condition of the trees marked for retention on the approved Landscape Plan prepared by Ray Fuggle and Associates Drawing Number L01C. A Tree Management Plan shall be provided which details pre, during and post protection measures to be maintained throughout the course of development. This plan shall be submitted to Council's Landscape Assessment Officer for approval. All development is to be carried out in accordance with this tree management plan.
POST CONSTRUCTION CONDITIONS These conditions are imposed to ensure all works are completed in accordance with the Development Consent prior to either the issue of an Occupation Certificate, a Subdivision Certificate or habitation / occupation of the development.
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.
Tree Preservation Certification shall be provided from a suitably qualified and experienced Arborist prior to the issue of an Occupation Certificate for the development verifying that tree preservation (including fencing) has been completed in accordance with the approved Tree Management Plan and relevant conditions.
Final site Inspection Prior to the issue of the Subdivision or 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 Assessment 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.
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 the issue of an 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.
When to issue the Strata Subdivision Certificate - Accredited Certifier A Subdivision Certificate shall not be issued by an Accredited Certifier with respect to a Plan of Strata Subdivision until such time that all relevant conditions of development consent with respect to the construction of this development have been completed. Specifically so as to ensure public safety all conditions of this development consent that call for construction, earthworks or the like, either within or around the site that by its nature creates a hazard to either the public or occupants of the site shall be fully completed prior to the issue of the Subdivision Certificate.
The Accredited Certifier shall provide a Compliance Certificate to this effect and this (along with the Occupation Certificate) shall accompany the Subdivision Certificate and registered Plan of Strata Subdivision upon submission to Council.
Completion Report The Completion Report shall be submitted to Council by the Principal Certifying Authority which shall contain the following information.
(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.
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.
Stewart Ross Stevens
Sutherland Shire Council