Bassett and Jones Architects v Waverley Council
[2005] NSWLEC 195
•02/24/2005
Land and Environment Court
of New South Wales
CITATION: Bassett and Jones Architects v Waverley Council [2005] NSWLEC 195
PARTIES: APPLICANT
Bassett and Jones ArchitectsRESPONDENT
Waverley CouncilFILE NUMBER(S): 11126 of 2004
CORAM: Brown C
KEY ISSUES: Development Application :- partial demolition of an existing pair of semi-detached shops - erection of a mixed commercial and residential dwelling - inconsistency with zone objectives - innappropriate mix of uses - amenity impacts - public interest
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996DATES OF HEARING: 07, 23/02/2005
DATE OF JUDGMENT:
02/24/2005EX TEMPORE JUDGMENT DATE: 02/24/2005
LEGAL REPRESENTATIVES: APPLICANT
RESPONDENT
Ms Mary-Lynne Taylor, solicitor
SOLICITORS
Norman Waterhouse
Mr S Patterson, solicitor
SOLICITORS
Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
24 February 2005
11126 of 2004 Bassett and Jones Architects v
Waverley CouncilJUDGMENT
1 This is an appeal against the refusal by Waverley Council (the council) of DA 206/2004 for the partial demolition of an existing pair of semi-detached shops and their residential accommodation and the erection of a mixed commercial and residential development at 129 and 131 MacPherson Street, Bronte (the site). The proceedings were heard as on On Site Hearing.
2 The site is rectangular in shape with a frontage to MacPherson Street of 12.12 m, a rear boundary to Chesterfield Lane of 12.55 m, a length of 45.72 m, giving a total area of 558 sq m. The subject building forms part of an existing strip shopping centre providing services to the surrounding community. Many of the buildings within this section of MacPherson Street have commercial tenancies on the ground floor with residential apartments above. Across MacPherson Street and beyond the neighbourhood shop area are residential developments primarily in the form of residential flat buildings. Behind the subject site the form of development is largely single dwelling residential development.
3 The proposal involves the substantial demolition of the existing building although the front façade of the building is to be retained along with 1200 mm of the side walls. The proposal involves the construction of three building forms within this site. The first building fronts MacPherson Street and contains one commercial tenancy and 2 x 3 bedroom units over three storeys. The middle building is three storeys in height and contains 2 x 3 bedroom apartments. The rear building contains 2 x 1 bedroom apartments within two storeys. The basement level contains parking bays, bicycle parking and garbage and storage facilities.
4 The site is within Zone No. 3(c) Business Neighbourhood pursuant to Waverley Local Environmental Plan 1996 (the LEP). The objectives of the zone are:
- (a) to provide a range of shops and low intensity commercial uses that serve the daily needs of adjacent residential neighbourhoods, and
- (b) to encourage the mixing of residential development within those uses.
5 Clause 10(2) requires that consent shall not be granted unless the development meets one or more of the objectives of the zone. Clause 27 provides requirements for floor space ratio (FSR). For the 3(c) zone a maximum FSR of 0.5:1 is provided, however an additional FSR of 0.5:1 is permissible under certain circumstances. Clause 28 provides for a maximum height of 9 m. There was no dispute that the proposed development satisfies the maximum and additional FSR of 1:1 and the maximum height requirement. The LEP provides no other numerical development standards for the site.
6 Clause 32 states:
Where the proposed development is on land adjoining land in another zone regard must be given to the objectives of the adjoining zone.
7 In this case, the opposite side of Chesterfield Lane is within Zone 2(a) Residential - Low Density.
8 The council filed a Statement of Issues containing 12 issues. The issues relating to some acoustic and privacy impacts (Issue 4), FSR (Issue 6), height (Issue 7), the retention of the original façade (Issue 8) and the interruption of the allotment rhythm (Issue 9) were addressed through amended plans and were not pressed by the council.
9 The remaining issues can be conveniently grouped into the following areas:
- (1) whether the proposal is consistent with the objectives of the 3(c) zone and whether the amount of residential development is excessive (Issues 1 and 2),
(2) whether the rear building component will have an unacceptable impact on the rear yards of nearby residential properties (Issues 5 and 10) and
(3) whether the central building will have an unacceptable impact on the adjoining properties, (Issue 3).
10 The local residents raised a number of issues not raised by the council. These relate to:
- (1) impact of excavation,
(2) construction traffic,
(3) the integrity of the neighbourhood commercial zone,
(4) heritage impacts,
(5) noise and exhaust fumes from the basement car park and
(6) loss of trees.
11 The first issue relates to the mix of residential development and commercial development and involves the objectives of the zone and cl 27 relating to FSR.
12 Mr Mitchell Reid, a town planner employed by the council, states that the proposal is inconsistent with the zone objectives. He maintains that the objectives are set out descending priority. The primary objective (Objective (a)) is to provide shops. The second objective is to encourage a mix of residential development (Objective (b)). In his interpretation, the descending priority indicates that residential development is encouraged only where it forms an appropriate mix with the primary use, i.e., local shops. He rejects the proposal as the residential component is the primary function. In his opinion, this proposition is supported by cl 27. In his interpretation of cl 27, there must be an equal proportion of commercial floor area to residential floor area i.e., 50 : 50. As the proposal provides for an 11 : 89 split in favour of residential, Mr Reid concludes that the proposal is inconsistent with the intent of cl 27.
13 The basis of his concern is that neighbourhood centres are not degraded or overpowered by large scale residential developments and the commercial viability of the neighbourhood centre is maintained.
14 Mr Andrew Darroch, a town planner, provided evidence for the applicant. He disagrees with Mr Reid’s interpretation of the FSR requirements and cl 27. He states that the LEP does not distinguish between primary or secondary zone objectives. This is confirmed by cl 10(2) where there is a requirement to satisfy one or more of the objectives of the zone.
15 In terms of cl 27, Mr Darroch notes that the clause does not include any requirements that set a ratio of residential to non-residential uses. In his opinion, the proposal provides an acceptable ratio and makes efficient use of the retail potential of the site and in fact, provides an increase in the existing retail floor space on the site.
16 On this issue I agree with Mr Darroch. In considering the approach adopted by Cripps J in Hecar Investments No 6 Pty Limited v Lake Macquarie City Council 53 LGRA 322 at 323, His Honour states:
- When interpreting delegated legislation the Court ought to be concerned with practical considerations. The Court should adopt the interpretation that leads to a reasonably practical result .
17 In this case, the LEP simply does not provide the words to support the council’s interpretation of the zone objectives. If it was intended that the objectives should be prioritised then this could have been simply stated in the LEP, as occurs in other LEP’s. While the Court was taken to comparisons with objectives from other zones to support the council’s proposition, I am not convinced that it overcomes the clearer and, in my view, unambiguous construction of the zone objectives.
18 In terms of cl 27, I also agree with Mr Darroch. Again, the clause makes no reference to the 50 : 50 split of residential and commercial suggested by Mr Reid. In simple terms, the clause provides for a mixed development with and FSR of 0.5:1. A bonus FSR of 0 : 0.5:1 is available providing it is used for residential accommodation at a level above a ground floor shop. Mr Darroch correctly states that the requirements of this clause do not preclude the provision of residential accommodation as part of a mixed development at ground level. For these reasons, I am satisfied that the proposal addresses the objectives of the zone pursuant to cl 10(2). I am also satisfied that the proposal is consistent with the provisions of cl 27.
19 In coming to the conclusion that the LEP contains no restrictions on the mix of commercial and residential components of a mixed use development, the protection of the existing neighbourhood centre was a matter raised by a number of local residents and resident associations. While there can be little doubt that there are benefits in having a viable neighbourhood centre, there was no information provided to the Court to determine what was actually a viable level of retailing activity for the neighbourhood centre.
20 Notwithstanding this, I am not convinced that the proposed development would have such an adverse effect that it should be refused. The proposal will not diminish the availability of retail space as the existing shopfront is to be retained and the retail space enlarged. I acknowledge that the refurbished retail facility is also likely to be more attractive for future tenants.
21 In terms of the effect of the rear buildings on the properties located on the opposite side of Chesterfield Lane, Mr Reid and Mr Darroch disagreed on the likely impacts. While Mr Reid conceded that the potential overlooking from the recessed balcony of the rear building is not a significant issue, he maintains that the height is excessive and is visually intrusive. Mr Darroch states that the Chesterfield Lane is characterised by structures of varying height and scale on both sides. As the design recedes away from the lane, the building will read as being consistent with other building forms in the lane and not visually obtrusive.
22 With the benefit of the site view along Chesterfield Lane I agree with the conclusions of Mr Darroch. The lane is almost exclusively a service lane with garages, car park entries and loading facilities. The proposal has a height of some 7.2 m at Chesterfield Lane which is below the 9 m maximum height limit. While larger than the development on the opposite side of Chesterfield Lane it is consistent with what could be expected based on the LEP requirements and the different zoning.
23 In having regard to the zone objectives of the Residential 2(a) zone, pursuant to cl 32 of the LEP, I find that the proposal provides a satisfactory response at the zone interface.
24 The impact of the proposed development on the adjoining properties was addressed through oral evidence on site and the submissions provided by the owners of these properties when the application was advertised.
25 Mr Ray Wheeler on behalf of his mother, who owns the property at 127 MacPherson Street, provided oral evidence on-site. The building owned by Mr Wheeler’s mother contains a hairdresser on the ground floor (at the MacPherson Street frontage) and four holiday rental units. The two units adjoining the subject site were seen by Mr Wheeler as being adversely affected by way of overshadowing, loss of views and loss of sea breezes.
26 The rear flat was inspected but the other flat was occupied at the time of the view. With an assessment of the likely position of the proposed building it was clear that the views across the rear vacant portion of the subject site would be interrupted and that a significant part of this area would now be occupied by the proposed buildings. While some of the amenity enjoyed from Mr Wheeler’s property will be clearly lost, in my view it is an inevitable consequence of the redevelopment of the site. Mr Wheeler’s concerns would have greater force if the proposal exceeded the council’s development standards, however this is not the case.
27 I also note that the applicant amended the proposal to provide a similar setback to the boundary as provided by Mrs Wheeler’s property notwithstanding the absence of any specific setback requirements. I am also mindful of the commercial use of the holiday apartments, as distinct from residential use, and the commercial zoning in concluding that the proposed development does not impose any unacceptable impacts on Mrs Wheeler’s property that would lead to the refusal or amendment of the application.
28 The opposite side of the subject site was also inspected by the Court at the on-site hearing. A unit owned by Mrs Nero was also inspected. She raised objection to the lack of side setbacks, the potential overlooking, loss of light and visual bulk. Again, an estimate was made of the location of the proposed development in relation to Mrs Nero’s unit.
29 Based on this estimate, I am not convinced that any impact would support the refusal or amendment of the application. Accepting that there are no requirements for side setbacks, I agree with Mr Darroch’s statement that if a setback of some 900 mm was required, it would have little visual impact from Mrs Nero’s unit. As explained to the Court on the view, the design of the proposed development responds to the characteristics of the adjoining development by providing landscaped breaks between the buildings to respond to the location of windows so as to maintain a reasonable outlook from the windows on the adjoining property.
30 In terms of privacy, the separation distance between Mrs Nero’s balcony and the rear dwelling is some 16 m and with this level of separation I accept that overlooking is suitably addressed.
31 I accept that there is likely to be some loss of sunlight to Mrs Nero’s unit, however her unit is south facing and the impact is not likely to be significant.
32 Mrs Nero also saw the expanse of the end wall of the central building as a concern although the full extent of the 9 m length of wall is only fully visible at an acute angle. From areas such as the balcony the wall is only partially visible. For this reason, no modifications to the proposal is warranted.
33 Overall, there are no substantive amenity reasons why approval should not be granted.
34 Of the additional matters raised by the objectors or local residents, I am not convinced that they raise any significant issues that would support the refusal of the application.
35 The impact of excavation and construction traffic can be adequately addressed through conditions relating to dilapidation report and the submission of a construction management plan.
36 Noise and fumes from the basement car park are not likely to be a major concern because of the limited number of units and limited likely traffic movement.
37 The retention and rehabilitation of the original façade was not a matter pressed by the council and based on the details provided in the application plans I accept that the proposal satisfactorily addresses this matter.
38 The loss of trees, while undesirable in my view, is not a sufficient reason to reject the application.
39 For these reasons the orders of the Court are:
- 1. The appeal is upheld.
2. DA 206/2004 for the partial demolition of the existing buildings and the erection of a mixed commercial/residential development at 129-131 MacPherson Street, Bronte, is approved.
3. The exhibits are returned with the exception of Exhibits 4, 5, 6 and E.
- __________________
G T Brown
Commissioner of the Court
rjs
Annexure “A”
Conditions of Consent
1. Compliance in all respects with Plans Numbered 0307 - DA00E, DA01E, DA02E, DA03E, DA04E, DA05E, DA06E tables and documentation, prepared by Bassett and Jones Architects dated November 2004 except where amended by the following conditions of consent.
1A. The middle building shall be reduced in height to RL 75.33 by lowering the basement at least 200mm and taking a further 100mm by reducing the structure within the building. Amended plans are to be provided to the Principal Certifying Authority prior to release of a construction certificate in accordance with this condition.
2. A deposit of guarantee satisfactory to Council for the amount of $10,000 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.
Note: This deposit or guarantee must be submitted before a construction certificate is issued. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property, will be refunded after satisfactory completion of the building work.
3. A standard A- Class hoarding designed constructed in accordance with the requirements of the Work Cover Authority being erected on the street alignments of the property, prior to the commencement of building operations, and such hoardings to be maintained during the course of building operations. Details of the hoarding are to be provided to Council prior to the issue of a Construction Certificate.
4. The building and demolition work must only be done between the hours of 7am and 5pm on Mondays to Saturdays and building work must not be carried out on Sundays and public holidays.
5. Excavation works involving the use of heavy earth movement equipment including rock breakers and the like must only be done between the hours of 7am and 5pm on Mondays to Fridays and 9am and 1pm on Saturdays and work must not be carried out on Sundays or public holidays.
6. The building work must not be commenced until:
a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and
b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81A(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of the Schedule 1 of the Regulations; and
c) Council is given at least two days notice in writing of intention to commence the building works.
The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principal Certifying Authority.
Should Council be appointed the Principal Certifying Authority, the applicant/owner is to pay an inspection fee in accordance with Council's Pricing Policy prior to commencement of any works.
7. All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without having obtained prior approval. Applications or enquires for the occupation of Council's footpath can be obtained from Council's Technical Services Section.
8. All building work must be carried out in accordance with the provisions of the Building Code of Australia.
9. The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:
a) the name and contractor licence number of the licencee who has contracted to do, or intends to do, work ; or
b) the name and permit number of the owner/builder who intends to do the work; and
c) any change to these arrangements for doing of the work.
10. The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989, whereby a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the principle certifying authority that they have complied with the applicant requirements of Part 6, before any work commences.
11. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property.
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, at their own expense, must:
a) 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 seven 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.
13. If a public place or pedestrian vehicular traffic may be obstructed because of the carrying out of work involved in the erection or demolition of a building; or a public place is required to be enclosed in connection with the erection or demolition of a building; then:
a) a hoarding fence must be erected between the building site and the public place of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from, or in connection with, the work falling onto the public place, is also to be erected;
b) the work is to be kept lit during the time between sunset and sunrise if the work may be of a sort of danger to persons using the public place;
c) a hoarding, fence or awning is to be removed when it is no longer required for the purpose for which it was provided.
14. A sign must be erected on a prominent position at the street frontage of the site, prior to the commencement of building work, stating:
a) the name, address and telephone number of the Principal Certifying Authority for the work and
b) showing the name of the Principal Contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and
c) stating that unauthorised entry to the site is prohibited.
The sign shall be clearly legible, displayed and maintained for the duration of building works.
15. A final Occupation Certificate must be issued by the Principal Certifying Authority prior to occupation or use of the development. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning and Assessment Act, 1979 have been satisfied.
16. Pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979, and as a need brought about by the proposed development, the applicant/owner to provide a contribution in accordance with Council’s Section 94 Plan in respect to the following matters:-
a) $339.39 towards Council's Open Space Reserve Fund for the acquisition, and improvement of Council Reserves and Parks in the locality, and
b) $6271.45 towards Council's Library Facilities and resources, providing information, cultural and recreational needs of the community, and
c) $871.66 towards Council's Senior Citizens Facilities and improvements, and
d) $243.79 towards Council's School of Arts and improvements, and
e) $1225.40 towards Council's Transportation Policy, and
f) $40.60 towards Council's New Residents' Kits, providing new residents with information on the availability of Council's public facilities and services, and
g) $388.60 towards Council's Administration, providing the funds for the preparation of the Section 94 Plan and its implementation, and
such amounts to be paid prior to the issue of the Construction Certificate. Only cash or bank cheque payment will be accepted (i.e. no bank guarantees, etc).
The above contributions will be adjusted quarterly on the basis of the relative change in the Consumer Index.
17. Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with all structural components prior to the issue of a Construction Certificate.
18. No portion of the proposed development including the footings and roof eaves, to encroach beyond the boundaries of the subject property.
19. All wet areas in the proposed development to be examined and certified by an Accredited Certifier.
20. A Certificate of Survey prepared by a Registered Surveyor setting out the actual reduced levels of the ground floor level of the building as related to the fixed datum shown on the plans with the development consent, being submitted to the Principal Certifying Authority to certify the finished levels conform with the development consent granted by Council; and such Certificate to be submitted prior to the construction of any further stages of the building.
21. A Certificate of Survey prepared by a Registered Surveyor setting out the boundaries of the site and the actual situation of the building on the site, being submitted to the Principal Certifying Authority to certify the building is setback from the boundaries of the allotment in accordance with the plans with the development consent; and such Certificate to be submitted prior to the construction of the external walls above the ground floor level of the building.
22. A dilapidation report is to be provided in respect to adjoining properties to the east and west and No 80 Chesterfield Pde, prior to any works on the site including demolition and excavation. The dilapidation report is to be provided to Council.
23. All excavation works are to be supervised by a Practising Structural Engineer, to ensure the safety and structural stability of adjoining properties.
24. Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Soil and Water Management Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to Council prior to the issuing of a Construction Certificate.
25. MANDATORY Critical Stage Inspections MUST be carried out by Council or an Accredited Certifier for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.
The specified MANDATORY inspections are:
In the case of a Class 2, 3 and 4 building:
a) at the commencement of the building work, and
- b) prior to covering of waterproofing in any wet area for a minimum of 10% of rooms with wet area within a building, and
c) prior to covering any stormwater drainage connections, and
- d) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building.
In the case of a Class 5, 6, 7, 8 or 9 building:
a) at the commencement of the building work, and
b) prior to covering any stormwater drainage connections, and
- c) after the building work has been competed and prior to any Occupation Certificate being issued in relation to the building.
The following additional inspections are required to be undertaken by the PCA:
a) sediment control measures prior to the commencement of building work;
b) foundation material prior to undertaking building work;
- c) shoring of excavation works, retaining walls, piers, piling or underpinning works;
d) steel reinforcement, prior to pouring concrete;
- e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns;
f) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls);
- Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.
26. The finished level of the vehicular access driveway within the rear lane is to be in accordance with the requirements of Council’s Manager Technical Services.
27. A new vehicle crossing is to be provided to access the proposed garage. All work associated with the new vehicle crossing is to be carried out with the approval of, and in accordance with, the requirements of Council's Manager - Technical Services.
28. All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council's Manager - Technical Services.
29. Vehicular access to the site and gradients of the vehicle access driveway(s) being in accordance with Australian Standard 2890.1 - PARKING FACILITIES - OFF-STREET CAR PARKING.
30. Vehicular circulation within the car park to be designed and marked out in accordance with Australian Standard 2890.1 - PARKING FACILITIES - OFF-STREET CAR PARKING.
31. Caparking within the basement carparking area is to comply with requirements of Waverley Development Control Plan No 14 – Land Use & Transport. In this regard the carparking for the residential units is not to exceed five spaces and the retail/shops are to be provided with two spaces. The remaining car parking space is to be used for bicycle parking in accordance with Clause 2.2.2 of DCP 14.
32. The carparking area is to be provided with either natural or mechanical ventilation in accordance with the requirements of the Building Code of Australia. Should mechanical ventilation be required, all exhaust, vents and pipes are to be located and directed so as not to cause amenity impacts to adjoining properties.
33. All mechanical ventilation and exhaust systems are to be designed by a mechanical engineer and full details are to be provided to the Council or an accredited certifier prior to the issuing of a construction certificate.
34. A certificate of Test, certifying that the mechanical ventilation system has been tested and found to comply with the approved plans and specifications, together with a copy of the final test figures, being submitted to and approved by the Principle Certifying Authority upon completion.
35. The proposed fence abutting the side boundary of the site is not to exceed a maximum height of 1.8m above the existing ground level of the subject property.
36. The site to be landscaped and turfed in accordance with the approved landscaped plan attached to the development application.
37. The applicant to confer with Energy Australia to obtain that authority's needs for the location of a kiosk type distribution centre on the subject land, and if deemed necessary, the applicant to make available land to that Authority for the siting of such kiosk/sub-station. Documentary evidence of compliance is to be provided to the satisfaction of the Principle Certifying Authority.
38. Specific development applications being lodged for the approval of Council in connection with the usage of any retail or commercial areas, prior to the occupation of the premises.
39. The method of collection and disposal of garbage and refuse arising from the usage of the building being in accordance with Waverley Development Control Plan No. 19 - Controls for Site Minimisation and Management. In this regard, a site waste management plan is to be prepared and approved by the Principle Certifying Authority prior to the issue of a Construction Certificate.
40. Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings erected within the Council area so as to help protect the existing areas of rainforest. In this regard, a schedule of timber products proposed to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used.
41. The applicant is advised that Council policy prohibits the use of organochlorin pesticides as termite barriers in new development. Rather, in accordance with Australian Standard 3660: Protection of building from subterranean termites - Prevention, detection and treatment of infestation, physical barriers are to be used.
42. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator, for details see the Sydney Water website or telephone 13 20 92.
Following application a "Notice of Requirements" will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator , since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.
The Section 73 Certificate must be submitted to the <Principal Certifying Authority> prior to release of the linen plan/occupation of the development.
43. The applicant is advised that with regard to the provision of the lift in the building, it will be necessary for tactile numbers to be placed on each level of the building and within the lift to assist visually impaired people.
44. The installation of in-sink waste disposal systems is prohibited.
45. Activities to be conducted in a satisfactory manner so as not to cause a nuisance or disturbance to the amenity of the surrounding neighbourhood.
46. All sound producing plant, equipment, machinery or fittings associated with or forming part of the mechanical ventilation system being capable of being operated in accordance with the requirements of the Noise Control Act, 1975 and the provisions of Australian Standard 1055-1984. In this regard, details of the proposed mechanical exhaust ventilation system within the food preparation area to be submitted to and approved by Council or an Accredited Certifier prior to occupation.
47. Any alterations to the shop front including facade refurbishment or repainting, provision of replacement of an awning, requires prior approval of Council.
48. A final Occupation Certificate must be issued by the Principal Certifying Authority prior to occupation or use of the development. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979have been satisfied.
49. The proposed shop area is to be provided with a garbage/trade waste storage area in accordance with the requirements of Waverley Development Control Plan No 19 – Waste Avoidance and Resource Recovery. Full details are to be provided to Council or an Accredited Certifier prior to the issue of a construction certificate.
50. A garbage and recyclable materials storage area is to be provided for use of the residential units in accordance with the requirements of Waverley Development Control Plan No 19 – Waste Avoidance and Resource Recovery. Full details are to be provided to Council or an Accredited Certifier prior to the issue of a construction certificate.
51. The shop/retail area is to provide access for people with disabilities in accordance with the relevant Australian Standard.
52. Prior to demolition of buildings constructed before 1970, the applicant shall submit a Work Plan prepared in accordance with Australian Standard AS 2601-1991 Demolition of structure by a person with suitable expertise and experience. The Work Plan should outline the identification of any hazardous materials, including surfaces coated with lead paint, method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials.
53. Removal, cleaning and disposal of lead-based paint shall conform with the current EPA guidelines. Demolition of materials incorporating lead is to be conducted in strict accordance with sections 1.5, 1.6, 1.7, 3.1 and 3.9 of Australian Standard AS 2601-1991 Demolition of structure.
54. Hazardous dust must not be allowed to escape from the site. The use of fine mesh dust proof screens or other measures is recommended. Any existing accumulations of dust (eg ceiling voids and wall cavities) must be removed by the use of an industrial vacuum fitted with a high efficiency particulate air (HEPA) filter. All dusty surfaces and dust created from work is to be suppressed by a fine water spray. Water must not be allowed to enter the street and stormwater systems. Demolition is not to be performed during high winds, which may cause dust to spread beyond the site boundaries.
55. All contractors and employees directly involved in the removal of hazardous dusts and substances shall wear protective equipment conforming to Australian Standard AS 1716 Respiratory Protective Devices and shall adopt work practices in accordance with the requirements of WorkSafe's Control of Inorganic Lead At Work (NOHSC:102(1994) and NOHSC:2015(1994)).
56. All lead-contaminated materials are to be disposed of in accordance with the requirements of the EPA.
57. Hazardous or intractable wastes arising from the demolition process shall be removed and disposed of in accordance with the requirements of WorkCover and the EPA and with the provisions of:
- New South Wales Occupational Health and Safety Act, 1983;
- New South Wales Construction Safety Act, 1912; Regulation 84A-J Construction Work Involving Asbestos or Asbestos Cement 1983, T
- The Occupational Health & Safety (Hazardous Substances) Regulation 1996;
- The Occupational Health & Safety (Asbestos Removal Work) Regulation 1996; and
- Environmental Offences and Penalties Act, 1997.
58. Throughout the construction/remediation/demolition period, Council's warning sign for soil and water management must be displayed on the most prominent point of the building site, visible to both the street and site works. A copy of the sign is available from Council.
59. Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.
60. Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.
61. All site works shall comply with the occupational health and safety requirements of the NSW WorkCover Authority.
62. A Waste Management Plan shall be submitted to the PCA for approval in accordance with Council's Development Control Plan 19 - Controls for Site Waste Minimisation and Management. The plan must be submitted and approved prior to the issuing of the construction certificate.
The approved Waste Management Plan for the site must be displayed in an appropriate location on-site and complied with at all times during construction/remediation/demolition and ongoing occupation.
The builder/construction company shall be provided with at least one copy of the waste management plan.
63. A construction vehicle management plan is to be prepared in respect to all works to the site including demolition and construction. The plan is to include details of vehicles and likely vehicle movements, proposed travel route to and from the site, parking, waiting, loading and unloading arrangements for construction vehicles, methods of ensuring that the rear lane will remain accessible for residents, traffic controllers and any other safety precautions proposed.
The plan is to be submitted to Council for approval prior to commencement of any works on the site.
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G T Brown
Commissioner of the Court
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