C v M A Pty Ltd v Waverley C
[2004] NSWLEC 156
•04/08/2004
Land and Environment Court
of New South Wales
CITATION: C V M A Pty Ltd v Waverley C [2004] NSWLEC 156 PARTIES: APPLICANT
RESPONDENT
C V M A Pty Ltd
Waverley CouncilFILE NUMBER(S): 11284 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- Detached Dual Occupancy
narrow lot
shadows on neighbours yards to south
overlooking
bulk and scale
visibility from neighbours rear yards
objections to traffic especially construction traffic in a narrow cul-de-sac.LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996CASES CITED: DATES OF HEARING: 9/1/2004 DATE OF JUDGMENT: 04/08/2004 LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mrs M Taylor, solicitor
SOLICITOR
Taylor Kelso Lawyers
Mr M Staunton, solicitor
SOLICITOR
Staunton Beattie Solicitors
JUDGMENT:
IN THE LAND AND S.34 Conference
ENVIRONMENT COURT
OF NEW SOUTH WALES
Appeal No: 11284 of 2003
Applicant: C V M A Pty Ltd
Respondent: Waverley Council
1. Date Held: 9/1/2004 Time: 9.30am Map Ref:
Location: On-site/Council chambers2. Representatives of parties attending:
Applicant: Mrs M Taylor (solicitor)
Taylor Kelso Lawyers
Ms S Lynch (Applicant’s Town Planner)
Michael Alexander – 18 Wilfield Pl -applicant
Alya Vlassova – 1/3 Oakes Pl - applicant
Evelene Dening-Franklin – Taylor Kelso
Natalie Vlasso Vlassova – Applicant
Alex Clougam - Applicant’s ArchitectRespondent: Mr M Staunton (solicitor)
Other: Jeff Bergman – 12 Oceanview Ave
Staunton Beattie Solicitors
Rebecca Findlay-Debeck – Waverley Council
Mr N England (Council Town Planner)
Alan Frank - 22 Oceanview Ave
Graeme Quinn – 14 Oceanview Ave
Naomi Winton – 16 Oceanview Ave
Simon Strum – 318 Military Rd
Felicity Segel – 18 Oceanview Ave
Danny Wilheim – 326 Military Rd
Karen Wilheim - 326 Military Rd
Robert Mifsud – 6/6 Oceanview Ave
Susan Raber – 10 Oceanview Ave
Robyn Manning – 17 Wilfield Ave
Jack Raber - 10 Oceanview Ave3. Address/title of property: 18 Wilfield Avenue, Vaucluse
4. Proposal: Detached Dual Occupancy
5. Owners: Messrs. M Alexander & A Clougam and Ms N Vlassova, Directors of C V M A Pty Ltd.
6. (a) Environmental Planning Instrument(s):
(b) Zoning:
Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Proposal is: Permissible with consent
7. Result of conference where agreement is reached [s 34(3)(a)]:
Order: N/A
[OR]8. Commissioner’s report where no agreement is reached [s 34(3)(b)(i)]:
Commissioner's views as to issues in dispute: N/A
[OR]9. Where no agreement reached, but parties consent to Commissioner disposing of proceedings [s 34(3)(b)(ii)]:
1. The appeal is upheld.
2. Development Consent is granted for the demolition of an existing house and the erection of two detached dwellings with strata sub-division at No 18 Wilfield Avenue, Vaucluse as shown on the drawings job No 1202; Drawing No’s DA01C, SS02B, DA03C, DA05C, DA06D, DA07D, DA08D, DA09C, DA10C, DA11D, DA12D, DA13D, DA14D, DA15D, DA16D, DA17C, DA18C, DA18/1A, DA18/2A, DA17/1A, DA17/2A, DA19C by C V M A P/L and strata plan by Watson Buchanan Miranda reference 03/1236. All as further amended by and in accordance with the conditions in Annexure “A” hereto;
3. The exhibits are returned to the parties except the drawings extracted from exhibit A and except Exhibits E, C, F and 1, 3 and 5.We, the undersigned, being the parties/representatives of the parties, hereby consent to:
[Delete paragraph (a)
if not applicable] (a) The Commissioner disposing of the proceedings without a further hearing, no agreement having been reached.(b) Evidence of anything said or admission made in the course of this conference being admissible for the purpose of the Commissioner hearing and disposing of the proceedings.
Mrs M Taylor (Applicant’s Solicitor)
Party/Party's representativeMr M Staunton (Council’s Solicitor)
Party/Party's representative_______________________
Original of this document signed by the
K G Hoffman
Commissioner of the Court
parties is held on the Court’s file
Preliminary conferences
34. (1) Where proceedings are pending in Class 1 or 2 of the Court's jurisdiction, the registrar shall, unless otherwise directed by the Chief Judge, arrange a conference between the parties to the proceedings or their representatives, to be presided over by a single Commissioner.
(1A) Where proceedings are pending in Class 3 of the Court's jurisdiction in respect of a claim for compensation by reason of the compulsory acquisition of land (referred to in Division 2 of Part 3), the registrar is required to arrange (at the request of all the parties to the proceedings) a conference between the parties to the proceedings or their representatives, to be presided over by a single Commissioner. The conference is to be arranged within 28 days after the proceedings are commenced or within such further time as the Chief Judge directs.
(2) The registrar shall notify the parties or their representatives of the time and place fixed by the registrar for the conference.
(3) Where -
(a) at or after a conference, agreement is reached between the parties or their representatives as to the terms of a decision in the proceedings that would be acceptable to the parties (being a decision that the Court could have made in the proper exercise of its functions) - the Commissioner shall dispose of the proceedings in accordance with the decision; or
(b) no such agreement is reached -
(i) unless the parties consent under subparagraph (ii) - the Commissioner shall make a written report to the Court setting out that fact and also setting out the Commissioner's views as to the issues in dispute between the parties to the proceedings; or
(ii) if the parties consent - the Commissioner may dispose of the proceedings, whether with or without further hearing.
(4) Subject to this Act and the rules, the Commissioner disposing of, or hearing and disposing of, proceedings pursuant to subsection (3)(a) or (3)(b)(ii) shall have and may exercise the functions of the Court.
(5) The decision of the Commissioner under subsection (3)(a) or (3)(b)(ii) shall be deemed to be decision of the Court.
(6) Where a report is made to the Court under subsection (3)(b)(i), the registrar shall, as soon as practicable, furnish a copy of the report to each of the parties.
(7) Evidence of anything said or admission made in the course of a conference shall not, unless the parties consent, be admissible at the hearing of the proceedings.
(8) The Commissioner who has presided over a conference under this section in relation to any proceedings is disqualified from further participation in those proceedings, unless the parties otherwise agree.
(9) The registrar may, unless otherwise directed by the Chief Judge, preside over a conference under this section, and for that purpose a reference in this section to the Commissioner includes a reference to the registrar.
Conditions of development consent
Annexure A
C V M A Pty Ltd -v- Waverley Council
1. Compliance in all respects with amended Plan Drawing No’s. DA-01, Issue C, DA-02, Issue D, DA-03 and DA-05, Issue C, DA-06 to DA-08, Issue D, DA-09 and DA-10, Issue C, DA-11 to DA-16, Issue D and Plan Drawing No. SS-02, Issue B, tables and documentation prepared by C.V.M.A Pty. Ltd, dated November 2002, received by Council on the 9 October 2003 except where amended by the following conditions of consent.
2. Preparation and consideration of dilapidation report for No’s 14A and 16 Wilfield Avenue, and No.18 Oceanview Avenue (outbuilding) Vaucluse, to be furnished to Council or Accredited Certifier prior to the issue of a Construction Certificate. A deposit of guarantee satisfactory to Council for the amount of $10,000 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.
Note: This deposit or guarantee must be submitted before a construction certificate is issued. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work. A standard A- Class hoarding designed constructed in accordance with the requirements of the Work Cover Authority being erected on the street alignments of the property prior to the commencement of building operations, and such hoardings to be maintained during the course of building operations. Details of the hoarding are to be provided to Council prior to the issue of a Construction Certificate.
3. The building and demolition work must only be done between the hours of 7am and 5pm on Mondays to Saturdays and building work must not be carried out on Sundays and public holidays.
4. Excavation works involving the use of heavy earth movement equipment including rock breakers and the like must only be done between the hours of 7am and 5pm on Mondays to Fridays and 9am and 1pm on Saturdays and work must not be carried out on Sundays or public holidays.
5. The building work must not be commenced until:
- a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and
b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81A(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of the Schedule 1 of the Regulations; and
c) Council is given at least two days notice in writing of intention to commence the building works.
The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principal Certifying Authority.
Should Council be appointed the Principal Certifying Authority, the applicant/owner is to pay an inspection fee of $935.00 in accordance with Council's Pricing Policy prior to commencement of any works.
6. All building work must be carried out in accordance with the provisions of the Building Code of Australia.
7. The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:
a) the name and contractor licence number of the licencee who has contracted to do, or intends to do, work ; or
b) the name and permit number of the owner/builder who intends to do the work; and
c) any change to these arrangements for doing of the work.
8. The payment of a long service levy as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, in respect to this building work, and in this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate.
Note: Council acts as an agent for the Long Services Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.2% of building work costing $25,000 or more.
9. The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989, whereby a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the principle certifying authority that they have complied with the applicant requirements of Part 6, before any work commences.
10. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property.
11. If the soil requires it:
- a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided; and
b) stormwater drainage systems are to be provided in accordance with drawing No.HS001 lodged with Council on 16 December 2003 and calculations lodged with Council on 12 December 2003.
12. If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made, at their own expense, must:
- a) preserve and protect the building from damage; and
b) if necessary, must underpin and support the building in an approved manner; and
c) must, at least seven days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.
13. If a public place or pedestrian vehicular traffic may be obstructed because of the carrying out of work involved in the erection or demolition of a building; or a public place is required to be enclosed in connection with the erection or demolition of a building; then:
a) a hoarding fence must be erected between the building site and the public place of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from, or in connection with, the work falling onto the public place, is also to be erected;
b) the work is to be kept lit during the time between sunset and sunrise if the work may be of a sort of danger to persons using the public place;
c) a hoarding, fence or awning is to be removed when it is no longer required for the purpose for which it was provided.
14. A sign is to be erected at the street frontage of the site stating the following:
a) unauthorised entry to the work site is prohibited; and
b) the name of the person in charge of the work site and a telephone number at which that person can be contacted outside working hours.
15. Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water.
16. A final Occupation Certificate must be issued by the Principal Certifying Authority prior to occupation or use of the development. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning and Assessment Act, 1979 have been satisfied.
17. Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with the proposed construction of the new detached dual occupancy prior to the issue of a Construction Certificate.
18. Pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 and as a need brought about by the proposed development, the applicant/owner to contribute the sum of:
a) $882.00 towards Council's Open Space Reserve Fund for the acquisition, improvement and maintenance of Council Reserves and Parks in the locality, and
b) $817.00 towards Council's Library Facilities and resources providing information, cultural and recreational needs of the community, and
c) $58.00 towards Council's Senior Citizens Facilities and improvements, and
d) $95.00 towards Council's Bus Facilities for the provision and improvement of public transport access and facilities, and
such amount to be paid prior to the issue of the Construction Certificate.
However, if such amounts in (a), (b), (c) and (d) are not received within two (2) years of the issue of the notice, then the contribution is to be up-graded in line with any new rates of contribution adopted by Council after application of an inflation factor.
19. No portion of the proposed new detached dual occupancy including the footings and roof eaves, to encroach beyond the boundaries of the subject property.
20. Roof waters from the proposed detached dual occupancy to be collected and conveyed to the existing storm water drainage system or directly conveyed to the street gutter.
21. The floor and wall surfaces of the proposed bathroom, ensuite and laundry areas being protected against water in accordance with the Building Code of Australia.
Note: Water proofing is to be in accordance with AS 3740 - Water Proofing of Wet Areas within residential buildings. The display of suitable numbers in a location clearly visible from the street to distinguish the building on the subject land.
22. All wet areas in the proposed detached dual occupancy to be examined and certified by an Accredited Certifier.
23. The display of suitable numbers in a location clearly visible from the street to distinguish the building on the subject land.
24. A smoke alarm system is to be installed within the building in accordance with the requirements of the Building Code of Australia.
25. The hardstand car parking area is to be graded and drained and all surface waters are to be collected and conveyed to the street gutter via underground pipes. A grate drain is to be provided across the front alignment of the hardstand car space.
26. To reduce the incidence of hot tap water scalding and, for the purpose of energy efficiency, all new or replacement hot water systems shall deliver hot water to a maximum 50 degrees celsius at the outlet of all sanitary fixtures used for personal hygiene.
27. Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Soil and Water Management Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to Council prior to the issuing of a Construction Certificate.
28. The building works are to be inspected during construction by the Council or by an Accredited Certifier or other suitably qualified person and documentary evidence of compliance with the relevant terms of the approval/standards of construction detailed in the Building Code of Australia, is to be obtained prior to proceeding to the subsequent stages of construction. Inspections are to include the following:
a) sediment control measures;
b) foundation material;
c) footings, slabs and structural beams and columns;
d) floor, wall and roof frame;
e) storm water drains prior to covering.
29. In accordance with the requirements of Council's Stormwater Management Policy, provision is to be made for on-site stormwater detention (OSD). The applicant is advised that the on-site stormwater detention systems must be designed and constructed in accordance with the requirements of Council's OSD Technical Specification and relevant information can be obtained from Council's Planning & Environmental Services Department. Full details of OSD must be submitted prior to the issue of a Construction Certificate.
30. The finished level at the property boundary on both sides of the vehicle crossing is to be 50mm above the level of the existing concrete footpath.
31. A new vehicle crossing is to be provided to access the proposed parking space. A separate application is required for the construction of this vehicle crossing with all work to be carried out with the approval of, and in accordance with, the requirements of the Manager - Technical Services.
32. All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council's Manager - Technical Services, at the applicant’s expense
33. Waste waters from the proposed pool for residence B being discharged into Sydney Water's sewerage system and in this regard, approved building plans MUST be submitted to the Building Plan section of Sydney Water at least fourteen (14) days prior to commencement of building operations.
34. The pool water being treated by an approved water treatment and filtration unit.
35. To prevent noise nuisance to surrounding properties, the pool filtration motor and pump unit are to be housed within a ventilated sound proof enclosure.
36. To minimise the likelihood of accidental drowning, the swimming pool is to be provided with a child resistant safety fence, designed and constructed in accordance with the requirements of Australian Standard 1926-1986 "Fences and Gates for Private Swimming Pools". This fencing is to be erected and inspected by the Principal Certifying Authority prior to the pool being filled with water.
37. The electrical wiring system for any proposed underwater artificial lighting installation to the pool being installed in accordance with the requirements of Australian Standard 3000, Part 1, "Wiring Rules".
38. Swimming pool reinforcement is to be inspected by an Accredited Certifier or other suitably qualified person prior to the pouring of concrete.
39. A final inspection of the completed pool for residence B is to be carried out by the Principal Certifying Authority prior to the pool being filled with water.
40. An approved sign outlining details of resuscitation techniques for adults, children and infants must be placed in a prominent position, close to the pool prior to filling with water. These signs are available from Council's Planning & Environmental Services Department located at the Council Chambers.
41. The open private balconies attached to the proposed building not to be enclosed at any future time, in accordance with the provisions of Council's General Policy and in this regard, the door openings within the external walls adjoining the private open balconies to be constructed so as to prevent the penetration of rain or other waters to the inner part of the building.
42. The method of collection and disposal of garbage and refuse arising from the usage of the building being in accordance with Waverley Development Control Plan No. 19 - Controls for Site Minimisation and Management. In this regard, a site waste management plan is to be prepared and approved by the Principle Certifying Authority prior to the issue of a Construction Certificate.
43. A tree preservation order exists in Waverley. Before any site can be developed, an application must be made in writing to Council prior to removal of tree/trees. Should permission be granted, the applicant will receive a permit to proceed.
44. A schedule of external finishes shall be submitted for Council's consideration and approval prior to issue of the Construction Certificate. The schedule shall include details of proposed external walls and roofing materials in the form of either trade brochures or building samples. Where specified, the schedule shall also include window fenestration and window frame colour details, as well as fencing, paving and balustrading details and guttering, colour and profile.
45. Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings erected within the Council area so as to help protect the existing areas of rainforest. In this regard, a schedule of timber products proposed to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used.
46. The applicant is advised that Council policy prohibits the use of organochlorin pesticides as termite barriers in new development. Rather, in accordance with Australian Standard 3660: Protection of building from subterranean termites - Prevention, detection and treatment of infestation, physical barriers are to be used.
47. The submission of a Compliance Certificate under Section 73 of the Water Board (Corporisation) Act, 1994. Sydney Water may require you to construct works and/or pay developer charges. Accordingly, you should make immediate application to Sydney Water to avoid problems in servicing your development.
48. A linen plan and six copies are to be submitted to Council’s Planning and Environmental Services Department.
49. Prior to the registration of the linen plans, a Subdivision Certificate must be obtained from Council or an Accredited Certifier in accordance with Section 109 (c)d of the Environmental Planning and Assessment Act, 1979.
50. Where building works or alterations involve the building/demolition and/or removal of materials comprising asbestos-cement or red lead, such work shall be undertaken in a manner that complies with practices approved by the NSW Work Cover Authority. This action will contribute to the reduction of asbestos related disease.
51. Hazardous or intractable wastes arising from the demolition process shall be removed and disposed of in accordance with the requirements of WorkCover and the EPA and with the provisions of:
· New South Wales Occupational Health and Safety Act, 1983;
· New South Wales Construction Safety Act, 1912; Regulation 84A-J Construction Work Involving Asbestos or Asbestos Cement 1983,
· The Occupational Health & Safety (Hazardous Substances) Regulation 1996;
· The Occupational Health & Safety (Asbestos Removal Work) Regulation 1996; and
· Environmental Offences and Penalties Act, 1997.
52. Hazardous waste, liquid waste, asbestos or asbestos products and dangerous goods shall not be stored or processed at the site.
53. Intruder alarms shall be fitted with a timing device in accordance with the requirements of the Environment Operations Act, 1997 and relevant regulations and Australian Standard AS 2201, Parts 1 and 2 - 1978, Intruder Alarm Systems.
54. Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.
55. Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.
56. Stormwater from roof areas shall be linked via a temporary downpipe to Council's stormwater system immediately after completion of the roof area. Inspection of the building frame will not occur until this is completed.
57. A vehicle wheel wash, cattle grid, wheel shaker or other appropriate device, shall be installed in accordance with the approved site Soil and Water Management Plan prior to commencement of any site works or activities.
Any new information which comes to light during remediation, demolition or construction works which has the potential to alter previous conclusions about site contamination, shall be notified to the Council and the PCA immediately.
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