Bruce Kerr Pty Ltd v Gosford Council
[2009] NSWLEC 1183
•29 April 2009
Land and Environment Court
of New South Wales
CITATION: Bruce Kerr Pty Ltd v Gosford Council [2009] NSWLEC 1183 PARTIES: APPLICANT
RESPONDENT
Bruce Kerr Pty Ltd
Gosford CouncilFILE NUMBER(S): 11126 of 2008 CORAM: Hoffman AC KEY ISSUES: SECTION 96 MODIFICATION :- Residential Flat Building, location of garbage pickup point proposed, amenity impacts of pickup point on streetscape and neighbours, unsuitability of main road pickup point, suitability of rear laneway for use by garbage trucks, ability for cars to enter and exit site off the rear lane way, location of clothes drying areas, dilapidation report requirements, amendments under s97B. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Gosford Planning Scheme OrdinanceCASES CITED: Cachia v Manly Council (No 2) (2009) NSWLEC 1107
Coshott v Woollahra (1996) NSWLEC 256DATES OF HEARING: 27, 28 and 29 April 2009 EX TEMPORE JUDGMENT DATE: 29 April 2009 LEGAL REPRESENTATIVES: APPLICANT
Mr P. Rigg (Solicitor)
SOLICITOR
Deacons LawyersRESPONDENT
Ms P. Wright (Solicitor)
SOLICITOR
PJ Donnellan & Co
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman AC
11126 of 2008 Bruce Kerr Pty Ltd v Gosford Council29 April 2009
This decision was given extemporaneously.
It has been revised and edited prior to publication.
JUDGMENT
1 This is an appeal against the refusal of a s 96 amendment to DA34847/2008 granted by Gosford Council for a one and two storey residential flat development of four units at No. 25 Memorial Avenue, Blackwall near Woy Woy. The site is vacant except for grass and trees. The land has an area of 1,036 square metres with frontage to Memorial Avenue of 18.29 metres and a depth of about 56 metres and frontage to an unnamed rear lane of 15.24 metres.
Site access and locality description
2 Memorial Avenue is a main road subject to RTA control. There is a depression in the land between the main road carriageway and the frontage of the site. Access to the main road was not approved and it is gained via the rear lane. The rear lane is a 6.1 metres wide reservation and has centre seal three metres wide from Warwick Street up to a little past the subject lot.
3 The lane reservation carries through northwards to Wallaby Street but is unconstructed past the end of a medium density development opposite the site. That development fronts Warwick Street and the laneway. It is known as No. 1, Lot 1, SP78410 Warwick Street.
4 That development is on the west side of the lane at the intersection with the Warwick Street. On the east side of the lane is No. 1C Warwick Street.
5 Number 27 Memorial Avenue, the next northwards along the lane is between the subject site and No. 1C. No. 27 and No. 1C have existing houses upon them. North of the site are No.s 23A and 23 owned by the council, and No.s 21A, 21 and 19A, all of whom have frontage to both Memorial and the unnamed lane.
6 Number 19A also fronts Wallaby Street. Numbers 19A, 21 and 21A are said to be owned by the applicant or the principals of the applicant. Numbers 19A through to the subject land are all vacant. They are zoned Residential 2(b) Medium Density under the Gosford Planning Scheme Ordinance.
The proposed modifications
7 The s 96 application is to delete conditions 10, 11, 55, 63, 64, 65, 70, 71, 72, 73 and 74 of the consent and modify conditions 9, 49 and 56. In summary, these conditions deal with two main aspects. The first is that at the time of granting the consent the council report said the rear lane could not accommodate garbage trucks and since garbage collection was stated in the application to be from the street, the only other option was Memorial Avenue frontage.
8 To provide for this, the RTA and the council required that a lay-by be created by widening the main road along the frontage of the site to enable garbage trucks to pull in to collect bins. The council has a strategic plan for a shared pedestrian cycleway beside the main road so conditions require part-road construction, kerb and gutter and a concrete footpath 2.5 metres wide to accommodate these facilities. The relocation of a light pole is also necessary. To get across the depression between the road and the site, a culvert and pedestrian pathway is also in the conditions.
9 The applicant wanted all these conditions related to these facilities to be deleted and garbage collection to be allowed by placing the bins in Warwick Street adjacent to the lane and in front of No. 1C Warwick Street.
10 The second aspect of the s 96 application is a requirement of council to set back the approved garages another one metre from the laneway to achieve acceptable turning circles for cars entering and leaving the site. Other minor matters are referred to below.
The evidence
11 The respondent’s evidence was heard from Ms D Spithill, Town Planner; Mr C T Favetta, Senior Development Assessment Engineer; Mr K Vallard, Waste Management Engineer.
12 The applicant’s evidence was heard from Mr J Hancock, Consultant Town Planner; Mr R Varga, Traffic Engineer, Mr G Bissett, Registered Surveyor. The respondent said there were no public submissions against the proposal as the council does not notify s 96 amendments.
13 The experts had met and produced joint reports before the Hearing and also met at the direction of the Court during the Hearing and produced a further joint report. From the joint reports the second aspect was resolved by agreement that the required turning circles could be achieved for cars to manoeuvre into and out of the garages off the laneway and condition 74 was agreed to be deleted. Condition 11 regarding the provision of outdoor drying areas was also agreed to be amended simply to require outdoor drying areas to be screened from the street frontage and public view.
14 In regard to the first major aspect, the garbage pickup point, Mr Hancock said in preparing the original application, he had never anticipated pick up from Memorial Avenue. Access to the site has always been from the lane and the garages, the letterboxes and the pedestrian access are shown on the plans at the laneway.
15 The three garage bins per unit are shown in the garages in the approved plans. He said that pickup from Warwick Street is practical and reasonable. It is a distance of about 40 metres to the corner of the lane and Warwick Street whereas taking them to Memorial Avenue is about 85 metres by the time one pulls the bins out of the garages, into the lane, around to the pedestrian entry to the site and then through the site to the proposed lay-by at Memorial Avenue.
16 The footpath levels provided by council along Memorial Avenue may mean a gradient of the path from the site would make it difficult to haul full garbage bins up to the lay-by. Although this is not a SEPP Senior’s development, the units are designed, Mr Hancock said, to accommodate disabled persons or elderly retired persons as they are part of the market base in Woy Woy.
17 Another reason Mr Hancock gave for the unsuitability of Memorial Avenue solution is that the footpath required by council and the RTA is 2.5 metres wide as part of a regional cycleway. Looking along the main road alignment there are embankments on properties further to the north that would make the continuation of the cycleway very expensive and would involve retaining walls, removal of large trees etcetera. Building just this part of the cycleway in front of the site is of little use he said. A cycleway has to be constructed all at the same time or at least in useful sections. Ordinarily it would be built out of council s 94 Community Facilities Contribution Funds, not piecemeal by individual developers building bits in front of their properties.
18 The cost of the lay-by, the footpath and cycleway and access from the site and relocating the light pole could exceed $110,000 when built to RTA standards he said. That is a completely unreasonable requirement in his opinion.
19 Mr Vallard said that the 85 metre distance through the site to the proposed lay-by is within the range of distances that residents in Gosford had where a site is remote from the pickup point. The rule of thumb is a maximum of about a hundred metres he said. However, in Mr Vallard’s experience remote garbage pickup points may have amenity problems that need to be considered under council’s DCP106 for site waste management. It requires there be no impact on neighbours.
20 Mr Vallard said an added consideration in this case is the cumulative impact in Warwick Street and upon No. 1C and or No. 1 Warwick Street. These are the two properties on the east and the west sides of the corner with the lane. There are seven vacant lots along the lane and if all are eventually developed for medium density, Mr Vallard estimated 56 garbage bins would be needed. Allowing for half of these to be collected at the Wallaby Street end and half at the Warwick Street end of the laneway, it meant 28 bins in each location.
21 The bins have to be lined up along the kerb so the mechanical arm of the garbage truck can pick them up. That would be almost the whole Warwick Street frontage of the house at No. 1C. Number 1 Warwick Street is the existing medium density development on the lane so its frontage to Warwick Street already has bins in front on collection day.
22 Mr Vallard said there are numerous impacts when garbage bins from a remote site are placed in front of somebody else’s home. His experience has shown:
- 1. Rows of bins as described above are resented by the residents outside whose property they are placed.
2. The bins are often left out more than 24 hours.
3. They can be very smelly.
4. Rubbish can overflow a bin or a bin might be tipped over.
5. This causes a visual blight on the street that is resented by even more residents than those the bins are near.
6. The properties that have bins regularly placed in front are perceived by their owners to have their market value reduced.
7. People get stressed and disputes amongst neighbours result.
8. Council staff get drawn into the disputes and everybody becomes stressed.
9. Finding a solution to these situations is often difficult when the garbage collection process and location of pickup has not been properly considered at the development application stage.
23 Mr Vallard said a partial solution to these situations is in council’s new garbage contract that requires garbage truck crew to walk in, wheel out and return bins that are up to ten metres from the truck. This enables bins in many locations to stay on site and not to be put in the street. It can provide some flexibility of bin pickup point where a site is remote.
24 In this case however the site is about 40 metres from the Warwick Street corner with the lane so the truck crew would not go in to get them. There is no suitable location between the site and the end of the lane to place them. In cross-examination he said the garbage contract does not allow truck crews to go past the ten metre distance for an extra payment.
25 Mr Hancock and Mr Varga had the opinion that contrary to the original council report, the laneway did have enough width for a garbage truck to operate its mechanical arm to pick up bins from the site, and that the existing bitumen in the lane that extends from Warwick Street to the site would support the required axle loadings. The reason the garbage truck could not be used is that the truck could not be expected to drive in and reverse out, and it could not continue onto Wallaby Street as that end of the lane is unconstructed.
26 I directed all the experts to conference and to explore the potential of using the laneway. Their joint report in Exhibit 9 shows that due to the angle of approach to the lane from the two streets, it would be best if the garbage truck comes in from Wallaby and exits to Warwick Street, and the lane be one-way. Some works would be needed at both intersections to allow for the turning circle of the garbage trucks. But once in the lane the truck could operate to pick up bins provided the bitumen is 3.5 metres wide and constructed to the required axle load.
27 In the end the respondent pressed retention of the Memorial Avenue lay-by as the best garbage pickup solution. And, it would compliment an existing development consent for medium density residential on No. 27 Memorial Avenue. However, the respondent did agree the existing consent on No. 27 had not been acted upon and in fact a fresh development application had been lodged with council.
28 Even if Memorial Avenue pickup is retained the other modifications agreed gave rise to a set of draft conditions in exhibit 11. It was called Option 1.
29 The applicant pressed for the Warwick Street garbage pickup and offered a $20,000 contribution to the construction of the laneway. This gave rise to a set of draft conditions in exhibit 12. It was called Option 2.
30 Mr Favetta said that Option 2 would at least need Warwick Street to have half road construction and kerb and gutter and at least 8 metres of footpath outside No. 1C Warwick Street. This would provide a footpath of the length required for the site’s garbage bins to be lined up along the kerb. At present that part of Warwick Street had only centre seal outside No. 1C.
31 The respondent said the contribution in Option 2 placed the responsibility of construction of the laneway on council and for council to bear the cost of any works more than $20,000. Mr Favetta could not tell me if council had this laneway on its capital works program. In any case, the respondent said the Court had no power to require council to build the laneway. Any consideration of that option would require an adjournment so council could do an estimate of the costs for the laneway and whether it would be put on the capital works program.
32 Another consideration is that even if council assented to Option 2, the developer’s draft condition provided for the development to be built and occupied before the laneway is constructed and the use of Warwick Street for garbage pick up in the interim.
33 If Memorial Avenue is not to be confirmed for garbage pickup, the council pressed Option 3 and the draft conditions in Exhibit 13 that provide for the unconstructed section of the lane to be built by the applicant.
34 The applicant owns three of the vacant lots that back onto that section of the lane. Apart from that, the respondent put the proper servicing of the development is the responsibility of an applicant and if Memorial Avenue is not to be used for garbage pickup then the laneway has to be constructed.
Conclusions
35 In coming to a conclusion on this appeal it is apparent that the evidence of Mr Vallard has some weight. He agreed the adverse impacts on neighbours due to remote garbage pickup that he observed, during his positions at Gosford and in Canberra, are the exception more than the rule. However they do occur often enough to justify better consideration of garbage pickup at the development application stage than in the past. Miss Spithill agreed that constructing the laneway is the best option if Memorial Avenue garbage pickup is deleted. The applicant says it would accept Option 3 if the Court so determined.
36 I asked the parties in the event of my determining Option 3 what are their submissions in regard to s 97B of the Environmental Planning and Assessment Act 1979. The respondent said Option 3 is not a significant change. The applicant said it is not a change at all as the development remains substantially the same because the s 96 application is only the provision of a peripheral facility to the development.
37 My conclusion is that the best solution to the revision of the garbage pickup pont is the completion of the construction of the laneway.
38 The evidence of the council’s experts coincides with that even though the respondent pressed for the retention of the Memorial Avenue garbage pickup.
39 It appears to me that the laneway construction may have been a condition of the original consent, instead of the Memorial Avenue facility, if the council report had not stated that the laneway is too narrow to be negotiated by garbage trucks. The same report said the existing laneway surface is unable to withstand 9 tonnes per axle as required by the trucks. During this hearing the experts of both parties had agreed the existing bitumen paving in part of the lane is constructed to the nine tonne axle requirement.
40 The other matters in dispute were resolved except for condition 55. It required a dilapidation report on all council assets in the vicinity of the site so that any damage during construction could be rectified prior to the issue of an occupation certificate.
41 Mr Bissett said the original condition is so onerous that it is unacceptable since any damage may be done by persons other than those involved in the subject proposal. For instance the approved development consent for No. 27 Memorial Avenue or other properties along the lane. The way Condition 55 is worded, any damage would prevent an occupation certificate for this site.
42 The experts had agreed the first paragraph should be re-worded to apply only to the laneway for a dilapidation report. Mr Favetta agreed to re-word condition 55 as in Exhibit 3 after Mr Bissett’s evidence with the deletion of the words, “prior to release of the occupation certificate” and the insertion in lieu of the words, “unless the damage can be shown to be done by another party”.
43 Mr Bissett said the whole of condition 55 should be deleted as condition 49 required a bond for damage to council’s assets and that would be sufficient.
44 My conclusion on this matter is that the dilapidation report is in the nature of photos of the laneway immediately prior to works commencing on site. It would be a valuable aid to the assessment of any subsequent damage and as amended by Mr Favetta condition 55 should remain.
45 Finally in turning to s 97B of the Environmental Planning and Assessment Act 1979, I note that under Option 3 neither party put to me that provision of garbage pickup from the laneway at the site, instead of pickup from the end of the laneway at Warwick Street, is anything more than, “a minor amendment”.
46 The applicant contends it is not really an amendment of the s 96 application. Even assuming it may be an amendment, I am comforted by Cachia v Manly Council (No 2) (2009) NSWLEC 1107 in which Senior Commissioner Moore gave consideration to the words, “a minor amendment”. In my opinion the meaning he found in Coshott v Woollahra (1996) NSWLEC 256 Bannon J applies in this case. The effect of the change is minor and under the evidence it is beneficial to the proposal and its neighbours. Therefore s 97B(2) does not apply.
47 Therefore the Orders of the Court are:
- 1. The appeal is upheld.
2. The s 96 application is granted to amend the conditions of development consent DA34847 of 2008 granted by Gosford Council at No. 25 Memorial Avenue, Blackwall.
3. The conditions are hereby amended as set out in Exhibit 13 with condition 55 amended as referred to in this judgment.
4. The respondent to provide to the Court a full set of conditions as amended by this judgment within two weeks of 29 April 2009 to be issued as Annexure A hereto.
5. The exhibits are returned to the parties except Exhibits 1, 9 and 13.
___________________
- K G Hoffman
Acting Commissioner of the Court
ljr
Annexure ‘A’
Conditions of Consent in Accordance with
Notice of Determination of s96(1A) application dated 23 October 2008
as Modified by Orders of Land & Environment Court dated 29 April 2009
1. No works shall be commenced until a Construction Certificate has been issued.
2. Clearing of land, excavation, and/or earthworks, building works, and the delivery of building materials shall be carried out between the following hours:
Mondays to Fridays – 7.00am to 6.00pm
Saturdays – 8.00am to 4.00pm except as noted in clause 'b'
b No work is permitted on:
- Saturdays when a public holiday is adjacent to that weekend.
- Construction industry awarded rostered days off.
- Construction industry shutdown long weekends.
Clause b does not apply to works of a domestic residential nature as below:
- i Minor renovation or refurbishments to single dwelling construction.
ii Owner occupied renovations or refurbishments to single dwelling construction.
iii Owner builder construction of single dwelling construction; and/or
iv Any cottage constructions, single dwellings or housing estates consisting of predominantly unoccupied single dwellings.
3. Any building and/or works constructed or carried out under the provisions of a development consent/construction certificate shall not be occupied until an Occupation Certificate has been issued, or in the case of works, such works are completed in accordance with the development consent and or construction certificate.
4. The street number of the property shall be prominently displayed in an appropriate location on the site street frontage.
5. Mail receptacles shall be provided and appropriately numbered for each dwelling unit in the development, as well as for the managing body, in consultation with Australia Post.
6. Provision shall be made for the erection of one common television aerial or satellite dish for the purpose of television reception.
7. Development being generally in accordance with plan(s) numbered Project No: 1761 Sheet 1 of 3 to 3 of 3 Issued April 2008 (3 sheets), submitted/drawn by Longhill Planning, as modified by any conditions of this consent.
8. A Site Management Plan shall be submitted prior to the issue of a Construction Certificate. The plan shall include the following:
- Details of on-site parking arrangements for employees, contractors, construction machinery and vehicle's.
- Route identification for the supply and delivery of materials/goods to and from the site.
- Identification of construction zones at each stage of construction.
- Location, for storage of all materials all materials, on the site. No works or storage of material shall be permitted on the adjoining public land.
9. [Deleted].
10. [Deleted].
11. Outdoor drying areas shall be screened from street frontages and public view.
12. Landscaping shall be carried out prior to the issue of an occupation certificate and continually maintained upon the unbuilt portion of the site. At the completion of landscaping a Works as Executed plan by a suitably qualified landscape professional must be submitted prior to the issue of an Occupation Certificate.
13. A 1.8 metre high fence shall be erected along the length of the side northern and southern boundaries behind the building line. Fencing to be of non-combustible material, no brushwood fencing (or the like) shall be used.
14. Standard paling and colourbond fencing is not to be utilized at the Memorial Avenue frontage of the site for screening purposes. The fence shall be set back 1.5 metres from the frontage of the site, with a buffer of dense screening vegetation between the fence and the front boundary as indicated on the landscape plan Sheet 1/3. Above a height of 1 metre, the fence shall be partly transparent being constructed of pickets, fencing bars or the like.
15. Erosion and Siltation control measures shall be undertaken in respect to all civil works any part of the land where the natural surface is disturbed or earthworks are carried out. The controls shall comply with Council’s Code of Practise for Erosion and Sedimentation Control.
The developer and builder shall be held responsible for any breaches of the Protection of the Environment Operations Act 1997. Failure to implement or maintain appropriate erosion/sediment control measures is a breach of Section 120 the Protection of the Environment Operations Act 1997. Such a breach is liable for a $750.00 on the spot fine for an individual or $1,500.00 for a Company. Applicant(s) and Builder(s) are advised that spot checks of Erosion and Sedimentation Control measures may occur and fines for breaches imposed.
16. The driveway, vehicle manoeuvring area and car parking spaces as shown on the approved plan, shall be properly constructed, graded, drained and sealed with an impervious all-weather material. All car parking spaces shall be clearly marked, and maintained in accordance with Council’s Policy, DCP111 – Car Parking.
17. A concrete kerb, or alternative of similar standard, shall be provided to the driveways and around areas of landscaping to prevent encroachment of vehicles.
18. Car parking spaces shall be suitably screened from view from any public place or public reserve, in accordance with detailed landscaping plan submitted with the Construction Certificate.
19. The two uncovered resident car spaces located either side of the driveway are to be finished in grasscrete or similar porous material to reduce the amount of hard surface and increase on-site stormwater infiltration.
20. The driveway paving to be of material other than plain concrete, a colour which complements the development and is to be of adequate strength with a non slip finish.
21. Any relocation, or alteration, of any utilities or any existing services made necessary as a result of this development is to be carried out at no cost to Council, with satisfactory arrangements being made with the authority concerned. These services may include stormwater, telephones, electrical cables and power poles, gas, water mains (hydrants, stop valves, stop cocks), sewer mains and manholes, parking signs, street signs and traffic signals.
22. A security gate arrangement to be provided at the rear of the site adjoining the laneway to limit access at night to the rear car park area. Details of perimeter fencing and gates to be included on the landscape plan submitted with the Construction Certificate.
23. Provision shall be made for the timed illumination of the common areas and suitable security lighting is provided to side pedestrian pathways, dwelling entries, driveways and car spaces to ensure an appropriate level of security for residents and visitors, throughout the hours of darkness.
24. All lighting on the site shall be directed such a manner so that no nuisance will be caused to adjoining properties, or to drivers on the surrounding street.
25. Service areas for clothes drying to be provided in conjunction with the proposed development shall not be provided at the front of the site. Further, such areas are to be sited so as not to be visible from the front of the site or in public view.
26. For the purposes of section 80A (11) of the Environmental Planning and Assessment Act 1979 (as amended), the commitments pertaining to current BASIX Certificate and shown on the approved plans shall be complied with prior to the issue of an Occupation Certificate.
27. The following contributions are payable under Section 94 of the Environmental Planning and Assessment Act 1979 in accordance with the relevant Council contribution plan No 31 – Peninsula and are subject to quarterly review as detailed in the contribution plan.
A Roadworks / Capital (Key No 789) $1,832.00 B Drainage / Capital (Key No 788) $5,180.00 Drainage / Land (Key No 787) $1,708.00 C Community / Capital (Key No 792) $4,688.00 Community / Land (Key No 793) $382.00 D Open Space / Embellishment (Key No 790) $14,605.00 Open Space / Land (Key No 791) $6,860.00 TOTAL AMOUNT $35,255.00
The total contribution amount of $32,255.00 is to be paid prior to the issue of a Construction Certificate.A copy of the Contribution plan may be inspected at the office of Gosford City Council, 49 Mann Street, Gosford NSW.The basis of the calculation and the total contribution amount is subject to quarterly review. An adjustment amount will become payable if the contribution is not paid prior to the next review.
28. The proposed residential flat building shall fully comply with the requirements of Level 1 construction as required by Australian Standard AS3959-1999 "Construction of Buildings in Bushfire Prone Areas.
29. Landscaping to the site shall comply with the principles of Appendix 5 of Planning for Bushfire Protection 2006.
30. Water cycle management for the proposal shall be designed to comply with the requirements under Development Control Plan No 165 Amendment 1 Water Cycle Management. A stormwater management plan shall be submitted prior to the issue of a construction certificate and shall be prepared in accordance with the accompanying Water Cycle Management Guidelines.
31. The proposed development shall be designed such that the road traffic noise from Memorial Avenue is mitigated by durable materials, in accordance with EPA criteria for new residential developments (The Environmental Criteria for Road Traffic Noise, May 1999). The Road and Traffic Authority (RTA) Environmental Noise Management Manual provides practical advice in selecting noise mitigation treatments.
Where the EPA external noise criteria would not feasibly or reasonably be met, the internal noise objectives for all habitable rooms under ventilated conditions shall comply with the requirements of the Building Code of Australia:
- All habitable rooms other than sleeping rooms: 45 dB(A)Leq(15hr) and 40 dB(A)Leq(9hr), and
- Sleeping rooms: 35 dB(A) Leq(9hr).
32. No works shall be commenced until a Construction Certificate has been issued.
33. Gosford City Council as the Principal Certifying Authority requires the following inspections and fees in respect to this approval:
- a **Commencement of building works (compliance with conditions of consent, including the installation of siltation controls, waste management and tree protection measures).
b **After the excavation for and prior to the placement of any footings.
c **Prior to pouring any in-situ reinforced concrete building elements (footings, lintels, beams, columns, floors, walls, or the like).
d **Prior to the covering of the framework for any floor, wall, roof or other building element.
- Note: This not only includes structural components, but also refers to a schedule of works to be assessed prior to further construction proceedings. The inspection of waterproofing of wet areas can be incorporated within the frame inspection.
f **Stormwater drainage connection points prior to covering.
g **Final.
h **Occupation certificate
Inspection Bookings should be made on 4325 8333. Work that is found to be defective or not ready at time of inspection will attract a re-inspection fee of $100.00 Please cancel bookings, which will not be ready for inspection.A fee of $900.00 for the above required building inspection(s) must be paid prior to the first inspection. The fee may be paid directly at the Customer Service Unit on the Ground Floor of the Administration Building or posted to Council.
Please quote the Development Application Number when booking Inspections. Inspection bookings will not be accepted without the appropriate number.
Inspections marked ** are MANDATORY . Where Council has determined that these inspections are required for the proposed building works an Occupation Certificate will not be issued unless these have been undertaken.A minimum of 48 hours notice is required for all inspections bookings.
34. Prior to the commencement of any building works Council's "Prevent Pollution" sign must be displayed & maintained in a prominent location on the site so that it is visible to the public. This sign is available at Council's Customer Enquiry Counter at 49 Mann Street, Gosford.
35. The erection of a building in accordance with a development consent must not be commenced or carried out until detailed plan and specification of the building have been endorsed with a construction certificate.
36. Building materials shall not be stored on Council’s footpath or grass verges and a suitable sign to this effect should be erected adjacent to the street alignment. No construction work is to take place on the footpath.
37. Temporary closet accommodation being provided throughout the course of building operations by means of a chemical closet complying with the requirements of the Department of Environment and Climate Change or temporary connections to Council’s sewer where available, work to be carried out by a licensed plumber and drainer.
38. The door to a fully enclosed sanitary compartment must:
- a open outwards; OR
b slide; OR
c be readily removable from the outside of the compartment, unless there is a clear space of at least 1.2m between the closet pan within the sanitary compartment and the nearest part of the doorway.
39. A mechanical ventilation system complying with the requirements of Australian Standard 1668.2 – 1991 being provided to the ensuites, laundries and toilets where no natural ventilation is provided.
40. Separate application being made for connection to Council’s sewerage system.
41. Two (2) sets of structural engineers details prepared and certified by a practising structural engineer of all reinforced concrete and structural members shall be submitted to Council for consideration fourteen (14) days prior to commencement of that particular stage of work.
42. A termite barrier, or combination of barriers, shall be installed in accordance with the requirements of:
- a AS 3660.1; or
b Clause 3.1.3.3 of the Housing Provisions Building Code of Australia for concrete slabs on ground; or
c Clause 3.1.3.4 of the Housing Provisions Building Code of Australia for suspended floors.
Note: For barrier options, refer to Table 3.1.3.1 of the Housing Provisions.
43. Upon completion, a durable notice must be permanently fixed to the building in a prominent location, such as a meter box or the like, indicating:
- a the method of protection; and
b the date of installation of the system; and
c where a chemical barrier is used, its life expectancy as listed on the National Registration Authority label; and
d the installer’s or manufacturer’s recommendations for the scope and frequency of future inspections for termite activity.
44. All plumbing and drainage installations must comply with AS3500 National Plumbing and Drainage Code and NSW Code of Practice - Plumbing and Drainage. The following plumbing and drainage inspections (where applicable) are mandatory and must be conducted by Council's Plumbing and Drainage Inspectors:
a External sewer drainage lines before backfilling of the trenches.
b Internal drainage lines before the floor is laid, or poured and any other internal drainage lines.
c Internal stack/aerial work.
d Any other plumbing work
e Rainwater tank has been installed in accordance with Australian Standard 3500 and Councils guidelines for rainwater tank installation.
f Backflow prevention devices
g A final inspection prior to the occupation of the building after fittings and fixtures are installed.
The appropriate Plumbing and Drainage fee with completed owners application form and plumbing diagram must be paid prior to construction.
45. Any building and/or works constructed or carried out under the provisions of a development consent/construction certificate shall not be occupied until an Occupation Certificate has been issued, or in the case of works, such works are completed in accordance with the development consent and or construction certificate.
46. A sign must be erected on site in a prominent position where building work, subdivision work or demolition work is carried out.
The sign must identify:
a The name, address and telephone number of the principal certifying authority for the work, and
b The name of the principal contractor (if any) and a telephone number on which that person may be contacted outside working hours, and
c That unauthorised entry to the work site is prohibited.
NOTE: Any such sign is to be maintained while building work is carried out, but must be removed when the work is completed.
A maximum penalty of 10 penalty units or $1100 applies for non-compliance with this condition.
47. The rainwater tanks are to be setback a minimum distance of 450mm from the allotment boundary if constructed from a combustible material.
48. Provision to be made for replacement tree plantings in lieu of the trees to be removed comprising five (5) native tree species which are to be advanced tree specimens with a minimum 25 litre pot size at planting and shall be capable of achieving a minimum height at maturity of 8 metres. Four (4) tree plantings shall be located within the front landscaped area of the site facing Memorial Avenue and one (1) tree shall be located at the rear of the site. Species selection and location to be to the satisfaction of Council's Tree Management Officer or Private Certifier, with details (including planting details, tree protection measures and tree protection zones) to be provided on a revised landscaping plan. Such plan shall be submitted for approval prior to the issue of a Construction Certificate.
49. Prior to the issue of a Construction Certificate, a security deposit of $6,000.00 shall be paid into Council’s trust fund to cover the cost of repairing damage caused as a result of the development. The security deposit may be in the form of a bank guarantee that has no termination date. Such deposit will be refunded upon the completion of the project less the cost of repairing any damage caused by the development, or in full if no damage is caused.
50. Satisfactory arrangements shall be made for the provision of water and sewer services to the land. A copy of the Certificate of Compliance under Section 307 of the Water Management Act 2000, shall be obtained prior to the issue of a Construction Certificate. Contributions may be applicable to the Section 307 Certificate.
Developers should make early application for a Section 307 certificate from Council. For a copy of the application form ‘Application For Certificate Under Section 305’ contact Customer Service on (02) 4325 8200 or visit Councils web site to download a form from the Water & Sewerage forms index.
51. Development constructed near or over the sewer main or adjacent to Council’s water main shall comply with Council’s guidelines for "Building Over or Near Council Sewer and Water Mains". Details prepared by a practising structural engineer shall be submitted to and approved by Council in accordance with the Water Management Act 2000 prior to the issue of a Construction Certificate.
52. All work to be carried out within a public road reserve shall be separately approved by Council, under the Roads Act 1993. Engineering plans for the work shall be prepared and designed by a suitably qualified person, in accordance with Council’s “Civil Construction Specifications”, “GCC Design Specification for Survey, Road and Drainage Works” and “Code of Practice for Erosion and Sedimentation Control". The plans shall be approved by Council prior to the issuing of a Construction Certificate required by this consent.
A fee for the approval of engineering plans applies. The amount of this fee can be obtained from Council’s Customer Services. All work is to be carried out in accordance with the Occupational Health and Safety Act.
53. All public stormwater/watercourse work to be carried out shall be approved by Council under the Local Government Act. Engineering plans for the work are to be prepared and designed by a suitably qualified person in accordance with Council’s 'Civil Construction Specifications', 'GCC Design Specification for Survey, Road and Drainage Works' and 'Code of Practice for Erosion and Sedimentation Control'. The plans shall be approved by Council prior to the issuing of a Construction Certificate required by this consent.
A fee for the approval of engineering plans shall apply. The amount of this fee can be obtained from Council’s Customers Services. All work shall be carried out in accordance with the Occupational Health and Safety Act.
54. A Construction Certificate for the civil engineering works shall be issued concurrently with the issue of a Construction Certificate for building works, prior to the commencement of any work. All civil engineering work shall be designed by a suitably qualified person, in accordance with Council’s “GCC Design Specification for Survey, Road and Drainage Works”, “Code of Practice for Erosion and Sedimentation Control” and “Civil Construction Specification”.
Any work that involves the disturbance of nearby properties must be consented by the nearby owner(s) in writing prior to the issue of a Construction Certificate.
An engineering plan approval fee (pay to account No D6500.036) shall accompany an application to Council for a Construction Certificate. The amount of this fee may be obtained from Council’s Customer Services. All work shall be carried out in accordance with the Occupational Health and Safety Act.
55. A dilapidation report must be submitted to Council prior to issue of a Construction Certificate. The report must document and provide photographs that clearly depict any existing damage to the road, kerb, gutter, footpath, driveways, street trees, street signs or any other Council assets in the laneway and its intersection with Warwick Street.
Any damage not shown in the dilapidation report for which the applicant may be fairly held responsible as a result of the site works shall be rectified at the applicant’s expense.
56. Construction of the following works in accordance with RTA specifications, Council’s 'Civil Construction Specification', 'GCC Design Specification for Survey, Road and Drainage Works' and 'Code of Practice for Erosion and Sedimentation Control' prior to the issue of an Occupation Certificate. The works shall not have an adverse impact upon nearby properties and shall comply with WorkCover Authority requirements. It is the contractors responsibility to ensure that all works shall be carried out in accordance with the Occupational Health and Safety Act.
Note 1: Inspection fee/s shall be paid prior to commencement of works in accordance with Councils current fees and charges policy. The amount of this fee will be determined and advised upon approval of engineering plans.
Note 2: Payment of a maintenance bond shall be required on completion of the works in accordance with Section 1.07 Maintenance of the 'Civil Construction Specification'.
NB. Signage plans shall be submitted to the Local Traffic Committee for approval prior to installation of traffic control devices.
A. [Deleted].
B. [Deleted].
C. [Deleted].
D. [Deleted].
E. [Deleted].
F. Vehicle crossing in the rear laneway that has a width of 15m and constructed with a 25mm thick asphaltic concrete seal on a 225mm thick layer of base course material.
G. [Deleted].
H. Piping of all stormwater from impervious areas within the site via an on-site stormwater detention structure to Council’s drainage system.
I. [Deleted].
J. A 3.5m wide AC sealed pavement generally located centrally within the unnamed laneway road reserve.
K. One-way signage in the laneway in accordance with Australian Standards.
L. “Entry Only/No Exit” signage at the northern end of the laneway in accordance with Australian Standards.
N. Tapering of the northern and southern ends of the laneway to accommodate the swept path of the waste services vehicle, as indicated on Figure 1 and Figure 2 of the “Joint Statement of all Expert Witnesses” (Exhibit 9) dated 28 April 2009, LEC proceedings No 11126 of 2008.M. “Exit Only/No Entry” signage at the southern end of the laneway in accordance with Australian Standards.
57. Driveways/Ramps and car parking areas shall be designed according to the requirements of the current Australian Standard AS2890. Plans shall show the following information:
- a a longitudinal section through the centre line of the driveway from the centre line of the road to the proposed garages, showing driveway grades and suitable transition at changes of grades;
b drainage pits and pipes;
c a pavement design prepared by a suitably qualified Engineer.
- At the completion of construction a work as executed plan and written verification of the driveway shall be submitted to Council prior to the issue of an Occupation Certificate. The written verification shall state that all driveway pavements as built will perform to the criteria set down by the designing engineer and that the work has been constructed in accordance with the Construction Certificate.
58. Proposed retaining walls, greater than one (1) metre in height, are to be designed by a practising by a Civil/Structural engineer.
At the completion of construction and prior to the issue of an Occupation Certificate, a work-as-executed plan and certification shall be submitted. The Engineer shall certify that the retaining walls as built have been constructed in accordance with Construction Certificate, accepted practice, and that the structure is stable.
59. Provision of an on-site stormwater detention system. A stormwater detention report prepared by a practising Civil Engineer shall be approved by the Principal Certifying Authority prior to the issue of a Construction Certificate. The engineer shall certify that the on-site detention system as designed will limit post development flows from the proposed development to less than or equal to predevelopment flows for all storm events up to and including the 1% AEP storm event. A runoff routing method is to be used. On-site detention is not permitted within private courtyards.
At the completion of construction and prior to the issue of an Occupation Certificate a practising civil engineer shall certify that the detention system as built will perform to the criteria set down by the designing Engineer and that all stormwater drainage and related work has been constructed in accordance with the Construction Certificate. This certification shall be accompanied with a work-as-executed plan.
A positive covenant shall be created on all lots containing an onsite stormwater detention system to ensure:
a The system will remain in place and fully operational.
b The system is maintained so that it operates in a safe and efficient manner.
c Council is permitted to inspect and repair the system.
d Council is indemnified against all claims of compensation caused by the system.
A restriction as to user shall be created on all lots containing an onsite stormwater detention system to prevent:
a Any building, structure or obstruction being constructed over the system.
b Any alteration to the approved system.
Council's Solicitors shall prepare the positive covenant at the cost of the registered proprietor. The positive covenant is to be executed prior to the release of the Occupation Certificate.The authority empowered to release, vary and modify the restriction or positive covenant is Gosford City Council.
60. Provision of a nutrient control facility. A nutrient control report prepared by a suitably experienced and qualified engineer, or professional shall be submitted and approved by the Principal Certifying Authority. The nutrient control measures shall be determined in accordance with Council’s DCP 165 Water Cycle Management. The report shall include an operation and maintenance plan.
At the completion of construction, certification and a work-as-executed plan shall be submitted prior to the issue of an Occupation Certificate. The Engineer or professional is to certify that the nutrient control measures as built have been constructed in accordance with the Construction Certificate, accepted practice, and the recommendations outlined in the nutrient control report.
A positive covenant shall be created on all lots containing a nutrient control facility to ensure:
a The facility will remain in place and fully operational.
b The facility is maintained so that it operates in a safe and efficient manner.
c Council is permitted to inspect and repair the facility.
d Council is indemnified against all claims of compensation caused by the facility.
A restriction as to user shall be created on all lots containing a nutrient control facility to prevent:
a Any building, structure or obstruction being constructed over the facility.
b Any alteration to the approved facility.
Council's Solicitors shall prepare the positive covenant at the cost of the registered proprietor. The positive covenant is to be executed prior to the release of the Occupation Certificate.The authority empowered to release, vary and modify the restriction or positive covenant shall be Gosford City Council.
61. Arrangements shall be made with Energy Australia (Tuggerah Office - 4399 8115), Australian Gas Light Company (Agility, Greg Knight on 0402 060 241) and Telstra (Phone 1800 600 182 for pre-provisioning letter) for the supply of services concurrent with the engineering work. Arrangements shall include relocation of existing mains and services and dedication of easements for mains and services. A letter of clearance from, each relevant authority is to accompany the Occupation Certificate.
62. It is the contractor's responsibility to ensure that all works are carried out in accordance with the OCCUPATIONAL HEALTH AND SAFETY ACT.
63. [Deleted].
64. [Deleted].
65. [Deleted].
66. Vehicular access to and from Memorial Avenue is denied.
67. Construction access to and from Memorial Avenue is denied.
68. On site vehicular turning facilities are to be provided to enable all vehicles to exit the site in a forward direction.
69. Ground water seepage and overland stormwater flow, which affect the state road reserve shall be managed on site.
70. [Deleted].
71. [Deleted].
72. [Deleted].
73. [Deleted].
74. [Deleted].
75. Submission of a pavement report prepared by a practicing Geotechnical Engineer. The pavement depths are to be determined in accordance with Council’s specifications and the following traffic loadings:
Unnamed lane 1x106Name of Street Traffic Loading (ESAs)
At the completion of construction, a Compliance Certificate shall be submitted prior to the issue of an Occupation Certificate, the Geotechnical Engineer is to certify that the pavements as built have been constructed in accordance with the Construction Certificate, accepted practice, and recommendations outlined in the pavement report.
76. The pavement work to the unnamed lane shall not include any drainage works or kerb and guttering.
ALL ABOVE CONDITIONS MUST BE COMPLIED WITH
______________________
K G Hoffman
Acting Commissioner of the Court
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