Foran Design Pty Limited v Marrickville Council
[2004] NSWLEC 548
•08/31/2004
Land and Environment Court
of New South Wales
CITATION: Foran Design Pty Limited v Marrickville Council [2004] NSWLEC 548 PARTIES: APPLICANT
Foran Design Pty LimitedRESPONDENT
Marrickville CouncilFILE NUMBER(S): 10726 of 2004 CORAM: Brown C KEY ISSUES: Development Application :- demolition of existing dwellings and erection of a two storey multi-unit houseing development with basement car parking
SEPP 1 objection to FSR
site coverage
landscaped area
overlooking
character/streetscape
LEGISLATION CITED: Marrickville Local Environmental Plan 2001
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1CASES CITED: Winten Property Group Limited and North Sydney Council 2001 NSWLEC 46 DATES OF HEARING: 30/08/2004 DATE OF JUDGMENT: 08/31/2004 LEGAL REPRESENTATIVES:
APPLICANT
Mr P Clay, barrister
SOLICITORS
Diamond Peisah & CoRESPONDENT
Ms S Duggan, barrister
SOLICITORS
Marrickville Council
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESBrown C
31 August 2004
JUDGMENT10726 of 2004 Foran Design Pty Limited v Marrickville Council
1 This is an appeal against the refusal by Marrickville Council (the council) of development application DA200400076 for the demolition of two existing dwellings and the erection of a two storey multi-unit housing development containing seven dwellings with basement car parking at 7-9 Kroombit Street, Dulwich Hill (the subject site).
2 The subject site consists of two separate lots being lots 1 and 2 in DP 4009. The sites have a frontage of 24.3 m and a depth ranging from 46.15 to 46.41 m. The total site area is 1,151.1 sq m. There is a slight cross fall of some 1.3 m from south to north. The locality is predominantly residential in character.
3 The subject site is zoned residential 2(B) under Marrickville Local Environmental Plan 2001 (the LEP). The zoning permits both residential flat buildings and multi-unit housing. The relevant clauses are floor space ratio (cl. 33) and height (cl. 34). The applicant lodged an objection under State Environmental Planning Policy No. 1 – Development Standards (SEPP 1) to the floor space ratio (FSR) requirement because of the breach to the standard. There was agreement that the proposal satisfied the height requirement.
4 Marrickville Development Control Plan 35 (DCP 35) provides more detailed controls for multi-unit dwellings and residential flat buildings. The relevant parts relate to building form and character including floor space ratio, building setbacks, parking and access, streetscape, landscaped area and private open space.
5 The council filed a Statement of Issues containing six separate issues. These can be conveniently grouped into the following main areas:
1. Whether the SEPP 1 objection to the breach of the FSR requirement is well founded,
2. Whether the proposed development is acceptable in terms of site coverage, landscape area and private open space,
4. Whether the submissions from local residents warrants the refusal of the application.3. Whether the proposed development had an unacceptable impact on adjoining properties and
6 In considering these issues the parties agreed to the appointment of Mr Stuart Harding as the Court appointed town planner. Additionally leave was granted to the council for Mr Kerry Nash, also a town planner, to provide further evidence.
7 In terms of FSR, cl. 33 of the LEP provides for a floor space ratio of 0.7:1. Floor space and FSR are defined in Schedule 1 to the LEP. There was some disagreement between Mr Harding and Mr Nash on the proposed FSR. The differences relate to the amount of area in the basement car park. The definition of floor space requires the inclusion of any area of car parking that exceeds the council’s car parking requirements. In this case the applicant provides 14 car parking spaces whereas only 9 car parking spaces are required.
8 Mr Harding calculates the FSR at 0.77:1 and Mr Nash at 0.82:1. The difference between Mr Harding and Mr Nash involves the amount of manoeuvring area that should be included as floor space. Notwithstanding this, there was agreement that the floor space above ground, i.e., the floor space of the units, did not exceed 0.7:1.
9 The SEPP 1 objection notes that the LEP does not contain any specific objectives for FSR although objectives are found in DCP 35. In considering these objectives the SEPP 1 objection concludes that the variation of the standard can be justified on the following grounds:
- 1. The additional floor space is below ground and as such does not contribute to bulk scale and population density.
- 2. The additional parking that is provided increases amenity in the street and
- 3. The proposal complies with the 0.7:1 floor space ratio if the additional car parking is excluded.
10 For these reasons strict compliance with the FSR standard would be unreasonable and unnecessary.
11 The appropriate manner of dealing with an SEPP 1 objection is set out in the judgment of Lloyd J in Winten Property Group Limited and North Sydney Council 2001 NSWLEC 46 at par 26 where a number of questions are posed. There is no dispute that the FSR requirement was a development standard and as such amenable to a SEPP 1 objection. The SEPP 1 objection notes that the LEP does not contain any objectives for the FSR standard although DCP 35 addresses floor space ratio in more detail. In conjunction with the site coverage, cl 2B of DCP 35 notes that the FSR controls aim to facilitate an acceptable bulk and scale of development that is in relationship with the street and adjoining development.
12 Specific objectives seek to ensure that“ new development results in a floor pace ratio and site coverage that is compatible with the existing zoning and desired future character of the locality”(O1) and “new development results in a site coverage that allows adequate provision to be made on-site for infiltration of stormwater, deep soil planting, landscaping, footpaths, driveways, and for outdoor recreation areas” (O2).
13 In considering the proposed development against those objectives I can comfortably conclude that the proposed development is consistent with the aims of SEPP 1 and compliance would tend to hinder the attainment of the objects in s 5A(i) and (ii) of the Environmental Planning and Assessment Act 1979 (EPA Act).
14 The council argued that the basement car park adds to the bulk and scale of the building where it extends above natural ground level on the northern side of the subject site. In my view, this argument must be rejected as the extension about the natural ground level is only in the order of some 400 mm and has been sympathetically incorporated into the design of the outdoor living areas for the units. It clearly does not create any additional bulk. I note that the proposal easily satisfies the LEP height requirement.
15 I also accept that the basement car park does not unacceptably impact on the infiltration of stormwater, deep soil planting of landscaping and is consistent with the future character depicted by the relevant planning controls. Consequently, I agree that strict compliance with the FSR development standard is unnecessary and unreasonable in this instance and that the SEPP 1 objection is well-founded.
16 The council raised provisions of draft State Environmental Planning Policy (Application of Development Standards) 2004, as a matter to be considered. While I acknowledge that is a relevant consideration pursuant to s 79C of the EPA Act, I have given no weight to its provisions because of its lack of imminence and certainty. It has only just finished advertising and there was no evidence on its likely outcome following this advertising.
17 Clause C3 of DCP 35 provides requirements for landscaping and open space. For multi-unit housing, 40% of the site area shall be provided at ground level as landscaped area and be capable of accommodating tree-growth of up to 10 m in height. Mr Nash and Mr Harding differ on the appropriate level of landscaped area. Mr Nash calculates the area at 34.9 % whereas Mr Harding states that the proposal exceeds the 40% requirement.
18 The difference between the expert’s centres on whether the paved areas at the front and rear of the units should be included. In considering this matter I prefer the approach of Mr Harding, who adopts a more practical approach compared to Mr Nash’s’ more rigid interpretation of these provisions. The definition of “landscaped area” in Sch 1 of the LEP provides for an area that can accommodate landscaping and an area that can be used for the enjoyment of occupants of the building. I see no reason why some of the area cannot be hard paving to accommodate tables and chairs while still providing an area for landscaping, including trees that may grow to 10 m. There was no suggestion that the courtyards could not achieve both of these functions. I also note that DCP 35 contains specific provisions for landscaped areas over podiums or basement car parking areas. For these reasons, I accept that the proposal satisfies the requirements of DCP 35.
19 The impact on adjoining properties was a matter addressed on the site view and a number of residents pointed out their particular concerns at this time. The owner of the property to the north raised issues of overlooking and noise from the adjoining courtyards.
20 I accept any overlooking from the ground level dwelling and balcony areas is satisfactorily addressed through the retention of the existing 2.4 m high fence. At the first floor level, I agree that the adjoining patio should be screened to protect the adjoining property from overlooking. A condition has been prepared to address this situation. While the potential exists for overlooking from the bedroom windows, I acknowledge that the most significant areas on units 4 and 5 for overlooking are setback some 7.5 m from the property boundary. When combined with the irregular use of these rooms, any overlooking impacts from these windows could not substantiate an amendment or refusal of the development application.
21 While noise from the courtyards and patios may be heard on the adjoining property I am not convinced that this is necessarily a matter that could support the amendment or refusal of the proposal as the development considerably exceeds the council’s side setback requirements.
22 The potential for overlooking the property to the east was overcome by amendments proposed by the applicant to remove a bedroom window in the eastern elevation of unit 7 and provide obscure glass to the bathroom window.
23 With the amendments that lowered the building, I understand Mr Nash and Mr Harding agreed that any impacts, including overshadowing on the property to the south were acceptable. I would concur with this conclusion.
24 The resident’s raised a number of concerns not specifically raised as issues by the council. The owner of the property opposite the entry/exit to the basement car park expressed a concern that vehicle lights from cars exiting the basement car park at night would shine into her bedroom window, disturbing her sleep. The relationship between the bedroom window and the ramp to the basement car park would support this concern. However, the frequency of vehicles leaving a seven unit development is likely to be low and is not a sufficient reason to refuse the application.
25 The resident’s also raised the issue of impact of the proposal on the streetscape and the single storey character of the area. The proposal will be clearly different in form and character to the existing residential development in the area. It is a form, however, that is contemplated and specifically identified in Objective (a) of the 2(B) zone. Some residents raised heritage concerns although none of the nearby dwellings are heritage items and the area is not within a defined conservation area.
26 The role of the Court is to determine the application on the planning controls considered to be appropriate by the council. It is not the role of the Court to say whether these planning controls are appropriate or not. This is a matter that rests solely with the council. As the proposal has been found to be acceptable based on the planning controls for multi-unit housing, and that any impacts on adjoining properties have been properly addressed through amendments or conditions there is no basis for the refusal of the development application.
27 For these reasons the orders of the Court are:
- 1. The appeal is upheld.
2. DA 200400076 for the demolition of two dwellings and the erection of a multi-unit housing development at 7-9 Kroombit Street, Dulwich Hill, is approved subject to the conditions in Annexure “A”.
- 3. The Exhibits are returned with the exception of Exhibits 2, 10, C & D.
___________________________
G T Brown
Commissioner of the Court
ljr
Annexure “A”
Conditions of Consent
GENERAL
1. The development being carried out substantially in accordance with Plan Nos. 197 D001, 197 D004 and 197 D005, all Revision B and dated January 2004 and 197 D002 and 197 D003, all Revision B and dated November 2003 and details submitted to Council on 16 February 2004 and in accordance with Plan No. 197 D006 and 197 D007 dated November 2003 and details submitted to Council on 22 March 2004 with the application for development consent and as amended by the following conditions.
Reason : To confirm the details of the application as submitted by the applicant.
2. The dwellings being used exclusively as single dwellings and not being adapted for use as a backpackers accommodation, serviced apartments on a boarding house and not being used for any industrial or commercial purpose.
Reason: To ensure that the dwellings are used exclusively as a single dwellings.
3. Fourteen (14) off-street car parking spaces being provided, paved, linemarked and maintained at all times in accordance with the standards contained within Marrickville Development Control Plan No.19 - Parking Strategy prior to the commencement of the use. Two spaces being allocated to each three bedroom dwelling and one space being allocated to each two bedroom dwelling.
Reason: To ensure that practical off street car parking is available for the proposed development.
4. All parking spaces and turning area thereto being provided in accordance with the design requirements set out within Council's Development Control Plan No.19 - Parking Strategy, and being used exclusively for parking and not for storage or any other purpose.
Reason: To ensure adequate manoeuvrability to all car parking spaces and that the spaces are used exclusively for parking.
5. Two (2) visitor car parking spaces required as part of the total parking required by Condition 3 being provided and marked as visitor car parking spaces. A sign legible from the street shall be permanently displayed to indicate that visitor parking is available on site.
Reason: To ensure that visitor car parking spaces are provided and marked accordingly and that visitors are advised and directed to such parking.
6. Noise and vibration from the use and operation of any plant and equipment and/or building services associated with the premises not giving rise to "offensive noise" as defined by the Protection of the Environmental Operations Act 1977 (NSW). In this regard the garage doors on the car park entries are to be selected, installed and maintained to ensure their operation does not adversely impact on the amenity of the surrounding neighbourhood.
Reason: To protect the amenity of the surrounding neighbourhood.
7. It may be necessary for the installation of a suitable electrical sub-station for the distribution of electrical power in this area to be located on the land, the subject of this application, and that an area of land suitable for the Energy Australia to provide such an installation be set aside for this purpose. Before proceeding with your development further, you are directed to contact the General Manager of the Energy Australia, George Street, Sydney, with respect to the possible need for such an installation immediately or in the future.
Reason: To provide for the existing and potential electrical power distribution for this development and for the area.
8. The developer liaising with the Sydney Water Corporation, the Energy Australia, AGL and Telstra concerning the provision of water and sewerage, electricity, natural gas and telephones respectively to the property.
Reason: To ensure that the development is adequately serviced.
9. All building work must be carried out in accordance with the provisions of the Building Code of Australia 96.
Reason : To ensure the work is carried out to an acceptable standard and in accordance with the Building Code of Australia 96.
10. A road opening permit shall be obtained for all works carried out in public roads or Council controlled lands. Restorations shall be in accordance with Marrickville Council's Restorations Code. Failure to obtain a road opening permit will incur an additional charge for unauthorised openings in the amount of $1,321.30, as provided for in Council’s adopted fees and charges.
Reason: To ensure that all restoration works are in accordance with Council's code.
11. Owners and occupants of the proposed building shall not be eligible for any existing or future resident parking scheme for the area. The person acting on this consent being responsible to advise any purchaser or prospective tenant of this condition.
Reason: To ensure the development does not reduce the amount of “on street” parking currently available.
12. The person acting on this consent shall apply as required for all necessary permits including crane permits, road opening permits, hoarding permits, footpath occupation permits and/or any other approvals under Section 68 (Approvals) of the Local Government Act, 1993 or Section 138 of the Roads Act, 1993.
Reason: To ensure all necessary approvals have been applied for.
13. The existing stone kerb adjacent to the site is of heritage significance and is to be preserved at no cost to Council. Any damage to the stone kerb will require the replacement of the damaged individual stone units before occupation of the site and at no cost to Council.
Reason: To ensure that items of heritage significance are preserved.
BEFORE THE ISSUE OF A CONSTRUCTION CERTIFICATE
14. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator, for details see the Customer Service, Urban Development web site or telephone 13 20 92.
Following application a “Notice of Requirements” will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.
Sydney Water written advice that you have obtained the Notice of Requirements must be submitted to Council’s satisfaction before the issue of the Construction Certificate.
Reason: To comply with the requirements of that Act.
15. The separate lots comprising the development being consolidated into one lot and under one title and registered at the Land Titles Office before the issue of a Construction Certificate.
Reason : To prevent future dealing in separately titled land, the subject of one consolidated site development.
16. Details and/or specifications for the proposed planting works being indicated on the landscape documents, for approval by Council's Technical Services Division before the issue of the Construction Certificate and shall include the following:-
(i) Soil preparation, minimum depth 500mm, of good quality topsoil including the landscaping areas over the basement;
(ii) An approved slow release fertiliser;
(iii) A mulch layer, minimum depth 75mm, of pine flake or leaf litter in all planting areas;
(iv) Planting details, such as installation, staking and tying; and
(v) Adequate drainage for all planting areas.
Reason : To enable the establishment of the approved landscaping
17. The first floor terraces of dwelling Nos. 2, 3, 4, and 6 being provided with 600mm high privacy screen on top of the proposed 1.0m high planter boxes in accordance with amended plans being submitted to Council’s satisfaction before the issue of the Construction Certificate.
Reason: To ensure that adequate privacy of adjoining neighbour is maintained.
18. All first floor bedroom windows except those facing Kroombit Street being fitted with suitable privacy screens up to a height of 1.6m from the finished floor level in accordance with details being submitted to the satisfaction of Council before the issue of a Construction Certificate.
Reason: To maintain privacy to the adjoining properties at Nos. 5 and 11 Kroombit Street
19. Details of all finished surface materials, including colour and texture to be used in construction being submitted to Council’s satisfaction before the issue of the Construction Certificate.
Reason: To ensure that finished surface details are in keeping with the character of the area.
20. Details regarding all hard paved areas within the development being submitted to Council’s satisfaction before the issue of the Construction Certificate. In this regard the materials used should be chosen to break up the extent of hard paving and enhance the appearance of the development.
Reason: To ensure all hard paved areas within the development are sympathetic to and enhance the appearance of the development.
21. A detailed plan showing the height, colour and material of all fencing within the development being submitted to Council’s satisfaction and in accordance with Marrickville Development Control Plan DCP No. 35 before the issue of the Construction Certificate. In this regard the proposed northern side fencing is to have a height of 2.0m from the natural ground level and the proposed southern side fencing is to have a height of 1.8m from the finished pavement level.
Reason: To ensure all fencing is in keeping with the character of the area and maintains adequate privacy.
22. The proposed garbage collection area being suitably screened in accordance with details being submitted to Council's satisfaction before the issue of a Construction Certificate.
Reason: To ensure the garbage storage area is not in direct view from any public place or adjoining properties.
23. A waste management plan being submitted to the satisfaction of Council before the issue of the Construction Certificate. In this regard, the management plan should incorporate source separation of waste, procedures for the use of demolition and construction waste, design and siting of waste storage, recycling, and composting facilities.
Reason: To ensure the appropriate disposal and reuse of waste and to ensure there is adequate waste facilities on site.
24. Letterboxes and mail collection facilities being provided and adequately protected in accordance with details to be submitted to the satisfaction of Council before the issue of the Construction Certificate.
Reason: To ensure adequate mail collection facilities are provided.
25. Installation of insulation with a minimum R3.0 rating being provided to the entire roof or ceiling of the building in accordance with details to be submitted to Council's satisfaction before the issue of the Construction Certificate.
Reason: To achieve an overall increase in thermal comfort and reduce the impact of greenhouse gases on the environment.
26. Each dwelling is to contain a hotwater system with a minimum 3.5 star Greenhouse rating and being fitted out with AAA rated showerheads, basin and kitchen sinks, dual flush toilets, energy efficient clothes drying machines and reticulated gas infrastructure with a separate meter for each dwelling in accordance with details to be submitted to Council's satisfaction before the issue of a Construction Certificate.
Reason: To comply with the requirements of Marrickville Development Control Plan No. 32 - Energy Smart Water Wise.
27. Lighting details of the pedestrian areas, parking areas and all entrances being submitted to Council's satisfaction before the issue of the Construction Certificate.
Reason: To ensure appropriate lighting is provided to create a safe living environment.
28. A monetary contribution of $34,926 has been assessed as a contribution in lieu of public reserve for the development under Section 94 of the Environmental Planning and Assessment Act and Marrickville Contributions Plan 1996 (a copy of which may be inspected at the offices of the Council). The contribution, towards Dulwich Hill area Public Park and Council wide projects (Account No 79.9604), must be paid to the Council in cash or by unendorsed bank cheque before the issue of a Construction Certificate.
Reason: To ensure provision is made for the increased demand for public amenities and services required as a consequence of the development being carried out.
29. A monetary contribution of $2,555 towards the implementation of a traffic management scheme, Dulwich Hill (Account No. 77.9603), under Section 94 of the Environmental Planning and Assessment Act and Marrickville Contributions Plan 1996 (a copy of which may be inspected at the offices of Council) must be paid to the Council in cash or an unendorsed bank cheque before the issue of a Construction Certificate.
Reason: To ensure provision is made for the increased demand for public amenities and services required as a consequence of the development being carried out.
30. Before the issue of the Construction Certificate evidence of payment of the building and construction industry Long Service Leave Scheme, is required to be given to Council. The required payment of $1,800.00, can be made at the Council Offices. This fee has been based on an estimated cost of works of $900,000.00.
Reason: To ensure that the appropriate levy (0.2% of the cost of the building and construction work costing $25,000 or more) is paid in accordance with the Building and Construction Industry Long Service Payments Act 1986.
31. Where Council is appointed as the Principal Certifying Authority to carry out inspections of the works in progress for the purposes of issuing an Occupancy Certificate, a fee of $2541.00 is required to be paid to Council for the required inspections and the Occupation Certificate before the issue of a Construction Certificate.
Reason: To inspect the works in progress to confirm that the works are built in accordance with the development consent and construction certificate.
32. A Soil and Water Management Plan must be submitted to and be accepted by the Principal Certifying Authority (PCA) before the issue of a Construction Certificate. The Soil and Water Management plan must be prepared and implemented by the person(s) supervising the works on site and must include details of the controls to be installed on the development site to prevent erosion and sedimentation of stormwater drains.
NOTE: 1. The plan should include the slope of the land, protection of street gutters and water channels, location of washdown and storage of material areas and methods of preventing mud, dirt and the like being tracked onto the public place by vehicles.
2. For guidance on the preparation of the Plan refer to the Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Regional Organisation Councils. Copies of the Guidelines are available from Council.
Reason: To ensure that appropriate controls are in place to control erosion and sedimentation.
33. The person acting on this consent shall provide security in a manner satisfactory to the Director Technical Services in the amount of $3190.00 before the issue of the Construction Certificate as surety for the proper completion of the footpath and/or vehicular crossing works required as a result of this development.
Reason: To provide security for the proper completion of the footpath and/or vehicular crossing works.
34. The On Site Detention system shall be generally in accordance with plans "Stormwater Drainage, OSD Tank and Pit Details" (Drawing No.SY030235-SW02) submitted by Structural Building Design dated 12/2/04.
Reason: To ensure the development does not increase the stormwater runoff from the site.
35. The ramp shall be amended so that the change in grade for any 3m length of accessway does not exceed 1 in 8 (12.5%) in accordance with details to be submitted to Council's satisfaction before the issue of a Construction Certificate. For curved ramps the grade shall be measured using the inside radius.
Reason: To ensure the vehicular access is not dangerously steep and to comply with AS 2890.1- 1993 Off-street car parking.
36. Before the issue of the Construction Certificate the owner or builder shall sign a written undertaking that they shall be responsible for the full cost of repairs to footpath, kerb and gutter, or other Council property damaged as a result of construction of the proposed development. Council may utilise part or all of any Building Security Deposit (B.S.D.) or recover in any court of competent jurisdiction, any costs to Council for such repairs.
Reason: To ensure that all damages arising from the building works are repaired at no cost to Council.
37. The person acting on this consent shall provide details of the means to secure the site and to protect the public from the construction works. Where the means of securing the site involves the erection of fencing or a hoarding on Council’s footpaths or road reserve the applicant shall submit a hoarding application and pay all relevant fees before commencement of works or the issue of the Construction Certificate, whichever occurs first.
Reason: To secure the site and to maintain public safety.
38. The proposed truck routes for removing excavated/demolished materials and the delivery of fill, building materials and other construction machinery being submitted to Council’s satisfaction before the issue of the Construction Certificate.
Reason : To ensure the most appropriate truck route is selected and minimise impacts on residential development in the neighbourhood.
BEFORE COMMENCING WORKS
39. You must not commence building work until:
(a) a Construction Certificate has been issued by Council or an accredited certifier; and
(b) the person having benefit of the development (the Applicant) has appointed a Principal Certifying Authority (PCA), and where Council is not the PCA, notify Council of the appointment of the PCA; and
(c) you have given written notice to Council of your intention to commence building work in accordance with this Consent at least two (2) days before commencing the work.
Reason : To comply with the provisions of the Environmental Planning and Assessment Act.Notification required by (b) and (c) above can be made by completing the attached form and returning it to Council’s Development and Environmental Services Division.
40. The approved plans must be submitted to the Customer Centre of any office of Sydney Water before the commencement of any work, including excavation activity associated with the development, to ensure that the proposed work meets the requirements of Sydney Water in relationship to:
(a) sewers;
(b) watermains;
(c) stormwater channels; and
(d) development requirements where applicable.
Failure to submit these plans before commencing work may result in the demolition of the structure at the builder’s expense should it be found that the work does not comply with the requirements of Sydney Water.
Reason: To ensure the location of Sydney Water’s main sewer lines have been established before building work commences.
41. Before work commences:
(a) a copy of the ‘Contract of Insurance’ (building insurance policy) in accordance with Part 6 of the Home Building Act 1989, must be submitted to the Principal Certifying Authority; and
(b) the Principal Certifying Authority must be informed in writing of the name and licence number of the builder/contractor who has been contracted to do or intends to do the work.Note : For information regarding the Home Building Act and the necessity to obtain insurance for the proposed work contact any office of the Department of Fair Trading or telephone the Department on 13 32 20.
Reason: To comply with the requirements of the Environmental Planning and Assessment Regulation.
42. Before commencing work sanitary facilities are to be provided at or in the vicinity of the work site at a rate of one (1) toilet for every 20 persons or part of 20 persons employed at the site and each toilet must be a standard flushing toilet and must be connected:
Reason : To ensure that sufficient and appropriate sanitary facilities are provided on the site.
(a) to a public sewer, or
(b) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by Council, or
(c) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by Council.
Such facilities are to be located in a position which will not cause a nuisance to the surrounding neighbourhood.
43. Before commencing work:
(a) the site works must be enclosed with suitable fencing/barriers to prohibit unauthorised access to the site by the public and occupants of adjoining properties. The fencing/barriers must be erected as a barrier between the public place, adjoining properties and the site works; and
(b) a sign must be erected in a prominent position stating that unauthorised entry to the work site is prohibited and showing the name of the person in charge of the site and a telephone number at which that person may be contacted outside of working hours.
Reason: To secure the area of the site works so as to maintain the safety of the public and occupants of adjoining properties and the subject property.
44. The person acting on this consent providing a contact number for a designated person to be available during the demolition and construction for residents to contact regarding breaches of consent or problems relating to the construction.
Reason: To provide a person that residents can contact.
45. Alignment levels for the site at all pedestrian and vehicular access locations shall be obtained from Council's Director, Technical Services before the commencement of construction. The alignment levels shall match the existing back of footpath levels at the boundary. Failure to comply with this condition will result in vehicular access being denied.
Reason: In accordance with Council’s powers under the Roads Act, 1993, alignment levels at the property boundary will be required to accord with Council's design or existing road and footpath levels.
CONSTRUCTION AND SITE WORKS
46. All demolition, construction and associated work necessary for the carrying out of the development being restricted to between the hours of 7.00 am to 5.30 pm Mondays to Saturdays, excluding Public Holidays. All trucks and vehicles associated with the construction, including those delivering to or removing material from the site, only having access to the site during the hours referred to in this condition. All construction vehicles bringing materials to and from the site being loaded and unloaded wholly within the property. No waste collection skips, spoil, excavation or demolition material from the site or building materials associated with the construction of the development being deposited on the public road, footpath, public place or Council owned property without Council's approval, having first been obtained. The developer being responsible to ensure that all contractors associated with the development are fully aware of these requirements.
Reason: To minimise the effect of the development during the construction period on the amenity of the surrounding neighbourhood.
47. The area surrounding the building work being reinstated to Council's satisfaction upon completion of the work.
Reason : To ensure that the area surrounding the building work is satisfactorily reinstated.
48. All mature trees not requiring removal to permit the erection of the development being retained.
Reason: To preserve existing mature trees on the property.
49. Soil and water management controls must be provided on the site and comply with the following:
- (a) Council's warning sign for soil and water management must be displayed at the most prominent point on the site nearest to the construction area, visible to both the street and site workers. The warning signs must be displayed throughout the duration of construction/site works (Warning signs are available from Council); Note: Warning signs only need to be erected where a Soil and Water Management Plan has been submitted to and approved by Council;
(b) the capacity and effectiveness of erosion and sediment control devices being maintained at all times;
(c) a copy of the Soil and Water Management Plan (where required to be prepared) must be kept on-site at all times and made available to Council Officers on request;
(d) stockpiles are not permitted to be stored on Council property (including nature strip) unless prior approval from Council has been granted;
(e) stockpiles of topsoil, sand, aggregate, spoil or other material being stored clear of any drainage line or drainage easement, natural watercourse, kerb or road surface;
(f) drains, gutters, roadways and accessways must be maintained free of sediment;
(g) building operations such as brickcutting, washing tools or paintbrushes, and mixing mortar must not be carried out on the roadway or public footway. Building operations must be carried out in such a way as to prevent the discharge of materials into the stormwater drainage system;
(h) before the removal of sediment controls and within 14 days of completion, all disturbed areas must be stabilised against erosion. Methods for erosion control are detailed in the ‘Urban Erosion and Sediment Control’ Handbook, published by the NSW Department of Conservation and Land Management (CALM), 9895 7390; and
(i) stormwater from roof areas must be collected and drained via a downpipe to a stormwater disposal system immediately after completion of the roof area.
Reason: To protect the environment from soil erosion and sedimentation.
50. All demolition work being carried out in accordance with the following:
(a) compliance with the requirements of Australian Standard AS 2601 ‘The demolition of structures’ with specific reference to health and safety of the public, health and safety of the site personnel, protection of adjoining buildings and protection of the immediate environment;
(b) all works involving the demolition, removal, transport and disposal of asbestos cement is to be carried out in accordance with the ‘Worksafe Code of Practice for Removal of Asbestos’ and the requirements of the WorkCover Authority of NSW and the Environment Protection Authority;
(c) all building materials arising from the demolition are to be disposed of in an approved manner in accordance with Council’s DCP No. 27 ‘Controls for Site Waste Management and Minimisation’ and any applicable requirements of the Environment Protection Authority;
(d) sanitary drainage, stormwater drainage, water, electricity and telecommunications are to be disconnected in accordance with the requirements of the responsible authorities;
(e) the generation of dust and noise on the site must be controlled;
(f) the site must be secured to prohibit unauthorised entry;
(g) suitable provision must be made to clean the wheels and bodies of all vehicles leaving the site to prevent the tracking of debris and soil onto the public way;
(h) all trucks and vehicles associated with the demolition, including those delivering to or removing material from the site, only having access to the site during work hours nominated by Council and all loads must be covered;
Reason: To ensure that the demolition work is carried out safely and impacts on the surrounding area are minimised.
(i) all vehicles taking materials from the site must be loaded wholly within the property unless otherwise permitted by Council;
(j) no waste collection skips, spoil, excavation or demolition material from the site being deposited on the public road, footpath, public place or Council owned property without the approval of Council; and
(k) the person acting on this consent is responsible for ensuring that all contractors and sub-contractors associated with the demolition are fully aware of these requirements.
51. The person acting on this consent is to take all care during the carrying out of the demolition work to protect and preserve all buildings located on adjoining land. The person acting on this consent is to give notice and provide particulars to adjoining owners of any work that may be necessary to preserve or protect adjoining buildings or land seven days prior to commencement of demolition works.
Attention is drawn to possible legal liability in respect of damage to and interference with the use and enjoyment of adjoining land.
Details of such work is to be prepared and certified by a practising Structural Engineer and submitted to and accepted by the Principal Certifying Authority (PCA) prior to the commencement of affected demolition work.
Reason: To ensure the applicant is aware of his responsibilities in respect to possible damage to adjoining buildings and land.
52. The person acting on this consent is to comply with the following requirements during demolition, excavation and building works:
Reason: To ensure the demolition, excavation and building works are carried out within the required standards, with minimal impact to the locality.(i) No damage is to occur to adjoining buildings, land and public property during demolition and construction works and all necessary steps are to be taken to prevent the discharge of dust, water and other pollution types into adjoining premises and the public place;
(ii) Asbestos sheeting must only be removed by licensed operators with the consent of the WorkCover Authority of NSW. Proper procedures must be employed in the handling and removal of asbestos to minimize the risk to personnel and the escape of particles to the atmosphere;
(iii) All necessary permits required by Council, including hoarding permits and footpath occupation fees, must be obtained. and the applicant and/or owner must comply with any applicable requirements of the WorkCover Authority of NSW and the Environment Protection Authority before commencement of any demolition works;
(iv) All services have been disconnected prior to commencement of work;
(v) Building and demolition works which will necessitate the use of appliances which emit noise of a highly intrusive nature, such as hydraulic hammers, must not give rise to an “offensive noise” as defined in the Protection of the Environment Operation Act 1997;
(vi) Satisfactory methods and/or devices must be employed on the site to prevent the tracking of mud onto the surrounding streets from vehicles leaving the site;
(vii) All vehicles carrying materials to or from the site must have their loads covered with tarpaulins or similar covers; and
(viii) All loading and unloading in connection with demolition, excavation and building works being carried out within the site, unless otherwise specifically approved by Council. Vehicles (trucks) must not park or stand on the public way whilst waiting to gain access to the site.
53. The placing of any building/demolition materials on Council’s footpath or roadway is prohibited and under no circumstances must building operations be carried out on the footpath or roadway without the consent of Council.
The placement of waste storage containers in a public place also requires Council approval and must comply with Council’s Local Policy – ‘Placement of Waste Storage Containers in a Public Place’. Enquiries can be made through Council’s Waste Services Section on 9335 2222.
Reason: To ensure the public ways are not obstructed and the placement of waste storage containers in a public place are not dangerous to the public.
54. If the proposed work is likely to cause obstruction of the public place and/or is likely to endanger users of the public place, a suitable hoarding or fence approved by Council must be erected between the work site and the public place. Enquiries for site fencing and hoardings in a public place including Council approval, can be made through Council’s Technical Services Division on 9335 2222.
Reason : To provide protection to the public place.
55. Satisfactory methods and/or devices being employed on the site to prevent the tracking of mud/dirt onto the surrounding streets from vehicles leaving the site.
Reason : To prevent soil particles from being tracked and deposited onto the streets surrounding the site.
56. Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.
Reason: To ensure that building materials are not washed into stormwater drains.
57. Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footways or in any other locations which could lead to the discharge of materials into the stormwater drainage system.
Reason: To ensure that building materials are not washed into stormwater drains.
58. Throughout the construction period, Council’s warning sign for soil and water management must be displayed on the most prominent point of the building site, visible to both the street and site works. A copy of the sign is available from Council.
Reason: To maintain awareness of good housekeeping practices on construction sites.
59. Where Council is appointed as the Principal Certifying Authority the following inspections of the building or work must be undertaken:
(a) soil and water management controls;
(b) reinforcing steel when in position and before concrete is placed;
(c) dampcourse, termite barriers;
(d) filling the wall cavity with mortar up to weep-hole level before the laying of any brickwork above slab level;
(e) the framework including roof members when completed and before the fixing of any internal linings;
(f) wet areas (bathrooms, laundries), damp-proofing and flashings before linings are fixed;
(g) continuous cavity construction, flashing;
(h) connection and hold-down fixing methods of component members;
(i) external stormwater drainage lines before backfilling of trenches and absorption pit where permitted;
(j) upper floor beams and joists before fixing any floor material; and
(k) completion of the building or work.
Note: The person acting on this consent must satisfy him/herself that each of the above building elements have been inspected and approved before continuing with construction.At least 48 hours notice of the required inspection must be given to the Development and Environmental Services Division, 9335 2222.
Reason: To ensure the building work is carried out in accordance with the Consent, codes and regulations during the course of construction.
60. If it is required or intended to excavate below the level of the base of the footings of a building on the adjoining allotments of land, including a public place such as footways and roadways, the person causing the excavation to be made must:
(a) preserve and protect the premises from damage;
(b) if necessary, underpin and support the building in an approved manner. Where underpinning is required, details prepared by a practising structural engineer are to be submitted to the Principal Certifying Authority before underpinning works commence ; and
(c) give at least seven (7) days notice, including complete details of the work, to the owners of the adjoining land of the intention to excavate below the base of the footings.
Reason: To ensure that adjoining buildings are preserved and supported.
61. The building, basement carpark, landscaping, stairs, retaining/courtyard walls, including footings, guttering and downpiping, must not encroach on the allotment boundaries and alignments to public places.
Reason: To ensure the building works are contained within the allotment boundaries.
62. No part of the fencing is to encroach upon Council’s footpath. The footings of the fence are not to encroach upon Council’s property unless they are located at a depth of not less than 1350 mm below the pathway level, in which case they must not project further than 450 mm.
Reason: To ensure the proposed fence does not encroach on the footpath.
63. The person acting on this consent must comply with the requirements of the Dividing Fences Act in respect to the erection, removal, alterations and additions to the boundary fences.
Reason: To ensure that the provisions of this Act are observed.
64. Paths, patios, paved areas and the like and any areas of the allotment that have been regraded are to allow free draining away from the dwelling and are not to direct the flow of surface waters into adjoining properties or against adjoining buildings.
Reason: To prevent damage to buildings and adjoining properties.
65. The owner of the premises, as soon as practicable after the final fire safety certificate is issued, must:
(a) forward a copy of the statement (together with a copy of the current fire safety schedule) to the Commissioner of the New South Wales Fire Brigades; and
(b) display a copy of the final safety certificate and fire safety schedule, in a prominent position in the building.
Reason: To ensure compliance with the relevant provisions of the Environmental Planning and Assessment Act and Regulations.
66. The owner of the premises must:
(a) submit to Council an annual fire safety statement every twelve (12) months after the final fire safety certificate is issued, for each of the fire safety measures listed in the fire safety schedule ; and
(b) as soon as practicable after the annual fire safety statement is issued, the owner of the building must:
(i) forward a copy of the statement (together with a copy of the current fire safety schedule) to the Commissioner of the New South Wales Fire Brigades; and
(ii) display a copy of the final safety certificate and fire safety schedule in a prominent position in the building.
The annual fire safety statement must verify that the fire safety measures are maintained to a standard no less than that specified in the fire safety schedule. Alternatively, in the case of an essential fire safety measures not listed in the fire safety schedule, are maintained to a standard not less than that, to which the fire safety measure was originally designed and implemented.
Reason: To ensure maintenance of the essential fire safety measures.
67. All roof and surface stormwater from the site any catchment external to the site that presently drains to it, shall be collected in a system of pits and pipelines/channels and major storm event surface flow paths and being discharged to a Council controlled stormwater drainage system in accordance with the requirements of Marrickville Council Stormwater and On Site Detention Code. The maximum discharge allowable to Council's street gutter is 25 litres/second.
Reason: To provide for adequate site drainage.
68. All stormwater drainage being designed in accordance with the provisions of the 1987 Australian Rainfall and Runoff (A.R.R.), Australian Standard AS3500.3.2-1998 ‘Stormwater Drainage-Acceptable Solutions’ and Marrickville Council Stormwater and On Site Detention Code. Pipe and channel drainage systems shall be designed to cater for the twenty (20) year Average Recurrence Interval (A.R.I.) storm in the case of low and medium residential developments, the twenty (20) year A.R.I. storm in the case of high density residential development and commercial and/or industrial developments and the fifty (50) year A.R.I. storm in the case of heavy industry. In all cases the major event surface flow paths shall be designed to cater for the one hundred (100) year A.R.I. storm.
Reason: To provide for adequate site drainage.
BEFORE OCCUPATION OF THE BUILDING
69. You must obtain an Occupation Certificate from your Principal Certifying Authority before you occupy or use the building completed in accordance with this Consent. A copy of the Certificate must be forwarded to Council within seven (7) days of the Certificate being determined.
Reason : To comply with the provisions of the Environmental Planning and Assessment Act.
70. A Section 73 Compliance Certificate from Sydney Water being submitted to Council before occupation of the premises.
Reason : To comply with the requirements of that Act.
71. The landscaping of the site being carried out prior to occupation or use of the premises in accordance with the approved plan, and being maintained at all times to Council's satisfaction.
Reason: To ensure adequate landscaping is maintained.
72. Compliance with the requirements of Marrickville Development Control Plan No 32- Energy Smart Water Wise is to be demonstrated via completion of the Council's Green Checklist, which is to be completed by the Council or the Principal Certifying Authority (PCA) before the issue of an Occupation Certificate. If completed by a PCA, a copy of the completed checklist must be forwarded to Council for its records.
Reason: To appropriately monitor the installation of energy and water conservation fixtures and appliances.
73. All works required to be carried out in connection with drainage, crossings, alterations to kerb and guttering, footpaths and roads resulting from the development shall be completed before occupation of the site. Works shall be in accordance with Council’s Standard crossing and footpath specifications and AUS-SPEC#2-“Roadworks Specifications”.
Reason: To ensure applicant completes all required work.
74. Any adjustment or augmentation of any public utility services including Gas, Water, Sewer, Electricity, Street lighting and Telecommunications required as a result of the development shall be at no cost to Council and undertaken before occupation of the site.
Reason: To ensure all costs for the adjustment/augmentation of services arising as a result of the redevelopment are at no cost to Council.
75. Any damage caused to the footpath, kerb and gutter, or other Council property during construction of the proposed development shall be restored in accordance with Council’s Specifications and AUS-SPEC#2-“Roadworks Specifications”, at no cost to Council. Council may utilise part or all of any Building Security Deposit (B.S.D.) for the proposed development to restore any damages. Further Council may recover, in any court of competent jurisdiction, any costs to Council for such restorations.
Reason: To ensure all damage to Council’s infrastructure is repaired at the applicants expense and to satisfactory standard.
76. All works required to be carried out in connection with drainage, crossings, alterations to kerb and guttering, footpaths and roads resulting from the development shall be completed before occupation of the site. Works shall be in accordance with Council’s Standard crossing and footpath specifications and AUS-SPEC#2-“Roadworks Specifications”.
Reason: To ensure applicant completes all required work.
77. The existing ‘Street Tree’ shall be relocated 2m clear of the proposed vehicular crossing. The tree shall be maintained by the applicant for a 6months period and replaced in the event of the death during this period.
Reason: To ensure the Street Tree is maintained
78. Heavy duty concrete vehicle crossings, in accordance with Council’s Standard crossing and footpath specifications and AUS-SPEC#2-“Roadworks Specifications”, shall be constructed at the vehicular access locations before occupation of the site and at no cost to Council.
Reason: To allow vehicular access across the footpath and/or improve the existing vehicular access.
79. Before occupation of the site written verification from a suitably qualified professional civil engineer, stating that all stormwater drainage and related work has been and constructed in accordance with the approved plans shall be submitted to and accepted by Council. In addition, full works-as-executed plans, prepared and signed by a registered surveyor, shall be submitted to Council. These plans must include levels for all drainage structures, buildings (including floor levels), finished ground levels and pavement surface levels.
Reason: To ensure drainage works are constructed in accordance with approved plans.
80. All redundant vehicular crossings to the site shall be removed and replaced by kerb and gutter and footpath paving in accordance with Council’s Standard crossing and footpath specifications and AUS-SPEC#2-“Roadworks Specifications” before occupation of the site and at no cost to Council.
Reason: To eliminate redundant crossings and to reinstate the footpath to its normal condition.
81. Compliance with the conditions of this Determination with the development being completed in accordance with the approval to Council's satisfaction before the occupation of the premises.
Reason: To ensure compliance with the conditions of development consent for the erection of the building.
82. Occupation of the building must not be permitted until such time as:
(a) the building has been completed in accordance with the development consent and the construction certificate;
(b) the building owner submits to Council a final fire safety certificate from a properly qualified person, certifying that the fire safety measures have been installed in the building and perform to the performance standards listed in the Schedule; and
(c) an occupation certificate has been issued.
Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act and Regulations.
83. That part of the boundary fence between the subject site and No.11 Kroombit Street, which is 1.8 m lapped and capped with 600 mm lattice on top shall be retained.
84. The windows on the eastern façade of Townhouse No. 7 shall be amended as follows:
(a) the window to bedroom 2 shall be deleted;
(b) The bathroom window shall be fixed obsure glass to a height of 1.6m above fished floor level.
85. That permanent, fixed louvre screens 1800 mm high be installed on the northern edge of the first floor balconies of Units 2-6 inclusive with the angle of louvre to be a minimum 18.5o upwards and of a width that prevents the opportunity to overlook the rear yard of 11 Kroombit Street. Details of the design, materials and dimensions are to be provided to Council for approval prior to the issue of the Construction Certificate.
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