Duval v Leichhardt Municipal Council
[2005] NSWLEC 185
•11 April 2005
NEW SOUTH WALES LAND AND ENVIRONMENT COURT
CITATION: Duval v Leichhardt Municipal Council [2005] NSWLEC 185
PARTIES:
APPLICANT
Michelle Coughlin Duval
RESPONDENT
Leichhardt Municipal Council
CASE NUMBER: 11520 of 2004
CATCH WORDS: Development Application
LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000
CORAM: Brown C
DATES OF HEARING: 11/04/05
EX TEMPORE DATE: 11/04/2005
LEGAL REPRESENTATIVES
APPLICANT
Litigant in person
RESPONDENT
Ms M Lyons, solicitor
SOLICITORS
Leichhardt Municipal Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
11 April 2005
11520 of 2004 Michelle Coughlin Duval v Leichhardt Council
JUDGMENT
COMMISSIONER: This is an appeal against condition 3(d) imposed by Leichhardt Council (the council) on the approval of D/2003/305 for alterations and additions to an existing dwelling at 177 Johnston St., Annandale (the site). The appeal was conducted as an On Site Hearing.
Condition 3(d) states:
3 Amended plans
Amended plans and specifications incorporating the following must be submitted with he application for a the Construction Certificate:
.(d) the skylight to the Johnston St elevation is to the deleted and the opening skylights (behind the ridge) are to be increased in size to provide natural light and ventilation to Bedroom 3 in accordance with the BCA
The site has a frontage to Johnston St of 3.925 metres and a total site area of 95.8 square metres. It presently accommodates a single storey brick semi -detached cottage, with a pitched corrugated iron roof and low-pitched veranda. The dwelling shares a common wall with 175 Johnston St.
The site is within the Residential zone under like Leichhardt Local Environmental Plan 2000 (the LEP) and is also within a conservation area. The proposed use is permissible with consent.
Clause 16(8) of the LEP requires that consent must not be granted unless assessment has been made of the carrying out of a development on the heritage significance of the conservation area.
Leichhardt Development Control Plan 2000 (the DCP) also applies and contains additional heritage requirements.
The council filed a Statement of Issues containing a single issue. This issue related to the impact of the proposed skylight on the significance of the conservation area. At the hearing Ms Lila Haddad, the owner of the property directly behind the site at 78 View St, raised the further issue of loss of privacy from the proposed additions and specifically from the proposed main bedroom.
On the issue of the impact of the skylight on the conservation area, cl B3.6 of the DCP has a principal that converting roof spaces " should be compatible with the character of the house and streetscape. Where part of a row or group, the character should be consistent in all respects, to conserve the unity of the group". The clause further states, "such changes should be minor, and complimentary to the building in terms of scale, detail, and materials".
The proposed skylight sits flush with the roof and has approximate dimensions of 600 mm by 800 mm. It can be tilted to allow for ventilation.
With the benefit of a site view, I can comfortably conclude that the proposed skylight will have negligible, if any effect on the conservation
area. Because of the size and design, it also has little impact on the continuity of the roof forms in the row of semi-detached cottages.
In accordance with the assessment required by cl 16(8) of the LEP, I find the proposed skylight to be acceptable.
I also note that the DCP encourages solar access, energy efficiency and natural ventilation. While these matters need to be balanced against the heritage issues it is nonetheless a consideration in the DCP. In this case, however, it is not necessary to give these requirements any weight because of the negligible heritage impact of the skylight.
The potential loss of privacy from the property at the rear was inspected from Ms Haddad’s property however I am not convinced that it represents an unacceptable impact. The proposed first-floor additions are located some 7.8 metres from the common boundary and when combined with the use of the room as a bedroom, I accept there is a reasonable separation. It must also be remembered that the site is only 95 sq m and it is not always possible to provide total privacy in relatively dense residential areas.
The appeal was lodged pursuant to s 97 of the Environmental Planning and Assessment Act 1979 and I note that the proposed development seeks a number of variations to the councils planning controls, particularly in areas of density and landscaped area requirements. These are development standards contained within the LEP. I have read the council officers report that addresses of the variations to the development standards and concur with the findings in the report.
Consequently, the Orders of the Court are:
1) The appeal is upheld.
2) D/2003/305 for alterations and additions to an existing dwelling at 177 Johnston St., Annandale is approved subject to the conditions in Annexure A.__________
G T Brown
Commissioner of the Court
Annexure “A”
Conditions of Consent
Michelle Coughlin Duval v Leichhardt Municipal Council
General Conditions
Approved plans
The development shall be implemented in accordance with the details set out on the drawings numbers 0238 A-1 to A-3 Issue B and A-4 Issue A prepared by Inn Ee Heintze and dated 25 March 2003 and on the application form and on any supporting information received with the application except as amended by the conditions specified hereunder.
Class and rise of building
The building is classified as Class 1A building under the Building Code of Australia.
Design Changes
Amended plans
Amended plans and specifications incorporating the following amendments must be submitted with the application for a Construction Certificate:
(a)Walls within 900mm of the boundary are to achieve and FRL of 60/60/60.
(b)deleted
(c)The skylight to the Johnston Street elevation is to have maximum dimensions of 600mmx800mm.
(d)deleted.
Reason: To achieve an acceptable form of development in terms of privacy and solar control
Conditions that must be satisfied before a Construction Certificate is issued
Construction and Site Management Plan
Prior the issue of a Construction Certificate the applicant shall submit to and obtain approval from Council or the accredited certifier of a construction and site management plan that clearly sets out the following:
a)what actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from building activities, crossings by heavy equipment, plant and materials delivery, or static loads from cranes, concrete pumps and the like,
b)the proposed method of loading and unloading excavation machines, building materials, formwork and the erection of any part of the structure within the site,
c)the proposed areas within the site to be used for the storage of excavated material, construction materials and waste and recycling containers during the construction period,
d)the proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be designed by a Chartered Civil Engineer, with National Professional Engineering Registration (NPER) in the construction of civil works or a survey company of Registered Surveyors with “preliminary accreditation” from the Institution of Surveyors NSW Inc. or an accredited certifier.
Where it is proposed to:
pump concrete from within a public road reserve or laneway, or
stand a mobile crane within the public road reserve or laneway,
use part of Council’s road/footpath area,
pump stormwater from the site to Council’s stormwater drains, or
store waste and recycling containers, skip, bins, and/or building materials on part of Council’s footpath or roadway,
an application for a construction zone, a pumping permit, an approval to stand a mobile crane or an application to pump water into a public road, together with the necessary fee in accordance with Council’s adopted schedule of fees and charges shall be submitted to Council and approval obtained before a Construction Certificate is issued.
A separate approval under the Roads Act 1993 must be obtained for the enclosure of a public place (hoarding).
Reason: To protect the environment and the amenity of the locality.
Waste Management Plan - Construction
Prior to the issue of a Construction Certificate, the applicant shall prepare and submit a Waste Management Plan in accordance with the provisions of DCP 38 and the Waste Planning Guide for Development Applications (Planning for Less Waste, prepared by the Regional Waste Boards), including:
a)Estimations of quantities and type of materials to be reused, recycled or left over for removal from site;
b)Identification on a plan of on site material storage areas during construction, waste storage, recycling and composting areas;
c)Details of the construction materials and methods to be used to minimised the production of waste in the completion of the new building work.
Reason: To encourage waste minimisation (avoidance source separation, re-use and recycling) and ensure efficient storage and collection of reusable, recyclables and waste.
A drainage design shall be prepared by a Hydraulics Engineer or a Licensed Plumber and submitted to Council or the accredited certifier prior the issue of a Construction Certificate, and shall show stormwater run-off from all roof and paved areas within the property, collected in a system of gutters, pits and pipelines and discharged to a public road via the existing stormwater drainage system of the site.
Structural Details – Residential Dwelling
Details and plans of reinforced concrete footings and piers, floor slabs, structural steel and stairs, must be provided and prepared by a practising Structural Engineer with suitable indemnity cover and is to be submitted to Council or the accredited certifier prior the issue of a Construction Certificate.
Reason:So that the structural adequacy of the design may be assessed in detail before construction commences.
Structural Adequacy
A Certificate of Adequacy signed by a qualified practising Structural Engineer with suitable professional indemnity cover must be submitted to Council in respect of the load carrying capabilities of the existing structure to support the proposed additions prior to Council issuing the construction certificate.
Reason: To ensure structural integrity of the building.
Plantation or recycled timbers
To minimise the damage to the environment, no rainforest timbers or timbers cut from old growth forests are to be used in the construction of buildings.
The Construction Certificate is to specify the timbers to be used. These are to be limited to plantation timbers grown on Australian farms, or State Forest Plantations, or recycled timbers.
Note: Refer to Energy Efficiency Information Sheet No 2, on Environmentally Sustainable Building Materials. (Appendix A of Leichhardt DCP No 17)
Insulation – Energy efficiency
To reduce both summer heat gain and winter heat loss, the proposed residential building(s) is to be insulated to achieve energy efficiency and thermal comfort. Insulation to the following R value standards is to be provided;
R1.5 for roofs and ceilings (combined value)
R1.0 for walls
Details are to be included in the specification submitted with the Construction Certificate.
Solar shading devices
To prevent overheating, summer sun penetration to the east facing walls of the proposed residential buildings are to be minimised by the use of solar shading devices such as awnings, external venetians, eaves, overhangs or other similar devices.
Details are to be submitted with the Construction Certificate.
A solar hot water service or a heat pump hot water service or 5 Star instantaneous gas hot water service shall be installed. The service must be adequately sized to meet the anticipated maximum hot water demand of the dwelling. Consideration should be given to positioning of the system such that its efficiency is maximised by minimising heat loss in pipe-work. Where a pump is used to circulate water between tank and remote panels, any noise associated with the pump must not exceed 5dB at the property boundary.
Details to be submitted to the Council or the accredited certifier prior the issue of a Construction Certificate.
Council property and environmental damage security - construction
Before the issue of the Construction Certificate for the erection of a building the applicant shall provide security to the value of $1160.00 for the payment of the cost of making good any damage caused to any Council property or to the physical environment as a consequence of the implementation of the consent. The security may be provided by way of a deposit with the Council or a guarantee satisfactory to the Council.
Should any of Council’s property and/or the environment sustain damage during the course of construction, or if the construction works put Council’s assets or the environment at risk, Council may carry out any works necessary to repair the damage and/or remove the risk. The cost of these works will be deducted from the security.
An inspection fee of $113.65 is also required to be paid to Council prior to the release of the Construction Certificate.
A request for release of the security may be made to the Council after all construction work has been completed.
Reason: For the protection of Council’s assets and the environment.
Smoke Alarm Systems
A smoke alarm system complying with AS 3786 - 1993 Self Contained Smoke Alarms - or listed in the Scientific Services Laboratory (SSL) Register of Accredited Products - Fire Protection Equipment must be installed in suitable locations on or near the ceiling in:
a)Any storey containing bedrooms
between each area containing bedrooms and the remainder of the dwellings, including any hallway associated with the bedrooms, or
In each bedroom, and
b)Any storey not containing bedrooms.
The smoke alarm system must be connected to the mains electrical power supply and must have a stand-by (battery backup) power supply. Details to be provided for approval with the Construction Certificate.
Reason: To ensure the safety of the occupants and users of the building.
Trees which may be removed
This consent includes approval under Council's Tree Preservation Order to remove the three palm trees adjacent to the southern (side) boundary of the site.
The Construction Certificate plans must include reference to the removal of the above mentioned trees and identify the trees by Council's reference number and colour or shade them in the colour red.
Conditions that must be completed before work commences
Sydney Water – Stamped Plans
Prior to the commencement of work, the approved plans must be submitted to the appropriate Sydney Water Office to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water’s requirements, the approved plans will be appropriately stamped.
Council or the accredited certifier must ensure that Sydney Water has stamped the approved plans before work commences on site.
Site Controls
Sediment and erosion controls must be in place before work is commenced on the site. The control strategies must be consistent with the technical requirements set out in the Sydney Coastal Councils’ “Stormwater Pollution Control Code for Local Government.”
Material from the site is not to be tracked onto the road by vehicles entering or leaving the site. At the end of each working day any dust/dirt or other sediment shall be swept off the road and contained on the site and not washed down any stormwater pit or gutter.
A sediment and erosion control plan must be prepared and identify appropriate measures for bunding and siltation fencing. Any such erosion and sedimentation controls shall also include the protection of stormwater inlets or gutter systems within the immediate vicinity of the site.
The sediment and erosion control measures are to be inspected daily and defects or system failures are to be repaired as soon as they are detected.
Demolition
Any demolition on the site is to be conducted in strict accordance with, but not limited to, sections 1.5, 1.6, 1.7, 3.1 and 3.9 of the AS 2601 - 1991, demolition of structures. The following measures must be undertaken for hazardous dust control:
a)Prior the demolition, the applicant shall submit a Work Plan prepared in accordance with AS 2601 by a person with suitable expertise and experience to the Principal Certifying Authority. The Work Plan shall identify any hazardous materials, the method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials.
b)Hazardous dust must not be allowed to escape from the site. The use of fine mesh dust proof screens or other measures is required.
c)All contractors and employees directly involved in the removal of hazardous dusts and substances shall wear protective equipment conforming to AS 1716 Respiratory Protective Devices and shall adopt work practices in accordance with the requirements of Work Safe Australia Standard, “Control of Inorganic Lead At Work (NOHSC: 102 and NOHSC: 2015)”.
d)Any existing accumulations of dust (eg; ceiling voids and wall cavities must be removed by the use of an industrial vacuum fitted with a high efficiency particulate air (HEPA) filter.
e)All dusty surfaces and dust created from work is to be suppressed by a fine water spray. Water must not be allowed to enter the street and stormwater systems.
f)Demolition is not to be performed during high winds that may cause dust to spread beyond the site boundaries.
g)All lead contaminated material is to be disposed of in accordance with the NSW Environment Protection Authorities requirements.
h)Following demolition activities, soil must be tested by a person with suitable expertise to ensure the soil lead levels are below acceptable health criteria for residential areas. Full certification is to be provided for approval by the Principal Certifying Authority prior the commencement of building works.
Reason: To ensure that all demolition works are carried out in a satisfactory manner so as to protect the safety and health of the public and to prevent pollution of air, soil and water.
Conditions that must be complied with during construction
Building Work Compliance Inspections
The building works must be inspected at the following stages during construction:
a)Pre-commencement
b)Foundations
c)Steel Reinforcement
d)Framework including floors walls roof.
e)Stormwater drainage lines.
f)Wet area flashings
g)Fire Rated Elements
h)Completion
A compliance certificate or documentary evidence from a appropriately qualified person must be submitted detailing satisfactory compliance with the Building Code of Australia within seven days of inspection to the Principal Certifying Authority.
Reason: To ensure all works are completed in a satisfactory manner.
Site Controls
Demolition, excavation, building or subdivision work associated with the proposed development shall be restricted to the hours of 7.00 a.m. to 5.30 p.m. Monday to Friday inclusive, 7.00 a.m. to 1.00 p.m. Saturday. Work is not to be carried out on Sunday or Public Holidays.
Debris and rubbish must be hosed down and kept damp to prevent dust nuisance, and waste materials must not be burnt on the site.
Demolition must be carried out to AS2601-1991 Demolition Code.
Reason: To ensure that all works are carried out in a satisfactory manner so as to protect the amenity and safety of the public.
Encroachments & Survey Certificate
No portion of the proposed structure shall encroach onto the adjoining properties.
All footings and walls adjacent to a boundary must be set out by a registered surveyor. On commencement of brickwork or wall construction a Survey and Report must be submitted to the Principal Certifying Authority indicating the position of external walls in relation to the boundaries of the allotment.
Reason: To ensure that the building is erected in accordance with the approval granted and within the boundaries of the site, and that existing amenity, structural integrity and functionality of adjoining premises is maintained.
Construction materials and machinery must be kept on site
All construction materials, sheds, skip bins, temporary water closets, spoil, etc, shall be kept within the property and not placed in a position that may result in materials being washed onto the roadway or into the stormwater system. No vehicles, skips or machines shall be permitted to stand on Council's footpath.
Reason: To preserve the amenity of the locality and to protect stormwater systems from pollution.
Conditions that must be complied with before the building is occupied
Approval to use/occupy building
The building or any part thereof must not be used or occupied until a completion inspection, has been satisfactorily carried out for class 1&10 structures.
Reason: To comply with the requirements of the Environmental Planning and Assessment Act 1979.
Conditions that are on going requirements of development consents
Waste Storage, Removal and Recycling
The dwelling shall be provided with its own bins (waste and recycling). Bin storage should be in the dwelling’s yard area (or garage or carport) with easy access to the Collection Point.
Details to be provided with the application for a Construction Certificate.
Reason: To provide for appropriate and sensible disposal of waste or recycling.
Prescribed Conditions
Compliance with Building Code of Australia
25.1All building work (other than work relating to the erection of a temporary building) must be carried out in accordance with the requirements of the Building Code of Australia (as in force on the date the application for the relevant construction certificate or complying development certificate was made).
25.2This clause does not apply to the extent to which an exemption is in force under clause 80H or 80I, subject to the terms of any condition or requirement referred to in clause 80H (6) or 80I (4).
Note: The intent of this condition is to emphasise that apart from the choice of full Building Code of Australia compliance, the applicant has the right to lodge an objection to the consent authority (and the NSW Fire Brigade in relation to a Category 3 Fire Safety Provision) that compliance with the BCA is inappropriate, unreasonable or unnecessary in the particular circumstance.
Any subsequent concurrence (conditional or otherwise) by the Consent Authority to the objection must be with, and consistent to, the express consent of the Director General of the Department of Local Government (and the NSW Fire Brigade having regard to a Category 3 Fire Safety provision).
Residential building work
26.1Building work that involves 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:
26.1.1In the case of work to be done by a licensee under that Act:
(a)has been informed in writing of the licensee’s name and contractor licence number, and
(b)is satisfied that the licensee has compiled with the requirements of Part 6 of that Act, or
26.1.2In the case of work to be done by any other person:
(a)has been informed in writing of the person’s name and owner-builder permit number, or
(b)has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in section 29 of that Act,
and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.
Note: The amount referred to in paragraph (b)(ii) is prescribed by regulations under the Home Building Act 1989. As at the date on which this Regulation was Gazetted, that amount was $3,000. As those regulations are amended from time to time, so that amount may vary.
26.2A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.
Note: The intent of this condition is to ensure that building work is carried out by licensed builders and owner builders who have appropriate insurance coverage.
Advisory - Important information for the applicant
Appointment of a principal certifying authority
No works in connection with this development consent are to be commenced until the applicant:
a)has had detailed plans and specifications endorsed with a construction certificate;
b)has appointed a Principal Certifying Authority, and;
c)has notified the Council of the appointment;
The applicant may appoint the Council or an accredited certifier as the principal certifying authority for the development.
If the principal certifying authority is not the Council, then the person so nominated must provide an acceptance of the nomination in writing to the Council. If the principal certifying authority is the Council, the nomination will be subject to the payment of a fee for the service to cover the cost of undertaking building work and/or civil engineering inspections.
Copy of Development Consent to be kept on site
For the duration of any work on site, the builder must maintain a copy of the specification, stamped approved plans, copy of Development Consent and Construction Certificate on site.
Smoke Alarm Certification
A Certificate of Compliance prepared by a licensed electrician shall be submitted to the Council prior an Occupation Certificate being granted to use or occupy the building or dwelling certifying that:
a)The smoke alarm unit complies with AS 3786 - 1993 Self Contained Smoke Alarms, or is listed in the Scientific Services Laboratory (SSL) Register of Accredited Products - Fire Protection Equipment.
b)The smoke alarm system is connected to the mains electrical power supply and has a stand-by (battery backup) power supply.
c)The smoke alarm system has been installed in the locations indicated on the plan approved by Council.
Termite Protection
Termite protection shall be provided in accordance with the requirements of AS.3660.1 Protection of buildings from subterranean termites, new buildings. The proposed method of treatment in accordance with the standard shall be submitted for approval by the Principal Certifying Authority with the application for a Construction Certificate.
__________________
G T Brown
Commissioner of the Court
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