Boycebuild Pty Ltd v Hornsby Shire Council - [2004] NSWLEC 159

Land and Environment Court

of New South Wales

CITATION: Boycebuild Pty Ltd v Hornsby Shire Council [2004] NSWLEC 159

PARTIES:
APPLICANT
Boycebuild Pty Ltd
RESPONDENT
Hornsby Shire Council

FILE NUMBER(S): 11423 of 2003

CORAM: Watts C

KEY ISSUES: Subdivision :- Subdivision into three allotments
streetscape and loss of trees
and Character

LEGISLATION CITED: Hornsby Shire Local Environmental Plan 1994 (HLEP)
Hornsby Shire Residential Subdivision Development Control Plan (RSDCP)
Environmental Planning and Assessment Act 1979; ss 79C, 97

CASES CITED:

DATES OF HEARING: 11/3/2004

EX TEMPORE
JUDGMENT DATE : 04/02/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr G Newport (Barrister)
RESPONDENT
Mr P Jackson
Pike Pike & Fenwick

JUDGMENT:

Appeal No: 11423 of 2003

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11423 of 2003
Watts C
2 April 2004
Boycebuild Pty Ltd
Applicant
v
Hornsby Shire Council
Respondent
Judgment
1. This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Hornsby Shire Council (the council) of an development application to demolish the existing dwelling house and swimming pool and to subdivide into three Torrens title parcels Lot 1, DP 785842, being Nos 16-18 Pogson Drive, Cherrybrook.
2 I visited the land in company with the parties on the morning of the hearing. On site local residents gave evidence and a record of that evidence was tendered in Court.
3 I have concluded that the application should succeed as it has been found to be satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979.

The land
4 The land is situated on the eastern side of Pogson Drive, has a curved frontage of 48.89m, a rear boundary of 36.12m, a southern side boundary of 46.035m, a northern side boundary of 43.32m, and an area of 1,968m2.
5 A single dwelling house, outbuildings and a swimming pool, is erected on the land. A concrete driveway located near and parallel to the southern boundary of the land gives vehicular access to the existing dwelling house.
6 The land near the council verge is steeply sloping up from the road and large trees grace the front garden. The site inspection revealed the foundation material is light sandy soil overlying sandstone.

Relevant planning controls

Hornsby Shire Local Environmental Plan 1994, (HLEP)
7 The land is zoned Residential A (Low Density) under the provisions of the HLEP.
8 Clause 7(2) of HLEP states:

The objectives of the zone listed under the zone title are required to be taken into account by the Council before development consent is given to the carrying out of development within that zone.

9 The objectives of the Residential A (Low Density) Zone under the HLEP is:
(a) to provide for the housing needs of the population of the Hornsby area.
(b) to promote a variety of housing types and other land uses compatible with a low density residential environment.
(c) to provide for development that is within the environmental capacity of a low density residential environment.

Hornsby Shire Residential Subdivision Development Control Plan, (RSDCP)
11 The RSDCP provides more detailed controls for residential subdivision within the Residential A (Low Density) and Special Use Zones than are found in the HLEP.
12 The objectives of the RSDCP are:

…to provide minimum standards that do not stifle innovation in design of subdivision;

· to provide measures to protect the natural and built environment;
· to enhance the established character of low density residential areas; and
· to ensure development relates to site conditions.

To promote allotments of varying sizes, which provide pleasant streetscapes, maximise energy efficiency, satisfy user requirements and mitigate environmental impacts.

Lots sizes and configurations should be varied to provide a mix of allotment types which create an efficient allotment layout, create pleasant streetscapes and encourage a variety of housing types.

Lots should be configured to account for significant natural landscape elements or constraints and mitigate environmental impact.

Lots should be designed to respect site constraints such as topography, drainage, soil landscapes, flora, fauna and bushfire hazard.

Lots should be orientated to maximise solar access.

Lots should be designed to allow the construction of a building or carriageway with a maximum cut or fill of 1m from natural ground level.

Lots should maintain an appropriate shape to accommodate a dwelling and associated development.

Lots and building envelopes should be designed to maximise solar access to dwellings and future private open space areas.

Lot design should minimise impacts on the natural environment.

Significant landscape features should be incorporated as an integral part of the subdivision.

Lots should be able to accommodate a building envelope of 200m2 with a minimum dimension of 10m.

Building envelopes should be sited to avoid site constraints and take advantage of site opportunities.

Lots should be designed to maximise useable areas of the site and have regard to the topography.

Lots should be configured to ensure the privacy of occupants within existing and future dwellings.

Subdivision design should provide opportunity for the retention

significant landscape features including significant trees, remnant bushland, rock outcrops, and watercourses.

It should be demonstrated on the subdivision plan that adequate private open space can be provided adjoining proposed building envelopes and for existing dwellings, which are retained.

Lots should be designed to enable open space areas to receive at least 4 hours of sunshine on June 22nd.

Development should be sited on the area of land presenting the least topographic constraints. Development should be sited away from steep slopes (particularly those containing natural vegetation) so that, where possible, these features can be kept in a natural state.

To ensure vehicular access to all lots within the subdivision is simple, safe, direct, and creates a pleasant environment.

Accessways should be landscaped and treated to reduce the visual and environmental impact of hard paved areas.

The proposal and its history

Table 1: Project Data/Policy	Compliance
Item	ProposedRequiredCompliance
PrescriptiveElement
MeasureObjective
Allotment Size:
Lot 100	649m2500m2YESYES
Lot 101	639m2500m2YESYES
Lot 102	680m2500m2YESYES
Building Envelopes:
Lot 100	200m2200m2YESYES
Lot 101	200m2200m2YESYES
Lot 102	200m2200m2YESYES
Car Parking:
Lot 100	2 spaces2 spaces,YESYES
Lot 101	2 spaces2 spacesYESYES
Lot 102	2 spaces2 spacesYESYES
Setbacks:
Lot 100
- Pogson Drive	12m6mYESYES
- Side (North)	1.5m1mYESYES
- Side (South)	1m1mYESYES
- Rear (East)	10m5mYESYES
Lot 101
- Pogson Drive	9m6mYESYES
- Side (North)	1m1mYESYES
- Side (South)	1m1mYESYES
- Rear (East)	14m5mYESYES
Lot 102 .
- Pogson Drive	14m6mYESYES
- Side (North)	1m1mYESYES
- Side (South)	3m1mYESYES
- Rear (East)	8m
5mYESYES

‘A Plan of Proposed Subdivision’

‘Driveways for Lot 100 and 101, 16 Pogson Drive, Cherrybrook’

‘Landscape Sketch Plan’

"Tree Study for Proposed Subdivision"

Notification
30 The application was notified to nearby owners and occupants and the council received ten (10) submissions. Concerns included:

The council’s decision

The hearing
32 The appeal was filed on 24 November 2003.
33 At the hearing the court heard evidence on behalf of the respondent council from:

Blackbutt,

The issues
37 On 23 January 2004, the council filed a statement of issues.
1. Whether the proposed development is contrary to objectives (b) and (c) of the Residential A (Low Density) Zone in the Hornsby Shire Local Environmental Plan 1994.
2. Whether the proposed development is contrary to the "allotment layout" requirements in the Hornsby Shire Local Residential Subdivision Development Control Plan.

Particulars:

(a)

The allotments do not comply with the element objective to provide a pleasant streetscape nor will they mitigate environmental impacts.

(b)

The number of

proposed lots and their configuration will not result in an efficient allotment layout.

(c)

The proposal will result in excessive cut, which is not responsive to the maximum 1 metre cut as provided for in the Development Control Plan.

(d)

The proposed lots are not configured to respect the site constraints such as topography.

Whether the proposed development complies with the "allotment design" requirements in the Hornsby Shire Council Residential Subdivision Development Control Plan.

Particulars:

(a)

The proposed lots do not comply with the element objective in providing useable allotments. The development will result in adverse impact upon the streetscape and will not mitigate environmental impacts.

(b)

The land available to be built upon will result in dwellings, which will not be responsive to the controls in the dwelling house Development Control Plan and be uncharacteristic of the dwellings in the locality.

(c)

The lots are not capable of accommodating a building envelope of 200 square metres with a minimum dimension of 10 metres.

(d)

The proposal will result in significant alteration to natural features at the street frontage.

(e)

The proposal has not provided an adequate landscape concept plan depicting the proposed road and driveway construction, retaining walls.

Whether the proposed development will result in future dwellings not being responsive to the "solar access" requirements of the Hornsby Shire Council Residential Subdivision Control Plan.

Particulars:

(a)

The proposal does not comply with the element objective to provide reasonable solar access to proposed building envelopes and to open spaces around the proposed building envelopes.

Whether the proposed development complies with the "landscaping" requirements of the Hornsby Shire Council Residential Subdivision Development Control Plan.

Particulars:

(a)

The proposal does not preserve significant trees that add to the environmental character of the area.

(b)

The proposal will not provide for an attractive landscape, which reinforces the function of the street and enhances the amenity of the area.

Whether the proposed development complies with the "land sensitivity" requirements of the Hornsby Shire Council Residential Subdivision Development Control Plan.

Particulars:

(a)

The proposed level of development is not compatible with land capability in terms of the site constraints such as topography and existing vegetation.

Whether the proposed development complies with the "access design" requirements of the Hornsby Shire Council Residential Subdivision Development Control Plan.

Particulars:

(a)

The proposed vehicular access to all lots within the subdivision i

not acceptable and will not maintain a pleasant environment.

(b)

The proposed access is not acceptable in terms of the overall design of the subdivision.

(c)

The proposed access does not minimise the impact on the amenity of the area and streetscape.

(d)

The proposed access is not properly landscaped.

Whether the degree of earth works required for the access ways to the proposed lots are excessive and will have an unacceptable impact on the streetscape.

Whether the proposed earthworks as part of the proposed development and subsequent development of the proposed lots will have an unacceptable impact in the viability of significant vegetation on the site.

Whether the proposed development is an overdevelopment of the site.

Particulars:

(a)

The land is constrained due to its topography and slope. The effective land which will be available to build upon (ie for future dwellings) is located high above the street and will give rise to the type of built form which is very uncharacteristic of the built form in the locality.

(b)

The amenity

future occupants of the dwellings will be poor having regard to the likely future dwellings to be built upon each site.

(c)

The future dwellings will adversely impact upon existing adjoining dwellings.

Whether the development is in the public interest and issues raised by resident objectors.

Particulars:

(a) The proposed lot sizes are out of character with the allotments surrounding.
(b) The likely future dwellings will result in overshadowing, loss of privacy and overlooking to adjoining properties and poor inter allotment amenity.
(c) The proposed open spaces are unsuitable and offer no privacy to adjoining properties.

Streetscape and loss of trees:

Character:

Principles
39 In assessing this development application the principles that apply are:
· Although it is normal practice to permit land to be subdivided without planning conditions, where the proposed allotments are constrained by steepness of slope, limited in size, exhibit environmental sensitivity or where there might be significant impacts on neighbours or the streetscape, conditions are imposed at the subdivision stage to ameliorate those adverse impacts.

· In this case the proposed lots would be constrained by being slightly smaller than nearby lots, in an environmentally sensitive area, and with a steep slope up from the road. As a result of these constraints the likelihood of adverse impact due to future development is high. Acceptable development of the subdivided land is possible, however a higher than usual level of design skill would be required for future development of the lots. The design of future vehicular access must be prescribed at the subdivision stage and conditions to that end have been attached.
· The subdivision planning controls must be the focal point of a consideration under s 79C of the Environmental Planning and Assessment Act 1979, and must be given appropriate weight in an assessment of an infill subdivision application within an already developed area.
· In balancing the weight to be given to the yield as expressed in the minimum size of allotments against local environmental impacts such as tree loss and excavation in excess of the 1m-depth limit, the yield is important to meet the objects of the Act for the orderly and economic development of land.
· In the long term, any adverse environmental impacts resulting from excavation greater than 1m and removal of trees would be likely to be addressed by new landscaping including terracing of the front area to match that of the adjoining property to the north.

The evidence and findings

Streetscape and loss of trees
40 Mr Newport for the applicant, submitted that although there would be excavation of rock to provide for future vehicular access to Lots 100 and 101 and existing trees would be removed in that area, further landscaping would be provided and ultimately, the proposal would be rendered sympathetic to the streetscape. He stressed that the remaining existing vegetation on the proposed allotments would be augmented.
41 Mr Jackson submitted that in order to build on the proposed subdivided land there would be extensive excavation at the front that would be unresponsive to the objectives of the RSDCP. He pointed to the fact that the council seeks to minimise cut and fill to a 1m-maximum depth [Note: Exhibit 2 p 22], and to provide simple, safe and direct access.
42 He submitted that excavation would inevitably remove existing vegetation that presently adds to the amenity of the streetscape.
43 Mr Kennan stated [Note: Exhibit 5 p 7] that:

It is clear from the plans of the proposed development… that the proposed development is not an efficient allotment layout in that it:
· will require a significant amount of cut in excess of the maximum 1 metre;
· will result in a significant change to the visual amenity of the streetscape and result in a significant diminution of the existing pleasant streetscape of the area;
· does not account for the significant landscape element on the Site which is the rock outcrop at the street frontage of the Site;
· does not respect the topography of the Site; and
· does not preserve vegetation of the Site which presently adds to the visual amenity of the area.

…the subdivision layout is efficient in that [it] provides for 3 good sized allotments each of which has a direct frontage to a public road and is of a width that is comparable with other allotments in the immediate locality. Given the location and orientation of the existing allotment relative to the street frontage, achievement of the orientation identified as desirable in the DCP is simply not achievable. However, I note that the subject site and many of its neighbours fail to achieve this desired orientation, which is a product of the existing street pattern.

Similarly, the topography of the immediate locality renders it virtually impossible to achieve strict compliance with the desired maximum cut or fill of 1m identified in the DCP. The shape of the embankment adjacent to the street frontage necessitates excavation beyond 1m in depth in order to provide vehicular access and off-street car parking for future development in accordance with Council's requirements. From my observations it appears that most of the immediate neighbours also do not comply with this requirement as there has clearly been significant excavation and filling of sites in order to provide vehicular access.

Whilst excavation is necessary to provide vehicular access, the topography of each future allotment does provide a future building footprint area that is reasonably level and should easily accommodate the construction of a dwelling house without exceeding the Council standard for not more than 1m of cut or fill.

Accordingly, any breach of the suggested guideline is limited to the excavation required for the driveway and garage facilities on proposed Lots 100 and 101. In this regard, the location of the proposed driveways has been carefully selected to minimize impact on the existing trees along this embankment, in consultation with Council staff and with the assistance and advice of an arborist.

In regard to the extent of excavation for these vehicular access facilities I would make two observations. Firstly, the volume of excavation is essentially a product of the desire expressed by Council officers to achieve strict compliance with the minimum 6m street setback and to provide for turning area on site to enable vehicles to enter and leave each property in a forward direction. Relaxation of one or both these requirements would very significantly reduce the volume of excavation proposed. Whilst I did not notice any examples in the locality of garages excavated into the street frontage embankment, in my experience such treatment is common in other steeply sloping areas of Sydney, including the suburbs of similar vintage and therefore similar architectural character.

Secondly, the "Envelope Study" plans suggest that the turning areas would be left uncovered and therefore visible. I see no reason why these areas could not be covered and reinstated with landscaping above, particularly on proposed Lot 100. Such treatment would significantly reduce the visual impact of the vehicular access facilities, when viewed from the street or neighbouring properties. It would also, in my opinion, provide improved amenity for the future dwellings on those allotments by providing a more usable and attractive front yard or garden area that could act as an additional outdoor terrace area for the dwelling-houses.

Clearly, in my opinion, details of the resolution of the vehicular access issue on each site is best left and dealt with as part of the detailed design and assessment of the future dwellings on proposed Lots 100 & 101. The matter before the Court is only a subdivision proposal and, in my opinion, the Court need only be satisfied that reasonable vehicular access can be provided to each allotment.

…the Court can be reasonably satisfied that the proposed development is not inconsistent with the allotment layout requirements of Hornsby Residential Subdivision DCP and that with appropriate conditions reasonable vehicular access can be provided to proposed Lots 100 and 101 without detracting from the streetscape or general character of the locality.

Character of future dwelling houses on the subdivided lots
50 Mr Newport submitted that three large dwellings of satisfactory design could be erected on the proposed lots. He submitted that the character of the area could be maintained and the proposed allotments, although smaller than those in the vicinity would be of reasonable size when compared to the standard of 500m2 and would be acceptable in the circumstances. He submitted that the Court would not put aside those prescriptive measures; as to do so, would be contrary to the principle of economic development of land.
51 Mr Jackson submitted, for the council, that the built form would be difficult to determine at this, the subdivision stage. He submitted that the built form of future dwellings might stretch across each of the proposed allotments and would be “perched about 8m above the road carriageway” of Pogson Drive. He referred to the plan showing dwelling footprints [Note: Exhibit A Revision B plans] and submitted that at the building line there would be limited separation between future dwelling and this “…would give rise to atypical development,” that would be unsympathetic to the character of the area.
52 Issue 1 is related to objectives (b) and (c) of the zone, which are:
(a) …
(b) to promote a variety of housing types and other land uses compatible with a low density residential environment; and
(c) to provide for development that is within the environmental capacity of a low density residential environment.

“…the ‘Envelope Study’ plans demonstrate that it is possible to provide a variety of housing styles on the proposed allotments that will be compatible with the character of the locality and a low density residential environment generally.

Alternative subdivision proposal
60 Mr Kennan was of the opinion that, [Note: Exhibit 5 pp 5-6]:

…the environmental capacity of the Site is for subdivision into two (2) allotments with access to each lot by way of the existing concrete driveway located along the southern boundary of the Site. Such a subdivision would provide for lots which do not impact on the amenity of the streetscape of Pogson Drive through extensive excavation, are of size suitable for the establishment of a building envelope which complies with the requirements of the Subdivision DCP, and will allow for an amenity to the occupants of the subsequent dwelling houses on those lots which will not be afforded by the proposed development.

Mention
63 The parties were recalled to address the need to more precisely define by conditions the access to Lots 100 and 101 on 31 March 2004. The applicant agreed to be bound by two further conditions, the first would require access to those lots to be generally in accordance with the access shown on the plan in Exhibit K. Secondly, it agreed to be bound by a s 88E public positive covenant under the Conveyancing Act 1919. Conditions 35 and 36 were added. These conditions would have the effect of notifying prospective purchasers of the land of the need to ensure that access to the newly created lots would be designed in a way to reduce the environmental impact and address the streetscape.

Conditions
64 The conditions are those in Exhibit 8 as amended by the conditions in Exhibit L.

Orders
65 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 1072/03 lodged with the respondent council on 10 June 2003, to demolish the existing dwelling house and to subdivide into three Torrens title parcels, the land at Lot 1, DP 785842, Nos 16-18 Pogson Drive, Cherrybrook is approved subject to Conditions 1 to 36 in Annexure A.
3. The exhibits with the exception of Exhibits A, B, D, K, L, 4, 8 and 15 are returned.
S J Watts
Commissioner of the Court
sw

Conditions of development consent

Annexure A

Boycebuild Pty Limited

Hornsby Shire Council

Development Consent

Development consent is granted to Development Application No. 1072/03 of 10 June 2003 together with supporting documents including the Statement of Environmental Effects prepared by Barry Green & Associates dated 4 June 2003 for the demolition of the dwelling house upon Lot 1 in DP 785842 known as No. 16-18 Pogson Drive, Cherrybrook and the Torrens title subdivision of that allotment of land into three (3) separate allotments in accordance with the Plan of Proposed Subdivision prepared by Barrie Green and Associates Sheet 1 of 1 Revision C dated 11 March 2004 which is exhibit “D” in Land and Environment Court Proceedings No. 11423 of 2003, subject to the following conditions of development consent:

Notifying Council of Commencement of Works

1. It is a requirement of the Environmental Planning and Assessment Act, 1979 (Section 81A(2)(c)) that you notify Hornsby Council at least two (2) days prior to the intention to commence works.

Where works are to be undertaken in a public place, such notice must be accompanied by evidence of the contractor's Public Liability and Workers’ Compensation Insurances. The public risk policy shall be such an amount as determined by Council (not being less than $10,000,000.00) and shall cover the owner and the Council against any injury, loss or damage sustained by any person, firm or company.

Long Service Levy

2. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.2% of the total cost of the work and shall be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under section 109F (1) of the Environmental Planning & Assessment Act 1979 this payment must be made prior to a construction certificate being issued.

Sydney Water

3 A Section 73 compliance certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to “Your Business” section of Sydney Water’s web site at then the “e-developer” icon or telephone 13 20 92.

Following application, a “Notice of Requirements” will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

The Notice must be submitted to the Principal Certifying Authority prior to the Construction Certificate being issued.

Demolition of existing building

4 Any structure that traverses the proposed allotment boundaries shall be demolished prior to the release of the subdivision certificate.

5 Any vehicular crossing shall be designed and constructed in accordance with Council’s Civil Works - Design and Construction Specification 1999.

6. The cost of repairing any damage caused to Council's assets in the vicinity of the subject site as a result of demolition works associated with the approved development is to be paid for by the applicant/developer prior to occupation or issue of a subdivision certificate, whichever occurs first.

Engineering Works

7. Vehicular laybacks and formation of driveways, including retaining walls for the future development on proposed Lots 100 & Lot 101 shall be designed and constructed in accordance with Council’s Civil Works - Design and Construction Specification 1999. Details to be provided with the Development Applications for future development on those allotments.

Subdivision Certificate

8. Lodgement and approval of a subdivision certificate is required to be submitted to council for signature and authorisation prior to registration at the Land Titles Office. Evidence of lodgement of the final plan with the Land Titles Office shall be submitted to Council within 28 days of lodgement.

9. All conditions of the development consent are to be completed prior to the issue of the subdivision certificate.

10. The following documentary evidence is to be obtained and forwarded to Council prior to the release of the subdivision certificate:-

(a) Submission of a surveyor’s certificate stating that all structures within the subject land comply with the development consent in regard to clearance from proposed new boundaries.
(b) The submission of a surveyor’s certificate stating that no services, drainage lines or access way encroach over the proposed boundary other than as provided for by easements created by the final plan of subdivision.

Utility Services

11. Suitable provision is to be made for the supply of all relevant services to allotments.

12. A final clearance is to be obtained from Energy Australia and Telstra for satisfactory provision of service to the proposed lots and shall be submitted to the Principal Certifying Authority prior to the issue of the subdivision certificate.

Site Works

13. No site works, including the removal of vegetation or any demolition works, shall be commenced prior to sediment and erosion control measures required by this development consent having been implemented;

Protection of Trees

14. No trees are to be removed prior to the issue of a further development consent for the erection of a dwelling house and associated works is granted. The removal of trees No. 1, 2, 6-9, 11, 15-17, 17A, 18, 24-29 identified on the plan titled “Barrie Green and Associates” Rev B 10.9.03 which is Exhibit 15 in Land and Environment Court proceedings No. 11423 of 2003 or the excavation or filing of soil or the placing of any building material or associated works (i.e. water, sewer, gas, telephone, drainage) within 4 metres of the trunks of the said trees is forbidden without the prior written consent of Council after the provision of an Arborists report.

14.1. The trees numbered as above shall be protected during site works, demolition and construction by the erection of solid barricades, ie. 1.8m cyclone chain mesh fence or plywood hoarding fences to 1.2m at 4m distance from the trunk/s of such trees.

14.2 All tree protection fencing measures so approved and installed shall be maintained in good working order and repair throughout the course of building or development works.

14.3 This tree protection zone shall not be used for the erection of structures, the storage of spoil, building materials, soils or the driving or parking of any vehicle or machinery within the 4m fenced area.

14.4 Tree roots over 50mm in diameter should be severed cleanly prior to machinery digging them up.

14.5 Site personnel must be made aware of the tree protection measures and signage placed on the tree protection fencing which notes that the area is a tree protection zone (TPZ) and the contact number of Council should the TPZ be breached.

14.6 The soils within the 4m fenced TPZ must be covered with 150mm depth of brush mulch before any works begin. The developer must ensure that no cement washes or other chemicals are released into the trees root zone (TPZ).

14.7 Any tree trimming/pruning must be in accordance with AS 4373.

Sediment & Erosion Control

15. Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site. The controls are to be designed and installed in accordance with the requirements of the NSW Department of Conservation and Land Management's "Urban Erosion and Sediment Control" manual, Hornsby Shire Council’s “Sustainable Water Best Practices” manual and shall: -

* include adequate measures to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition.

* ensure disturbed areas are rehabilitated with indigenous plant species, landscaped and treated by approved methods of erosion mitigation such as, mulching, and revegetation with native grasses or other suitable stabilising processes within fifteen days of the completion of works.

Dust Control

16. Measures to prevent the emission of dust or other impurities into the surrounding environment are to be implemented during demolition works.

Protection of Public Places

17. If the erection or demolition of a building will cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe, or the erection or demolition of a building involves the enclosure of a public place, a hoarding must be erected between the building premises and the public place. The erection of any hoarding and temporary awnings requires separate approval under the Local Government Act, 1993.

17.1 Any hoarding, fence or awning is to be removed when no longer required.

Hours of Demolition Works

18. In order to maintain the amenity of adjoining properties, demolition works shall be restricted to between 7.00 am and 6.00 pm. No demolition works are to be undertaken on Saturdays, Sundays or Public Holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless Council gives written consent.

Demolition

19. All demolition work is to be carried out in accordance with the applicable provisions of Australian Standard 2601-2001 ‘The Demolition of Structures’.

Note : Applicants are reminded that WorkCover NSW requires all plant and equipment used in demolition work must comply with the relevant Australian Standards and manufacturer specifications.

Signs for Demolition Sites

20. On construction sites where buildings contain asbestos material, a standard commercially manufactured sign containing the words ‘DANGER ASBESTOS REMOVAL IN PROGRESS’ measuring not less than 400mm x 300mm is to be erected on the site in a prominent position visible from the street. The sign is to be erected prior to any work commencing and is to remain in place until such time as all asbestos material has been removed from the site to an approved waste facility. This condition is imposed for the purpose of worker and public safety and to ensure compliance with Clause 259(2)(c) of the Occupational Health and Safety Regulation 2001.

21. A sign must be erected in a prominent position on the premises, on which the demolition of a building is being carried out, stating that unauthorised entry to the premises is prohibited and showing the name of the builder or other person in control of the premises and a telephone number at which the builder or other person may be contacted during and outside work hours. The sign is to be removed when the demolition of the building has been completed.

Asbestos Removal

22. Prior to commencement of any work involving the demolition, alteration or addition to any building on the development site, a survey is to be conducted by a competent person to ascertain whether any asbestos materials exist thereon. Asbestos material means any material that contains asbestos.

22.1 Where asbestos material is found to exist on the development site and that asbestos material is to be removed or disturbed as a result of any proposed demolition, alteration or addition, then all work involving removal and disposal of asbestos material must be undertaken by persons who hold the appropriate licence issued by WorkCover NSW under Chapter 10 of the Occupational Health and Safety Regulation 2001.

22.2 The collection, storage, transportation or disposal of any type of asbestos waste is to comply with the requirements of clause 29 of the Protection of the Environment Operations (Waste) Regulation 1996.

22.3 Upon completion of disposal operations, the applicant must lodge with Council within seven (7) days, all receipts (or certified photocopies) issued by the receiving landfill site as evidence of proper disposal.

Note : The person responsible for disposing of the asbestos material shall consult with the Environment Protection Authority to determine the location of an approved landfill site to receive asbestos material.

Inspections - Building

23. The demolition works must be inspected by the Council to certify that the works comply with the development consent.

Noise

24. The use of amplified equipment, such as radios and the like during demolition shall not be used where the noise is audible on any neighbouring property.

Disconnection of Utilities

25. All utilities shall be disconnected in a satisfactory manner so as not to pose any risk or nuisance to the public.

Landscaping

26. All natural landscape features, including natural rock outcrops, natural vegetation, soil and watercourses, are to remain undisturbed except where affected by necessary works detailed on approved plans.

27. The area surrounding the building shall be reinstated to good order as soon as practical after the completion of site works including, where necessary, the establishment of new landscaping.

Council Property

28. No building materials, waste, machinery or related matter are to be stored on the road or footpath and the pathway is to be kept in a clean, tidy and safe condition during the building works. Further, Council may, without notice, impose a fine and/or rectify any such breach and charge the cost against the builder, owner or applicant.

29. The land and adjoining areas are to be kept in a clean and tidy condition at all times. Litter and rubbish shall be placed in containers and removed from the site. A waste storage container is to be provided at the commencement of the building work.

Contributions

30. The payment of a contribution towards the costs of transport and traffic management, open space and recreation facilities, library and community facilities, bushland and environmental works, stormwater drainage, bushfire protection and Section 94 administaration in accordance tih Sections 94, 94B and 94C of the Environmental Planning and Assesment Act, 1979, and Hornsby Shire Council’s Development Contributions Plan 2004-2010. The total contribution shall be $23,374 if paid prior to 30 June 2004. Following this date, contributions will be adjusted in accordance with the underlying consumer price index for the subsequent financial years, it being noted that there are:-

Two (2) additional allotments @ $11,687 per allotment.

This amount is to be paid to Council prior to issue of the subdivision certificate

Note

Waste Minimisation and Management

31. Documentary evidence (i.e. tipping dockets/receipts from transfer stations and landfills) shall be submitted to Council to confirm compliance with the Waste Management Plan lodged with the development application.

32. Documentary evidence (i.e. tipping dockets/receipts from transfer stations and landfills) shall be submitted to Council to confirm that the demolition materials / excavated materials are disposed of to a licensed waste disposal site.

House Numbering

33. House numbering can only be authorised by Hornsby Shire Council. Before proceeding to number each lot/occupancy in your development, approval must be sought from Council’s Planning Division. Council issues consecutive house numbers according to lot numbers, therefore door numbers are to align with lot numbers. These numbers must correspond, i.e. Lot one, house number 1 or Lot two, unit number 2.

Toilet Facilities

34. Closet accommodation is to be provided at the work site at all times and be located wholly within the boundaries of the property.

Note: NSW Rural Fire Service

Any future development applications lodged for this site under section 79BA of the Environmental Planning and Assessment Act 1979 are subject to the relevant requirements set out in Planning for Bushfire Protection 2001.

Public positive covenant

35. The applicant shall cause a public positive covenant under s 88E of the Conveyancing Act 1919 to be registered with the plan of subdivision burdening proposed Lots 100 and 101 by requiring that development of the aforesaid lots shall be carried out generally in accordance with Drawing No 1112LP/01 Issue B in Exhibit K in Land and Environment Court proceedings No. 11423 of 2003.

Further development consent

36. Further development consent is required for the development of proposed lots 100, 101 and 102; however, such development shall be carried out generally in accordance with Drawing No 1112LP/01 Issue B in Exhibit K in Land and Environment Court proceedings No. 11423 of 2003.

S J Watts

CITATION:	Boycebuild Pty Ltd v Hornsby Shire Council [2004] NSWLEC 159
PARTIES:	APPLICANT Boycebuild Pty Ltd RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	11423 of 2003
CORAM:	Watts C
KEY ISSUES:	Subdivision :- Subdivision into three allotments streetscape and loss of trees and Character
LEGISLATION CITED:	Hornsby Shire Local Environmental Plan 1994 (HLEP) Hornsby Shire Residential Subdivision Development Control Plan (RSDCP) Environmental Planning and Assessment Act 1979; ss 79C, 97
CASES CITED:
DATES OF HEARING:	11/3/2004
EX TEMPORE JUDGMENT DATE :	04/02/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr G Newport (Barrister) RESPONDENT Mr P Jackson Pike Pike & Fenwick