Young v Parramatta City Council

Land and Environment Court (NSW)|2003-09-10|Before: Mr P

CITATION : Young v Parramatta City Council [2004] NSWLEC 245 revised - 26/05/2004 APPLICANT Greg Young PARTIES : RESPONDENT Parramatta City Council

FILE NUMBER(S) : (1)0279 of 2002 CORAM: Nott C KEY ISSUES: Development Application :- Two dwellings for older people or people with a disability - new dwelling behind existing cottage - in a conservation area LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 State Environmental Planning Policy No 5--Housing for Older People or People with a Disability Young v Parramatta City Council [2002] NSWLEC 176; CASES CITED: Young v Parramatta City Council [No. 2] [2002] NSWLEC 240; Young v Parramatta City Council [No. 3] [2003] NSWLEC 73; Young v Parramatta City Council [2003] NSWLEC 198 DATES OF HEARING: 9 & 10 September 2003, 4 & 5 December 2003 DATE OF JUDGMENT: 05/24/2004

LEGAL REPRESENTATIVES: RESPONDENT Mr A Galasso, barrister SOLICITORS Storey & Gough

IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES (1)0279 of 2002

1 . This is an appeal against the council's refusal of a development application under State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (" SEPP 5 ") for a development comprising two dwellings at 43 Wyralla Ave, Epping. The subject site has an area of 723 sq m and is at the western end of the Wyralla Ave conservation area. Briefly, the proposed development involves the demolition of the outbuildings and unsympathetic rear extensions of an existing old weatherboard cottage and the carrying out of alterations and additions to the cottage, so that the cottage would be suitable as a single dwelling for use by disabled persons. Within the rear part of the subject land, it is intended to erect a small single-storey brick dwelling. The plans for which consent is sought are exhibits C and J.

2 . The statement of issues dated 23 October 2002 (ex A) raised many issues, about which I will make relevant findings in the course of this judgment.

3 . It was submitted on behalf of the council that the critical issue is whether, in the Wyralla Ave conservation area, the erection of a new dwelling in the rear yard of the subject site is acceptable. In deciding this issue, it seems to me that there is an important factor that distinguishes the present development application from previous applications in respect of the same site. What is now proposed is not the erection of a new dwelling as part of a dual occupancy (as in a previous application) but the carrying out of development of an essentially different nature (housing for older people or people with a disability) that is authorised by the enabling provisions of SEPP 5. Any provision of a local environmental plan or of a development control plan that is inconsistent with SEPP 5 cannot be relied on to prevent the carrying out of the development in accordance with SEPP 5.

4 . At the hearing, the applicant appeared in person and presented evidence from Mr Blyth, town planner, and Mr Rappoport, heritage architect. For the council , evidence was given from the following witnesses: Mr R Moore, architect and heritage consultant; Ms S Burke, heritage consultant; Mr D Jones, consultant town planner; Mr T Kass, historian and heritage consultant; and Ms K Higgins, former heritage officer of the council.

5 . There was written or oral evidence from local residents and from the Epping Civic Trust. Nine residents wrote letters in support of the proposal, while many others opposed it. The council also presented oral evidence from four local objectors: Mr G Bowden, Mr Hines and Mr P Broderick, who respectively live at 46, 48 and 55 Wyralla Ave, and Ms K Wat of 5 Duncan Place.

6 . The documentary evidence included many photographs of practically all of the houses along both sides of Wyralla Ave. In addition, accompanied by the parties' representatives I inspected the existing house on the subject land and walked the length of both sides of Wyralla Ave, observing the general character and appearance of all the houses in the conservation area.

7 . I am of the opinion that the proposed new dwelling on the lower rear part of the subject site will have no adverse impacts on the streetscape. The carrying out of the proposed development will enable the renovation and the acceptable presentation of the front cottage, which is presently in an unattractive, run-down condition. Because of the particular location of the subject land at the western end of the conservation area, immediately adjoining battleaxe lots, the approval of the proposed development will not create an adverse precedent or unduly affect the significance of the conservation area. For those reasons and for the reasons given more fully below, I have concluded that is appropriate to grant development consent, subject to conditions.

Previous decisions of the Court relating to the subject land 8 . There have been quite a number of decisions of this Court relating to the subject land. The first four decisions mentioned below in this paragraph relate to other development proposals by Mr Young (or his company), none of which involved SEPP 5 and so they are not directly relevant to the present development application. The other six hearings do relate to the development application that is the subject of the hearing before me. (1) Young v Parramatta City Council, appeal 10463 of 1995: Hussey A, 27 Nov. 1995 . Assessor (now Commissioner) Hussey dismissed an appeal brought by the applicant under s 97 of the EP&A Act against the council's decision to refuse his application to subdivide the property into two lots to enable the subsequent erection of a single-storey dwelling on one of the lots and an attached two-storey dual occupancy on the other lot. Assessor Hussey found that the proposed dwelling on the new rear lot would be somewhat out of character with the surrounding area. He also took into account the council's evidence that the proposal did not accord with the subdivision pattern in the area. He concluded that the proposal was more likely to detract from the amenity of the neighbourhood than to preserve and enhance it.

(2) Young Industries Pty Ltd v Parramatta City Council, appeal 10971 of 1999: Bly C, 25 July 1999 . Commissioner Bly dismissed an appeal under s 97 of the EP&A Act against the council's refusal of an application for a dual occupancy. The applicant's proposal then before the Court was for alterations and additions to the existing dwelling and erection of a new single-storey dwelling on the rear part of the land behind the existing dwelling. Commissioner Bly agreed with the council's town planner that the result of such development would be out of character with what exists in the area and what was anticipated by the draft Parramatta Local Environmental Plan 2000. The Commissioner also found that the proposal would not be consistent with the objectives of Residential 2(a) zone of the planning instrument and the open landscaped backyard character of the locality would be infringed.

(3) Young Industries Pty Ltd v Parramatta City Council [2000] NSWLEC 266, appeal 10918 of 2000, Cowdroy J, 14 Dec. 2000 . Cowdroy J struck out the applicant's appeal as an abuse of process of the Court. His Honour found that the development application was virtually identical to the application considered by Commissioner Bly.

(4) Young Industries Pty Ltd v Parramatta City Council [2001] NSWLEC 3, appeal 10971 of 1999, Pearlman J, 2 Feb. 2001 . Pearlman J dismissed the applicant's appeal against Commissioner Bly's decision.

(5) Young v Parramatta City Council [2002] NSWLEC 176, appeal (1)0279 of 2002, Lloyd J, 15 Aug. 2002 . As mentioned, the proposed development in this appeal (which is the one I now have to determine on its merits) is for alterations and extensions to the existing dwelling and the construction of a new dwelling at the rear. The council applied to Lloyd J for an order that the appeal be struck out as an abuse of process. His Honour refused to do so, because there were changed circumstances from the appeal before Bly C. Different zone objectives of another LEP now applied, and the present development application was made pursuant to SEPP 5, where again there were different objectives.

(6) Young Industries Pty Ltd v Parramatta City Council [No. 2] [2002] NSWLEC 240, appeal (1)0279 of 2002, Lloyd J, 9 Oct. 2002 . The applicant raised ten preliminary questions of law prior to the hearing before me. I summarise the findings of Lloyd J: 1st. The proposed development under SEPP 5 is not complying development under LEP 2001.

2nd. The council is not prohibited by the principle of issue estoppel from raising again issues of neighbour amenity, streetscape, built form and driveway gradients that were decided against the council by Commissioner Bly in appeal 10971 of 1999. Although the application under SEPP 5 in terms of appearance, building siting, form, envelope and layout is substantially the same as the dual occupancy in the appeal 10971 of 1999, s 39(3) of the Land and Environment Court Act 1979 (which states that the appeal is a rehearing where fresh evidence may be given) strongly suggests that issue estoppel does not apply in planning appeals. Moreover, the previous application was for a different purpose and was determined under a different planning regime.

3rd. Before the council determines the development application, the council must consider a heritage impact statement under cl 11(6)(a) and cl 14(2) of the heritage LEP (quoted at par 37 below). The applicant or the council may provide the heritage impact statement, but if the council chooses not to provide it, then it follows that the applicant should do so if the applicant wishes to have the development application determined.

4th. If there is any inconsistency between the heritage LEP and SEPP 5, then the latter prevails. Regard can be had to the principles in cl 25 of SEPP 5 and at the same time to the matters set out in cll 11(5), 11(6) and 14(2) of the heritage LEP without there necessarily being any inconsistency.

5th. The requirements of cl 12(2A) of SEPP 5 (written evidence of reasonable access to services) apply to the proposed in-fill housing development. However, cl 12(3) of SEPP 5 is not relevant, as it only applies where a facility or service is to be provided as part of the development.

6th. It was agreed that a plan is not a mandatory requirement for a site analysis under cl 24 of SEPP 5. [However, the provision of a written statement or information in accordance with cl 24 would be mandatory. A site analysis has been provided to me in exhibit G.]

7th. Laundry facilities described in cl 13A(16) of SEPP 5 are not required to be contained in a separate room.

8th. The words "preferably located at the rear of the site" do not form part of the development standard prescribed in cl 14A(f) of SEPP 5.

9th. Clause 25(a) of SEPP 5 states, "… where possible , maintain reasonable neighbour amenity and appropriate residential character by…" . In contrast, the objectives of the Residential 2(a) zone of LEP 2001 use phrases such as " to ensure" or " to enhance" . Therefore, the objectives of the Residential 2(a) zone of LEP 2001 are inconsistent with SEPP 5. Accordingly, the proposed development cannot be refused on the ground that it is inconsistent with the zone objectives.

10th. Clause 5.3 of the Parramatta Development Control Plan 2001 sets out performance criteria and design controls that relate to dual occupancy. If this clause would have the effect of not allowing the development, then the clause cannot prevail or otherwise prevent the development if it is carried out in accordance with SEPP 5. (7) Young v Parramatta City Council [No. 3] [2003] NSWLEC 73, appeal (1)0279 of 2002, Lloyd J, 12 Dec. 2002 . Lloyd J confirmed his earlier decision (at (6) 3rd above) that a heritage impact statement for the purpose of cl 11(6) and 14(2) of the heritage LEP must be considered before development consent is granted, and that the council is not obliged to provide the impact statement.

(8) Young v Parramatta City Council, appeal (1)0279 of 2002, Pearlman J, 8 April 2003 . Pearlman J granted leave to the applicant to rely on amended plans, marked exhibit A before her Honour. (These are the same plans that were tendered as exhibit B in the merit hearing before me and in respect of which the applicant seeks development consent.)

(9) Young v Parramatta City Council [2003] NSWLEC 198, appeal (1)0279 of 2002, Bignold J, 17 June 2003 . Prior to the hearing of the merits before me, the applicant raised a further question of law in addition to those in (6) and (7) above. Bignold J held (at par 25) that Australian Standards AS 4299-1995 (relating to adaptable housing) and AS 1428-1993 (design for access and mobility), which are referred to in the note to clause 25(f) of SEPP 5, are not incorporated as mandatory requirements of the principles contained in clause 25(f). However, his Honour said (par 13) that this does not mean that those standards are irrelevant or have no bearing on the working out of clause 25(f). In contrast to clause 25(f), as Bignold J observed (par 11), a number of the provisions of AS 1428 and AS 4299 are incorporated in the text of development standards enunciated in clause 13A of SEPP 5 and are thus mandatory requirements of clause 13A.

(10) During an adjournment in the proceedings before me, the applicant applied to the Court by notice of motion dated 2 Oct 2003 for a determination of nine extra questions of law raised by him. The applicant had not requested me under s 36 of the Land and Environment Court Act 1979 to refer all these extra questions (and I would not have referred them of my own motion). The Chief Judge, McClellan J, heard the applicant's notice of motion. His Honour declined to answer the questions, indicating that if the matters raised by the applicant play a part in my decision and if the applicant considers that there is an error of law, there would be a right of appeal.

9 . The subject land has an area of 723 sq m. The land is rectangular, with a frontage of 15.24 m and a depth of 47.45 m. It is located on the northern side of Wyralla Ave, and the land slopes down from street frontage to the rear boundary.

10 . The subject land has the benefit of a right of carriageway 4.3 m wide that abuts its western side boundary. This right of carriageway runs from Wyralla Ave and would provide vehicular and pedestrian access to the rear yard of the subject land, without the necessity of having to interfere in any way with the appearance of the front curtilage of the existing cottage. The right of carriageway also serves the properties at Nos 45A and 45B Wyralla Ave, which are located on the western side of this right of way behind No 45.

11 . The existing weatherboard cottage (with a substantial fibro extension at the rear) is erected close to the front boundary. The setback of the front veranda from street alignment is 4.15 m. The following photo shows the front of the cottage in its present poor condition:

12 . As can be seen in the above photo, there is a fibro garage with a corrugated iron roof at the end of a long driveway that passes down the eastern side of the subject land. There is a room or rooms, also constructed in fibro with a rusted iron roof, attached to the rear of the garage. On the western side of the property, there is another fibro outbuilding.

13 . Apart from these outbuildings, the rear fibro extension to the cottage itself is substantial and is shown in the following photo:

14 . According to the heritage experts, the original cottage was erected around 1914. It appears that the front veranda and the rear fibro additions were built in about 1953.

15 . The location of the existing cottage (as extended) and the outbuildings described above are shown on a 1991 survey plan (pt ex G). This plan also shows an outbuilding at the very rear of the subject land has since been demolished. According to the later survey plan dated 2 March 2000 (pt ex B) the presently existing structures, together with concrete paving, cover an area of 346 sq m.

16 . In my opinion, it is obvious from the above photos that the proposed development, if properly carried out, will bring about a significant improvement in the appearance of the cottage. The unsightly fibro extension and outbuildings will be demolished, and they will be replaced with a weatherboard extension matching the front of the cottage. The eastern sidewall of the cottage will be extended out by 1.5 m to accommodate small robe rooms and an ensuite. The new eastern sidewall will be set back from the eastern side boundary by 1.2 m and will be set back from the alignment of the existing front walls of the cottage by 1.5 m. The veranda that was added in 1953 will be extended by about 3 m to wrap around the front eastern corner of the cottage. There will be a face-brick garage underneath the rear part of the cottage, taking advantage of the slope of the land. The proposed changes to the cottage and its curtilage would appear to cover less site area than the existing cottage, structures and paving.

17 . The applicant's original plans that accompanied the present development application are contained in exhibit C. As mentioned above (par 8 (8)), prior to the hearing before me, Pearlman J granted leave to the applicant to rely on amended plans. These same amended plans (comprising nine sheets) were re-tendered as exhibit B in the hearing before me, and they are described in condition (1) of the consent that will be granted.

18 . The adequacy of the plans was raised as an issue in the statement of issues. The amended plans that were allowed to be substituted by Pearlman J are hand-drawn, and it is not apparent on their face that they were prepared by an architectural draftsperson or registered architect. Although the quality of the draftsmanship of the plans could be better, I am prepared to accept them as development application plans. The plans are drawn to scale and dimensions are shown. Heights are shown in RLs, and the same survey datum level is used as appears in the survey plan (sheet 7 of ex B). However, it seems to me that the plans prepared for the construction-certificate application should contain more detailed sections or cross-sections than appear at sheet 6 of exhibit B, so that any builder will more readily be able to follow what is required to be built. In particular, it seems to me that more detail would have to be given concerning the beams that would support the main roof of the rear addition to the existing cottage and of the lower, side roofs that are more or less a continuation of the form and height of the veranda roof. The sections will be able to show the lower ceilings at the sides of the building. The plans should be sufficiently detailed for a structural engineer to be able to certify the structural soundness of the roof-support system, or the details of the roof-support and of the interrelationship of the two roof forms should be drawn by a structural engineer. A condition will be imposed to that effect. This is not an invitation to change the external form or appearance of what is proposed, as may be seen or inferred from the development application plans. Any material change to the development application plans for the purpose of preparing the construction plans should be the subject of a modification application, which now may be made to the council or to the Court.

19 . Ms S Burke was critical of the bulk of the roofs of the proposed addition to the existing cottage. I accept her opinions in respect of the building as shown in the original plans, but I find that the changes made by the amended plans (ex B) to be acceptable. In the original plan, the bulky roofs of the addition can be seen from the front elevation (sheet A) projecting outside the line of the existing roof. In the amended plans of the front elevation, the roof form for the rear addition to the cottage cannot be seen, except for the small triangular tip of the apex of the roof having a surface area of only about 0.25 sq m. The proposed apex of the roof is not dissimilar to the roofs at 39 and 37 Wyralla Ave. Looking towards either side of the cottage from the street, the existing side roof sections will be retained as shown on elevation 2 and on elevation 4-F of exhibit B. The new main side roofs over the rear addition will maintain the same pitch and springing points as the retained sections of the existing roofs. The springing points of the main side roofs of the addition will have to be supported by internal beams, which appears to be shown on the section plan of the front dwelling (sheet 6, ex B). The new external sidewalls of the addition (outside the main roofs of the addition) will be lower than the eaves of the main roofs and have a smaller roof form, similar to the form of the roof over the veranda. The north elevation of the amended plans clearly shows the main side roofs and the smaller side roofs (sheet 2, ex B). This contrasts with the northern elevation of the original plans (ex C) where there are no smaller side roofs and the springing points for the main roofs of the addition are the external sidewalls. The original plans, because of the larger roof forms, show an unacceptable form of development.

20 . As regards the amenity of the adjoining dwelling at 41 Wyralla Ave, the amended plans are also an improvement on what was originally proposed, in that a patio or balcony on the eastern side is deleted.

21 . There was also criticism of the proposed gablet on the northern roof elevation of the cottage, and the council proposed that it should be deleted. I am of the opinion that the gablet should be reduced in size in accordance with condition (46). This element will not be seen from the street.

22 . On 31 March 2004 State Environmental Planning Policy (Seniors Living) 2004 came into effect and repealed SEPP 5. However, cl 6(1) of the new SEPP relevantly provides that SEPP 5 as in force immediately before its repeal continues to apply to any development application made on or before 18 February 2004 but not finally determined before the commencement of the new SEPP. Therefore, the present application is to be determined under SEPP 5.

23 . However, a further concession appears to be made by cl 6(2) of the new SEPP, which states: For the purposes of subclause (1), State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability is taken to be continued in force as if any requirement in that Policy for the installation or use of thermostatic mixing devices for hot water in kitchens, laundries or bathrooms could be satisfied by the installation or use of tempering valves for hot water in bathrooms only. In recognition of this concession, I have added a rider to condition (41)(a) of the consent that will be granted.

24 . If SEPP 5 is inconsistent with any other environmental planning instrument, SEPP 5 prevails to the extent of the inconsistency (cl 5(2)). And it follows that SEPP 5 would also prevail over any inconsistent provision of a development control plan. Moreover, cl 10 provides that part 2 of SEPP 5 allows development despite the provisions of any other environmental planning instrument, if the development is carried out in accordance with SEPP 5. Again, it follows implicitly that development may be carried out in accordance with SEPP 5 despite any contrary provision of a development control plan.

25 . Part 2 (cll 9 to 19) of SEPP 5 contains provisions relating to the location of the site, facilities and support services, and development standards that must be complied with. Although various issues were originally raised concerning these provisions and the provisions of part 3 (design requirements), the hearing of the appeal was conducted on the basis that the proposed development would comply or would be satisfactory subject to conditions. Therefore, I do not propose to elaborate in detail on all matters originally raised in the statement of issues, but I note the following.

26 . As regards the development standards in cl 13: the maximum building height (measured from ground to the uppermost ceiling) of each proposed dwelling is substantially less than 8 m; the rear dwelling and the front half of the front dwelling have heights of only one storey, and the rear half with its partly excavated basement garage does not exceed a height of two storeys; and the width of the site is more than 15 m.

27 . The provisions of cl 13A(2) (a)(ii) and (b) of SEPP 5 are satisfied by the front dwelling having wheelchair access by a continuous path of travel (AS 1428) to Wyralla Ave (the rear dwelling need not have such access) - only 50% of dwellings in the development are required to have wheelchair access. Other development standards in cl 13A, particularly relating to the interior of the buildings and the wheelchair access ramp, are satisfied by the amended plans (ex B). The proposed development complies, or will be able to comply, with the remaining requirements of cl 13A - see condition (41).

28 . As set out by Mr Young in exhibited G, the proposed development complies with the standards in cl 14 of SEPP 5, and therefore proposed development cannot be refused on any of the following grounds: building height, density and scale, landscaped area, parking, visitor parking and private open space.

29 . It could be noted that if there is non-compliance by the proposed development with any one of the standards mentioned in cl 14, it does not mean that the proposed development must be refused - it may still be appropriate to grant development consent. Only a non-compliance with one of the standards in cl 13A must necessarily lead to a refusal. I mention this because there was a suggestion on behalf of the council that the front dwelling (which is the wheelchair-accessible dwelling) does not have a balcony with a minimum area of 15 sq m and minimum dimensions of one part of at least 3 m by 3 m. However, in my opinion this is not the reason for refusal of the application, and no change need be made to the size of the balcony. This balcony has an area of 12 sq m, and the doors between the balcony and the living room may be folded right open, so that the living room becomes an extension of the balcony. Moreover, the living rooms face north, and there are substantial private open spaces associated with the front dwelling that would nevertheless be accessible although not directly from a living area. There is 60 sq m on the northern side of the front unit at ground level, which may be accessed by the use of a stair-climber if it was considered necessary to have one installed on the stair connecting the living area to the basement garage, from which access is readily available to the private area on the north. At the front of the dwelling, there is also the covered veranda and a landscaped area between the veranda and Wyralla Ave of 49 sq m.

30 . Certain of the provisions of the council's general DCP and of the heritage DCPs are inconsistent with the standards specified in clause 14 of SEPP 5, and so cannot be relied upon as reasons for refusal of consent.

31 . For example, the requirement at p 78 of the heritage DCP to "Keep at least 60% of the site as garden space" is inconsistent with the much less onerous standards relating to landscaped areas in cl 14 of SEPP 5. Accordingly, the proposed development may be carried out under SEPP 5 despite non-compliance with that provision of the DCP.

32 . Mr Young has provided a site analysis (ex G) for the purpose of cl 24 of SEPP 5, and I generally accept the facts contained therein. However, I mention specifically the matter of stormwater drainage at par 57 below.

33 . The applicant Mr Young has demonstrated in exhibit G that adequate regard has been given to the principles set out in cl 25 of SEPP 5. For the purpose of this case, the parties' focus of attention was mainly on the following provisions: 25 Design of residential development Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles: (a) Neighbourhood amenity and streetscape The proposed development should: (i) contribute to an attractive residential environment with clear character and identity, and (ii) where possible, retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan… For the purpose of the SEPP 5, "streetscape" is defined to mean, " the character of a locality (whether it is a street or precinct) defined by the spatial arrangement and visual appearance of built and landscaped features when viewed from the street."

34 . Under Parramatta Local Environmental Plan 2001 (" LEP 2001 ") the subject land is zoned Residential 2(a). If the proposed development was going to be carried out pursuant to LEP 2001, the development would have to be consistent with the objectives of the zone. However, the proposed development is authorised by SEPP 5. The zone objectives do not apply to the proposed development: see the 9th finding of Lloyd J at par 8 (6) below. Clause 5 of LEP 2001 states that certain environmental planning instruments are repealed but that Parramatta Local Environmental Plan 1996 (Heritage and Conservation) (the " heritage LEP ") is not affected.

35 . The map incorporated in the heritage LEP shows that there are approximately 57 properties in the Wyralla Ave Conservation Area. This conservation area extends for about 500 m along Wyralla Ave and generally embraces only the first row of lots each side of that avenue. The subject site is the very last lot on the northern side of the avenue at the western end of the conservation area.

36 . The subject property is not listed as a heritage item. Indeed, there are no buildings, works, relics, trees or places situated in the conservation area that are heritage items. The closest heritage item is probably the croquet lawn and pavilion on the corner of Boronia Ave and Kent St, which (as scaled from the aerial photo) is about 300 m by road from the subject land.

37 . The more relevant provisions of the heritage LEP are certain definitions in the dictionary and cl 11(1), (4)-(6) and cl 14, which I reproduce below:

9 What definitions apply? (1) A term defined in the Dictionary has the same meaning when used in this plan. Dictionary heritage conservation area means land described in Schedule 3 and shown edged heavy red on the Heritage and Conservation Map and includes buildings, works, relics, trees and places situated on or within that land. heritage impact statement means a statement demonstrating the significance of a heritage item, a property or a relic, an assessment of the impact that proposed development will have on that significance and the measures that are proposed to minimise that impact. heritage item means a building, work, relic, tree or place, or a component of a building, work, relic, tree or place that is described in Schedule 1 or 2 and shown coloured yellow on the Heritage and Conservation Map. heritage significance means historic, scientific, aesthetic, social, cultural, archaeological, architectural, natural or aesthetic significance.

11 Protection of heritage items, heritage conservation areas and relics When is consent required? (1) The following development may be carried out only with development consent: (a) demolishing or moving a heritage item or a building, work, relic, tree or place within a heritage conservation area, (b) altering a heritage item or a building, work, relic or place within a heritage conservation area by making structural or non-structural changes to its exterior, including changes to its external detail, fabric, finish or appearance, (c) … (d) … (e) … (f) erecting a building on, or subdividing, land on which a heritage item is located or which is within a heritage conservation area. (2)… (3)…

What must be included in assessing a development application? (4) When determining a development application required by this clause, the consent authority must assess the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area concerned. (5) The assessment is to include (but is not limited to) consideration of: (a) for development that would affect a heritage item: … (b) for development that would be carried out in a heritage conservation area: (i) the heritage significance of the heritage conservation area and the contribution which any building, work, relic, tree or place affected by the proposed development makes to this heritage significance, and (ii) the impact that the proposed development would have on the heritage significance of the heritage conservation area, and (iii) the compatibility of any proposed building or work with nearby original buildings and the character of the heritage conservation area, including compatibility with the existing size, form, scale, orientation, setbacks, materials and detailing, and (iv) the measures proposed to conserve the significance of the heritage conservation area and its setting, and (v) whether any landscape or horticultural features of heritage significance would be affected, and (vi) whether any archaeological site or potential archaeological site would be affected, and (vii) the extent, if any, to which the carrying out of the proposed development would affect an historic subdivision pattern, and (viii) any submission received in relation to the proposed development in response to the notification or advertising of the application.

What extra documentation is needed? (6) When determining whether or not to grant a development consent required by this clause, the consent authority: (a) must not grant such a consent until it has considered a heritage impact statement which includes an assessment of the matters raised in subclause 5(a)(i)-(v) or 5(b)(i)-(vii), as the case may require, and (b) where it requires that a conservation management plan should also be considered, may refuse to grant the consent unless a conservation management plan has been considered.

14 Development adversely affecting a heritage item or heritage conservation area (1) Before granting consent for development that may undermine or otherwise damage a heritage item or a building, work, relic, tree or place within a heritage conservation area or will obscure, overshadow or otherwise have a substantial adverse effect on a view of a heritage item or of a building, work or tree within a heritage conservation area, or that will otherwise adversely affect the heritage significance of a heritage item or heritage conservation area (or that will have a substantial adverse effect on a view from any such item or from habitable places within any such area), the consent authority must assess the impact of the development: (a) on the heritage significance, curtilage and setting of the heritage item or the heritage significance of the heritage conservation area, and (b) on any significant views to or from the heritage item or the heritage conservation area. (2) The consent authority may refuse to grant any such consent unless it has considered a heritage impact statement that will help it to assess the impact of the proposed development on the heritage significance, visual curtilage and setting of the heritage item or the heritage significance of the heritage conservation area. (3) The heritage impact statement should include details of the size, shape and scale of, setbacks for, and the materials to be used in, any proposed buildings or works and details of any modification that would reduce the impact of the proposed development on the significance of the heritage item or the heritage conservation area.

38 . For the purpose of making more detailed provisions than are contained in LEP 2001, the council adopted Parramatta Development Control Plan 2001. It applies to a wide range of development (the " general DCP "). Part 4.5 (heritage and conservation controls) of the general DCP contains a 5-page statement, which (among other things) refers to the heritage LEP.

39 . The more detailed heritage guidelines are contained in Parramatta Heritage Development Control Plan 2001 (the " heritage DCP "), the purpose of which is to support the objectives of the heritage LEP.

40 . Clause 2.1.3 of the heritage DCP says that a property has a "heritage listing " if it is a heritage item or if it is within a conservation area under the heritage LEP. Clause 2.3.3 of the heritage DCP relates to the content of a heritage impact statement, and reads as follows:

2.3.3 Heritage Impact Statement If a Development Application is being submitted for work that is likely to affect a heritage-listed property, additional information in the form of a Heritage Impact Statement will be required.

A Heritage Impact Statement should: * clarify why the building is significant * describe what the impact will be of the proposed work * explain what measures have been taken to minimise that impact .

The detail required in a Heritage Impact Statement varies depending on the situation. For a typical situation such as renovations and extensions to a heritage-listed house of local significance, it may be only a page or two long. In other situations much more detail may be required.

The Heritage Impact Statements must be prepared in accordance with Guidelines published by the Heritage Office of NSW. These Guidelines are available from Council.

The heritage DCP describes the history of subdivision and development of the Wyralla conservation area, the distinctive characteristics and significance of this conservation area, and the council's general objectives for this area:

2.0 History Of Subdivision & Development The part of Wyralla Avenue which comprises the conservation area is a consistent streetscape of brick and timber cottages, which were mostly built in the 1910s and 1920s, and are similar in terms of their scale and design. There are few intrusive buildings and most houses have been altered very little. Prior to subdivision for residential development, this area and surrounding locality were used predominantly as orchards and small scale farms. Between 1911 and 1912, in the midst of a subdivision and building boom in Epping, the greater portion of land within the conservation area was subdivided by Charles Sonter into two estates, known as Sonter's Orchard Estate and Epping Station Estate. In addition, a small area at the eastern end of Wyralla Avenue was included in Vollmer's Railway Estate. The street was initially known as 'Railway Street'. Sands Directory first lists cottages in the street in 1914. There was a slow but steady accretion of cottages along this part of the street in the next decade. Many of the houses in the street appear to have been erected by owner-occupiers who remained in the cottages for many years

3.0 Distinctive Characteristics - The conservation area is divided into two parts which differ in terms of the underlying topography and, to some extent, built form. - In the area west of Kent Street, the land is roughly level along the length of the street, but falls from the south to the north across the street. This provides a distinctive character, with houses on one side perched up above the street and houses on the other side at street level, with the land falling away behind them. There is a mixture of timber and brick houses. - In the area east of Kent Street, the street falls towards the east. Brick houses predominate. - Views from within the conservation area tend to be terminated, due to changes in topography and the alignment of the street. This gives a relatively intimate scale. - There is a range of allotment sizes, but the majority of allotments have a frontage of 50 feet (approximately 15 metres). This gives the streetscape a distinctive rhythm and a relatively intimate scale. - All older houses are single storey, with a mixture of timber and brick construction. Houses were mostly built in the 1910s and 1920s. There is a considerable variety in architectural styles, ranging from simple symmetrical Edwardian cottages, to federation and California bungalow - Roof cladding generally either clay tiles or 'corrugated iron', with some slate - There is variety in roof forms but gables facing the street predominate - Brush box street trees and gardens with plantings characteristic of the 1910s -1930s - Either no fences or low fences of brick or timber - Lack of structures, garages, carports between the building line and the front fence .

4.0 Why This Area Is Important & Worth Keeping A statement of heritage significance This is a consistent streetscape which largely evolved within the space of ten years, shortly after this part of the street was subdivided. Almost all houses are intact and it demonstrates the style and mode of development in Epping at this time, when it evolved as a quality area with many people owning their own homes.

5.0 Council's Objectives For The Area & How To Achieve Them This plan is directed towards retaining the character of the area, especially its fine stock of houses dating from the 1910s and 1920s, its mature trees, its streetscape, and its relatively intimate scale. Opportunities for development are limited.

Extensions to upgrade the facilities and increase accommodation are permissible. A high standard of design is expected, continuing the standard achieved in recent years, so that the original form and character of houses remains obvious. Extensions at the rear of houses, including pavilion extensions linked to the main house, is preferable to inserting rooms within the existing roof, especially with houses whose style rarely included rooms in the roof. New garages prominent in the streetscape should be avoided.

5.1 General Objectives * Keep the attributes that contribute to the heritage value and character of the area * Maintain and improve residential amenity * Allow development compatible with the significance and character of the area.

42 . In relation to the council's objection to a new dwelling in the rear yard of the subject land, the provisions relating to subdivision in the heritage DCP are indirectly relevant, insofar as subdivision is usually one way of providing two dwellings on a parcel of land that originally had only one house. Of course, in the present case the application does not involve a formal subdivision, but there is a de facto subdivision inasmuch as the cottage and the proposed new house will each be on its own curtilage with a fence separating them. Clause 3.5.1 of the heritage DCP, states: In those areas where the pattern of development is not part of the heritage significance of the place, new buildings at the rear of old buildings might be approved if they can be designed and sited successfully so that they do not disrupt the streetscape, affect the setting of the heritage item or destroy the amenity of the area .

43 . Specifically in relation to the Wyralla Ave conservation area, it is recommended that the historical subdivision pattern and the width of allotments be maintained; and that the existing predominant pattern of subdivision should be kept. However, a diagram immediately adjacent to these guidelines illustrates that a new house may be erected in the rear yard behind another house by providing a battleaxe handle or right of way within the lot. The notation in relation to this diagram is that battleaxe blocks are possibly subject to provisos. The diagram also illustrates a subdivision that is not to be encouraged, namely, the longitudinal division of a lot to create two narrow lots should not occur where the adjoining lots would be double the width of the proposed narrow lots. It was suggested by Mr Moore, who played a role in drafting this DCP, that the inclusion of this diagram was a mistake. However, the diagram in not necessarily inconsistent with the written material concerning the maintenance of the width of allotments - for instance, in some cases an existing driveway to the garage of a house at the front of the lot could be used also as the access handle to a proposed dwelling at the rear.

44 . It is important to distinguish the present application from the instances that have been given in the DCP. Certainly, there is no longitudinal subdivision of an existing lot, which according to the DCP is plainly unacceptable. Indeed, there is no subdivision proposed at all. Nor does the proposed development involve even the creation of a battleaxe handle within an existing lot, which, on one view of the DCP, would be acceptable. Immediately adjacent to the western boundary and outside of the subject land (as well as outside the boundary of the conservation area), a right of carriageway already exists in favour of the subject land and Nos 45A and 45B. As a result, in order to provide access to the proposed rear dwelling, there will be no change to the subdivision pattern that is visible from the street; there will be no need to create an access handle within the subject land. The use of the presently available access to the rear part of the subject land would not interfere with the front cottage or its curtilage.

45 . The council's expert evidence was influenced in part by irrelevant considerations relating to the objectives of the 2(a) zone in LEP 2001 and by the earlier decisions of the Court numbered (1)-(4) in par 8 above. The zone objectives of LEP 2001 were relevant in the earlier decisions relating to developments that were proposed to be carried out pursuant to the local environmental plan. However, they are not relevant in the present proceedings where different planning considerations apply to the currently proposed development under SEPP 5. The zone objectives of LEP 2001 are not to be taken into account, where these provisions are inconsistent with SEPP 5: see Lloyd J (par 8 above, decision (6) 9th point). Also, inconsistent provisions of council's DCPs cannot prevent the carrying out of development in accordance with SEPP 5.

46 . Nevertheless, council's evidence contains other helpful or informative factual material or opinions that are relevant, which I have taken into account.

47 . The applicant relied on a supplementary heritage impact statement produced by Mr Rappoport (ex S). Lloyd J has held (par 8 above, decisions (6) 3rd point and (7)) that a heritage impact statement need not be provided by the applicant but may be provided by the council. Accordingly, when considering the matters that are to be addressed by a heritage impact statement, I have taken into account not only the heritage impact statement itself, which was prepared by the applicant's consultant Mr Rappoport, but also all relevant oral and written evidence presented by both parties touching upon the matters to be addressed in the heritage impact statement. Just as it has been held that other evidence given in Court may supplement a written objection under State Environmental Planning Policy No. 1 - Development Standards, likewise I am of the opinion that other evidence at the hearing may supplement the applicant's heritage impact statement. This opinion would not appear to be inconsistent with the finding of Lloyd J (par 8 above, (6) 3rd point), bearing in mind that under cl 25(a)(ii) of SEPP 5 it is only required that " adequate regard has been given to the following principles… The proposed development should… where possible , retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity…" (emphases added). Furthermore, the Court may draw any reasonable inference from what it sees during an inspection of the site and locality (cf. s 54 of the Evidence Act 1995 ).

48 . I am of the opinion that the applicant's heritage impact statement (in exhibits E and S) is sufficient for the purpose of considering the eight matters in cl 11(5) and the provsions of cl 14 of the heritage LEP. I have also taken into account the contrary views expressed by the consultants retained by the council, in relation to the impact of the proposed works on the cottage itself and on the conservation area.

49 . There is no requirement in the heritage LEP itself to follow the model for preparing a statement of heritage impact as set out in the Guidelines published by the Heritage Office of NSW. The LEP sets out the matters which must be considered. It is the heritage DCP that calls for a consideration of the Guidelines - see cl 2.3.3 quoted at par 40, which states among other things that the detail required in a heritage impact statement varies depending on the situation. The Guidelines themselves (appended to Mr Moore's report (ex 9)) state that where the proposed work involves an item of local significance, the statement of heritage impact "can be based simply on a statement of significance or a conservation policy." Generally speaking, however, it would seem desirable that there be a well-recognised and consistent approach to heritage assessment.

50 . In the Wyralla Ave conservation area, there have been a number of substantial rear additions that are visible from the street. It is not apparent that the council has required detail heritage impact statements for these additions. The heritage impact statement (and supplement) for rear additions at 39 Wyralla Ave is about four pages long. In many cases, as regards the significance of a conservation area or the properties with in it, it will be sufficient to refer to the assessments in the council's heritage DCP (or to other existing assessments, such as that by Mr T Kass and Ms P Pike dated July 2002 - ex F), in order to avoid unnecessary and expensive repetitious assessments.

51 . In the present case the application was lodged and heard before the coming into effect of the streamlined procedures for the presentation and hearing of evidence in the Court. Under the new procedures, it is likely that there would have been fewer experts retained to give evidence, or indeed there might have been only one Court-appointed expert.

Impacts of the proposed development on the existing cottage and conservation area

52 . I am of the opinion that the existing cottage in its poor condition does not contribute to the amenity of the locality and is out of keeping with the generally well presented houses in the conservation area. There are some exceptions to the intactness of the conservation area, in that quite a number of rear extensions or additions have been permitted (see the reports, plans or photos in exhibits F, H, K, L, M, Q and R). It seems that the most important consideration is the appearance of the altered houses as seen in the streetscape. The fact that parts of the rear or side additions can be seen from the street does not necessarily mean that they are inappropriate. For the reasons referred to earlier, I am of the opinion that the proposed additions and alterations to the existing cottage together with the landscaping that is proposed will enhance the appearance of the property and will be acceptable in the context of other development in the streetscape.

53 . As regards the proposed new dwelling at the rear, it will have no adverse visual impact on the streetscape. As Mr Logan said in respect of a similar proposal (ex H), due to the slope of the land, the eaves line of the new house would not be visible behind the existing dwelling other than in oblique views down the driveway of the right of carriageway.

54 . Although it is not expressly stated in part 4.0 of the statement of heritage significance (par 41 above), I accept the opinion of the heritage experts who gave evidence for the council that the pattern of development is part of the heritage significance of the conservation area. However, having regard to the nature of the proposed development, and having regard to the somewhat unique location of the subject land referred to earlier, I consider it appropriate to approve the proposed development even though it does not reflect the general pattern of development. The approval of the subject application is unlikely to to set a precedent that will commence the erosion of the primary significance of the conservation area, which is the appearance of the streetscape of Wyralla Ave.

55 . As mentioned earlier, there were letters of objection from local residents. The main objections were to the effect that there would be a change in the character of the area and that an undesirable precedent would be established. However, it seems to me that the views expressed in the following letter from the residents of 54 Wyralla Ave (which is opposite the subject land) are to the preferred:

The proposed development is opposite our house and we look down on the subject property. It is our opinion that the proposed development will have no affect on the streetscape or the conservation area as the proposed development has been designed to harmonise with the area.

The design of the proposed development is also in character with what exists in the street in terms of modest dwelling size with the rear dwelling not being visible when viewed from within the streetscape.

It is our opinion that the proposed development for older people or people with a disability will provide a much needed housing choice for our area…

56 . I have amended or deleted several of the conditions in the light of the evidence and submissions, and otherwise most of the conditions were agreed to by the applicant.

57 . Some concern was raised by one of the objectors about the disposal of stormwater runoff. It appears that the applicant has a right to discharge stormwater thorugh an easment draining to the north. The drainage concept plan (which also contains the shadow diagrams), being sheet 8 D-DA-008 revised 10 March 2003 (pt ex B), does not appear to have been prepared by a drainage engineer. Although some existng hard surfaces and structures will be demolished, the circumstances that there is a substantial new addition to the rear of the existing cottage and that a large part of the grassed area of the rear yard will be replaced by the new dwelling suggest that the stormwter draingage system should serve both dwellings and their curtilages in accordane with current good practice. This is an ancilliary matter which may be dealt with by conditions of consent, in accordance with s 80A (2) or (4) of the Environmental Planning and Assessment Act 1979. See conditions (49)-(51).

58 . Evidence should be submitted to the council prior to commencemnt of work on the new dwelling that Sydney Water consents to the construction of the new house over its easement - see conditon (25).

59 . To protect the privacy of the adjoining properties to the rear, amendments to the landscape plan are included in condition (31) of the consent.

Development consent is granted pursuant to State Environmental Planning Policy No. 5 - Housing for Older People or People with a Disability for the demolition of certain structures, for alterations and additions to the existing dwelling and for the construction of a new dwelling at 43 Wyralla Ave, Epping, subject to the conditions in Annexure A hereto.

The exhibits, other than exhibits A, B, C, E, J and S, may be returned. ________ A J Nott Commissioner of the Court

Conditions of Consent for SEPP 5 Housing at 43 Wyralla Ave, Epping

(1) The development is to be carried in accordance with the following plans, as modified by any conditions of this consent: (a) sheet A, FF-00A revised 10 March 2003 by Alana Design, (b) sheet 1, D-DA-001 revised 10 March 2003 by Alana Design, (c) sheet 2, D-DA-002 revised 10 March 2003 by Alana Design, (d) sheet 3, D-DA-003 revised 10 March 2003 by Alana Design, (e) sheet 4, D-DA-004 revised 10 March 2003 by Alana Design, (f) sheet 5, D-DA-005 revised issue 2 by Alana Design, (g) sheet 6, D-DA-006 revised 10 March 2003 by Alana Design, and (h) sheet 7, D-DA-007 by Caddy & Associates Surveyors dated 2 March 2000; and (i) landscape plan 02072BA 1 rev. B by Vision Dynamics [exhibit J]. [Plans in (a) to (h) above are part of exhibit C.]

(1A) All building work must be carried out in accordance with the provisions of the Building Code of Australia

(2) As there is a change in the building use (classification), the building must comply with the Category 1 fire safety provision applicable to the proposed new use. Note: The obligation under this subclause to comply with the Category 1 fire safety provision may require building work to be carried out even though none is proposed or required in the relevant development consent. In this clause, Category 1 fire safety provision has the same meaning as it has in Part 7B of the Environmental Planning and Assessment Regulations.

(3) Residential building work (within the meaning of the Home Building Act 1989 ) must not be carried out unless the principal certifying authority for the development to which the work relates: (a) In the case of work to be done by a licensee under that Act; has been informed in writing of the licensee's name and contractor licence number; and is satisfied that the licensee has complied with the requirements of Part 6 of the Act, OR (b) In the case of work to be done by any other person, has been informed in writing of the person's name and owner-builder permit number; or 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, 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. Note: 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 purpose of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

(4) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. 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.

(5) Where 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 must be provided inclusive of adequate provision for drainage.

(6) If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made must preserve and protect the building from damage; and if necessary, must underpin and support the building in an approved manner. At least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made must give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished and submit to the Principal Certifying Authority details of the date and manner by which the adjoining owner(s) were advised. The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this condition, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. In this condition, allotment of land includes a public road and any other public place. (7) As the work involved in the erection or demolition of a building is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place. Such hoarding may need to include an awning sufficient to prevent any substance from, or in connection with, the work falling into the public place. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place, and any such hoarding, fence or awning is to be removed when the work has been completed.

(8) 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, stating that unauthorised entry to the work site is prohibited; and showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. Any such sign is to be removed when the work has been completed.

(9) Toilet facilities are to be provided, at or in the vicinity of the work 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 must be a standard flushing toilet and must be connected to a public sewer, or if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility by the Council. The provisions of toilet facilities in accordance with this condition must be completed before any work is commenced.

(10) Prior to commencement of any works that involve the physical disturbance of the site, surface water and sediment control measures, including those shown on the approved plans(s), shall be implemented. The measures shall be utilised and maintained during the development at all times.

(11) Prior to the commencement of any works in the vicinity of trees or other existing site features that are to be retained (either on-site or on adjoining street reserve), physical protection measures including those shown on the approved plans shall be implemented and maintained at all times.

(12) Building work may only be carried out six (6) days a week, Monday to Friday between the hours of 7.00am to 8.00pm and Saturday 8.00am to 8.00pm. No work is permitted to be carried out on Sundays or Public Holidays. (13) A house number is to be placed on the building in a readily visible location prior to occupation of the building. (14) An Occupation Certificate shall be obtained prior to occupation or use of the premises. (15) Five (5) working days (i.e. Monday to Friday with the exclusion of Public Holidays) notice in writing is to be given to Parramatta City Council for inspection prior to the commencement of any works. Such written notice is to include the date when demolition will commence and details of the name, address, business hours contact telephone number and licence number of the demolisher. Persons undertaking demolition work should obtain the relevant licence with WorkCover. (16) On the first day of demolition, work is not to commence until the Principal Certifying Authority (PCA) has inspected the site. Should the building to be demolished be found to be wholly or partly clad with asbestos cement, approval to commence demolition will not be given until the PCA is satisfied that all measures are in place so as to comply with WorkCover's "Short Guide to Working with Asbestos Cement" a copy of which accompanies this Development Consent. (17) Demolition works involving the removal and disposal of asbestos cement must only be undertaken by contractors who hold a current WorkCover "Demolition Licence" AND a current WorkCover "Class 2 (Restricted) Asbestos Licence". (18) On demolition sites where buildings to be demolished contain asbestos cement, a standard commercially manufactured sign containing the words "DANGER ASBESTOS REMOVAL IN PROGRESS" measuring not less than 400mm x 300mm is to be erected in a prominent visible position on the site to the satisfaction of Council's officers. Advice on the availability of these signs can be obtained by telephoning Council's Customer Service Centre during business hours on 9806 5000. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos cement has been removed from the site to an approved waste facility. This condition is imposed for the purpose of worker and public safety and to ensure compliance with Clause 259(2)(c) of the Occupational Health and Safety Regulation 2001. (19) Demolition is to be carried out in accordance with the applicable provisions of Australian Standard AS2601 1991 - The Demolition of Structures. NOTE: Developers are reminded that WorkCover requires that all plant and equipment used in demolition work must comply with the relevant Australian Standards and manufacturer specifications. (20) All asbestos-laden waste, including flat, corrugated or profiled asbestos cement sheets must be disposed of at a tip recommended by the NSW Environment Protection Authority (EPA). NOTE: The person responsible for disposing of the above asbestos waste is to telephone the EPA on (02) 9325 5709 to determine the location of a tip licensed to receive asbestos. Upon completion of tipping operations, the applicant must lodge with Council all receipts issued by the receiving tip as evidence of proper disposal. (21) Demolition works are restricted to Monday to Friday between the hours of 7:00am to 6:00pm. No demolition works are to be undertaken on Saturdays, Sundays or Public Holidays. (22) The developer is to notify adjoining residents five (5) working days prior to demolition. Such notification is to be a clearly written note on note pad size paper giving the date demolition will commence and be placed in the letterbox of every premises (including every residential flat or unit, if any) either side and immediately at the rear and opposite the demolition site. (23) A copy of the notification and addresses of residents notified to be lodged with Council no less than two (2) days prior to demolition. (24) The construction certificate is not to be released unless the Certifying Authority is satisfied that the required levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 has been paid.

(25) The approved plans in condition (1A) and the plan approved pursuant to condition (49) must be submitted to the appropriate Sydney Water Office to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements. Evidence that the proposed development complies with Sydney Water's requirement is to be provided to Council prior to the commencement of work in relation to the proposed new dwelling.

(26) No building work shall commence until a construction certificate (formerly a Building Application) has been issued. A separate application must be completed for a construction certificate.

(27) Dust control measures shall be implemented during all periods of earth works, demolition, excavation and construction in accordance with the requirements of the NSW Environment Protection Authority. No dust is permitted to leave the site. (28) Noise from construction and/or demolition activities associated with the development shall comply with the NSW Environment Protection Authority's Environmental Noise Manual and the Protection of the Environment Operations Act 1997. (29) No materials, machinery, signs or vehicles used in or resulting from the construction or demolition relating to the development shall be stored or placed on Council's footpath, nature strip or roadway.

(30) If a Private Certifier is appointed to certify construction works Council's Development Unit shall be notified in writing within seven (7) days following commencement of the approved use and/or occupation of the development so that an inspection can be undertaken by Council to ensure compliance with this consent. Note: Be aware that the issuing of an Occupation Certificate by a Principal Certifying Authority does not mean that this consent is complied with and that Council cannot take any further action in regard to compliance with this Consent (refer to the Environmental Planning and Assessment Act and Regulation).

(31) (a) The landscaping shall be completed in accordance with the approved plans (as amended by this consent), prior to occupation or use of the premises and shall be maintained at all times. (b) In carrying out the landscaping, the existing ground levels (as shown on the survey plan - sheet 7 of ex B) on the northern side of the new dwelling, within the area extending back for a distance of 3 m from the rear boundary for the width of the whole site, shall be maintained (and not raised), in order to protect the amenity of the rear yard of 5 Duncan Place. (c) The proposed Boronia along the rear boundary and adjoining the eastern end of the rear balcony of unit 2 shall be replaced with super-advanced Camellia sasangua plants, which will in time be able to provide a vegetative screen above the height of the existing 1.8 m high fence. (d) Meanwhile, a timber-lattice screen 350 mm high of natural timber to match the existing rear timber fence shall be erected on top of the rear fence, supported from No 43's side of the fence. This screen is to commence from a point 2.6 m from the north-western corner of the subject land and extend easterly along the top of the fence for a distance of about 6.5 m . (e) The northern projection of the rear balcony off the family room of the new dwelling (called an accessible entry on the plans) is to be cut back so as to be 1.6 m from the rear boundary. The balcony is not to be supported on fill within 2 m of the existing Jacaranda trees but on piers hand-dug to avoid if possible major tree roots. (f) Along the northern edge of this amended balcony, a privacy screen (which may be of obscure glazing or other translucent material) is to be erected to a height of 1.6 m above the floor of the balcony along the northern and eastern edges of the balcony, details to be submitted for approval by the principal certify authority. (The main purpose of a privacy screen is to prevent over-viewing in a north-westerly direction into the rear yard of the adjoining properties. (g) A paved or mulched path is to be provided through the landscaping on the western side of unit 2 to enable a lawn-mower to be taken into the rear private open space area of that unit . [The above conditions may, on the application of the applicant, be modified by the council to achieve the purpose of the conditions.] (h) The conflicting fence details on the landscape plan are to be ignored, and a fence 1.2 m high at the front together with a gate is to be erected in accordance with details submitted to and approved by the council.

(32) A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water. An application form is available from Council or Sydney Water (call 13 20 92). Following application "Notice of Requirements" will detail water and sewer extensions to be built and charges to be paid. Please contact Sydney Water early, since building of water/sewer extensions can be time consuming and may affect other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the construction certificate/Linen Plan (whichever is applicable).

(35) Prior to the occupation of the premises, the applicant is to plant two Tristaniopsis laurina within the Wyralla Avenue nature strip. The trees are to have a minimum container size of 45 litres and a minimum height of 1.5 m at planting and are to be set back a minimum of 3 m from the driveway.

(36) All landscape works are to be maintained after the final completion, in accordance with the approved landscape plan as amended by these conditions.

(37) The consent from Council is to be obtained prior to any pruning works being undertaken on any tree, including tree/trees located in adjoining properties. A certified Tree Surgeon/Arborist must carry out pruning works that are to be undertaken. This includes the pruning of any roots that are 30mm in diameter or larger. (38) All pruning is to be carried out by a certified qualified Tree Surgeon/Arborist and must conform to the provisions of AS4373-1996 Australian Standard for Pruning Amenity Trees.

(40) The payment of the following monetary contributions in accordance with Council's comprehensive Section 94 Contributions Plan: Traffic and Transport $326.00 Open Space, Public Space and Recreation $3,067.00 Community and Cultural $439.00 Other $4.00 Plan Management and Administration $158.00 This results in a total contribution of $3,994.00, to be paid to Council prior to the release of the construction certificate. The Section 94 Contribution fees are subject to annual review and the current rates are applicable for the financial year in which your consent is granted. If you pay the contribution in a later financial year you will be required to pay the fee applicable at that time.

(41) Plans submitted for the construction certificate shall provide for or specify the following: (a) thermostatic mixing valves for all hot water outlets and details of the slip-resistant floor surface required by Clause 13A(16)(d & e), subject to the qualification that cl 6(2) of State Environmental Planning Policy (Seniors Living) 2004 provides that the requirement in SEPP 5 for such thermostatic mixing valves "could be satisfied by the installation or use of tempering valves for hot water in bathrooms only , " (b) pathway lighting to comply with Clause 13A(4) of SEPP 5, (c) letterboxes that comply with AS1428/4299 and Clauses 13A(5 & 25(f)(iii) of SEPP 5, (d) the minium head room clearance for the garages of both units 1 and 2 is to be a minium of 2500mm, (e) the slope of the driveway accessing the rear dwelling (unit 2) is not to exceed 1:5 (20%), (f) the doors to the entrances being 920mm wide, with lever handles between 900 - 1100mm above the floor to comply with Clause 13A (7) of SEPP 5, (g) all internal doors for unit 2 to comply with AS1428.1 figures 12 and 13, (h) the positions and dimensions for the wall oven, cook top, height-adjustable work bench, sink and fridge and other fittings to comply with Clauses 13A (11)(c)-(j), (i) the bathrooms for both unit 1 and unit 2 complying with AS1428.1, (j) all internal doorways providing 820mm clear opening widths and external doorways providing 850mm clear opening widths, (k) paving and floor finishers complying with Clause 13A(19) of SEPP 5, (l) details of external materials and colours, which shall have been provided to Council and approved prior to issue of the construction certificate, (m) new windows to the existing cottage shall be timber double-hung windows to match the design, detail, materials and proportion of the existing original windows.

(42) Windows and sliding doors in external walls in the new house shall be timber.

(43) Sliding doors in external walls shall be timber.

(44) A new front fence shall be provided. The design details and materials of the fence shall be provided to Council for approval prior to issue of the construction certificate.

(46) The glazed gablet on the northern plane of the roof of the existing cottage shall be reduced in size, so that its base is only 2.5 m wide, and its consequentially smaller roofs have a pitch to match the pitch of the main side roofs of the addition (approx. 28 degrees).

(47) An archival recording of the existing property shall be provided to Council for approval prior to issue of the construction certificate. The recording shall be done in accordance with the NSW Heritage Office guidelines and shall include at least 10 black and white photographs of the exterior.

(49) Prior to the release of the construction certificate, stormwater drainage and detention design details based on the following design criteria for the whole of the development shall be submitted to the Principal Certifying Authority for approval. · Site Storage Volume - 250m3/ha · Site Discharge - 210 l/s/ha · The approved design and the carrying out of the drainage works shall be in accordance with the On-site Detention Handbook prepared by the Upper Parramatta River Catchment Trust and the Council's Drainage Code. Reason - To meet Council's standards and reduce flooding throughout the catchment.

(50) A positive covenant and a restriction is to be created on the property title (under the provision of the Conveyancing Act) to ensure that the required on-site detention system will be adequately maintained. A copy of the typical covenant may be obtained from the Council's Development Unit. Proof of registration shall be submitted to the Principal Certifying Authority prior to occupation or use of on-site.

(51) Works as executed plans certified by a suitably qualified person are to be submitted to the Principal Certifying Authority prior to occupation of the premises certifying that the stormwater drainage system has been constructed in accordance with the appropriate plans. A copy of the works as executed plans is to be submitted to Council's Development Unit to update the on-site detention database for the upper Parramatta River Catchment Trust.

(52) Prior to the occupation of the proposed development and the issue of an occupation certificate, a restriction as to user shall be registered on the title to the property to ensure that (in the absence of a modification of this consent or the granting of a new development consent) the persons who can live in the two dwellings are only those persons who were permitted by clause 15 of State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability as in force on 30 March 2004. The terms of the restriction as to user are to be approved by Council's solicitor prior to registration. The Council shall be the party who has the right to modify or extinguish the restriction.

(53) Prior to the issue of a construction certificate, the applicant shall provide a specification of all materials and finishes to be used with respect to the works to be undertaken on the existing building, such specification to be certified as acceptable by a qualified heritage architect. (54) The construction-certificate plans should be sufficiently detailed to enable a structural engineer to certify the soundness of the roof-support system relating to the main roofs and the smaller roofs of the addition to the front cottage. __________

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At a glance

Court

Decision date

Before

Source

Judgment (137 paragraphs)

Parties

Cases Cited (6)

Cited By (2)