Blazevic v Holroyd City Council - [2005] NSWLEC 47

Land and Environment Court

of New South Wales

CITATION:
Blazevic v Holroyd City Council [2005] NSWLEC 47

PARTIES:
APPLICANT
Gordon and Jasmin Blazevic
RESPONDENT
Holroyd City Council

FILE NUMBER(S):
11093 of 2004

CORAM:
Murrell C

KEY ISSUES:
Development Application :- Erection of an attached dual occupancy - streetscape - amenity of proposed dwellings

LEGISLATION CITED:
Holroyd Local Environmental Plan 1991
Holdroyd Development Control Plan for Dual Occupancies

DATES OF HEARING: 07/02/2005

EX TEMPORE JUDGMENT DATE:
02/07/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr B Goldsmith
of Goldsmith Planning Services Pty Ltd.
RESPONDENT
Ms D Holm, solicitor
SOLICITORS
McKees Legal Solutions

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

7 February 2005

11093 of 2004 Gordon & Jasmin Blazevic v Holroyd City Council

JUDGMENT

1 This is an extempore judgment for a matter that has come before me this morning as consent orders. The appeal is against Holroyd Council’s refusal of an attached dual occupancy development at the property known as 27 Monash Street, Wentworthville. It is the corner site of Monash and Garfield Street. Opposite the subject site to the east is a school. It is noted from the photographs that were tendered to the Court that there is also a heritage item opposite in Monash Street, all but one removed from the corner, and therefore the LEP requires consideration in terms of impact on the heritage significance.

2 The subject property is zoned 2A under the Holroyd Local Environmental Plan 1991, and under the 2A zone dual occupancy development is permissible. However, multi unit development is not permissible. The subject development application has also been assessed in terms of the Holroyd Development Control Plan guidelines for Dual Occupancy Development. It is noted this development control plan was amended during the processing of the development application now before the Court. The proposal generally complies with the provisions of the development control plan, in particular it satisfies the objectives or criteria in terms of the presentation of dual occupancy development on a corner lot. However, it is noted by virtue of cl 9 of the DCP that attached dual occupancies require a site area on corner lots of 550 sq m. The subject site is 450 sq m.

3 The Court appointed expert, Mr Lindsay Fletcher, liaised with the council and the applicant, and this resulted in the proposed development being amended such that it is now two x two bedroom attached dwellings on the subject site with vehicular access via a combined drive off Monash Street. The proposed dual occupancy is one that will read as a large dwelling in the streetscape. It is noted that the private open space for dwelling two is on the boundary with Garfield Street. However, the plans have been further amended in terms of an appropriate fencing detail and treatment and the Court agrees with the Court appointed expert that the presentation of the dual occupancy from a streetscape point of view is appropriate. Mr Fletcher also suggested other amendments which increased the setback to the rear boundary or the boundary on Garfield Street such that it is 1.2 m to the ground floor and increases to 2.5 m to the upper floor, and this provides for a more attractive development with a suitable separation between the subject development and the approved attached dual occupancy on the adjoining lot.

4 By way of background, this particular subject site is the result of a previous subdivision approval of the council whereby a large parcel of land was subdivided into two lots and the lot on the northern boundary of the subject lot has an approved development application for the erection of an attached dual occupancy development of single storey. The current development application the subject of these proceedings is for the erection of an attached dual occupancy on the corner portion of the land.

5 The single storey to the north is appropriate in terms of minimising overshadowing to the subject site and Mr Fletcher has provided advice to the Court that he is satisfied that the two dwellings proposed in this development will receive appropriate solar access in accordance with council’s controls. Council’s controls are more stringent than AMCORD in that they require 50% of the open space to have the minimum amount of solar access during the winter solstice.

6 The site also has the benefit, sometimes seen as a constraint, of an existing large box gum and this is to be retained in the subject development. The box gum is clearly most visible and an important feature and element of the subject corner site and its retention has therefore dictated a certain design solution and the Court agrees with Mr Fletcher that the solution is appropriate as it retains the large tree and still provides for an appropriate development of the site.

7 The council’s controls, as I stated, have a number of requirements in terms of the development control plan and the only requirement that is not complied with in the circumstances of this case is the rear boundary setback and the minimum allotment size. I am satisfied that the solution proposed in this development application will not appear as an aberration in terms of the new controls. I have given the current development control plan a central focus in my consideration and Mr Fletcher has also, however, the proposal warrants approval and the departures are justified in the circumstances.

8 I do note that the landscape plan is in respect of the two developments, that is the attached single storey dual occupancy to the north and this double storey dual occupancy on the corner portion of the land. The landscape plan does provide for an integrated landscaping in terms of the two developments which will assist in the development sitting comfortably in the streetscape within the context of the area. It is noted that the brush box gum is to be also the plantings on the street which grow to some 12 m, and there are four proposed on the Garfield Street frontage. On the Monash Street frontage there are watergums proposed in the council verge that grow to a height of 8 m. I am satisfied that the proposed development in the context of its landscape setting will be appropriate for the proposed area.

9 During the proceedings the Court had the benefit of hearing from Mr Fletcher on questions or issues that were raised and I am satisfied that the matter has been given careful consideration and the amendments reflect an overall better design.

10 By way of comment the matter of dual occupancies as opposed to integrated housing was raised by the Court. The Court expressed some concern about the concept of zoning for residential areas that just result in further subdivisions to allow more dual occupancies ‘ad nauseum’ rather than consideration to integrated medium density development. The latter does not necessarily result in higher density but an integrated form of housing that may be more appropriate in terms of amenity to occupants and in terms of the overall built form. Nonetheless this is a matter for council as it is clearly within its province.

11 The conditions are generally as agreed between the parties including an additional condition with respect to the fencing on the Garfield Street frontage, in particular for the courtyard of the rear dual occupancy is such that it will integrate with the design of the subject building providing for masonry brick piers with a timber fencing treatment.

12 On the basis of the evidence that has been presented to me this morning, and with the benefit of the Court appointed expert, I see no reason why the Court should not enter into the consent orders as agreed to between the parties. Therefore the orders of the Court in this matter are:

1. The appeal in respect of the property known as 27 Monash Street, Wentworthville, is upheld by consent.

2. The development application for an attached dual occupancy submitted to Holroyd Council, and as amended and shown in Exhibit ‘A’ being the Issue E plans 24 November 2004 prepared by AWD Design together with the changes to the eastern elevation in Exhibit ‘D’, is approved subject to the conditions contained in Annexure ‘A’.

3. The exhibits except for 2, A, C & D are returned.

4. There is no order as to costs.

J S Murrell

Commissioner of the Court

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Annexure ‘A’

Conditions of Consent

PRELIMINARY

1. This consent shall lapse if the development is not substantially commenced within two (2) years of the date of this Consent. Any person entitled to act on the consent may apply to Council at least thirty (30) days before this two-year period expires, for an extension of one year.

2. Development shall take place generally in accordance with the attached endorsed plans and documentation, being:

Architectural plans prepared by AWG Design and Construct – Ref. No.03-032, sheets 1 - 5, all issue E dated November 2004.

Landscape plan as approved by Council.

Urban Tree Management Report dated 22 August 2003.

Hydraulic and Sediment Control Plan prepared by M. M. Farah, Sheet 1 of 1, Revision B, dated 30 January 2005.

Rainwater Tank Checklist as approved by Council.

Courtyard/boundary fencing details along Garfield Street as approved by Council.

Waste Management Plan lodged with Council on 1 September 2003.

Schedule of external colours and finishes prepared by AWG lodged 21 November 2003.

Any amendments in red are to be incorporated in the Construction Certificate plans.

3. Full details of the rainwater tanks shall be submitted to Council. These details shall include a completed Rainwater Tank Checklist, and manufacturer’s specifications.

4. A fully documented landscape plan for the site is to be submitted to Council for approval, prepared by a suitably qualified person at a minimum scale of 1:100. (A suitably qualified person may include a Landscape Architect, Landscape and Garden Designers, Horticulturists, etc.). The plan shall correspond with the Architectural Plans prepared by AWG Design and Construct – Ref. No.03-032, sheets 1 - 5, all issue E dated November 2004. The plan should be generally in accordance with the landscape plan prepared by Ray Fuggle & Associates Pty Ltd, Project No. 0459c, Drawing No. L01 (Issue C), dated 18 March 2004.

5. The courtyard/boundary fencing to Garfield Street shall be a 1.8m high lapped and capped timber paling fence with brick pier supports to a maximum height of 2 m. Amended details shall be submitted to Council for approval. Such details should also address any tree protection requirements.

6. All building work shall be carried out in accordance with the requirements of the Building Code of Australia. Fully detailed plans including fire safety details shall be submitted with the Construction Certificate application.

Appointment of Council or a Private Certifier as the Principal Certifying Authority (PCA)

7. Either Council or a Private Certifier is to be appointed as the Principal Certifying Authority (PCA) for the development in accordance with Section 109E of the Act.

Accordingly, wherever reference is made to the Principal Certifying Authority in this Consent, it refers to Council or the Private Certifier as chosen by you.

Note: Once you have chosen either Council or a Private Certifier as the PCA, you cannot change from one to the other, or from one Private Certifier or another, without the approval of DIPNR.

8. The applicant shall consult with, as required:

9. The proposed structure/s are to be located clear of existing Council easements. Special footings will be required where the proposed/existing structures are adjacent to a drainage easement. The footings shall be taken down to the invert level of the existing drainage structure or to solid rock, whichever is the lesser. The footing depth may decrease by 500mm for every 1000mm increment in distance the footing is from the easement boundary.

The footing system is to be designed by a practising professional structural engineer.

10. Building materials, builders sheds, waste bins, site fencing, gates or any material of any description shall not be left or placed on any footway, road or nature strip. Footways and nature strips shall be maintained, including the cutting of vegetation, so as not to become unsightly or a hazard for pedestrians. Offenders will be prosecuted.

PRIOR TO ISSUE/RELEASE OF CONSTRUCTION CERTIFICATE

The following conditions must be complied with prior to the issue of a Construction Certificate. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications which accompany the Construction Certificate:-

13 Payment of Bonds, Fees and Long Service Levy

11. The Principal Certifying Authority is to ensure and obtain written proof that all bonds, fees and contributions as required by this consent have been paid to the applicable authority. This includes all Long Service Levy payments to be made to the Long Service Payments Corporation.

Section 94 Contribution

12. A public reserve contribution of $1,794 being for one (1) additional dwelling is to be paid to Council. This contribution is imposed under the Holroyd Section 94 Contributions Plan for Open Space and Recreation Facilities - which came into force on 2 December, 1998. A copy of this plan can be inspected at Council’s Civic Centre located at 16 Memorial Avenue, Merrylands between the hours of 8am and 4.30pm Monday to Friday. This contribution will form part of the funding towards the purchase/embellishment of Local, District and Regional Open Space and the administration of Council’s Section 94 Contribution fund.

13. A public reserve contribution of $544.50 being for one (1) additional dwelling is to be paid to Council. This contribution is imposed under the Holroyd Section 94 Contributions Plan for Open Space and Recreation Facilities - which came into force on 2 December, 1998. A copy of this plan can be inspected at Council’s Civic Centre located at 16 Memorial Avenue, Merrylands between the hours of 8am and 4.30pm Monday to Friday. This contribution will form part of the funding towards the purchase/embellishment of Local, District and Regional Open Space and the administration of Council’s Section 94 Contribution fund.

14 Consistency with Endorsed Development Consent Plans

14. The Principal Certifying Authority must ensure that any certified plans forming part of the Construction Certificate, are in accordance with the Development Consent plans.

Tree Planting/Landscaping

15. A bond of $4,800 is to be lodged with Council against the planting, establishment and maintenance of the required landscaping/tree planting. This bond will be retained for a minimum period of twelve (12) months from the issue of a Final Occupation Certificate after which a further inspection will be undertaken by Council or the Principal Certifying Authority (PCA), to ensure the satisfactory establishment and maintenance of the landscaping/tree planting.

If Council is not the PCA, certification from a suitably qualified personthe designer of the landscape works that the required landscaping/tree planting is establishing and being maintained satisfactorily, is to be submitted to Council at the expiry of the bond period prior to the bond being refunded.

If the landscaping is not established or maintained to Council’s or the PCA’s satisfaction, the bond monies will be applied to fully implement the landscape plan.

Note: Retention of bonds for twelve (12) months provides for the landscaping/tree planting to establish over a full cycle of seasons.

16. The following bond shall be lodged with Council prior to works commencing against the retention, protection during demolition/construction and adaptation to the altered environment, of the following tree identified on the endorsed plans:-

Tree No & Species Bond

If Council is not the PCA, a report on the health and condition of the tree, from the Arborist engaged to ensure the proper protection and management of the trees required to be retained/transplanted, is to be submitted to Council at the completion of works/expiry of the bond period and prior to the bond being refunded. If the report indicates that the tree requires remedial works, which are not exempt under Council’s Tree Management Order, an application for General Tree Works will be required to be submitted and approved, before the works are carried out and certified by the Arborist. Remedial works which are exempt under Council’s Tree Management Order will also be required to be completed and certified.

If the trees are not retained, protected or managed to Council’s or the PCA’s satisfaction, bond monies will be forfeited at the following rates unless remedial works are implemented:-

(a) An initial breach of any tree protection condition – 20% of total bond for particular tree/s.

(b) A second or the continuing breach of any tree protection condition - 40% of total bond for particular tree/s.

(c) If after 40% of the bond is retained, further breaches of the tree protection conditions occur, Council may instigate legal proceedings for the cessation of all works on the site.

(d) Death of any protected tree/s due to non-compliance with tree protection conditions – 100% of total bond for particular tree/s and possible legal action by Council.

Note: Retention of bonds for twelve (12) months provides for the tree/s to adapt to its/their altered situation over a full cycle of seasons.

Engineering Fees and Bonds

17. Payment of a $180 fee for the design, specifications and inspection by Council of the vehicular crossing/s prior to placement of concrete.

18. Payment of a $248 fee for the design, specifications and inspection by Council of the footpath paving prior to placement of concrete.

19. Payment of a $313 fee for the inspection by Council of the stormwater and On Site Detention system at the key stages, where Council is the Principal Certifying Authority.

20. The applicant shall lodge with Council a $3,700 cash bond or bank guarantee for the satisfactory completion of the construction or reconstruction of the concrete footpath paving adjacent to the site. This bond is refundable upon completion of all works on the site.

21. The applicant shall lodge with Council a $5,041 cash bond to cover the registration of a Positive Covenant and Restriction as to User over the on-site stormwater detention system.

Road Works

22. A Traffic Management Plan shall be lodged with Council for any road and drainage works to be carried out within public road reserves, or where construction activity impacts on traffic flow or pedestrian access, in strict compliance with the requirements of Australian Standard 1742.3 (Traffic Control Devices for Works on Roads). In this regard, the applicant shall pay Council a $85 fee for the assessment of the Traffic Management Plan by Council, prior to commencing works within the road reserves.

Required Submissions to Certifying Authority

23. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

(Application must be made through an authorised Water Servicing Coordinator. Please refer to the “Your Business” section of the web site then follow the “e-Developer” icon or telephone 13 20 92 for assistance.

Following application, a “Notice of Requirements” will advise of 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).

Notice of Requirements

24. An erosion and sediment control plan (in duplicate) shall be submitted to the Principal Certifying Authority prior to the issue/release of the Construction Certificate and is to be prepared by a suitably qualified person in accordance with the guidelines set out in Holroyd City Council’s “Erosion and Sedimentation Control Policy”. The plan shall include as a minimum the following:-

Locality

Contours (initial and final)

Existing vegetation

Existing site drainage

Land slope gradient

Location of topsoil stockpiles

Erosion control measures

Sediment control measures

Location of crushed rock construction entrance

Location of roads, driveways and accessways and all impervious surfaces

Details of site revegetation program

Outline of a program of maintenance for the erosion and sediment controls

Energy Efficiency - Residential

25. A hot water system with a minimum 3.5 star greenhouse rating shall be provided for each new dwelling. This may be achieved by solar-gas boost-storage, gas- instantaneous, gas-storage, electric heat pump-storage and solar-electric boost. Details shall be submitted to Council with the construction certificate.

Water Conservation - Residential

26. AAA rated water conservation devices including showerheads, water tap flow regulators and dual flush toilet & cisterns shall be provided for each new dwelling. Details shall be submitted to Council with the construction certificate.

NatHERS Certificate

27. The Construction Certificate application is to include a NatHERS Certificate demonstrating a minimum 3.5 star rating for each dwelling.

PRIOR TO WORKS COMMENCING

The following conditions are to be complied with prior to any works commencing on the site:

(a) Appointment of Principal Certifying Authority and Notification of Commencement of Work

28. The person having the benefit of the development consent, not the principal contractor (builder), must: -

(a) appoint a Principal Certifying Authority in accordance with Section 81A(2)(b) of the Act.

(b) Have the Principal Certifying Authority complete the ‘Accredited Certifier Details’ on the approved form provided by Council for this purpose, an original of which is attached to this Development Consent.
(c) Notify Council of the appointment of the Principal Certifying Authority and of the intention to commence building work, such notification is to be given to Council at least two (2) working days prior to the proposed commencement date, and be on the approved form provided by Council for this purpose, an original of which is attached to this Development Consent.

If nominated, Council can provide this service for you and act as the Principal Certifying Authority.

N.B. The Principal Certifying Authority must also notify the person having the benefit of the Development Consent of any mandatory critical stage inspections and other inspections that are to be carried out in respect of the building work such notification must comply with Clause 103A of the Regulations.

Notification of Principal Contractor (Builder)/Owner-Builder

29. The person having the benefit of the Development Consent must:-

(a) notify the Principal Certifying Authority that the person will carry out the work as an owner-builder, if that is the case;

OR

(b) Appoint a Principal Contractor for the building work (who must be the holder of a contractor licence if any residential building work is involved), and notify the Principal Contractor of any mandatory critical stage inspections and other inspections that are to be carried out in respect of the building work.
(c) notify the Principal Certifying Authority of any such appointment.

Where Council is the Principal Certifying Authority, such notification is to be on the approved form provided by Council for this purpose, an original of which is attached to this Development Consent.
Required Submissions to Certifying Authority

30. To facilitate a complete assessment and enable the Certifying Authority to check compliance on site, truss validation and design, details certified by a qualified practising structural engineer shall be submitted to Council or the Principal Certifying Authority for examination and approval. Details shall include:

a) job address and builder’s name
b) design wind velocity
c) terrain category
d) truss spacing
e) roof pitch
f) material of roof
g) roof batten/purlin spacing
h) material of ceiling
i) job number

Fencing of Sites

31. Fencing of sites is required to prevent public access when the site is unoccupied and building works are not in progress. In this regard the MINIMUM acceptable standard of fencing to the site is properly constructed chain wire fencing 1.8m high, clad internally with Hessian or Geotextile fabric. All openings are to be provided with gates, such gates are not at any time to swing out from the site or obstruct the footpath or roadway.

Signs to be Erected on Sites

32. A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

(a) showing 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 at any time for business purposes , and

(c) stating that unauthorised entry to the work site is prohibited.

The sign must be rigid and durable and be read easily by anyone in any public road or other public place adjacent to the site.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building.
Note : Principal Certifying Authorities and Principal Contractors must also ensure that signs required by this clause are erected and maintained (clause 227A of the Regulations currently imposes a maximum penalty of $1,100).

Prohibited Signage

33. Advertising, Real Estate Agents, Architects, Designers, site suppliers and any other signage not mentioned in the conditions, is not to be placed or displayed on the site, such that the signage is visible from any public place. Offenders may be prosecuted.

Protection of Public Places

34. A hoarding or fence must be erected between the work site and any public place, if the work involved in the erection or demolition of the building; is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or involves the enclosure of a public place.

If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.
The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

Site Control Measures

35. Suitable erosion and sediment control measures shall be provided at all vehicular entry/exit points and all other measures required with and/or shown on plans accompanying the Construction Certificate, to control soil erosion and sedimentation, are to be in place prior to the commencement of construction works. Such controls are to be provided in accordance with Holroyd City Council’s “Erosion & Sediment Control Policy.”

Note:

Tree Protection Conditions

36. The trees identified on the endorsed plans as being retained/transplanted shall be protected prior to and throughout the demolition/construction process in accordance with the report from Urban Tree Management dated 22 August 2003 and relevant conditions of this Consent. All trees not authorised to be removed by this Consent must be retained. Prior to any work commencing, certification of the installation and inspection of the required tree protection works is to be provided to the Principal Certifying Authority by a suitably qualified person/the Arborist engaged to ensure the proper protection and management of the tree/s required to be retained/transplanted. A copy of the Certificate is to be issued to Council within seven (7) days of the inspection and prior to any works commencing. Additionally, trees identified for removal are to be retained until immediately prior to works commencing, to assist with soil management and erosion control.

37. Protective fencing is to be installed around the tree/s to be retained/transplanted in line with the dripline and/or that part of the dripline of the tree/s which overhangs the site and no further than 0.5m from the buildings . This fencing is to be constructed of chainwire mesh 1.8m high, which is supported by steel stakes or piping and braced to resist impacts. Where appropriate the trunk/s of the tree/s on the site and any street tree/s (which are not to be fenced other than as mentioned above), shall also be protected by vertical timber boards, installed by or under the supervision of a suitably qualified person/the arborist engaged to ensure the proper protection and management of the trees required to be retained/transplanted to accepted horticultural and TAFE standards.

38. The fenced zone/s surrounding the trees to be retained shall be mulched with 100mm of composted leaf mulch.

39. The Brush Box tree to be retained (identified as Tree 7 in the report from Urban Tree Management dated 22 August 2003) is to be protected by tree protection barriers located as shown on the landscape plan. The area contained is the TPZ, and is to exclude any activity, except where otherwise stated. TPZ works may extend beyond the fenced area or replace a fence if appropriate. The TPZ is to exclude: modification of existing soil levels, storage of materials including waste, site sheds and machinery, preparation of building materials eg. concrete, or chemical treatments; the movement of pedestrian or vehicular traffic; or the temporary, or permanent location of services, or the works required for their installation, eg. trenches, holes or canals.

40. The Tree Protection fence that defines the TPZ of the Brush Box tree (Tree 7) to be retained is to be 1.8m high steel chain link with galvanised steel panels, or approved similar. The temporary fence panels should have concrete feet that can be pegged into the ground, thus avoiding unnecessary ground disturbance and possible root damage.

The TPZ fence or fence section will be required to be established prior to demolition and measure approximately ten (10) metres (North/South) and approximately seven (7) metres (East/West). The fence could extend by a metre into the road reserve, if at the time of construction this was agreed to by Council’s Building Surveyors.

The perimeter of the TPZ to be further delineated by the attachment of shade cloth material outside surface area of the fence facing the inside of the site. The fence is to be installed prior to the commencement of any works on site, (except weed removal and tree maintenance, eg. pruning, irrigation and mulching), and is to be maintained for the duration of the project. The fence must have a lockable opening for access to, and the security of the enclosed area.

The removal of woody weeds and other existing plants not required with the landscaping works will be performed by hand with the TPZ. The area of the TPZ is to be mulched to a depth of 100 millimetres with organic material being 20% leaf litter and 80% wood, and this being composted material. The depth of the mulch is to be maintained for the duration of the project.
Note: Removal of the protective fencing or timber boards during construction work, will affect the Bonds and may result in legal proceedings being instigated by Council against the applicant and builder.

41. A suitably qualified consulting arborist (‘the site arborist’) is to be appointed by the applicant to undertake regular monitoring of the Tree Protection Zone (TPZ) and the trees upon the site. Council is to be notified of the name and contact details of the site arborist at the time the Principal Certifying Authority (PCA) is appointed.

Footpaving, Kerbing and Guttering

42. Protection must be provided for Council footpaving, kerbing and guttering. Wooden mats must also be provided at all entrances where the site fronts paved footpaths.

43. Finished street levels shall not be assumed. The owner or builder must make application to Council’s Engineering Services Department for street levels.

Support for Neighbouring Buildings

44. 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 (including a public road and any other public place), the person causing the excavation to be made:-

allotment of land

Toilet Facilities

45. Toilet facilities are to be provided, at or in the vicinity of 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.

Residential Building Work - Insurance

46. Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (where not Holroyd City Council) has given Holroyd City Council written notice of the following information:-

(a) in the case of work for which a Principal Contractor is required to be appointed:

(i) the name and licence number of the Principal Contractor, and
(ii) the name of the insurer by which the work is insured under Part 6 of that Act,

(b) in the case of work to be done by an owner-builder:

(i) the name of the owner-builder, and
(ii) if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under this condition becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (where not Holroyd City Council) has given Holroyd City Council written notice of the updated information.

The notification is to be on the approved form provided by Council for this purpose, an original of which is attached to this Development Consent.
Roadworks

47. The applicant is to submit to Council an application for a road opening permit when the drainage connection into Council’s system is within the road reserve. In this regard the applicant shall pay Council a $103 fee prior to the commencement of works. Additional road opening permits and fees may be necessary where there are connections to public utility services (eg. telephone, electricity, sewer, water or gas) required within the road reserve.

48. The applicant to arrange with the relevant public utility authority the alteration or removal of any affected services in connection with the development. Any such work being carried out at the applicant’s cost.

Sydney Water

49. The approved plans must be submitted to Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. (For Quick Check agent details please refer to the web site see Your Business then Building & Developing then Building & Renovating or telephone 13 2092.)

Subdivision

50. The Torrens title plan of subdivision of Lots 27 and 28, Section A, DP 963 (subject of Development Consent No. 2003/1138) must be registered with Land and Property Information NSW prior to commencement of works.

DURING CONSTRUCTION

Endorsed Plans & Specifications

51. A copy of the endorsed stamped plans and specifications, together with a copy of the Development Consent and Construction Certificate are to be retained on site at all times.

Hours of Work & Display of Council Supplied Sign

52. For the purpose of preserving the amenity of neighbouring occupations building work including the delivery of materials to and from the site is to be restricted to the hours of 7.00am to 6.00pm Mondays to Fridays and 8.00am to 4.00pm Saturdays. Work on the site on Sundays and Public Holidays is prohibited. Note: Demolition work is not permitted on weekends or Public Holidays - refer to specific demolition condition for approved hours.

The yellow “Hours of Building Work” sign (supplied by Council with the approval), is to be displayed in a prominent position at the front of the site for the duration of the work.
Site Control

53. All soil erosion measures required in accordance with the approved sediment and erosion control plan and any other relevant conditions of this Consent are to be put in place prior to commencement of construction works are to be maintained during the entire construction period until disturbed areas are restored by turfing, paving or revegetation. This includes the provision of turf laid on the nature strip adjacent to the kerb.

54. Builder’s refuse disposal and storage facilities are to be provided on the development site for the duration of construction works and all rubbish shall be removed from the site upon completion of the project.

55. Stockpiles of sand, soil and other material shall be stored clear of any drainage line or easement, tree protection zone, water bodies, footpath, kerb or road surface and shall have erosion and sediment control measures in place to prevent the movement of such materials onto the aforementioned areas and adjoining land.

Waste Management Plan

56. The approved Waste Management Plan must be implemented and complied with during all stages of works on site.

Compliance with Critical Stage Inspections and other Inspections nominated by the Principal Certifying Authority

57. Section 109E(d) of the Act requires certain specific inspections (prescribed by clause 162A of the Regulations) and known as ‘Critical Stage Inspections’ to be carried out for building work. Prior to permitting commencement of the work your Principal Certifying Authority is required to give notice of these inspections pursuant to clause 103A of the Regulations.

N.B. An Occupation Certificate cannot be issued and the building may not be able to be used or occupied where any mandatory critical stage inspections or other inspections required by the Principal Certifying Authority are not carried out.

Where Council is nominated as Principal Certifying Authority, notification of all inspections required is provided with the Construction Certificate approval.

Construction

58. The building and external walls are not to proceed past ground floor formwork/reinforcing steel level until such time as the Principal Certifying Authority has been supplied with a check survey report prepared by a registered surveyor certifying that the floor levels and external wall locations to be constructed, comply with the approved plans, finished floor levels (FFL)s and setbacks to boundary/ies. The slab shall not be poured, nor works continue, until the Principal Certifying Authority has advised the builder/developer that the floor level and external wall setback details shown on the submitted survey are satisfactory.

In the event that Council is not the Principal Certifying Authority, a copy of the survey shall be provided to Council within three (3) working days.

On placement of the concrete, works again shall not continue until the Principal Certifying Authority has issued a Compliance Certificate stating that the Condition of approval has been complied with and that the slab has been poured at the approved levels.
Landscaping/Site Works

59. All turfed areas shall be finished level with adjoining surfaces and also fall evenly to approved points of drainage discharge.

60. A single master T.V. antenna is to be installed to service each building and provision made for connection to each dwelling within that building.

Fencing

61. New 1.8m high lapped and capped timber paling or colorbond fences (colour to be sympathetic with the development) determined in consultation with adjoining property owner(s), are to be erected along all side and rear boundaries and between courtyards at full cost to the developer. In situations where the boundary fence is proposed on top of a retaining wall, the height of the fence shall not exceed a maximum of 2.4m as measured from the lower adjacent ground level. A Statutory Declaration or other documentary evidence of such consultation is to be submitted to the Principal Certifying Authority.

62. Fences are to taper from the front building line to be not more than 900mm high at the front boundary.

Tree Protection

63. The tree/s identified on the endorsed plans as being retained/transplanted shall be protected against damage throughout the demolition/construction process in accordance with the report from Urban Tree Management dated 22 August 2003 and relevant conditions of this Consent.

64. The Brush Box tree (Tree 7) is to be protected and any construction works within five (5) metres of the tree’s trunk should be constructed with hand dug piers and precast concrete lintels 100mm clear above these roots to protect them. This is to allow for future tree growth without conflict between the tree and built structure.

Where structural woody roots are located with a diameter of under 50mm, they are to be pruned outside the area of the Tree Protection Zone (TPZ) by a qualified arborist. The roots are to be excavated manually first by using hand tools to determine their location. Once located those roots to be severed are to be cut cleanly with a final cut to undamaged woody tissue.

Topsoil stripping will not occur within 5 metres of for the closest edge of the trunk to the dwelling. This is to retain root zones of the existing tree and provide topsoil for new planting’s.

65. The pruning works required to the Brush Box tree (Tree 7) include under-pruning several sub-lateral branches to a height of 2.5 metres. The side pruning of the west side (building side) of the crown will include the removal of live wood in the form of approximately six (6) sub-lateral branches as indicated in the photographs taken on 20 December 2004. The tree also required the removal of existing deadwood. No thinning works to the tree’s crown are to occur.

Any branch pruning is to be performed to the Australian Standard AS4373 ‘Pruning of amenity trees’, and conducted in accordance with the NSW Work Cover Authority Code of Practice for the Amenity Tree Industry, 1998, and all pruning or removal works are to be in accordance with Council’s Tree Management Order (TMO).

66. A report is to be prepared and submitted to Council by the Arborist engaged to ensure the proper protection and management of the tree/s required to be retained/transplanted that:

i) Sets out maintenance work carried out on tree/s; and
ii) Assesses the health and condition of the tree/s required to be retained/transplanted and protected.
The report should also provide documentary evidence that the tree protection conditions are being complied with in the form of site notes and photographs and be provided at three monthly intervals during construction works that are within 5m of any tree.

67. The applicant shall accept all responsibility for the accuracy of the information provided to Council for assessment. If any tree/s are not shown on the endorsed plan or are required to be retained/transplanted and protected but are threatened by demolition/construction work through unforeseen construction requirements or plan inaccuracy, all site and building works so affected are to cease until the matter is resolved to the satisfaction of Council. Council’s Environmental and Planning Services Department is to be notified immediately upon such a problem being encountered.

68. No works are to occur within the fenced tree protection zone. All authorised works/activities within the fenced tree protection zone/s are to be undertaken by hand held equipment under the supervision of the consulting Arborist. No roots over 50mm in diameter are to be cut within the tree protection zone without prior consultation with Council officers or the consulting Arborist.

All roots over 50mm in diameter which are encountered outside the fenced tree protection zone/s are to be cleanly cut and not ripped.

Inspection of On Site Detention Works

69. The stormwater drainage works are to be inspected during construction, by the Council or by a suitably qualified Civil Engineer. Documentary evidence of compliance with Council’s specifications shall be obtained prior to proceeding to the subsequent stages of construction, encompassing not less than the following key stages:

(a) Initial inspection to discuss concept and site conditions/constraints prior to commencement of construction of the detention basin/tank.

(b) Prior to landscaping of detention basin or pouring of the roof of the detention tank.

(c) After completion of storage but prior to installation of fittings (e.g. orifice plates, screens, flap valves etc.)

(d) Final Inspection
Council’s standard inspection fee will apply to each of the above set inspection key stages. Additional inspection fees will apply for additional inspections required to be undertaken by Council.

Note: A private certifier or the Principal Certifying Authority cannot be engaged to do this inspection.
Road Works and Footpaving

70. Pedestrian access, including disabled and pram access, is to be maintained as per Australian Standard AS1742.3 “Part 3 – Traffic Control Devices for Works on Roads”.

71. All advisory and regulatory sign posting (for example parking restriction signage, pedestrian crossing signs, warning signs) are to remain in place during construction.

Underground Cabling

72. All communications cabling shall be installed underground as per relevant authority requirements (including broadband and Category 5).

Rainwater Tank

73. One or more rainwater tank, with a total capacity of at least 3,000 litres, is to be provided and maintained in accordance with the attached endorsed plans, the approved “rainwater tank checklist” and the submitted specifications, except where amended by conditions of this consent.

74. The rainwater tank(s) shall be connected to all toilets, washing machine outlet locations and all outdoor watering taps, other than one emergency mains tap at the front of the site near the water meter.

75. The rainwater tank supply shall not be connected to drinking and bathing water tap outlets.

76. The rainwater tank(s) shall be in accordance with the following:

“NSW Code of Practice: Plumbing and Drainage”

with Australian Standard AS/NZ 3500.1.2 – 1998: National Plumbing and Drainage – Water Supply – Acceptable Solutions

77. A back flow prevention device shall be provided at the water meter in accordance with Sydney Water requirements.

78. A back-up supply of mains water (in the event of power failure) shall be provided via either a “by-pass” of the pump or “dual feed” to at least one toilet in the dwelling.

79. The roof(s) from which tank rainwater is being collected shall not contain lead-based, tar-based or asbestos materials.

80. The rainwater tank shall be cleaned and maintained in accordance with the manufacturers and Sydney Water requirements.

PRIOR TO ISSUE OF OCCUPATION CERTIFICATE

The following conditions are to be complied with prior to the issue of an interim/final occupation certificate:-

Principal Certifying Authority

81. An Occupation Certificate is to be issued by the Principal Certifying Authority prior to the occupation of the building.

82. A Compliance Certificate or similar documentary evidence is to be issued by the Accredited Certifier stating that all building and site works have been carried out in accordance with the Development Consent and Construction Certificate.

Compliance Certificates/Documentary Evidence

83. A final clearance is to be obtained from Integral Energy if such clearance has not previously been issued.

84. A Section 73 Certificate (Sydney Water) must be submitted to the Principal Certifying Authority prior to occupation of the development.

85. A Compliance Certificate from the supervising qualified structural engineer responsible for the design shall be submitted to the Principal Certifying Authority and shall state that all foundation works/reinforced concrete/structural members have been carried out/erected in accordance with the Engineer’s requirements and the relevant SAA Codes.

Note: Any such certificate is to set forth the extent to which the engineer has relied on relevant specifications, rules, codes of practice or publications in respect of the construction.

86. A certificate shall be submitted to the Principal Certifying Authority stating that safety glazing has been used in the building in accordance with AS1288 - “Glass in Buildings - Selection and Installation”.

Landscaping/Tree Protection

87. Certification is to be provided to the Principal Certifying Authority (PCA), from a suitably qualified person/the designer of the landscape proposal, that all tree planting/landscape works have been carried out in accordance with the endorsed site plan/landscape plan. If Council is the PCA, the certification is to be submitted to Council prior to or at the final landscape inspection. If Council is not the PCA, a copy of the certification is to be provided to Council with the Occupation Certificate.

88. The Arborist engaged to ensure the proper protection and management of the trees required to be retained/transplanted is to provide a report to Council concerning the health and condition of the tree/s and if necessary any remedial works required. The report should also provide documentary evidence that the tree protection conditions were complied with throughout the demolition/construction phases, in the form of site notes and photographs. Should the trees require remedial works which are not exempt under Council’s Tree Management Order, an application for General Tree Works will be required to be submitted and approved before the works are carried out and certified by the Arborist. Remedial works which are exempt under Council’s Tree Management Order will also be required to be completed and certified.

89. Boundary and courtyard fences must be erected and finished in a professional manner.

Driveway

90. The vehicle crossing between the street and front boundary shall be constructed of plain concrete with no colour or stencilling.

On-Site Detention Certification and Covenant

91. A copy of the as approved OSD plan showing work as executed details shall be submitted to Council. The work as executed plan shall be in accordance with Council’s standards and specifications for stormwater drainage and on-site stormwater detention.

92. A compliance certificate in accordance with Council’s standards and specifications for stormwater drainage and on-site stormwater detention shall be issued to the Principal Certifying Authority by a suitably qualified Civil Engineer.

93. Documents giving effect to the creation of a Positive Covenant and Restriction on Use over the on-site stormwater detention system shall be registered on the title of the property. The wording of the terms of the Positive Covenant and Restriction as to User shall be in accordance with Council’s standards and specifications for stormwater drainage and on-site stormwater detention. The documents prepared shall be submitted to Council for approval prior to registration with Land and Property Information NSW.

94. A maintenance schedule for the stormwater and On-Site Detention system including a sketch plan of the components forming the sites stormwater and On-Site Detention system shall be submitted. The maintenance schedule shall be prepared by a qualified hydraulic engineer and shall be in accordance with the Upper Parramatta River Catchment Trust requirements. In addition, the maintenance schedule shall also be included in the Positive Covenant of the 88B Instrument, as a cross-reference or appendix.

Road Works

95. A full width medium duty vehicular crossing shall be provided opposite each vehicular entrance to the site, with a maximum width of 6 metres and a minimum width of 5 metres at the boundary line. These works shall be carried out by a licensed construction contractor at the applicant’s expense and shall be in accordance with Council’s issued drawings and level sheets.

96. The construction or reconstruction of concrete footpath paving and associated works along all areas of the site at the corner of Monash Street and Garfield Street. These works shall be carried out by a licensed construction contractor at the applicant’s expense and shall be in accordance with Council’s standard drawing SD-8100 and issued level sheets.

97. The construction or reconstruction of kerb ramps and associated works at the corner of Monash Street and Garfield Street. These works shall be carried out by a licensed construction contractor at the applicant’s expense and shall be in accordance with Council’s standard drawing SD8101 and issued level sheets.

98. Removal of all redundant vehicular crossings and laybacks along the full road frontage and replacement with kerb and gutter. These works shall be carried out by a licensed construction contractor at the applicant’s expense and shall be in accordance with Council’s standard drawing number SD-8100.

99. A compliance certificate for the construction of driveways, footpath paving, kerb and guttering and roadworks shall be obtained from Council and be submitted to the Principal Certifying Authority.

Subdivision

100. Lots 27 and 28 are to be subdivided into two (2) lots on title and all works shall be completed in accordance with Development Consent 2003/1138 prior to the issue of an occupation certificate.

House/Street Number

101. A house/street number must be displayed on all newly developed properties in accordance with Council's "Policy on the Display of House Numbers" available from the Customer Services Counter or Council's website, TO RELEASE OF LINEN PLAN

Linen Plan

102. The linen plan for the subdivision when lodged for final approval must be accompanied by four (4) copies and linen plan release fee of $168.40.

103. As per Condition 93 of this consent a restriction on the use of the land and a positive Covenant are to be created to maintain the On Site Detention system. The Section 88B instrument required is to be created in association with the subdivision and is to be in accordance with Holroyd City Council’s standard wording. The instrument should also be used to create any Right of Carriageway and easement required. Provision is to be made for the General Manager of the Council or his/her designate to sign the document and it is to be appropriately noted on the linen plan of strata subdivision.

Public Utilities

104. The Principal Certifying Authority is to be provided with a current Section 73 Compliance Certificate for the property from Sydney Water.

105. Public utility services (including water, sewer, electricity and telephone) shall be provided and any easements necessary created to the satisfaction of the relevant servicing authorities. Evidence of such is to be submitted prior to release of the linen plan of subdivision.

Easements

106. A drainage easement and easement for services is to be created in favour of proposed Lot 1 and burdening proposed Lot 2 of the development. This must be indicated on the linen plan. All costs associated with piping, relocation and creation of easements shall be borne by the applicant.

General

107. Documentary evidence and/or compliance certificates must be submitted to Council to show that all works have been completed in accordance with this Consent (Land & Environment Court Proceedings No. 11093 of 2004) and its accompanying Construction Certificate.

ADVISORY NOTES

(a) Other Necessary Approvals

A. The applicant’s attention is drawn to the need to obtain Council’s separate approval for any ancillary activity not approved by this consent, including:

(a) Works, including the pruning or removal of any tree(s) not authorised in the preceding conditions or on the approved plans. Council’s Tree Preservation Order protects trees by definition taller than 3.5m or having a trunk circumference exceeding 500mm measured one metre above ground level. If in doubt contact Council’s Tree Management Officer.
(b) Any fencing located forward of the proposed building and exceeding the limitations specified in Schedule 1 of Development Control Plan No. 32 “Guidelines for Exempt and Complying Development” .
(c) The erection of any advertising sign, not being exempt from the need to obtain approval.

(d) The installation of any furnace, kilns, steam boiler, chemical plant, sand blast, spray painting booth or the like.
NOTE: * If you carry out building work as an owner builder and sell your home within seven (7) years from the date of completion (date of final occupation certificate), then a Certificate of Insurance must be attached to your Contract of Sale.

B. Section 97 of the Act provides that an applicant who is dissatisfied with the Council’s determination of the Development Application may appeal to the Land and Environment Court within twelve (12) months of the date of determination, or as otherwise prescribed.

C. Section 82A of the Act provides that an applicant may request, within twelve (12) months of the date of determination of the Development Application, that the Council review its determination (this does not apply to integrated or designated development). A fee is required for this review.

D. The applicant and Owner are advised that the Commonwealth Disability Discrimination Act 1992 may apply to this particular proposal. Approval of this application does not imply or confer compliance with this Act. Applicants and owners should satisfy themselves as to compliance and make their own enquiries to the Human Rights and Equal Opportunity Commission. Attention is also drawn to the provisions of Parts 2, 3 and 4 of Australian Standard 1428 - Design for Access and Mobility.

E. Information regarding the location of underground services may be obtained from Sydney One Call Service (NSW Dial Before You Dig), telephone 1100, Fax 1300 652 077. Inquirers should provide SOCS with the street/road name and number, side of street/road and the nearest cross street/road.

F. A Construction Certificate shall be obtained (for each proposed lot) in accordance with Section 81A (2)(a)of the Act, prior to the commencement of any work on site. Council can provide this service for you.

G. TREES

The trees indicated on the endorsed plans to be retained and protected are to be considered with any future development of the subject allotments. In this regard no work are to occur within the dripline of trees to be retained.

H. BANK GUARANTEES

Bank guarantees will be accepted from list of banks which have at least an “A” rating from Standard and Poors and at least an “A2” or “Prime-1” standard from Moodys Investor Services.

To get to Standard and Poors then from Ratings Action choose Ratings Lists. Then click on Financial Institutions followed by clicking on Financial Institutions Counterparty Ratings List. Go to “Banks” and download to Australian Banks.
To get to Moodys then look up Ratings and then Banking and then Bank Ratings list. It will take you to Bank Credit Research page. Look at the table of contents and choose Global Bank Ratings by Country. Look up Australian Banks.

I. CONSTRUCTION/OCCUPATION CERTIFICATE FEES

An administration fee of $16.50 per certificate is payable to Council on lodgement of Construction and Occupation Certificates from Principal Certifying Authorities.

_______________________

J S Murrell

Commissioner of the Court

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CITATION:	Blazevic v Holroyd City Council [2005] NSWLEC 47
PARTIES:	APPLICANT Gordon and Jasmin Blazevic RESPONDENT Holroyd City Council
FILE NUMBER(S):	11093 of 2004
CORAM:	Murrell C
KEY ISSUES:	Development Application :- Erection of an attached dual occupancy - streetscape - amenity of proposed dwellings
LEGISLATION CITED:	Holroyd Local Environmental Plan 1991 Holdroyd Development Control Plan for Dual Occupancies
DATES OF HEARING:	07/02/2005
EX TEMPORE JUDGMENT DATE:	02/07/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr B Goldsmith of Goldsmith Planning Services Pty Ltd. RESPONDENT Ms D Holm, solicitor SOLICITORS McKees Legal Solutions