Baker Kavanagh Architects Pty Ltd v Sydney City Council
[2004] NSWLEC 312
•06/25/2004
Land and Environment Court
of New South Wales
CITATION: Baker Kavanagh Architects Pty Ltd v Sydney City Council [2004] NSWLEC 312 PARTIES: APPLICANT
Baker Kavanagh Architects Pty Ltd
RESPONDENT
Sydney City CouncilFILE NUMBER(S): 10250 of 2003 CORAM: Brown C KEY ISSUES: Development Application :- Class 1 Appeal
CostsLEGISLATION CITED: South Sydney Local Environmental Plan 1998
Land and Environment Court Rules (Amendment No 8) 2003CASES CITED: Megna v Drummoyne Municipal Council (1988) NSWLEC 35, Huxley Homes v Muswellbrook Council (1994) NSWLEC 66, Bevillesta Pty Limited v Parramatta City Council (1988) 65 LGRA 358, ;
Urbis Pty Limited v Sutherland Shire Council (2001) NSWLEC 147 ;
Millerview Constructions Pty Limited v Eurobodalla Shire Council (2001) NSWLEC 239DATES OF HEARING: 13/04/04 DATE OF JUDGMENT: 06/25/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr P Tomasetti, barrister
SOLICITORS
Hardings
Mr D Parry, barrister
SOLICITORS
Pike, Pike and Fenwick
JUDGMENT:
10250 of 2003 Brown C 25 June 2003IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
v Sydney City CouncilBaker Finch Architects Pty Ltd
Applicant
Respondent Judgment
Background
1. This is an application for costs in relation to the Court's determination of Development Application DA U02 - 542 for the demolition of an existing dwelling house and the erection of a residential flat building at 44B Bayswater Road and 51A Roslyn Street, Elizabeth Bay (the subject site).3. On 10 March 2003 an appeal was lodged. The Statement of Issues raised the following main issues:2. The development application was lodged on 24 May 2002 with South Sydney City Council. The proposal involved 2 basement levels of car parking and 20 residential apartments over 8 levels. A report on the development application was submitted to the council's Planning and Development Committee on 19 February 2003 with a recommendation for approval. The report accepted the breaches in South Sydney Local Environmental Plan 1998 (the LEP) of the FSR( 2.38:1 for the proposal and 1.75:1 for the LEP) and height requirements (18.9m for the proposal and 9m for the LEP) were acceptable in terms of its context and architectural quality. On 13 March 2003 South Sydney City Council refused development consent for the proposed development.
- · height, the bulk, scale, mass, siting and design,
· character, appearance and amenity,
· landscape quality of the site,
· view loss,
· loss of solar access and privacy and
· obstruction of the adjoining right of way.
4 . On or around 8 May 2003, the subject site and other land within the South Sydney local government area was transferred to the control of Sydney City Council.
6 . On 6 July 2003, the applicant filed and served amended plans. These plans became the plans to be considered at the appeal on 3, 4 and 5 November 2003. The principal amendments involved:5 . Later in May 2003 the applicant lodged a s 82A Review application with Sydney City Council. It was subsequently withdrawn following discussions between the applicant and Sydney City Council over the non-compliance with FSR and height controls.
- · a reduction in the number of apartments to 16,
· the deletion of one complete floor and increased setbacks from the side boundaries on the top floor,
· a reduction in the FSR to 1.8:1,
· the reduction of the car parking to a single basement level and
· the reconfiguring of the car park access to allow access to the rights of way for the adjoining properties in Roslyn Street.
8 . On 6 December 2003 the applicant filed and served further amended plans. The principal amendments involved:
7 . On 3 November 2003 each party opened its case and tendered its evidence. A number of local residents gave evidence. On the morning of 4 November 2003, a view was undertaken of the subject site and surrounding properties, including the adjoining housing development for older people and a residential flat building on the opposite side of Bayswater Road. On returning, the applicant made to applications to the Court. The first application sought an adjournment of the hearing and the second application sought to file and rely on amended plans. The applications were opposed by the council unless the applicant agreed to pay the council's costs thrown away as a result. The applications were granted by the Court although no orders for costs were made as it was outside the power of the Court, at that time.
- · the removal of a further floor,
· the realignment of the car park access to allow access to a new parking space at the rear of 51 Roslyn Street,
· alterations to the car parking layout to reduce car numbers and move excavation away from existing trees,
· the deletion of the fires stairs and adjustment of the excavation to allow the retention of major trees,
· the amalgamation of rear units to replace the number of units potentially overlooking adjoining properties and
· the provision of adjustable louvred privacy screens to the rear balconies.
9 . The further amended plans reduced to the height of the building to 13.2 m and the FSR to 1.59: 1.
10 . On 13 April 2004, the parties agreed to enter into Consent Orders based on the further amended plans
The council's case
11 . The council makes alternative applications for costs. Firstly, the applicant pay the council's costs of the proceedings up to and including 6 December 2003, being the date on which amended plans were served and which satisfactorily addressed the council's concerns.
13 . For the first alternative, the council submits that is "fair and reasonable" for the applicant to compensate the council because:12 . Alternatively, the applicant pay the council's costs thrown away as a result of the adjournment of the hearing of the appeal on the second day of the scheduled three-day hearing.
- · the development application, as made and rejected and even as originally amended was an "ambit claim" or at least an "ill considered development application",
· at the same further amended application being lodged originally or even as an amendment subsequently the council would have approved, or would have consented to consent orders and,
· the applicant had prior notice of each of these matters or issues that it has sought to address by means of further amendments.
14 . For the second alternative, the council submits that is "fair and reasonable" for the applicant to compensate the council because:
· the applicant belatedly sought an indulgence from the Court to adjourn and amended to development application of the second day of the three-day hearing and
· the applicant had prior notice of the issues that made the amendments necessary.
16 . It is also submitted that details of the proposed development on 51 Roslyn Street that affected the access to the proposed development were not provided until 3 November 2003. Similarly, an internal inspection of the adjoining aged persons housing development did not occur until during the hearing and expert advice was not received on the popular trees grow in the rear of the subject site also until 3 November 2003. The applicant should not be penalised with an order for costs for seeking an opportunity to amend the plans. If the plans were not amended and the application was dismissed due to the aforementioned inpacts, the logical outcome would be that a new development application would be made and there would be further contentious proceedings.The applicant's case
15 . The applicant submits that the proceedings involved merit issues only. The applicant relied on independent planning and landscaping advice at all stages of the process. While it differed from that of the council, the Court was involved in the resolution of a legitimate and typical difference of opinion over merit planning issues.
.
The basis for an order for costs
17 . Prior to 2 February 2004, the practice of the Court was to award costs only where there were exceptional circumstances. From this date, the Land and Environment Court Rules (Amendment No 8) 2003 (the Rules) came into effect and amended the basis for costs in Class 1 cases. The relevant provision of Pt 16 of the Rules now reads:
- (2) No order for the payment of costs will be made in proceedings to which this Rule applies unless the Court considers that the making of a costs order is, in the circumstances of the particular case, fair and reasonable.
Where the Commissioner or Commissioners are of the opinion that a costs order should be made, the parties shall be informed of that decision and the reasons for it and shall be given the opportunity to make submissions to the Chief Judge on the question of whether he should give concurrence to the proposed costs order.10. Where an application for costs is made in proceedings that have been heard and determined by one or more Commissioners the application shall be made, to that Commissioner or those Commissioner's (as the case may be).
19 . In this case, the applicant has asked to Court to invoke the provisions of Pt 16 of the Rules.
Findings on costs
20 . On the first of the council's alternative applications for costs, I agree with the applicant's submissions. The evidence does not suggest that the development was an "ambit claim" or an "ill considered development application". The development had sufficient merit for the officers of South Sydney City Council to make a recommendation of approval. While the officers of Sydney City Council came to a different conclusion to their counterparts at South Sydney City Council, it is not such an unusual occurrence that it would support the council's submission. A significant part of the Court's work is adjudicating on differences of opinion between different experts. In coming to this conclusion, I have had regard to the fact that the planning controls for height and FSR provide a degree off its flexibility as they contain both quantitative and qualitative requirements.
21 . On the alternative proposition for an order for costs, I agree with the council’s submission. Mr Parry correctly draws the Court's attention to be established practice of the Court in awarding costs thrown away where a party seeks an adjournment with little, if any notice.
22 . To support the councils submission the Court was referred to the decisions of Megna v Drummoyne Municipal Council (1988) NSWLEC 35 , Huxley Homes v Muswellbrook Council (1994) NSWLEC 66 , Bevillesta Pty Limited v Parramatta City Council (1988) 65 LGRA 358 , Urbis Pty Limited v Sutherland Shire Council (2001) NSWLEC 147 and Millerview Constructions Pty Limited v Eurobodalla Shire Council (2001) NSWLEC 239
23 . I see little to distinguish the circumstances of these cases to the circumstances of the subject application. Even accepting that the change from South Sydney Council to Sydney City Council brought about a different assessment approach, the applicant was aware of the concerns of Sydney City Council at the time of the s 82A Review, some six months prior to the hearing. I do not understand that the approach to the development application by Sydney City Council changed over this time as the discussions on the s 82A Review and the expert town planning evidence at the hearing were undertaken by the same council officer.
24 . The awarding of costs in the above-mentioned cases were not made under the previous test of "exceptional circumstances" but under the accepted practice of making an order for costs thrown away by a belated adjournment. As the applicant was aware of the councils concerns, the proceedings had commenced and the adjournment ultimately led to the parties entering into consent orders it is "fair and reasonable" that the applicant pay the councils costs thrown away by the adjournment.
Conclusion
25 . For the above reasons, I am of the opinion that an order for costs should be made to the council for their costs thrown away by the adjournment.
__________26 . In accordance with cl 10 of the Land and Environment Court Practice Direction 1993 , the parties are given the opportunity to make submissions to the Chief Judge on the question on whether he should give concurrence to the proposed costs order.
G T Brown
Commissioner of the Court
Annexure A
Baker Kavanagh Architects Pty Ltd v Sydney City CouncilConditions of Development Consent
44B Bayswater Road, Elizabeth Bay
FLOOR SPACE RATIO
APPROVED DEVELOPMENT
1. Development must be in accordance with the following approved plans:
(a) A 02 b Basement Car Park Plan dated 18 March 2004
(b) A 03 b Basement Ground Floor and Level 1 plans dated 18 March 2004
(c) A 04 a Levels 2 & 3 plans dated 1 December 2003
(d) A 05 a Level 4 & 5 Plan dated 1 December 2003
(e) A 06 a Street Elevation and Rear Elevation dated 1 December 2003
(f) A 07 a Side Elevation - West dated 1 December 2003
(g) A 08 a Side Elevation East dated 1 December 2003
(h) A 09 Section A - A dated 1 December 2003
Prepared by Baker Kavanagh Architects;
(i) Plan Indicting Levels of Driveway adjacent to proposed new parking at 51 Roslyn Street, Elizabeth Bay dated February 2004 Prepared by Spence Pearson Architects; and
(j) Landscape Plan SK01C dated (by handwritten annotation) 24 March 2004
prepared by Pittenrigh Shinkfield Bruce Pty Ltd.
EXTERNAL FINISHING MATERIALS
2. Final samples of the external finishing materials to be used in the construction of the development shall be submitted to and be approved by Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.
3. The following applies to Floor Space Ratio:-
(a) The Floor Space Ratio of the proposal must not exceed 1.59:1 calculated in accordance with the Central Sydney Local Environmental Plan 1996. For the purpose of the calculation of FSR, the Floor Space Area of the development is 994.4 sqm.
(b) Prior to issue of an Occupation Certificate under the Environmental Planning and Assessment Act 1979, a Registered Surveyor shall provide certification of the total and component Floor Space Areas (by use) in the development, to the satisfaction of the Principal Certifying Authority (PCA) (Council or a private accredited certifier). BUILDING HEIGHT
(b) Prior to issue of an Occupation Certificate under Environmental Planning and Assessment Act 1979, a Registered Surveyor shall provide certification of the height of the building as detailed above, to the satisfaction of the Principal Certifying Authority (PCA) (Council or a private accredited certifier).
RIGHTS OF WAY
5. The existing rights of way across the site which benefit adjoining properties shall remain.
6. A gated access shall be provided across the Roslyn Street frontage of the site. The operation of the gated access shall be such that it does not prevent the use of the existing rights of way across the site which benefit adjoining properties. Design details of the gated access shall be submitted to and be approved by Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.
LANDSCAPING AND TREE PROTECTIONROOF TOP PLANT AND EQUIPMENT
7. All “roof top plant and equipment”, with the exception of minor projections, shall be contained within the approved building envelope. Details of all such roof top plant and equipment and projections shall be submitted to and be approved by Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.
8. A final detailed landscape plan and report, prepared by a landscape architect or approved landscape consultant, must be submitted to and be approved by Council prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.
- The landscape plan and report must include:
(b)
(c) Details of excavation methods in respect of the land to be excavated within the primary root zone of the trees o be retained;
(d) Details of earthworks including mounding and retaining walls and planter boxes;
(e) Location, numbers and type of plant species;
(f) Details of planting procedure and maintenance;
(g) Details of drainage and watering systems;
(h) Details of tree protection, for trees to be retained on site and street trees in the vicinity of the site, to be employed during construction.
9. The site shall be landscaped in accordance with the approved landscape plan, on completion of the construction of the building and prior to the issue of an Occupation Certificate under the Environmental Planning and Assessment Act 1979.
10. The trees to be retained shall be protected at all times during construction in accordance with the tree protection measures approved as part of the landscape plan.
11. The applicant is to commission an experienced aborist to work with the consultant team throughout the design development, contract documentation and construction stages of the project who is to be involved in the resolution of all matters relating to the retention of trees on the site. In this regard the aborist is to supervise all excavation works within the primary root zone of the trees to be retained so as to ensure that such works are carried out in a manner consistent with the approved landscape plan/report and in a manner which will minimize impact on the trees to be retained.
12. The consent from Council is to be obtained prior to any pruning works being undertaken on any tree, including tree/trees located in adjoining properties. This includes the pruning of any roots that are 30mm in diameter or larger. All pruning shall be carried out by a certified Tree Surgeon/Arborist and conform to the provisions of AS4373-1996 Australian Standard for Pruning Amenity Trees.
13. Prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979 the owner of the site must provide a bank guarantee for the sum of $50,000 as security against the removal or damage of the trees on site that are to be retained.
14. As a consequence of this development, Council has identified an additional demand for public amenities and facilities. Pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979, and South Sydney City Council Section 94 Contributions Plan 1998, the following monetary contributions towards the cost of providing facilities and amenities are required.
- Contribution Category Amount
- Open Space: LGA Works Programme $1726
Open Space: New Parks $7672
Management $122
Total $9571
(a) The above payments, with the exception of the land acquisition component of New Parks and Management, will be adjusted according to the relative change in the Consumer Price Index using the following formula. The contribution for land will be adjusted in accordance with the latest annual valuations.
- Contributions at Time of Payment = C x CPI 2
- where:
C is the original contribution amount as shown above;
- CPI2 is the Consumer Price Index: All Groups Index for Sydney available from the Australian Bureau of Statistics at the time of payment; and
CPI1 is the Consumer Price Index: All Groups Index for Sydney available from the Australian Bureau of Statistics at the date of calculation being - Quarter 1998/99.
(c) Payment shall be made (before the release of the Construction Certificate / before the use is commenced or the release of the Occupation Certificate whichever occurs first.) (Delete as applicable)
Note: No works, including works listed in the adopted Section 94 Contributions Plan, will be off-set against monetary Section 94 Contributions without prior written approval by Council in the form of a letter referring to detailed specifications and costs. Endorsed DA and construction plans relate to the subject site only and cannot be taken as approval to carry out any works beyond the boundary of the site.
(d) Applications for the payment of contributions by carrying out works which are identified in the Section 94 Contributions Plan will be considered on their merits.
(e) To support the case for carrying out works, Council requires the submission, for formal approval, of complete construction documentation and detailed cost estimates of the works based on established industry standards.
(f) Applicants are advised to contact the Council as soon as possible concerning the specific requirements for any proposal for works-in-kind. Details submitted after the lodgement of the Construction Certificate may not be approved in time to allow the work to be carried out concurrent with the main project. Approved Works will only be off-set against the same category of works.
(g) Unless otherwise agreed, security in the form of an unconditional bank guarantee for the full contribution amount must be lodged with Council and will be held until the approved works have been certified as complete to the satisfaction of Council. For substantial works, Council may, at its discretion, hold the bank guarantee, or part thereof, until the elapse of a minimum defects liability period of at least twelve months after the practical completion of the works. Works to be carried out on public land will also require proof of public liability insurance.
(h) Council also reserves the right to require the future management of the completed work to be formally agreed prior to acceptance.
Note: Works carried out without written approval by Council, in the form of a letter referring to detailed specifications and costs, will not be off-set against Section 94 Contributions and, if carried out on public land, may expose the responsible party to prosecution in addition to the cost of reinstatement.
- Note: This prohibition on participation in the resident permit parking scheme will be recorded on the Section 149 Certificate for this property under the Environmental Planning and Assessment Act 1979.
16. If required the owner must dedicate to Energy Australia, free of cost, an area of land within the development site to enable an electricity substation to be established. Details of the size and location of any such substation are to be submitted to and be approved by Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.
17. Access and facilities for people with disabilities shall be provided in accordance with Part D3 of the Building Code of Australia and Council’s Access Policy. Prior to issue of a Construction Certificate under Environmental Planning and Assessment Act 1979, a certificate certifying compliance with this condition OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act 1979) must be provided, and copy submitted to Council.
PUBLIC DOMAIN PLANSTRATA PLAN APPROVAL
18. Any proposal to strata subdivide the building will require a separate application to Council or an accredited certifier to approve the Strata Plan in accordance with Section 37 of the Strata Schemes (Freehold Development) Act 1973.
19. The following requirements apply:-
(a) Three copies of a detailed Public Domain Plan shall be prepared by an architect, urban designer or landscape architect and shall be approved by Council (to be lodged with the Public Domain Officer at City Projects) prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. It is recommended that draft plans should be submitted for comment prior to formal submission for approval.
(b) The Public Domain Plan shall be as follows:-
(i) Drawn at 1:100 scale.
(ii) Show the entire layout of flagstone paving where this paving is required.
(iii) Nominate the location, type and material of all existing and proposed public pavement elements including trees, paving, kerbs and gutters, pedestrian ramps, vehicle crossings, street furniture, utility poles, parking meters, pedestrian and traffic signals, service pits and stormwater pits.
(iv) Include a longitudinal section of the pavement showing existing and proposed levels at 10 metre intervals at the building alignment, the kerb and the gutter on a common datum line. This longitudinal section is to be drawn at 1:100 horizontal scale and 1:10 (exaggerated) vertical scale. This section is to ensure that any significant longitudinal gradient change, such as flattening for vehicle entries, occurs within the building line and not at the public pavement.
(v) Include 1:50 scale cross sections through pedestrian ramps and vehicle crossings.
(vi) Include specifications of the proposed works.
(c) The Public Domain Plan shall comply with the specifications and details of the Central Sydney Paving Design Policy 1996 and Council’s Specifications and the Central Sydney Street Tree Policy 1994.
(d) The Public Domain Plan shall incorporate the standard specifications and detail of the Central Sydney Paving Design Policy 1996 and Council’s Specifications adapted to suit the specific site requirements as advised by the Public Domain Officer and may include:-
(i) Adjustment to paving grades to provide a maximum crossfall of 2.5% from building line to top of kerb.
(ii) Repaving in accordance with Central Sydney Paving Design Policy 1996 and Council’s Specifications. All granite paving (where applicable) is to be sealed in accordance with Council’s specifications.
(iii) The relocation or provision of new vehicle crossovers and pedestrian ramps including the consequent relocation of existing service pits, traffic signals, kerb corner radii, signs, street furniture and street trees.
(iv) The retention of existing street trees and the provision of new street trees to comply with the Central Sydney Street Tree Policy 1994.
(v) The repair and where required the resetting of all stone kerbing to 150mm above the gutter height and the replacement of concrete kerbing with stone kerbing. Where adjustments require substantial kerb and gutter demolition, the carriageway shall be reconstructed to the centre line of the carriageway.
(vi) The retention and repair of any existing pavement lights.
(vii) The retention and repair of any existing serviceable stone gutters.
(viii) The realignment and level adjustment of service pit lids to correspond to new kerb ramps and paving. New service pit lids in flagstone paving to be infill type, with stone infill to match stone paving surrounds. New service pit lids in asphalt paving to be infill type, with cement mortar infill coloured to match adjoining asphalt.
(ix) The provision of smart pole(s), (to be provided at the applicants cost).
(e) Random checks by Council officers may be made throughout the construction process to advise the contractor of non-complying elements. However, no parts of the work are to be considered approved until receipt of the City of Sydney Certificate of Completion. The City of Sydney will require all non complying parts to be rectified prior to issue of this letter.
(f) An “Application for Approval of Footpath Levels and Gradients” must be submitted at the City’s One Stop Shop with the appropriate fee at the time of lodgement of the public domain proposal. The fee will be determined in accordance with the City of Sydney Schedule of Fees and Charges.
Note: 3 Copies of the Public Domain Plan are to be lodged with the Manager Design, City Projects.
ON SITE PARKING
20. The following conditions apply to car parking:-
(a) The on-site car parking spaces, exclusive of service and visitor car spaces, are not to be used by those other than an occupant, tenant or resident of the subject building. Any occupant, tenant, lessee or registered proprietor of the development site or part thereof shall not enter into an agreement to lease, license or transfer ownership of any car parking spaces to those other than an occupant, tenant, lessee or resident of a unit in the building.
(b) Prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979 a documentary Restrictive Covenant, is to be registered on the Title of the development site pursuant to Section 88E of the Conveyancing Act 1919, to the effect of (a) above. The Covenant is to be created appurtenant to Council, at no cost to and to the satisfaction of Council.
(c) Any future strata subdivision of the site is to include a Restriction on User pursuant to Section 39 of the Strata Titles (Freehold Development) Act, 1973, as amended, burdening all utility car parking allotments in the Strata Plan and/or an appropriate Restrictive Covenant pursuant to Section 88B of the Conveyancing Act 1919 burdening all car parking part - lots in the strata scheme.
Note:
NOISE REDUCTION(i) The covenant/restriction will be noted on the Section 149 Certificates for all the units/building so burdened by this condition.
21. Prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979, an acoustic assessment report must be submitted to and approved by Council or the private accredited certifying authority addressing the requirements of the Central Sydney DCP 1996 Amendment No.5 Internal Residential Amenity (adopted as policy in respect of the areas transferred from the South Sydney Council area on 8 May 2003). The approved drawings and specifications for construction are to be in accordance with the following:
(a) The report shall indicate measures to preserve the amenity for residents/apartment users such that the repeatable LAeq (1 hour) level will not exceed the following levels:-
(i) In a naturally ventilated - windows closed condition:
a. Sleeping areas (night time only: 2200-0700) 35dB
b. Living areas (24 hours) 45dB
(ii) In a naturally ventilated - windows open condition, (ie windows open up to 5% of the floor area, or attenuated natural ventilation open to 5% of the floor area):
a. Sleeping areas (night time only: 2200-0700) 45dB
b. Living areas (24 hours) 55dB
(iii) Where a naturally ventilated - windows open conditions cannot be achieved, it is necessary to incorporate mechanical ventilation or air conditioning.
(iv) The following repeatable maximum LAeq (1 hour) levels shall not be exceeded when doors and windows are shut and mechanical ventilation or air conditioning is operating. These levels correspond to the combined measured level of external sources and the ventilation system operating normally:-
a. Sleeping areas (night time only: 2200-0700) 38dB
b. Living areas (24 hours) 46dB
(b) In the preparation of the report:
(i) The environmental noise monitoring at the site of the proposed development shall be undertaken for not less than 3 week days, or not less than 2 weeks where the site is affected by noise from part-time operations;
(ii) The repeatable maximum LAeq (1 hour) for the daytime period (0700-2200 hours) and for the night time period (2200-0700 hours) is to be identified, and
(iii) The LAeq (1 hour) noise levels within living rooms and bedrooms with windows and doors both open and closed shall be shown.
(c) All residential buildings and serviced apartments are to be designed and constructed in accordance with the above criteria. The completed work must comply with the above conditions prior to issuing an Occupation Certificate (see condition in Schedule E of this consent).
(a) In order to assist acoustic control of airborne noise between units:
(i) A wall shall have a Field Sound Transmission Class (FSTC) of not less than 50 if it separates sole occupancy units or a sole occupancy unit from a plant room, stairway, public corridor, hallway or the like.
(ii) A wall separating a bathroom, sanitary compartment, laundry or kitchen in one sole occupancy unit from a habitable room (other than a kitchen) in an adjoining unit shall have an FSTC of not less than 55.
(iii) A floor separating sole occupancy units must not have a FSTC of less than 50.
(b) In order to assist acoustic control of impact noise between units:
(i) A floor shall have an Impact Isolation Class (IIC) of not less than 50 if it separates habitable rooms of sole occupancy units or a sole occupancy unit from a plant room, stairway, public corridor, hallway or the like.
(ii) A floor separating a bathroom, sanitary compartment, laundry or kitchen in one sole occupancy unit from a habitable room (other than a kitchen) in an adjoining unit shall have an IIC of not less than 55.
(iii) Walls between sole-occupancy units shall comply with impact sound resistance standards specified in the BCA.
(c) Council or the private Principal Certifying Authority must ensure that the completed work complies with the above conditions prior to issuing an Occupation Certificate (see condition in Schedule E of this consent).
WASTE MANAGEMENT24. Prior to issue of an Occupation Certificate, a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) must be submitted to the satisfaction of the Principal Certifying Authority (PCA) (Council or a private accredited certifier). This must certify compliance with the Acoustic Privacy of this consent.
25 (a) A Waste Management Plan for the demolition and/or excavation of the proposed development must be submitted to the satisfaction of the Principal Certifying Authority (and a copy submitted to Council if it is not the PCA) before commencement of work on the site .
(b) Certification that the plan is in accordance with the Development Approval Conditions, Council’s Code for Waste Handling in Buildings and the Waste Minimisation and Management Act 1995 , must be submitted to the satisfaction of the Principal Certifying Authority. Such Certification must be submitted by an appropriately qualified person experienced in Waste Handling Design and Environmental Management.
(c) The Waste Management Plan must address demolition and excavation, as applicable. The Plan must describe procedures by which waste will be minimised, managed and recycled and must address the following issues:-
(i) Compliance with the requirements set out in Annexure (“A”) of the Code for Waste Handling in Buildings adopted by Council 17 October 1994.
(ii) Details of recycling and the removal of spoil and rubbish from the site in the course of demolition and excavation operations including:-
a. Type and quantities of material expected from demolition and excavation;
b. Name and address of transport company;
c. Address of proposed site of disposal;
d. Name/address of company/organisation accepting material;
e. Types and quantities of materials that are to be reused or recycled, on and off site and procedures involved;
f. Name of company/contractor undertaking on and off site reuse and recycling, and address of recycling outlet;
g. Material for disposal and justification of disposal;
h. If details of items (ii) to (vii) are not known at the time of preparation of the Waste Management Plan, the information must be supplied immediately after the letting of the contacts.
(d) All requirements of Waste Management Plans must be implemented during the demolition and/or excavation period of the development.
- Note:
The Principal Certifying Authority must be notified of any proposed change in any of the above details throughout the course of work.
(a) The design of the building and the methods of storage and handling of waste and recyclable material must comply with Council’s Code for Waste Handling in Buildings (adopted 17 October 1994). The Code requires the submission of a Waste Management Plan, except for minor partition work (Annexure “A” of the Code).
(b) Certification of compliance with the design and constructional requirements of the Code including the associated Waste Management Plans and with the Conditions of Development Application consent relating to waste must be submitted to and approved by the Certifying Authority prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. Such Certification must be given by the Architect or other appropriately qualified person experienced in Waste Handling Design and Environmental Management.
(c) The Certified Plans and Specifications must address compliance with the Waste Code including details of the following, where applicable:-
(i) The location, design and construction of the garbage room, recycling rooms, bin washing areas and collection areas.
(ii) The natural or mechanical ventilation, in accordance with the Building Code of Australia and Australian Standard 1668.
(iii) The location and design of any garbage chutes or compaction units required by Council’s Code.
(iv) The proximity of waste handling facilities to commercial food areas or loading docks, with a view to avoiding cross contamination.
- Note:
(b) Should any Aboriginal relics be unexpectedly discovered then all excavation or disturbance of the area is to stop immediately and the National Parks and Wildlife Service is to be informed in accordance with Section 91 of the National Parks and Wildlife Act, 1974.
| DEMOLITION/SITE RECTIFICATION 28. The following conditions apply to the development:- (a) Demolition or excavation must not commence until a Construction Certificate has been issued under the Environmental Planning and Assessment Act 1979 for construction of the substantive building. (b) Prior to issue of the Construction Certificate, documentary evidence must be provided to Council that the owner of the site has entered into a Deed with Council, the cost of preparation and execution of such Deed (including stamp duty and registration fees) to be borne by the applicant, which contains such conditions as the General Manager of the Council reasonably requires to ensure the matters set out in this condition are adequately provided for. (c) Without limiting the generality of paragraph (b), the Deed must provide for:- (i) a bank guarantee to be provided in the sum of $155, 475 dollars as security for the costs of such works provided that:- a. the maximum liability under the Deed shall not exceed $155, 475 dollars; and b. the Council may accept a lesser amount as security if substantiated by detailed design and costing for works which meet the objectives of the condition. (ii) Council to be given sufficient contractual rights to be able to ensure that in any of the following events namely: a. demolition of the existing building has commenced but not been completed; b. the existing building has been demolished; or c. the site has been excavated; or d. the structure has commenced to be erected;
f. allow the ground level to be landscaped and made attractive from any public vantage point; or g. for the hole to be covered to allow it to be landscaped and made attractive from any public vantage point; or h. in the event that the new building is constructed beyond the ground floor, to allow any hoardings to be removed and the ground floor development to be completed to a tenantable stage;
(i) require certain works including but not limited to those works necessary to achieve the results referred to in sub-clause (c) (ii)e. - h. to take place on the site; and (ii) in the event of default, shall have the right to enter and carry out these works and to call upon security in the nature of a bank guarantee to cover the cost of the works. STORMWATER AND DRAINAGE 29. (a) Certification by a hydraulic engineer that stormwater will be disposed from the site in accordance with Council’s standard requirements, shall be submitted to and approved by the Certifying Authority prior to issue of a Construction Certificate under Local Environmental Planning and Assessment Act 1979. (b) Any proposed connection to the City’s underground drainage system will require the owner to enter into a Deed of Agreement with the City and obtain registration on Title of a Positive Covenant prior to commencement of any work within the public way, at no cost to the City. | STRUCTURAL ENGINEERS REPORT |
30. A Structural Engineer’s Report is to be submitted for Council’s approval, prior to the release of the Construction certificate, outlining methods to be followed to retain the structural integrity of the adjacent buildings.
31. Prior to the commencement of work , the following documentation must be submitted to the satisfaction of the Principal Certifying Authority (PCA) and a copy of same submitted to Council (if it was not the PCA):
(a) Structural Drawings showing all new fully detailed structural elements, prepared by an appropriately qualified practising Structural Engineer, corresponding with and attached to a Structural Certificate (see (b));
(b) Structural Certificate/s for Design , of all new fully detailed structural elements and for checking any structural elements supporting the new work, submitted in the form of Attachment S1A completed by the Project/Principal Engineer and S1B completed usually by the Architect, OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979), after the structural drawings have been checked and comply with:
(i) The relevant clauses of the Building Code of Australia (BCA);
(ii) The relevant conditions of Development Consent;
(iii) The Architectural Plans incorporated with the Construction Certificate; and
(iv) The relevant Australian Standards listed in the BCA (Specifications A1.3);
(v) Any other relevant report/s or documents. Specify on Attachment S1A.
(c) Repeat (a) and (b) for any revision, or staged submission of structural drawings.
Notes:
(d) An appropriately qualified practising structural engineer certifying by completing Attachment S1A must have:-
(i) Appropriate tertiary qualifications in Civil or Structural Engineering; AND
(ii) Corporate membership of the Institution of Engineers Australia or equivalent; AND
(iii) Evidence of relevant experience in the form of a CV/Resume;
(iv) Appropriate current professional indemnity insurance.
(e) An appropriately qualified practising structural engineer certifying by issuing a Compliance Certificate must have accreditation as a certifier for Structural Engineering issued by the Institution of Engineers Australia in accordance with the Environmental Planning and Assessment Act 1979.
(i) An appropriately qualified person certifying by completing Attachment S1B must have a good working knowledge of the Building Code of Australia and Structural and Architectural drawing co-ordination so that all structural elements supporting the new work are fully certified by the project structural engineer.
(ii) Certification of Inspection/s is also required prior to issue of the Occupation Certificate, and/or prior to use. See Schedule 1E Conditions.
(a) The site has been periodically inspected and the structural certifier is satisfied that the Structural Works are deemed to comply with the final Design Drawings; and
(b) The drawing revisions listed on the Inspection Certificate have been checked with those listed on the final Design Certificate/s.
- A copy of the Certificate with a microfilm set of the final drawings shall be submitted to Council if it was not the PCA.
Notes:
(i) Appropriate tertiary qualifications in Civil or Structural Engineering, AND ;
(ii) Corporate membership of the Institution of Engineers Australia or equivalent; AND
(iii) Evidence of relevant experience in the form of a CV/Resume;
(iv) Appropriate current professional indemnity insurance.
(d) An appropriately qualified practising structural engineer certifying by issuing a Compliance Certificate must have accreditation as a certifier for Structural Engineering issued by the Institution of Engineers Australia in accordance with the Environmental Planning and Assessment Act 1979. DEMOLITION WORK METHOD STATEMENT
| 33. (a) Prior to the commencement of demolition work a licensed demolisher who is registered with the WorkCover Authority must prepare a Work Method Statement to the satisfaction of the Principal Certifying Authority (Council or an accredited certifier) and a copy sent to Council (if it is not the PCA). A copy of the Statement must also be submitted to the WorkCover Authority. |
| (b) The Statement must be in compliance with AS2601-1991 Demolition of Structures, the requirements of WorkCover Authority and conditions of the Development Approval, and must include provisions for:- |
| (i) Enclosing and making the site safe, any temporary protective structures must comply with the Guidelines for Temporary Protective Structures (April 2001); |
| (ii) Induction training for on-site personnel; |
| (iii) Inspection and removal of asbestos, and contamination and other hazardous materials; |
| (iv) Dust Control:- |
| Dust emission must be minimised for the full height of the building. A minimum requirement is that perimeter scaffolding, combined with chain wire and shade cloth must be used, together with continuous water spray during the demolition process. Compressed air must not be used to blow dust from the building site. |
| (v) Disconnection of Gas and Electrical Supply; |
| (vi) Fire Fighting:- |
| Fire fighting services on site are to be maintained at all times during demolition work. Access to fire services in the street must not be obstructed. |
| (vii) Access and egress:- |
| No demolition activity shall cause damage to or adversely affect the safe access and egress of this building. |
| (viii) Waterproofing of any exposed surfaces of adjoining buildings; |
| (ix) Control of water pollution and leachate and cleaning of vehicles tyres:- |
| Proposals shall be in accordance with the Protection of the Environmental Operations Act 1997. |
| (x) Working hours, in accordance with this Development Consent; |
| (xi) Confinement of demolished materials in transit; |
| (xii) Proposed truck routes, in accordance with this Development Consent; |
| (xiii) Location and method of waste disposal and recycling in accordance with the Waste Minimisation and Management Act 1995. |
| The demolition by induced collapse, the use of explosives or on-site burning is not permitted. EXCAVATION WORK METHOD STATEMENT |
34. Prior to commencement of site excavation works, an Excavation Work Method Statement prepared by an appropriately qualified person must be submitted to the satisfaction of the Principal Certifying Authority (PCA) (Council or an accredited certifier) and a copy submitted to Council (if it is not the PCA). The Statement must include:-
(a) Name and address of the company/contractor undertaking excavation works;
(b) The name and address of the company/contractor undertaking off site remediation/disposal of excavated materials (if applicable);
(c) Name and address of the transport contractor, and location of the disposal site;
(d) Type and quantity of material to be removed from site;
(e) A Materials Handling Statement for the removal of refuse from the demolition site, in accordance with the provisions of the Waste Minimisation and Management Act 1995 ;
(f) A Dust Control Method Statement for excavated sandstone or other excavation materials;
(g) Procedures to be adopted for the prevention, of loose or contaminated material, spoil, dust and litter from being deposited onto the public way from trucks and associated equipment, and the proposed method of cleaning surrounding roadways from such deposits;
(h) Measures to enclose the excavation site, including safety barriers, particularly if the excavation is greater than 1.5 metres deep. Plastic jersey kerb barriers are not permitted;
(i) Any WorkCover Authority requirements.
- Note:
(i) A copy of all Reports/Statements referenced in the Work Method Statement must be appended to the Statement.
(ii) The Principal Certifying Authority is to be notified of any proposed alteration of the above information during the course of demolition.
(iii) On completion of removal of contaminated materials, a certificate shall be submitted to the PCA, and a copy provided to the Council (if it is not the PCA) testifying to the safe and proper disposal, and amount of all such material.
APPLICATION FOR HOARDINGS AND SCAFFOLDING ON A PUBLIC PLACE35. Where construction/building works require the use of a public place including a road or footpath, approval under Section 68 of the Local Government Act 1993 for a Barricade Permit is to be obtained from Council prior to the commencement of work. Details of the barricade construction, area of enclosure and period of work are required to be submitted to the satisfaction of Council.
36. A separate application is to be made to Council for Approval under Section 68 of the Local Government Act 1993 to erect a hoarding or scaffolding in a public place and such application is to include:-
(a) Architectural, construction and structural details of the design in accordance with the Policy for the Design and Construction of Hoarding (September 1997) and the Guidelines for Temporary Protective Structures ( April 2001).
(b) Structural certification prepared and signed by an appropriately qualified practising structural Engineer.
(c) Evidence of the issue of a Structural Works Inspection Certificate and structural certification will be required prior to the commencement of demolition or construction works on site.
(d) Assessment of the impacts of construction and final design upon the City of Sydney’s street furniture such as bus shelters, phone booths, bollards and litter bins. Street furniture must be accessible during construction for use and maintenance. Note: The cost of any removals, storage and relocation during construction, and reinstatement upon completion, must be borne by the applicant. The applicant must also seek permission from the telecommunications carrier (eg. Telstra) for the removal of any public payphones.
38. The following protective measures shall be provided under any hoarding on the public footway during construction of the development to the satisfaction of the Council:-
(a) Plastic sheeting to cover the paving;
(b) Minimum 12mm thick plywood on top of the plastic sheeting; and
(c) These measures shall be maintained in a safe and tidy condition for the duration of construction. APPLICATION FOR A ROAD OPENING PERMIT
39. A separate Road Opening Permit under Section 138 of the Roads Act 1993 shall be obtained from City Care Unit of the City of Sydney prior to the commencement of any:-
(a) Excavation in or disturbance of a public way, or
(b) Excavation on land that, if shoring were not provided, may disturb the surface of a public road (including footpath).
Documents required with the Road Opening Permit application include:-
(a) A plan and relevant sections showing scope of works, boundaries, utility services, levels of proposed excavation, and details of method of reinstating public way;
(b) Evidence that public utility drawings have been inspected;
(c) Evidence of a $10 million dollar Public Liability Insurance Policy specifically indemnifying the City of Sydney, valid for at least the duration of the project;
(d) A Security Deposit for reinstatement of public way. The Road Opening Permit will be subject to further conditions that shall be complied with.
41. A Survey Certificate shall be submitted at the completion of the building work from a Registered Surveyor certifying the location of the building in relation to the boundary lines of the allotment.
PEDESTRIAN AND TRAFFIC MANAGEMENT DURING CONSTRUCTION
42. A Pedestrian and Traffic Management Plan must be submitted to and approved by Council prior to the issue of a Construction certificate and must include details of:-
(a) Proposed ingress and egress of vehicles to and from the construction site;
(b) Proposed protection of pedestrians adjacent to the site;
(c) Proposed pedestrian management whilst vehicles are entering and leaving the site;
(d) Proposed route of construction vehicles to and from the site.
- The Pedestrian and Traffic Management Plan shall be implemented during the construction period.
43. The following requirements apply:-
(a) All loading and unloading associated with construction must be accommodated on site.
(b) If, during excavation, it is not feasible for loading and unloading to take place on site, the provision of a construction zone may be considered by Council.
(c) In addition to any approved construction zone, provision must be made for loading and unloading to be accommodated on site once the development has reached ground level.
(d) If a construction zone is warranted, such an application must be made to Council prior to commencement of work on the site. An approval for a construction zone may be given for a specific period and certain hours of the days to reflect the particular need of the site for such facility at various stages of construction. The approval will be reviewed periodically for any adjustment necessitated by the progress of the construction activities.
(a) concrete trucks, concrete pumps and their attachments, and trucks used for the disposal of spoil shall not be washed out on the public way;
(b) any water collected from on-site washing down of concrete trucks, concrete pumps or their attachments and trucks used for the disposal of spoil shall not be pumped, directed or allowed to flow to the street stormwater system;
(c) any seepage or rain water collected on site during construction shall not be pumped to the street stormwater system unless separate prior approval is given in writing by Council and evidence of approval is to be submitted to the Principal Certifying Authority prior to discharge into such system. SYDNEY WATER CERTIFICATE (NEW DEVELOPMENT)
| 45. (a) Prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979, written confirmation that you have obtained a Notice of Requirements under Part 6, Division 9 of the Sydney Water Act 1994 must be submitted to the Certifying Authority (Council or a private accredited certifier). |
| (b) Prior to issue of a construction certificate, under the Environmental Planning and Assessment Act 1979, the approved development application plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whatever the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements and if further requirements need to be met and is to be submitted to the Principal Certifying Authority (Council or a private accredited certifier). |
| Note: |
| (i) For Quick Check agent details please refer to “your business” section of Sydney Water’s website at then see Building and Renovating under the heading Building & Developing, or telephone 132 092. |
| (c) Prior to issue of an Occupation Certificate under the Environmental Planning and Assessment Act 1979, a (Developer) Compliance Certificate under Section 73 of the Sydney Water Act 1994 must be submitted to the Principal Certifying Authority (Council or a private accredited certifier). |
| Note: |
| (ii) Sydney Water may require you to construct works and/or pay developer charges, details of which will be provided in the “Notice of Requirements”. Please make early contact with the Co-ordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design. Application must be made through an authorised Water Servicing Co-ordinator. Please refer to “your business” section of Sydney Water’s website at then the “e-developer” icon or telephone 132 092. |
| (iii) The approved plans will also need to be submitted to Sydney Water to determine whether the development will affect sewer and water mains, stormwater drains and/or easements. If the development complies with the requirements, the approved plans will be appropriately stamped by Sydney Water. |
| (iv) Application must be made through an authorised Water Servicing Co-ordinator, for details see the Sydney Water web site or telephone 132 092. |
UTILITY SERVICES
46. To ensure that utility authorities are advised of the development:-
(a) A survey is to be carried out of all utility services within the site including relevant information from utility authorities and excavation if necessary, to determine the position and level of services.
(b) Prior to commencement of work the applicant is to negotiate with the utility authorities (e.g. Energy Australia, Sydney Water, and Telecommunications Carriers) in connection with the relocation and/or adjustment of the services affected by the construction of the underground structure. Any costs in the relocation, adjustment or support of services are to be the responsibility of the developer.
HOURS OF WORK AND NOISE
47. The hours of construction and work on the development shall be:
(a) All work, including building/demolition and excavation work, and activities in the vicinity of the site generating noise associated with preparation for the commencement of work (eg. loading and unloading of goods, transferring of tools etc) in connection with the proposed development must only be carried out between the hours of 7.30 a.m. and 5.30 p.m. on Mondays to Fridays, inclusive, and 7.30 a.m. and 3.30 p.m. on Saturdays, with safety inspections being permitted at 7.00 a.m. on work days and no work must be carried out on Sundays or public holidays.
(b) All work, including demolition, excavation and building work must comply with "The City of Sydney Building Sites Noise Code" and Australian Standard 2436 - 1981 "Guide to Noise Control on Construction, Maintenance and Demolition Sites”.
(a) Minimum dimensions of the notice are to measure 841mm x 594mm (A1) with any text on the notice to be a minimum of 30 point type size;
(b) The notice is to be durable and weatherproof and is to be displayed throughout the construction period;
(c) A copy of the first page of the development approval and construction certificate (including any modifications to those approvals) and any civic works approvals is to be posted alongside the notice in weatherproof casing;
(d) The approved hours of work, the name of the site manager, the responsible managing company, its address and 24 hour contact phone number for any enquiries, including construction/noise complaint are to be displayed on the site notice;
(e) The notice(s) is to be mounted at eye level on the perimeter hoardings and is to state that unauthorised entry to the site is not permitted. If demolition is being undertaken, the words, Danger - Demolition Site, with an international logo must be displayed.
CONSTRUCTION VEHICLESUSE OF APPLIANCE OF A HIGHLY INTRUSIVE NATURE
49. This development consent does not extend to the use of appliances, which emit noise of a highly intrusive nature (such as pile-drivers and hydraulic hammers) or are not listed in Groups B, C, D, E, or F of Schedule 1 of the "City of Sydney Building Sites Noise Code". A separate application for approval to use any of these appliances must be made to Council.
50. Vehicles carrying spoil or rubble to or from the site shall at all times be covered to prevent the escape of dust or other material.
- Note: The Protection of the Environment Administration Act 1991, provides for the revocation of transporters’ licences where drivers dump wastes illegally.
G T Brown
Commissioner of the Court
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