B Habibi and F Kazazi v Ku-ring-gai Municipal Council - [2004] NSWLEC 354

Land and Environment Court

of New South Wales

CITATION: B Habibi & F Kazazi v Ku-ring-gai Municipal Council [2004] NSWLEC 354

PARTIES: APPLICANT
B Habibi & F Kazazi
RESPONDENT
Ku-ring-gai Municipal Council

FILE NUMBER(S): 11524; 10163 of 2004 of 2003

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Riparian protection

LEGISLATION CITED: State Environmental Planning Policy No 55, (SEPP55) - State Environmental Planning Policy No 53, (SEPP53) - Ku-ring-gai Planning Scheme Ordinance, (KPSO) - Ku-ring-gai Dual Occupancy Development Control Code, (Code) - Ku-ring-gai Residential Good Design Manual, (DCP38) - Ku-ring-gai Notification Policy, (Policy) - Stormwater Management Manual (1993), (SMM) - Rivers and Foreshore Improvement Act 1948, (RFI Act)

CASES CITED:

DATES OF HEARING: 02/06/2004, 03/06/2004

DATE OF JUDGMENT: 07/07/2004

LEGAL REPRESENTATIVES:
APPLICANT:
Mr I Hemmings, barrister, instructed by Mr J Hones, solicitor
SOLICITORS:
Hones Lawyers
RESPONDENT:
Mr R K Graham, solicitor
SOLICITORS:
Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

7 July 2004

10524 of 2003 and 10163 of 2004

B Habibi & F Kazazi v Ku-ring-gai Municipal Council

JUDGMENT

1 Appeal No 11524 of 2003 is under s 97 of the Environmental Planning and Assessment Act 1979, and against the deemed refusal by Ku-ring-gai Municipal Council (the council) of an integrated development application to demolish the existing dwelling and to erect a detached dual-occupancy comprising two dwellings each with attached double garages at Lot 5, DP 21091, being No 37 Bareena Avenue, Wahroonga.

2 Appeal No 10163 of 2004 is under s 97 of the Environmental Planning and Assessment Act 1979, and against the deemed refusal by the council of an integrated development application to erect a new dwelling house at Lot 4, DP 263707, being No 39 Bareena Avenue, Wahroonga.

3 I visited both lots in company with the parties on the morning of the first day of the hearing.

4 I have concluded that the dwelling house application on Lot 4 should fail as it is proposed on ‘protected land’ under the Rivers and Foreshores Improvement Act 1948, (RFI Act), and would provide insufficient landscaping along the edge of ‘protected waters’ being the Spring Gully Creek that runs along the western side of Lot 4.

5 The detached-dual occupancy comprising two dwellings each with attached double garages on Lot 5 would be of satisfactory merit and is approved subject to conditions including general terms of approval similar to those required by the Department of Infrastructure Planning and Natural Resources, (DIPNR) for Lot 4.

The land

6 Both lots of land are situated on the northern side of Bareena Avenue close to the western end of the cul-de-sac in that avenue. The land comprising Lot 5 or No 37 Bareena Avenue is regular in shape with an area of 929m2, and has a frontage to Bareena Avenue of 15.24m and a depth of 60.96m. This parcel of land slopes down to the north from the kerb within the road reserve to the southern (street) boundary about 2m and then slopes down from the southern boundary to the northern boundary about 2.7m.

7 The land comprising Lot 4 or No 39 Bareena Avenue is triangular in plan with a frontage to Bareena Avenue of some 18.87m and a depth of 72.79m and an area of some 734.8m2. The creek bounds the hypotenuse.

8 Lot 4 is close to the F3 Freeway about 10m to the west.

9 In the ‘Ku-ring-gai Visual Character Study’ both lots are described as being located within an area characterised by single dwellings on single lots with the majority of construction being from the period between 1920-1945. A mix of architectural styles and periods are evident within the streetscape.

10 Development within Bareena Avenue mainly comprises of residential dwellings on large lots.

Relevant planning controls

State Environmental Planning Policy No 53—Metropolitan Residential Development, (SEPP53)

11 Under s 3 of SEPP53 the aims are:

(1) This Policy aims to encourage the provision of housing in metropolitan areas that will:

(a) broaden the choice of building types and locations available in the housing market, and

(b) make more efficient use of existing infrastructure and services, and

(c) reduce the consumption of land for housing and associated urban development on the urban fringe, and

(d) be of good design.

(2) These aims are to be achieved:

(a) by establishing planning controls that will provide opportunities for a variety of housing types, such as multi unit housing or multi unit housing combined with development for any other purpose to be developed in areas the councils of which have not adopted residential development strategies approved by the Minister, and

(b) by setting out design principles that, if followed, will achieve built form that responds to the characteristics of its site and location, and

(c) by encouraging councils to prepare and adopt residential development strategies and supporting local environmental plans and policies that will achieve those aims, and by allowing local government areas to be exempted from the whole or parts of this policy when those strategies and plans are in place.

(3) In addition, this Policy aims to simplify and streamline certain aspects of the planning system relating to residential development:

(a) by revising the provisions in a number of State environmental planning instruments to improve their operation, and

(b) by restating the revised provisions of those environmental planning instruments in a single policy written in a manner that is easy to understand.

12 Part 3 of SEPP53 applies to dual occupancy development and cl 15 sets out the objectives of this Part:

(a) to create opportunities for two dwellings to be developed on a single allotment of land, and
(b) through the other provisions of this Policy, to ensure that dual occupancy development is:
i. designed and assessed with a full understanding of the opportunities and constraints of each site, and
ii. designed and assessed having adequate regard for the design principles contained in Part 5.

13 Clause 19 of SEPP53 provides development standards including that the site area for two detached dwellings shall be a minimum of 600m2 and that the FSR of all dwellings proposed should not exceed 0.5:1. The proposal for Lot 5 complies with both standards.

14 Clause 20 of SEPP53 provides that the consent authority may not require more than one car space per dwelling of 150m2 or less or 2 spaces per dwelling of greater floor area.

15 Clause 21 of SEPP53 does not specifically permit subdivision of two dwelling sites, but it does not preclude subdivision if otherwise permitted by another instrument. In this regard, KPSO requires a minimum site area for the erection of a dwelling house, and does not contain minimum subdivision standards. Due to this anomaly, subdivision of the proposed dual occupancy would be permitted.

16 Part 5 of SEPP53 contains the ‘Design Requirements’ that are called up by cl 15(b)(ii).

17 Clause 32(b) of SEPP53 provides guidance for visual and acoustic privacy: “The proposed development should, where practicable, consider the visual and acoustic privacy of neighbours in the vicinity and residents by:

i. appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and
ii. ensuring acceptable noise levels in internal living and sleeping areas of new dwellings.

18 Clause 32(d) of SEPP53 provides guidance for stormwater: “The proposed development should, where possible:

i. control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters, and
ii. include, where practical, on-site stormwater detention or re-use for second quality water uses, and
iii. be designed with regard to the scope for on-site infiltration of water.

19 Clause 32(f) of SEPP53 provides guidance for accessibility: The proposed development should, where appropriate:

i. have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities, and
ii. provide attractive, yet safe, environments for pedestrians,' cyclists and motorists with convenient access and parking for residents and visitors, and
iii. where feasible, involve site layout and design that enables people with a disability to access, on one continuous accessible path of travel, the street frontage, car parking, and all buildings, facilities and open spaces within the site.

20 At the conclusion of the hearing there was no issue between the parties in this regard that could not be conditioned.

State Environmental Planning Policy No 55 - Remediation of Land, (SEPP55)

21 Under s 2 the object of this Policy is:

(1) The object of this Policy is to provide for a Statewide planning approach to the remediation of contaminated land.

(2) In particular, this Policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment:

(a) by specifying when consent is required, and when it is not required, for a remediation work, and

(b) by specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and

(c) by requiring that a remediation work meet certain standards and notification requirements.

22 There is no issue between the parties in respect of this matter.

Ku-ring-gai Planning Scheme Ordinance, (KPSO)
23 The land is zoned 2(c) Residential under the KPSO and under the land use table to cl 23, dwelling houses are permissible as Column 1 uses, “without consent”. All forms of multi dwelling development are prohibited.
24 The general aims as set out in Sch 9 of the KPSO for residential zones under the Planning Scheme are:
(a) To maintain and where appropriate, improve the existing amenity and environmental character of Residential zones; and
(b) To permit new residential development where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development.

25 Clause 43(3)(c) of the KPSO states:

(3) a dwelling house shall not be erected in Zone 2(c):

(c) on any irregularly shaped allotment, other than a hatchet shaped allotment, which has a width of less than 18 metres at a distance of 12.2 metres from the street alignment.

26 Clause 46 of the KPSO provides (1) that any building greater than 7m in height requires development consent and (2) that the maximum height of a dwelling house is 8m and the proposal would comply.

27 Clause 58A of the KPSO requires consent to be obtained for subdivision.

28 Clause 60C of the KPSO provides that the maximum built upon area of land is 60%.

Ku-ring-gai Dual Occupancy Development Control Code, (Code)

29 The Code was adopted in April 2003 and is relevant to Lot 5, being No 37 Bareena Avenue, and contains sections relating to stormwater management (Section 4.5), privacy (Section 4.3), Car Parking and Accessibility (Section 4.7). In relation to stormwater, the Code reflects Council's Stormwater Management Manual that states:

· The construction of any permanent structure (such as dwellings, garages, impervious fences, pools) or the placement of fill over a watercourse, drainage depression, piped drainage system or within the path of the 100 year flood is generally not permitted.

· A natural bushland and riparian zone of a minimum width of either 10 metres (or as otherwise specified by Council) on either side of the top of the bank of a non perennial watercourse or the 100 year flood zone as calculated by a consulting engineer, whichever is the greater, is not to be subject to development without consent of the council.

30 The proposal generally complies with the provisions of the Code except for the proposal to erect a dwelling on Lot 4 closer than 10m to the top of the bank of a creek. The side boundary and front boundary setbacks generally comply with the Code and there would be a small variation to the maximum built upon area requirement of 45%, at 48% according to the calculations of Ms Laidlaw, and a shortfall in the required area of soft landscaping. This non-compliance would increase if the driveway were to be widened in accordance with the council's Engineer's requirements.

Ku-ring-gai Residential Good Design Manual, (DCP38)

31 DCP38 came into effect on 5 February 2003 and applies to single dwelling houses and is relevant to Lot 4 No 39 Bareena Avenue.

Ku-ring-gai Notification Policy, (Policy)

32 The council adopted this Policy on 17 December 2002. The proposal was notified as required by this Policy.

Stormwater Management Manual (1993), (SMM)

33 The requirements of the SMM are relevant. Stormwater management has been addressed.

Rivers and Foreshore Improvement Act 1948, (RFI Act)

34 The RFI Act was gazetted 21 May 1948 and has been amended. Part 3A of the RFI Act relates to the protection of rivers and lakes. Under Part 3A:

22A

Definitions

In this Part:

Constructing Authority

, when used in connection with protected waters or land under or adjacent to protected waters, means:

(a) if the bed of the waters is vested in the Waterways Authority or a Port Corporation (within the meaning of the

Ports Corporatisation and Waterways Management Act 1995)

—the Minister for Ports, or

(b) if the waters are tidal and paragraph (a) does not apply—the Minister for Public Works, or

(c) in any other case—the Ministerial Corporation.

make an excavation

includes cause or allow an excavation to be made.

material

means any part of the surface of any land or any matter lying beneath that surface.

permit

means a permit in force under this Part.

protected land

means:

(a) land that is the bank, shore or bed of protected waters, or

(b) land that is not more than 40 metres from the top of the bank or shore of protected waters (measured horizontally from the top of the bank or shore), or

(c) material at any time deposited, naturally or otherwise and whether or not in layers, on or under land referred to in paragraph (a) or (b).

protected waters

means a river, lake into or from which a river flows, coastal lake or lagoon (including any permanent or temporary channel between a coastal lake or lagoon and the sea).

remove material

includes cause or allow material to be removed.

22B

Permit required for excavation etc

(1) A person must not:

(a) make an excavation on, in or under protected land, or

(b) remove material from protected land, or

(c) do anything which obstructs, or detrimentally affects, the flow of protected waters, or which is likely to do so,

unless the person is either authorised to do so by a permit under this Part and does so in accordance with any conditions to which the permit is subject, or is authorised to do so by the regulations.

(2) A person who contravenes subsection (1) is guilty of an offence and is liable:

(a) in the case of a corporation—to a penalty not exceeding 1,250 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 600 penalty units for each day the offence continues, or

(b) in the case of an individual—to a penalty not exceeding 600 penalty units and, in the case of a continuing offence, to a further penalty not exceeding 300 penalty units for each day the offence continues.

(3) It is a defence to any proceedings against a person in respect of a contravention of subsection (1) for the person to establish:

(a) that the commission of the offence was due to causes over which the person had no control and that the person took reasonable precautions and exercised due diligence to prevent the commission of the offence, or

(b) in the case of proceedings for a contravention of subsection (1) (c), that the person could not reasonably have foreseen that the person’s actions would result in, or in the likelihood of, the obstruction or detrimental effect concerned.

(4) A person does not commit an offence under subsection (1) if the activity concerned relates to a work, or class of work, specified by the Ministerial Corporation by order published in the Gazette.

22C

Grant etc of permit

(1) Application for a permit is:

(a) to be made to the Constructing Authority in the form approved by the Authority, and

(b) to be accompanied by the fee determined by the Authority.

(2) As a pre-condition to the grant of a permit, the Constructing Authority may require the applicant to give security for the due performance of the applicant’s obligations under and in connection with the permit for an amount, in a form and on such terms and conditions as the Constructing Authority may require.

(3) The Constructing Authority may, after any investigation it thinks necessary, refuse a permit or grant one subject to such conditions as it thinks appropriate.

(3A) The issue of a permit in relation to integrated development within the meaning of section 91 of the

Environmental Planning and Assessment Act 1979

is subject to Division 5 of Part 4 of that Act.

(4) The Constructing Authority may at any time by notice in writing given to the holder of a permit vary or revoke the permit or the conditions of the permit.

(5) The conditions subject to which a permit is granted under this section may include conditions relating to the protection of the environment.

35 The Spring Gully Creek that runs along the western side of Lot 4 is ‘protected waters’ and the land being within 40m of the bank of the creek is ‘protected lands’ under that Act. General terms of approval are required for both lots. DIPNR at first declined to issue these for Lot 4, however, with amendments to the dwelling house plans the department did issue GTAs but sought to impose a condition that the single dwelling on Lot 4, be set back from the bank of the river an average distance of 10m.

The proposal and its history

36 Integrated development application No 1103/03 [Appeal No 11524 of 2003] was lodged with the respondent council on 1 September 2003 to demolish the existing dwelling and to erect a detached-dual occupancy consisting of two dwellings each with attached double garages on Lot 5, being No 37 Bareena Avenue.

37 Integrated development application No 1240/ 03 [Appeal No 10163 of 2004] was lodged with the respondent council on 25 September 2003 to erect a new dwelling house on Lot 4, being No 39 Bareena Avenue.

38 Both proposals were amended during the hearing and now are described in plans prepared by Vim Design Studio of Paddington, Drawing Nos: Site Analysis DA01F; Plan Ground DA02F, Plan Upper DA03F; Sections AA and BB DA04F; Sections CC and DD DA05F; Elevations N and S DA06F; Elevations E and N DA07F; Elevations W DA08F; Shadows – 9.00am DA09F; Shadows 12.00pm DA10F; Shadows 3.00pm DA011F; all amended 02 June 2004, [Note: Exhibit M]. The original plans were amendment E in Exhibit A.

Notification
39 On 5 September 2003 integrated development application No 1103/03 was notified to nearby owners and occupants and the council received two objections:
· from Ms B Boyle of No 118A Coonanbarra Road, Wahroonga, on 18 September 2003 raising objection that further dual occupancies in the area would destroy privacy and value of the objector’s property;
· from Mr & Mrs Preda of No 28 Bareena Avenue, Wahroonga on 24 September 2003 - raising objection that the roadway should be kept clear of mud and soil.

40 On 2 March 2004 the application was revised (Revision B plans) and re-notified and the council received two objections from the same people as before.

41 The Council's Urban Design and Heritage Consultant advised that no objection was raised to the proposal provided sound insulation is provided to windows facing the freeway.

42 The council's landscape development officer commented that the driveway was narrow and with a turning area provided would leave an inadequate area for landscaping and that if fill were placed on the land this might adversely impact on a Cryptomeria japonica (Japanese Cedar) located within No 35 Bareena Avenue. Also the council’s engineer required the rear dwelling be raised above the 1:100 year flood level plus freeboard.

43 DIPNR by letter dated 1 June 2004 declined to issue General Terms of Approval (GTA) for the proposed new dwelling on Lot 4 being No 39 Bareena Avenue. Mr Driscoll, Regional Planning Coordinator, Sydney Region West stated in his letter, [Note: Exhibit 1 Part 2 Tab 9]:

…in the light of Mr Fiander’s statement, the Department has now determined that it is not prepared to issue a Part 3A Permit for the subject development as presented, and therefore is not willing to issue General Terms of Approval. It is the Department’s opinion that a minimum of 5 metre setback measured from the top of the bank of the watercourse is required to ensure bed and bank stability and to mitigate any adverse impacts on the creek system (refer also previous letters from the Department to Council dated 3/11/03 and 17/3/04).

The Department is prepared to consider an amended application that addresses the above issues in a way that does not detrimentally affect the stream or its environment. It is recommended that the applicant contact the Department to discuss any future proposal.

44 When the appeals were filed the council had not finally determined the matters.

45 By consent the appeals in both applications were heard concurrently.

The hearing

46 Appeal No 11524 of 2003 was filed on 11 December 2003. Appeal No 10163 of 2004 was filed on 13 February 2004 and both are deemed refusals.

47 At the hearing the court received written evidence on behalf of the respondent council from:

· Ms D M Laidlaw, consultant town planner;

· Mr H J Fiander, hydraulic engineer; and

· Mr R J Basto, resident of No 114 Coonanbarra Road, Wahroonga;

48 On behalf of the applicant written evidence was given by:

· Ms K Harrogan, consultant town planner;

· Dr S J Perrens, hydraulic engineer,

· Dr S Ambrose, ecological consultant,

· Ms N Sonter, landscape consultant;

· Mr W V Davies, geotechnical engineer, and

· Mr D Ford, arborist.

49 Mr A Parsanejad, engineer for the applicant, supplied detail of the pier and beam construction of the western side of the proposed dwelling on Lot 4 being No 39 Bareena Avenue, [Note: Exhibit P]. Ms Harrogan prepared a SEPP1 objection to the minimum lot width standard in cl 43(3)(c) of the KPSO for the development of Lot 4 for a single dwelling house.

The issues

50 In respect of Appeal No 11524 of 2003 the council filed a statement of issues on 2 April 2004.

Design

1. Whether the proposal is inconsistent with the aims as set out in Clause 3(1)(d) of SEPP 53.

Particulars

1.1 The proposal is not of good design in that it provides for development that will be subject to significant flooding in the 1:100 year storm event and possibly lesser events, leading to potential for risk to human life and property.

1.2 The proposal will result in loss of amenity and inconvenience to future residents in terms of accessibility during times of flood.

2. Whether the width of the driveway of the proposed northern dwelling is sufficient to allow a vehicle to effectively manoeuvre in and out of the garage.

Streetscape and visual impact

3. Whether the proposed development is inconsistent with the aims set out in Clause

3(2)(b) (efficient use of existing infrastructure and services) of SEPP 53 in that it will not achieve a built form that responds to the characteristics of the site and location.

Particulars

3.1 The site is adversely affected by flooding resulting in risk to human life and property and inconvenience of access.

Visual and acoustic privacy

4. Whether the proposed development is inconsistent with Clause 32(b) of SEPP 53 and Clause 2(b) of Schedule 9 of the KPSO.

Particulars

4.1 The proposal will result in significant overlooking from the living rooms to the private open space area of 35 Bareena Avenue, Wahroonga.

4.2 The first floor living rooms will enable overlooking of 39 Bareena Avenue.

Stormwater

5. Whether the proposal is inconsistent with Clauses 32(d) of SEPP 53 in controlling and minimising the disturbance and impacts of stormwater, whether it has been designed with regard to the scope for on site infiltration of water and whether it minimises the disturbance and impacts of stormwater run-off on adjoining properties and receiving waters.

Particulars

5.1 The application fails to demonstrate how on site stormwater detention is to be achieved in accordance with the requirements of Council's Stormwater Management Manual, or how on site detention of stormwater is to be provided as encouraged by SEPP 53.

5.2 The garage to dwelling 37B does not have freeboard of 300mm above the 100 year ARI flood level, as required pursuant to section 3.4.2 of Council's Stormwater Management Plan.

5.3 The proposal fails to provide flood free vehicular and pedestrian access to dwelling 37B.

5.4 The application relies on a flood study report which is superseded in that terracing within Spring Gully Creek as recommended in the report has not been approved, nor is it likely to be.

Access

6. Whether the proposal is inconsistent with Clause 32(f) of SEPP 53 in providing convenient, obvious and safe access for pedestrians and motorists and whether convenient access and parking for residents and visitors is proposed.

Particulars

6.1. Both dwellings are affected by a 1:100 year flood and in particular, the rear dwelling would be completely cut off in such a flood.

6.2. The proposal fails to provide flood free vehicular and pedestrian access to dwelling 37b, with the whole garage and dwelling being well below water in such a flood event.

Dual Occupancy Development

7. Whether the proposed development has regard for the aims and objectives of Council's Dual Occupancy Development policy.

Particulars

7.1 The proposal is inconsistent with general aim (a) of the Code (good design) in that it provides for development that will be subject to significant flooding in a 1:100 year storm event.

7.2 The proposal is inconsistent with clause 1.3 of the Code (dual occupancy developments to be designed to suit the site, streetscape and locality of the area) as a result of the fact that the proposal does not respond to the characteristics of the site as it is adversely affected by flooding resulting in risk to human life and property.

7.3 The proposal is inconsistent with objective 3.1(iii) (ensuring design has given due consideration to the attributes and constraint of the site) in that the site is adversely affected by flooding.

7.4 The proposal is inconsistent with objective 4.3.1 as the balconies provide opportunities to overlook private open space areas of adjoining properties and the bedroom within Dwelling 37B.

7.5 The proposal is inconsistent with clause 4.4.1 as the private open space area of Dwelling 37A will not receive 3.0 or more hours of sunlight during the winter solstice.

7.6 The proposal is inconsistent with clause 4.5.1 as the dwelling and lawn area for Dwelling 37B encroaches the 10.0 metre riparian corridor. Additionally, the and Department of Infrastructure, Planning and Natural Resources have not provided General Terms of Approval for the proposal setting out their requirements given that the development comprises integrated development.

7.7 The proposal is inconsistent with clause 4.5.2 as the property is a low level property that does not currently benefit by a drainage easement nor has any evidence been submitted suggesting such easement can be created.

7.8 The proposal is inconsistent with clause 4.5.3 (a) of the Code in that it has failed to demonstrate how on-site stormwater retention is to be achieved as encouraged by SEPP 53.

7.9 The proposal is inconsistent with clause 4.7.1(a) (vehicle access in car parking) in that it fails to provide flood free vehicular access to the dwelling at 37B in that the access to the garage and dwelling will be restricted during a 1:100 year flood event. Further, the proposal does not provide convenient and safe access for pedestrians and motorists nor does it provide convenient access and parking for residents and visitors.

7.10 The established setback of the street on the northern, low side is greater than 9.0 metres. The proposed development does not have regard for the established setback within the street.

7.11 The proposal is inconsistent with clause 4.9.1 as the side setbacks of the southern portion of Dwelling 37A are 1664mm from the western boundary in lieu of 2.0 metres.

7.12 The proposal is inconsistent with Clause 4.9.2 as it incorporates walls in excess of 4.0 metres in height that have a length greater than 8.0 metres.

8. Whether the proposal is inconsistent with the Clause 15(b)(1) of SEPP 53 (ensuring that dual occupancy development is designed and assessed with a full understanding of the opportunities and constraints of each site).

Particulars

8.1 The degree of affectation during flood events renders the site unsuitable for an increase in the density of development upon it.

General

9. Whether consent can be granted given General Terms of Approval have not been issued by the Department of Infrastructure, Planning and Natural Resources in accordance with Section 91A of the Environmental Planning and Assessment Act 1979 given that the proposal comprises integrated development.

10. Issues raised by objectors.

51 In respect of Appeal No 10163 of 2004 the council filed a statement of issues on the same day on 2 April 2004:

Particulars

Setback to creek and riparian corridor

Particulars

Residential character

Particulars

6.6 The proposal incorporates a three storey dwelling which is excessive in height and will have an overbearing impact on the adjoining property and streetscape.
7. Whether the proposed dwelling will result in an overdevelopment of the site given the constraints imposed by the location of Spring Gully Creek and the dimensions of the site.
8. Whether the proposal has had regard for the location of the F3 Freeway within close proximity to the site and been designed to minimise the acoustic impact of the freeway on the internal and external space within the site.
9. Whether the private useable open space area proposed is sufficient in size to provide a functional outdoor recreation space for the proposed dwelling as required by s5.3.8 of DCP 38.
10. Whether the proposal will maintain the privacy of the eastern adjoining property given the height of the proposed dwelling and minimal setback to the eastern boundary.
Particulars
10.1 The ground floor of the proposed dwelling is in excess of 1.7 metres above the ground level and includes windows to living rooms within the eastern and northern elevations, which will provide an opportunity to overlook the eastern adjoining property. The setback of the proposed dwelling and the provision of the stairs to the laundry will not enable the provision of sufficient screen planting to prevent such overlooking.

11. Whether there is sufficient setback between the proposed dwelling and Spring Gully Creek to provide sufficient measures to ensure the integrity of the creek is not adversely impact during the construction phase. Additionally whether the construction of the proposal will destabilise the watercourse embankment and in such case that it is likely to do so, should consent be granted.
12. Whether consent can be granted given General Terms of Approval have not been issued by the Department of Infrastructure, Planning and Natural Resources in accordance with s91A of the Environmental Planning and Assessment Act 1979.

52 The following emerged as the salient issues:

· Riparian protection in respect of Lot 4 and

· Flooding.

The evidence and findings

Riparian protection in respect of Lot 4, No 39 Bareena Avenue

53 This relates primarily to Issue 2 in Appeal No 10163 of 2004:

Whether the proposal is consistent with the aims set out in Clauses 1(a) and 1(b) in Schedule 9 of the Ku-ring-gai

Planning Scheme Ordinance ("KPSO") and Section 5.6.1, 5.6.2, and 4 of DCP 38 given the location of the proposed dwelling in relation to Spring Gully Creek.

Particulars
2.1: The proposal is setback a minimum of 1.015 metres from the top of the bank of the creek.
54

The proposal for a new dwelling would be now setback a minimum of 1070mm from the top of the bank of the creek, [Note: Exhibit M, Drawing No DA02F].

55 DIPNR by letter dated 1 June 2004 declined to issue general terms of approval (GTA) for the proposed new dwelling on Lot 4 being No 39 Bareena Avenue and suggested a minimum setback of 5m from the top of the bank. However, in a letter dated 16 June 2004, DIPNR issued GTAs for Lot 4 being No 39 Bareena Avenue and confirmed this in a further letter from the department dated 22 June 2004. GTA 20 would require “…an average width of 10 metres measured horizontally from the top of the bank of the creek and at right angles to the alignment of the bank”, [Note: Exhibit 16].

56 The council’s case is summarised by Ms Laidlaw, who after conferring with Ms Harrogan, was of the opinion that DIPNR had imposed “reasonable requirements” for the protection of the watercourse and the riparian zone in seeking a minimum setback of 5m and an average of 10m from the top of the bank of Spring Gully Creek. [Note: Exhibit 16 letter of 1 June 2004, from DIPNR]. She saw this as a concession to its usual requirements, which, normally, she considered would be more stringent, [Note: Exhibit 8 p 6].

57 She was of the opinion that the more restricted the depth of the riparian zone the more it is likely that the design of the building would be subject to “extraneous impacts” such as guaranteeing irrigation and light to the vegetation proposed by the applicant in the undercroft beneath the proposed new dwelling.

58 Ms Laidlaw considered the proposed new dwelling house should provide a reasonable setback from the bank of the creek and meet reasonable environmental standards.

59 Ms Harrogan put the applicant’s case that:

…having regard to the ecological, hydrological, arboricultural and geotechnical evidence provided by Dr Steve Perrens, Dr Steve Ambrose, Narelle Sonter and Warwick N Davies that there is sufficient evidence to that the development will not result in a significant detrimental impact on the riparian zone or on the stability of the watercourse bank.

60 Ms Harrogan's position was that:

…the development has been designed to respond to the site's constraints and that as a result there is minimal potential impact upon the riparian zone and upon the watercourse.

61 In answer to Ms Lailaw’s concerns regarding future non-compliance with conditions by future owners, she was of the opinion that, [Note: Exhibit 8 p 8]:

…further surety could be provided by way of condition of approval requiring the establishment of a support zone along the watercourse bank in the same way Council would require a restriction over private land which might otherwise provide stability to the toe of a batter supporting a road. The proposed flood levee, which is integrated into the building's design, is an integral component of the structure and would not be liable for removal or interference.

62 I noted that DIPNR in its letter dated 1 June 2004 had offered to discuss the design of the proposed new dwelling with the parties. Consequently, I adjourned the proceedings to allow the parties to approach the representatives of DIPNR to discuss the design and if possible to obtain GTAs for both proposals. On 9 June 2004 a meeting was held at the department [Note: Exhibit 18: Agreed copy of minutes of meeting with DIPNR].

63 DIPNR did provide GTAs “…for the Court’s assistance” for Lot 4 being No 39 Bareena Avenue and suggested GTA 20. The purpose of this general term of approval was to establish adequate riparian zones along the edges of all protected waters, for their entirety, planted with local native plant species. As the proposed dwelling would be setback 1070mm, an average of 10m setback could not be provided within Lot 4 with the present design. So the GTAs if applied to Lot 4 amount to a refusal of the application.

64 Mr Driscoll, Regional Planning Coordinator, Sydney Region West, DIPNR by letter dated 16 June 2004 to the council’s solicitors which included GTAs, stated, [Note: Exhibit 16].

Re: DA 1240/03 - 39 Bareena Avenue, Wahroonga

I refer to your letter dated 4 June 2004, concerning the subject Development Application (DA) proposal, which has been part heard by Commissioner Watts in the Land and Environment Court.

When issuing approvals for development proposals near watercourses, the Department seeks to do so in accordance with the policies of the NSW State Government. In particular, the Department considers the objectives and principles of the NSW State Rivers and Estuaries Policy. This policy encourages the protection of the biophysical functions of streams and stream rehabilitation.

In regard to the subject site, the watercourse is reasonably stable and has reasonable natural values. In line with policy the Department strongly recommends that any development be sensitive to these values and does not destabilise the system or substantially impact on the riparian zone.

Whilst the watercourse is a headwater stream with limited upstream biological connectivity, downstream connectivity is good. And, protecting headwater streams is important, as their health very much determines the health of the downstream receiving waters. The watercourse and its riparian zone also play an important role in delivering ecosystem services to the catchment, in providing habitat to support the complex ecological interactions, which benefit water quality and provide a natural heritage for present and future communities of the area to enjoy.

The Department would like the Court to take into account our recommendations. If an approval is likely, the Department's General Terms of Approval are provided herewith to assist the Court.

Any general questions or correspondence should be directed to Greg Brady, Environmental Review Co-ordinator, telephone (02) 9895 7441.

65 Mr Driscoll again wrote to the council’s solicitors on 22 June 2004 to clarify the department’s previous advice, [Note: Exhibit 22].

66 It is proposed to erect the new dwelling on Lot 4 between 1,070mm and 1,750mm from the top of the bank of the creek. It is also proposed to provide a further setback in an undercroft enclosed by a lattice screen to a distance from the top of the bank of the creek of around 6m. In the undercroft outside the lattice screen, it is proposed to plant Maidenhair fern, Bracken fern, Gristel fern, and native grasses. Small shrubs are also proposed between the proposed dwelling and the top of the bank of the creek.

67 Ms Sonter was of the opinion that the proposed ferns, growing in the rain and light shade of the undercroft could grow to be as healthy and vigorous as ferns presently growing as an understorey along the creek bank. This would be problematical.

68 Apparently, the purpose of the riparian setback of 10m as required by GTA 20 is to encourage the growth of native vegetation including trees along the banks of the creek. Although shrubs and trees are proposed in the setback between the proposed dwelling and the top of the bank of the creek, I am satisfied that large trees could not be maintained in this location.

69 Despite the assurances given by the applicant’s witnesses, I am satisfied that in order to maintain the “biophysical functions” of the watercourse, an average of 10m setbacks would be necessary on Lot 4, being No 39 Bareena Avenue. Such a setback would allow for the planting of substantial native trees along the bank of the creek, which would assist in binding it together and naturally reinforcing it against flood.

70 The applicant’s representative pointed to the fact that a large dwelling with triple garage had been erected on ‘protected land’ opposite at No 28 Bareena Avenue with the garage supported on a rock retaining wall along the eastern edge of the creek. He sought by reference to this approval, to justify building close to the creek on the subject land. I note that GTAs did issue for that land and that the retaining wall supporting that dwelling might not perform well in flood events. Under the Rivers and Foreshore Improvement Act 1948, (RFI Act) it is important to protect waterways from erosion and scour by natural means if possible.

71 I consider that the proposed new dwelling should be setback and native landscaping be planted within the average 10m wide riparian strip in accordance with DIPNR’s requirements, to ensure that the bed and banks of the creek are stabilised and to mitigate adverse impacts of flooding on the creek system. I would refuse the development application to erect the proposed dwelling house on Lot 4 close to the top of the bank of the creek.

72 The north western part of Lot 5 would be within 10m of the top of the bank of the creek and thus would require general terms of approval to be attached as conditions of consent. I canvassed this aspect during the hearing and have attached similar conditions as were proposed for Lot 4. However, if this is not satisfactory to the parties, liberty to restore the matter to the list with three days notice is granted.

Flooding

73 This issue has now been resolved by the provision of a bund wall around the dual occupancy. The top of the bund would be no lower than the 1 in 100 ARI with freeboard. Brass plaques would be erected on the land to notify persons occupying the land of the need to retain the integrity of the bund so that in the event of flooding the dwellings would be protected. This would be reinforced with a s 88B instrument placed on title to the effect that the bund is an important flood mitigation measure and that its integrity should be maintained. The applicant supported the measures proposed.

74 Emergency evacuation during time of flood would be along the driveways or residents could remain within the dwelling.

75 I would not refuse the application for reason of flooding.

SEPP1 objection

76 Ms Laidlaw was of the opinion that in considering the SEPP1 objection and whether compliance with lot size is unreasonable or unnecessary in the circumstances of this case the underlying purpose of the standard needs to be taken into account. She stated:

If one assumes the purpose of the standard is, inter alia, to ensure adequate room to accommodate a dwelling house without consequential adverse impacts on the environment, then this has not, been demonstrated by the applicant.

77 As I propose to refuse the proposed dwelling on Lot 4 there is no need to consider the SEPP1 objection further.

78 For the above reasons, Appeal No 11524 of 2003, Lot 5, DP 21091, in respect of No 37 Bareena Avenue, Wahroonga is upheld and Appeal No 10163 of 2004, Lot 4, DP 263707, in respect of No 39 Bareena Avenue, Wahroonga is dismissed.

Conditions

79 The conditions are those in Exhibit 9 for Lot 5, being No 37 Bareena Avenue. GTAs have been added.

Orders
My orders are:
1. Appeal 11524 of 2003 under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Appeal 10163 of 2004 under s 97 of the Environmental Planning and Assessment Act 1979 is dismissed.

3. Integrated development application No 1103/ 03 lodged with the respondent council on 1 September 2003 to demolish the existing dwelling and to erect a detached-dual occupancy consisting of two dwellings each with attached double garages on Lot 5, being No 37 Bareena Avenue is approved subject to Conditions 1 to 91 in Annexure A together with general terms of approval.

4. Integrated development application No 1240/ 03 lodged with the respondent council on 25 September 2003 to erect a new dwelling house on Lot 4, being No 39 Bareena Avenue, is refused consent.

5. Liberty is granted to either party to restore the matter to the Court’s list on three days notice, to further consider the general terms of approval for Lot 5.

6. The exhibits with the exception of Exhibits C, D, M, N, O, P, Q, 9, 11, 12, 15, 16, 18 and 22 are returned.

S J Watts
Commissioner of the Court
sw

Conditions of development consent

Annexure A

B Habibi & F Kazazi

Ku-ring-gai Municipal Council

Premises: 37 Bareena Avenue, Wahroonga

Development Application No: 1103/03

Proposal: Demolish Existing – Construct Detached Dual Occupancy – Revised Plans 25/9/03

SCHEDULE A CONDITIONS
Deferred commencement condition

1. Documentary evidence of the registration of an easement through the adjoining property, Lot 4 DP 263707, No 39 Bareena Avenue, Wahroonga for the purpose of stormwater drainage from the subject property shall be submitted prior to the operation of this consent.

GENERAL CONDITIONS

1. The development to be in accordance with Development Application No 1103/03 and Development Application plans prepared by VIM Design Studio, reference number Job 03.001, Drawings 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13 Revision “F dated 2 June 2004 and the Amended Landscape Plan prepared by Narelle Sonter Botanica being drawing No LP02/A except as modified by these conditions of consent.

2. All building works shall comply with the Building Code of Australia.

3. The submission of the approved plans to Sydney Water, before any work is commenced to ensure that the proposed structure meets that Authority’s By-Laws. Failure to submit these plans before commencing work will render the owner liable to a penalty and may result in the demolition of work.

4. The approved building shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plans and a Occupation Certificate has been issued.

5. The opening of any footway, roadway, road shoulder or any part of the road reserve shall not be carried out without a Road Opening Permit being obtained from the Council (upon payment of the required fee) beforehand.

6. For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plan and this Consent and Construction Certificate shall be kept on site at all times.

7. For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the road or footpath without the written approval being obtained from the Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.

8. HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant.

Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment.

9. A sign shall be erected in a prominent position on the site which states the name and contact details of the Principal Certifying Authority.

10. To maintain existing ground levels all excavated material shall be removed from the site.

11. For the purpose of maintaining visual amenity, no permanent electricity supply poles are to be erected forward of the building setback without the prior Consent of Council. It is the onus of the applicant to consult with the authorised statutory electricity provider prior to construction commencing to ensure that direct connection to the building is possible. Details of any proposed permanent pole must be submitted to and approved by Council prior to installation.

12. Toilet facilities are to be provided, within the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

13. The demolition is to be carried out in accordance with the guidelines contained in Australian Standard 2601-1991: The Demolition of Structures.

14. Access to demolition sites shall be protected as directed by the Principal Certifying Authority by the use of suitable fences or hoardings.

15. Where a new development is not commencing immediately following demolition, the demolition shall be limited to the extent of the footprint of the building/s on the site and no excavation shall be carried out.

16. Demolition work, including removal of material or debris from the site, on any building in a residential area shall only be carried out during the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted.

17. A person taking down or demolishing or causing to be taken down or demolished any building or part thereof shall, upon identifying or suspecting that asbestos is present in the building, immediately notify the Workcover Authority. The Authority is the controlling body for the safe removal, handling and disposal of asbestos. The Authority supervises and monitors contractors engaged in asbestos removal.

The requirements and standards imposed by the Authority, its consultants or contractors shall be complied with.

18. Erosion control measures shall be provided on demolition sites to prevent the siltation of watercourses and drainage systems.

19. Dust control measures shall be taken on all demolition sites so as to avoid a nuisance to adjoining properties and harm to the environment.

a. A person taking down or demolishing or causing to be taken down or demolished any building or portion of any building shall:

b. Such person shall not chute, throw or let fall or cause to chute, throw or let fall from the floor to floor or into any basement of such building any building materials or any other matter so as to cause dust to escape from the building or cause any such material to fall or cast upon a public way to the annoyance, inconvenience, or danger of persons using such public way.

20. Soil on vacant sites is to be stabilised as soon as possible to prevent erosion and the site shall be kept clear of excess vegetation.

21. All combustible material shall be removed from the site on a daily basis. Material shall not be burnt on the site.

22. Trees and vegetation on a site shall not be disturbed except with the approval of the Council.

23. Adequate precautions shall be taken to ensure the protection of adjoining premises and persons therein from damage and injury during the process of demolition.

24. Buildings built prior to the 1970’s may contain lead based paint. Lead dust is a hazardous substance. You are advised to follow the attached WorkCover guidelines to prevent personal and environmental contamination.

25. The applicant or builder/developer is responsible for the cost of making good any damage that may be caused to any Council property as a result of work associated with the demolition.

26. All demolition materials of value for re-use either on-site or elsewhere, shall be separated and made available for re-cycling.

27. The provision of temporary sediment and erosion control facilities and measures are to be installed, prior to the commencement of any works on the site to eliminate unnecessary erosion and loss of sediment. These facilities must be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps must be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority and Council officers.

27A. To preserve and enhance the natural environment, all soil erosion and sediment control structures shall be inspected following each storm event and any necessary maintenance work shall be undertaken to ensure their continued proper operation. Sediment shall be removed from the soil erosion and sediment control structures when no more than forty percent (40%) capacity has been reached. These structures shall continue in proper operation until all development activities have been completed and the site fully stabilised.

28. To prevent pollution, all vehicles making a delivery to or from the site are to be covered to prevent loose materials, dust etc falling from the vehicles.

29. No structures (including retaining walls) or change of ground level shall occur within the 10.0 metre riparian corridor measured from the top of the bank of Spring Gully Creek to the west of the subject property.

30. Stormwater runoff from all hard surfaces generating runoff or landscaped areas which are not at natural ground level shall be piped to the interallotment stormwater drainage line benefiting the subject site. The interallotment line is to be covered by the necessary easement for drainage which may exist or need to be created under this consent.

31. A rainwater re-use tank system, of 7500L per dwelling capacity plumbed so as to provide the primary source of water for toilet plumbing and garden watering shall be provided for the development.

32. Driveways and access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard 2890.1 – 2004 “Off-Street car parking”.

33. Prior to issue of the Construction Certificate footpath and driveway levels for any fully new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Council. Such levels are only able to be issued by Council under the Roads Act 1993. All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings" or as specified by Council. These are issued with alignment levels after completing the necessary application form at Customer Services and payment of the adopted fee.

The grading of such footpaths or driveways outside the property shall comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant and the alignment levels fixed by Council may affect these. Approval of this Development Application is for works wholly within the property. DA consent does not imply approval of footpath or driveway levels, materials or location within the road reserve regardless of whether this information is shown on the application documents.

Details of any works required in the road reserve such as fill, suspended slabs etc are to be provided with the application.

Note 1: The construction of footpaths and driveways outside the property, in materials other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations.

Note 2: When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant Development Application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment. Failure to submit this information may delay processing.

34. Compliance with the general terms of approval issued by Department of Infrastructure, Planning and Natural Resources.

35. A Tree Preservation Order exists within the Ku-ring-gai Council area whereby the removal, lopping or destruction of any tree exceeding 5.0 metres in height or 4.0 metres in canopy spread (except where exempt as defined under Council’s Tree Preservation Order) without prior written consent of Council is prohibited.

Release of the Construction Certificate gives automatic approval to the removal ONLY of those trees located on the subject property within the footprint of a proposed new building/structure or within 3.0 metres of a proposed new dwelling. Where this application is for a building/structure other than a dwelling then ONLY trees within the area to be occupied by this building/structure may be removed. Other trees SHALL NOT be REMOVED or DAMAGED without an application being made under Council’s Tree Preservation Order.

36. The landscape works shall be completed prior to issue of final Certificate of Compliance and maintained in a satisfactory condition at all times.

37. The screen planting shall be completed prior to the issue of the final Certificate of Compliance and be maintained in a satisfactory condition at all times.

38. Tree planting to satisfy tree retention/replenishment requirements shall be completed prior to the issue of the final Certificate of Compliance

39. All disturbed areas, which are not to be built upon or otherwise developed, shall be rehabilitated to provide permanent protection from soil erosion within fourteen (14) days of final land shaping of such areas.

40. Any imported fill material shall be restricted to material from the local soil landscape on which the site is located or be derived from sandstone geology sites.

41. The applicant shall ensure that at all times during the construction period no activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order.

42. On completion of the LANDSCAPE WORKS including TREE PLANTING and SCREEN PLANTING, a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to issue of final Certificate of Compliance.

43. The following noxious and/or undesirable plant species shall be removed from the property prior to completion of the proposed building works. Documentary evidence of compliance with this condition shall be submitted to the Principal Certifying Authority prior to the release of the final Compliance Certificate:

Plant Species

Acer negundo

(Box Elder)

Asparagus densiflorus

(Asparagus Fern)

Chlorophytum comosum

(Spider Plant)

Cinnamomum camphora (

Camphor laurel)

Conyza sp

(Fleabane)

Cotoneaster sp.

(Cotoneaster)

Cytisus sp.

(Broom)

Hedychium gardneranum

(Ginger lily)

Jasminum polyanthum

(Jasminum)

Ligustrum lucidum

(Large-leaved Privet)

Ligustrum sinense

(Small-leaved Privet)

Nephrolepis cordifolia

(Fishbone fern)

Ochna serrulata

(Ochna)

Setaria palmifolia

(Palm Grass)

Toxicodendron succedaneum

(Rhus Tree)

Tradescantia albiflora

(Wandering Jew)

44. All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works.

CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE

45. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate.

Note: Required if cost of works exceed $25,000.00.

46. It is a condition of consent that the applicant, builder or developer or person who does the work on this residential building project arrange the Builders Indemnity Insurance and submit the Certificate of Insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Council or other Principal Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the Builder's Indemnity Insurance for residential building work over the value of $12,000 and to satisfy the Council or other Principal Certifying Authority by the presentation of the necessary Certificate of Insurance so as to comply with the applicable requirements of Part 6 of the Home Building Act 1989. The requirements for the Builder's Indemnity Insurance does not apply to commercial or industrial building work or for residential work less than $12,000, nor to work undertaken by persons holding an Owner/Builder's Permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work).

47. The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project.

48. Prior to issue of the Construction Certificate footpath and driveway levels for any fully new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Council. Such levels are only able to be issued by Council under the Roads Act 1993. All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings" or as specified by Council. These are issued with alignment levels after completing the necessary application form at Customer Services and payment of the adopted fee.

49. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area.

TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF ONE (1) ADDITIONAL DWELLINGS IS CURRENTLY $33,057.22. The amount of the payment shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council’s Section 94 Contributions Plan to reflect changes in land values, construction costs and the consumer price index.

This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council’s adopted Section 94 Contributions Plan for Residential Development, effective from 20 December 2000, calculated for additional person as follows:

1. Preparation of New Residents Kit $10.98

2. New Resident Survey $9.87

3. New child care centre including land acquisition and construction of facility $252.13

4. Additions/alterations to Acron Rd child care centre for additional 20 places $2.41

5. New Library bookstock $17.95

6. New Public Art $2.93

7. Acquisition of Open Space - Wahroonga $7,851.00

8. Koola Park upgrade and reconfiguration $143.09

9. North Turramurra Sportsfield development $986.80

10. Section 94 2000-2003 Study and Interim Plan preparation cost $49.34

11. Section 94 Officer for period of Plan 2000-2003 $118.42

To obtain the total contribution figure the following table of occupancy rates is to be used:

OCCUPANCY RATES FOR DIFFERENT DWELLING SIZES

Small dwelling (under 75 sqm) 1.25 persons

Medium dwelling (75 - under 110 sqm) 1.75 persons

Large dwelling (110 – under 150sqm) 2.75 persons

Very Large dwelling (150sqm or more) 3.5 persons

New Lot 3.5 persons

50. To ensure the privacy of the adjoining properties and future residents of the development is maintained the proposal shall be revised as follows:

a. Deleted

b. A 1.0 metre projection privacy screen shall be provided on the western side of the north facing window of the first floor family room of Dwelling A to restrict views from the family room to the adjoining property.

c. A 1.6 metre high privacy screen shall be provided on the eastern and western sides of the balcony serving Bedroom 2 within Dwelling A to prevent overlooking to the adjoining properties.

d. (deleted)

e. (deleted)

f. (deleted)

g. A privacy screen to a minimum height of 1.6 metres above finished floor level shall be provided on the eastern side of all east facing balconies and the western side of all west facing balconies of dwelling B.

Revised plans indicating the above changes shall be submitted to the Principal Certifying Authority prior to the release of a Construction Certificate.

51. To enable general observation of persons approaching the entrance of the dwellings sidelight glazing shall be provided beside the front door. Revised plans indicating the above changes shall be submitted to the Principal Certifying Authority prior to the release of a Construction Certificate.

52. To ensure reasonable levels of amenity are maintained within Dwelling B, the Laeq, 1hr noise levels within the premises shall not exceed 45dBA in living areas and work areas during the period 7.00am to 10.00pm and 40dBA in sleeping areas during the period 10.00pm to 7.00am on any day. The windows and glazed doors to the family room and bedroom 3 shall be constructed using glazing of thickness at least 4mm and shall be designed so as to close without gaps. A ventilation system shall be installed in these rooms to meet the requirements of the relevant ventilation code with all windows and doors closed.

53. The driveway shall be reduced in width at the turning bays to enable sufficient room for screen planting along the eastern boundary to preserve the amenity of the adjoining property. Where other conditions of this consent require the widening of the driveway, this shall still enable an area sufficient for planting along the eastern boundary and also the western side of the driveway. Details shall be indicated on the Construction Certificate Plans.

54. Prior to the issue of a Construction Certificate, the compliance certificate obtained under Section 73 of the Water Board (Corporatisation) Act, must be submitted for verification by the Principal Certifying Authority (PCA).

55. The driveway width is to be minimum 2.9 metres in accordance with AS2890.1: 1993 Off street car parking. The vehicular crossing width is to be 3.7 metres minimum in accordance with Council’s specification. Amended drawings are to be submitted to and approved by the Principal Certifying Authority prior to issue of a Construction Certificate.

56. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), construction design drawings and calculations for the property drainage system components. The property drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) shall be designed for a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) and shall be compatible with the necessary retention and/or detention devices. Plans and calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Councils Water Management Development Control Plan 47 available on the Council website and at Council, and AS 3500.2 - Plumbing and Drainage Code.

57. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), a Soil and Erosion Control Plan prepared in accordance with the NSW Department of Housing document “Managing Urban Stormwater – Soils and Construction” (1998). A suitably qualified and experienced civil/environmental engineer or surveyor shall prepare this plan in accordance with the above guidelines and section 8.2.1 of Councils Water Management DCP 47 (available on the Council website).

58. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), registered title documents demonstrating that the subject site is benefited by the necessary easement(s) for stormwater drainage as far as the approved point of discharge to the public drainage system. This information is to include, as a minimum, registered Title documents demonstrating the benefit and burdens, together with the instruments describing the terms of necessary drainage easement(s).

59. Prior to the issue of the Construction Certificate, a suitably qualified and experienced structural engineer is to certify either

· that the substructure of the proposed dwelling has been designed to be built from flood-compatible materials suitable to withstand the Probable Maximum Flood (PMF).

· that the perimeter foundation walls and structure have been designed so that the underfloor area will remain waterproof and the structure will remain sound under flood flows up to PMF level.

59A. A restriction on user shall be placed upon all structures identified as necessary for flood protection purposes, including the diversion wall shown on drawing DA02F affecting both Dwelling A and Dwelling B and shall provide that the structure shall be maintained in good repair so as to maintain its functionality for flood protection for the life of the development.

A permanent sign shall be erected and maintained on each side and on each face of the diversion wall, clearly identifying that the structure serves a flood protection function and that it must not be breached or penetrated under any circumstance without the approval of Council.

59B Diversion walls, suitably waterproofed and designed by a structural engineer, are to be provided to protect the driveway and garage to Dwelling B against flooding.

The diversion walls shall be constructed to levels of RL 168.18, 168.20 and 168.00 as shown on drawing 2399 (Rev “C”) prepared by Boyden & Partners. Details of a method for permitting access from the driveway to the northern garden area shall be submitted with the construction certificate, with a copy to be provided to Council if it is not the Principal Certifying Authority,

59C. A Restriction-on-Use shall be created on the title of the subject property prior to issue of an Occupation Certificate. The restriction is to be over the 100 year ARI flood zone and must prevent the placement of any structures, walls, fences, fill or other items which may impede the 100 year ARI flood, within that zone other than in accordance with the approved plans. If an open substructure has been adopted as recommended in Boyden & Partners Pty Ltd Report Ref: 2399, dated September 15, 2003, and addendum dated February 2, 2004, then the terms are also to require the sub-floor space to be kept unobstructed at all times. Additionally the subfloor space shall not be used for storage purposes and any services within this area that maybe adversely affected by flood waters be suitably positioned or protected. Ku-ring-gai Council is to be named as the authority empowered to release, vary or modify the restriction.

60. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), full hydraulic design documentation for the required interallotment drainage system from the subject property to the approved point of discharge to the public drainage system. Plans are to be prepared by a suitably qualified and experienced consulting civil/hydraulic engineer in accordance with Council’s Water Management DCP 47 (available on Councils website and at Customer Services) and the Plumbing and Drainage Code (AS3500). New pipes within the downstream easement drainage system must be sized to have adequate capacity to carry design flowrates, or detention system overflows where detention systems are to be provided, from the subject property. The following details must be included:

a. Plan view of interallotment system to scale showing dimensions, location and reduced levels of all pits, grates, pipe inverts, flushing facilities and exact point of discharge,
b. The contributing catchment calculations and supporting pipe sizing information,

c. Longitudinal section showing existing ground levels and proposed pipe invert levels, grades and flow capacities,

d. Surrounding survey detail including all trees within seven (7) metres of the proposed drainage system,

e. Means to preserve the root systems of trees within seven (7) metres of the drainage system.

f. The outlet structure at the watercourse shall be flush with the stream bank, shall rest on and be packed in by rip-rap and shall be scour-protected if necessary.

61. The Construction Certificate shall not be released until a Site Management Plan is submitted to the Principal Certifying Authority and approved by a suitably qualified professional.

The plan shall indicate the planned phases of the construction work, erosion and drainage management, tree protection measures, areas nominated for storing materials, site access and where vehicle parking is proposed, during construction.

63. The screen planting of the site's eastern (side) boundary as shown on the Amended Landscape Plan prepared by Narelle Sonter Botanica being drawing No.LP02/A shall incorporate species capable of attaining a height of 3 metres.

64. The property shall support a minimum number of 5 trees that will attain 13.0 metres in height on the site, to preserve the tree canopy of Ku-ring-gai, in accordance with Council’s policy of Tree Retention/Replenishment on Residential Allotments adopted 26 April 1988.

65. The 2 trees to be planted shall be maintained in a healthy and vigorous condition until they attain a height of 5.0 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.

66. To protect and enhance the Spring Gully Creek riparian zone and for the conservation and promotion of biodiversity, all plantings on the landscape plan for the site shall be selected from the Sydney Turpentine/Ironbark Forest assemblage of species (included) as the site is located within 40 metres of a perennial watercourse.

67. To provide space for the establishment of screen planting adjacent to the site’s eastern boundary, a 600 mm wide planting strip shall be provided between the driveway and the boundary.

68. A cash bond/bank guarantee of $2,000 shall be lodged with Council as a Landscape Establishment Bond prior to the release of the Construction Certificate to ensure that the landscape works are installed and maintained in accordance with the approved landscape plan or other landscape conditions.Fifty percent (50%) of the bond will be refunded upon issue of the final Certificate of Compliance, where landscape works as approved have been satisfactorily installed. The balance of the bond will be refunded 3 years after issue of the building certificate, where landscape works has been satisfactorily established and maintained.

It is the responsibility of the applicant to notify Council in relation to the refunding of the bond at the end of the 3 year period. Where a change of ownership occurs during this period it is the responsibility of the applicant to make all arrangements regarding transference of the bond and to notify Council of such.

69. The applicant shall ensure that no underground services (ie water, sewerage, drainage and gas) shall be laid beneath the canopy of any tree protected under Council’s Tree Preservation Order, located on the subject allotment and adjoining allotments.

A plan detailing the routes of these services shall be submitted to the Principal Certifying Authority for approval prior to the release of the Construction Certificate.

CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING

70. A Part 3A permit in accordance with the requirements of the Rivers and Foreshores Act shall be obtained prior to any works commencing. A copy shall be submitted to the Principal Certifying Authority.

71. To preserve and enhance the natural environment, a geofabric filter fence shall be installed along contour immediately downslope of construction and disturbed areas prior to any earthworks or construction commencing. Both ends shall be turned uphill by 1.0 metre. Approved geofabric, such as CSR - Humes "Propex" Terram 1000, Polyfelt TS500, Bidim U24 or Terratrack 2415 or equivalent is to be stretched between posts placed at 2.0 to 3.0 metre centres. The base of the fabric must be buried at least 200mm in the ground on the upslope side. Geofabric material shall be replaced at intervals not exceeding 18 months, or as directed by the Principal Certifying Authority.

The geofabric filter fence shall be maintained in an operational condition until the development activities have been completed and the site fully stabilised. Sediment shall be removed from the structure when 40% capacity has been reached.

72. To reduce or eliminate the transport of sediment from the construction site onto public roads, a temporary construction exit, together with necessary associated temporary fencing, shall be established prior to commencement of any work on the site and shall be maintained throughout the duration and progress of construction.

73. A temporary construction exit and sediment trap to reduce the transport of sediment from the site onto public roads shall be provided before demolition commences.

74. Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act, 1979 (the 'Act') are to be complied with:

a. A Construction Certificate is to be obtained in accordance with Section 81A(2)(a) of the Act.

b. A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A(2)(b) of the Act.

c. Council is to be notified in writing, at least two (2) days prior to the intention of commencing buildings works, in accordance with Section 81A(2)(c) of the Act.

d. Should the development be certified by a Principal Certifying Authority other than Council, a fee for each Part 4A Certificate is to be paid to Council on lodgement of those Certificates with Council.

75. Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works.

76. To preserve the following tree/s, no work shall commence until the area beneath the canopy of the following tree/s is fenced off at the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site.

No./Tree/Location Radius in Metres

5 / Lophostemon confertus (Brushbox) 6 metres

Adjacent to the site’s southwestern (front) corner.

28 / Araucaria cunninghamii (Hoop Pine) 6 metres

Adjacent to the site’s northwestern (rear) corner.

32 / Syzygium sp. (Lillypilly) 4 metres

Adjacent to the site’s rear boundary and towards

its northeastern corner.

77. To preserve the following tree/s, no work shall commence until the area beneath the canopy of the following tree/s excluding that area of the proposed rear dwelling shall be fenced off for the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site:

No./Tree/Location Radius From Trunk

38 / Camellia japonica (Japanese Camellia) 3 metres

Adjacent to the site’s eastern (side) boundary

and towards its northeastern corner.

78. The tree protection fence shall be constructed of galvanised pipe at 2.4 metre spacings and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres prior to work commencing.

79. Upon completion of the installation of the required tree protection measures you are required to contact Council on telephone 9424 0888 or facsimile 9418 1117 to arrange an inspection of the site, in this regard a minimum of 24 hours notice is required. Following the carrying out of a satisfactory inspection and subject to the payment of all relevant monies and compliance with any other conditions of approval, work may commence.

CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION

80. Prior to the release of any occupation certificate, a compliance certificate must be obtained from an accredited certifier, certifying that the building works for the building to be occupied comply with the plans and specifications approved by this development consent; and any construction certificate associated with this consent for the buildings to be occupied. If the PCA is not the Council, then this compliance certificate must be submitted to the Council at the same time as the occupation certificate is submitted to the Council in accordance with Clause 151(2) of the E P & A Act regulations.

81. To ensure compliance with the consent, a final report from a Registered Surveyor shall be submitted to Council confirming floor/ceiling levels and boundary setbacks prior to occupation.

82. Prior to issue of an Occupation Certificate, any damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) must be fully repaired to the satisfaction of Council Engineers at no cost to Council.

83. Prior to issue of an Occupation Certificate, the applicant shall create a Positive Covenant and Restriction on the Use of Land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the dwarf flood protection walls and/or retention and re-use facilities on the property. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site detention facilities" (available from Council on request) and to the satisfaction of Council. Registered title documents showing the covenants and restrictions must be submitted and approved by the Principal Certifying Authority (PCA) prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate.

For existing Titles, the Positive Covenant and the Restriction on the use of Land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the On-Site Detention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms.

84. In order to maintain Council’s database of as-constructed on-site stormwater detention/retention systems, if the Principal Certifying Authority is not Council then a copy of the approved stormwater detention/ retention design, the works-as-executed drawings and the Engineer’s certification of the as-constructed system is to be provided to Council, attention Development Engineer, prior to issue of the Occupation Certificate.

85. Prior to issue of an Occupation Certificate, Certification and a Works-as-Executed (WAE) plan, in relation to the as-built rain water tanks are to be submitted to the Principal Certifying Authority (PCA) for approval. Certification is to be provided by a suitably qualified consulting civil/hydraulic engineer and the WAE plan is to be prepared by a registered surveyor.

86. Creation of a Restriction-on-Use on the title of the subject property prior to issue of an Occupation Certificate. The restriction is to be over the 100 year ARI flood zone and must prevent the placement of any structures, walls, fences, fill or other items which may impede the 100 year ARI flood, within that zone. If an open substructure has been adopted as recommended in Boyden & Partners Pty Ltd Report Ref: 2399, dated 18 May, 2004, then the terms are also to require the sub-floor space to be kept unobstructed at all times. Additionally the subfloor area must not be used for storage purposes and any services within this area that maybe adversely effected by flood waters be suitably positioned or protected. Ku-ring-gai Council is to be named as the authority empowered to release, vary or modify the restriction.

87. Prior to the issue of an Occupation Certificate, a suitably qualified and experienced hydraulic/stormwater engineer is to certify that the as-completed development complies with the recommendations made in the flood study report, Boyden & Partners Pty Ltd Report Ref: 2399, dated 18 May, 2004, including:

· that floor levels of habitable rooms of the as-constructed dwelling have the freeboard above the identified flood level required by Council’s Stormwater Management Manual, as a minimum.

88. Prior to the issue of the Occupation Certificate, a suitably qualified and experienced structural engineer is to certify with regard to the as-constructed dwelling, either

· that the substructure of the proposed dwelling has been constructed to be built from flood-compatible materials suitable to withstand the Probable Maximum Flood (PMF). OR

· that the perimeter foundation walls and structure have been constructed so that the underfloor area will remain waterproof and the structure will remain sound under flood flows up to PMF level.

89. The creation of a Positive Covenant under Section 88E of the Conveyancing Act 1919, burdening the property with the requirement to maintain the dwarf walls outside the garage to Dwelling B so that they remain waterproof and stable. This must be created prior to issue of the Occupation Certificate. The Positive Covenant is to be created through an application to Land and Property Information NSW (LPI) in the form of a request using form 13PC. Council is to endorse the form before its submission to LPI. The appropriate fee listed in Council’s adopted Schedule of Fees and Charges will be payable for the endorsement.

90. Prior to issue of an Occupation Certificate, the construction of the required interallotment drainage system must be completed in full. The designing engineer or equivalent professional engineer must supervise the works. At the completion of works, and prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, the following shall be submitted to the Principal Certifying Authority (PCA):

a. Certification from the supervising engineer that that the as-constructed works comply with the approved interallotment design documentation, and

b. A full works-as-executed drawing of the as built drainage line (dimensions, grades, materials, invert levels) prepared by a registered surveyor, and

c. Certification from the surveyor that all drainage structures are wholly contained within the drainage easement(s).

91. Prior to the release of an Occupation Certificate, a sign shall be erected on each side of the diversion wall and on each face of that wall, advising that the wall has a flood protection purpose and is not to be demolished, amended, fractured or opened or interfered with in any way, and that flooding of the property may result if that occurs.

The area in front of the sign shall be kept clear so that the sign is unobstructed at all times and no landscaping shall be placed in a manner that would obscure that sign.

S J Watts

Commissioner of the Court

In accordance with the Environmental Planning and Assessment Act 1979 and Regulation 1994 (as amended) the Department of Infrastructure, Planning and Natural Resources (DIPNR) has an approval role in relation to Development Application 1103/03 (the DA) lodged with Ku-ring-gai Council (Council).

A permit issued under Part 3A of the Rivers and Foreshores Improvement Act 1948 (R&FI Act) is required to carry out certain works, including excavations, on in or under "protected land". "Protected land", for the purposes of this DA, is land and material that is in, or within 40 meters of the top of the bank or shore of, "protected waters", and within 37a and 37b Bareena Road, Wahroonga, NSW. "Protected waters" include the watercourse within the Site, known as Spring Gully Creek.

37 Bareena Road, Wahroonga, NSW is hereinafter referred to as "the Site'.

Pursuant to Part 3A of the R&FI Act, DIPNR, having reviewed the documentation associated with the DA, herewith provides its General Terms of Approval, for inclusion as conditions of any approval that may be granted by the Court.

Requirement for Permit

1. Any work which requires a permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 ("Part 3A permit") is not to commence until such time as a Part 3A permit has been applied for, and subsequently issued by DIPNR. Any work the subject of a Part 3A permit must be carried out in accordance with drawings and any other documents required by these conditions, and which are approved by DIPNR, and which will accompany the Part 3A permit.

Standard of Work

2. All works proposed must be designed, constructed and operated so that they result in NIL or minimal harm to aquatic and riparian environments and do not cause erosion, sedimentation, or increase flood levels of protected waters. Works that result in net positive outcomes for aquatic and riparian environments are encouraged.

3. All activities at the Site are to be undertaken by persons suitably experienced in that aspect of the work they are doing, and such persons must be under the direction and supervision of a person with knowledge, qualifications and experience to best practice in the relevant aspect of the operations being undertaken.

Cessation of Works

4. If, in the opinion of a DIPNR officer, any work is being carried out in such a manner that it may damage or detrimentally affect protected, waters or protected land, or damage or interfere in any way with any work, such work shall cease immediately upon oral or written direction of such officer.

5. Should any of the conditions of the Part 3A permit not be complied with, DIPNR may issue a Stop Order on Part 3A permit related operations at the Site until the conditions have been complied with.

Work as Executed Plans

6. If requested by DIPNR, work as executed survey plans of a professional standard, and including information required by DIPNR, shall be forwarded to DIPNR within 14 calendar days of such request.

Remedial Works

7. The Part 3A permit holder shall carry out any instructions given by DIPNR with a view to preventing damage to the environment of protected waters or protected land.

8. If any Part 3A permit condition it; breached, the permit holder shall follow DIPNR directions to address the breach and shall rehabilitate the Site as directed by, and to the satisfaction of, DIPNR. If any breach of the permit conditions requires a special site inspection by DIPNR, then the permit holder shall pay a supplementary permit fee for this inspection and for each and every subsequent inspection until the breach has been rectified.

Disposal of Vegetation

9. Any vegetation or other material removed front the area of operations shall be disposed of lawfully to an appropriate site where the debris cannot be swept into protected waters during a flood. Burning must not be carried out unless an approval has been obtained from the relevant authority(ies).

Stormwater Outlets

10. Detailed designs of any stormwater outlets and any necessary scour protection works within the riparian zone or any protected waters are to be prepared by a person with relevant knowledge, qualifications and experience to best practice, and to the satisfaction of Council and DIPNR, and approved by DIPNR, prior to the issue of the Part 3A Permit. The designs must include one or more representative surveyed cross sections and a long section showing existing and proposed bed and bank profiles and water levels at the outlet point. The sections are to extend beyond the structure for a distance of 5m for the cross section, and for the long section, 5m beyond the landward extent of the riparian zone and 5m from the toe of the bank of the receiving protected waters. Any proposed stormwater outlets are to be designed in accordance with the DIPNR guideline: “Stormwater Outlet Structures to Streams (For pipes, culverts, drains and spillways - Version 1)” (Attachment A).

11. Stormwater outlets must be designed, located and constructed to minimise any erosion or scour of riparian zones or the bed or batiks of any protected waters. The construction methods adopted must ensure that disturbance to soil and vegetation in these areas is kept to an absolute minimum.

12. Construction of stormwater outlets is to be undertaken by person's suitably experienced in such work and they must be under the supervision of a person with relevant qualifications, knowledge and experience to best practice in such work.

Scour Protection

13. Points of constriction or any other places where scour is likely within or near any protected waters or any part of the riparian zones on the Site, are to be suitably protected against scour. Designs, based on predicted velocities and scour potential, are to be prepared by, and implemented under the supervision of, a person with relevant knowledge, qualifications and experience to best practice, and to the satisfaction of Council and DIPNR, and approved by DIPNR.

14. All permanent rock scour protection must consist of hard and durable run-of-quarry rock, sized to resist predicted scour velocities. Rock must be angular and blocky rather than flat, to ensure a good "bind" and to resist negative hydraulic pressure, Rock is to be placed over a layer of angular cobbles over geotextile to prevent erosion of underlying fine bed sediments and to facilitate placement.

15. All finished rock rip-rap surfaces are to be rough, and evenly aligned with the adjoining bed, bank and floodplain profile and must not reduce the capacity of protected waters in any way.

16. All rock and cobbles installed for scour protection are to be packed with topsoil and the crevasses in the, rip-rap planted with local native sedges and rushes, to further stabilise the works and to increase riparian zone values and functions.

17. Wire mesh structures and concrete grouting are not permitted for use with rip-rap scour protection unless shown on plans approved by DIPNR.

Maintenance of Works within Protected Waters

18. All works within protected waters are to be monitored after each major storm event for the duration of any Part 3A permit issued by DIPNR. Stabilisation works consisting of soft-engineered designs are to be undertaken as required, after seeking advice and approval from DIPNR, if there are signs of erosion or instability of protected waters.

Works within Protected Waters to satisfy NSW Fisheries

19. All works within protected waters must be consistent with the requirements of NSW Fisheries.

Designation of Riparian Zone

20. Riparian zones, consisting of local native plant species, shall be established and maintained along all edges of all protected waters, including beneath bridges, for their entirety within the Site.

The extent of the riparian zones, unless otherwise approved by DIPNR, shall be:

As close as possible to an average width of 10 metres measured horizontally from the top of the bank and at right angles to the alignment of the bank.

Site Rehabilitation - Vegetation

21. Site rehabilitation must protect any remnant local native riparian vegetation at the Site and restore any riparian zones, including within protected waters, disturbed or otherwise affected by the development to a state that is reasonably representative of the natural ecotone of the protected waters system and as required in a Vegetation Management Plan (VMP).

22. The VMP is to be prepared by a person with professional qualifications, knowledge and experience in bushland rehabilitation practices and in the preparation of such plans, in consultation with, and with the approval of, DIPNR prior to the issue of the Part 3A Permit. The VMP is to be in accordance with, but not limited to, the guideline: “How to Prepare a Vegetation Management Plan - Version 4” (Attachment B).

23. The VMP is to fully address all issues relating to the protection, establishment and maintenance of the riparian zone. The VMP is to include drawings that clearly show the approved extent of the riparian zones. The VMP is to clearly state planting densities and the species mix for all areas to be rehabilitated.

24. The riparian zones are to consist of a diverse range of native plant species local to the area and fully structured (ie trees, shrubs and groundcovers). The plant species used are to consist of species and communities that emulate the original situation. Planting densities are to be as follows:

At least 1 tree or 1 shrub (in approximately equal numbers) alternately planted at l plant per square metre and in addition, groundcover plants at 4 plants per square metre, unless otherwise specified in the VMP.

The riparian zones may be rehabilitated using a combination of methods, such as natural bush regeneration, brush matting, hydro-seeding, direct seeding or tube stock planting, provided the required densities are achieved by the end of the maintenance period. The methods and performance standards necessary to achieve the above are to be identified in the VMP.

Re-vegetation must be carried out over all areas in the riparian zone affected by the works, including all areas that are temporarily occupied by soil and water management controls, once those controls have been decommissioned and the ground surfaces restored to the correct profile and stabilised.

25. Bush regeneration, for weed control and to promote natural regeneration, is to be undertaken for a minimum distance of 10 metres beyond any disturbed areas in the riparian zones. Re-vegetation, in accordance with the standards required by these conditions, is to be undertaken in this 10 metre wide area if it is significantly degraded or is likely to give rise to weed invasion due to lack of native vegetation cover before or after weed control.

26. The VMP is to be implemented by persons suitably experienced in such work and they must be under the supervision of a person with professional qualifications, knowledge and experience in bushland rehabilitation practices.

27. DIPNR is to be advised, of the person responsible for any seed propagation prior to the commencement of propagation.

28. The person responsible for implementing the VMP must certify in writing to DIPNR that plantings (including follow-up plantings) have been carried out using stock propagated from seed or plant material collected only from native plants from the local botanical provenance.

This certification is to be provided with the first 6-monthly monitoring report and with the next monitoring report thereafter for any supplementary plantings.

Maintenance of Rehabilitated Areas within Riparian Zones

29. Rehabilitated riparian zones must be maintained and monitored for a period of at least two years after final planting. Maintenance must include sediment and erosion control, watering, weed control, replacement of plant losses, disease and insect control, mulching and any other requirements necessary for achieving successful vegetation establishment.

Exotic plant species not to be planted or placed within or near the riparian zone

30. No exotic plant species, other than temporary sterile cover crops, are to be planted within, or within 10 metres of, the riparian zones on the Site, unless otherwise approved by DIPNR.

31. Only certified weed-free and contaminant-free mulch is to be used on the Site. This is because mulch products imported onto the Site may contain weed seeds and viable vegetative matter and other contaminants, which could impact adversely on the vegetation, soil, water quality or ecology of the Site.

Works and Activities not to Compromise Implementation of the VMP

32. Works and activities at the Site must not compromise the implementation of the VMP in any way.

Works and Activities not to Compromise Riparian Zones

33. Riparian zones are to function as ecological systems and as such, all works, access routes, roads, recreational areas, service easements and any other non-ecologically functioning work or activity are to be located beyond riparian zones, unless detailed on plans approved by DIPNR, prior to the issue of a Part 3A permit.

Accessways not to compromise Protected Waters or Riparian Zones,

34. Any accessway, being a cycleway, pedestrian pathway or other non-vehicular form of accessway that may be proposed for the Site, is to be located preferably beyond the riparian zone. Any accessway that may be required to intrude into a riparian zone must be elevated with a minimurn underside clearance of 300mm and with a natural ground surface beneath, and must have a grated or slatted deck sufficient to allow the growth of groundcover vegetation beneath the structure. The width of any accessway is to be kept to an absolute minimum should it intrude into a riparian zone.

35. Any accessway proposed to be located within any riparian zone or protected waters is not to be constructed without consultation with, and prior approval of, DIPNR.

Bushfire Asset Protection Zones not to Compromise Riparian Zones

36. Any requirements for bushfire asset protection zones are not to compromise in any way the extent, form or function of the riparian zones.

Flooding Issues

37. The development is to satisfy all requirements of Council in relation to flooding issues, but in so doing, must not compromise in any way the form and function of the works and riparian zones required by these conditions.

Drainage issues

38. The development is to satisfy all requirements of Council in relation to drainage issues, but in so doing, must not compromise in any way the form and function of the works and riparian zones required by these conditions.

Soil Suitability

39. Wherever possible, riparian zone soils should be those naturally occurring at the Site. In the event that importation of soil material into the riparian zone is unavoidable, such soil is to be weed free and similar to that which occurs naturally in local riparian areas. Any soil selected for importation must be suitable for the establishment and on-going viability of riparian vegetation. Such soil must be tested and certified by a NATA registered soils laboratory to be: i) similar to the naturally occurring local soil, ii) suitable for the establishment and on-going viability of riparian vegetation, iii) free of any weed propagules, and, iv) free of any contaminants. Documentation arising from this testing and certification must be provided to DIPNR prior to the placement of any soil.

40. Any fill material placed in a riparian zone that is inconsistent with the requirements of the previous condition must be removed and relocated beyond the riparian zone or taken off-Site and disposed of in a lawful manner.

Soils not to be compacted

41. The structure of the soils in the riparian zones must be suitable for the vegetative rehabilitation of the Site and are therefore not to be proof rolled or subjected to other unsuitable compaction unless otherwise approved by DIPNR.

Water Quality and Environmental Protection

42. The Applicant must ensure that the amount of dirty water and sediment from the Site that enters protected waters or that is exposed to the flow of protected waters, or that is likely to detrimentally affect water quality, riparian vegetation or habitat or the environment, is minimised in a manner acceptable to DIPNR.

Site Water & Sediment Runoff Management

43. The Applicant must submit a Soil and Water Management Plan (SWMP) indicating how the works at the Site will achieve the outcome required in the previous condition. The SWMP must be prepared by a person, with professional qualifications, knowledge and experience to best practice, and to the satisfaction of Council and DIPNR, and approved by DIPNR, prior to the issue of the Part 3A permit. The SWMP must cover all works on protected land and in protected waters, and staging and maintenance requirements. The SWMP must meet the requirements outlined in the NSW Department of Housing's publication “Managing Urban Stormwater: Soils and Construction” (3rd Ed.)(1998). The SWMP is also to meet any EPA licence requirements.

44. All works and activities at the Site are to satisfy all requirements of Council in relation-to water pollution issues. Oils and greases, or any other contaminants, must not be permitted to pass to protected waters,

45. All relevant Site drainage and sediment and erosion control works and measures, and any other pollution controls, as required by these conditions, shall be implemented prior to commencement of any other works at the Site.

Maintenance of Erosion and Sediment Control Measures

46. All erosion and sediment control measures at the Site are to be inspected and maintained as required on a weekly basis and immediately following any rainfall events to ensure the efficient operation of these devices. This obligation remains until the Site has been fully stabilised.

Decommissioning of all sediment and erosion controls and water diversion structures

47. Decommissioning of all sediment and erosion controls and any water diversion structures must be documented in detail to the satisfaction of DIPNR. Decommissioning must meet the requirements outlined in the NSW Department of Housing's publication “Managing Urban Stormwater: Soils and Construction” (3rd Ed.)(1998). The timeframes for decommissioning are to be cross-referenced to the implementation of any riparian zone plantings. Decommissioning of sediment and erosion controls is not to detrimentally affect the implementation of the VMP.

Resolution of inconsistencies

48. In the event that there is any inconsistency between the drawings, other documentation and the conditions herein, the interpretation that will result in the best outcome for the stabilisation of the Site and the subsequent rehabilitation and maintenance of the Site and protected land and protected waters is to prevail. Such interpretation is to be applied in consultation with, and with the approval of, DIPNR.

Any Part 3A permit issued to be kept current

49. Any Part 3A permit issued for works proposed under the DA, and as required by these conditions, must be kept current by payment of the appropriate fee until such time as the Site has been fully stabilised and rehabilitated, and any required maintenance satisfactorily completed and reported on, in accordance with these conditions. Any application for renewal is to be lodged at least a month prior to the expiry date of the Part 3A permit.

General Advice
A. A Part 3A permit, subject to conditions, will be issued for the proposed works upon application.
B. Any Part 3A permit granted for works the subject of the DA will be for a period of one year.
C. Prior to the issue of the Part 3A permit the applicant must provide DIPNR with the following:
· A copy of Council's development consent including all conditions of approval.
· Any approval from NSW Fisheries required by these conditions.
· Sufficient number of sets of plans and other documentation that satisfy DIPNR's General Terms of Approval, and any associated recommendations, for distribution to: the proponent, Council, DIPNR and any other approval body likely to be affected by DIPNR requirements.
· The appropriate Part 3A permit fee paid and the required bond provided to DIPNR.
· Full details on land ownership of all areas affected by the proposed works, and authorisation for the works by the relevant landowners.
D. The rehabilitation of the Site in accordance with the Part 3A permit conditions and to the satisfaction of DIPNR is the responsibility of the Part 3A permit holder and the owner or occupier of the land.
E. The Part 3A permit holder and the owner or occupier of the land are responsible for construction of works or any excavation or removal of material undertakers by any other person or company at the Site.
F. Any Part 3A permit granted is not transferable to any other person or company without written approval from DIPNR and does not allow operations at any other site.
G. Any Part 3A permit granted does not give the holder the right to occupy any land without the consent from the owner(s), nor does it relieve the Part 3A permit holder of any obligation which may exist to also obtain permission from local government and other authorities who may have some form of control over the Site of the work and/or the activities proposed to be undertaken.
H. A "person" for the purposes of these General Terns of Approval (GTAs), means a person, persons or organisation authorized by the recipient of the consent for the DA, or their agent, should such consent be issued, to undertake any of the requirements of these GTAs.
I. These GTAs are issued with the proviso that operations shall be carried out on freehold land. Should operations be on Crown Land, any Part 3A pen-nit is rendered invalid for such Crown Land and has no force or effect on the same, and the occupier. of Crown Land should contact the Department of Lands and Rural Affairs for their requirements.

ATTACHMENT A
Stormwater Outlet Structures to Streams
(For pipes, culverts, drains and spillways - Version 1)
1. Assess the site and determine constraints: hydrology/hydraulics (channel and floodplain flood levels and velocities, water table, etc.); geomorphology (erosion, deposition, etc.); soils; geology; debris loads; contaminants; acid sulphate soils; salinity; roads/ pathways; archaeological/heritage; service infrastructure (water, sewerage, gas, electricity, communications); flora/fauna; public safety; etc.
2. Define the route and specific point of discharge: Address the identified constraints. Select a route that avoids trees (preferably beyond their drip line), service infrastructure etc.. Choose a stable section of stream bank for the discharge point (preferably mid-way between bends).
3. Address water quality and quantity issues: Ensure that the quality of water discharging to the stream is good, and that discharge rates mimic "natural" flows (magnitude, seasonality, frequency, variability), Locate water quality improvement structures (oil/grease interceptors, sediment traps, litter traps, constructed wetlands, etc.) and detention basins outside the riparian cone.
4. Define project tasks: For each task necessary to complete the structure and to rehabilitate the site, identify how it will be done, its duration, its sequence and who will do it.
5. Prepare an Erosion and Sediment Control Plan (ESOP): The ESOP must be prepared by a person with qualifications, knowledge and experience in the preparation of such plans, and must be in accordance with the NSW Department of Housing's publication “Managing Urban Stormwater: Soils and Construction” (3rd Ed,)(1998). The ESCP must address staging, maintenance and contingencies and trust ensure that during construction, storm events and storm flows down the drainage line and/or the stream will not cause erosion or sediment loss. Prior to commencing in-stream works, all materials, equipment and operators must be ready and works must be planned for a forecast dry weather period. Once commenced, works must be completed without delay. The ESOP must be implemented prior to the commencement of works. Disturbance to the Stream channel must be kept to an absolute minimum.
6. Describe site rehabilitation: Prepare a Vegetation Management Plan (VMP) in accordance with the guideline “How to Prepare a Vegetation Management Plan”. Site rehabilitation is to cover all disturbed areas and, together with weed control and bush-regeneration, is to extend at least 10 metres from disturbed areas. Any bare areas remaining after construction are to have previously stored topsoil re-spread and the litter layer restored. Any imported topsoil must be weed free. Grass seed or turf used in riparian areas must consist of non-invasive species and not species such as Kikuyu or Rhodes Grass.
7. Prepare a time frame (eg Gannt chart): List all tasks, their sequence, duration and ownership.
8. Design guidelines:
· outlet structure -not to protrude beyond the stream bank and to align evenly with the bank;
· outlet structure outlet to be located at invert level of stream and to point downstream;
· avoid use of concrete headwalls - pipes/culverts to rest on, and be packed in by, rip-rap;
· scour apron to be rip-rap and a cut-of provided; flanks to be rip-rap and keyed in;
· scour protect the bed of the stream near the outlet if not bedrock and if scour is likely;
· scour protect the opposite bank as required (consider bank material and "jet" effect);
· calculate tractive stresses generated from outlet discharges and from bank full stream discharges to determine rock size requirements for the structure;
· rip-rap to consist of angular run-of-quarry durable rock placed over a 200mm layer of 140mm median size angular cobbles over geotextile - all rock and cobbles to be racked with topsoil - gaps in rip-rap to be planted with local native sedges and rushes (cross-reference in VMP)
· if salinity is an issue, ensure pipe/culvert specifications conform with Australian standards;
· stockpile excavated litter layer, topsoil and subsoil separately for site rehabilitation.
9. Prepare drawings: Prepare concept sketches for DI.WC review. Final drawings to consist of Plan, Long Section, Cross-Section and detail drawings as required. Include a scale bar on all drawings.
10. Address other issues: signage, relevant legislation, planning instruments/guidelines, OH&S, liaison with DLWC and others (council, NSW Fisheries, etc.).
11. Prepare a costing: cost out the implementation of all stages and all components of the work - show details on the cost of materials and labour. Site rehabilitation costs can be addressed in the VMP.
12. Prepare a brief and concise report: report on all of the above.
Note: Riparian zone widths requirements are a minimum of 20m either side of a small stream, and a greater width for large streams. The riparian zone is required to aid the physical stability of the stream, to improve water quality and to provide habitat and biological connectivity values.

ATTACHMENT B

How to Prepare a Vegetation Management Plan

(Version 4)

1. Assess the site and determine constraints: Flora and fauna (previous studies, endangered species & ecological communities/ existing vegetation communities, etc,); habitat and corridor values; topsoil/ litter layer quality; hydrology/hydraulics (flooding, surface water runoff/drainage, velocities, water table, etc.); frost areas; fire issues; contaminants; acid sulphate soils; salinity, roads and pathways, railways, airfields, service infrastructure (water, sewerage, gas, electricity, communications); stock and herbivore access (rabbits, hares, ducks, etc.); shadow zones; drainage; topography (slope, aspect, soils, geology, erosion, deposition); weeds and weed sources, risk of vandalism, public safety issues, etc..

2. Define project tasks: describe each task necessary for the implementation of the plan, how each task will be done, the duration of each task, the priority order for each task and who will be responsible for undertaking each task.

3. Prepare a time frame (eg Gannt chart): address all tasks in the project.

4. Liaise: contact council Bushcare Officer, landcare or bushcare groups.

5. Provide details on seed collection and propagation: local native species only to be used - identify local native seed sources, check on any licences required - identify who will propagate.

6. Prepare maps/ diagrams and plant species lists: describe existing vegetation, constraints, vegetation and natural features to be retained, proposed vegetation (species/communities, zonation from water to land, corridors/ linkages, spacings, tubestock/ virocells/ long stem/ direct seeding, etc.), sediment and erosion control, stabilisation works, etc..

7. Provide details on site preparation:

· protection of plants to be retained;

· installation of sediment and erosion control devices;

· completion of any site works (if any);

· weed control (techniques and sequences of removal);

· application of herbicides;

· topsoil/ litter layer storage;

· soil remediation;

· surface preparation (levelling, deep ripping, scarifying, mulching etc.);

· surface stabilisation - (needs to be suitable for the site/vegetation - erosion matting, mulch, brush matting, sterile cover crops, binding sprays, etc.);

· site drainage.

8. Describe the planting programs and method: detail how it will be done, staging and also consider the installation of weed mats, mulch, stakes & ties, tree guards and the use of fertiliser types (justify their need), water-retaining crystals, etc..

9. Describe site and vegetation maintenance: sediment and erosion control, watering, replacement of plant losses, weed control, disease and insect control, mulch, etc.. (Note: DIPNR requires a minimum of two years maintenance after last plantings completed).

10. Describe the monitoring and review process: include a method of performance evaluation, assessing the need for replacing plant losses, addressing deficiencies and six-monthly reporting.

11. Address other issues: signage, relevant legislation, planning instruments/ guidelines, OH&S, community involvement, liaison with DIPNR and others, how other rafts of the site and adjacent areas can be managed to compliment the vegetation strategy (weed control, drainage, etc.), etc..

12. Prepare a costing: for the implementation of all stages and all components of the work - show details on unit cost, materials, labour, monitoring/ maintenance/ reporting, etc..

END

CITATION:	B Habibi & F Kazazi v Ku-ring-gai Municipal Council [2004] NSWLEC 354
PARTIES:	APPLICANT B Habibi & F Kazazi RESPONDENT Ku-ring-gai Municipal Council
FILE NUMBER(S):	11524; 10163 of 2004 of 2003
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Riparian protection
LEGISLATION CITED:	State Environmental Planning Policy No 55, (SEPP55) - State Environmental Planning Policy No 53, (SEPP53) - Ku-ring-gai Planning Scheme Ordinance, (KPSO) - Ku-ring-gai Dual Occupancy Development Control Code, (Code) - Ku-ring-gai Residential Good Design Manual, (DCP38) - Ku-ring-gai Notification Policy, (Policy) - Stormwater Management Manual (1993), (SMM) - Rivers and Foreshore Improvement Act 1948, (RFI Act)
CASES CITED:
DATES OF HEARING:	02/06/2004, 03/06/2004
DATE OF JUDGMENT:	07/07/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr I Hemmings, barrister, instructed by Mr J Hones, solicitor SOLICITORS: Hones Lawyers RESPONDENT: Mr R K Graham, solicitor SOLICITORS: Abbott Tout