Equitibuild Pty Limited v Leichhardt Municipal Council - [2004] NSWLEC 437

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Equitibuild Pty Limited v Leichhardt Municipal Council [2004] NSWLEC 437

PARTIES: APPLICANT:
Equitibuild Pty Limited
RESPONDENT:
Leichhardt Municipal Council

FILE NUMBER(S): 10770 of 2003

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Height bulk scale and streetscape character - Car parking

LEGISLATION CITED: Leichhardt Local Environmental Plan 2000, (LLEP) - State Environmental Planning Policy No 1, (SEPP1) - Residential Development Control Plan, (RDCP)

CASES CITED: Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 - Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported)

DATES OF HEARING: 18/06/2004 and 4/08/2004

DATE OF JUDGMENT: 08/12/2004

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Clay, barrister instructed by
Mr J Comino, solicitor
SOLICITORS:
Comino Prassas
RESPONDENT:
Mr G A Green, solicitor
SOLICITORS:
Pike Pike and Fenwick

JUDGMENT:

Appeal No: 10770 of 2003

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
12 August 2004
10770 of 2003
Equitibuild Pty Limited v Leichhardt Municipal Council
JUDGMENT
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Leichhardt Municipal Council (the council) of a development application to demolish most of the existing building, except for the façade and party wall of No 39 Booth Street and to erect a mixed-use commercial/ residential development comprising three (3) commercial tenancies including a restaurant and five (5) dwellings, car park and strata subdivision at Lot 2, DP 655515 and Lot 3, DP 1080, being Nos 39 and 41 Booth Street, Annandale, respectively.
2 I visited the land in company with the parties on the afternoon of 17 June 2004.
3 I have concluded that the proposal described in the Option 2 plans should be approved, as this would ensure that the floor space ratio, (FSR) of the proposal would more closely meet the allowable FSR than any other option and would limit the bulk of the proposal within the conservation area. In respect of the Option 2 plans I uphold the State Environmental Planning Policy No 1 (SEPP1) objection to the maximum FSR standard.

The land
4 The land, comprising two allotments, is situated on the northern side of Booth Street, one property removed from the northwestern corner of Booth and Nelson Streets.
5 Nos 39-41 Booth Street has a frontage of 11.960m to Booth Street, 9.03m to Booth Lane an average depth of 33.83m and a site area of 371.90m2. Erected on No 39 Booth Street is a two-storey brick building which is used, on the ground floor, as a restaurant.
6 No 41 Booth Street has a frontage of 6.095m to Booth Street and Booth Lane, a depth of 33.83m and a site area of 206.1m2. Erected on this portion of the land is a single-storey brick and fibro shop.
7 The land does not contain any significant vegetation and falls from Booth Street down to Booth Lane about 4.5m.
8 No 39 Booth Street is burdened and benefited by a cross easement affecting the party wall between Nos 39 and on the comer of Nelson Street, 37 Booth Streets.
9 There is erected on No 37 Booth Street, to the east of the land, a mixed commercial/ residential building comprising two levels of commercial use to the Booth Street frontage and two x two levels of dwellings to the Booth Lane frontage of similar scale and character as the existing building on No 39 Booth Street. A mixed commercial/ residential development has been approved for No 37 Booth Street.
10 No 43 Booth Street to the west of the land is a part three-level and part four-level commercial building with restaurant on the ground floor and commercial offices above. This Victorian terraced building is significantly larger than other development in the locality.
11 No 150 Nelson Street to the north, is a single storey dwelling.

Relevant planning controls

Leichhardt Local Environmental Plan 2000, (LLEP)
12 The land is zoned ‘Business’ and is located within a conservation area, and the proposal is permissible with consent under cl 21(3) of the LLEP. The land is not in the immediate vicinity of any items of environmental heritage.
13 The following development standards apply to the land:

14 The following clauses in the LLEP apply:
· 13 - General Objectives;
· 15 - Heritage Conservation;
· 16(8) - Conservation Areas;
· 17(a) Housing;
· 20 - Employment;
· 21 - Development Control Table - Business Zone; and
· 30 - Subdivision of land.

State Environmental Planning Policy No 1 – Development standards, (SEPP1)
16 Under cl 23(1) of the LLEP the maximum FSR is 1.5:1 and as the proposal exceeds this, consent under SEPP1 is required.

Other relevant SEPP's and REP'S
17 Other relevant environmental planning instruments are:
· SEPP 55 Remediation of Land; and
· SEPP 65 Design Quality of Residential Flat Development.

Residential Development Control Plan, (RDCP)

The proposal and its history
19 Development application No D/2003/835 was lodged with the respondent council on 8 October 2002, to demolish the existing building except for the façade and party wall of No 39 Booth Street and to erect a mixed use commercial/ residential development comprising three (3) commercial tenancies including a restaurant and five (5) dwellings, car park and to strata subdivide the land.
20 The development described in plans prepared by Hosking Munro, Architects. Option 3 is preferred by the applicant and is shown in drawing Nos HM700, OP3/D01-D04 Issue A, [Note: Exhibit F]. Option 2 preferred by the council is shown in drawing Nos HM700, OP2/D01-D04 Issue A, [Note: Exhibit E]. The proposal comprises:
· Excavation for a car parking level;
· Construction of a car park, accommodating seven (7) vehicles (including a disabled space), bicycle storage for seven (7) bikes, waste storage room, and various plant and equipment rooms;
· Two (2) shops fronting Booth Street at ground level Shop 1 comprising 86.74m2
· Shop No 2 comprising 136.38m2 for the use as a restaurant (no fit out details provided);
· A commercial tenancy to the rear fronting Booth Lane of 41.14m2;
· Toilet facilities for the shop/commercial premises;
· 3 x studio apartments at first floor;
· 1 x 1 bedroom split-level apartment over the first and attic floors and 1 x 1 bedroom apartment (Option 3) or 2 x 1 bedroom apartments (Option 2); and
· Strata subdivision.

Notification
28 The present application was notified to nearby owners and occupants in accordance with the Leichhardt Development Control Plan No 36, (DCP36) to forty-eight (48) adjacent properties by letter dated 2 January 2004 and the council received one (1) submission objecting to the proposal.
29 The council’s environmental health officer raised no objections to the application subject to the imposition of conditions and completion of a remediation action plan and based upon the assessments contained within:
· Primary Contamination Assessment for Nos 39-41 Booth St, Annandale (No: 418013/ESR) prepared by New Environment Management and Technology Pty Limited dated 5 March 2004;
· Remediation Action Plan for 39-41 Booth St, Annandale (No: 418011/RAP) prepared by New Environment Management and Technology Pty Limited dated 6 March 2004;
· Further Audit Advice (Ref JET1724-004/ETCJ) from Mr Ted Johnstone, EPA Accredited Site Auditor (No 9803) of Johnstone Environmental Technology dated 30 April, 20011, Architect Planner.

Additional information
30 By letter dated 5 January 2004, the council requested the applicant to provide additional information in support the application:
· A survey plan to AHD providing site details and the details of surrounding development, [Now provided in Exhibit C];
· Owners consent for the party wall between Nos 37 and 39 Booth Streets;
· Coloured plans of the new work and areas of the buildings to be retained;
· Materials and samples board for the development; and
· A structural engineers report detailing the method of retention and support for the area of the building to be retained.

The council’s decision
32 When the appeal was filed, the council had not determined the application. The council has now refused the original application, being “pre-Option minus 1”, for reasons of, [Note: Exhibit 6]:
1. Non-compliance with council’s floor space ratio controls;
2. The proposed development is contrary to the general objectives contained in cl 13 of the LEP2000;
3. Insufficient on-site car parking; and
4. Non-compliance with laneway development controls.

The hearing
33 The appeal was filed on 4 July 2004, and the court-appointed expert Ms Laidlaw, did not raise objection to Option 2 [Note: Exhibits 1, 2 and 3].

The issues
34 On 15 August 2003 the council filed a statement of issues in respect of the original application:

SEPP 55 - Remediation of Land

1.

Whether the Court has jurisdiction to determine the development application in the absence of a satisfactory preliminary investigation that complies with the EPA guidelines as required by Clause 7(2) of State Environmental Planning Policy No 55 ("SEPP 55").

Particulars:

(a)

The history of the site was not determined prior to the mid 1940's and 1950's;

(b)

The environmental condition of the site was not determined at a sufficient number of locations;

(c)

An analysis of an adequate range of chemicals of potential concern was not undertaken;

(d)

No analysis of potential contaminants was undertaken over No 41 Booth Street.

2.

Whether a detailed investigation pursuant to Clause 7(3) of SEPP 55 is required to be undertaken prior to the grant of consent.

3.

Whether the Court can be satisfied that the site is suitable for the proposed use in the absence of development consent for remediation.

SEPP 65 - Design Quality of Residential Flat Buildings

4.

Whether the application should be approved having regard to clause 30(2) of State Environmental Planning Policy No 65 - Design Quality of Residential Flat Buildings.

Aims and Objectives

5.

Whether the proposal satisfies Clause 7(3) Land Use Objectives of LEP 2000.

6.

Whether the proposal satisfies the requirements of Clause 13 - General Objectives of LEP 2000, in particular, Clauses 13(1)(b), 13(2) and 13(4).

7.

Whether the proposal satisfies the requirements of Clause 20 of LEP 2000, in particular Clauses 20(c) and (f).

Urban Design and Heritage Conservation

8.

Whether the proposed development is inconsistent with the objectives for heritage items and the heritage conservation area, particularly in terms of enhancing the character and identity of Annandale, having regard to Clause 13(4) of

9.

Whether the proposed development satisfies Clause 14 - Urban Design Principles of LEP 2000, in particular Clauses 14(b), (c), (d), and (l).

10.

Whether the proposed development is inconsistent with the objectives for heritage conservation, particularly in terms of protecting the streetscape and character of the Conservation Area, having regard to Clause 15(a), (b), (d), (e) and (f) of

11.

Whether the proposed development has an adverse affect on heritage significance of the Conservation Area, particularly in terms of compatibility of the size, form, scale, materials of the proposed development, having regard to Clauses 16(8) of

12.

Whether the proposed development satisfies the objectives and requirements of Part 7.0 - Heritage Conservation of the

(DCP 2000).

Floor Space Ratio

13.

Whether the proposal is unacceptable having regard to non-compliance with the floor space ratio controls in Clause 23 (1) (b) of the

("LEP 2000").

14.

Whether the submitted State Environmental Planning Policy No 1 - Development Standards ("SEPP 1") Objection in respect to Clause 23 (1) (b) of LEP 2000 should be supported and upheld.

Diverse Housing

15.

Whether the proposal fails to provide an appropriate mix of dwelling types in accordance with clause 19(6) of LEP 2000.

16.

Whether the proposal can be approved having regard to the absence of a

("SEPP 1") Objection in respect to Clause 19(6) of LEP 2000.

Height, Bulk and Scale and Streetscape Character

17.

Whether the proposed development is compatible with the scale, form, design and character of existing development in the locality.

18.

Whether the proposal satisfies the objectives and requirements of Part A 4.0 - Urban Form and Design and Part A 10.3 - Annandale Suburb Profile of DCP 2000, particularly with respect to Clause 10.3.4 - Booth Street Distinctive Neighbourhood, and the provisions of Clauses B 1.1, B 1.2, B 1.5, C 1.1, C 1.3 and C 1.4 of DCP 2000.

19.

Whether the proposed development is inconsistent with the principles and controls for dwelling entries, having regard to the provisions of Part B1.6 of

Car Parking

20.

Whether the proposed development is acceptable given the failure to comply with the controls for off street car parking, in particular the provision of disabled parking spaces and parking space dimensions having regard to the provisions of Part A8.0 of

.

Amenity

21.

Whether the proposed development satisfies the principles and requirements of DCP 2000, in particular:

(a)

Clause C2.2 - Energy Efficient Siting and Layout;

(b)

Clause C2.4 - Solar Control;

(c)

Clause C2.6 – Ventilation.

22.

Whether the proposed development will have an unacceptable impact upon the residential amenity of adjoining properties with respect to Clause A5.0 Amenity, Clause B3.1 - Solar Access, Clause B3.3 - Visual Privacy and Clause B3.5 - Acoustic Privacy of DCP 2000.

Development Types

23.

Whether the proposal is acceptable with regard to the requirements of Clause B4.3 - Development Type 3: Laneway Development of DCP 2000.

24.

Whether the proposal is acceptable with regard to the requirements of Clause B4.6 - Development Type 6: Residential Development in Business Areas of DCP 2000.

The Public Interest

25. Whether the proposed development should be approved having regard to the public interest and the circumstances of the case.

The evidence and findings

SEPP1 and height, bulk, scale and streetscape character
35 During the hearing the applicant amended the original application before the Court [Note: Exhibit A]. The applicant seeks consent for the proposal described in either the Option 1 in Exhibit D, with the attic intact; or Option 3 plans in Exhibit F with the eastern attic deleted or Option 2 with the whole of the attic deleted in Exhibit E.
36 The Option 3 plans describe a development with an agreed floor space ratio, (FSR) of 2.447:1 including the basement, or 1.48:1 excluding the basement car park. The Option 2 plans describe a development with a FSR of 2.33:1 or 1.37:1 excluding the basement car park. The Option 1 plans would have a FSR of 2.55:1 and excluding the attic 1.587:1, [Note: Exhibit J].
37 I have carefully assessed only Options 2 and 3, as Option 1 would be further in excess of the FSR standards and on the evidence of Ms Laidlaw would have a greater impact on the streetscape of Nelson Street than either of the other options. The ‘generic’ SEPP1 objection in Exhibit H as modified by the FSR calculations in Exhibit J is said to apply to any of the options under consideration.
38 Option 2 with a FSR of 1.37:1 would present to the lane as being 48.35m2 below the allowable gross floor area if only habitable space, above basement level, were included in the calculation. Thus, the bulk of the habitable area above basement level would be slightly less than the FSR standard of 1.5:1 would otherwise allow. That part of the basement car park that protrudes most out of the ground fronts the lane. With a frontage to the lane of 9.03m, 5.35m of the depth of car park protruding out of the ground could be included in the FSR before the bulk of the building, when measured as FSR, would exceed the standard. At that depth, of 5.35m from the alignment of the lane, the basement car park would be hidden behind the flanking sidewalls of the neighbouring buildings and in part below ground level. The basement level is proposed to be 11.700m AHD at the garage door and the level of the ground on No 39 Booth Street 5.35m back from the lane alignment is 12.43m AHD and the driveway at the garage doorway would be around 730mm below the ground level further back. The basement level slopes up so at 5.35m from the lane alignment, the floor level would be around 12.0m AHD or 430mm below ground level at that point, [Note: Exhibit C, Survey]. At Booth Street the proposed basement car park would be fully below the footpath level. Thus, I am satisfied that the bulk of Option 2 above basement level when viewed from the lane and Nelson Street would be commensurate to that expected by the council, given the 1.5:1 FSR applying to the land. This conclusion is consistent with the opinions held by Ms Laidlaw, which I accept in this regard.

39 Option 3 at a FSR of 1.48:1 would present to the lane as being 7.44m2 below the allowable gross floor area if only habitable space, above basement level, were included in the calculation. Thus, if the basement car park were included, a depth of less than 1m would be included before the FSR of 1.5:1 were exceeded. At that depth the basement car park would hardly be hidden from view from Nelson Street, as the only screening, from the east, would be that provided by the garbage store on No 37 Booth Street.
40 Ms Laidlaw stated when considering the earlier proposal, [Note: Exhibit 2 p 5]:

Most of the garage level exceeds 1m above ground level, which leads to a requirement for it to be included as FSR, and the excess FSR still does contribute to visual bulk

“…the consequences of both are known”

“…went through the original plans [and compared these with those now before the court] and understood them. North elevation is the same, the only variables is the attic and that is discrete in terms of functionality.”

“…atypical roof and profile”

Winten Property Group Limited -v- North Sydney Council,

Hooker Corporation Pty Limited v Hornsby Shire Council

…it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

46 Taking each question posed by his Honour Lloyd J in respect of Option 2 and answering it:
· the maximum FSR of 1.5:1 under the LLEP is a development standard;
· the underlying purpose of the maximum FSR standard is to “…limit bulk and scale in a manner compatible with surrounding development and the conservation area, and as far as residential development is concerned, to support the objectives and provisions of the RDCP including those related to ‘laneway development” , [Note: Exhibit 1 p 17]. I accept the evidence of Ms Laidlaw that the SEPP1 objection to the FSR standard of the LLEP could be supported with (a) the deletion of the attic and (b) modification of the northern façade, to step the development including balconies away from the lane. Both these amendments are included in Option 2 the latter to a limited degree.
· The proposal described in the Option 2 plans would be consistent with the aims of the Policy and would not tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act for orderly and economic use of land;
· compliance with the development standard is unreasonable or unnecessary in the circumstances of the case in respect of the Option 2 plans, as the proposed FSR would allow that part of the basement car park that is largely above ground level to be counted as floor space. Thus the bulk of the proposal would be similar to that of a development that fully complies.
· the objection is well founded.

Car parking
50 The car parking demand calculations reveal, [Note: Exhibit K]: The existing development is required to provide eight (8) car parking spaces and none is provided, leaving a deficiency of eight (8) car parking spaces. In order to satisfy the Code, the applicant would need to provide eleven (11) car parking spaces and seven (7) are proposed. This would leave a deficiency of four (4) car parking spaces. Whether or not the attic is included would not affect this deficiency of car parking spaces.
51 Ms Laidlaw addressed the aspect of goods hoist, assessable ramp and loading bay and indicated no concern in respect of the amount of car parking proposed. I accept that within a commercial area and a conservation area it might not always be possible to provide the required car parking even if the bulk is limited to the allowable FSR. In the particular circumstances of this case, I would not refuse the application for lack of car parking.

Other matters
52 There are no other matters that would require special consideration by the Court other than the imposition of conditions.
53 For the above reasons, and when considered under the heads of consideration of s 79C of the Environmental Planning and Assessment Act 1979, the appeal in respect of Option 2 is upheld.

Conditions
54 The conditions are those in Exhibit 7: Conditions for Option 2 received after submissions.

Orders
55 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. The State Environmental Planning Policy No 1 objection to the floor space ratio development standard in the Leichhardt Local Environmental Plan 2000 in respect of Option 2 is upheld.
3. Development application No D/2003/835 originally lodged with the respondent council on 8 October 2002 to demolish the existing building except for the façade and party wall of No 39 and to erect a mixed use commercial/ residential development comprising three (3) commercial tenancies including a restaurant and five (5) dwellings, car park and to strata subdivide, all as amended in Option 2, at Lot 2 DP 655515 and Lot 3 DP 1080, being Nos 39 and 41 Booth Street, Annandale, respectively, is approved subject to Conditions 1 to 75 in Annexure A.
4. The exhibits with the exception of Exhibits C, E, H, J, K and 7 are returned.
S J Watts
Commissioner of the Court
sw

Appeal No: 10770 of 2003

Conditions of development consent

Annexure A

Equitibuild Pty Limited
v
Leichhardt Municipal Council
39 – 41 Booth Street, Annandale

Pursuant to s81(1)(a) of the Environmental Planning & Assessment Act 1979 a “Deferred Commencement Consent” is granted to Development Application No: D/2003/835 for a mixed commercial residential development and strata subdivision at 39-41 Booth Street, Annandale subject to the following conditions:
A. The rear doors from the shop and restaurant are to be fully recessed within the areas so that the doors do not encroach upon the passageway. This will reduce the likely injury to people using the passageway to gain access to the toilets.

B. Details of the location of the proposed commercial kitchen exhaust is to be submitted to the satisfaction of Council.

C. The bicycle storage area is to be reviewed and amended to comply with the Austroads guide to Traffic Engineering Practice (Part 14 – Bicycles).

D. The goods hoist shall be relocated, or the profile of the driveway adjacent to it shall be amended, to ensure a level platform adjacent to the hoist opening within the car park, of minimum dimensions 1500mm x 1500mm to the satisfaction of Council. (Reason: to ensure the efficient functioning of the development).

E. Detailed working drawings showing the proposed treatment of the southern façade, including colours, materials and detailing shall be submitted to Council for its approval. These details shall provide a means of identifying the new façade of No. 41 as distinct from the original façade of No. 39 (reason: to ensure satisfactory presentation to streetscape and conservation area).

F. A detailed methodology and work programme shall be submitted to the Council to ensure that the structural integrity of both walls to be retained (south and east), and necessary support to the neighbour to the east (no. 37). The detailed methodology and work programme shall be confirmed by a qualified structural engineer.

This consent will not operate unless the information in satisfaction of deferred commencement conditions A to F above is submitted to Council within 12 months of the date of this consent.

General conditions

(b) The person or company carrying out the works shall submit to Council references demonstrating experience in the type of work proposed to be undertaken. The person or company shall obtain approval from Council to carry out the works prior works commencing.

(c) The applicant will be required to pay for inspections in accordance with Council’s fees and charges.

The development shall be implemented in accordance with the details set out on the plan numbers HM700 Sheets OP2/D01, OP2/D02, OP2/D03 and OP2/D04, revision A prepared by Hosking Munro and dated July 2004 and on the application form and on any supporting information received with the application except as amended by the conditions specified hereunder.

Conditions that must be satisfied before a Construction Certificate is issued

(i) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property.

(a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided; and

(a) A dilapidation report shall be prepared by a qualified engineer on the current state of each of the existing buildings at 37 and 43 Booth Street, Annandale. The report shall be supplemented by or incorporate a photographic record of internal or external condition of the buildings. Such reports shall be completed and submitted to Council before the commencement of excavation works. Upon completion of the approved building works and before occupation, a second dilapidation report is to be carried out on the buildings following construction of the approved development. The developer or owner of the subject site is to pay for the cost of the abovementioned reports. If any damage is caused to paths, fences, gardens or buildings on an adjoining property by reason of the carrying out of the approved development, the developer and owner are each jointly and severally liable to pay to the owner of the adjoining property reasonable compensation in respect of the resulting damage.

basement carpark and

(b) guidelines or requirements for the building contractor to follow as to the manner of excavation and construction basement carpark, and

(c) the supervision by an engineer of critical work adjoining the common boundaries

for the purpose of preventing any damage to the immediately adjoining properties (including damage to buildings, fences or gardens) caused by lateral movement, loss of support, vibrations or otherwise caused by the excavation and construction of the basement carpark. The specification and engineering plans shall be accompanied by a joint report of a geotechnical engineer and a structural engineer certify that if the development is carried out in accordance with the specification and plans damage is unlikely to occur to the adjoining properties. The excavation and construction shall only be carried out in accordance with the approved specification and plans.

4 As the combined area of the carparking level and the ground floor level would exceed 500 m2, these floors are to be provided with fire hose reels. Details on the location of these fixtures is to be submitted with the Construction Certificate application.

The goods hoist shall be make available for use for all tenants (reason: to ensure the efficient functioning of the development).

Prior the issue of a Construction Certificate, the applicant is to submit to Council or the accredited certifier a Fire Safety Schedule specifying:

(a) The essential services that are currently installed in the building;

(b) The essential services that are to be installed in the building in connection with the proposed structural alteration or change of use must be submitted;

Reason: To ensure the safety of the occupants and users of the building.

7 The fire stair is to be finished internally to a high standard such that it is suitable for use as the principal means of pedestrian access to the residential units (details to be provided with the construction certificate application).

8 a sign shall be installed at each level of the fire stair advising that the stair is a fire stair and is not to be obstructed at any time.

9 the fire door to the fire stair shall be provided with a lock which shall be openable from the laneway only by keys to be made available to the owners/tenants of the residential and retail units.

10 all deliveries and removal of garbage and waste from the retail and restaurant tenancy shall be via the goods hoist only and in particular, such activities shall not occur through the use of the fire stair.

$49,306.00

This contribution has been imposed pursuant to s.94 of the Environmental Planning and Assessment Act 1979 , and the Leichhardt Open Space and Recreation Contributions Plan, after identifying that the development will increase the demand for local and district open space within the area.

Payment will only be accepted in the form of cash, bank cheque or EFTPOS/Credit Card (to a maximum of $10,000). It should be noted that personal cheques cannot be accepted for Section 94 contributions.

with no concession for existing dwellings.

The Contribution Plan may be inspected or a copy purchased at the Customer Service Counter in Council’s Administration Centre, 7-15 Wetherill Street, Leichhardt during office hours.

Reason: To ensure adequate provision is made for provision of public services and amenities required as a consequence of the development being carried out.

$7,868.57

This contribution has been imposed pursuant to s.94 of the Environmental Planning and Assessment Act, 1979 and the Leichhardt Community Facilities and Services Contributions Plan, after identifying that the development will increase the demand for community facilities and services within the area.

Payment will only be accepted in the form of cash, bank cheque or EFTPOS/Credit Card (to a maximum of $10,000). It should be noted that personal cheques cannot be accepted for Section 94 contributions.

with no concession for existing dwellings.

The Contribution Plan may be inspected or a copy purchased at the Customer Service Counter in Council’s Administration Centre, 7-15 Wetherill Street, Leichhardt during office hours.

Reason: To ensure adequate provision is made for provision of public services and amenities required as a consequence of the development being carried out.

$774.76

This contribution has been imposed pursuant to s.94 of the Environmental Planning and Assessment Act, 1979 and the Leichhardt Contributions Plan – Transport and Access, after identifying that the development will increase the demand for transport and access works and facilities within the area. It has been calculated on the basis of 5 new dwellings, being 3 small and 2 medium sized dwellings, and the provision of no nett increase in commercial floor space.

Payment will only be accepted in the form of cash, bank cheque or EFTPOS/Credit Card (to a maximum of $10,000). It should be noted that personal cheques cannot be accepted for Section 94 contributions.

The Contribution Plan may be inspected or a copy purchased at the Customer Service Counter in Council's Administration Centre 7-15 Wetherill Street, Leichhardt during office hours.

Reason: To ensure adequate provision is made for provision of public services and amenities required as a consequence of the development being carried out.

Before the issue of a Construction Certificate for the erection of a building the applicant shall provide security to the value of $2427.30 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 $113.85 is also required to be paid to Council prior to the release of the Construction Certificate.

The amount nominated is current for the 2003/2004 financial year only and is revised each financial year. The amount payable must be consistent with Council’s Fees & Charges in force at the date of payment.

Reason: For the protection of council’s assets and the environment.

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) how it is proposed to ensure that soil/excavated material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways,

Where it is proposed to:

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.

a) Where soil conditions permit, the base of the silt arrester shall have weep holes, and be underlain by a 200mm layer of blue metal wrapped in a geofabric. Where subsurface conditions are unfavourable, the silt arrester shall be deleted from the plans.

Prior to the issue of Construction Certificate, the amended plans, together with Certification by a suitably qualified Civil Engineer with NPER registration with the Institution of Engineers Australia shall be submitted to the Principal Certifying Authority.

Any stormwater runoff collected from the site must be treated in accordance with the Guidelines, before discharge off the site to comply with the Clean Waters Act 1970, or other subsequent Acts.

Where sedimentation control basins are provided discharge shall be to the requirements of the Environment Protection Authority.

1) "Sedimentation and Erosion Control” - Department of Conservation and Land Management.

2) “Soil and Water Management for Urban Development” - Department of Housing.

BANKSTOWN, NSW, 2200

18 An application must be made to Council’s Manager – Assets for the issue of a Certificate fixing levels at the property alignment prior to commencement of building work to ensure that the finished floor levels of new structures or land adjoining the roadway satisfy Council’s roadway design requirements. If in doubt, contact Council’s Operations Division, telephone 9367 9006, to avoid being required to carry out later rectification work.

An application must be made to Council for the construction of these works. Upon receipt of advice from Council of the estimated cost of construction, payment of the amount must be made as soon as practicable to enable the works to be completed prior to completion of the building work.

The cost of adjustment or relocation of any public utility service shall be borne by the owner/applicant.

20 The applicant or successor shall lodge a payment or a security bond for road, footpath and drainage works in the form of a bank guarantee, for the sum of $11,400 prior to the release of the Construction Certificate. The costs associated with the road and drainage works shall be assessed using Council’s adopted construction charges current at the time.

21 Internal adjustments must be made to the vehicular access ramp levels to ensure that levels at the boundary comply with those obtained in the Level Certificate issued by Council’s Manager - Assets. The longitudinal profile along both sides of the vehicular access must comply with the Ground Clearance requirements of AS2890.1 – 1993.

22 A minimum of one (1) off-street car parking bay must be allocated to each residential unit. The spaces must be signed and pavement marked accordingly.

23 Parking bay number one (1) shall be allocated as a loading bay for the commercial / retail component of the development.

24 To improve visibility for vehicles parked in bay number one (1), or those entering / leaving the premises, an appropriately located convex mirror shall be provided.

A Certificate establishing the levels at the property boundary is to be obtained from Leichhardt Council before the issue of a Construction Certificate.

Reason: To obtain alignment levels at the property boundary that will accord with Council’s design or existing road and footpath levels .

All signs, car park lighting, security or other lighting associated with the development, shall be designed and positioned so to minimise any light spill upon any adjoining property.
Energy efficient (ie. solar) exterior lighting is encouraged and must meet both safety and off street standards.
Details are to be submitted to and approved by Council or the accredited certifier prior the issue of the Construction Certificate.
All existing and proposed lights shall comply with the Interim Australian Standard AS4284(Int) - 1995 - Control of the Obtrusive Effects of Outdoor Lighting.

Reason: To prevent the proposed development having a detrimental impact effect on the existing development on adjoining land

Centralised, gas boosted solar hot water services or centralised heat pump services shall be installed. The service must be adequately sized to meet the anticipated maximum hot water demand of each dwelling. Consideration should be given to position of the hot water system such that its efficiency is maximised by minimising heat loss in pipe-work.

In the case of centralised solar hot water services, the service installer must provide written confirmation that a minimum of 50% of the water heating per annum is provided from solar energy input. 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 Council or the accredited certifier prior the issue of a Construction Certificate.

To ensure that adequate provision is made for ventilation of the building all mechanical and/or natural ventilation systems shall be designed, constructed and installed in accordance with the provisions of:

Evidence from an appropriately qualified person certifying that these design requirements have been met shall accompany the application for the Construction Certificate.

29 Smoke Alarm Systems

a) Any storey containing bedrooms

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.

Each dwelling must provide for the complete drying of laundry. In this regard, a suitably screened outdoor drying area in close proximity to each dwelling with clothes line or similar would be acceptable. Where site constraints prevent an outdoor drying area and a clothes dryer is provided, appliances with an energy star rating of at least 3.5 shall be installed.

Details are to be submitted with the Landscape Plan for approval prior the issue of a Construction Certificate.

Reason: To ensure the adequate provision of clothes drying facilities to each dwelling and to minimise energy consumption for clothes drying.

31 Substation treatment

Any required substation kiosk is to be suitably screened from view and its proposed siting is to be submitted for approval in conjunction with the landscaping plans prior the issue of a Construction Certificate.

Reason: To ensure that there is minimal detrimental visual impact of the substation kiosk .

32 Driveway, kerb, guttering, footpath, drainage costs to be borne by applicant

The applicant or successor shall bear the cost of any driveway, footpath, kerb, guttering or stormwater drainage deemed necessary by Council as required by conditions contained in this development consent.

Details of compliance with any conditions for works are to be submitted for approval prior to the issue of a Construction Certificate.

Reason: To ensure that all necessary works are carried out to a standard satisfactory to Council .

33 Emergency lighting

A system of emergency lighting complying with AS 2293 (Part 1) must be provided in accordance with the requirements of Part E4 of the Building Code of Australia. A detail plan of position of emergency lights must be submitted to the Principal Certifying Authority with the application for a Construction Certificate.

Reason: This condition is to ensure the safety of persons in the building in the event of fire.

34 Waste Management Plan - Construction

Waste Planning Guide for Development Applications (Planning for Less Waste,

Reason: To encourage waste minimisation (avoidance source separation, re-use and recycling) and ensure efficient storage and collection of reusable, recyclables and waste.

35 Garbage storage areas

Reason: To ensure garbage storage areas are maintained and accessible.

Detailed plans drawn to the scale of 1:20 for the development shall be submitted in accordance with the requirements of AS 1428 Part 1 and DCP 32 prior to the issue of a Construction Certificate, showing detailed levels, ramp slopes, door widths and circulation spaces.

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.

38 Sydney Water

A Notice of Requirements for a Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water.

Sydney Water may require you to construct works and/or pay developer charges, details of which will be provided in a Notice of Requirements from Sydney Water. You should make immediate application for a Certificate and obtain a Notice of Requirements. Early advice will avoid problems in providing water and sewer services to your development and adverse impacts on lot layout, other service or design of buildings, driveways and landscaping.

Conditions that must be satisfied before a Subdivision Certificate is issued

39 Subdivision plans

Prior the issue of a Subdivision Certificate, the applicant is to submit a survey plan, prepared by a registered surveyor, and at least six copies for certification by the General Manager or delegate.

Reason: Because it is in the public interest that the plan is certified by the General Manager or delegate, pursuant to the provisions of the Environmental Planning and Assessment Act 1979 (or if relevant Local Government Act 1919) and that Council retain and catalogue a copy of that plan.

40 Section 73 Certificate

Prior the issue of a Subdivision Certificate, the applicant is to submit a certificate under Section 73 of the Water Board (Corporisation) Act 1994.

Reason: To ensure the provision of services is available to service the subdivision .

An application under Section 37 of the Strata Titles Act, 1973 must be submitted to Council and granted approval prior the release of the certified strata plan of subdivision.

Reason: Because it is in the public interest that the plan is certified by the General Manager pursuant to Section 37 of the Strata Titles Act 1973, as amended and that Council retain and catalogue a duplicate copy of that plan.

The Strata Plan of subdivision will not be issued until documentary evidence of compliance with conditions of Development Consent No. D/2003/835 has been submitted to Council.

Reason: To ensure compliance with the Environmental Planning and Assessment Act 1979 and conditions of consent.

Conditions that must be completed before work commences

43 A Stage 2 Contamination Investigation is required to be undertaken after the site structures are demolished and prior to construction as it has been stated that the tenant lease and physical layout makes further investigation difficult at this stage and the site auditor considers the sampling so far reported being inadequate. This investigation is to be reviewed by an EPA Accredited Site Auditor prior to remediation.

44 At the completion of the remediation work, and prior to the release of any Construction Certificate and commencement of any building work on the site, a validation report is required to be submitted to Council and reviewed by a NSW EPA Accredited Site Auditor. A Site Audit Statement is to be issued that the site has been remediated in accordance with EPA guidelines for the proposed use.

45 Asbestos and/or lead removal

The existing structures on site potentially contain asbestos and/or lead. Following removal of any asbestos located on site a clearance must be provided to the Principal Certifying Authority certifying that no such asbestos remains on site from a suitably qualified person.

A copy of the Certificate must be forwarded to Council before construction work is commenced

Any demolition on the site is to be conducted in strict accordance with, but not limited to, sections 1.5, 1.6, 1.7, 1.8, 3.1, 3.3 and 3.9 of the AS 2601 - 2001, demolition of structures.

a) Prior the demolition, the applicant shall submit a Work Plan prepared in accordance with AS 2601 appendix A by a person with suitable expertise and experience to the Principal Certifying Authority. The Work Plan shall be applicable to the scale of the structure to be demolished and 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 or contaminate the immediate environment. The use of fine mesh dust proof screens, wet-lead safe work practices, or other measures is required.

Control of Inorganic Lead At Work

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 and disposed of appropriately.

e) All dusty surfaces and dust created from work is to be suppressed by a fine water spray. Water used as a suppressant spray is not be allowed to enter the street gutter and stormwater systems.

f) Demolition is not to be performed during high winds that may cause dust to spread beyond the site boundaries without adequate containment.

g) All lead contaminated material is to be disposed of in accordance with the NSW Environment Protection Authorities requirements.

h) Construction and demolition waste, particularly timber, bricks and tiles, concrete and other materials need not be disposed of they can be recycled and resold if segregated properly from hazardous waste contamination.

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.

Any soil proposed to be disposed off site is to be tested to ensure that it meets the criteria set out in "Environmental Guideline - Landfill Disposal of Industrial Wastes, WD-3", prepared by the Environment Protection Authority.

Any soil, which fails to meet the criteria, is not to be disposed of off site unless agreed to in writing by the Environment Protection Authority. Results of the testing are to be forwarded to Leichhardt Council and the Environment Protection Authority for acknowledgment before any off-site disposal and before proceeding with any construction works.

Reason: To ensure protection of the environment and to ensure adequate levels of health and amenity to the occupants of the premises or any building erected thereon.

Any contaminated liquid wastes or runoff to be discharged into the stormwater or sewerage system should be done so in accordance with the requirements of the responsible government authorities (ie Environment Protection Authority and Sydney Water).

Reason: To

ensure the protection of the environment

All underground tanks if found on the site are to be abandoned in accordance with the Regulations of the Dangerous Goods Act.

Reason: To ensure the safety of occupants of the premises and for the protection of the environment.

All hazardous materials are to be removed from the site in accordance with the requirements of the relevant legislation, codes, standards and guidelines, prior commencing with any demolition works.

All hazardous materials are to be disposed of at an approved waste disposal facility.

Prior carrying out any asbestos removal works, full details complying with the relevant provisions of all relevant Acts are to be submitted to Council on the method of containment and control of emission of fibres to the air. The proposed methods of containment and control of fibres are to be to the satisfaction of Council.

Reason: To ensure the safety of occupants of the premises and for the protection of the environment.

All asbestos removal and transportation works are to fully comply with the requirements of WorkCover NSW and the Environment Protection Authority, as well as the "Code of Practice for the Safe Removal of Asbestos (NOHSC:2002 (1988))" prepared by the National Occupation Health and Safety Commission. The requirements of WorkCover NSW and the Environment Protection Authority are to be obtained before proceeding with the removal of any asbestos.

Reason: To ensure the safety and health of occupants and visitors to the premises and for the protection of the environment.

Following the removal of any asbestos, a clearance is to be obtained to certify that no asbestos products remain on-site. A copy of the clearance is to be forwarded to, and acknowledged in writing by Council, prior proceeding with any works.

Reason: To ensure the safety and health of occupants and visitors to the premises and for the protection of the environment.

53 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.

54 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.

Conditions that must be complied with during construction

55 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.

56 Noise

Noise levels during the demolition and construction stages must comply with the Environmental Protection Authority's Environmental Noise Control Manual and the Protection of the Environment Operations Act 1997.

Reason: To ensure that all works are carried out in a satisfactory manner so as to protect the amenity and safety of the public.

Building materials are to be located wholly on site and not placed in a position that may result in materials being washed onto the roadway or into the stormwater system.

Construction material and vehicles shall not block or impede public use of footpaths or roadways.

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.

60 No encroachment on Council property

No portion of the proposed structure, including gates and doors during opening and closing operations, shall encroach upon Council’s footpath area.

Reason: To ensure no injury is caused to persons and to the existing and likely future amenity of the area.

For construction and demolition periods of 4 weeks or less the L10 level, measured over a period of 15 minutes when the construction or demolition site is in operation, must not exceed the background level by more than 20dB.

For construction and demolition periods greater than 4 weeks and not exceeding 26 weeks the L10 level, measured over a period of 15 minutes when the construction or demolition site is in operation, must not exceed the background level by more than 10 dB.

Reason: To protect the amenity of the area.

All construction materials, sheds, skip bins, temporary water closets, spoil, etc, shall be kept within the property. 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

63 Approval to use/occupy building

The use of the non residential areas within the building will require the lodgement of a development application for the use of these premises prior to occupation.

Reason: To comply with the requirements of the Environmental Planning and Assessment Act 1979.

64 Dilapidation Report and rectification of damage

(a) Prior to issue of an Occupation Certificate and/or prior to occupation of the development, a dilapidation report shall be submitted to the Principal Certifying Authority, and a copy submitted to Council, AND

Prior to the issue of an Occupation Certificate and/or prior to occupation of the development

It should be noted that resolving any dispute with regard to any damage or defects found during construction is a private matter between the individual parties.

Reason: To ensure that any damage to adjoining property is rectified following building work and prior to occupation

65 Street Numbering

Prior to the issue of an occupation certificate the developer shall furnish the Council with a schedule of individual unit/street numbers allocated to the units within each block of units, that are otherwise to be in accordance with the street numbering approval letter issued by Council.

66 Need for Compliance Certificates

A compliance certificate or documentary evidence from an appropriately qualified person shall be provided to the Principal Certifying Authority when the relevant work has been completed and prior the issue of an occupation certificate, to the effect that:

· erosion controls have been implemented as required in the development consent.

· the building has been set-out by survey in accordance with the requirements of the development consent.

· at completion of the lowest floor the levels reduced to AHD comply with the levels approved in the development consent.

· stormwater drainage has been constructed in accordance with the terms of the development consent.

· any discharge to the sewer from the subject premises is in accordance with the requirements of the Trade Waste Section of Sydney Water Corporation Ltd.

· all work in connection with the occupation or use of the premises for the preparation, display and storage of food has been carried out in accordance with the terms of the development consent.

· the acoustic qualities of the building comply with the requirements of AS 2107 - 1989.

· the noise from all sound producing plant, equipment, machinery or fittings associated with or forming part of the mechanical ventilation and/or the refrigeration system complies with the terms of the development consent.

· the landscape works have been completed in accordance with the detailed landscape plan approved in conjunction with the construction certificate.

Reason: To ensure compliance with the development consent.

67 Upon completion of all drainage works, work-as-executed plans with Certification by a suitably qualified Civil Engineer with NPER registration with the Institution of Engineers Australia shall be submitted to verify that the required drainage works have been constructed in accordance with the approved design, prior to the issue of the Occupation Certificate .

The terms of the 88E instrument with positive covenant shall include, but not be limited to, the following:

a) The Proprietor of the property shall be responsible for keeping clear, and the maintenance of all pits, pipelines, trench barriers and other structures.

b) The Proprietor have the on-site stormwater detention facilities (“OSD”) inspected annually by a competent person.

prior to the issue of the Occupation Certificate

Conditions that are ongoing requirements of Development Consents

The owner of the building must certify to Leichhardt Council every year that the essential fire safety measures installed in the building have been inspected and are capable of operating to the required minimum standard.

Reason: This condition is to ensure that there is adequate safety of persons in the building in the event of fire and for the prevention of fire, the suppression of fire and the prevention of spread of fire in accordance with the Fire Safety Schedule.

71 Waste and Recycling Containers

(a) Waste or recycling containers may only be placed by persons, or companies, holding a current licence from the Council. The licence applies to the owner, or provider, of the waste container.

(b) Only one waste and one recycling container at any time may occupy the road reserve at any property frontage.

(c) The waste and recycling containers shall be placed only on the carriageway (and not on the footpath) parallel to and 450 mm from the kerb so as not to impede flow of water in the gutter or to cause any obstruction to traffic.

(e) The waste and recycling containers shall be NOT WIDER THAN 1.5m and be completely painted in white or yellow colour.

(f) If the waste and recycling containers is to be placed outside a corner property, it shall not be located closer than six (6) metres from the boundary of the cross street. If this would place the waste container beyond the applicant’s property, then the prior written consent of the adjacent property owner is required to be obtained.

(g) A deposit of $1,000.00 as a security against damage to Council property shall be lodged with Council for the period of the licence.

(h) A public risk insurance policy shall be held by the licensee in joint names of the licensee and the Council - minimum cover of $10,000,000 - copy to be provided to Council prior the issue of a Construction Certificate.

(i) No asbestos material shall be disposed of into the waste container used for general waste. Specifically marked asbestos / hazard waste containers are required for asbestos and must be covered when not in use.

(j) Waste and recycling containers shall be kept covered when not in use.

(k) All efforts shall be made to ensure that demolition material is recycled and the amount of waste from the site is minimised.

(l) The waste and recycling containers shall stand on the street for a maximum period of 14 days at which time, a replacement bin must be provided.

Reason: To ensure proper removal and legal disposal of waste and hazardous materials, and protection of stormwater systems and to reduce illegal dumping of waste.

72 Access to the off-street loading / unloading area must not be restricted by security doors or intercom access during the business hours approved for the commercial component of the development.

73 All vehicles (excluding delivery vehicles) must enter and exit the site in a forward direction.

74 Pedestrian / fire stair access to the basement car park must be kept clear of obstacles, including parked vehicles, at all times.

75 All off-street parking bays must be used for the sole purpose of parking vehicles.

Advisory - Important information for the applicant

1. Building work Compliance Inspections

a) Pre-commencement

b) Foundations

c) Steel Reinforcement

e) Stormwater Drainage Lines

If council is appointed as the principal certifying authority, you will be advised as to the inspections to be carried out.

If the PCA is appointed after the 1 July 2004, mandatory critical stage inspections will be required by legislation to be carried out by the PCA (or other certifying authority some cases).

A letter of agreement between the person having benefit of the consent and the PCA (if Council or an accredited certifier) will set out the required mandatory critical stage inspections for the class of building.

The PCA (or other certifying authority in some cases) must inspect the site on these occasions and an occupation certificate can not be issued unless the required inspections have been undertaken.

Reason: To ensure all works are completed in a satisfactory manner.

2. Appointment of a principal certifying authority

a) Has had detailed plans and specifications endorsed with a construction certificate;

b) Has appointed a Principal Certifying Authority; and

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.

3. 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.

4. Smoke Alarm Certification

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.

5. 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.

6 Interference with or removal of encroachments

This approval does not authorise the interference with or removal of any encroachment upon the subject land by any building or structure on adjoining lands. Rights in this regard are a private matter between landowners and their determination may require a survey and legal advice.

Reason : To ensure no works affect any adjoining properties

All aspects of construction shall comply with the applicable Performance Requirements of the Building Code of Australia. Compliance with the Performance Requirements can only be achieved by:

(a) Complying with the Deemed to Satisfy Provisions, or

(b) Formulating an Alternative Solution which complies with the Performance Requirements, or

(c) Is shown to be at least equivalent to the Deemed to Satisfy Provisions,

8 The building is classified as having portions of Class 2 (Dwellings), Class 5 (Office), Class 6 (Shop and Restaurant) and Class 7a (Carpark) and has a rise in storeys of 3 under BCA96.

Commissioner of the Court

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Citations

Equitibuild Pty Limited v Leichhardt Municipal Council [2004] NSWLEC 437

Most Recent Citation

Equitibuild Pty Limited v Leichhardt Municipal Council [2004] NSWLEC 599

Cases Citing This Decision

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Equitibuild Pty Limited v Leichhardt Municipal Council [2004] NSWLEC 599

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CITATION:	Equitibuild Pty Limited v Leichhardt Municipal Council [2004] NSWLEC 437
PARTIES:	APPLICANT: Equitibuild Pty Limited RESPONDENT: Leichhardt Municipal Council
FILE NUMBER(S):	10770 of 2003
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Height bulk scale and streetscape character - Car parking
LEGISLATION CITED:	Leichhardt Local Environmental Plan 2000, (LLEP) - State Environmental Planning Policy No 1, (SEPP1) - Residential Development Control Plan, (RDCP)
CASES CITED:	Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 - Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported)
DATES OF HEARING:	18/06/2004 and 4/08/2004
DATE OF JUDGMENT:	08/12/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Clay, barrister instructed by Mr J Comino, solicitor SOLICITORS: Comino Prassas RESPONDENT: Mr G A Green, solicitor SOLICITORS: Pike Pike and Fenwick