Summers v Ashfield Council

Land and Environment Court (NSW)|2009-06-11

CITATION : Summers v Ashfield Council [2009] NSWLEC 1276

APPLICANT Paul Alexander Summers & Rosemary Summers PARTIES : RESPONDENT Ashfield Council

KEY ISSUES: DEVELOPMENT APPLICATION - SECTION 97 APPEAL :- Alterations and additions containing first floor addition. Impact on streetscape and adjoining properties, overshadowing and bulk.

Pafburn v North Sydney [2005] NSWLEC 444 CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 CCA Parsonage v Ku-ring-gai Council [2004] NSWLEC 347

DATES OF HEARING: 11 June 2009 and 6 July 2009

APPLICANT Dr Bervling (barrister) Bruce T Goldsmith (BTG Planning)

LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson (solicitor) SOLICITOR Wilshire Webb Staunton Beattie

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10169 of 2009 Paul Alexander Summers & Rosemary Summers v Ashfield Council This determination was given extemporaneously and has been edited prior to publication

JUDGMENT 1 COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against Ashfield Council's refusal of a development application for alterations and additions to the property known as 4 Service Avenue, Ashfield.

2 By way of background, this commenced as an on-site s 34 conciliation conference and at that time the Court and the parties discussed the provisions of the development control plan and the development application plans were also considered at length together with alternatives.

3 Today the Court has assessed amended architectural plans known as Exhibit A in the proceedings to which the respondent does not object.

4 The area can be described as containing single dwelling houses in a subdivision pattern reflective of a middle ring suburb, that is relatively smaller than outer suburbs. The size of the allotment is some 408 metres squared, having dimensions of 10 metres wide by 41 metres in depth. 5 The proposal is for alterations and additions. The ground floor plan would be altered to provide for stairs to access the upper first floor level. It is proposed that the upper level provide for a study, bathroom, main bedroom and walk-in robe.

6 The issues that were initially identified by the council were contained in the statement of issues. Suffice to say that the issues have been confined now to the third issue identified in that statement which is that the proposed development should be refused as it will result in excessive reduction in solar access to the neighbouring house at 16 Service Avenue Ashfield.

7 When the Court first met with the parties during the conciliation process there were issues such as streetscape, the amount of deep soil planting, loss of privacy, and the precedential effect. The plans have been amended such that the concerns of the heritage advice to the council have been addressed in terms of the streetscape.

8 It is noted that from the time the Court met on site the amended plans show that the bulk of the second storey has been moved forward, which is not objected to from a streetscape point of view, to reduce the impact of the bulk of the proposal on the adjoining neighbour at No 16.

9 It is also noted that the pergola and hard paved area at the rear have been removed from the development application and this has the benefit of removing bulk at the rear and also the benefit of additional landscaped area.

10 The subject site is some 800 millimetres higher than the adjoining property at No 16 and I say that at this point because this becomes relevant later.

11 The Court, when it met on site the first time, heard from a number of resident objectors including Ms Schultz-Wolfing of 8 Service Avenue. She is concerned about the impact on the streetscape and the domino effect that the approval of a two storey addition would have on the character of the area and the history of the area.

12 Ms Eve Solinace of 18 Service Avenue is concerned about the ugly alteration to the proposal, the domino effect of other dwellings in the street also seeking to invoke the precedent and that the proposal is out of character with the area.

13 Ms Margaret O'Brien of 12, who adjoins the property to the north, is concerned about the character of the single storey streetscape, in particular the six dwelling houses on the eastern side of Service Avenue that includes the subject property, the unnecessary nature of the development and the character of the additions, the scale and the bulk.

14 Also, the Court has the opportunity of inspecting the property at 16 Service Avenue. That is of Mr Morris and Ms Atkin who have just purchased this property and they informed the Court they were attracted to the area because of the character and the low scale nature of development. They are concerned about amenity impacts and the overshadowing of the proposal on their property.

15 The proposal meets the floor space ratio provided in the council's development control plan of 0.6:1, the subject development being 0.58:1. The amended plan also provides for the necessary amount of landscaped area. The development control plan is contained in council's bundle as is the LEP.

16 The subject site is zoned 2A under the Ashfield Local Environmental Plan 1985 and there are few or limited matters within the LEP itself for assessment of the application. However, I note that there is a heritage item located at the rear of the subject site at 185 Victoria Street, Ashfield. As such I must have regard to the heritage provisions of the LEP, that is the impact of the proposed development on heritage items within the vicinity and in that regard there is no issue and I am satisfied that the proposed development will not result in an impact when assessed against the relevant provisions of the LEP. 17 The development control plan is the Ashfield Development Control Plan 2007. This is a comprehensive DCP and provides for heritage conservation. On the issue of heritage conservation, I note that the subject site and the adjoining area is not within a heritage conservation area, however council has proposed the Harland Estate conservation area but at this stage it is not recognised in terms of the statutory development control provisions. Nonetheless, the area is one that has a character that should be respected in terms of the heritage even though it is not within a conversation area.

18 The only issue now raised in the appeal, is the impact of the proposal on the solar access for the adjoining property at No 16. The development control plan refers to the maximum height requirement and for houses this is two storeys with a maximum height of 7 metres from the natural ground level to the ceiling. A third level may be accommodated in an attic space, if it complies with other provisions of the development control plan. It is important to note that the proposal is for a first floor addition and part of this is to be contained within the roof space. The floor space ratio is also contained within the DCP. As I noted, the subject development complies in this regard.

19 The DCP provides a number of sketches, not part of the DCP as such, but these are conceptual architectural principles to be considered. It was noted early in the proceedings that the development control plan should be amended, because of the inappropriate built form that results from using the DCP guidelines or the architectural diagrams within the DCP. It became clear that if one followed the development control plan the impacts would be significant on adjoining properties and in heritage terms also unsympathetic to the council's intent of conserving the streetscapes of existing residential areas. 20 The shadow/solar access provisions are contained within pt C15 and in particular, "Good design provides amenity through the physical spatial environmental quality of development and fundamental consideration for neighbouring residential properties by maintaining adequate levels of solar access and privacy." 21 In terms of solar access for neighbours there is a discussion of principles and it is noted that solar access is different from daylight access. All houses are able to enjoy the amenity of daylight access by virtue of having buildings with windows that are set back from any wall of an adjacent house. It is noted that the separation distance between Nos 14 and 16 is some 2 metres so the issue of solar access, not daylight access, is the contention now raised by the respondent.

22 It is noted that it is also inevitable that any house additions have potential to overshadow neighbours and the DCP gives guidance for discussions with neighbours. "It is reasonable to expect a neighbour's daytime primary living area rooms to have their winter solar access retained for three hours between nine and 3 pm. It is also reasonable to expect the neighbour's primary garden area to have solar access retained for three hours between nine and three." 23 The DCP also notes that the requirements for assessing the adequacy of solar access for neighbouring houses are: "Council will use the following standards to assess the maximum permitted amount of overshadowing, that is: i. Sunlight to at least 50% or 35 m sq, minimum dimension of 2.5 m of the principle private area of ground level private open space of adjacent properties is not reduced to less than three hours between nine and 3pm on 21 June. Where existing overshadowing by buildings and fences is greater than this, sunlight is not to be further reduced.

ii. Existing solar access shall be maintained to at least 40% of the glazed areas of any neighbouring and north facing living room, dining room windows for a period of at least three hours between nine and three, that is on the winter solstice. If existing solar access is already less than this standard it should not be further reduced."

24 The council does not contend that the proposed development is non compliant with the requirements of the development control plan in terms of the required amount of solar access to the adjoining property at No. 16. The council contends that the proposal is one that should be balanced against what the benefits are to the applicant and what the disbenefits or the impacts are to the adjoining neighbour at No 16.

25 The council contends that the solar access impact is one that is outweighed such that there should be a reduction of 300 millimetres of the wall of the second storey addition on the adjoining property. I note that the wall on the southern boundary of the subject proposal is 4.62 metres and the permissible wall height is 7 metres. The proposal clearly complies with the wall height and indeed the house ridge comes is some 7 metres, the requirement for the wall height. The council contends that the loss of solar access by the additional 300 millimetres makes the proposal unreasonable and it should be reduced.

26 To assist the Court, the Court heard from the applicant's expert Mr Bruce Goldsmith, consultant town planner, and also heard from the respondent's experts, Mr Robert Moore, a consultant heritage architect, and the council's building surveyor and development assessment officer, Mr Daskalopoulos.

27 The Court requested the planners to undertake an exercise to quantify the amount of additional overshadowing that is created by the 300 millimetres wall height that council contends the proposal should be reduced by. In this regard it can be seen that at 9 am the northern elevation of No 16 would receive a slither of sunlight into the windows of what are regarded as the bedroom and study/middle windows, the larger windows on the northern elevation, as well as the bathroom, which is at the western end on the northern elevation. The rear window to the kitchen/family room area is not affected by the proposal and therefore the 300 millimetres lowering would have no effect. 28 In terms of the equinox noon, it is noted that there would be a very marginal amount of solar access received to the eastern and western windows, there would be no increased sunlight to the middle study and bedroom window. At 3 pm equinox it is noted that there is no difference in terms of the proposal with the wall height at 4.62 as opposed to a reduction of 300 millimetres. It is noted that there would be a very small additional area within the rear backyard that would be in sunlight, probably approximately some 2 square metres. One can see that the outdoor open space area receives more than the required amount under the development control plan and the council does not contend that it is the private open space area that is unreasonably impacted but rather the northern elevation windows of No 16.

29 In my overall assessment I have been taken to a number of judgments of this Court to have regard to the skilfulness of the design and what are reasonable impacts or unreasonable impacts. In this regard the Court was taken to the matter of Parsonage v Ku-ring-gai Council [2004] NSWLEC 347, where at para 7 the Court must of course take into account whatever guidelines are relevant to an application and the numeric guidelines should be applied with a great deal of judgment, and it speaks about the guidelines and occupants of adjoining properties where solar access is reduced or diminished.

30 The other side of the coin is that the impact on a neighbour's sunlight must be assessed in the context of the reasonable development expectations of owners/applicants and the constraints imposed by the topography and the subdivision pattern. Preserving three hours of sunlight on a neighbouring site may require an unreasonable reduction in the development potential of the proposal. The amount of sunlight lost should be taken into account as well as the amount of sunlight received and in that regard there is no question that the sunlight received into the rear yard open space complies in terms of the sunlight access received generally to the property, having regard to its western frontage as well.

31 In terms of Pafburn v North Sydney [2005] NSWLEC 444, a number of themes were identified by the Senior Commissioner. The fifth theme is that an impact that arises from a proposal that fails to comply with planning controls is much harder to justify than one that arises from a complying proposal. People affected by a proposal have a legitimate expectation that development on adjoining properties will comply with the planning regime.

32 The planning principles are articulated there in terms of how does the impact change the amenity of the affected property, including solar access, the necessity and reasonableness of the proposal causing the impact, how vulnerable to the impact is the property receiving the impact, would it require the loss of reasonable development potential to avoid the impact, does the impact arise out of poor design and does the proposal comply with the planning controls? If not, how much of the impact is due to the non-complying elements of the proposal? 33 The Court was also referred to the judgment of the Chief Justice of New South Wales in Zhang v Canterbury City Council [2001] NSWCA 167 CCA judgment wherein the development control plan must be given a fundamental consideration in the assessment of development applications, it must be a focal point. At the same time we note in that same judgment that development control plans are discretionary.

34 The question to assess is the reasonableness of the impact, having regard to what the controls would allow on this site. The Court, when it first met on site with the then application before it, could see that the bulk of the dwelling was such that it would have created impacts, in the Court's opinion at that time, that should be ameliorated. To overcome in part this concern the applicant agreed to amended plans and the amended plans have pushed or moved forward to the west the bulk of the first floor addition. This, for No 16, has the benefit of more openness in the backyard and a far less overwhelming impact in terms of the upper floor extension and the pergola.

35 The Court must now consider this development application in terms of the impacts on adjoining properties and what the controls provide for and what are the reasonable expectations of applicants in proceedings to the Court and in submitting development applications. It is clear from the description that the development more than complies with the council's controls and guidelines. If there were a variation/non-compliance in terms of the height of this building, in terms of the floor space ratio, in terms of the height of the wall, the Court would have to seriously consider what those impacts are.

36 I have considered the balancing exercise of the additional amenity retained by the property at No 16 and the detrimental impact of reducing the height of the wall of the proposal by some 300 millimetres. The reduction in lowering the wall height by some 300 millimetres means that the floor space within the upper level for an area over 2 metres is some 3.5 metres wide. In terms of the proposal before the Court, with the wall height at 4.62 it is 4.8 metres in width. The reduction in the amenity is clearly in terms of the internal useable space, head height within the addition of the first level.

37 In my assessment, having regard to and having the benefit of the expert's concurrent evidence in terms of the additional sunlight, which is most insignificant, and a slither at the best of sunlight that would be received by the adjoining property on its northern elevation windows of No 16, I have concluded that the application should be determined by approval as shown in the amended architectural plans at Exhibit A. That is, the 300 millimetres reduction would not provide an appreciable or measurable improvement in the solar access that would be received. One must have regard to the fact that this is an east-west subdivision and retaining solar access for these northern windows is an unreasonable expectation in the circumstances where the first floor addition more than complies with the statutory controls and guidelines. 38 The first floor addition is clearly well within the limits anticipated and contemplated by the council in its planning regime. That does not mean I cannot go beyond council's planning regime but in terms of a sensitive assessment of the development application the amended proposal has merit and warrants approval. The applicant has taken measures and steps to improve the amenity for the adjoining property at No 16 but an expectation that solar access be retained to the northern elevation windows is unreasonable, given the development potential of the subject lot in the context of council's controls and given the subdivision pattern. Furthermore the additional slither of sunlight on balance would be at a considerable disbenefit to the amenity and useability of the upstairs addition.

39 The 800 mm lower topography of No 16 does not require a further reduction in the wall height of the proposed development, which is clearly well within the limit that the council has contemplated in its development control plan. It is unfortunate that the adjoining property owner at No 16, who recently purchased the property, would appear not to have been advised that there was a development application pending at the time of purchase. Nonetheless I must assess the application on its merits and this includes the reasonableness of the application in the context of the local planning regime and its context.

40 Having regard to the planning principles, the planning principles clearly indicate that the impacts of development as well as the expectations of applicants must be considered and that the consistent application of development control plans and the planning regime provides for certainty in the planning system.

41 I have determined that the application before the Court, as shown in exhibit A, is worthy of approval. The amendments that have been undertaken through the course of this s 34 process improve the amenity for the adjoining property at No 16. In my assessment on balance the additional solar access, the slither of sunlight that would be received, would not warrant refusal of the application or a lowering of the proposed first floor addition by 300mm. 42 The conditions are to be amended and electronically provided to the Court by Wednesday of this week. The amendments are to reflect my findings above. The design changes do not require the reduction in the wall height. The approval requires design changes: to delete the dormer windows, as agreed to by the applicant, to be replaced with openable in-line skylight windows; and the roof form at the rear of the property is to provide for a jerkin gable. This will benefit No 16 in terms of its juxtaposition of the building, rather than necessarily providing for greater solar access.

43 Based on my assessment above accordingly the formal orders of the Court are: 1. The appeal in respect of the property known as 14 Service Avenue, Ashfield is upheld.

The development application submitted to Ashfield Council as amended and shown in exhibit A is determined by the granting of consent subject to the conditions contained in Annexure A.

The exhibits are returned to the parties with the exception of the architectural plans A1 and Exhibit 4.

      J S Murrell
      Commissioner of the Court
      ajl/ljr

Annexure 'A' Conditions of Consent Sumers v Ashfield Municipal Council

Description of Work as it is to appear on the determination:

Alterations and additions to a single storey house including a first floor addition, demolition of an existing garage and construction of a new garage.

A General Conditions (1) Approved plans stamped by Council The development must be carried out only in accordance with the plans and specifications set out on drawing numbers 08182/1B and08182/2B prepared by I F Ferreira dated November 2008 and amended 3 July 2009 and any supporting documentation received with the application, except as amended by the conditions specified hereunder.

Fire protection (1) The northern wall of the proposed first floor level is to be set back at least 900mm from the boundary or alternatively the wall is required to have a fire resistance level of 60/60/60 to comply with Part 3.7.1.5 of the Building Code of Australia (BCA) Housing Provisions. Privacy (2) Windows in the eastern sides of the first floor level shall have sill heights of 1.5metres or have the lower sash fitted with obscure glass and permanently fixed in the closed position to protect the privacy of the adjoining neighbours. Bulk (3) The dormer windows are to be deleted from the plans and replaced by in plane vertically proportioned skylights such as velux windows which are openable. The skylights shall have a minimum height of 1.5metres above the first floor level. (4) The rear (Eastern) gable of the first floor level shall incorporate a jerkin head to reduce the bulk of the addition. The windows located below the jerkin gable shall have sill heights of 1.5 metres or have the lower sash fitted with obscure glass and permanently fixed in the closed position to protect the privacy of the adjoining neighbours.

C Conditions that must be satisfied prior to issuing/releasing a Construction Certificate

A Damage Deposit of $5,000 is to be submitted prior to the release of the Construction Certificate covering repair and/or replacement of adjoining footpath, road shoulder, road pavement, kerbing and guttering both outside the subject site and the surrounding area. This is to be paid to Council and may be refunded subject to satisfactory completion of construction or demolition.

This Damage Deposit covers unforeseen damage to the above property by construction vehicles, skip bins, construction methods etc. Note: Should repair works or maintenance be required on Council land, a Road Opening Permit must be obtained before those works take place.

Bank Guarantees are accepted in lieu of any Council security deposit/bond subject to the following: o A charge equal to the value multiplied by the current "overdue rates interest charge" be levied, per month or part thereof, with a minimum charge of three months is to be paid upon lodgement. o Any remaining charge is to be calculated at the prevailing "overdue rates interest rate" for each month or part thereof beyond the original three months that the Bank Guarantee was held, and paid prior to its release. o Any costs incurred in the acceptance, administration or release of such Bank Guarantees be on-charged to the entity claiming the release of such Bank Guarantee, and that these amounts be paid prior to its release. o At the time of lodgement, Council will seek verification of the Bank Guarantee. Please provide contact details for the branch (phone number and officer) to assist with verification of the bona fides of the Bank Guarantee.

Until all items above are completed, no documents or usage sought from Council by the party lodging the Bank Guarantee can be issued. Please allow a minimum of 2 business days for this process.

Compliance with Section 109F of the Environmental Planning and Assessment Act 1979 - payment of the long service levy under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) - is required. All building works in excess of $25,000.00 are subject to the payment of a Long Service Levy. A copy of the receipt of payment of the levy shall be provided to the principal certifying authority prior to the issue of a construction certificate. Payment can be made at the Long service Corporation offices or most Councils.

Compliance with Part 6 of Home Building Act 1989 is required. A copy of either the Builder's Indemnity Insurance OR a copy of the Owner-Builder's Permit shall be submitted to Council.

D Conditions that must be complied with before work commences

Work must not commence until the Principal Certifying Authority or the person having the benefit of the development consent has given Notification in Writing to Council no later than two days before the building work commences. (Section 81A & Section 86 of the E.P. & A. Act 1979).

In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979 the erection of a building and/or construction works must not commence until:

(a) detailed plans and specifications of the building have been endorsed with a Construction Certificate by: (i) Council; or (ii) an accredited certifier; and

(b) a principal certifying authority (PCA) has been appointed and the Council has been notified in writing of the appointment, and

The documentation required under this condition shall show that the proposal complies with all development consent conditions and the Building Code of Australia.

Note: If the principal certifying authority is the Council, the appointment will be subject to the payment of a fee for the service to cover the cost of undertaking building work and / or civil engineering inspections.

WARNING: Failure to obtain a Construction Certificate prior to the commencement of any building work is a serious breach of Section 81A(2) of the Environmental Planning & Assessment Act 1979. It is a criminal offence that attracts substantial penalties and may also result in action in the Land and Environment Court and orders for demolition.

(3) Inspections required by Principal Certifying Authority

Inspections shall be carried out at different stages of construction, by Council or an accredited certifier

If Council is selected as the Principal Certifying Authority (PCA) inspections will be required and must be paid for in advance at the rate applicable at the time of payment

(4) Sanitary facilities - demolition/construction sites

Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced.

Sediment and erosion controls must be in place before work is commenced on the site. The control strategies must be consistent with the technical requirements set out in the Sydney Coastal Councils' Stormwater Pollution Control Code for Local Government.

Material from the site is not to be tracked onto the road by vehicles entering or leaving the site. At the end of each working day any dust/dirt or other sediment shall be swept off the road and contained on the site and not washed down any stormwater pit or gutter.

A sediment and erosion control plan must be prepared and identify appropriate measures for bunding and siltation fencing. Any such erosion and sedimentation controls shall also include the protection of stormwater inlets or gutter systems within the immediate vicinity of the site.

The sediment and erosion control measures are to be inspected daily and defects or system failures are to be repaired as soon as they are detected.

The site must be appropriately secured and fenced to the satisfaction of Council during demolition, excavation and construction work to ensure there are no unacceptable impacts on the amenity of adjoining properties. Permits for hoardings and or scaffolding on Council land must be obtained and clearly displayed on site.

The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements and if further requirements need to be met. Plans will be appropriately stamped. For Quick Check agent details please refer to the web site: www.sydneywater.com.au, see Your Business then Building & Developing then Building & Renovating or telephone Sydney Water 13 20 92.

The consent authority or a private accredited certifier must either - ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate; or - if there is a combined Development/Construction Certificate application or Complying Development, include the above condition as one to be met prior to works commencing on site. (8) Structural engineer's details To ensure compliance with the provision of Section B of the Building Code of Australia structural engineer's details of all structural elements shall be submitted to the Principal Certifying Authority prior to commencement of work, including:

(i) pier and beam footings; (ii) reinforced concrete slabs; (iii) stairs, including patio steps; (iv) retaining walls (v) all structural timber including floors, walls and roof; and (vi) all structural steel. (9) Structural engineer's certificate - superimposed loads A practicing structural engineer's certificate to be submitted to the Principal Certifying Authority with the Construction Certificate application certifying that the existing dwelling is structurally capable of supporting the superimposed loads of the addition prior to commencement of any building work.

E Conditions that must be complied with during construction or demolition

The proposed structure(s) to be erected must stand wholly within the boundaries of the allotment.

A Survey Certificate (or copy) taken at damp course level and showing distances of walls to boundaries and alignments is to be submitted to the Principal Certifying Authority.

(3) Building materials - storage/placement on footpath/roadway - Council approval

All building materials shall be stored wholly within the property boundaries and shall not be placed on the footpath, grass verge or roadway without prior written approval of Council.

Bulk refuse bins shall not be placed on the grass verge, footpath or roadway without Council permission. Application forms and details of applicable fees are available from Council's One Stop Shop telephone 9716 1800.

Roof water, surface and subsoil drainage shall be piped to the street gutter.

(5) Signs to be erected on building and demolition sites (1) A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: (a) stating that unauthorised entry to the work site is prohibited; and (b) showing the name and address of the contractor for the building work and the person in charge of the work site and a telephone number at which the person may be contacted outside working hours; and

(c) showing the name, address and telephone number of the Principal Certifying Authority appointed for the building works.

(2) Any-sign shall be maintained and not removed until work has been finished.

(6) Demolition/excavation/construction - hours of work

Demolition, excavation and construction work, including loading and unloading of materials and machinery, shall be restricted to between the hours of 7.00am to 6.00pm, Monday to Saturday inclusive. Work is prohibited on Sundays, and on public holidays.

Demolition of Garage is to be carried out in accordance with the following:

(a) Australian Standard 2601 and any requirements of the Workcover Authority.

(b) The Waste Management Plan submitted with the Development Application.

(d) All precautions are to be exercised in the handling, removal and disposal of all asbestos materials. Licensed contractors and the disposal of asbestos is to be carried out in accordance with the requirements of the Work Cover Authority.

(e) All other materials and debris is to be removed from the site and disposed of to approved outlets.

(f) Any demolition on the site is to be conducted in strict accordance with, but not limited to, sections 1.5, 1.6, 1.7, 3.1 and 3.9 of the AS 2601 - 1991, demolition of structures. The following measures must be undertaken for hazardous dust control:

(g) Prior to demolition, the applicant shall submit a Work Plan prepared in accordance with AS 2601 by a person with suitable expertise and experience to the Principal Certifying Authority. The Work Plan shall identify any hazardous materials, the method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials.

(h) Hazardous dust must not be allowed to escape from the site or contaminate the immediate environment. The use of fine mesh dust proof screens, wet-lead safe work practices, or other measures is required.

(i) All contractors and employees directly involved in the removal of hazardous dusts and substances shall wear protective equipment conforming to AS 1716 Respiratory Protective Devices and shall adopt work practices in accordance with WorkSafe Requirements (in particular the WorkSafe standard for the Control of Inorganic Lead At Work (NOHSC: 1012, 1994) and AS 2641, 1998).

(j) Any existing accumulations of dust (eg; ceiling voids and wall cavities must be removed by the use of an industrial vacuum fitted with a high efficiency particulate air (HEPA) filter and disposed of appropriately.

(k) All dusty surfaces and dust created from work is to be suppressed by a fine water spray. Unclean water from the suppressant spray is not be allowed to enter the street gutter and stormwater systems.

(l) Demolition is not to be performed during high winds that may cause dust to spread beyond the site boundaries without adequate containment.

(m) All lead contaminated material is to be disposed of in accordance with the NSW Environment Protection Authorities requirements.

(n) Construction and demolition waste, particularly timber, bricks and tiles, concrete and other materials need not be disposed of- they can be recycled and resold if segregated properly from any hazardous waste contamination.

Materials of construction are to be as specified in the schedule of finishes submitted with the development application and on the approved plans, except where amended by the conditions hereunder.

The existing unpainted brick surfaces to the main dwelling are not to be painted.

Matching materials are to be used in repairing the fabric of external surfaces.

Treatment for the protection of the building from subterranean termites shall be carried out in accordance with AS 3660.1:2000 'Protection of Buildings from Subterranean Termites'.

On completion of the installation of the barrier the Principal Certifying Authority shall be furnished with a certificate from the person responsible, stating that the barrier complies with AS 3660.1.

A durable notice shall be permanently fixed to the building in a prominent location, such as the meter box or the like indicating: - the method of protection; - the date of installation; - where a chemical barrier is used, its life expectancy as listed on the National Registration Authority label; and - the need to maintain and inspect the system on a regular basis.

Due to the present limited effective life of soil chemical treatments, Council does not permit hand spraying as a stand alone method of termite protection. It is recommended that any soil chemical treatment should embrace a reticulation system.

(12) Waterproofing materials/installation - BCA/Australian Standards

Approved products that are impervious to water shall only be used as a substrate or as a lining and as a finish to floors and walls of wet areas (i.e. bathroom/shower room, WC compartment and laundry). Floors and cubicles shall be properly graded and drained to approved outlets. The wet areas in the building shall be impervious to water as required by Part 3.8.1 of the Building Code of Australia (BCA). The junction between the floor and wall and the construction of the bath shower recess, basin, sink or the like shall be in accordance with the BCA & AS 3740:2004 'Waterproofing of wet areas within residential buildings'. On completion of the waterproofing of the wet areas, the Principal Certifying Authority shall be furnished with a certificate from the person responsible. This is to state that the materials are suitable for the situation and that the application and/or installation has been carried out in accordance with the manufacturer's instructions, the BCA and AS 3740.

(13) Fire Detection/Alarm System installation and certification

Smoke alarms must be installed in dwellings in accordance with Clause 3.7.2.3 of the Building Code of Australia (BCA) and AS 3786 on or near the ceiling in -

between each area containing bedrooms and the remainder of the dwelling, including any hallway associated with the bedrooms

Smoke alarms must be connected to the consumer mains power and have a stand-by power supply.

The licensed Electrical Contractor shall on completion of the installation of the smoke alarm system, submit to the Principal Certifying Authority a certificate certifying compliance with AS 3000 and AS 3786:1993.

The new works shall be constructed in accordance with, and comply with the undertakings given on a BASIX (Building Sustainability Index) Certificate which is required to be obtained from the Department of Infrastructure, Planning and Natural Resources. For more information visit www.basix.nsw.gov.au .

Balustrades shall be constructed in accordance with the following requirements:

(i) The height is not less than 865mm above the nosings of the stair treads or the floor of a ramp.

(a) 1m above the floor of any access path, balcony, landing or the like; or (b) 865mm above the floor of a landing to a stair or ramp where the balustrade is provided along the inside edge of the landing and does not exceed a length of 500mm. (c) Any opening does not permit a 125mm sphere to pass through it and for stairs the space is tested above the nosings.

Safety glazing complying with B1 of the Building Code of Australia (BCA) is to be used in every glazed door or panel that is capable of being mistaken for a doorway or unimpeded path of travel. The glazing must comply with AS 1288:2006 'Glass in Buildings - Selection and Installation'.

Framed panels or doors enclosing or partially enclosing a shower or bath shall be glazed with "A" or "B" grade safety glazing material in accordance with AS 1288 and Part 3.6.4 of the BCA.

Garage doors shall be plain panel lift doors with full width horizontal panels such as B&D's 'Seville' or 'Timber panel'. They must not contain any highlight windows or other opening. Note: Doors that are multi-panelled or sectional such as B&D's 'Statesman' or 'Grange' are inappropriate and must not be used.

F Conditions that must be complied with prior to installation of services

G Conditions that must be complied with before the building is occupied

The building or any part thereof must not be used or occupied until an Occupation Certificate has been issued for the class 2-9 buildings, or a completion inspection, has been satisfactorily carried out for class 1&10 structures.

H Conditions that are ongoing requirements of development consents

J S Murrell Commissioner of the Court ljr

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

At a glance

Court

Decision date

Source

Judgment (136 paragraphs)

Parties

Cases Cited (3)

Cited By (1)