Barton and Kristy Pursche v Ku-ring-gai Council - [2004] NSWLEC 705

Land and Environment Court

of New South Wales

CITATION: Barton & Kristy Pursche v Ku-ring-gai Council [2004] NSWLEC 705

PARTIES: APPLICANT:
Barton & Kristy Pursche
RESPONDENT:
Ku-ring-gai Council

FILE NUMBER(S): 11154 of 2004

CORAM: Watts C at 1

KEY ISSUES: Development Application :- The front setback to Elgin Street is inadequate - Private open space area is deficient for Dwelling 1 - Eastern side setback is inadequate for Dwelling 1 and Front setback is inadequate for Dwelling 2.

LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance, (KPSO), and State Environmental Planning Policy No 53, (SEPP53) - Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED:

DATES OF HEARING: 14/12/2004

EX TEMPORE
JUDGMENT DATE : 12/14/2004

LEGAL REPRESENTATIVES:
APPLICANT:
Mr S Kondilios, solicitor
SOLICITORS:
Maddocks
RESPONDENT:
Mr A Hudson, solicitor
SOLICITORS:
Wilshire Webb

JUDGMENT:

Appeal No: 11154 of 2004

12

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

14 December 2004

11154 of 2004 - Barton & Kristy Pursche v Ku-ring-gai Council

JUDGMENT

Environmental Planning and Assessment Act 1979,

Environmental Planning and Assessment Act 1979

The land
4 The land is situated on the corner of Elgin and Baldwin Streets, has an area of 1114.84m2 and is rectangular in plan. The front boundary to Elgin Street, is 24.384m and the long boundaries are 45.72m.
5 Erected on the land is a single two-storey dwelling and detached single garage with attached carport. Vehicular access is off Baldwin Street.
6 The land slopes by almost 9m from its southeastern corner to its northwestern corner. A number of brick, concrete and rock retaining walls are located on the site providing areas of lawn or paved courtyard.
7 The land is well treed, flanked on two sides by well-vegetated nature strips. The Elgin Street nature strip is 4m wide, and the Baldwin Street nature strip is 6m wide.
8 The locality is characterised as a low-density residential area, with a mix of single-storey and two-storey dwellings set in generously proportioned gardens with some large trees. Dwellings range in size from those, which are substantial and well-appointed, to others which are quite modest in size, design and condition.
9 The area is identified in Council's visual character study as being established between 1945-1968.

Relevant planning controls

Ku-ring-gai Planning Scheme Ordinance, (KPSO), and State Environmental Planning Policy No 53, (SEPP53)
10 Under the provisions of the KPSO the land is zoned Residential 2(c) and the proposal is permissible with consent under the provisions of SEPP53.
11 It is in a Bushfire Prone Vegetation Buffer.
12 Guidelines are found in:
· State Planning Policy No. 55, Contamination, (SEPP55);
· Ku-ring-gai Dual Occupancy Code, (Code);
· Ku-ring-gai Development Control Plan No. 43 (Carparking);
· Ku-ring-gai Development Control Plan No. 31 (Access); and
· Ku-ring-gai Development Control Plan No. 47 (Water Management).

The proposal and its history
13 Development application No 25/04 was lodged with the respondent council on 12 January 2004. The proposal described in plans prepared by Lindsay Little & Associates Pty Limited, in Exhibit A, is to demolish the existing dwelling, construct a detached dual occupancy development on the land. The proposed dual occupancy would comprise two, split-level dwellings, cement rendered with tile roofs.
14 Dwelling 1 would have a floor area of 285m2 and would front Elgin Street. There are four split-levels. The split-level ground floor would comprises a double garage, porch, entry, living room, Bedroom 1 with ensuite and walk-in robe, laundry, lounge/ dining area, kitchen/ family area, and covered terrace accessed off the family room. Two upper levels provide three bedrooms, study/ loft, WC, bathroom and roof storage area.
15 Dwelling 1 would be setback from Elgin Street 7m. It would be setback 2m from the eastern boundary (adjacent to No 16 Elgin Street) and 3.8m from the western boundary (Baldwin Street). Vehicular access to the double garage is proposed via Elgin Street.
16 A private courtyard of 66m2 is proposed at the rear of the dwelling, facing Baldwin Street, and accessible from living areas.
17 Dwelling 2 would have a floor area of 232.4m2 and would front Baldwin Street. There would be three split-levels. Level 1 would comprise a double garage, porch, entry, foyer, living/ dining area, bedroom 1 with ensuite and walk-in robe, and powder room. Level 2 would comprise a family room/ kitchen/ meals and laundry, while Level 3 would provide for two bedrooms, study and bathroom.
18 Dwelling 2 is proposed to be setback 4m from Baldwin Street. It would be setback 3m from the northern boundary and 4.8m from the rear boundary. Vehicular access would be from Baldwin Street.
19 A private courtyard of 92m2 is to be provided at the rear of the dwelling, with access from living areas.
20 A minimum distance of 4.5m would separate Dwellings 1 and 2.
21 Retaining walls are proposed between the proposed dwellings, as well as within each private courtyard, in a response to the steepness of the site (9m from south eastern corner to north western corner).
22 The overall proposed floor space ratio for the development would be 0.46:1.

Amended plans
23 Amended plans dated 4 June 2004 were submitted in response to engineering concerns for the driveway levels of Dwelling 1. The floor levels of Dwelling 1 changed, and the council did not consider it necessary to re-advertise the application.
24 Amended plans dated 15 July 2004 were submitted in response to planning concerns and the internal design of Dwelling 2 was changed to maximise solar access to living areas, the height of retaining walls around the private courtyard of Dwelling 1. The council considered re-advertising of the application was not necessary.

Notification
25 The original application was notified by letter dated 13 January 2004 to nearby owners and occupants and the council received four (4) letters of support and two (2) letters objecting to the proposal from:
1. Paul and Pauline Davis of No 18 Elgin Street;
2. Meredith and Roger Lewis of No 11 Elgin Street;
3. Basil and Sheila Nash of No 11 Baldwin Street (adjacent neighbours to the north in Baldwin Street); and
4. Scott and Linda Macqueen of 17 Elgin Street.

26 The two (2) letters of objection were received from:
1. John and Lynette Desmond of 12 Elgin Street (across the road from the site, at the north western corner of Elgin and Baldwin Streets); and
2. Gordon and Joy Drummond of 10 Elgin Street.

The council’s decision
28 By notice dated 17 September 2004 the council refused the application for the following reasons:

Overdevelopment

1. The proposal is an overdevelopment of the site.

Particulars:

(a)

Non-compliance with the built-upon area control in Section 4.9 of the Dual Occupancy Code, in that, the control requires a maximum built upon area of 40% and the development proposes 46%.

(b)

Non-compliance with the soft landscaped area control to Section 5 of the Dual Occupancy Code, in that, the control requires a maximum soft landscaped area of 60% and the development proposes 53%.

(c)

Non-compliance with the private open space provision in Section 5 of the, Dual Occupancy Code, in that, the control requires a minimum private open space of 100m2 or 2 areas each having a minimum area of 75m2 with a minimum dimension of 5m and the development proposes the private open space areas of 66m2 and 92m2 for Dwellings 1 and 2 respectively.

Streetscape and visual bulk

The proposal has an unsatisfactory visual bulk within Baldwin Street and results in an unacceptable streetscape impact upon Baldwin and Elgin Streets.

Particulars:

(a)

The removal of 11 trees from the site provides limited opportunities for replacement large tree planting to screen the proposed development.

(b)

Non-compliance with the front setback control in Section 4.9 of the Dual Occupancy Code, in that;

(i)

the control requires a minimum setback of 9m to Elgin Street (Dwelling 1) and the development proposes 7m; and

(ii)

the control requires a minimum setback of 5m with 50% of the building setback 7m from Baldwin Street (Dwelling 2) and the development proposes a setback of 4m (44% of the elevation), 4.25m (40% of the elevation) and 5.9m (16% of the elevation).

The reduced setbacks result in a prominent built form forward of the surrounding buildings.

(c)

Non-compliance with the side setback control in Section 4.9 of the Dual Occupancy Code, in that the control requires a minimum setback of 2.9m (ground floor) and 3.7m (1st floor) to the eastern (side) boundary and the development proposes side setbacks of 2m at the ground and 1st floor levels. The reduced setbacks result in the development’s massing extending too close to the boundaries. The intent of the side setback controls is to provide sufficient separation to allow for visual relief between buildings and allow for substantial plantings to occur around the development.

(d)

Non-compliance with the separation between buildings control in Section 4.9 of the Dual Occupancy Code, in that, the control requires a minimum separation of 9m and the development proposes 4.6m. The reduced setback results in insufficient area being provided to provide adequate landscaping in which to frame the buildings. The reduced setbacks also allow for the buildings to be read more closely together such that their bulk and scale will dominant the Baldwin Street frontage.

Visual Privacy

The proposed terrace to Dwelling 1 has a visual privacy impact upon the south-facing window of Dwelling 2.

Particulars:

This issue can be resolved through a condition of consent.

The hearing

The issues
32 On 2 November 2004 the council filed a statement of issues:

A FRONT SETBACK DWELLING

The front setback to Elgin Street is inadequate and should be increased to 9m. A 9m setback will:

(a)

improve the presentation of the visual bulk of the dwelling within the streetscape and provide for and maintain an open landscaped streetscape,

(b)

provide greater area for replacement large tree planting (11 trees are being removed),

(c)

be more consistent with the current setback for the site and the setback of the adjoining property to the east No 16 Elgin Street and generally with the lower side dwellings of Elgin Street,

(d)

be consistent with the objectives of part 4.9 3 and comply with the requirements of clause 4.9.1 of the Dual Occupancy Code ("the code") and improve compliance with the code's requirements for built upon area / soft landscaped area (built upon area - clause 4.9.3 - 40%; soft landscaped area - clause 5.1.1 - 60%).

B. PRIVATE OPEN SPACE - DWELLING 1

The proposed private open space area is inappropriate because:

(a)

it is not "private" being elevated and close to and fronting Baldwin Street, and

(b)

the area is too small and does not comply with the requirements of clause 5.1.5(b) of the code (100m2 area required, 66m2 provided).

C. SIDE SETBACK - DWELLING 1

The eastern side setback is inadequate and should be increased to 2.9m (ground floor) and 3.7m (first floor). This will:

(a)

allow increased landscaping which will improve the visual presentation of the building in the streetscape and from the neighbouring property to the east (no. 16 Elgin Street), and

(b)

be consistent with clause 4.9 - side and rear setbacks of the code.

D. FRONT SETBACK - DWELLING 2

The front setback is inadequate and should be increased to between 5m (up to a maximum of 50% of the setback) - 7m. This increased setback will:-

(a)

improve the presentation of the visual bulk of the dwelling within the streetscape, and provide for and maintain an open landscaped streetscape,

(b)

provide greater area for replacement large tree planting (11 trees are being removed),

(c)

be more consistent with the adjoining front setback for no. 11 Baldwin Street,

(d)

comply with clause 4.9.1 - corner sites of the code, and

(e)

improve compliance with the code's requirements for built upon area / soft landscaped area (built upon area - clause 4.9.3 - 40%; soft landscaped area - clause 5.1.1 - 60%).

E. OVERDEVELOPMENT

5. Issues A-D above indicate an overdevelopment of the site.

The evidence and findings

The front setback to Elgin Street is inadequate
34 Mr Fletcher was of the view that it would be inappropriate to strictly apply a 9m minimum street setback in the present case. Given the quite diverse pattern of setbacks of buildings in Elgin Street, both in the immediate vicinity and further afield, insistence upon a 9m minimum setback from Elgin Street would be unnecessary and unreasonable. He considered that notwithstanding the minor numeric non-compliance, the proposed setback from Elgin Street would satisfy the specific objectives of the visual bulk section of the DCP and would not adversely impact on the amenity of the adjacent property.
35 There was no dispute between the parties as to this issue and I accept the evidence of Mr Fletcher contained in Exhibit 6 and I would not refuse the application for this reason.

Private open space area is deficient for Dwelling 1
36 In Mr Fletcher’s opinion, the proposed private open space for Dwelling 1 would be adequate and would meet the objectives and assessment criteria of the council's Code. He held the view that the proposed open space for Dwelling 1 would provide a good level of amenity for future occupants of the proposed dwelling and would not adversely impact on the streetscape or the amenity of any neighbouring properties.
37 There was no dispute between the parties as to this issue and I accept the evidence of Mr Fletcher and I would not refuse the application for this reason.

Western side setback is inadequate for Dwelling 1
38 Mr Fletcher stated that the proposed side boundary setback of Dwelling 1 would be adequate and would comply with the assessment criteria for side and rear boundary setbacks under the council's Code. He considered that the appearance of the proposal would be satisfactory when viewed from the neighbouring property or Elgin Street and the minor numeric non-compliance with the council's side setback Code would not adversely impact on the amenity of the neighbouring property.
39 There was no dispute between the parties as to this issue and I accept the evidence of Mr Fletcher and I would not refuse the application for this reason.

Front setback is inadequate for Dwelling 2
40 Mr Hudson on behalf of the council submitted that the front setback of Dwelling 2 would be inadequate and should be increased to between 5m (up to a maximum of 50% of the setback) - 7m. He submitted that an increased setback from Baldwin Street would improve the presentation of the visual bulk of the dwelling within the streetscape, and provides for and maintain an open landscaped streetscape.
41 Mr Fletcher considered this street setback issue for proposed Dwelling 2 and was of the opinion that, strict compliance with the council’s Code for secondary street setbacks could only be achieved by either having a significantly smaller dwelling or reducing the rear yard area and private open space area of the proposed dwelling. He was of the view, that neither of these alternatives would lead to a better planning outcome, and would not provide increased amenity either for the occupants of the proposed dwelling or, in my opinion, for any of the neighbours. His opinion was that the proposed development would not have an adverse impact on the streetscape and the proposed front setback of Dwelling 2 would be reasonable and acceptable.
42 He considered that the bulk and scale of the proposed buildings would be appropriate, in accordance with the council guidelines and in character with nearby residential development. Also, he said that the proposed development would not have an unacceptable impact on the amenity currently enjoyed by adjacent residential properties and does not represent an overdevelopment of the land.
43 I am satisfied, on the evidence of Mr Fletcher, that given the topography of the land and within the council’s verge, the dense on-street planting, the fact that there is no footpath along this section of verge in Baldwin Street, the application of the required numerical setback under the council’s Code would not markedly improve the streetscape would hardly be discernable as an improvement. Also, given the separation between Mr Desmond’s pool and recreation area and the presence of existing planting within his property, any additional setback would not be of great advantage to him and as Mr Desmond was aware, setting back the proposed Dwelling 2 might in fact increase the floor levels over the garage, thereby negating the benefit of a further setback and not improve his amenity. The better solution would be to plant two Turpentines in the council verge in place of the existing Camphor laurel, which is to be, removed in due course.
44 It is true that if the footprint of the proposal were to be reduced and the building not simply setback further from the boundary while maintaining the footprint, it might provide greater area for replacement large tree planting on-site. However, the proposal complies with the FSR and height required by SEPP53 and in Mr Fletcher’s view would not be an overdevelopment. Thus, I consider it would be unreasonable or unnecessary in the circumstance of this case to reduce the footprint in order to achieve a greater side setback.
45 I accept the evidence of Mr Fletcher that because of the skewed placement of No 11 Baldwin Street the increased setback would not necessarily be more consistent with the adjoining front setback of that property. True it is, that this dwelling at No 11 Baldwin Street might be redeveloped or altered in the future but at present there would be a reasonable relationship between the proposal and that property. In addition, I have taken into account the fencing around that property in coming to that view.
46 Under the council’s Code, compliance with cl 4.9.1 for corner sites, would be unnecessary and as Mr Fletcher pointed out some degree of flexibility in applying the code would be appropriate.
47 If the footprint of the proposal were reduced, compliance with the code's requirements for built upon area/ soft landscaped area (built upon area - cl 4.9.3 - 40%; soft landscaped area - cl 5.1.1 - 60%) might be improved. However there was no issue between the parties as to built-upon area or landscaped area.

48 I would not refuse the application, for this, the only issue in dispute between the parties, and generally I accept the evidence of Mr Fletcher in this regard.

Resident’s concerns
49 Mr Desmond’s concerns for streetscape and amenity of his recreation area near his pool have been taken into account in the previous issue and I am satisfied would not be a reason to refuse the application. Mr Desmond requested that two Turpentine trees be planted in the council verge. With the council’s consent this could be carried out and a condition to that effect is incorporated. There are no other resident concerns that would encourage me to refuse the application.
50 For the above reasons, the appeal is upheld.

Conditions
51 The conditions are those in Exhibit 4 as added to during the hearing.

Orders
52 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 25/04 lodged with the respondent council on 12 January 2004 to demolish the existing dwelling, construct a detached dual occupancy development on Lot B, DP372816, being No. 14 Elgin Street, Gordon is approved subject to conditions 1 to 85 in Annexure A.
3. The exhibits are retained.
S J Watts
Commissioner of the Court
sw
Conditions of development consent
Annexure A
Barton & Kristy Pursche v Ku-ring-gai Council
Premises: No 14 Elgin Street, Gordon NSW 2072
Development Application No: 25/04
Proposal: Detached Dual Occupancy
GENERAL CONDITIONS
1. The development to be in accordance with Development Application No 25/04 and the following plans and reports and as amended by the following conditions of consent:
· Architectual plans 2799/03 Sheet 3 by Lindsay Little and Associates P/L dated 16 November 2004;
· Amended architectural plans 2799/03 Sheets 1,2 & 4 by Lindsay Little and Associates incorporating amendments dated 2 December 2004;
· Landscape Plan 03-123 drawing 01 dated 2 June 2004 by Patio-Landscape Architects;
· Stormwater layout and drainage detention plans and calculations SS03-306 Sheets DR01 – DR03 by W P Brown & Partners P/L – Consulting Engineers;

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. 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.

5. 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.

6. 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.

7. For the purpose of public safety, a sign shall be erected on the site prior to any work commencing which is clearly visible from a public place stating that unauthorised entry to the site is not permitted and showing the name of the builder or another person responsible for the site and a telephone number for contact outside working hours. The sign may only be removed on satisfactory completion of the works.

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

9. All excavations shall be properly guarded and protected with hoardings or fencing to prevent them from being dangerous to life and property.

10. Any excavation of rock involving hydraulic or compressed air rock hammers or other excavation equipment shall comply with the requirements of Council’s Code for the Control and Regulation of Noise on Building Sites.

11. No rock breaking or other machinery for the excavation, drilling or removal of rock shall be used on the site without the prior approval of the Principal Certifying Authority. Should rock breaking or associated machinery be required, the following details are to be submitted to the Principal Certifying Authority for consideration:

a. The type and size of machinery proposed.
b. The routes of all trucks to convey material to and from the site.
c. A report by a Geotechnical Engineer detailing the measures recommended in undertaking the work so as to prevent any damage to any adjoining or nearby buildings.

12. If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:

a. must preserve and protect the building from damage, and
b. if necessary, must underpin and support the building in an approved manner, and
c. must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

In this clause, allotment of land includes a public road and any other public place.

13. 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.

14. The fence and footings shall be constructed entirely within the boundaries of the property.

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

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

17. 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.

18. 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.

19. 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.

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

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

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.

22. 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.

23. 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.

24. Existing stormwater lines on the site are to be blocked and made inoperable after buildings are demolished so as to prevent the conveyance of silt or sediments into the gutter or street drainage system.

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

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

27. Stormwater runoff from all hard surfaces, or landscaped areas which are not at natural ground level, shall be piped to the street drainage system. Drainage line connections to the kerb shall conform and comply with the detailed requirements contained within Council's Plan No82/024 ("Connections of Drainage Lines to Kerb and R.C. Pipe"). Drainage crossings of the footway area shall be a single 100mm diameter sewer grade uPVC pipe with kerb adaptor, where the total design flows from the property are within the capacity of such a pipe, otherwise suitably sized galvanised RHS shall be used. To ensure compliance with this condition, a Certificate from the installer is to be submitted to the Principal Certifying Authority prior to issue of the Final Compliance Certificate.

28. To maintain capacity of the Public drainage system, an On-site Stormwater Detention System must be provided for the proposed residence in accordance with Council’s Stormwater Management Manual. Separate detention systems are to be provided for each residence. An overflow is to be incorporated that will direct any excess flow to the downstream drainage system and subsoil drainage is to be provided from the underside of the sediment control sump to the outlet line or other approved location.

The system is to be cleaned regularly and maintained to the satisfaction of Council.

NOTE 1: The on-site stormwater detention system and property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist’s certification that such excavation will not affect the longevity of the subject tree(s).

NOTE 2: Earth mounding and/or timber retaining wall will not be accepted as the storage perimeter wall. Any perimeter walls must be in masonry on a reinforced concrete footing.

NOTE 3: If the applicant wishes to vary the prescribed storage and outflow volumes contained in Council’s Stormwater Plan DCP47, a detailed analysis must be provided following the guidelines set out in Council's requirements for on-site detention with full computations accompanying the submission including a flood routing analysis.

NOTE 4: All roof, driveway and other hard-surface runoff water is to be intercepted and directed to the on-site stormwater detention system. If some areas of hard-surface are unable to be directed to the detention system an adjustment to the rate of discharge is to be made to attain the required site discharge.

NOTE 5: If a landscaped surface type detention system is used the storage volume required is to be increased by 20%.

NOTE 6: The standard Council On-site Stormwater Detention Calculation Sheet is to be completed and included on design drawings. This is available in Council’s Stormwater Plan DCP47.

29. To prevent surface stormwater from entering the building, the finished habitable ground floor level(s) of the building shall be a minimum of 150mm above adjacent finished ground level(s). The entire outside perimeter of the building must have overland flow escape routes which will protect all finished floor levels from flooding during times of complete subsurface drainage blockage.

30. For the purpose of any Council inspections, the appropriate fees set out in Councils adopted Schedule of Fees and Charges are payable to Council, prior to the release of the approved plans. A re-inspection fee per visit may be charged where remedial work is unprepared at the requested time of inspection or where remedial work is unsatisfactory and a further inspection is requested. Engineering fees must be paid prior to the final approval of the works.

31. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to “Your Business” section of Sydney Water’s web site at then the “e-developer” icon or telephone 13 20 92. Following application a “Notice of Requirements” will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

32. The relocation or adjustment of any utility service facilities must be carried out by the Applicant in accordance with the requirements of the utility authority at no cost to Council.

33. The public footways and roadways adjacent to the site are to be maintained in a safe condition, at all times, during the course of the works. A safe pedestrian circulation route a minimum of 1.5m wide and with a pavement free of trip hazards must be maintained at all times on or adjacent to the public footways fronting the construction site. Where the footpath is damaged, repair works must be carried when directed by Council officers and in accordance with the relevant clauses of the current edition of Council’s Specification for Drainage and Road Works.

Where circulation is diverted on to the roadway clear directional signage and protective barricades must be installed in accordance with Aust AS1742-3 1996 “Traffic Control Devices for Work on Roads” .

If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

34. 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 minimise and/or 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, with all silt being removed from the site, or to an approved location within the site.

35. 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 AS 2890.1 – “Off-Street car parking”.

36. 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.

37. The landscape works shall be completed prior to issue of final Certificate of Compliance and 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. To preserve the Eucalyptus pilularis (Blackbutt) located with the rear garden of No. 16 Elgin Street no excavation shall be carried out within 3.5 metres of its trunk.

40. 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.

41. Topsoil shall be stripped from areas to be developed and stock-piled within the site. Stock-piled topsoil on the site shall be located outside drainage lines and be protected from run-on water by suitably positioned diversion banks. Where the period of storage will exceed fourteen (14) days stock-piles are to be seeded or sprayed with an appropriate emulsion solution to minimise particle movement.

42. 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.

43. On completion of the LANDSCAPE WORKS including TREE 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. The Camphor laurel on the southern side of the driveway to Dwelling 2 shall be retained for a period of one year; from the time the dwelling reaches lock up stage and then removed. In the short term the lower limbs on the northern side of the tree may be removed. The applicant to provide and plant at his/her cost two Sydney Turpentine Trees minimum size 25 litres, either side of the driveway to Dwelling 2. The tree to the southern side to be planted within 6 months of the removal of the Camphor laurel .

44. 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)
Celtis sp. (Nettle Tree) seedlings
Chlorophytum comosum (Spider Plant)
Cotoneaster sp. (Cotoneaster)

Hedera helix (English Ivy)
Hedychium gardneranum (Ginger lily)
Impatiens balsamina (Impatiens)
Jasminum polyanthum (Jasminum)
Ligustrum lucidum (Large-leaved Privet)
Ligustrum sinense (Small-leaved Privet)
Nephrolepis cordifolia (Fishbone fern)
Ochna serrulata (Ochna)
Olea europaea subsp. africana (African Olive)
Tradescantia albiflora (Wandering Jew)
Wisteria sp. (Wisteria Vine)

45. 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

46. 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.

47. 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).

48. 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.

49. 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.

50. 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 ADDITIONAL DWELLING 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 - Gordon $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

51. DRIVEWAYS AND FOOTPATHS: Approval of this Development Application is for works wholly within the property and 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.

Footpath and driveway levels at the property boundary/road alignment are to be obtained from Council prior to release of the Construction Certificate. All footpaths and driveways are to be constructed strictly in accordance with Council's specifications "Construction of Gutter Crossings and Footpath Crossings". This is issued with alignment levels after completing the necessary application form at Customer Services and payment of the appropriate fee.

The grading of such footpaths or driveways outside the property are to 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 this may be affected by the alignment levels fixed by Council.

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 (if applicable) of the proposed driveway at the boundary alignment. Failure to submit this information may delay processing.

52. The property drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) shall be designed and based upon a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) for impervious surfaces. Design drawings and calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Council's Stormwater Management Manual and the national Plumbing and Drainage Code. These must be submitted to and approved by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

NOTE 1: The property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist’s certification that such excavation will not affect the longevity of the subject tree(s).

NOTE 2: If the proposed drainage system involves piping underneath or within the building then the designer is to certify that the design is in accordance with AS3500.3.2:1998 and the BCA.

NOTE 3: All enclosed floor areas, including habitable and garage floor levels, are to be safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

53. The drainage plan prepared by WP Brown & Partners P/L, Job No. SS0306, dated Jan 2004 shall be amended to but not limited to the following:
i) The storage volume required shall be based on the actual built-upon areas;
ii) No excavation shall be permitted underneath the canopy areas of any trees to be retained;

Full design drawings of the proposed method of achieving the requirements for on-site stormwater detention including the above issues and all supporting calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Council requirements. These must be submitted to and approved by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

54. For stormwater retention, provision of a 2000 litre rainwater tank within the subject property designed to capture and retain runoff from at least one roof downpipe after which runoff bypasses the tank and reverts to the main drainage system. Design drawings are to be prepared by a suitably qualified and experienced civil/hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

NOTE 1: The tank is to be located at or above existing natural ground level.

NOTE 2: If abutting a wall of the dwelling, the tank must be below the eaves line.

NOTE 3: The tank must not be located on the front façade of a dwelling.

NOTE 4: If the tank is to be attached to a structure then a structural engineer is to certify the adequacy of the design of the structure to carry the tank.

NOTE 5: Maximum height of the tank is 1.8 metres above natural ground level where installed along the side boundary setback of a dwelling.

NOTE 6: The tank is to be a commercially manufactured tank designed for the use of water supply and to be installed in accordance with manufacturers specifications.

NOTE 7: The tank is to be located above an available landscaped area so that the tank may be readily used for watering purposes.

NOTE 8: The tank is to be fitted with a standard garden tap or similar which is to be clearly marked as not to be used for drinking purposes.

NOTE 9: The tank is to be fitted with measures to prevent mosquito breeding.

NOTE 10: Upon completion, certification from a suitably qualified person is to be submitted to the Principal Certifying Authority with respect to this condition being satisfied

NOTE 11: This requirement does not apply where the Applicant considers installation to be impractical.

55. 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.

56. An amended plan of the proposed landscape works for the site shall include the following item and specification and be prepared in accordance with Council’s Development Control Plan No 38, by a Landscape Designer to enhance the amenity of the built environment and protect the Ku-ring-gai landscape character:

· At least 50% of the tree and shrub plantings on the plan for the site shall be selected from the Sydney Turpentine/Ironbark Forest assemblage of vascular plants to protect and enhance native vegetation, and for the conservation and promotion of biodiversity.

The plan must be submitted to Council prior to the release of the Construction Certificate and be approved by Council’s Landscape Development Officer prior to the commencement of works.

57. The property shall support a minimum number of 7 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. The existing tree/s, and additional tree/s to be planted, shall be shown on the Landscape Plan/Site Plan. The plan shall be submitted to Council prior to release of Construction Certificate and approved by Council’s Landscape Development Officer, prior to commence of work.

58. The 6 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.

59. 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 this 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.

60. A cash bond/bank guarantee of $1,000 shall be lodged with Council prior to the release of the Construction Certificate to ensure that the following trees are maintained in the same condition as found prior to commencement site development work.

The bond will be returned following issue of the final Certificate of Compliance, provided the trees are undamaged.

In the event that any specified trees are found damaged, dying or dead as a result of any negligence by the applicant or its agent, or as a result of the construction works at any time during the construction period, Council will have the option to demand the whole or part therefore of the bond.

No/Tree/Location

2 / Eucalyptus pilularis (Blackbutt) / Adjacent to the central Elgin Street boundary.

61. 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.

The first floor western elevation to Dwelling 2 shall incorporate a parapet curved façade wall to its intersection with the first floor eave at the northwestern corner of that dwelling.

CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING

62. 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.

63. To preserve the following tree/s, no work shall commence until the trunk/s are protected by the placement of 2.0 metre lengths of 50 x 100mm hardwood timbers spaced at 150mm centres and secured by 2mm wire at 300mm spacings. The trunk protection shall be maintained intact until the completion of all work on site. Any damage to the tree/s shall be treated immediately by an experienced Horticulturist/Arborist, with minimum qualification of Horticulture Certificate or Tree Surgery Certificate and a report detailing the works carried out shall be submitted to the Principal Certifying Authority:

No/Tree/Location

1 / Syncarpia glomulifera (Turpentine) / At the eastern end of the site’s Elgin Street nature strip.

35 / Syncarpia glomulifera (Turpentine) / Near the eastern end of the site’s Elgin Street nature strip.

64. 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 STRUCTURE 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

2 / Eucalyptus pilularis (Blackbutt) 9m
Adjacent to the site’s central Elgin Street boundary.

65. 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.

66. 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

67. 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.

68. A survey report shall be submitted to the Principal Certifying Authority prior to occupation, which certifies that the development has been constructed in accordance with the terms of this consent in relation to built upon area, building levels and setbacks.

69. Prior to occupation, issue of an Occupation Certificate, the following works must be completed:

a. Construction of the new driveway crossing and layback in accordance with the levels and specifications issued by Council,
b. Removal of all redundant driveway crossings, pipe crossing and/or kerb laybacks. Full reinstatement of these areas to footway, and/or turfed verge and/or kerb and gutter to the satisfaction of Council. Reinstatement works shall match surrounding adjacent infrastructure with respect to integration of levels and materials.
c. Any sections of damaged grass verge are to be fully replaced with a non-friable turf of native variety to match existing.

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. This shall be at no cost to Council.

70. In order to maintain Council’s database of as-constructed on-site stormwater detention systems, if the Principal Certifying Authority is not Council then a copy of the approved stormwater detention 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 occupation, or the issue of an Occupation Certificate or the issue of a Subdivision Certificate.

71. The creation of 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 on-site stormwater detention facilities on the property. These must be created prior to occupation, or the issue of an Occupation Certificate, or the issue of a Subdivision Certificate. 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.

72. Construction of the property stormwater drainage works is to be supervised and upon completion certified by a suitably qualified and experienced civil/hydraulic engineer, prior to occupation, or the issue of an Occupation Certificate, or the issue of s Subdivision Certificate, that:

a. The works were carried out and completed in accordance with the approved plans.
b. All enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

A Works-as-Executed drawing of the property stormwater drainage system is also to be furnished by the Certifier Prior to issue of the Final Compliance Certificate.

73. Construction of the On-site Stormwater Detention System is to be supervised and upon completion a Certificate and Works-as-Executed (WAE) plan is to be submitted to the Principal Certifying Authority for approval, prior to occupation, or the issue of an Occupation Certificate, or the issue of a Subdivision Certificate. Certification is to be provided by a suitably qualified civil/hydraulic engineer and the WAE plan is to be prepared by a registered surveyor. The certifying engineer must to also complete and submit Council’s standard On-site Stormwater Detention Certification sheet.

The Certificate is to be with respect to compliance with:

· Compatibility of the drainage system with the approved plans
· The soundness of the structure.
· The adequacy of the outlet control mechanism to achieve the discharge as specified.
· The capacity of the detention storage as specified.
· The size of the orifice or pipe control fitted.
· The maximum depth of storage over the outlet control.
· The adequate provision of a debris screen.
· The inclusion of weepholes in the base of the outlet control pit.
· The provision of an emergency overflow path.
· All enclosed floor areas, including habitable and garage floor levels, being safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

The Works-as-Executed drawing(s) are to include all relevant levels including:

· invert levels
· surface or pavement levels
· floor levels including adjacent property floor levels
· maximum water surface level to be achieved in the storage zone
· dimensions of basin(s), tank(s), pit(s), etc.
· location(s) of basin(s), tank(s) and distances from buildings, boundaries, and easements, etc.
· storage volume(s) provided and supporting calculations
· size of orifice(s)

BUILDING CONDITIONS

74. The following are required details and must be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify.

a. Details prepared by a practicing structural engineer for all or any reinforced concrete, structural steel or timber framing.
b. Retaining walls and associated drainage.

75. The building works are to be inspected during construction by the Council, an accredited certifier or other suitably qualified person/s (as applicable) and a Compliance Certificate shall be issued prior to proceeding to the subsequent stages of construction, encompassing not less than the following stages:

a. All sediment and erosion control and tree protection measures and installations in place on the site prior to the commencement of any earthworks, excavations or other work.
b. Any pier holes and/or foundation material.
c. Any steel reinforcement prior to placement of concrete. This includes all reinforcement of floors, slabs, trenches, columns, beams and stairs (if components of this structure).
d. Any structural components (i.e. timber framework, structural steelwork or the like) before fixing any lining or covering.
e. Any stormwater drainage works prior to covering.
f. The completed landscape works in accordance with the approved plans.
g. The completed structure prior to occupation.

The required inspection fees (which also covers the issue of the Compliance Certificate) are to be paid to the Council before the issue of a Construction Certificate for this development.

If inspections are to be carried out by Council, 24 hours notice is required by Council's Department of Environmental and Regulatory Services, by telephoning Customer Service on 9424 0888 during business hours (8.30am to 4.30pm) or by facsimile on 9418 1117.

Note: Inspections of work which is found to be defective or not ready will attract a reinspection fee. Please cancel bookings which will not be ready for inspection.

76. For the purpose of safety and convenience a balustrade of 1.0 metre minimum height shall be provided to any landing, verandah, balcony or stairway of a height exceeding 1.0 metre above finished ground level. The design may consist of vertical or horizontal bars but shall not have any opening exceeding 125mm. For floors more than 4.0 metres above the ground, any horizontal elements within the balustrade or other barrier between 150mm and 760mm above the floor must not facilitate climbing.

77. For the purpose of safe ingress and egress the stairs are to be constructed within the following dimensions:

Risers: Maximum 190mm Minimum 115mm
Going (Treads): Maximum 355mm Minimum 240mm

Note: Dimensions must also comply with limitations of two (2) Risers and one (1) going equalling a maximum 700mm or minimum 550mm. The Risers and Goings shall be uniform throughout the length of the stairway.

78 For fire safety an automatic fire detection and alarm system shall be installed throughout the dwelling in accordance with the following requirements:

a. A smoke alarm system complying with Part 3.7.2 of the Building Code of Australia Housing Provisions; or
b. Smoke alarms which:

To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority.

79. Termite protection which will provide whole of building protection in accordance with Australian Standard 3660 - "Protection of Buildings from Subterranean Termites" is to be provided .

Council has a non chemical policy for termite control but will consider proposals involving physical barriers in combination with approved chemical systems. Handspraying is prohibited.

Where a monolithic slab is used as part of a termite barrier system, the slab shall be constructed in accordance with Australian Standard 2870.1 or as designed by a structural engineer but in either case shall be vibrated to achieve maximum compaction.

To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate.

80. The following are required details and must be submitted to the Council on completion of the works. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify.

a. Wet area waterproofing details complying with the Building Code of Australia.
b. Waterproofing of walls/floors below ground level to prevent the entry of water into the building.
c. A Compliance Certificate that the building is protected and complies with Australian Standard 3959 Construction of Buildings in Bushfire Prone Areas.

81. Construction shall comply with AS3959 - 1999 level 2 ‘Construction of Buildings in bushfire prone areas’.

82. Roller doors, tilt-a-doors and the like shall be sealed to prevent the entry of embers into the structure.

83. Roofing shall be gutterless or have leafless guttering and valleys are to be screened to prevent the build up of flammable material.

84. The entire property shall be managed as an ‘Inner Protection Area’ as outlined within section 4.2.2 in Planning for Bushfire Protection 2001.

85. All fencing shall be constructed from non-combustible materials.

S J Watts
Commissioner of the Court

CITATION:	Barton & Kristy Pursche v Ku-ring-gai Council [2004] NSWLEC 705
PARTIES:	APPLICANT: Barton & Kristy Pursche RESPONDENT: Ku-ring-gai Council
FILE NUMBER(S):	11154 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- The front setback to Elgin Street is inadequate - Private open space area is deficient for Dwelling 1 - Eastern side setback is inadequate for Dwelling 1 and Front setback is inadequate for Dwelling 2.
LEGISLATION CITED:	Ku-ring-gai Planning Scheme Ordinance, (KPSO), and State Environmental Planning Policy No 53, (SEPP53) - Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:
DATES OF HEARING:	14/12/2004
EX TEMPORE JUDGMENT DATE :	12/14/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr S Kondilios, solicitor SOLICITORS: Maddocks RESPONDENT: Mr A Hudson, solicitor SOLICITORS: Wilshire Webb