Architecture and Building Works Pty Ltd v Marrickville Council - [2009] NSWLEC 1409

Land and Environment Court

of New South Wales

CITATION: Architecture & Building Works Pty Ltd v Marrickville Council [2009] NSWLEC 1409

PARTIES:
APPLICANT
Architecture & Building Works Pty Ltd
RESPONDENT
Marrickville Council

FILE NUMBER(S): 10554 of 2009

CORAM: Bly C

KEY ISSUES: CONSENT ORDERS :- townhouse development, interim heritage order, curtilage, visual privacy, waste management, streetscape, resident objections.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 4 December 2009

DATE OF JUDGMENT:
8 December 2009

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan (barrister)
SOLICITOR
Conomos Legal
RESPONDENT
Ms A Hemmings (solicitor)
SOLICITOR
Corrs Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

8 December 2009

10554 of 2009 Architecture and Building Works Pty Ltd v Marrickville Council
JUDGMENT

1 This appeal involves a development application for 37 two-storey townhouses above a basement car park in Edgar Street, Tempe. The site is located on the northern side of Edgar Street between Unwins Bridge Road and the Illawarra Railway Line and has an area of 5,619 sq m. It is presently developed with six single storey houses and five of these houses are to be demolished. The area surrounding the site is almost entirely characterised by single storey dwelling houses.

2 The site is zoned Residential 2(a) under Marrickville Local Environmental Plan 2001 and in this zone the proposed development is permissible with development consent. The objectives of the residential zone that are required to be taken into consideration relevantly provide for sites having an area greater than 1,500 sq m to be developed for multiunit housing. Other relevantly applicable provisions of the LEP deal with subdivision, aircraft noise, landform, heritage, acid sulphate soils, waste management, energy water and stormwater, landscaping and biodiversity, and community safety and accessibility.

3 Also applicable are development control plans that deal with parking, waste management, access and mobility, energy and water, urban housing and community safety. In addition because the site is located immediately adjacent to a rail corridor and because excavation is involved State Environmental Planning Policy - (Infrastructure) 2007 is applicable, consultation with and the concurrence of Rail Corp are required.

4 The original application was advertised and 41 submissions from 33 objectors were received raising a number of wide ranging concerns. Following its consideration of a council officer's report recommending refusal the council decided to refuse the application for various reasons including: exceedence of the applicable floor space ratio and height limits; demolition of a contributory heritage item; unsatisfactory landscaping; aspects of internal and external amenity; streetscape; car parking; waste management; and over-development of the site.

5 The applicant subsequently filed a Class 1 appeal with this Court. The matter was the subject of a terminated conciliation conference under section 34 of Land and Environment Court Act 1979 on 19 October 2009.

6 The court has granted leave for the applicant to rely on amended plans that reduce the size of the development to 27 townhouses. The applicant has also provided additional expert reports to supplement the materials provided with the original development application. The amended plans have been advertised and 27 submissions objecting to the proposal were received.

7 Following consideration of the amended plans and the associated materials the council has now decided that the appeal can be upheld and the parties have provided to the Court consent orders (Exhibit 1) for its consideration. These consent orders contain a number of agreed conditions of consent.

8 As required by the Court's practice notes for Class 1 development appeals (cll 35 and 36) it is necessary to ensure that relevant statutory provisions have been complied with and that any objections are taken into account.

9 When the hearing began on-site I heard from a number of residents who were able to elaborate on their written objections. These objections, essentially involve the following:

Insufficient and inaccurate information to enable the proper consideration of the application e.g. incorrect shadow diagrams.
There are likely to be acid sulphate soils on the site.
The soils on the site are likely to be contaminated as a result of the previous Railways use. It also contains asbestos.
The proposal would be and overdevelopment of the site and would have an excessive height bulk and scale.
There would be significant traffic impacts on Edgar Street especially at the intersection with Unwins Bridge Road and on Wells Avenue.
There is insufficient on street parking available to accommodate overflow requirements from the site.
Neighbouring properties to the south would be overlooked and overshadowed. There will also be unsatisfactory internal overshadowing.
Existing infrastructure including stormwater and sewerage will be unable to cope with the additional demand.
Provisions for disabled people would be unsatisfactory and would not comply with the relevantly applicable standards.
There will be adverse impacts on heritage items in Edgar Street and Wells Avenue and on the cliff face and on the heritage significance of the area.
Neighbouring houses will be adversely affected during construction particularly resulting from the excessive excavation of sandstone.
Non-compliance with the Marrickville Urban Strategy.
The proposed excavation and stormwater drainage will adversely affect the operation of the rail corridor. Significant trees in the rail corridor will be lost
There will be a significant an unacceptable impact on the natural topography of the site.
The proposed development fails to comply with the requirements of the LEP and the DCP.
The site is adversely affected by railway and aircraft noise and vibration and is thus unsuitable for medium density residential development.

10 In response to the council's contentions and the resident objections the applicant tended and invited the Court to take into consideration the following expert documents:

An updated BASIX certificate.
An updated Statement of Environmental Effects.
A Supplementary Statement of Environmental Effects.
An Acid Sulphate Soil Assessment.
A Traffic and Parking Assessment Report.
A Statement of Heritage Impact
A Preliminary Environmental Site Assessment.
A memorandum from Rail Corp confirming its concurrence.
Statements of evidence: traffic; acoustics; geotechnical; and contamination and acid sulphate soils.
Shadow diagrams.
An expert town planning agreement that the proposal complies with the applicable height requirements

11 In addition the council provided a bundle of documents containing the relevantly applicable planning controls including the LEP and the DCP's and the Marrickville Urban Strategy 2007. I am informed and accept that the relevantly applicable provisions of these planning controls are complied with and that the proposal would not be inconsistent with the Urban Strategy.

12 To assist the Court in its determination of these consent orders the council invited me to consider and take into account the assessment report prepared by Mr J. Erken (Senior Planner-Marrickville Council). That report deals with the council's original contentions and the resident objections and effectively concludes that, taking into account the amendments to the proposal and the materials provided by the applicant, there are no longer any matters of concern that would lead to the refusal of the development application. This report together with the above-mentioned materials comprises a persuasive explanation of why the council notwithstanding the resident objections agrees that conditional development consent should now be granted.

13 I have now reviewed all of the above-mentioned materials including Mr Erken's report and considering that there are now no matters in dispute between the parties that require the resolution of the Court and being satisfied that the matters of concern to the residents are satisfactorily answered, I have decided that by consent, the appeal should be upheld and conditional development consent granted.

14 The orders of the Court are therefore by consent:

1. The appeal is upheld.
2. Development Application 200900017 to demolish the dwelling houses and associated outbuildings at 15, 17, 19, 21 and 23 Edgar Street; consolidate the land into one allotment; and erect a residential development containing twenty seven (27) townhouses and the dwelling house at 15 Wells Avenue which is to be retained and restored, with basement and ground level car parking for 35 vehicles; strata subdivide the development into 27 lots and Torrens title subdivide the lot known as 15 Wells Avenue, Tempe is determined by the granting of consent subject to the conditions at Annexure “A”.
3. Exhibits 1 and O (the reduced scale copy of the plans) are retained.

T A Bly

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Architecture and Building Works Pty Ltd v Marrickville Council

15-25 Edgar Street and 15-17 Wells Avenue, Tempe

DESCRIPTION OF DEVELOPMENT

To demolish the dwelling houses and associated outbuildings at 15, 17, 19, 21 and 23 Edgar Street; consolidate the land into one allotment; and erect a residential development containing twenty seven (27) townhouses and the dwelling house at 15 Wells Avenue which is to be retained and restored, with basement and ground level car parking for 35 vehicles; strata subdivide the development into 27 lots and Torrens tile subdivide the lot known as 15 Wells Avenue, Tempe.

PART A - DEFERRED COMMENCEMENT CONSENT

The consent will not operate and it may not be acted upon until the Council or its delegate is satisfied as to the following matters:

1. Any required approval is to be obtained pursuant to the Heritage Act 1977 to clear the vegetation from the quarry cliff face the subject of Interim Heritage Order No. 2 gazetted by Marrickville Council on 21 August 2009 (“the Quarry Cliff Face”).

2. (a) After clearing the Quarry Cliff Face of vegetation, a report is to be prepared by a qualified and experienced geotechnical engineer (referred to in this consent as “the Geotechnical Report”). The Geotechnical Report is to:

(i) Detail the methods (including, if necessary, detailed drawings, sections and specifications) and provide recommendations for the necessary works required to stabilise the Quarry Cliff Face. All stablisation methods and recommendations in the Geotechnical Report are to give due consideration to the heritage significance of the Quarry Cliff Face.

(ii) Include detailed drawings, sections and specifications for all proposed site excavations and other site earthworks. Also to be included is an appropriate 'method statement' and an overall site management plan of the earthworks arrangements. The detailed drawings, sections, and method statement are to be prepared by a suitably qualified and experienced civil engineer and are to be verified by a suitably qualified and experienced geotechnical engineer.

(b) If the Geotechnical Report recommends that any anchors (including rock bolts, passive dowels or the like) be installed within the ground underneath any adjoining properties the written permission of the owners of such properties must be submitted with the Geotechnical Report. This requirement applies to any form of temporary or permanent anchor, as well as any anchors contemplated under the Wells Avenue road reserve, and the pathway near No. 16 Wells Avenue.

Reason

Evidence of the above matters must be produced to the Council or its delegate within two (2) years from the date of this determination otherwise the Consent will not operate.

PART B - CONDITIONS OF CONSENT

Once operative the consent is subject to the following conditions:

GENERAL

1. The development must be carried out in accordance with plans and details listed below:

Plan No. and Issue Plan/
Certificate
Type Date Issued Prepared by

A-010 (Issue A3) Site Plan 30 October 2009 Architecture and Building Works

A-011 (Issue A2) Basement Car Park 12 October 2009 Architecture and Building Works

A-012 (Issue A2) Ground Floor Plan 12 October 2009 Architecture and Building Works

A-013 (Issue A3) First Floor Plan 30 October 2009 Architecture and Building Works

A-014 (Issue A3) Roof Plan 30 October 2009 Architecture and Building Works

A-015 (Issue A1) 15 Wells Ave Plans and Elevations 11 October 2009 Architecture and Building Works

A-020 (Issue A3) Elevations 01 30 October 2009 Architecture and Building Works

A-021 (Issue A2) Elevations 02 12 October 2009 Architecture and Building Works

A-022 (Issue A2) Elevations 03 12 October 2009 Architecture and Building Works

A-023 (Issue A3) Elevations 04 30 October 2009 Architecture and Building Works

A-030 (Issue A2) Sections 12 October 2009 Architecture and Building Works

A-031 (Issue A1) Section Detail 30 October 2009 Architecture and Building Works

09_099 L001 Landscape Plan 12 October 2009 Habitation

09_099 L002 Landscape Plan 12 October 2009 Habitation

09_099 L003 Landscape Plan 12 October 2009 Habitation

- Materials and Finishes 11 October 2009 Architecture and Building Works

274823M BASIX Certificate 13 October 2009 Department of Planning

with the application for development consent and as amended by the following conditions.

Reason: To confirm the details of the application submitted by the applicant.

2. The townhouses on the property known as 15-25 Edgar Street, Tempe being used exclusively as a single dwellings and not being adapted for use as backpackers’ accommodation, serviced apartments or a boarding house and not being used for any industrial or commercial purpose.

Reason: To ensure that the premises are used exclusively as single dwellings.

3. The dwelling on the property known as 15 Wells Avenue, Tempe being used exclusively as a single dwelling house and not being adapted for use as a residential flat building or boarding house and not being used for any industrial or commercial purpose.

Reason: To ensure that the premises are used exclusively as a single dwelling house.

4. A total of twenty seven (27) off-street car parking spaces being provided and maintained on the property known as 15-25 Edgar Street, Tempe prior to the commencement of the use.

Reason: To confirm the details of the application as submitted by the applicant.

5. Seven (7) visitor car parking spaces required as part of the total parking required under condition 4 being provided and marked as visitor car parking spaces. A sign legible from the Edgar Street shall be permanently displayed to indicate that visitor parking is available on site.

Reason: To ensure that visitor car parking spaces are provided and marked accordingly and that visitors are advised and directed to such parking.

6. A minimum of three (3) adaptable dwellings being provided in accordance with Marrickville Development Control Plan No. 31 - Equity of Access and Mobility. One disabled parking space being allocated to each adaptable dwelling.

Reason: To make reasonable provision in the development to provide residential accommodation suitable for people with a disability.

7. All parking spaces being used exclusively for parking and not for storage or any other purpose.

Reason: To ensure adequate manoeuvrability to all car parking spaces and that the spaces are used exclusively for parking.

8. Noise and vibration from the use and operation of any plant and equipment and/or building services associated with the premises not giving rise to "offensive noise' as defined by the Protection of the Environment Operations Act 1997. In this regard the roller door to the car parking entry is to be selected, installed and maintained to ensure their operation does not adversely impact on the amenity of the surrounding neighbourhood.

Reason: To protect the amenity of the surrounding neighbourhood.

9. All building work shall be carried out in accordance with the provisions of the Building Code of Australia.

Reason

10. The developer is to liaise with the Sydney Water Corporation, the Energy Australia, AGL and Telstra concerning the provision of water and sewerage, electricity, natural gas and telephones respectively to the property.

Reason: To ensure that the development is adequately serviced.

11. Any adjustment or augmentation of any public utility services including Gas, Water, Sewer, Electricity, Street lighting and Telecommunications required as a result of the development shall be at no cost to Council and undertaken before occupation of the site.

Reason

12. Should the proposed development require the provision of an electrical substation, such associated infrastructure shall be incorporated wholly within the development site. Before proceeding with your development further, you are directed to contact Energy Australia directly with regard to the possible provision of such an installation on the property.

Reason

13. Owners and occupants of the proposed building shall not be eligible for any existing or future resident parking scheme for the area. The person acting on this consent being responsible to advise any purchaser or prospective tenant of this condition.

Reason

BEFORE COMMENCING DEMOLITION, EXCAVATION AND/OR BUILDING WORK

For the purpose of interpreting this consent, a Principal Certifying Authority (PCA) means a principal certifying authority appointed under Section 109E(1) of the Environmental Planning and Assessment Act 1979. Pursuant to Section 109E(3) of the Act, the PCA is principally responsible for ensuring that the works are carried out in accordance with the approved plans, conditions of consent and the provisions of the Building Code of Australia.

14. No work shall commence until:

a) A PCA has been appointed. Where an Accredited Certifier is the appointed, Council shall be notified within two (2) days of the appointment; and

b) A minimum of two (2) days written notice given to Council of the intention to commence work.

Reason: To comply with the provisions of the Environmental Planning and Assessment Act.

15. No works shall commence, and a Construction Certificate must not be issued, until the necessary approvals under section 63 of the Heritage Act 1977 have been granted to undertake any development, works or excavation to, in or around the items the subject of Interim Heritage Orders No. 2, 3 and 4 gazetted by Marrickville Council on 21 August 2009 that apply to the site the subject of this development consent.

Reason

16. An archival record of the dwelling house at 21 Edgar Street, Tempe being carried out in accordance with the Guidelines for Archival and Photographic Recording of Heritage Items prepared by the (former) NSW Heritage Office, to the satisfaction of Council's Heritage and Urban Design Advisor before a Construction Certificate is issued. Either film or digital processes may be used. The record is to include measured drawings showing at least the floor plan and elevations. Also to be included is a full historic title search showing the ownership and successive subdivisions, with copies of maps, from the initial land grant to the most recent transaction. One bound A4 copy in a durable folder and one unbound copy of the final archival record, together with digital images on CD if the digital method is used, shall be submitted to Marrickville Council before a Construction Certificate is issued.

Reason: To ensure that the dwelling house is appropriately recorded for future reference.

17. An Archival Record of the items the subject of Interim Heritage Orders No. 2 and No. 3 gazetted by Marrickville Council on 21 August 2009 being undertaken in accordance with the Guidelines for Archival and Photographic Recording of Heritage Items prepared by the (former) NSW Heritage Office, to the satisfaction of Council's Heritage and Urban Design Advisor before a Construction Certificate is issued. Either film or digital processes may be used. One bound A4 copy in a durable folder and one unbound copy of the final archival record, together with digital images on CD if the digital method is used, shall be submitted to Marrickville Council before a Construction Certificate is issued.

Reason

18. Deleted.

19. A conservation policy supported as appropriate by a schedule of conservation works and an inspection and maintenance schedule for the items the subject of Interim Heritage Orders No. 2 and No. 3 gazetted by Marrickville Council on 21 August 2009 being prepared by a suitably qualified heritage consultant to ensure the ongoing long-term maintenance of those items. These documents to form part of the Owners’ Corporation by-laws. Details of the conservation policy and schedules are to be submitted to and approved by Council's Heritage and Urban Design Advisor before a Construction Certificate is issued. Two copies of the approved documents are to be provided to Marrickville Council.

Reason

20. Should any historical relics be discovered on the site during excavation, all excavation or disturbance to the area is to stop immediately and the Heritage Council of NSW is to be informed in accordance with Section 146 of the Heritage Act 1977.

Reason

21. An Interpretation Plan for the site informed by the (former) Heritage Office publication “Heritage Interpretation Policy” being prepared by a suitably qualified heritage consultant and submitted to the satisfaction of Council's Heritage and Urban Design Advisor before a Construction Certificate is issued.

Reason

22. A Construction Certificate shall be obtained before commencing building work. Building work means any physical activity involved in the construction of a building. This definition includes the installation of fire safety measures.

Reason

23. Sanitary facilities are to be provided at or in the vicinity of the work site in accordance with the WorkCover Authority of NSW, Code of Practice ‘Amenities for Construction’. Each toilet shall be connected to the sewer, septic or portable chemical toilet before work commences. Facilities are to be located so that they will not cause a nuisance.

Reason: To ensure that sufficient and appropriate sanitary facilities are provided on the site.

24. All demolition work shall:

a) Be carried out in accordance with the requirements of Australian Standard AS 2601 ‘The demolition of structures’ and the Occupational Health and Safety Act and Regulations; and
b) Where asbestos is to be removed it shall be done in accordance with the requirements of the WorkCover Authority of NSW and disposed of in accordance with requirements of the Department of Environment and Climate Change.

Reason

25. Where any loading, unloading or construction is to occur from a public place, Council’s Technical Services Division shall be contacted to determine if any permits or traffic management plans are required to be obtained from Council before work commences.

Reason: To protect the amenity of the area.

26. All services in the buildings being demolished are to be disconnected in accordance with the requirements of the responsible authorities before work commences.

Reason

27. The site shall be enclosed with suitable fencing to prohibit unauthorised access. The fencing shall be erected as a barrier between the public place and any neighbouring property, before work commences.

Enquiries for site fencing and hoardings in a public place, including the need for Council approval, can be made by contacting Council's Technical Services Division.

Reason: To secure the area of the site works maintaining public safety.

28. A rigid and durable sign shall be erected in a prominent position on the site, before work commences. The sign is to be maintained at all times until all work has been completed. The sign is to include:

a) The name, address and telephone number of the PCA;

b) A telephone number on which Principal Contractor (if any) can be contacted outside working hours; and

c) A statement advising: ‘Unauthorised Entry To The Work Site Is Prohibited’.

Reason

29. A Soil and Water Management Plan shall be prepared in accordance with Landcom Soils and Construction, Volume 1, Managing Urban Stormwater (Particular reference is made to Chapter 9, “Urban Construction Sites”) and submitted to and accepted by the PCA. A copy of this document shall be submitted to and accepted by PCA before work commences. The plan shall indicate:

a) Where the builders materials and waste are to be stored;

b) Where the sediment fences are to be installed on the site;

c) What facilities are to be provided to clean the wheels and bodies of all vehicles leaving the site to prevent the tracking of debris and soil onto the public way,

d) How access to the site will be provided.

All devices shall be constructed and maintained on site while work is carried out.

Reason

30. The person acting on this consent being responsible for arranging and meeting the cost of a dilapidation survey and report prepared by a suitably qualified person (“the DSR”). The DSR is to be submitted to and accepted by the Council or the PCA before a Construction Certificate is issued. The DSR shall include all of the buildings and structures on the immediately adjoining properties including 11 and 13 Edgar Street, Tempe and 16 Wells Avenue, Tempe, and the sandstone wall that divides the upper and lower sections of the road reserve in Wells Avenue. The DSR is to be by both descriptive and photographic means and agreed with the various property owners. In the event that the consent of the adjoining property owners cannot be obtained to a DSR in respect of their properties, copies of the letter/s that have been sent via registered mail and any responses received shall be forwarded to the PCA. A copy of the DSR is to be provided to each of the property owners and the Council and the PCA before a Construction Certificate is issued.

Reason

31. Before the commencement of any works and prior to the issue of the Occupation Certificate a joint inspection of the rail infrastructure and property in the vicinity of the project is to be carried out by representatives from RailCorp and the person acting on this consent. These dilapidation surveys will establish the extent of any existing damage and enable any deterioration during construction to be observed. The submission of a detailed dilapidation report will be required unless otherwise notified by RailCorp.

Reason: To confirm the terms of RailCorp’s concurrence.

32. The person acting on this consent shall provide an accurate survey locating the development with respect to the rail boundary and rail infrastructure before commencing any works. The survey is to be undertaken by a registered surveyor to the satisfaction of RailCorp's representative.

Reason: To confirm the terms of RailCorp’s concurrence.

33. The person acting on this consent must submit any proposals to RailCorp for the use of lights, signs and reflective materials, whether permanent or temporary, in the proximity of the RailCorp’s facilities before commencing any works.

Reason: To confirm the terms of RailCorp’s concurrence.

34. The person acting on this consent shall obtain RailCorp's endorsement before the installation of any hoarding or scaffolding along the common boundary with the rail corridor.

Reason: To confirm the terms of RailCorp’s concurrence.

35. A Risk Assessment/Management Plan and detailed Safe Work Method Statements (SWMS) for the proposed works are to be submitted to RailCorp for review and comment prior to the works commencing on site. It should be noted that RailCorp's representative may impose conditions on the methods to be used and require the provision of on-site Safe Working supervision for certain aspects of the works.

Reason: To confirm the terms of RailCorp’s concurrence.

36. The person acting on this consent is required to submit to RailCorp for its endorsement a plan showing all craneage and other aerial operations for the development.

Reason: To confirm the terms of RailCorp’s concurrence.

37. Final construction details of any proposed piling, sheet piling, batter, walls, levee walls and footings are to be provided to RailCorp for review and comment prior to work commencing.

Reason: To confirm the terms of RailCorp’s concurrence.

37A Prior to the commencement of works appropriate fencing shall be installed along the rail corridor to prevent unauthorised access to the rail corridor. Details of the type of fencing and the method of erection are to be to RailCorp’s satisfaction prior to the fencing work being undertaken. RailCorp may provide supervision, at the developer’s cost, to ensure the fencing is erected in a safe manner.

Reason: To confirm the terms of RailCorp’s concurrence.

38. The person acting on this consent shall apply as required for all necessary permits including crane permits, road opening permits, hoarding permits, footpath occupation permits and/or any other approvals under Section 68 (Approvals) of the Local Government Act, 1993 or Section 138 of the Roads Act, 1993.

Reason

39. Where it is proposed to carry out works in public roads or Council controlled lands, a road opening permit shall be obtained from Council before the carrying out of any works in public roads or Council controlled lands. Restorations shall be in accordance with Marrickville Council's Restorations Code. Failure to obtain a road opening permit for any such works will incur an additional charge for unauthorised openings in the amount of $1,939.85, as provided for in Council’s adopted fees and charges.

Reason

40. The person acting on this consent shall provide details of the means to secure the site and to protect the public from the construction works. Where the means of securing the site involves the erection of fencing or a hoarding on Council’s footpath or road reserve the person acting on this consent shall submit a hoarding application and pay all relevant fees before commencement of works.

Reason

41. A detailed Traffic Management Plan to cater for construction traffic shall be submitted to and approved by Council before commencement of works. Details shall include proposed truck parking areas, construction zones, crane usage, truck routes etc.

Reason

42. The person acting on this consent shall submit a dilapidation report including colour photos showing the existing condition of the footpath and roadway adjacent to the site before the commencement of works (including any demolition works).

Reason

43. Alignment levels for the site at all pedestrian and vehicular access locations shall be obtained from Council's Director, Technical Services before the commencement of construction. The alignment levels shall match the existing back of footpath levels at the boundary. Failure to comply with this condition will result in vehicular access being denied.

Reason

BEFORE THE ISSUE OF A CONSTRUCTION CERTIFICATE

For the purpose of interpreting this consent the Certifying Authority (Council or an Accredited Certifier) is that person appointed to issue a Construction Certificate.

44. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to "Your Business" section of Sydney Water's website at then the "e-developer" icon or telephone 13 20 92.

Following application a “Notice of Requirements” will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

Sydney Water written advice that you have obtained the Notice of Requirements must be submitted to Council’s satisfaction before the issue of a Construction Certificate.

Reason: To comply with the requirements of that Act.

45. The separate lots comprising the development (including 15 Wells Avenue, Tempe) being consolidated into one lot and under one title and registered at the Land Titles Office before the issue of a Construction Certificate.

Reason

46. Detailed construction plans of the "Keep Clear" pavement markings and " Do Not Queue Across intersection" signage proposed at the intersection of Unwins Bridge Road and Edgar Street by the additional Traffic Assessment Report prepared by Varga Traffic Planning Pty Ltd, dated 27 October 2009, being submitted to and approved by Council before the issue of a Construction Certificate.

Reason

47. Amended plans being submitted to and approved by Council before the issue of a Construction Certificate indicating an additional waste storage area being provided in the basement level of car parking. The additional waste storage area is to be provided on the north western side of the basement in the proximity of dwelling C.05.

Reason: To ensure reasonable and equitable access to waste storage areas.

48. Amended plans being submitted to and approved by Council before the issue of a Construction Certificate indicating the lower section of the western wall of dwelling A.05 which fronts the at grade visitor car park (below the frosted glass feature window) consisting of a horizontal stone feature wall.

Reason: To provide varied materials to reduce the visual mass of this wall and improve the general appearance of the development.

49. Before the issue of the Construction Certificate an amended plan shall be submitted to Council indicating:

Reason: To ensure that the premises are accessible to all persons.

50. Bicycle storage with the capacity to accommodate a minimum of three (3) bicycles being provided in accordance with the requirements set out within Marrickville Development Control Plan No. 19 - Parking Strategy, in accordance with details to be submitted to the Certifying Authority’s satisfaction before the issue of a Construction Certificate.

Reason

51. Lighting details of the pedestrian areas, parking areas and all entrances being submitted to the Certifying Authority’s satisfaction before the issue of a Construction Certificate.

Reason: To ensure appropriate lighting is provided to create a safe living environment.

52. Plans and specifications fully reflecting the selected commitments listed in BASIX Certificate submitted with the application for development consent being submitted to the Certifying Authority’s satisfaction before the issue of a Construction Certificate.

Note : The application for the Construction Certificate must be accompanied by either the BASIX Certificate upon which development consent was granted or a revised BASIX Certificate (Refer to Clause 6A of Schedule 1 to the Regulation)

Reason

53. Reticulated gas infrastructure, with a separate meter for each dwelling being provided to each dwelling in accordance with details to be submitted to the Certifying Authority’s satisfaction before the issue of a Construction Certificate.

Reason: To provide the potential to reduce greenhouse emissions.

54. Each dwelling is to contain a hot water system with a minimum 3.5 star Greenhouse rating and being fitted out with AAA rated showerheads, basin and kitchen sinks and dual flush toilets in accordance with details to be submitted to the Certifying Authority’s satisfaction before the issue of a Construction Certificate.

Reason

55. Letterboxes and mail collection facilities being provided and adequately protected in accordance with details to be submitted to the satisfaction of the Certifying Authority before the issue of a Construction Certificate.

Reason: To ensure adequate mail collection facilities are provided.

56. Noise attenuation measures being incorporated into the development complying with Australian Standard 2021-2000 in relation to interior design sound levels, in accordance with details to be submitted to the Certifying Authority’s satisfaction before the issue of a Construction Certificate together with certification by a suitably qualified acoustical engineer that the proposed noise attenuation measures satisfy the requirements of Australian Standard 2021-2000.

Reason: To reduce noise levels within the proposed development from aircraft.

57. Evidence of payment of the building and construction industry Long Service Leave Scheme shall be submitted to and accepted by the Certifying Authority (Council or an Accredited Certifier) before the issue of a Construction Certificate. The required payment of $22,750 can be made at the Council Offices. This fee has been based on an estimated cost of works of $6,500,000.

Reason: To ensure that the appropriate levy (0.35% of the cost of the building and construction work costing $25,000 or more) is paid in accordance with the Building and Construction Industry Long Service Payments Act.

58. A total monetary contribution of $338,365.72 has been assessed as the contribution for the development under Section 94 of the Environmental Planning and Assessment Act 1979 and Marrickville Section 94 Contributions Plan 2004 (a copy of which may be inspected at the offices of the Council). The contribution is towards:-

a) $166,378.67 Section 94 Contributions Plan 2004 for Tempe Area - Open Space, Park Infrastructure and Sports Facilities;
b) Council wide projects:
(i) $23,768.38 Cooks River;
(ii) $23,768.38 Tempe Reserve/Tempe Lands;
(iii) $11,884.19 Civic Centre; and
(iv) $11,884.19 Street Tree Master Plan.
c) $57,464.00 Public Libraries and Community Recreation Facilities;
d) $35,287.46 Section 94 Contributions Plan 2004 for Tempe Area - Traffic Management; and
e) $7,930.45 Plan Administration.

The monetary contributions above are the Council’s adopted contributions under the current Fees and Charges Schedule. Under Marrickville Contributions Plan 2004, contributions will be adjusted at the time of payment in line with any change in the Consumer Price Index: All Groups Index Number for Sydney provided by the Australian Bureau of Statistics. The adjusted contribution payable will be the rate in the Council’s adopted Fees and Charges Schedule for the financial year in which the contribution is paid.

The contribution (as adjusted) must be paid to the Council in cash or by unendorsed bank cheque (from an Australian Bank only) or EFTPOS (Debit only) before the issue of a Construction Certificate . Under Marrickville Section 94 Contributions Plan 2004 payment of Section 94 contributions CANNOT be made by Personal Cheque, Company Cheque or Credit Card.

NB: The above Contributions apply to end of Financial Year 2009/2010 after which the Contributions will be indexed.

Reason : To ensure provision is made for the increased demand for public amenities and services required as a consequence of the development being carried out.

59. Deleted.

60. All excavation and construction works along the boundary or adjacent to the RailCorp land are to be undertaken in accordance with the methodology and recommendations detailed in the Geotechnical Report 09/0287A prepared by SMEC Testing Services Pty Ltd dated August 2009, correspondence by SMEC Testing Services Pty Ltd dated 13 October 2009, and shoring diagram 5876SH1 prepared by John Romanous & Associates Pty Ltd dated 14 October 2009, in addition to the following RailCorp requirement that:

Demolition of the existing buildings and basement excavation for the new development should be carried out in a way to minimise generated vibration to prevent any adverse effect on the railway embankment.
That a slope stability analysis conducted on the proposed batter slope, taking into account ground water level and its effects on the proposed design and RailCorp on property be prepared and submitted to Council and RailCorp before the issue of a Construction Certificate.
No rock anchors/bolts are to be installed into RailCorp's property.

A Construction Certificate shall not be issued until the measures detailed in this condition of consent have been incorporated into the construction drawings and specifications. Prior to the commencement of works the Principal Certifying Authority shall provide verification to RailCorp that this condition has been complied with.

Reason: To confirm the terms of RailCorp’s concurrence.

61. The following items are to be submitted to RailCorp for review and endorsement before the issue of a Construction Certificate:

Final construction details of any proposed piling, sheet piling, batter, walls, levee walls and footings.
Final construction methodology with details pertaining to structural support during excavation.
Track monitoring details proposed to be installed during excavation and construction phases.
A rail safety plan including instrumentation and the monitoring regime.

Prior to the commencement of works

Reason: To confirm the terms of RailCorp’s concurrence.

62. An acoustic assessment is to be submitted to Council before the issue of a Construction Certificate demonstrating how the proposed development will comply with the Department of Planning's Development Near Rail Corridors and Busy Roads Interim Guideline (2008). A Construction Certificate must not be issued until the measures recommended in the Acoustic Report have been incorporated into the design.

Reason

: To confirm the terms of RailCorp’s concurrence.

63. Before the issue of a Construction Certificate the person acting on this consent is to procure a report on the Electrolysis Risk to the development from stray currents, and the measures that will be taken to control that risk. The person acting on this consent is advised to consult an Electrolysis expert. A Construction Certificate must not be issued until the measures recommended in the Electrolysis report have been incorporated into the design.

Reason

: To confirm the terms of RailCorp’s concurrence.

64. Given the possible likelihood of objects being thrown onto the rail corridor from balconies the person acting on this consent is required to install adequate measures or to enclose balconies that are within 20m of the rail corridor. The measures to be utilised are to be endorsed by RailCorp before the issue of a Construction Certificate.

Reason

: To confirm the terms of RailCorp’s concurrence.

65. The person acting on this consent is required to install mechanisms that limit the opening of windows or provide awning windows to prevent the throwing of objects onto the rail corridor. The measures to be utilised are to be endorsed by RailCorp before the issue of a Construction Certificate.

Reason

: To confirm the terms of RailCorp’s concurrence.

66. Before the issue of a Construction Certificate the person acting on this consent must hold current public liability insurance cover for a sum to be determined by RailCorp. This insurance shall not contain any exclusion in relation to works on or near the rail corridor. The person acting on this cosnent is to contact RailCorp's Rail Corridor Management Group to obtain the level of insurance required for this particular proposal. Prior to issuing the Construction Certificate the Principal Certifying Authority must witness written proof of this insurance in conjunction with RailCorp’s written advice to the person acting on this consent on the level of insurance required.

Reason

: To confirm the terms of RailCorp’s concurrence.

67. Where a condition of consent requires RailCorp's endorsement the Principal Certifying Authority shall not issue a Construction Certificate or Occupancy Certificate, as the case may be, until written confirmation has been received from RailCorp that the particular condition has been complied with.

Reason

: To confirm the terms of RailCorp’s concurrence.

68. Before the issue of a Construction Certificate the owner or builder shall sign a written undertaking that they shall be responsible for the full cost of repairs to footpath, kerb and gutter, or other Council property damaged as a result of construction of the proposed development. Council may utilise part or all of any Building Security Deposit (B.S.D.) or recover in any court of competent jurisdiction, any costs to Council for such repairs.

Reason

69. The person acting on this consent shall provide security in a manner satisfactory to the Director Technical Services in the amount of $13,000 before the issue of a Construction Certificate as surety for the proper completion of the footpath and/or vehicular crossing works (including any approved intersection works at the corner of Unwins Bridge Road and Edgar Street) required as a result of this development.

Reason

SITE WORKS

69A. The site stabilisation, excavation and site works are to be carried out strictly in accordance with the Geotechnical Report approved by condition 2 of Part A of this Determination.

Reason: To ensure that site stabilisation, excavation and site works are carried out to a satisfactory standard.

70. All excavation, demolition, construction, and deliveries to the site necessary for the carrying out of the development, are restricted to between 7.00am to 5.30pm Mondays to Saturdays, excluding Public Holidays. Notwithstanding the above no work being carried out on any Saturday that falls adjacent to a Public Holiday. Excavation, piling, shoring or drilling shall not take place before 8am Monday to Saturday.

Reason: To minimise the effect of the development during the construction period on the amenity of the surrounding neighbourhood.

71. All excavated materials being assessed for contaminants prior to off site disposal with any contaminated material/soil being disposed of in accordance with the requirements of the New South Wales Department of Environment and Climate Change.

Reason: To provide for correct disposal of wastes.

72. The area surrounding the building work being reinstated to Council's satisfaction upon completion of the work.

Reason

73. The placing of any materials on Council’s footpath or roadway is prohibited, without the consent of Council. The placement of waste storage containers in a public place requires Council approval and shall comply with Council’s Policy – ‘Placement of Waste Storage Containers in a Public Place’. Enquiries are to be made with Council’s Technical Services Division.

Reason: To ensure the public ways are not obstructed and the placement of waste storage containers in a public place are not dangerous to the public.

74. The works are required to be inspected at critical stages of construction, by the PCA or if the PCA agrees, by another certifying authority. The last inspection (d) can only be carried out by the PCA. The critical stages of construction are:

a) At the commencement of the building work, and
b) For Class 2, 3 and 4 buildings, prior to covering waterproofing in any wet areas (a minimum of 10% of wet areas within a building), and
c) Prior to covering any stormwater drainage connections, and after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
d) After the building work has been completed and prior to any occupation certificate being issued in relation to the building.

You are advised to liaise with your PCA to establish if any additional inspections are required.

Reason: To ensure the building work is carried out in accordance with the Environmental Planning and Assessment Regulations and the Building Code of Australia.

75. If it is necessary to excavate below the level of the base of the footings of a building on the adjoining allotments, including a public place such as footways and roadways, the person acting on this consent shall ensure;

before works continue on site

before work commences

Reason: To ensure that adjoining buildings are preserved, supported and the condition of the buildings on the adjoining property catalogued for future reference in the event that any damage is caused during work on site.

76. The proposed excavations in the vicinity of No. 13 Edgar Street and No. 16 Wells Ave being undertaken by such means and methods as may be necessary to limit ground vibrations to the limits set out in Conditions No. 77 and 78 and maintain the excavation in a stable condition and any necessary excavation stabilisation works to be in accordance with the recommendations of a qualified and experienced geotechnical engineer.

Reason: To minimise the effects of vibration on adjoining dwelling houses during excavation.

77. The site stabilisation, site earthworks and excavations being undertaken in such a manner that the ground vibrations induced by the site works, excavation equipment and machinery are limited to a maximum Peak Particle Velocity [PPV] during excavation processes to 5mm/sec at the site boundaries, and 3mm/sec in the vicinity of the buildings / structures on the adjoining properties.

Reason: To minimise the effects of vibration on adjoining dwelling houses during excavation.

78. The ground vibrations induced by the machinery and equipment used to create the site excavations are to be the subject of comprehensive monitoring and review by an appropriately qualified and experienced acoustic engineer. Such monitoring and review shall include at least the installation of appropriate monitoring equipment on the buildings and structures close to the site being No. 13 Edgar Street & No. 16 Wells Avenue during such time as the equipment is inducing ground vibrations in the foundation strata under these buildings and structures.

Reason: To minimise the effects of vibration on adjoining dwelling houses during excavation.

79. The results of the monitoring and review by the qualified and experienced acoustic engineer required by condition 78 are to be provided during the course of the site excavations to both the PCA and a qualified and experienced geotechnical engineer. At the conclusion of the site excavations and monitoring, both the acoustic engineer and the geotechnical engineer are to provide a certificate to the PCA to the effect that:

Reason: To minimise the effects of vibration on adjoining dwelling houses during excavation.

80. All vehicles carrying materials to, or from the site must have their loads covered with tarpaulins or similar covers.

Reason: To ensure dust and other particles are not blown from vehicles associated with the use.

81. A certificate of survey from a registered land surveyor shall be submitted to the PCA upon excavation of the footings and before the pouring of the concrete to verify that the structure will not encroach on the allotment boundaries.

Reason: To ensure all works are contained within the boundaries of the allotment.

82. No metal ladders, tapes, scaffolding and plant/machinery, or conductive material are to be used within 6 horizontal metres of any live electrical equipment. This applies to the train pantographs and 1500V catenary, contact and pull-off wires of the adjacent tracks, and to any high voltage aerial supplies within or adjacent to the rail corridor.

Reason: To confirm the terms of RailCorp’s concurrence.

83. Given the site's location next to the rail corridor, drainage from the development must be adequately disposed of/managed and not allowed to be discharged into the corridor unless prior approval has been obtained from RailCorp.

Reason: To confirm the terms of RailCorp’s concurrence.

84. During excavation the person acting on this consent is to observe extreme care to prevent water from collecting on or near RailCorp infrastructure.

Reason: To confirm the terms of RailCorp’s concurrence.

85. All roof and surface stormwater from the site any catchment external to the site that presently drains to it, shall be collected in a system of pits and pipelines/channels and major storm event surface flow paths and being discharged to a Council controlled stormwater drainage system in accordance with the requirements of Marrickville Council Stormwater and On Site Detention Code. The maximum discharge allowable to Council's street gutter is 25 litres/second.

Reason

86. The on site detention and water re-use systems shall be constructed in accordance with stormwater drainage plans (Dwg No. 857-S1/4 to 857-S4/4) prepared by John Romanous and Associates Pty Ltd.

Reason

BEFORE OCCUPATION OF THE BUILDING

87. Occupation of the building shall not be permitted until such time as:

a) All preconditions to the issue of an Occupation Certificate specified in this development consent have been met;
b) The building owner obtains a Final Fire Safety Certificate certifying that the fire safety measures have been installed in the building and perform to the performance standards listed in the Fire Safety Schedule; and
c) An Occupation Certificate has been issued.
Reason : To comply with the provisions of the Environmental Planning and Assessment Act.

88. The owner of the premises, as soon as practicable after the Final Fire Safety Certificate is issued, shall:

a) Forward a copy of the Final Safety Certificate and the current Fire Safety Schedule to the Commissioner of the New South Wales Fire Brigades and the Council; and
b) Display a copy of the Final Safety Certificate and Fire Safety Schedule in a prominent position in the building (i.e. adjacent the entry or any fire indicator panel).

Every twelve (12) months after the Final Fire Safety Certificate is issued the owner shall obtain an Annual Fire Safety Certificate for each of the Fire Safety Measures listed in the Schedule. The Annual Fire Safety Certificate shall be forwarded to the Commissioner and the Council and displayed in a prominent position in the building.

Reason: To ensure compliance with the relevant provisions of the Environmental Planning and Assessment Regulations and Building Legislation Amendment (Quality of Construction) Act.

89. A Section 73 Compliance Certificate from Sydney Water being submitted to Council before occupation of the premises.

Reason

90. On completion of the stabilisation works, excavation and earthworks the subject of the Geotechnical Report approved by condition 2 of Part A of this Determination, and prior to the issue of the Occupation Certificate for the development, the author of the Geotechnical Report is to provide the PCA with:

Reason : To appropriately monitor the installation of stabilisation works and to ensure the safety of the stabilised quarry face on completion of the works.

91. The landscaping of the site being carried out prior to occupation of the premises in accordance with the approved details and being maintained at all times to Council's satisfaction.

Reason: To ensure adequate landscaping is maintained.

92. (i) Upon completion of the required noise attenuation measures referred to in the “Before the Issue of a Construction Certificate” Section of this Determination and prior to the occupation of the dwellings a report being prepared and submitted to the Certifying Authority’s satisfaction by an accredited Acoustics Consultant, certifying that the final construction meets AS2021- 2000 as set down in the subject condition of this consent. Such report shall include external and internal noise levels to ensure that the external noise levels during the test are representative of the typical maximum levels that may occur at this development; and

(ii) Where it is found that internal noise levels are greater than the required dB(A) rating due to faulty workmanship or the like, necessary corrective measures shall be carried out and a further certificate being prepared and submitted to Council in accordance with the requirements as set down in Part (i) of this condition.

Reason: To reduce noise levels within the proposed dwellings from aircraft and to ensure that the proposed noise attenuation measures incorporated into the dwellings satisfactorily comply with the relevant sections of Australian Standard 2021-2000.

93. The Certifying Authority must be satisfied that each of the commitments listed in BASIX Certificate referred to in this Determination have been fulfilled before the issue of an Occupation Certificate (whether an interim or final Occupation Certificate).

Reason

94. The Certifying Authority must apply to the Director-General for a BASIX Completion Receipt within 2 days of the issue of a final Occupation Certificate. Completion Receipts can be applied for at

Reason

95. Compliance with the requirements of Marrickville Development Control Plan No. 32 - Energy Smart Water Wise is to be demonstrated via completion of Council's Green Checklist, which is to be completed by the Principal Certifying Authority (PCA) before the issue of the Occupation Certificate. If completed by a Private PCA, a copy of the completed checklist must be forwarded to Council for its records.

Reason

96. No encroachments onto Council’s road or footpath of any service pipes, sewer vents, boundary traps, downpipes, gutters, stairs, doors, gates, garage tilt up panel doors or any structure whatsoever shall not be permitted. Any encroachments on to Council road or footpath resulting from the building works will be required to be removed before occupation of the site.

Reason

97. The existing brick kerb adjacent to the site is of heritage significance and is to be preserved at no cost to Council. Any damage to the stone kerb will require the replacement of the damaged individual stone units before occupation of the site and at no cost to Council.

Reason

98. All works required to be carried out in connection with drainage, crossings, alterations to kerb and guttering, footpaths and roads resulting from the development (including any approved intersection works at the corner of Unwins Bridge Road and Edgar Street) shall be completed wholly at the developer’s expense before the issue of an occupation certificate. Works shall be in accordance with Council’s Standard crossing and footpath specifications and AUS-SPEC#2-“Roadworks Specifications”.

Reason

99. Heavy duty concrete vehicle crossings, in accordance with Council’s Standard crossing and footpath specifications and AUS-SPEC#2-“Roadworks Specifications” shall be constructed at the vehicular access locations before occupation of the site and at no cost to Council.

Reason

100. All redundant vehicular crossings to the site shall be removed and replaced by kerb and gutter and footpath paving in accordance with Council’s Standard crossing and footpath specifications and AUS-SPEC#2-“Roadworks Specifications” before occupation of the site and at no cost to Council. Where the kerb in the vicinity of the redundant crossing is predominately brick (as determined by Council's Engineer) the replacement kerb shall also be in brick.

Reason

101. The existing damaged or otherwise defective kerb and gutter, footpath and/or road pavement adjacent to the site shall be restored in accordance with Council’s Standard crossing and footpath specifications and AUS-SPEC#2-“Roadworks Specifications”, at no cost to Council and before occupation of the site.

Reason

102. The existing footpath in Edgar Street shall be reconstructed as a half width concrete footpath and nature strip (soft-leaf buffalo) in accordance with Council’s Standard crossing and footpath specifications and AUS-SPEC#2-“Roadworks Specifications”, at no cost to Council and before the occupation of the site.

Reason

103. Before occupation of the site written verification from a suitably qualified professional civil engineer, stating that all stormwater drainage and related work has been and constructed in accordance with the approved plans shall be submitted to and accepted by Council. In addition, full works-as-executed plans (in electronic form), prepared and signed by a registered surveyor, shall be submitted to Council. These plans must include levels for all drainage structures, buildings (including floor levels), finished ground levels and pavement surface levels. Certification of the stormwater system shall also include water proofing certificates for the storage tanks.

Reason

104. With the regard to the On Site Detention System (OSD), a Positive Covenant in accordance with supplement 7 of Marrickville Council Stormwater and On Site Detention Code shall be placed on the Title in favour of Council before occupation of the site.

Reason

105. All instruments under Section 88B of the Conveyancy Act used to create easements or right-of-ways shall include the condition that such easements or right-of-ways may not be varied, modified or released without the prior approval of Marrickville Council.

Reason

106. Prior to occupation of the site the person acting on this consent shall obtain from Council a compliance Certificate(s) stating that all Road, Footpath and Drainage Works required to be undertaken as a result of this development have been completed satisfactorily and in accordance with Council approved plans and specifications.

Reason

BEFORE THE ISSUE OF A SUBDIVISION CERTIFICATE FOR THE SUBDIVISION OF THE LAND INTO TWO LOTS (ONE LOT CONTAINING THE DWELLING HOUSE ON THE PROPERTY KNOWN AS 15 WELLS AVENUE, TEMPE AND THE OTHER LOT COMPRISING THE PROPERTIES KNOWN AS 15-25 EDGAR STREET, TEMPE)

107. The submission of a final survey plan and five (5) copies for the proposed subdivision.

Reason: To comply with Council's requirements.

108. The payment of the required fee, under Council’s adopted fees and charges, for the approval of the final plan under the terms of Section 109J of the Environmental Planning and Assessment Act.

Reason: To comply with the requirements of that Act.

109. The restoration works to the dwelling house at 15 Wells Avenue, Tempe being completed to Council's satisfaction before the issue of the Subdivision Certificate.

Reason: To ensure the restoration of the dwelling house at 15 Wells Avenue.

110. Compliance with the conditions of this Determination in so far as they relate to 15 Wells Avenue, Tempe with the development being completed in accordance with the approval to Council's satisfaction before the issue of the Subdivision Certificate.

Reason: To ensure compliance with the conditions of development consent in so far as they relate to 15 Wells Avenue, Tempe.

111. The person acting on this consent is to create a restriction on use under Section 88E of the Conveyancing Act 1919 to ensure that the two lots are associated with each other by virtue of this development consent. The instrument creating the restriction on user is to include in it a provision that the restriction may not be revoked or modified without the prior approval of Council and is to be registered at the Land Titles Office before the issue of the Subdivision Certificate.

Reason: To confirm the terms of Council’s approval.

BEFORE THE RELEASE OF A STRATA PLAN

112. The subdivision of the land into two (2) lots, one lot containing the dwelling house on the property known as 15 Wells Avenue and the other lot containing the development on the properties 15-25 Edgar Street, being registered at the NSW Department of Lands before the release of the Strata Plan.

Reason

113. The strata subdivision of the development being carried out in accordance with survey plans to be submitted to and approved by Council. Such plans to be submitted together with the required fee for the approval of the final plan under the Strata Schemes (Freehold Development) Act 1973, with each strata lot comprising a dwelling and one car space. One disabled space being allocated to each adaptable dwelling. Car spaces shall not be given separate strata lot numbers and all visitor parking spaces are to be included in common property.

Reason: To facilitate the subdivision of the land and to confirm the terms of Council's approval.

114. The submission of a final survey plan and four (4) copies for the proposed Strata subdivision.

Reason: To comply with Council's requirements.

115. All instruments under Section 88B of the Conveyancing Act used to create easements or right-of-ways shall include the condition that such easements or right-of-ways may not be varied, modified or released without the prior approval of Marrickville Council.

Reason: To ensure Council's interests are protected.

116. The payment of the required fee, under Council’s adopted fees and charges, for the approval of the final plan under the terms of the Strata Schemes (Freehold Development) Act 1973.

Reason: To comply with the requirements under the Environmental Planning and Assessment Act and the Strata Schemes (Freehold Development) Act 1973.

117. Compliance with the conditions of this Determination with the development being completed in accordance with the approval to Council's satisfaction before the release of the Strata Plan.

Reason: To ensure compliance with the conditions of development consent for the erection of the building.

___________________

T A Bly

Commissioner of the Court

CITATION:	Architecture & Building Works Pty Ltd v Marrickville Council [2009] NSWLEC 1409
PARTIES:	APPLICANT Architecture & Building Works Pty Ltd RESPONDENT Marrickville Council
FILE NUMBER(S):	10554 of 2009
CORAM:	Bly C
KEY ISSUES:	CONSENT ORDERS :- townhouse development, interim heritage order, curtilage, visual privacy, waste management, streetscape, resident objections.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	4 December 2009
DATE OF JUDGMENT:	8 December 2009
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan (barrister) SOLICITOR Conomos Legal RESPONDENT Ms A Hemmings (solicitor) SOLICITOR Corrs Lawyers

Plan No. and Issue	Plan/ Certificate Type	Date Issued	Prepared by
A-010 (Issue A3)	Site Plan	30 October 2009	Architecture and Building Works
A-011 (Issue A2)	Basement Car Park	12 October 2009	Architecture and Building Works
A-012 (Issue A2)	Ground Floor Plan	12 October 2009	Architecture and Building Works
A-013 (Issue A3)	First Floor Plan	30 October 2009	Architecture and Building Works
A-014 (Issue A3)	Roof Plan	30 October 2009	Architecture and Building Works
A-015 (Issue A1)	15 Wells Ave Plans and Elevations	11 October 2009	Architecture and Building Works
A-020 (Issue A3)	Elevations 01	30 October 2009	Architecture and Building Works
A-021 (Issue A2)	Elevations 02	12 October 2009	Architecture and Building Works
A-022 (Issue A2)	Elevations 03	12 October 2009	Architecture and Building Works
A-023 (Issue A3)	Elevations 04	30 October 2009	Architecture and Building Works
A-030 (Issue A2)	Sections	12 October 2009	Architecture and Building Works
A-031 (Issue A1)	Section Detail	30 October 2009	Architecture and Building Works
09_099 L001	Landscape Plan	12 October 2009	Habitation
09_099 L002	Landscape Plan	12 October 2009	Habitation
09_099 L003	Landscape Plan	12 October 2009	Habitation
-	Materials and Finishes	11 October 2009	Architecture and Building Works
274823M	BASIX Certificate	13 October 2009	Department of Planning