Dixon Andrews Architects Pty Ltd v Mosman Council - [2013] NSWLEC 1073

Land and Environment Court

New South Wales

Medium Neutral Citation: Dixon Andrews Architects Pty Ltd v Mosman Council [2013] NSWLEC 1073
Hearing dates: 22-23 April 2013
Decision date: 30 April 2013
Jurisdiction: Class 1
Before: Morris C
Decision:
Appeal upheld in part

Catchwords: Modification of consent, side setbacks
Legislation Cited: Land and Environment Court Act 1979
Mosman Local Environmental Plan 2012
Environmental Planning and Assessment Act 1979
Texts Cited: Mosman Council Residential Development Control Plan
Category: Principal judgment
Parties:
Dixon Andrew Architects Pty Ltd (Applicant)
Mosman Council (Respondent)
Representation:
Mr P Rigg (Applicant)
Ms J Walsh (Respondent)

File Number(s): 10088 of 2013 10089 of 2013

Judgment

Dixon Andrews Architects Pty Ltd obtained two deferred commencement development consent from Mosman Council for demolition and the construction of semi detached dwelling houses on two adjoining allotments of land. The deferred commencement conditions were unsatisfactory to the applicant and two separate appeals were lodged. The parties agreed that the appeals be heard concurrently. Matter No 10088 of 2013 relates to No 61 Muston Street, Mosman and Matter No 10089 of 2013 to No 61A Muston Street.

The matters commenced as a conciliation conference under s34AA of the Land and Environment Court Act 1979 (LEC Act) and a number of the contentions were resolved. One matter remained in dispute and the conference was terminated. A hearing was held immediately with evidence heard on the remaining contention, which is whether the setback from the side boundaries of the lots is adequate in the area of the kitchens of each dwelling.

The site and the locality

The site of the proposed development currently contains one dwelling house however the land comprised two adjoining allotments, Lot 2 in DP 134729, being the northern allotment which is known as No 61 Muston Street and Lot 3 in DP 922261, No 61A Muston Street. Consent for a boundary adjustment has been granted which would result in two equally sized allotments. It is these allotments to which the application relates. Those lots have a frontage to Muston Street of 7.62mm, depth of 40.23m and site area of 306.55sqm. Redan Lane provides vehicular access to the rear of the site however is not currently utilised by the existing dwelling as it has a garage erected adjacent to the front boundary to Muston Street.

Muston Street comprises a range of residential premises ranging from older style, single and two storey brick and tile dwelling houses to multi storey residential flat buildings. The area is undergoing a transition with a number of large contemporary dwelling houses, duplex and semi detached dwellings having been constructed in recent times.

Contemporary two storey duplexes above basement garaging and associated plant rooms are located to the immediate north and south of the sites. The dwellings to the north (No 63) are erected on a 7.8m building alignment to Muston Street and from 2.89-3.16m from the common boundary with the site. Setbacks varying from 1.75-3.1m are provided on the northern side of No 63.

To the south, No 59 is erected between 1.5m and 2.47m from the common boundary with the site, with the majority of the upper floor setback 3m from its southern boundary with a small area within 2m towards the rear of the building. That building is erected on a 6.32m alignment to Muston Street.

Background

Development consent 8.2012.164.1 was granted on 21 November 2012 by Mosman Council and authorised demolition and erection of a three storey semi-detached dwelling with vehicular access from Redan lane, landscaping works and fencing at 61 Muston Street, Mosman. That consent was issued in conjunction with Development consent 8.2012.165.1 which authorised the same works at No 61A. The plans approved for each allotment vary in layout and footprint.

The consents issued are the subject of deferred commencement provisions that require amended plans that reduced the area of the basements, provided landscaping details, increased the side setbacks to the rear, upper floor terrace and roof over and kitchen area and provided an alternate privacy screen to the garage roof of No 61A and privacy treatment to the upper floor windows of No 61. Both buildings were required to be relocated 1.5m closer to Muston Street.

The applicant objected to the majority of the deferred commencement conditions and lodged these appeals.

Conciliation conference

As a result of the joint conferencing between the town planning experts, a number of contentions in the case were agreed and not pressed by the council. Those were the contentions in relation to the reduction in size of the basement area (contention 1), the need for a landscape plan as the applicant had provided one deemed acceptable to the council (contention 2). The plans lodged with the s96 application provide for the reduced setback to Muston Street and therefore contention 4 has been resolved if the plans are endorsed as part of any modified consent.

Further contentions were resolved by the parties during the conciliation conference with agreement reached in relation to the treatment of the rear balconies and privacy screens (contention 3) and the need for a construction traffic management plan (contention 6). Conditions of consent have been prepared and agreed which address these contentions.

During the hearing the applicant prepared amended plans which indicate the majority of changes agreed, including further changes made to kitchen "pop-outs" that now form part of the applications. In addition, increased setbacks to the side boundary adjacent to the office and powder room of No 61 and the provision of a higher privacy screen along the entry verandah also form part of the application and are detailed in the plans that form Exhibit C. It has been agreed that further amendments need to be made to the window treatments of the kitchens from that shown on these plans.

The proposed dwelling on No 61 would be erected on an 8.738m alignment to Muston Street, approximately 1m from the rear lane at the garage/ground level and 7.2m at the upper levels with side setbacks at ground level varying from 1.285-1.51m, at first floor from 1.5m-1.938m and second floor from 1.2m at the kitchen "pop-out" to 1.938m.

The dwelling on No 61A would be constructed on an alignment of 6.983m to Muston Street, 3.035m to the rear lane at the garage level and 9.067m at the upper levels, and between 1.5m and 1.938m from the southern side boundary at the first floor level and 1.2m at the kitchen increasing in parts to 1.938m at the upper floor.

Being a semi detached pair, the dwellings would be erected adjacent to the common boundary and therefore a zero setback applies to that boundary.

The remaining contention

The remaining contention is whether the side boundary setback of the upper storey kitchen "pop-out" of each dwelling is appropriate. The kitchens of each dwelling are located on the upper floor to the east of the centre of the building and are constructed so that the floor protrudes 300mm from the face of the building. The applicant advises the purpose of the pop-out is to provide articulation to the building and to "accommodate a functional kitchen whilst permitting space for a separate dining and living area."

The planning controls

The site is zoned R3 under Mosman Local Environmental Plan 2012 (LEP). The development is permissible with consent. In granting consent to the development applications, the council varied development standards contained within the LEP for floor space ratio (FSR) in both cases and for building height for No 61A. The FSR variation is approximately 0.4:1 and in the case of No 61A the building height is 9m, exceeding the development standard of 8.5m by 0.5m.

Mosman Council Residential Development Control Plan (DCP) also applies to the site and, according to clause 1.9, "uses a performance approach to guide development. That performance approach focuses principally on planning outcomes rather than prescriptive or numeric standards. It permits designers to be responsive to local conditions and to the individual opportunities and constraints of each site, recognising that no two sites are exactly alike. A site analysis will be required to determine the site's qualities and identify adverse effects on adjoining areas. Council expects that applications will satisfy the objectives and comply with the corresponding planning controls set out in this Plan. Mere compliance with the planning controls is no guarantee of approval. A proposal must respond to the context of the site, streetscape and the desired character of the townscape area. Where a planning control cannot be satisfied, an applicant must demonstrate that the intent of the objective has nonetheless been satisfied."

Part 4.2 of the DCP deals with siting and scale and recognises the development standards that control the maximum height and FSR of buildings are contained within the LEP. The DCP contains additional objectives and planning controls to deal with siting and scale of buildings. The objectives of side setbacks are set out in O6 as follows:

To have adequate side setbacks to provide spatial relief between buildings, encourage view sharing, and minimise overshadowing of neighbouring properties.

The planning controls require varying side boundary setbacks depending on the building height and for two storey development (or up to 7.2m wall height) is 1.5m and for three storeys (or over 7.2m wall height) is 3m. The DCP adopts the definition of storey from the LEP which is:

storey means a space within a building that is situated between one floor level and the floor level next above, or if there is no floor above, the ceiling or roof above, but does not include:

(v)a space that contains only a lift shaft, stairway or meter room, or

(v)a mezzanine, or

(v)Ian attic.

Planning control P10 requires that for new buildings, greater than single storey, the side boundary setback should be equal for all levels of the building. P11 requires that building bulk should be distributed to minimise overshadowing to neighbours, streets and public open space with building forms enabling a sharing of views with surrounding residences and permit views from public streets and open space.

Part 5 provides further site planning and design controls with 5.1 addressing streetscape and building design. The objectives are to have development of a scale and appearance which is in keeping with the street and desired future townscape area character (DFC), to control building bulk by incorporating facades that are well articulated and to have variety within development where consistent with the street and DFC.

Relevant planning controls are P1 which require new development to incorporate articulated facades to avoid a bulky appearance and to create proportions consistent within the streetscape. Elements such as recesses, modulation and setbacks in building walls and varied material are encouraged.

The evidence

The conciliation conference commenced on site and included a view of the adjoining duplex sites. The Court was also taken to nearby properties to view intended landscape treatment and gain an understanding of the general streetscape and character of the area. Objections had been lodged with the council on behalf of the owners of the two dwellings to the immediate north of the site. The evidence available to the Court is that the changes made to the siting of the development address the original concerns of the owners of the property to the south.

Expert town planning evidence was heard from Ms D Laidlaw for the applicant and Ms D Deegan for the council.

Both experts agree that, in accordance with the definition of storey in the LEP, the dwellings are three storeys. Ms Laidlaw says that the building does not appear as three storey because the third level is, for the majority of the building and when comparing existing ground levels, below ground and that the building's height reflects a two storey structure. They agree that in the circumstances, it would not be appropriate to apply the 3m setback control for a 3 storey building across the whole of the site however do not agree on the appropriate setback for the kitchen pop-out.

Ms Deegan says that because the kitchen pop-out is at the upper floor level, it should comply with the 1.5m setback control and does not consider the changes made by the applicant to the height of this element, by reducing the parapet height by 350mm less than the remaining roof height satisfies the objectives of the control. She says the 1.5m setback is required to provide for view corridors and the separation envisaged in the DCP and references the concessions made by the council in relation to other setbacks, floor space and building height. She is particularly concerned in relation to the visual bulk on the neighbouring development to the north. Her concerns in relation to privacy have been addressed through consent conditions that require the use of obscure glass and fixed louvres to the kitchen window.

Ms Laidlaw says that the 1.2m setback as now proposed in the further amended plans is appropriate and should be considered in terms of the increased setbacks provided at the front and rear of the dwellings and because there is a greater separation at the front of the buildings this is a better situation than requiring strict compliance with the numerical control of 1.5m. She says the 1.2m setback is for a very small length of the building (4.2m) to the kitchen only and wouldn't be perceived due to its height and the location of the nib wall at the front elevation of No 61 and that averaging the setback controls is appropriate and would achieve the objectives of the control. The pop out does not overshadow adjoining properties, provides articulation, which assists in minimising the bulk of the northern wall and does not impact privacy, would only be marginally visible as one approaches the front door of the ground floor dwelling of No 63 and would be even less discernable if at all from the street. Ms Laidlaw cites other buildings in close proximity to the site that have been constructed to within 900mm of the side boundaries and others that include pop outs similar to that proposed and concludes that the building imposes no material impact by way of visual bulk, privacy or overshadowing that would justify removal of the pop out.

Conclusions and findings

Having regard to the evidence, the objectives of the planning controls, the benefits obtained from the site view and the matters for consideration under s79C of the Environmental Planning and Assessment Act 1979, I am of the opinion that the setback of the building at its upper levels should be a minimum of 1.5m. That is to ensure the objectives of the control are met. The council has applied a pragmatic approach to interpretation of the number of storeys within the building and has not sought a 3m setback for the entire building. The area of the proposed pop-out, whilst small in terms of floor space, is at the highest level of the building. It will be visible from the two adjoining properties and also, particularly in the case of No 61A from the street.

I agree with Ms Deegan that the 1.5m setback will provide the appropriate building separation envisaged by the council's planning controls contained within the DCP and will reduce the building's bulk when viewed from No 63. Those controls are not inconsistent with the development standards contained within the LEP. I do not accept that the averaging of the setbacks addresses these objectives and whilst the increased setback at the front of the building does assist in achieving some level of separation, that benefit is lost through the siting, height and location of the pop out.

The site view provided evidence of the different outcomes achieved when the greater setbacks were provided and I consider that it is appropriate to require the 1.5m setback in the circumstances of this case. Where lesser setbacks were observed, the character of the area did not achieve the openness envisaged by the controls however, where the larger setbacks occurred, the spatial separation provided views between buildings to either landscaped areas or water views. I consider that this is the objective of the control.

As a number of contentions have been agreed, the consents issued by the council should be modified to reflect that agreement and I am satisfied from the evidence provided that the changes agreed are appropriate and achieve the objectives of the controls.

Having determined that a minimum setback of 1.5m should apply to the kitchens and the side boundary generally, I do not consider that there is a necessity to require the offset proposed by the applicant of further setbacks to the office and powder room of No 61. These could be located on the 1.5m setback originally proposed. There is adequate articulation along the remainder of the northern elevation to address the DCP controls. The nib wall at the front of No 61 should be deleted as this element of the building also affects the through site view and spatial separation anticipated under the planning controls.

The Orders of the Court are:

(1) In matter No 10088 of 2013

(a) The appeal is upheld in part.

(b) Development consent 8.2012.164.1 for demolition and erection of a three storey semi-detached dwelling with vehicular access from Redan lane, landscaping works and fencing at 61 Muston Street, Mosman is modified as follows:

(i) Deletion of the deferred commencement conditions.

(ii) Modifying conditions 1 and 19.

(2) In matter No 10089 of 2013

(a) The appeal is upheld in part.

(b) Development consent 8.2012.165.1 for demolition and erection of a three storey semi-detached dwelling with vehicular access from Redan lane, landscaping works and fencing at 61A Muston Street, Mosman is modified as follows:

(i) Deletion of the deferred commencement conditions.

(ii) Modifying conditions 1 and 19.

(3) The exhibits in both matters, other than exhibits A and B, may be returned.

Sue Morris

Commissioner of the Court

ANNEXURE A

CONDITIONS OF CONSENT

61 MUSTON STREET, MOSMAN

MATTER No. 10088 OF 2013

Approved Plans and Documentation

1. The development must be carried out in accordance with the following stamped approved plans and documentation, except where amended by conditions of consent:

Drawing Nos.
Date of drawing
Prepared by
DA 4 - DA 15, inclusive (11 sheets)
23 July 2012
Dixon Andrews Architects
Survey Plan 20967D
9 November 2012
Montek
Landscape Plan LPDA 13-01/1 Issue B
July 2012
Conzept

Document title
Date of document
Prepared by
Statement of Environmental Effects
July 2012
Dixon Andrews Architects
Geotechnical Report
10 July 2012
Jack Hodgson Consultants Pty Ltd
BASIX Certificate 43754S
19 July 2012
Planning NSW

As amended by 8.2012.164.2

Drawing Nos.
Date of drawing
Prepared by
S96-04-S96-16 (13 sheets)
20.12.12
Dixon Andrews Architects
Landscape Plan LPDA13-01/1
18.12.12
Conzept
S96 Schedule of Changes
Dec 2012
Unknown
BASIX Certificate 4375406
19 July 2012
NSW Planning

Prior to the release of the construction certificate

The following conditions must be satisfied prior to the release of the Construction Certificate.

Conditions may require the submission of additional information with the Construction Certificate application. Applicants should also familiarise themselves with conditions in subsequent sections and provide plans in accordance with any design requirements contained therein.

A Certifying Authority must not issue a Construction Certificate for development on a site which affects an existing building unless a Council, a Consent Authority or an Accredited Certifier has carried out an inspection of the building.

The following amendments to the plans, shall be made to the plans prior to the issue of a Construction Certificate:

Amended Plans - Garage door

1A The garage door shall be relocated so as to enclose the area marked as "hardstand", with the position of the door set 400mm west of the eastern end of the northern and southern walls to the garage.

Amended Plans - Rear Terrace

1B (a) a planter box 600mm high above finished floor level and 1 metre wide shall be provided along the northern edge of the approved terrace on the first floor plan, for its full length (that is, extending from the eastern wall of the lounge to the eastern most point of the terrace).

(b) the planter box adjacent to the northern edge of the first floor terrace shall be planted with a hedge style species that is capable of reaching a mature height of a minimum of 1.6 metres above the finished floor level.

(c) The roof/pergola structure over the first floor terrace shall have its setback from the northern boundary increased to 2.938 metres.

Amended Plans - Kitchen and Entry

1C In order to satisfy the side boundary setback controls, to minimise bulk and scale and provide view sharing, the first floor kitchen and entry are to be set back from the northern boundary by at least 1.5m. In addition, the roof and eave alignment above are to be set back 1.5m.

Amended Plans - Kitchen Window

1D The window to the kitchen shall be fixed and obscure glazing.

Amended Plans - Front Elevation

1E The nib wall on the northern face of the front elevation is to be deleted so that the wall is setback a minimum distance of 1.5m from the northern property boundary.

Construction Certificate Application Plans

2. Two copies of architectural and Structural Engineer's plans must be submitted with the Construction Certificate application. The structural engineering plans must be signed by a qualified practicing Structural Engineer with membership of the Institute of Engineers Australia or who is eligible to become a member and has appropriate experience and competence in the related field.

The plans are to incorporate and note any changes from the approved development application plans as required by conditions of this consent.

For applications involving alterations and additions, one set of plans should be coloured which indicate the extent of new works.

Geotechnical Endorsement

3. As the site contains a cliff or is located in an area susceptible to landslip, the Construction Certificate application plans must be endorsed or countersigned by a qualified practicing Geotechnical Engineer with membership of the Institute of Engineers Australia or who is eligible to become a member and has appropriate experience and competence in the related field.

4. As the site contains a cliff or is located in an area susceptible to landslip, a Landslide Risk Management Assessment (LRM) in terms of the Australian Geomechanics Society Guidelines published in 2000 and 2007 is required.

Dilapidation Report - Council Assets

5. To assist with an assessment of claims for the refund of the security deposit over Council's property, a dilapidation report must be submitted. The dilapidation report shall be submitted as a PDF in Adobe format or in A4 format. The report must document and provide photographs that clearly depict any existing damage to the road, kerb, gutter, footpath, driveways, street trees, street signs or any other Council assets in the vicinity of the development. Any damage not shown in this manner will be assumed to have been caused as a result of the site works undertaken and must either be rectified at the applicant's expense or compensated by deduction from the security deposit.

Dilapidation Report - Private Assets

6. The applicant shall supply Council with a dilapidation report for the adjoining property at 63 Muston Street which documents and photographs the condition of buildings and improvements on that property. The dilapidation report shall be submitted as a PDF in Adobe format or in A4 format. A copy of the report must be provided to Council, any other owners of public infrastructure and the owners of nominated properties. Council shall be provided with a list of owners to whom a copy of the report has been provided.

Excavation, Backfilling and Support for Neighbouring Buildings

7. Excavation works shall not commence prior to the issue of the Construction Certificate or the issue of any relevant notices to adjoining owners, the Principal Certifying Authority or Council as required by other conditions of this consent.

8. A report shall be prepared by a practicing Geotechnical Engineer and submitted to Council or the Accredited Certifier detailing the structural condition of adjoining structures / property and their ability to withstand the proposed excavation, backfilling and construction. The report must investigate site and soil conditions and outline any recommended measures to ensure that no damage will occur to the structures / property during or subsequent to the carrying out of works.

Retaining Walls

9. If soil conditions require it, retaining walls or other approved methods necessary to prevent the movement of soil, together with associated stormwater drainage measures, shall be designed by a civil engineer or other appropriately qualified person. Details of any retaining walls shall accompany plans and specifications submitted with the Construction Certificate application.

Rainwater Re-use System/On-site Detention

10. Having regard to hard surface areas proposed, the capacity of the stormwater system and the need to retard the flow of stormwater in peak flow periods, an onsite detention system shall be provided. Detailed plans shall be submitted with the Construction Certificate application and certified as complying with Council's policy for Stormwater Management in Mosman by a Civil Engineer with corporate membership of the Institute of Engineers Australia or who is eligible to become a corporate member and has appropriate experience and competence in the related field. Where located below a driveway or built structure, the engineer is to certify that the onsite detention system has been designed to withstand all loads likely to be imposed on it.

Alternatively the applicant has the option to utilise rainwater re-use tanks in lieu of or in conjunction with on-site detention tanks. Rainwater re-use tanks can be used to offset the volume requirements of the on-site detention tanks in accordance with Council's policy for Stormwater Management in Mosman. The offset ratio for OSD to rainwater tanks is: 1 cubic meter of OSD is equivalent to 3 cubic meters of rainwater storage. It should be noted that these tanks are to be at a minimum connected to the toilet and washing machine to achieve this offset.

Sydney Water

11. The approved plans must be submitted to a Sydney Water Quick Check agent to determine whether the development will affect any Sydney Water wastewater and water mains, stormwater drains and/or easement, and if any requirements need to be met. Plans will be appropriately stamped.

Please refer to the web site or telephone 13 20 92 for:

Water Quick Check agent details - see Building and Developing then Quick Check; and

Guidelines for Building Over/Adjacent to Sydney Water Assets - see Building and Developing, then Building and Renovation.

Driveway

12. The internal driveway and parking area shall be designed in accordance with Australian Standard 2890.1-2004 and Council's Development Control Plan. Longitudinal sections for both sides of the vehicular crossing and driveway commencing at the centre line of the road carriageway shall be provided with the Construction Certificate application demonstrating that vehicles will not scrape their undercarriage.

13. To ensure the vehicle crossing is properly completed, the applicant shall complete and pay applicable fees for an application under Mosman Council's Construction of Vehicle Crossing By Contract.

Materials & Finishes

14. Materials and finishes shall be complementary to the character and streetscape of the area. Highly reflective roofing materials shall not be used. Details of finished external surface materials, including colours and texture, must be submitted to the satisfaction of Council or the Accredited Certifier.

Planting on Slab

15. To ensure the landscaping thrives, the on slab planters shall be appropriately designed. All on slab plantings are to be provided with adequate minimum soil depths to support the plant species (refer to the relevant Development Control Plan), include adequate draining provisions and permanent irrigation complying with Sydney Water irrigation restrictions for water conservation. Details shall be submitted with the Construction Certificate application.

Long Service Levy

16. In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986, the applicant shall pay a long service levy at the prescribed rate of 0.35% of the total cost of the work to either the Long Service Payments Corporation or Mosman Municipal Council for any work costing $25,000 or more. To pay the levy online go to To pay the levy in person at either the Long Service Payments Corporation or Mosman Municipal Council you will need to complete the Levy Payment Form available from Council or online at Deposit

17. A cash deposit or bank guarantee to the value of $5,000 in favour of Council shall be provided for the making good of any damage caused to Council property and to ensure the satisfactory completion of any works required to be undertaken outside the property boundary. A request for a refund of unused funds (less an inspection fee) may be made following the completion of all works, both inside and outside the property boundary, and an inspection of the site by Council.

Section 94 Contribution

18. Pursuant to Section 94A of the Environmental Planning & Assessment Act 1979, a monetary contribution must be paid to Council for the purpose of purchasing and embellishing public open space if the value of works exceeds $100,000.00.

To enable Council to determine whether a contribution is payable and if so what amount, a 'Cost Summary Report' form must be completed if the value of work is less than $1,200,000.00 or a 'Detailed Cost Report' form completed by a member of the Australian Institute of Quantified Surveyors if the value of work is $1,200,000.00 or greater. Copies of these forms are attached to this consent and can also be obtained from the 'Policies and Forms' section of Council's website at rates may be indexed by use of the Consumer Price Index.

This condition is imposed under Mosman Council's Mosman Section 94A Development Contributions Plan 2012. The Plan may be inspected at Council's offices within the Civic Centre, Mosman Square, Mosman.

Construction Traffic Management Plan

19. To minimise disruption to and ensure reasonable safety for surrounding public and private property during site works, a Construction Traffic Management Plan shall be submitted to and approved by Council's Traffic Committee. The plan is to address matters raised in Council's Guide for Construction Traffic Management Plans which is available on Council's website at listid="158" listlevel="0" liststring="(a)" listvalue="5">(a) An application fee of $520.00 per site for Construction Traffic Management Plans applies. When assessment is required within 7 days, the required fee is $1,700.00 per site; and

(b) Fees will be indexed by use of the Consumer Price Index and the actual amount to be paid will be determined at the date of payment. You may contact Council on 9978-4000 prior to payment to confirm current figures.

BASIX Certificate

20. The applicant must include copies of any relevant BASIX certificates as part of the application for a Construction Certificate, and all items nominated in the subject BASIX certificate must be specified on the plans submitted with the application.

Waste Management

21. To allow for sustainable waste management, a completed Site Waste Minimisation and Management Plan (SWMMP) shall be submitted in accordance with the Mosman Waste Minimisation Policy 2012. A copy of the Mosman Waste Minimisation Policy 2012 including a SWMMP template can be found on Council's web site and Sedimentation Control Plan

22. An erosion and sedimentation control plan in accordance with the NSW Government's policy Managing Urban Stormwater: Soils and Construction (also known as The Blue Book) is to be submitted and approved by the Principal Certifying Authority prior to the issue of the Construction Certificate.

Prior to the Commencement of Site Works

The following measures must be satisfied prior to the commencement of site works, including any works relating to demolition, excavation or vegetation removal.

Notice of Intent to Commence Site Works

23. In accordance with Section 81A(2) of the Environmental Planning and Assessment Act 1979, no site works (including building works, demolition, excavation or the removal of vegetation) are to commence until:

(i) the Construction Certificate has been issued;

(ii) the person benefiting from the consent has appointed a Principal Certifying Authority (PCA);

(iii) in instances where Council is not the PCA, the PCA has, no later than 2 days before the building work commences, notified Council of his or her appointment and notified the person benefiting from the consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work;

(iv) the person benefiting from the consent, if not carrying out the work as an owner-builder, has:

appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved; and

notified the PCA of any such appointment; and

unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work; and

(v) the person benefiting from the consent has given Council at least 2 days' notice of the person's intention to commence the erection of the building.

Home Building Act

24. Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the council) has given the council written notice of the following information:

(a) in the case of work to be done by the holder of a contractor licence under that Act:

(i) the name and licence number of the contractor; and

(ii) the name of the insurer by whom the work is insured under Part 6 of that Act,

(b) in the case of work to be done by the holder of an owner-builder permit under that Act, the name and permit number of the owner-builder.

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

Construction Hoarding or Fencing

25. If site or building works will:

cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe; or

have the potential to damage adjoining private land by way of falling objects

then the site must be fenced throughout construction and must comply with WorkCover New South Wales requirements and be a minimum of 1.8m in height.

The hoarding/fence must be removed when the work has been completed.

Where construction requirements or site constraints necessitate the hoarding or fencing being located on Council land, a Footpath/Nature Strip/Roadway Occupation form is to be lodged with Council and all fees paid prior to the hoarding/fencing being erected (a copy of the form is available on Council's website).

Hoarding or fencing on Council land must maintain a minimum of 1500 clear footpath width at all times (lesser distances may be considered in exceptional circumstances).

Erosion and Sedimentation Controls

26. Erosion and sedimentation controls shall be installed prior to commencement of any site works in order to prevent the discharge of sediment from the site. The controls shall be installed in accordance with the Erosion and Sedimentation Control Plan for the site and the NSW Government's policy Managing Urban Stormwater: Soils and Construction (also known as The Blue Book).

Public Liability Insurance

27. Public liability insurance to the value of $5,000,000 must be taken out by the builder or owner to protect any person, firm or company from injury, loss or damage sustained as a consequence of the carrying out of site works, including all excavation, demolition and construction works. A copy of the policy must be provided to Council or the Accredited Certifier.

During Site Works / Construction

The following conditions must be satisfied during site and construction works.

Compliance with the Building Code of Australia

28. All works are to be carried out in accordance with the requirements of the Building Code of Australia.

Signs for Building and Demolition Sites

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

(a) showing the name, address and telephone number of the principal certifying authority for the work; and

(b) showing the name of the person in charge of the work and a telephone number at which that person may be contacted outside work hours; and

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

Where Council is the nominated PCA, these signs may be purchased from Council's offices for a fee of $35.

This condition does not apply in relation to building work or demolition work that is carried out inside, and does not affect the external walls of, an existing building.

Site Work Hours

30. In order to maintain the amenity of adjoining properties, audible site works shall be restricted to between 7.00am and 6.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. Inaudible site works may also take place between 7.00am and 8.00am on Saturdays. No site works shall be undertaken on Sundays or public holidays.

Unless otherwise approved within a Construction Traffic Management Plan, construction vehicles, machinery, goods or materials shall not be delivered to the site outside the approved hours of site works.

Construction Hoarding or Fencing

31. Any construction hoarding or fencing is to be maintained in good order throughout the life of the fence.

Shoring and Adequacy of Adjoining Property

32. If the development involves an excavation that extends below the level of the base of the footings of a building on adjoining land, the person having the benefit of the development consent must at the person's own expense:

(a) protect and support the adjoining premises from possible damage from the excavation, and

(b) where necessary, underpin the adjoining premises to prevent any such damage.

33. All excavations and backfilling shall be limited to that required in accordance with the approved plans only and must be executed safely and if necessary properly guarded in accordance with appropriate professional standards to prevent them from being dangerous to life or property. At least 7 days before excavating, give notice of an intention to excavate to the adjoining owner and furnish particulars to the owner of the proposed work.

Erosion and Sedimentation Controls

34. Erosion and sedimentation controls must be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority's satisfaction.

Waste Management

35. Waste management during the construction phase shall be undertaken in accordance with the Site Waste Minimisation and Management Plan and in accordance with the Mosman Waste Minimisation Policy 2012. A copy of the Mosman Waste Minimisation Policy 2012 can be found on Council's web site Property

36. The land and adjoining areas shall be kept in a clean and tidy condition at all times. No construction vehicles, building materials, waste, machinery or related matter shall be stored on the road or footpath for the duration of works unless separate approval has been obtained from Council's Traffic Committee for the establishment of a Construction Zone. Under no circumstances will any person be allowed to mix or dispose of concrete, mortar or slurry within Council property.

37. Any works carried out to Council owned property or Infrastructure as a result of this consent are to be undertaken in accordance with Council specifications; i.e. Specification For Concrete Kerb & Gutter, Footpaths, Vehicle and Kerb Crossings & Concrete Converters, Public Domain Improvement Program, Specification For Brick Paving, Specification For Stormwater Drainage Construction or Specification For Asphalt Pavement Construction.

Construction Traffic Management Plan

38. All works and traffic movements must be carried out in accordance with the approved Construction Traffic Management Plan. A copy of the Plan must be kept on site at all times and made available to the PCA or Council officers on request.

Drainage

39. Stormwater shall be directed to the street gutter. All drainage works shall be constructed in accordance with Council's Stormwater Management in Mosman.

Utility Services

40. To maintain the visual amenity of the area, no house service poles (A-poles) shall be erected. Where such structures would otherwise be required by Ausgrid, the service shall be relocated underground. Any street poles required as a consequence by Ausgrid must be located in a position that does not unreasonably interfere with public amenity or private scenic views.

Driveway

41. The redundant driveway shall be reinstated with kerb, footpath and suitably landscaped. Materials must be in accordance with Mosman Council's Specification For Concrete Kerb & Gutter, Footpaths, Vehicle and Kerb Crossings & Concrete Converters.

42. The levels at the boundary alignment of the property along the existing levels frontage shall be defined by the existing levels.

Materials & Finishes

43. Roofing materials must be of low glare and reflectivity.

Protection of Landscape Features

44. All natural landscape features including trees and other vegetation, natural rock outcrops, soil and watercourses shall remain undisturbed except where affected by necessary works detailed on approved plans.

To minimise impacts upon trees to be retained, no permanent fill or storage of building materials, excavated fill or topsoil during site works shall take place within their driplines.

Tree Preservation

45. All street trees and trees on private property that are protected under Clause 5.9 of Council's Local Environmental Plan 2012 and the Residential Development Control Plan, shall be retained except where Council's prior written consent has been obtained, or where after approval of the relevant Construction Certificate, trees stand within the envelope of approved buildings or within the alignment of approved permanent paved vehicular access roads and parking areas.

Leighton Green Cypress

46. To reduce the potential for adverse amenity effects such as overshadowing, loss of views, and loss of plant diversity, Leighton Green Cypress Cupressocyparis leylandii, or any of its cultivars, shall not be planted on the site for the life of the development. Further information on Leighton Green Cypress may be obtained from Council or viewed on its web site at and then under "Environment" and "Trees". In the event of any inconsistency between this condition and the development application documents, this condition will prevail to the extent of the inconsistency.

BASIX Certificate

47. To promote energy efficiency, the development is to be carried out in accordance with the commitments contained in the BASIX Certificate dated July 19, 2012.

Site Facilities

48. The following facilities must be provided on the site:

(i) toilet facilities in accordance with WorkCover NSW requirements, at a ratio of one toilet per every 20 employees, and

(ii) a garbage receptacle for food scraps and papers, with a tight fitting lid.

Local Government Act 1993

49. This consent does not authorise the carrying out of any of the following activities which require the separate approval of Council under Section 68 of the Local Government Act 1993:

Place a waste storage container in a public place

Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway

Note: A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence under Sections 626 and 627 of the Local Government Act 1993.

Approved Plans

50. A copy of the stamped approved plans must be kept on site for the duration of site works and be made available upon request to either the Principal Certifying Authority or an officer of the Council.

Critical Stage Inspections

51. To ensure building works are carried out properly and in accordance with the conditions of this consent, with the Building Code of Australia and/or with relevant Australian Standards, the following critical stage inspections are to be carried out:

after excavation for, and prior to the placement of, any footings, and

prior to pouring any in-situ reinforced concrete building element, and

prior to covering of the framework for any floor, wall, roof or other building element, and

prior to covering waterproofing in any wet areas, and

prior to covering any stormwater drainage connections, and

after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

The critical stage inspections must be carried out by the Principal Certifying Authority (PCA), or if the PCA agrees, by another certifying authority excepting the final inspection which must be carried out by the PCA.

Notes: Records of the above critical stage inspections will be required to be submitted prior to the release of the Occupation Certificate - see later conditions of consent.

If you intend engaging Council to undertake the inspections, please telephone the area Building Surveyor to arrange a suitable time.

Prior To The Release Of The Occupation Certificate

The following conditions must be satisfied prior to the issue of the Occupation Certificate.

Where a condition of consent is precedent to the issue of an Occupation Certificate in either part or full that condition shall be satisfied prior to the issue of the certificate.

Record of Inspections Carried Out

52. In accordance with clause 162B of the Environmental Planning and Assessment Regulation 2000, the certifying authority responsible for the critical stage inspections must make a record of each inspection as soon as practicable after it has been carried out. Where Council is not the PCA, the PCA is to forward a copy of all records to Council.

The record must include details of:

The development application and construction certificate number;

The address of the property at which the inspection was carried out;

The type of inspection;

The date on which it was carried out;

The name and accreditation number of the certifying authority by whom the inspection was carried out; and

Whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.

BASIX Completion Receipt

53. Before issuing a final occupation certificate for a building or for part of a building, the certifying authority must apply to the Director-General for a BASIX completion receipt with respect to that building or part, in accordance with Clause 154C of the Environmental Planning and Assessment Regulation 2000.

On-Site Detention/Rainwater Re-use System

54. So as Council has accurate records of the stormwater system to aid with catchment management functions, work-as-executed details of the on-site detention system or rainwater re-use tanks prepared by a Civil Engineer with membership of the Institute of Engineers Australia or who is eligible to become a member and has appropriate experience and competence in the related field, demonstrating that the required storage and discharge volumes have been constructed in accordance with the design requirements and Council's Policy for Stormwater Management in Mosman are to be provided to Council. The details must show the invert levels of the on-site detention system or rainwater re-use tanks as well as the pipe sizes and grades. Any variations to approved plans must be shown in red and supported by calculations.

55. To ensure that future owners are made aware of their responsibilities with respect to the on-site detention system or rainwater re use tanks, a positive covenant shall be created on the title of the allotment requiring that the owner(s) maintain and keep in working order the on-site detention system or rainwater re use tanks, unless otherwise approved in writing by Mosman Council.

A fee of $125.00 applies (GST-inclusive) for the checking, approval and execution of the Positive Covenant by Council and must accompany the Positive Covenant when lodged with Council.

The terms of the positive covenant shall read:

(i) In this Positive Covenant "detention system or rainwater re-use system" shall mean the detention system or rainwater re-use system approved by Mosman Council pursuant to Development Consent No. 8.2012.164.1 or any modification thereof approved by Mosman Council in writing.

(ii) The Registered Proprietors will at their own expense well and sufficiently maintain and keep in good and substantial repair and working order any detention system/rainwater re-use system which exists from time to time on the land.

(iii) The Registered Proprietors shall not remove the detention system/rainwater re-use system without the prior consent of Mosman Council.

(iv) The Registered Proprietors hereby agree to indemnify Mosman Council from and against all claims, demands, actions, suits, causes of action, sum or sums of money, compensation damages, costs and expenses which Mosman Council or any other person may suffer or incur as a result of any malfunction or non-operation of any such detention system/rain water re-use system arising from any failure of the Registered Proprietors to comply with the terms of this Covenant.

(v) The term "Registered Proprietors" shall include the Registered Proprietors of the land from time to time and all their heirs, executors, assigns and successors in title to the land and where there are two or more registered proprietors of the land the terms of this covenant shall bind all those registered proprietors jointly and severally.

Prior To Occupation

The following condition must be satisfied prior to occupation of the development.

Where a condition of consent is precedent to the issue of an Occupation Certificate in either part or full that condition shall be satisfied prior to the issue of the certificate.

Compliance Certificates and Inspection Records

56. Where Council is not the Principal Certifying Authority, a copy of any compliance certificates received by the PCA shall be forwarded to Council prior to occupation or commencement of the use.

Occupation Certificate

57. Occupation or use, either in part or full, shall not take place until an Occupation Certificate has been issued. The Occupation Certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with.

Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council.

- END OF CONDITIONS -

Advice / Notes

The following points are issued as advice to the applicant. They do not form conditions of the Notice of Determination.

(i) Headings such as "Prior To The Release Of The Construction Certificate" together with bolded notes that immediately follow, form part of this Notice of Determination. Conditions under the respective headings shall be read in the context of the heading and note.

(ii) [DELETED]

(iii) [DELETED]

(iv) The applicant shall consult with relevant public utility providers and meet any costs imposed by those providers for alterations to mains or services required as a consequence of this approval.

(v) Other public authorities may have separate requirements and should be consulted in the following respects:

Australia Post for the positioning and dimensions of mail boxes in new commercial and residential developments;

AGL Sydney Limited for any change or alteration to gas line infrastructure;

Ausgrid for any change or alteration to electricity infrastructure or encroachment within transmission line easements;

Telstra, Optus or other telecommunication carriers for access to their telecommunications infrastructure.

(vi) This decision does not ensure compliance with the Commonwealth Disability Discrimination Act 1992. Applicants may wish to investigate their potential for liability under that Act.

(vii) Failure to comply with the relevant provisions of the Act and/or the conditions of this consent may result in the serving of penalty notices or legal action through the Land and Environment Court.

(viii) In accordance with section 81A of the Act, the person benefiting from this consent is notified that if Council is engaged as the Principal Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading "Critical Stage Inspections" in this consent. If additional inspections are required, further notice will be provided.

(ix) All references to "the Act" under this consent relate to the Environmental Planning and Assessment Act 1979.

(x) When private certifiers are registering Part 4A Certificates with Council, it is requested that plans be lodged in PDF format.

(xi) Following the issue of the Occupation Certificate an inspection fee of $155.00 (per inspection) is to be paid at the Cashier's desk at the Civic Centre to ledger number 1040202.2997.028 in order to release the footpath security deposit.

Note: Fees will be indexed by use of the Consumer Price Index and the actual amount to be paid will be determined at the date of payment. You may contact Council on 9978-4000 prior to payment to confirm current figures.

(xii) Dial Before You Dig is a free referral service for information on underground pipes and cables anywhere in Australia. Using Dial Before You Dig can prevent damage, disruption, injury and even death. Lodge your enquiry online at or call 1100 during business hours.

ANNEXURE B

CONDITIONS OF CONSENT

61A MUSTON STREET, MOSMAN

MATTER No. 10088 OF 2013

Approved Plans and Documentation

1. The development must be carried out in accordance with the following stamped approved plans and documentation, except where amended by conditions of consent:

Drawing Nos.
Date of drawing
Prepared by
DA 4 - DA 15, inclusive (11 sheets)
23 July 2012
Dixon Andrews Architects
Survey Plan 20967D
9 November 2012
Montek
Landscape Plan LPDA 13-02/1 Issue B
July 2012
Conzept

Document title
Date of document
Prepared by
Statement of Environmental Effects
July 2012
Dixon Andrews Architects
Geotechnical Report
10 July 2012
Jack Hodgson Consultants Pty Ltd
BASIX Certificate 437820S
19 July 2012
Planning NSW

As amended by 8.2012.165.2

Drawing Nos.
Date of drawing
Prepared by
S.96-01 1A, S.96-03 1A, S.96-04 1A, S.96-05 1A, S.96-06 1C, S.96-07 1A, S.96-08 1D, S.96-09 1B, S.96-10 1E, S.96-11 1B, S.96-12 1D, S.96-13 1A, S.96-14 1A, S.96-15 1A, S.96-16 1A, S.96-17 1A
20.12.2012
Dixon Andrews Architects
Landscape Plan LPDA13-02/1 Issue C
18 Dec 2012
Conzept
Schedule of Proposed Changes
Dec 2012
Unknown
Basix Certificate 437820S
19 July 2012
NSW Planning

Prior to the release of the construction certificate

The following conditions must be satisfied prior to the release of the Construction Certificate.

The following amendments to the plans, shall be made to the plans prior to the issue of a Construction Certificate:

Amended Plans - Garage door

Amended Plans - Rear Terrace

1B (a) a planter box 600mm high above finished floor level and 1 metre wide shall be provided along the southern edge of the approved terrace on the first floor plan, for its full length (that is, extending from the eastern wall of the lounge to the eastern most point of the terrace).

(b) the planter box adjacent to the southern edge of the first floor terrace shall be planted with a hedge style species that is capable of reaching a mature height of a minimum of 1.6 metres above the finished floor level.

(c) The roof/pergola structure over the first floor terrace shall have its setback from the southern boundary increased to 2.938 metres.

Amended Plans - Kitchen and Entry

1C In order to satisfy the side boundary setback controls, to minimise bulk and scale and provide view sharing, the first floor kitchen and entry are to be set back from the southern boundary by at least 1.5m. In addition, the roof and eave alignment above are to be set back 1.5m. A privacy screen to a minimum height of 1.6 metres above finished floor level shall be placed along the full length of the entry way.

Amended Plans - Kitchen Window

1D The window to the kitchen shall be fixed and obscure glazing.

Amended Plans - Privacy screen

1E In order to maintain views, the horizontal timber screen on the garage roof is to be replaced with a 45o angled vertical, blade privacy screen to allow angled views through the screen from No. 59 Muston Street.

Construction Certificate Application Plans

The plans are to incorporate and note any changes from the approved development application plans as required by conditions of this consent.

For applications involving alterations and additions, one set of plans should be coloured which indicate the extent of new works.

Geotechnical Endorsement

Dilapidation Report - Council Assets

Dilapidation Report - Private Assets

Excavation, Backfilling and Support for Neighbouring Buildings

Retaining Walls

Rainwater Re-use System/On-site Detention

Sydney Water

Please refer to the web site or telephone 13 20 92 for:

Water Quick Check agent details - see Building and Developing then Quick Check; and

Guidelines for Building Over/Adjacent to Sydney Water Assets - see Building and Developing, then Building and Renovation.

Driveway

Materials & Finishes

Planting on Slab

Long Service Levy

Section 94 Contribution

This condition is imposed under Mosman Council's Mosman Section 94A Development Contributions Plan 2012. The Plan may be inspected at Council's offices within the Civic Centre, Mosman Square, Mosman.

Construction Traffic Management Plan

19. To minimise disruption to and ensure reasonable safety for surrounding public and private property during site works, a Construction Traffic Management Plan shall be submitted to and approved by Council's Traffic Committee. The plan is to address matters raised in Council's Guide for Construction Traffic Management Plans which is available on Council's website at listid="111" listlevel="4" liststring="(a)" listvalue="1">(a) An application fee of $520.00 per site for Construction Traffic Management Plans applies. When assessment is required within 7 days, the required fee is $1,700.00 per site; and