ABC Planning Pty Ltd v Waverley Council - [2008] NSWLEC 1495

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: ABC Planning Pty Ltd v Waverley Council [2008] NSWLEC 1495

PARTIES:
APPLICANT
ABC Planning Pty Ltd
RESPONDENT
Waverley Council

FILE NUMBER(S): 10999 of 2008

CORAM: Hoffman C

KEY ISSUES: Deemed Refusal :- 8x1 bed flats and a shop mixed use development, carparking, privacy, acoustic amenity, mix of accommodation

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006

DATES OF HEARING: 11/12/2008

EX TEMPORE JUDGMENT DATE: 11 December 2008

LEGAL REPRESENTATIVES:
APPLICANT
Ms H. Irish, barrister
Instructed by Pikes Lawyers
RESPONDENT
Ms C. Morton, solicitor
of Sparke Helmore Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

11 December 2008

10999 of 2008 ABC Planning Pty Ltd -v- Waverley Council

JUDGMENT

1 This a Class 1 appeal No. 10999 of 2008 regarding a deemed refusal of a proposal for eight by one bed flats and a shop mixed use development at 30a Hastings Parade Bondi Beach. The site is on the corner of Hastings Parade and Wairoa Avenue. It is zoned Residential 2(c1) under the Waverley Local Environmental Plan 1996 amendment No 26 and the proposal is permissible with consent.

2 The site is 15.24 m on the Hastings Parade boundary and 30.57 m to the Wairoa Avenue boundary and it is rectangular. There is a gradual slope down from Hastings Parade. The length of the lot runs approximately north-south and being on the northeast corner of the intersection shadows from the proposal in the relevant hours of 9 am to 3 pm at the relevant times appear to fall on the streets.

3 On the north west side is No 30 Hastings Parade a two storey semi detached residence and on the northeast is a two storey block of flats at No 63 Wairoa Avenue. On the opposite side of Hastings Parade is a park opposite the site. Opposite the site in Wairoa Avenue is a older building apparently flats above ground floor shops. Diagonally across the intersection is another old building with flats above shops.

4 The current building on the site is an old police station of minium side and street setbacks and just enough space in a driveway off Wairoa Avenue at the north east end to stack park two cars.

5 Neighbours allege the existing building is used as a hostel and complain of nuisance activity impacting on the residential amenity.

6 The proposal is for a 4-storey building with a wide setback to both neighbours 4.5 metres to No. 30 Hastings and 6 metres to No. 63 Wairoa. There will be four cars parked beneath the elevated north east end of the new building.

7 The proposal was advertised and a number objections received. Since then the parties have negotiated about both council’s and the objectors’ concerns and amended plans were agreed just before this hearing and consent orders prepared with an agreed set of conditions for approval.

8 The matter has been dealt with under s 34 under the Land and Environment Act 1979 under the procedure in s 34(B) for an on-site hearing.

9 There being no facilities available on-site, and it raining on the day of the hearing, it was commenced on-site and later returned to the Court at 225 Macquarie Street.

10 On the site the amended plans were explained to the objectors along with a physical model of it. The model included the immediate neighbours buildings. This enabled me to hear any further objections they may have had.

14 Changes to the plans did not physically change the building envelope but they addressed the issues in the parties opinions. The proposal for an 8x1 bed unit and a shop development had been recommended for approval by the Waverley Design Review Panel. The amendment reduces the number of units to 7 being 5x1 bed units 2x2 bed units plus the shop and the 4 car parks. Two bed units are on top two floors of the building and what had been the eighth unit on the top floor has been split to become the second bedrooms of the two units below. The bedrooms are connected to each unit by a spiral stair.

15 The other change was to put horizontal privacy louvres on balconies on the north-east and the north-west facades to provide protection for No. 30 Hastings and No. 63 Wairoa. Also the fourth storey was set back from the floors below on all sides by about 2 metres except at the north-east and the south-west ends where the setback is 3 to 4 metres.

16 In the original plans this roof setback was an accessible terrace that could be used for entertainment, which could impact the neighbours privacy and acoustic amenity. Amended plans made most of this roof setback into landscape planter area and non-trafficable. Small terraces 1.5 to 2 metres wide outside the two bedrooms are provided. Council is now satisfied they would not facilitate entertainment.

17 Ground level 4.5 metres setback to No. 30 Hastings is to be landscaped with screen trees on the boundary and shrubs elsewhere. A courtyard to the ground level apartment occupies part of that setback.

18 The 6 metre setback to No. 63 Wairoa has a 1 metre wide landscape boundary garden of screen vegetation and then the paved car access driveway. From the street frontage is more landscaping and paved areas, and the latter to give access to entry foyer and the corner shop. The building has been massed closer to the corner as a town planning approach to featuring the corner site and complimenting the buildings on the other sides of the intersection previously referred to.

19 Mr Kosnetter and Mr Betros had produced a joint report on the amended plans and now agree that the council’s issues are resolved and that the objectors concerns had been dealt with to provide minimal and acceptable impacts.

Waverley Development Control Plan 2006.

Waverley Development Control Plan 2006

3. The proposed terraces on the north-west elevation on the first and second floor level are considered to hve a visual and acoustic impact on the adjoining properties. This contention can be resolved by way of a condition requiring these terraces to be deleted and the building setback increased respectively.

4. The extension of the roof top terrace on the north-west elevation is also considered to have visual and acoustic impact on the adjoining property. This contention can be resolved by way of a condition requiring this part of the terrace to be non-accessible and be replaced by a planter box.

5. The issues raised in the submissions submitted by the adjoining neighbours.

21 Hearing the objectors concerns, the applicant put the council issues only supported the immediate neighbours concerns and therefore the other objectors concerns had little weight.

22 The respondent said the other objectors as residents of the locality did have an interest. The locality has a mix of detached and semi-detached houses and older apartment buildings. As I have mentioned before some of the apartment buildings have shops on the ground floor level. Objectors are concerned about more apartments being built that might tilt the mix of flats and houses and change that character unacceptably.

23 The planners have indicated that the zone permits mixed development of the type proposed and this development complies with all of the setback, height and density and carparking requirements of the council. The setbacks to neighbours have been increased to allow much more space than currently exists with the old police station. This avoids any unacceptable scale and massing impacts and provides ample access to daylight. As mentioned before, no overshadowing of neighbours will occur in the applicable hours at the relevant times of the year.

24 Objectors drew attention to the lack of on-street parking especially in summer when beach goers crowd into the area. They say four car spaces on-site are not enough.

25 Mr Kosnetter said the council had a deliberate policy arising from environmental sustainability goals to set a maximum number of cars permitted in order to encourage the use of public transport. For this site, four cars is the maximum.

26 On the other issues, he is satisfied that the proposal is commensurate with the development expectations for this site. Any resulting impacts are considered to be appropriately mitigated either through the design of the building or by way of condition, or are not unreasonable given the general compliance with council’s controls.

27 On the inclusion of the corner shop the objectors could see no reason for it. There are a number of empty shops in the vicinity. Mr Kosnetter said it is permitted in the zone and the shop and the small size of the shop made it acceptable. A development application would be needed when a tenant wishes to occupy. The zoning does not allow a café or restaurant or commercial uses. He is confident the shop could be controlled to maintain any impacts within acceptable levels.

28 Objectors said, they are frustrated over an alleged seven development applications on the site in the last two years or so. They are wary of any proposal on this land. That history is not relevant to the decision I must make on the merits of these amended plans and conditions now put forward by both parties as acceptable. I have considered the plans and conditions and the evidence as referred to above and I have formed the opinion there is nothing sufficient for me to refuse the consent orders forwarded by the parties.

1. The appeal is upheld.

2. Consent is granted to the demolition of the existing building and construction of the new part 3, part 4 storey mixed use development containing 1 small shop, 7 units and associated parking on Lot 1 DP 15662 known as 30A Hastings Parade, Bondi Beach as shown on drawings 2007-014-A00, 2007-014-A01, 2007-014-A02, 2007-014-A03, 2007-014-A04 all Issue A of Brenchley Architects and dated 10 November 2008 and the Landscape plan and elevation join L-DA-01 Issue A prepared by LANDknit, as amended by and subject to the conditions in Annexure A.

3. The exhibits are returned to the parties except Exhibits A, B, C, D, 4 and 5 shall be retained on the Courts file.

K G Hoffman

Commissioner of the Court

Annexure ‘A’
Conditions of Consent

30A Hastings Parade Bondi Beach

ABC Planning Pty Ltd v Waverley Council

A. Approved Development

1. Approved Development

The development must be in accordance with:

(a) Architectural Plan No. 2007-014-A00, and 2007-014-A01, 2007-014-A02, 2007-014-A03, and 2007-014-A04, all Issue A, prepared by Brenchley Architects, dated 10/11/08, except where amended by the following conditions of consent; and

(b) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006.

2. TREE PLAN

All trees and shrubs on the subject or neighbouring sites identified for retention and within 7.5m of the building work are to be provided with a tree guard and a notice on each guard indicating "This tree is the subject of a Tree Preservation Order by Waverley Council." This notice is to be in place prior to commencement of any building or demolition work. Only trees with the approval of Council for removal may be removed from the site.

Trees to be retained

Species	Location	Action
Unknown sp	Rear yard, n the property of 30 Hasting Pde but on the boundary with 30A Hastings Pde	Retain and protect Existing fence line and conditions listed below shall be enough to protect tree.

Soil levels are not to be changed around this tree

No mechanical excavation shall be undertaken within the tree canopy spread (within the dripline). Any roots smaller that 30mm diameter is to be pruned as per specifications below.

If tree roots are required to be removed for the purposes of constructing the approved works they shall be cut cleanly by hand, by an experienced Arborist/Horticulturist (with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate).

It is the arborist’s responsibility to determine if such root pruning is suitable. If there are any concerns regarding this process then Council’s Tree Management Officer is to be contacted to make a final determination.

If any trees on neighbouring properties require pruning then permission to prune must be sought from the owner of the tree and the appropriate Waverley Council processes followed in relation to the pruning of trees.

Trees to be removed

Species	Location	Action
Metrosideros sp	Front of the property on Hastings Pde	Remove and replace
Pittosporum sp	Side of property in Wairoa Ave and not shown on plans	Remove and replace

In line with Council’s policy to maintain and increase tree cover in the Council area, all trees where consent has been given to remove are to be replaced with a local native tree of minimum container size of 45 litres / height of up to 2 metres. It is therefore required that a minimum of 2 local native tree species are to be planted on the site

The replacement local native trees to be planted shall be maintained in a healthy and vigorous condition until they attain a height of 4.0 metres whereby they will be protected by Council’s Tree Preservation Order. Any of the trees found faulty, damaged, dying or dead shall be replaced with the same species at no cost to Council.

Suggested replacement species are to be submitted to Waverley Council’s Tree Management Officer with the plans for the Construction Certificate for final approval

3. amended landscape plan

The Landscape Plan No.L-DA-01 issued by Landknit is to be amended by the following changes:

(a) All landscaping on the site (trees, shrubs, groundcovers) are to be representative of a minimum 50% local native species and 50% native species

The amended landscape plan is to be submitted to Waverley Council’s Tree Management Officer with the plans for the Construction Certificate for final approval

B. compliance prior to issue of construction certificate

4. SECTION 94A CONTRIBUTION

A cash contribution is payable to Waverley Council pursuant to section 94A of the Environmental Planning and Assessment Act 1979 and the "Waverley Council Development Contributions Plan 2006” in accordance with the following:

1. Where the total development cost is less than $500,000:
"Waverley Council Cost Summary Report"; or,

"Waverley Council Registered Quantity Surveyor's Detailed Cost Report".

(b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000.

Waverley Council Development Contributions Plan 2006 may be inspected at Waverley Council Chambers, First Floor, Cnr Paul Street and Bondi Road, Bondi Junction.

Advisory Note

A development valued at $100,000 or less will be exempt from the levy.
A development valued at $100,001 - $200,000 will attract a levy of 0.5%.
A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development.

5. security deposit

A deposit or guarantee satisfactory to Council for the amount of $10,000 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.

This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work to the person who paid the deposit.

6. long service levy

A long service levy, as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, is to be paid in respect to this building work. In this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate.

Note : Council acts as an agent for the Long Service Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.35% of building work costing $25,000 or more.

7. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE

The building work, including demolition, must not be commenced until:

(b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81(A)(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and

The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority.

8. hoarding required

If required, hoarding designed and constructed in accordance with the requirements of the Work Cover Authority being erected on the street alignments of the property, prior to the commencement of building operations, and such hoardings to be maintained during the course of building operations. Details of the hoarding are to be provided to Council prior to issue of the Construction Certificate.

Where the hoarding is to be erected over the footpath or any public place, the approval of Council must be obtained prior to the erection of the hoarding.

9. SITE WASTE AND RECYCLING MANAGEMENT PLAN

A Site Waste and Recycling Management Plan (SWRMP) Checklist Part 2 shall be submitted to the Principal Certifying Authority for approval in accordance with Part G1, Waverley DCP 2006 prior to the issue of the Construction Certificate. In this regard, Council expects demolition and excavated material to be reused and/or recycled wherever possible.

The builder and all subcontractors shall comply with the approved SWRMP (Part 1 and 2) at all times during construction. At least one copy of the SWRMP is to be available on site at all times during construction.

10. EROSION, SEDIMENT AND POLLUTION CONTROL

Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

11. Construction Vehicle Plan of Management

Submission of a "Construction Vehicle Plan of Management" for the routing and control of construction vehicles accessing and exiting the site. Such plan to address the hours of operation, the employees' vehicles, holding areas for vehicles wanting to access the site and truck works and provide a means of ensuring vehicular and pedestrian access to adjoining resident's properties for the duration of the works. The "Construction Vehicle Plan of Management" is to be approved by Council prior to the issue of a Construction Certificate and the undertaking of any demolition, remediation or construction on the site.

12. STORMWATER MANAGEMENT

All seepage and surface waters and roof waters being collected and disposed of in accordance with Council's Stormwater Policy and this may involve the provision of an on-site detention system (OSD). Details prepared by a Hydraulics Engineer are to be submitted to and approved by the Principle Certifying Authority prior to the issue of a Construction Certificate.

13. ENGINEERING DETAILS

Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with all structural components prior to the issue of a Construction Certificate.

14. essential services - existing building

Details of the currently implemented and proposed essential fire safety measures shall be submitted to Council, with the Construction Certificate, in the form of a Fire Safety Schedule. This Schedule shall be prepared by a person competent to do so and shall specify the minimum standard of performance for each essential fire safety measure included in the Schedule.

At the completion of the installation, a Final Fire Safety Certificate shall be attached to the Occupation Certificate, certifying that each essential fire safety measure specified within the current Fire Safety Schedule:

(a) has been assessed by a properly qualified person; and

(b) found to be capable of performing to at least the standard required by the current Fire Safety Schedule for the building for which the Certificate is issued.

15. Vertical separation

Vertical separation of openings in the external walls of the building is to be provided in accordance with Clause C2.6 of the Building Code of Australia. Details are to be included in the Construction Certificate plans.

16. Fire stairs

Verification of compliance with Clause D1.3 of the Building Code of Australia in relation to the requirements for fire isolated stairways is to be provided prior to the issue of a Construction Certificate

17. USE OF RENEWABLE TIMBERS

Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings so as to help protect the existing areas of rainforest. In this regard, a schedule of proposed timber products to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used.

C. compliance prior to and during construction

18. PRIOR TO SITE WORKS

The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:

(a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or

(b) the name and permit number of the owner/builder who intends to do the work; and

(c) any change to these arrangements for doing of the work.

19. home building act

The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences.

20. CONSTRUCTION SIGNS

Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works.

21. EXCAVATION AND BACKFILLING

All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property.

22. obstruction to public areas

If a public place or pedestrian vehicular traffic may be obstructed because of the carrying out of work involved in the erection or demolition of a building; or a public place is required to be enclosed in connection with the erection or demolition of a building; then:

(a) a hoarding fence must be erected between the building site and the public place of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from, or in connection with, the work falling into the public place, is also to be erected;

(b) the work is to be kept lit during the time between sunset and sunrise if the work may be of a sort of danger to persons using the public place; and

(c) a hoarding, fence or awning is to be removed when it is no longer required for the purpose it was provided.

23. TOILET FACILITIES

Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water.

24. DEMOLITION OR ALTERATION OF PRE 1987 BUILDINGS

At least five (5) days prior to the demolition, renovation work or alterations and additions to any building constructed before 1987, the person acting on the consent shall submit a Work Plan prepared in accordance with Australian Standard AS260-2001, Demolition of Structure and a Hazardous Materials Assessment by a person with suitable expertise and experience. The Work Plan and Hazardous Materials Assessment shall:

(a) outline the identification of any hazardous materials, including surfaces coated with lead paint;

(b) confirm that no asbestos products are present on the subject land; or

(c) particularise a method of safely disposing of the asbestos in accordance with the Code of Practice for the Safe Removal of Asbestos NOHSC 2002 (1998);

(d) describe the method of demolition;

(e) describe the precautions to be employed to minimise any dust nuisance; and

(f) describe the disposal methods for hazardous materials.

25. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS

All site works complying with the occupational health and safety requirements of WorkCover NSW.

26. SOIL AND WATER MANAGEMENT PLAN

A Soil and Water Management Plan (also known as an Erosion and Sediment Control Plan) shall be prepared according to SSROC's Soil and Water Management Brochure and the DEC's Managing Urban Stormwater: Construction Activities. This Plan shall be implemented prior to commencement of any works or activities. All controls in the Plan shall be maintained at all time. A copy of the Soil and Water Management Plan must be kept on site at all times and made available to Council officers on request.

27. STOCKPILES

Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.

28. LOCATION OF BUILDING OPERATIONS

Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.

29. TEMPORARY DIVERSION OF ROOF WATERS

Stormwater from roof areas shall be linked via a temporary downpipe to Council's stormwater system immediately after completion of the roof area. Inspection of the building frame will not occur until this is completed.

30. ALL BUILDING MATERIALS STORED ON SITE

All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.

31. CONSTRUCTION HOURS

Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on:

(a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;

(b) Sundays and public holidays; and

(c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW.

Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000.

32. CONSTRUCTION NOISE - PERIODS GREATER THAN 4 WEEKS AND NOT EXCEEDING 26 Weeks

The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver.

33. BUILDING CODE OF AUSTRALIA

All building work must be carried out in accordance with the requirements of the Building Code of Australia.

34. QUALITY OF CONSTRUCTION ACT - INSPECTIONS (RESIDENTIAL FLAT DEVELOPMENT AND OTHER RESIDENTIAL CLASS 2, 3 AND 4)

The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planing and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certification.

MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.

The specified MANDATORY inspections are:

In the case of a Class 2, 3 and 4 building:
(a) at the commencement of the building work;
(b) prior to covering of waterproofing in any wet area for a minimum of 10% of rooms with wet area within a building;
(c) prior to covering any stormwater drainage connections; and
(d) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building.

The following additional inspections are required to be undertaken by the PCA:

(a) sediment control measures prior to the commencement of building work;
(b) foundation material prior to undertaking building work;
(c) shoring of excavation works, retaining walls, piers, piling or underpinning works;
(d) steel reinforcement, prior to pouring concrete;
(e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns; and
(f) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls).

Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.

35. IN-SINK WASTE DISPOSAL SYSTEMS

The installation of in-sink waste disposal systems is prohibited.

36. WATER PROOFING

The floor and wall surfaces of the proposed bathrooms, ensuites and laundry being protected against water in accordance with the Building Code of Australia. The wet areas are to be examined and certified by an Accredited Certifier.

Note: Water proofing is to be in accordance with AS 3740 - Water Proofing of Wet Areas within residential buildings.

37. HOT TAP WATER SCALDING

To reduce the incidence of hot tap water scalding and, for the purpose of energy efficiency, all new or replacement hot water systems shall deliver hot water to a maximum 50 degrees Celsius at the outlet of all sanitary fixtures used for personal hygiene.

38. SMOKE ALARM SYSTEM

A smoke alarm system is to be installed within the building in accordance with the requirements of the Building Code of Australia.

39. TREE PROTECTION

Precautions shall be taken when working near trees to ensure their retention, including the following:

(a) Do not store harmful or bulk materials or spoil under or near trees;
(b) Prevent damage to bark and root system;
(c) Do not use mechanical methods to excavate within root zones;
(d) Do not add or remove topsoil from under the drip line;
(e) Do not compact ground under the drip line;
(f) Do not mix or dispose of liquids within the drip line of the tree; and
(g) All trees marked for retention must have a protective fence/guard placed around a nominated perimeter.

40. work outside property boundary

All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council at the applicant's expense.

41. driveway

The existing driveway on Wairoa Avenue is to be reduced to a single driveway crossing at the road to the satisfaction of the Manager – Technical Services.

All unused concrete not forming part of the footpath to be removed and the area be graded and turfed.

D. compliance prior to an occupation certificate or commencement of use

42. FINAL OCCUPATION CERTIFICATE

The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied.

43. LIGHTING

Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 Control of the Obtrusive Effects of Outdoor Lighting .

44. STREET NUMBER/S

The street number for the property shall be a minimum of 75mm high and shall be positioned 600mm-1500mm above ground level on the site boundary that fronts the street

K G Hoffman

Commissioner of the Court

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Citations

ABC Planning Pty Ltd v Waverley Council [2008] NSWLEC 1495

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CITATION:	ABC Planning Pty Ltd v Waverley Council [2008] NSWLEC 1495
PARTIES:	APPLICANT ABC Planning Pty Ltd RESPONDENT Waverley Council
FILE NUMBER(S):	10999 of 2008
CORAM:	Hoffman C
KEY ISSUES:	Deemed Refusal :- 8x1 bed flats and a shop mixed use development, carparking, privacy, acoustic amenity, mix of accommodation
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006
DATES OF HEARING:	11/12/2008
EX TEMPORE JUDGMENT DATE:	11 December 2008
LEGAL REPRESENTATIVES:	APPLICANT Ms H. Irish, barrister Instructed by Pikes Lawyers RESPONDENT Ms C. Morton, solicitor of Sparke Helmore Lawyers