Devenish-Meares v Ku-ring-gai Council (No 2) - [2010] NSWLEC 1219

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Devenish-Meares v Ku-ring-gai Council (No 2) [2010] NSWLEC 1219

PARTIES:
APPLICANTS
Mrs S Devenish-Meares
Mr S Devenish-Meares
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10198; 10199; 10200; 10203 of 2010

CORAM: Fakes C

KEY ISSUES: DEVELOPMENT APPLICATION - SUBDIVISION :- whether Court bound by direction of Minister under s 94E for s 94 contribution - whether credit should be given for existing dwelling

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979

CASES CITED: Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA
Pavlovski v Ku-ring-gai Council [2010] NSWLEC 1197

DATES OF HEARING: 16/06/2010, 04/08/2010

DATE OF JUDGMENT:
13 August 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Hones, solicitor
SOLICITORS
Hones La Hood
RESPONDENT
Mr A Hudson, solicitor
SOLICITORS
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

13 August 2010

10198 - 10200 of 2010
10203 of 2010

Devenish-Meares v Ku-ring-gai Council (No 2)
JUDGMENT

1 COMMISSIONER: On 16 June 2010, I gave a judgment in matter 10198 of 2010 indicating that development application 0580/09 for the demolition of an existing dwelling and the construction of two dwellings (dwellings 1 and 2) could be approved subject to the preparation of certain documentation specified in the judgment. This matter related to stage 1 of a four-stage development. I directed the parties to prepare conditions of consent and set aside a date for a further hearing should there be any disagreement between the parties on any of the conditions.

2 As a consequence of that determination, the parties reached agreement on the other matters and thus the remaining stages of the proposed development. To that end, the parties prepared conditions of consent for the four matters.

3 A further hearing was held on 3 August 2010 at which the parties made submissions on the one condition of consent on which they could not agree. That condition relates to the s 94 contribution that should be payable by the applicants. In matter 10198 of 2010, the condition in dispute is number 31. In matter 10200 of 2010 (DA0583/09)(stage 3), the relevant clause is number 24. This matter relates to the construction of dwelling 3 as a detached duel occupancy with dwelling 2.

4 The s 94 contribution determined by Ku-ring-gai Council (the Council) for dwellings 1 and 2 is $61,082.21 and for dwelling 3, $44,610.00. These figures were calculated in accordance with the Ku-ring-gai Section 94 Contributions Plan 2004-2009 (Amendment 2) for the range of services detailed in the table included in the conditions of consent.

5 On 4^th June 2010, the Minister for Planning issued a direction under s 94E of the Environmental Planning and Assessment Act 1979 (the EPA Act). The requirements of the direction are as follows:

(1) A council as a consent authority must not impose a condition of development consent under section 94(1) or 94(3) of the Act requiring the payment of a monetary contribution exceeding $20,000 for each dwelling authorised by the consent or in the case of development consent that authorises the subdivision of land into residential lots, exceeding $20,000 for each lot authorised by the consent.

6 This direction can be interpreted that, not withstanding an existing contributions plan made under the EPA Act and Regulations, a council must not impose a contribution greater than $20,000 per dwelling or residential lot.

7 Mr Hones for the applicant submits that the proper s 94 contribution for the development is $40,000, calculated as $20,000 per dwelling with a $20,000 credit for the existing dwelling. The applicant asserts that this is in accordance with the Minister’s direction.

8 Mr Hudson for the council relies on the words in the Minister’s direction ‘A council as a consent authority…’ and contends that, as the Court is not a ‘consent authority’ under the EPA Act, the direction does not apply to the Court. The council submits that the Court should impose the amount determined in accordance with the contributions plan as the plan has been made and advertised in accordance with the EPA Act and the Regulations. Mr Hudson contends that there is provision in the plan for a credit for an existing dwelling and that this has been addressed in the council’s calculations.

9 Mr Hudson submits that his contention is supported by the Court of Appeal in Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA 266 at para 47 that states:

47 While the court is not a “consent authority” for the purposes of the Act, its power and the deemed consequences of their exercise give the decision of the court the effect that it would have had were it made by a consent authority. This is with the additional scope conferred by s94(12) to disallow or amend unreasonable conditions, though they may be determined in accordance with a contributions plan…

10 Section 94(12) referred to in Rose has been repealed and appears to have been replaced by section 94B, the relevant clauses of which state:

(1) A consent authority may impose a condition under section 94 or 94A only if it is a kind allowed by, and is determined in accordance with, a contributions plan (subject to any direction of the Minister under this Division).

(3) A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the Court on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the Court to disallow or amend the contributions plan or direction.

11 Mr Hudson submits that as the council refused the development application, there was no condition imposed under s 94 that was therefore subject of the appeal. As a consequence of this, he submits that s 94B(3) is therefore irrelevant and the Court should determine and impose the condition in accordance with the contributions plan. He contends that the Minister’s direction is irrelevant to the Court as it does not apply to the Court.

12 Mr Hudson is correct in that as the council refused the development application, there was no condition (of any kind) that could be appealed. However, that is of no material benefit to his argument as there is no capacity under s 97(1) of the EPA Act to appeal against a particular condition; it is the whole determination that is appealed. As the council refused the application, the applicants have appealed to the Court pursuant to s 97.

13 Section 39 of the Land and Environment Court Act 1979 (the Court Act) describes the powers of the Court on appeals. The relevant clauses are:

(1) In this section, “appeal’ means an appeal, objection, reference or other matter which may be disposed of by the Court in proceedings in Class 1,2 or 3 of its jurisdiction.

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter subject of the appeal.

(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

14 The circumstances of these cases are that there is nothing to suggest that the appeals have been incorrectly made pursuant to s 97 of the EPA Act. Therefore, the Court has the power under s 39 of the Court Act to determine the appeals as they are proceedings in Class 1 of its jurisdiction.

15 The Court on appeal, exercises the functions and has the discretions of the consent authority whose decision is the subject of the appeal. This includes the consent authority’s function under s 80 of the EPA Act to determine the development application by granting consent subject to conditions. The Court’s powers to impose conditions are (with one exception) the same as those of the consent authority. The Court, like the consent authority, must comply with the statutory limitations on the imposition of conditions such as those found in ss 80, 80A, 94 and 94B of the EPA Act. One such limitation is in s 94B(1) and (2).

16 The exception where the Court is not as limited as the consent authority is in s 94B(3) of the EPA Act. That provision empowers the Court on appeal, but not the consent authority whose decision is the subject of the appeal, to disallow or amend a condition under s 94 that is of a kind allowed by a contributions plan or a direction of the Minister, because it is unreasonable in the particular circumstances of that case. The Court may, therefore, refuse to impose a s 94 condition or impose a s 94 condition that varies from that allowed by the contributions plan or the Minister’s direction.

17 As a result of this I cannot agree with Mr Hudson’s assertions that the Minister’s direction is irrelevant to the Court.

18 In Pavlovski v Ku-ring-gai Council [2010] NSWLEC 1197, Brown C dealt with an almost identical situation. Relevantly in para 21, Brown C states:

functions and discretions

circumstance(s) of the case,

19 Brown C goes on to consider the Court’s consideration of a contribution in para 22:

disallowed or amended

unreasonable in the particular circumstances of that case.

20 Similarly, in the matters before me, no evidence has been produced to demonstrate that the amount specified in the Minister’s direction is unreasonable in the circumstances of the staged development of the demolition of one dwelling and the construction of three new dwellings and associated subdivision. The council relies solely on the existence of the contributions plan. As a consequence I am not satisfied that a s 94 condition of the kind allowed by the Minister’s direction is unreasonable in the particular circumstances of this case and accordingly there is no warrant under s 94B(3) to amend the condition by increasing the amount of the s 94 contribution.

21 With respect to the credit sought by the applicant for the existing dwelling, I see no reason to depart from Commissioner Brown’s findings on the same issue and given in para 23.

23 On the issue of credit, I accept that a credit for the existing dwelling on the site is appropriate. Importantly, s 94(1) provides the power for the imposition of a condition under s 94. It provides that a condition can only be imposed where a development “…will or is likely to require the provision of or increase the demand for public amenities and public services…”. It is widely accepted that a credit should be granted if there is an existing dwelling or dwellings that form part of a site redevelopment because the existing dwelling or dwellings does not generate the demand for public amenities and public services, as presumably the occupants of the dwelling make use of existing public amenities and public services. Only the additional new dwellings can generate a demand for public amenities and public services.

22 As a consequence of the forgoing, and having regard to the Minister’s direction under s 94E dated 4 June 2010, I determine that the total contribution for DA0580/09 in appeal 10198 of 2010 be $20,000 being the amount for one new dwelling with a credit for the existing dwelling. For DA0583/09 in appeal 10200 of 2010, the total contribution is to be $20,000.

23 With respect to the direction to prepare a detailed tree protection plan given in my judgement of the 16 June 2010, I find that the conditions of consent prepared by the parties detail all relevant tree protection measures and thus there is no requirement for any additional documentation beyond that which is specified in the conditions.

24 The Orders of the Court are:

_________________________________

Judy Fakes
Commissioner of the Court

KU-RING-GAI COUNCIL ATS DEVENISH – MEARES

10A IVEY STREET LINDFIELD NSW 2070

LAND AND ENVIRONMENT COURTPROCEEDINGS NO. 10198 OF 2010

ANNEXURE A

The conditions of consent are as follows:

Prior to this consent becoming operative the following deferred commencement conditions must be complied with to the Council’s satisfaction:

1. Drainage easement (deferred commencement)

The applicant shall submit documentary evidence that the property benefits from a drainage easement over the downstream properties as far as the public drainage system. This consent will not operate until the documentary evidence has been submitted to and approved by Council’s Development Engineer.

Reason: To ensure that provision is made for stormwater drainage from the site in a proper manner that protects adjoining properties.

2. Stormwater drainage (deferred commencement)

The applicant shall submit full hydraulic design documentation for the required interallotment drainage system from the subject property to the approved point of discharge to the public drainage system. Plans are to be prepared by a suitably qualified and experienced consulting civil/hydraulic engineer in accordance with Council’s Water Management DCP 47 (available on Council’s website and at Customer Services) and the Plumbing and Drainage Code (AS3500). New pipes within the downstream easement drainage system must be sized to have adequate capacity to carry design flow rates, or detention system overflows where detention systems are to be provided, from the subject property.

The following details must be included:

? plan view of interallotment system to scale showing dimensions, location and reduced levels of all pits, grates, pipe inverts, flushing facilities and exact point of discharge

? the contributing catchment calculations and supporting pipe sizing information

? longitudinal section showing existing ground levels and proposed pipe invert levels, grades and flow capacities

? surrounding survey detail including all trees within seven (7) metres of the proposed drainage system

? means to preserve the root systems of trees within seven (7) metres of the drainage system

This consent will not operate until the required hydraulic design documentation has been submitted to and approved by Council’s Development Engineer.

Reason: To ensure adequate provision is made for stormwater drainage from the site in a proper manner that protects adjoining properties.

CONDITIONS THAT IDENTIFY APPROVED PLANS:

(a) The development must be carried out in accordance with the following plans and documentation listed below, except where amended by other conditions of this consent:

Plan no. Drawn by Dated

965-DA01sheet 8 revD
965-08-ST01 sheet 2 rev D
965-08-ST01 sheet 3 rev D
965-08-ST01 sheet 5 rev A
965-08-ST01 sheet 6 rev A Waldman and Parker
24/06/10
Dec 2009

Document(s) Dated

Colours and finishes schedules received by Council 8/09/09

Basix Certificates Nos.231383S-02 and 231364S-02 1 September,2009

(b) This consent must be read in conjunction with the other development applications and consents for the site being:

DA582/09 – stage 2;
DA583/09 – stage 3; and
DA584/09 – stage 4.

(c) The dwellings shall not be occupied and occupation certificates must not be issued until all development referred to in condition (b) above has been completed in accordance with all conditions of the consents and approved plans (including the registration of all subdivision certificates to create all allotment referred to in the consents).

Reason: To ensure that the development is in accordance with the determination.

2. Inconsistency between documents

In the event of any inconsistency between conditions of this consent and the drawings/documents referred to above, the conditions of this consent prevail.

Reason: To ensure that the development is in accordance with the determination.

3. Approved landscape plans

Landscape works shall be carried out in accordance with the following landscape plan(s), listed below, except where amended by other conditions of this consent:

Plan no. Drawn by Dated

#55.10(09)/094’C’ Sheet 2/3 iScape July 2010

The references to tree numbers in this plan and the conditions of this consent relate to the tree numbering in the arborist report from Australis Tree Management dated 17 November 2009 prepared by Meredith Gibb. The PCA to be satisfied that tree numbering on the approved plans is consistent with this arborist report prior to issuing the construction certificate.

Reason:

To ensure that the development is in accordance with the determination.

CONDITIONS TO BE SATISFIED PRIOR TO DEMOLITION, EXCAVATION OR CONSTRUCTION:

4. Road opening permit

The opening of any footway, roadway, road shoulder or any part of the road reserve shall not be carried out without a road opening permit being obtained from Council (upon payment of the required fee) beforehand.

Reason: Statutory requirement (Roads Act 1993 Section 138) and to maintain the integrity of Council’s infrastructure.

5. Notice of commencement

At least 48 hours prior to the commencement of any development (including demolition, excavation, shoring or underpinning works), a notice of commencement of building or subdivision work form and appointment of the principal certifying authority form shall be submitted to Council.

Reason: Statutory requirement.

6. Dilapidation photos (public infrastructure)

Prior to the commencement of any works on site the applicant must submit to Ku-ring-gai Council and the Principal Certifying Authority a photographic record on the visible condition of the existing public infrastructure over the full site frontage (in colour - preferably saved to cd-rom in ‘jpg’ format). The photos must include detail of:

? The existing footpath

? The existing kerb and gutter

? The existing full road surface between kerbs

? The existing verge area

? The existing driveway and layback where to be retained

? Any existing drainage infrastructure including pits, lintels, grates.

Particular attention must be paid to accurately recording any pre-developed damaged areas on the aforementioned infrastructure so that Council is fully informed when assessing damage to public infrastructure caused as a result of the development (which is not to be repaired by the Applicant as part of the development). The developer may be held liable to all damage to public infrastructure in the vicinity of the site, where such damage is not accurately recorded and demonstrated under the requirements of this condition prior to the commencement of any works.

Reason: To protect public infrastructure.

7. Construction and traffic management plan

Prior to the commencement of any works on site, the applicant must submit for review by Council's engineers a construction and traffic management plan. The following matters must be specifically addressed in the plan:

A. A plan view of the entire site and frontage roadways indicating:

? dedicated construction site entrances and exits, controlled by a certified traffic controller, to safely manage pedestrians and construction related vehicles in the frontage roadways

? turning areas within the site for construction and spoil removal vehicles, allowing a forward egress for all construction vehicles on the site

? the locations of proposed work zones in the frontage roadways

? location of any proposed crane and concrete pump and truck standing areas on and off the site

? a dedicated unloading and loading point within the site for all construction vehicles, plant and deliveries

? material, plant and spoil bin storage areas within the site, where all materials are to be dropped off and collected

? an on-site parking area for employees, tradespersons and construction vehicles as far as possible

B. Traffic control plan(s) for the site

All traffic control plans must be in accordance with the RTA publication “Traffic Control Worksite Manual” and prepared by a suitably qualified person (minimum ‘red card’ qualification). The main stages of the development requiring specific construction management measures are to be identified and specific traffic control measures identified for each stage.

Approval is to be obtained from Council for any temporary road closures or crane use from public property. Applications to Council shall be made a minimum of 4 weeks prior to the activity proposed being undertaken.

C. A detailed description and route map of the proposed route for vehicles involved in spoil removal, material delivery and machine floatage must be provided.

Light traffic roads and those subject to a load or height limit must be avoided where alternate routes exist.

A copy of this route is to be made available to all contractors and shall be clearly depicted at a location within the site.

The plan must provide evidence of RTA concurrence where construction access is provided directly from or within 20m of an arterial road.

The plan must provide a schedule of site inductions to be held on regular occasions and as determined necessary to ensure all new employees are aware of their construction management obligations. These must specify that construction-related vehicles are to comply with the approved requirements.

The plan must provide measures for minimising construction related traffic movements during school peak periods.

For those construction personnel that drive to the site, the applicant shall attempt to provide on-site parking so that their personnel’s vehicles do not impact on the current parking demand in the area.

The construction and traffic management plan shall be prepared by a suitably qualified and experienced traffic consultant and be certified by this person as being in accordance with the requirements of the abovementioned documents and the requirements of this condition. The construction management measures contained in the approved plan shall be implemented in accordance with the plan prior to the commencement of, and during, works on-site including excavation.

As the plan has a direct impact on the local road network, the plan shall be submitted to and reviewed by Council’s Development Engineer. Written acknowledgment from Council’s Engineer shall be obtained (attesting to this condition being appropriately satisfied) and submitted to the Principal Certifying Authority prior to the commencement of any works on site.

Reason: To ensure that appropriate measures have been considered during all phases of the construction process in a manner that maintains the environmental amenity and ensures the ongoing safety and protection of people.

8. Erosion and drainage management

Earthworks and/or demolition of any existing buildings shall not commence until an erosion and sediment control plan is submitted to and approved by the Principal Certifying Authority. The plan shall comply with the guidelines set out in the NSW Department of Housing manual "Managing Urban Stormwater: Soils and Construction" certificate. Erosion and sediment control works shall be implemented in accordance with the erosion and sediment control plan. A suitably qualified and experienced civil/environmental engineer shall prepare this plan in accordance with the above guidelines and section 8.2.1 of Councils Water Management Development Control Plan 47.

Reason: To preserve and enhance the natural environment.

9. Tree protection fencing

To preserve the following tree/s, no work shall commence until the area beneath their canopy is fenced off at the specified radius from the trunk/s to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site except where it is necessary to remove it to carry out landscape works under this consent.

Schedule

Tree/Location Radius in metres

#21 Camellia japonica (Japanese Camellia)
Adjacent to eastern site boundary
#22 Camellia sasanqua (Chinese Camellia)
Adjacent to eastern site boundary
#23 – 25 Acer palmatum (Japanese Maple)
Adjacent to eastern site boundary
#29 Pittosporum undulatum (Native Daphne)
Adjacent to eastern site boundary
#33 Banksia serrata (Old Man Banksia)
Centrally located on site
#36 Cyathea australis (Tree fern)
Centrally located on site
#44 Pittosporum undulatum (Native Daphne)
Adjacent to southeast site corner
#45 Pittosporum undulatum (Native Daphne)
Adjacent to southeast site corner
#46 Angophora bakeri (Narrow leaf apple)
Adjacent to southern site boundary
#52 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
#53 Corymbia gummifera (Red Bloodwood)
Adjacent to southern site boundary
#54 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
#55 Corymbia gummifera (Red Bloodwood)
Centrally located on site
#56 Ceratopetalum gummiferum (NSW Christmas Bush)
Centrally located on site
#62 – 64 Pittosprum undulatum (Native Daphne)
Adjacent to western site boundary
#65 Eucalyptus resinifera (Red Mahogany)
Adjacent to western site boundary
#66 Pittosporum undulatum (Native Daphne)
Adjacent to western site boundary
#73 Pittosporum undulatum (Native Daphne)
Adjacent to western site boundary
#75 Eucalyptus piperita (Sydney Peppermint)
Adjacent to southwest site corner
#76 – 79 Cinnamomum camphora (Camphor laurel)
Adjacent to southwest site corner
#80 Pittosporum undulatum (Native Daphne)
Adjacent to southern site boundary
#81 Elaeocarpus reticulatus (Blueberry Ash)
Adjacent to southern site boundary
#82 Pittosporum undulatum (Native Daphne)
Adjacent to southern site boundary
#83 Corymbia gummifera (Red Bloodwood)
Adjacent to southern site boundary
#84 Allocasuarina littoralis (Black She Oak)
Adjacent to southern site boundary
#85 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
2.0m
1.5m
3.0m
2.0m
2.5m
1.5m
3.0m
3.6m
1.5m
3.0m
3.0m
3.5m
3.0m
2.5m
2.5m
5.0m
4.0m
2.0m
8.0m
5.0m
2.0m
1.5m
1.5m
5.0m
3.0m
2.0m

Reason:

To protect existing trees during the construction phase.

10. Tree protection fencing excluding structure

To preserve the following tree/s, no work shall commence until the area beneath their canopy excluding that area of the approved driveway, dwellings and swimming pools shall be fenced off for the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site except where it is necessary to remove it to carry out landscape works under this consent:

Schedule

Tree/Location Radius in metres

#6 Pittosporum undulatum (Native Daphne)
Adjacent to eastern side of access handle within neighbouring property
#9 Syzigium spp (Lillypilly)
Adjacent to western site boundary in access handle
#12 Phoenix canariensis (Canary Island Date Palm)
Adjacent to northeast site corner
#27 Eucalyptus haemastoma (Scribbly Gum)
Centrally located on site
#34 Arbutus unedo (Irish Strawberry Tree)
Adjacent to western site boundary in neighbouring property
#35 Cedrus deodar (Himalayan Cedar)
Adjacent to western site boundary
#60 Eucalyptus resinifera (Red Mahogany)
Centrally located on site
3.0m
1.5m
4.0m
7.5m
5.0m
5.5m
9.0m

Reason:

To protect existing trees during the construction phase.

11. Tree protective fencing type galvanised mesh

The tree protection fencing shall be constructed of galvanised pipe at 2.4 metre spacing and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres in height prior to work commencing.

Reason: To protect existing trees during construction phase.

12. Tree protection signage

Prior to works commencing, tree protection signage is to be attached to each tree protection zone, displayed in a prominent position and the sign repeated at 10 metres intervals or closer where the fence changes direction. Each sign shall contain in a clearly legible form, the following information:

Tree protection zone.

? This fence has been installed to prevent damage to the trees and their growing environment both above and below ground and access is restricted.

? Any encroachment not previously approved within the tree protection zone shall be the subject of an arborist's report.

? The arborist's report shall provide proof that no other alternative is available.

? The Arborist's report shall be submitted to the Principal Certifying Authority for further consultation with Council.

? The name, address, and telephone number of the developer.

Reason: To protect existing trees during the construction phase.

13. Tree protection mulching

Prior to works commencing and throughout construction, the area of the tree protection zone is to be mulched to a depth of 100mm with composted organic material being 75% Eucalyptus leaf litter and 25% wood.

Reason:

To protect existing trees during the construction phase.

14. Tree protection – avoiding soil compaction

To preserve the following tree/s and avoid soil compaction, no work shall commence until temporary measures to avoid soil compaction (eg rumble boards) beneath the canopy of the following tree/s is/are installed:

Schedule

Tree/Location

#4 Eucalyptus sclerophylla (Scribbly Gum)
Access handle
#6 Pittosporum undulatum (Native Daphne)
Adjacent to eastern side of access handle within neighbouring property
#27 Eucalyptus haemastoma (Scribbly Gum)
Centrally located on site
#60 Eucalyptus resinifera (Red Mahogany)
Centrally located on site

Reason:

To protect existing trees during the construction phase.

15. Trunk protection

To preserve the following tree/s, no work shall commence until the trunk/s are protected by the placement of 2.0 metres lengths of 50 x 100mm hardwood timbers spaced at 150mm centres and secured by 2mm wire at 300mm wide spacing over suitable protective padding material. The trunk protection shall be maintained intact until the completion of all work on site.

Any damage to the tree/s shall be treated immediately by an experienced Horticulturist/Arborist, with minimum qualification of Horticulture Certificate or Tree Surgery Certificate and a report detailing the works carried out shall be submitted to the Principal Certifying Authority:

Schedule

Tree/Location

#4 Eucalyptus sclerophylla (Scribbly Gum)
Access handle

Reason:

To protect existing trees during the construction phase.

16. Tree fencing inspection

Upon installation of the required tree protection measures, an inspection of the site by the Principal Certifying Authority is required to verify that tree protection measures comply with all relevant conditions.

Reason: To protect existing trees during the construction phase.

17. Boundary fence adjoining a reserve

A permanent, 1.5 metres high, cyclone wire boundary fence, shall be constructed along the common boundary with the Edinburgh Park prior to any work commencing.

Reason: To protect the adjoining reserve.

CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE:

18. Lot consolidation

Prior to issue of the Construction Certificate, the applicant must consolidate the existing Torrens lots which form the development site. Evidence of lot consolidation, in the form of a plan registration with the Land and Property Information, must be submitted for approval of the Principal Certifying Authority prior to issue of the Construction Certificate.

Reason: To ensure continuous structures will not be placed across separate titles.

19. Amendments to approved landscape plan

Prior to the issue of a Construction Certificate, the Principal Certifying Authority shall be satisfied that the approved landscape plans, listed below, have been amended in accordance with the requirements of this condition as well as other conditions of this consent:

Plan no. Drawn by Dated

#55.10(09)/094’C’ Sheet 2/3 iScape July 2010

The above landscape plan(s) shall be amended in the following ways:

? The following trees shall be shown to be retained; #’s 33, 35, 36, 56, 62, 63, 64, 65, 76, 78, & 79. No consent for their removal is given as part of this approval.

Prior to the issue of the Construction Certificate, the Principal Certifying Authority shall be satisfied that the landscape plan has been amended are required by this condition.

Note: An amended plan, prepared by a landscape architect or qualified landscape designer shall be submitted to the Certifying Authority.

Reason: To ensure adequate landscaping of the site.

20. Engineering plans

Prior to the issue of a Construction Certificate, the Certifying Authority shall be satisfied that the approved engineering plan(s), listed below have been amended in accordance with the requirements of this condition as well as other conditions of this consent.Plan No. Drawn By Dated

392110/ C1 – 1 Issue 2 Acor Appleyord 6/2009

392110/ C1 – 2 Issue 2 Acor Appleyord 6/2009

392110/ C1 – 3 Issue 1 Acor Appleyord 2/2009

The above engineering plan(s) shall be amended if necessary to ensure compliance with the following:

? Australian Standard 2890.1 - “Off-street car parking”.

? Ku-ring-gai Council Water Management Development Control Plan 47.

Note: Engineering plans, prepared by a qualified engineer shall be submitted to the Certifying Authority.

Reason: To ensure that the development is in accordance with the determination.

21. Long service levy

In accordance with Section 109F(i) of the Environmental Planning and Assessment Act a Construction Certificate shall not be issued until any long service levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or where such levy is payable by instalments, the first instalment of the levy) has been paid. Council is authorised to accept payment. Where payment has been made elsewhere, proof of payment is to be provided to Council.

Reason: Statutory requirement.

22. Builder’s indemnity insurance

The applicant, builder, developer or person who does the work on this development, must arrange builder’s indemnity insurance and submit the certificate of insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Certifying Authority for endorsement of the plans accompanying the Construction Certificate.

It is the responsibility of the applicant, builder or developer to arrange the builder's indemnity insurance for residential building work over the value of $12,000. The builder's indemnity insurance does not apply to commercial or industrial building work or to residential work valued at less than $12,000, nor to work undertaken by persons holding an owner/builder's permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work).

Reason: Statutory requirement.

23. External service pipes and the like prohibited

Proposed water pipes, waste pipes, stack work, duct work, mechanical ventilation plant and the like must be located within the building. Details confirming compliance with this condition must be shown on construction certificate plans and detailed with construction certificate specifications. Required external vents or vent pipes on the roof or above the eaves must be shown on construction certificate plans and detailed with construction certificate specifications. External vents or roof vent pipes must not be visible from any place unless detailed upon development consent plans. Where there is any proposal to fit external service pipes or the like this must be detailed in an amended development (S96) application and submitted to Council for determination.

Vent pipes required by Sydney Water must not be placed on the front elevation of the building or front roof elevation. The applicant, owner and builder must protect the appearance of the building from the public place and the appearance of the streetscape by elimination of all external services excluding vent pipes required by Sydney Water and those detailed upon development consent plans.

Reason: To protect the streetscape and the integrity of the approved development.

24. Stormwater management plan

Prior to issue of the Construction Certificate, the applicant must submit, for approval by the Principal Certifying Authority, scale construction plans and specifications in relation to the stormwater management and disposal system for the development. The plan(s) must include the following detail:

? exact location and reduced level of discharge point to the public drainage system

? Layout of the property drainage system components, including but not limited to (as required) gutters, downpipes, spreaders, pits, swales, kerbs, cut-off and intercepting drainage structures, subsoil drainage, flushing facilities and all ancillary stormwater plumbing - all designed for a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence)

? location(s), dimensions and specifications for the required rainwater storage and reuse tanks and systems and where proprietary products are to be used, manufacturer specifications or equivalent shall be provided

? specifications for reticulated pumping facilities (including pump type and manufacturer specifications) and ancillary plumbing to fully utilise rainwater in accordance with Ku-ring-gai Council Development Control Plan 47 and/or BASIX commitments

? details of the required on-site detention tanks required by Ku-ring-gai Water Management DCP 47, including dimensions, materials, locations, orifice and discharge control pit details as required (refer Chapter 6 and Appendices 2, 3 and 5 of DCP 47 for volume, PSD and design requirements)

? the required basement stormwater pump-out system is to cater for driveway runoff and subsoil drainage (refer appendix 7.1.1 of Development Control Plan 47 for design)

The above construction drawings and specifications are to be prepared by a qualified and experienced civil/hydraulic engineer in accordance with Council’s Water Management Development Control Plan 47, Australian Standards 3500.2 and 3500.3 - Plumbing and Drainage Code and the Building Code of Australia. The plans may be generally based on the plans referred to in condition 20 submitted with the development application, which are to be advanced as necessary for construction certificate issue purposes.

Reason: To protect the environment.

25. Stormwater retention

Prior to the issue of a Construction Certificate, the Principal Certifying Authority is to be satisfied that:

1. A mandatory rainwater retention and re-use system, comprising storage tanks and ancillary plumbing is provided. The minimum total storage volume of the rainwater tank system, and the prescribed re-use of the water on site must satisfy all relevant BASIX commitments and the requirements specified in Chapter 6 of Ku-ring-gai Water Management Development Control Plan 47; and

2. An on-site stormwater detention system must be provided to control the rate of runoff leaving the site. The minimum volume of the required on-site detention system must be determined in accordance with Chapter 6 of the Ku-ring-gai Council Water Management Development Control Plan 47 - having regard to the specified volume concession offered in lieu of installing rainwater retention tanks. The on-site detention system must be designed by a qualified civil/hydraulic engineer and must satisfy the design controls set out in Appendix 5 of DCP 47.

Reason: To protect the environment.

26. Pier and beam footings near trees

Prior to the issue of the Construction Certificate, the Principal Certifying Authority shall be satisfied that the footings of the approved driveway and dwellings will be isolated pier or pier and beam construction within the specified radius of the trunk/s of the following tree/s:

Schedule

Tree/Location Radius from trunk

#4 Eucalyptus sclerophylla (Scribbly Gum)
Access handle
#27 Eucalyptus haemastoma (Scribbly Gum)
Centrally located on site
#60 Eucalyptus resinifera (Red Mahogany)
Centrally located on site
12.5m
7.5m
9.0m

The piers shall be located such that no roots of a diameter greater than 30mm will be severed or injured during the construction period. The beam/s shall be of reinforced concrete or galvanised steel sections and placed in positions with the base of the beam being a minimum of 50mm above existing soil levels.

Note: Structural details of the pier or pier and beam construction shall be submitted to the Principal Certifying Authority.

Reason: To protect existing trees.

27. Driveway crossing levels

Prior to issue of the Construction Certificate, driveway and associated footpath levels for any new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Ku-ring-gai Council. Such levels are only able to be issued by Council under the Roads Act 1993. All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings".

Specifications are issued with alignment levels after completing the necessary application form at Customer Services and payment of the assessment fee. When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant development application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment.

This development consent is for works wholly within the property. Development consent does not imply approval of footpath or driveway levels, materials or location within the road reserve, regardless of whether this information is shown on the development application plans. The grading of such footpaths or driveways outside the property shall comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant and the required alignment levels fixed by Council may impact upon these levels.

The construction of footpaths and driveways outside the property in materials other than those approved by Council is not permitted.

Reason: To provide suitable vehicular access without disruption to pedestrian and vehicular traffic.

28. Drainage of paved areas

All new exposed impervious areas graded towards adjacent property and/or habitable areas are to be drained via the main drainage system. This may require the installation of suitable inlets pits, cut-off structures (e.g. kerb), and/or barriers that direct such runoff to the formal drainage system. Details of such measures shall be shown on the Construction Certificate drawings, to the satisfaction of the Certifying Authority.

Reason: To control surface run off and protect the environment.

29. Vehicular access and garaging

Driveways and vehicular access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard 2890.1 – 2004 “Off-Street car parking”. Details are to be provided to and approved by the Certifying Authority prior to the issue of the Construction Certificate.

Reason: To ensure that parking spaces are in accordance with the approved development.

CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE OR PRIOR TO DEMOLITION, EXCAVATION OR CONSTRUCTION (WHICHEVER COMES FIRST):

30. Infrastructure restorations fee

To ensure that damage to Council Property as a result of construction activity is rectified in a timely matter:

a) All work or activity taken in furtherance of the development the subject of this approval must be undertaken in a manner to avoid damage to Council Property and must not jeopardise the safety of any person using or occupying the adjacent public areas.

b) The applicant, builder, developer or any person acting in reliance on this approval shall be responsible for making good any damage to Council Property, and for the removal from Council Property of any waste bin, building materials, sediment, silt, or any other material or article.

c) The Infrastructure Restoration Fee must be paid to the Council by the applicant prior to both the issue of the Construction Certificate and the commencement of any earthworks or construction.

d) In consideration of payment of the Infrastructure Restorations Fee, Council will undertake such inspections of Council Property as Council considers necessary and also undertake, on behalf of the applicant, such restoration work to Council Property, if any, that Council considers necessary as a consequence of the development. The provision of such restoration work by the Council does not absolve any person of the responsibilities contained in (a) to (b) above. Restoration work to be undertaken by the Council referred to in this condition is limited to work that can be undertaken by Council at a cost of not more than the Infrastructure Restorations Fee payable pursuant to this condition.

e) In this condition:

“Council Property” includes any road, footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, letter bins, trees, shrubs, lawns, mounds, bushland, and similar structures or features on any road or public road within the meaning of the Local Government Act 1993 (NSW) or any public place; and
“Infrastructure Restoration Fee” means the Infrastructure Restorations Fee calculated in accordance with the Schedule of Fees & Charges adopted by Council as at the date of payment and the cost of any inspections required by the Council of Council Property associated with this condition.

Reason: To maintain public infrastructure.

31. Section 94 Contribution – Residential Development (New Construction)

a) A contribution pursuant to section 94 of the Environmental Planning and Assessment Act as specified in Ku-ring-gai Section 94 Contributions Plan 2004-2009 (Amendment 2) for the services detailed in column A and for the amount detailed in Column B is required.

Column A Column B

Community facilities (district) $2,001.00 3.28%

Park acquisition and embellishment works $46,889.54 76.76%

Park embellishment works $3,856.83 6.31%

Sportsgrounds works $6,846.99 11.21%

Aquatic / leisure centres $405.34 0.66%

Traffic and transport $571.87 0.94%

Section 94 Plan administration $512.65 0.84%

Total contribution is: $61,082.21

b) However, having regard to the Minister’s direction under section 94E dated 4 June 2010 the Land and Environment Court determined that the contribution is reduced to $20,000.00 (1 dwelling authorised by the consent with a credit for the existing dwelling).

c) The contribution shall be paid to Council prior to the commencement of any development (including demolition) or prior to the issue of a Construction Certificate (whichever comes first).

Reason: To ensure the provision, extension or augmentation of community facilities, recreation facilities, open space, traffic and transport, and administration that will, or are likely to be, required as a consequence of the development.

CONDITIONS TO BE SATISFIED DURING THE DEMOLITION, EXCAVATION AND CONSTRUCTION PHASES:

32. Prescribed conditions

The applicant shall comply with any relevant prescribed conditions of development consent under clause 98 of the Environmental Planning and Assessment Regulation. For the purposes of section 80A (11) of the Environmental Planning and Assessment Act, the following conditions are prescribed in relation to a development consent for development that involves any building work:

? The work must be carried out in accordance with the requirements of the Building Code of Australia

? In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force before any works commence.

Reason: Statutory requirement.

i. 33. Hours of work

Demolition, excavation, construction work and deliveries of building material and equipment must not take place outside the hours of 7.00am to 5.00pm Monday to Friday and 8.00am to 12 noon Saturday. No work and no deliveries are to take place on Sundays and public holidays.

Excavation or removal of any materials using machinery of any kind, including compressors and jack hammers, must be limited to between 7.30am and 5.00pm Monday to Friday, with a respite break of 45 minutes between 12 noon 1.00pm.

Where it is necessary for works to occur outside of these hours (ie) placement of concrete for large floor areas on large residential/commercial developments or where building processes require the use of oversized trucks and/or cranes that are restricted by the RTA from travelling during daylight hours to deliver, erect or remove machinery, tower cranes, pre-cast panels, beams, tanks or service equipment to or from the site, approval for such activities will be subject to the issue of an "outside of hours works permit" from Council as well as notification of the surrounding properties likely to be affected by the proposed works.

Note: Failure to obtain a permit to work outside of the approved hours will result in on the spot fines being issued.

Reason: To ensure reasonable standards of amenity for occupants of neighbouring properties.

34. Approved plans to be on site

A copy of all approved and certified plans, specifications and documents incorporating conditions of consent and certification (including the Construction Certificate if required for the work) shall be kept on site at all times during the demolition, excavation and construction phases and must be readily available to any officer of Council or the Principal Certifying Authority.

Reason: To ensure that the development is in accordance with the determination.

35. Site notice

A site notice shall be erected on the site prior to any work commencing and shall be displayed throughout the works period.

The site notice must:

? be prominently displayed at the boundaries of the site for the purposes of informing the public that unauthorised entry to the site is not permitted

? display project details including, but not limited to the details of the builder, Principal Certifying Authority and structural engineer

? be durable and weatherproof

? display the approved hours of work, the name of the site/project manager, the responsible managing company (if any), its address and 24 hour contact phone number for any inquiries, including construction/noise complaint are to be displayed on the site notice

? be mounted at eye level on the perimeter hoardings/fencing and is to state that unauthorised entry to the site is not permitted

Reason: To ensure public safety and public information.

36. Dust control

During excavation, demolition and construction, adequate measures shall be taken to prevent dust from affecting the amenity of the neighbourhood. The following measures must be adopted:

? physical barriers shall be erected at right angles to the prevailing wind direction or shall be placed around or over dust sources to prevent wind or activity from generating dust

? earthworks and scheduling activities shall be managed to coincide with the next stage of development to minimise the amount of time the site is left cut or exposed

? all materials shall be stored or stockpiled at the best locations

? the ground surface should be dampened slightly to prevent dust from becoming airborne but should not be wet to the extent that run-off occurs

? all vehicles carrying spoil or rubble to or from the site shall at all times be covered to prevent the escape of dust

? all equipment wheels shall be washed before exiting the site using manual or automated sprayers and drive-through washing bays

? gates shall be closed between vehicle movements and shall be fitted with shade cloth

? cleaning of footpaths and roadways shall be carried out daily

Reason: To protect the environment and amenity of surrounding properties.

37. Excavation

A contractor with specialist excavation experience must undertake the excavations for the development.

Reason: To ensure the safety and protection of property.

38. Use of road or footpath

During excavation, demolition and construction phases, no building materials, plant or the like are to be stored on the road or footpath without written approval being obtained from Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.

Reason: To ensure safety and amenity of the area.

39. Toilet facilities

During excavation, demolition and construction phases, toilet facilities are to be provided, on the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

Reason: Statutory requirement.

40. Protection of public places

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

If necessary, a hoarding is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

Any hoarding, fence or awning is to be removed when the work has been completed.

Reason: To protect public places.

41. Recycling of building material (general)

During demolition and construction, the Principal Certifying Authority shall be satisfied that building materials suitable for recycling have been forwarded to an appropriate registered business dealing in recycling of materials. Materials to be recycled must be kept in good order.

Reason: To facilitate recycling of materials.

42. Road reserve safety

All public footways and roadways fronting and adjacent to the site must be maintained in a safe condition at all times during the course of the development works. Construction materials must not be stored in the road reserve. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to any public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where pedestrian circulation is diverted on to the roadway or verge areas, clear directional signage and protective barricades must be installed in accordance with AS1742-3 (1996) “Traffic Control Devices for Work on Roads”. If pedestrian circulation is not satisfactorily maintained across the site frontage, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

Reason: To ensure safe public footways and roadways during construction.

43. Services

Where required, the adjustment or inclusion of any new utility service facilities must be carried out by the applicant and in accordance with the requirements of the relevant utility authority. These works shall be at no cost to Council. It is the applicants’ full responsibility to make contact with the relevant utility authorities to ascertain the impacts of the proposal upon utility services (including water, phone, gas and the like). Council accepts no responsibility for any matter arising from its approval to this application involving any influence upon utility services provided by another authority.

Reason: Provision of utility services.

44. Temporary disposal of stormwater runoff

During construction, stormwater runoff must be disposed of in a controlled manner that is compatible with the erosion and sediment controls on the site. Immediately upon completion of any impervious areas on the site (including roofs, driveways, paving) and where the final drainage system is incomplete, the necessary temporary drainage systems must be installed to manage and control runoff as far as the approved point of stormwater discharge. Such measures shall be to the satisfaction of the Principal Certifying Authority.

Reason: To preserve and enhance the natural environment.

45. Erosion control

Temporary sediment and erosion control and measures are to be installed prior to the commencement of any works on the site. These measures must be maintained in working order during construction works up to completion. All sediment traps must be cleared on a regular basis and after each major storm and/or as directed by the Principal Certifying Authority and Council officers.

Reason: To protect the environment from erosion and sedimentation.

46. Drainage to interallotment easement

Stormwater runoff from all new impervious areas and subsoil drainage systems shall be piped and connected to the interallotment stormwater drainage line benefiting the site. The interallotment line must be covered by the necessary easement for drainage which may exist or need to be created under this consent.

Reason: To protect the environment.

47. Grated drain at garage

A 200mm wide grated channel/trench drain, with a heavy-duty removable galvanised grate is to be provided in front of the garage door/basement parking slab to collect driveway runoff. The channel drain shall be connected to the main drainage system and must have an outlet of minimum diameter 150mm to prevent blockage by silt and debris.

Reason: Stormwater control.

48. Sydney Water Section 73 Compliance Certificate

The applicant must obtain a Section 73 Compliance Certificate under the Sydney Water Act 1994. An application must be made through an authorised Water Servicing CoOrdinator. The applicant is to refer to “Your Business” section of Sydney Water’s web site at then the “e-develop” 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.

Reason: Statutory requirement.

49. Arborist’s report

The tree/s to be retained shall be inspected, monitored and treated by a qualified Arborist during and after completion of development works to ensure their long term survival. Regular inspections and documentation from the Arborist to the Principal Certifying Authority are required at the following times or phases of work:

Schedule

Tree/Location Time of inspection

#4 Eucalyptus sclerophylla (Scribbly Gum)
Within driveway access handle
#27 Eucalyptus haemastoma (Scribbly Gum)
Centrally on site
#60 Eucalyptus resinifera (Red Mahogany)
Rear of site * Immediately prior to commencement of any works on site
* Immediately after the completion of demolition, and prior to excavation/regrading
* Immediately after the completion of excavation/regrading of site
* At four monthly intervals during construction/development works
* At the completion of all works on site.

Reason:

To ensure protection of existing trees.

50. Canopy/root pruning

Canopy and/or root pruning of the following tree/s which is necessary to accommodate the approved building works shall be undertaken by an experienced Arborist/Horticulturist, with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate. All pruning works shall be undertaken as specified in Australian Standard 4373-2007 – Pruning of Amenity Trees.

Schedule

Tree/Location Tree works

#12 Phoenix canariensis (Canary Island Date Palm)
Adjacent to northeast site corner
#27 Eucalyptus haemastoma (Scribbly Gum)
Centrally located on site
#60 Eucalyptus resinifera (Red Mahogany)
Centrally located on site
Root pruning/Canopy lifting as required.
Root pruning and selective pruning of canopy
Canopy pruning of spatially conflicting limbs only

Reason:

To protect the environment.

51. Treatment of tree roots

If tree roots are required to be severed for the purposes of constructing the approved works, they shall be cut cleanly by hand, by an experienced Arborist/Horticulturist with a minimum qualification of Horticulture Certificate or Tree Surgery Certificate. All pruning works shall be undertaken as specified in Australian Standard 4373-2007 – Pruning of Amenity Trees.

Reason: To protect existing trees.

52. Cutting of tree roots

No tree roots of 30mm or greater in diameter located within the specified radius of the trunk/s of the following tree/s shall be severed or injured in the process of any works during the construction period. All pruning works shall be undertaken as specified in Australian Standard 4373-2007 – Pruning of Amenity Trees:

Schedule

Tree/Location Radius from trunk

#4 Eucalyptus sclerophylla (Scribbly Gum)
Access handle
#6 Pittosporum undulatum (Native Daphne)
Adjacent to eastern side of access handle within neighbouring property
#8 Syragus romanzoffianum (Coccos Palm)
Adjacent to northern site boundary in neighbouring property
#9 Syzigium spp (Lillypilly)
Adjacent to western site boundary in access handle
#12 Phoenix canariensis (Canary Island Date Palm)
Adjacent to northeast site corner
#21 Camellia japonica (Japanese Camellia)
Adjacent to eastern site boundary
#22 Camellia sasanqua (Chinese Camellia)
Adjacent to eastern site boundary
#23 – 25 Acer palmatum (Japanese Maple)
Adjacent to eastern site boundary
#27 Eucalyptus haemastoma (Scribbly Gum)
Centrally located on site
#29 Pittosporum undulatum (Native Daphne)
Adjacent to eastern site boundary
#33 Banksia serrata (Old Man Banksia)
Centrally located on site
#34 Arbutus unedo (Irish Strawberry Tree)
Adjacent to western site boundary in neighbouring property
#35 Cedrus deodar (Himalayan Cedar)
Adjacent to western site boundary
#36 Cyathea australis (Tree fern)
Centrally located on site
#44 Pittosporum undulatum (Native Daphne)
Adjacent to southeast site corner
#45 Pittosporum undulatum (Native Daphne)
Adjacent to southeast site corner
#46 Angophora bakeri (Narrow leaf apple)
Adjacent to southern site boundary
#52 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
#53 Corymbia gummifera (Red Bloodwood)
Adjacent to southern site boundary
#54 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
#55 Corymbia gummifera (Red Bloodwood)
Centrally located on site
#56 Ceratopetalum gummiferum (NSW Christmas Bush)
Centrally located on site
#60 Eucalyptus resinifera (Red Mahogany)
Centrally located on site
#62 – 64 Pittosprum undulatum (Native Daphne)
Adjacent to western site boundary
#65 Eucalyptus resinifera (Red Mahogany)
Adjacent to western site boundary
#66 Pittosporum undulatum (Native Daphne)
Adjacent to western site boundary
#73 Pittosporum undulatum (Native Daphne)
Adjacent to western site boundary
#75 Eucalyptus piperita (Sydney Peppermint)
Adjacent to southwest site corner
#76 – 79 Cinnamomum camphora (Camphor laurel)
Adjacent to southwest site corner
#80 Pittosporum undulatum (Native Daphne)
Adjacent to southern site boundary
#81 Elaeocarpus reticulatus (Blueberry Ash)
Adjacent to southern site boundary
#82 Pittosporum undulatum (Native Daphne)
Adjacent to southern site boundary
#83 Corymbia gummifera (Red Bloodwood)
Adjacent to southern site boundary
#84 Allocasuarina littoralis (Black She Oak)
Adjacent to southern site boundary
#85 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
12.5m
3.0m
2.0m
1.5m
4.0m
2.0m
1.5m
3.0m
7.5m
2.0m
2.5m
5.0m
5.5m
1.5m
3.0m
3.6m
1.5m
3.0m
3.0m
3.5m
3.0m
2.5m
9.0m
2.5m
5.0m
4.0m
2.0m
8.0m
5.0m
2.0m
1.5m
1.5m
5.0m
3.0m
2.0m

Reason:

To protect existing trees.

53. Approved tree works

Approval is given for the following works to be undertaken to trees on the site:

Schedule

Tree/Location Approved tree works

#2 Pinus patula (Mexican Pine)
Driveway access handle
#3 Ulmus parvifolia (Chinese Elm)
Driveway access handle
#5 Camellia sasanqua
#10 Camellia sasanqua (Chinese Camellia)
Adjacent to northern site boundary
#11 Cupressocyparis ‘Leylandii’
Adjacent to northern site boundary
#13 – 15 Cuppressocyparis ‘Leylandii’
Adjacent to eastern site boundary (Shown retained on L/Plan)
#16 Jacaranda mimosifolia (Jacaranda)
Adjacent to driveway
#17 Acer palmatum (Japanese Maple)
Adjacent to western site boundary
#18 Ulmus glabra (Scotch Elm)
Adjacent to western site boundary
#19 Acer palmatum (Japanese Maple)
Within building footprint
#20 Camellia sasanqua (Chinese Camellia)
Within building footprint
#26 Acer negundo (Box Elder)
Adjacent to eastern site boundary
#30 Grevillea robusta (Silky Oak)
Adjacent to eastern site boundary
#31 Grevillea robusta (Silky Oak)
Adjacent to eastern site boundary
#32 Archontophoenix cunninghamii (Bangalow Palm)
Within building footprint
#37 Melaleuca linarifolia (Snow in Sumer)
Within building footprint
#38 Pittosporum undulatum (Native Daphne)
Within building footprint
#39 Eucalyptus resinifera (Red Mahogany)
Adjacent to eastern site boundary
#40 Eucalyptus resinifera (Red Mahogany)
Adjacent to eastern site boundary
#41 Pittosporum undulatum (Native Daphne)
Adjacent to eastern site boundary
#43 Pittosporum undulatum (Native Daphne)
Adjacent to southeast site corner
#57 Eucalyptus resinifera (Red Mahogany)
Centrally located on site
#58 Pittosporum undulatum (Native Daphne)
Centrally located on site
#59 Eucalyptus resinifera (Red Mahogany)
Centrally located on site
#61 Pittosporum undulatum (Native Daphne)
Centrally located on site
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal
Removal

Removal or pruning of any other tree on the site is not approved, excluding species exempt under Council’s Tree Preservation Order.

Reason: To ensure that the development is in accordance with the determination.

54. Hand excavation

All excavation within the specified radius of the trunk/s of the following tree/s shall be hand dug:

Schedule

Tree/Location Radius from trunk

#4 Eucalyptus sclerophylla (Scribbly Gum)
Access handle
#6 Pittosporum undulatum (Native Daphne)
Adjacent to eastern side of access handle within neighbouring property
#8 Syragus romanzoffianum (Coccos Palm)
Adjacent to northern site boundary in neighbouring property
#9 Syzigium spp (Lillypilly)
Adjacent to western site boundary in access handle
#12 Phoenix canariensis (Canary Island Date Palm)
Adjacent to northeast site corner
#21 Camellia japonica (Japanese Camellia)
Adjacent to eastern site boundary
#22 Camellia sasanqua (Chinese Camellia)
Adjacent to eastern site boundary
#23 – 25 Acer palmatum (Japanese Maple)
Adjacent to eastern site boundary
#27 Eucalyptus haemastoma (Scribbly Gum)
Centrally located on site
#29 Pittosporum undulatum (Native Daphne)
Adjacent to eastern site boundary
#33 Banksia serrata (Old Man Banksia)
Centrally located on site
#34 Arbutus unedo (Irish Strawberry Tree)
Adjacent to western site boundary in neighbouring property
#35 Cedrus deodar (Himalayan Cedar)
Adjacent to western site boundary
#36 Cyathea australis (Tree fern)
Centrally located on site
#44 Pittosporum undulatum (Native Daphne)
Adjacent to southeast site corner
#45 Pittosporum undulatum (Native Daphne)
Adjacent to southeast site corner
#46 Angophora bakeri (Narrow leaf apple)
Adjacent to southern site boundary
#52 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
#53 Corymbia gummifera (Red Bloodwood)
Adjacent to southern site boundary
#54 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
#55 Corymbia gummifera (Red Bloodwood)
Centrally located on site
#56 Ceratopetalum gummiferum (NSW Christmas Bush)
Centrally located on site
#60 Eucalyptus resinifera (Red Mahogany)
Centrally located on site
#62 – 64 Pittosprum undulatum (Native Daphne)
Adjacent to western site boundary
#65 Eucalyptus resinifera (Red Mahogany)
Adjacent to western site boundary
#66 Pittosporum undulatum (Native Daphne)
Adjacent to western site boundary
#73 Pittosporum undulatum (Native Daphne)
Adjacent to western site boundary
#75 Eucalyptus piperita (Sydney Peppermint)
Adjacent to southwest site corner
#76 – 79 Cinnamomum camphora (Camphor laurel)
Adjacent to southwest site corner
#80 Pittosporum undulatum (Native Daphne)
Adjacent to southern site boundary
#81 Elaeocarpus reticulatus (Blueberry Ash)
Adjacent to southern site boundary
#82 Pittosporum undulatum (Native Daphne)
Adjacent to southern site boundary
#83 Corymbia gummifera (Red Bloodwood)
Adjacent to southern site boundary
#84 Allocasuarina littoralis (Black She Oak)
Adjacent to southern site boundary
#85 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
12.5m
3.0m
2.0m
1.5m
2.0m on SW side
4.0m elsewhere
2.0m
1.5m
3.0m
5.0m on western side
7.5m elsewhere
2.0m
2.5m
5.0m
4.0m on northern side
5.5m elsewhere
1.5m
3.0m
3.6m
1.5m
3.0m
3.0m
3.5m
3.0m
2.5m
6.0m on northern side
9.0m elsewhere
2.5m
5.0m
4.0m
2.0m
8.0m
5.0m
2.0m
1.5m
1.5m
5.0m
3.0m
2.0m

Reason:

To protect existing trees.

55. Thrust boring

Excavation for the installation of any services within the specified radius of the trunk/s of the following tree/s shall utilise the thrust boring method. Thrust boring shall be carried out at least 600mm beneath natural ground level to minimise damage to tree/s root system:

Schedule

Tree/Location Radius from trunk

#4 Eucalyptus sclerophylla (Scribbly Gum)
Access handle
#6 Pittosporum undulatum (Native Daphne)
Adjacent to eastern side of access handle within neighbouring property
#27 Eucalyptus haemastoma (Scribbly Gum)
Centrally located on site
#33 Banksia serrata (Old Man Banksia)
Centrally located on site
#34 Arbutus unedo (Irish Strawberry Tree)
Adjacent to western site boundary in neighbouring property
#35 Cedrus deodar (Himalayan Cedar)
Adjacent to western site boundary
#44 Pittosporum undulatum (Native Daphne)
Adjacent to southeast site corner
#45 Pittosporum undulatum (Native Daphne)
Adjacent to southeast site corner
#46 Angophora bakeri (Narrow leaf apple)
Adjacent to southern site boundary
#52 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
#53 Corymbia gummifera (Red Bloodwood)
Adjacent to southern site boundary
#54 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
#55 Corymbia gummifera (Red Bloodwood)
Centrally located on site
#56 Ceratopetalum gummiferum (NSW Christmas Bush)
Centrally located on site
#60 Eucalyptus resinifera (Red Mahogany)
Centrally located on site
#66 Pittosporum undulatum (Native Daphne)
Adjacent to western site boundary
#73 Pittosporum undulatum (Native Daphne)
Adjacent to western site boundary
#75 Eucalyptus piperita (Sydney Peppermint)
Adjacent to southwest site corner
#80 Pittosporum undulatum (Native Daphne)
Adjacent to southern site boundary
#81 Elaeocarpus reticulatus (Blueberry Ash)
Adjacent to southern site boundary
#82 Pittosporum undulatum (Native Daphne)
Adjacent to southern site boundary
#83 Corymbia gummifera (Red Bloodwood)
Adjacent to southern site boundary
#84 Allocasuarina littoralis (Black She Oak)
Adjacent to southern site boundary
#85 Eucalyptus resinifera (Red Mahogany)
Adjacent to southern site boundary
12.5m
3.0m
7.5m
2.5m
5.0m
5.5m
3.0m
3.6m
1.5m
3.0m
3.0m
3.5m
3.0m
2.5m
9.0m
4.0m
2.0m
8.0m
2.0m
1.5m
1.5m
5.0m
3.0m
2.0m

Reason:

To protect existing trees.

56. No storage of materials beneath trees

No activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order at any time.

Reason: To protect existing trees.

57. Removal of refuse

All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works.

Reason: To protect the environment.

58. Canopy replenishment trees to be planted

The canopy replenishment trees to be planted shall be maintained in a healthy and vigorous condition until they attain a height of 5.0 metres whereby they will be protected by Council’s Tree Preservation Order. Any of the trees found faulty, damaged, dying or dead shall be replaced with the same species.

Reason: To maintain the treed character of the area.

CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE:

Works in Council reserve completed.

59. Compliance with BASIX Certificate

Prior to the issue of an Occupation Certificate, the Principal Certifying Authority shall be satisfied that all commitments listed in BASIX Certificate Nos. 231383S-02 and 231364S-02 have been complied with.

Reason: Statutory requirement.

60. Completion of landscape works

Prior to the release of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that all landscape works, including the removal of all noxious and/or environmental weed species, have been undertaken in accordance with the approved plan(s) and conditions of consent.

Reason: To ensure that the landscape works are consistent with the development consent.

61. Retention and re-use positive covenant

Prior to issue of the Occupation Certificate, the applicant must create a positive covenant and restriction on the use of land under Section 88E of the Conveyancing Act 1919, burdening the property with the requirement to maintain the site stormwater retention and re-use facilities on the property.

The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instruments for protection of retention and re-use facilities" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Water Management Development Control Plan No. 47). For existing titles, the positive covenant and the restriction on the use of land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the reuse and retention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms.

Registered title documents showing the covenants and restrictions must be submitted to and approved by the Principal Certifying Authority prior to issue of an Occupation Certificate.

Reason: To protect the environment.

62. Provision of copy of OSD designs if Council is not the PCA

Prior to issue of the Occupation Certificate, the following must be provided to Council’s Development Engineer:

? a copy of the approved Construction Certificate stormwater detention/retention design for the site

? A copy of any works-as-executed drawings required by this consent

? The Engineer’s certification of the as-built system.

Reason: For Council to maintain its database of as-constructed on-site stormwater detention systems.

63. Certification of drainage works (dual occupancies and above)

Prior to issue of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that:

? the stormwater drainage works have been satisfactorily completed in accordance with the approved Construction Certificate drainage plans

? the minimum retention and on-site detention storage volume requirements of BASIX and Ku-ring-gai Water Management Development Control Plan No. 47 respectively, have been achieved

? retained water is connected and available for use

? basement and subsoil areas are able to drain via a pump/sump system installed in accordance with AS3500.3 and Appendix 7.1.1 of Ku-ring-gai Water Management Development Control Plan No. 47

? all grates potentially accessible by children are secured

? components of the new drainage system have been installed by a licensed plumbing contractor in accordance with the Plumbing and Drainage Code AS3500.3 2003 and the Building Code of Australia

? all enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices

The rainwater certification sheet contained in Appendix 13 of the Ku-ring-gai Water Management Development Control Plan No. 47, must be completed and attached to the certification. Where an on-site detention system has been constructed, the on-site detention certification sheet contained in Appendix 4 of DCP 47 must also be completed and attached to the certification.

Note: Evidence from a qualified and experienced consulting civil/hydraulic engineer documenting compliance with the above is to be provided to Council prior to the issue of an Occupation Certificate.

Reason: To protect the environment.

64. OSD positive covenant/restriction

Prior to issue of the Occupation Certificate, the applicant must create a positive covenant and restriction on the use of land under Section 88E of the Conveyancing Act 1919, burdening the owner with the requirement to maintain the on-site stormwater detention facilities on the lot.

The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site detention facilities" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Council Water Management DCP 47). For existing titles, the positive covenant and the restriction on the use of land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the on-site detention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms.

Registered title documents, showing the covenants and restrictions, must be submitted and approved by the Principal Certifying Authority prior to issue of an Occupation Certificate.

Reason: To protect the environment.

65. Easement drainage line construction

Prior to issue of the Occupation Certificate, the Principal Certifying Authority shall be satisfied that the required interallotment drainage system has been installed and surveyed under the supervision of a designing engineer or equivalent professional.

At the completion of the interallotment works, the following must be submitted to the Principal Certifying Authority for approval:

? details from the supervising engineer that that the as-constructed works comply with the approved interallotment design documentation
? a full works as executed drawing of the as built interallotment drainage line (dimensions, grades, materials, invert levels) prepared by a registered surveyor or suitably qualified engineer, and details from that professional that all drainage structures are wholly contained within existing drainage easement(s)

Reason:

To protect the environment.

66 Sydney Water Section 73 Compliance Certificate

Prior to issue of an Occupation Certificate the Section 73 Sydney water Compliance Certificate must be obtained and submitted to the Principal Certifying Authority

Reason: Statutory requirement.

67. Reinstatement of redundant crossings and completion of infrastructure works

Prior to issue of the Occupation Certificate, the Principal Certifying Authority must be satisfied that the following works in the road reserve have been completed:

? new concrete driveway crossing in accordance with levels and specifications issued by Council

? removal of all redundant driveway crossings and kerb laybacks (or sections thereof) and reinstatement of these areas to footpath, turfed verge and upright kerb and gutter (reinstatement works to match surrounding adjacent infrastructure with respect to integration of levels and materials)

Reason: To maintain the treed character of the area.

CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE:

55. Works in Public Reserve

Prior to issue of the Occupation Certificate, the Principal Certifying Authority must be satisfied that all approved civil works have been completed within the rear Edenborough Park in accordance with the Council approval and accompanying drawings, conditions and specifications (refer Deferred Commencement Approved plans).

The works must be supervised by the applicant’s designing engineer and completed and approved to the satisfaction of Ku-ring-gai Council.

The supervising consulting engineer is to provide certification upon completion that the works were constructed in accordance with the Council approved drawings.

Reason: To ensure that works undertaken in Edenborough Park are to the satisfaction of Council.

56. Compliance with BASIX Certificate

Prior to the issue of an Occupation Certificate, the Principal Certifying Authority shall be satisfied that all commitments listed in BASIX Certificate No. 231384S-02 have been complied with.

Reason: Statutory requirement.

57. Completion of landscape works

Prior to the release of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that all landscape works, including the removal of all noxious and/or environmental weed species, have been undertaken in accordance with the approved plan(s) and conditions of consent.

Reason: To ensure that the landscape works are consistent with the development consent.

58. Retention and re-use positive covenant

Prior to issue of the Occupation Certificate, the applicant must create a positive covenant and restriction on the use of land under Section 88E of the Conveyancing Act 1919, burdening the property with the requirement to maintain the site stormwater retention and re-use facilities on the property.

The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instruments for protection of retention and re-use facilities" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Water Management Development Control Plan No. 47). For existing titles, the positive covenant and the restriction on the use of land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the reuse and retention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms.

Registered title documents showing the covenants and restrictions must be submitted to and approved by the Principal Certifying Authority prior to issue of an Occupation Certificate.

Reason: To protect the environment.

59. Provision of copy of OSD designs if Council is not the PCA

Prior to issue of the Occupation Certificate, the following must be provided to Council’s Development Engineer:

? a copy of the approved Construction Certificate stormwater detention/retention design for the site

? A copy of any works-as-executed drawings required by this consent

? The Engineer’s certification of the as-built system.

Reason: For Council to maintain its database of as-constructed on-site stormwater detention systems.

60. Certification of drainage works (dual occupancies and above)

Prior to issue of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that:

? the stormwater drainage works have been satisfactorily completed in accordance with the approved Construction Certificate drainage plans

? the minimum retention and on-site detention storage volume requirements of BASIX and Ku-ring-gai Water Management Development Control Plan No. 47 respectively, have been achieved

? retained water is connected and available for uses specified in the BASIX commitments.

? subsoil areas are able to drain via a sump system installed in accordance with AS3500.3

? all grates potentially accessible by children are secured

? components of the new drainage system have been installed by a licensed plumbing contractor in accordance with the Plumbing and Drainage Code AS3500.3 2003 and the Building Code of Australia

? all enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices

The rainwater certification sheet contained in Appendix 13 of the Ku-ring-gai Water Management Development Control Plan No. 47, must be completed and attached to the certification. Where an on-site detention system has been constructed, the on-site detention certification sheet contained in Appendix 4 of DCP 47 must also be completed and attached to the certification.

Note: Evidence from a qualified and experienced consulting civil/hydraulic engineer documenting compliance with the above is to be provided to Council prior to the issue of an Occupation Certificate.

Reason: To protect the environment.

61. OSD positive covenant/restriction

Prior to issue of the Occupation Certificate, the applicant must create a positive covenant and restriction on the use of land under Section 88E of the Conveyancing Act 1919, burdening the owner with the requirement to maintain the on-site stormwater detention facilities on the lot.

The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site detention facilities" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Council Water Management DCP 47). For existing titles, the positive covenant and the restriction on the use of land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the on-site detention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms.

Registered title documents, showing the covenants and restrictions, must be submitted and approved by the Principal Certifying Authority prior to issue of an Occupation Certificate.

Reason: To protect the environment.

62. Easement drainage line construction

Prior to issue of the Occupation Certificate, the Principal Certifying Authority shall be satisfied that the required upgraded interallotment drainage system has been installed and surveyed under the supervision of a designing engineer or equivalent professional.

Note: At the completion of the interallotment works, the following must be submitted to the Principal Certifying Authority for approval:

details from the supervising engineer that that the as-constructed works comply with the approved interallotment design documentation
a full works as executed drawing of the as built interallotment drainage line (dimensions, grades, materials, invert levels) prepared by a registered surveyor or suitably qualified engineer, and details from that professional that all drainage structures are wholly contained within existing drainage easement(s)

Reason:

To protect the environment.

63. Sydney Water Section 73 Compliance Certificate

Prior to issue of an Occupation Certificate the Section 73 Sydney water Compliance Certificate must be obtained and submitted to the Principal Certifying Authority.

Reason: Statutory requirement.

64. Reinstatement of redundant crossings and completion of infrastructure works

Prior to issue of the Occupation Certificate, the Principal Certifying Authority must be satisfied that the following works in the road reserve have been completed:

? new concrete driveway crossing in accordance with levels and specifications issued by Council

? removal of all redundant driveway crossings and kerb laybacks (or sections thereof) and reinstatement of these areas to footpath, turfed verge and upright kerb and gutter (reinstatement works to match surrounding adjacent infrastructure with respect to integration of levels and materials)

? full repair and resealing of any road surface damaged during construction

? full replacement of damaged sections of grass verge with a native variety to match existing

All works must be completed in accordance with the General Specification for the Construction of Road and Drainage Works in Ku-ring-gai Council, dated November 2004. The Occupation Certificate must not be issued until all damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) is fully repaired to the satisfaction of Council. Repair works shall be at no cost to Council.

Reason: To protect the streetscape.

CONDITIONS TO BE SATISFIED AT ALL TIMES:

65. Bush Fire Protection

The recommendations made in part 9.0 of The Bushfire hazard Assessment Report prepared by Building code and Bushfire Hazard Solutions Pty Ltd. dated 24 August, 2009 and referenced no. 80320 shall be carried out to the satisfaction of the Principal Certifying Authority.

Reason: Bush Fire Safety.

66. Encroachment over burdens

At all times for the life of the approved development, no part of any structure shall encroach over any easement and no loadings shall be imposed to utilities within any easement unless approved by the owner(s) appurtenant to the burden.

This development consent does not set aside or affect in any way the exercise of any rights-at-law which may be conferred upon any parties by the existence and/or terms of the grant of any easements or rights-of-carriageway on or over the subject lot(s). It is the applicant’s full responsibility to ensure that any rights-at-law are investigated and upheld. Council accepts no responsibility whatsoever, at any time, for any claim for any matter or thing arising from its approval to this application involving any encroachment or other influence upon any easement or right-of-carriageway.

The applicant’s attention is directed to the rights of persons benefited by any easement or right-of-carriageway concerning the entry and breaking up of a structure approved by this consent. In the event that such a structure causes damage, blockage or other thing requiring maintenance to infrastructure within the easement or right-of-carriageway, or access is required to carry out maintenance, Council accepts no responsibility in this regard.

Reason: To ensure compliance with the development consent.

______________________

KU-RING-GAI COUNCIL ATS DEVENISH – MEARES

10A IVEY STREET LINDFIELD NSW 2070

LAND AND ENVIRONMENT COURTPROCEEDINGS NO. 10203 OF 2010

ANNEXURE D

The conditions of consent are as follows:

CONDITIONS THAT IDENTIFY APPROVED PLANS:

1. Approved architectural plans and documentation (new development)

The development must be carried out in accordance with the following plans and documentation listed below and endorsed with Council’s stamp, except where amended by other conditions of this consent:

Plan no. Drawn by Dated

965-ST04 sheet 1 rev A Waldmann + Parker Dec 2009

Reason:

To ensure that the development is in accordance with the determination.

1A. This consent shall be read in conjunction with the Development Applications and consents granted for the subject site, numbered DA0580/09, DA0582/09 and DA0583/09.

2. Inconsistency between documents

In the event of any inconsistency between conditions of this consent and the drawings/documents referred to above, the conditions of this consent prevail.

Reason: To ensure that the development is in accordance with the determination.

3. Deleted, required by DA0580/09

4. Deleted, required by DA0580/09

CONDITIONS TO BE SATISFIED DURING THE DEMOLITION, EXCAVATION AND CONSTRUCTION PHASES:

5. Prescribed conditions

The applicant shall comply with any relevant prescribed conditions of development consent under clause 98 of the Environmental Planning and Assessment Regulation. For the purposes of section 80A (11) of the Environmental Planning and Assessment Act, the following conditions are prescribed in relation to a development consent for development that involves any building work:

? The work must be carried out in accordance with the requirements of the Building Code of Australia

? In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force before any works commence.

Reason: Statutory requirement.

iv. 6. Hours of work

Demolition, excavation, construction work and deliveries of building material and equipment must not take place outside the hours of 7.00am to 5.00pm Monday to Friday and 8.00am to 12 noon Saturday. No work and no deliveries are to take place on Sundays and public holidays.

Excavation or removal of any materials using machinery of any kind, including compressors and jack hammers, must be limited to between 7.30am and 5.00pm Monday to Friday, with a respite break of 45 minutes between 12 noon 1.00pm.

Where it is necessary for works to occur outside of these hours (ie) placement of concrete for large floor areas on large residential/commercial developments or where building processes require the use of oversized trucks and/or cranes that are restricted by the RTA from travelling during daylight hours to deliver, erect or remove machinery, tower cranes, pre-cast panels, beams, tanks or service equipment to or from the site, approval for such activities will be subject to the issue of an "outside of hours works permit" from Council as well as notification of the surrounding properties likely to be affected by the proposed works.

Note: Failure to obtain a permit to work outside of the approved hours will result in on the spot fines being issued.

Reason: To ensure reasonable standards of amenity for occupants of neighbouring properties.

7. Approved plans to be on site

A copy of all approved and certified plans, specifications and documents incorporating conditions of consent and certification (including the Construction Certificate if required for the work) shall be kept on site at all times during the demolition, excavation and construction phases and must be readily available to any officer of Council or the Principal Certifying Authority.

Reason: To ensure that the development is in accordance with the determination.

CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE:

8. Interallotment Drainage Easement

Creation of suitable drainage easements with minimum widths in accordance with Council’s Water DCP47 over all of the inter-allotment and Council drainage systems.

Reason: To ensure future maintenance access

9. OSD positive covenant

The applicant shall create a positive covenant and restriction on the use of land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the on-site stormwater detention facilities on site. The terms of the instruments are to be generally in accordance with the Council's "terms of Section 88B instrument for protection of on-site detention facilities" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Water Management Development Control Plan No. 47). The location of the on-site detention facilities for all dwellings is to be noted on the final plan of subdivision.

Reason: To ensure maintenance of on site stormwater detention facilities.

10. Retention and re-use positive covenant

The applicant shall create a positive covenant and restriction on the use of land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the site retention and re-use facilities. The terms of the instruments are to be generally in accordance with the Council's "terms of Section 88B instrument for protection of on-site retention facilities" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Water Management Development Control Plan No. 47). The location of the on-site retention facilities for all dwellings is to be noted on the final plan of subdivision.

Reason: To ensure maintenance of site retention and re-use facilities.

11. Sydney Water Section 73 Compliance Certificate

Prior to release of the linen plan/issue of the subdivision certificate, the Section 73 Sydney Water compliance certificate which refers to the subdivision application must be obtained and submitted to the Council.

Reason: Statutory requirement.

12. Reinstatement of crossings

Prior to issue of the Subdivision Certificate, the principal Certifying Authority is to be satisfied that following works have been completed:

? construction of the new driveway crossing and layback in accordance with the levels and specifications issued by Council

? removal of all redundant driveway crossings, pipe crossing and/or kerb laybacks. Full reinstatement of these sections to footway, and/or turfed verge and/or kerb and gutter to the satisfaction of Council

? reinstatement works match surrounding adjacent infrastructure with respect to marrying of levels and materials

? any sections of damaged grass verge are to be replaced with a native variety to match existing

? any damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) has been repaired to the satisfaction of Council and at no cost to Council

Reason: To protect public infrastructure and the streetscape.

13. Issue of Subdivision Certificate

The Subdivision Certificate must not be issued until all conditions of development consents DA0580/09, DA0582/09 and DA0583/09 have been satisfied and Occupation Certificates/Subdivision Certificates (as the case may be) have been issued by the Principal Certifying Authority.

Reason: To ensure that the development is completed prior to transfer of responsibility for the site and development to another person.

14. Submission of 88b instrument

Prior to the issue of the Subdivision Certificate, the applicant must submit an original instrument under Section 88B of the Conveyancing Act with the plan of subdivision, plus 5 copies to Council. Ku-ring-gai Council must be named as the authority whose consent is required to release, vary or modify the burdens.

Reason: To create all required easements, rights-of-carriageway, positive covenants, restrictions-on-use or other burdens/benefits as may be required.

15. Submission of plans of subdivision (Torrens Title)

For endorsement of the subdivision certificate, the applicant shall submit an original plan of subdivision plus 6 copies, suitable for endorsement by Council. The following details must be submitted with the plan of subdivision and its copies:

a) the endorsement fee current a the time of lodgement

b) the 88B instrument plus 5 copies

c) a copy of the Occupation Certificate issued for DA 583/09

d) all surveyor’s and/or consulting engineers’ certification(s) required under this subdivision consent

e) The Section 73 (Sydney Water) Compliance Certificate for the subdivision.

f) Proof of payment of S94 contribution

Council will check the consent conditions on the subdivision. Failure to submit the required information will delay endorsement of the linen plan and may require payment of rechecking fees. Plans and copies of subdivision must not be folded. Council will not accept bonds in lieu of completing subdivision works.

Reason: Statutory requirement.

16. General easement/R.O.W. provision and certification

Prior to issue of the Subdivision Certificate, a registered surveyor is to provide details to Council that all physical structures are fully contained within the proposed allotments or will be fully covered by the proposed burdens upon registration of the final plan of subdivision. Alternatively, where the surveyor is of the opinion that creation of burdens and benefits is not required, then proof to this effect must be submitted to the Principal Certifying Authority.

Reason: To ensure that all physical structures are fully contained within the proposed allotments or will be fully covered by the proposed burdens upon registration of the final plan of subdivision.

______________________

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Citations

Devenish-Meares v Ku-ring-gai Council (No 2) [2010] NSWLEC 1219

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

2

Pavlovski v Ku-ring-gai Council [2010] NSWLEC 1197

CITATION:	Devenish-Meares v Ku-ring-gai Council (No 2) [2010] NSWLEC 1219
PARTIES:	APPLICANTS Mrs S Devenish-Meares Mr S Devenish-Meares RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10198; 10199; 10200; 10203 of 2010
CORAM:	Fakes C
KEY ISSUES:	DEVELOPMENT APPLICATION - SUBDIVISION :- whether Court bound by direction of Minister under s 94E for s 94 contribution - whether credit should be given for existing dwelling
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979
CASES CITED:	Rose Consulting Group v Baulkham Hills Shire Council [2003] NSWCA Pavlovski v Ku-ring-gai Council [2010] NSWLEC 1197
DATES OF HEARING:	16/06/2010, 04/08/2010
DATE OF JUDGMENT:	13 August 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr J Hones, solicitor SOLICITORS Hones La Hood RESPONDENT Mr A Hudson, solicitor SOLICITORS Wilshire Webb Staunton Beattie Lawyers

Plan no.	Drawn by	Dated
965-DA01sheet 8 revD 965-08-ST01 sheet 2 rev D 965-08-ST01 sheet 3 rev D 965-08-ST01 sheet 5 rev A 965-08-ST01 sheet 6 rev A	Waldman and Parker	24/06/10 Dec 2009

Document(s)	Dated
Colours and finishes schedules	received by Council 8/09/09
Basix Certificates Nos.231383S-02 and 231364S-02	1 September,2009

Plan no.	Drawn by	Dated
#55.10(09)/094’C’ Sheet 2/3	iScape	July 2010

Schedule
Tree/Location
#4 Eucalyptus sclerophylla (Scribbly Gum) Access handle

Column A	Column B
Community facilities (district)	$2,001.00 3.28%
Park acquisition and embellishment works	$46,889.54 76.76%
Park embellishment works	$3,856.83 6.31%
Sportsgrounds works	$6,846.99 11.21%
Aquatic / leisure centres	$405.34 0.66%
Traffic and transport	$571.87 0.94%
Section 94 Plan administration	$512.65 0.84%
Total contribution is:	$61,082.21