Harry Charalambous v Ku-ring-gai Council
[2004] NSWLEC 469
•08/23/2004
Land and Environment Court
of New South Wales
CITATION: Harry Charalambous v Ku-ring-gai Council [2004] NSWLEC 469 revised - 23/08/2004 PARTIES: APPLICANT:
Harry Charalambous
RESPONDENT:
Ku-ring-gai CouncilFILE NUMBER(S): 10774-9 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Solar access - Visual and acoustic privacy - Bulk good design - Public interest. LEGISLATION CITED: State Environmental Planning Policy No. 53, (SEPP53) - State Environmental Planning Policy No. 55, (SEPP55) - Sydney Regional Environmental Plan No. 20, (SREP20) - Ku-ring-gai Planning Scheme Ordinance, 1971, (KPSO) - Development Control Plan 43, (DCP43) - Development Control Plan 40, (DCP40) - Council's Dual Occupancy Control Code, (Code) - Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: DATES OF HEARING: 23/08/2004 EX TEMPORE
JUDGMENT DATE :08/23/2004 LEGAL REPRESENTATIVES:
APPLICANT:
Mr I Hemmings, barrister, instructed by Mr J Hones, solicitor
SOLICITORS:
Hones Lawyers
RESPONDENT:
Ms J Smith, solicitor
SOLICITORS:
Wilshire Webb
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
23 August 2004
10774-9 of 2004
Harry Charalambous v Ku-ring-gai Council
1 These appeals are under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Ku-ring-gai Council (the council) to refuse six (6) separate development applications to demolish an existing dwelling and to construct five (5) two-storey detached dual occupancy dwellings and Torrens title subdivide into individual allotments under the provisions of State Environmental Planning Policy No 53 , (SEPP53) and the Ku-ring-gai Planning Scheme Ordinance , (KPSO), at Lot 3, DP 3146, being No 72 Collins Road, St Ives. The six (6) development applications need to be sequentially determined in order to comply with the requirements of SEPP53.JUDGMENT
2 I visited the land in company with the parties on the morning of the hearing.
3 I have concluded when the applications are considered under s 79C of the Environmental Planning and Assessment Act 1979 the appeals may be upheld.
The land
4 The land is situated on the western side of Collins Road, between Mudies Road to the south and Kerrawah Avenue to the north. The land is rectangular in plan shape and is a battle-axe allotment with a frontage to Collins Road of 7.315m. It has an area of 2,986m2, excluding access handle.
5 The land slopes down from the west to the east with a fall of about 2.5m and with a cross fall from the south to the north of about 2.0m.
6 Erected on the land is a part single-storey and part two-storey brick and tile dwelling, with music room, outbuildings and swimming pool.
7 Nearby to the north, south and east are single-storey and two-storey detached dwelling houses, and a tennis court is situated on land to the west.
Relevant planning controls
10 Clause 46(2) of the KPSO provides a maximum height for residential development of 8m.Ku-ring-gai Planning Scheme Ordinance, 1971, (KPSO)
8 The land is zoned 2(c) Residential under the KPSO and under the land use table to cl 23, dwelling houses are permissible as Column 1 uses, “with consent”. All forms of multi dwelling development are prohibited. The Environmental Planning and Assessment Act 1979 was amended in 1998 to require consent for all forms of residential development.
9 Although not relevant to the present applications under SEPP53, the general aims for residential zones as set out in Sch 9 of the KPSO are:
(a) To maintain and where appropriate, improve the existing amenity and environmental character of Residential zones; and
(b) To permit new residential development where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development.
11 Clause 58A of the KPSO requires consent to be obtained for subdivision. Clause 58B(5) of the KPSO stipulates that the subdivision standards do not apply to approved dual occupancies.
12 Clause 60C of the KPSO provides that the maximum built upon area of land is 60%.
State Environmental Planning Policy No. 53, (SEPP53)
13 Under s 3 of SEPP53 the aims are:
- (1) This Policy aims to encourage the provision of housing in metropolitan areas that will:
- (a) broaden the choice of building types and locations available in the housing market, and
(b) make more efficient use of existing infrastructure and services, and
(c) reduce the consumption of land for housing and associated urban development on the urban fringe, and
(d) be of good design.
- (a) by establishing planning controls that will provide opportunities for a variety of housing types, such as multi unit housing or multi unit housing combined with development for any other purpose to be developed in areas the councils of which have not adopted residential development strategies approved by the Minister, and
(b) by setting out design principles that, if followed, will achieve built form that responds to the characteristics of its site and location, and
(c) by encouraging councils to prepare and adopt residential development strategies and supporting local environmental plans and policies that will achieve those aims, and by allowing local government areas to be exempted from the whole or parts of this policy when those strategies and plans are in place.
- (a) by revising the provisions in a number of State environmental planning instruments to improve their operation, and
(b) by restating the revised provisions of those environmental planning instruments in a single policy written in a manner that is easy to understand.
14 Part 3 of SEPP53 applies to dual occupancy development and cl 15 sets out the objectives of this Part:
(c) to create opportunities for two dwellings to be developed on a single allotment of land, and
(d) through the other provisions of this Policy, to ensure that dual occupancy development is:
i. designed and assessed with a full understanding of the opportunities and constraints of each site, and
ii. designed and assessed having adequate regard for the design principles contained in Part 5.
15 Clause 19 of SEPP53 provides development standards including that the site area for two detached dwellings shall be a minimum of 600m2 and that the FSR of all dwellings proposed should not exceed 0.5:1. The proposal for complies with both standards.
16 Clause 20 of SEPP53 provides that the consent authority may not require more than one car space per dwelling of 150m2 or less or 2 spaces per dwelling of greater floor area.
17 Clause 21 of SEPP53 does not specifically permit subdivision of two dwelling sites, but it does not preclude subdivision if otherwise permitted by another instrument. In this regard, KPSO permits subdivision of approved dual occupancies within development standards.
18 Part 5 of SEPP53 contains the ‘Design Requirements’ that are called up by cl 15(b)(ii).
19 Clause 32(b) of SEPP53 provides guidance for visual and acoustic privacy: “The proposed development should, where practicable, consider the visual and acoustic privacy of neighbours in the vicinity and residents by:
i. appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and
ii. ensuring acceptable noise levels in internal living and sleeping areas of new dwellings.
20 Clause 32(d) of SEPP53 provides guidance for stormwater: “The proposed development should, where possible:
i. control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters, and
ii. include, where practical, on-site stormwater detention or re-use for second quality water uses, and
iii. be designed with regard to the scope for on-site infiltration of water.
22 At the conclusion of the hearing there was no issue between the parties in this regard that could not be conditioned.21 Clause 32(f) of SEPP53 provides guidance for accessibility: The proposed development should, where appropriate:
i. have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities, and
ii. provide attractive, yet safe, environments for pedestrians, cyclists and motorists with convenient access and parking for residents and visitors, and
iii. where feasible, involve site layout and design that enables people with a disability to access, on one continuous accessible path of travel, the street frontage, car parking, and all buildings, facilities and open spaces within the site.
State Environmental Planning Policy No. 55–Site remediation, (SEPP55)
23 Under s 2 the object of this Policy is:
- (1) The object of this Policy is to provide for a Statewide planning approach to the remediation of contaminated land.
(2) In particular, this Policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment:
- (a) by specifying when consent is required, and when it is not required, for a remediation work, and
(b) by specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and
(c) by requiring that a remediation work meet certain standards and notification requirements.
Sydney Regional Environmental Plan No 20 Hawkesbury Nepean River (No 2 - 1997), (SREP20)
25 As the land is within the catchment of the Hawkesbury River it comes under the control of SEPP20 and any development of that land has the potential to impact on the integrity of downstream watercourses. There was no issue in respect of SREP20.
Development Control Plan 43, (DCP43)
26 DCP43 relates to car parking. The DCP43 would be overridden by SEPP53 and the proposal exceeds those requirements.
Development Control Plan 40-Waste management, (DCP40)
27 DCP40 relates to waste management. A waste management plan was submitted and there was no issue between the parties.
29 There was no issue between the parties in respect of water management and the proposal satisfies the council’s requirements in this regard.Council's Dual Occupancy Control Code, (Code)
28 The Code was adopted in April 2003 and contains sections relating to stormwater management (Section 4.5), privacy (Section 4.3), Car Parking and Accessibility (Section 4.7). In relation to stormwater, the Code reflects Council's Stormwater Management Manual that states:
· The construction of any permanent structure (such as dwellings, garages, impervious fences, pools) or the placement of fill over a watercourse, drainage depression, piped drainage system or within the path of the 100 year flood is generally not permitted.
· A natural bushland and riparian zone of a minimum width of either 10 metres (or as otherwise specified by Council) on either side of the top of the bank of a non perennial watercourse or the 100 year flood zone as calculated by a consulting engineer, whichever is the greater, is not to be subject to development without consent of the council.
Ku-ring-gai Notification Policy, (Policy)
30 The council adopted this Policy on 17 December 2002. The proposal was notified as required by this Policy.
The proposal and its history
31 Development applications No DA1723/03, DA1724/03, DA1725/03, DA1727/03, DA1728/03 and DA1729/03, were lodged with the respondent council on 29 December 2003 to demolish an existing dwelling and to construct five (5) two-storey detached dual occupancy dwellings and Torrens title subdivide into individual allotments under the provisions of State Environmental Planning Policy No 53, (SEPP53) and the Ku-ring-gai Planning Scheme Ordinance, (KPSO), on the land.
32 Each development application is described as:
Stage 1 DA 1723/03:
33 Demolition of the existing dwelling, music studio, swimming pool and outbuildings and construction of Dwellings 1 and 3 as two detached dual occupancy dwellings pursuant to SEPP No. 53. These dwellings are to be located one at the north and one at the south of the site. Dwelling 1 is to have an area of 216.7m2 and Dwelling 3 an area of 251.64m2. A common vehicular access is to be provided from the access handle off Collins Road.
34 Dwelling 1 is a two-storey cement rendered masonry and tile dwelling. The ground floor comprises a double garage, front porch, entry, living room, kitchen, bedroom with ensuite and walk-in-robe, family room and laundry. The first floor comprises 2 bedrooms, study, gallery, linen store and bathroom. The building is setback 2.2metres at its closest point from the southern side boundary.
35 Dwelling 3 is a two-storey cement rendered masonry and tile dwelling. The ground floor comprises a double garage, front porch, entry, dining room, living room, kitchen, bedroom with ensuite, WC and laundry. The first floor comprises 3 bedrooms, study and bathroom.
· Site Area 2,986.10 m2
· Dwelling 1: Gross floor Area 216.17m2
· Dwelling 3: Gross floor Area 229.41m2
· Floor Space Ratio 0.15:1
· Built Upon Area -
· Total Site (Stages 1-6) 1,296.33m2 or 46.67%
Stage 2 DA 1724/03:
36 Torrens Title subdivision creating 2 lots with each to contain one of the dwellings constructed at Stage 1. Proposed Lot 1 has an area of 1,142 m2 and proposed Lot 2 has an area of 1,844m2. Proposed Lot 1 has a frontage of 2.93m to Collins Road and proposed Lot 2 a frontage of 4.385m.
Stage 3 DA 1725/03:
37 Construction of Dwellings 2 and 4 as two detached dual occupancy dwellings pursuant to SEPP No. 53, one on each of the lots created under Stage 2.
38 Dwelling 2 is a two-storey cement rendered masonry and tile dwelling. The ground floor comprises a double garage, front porch, entry, living room, kitchen, bedroom with ensuite and walk-in-robe, family room, living room, dining room, laundry and rear covered pergola. The first floor comprises 3 bedrooms, study, gallery, linen store and bathroom. The building is be setback 2.2metres at its closest point from the southern side boundary and approximately 15.8m from the western boundary. Dwelling 2 is setback 7.2m from Dwelling.
39 Dwelling 4 is a two-storey cement rendered masonry and tile dwelling. The ground floor comprises a double garage, front porch, entry, dining room, living room, kitchen, bedroom with ensuite, WC and laundry. The first floor comprises 2 bedrooms, gallery/study and bathroom. The dwelling is setback 5.25m at its closest point from the northern side boundary and approximately 4.15m from Dwelling 3.
· Proposed Lot 1 Site Area: 1142m2
· Proposed Lot 2 Site Area: 1,844m2
· Dwelling 1 Gross floor Area: 216.17m2
· Dwelling 2 Gross floor Area: 229.41m2
· Dwelling 3 Gross floor Area: 251.64m2
· Dwelling 4 Gross floor Area: 221.70m2
· Floor Space Ratio Proposed Lot 1 0.39:1
- Proposed Lot 2 0.26:1
40 Torrens Title subdivision of Proposed Lots 1 and 2 into 4 lots, each to contain a dwelling to be constructed under Stages 1 and 3. The new proposed Lot 1 has an area of 475m2 and the new proposed Lot 2 has an area of 666m2. Proposed Lot 3 has an area of 575m and proposed Lot 4 has an area of 1,296m2. Proposed Lots 1 and 2 each have a frontage of 1.465m to Collins Road and proposed Lots 3 and 4 each have a frontage of 2.192m.
Stage 5 DA 1728/03:
41 Construction of Dwelling 5 as detached dual occupancy dwellings under SEPP53 on proposed Lot 4.
42 Dwelling 5 is a two-storey cement rendered masonry and tile dwelling. The ground floor comprises a double garage, front porch, entry, living room, kitchen, bedroom with ensuite and walk-in-robe, and WC. The first floor comprises 3 bedrooms, study, and bathroom. The building is setback 4.38m at its closest point from the northern side boundary and approximately 10.85m from the western rear boundary. Dwelling 5 has a minimum setback of 4.15m from Dwelling 4.
· Site Area 1269m2
· Dwelling 4: Gross floor Area: 221.70m2
Gross floor Area Dwelling 5 251.64m2
· Floor Space Ratio 0.37:1
Stage 6 DA 1729/03:
43 Torrens Title subdivision of proposed Lot 4 into two allotments containing Dwellings 4 and 5. The new proposed Lot 4 has an area of 543m2 and proposed Lot 5 has an area of 725m2. Proposed Lots 4 and 5 each have a frontage of 1.46m to Collins Road
Notification
44 The application was notified in accordance with Ku-ring-gai Council Notification Policy, adopted on 17 December 2002, to nearby owners and occupants and the council received five (5) letters of objection. Submissions were from:
· Mr G Roach, resident of No 1A Mudies Road, St Ives;
· Mrs S Caravousanos, resident of No 1 Mudies Road, St Ives;
· Mr D.N. and Mrs J.M. Garrick, residents of No 74 Collins Road, St Ives;
· Mr N.J. and Mrs C.L. Foster, residents of No 3A Mudies Road, St Ives;
· Mr R Cowan, resident of No 59A Collins Road, St Ives; and
· Mr N Juradowich of Ingham Planning representing the owners of Nos 1 and 1A Mudies Road, St Ives.
45 Mrs M Russo, Mr A Caravousanos, Mr N Juradowitch, Mr G Roach, Mrs J Garrick, Mr D Garrick and representatives of the council and of the applicant Mr H Charalambous, attended the on-site hearing.46 Concerns of the residents included:
· Overdevelopment of the site;
· Inappropriate height, bulk and scale;
· Increase in housing density in already overpopulated area;
· Inadequate service of water, sewer, electricity, roads and drainage;
· Neighbourhood character;
· Impact on traffic;
· Impact on adjoining properties (bulk, visual and acoustic privacy); and
· Absence of landscaping.
The council’s decision
47 By notice dated 9 June 2004 the council refused the application for the following reasons:
1 The proposal is inconsistent with the aims of State Environment Planning Policy No. 53 (SEPP53), pursuant to Clause 3(1)(d), by not achieving a good design in accordance with the design principles contained in part 5 (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(i)).
2 The proposal is inconsistent with the aims of SEPP 53 in that the proposal fails to achieve a built form that responds to the characteristics of its site and location, as required pursuant to Clause 3(2)(b) (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(i)).
3 Insufficient information has been submitted to accompany the development application (including a detailed site analysis and extent of the common driveway for this stage) to enable an appropriate assessment of the likely environmental impacts of the proposed staged development (Environmental Planning and Assessment Act 1979 s 79C(1)(b)).
4 The proposal does not adequately address the boundary privacy expectations of the southern and eastern neighbours, as required pursuant to Clause 32(b) of SEPP 53 (Environmental Planning and Assessment Act 1979 s 79C(1) (a) (i)).
5 The proposal does not show due regard for neighbour amenity and residential character, as required pursuant to Clause 32(h) of SEPP 53 (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(i)).
6 There will be an adverse impact on a number of dwellings in terms of overshadowing pursuant to the requirements and objectives of SEPP 53 and Council's Dual Occupancy Code (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(i).
7 The development will cause loss of amenity (visual, acoustic and overshadowing) to residents of the dwellings situated at 1 a and 1 Mudies Road. St Ives due to the proximity of the proposed dwellings 1 and 2 and the lack of appropriate landscaping opportunities (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(b)).
8 The development will cause loss of amenity (visual, acoustic and overshadowing) to the residents of the dwelling situated at 74 Collins Road, St Ives due to the proximity of the proposed dwelling 3, the driveway and passing bay and the lack of appropriate landscaping opportunities (Environmental Planning and Assessment Act 1979 s 79C(1) (a) (i)).
9 The proposed development does not satisfy the design requirements of Council's Dual Occupancy Development Control Code at parts 4.9.3 with respect to built upon area exceeding 40% of site area, 4.9.2(b) with respect to the provision of sufficient soft landscape area for planting between dwellings 1, 2 and 3 and the southern and eastern boundaries, and 4.9.1 (e) with respect to detached dual occupancies being separated a minimum of 7 metres to assist in attaining privacy and amenity for each of the dwellings with respect to development having regard to the existing setback of adjoining properties and 4.9.10 with respect for battle-axe blocks the side setback should be a minimum distance of 15% of the site width or 3 metres, whichever is the greater (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(i)).
10 The proposed development does not satisfy the design requirements of Council's Dual Occupancy Development Control Code at parts 4.9.5 with respect to height of building in that the dual occupancy dwellings away from the street should not exceed a height of 3.6 metres and an overall height of 7.0 metres as measured to the top of the roof ridge. In addition the dual occupancy dwellings should not exceed a building height plane projected at an angle of 45 degrees over the actual land to be built upon from a vertical distance of 1.5 metres above ground level at any boundary of the site (Environmental Planning and Assessment Act 1979 s 79C(1) (a) (i)).
11 The content of submissions received from adjoining owners in relation to loss of amenity (privacy and acoustic) (Environmental Planning and Assessment Act 1979 s 79C(1)(d)).
12 Given the inconsistencies of the development with Council's policies and requirements, the unsuitability of the development in the contest of the site and locality and the amenity impacts on the neighbouring properties the proposed development is not in the public interest (Environmental Planning and Assessment Act 1979 s 79C(1) (e)).
13 The proposed development is not in the public interest as indicated from the number of valid objections received and the adverse impact on the adjoining properties (Environmental Planning and Assessment Act 1979 s 79C(1) (e)).
51 The town planner’s joint report came to the Court in Exhibit 5. There was no issue between the parties that could not be addressed by condition.The hearing
48 The appeals were filed on 30 June 2004.
49 At the hearing the court heard evidence on behalf of the respondent council from:
· Ms K Gordon, consultant town planner.
50 On behalf of the applicant evidence was given by:
· Mr I Glendinning, consultant town planner.
The issues
52 On 4 August 2004 the council filed a statement of issues.
- Solar Access
- Particulars
b. The living room and dining room of Dwelling 5 are orientated to the south and west rather than the north.
1. Whether adequate sunlight will be received to the private open space area of Dwelling 1 in mid-winter as is required by Clause 32(c)(i) of SEPP53, given the proximity, bulk and scale of dwelling 2.
- Visual and Acoustic Privacy
- Particulars
1. Whether the proposal has been designed adequately with regard to the visual impacts and privacy of the private open space areas of 1 and 1 a Mudies Road as required by Clause 32(b)(i) of SEPP53.
- Particulars
- Good Design
- Particulars
b. The proximity of Dwellings 1 and 2 and the bulk and scale of Dwelling 2 result in an unsatisfactory level of sunlight to the private open space of Dwelling 1; and
c. Inadequate regard has been given in the design of Dwelling 3 to the protection of visual and acoustic private to the private open space of No. 74 Collins Street.
- Public Interest
53 The following emerged as the salient issues:1. Whether the proposed development is in the public interest (pursuant to s 79A(1)(b) and (e) of the EP&A Act) having regard to the concerns and issues raised by resident objectors following notification of the applications which include:
· loss of privacy to 1 and 1 a Mudies Road,
· loss of treed outlook from 1 and 1 a Mudies Road,
· limited setback to the southern boundary,
· overdevelopment of the site,
· out of character with the area,
· overlooking of 3a Mudies Road,
· acoustic impacts from increased use of existing driveway to accommodated new dwellings,
· location of passing bay on driveway, and
· glass screen "fencing" between driveway and 74 Collins Road.
· Solar access;
· Visual and acoustic privacy;
· Bulk, good design; and
· Public interest.
The evidence and findings
Solar access
54 In respect of Dwelling No 3 the town planning experts agreed that the revised floor plan as detailed in plan 2799/03, dated 13 August 2004 provides for a satisfactory level of solar access and subject to a condition that amends Dwelling No 3, as shown in the revised plan, this issue would be resolved.
55 In respect of Dwelling No 5 the town planning experts agreed that this issue would be resolved by an agreement to impose a condition that requires the provision of a skylight above the dining room to the northern side.
56 I am satisfied that this aspect has been satisfactorily resolved.
Visual and acoustic privacy
57 The town planning experts agreed that this issue would be resolved by the amendments to the floor plan for the Dwelling No 3 including revised finished floor levels and increased height of rear boundary fence.
58 I would not refuse the application for this reason.
Bulk and good design
59 The town planning experts agreed that this issue would be resolved by the amendments proposed and agreed for Dwellings 2, 3 & 5.
60 On the site inspection I satisfied myself that the setbacks proposed from the southern boundary would be reasonable and would permit the proposed landscaping. In this regard I took into account the setback on the ground floor of around 2.2m and a greater setback to the first floor. I also took into consideration that there would be little activity to the south of the proposed dwellings as the living areas of those dwellings would be oriented to the north, away from the southern boundary and the private open spaces of the adjoining dwellings.
61 I would not refuse the application for this reason.
Public interest
62 None of the matters raised under this issue were pressed. The town planning experts agreed that the matters raised in relation to location of the parking bay and acoustic impacts have been dealt with in consultation with the adjoining owners by conditions of consent.
63 I would not refuse the application for this reason.
54 For the above reasons, the appeals were upheld.
Conditions
55 The conditions are those in Exhibit 7 and were amended following discussion with the neighbours.
Orders
56 My orders are:
1. The appeals under s 97 of the Environmental Planning and Assessment Act 1979 are upheld.2. Development applications No DA1723/03, DA1724/03, DA1725/03, DA1727/03, DA1728/03 and DA1729/03, lodged with the respondent council on 29 December 2003 to demolish an existing dwelling and to construct five (5) two-storey detached dual occupancy dwellings and Torrens title subdivide into individual allotments under the provisions of State Environmental Planning Policy No 53, (SEPP53) and the Ku-ring-gai Planning Scheme Ordinance, (KPSO), at Lot 3, DP 3146, being No 72 Collins Road, St Ives, are approved subject to conditions in various annexures.
S J Watts3. The exhibits with the exception of Exhibits A to Q and 6 are returned.
Commissioner of the Court
sw
In the Land and
Environment Court
of New South Wales
No. 10774 of 2004 Harry Charalambous Applicant Ku-ring-gai Council Respondent Order The Court orders that: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No DA 1723/03, [Stage 1], lodged with the respondent council on 29 December 2003 to demolish an existing dwelling and to construct dwellings No 1 and 3 being two-storey detached dual occupancy dwellings under the provisions of State Environmental Planning Policy No 53, (SEPP53) at Lot 3, DP 3146, being No 72 Collins Road, St Ives, is approved subject to Conditions 1 to 63 in Annexure A. 3. The exhibits with the exception of Exhibits A to Q and 6 are returned. Ordered: 23 August 2004 By the Court Susan Dixon Appeal No 10774 of 2004 |
v
Ku-ring-gai Council
STAGE 1No 72 COLLINS ROAD, ST IVES NSW 2075
DEVELOPMENT APPLICATION NO: 1723/03
PROPOSAL: DUAL OCCUPANCY
GENERAL CONDITIONS
1. The development to be in accordance with Development Application No 1723/03 and Development Application plans
· Job No. 2872/03 Sheets 1 and 3 and Masterplan, prepared by Lindsay Little and Associates, dated 12 December 2003;
· Landscape Plans Job No. 03125, Drawing No. L01 dated 10 December 2003 and L02, dated 23 December 2003, both prepared by Patio Landscape Design;
· Stormwater Drainage Concept Plan, Job No. 342908, Sheets 1-2, dated 12/2003, prepared by AFCE Environment and Building Consultants;
· Job No. 2872/03 Sheet 1 of 3 amended 21 July 2004, prepared by Lindsay Little & Associates, dated 12 December 2003.
as amended by the amended design layout sketch for the ground floor of Dwelling 3, Job No. 2799/03, dated 13.8.2004, prepared by Lindsay Little & Associates Pty Ltd and as amended by the following conditions of consent.
2. This consent should be read in conjunction with the Development Applications and consents granted for the site, numbered DA 1724/03 stage 2, DA 1725/03 stage 3, DA 1727/03 stage 4, DA 1728/03 stage 5 and DA 1729/03 stage 6.
3. All building works shall comply with the Building Code of Australia.
4. The dwellings shall not be occupied and an occupation certificate shall not be issued until all the development referred to in condition 2 has been completed in accordance with all conditions of the consents and the approved plans referred to in condition 2.
5. The opening of any footway, roadway, road shoulder or any part of the road reserve shall not be carried out without a Road Opening Permit being obtained from the Council (upon payment of the required fee) beforehand.
6. For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plan and this Consent and Construction Certificate shall be kept on site at all times.
7. For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the road or footpath without the written approval being obtained from the Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.
8. HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant.
Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment.
9. For the purpose of public safety, a sign shall be erected on the site prior to any work commencing which is clearly visible from a public place stating that unauthorised entry to the site is not permitted and showing the name of the builder or another person responsible for the site and a telephone number for contact outside working hours. The sign may only be removed on satisfactory completion of the works.
10. A sign shall be erected in a prominent position on the site which states the name and contact details of the Principal Certifying Authority.
11. Toilet facilities are to be provided, within the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.
12. To maintain residential amenity, all electrical services to the site are to be provided underground and must not disturb the root system of any trees. Please contact the energy supply authority’s local customer service office to obtain documentary evidence that the authority has been consulted and that their requirements have been met. This information is to be submitted to Council prior to the release of the Subdivision Certificate.
13. To preserve and enhance the natural environment, all soil erosion and sediment control structures shall be inspected following each storm event and any necessary maintenance work shall be undertaken to ensure their continued proper operation. Sediment shall be removed from the soil erosion and sediment control structures when no more than forty percent (40%) capacity has been reached. These structures shall continue in proper operation until all development activities have been completed and the site fully stabilised.
14. To preserve the ongoing health and vigour of the Angophora costata (Sydney Redgum) #152, centrally located between Dwellings 1 and 3, the proposed 300mm drainage pipe is to be located a minimum 6.0m away from the base of the tree trunk.
15. A Tree Preservation Order exists within the Ku-ring-gai Council area whereby the removal, lopping or destruction of any tree exceeding 5.0 metres in height or 4.0 metres in canopy spread (except where exempt as defined under Council’s Tree Preservation Order) without prior written consent of Council is prohibited.
Release of the Construction Certificate gives automatic approval to the removal ONLY of those trees located on the subject property within the footprint of a proposed new building/structure or within 3.0 metres of a proposed new dwelling. Where this application is for a building/structure other than a dwelling then ONLY trees within the area to be occupied by this building/structure may be removed. Other trees SHALL NOT be REMOVED or DAMAGED without an application being made under Council’s Tree Preservation Order.
16. Separate written approval under Council’s Tree Preservation Order is required prior to the removal of the following trees within the subject property:
Tree/Location
ANY tree protected by councils Tree Preservation Order that is not otherwise nominated for removal.
17. Landscape works shall be carried out in accordance with Landscape Drawing No L02, # 03125 prepared by PATIO and dated 23/12/2003 submitted with the Development Application, except as amended by the following:
Correct Driveway layout and passing bay to be amended and shown on the landscape plan, incorporating the requirements of condition 48.
18. Tree roots between 10mm and 50mm diameter, severed during excavation, shall be cut cleanly by hand and the tree subsequently treated with a root growth hormone and wetting agent, by an experienced Arborist/Horticulturist with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate.
19. No tree roots of 50mm or greater in diameter located within the specified radius of the trunks of the following, trees shall be severed or injured in the process of any site works during the construction period.
Tree/Location Radius From Trunk
#152 Angophora costata (Sydney Redgum) 10.0m
Adjacent to proposed driveway between Dwelling 1 and
Dwelling 3
#171 Syncarpia glomulifera (Turpentine) 7.0m
Adjacent to southern site boundary/Dwelling 1 in
neighbouring property
#315 Syncarpia glomulifera (Turpentine) 6.0m
Adjacent to northern site boundary/Dwelling 3
#314 Syncarpia glomulifera (Turpentine) 6.0m
Adjacent to northern site boundary/Dwelling 3
#318 Howea forsteriana (Kentia Palm) 2.0m
Adjacent to northern site boundary/Dwelling 3
#319 Jacaranda mimosifolia (Jacaranda) 3.0m
Adjacent to northern site boundary/Dwelling 3
#124 Juniperous sp. (Juniper) 5.0m
Adjacent to southern site boundary/driveway
#125 Unidentified species 4.0m
Adjacent to southern site boundary/driveway
#93 Unidentified species 5.0m
Adjacent to southern site boundary/driveway in neighbouring property
#96 Angophora costata (Sydney Redgum) 4.0m
Adjacent to northern site boundary of driveway access handle
#49 Angophora costata (Sydney Redgum) 3.0m
Adjacent to southern site boundary of driveway access
handle in neighbouring property
#50 Syncarpia glomulifera (Turpentine) 8.0m
Adjacent to eastern site boundary of neighbouring property
#97 Syncarpia glomulifera (Turpentine) 8.0m
Adjacent to northern site boundary of the driveway access handle
#200 Syncarpia glomulifera (Turpentine) 4.0m
Adjacent to southern site boundary/Dwelling 1
#214 Ulmus procera ‘Loui Van Houtte’ 2.0m
Adjacent to eastern site boundary/Dwelling 3
20. The trees to be retained shall be inspected, monitored and treated when necessary by a qualified Arborist before, during and after completion of development works to ensure their long term survival. Regular reports from the Arborist to the Council shall be required at monthly intervals. Documentary evidence of compliance with this condition shall be submitted to Council with the final Certificate of Compliance.
21. Paving works within the specified radius of the trunks of the following trees shall be constructed to ensure that existing water infiltration and gaseous exchange to the trees root system is maintained. Details for the paving shall be submitted to the Principal Certifying Authority for approval by a suitably qualified professional prior to the commencement of paving construction:
Tree/Location Radius From Trunk
#152 Angophora costata (Sydney Redgum) 10.0m
Adjacent to proposed driveway between Dwelling 1
and Dwelling 3
#124 Juniperous sp. (Juniper) 5.0m
Adjacent to southern site boundary/driveway
#125 Unidentified species 4.0m
Adjacent to southern site boundary/driveway
#96 Angophora costata (Sydney Redgum) 4.0m
Adjacent to northern site boundary of driveway
access handle
#49 Angophora costata (Sydney Redgum) 3.0m
Adjacent to southern site boundary of driveway access
handle in neighbouring property
#200 Syncarpia glomulifera (Turpentine) 4.0m
Adjacent to southern site boundary/Dwelling 1
22. Excavation for the installation of CONDUITS/SEWER/STORMWATER/GAS within the specified radius of the trunks of the following trees shall be carried out using the thrust boring method. Thrust boring shall be carried out at least 600mm beneath natural ground surface at the trees to minimise damage to tree/s root system. Documentary evidence of compliance with this condition shall be submitted to Council with the final Certificate of Compliance.
Tree/Location Radius From Trunk
#152 Angophora costata (Sydney Redgum) 10.0m
Adjacent to proposed driveway between Dwelling 1
and Dwelling 3
#124 Juniperous sp. (Juniper) 5.0m
Adjacent to southern site boundary/driveway
#125 Unidentified species 4.0m
Adjacent to southern site boundary/driveway
#49 Angophora costata (Sydney Redgum) 3.0m
Adjacent to southern site boundary of driveway access
handle in neighbouring property
23. The applicant shall ensure that at all times during the construction period no activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order.
24. On completion of the landscape works/tree planting or screen planting, a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to issue of final Certificate of Compliance.
25. All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works.
26. Stormwater runoff from new hard surfaces generating runoff or landscaped areas that are not at natural ground level shall be piped to the street drainage system. New drainage line connections to the street system shall conform and comply with the requirements described in sections 5.3 and 5.4 of Councils Water Management Development Control Plan 47, available in hard copy at Council and on the Council website.
27. An on-site stormwater detention system must be provided for each dwelling in accordance with Councils Water Management Development Control Plan 47, available in hard copy at Council and on the Council website. Separate systems are to be provided for each residence, except where a single combined system may be located in a common location readily accessible by both owners (such as under a shared driveway). In this case appropriate cross burdens are to be created on title(s) as necessary.
28. For stormwater control a 150mm high kerb shall be provided along the driveway to convey runoff to the main drainage system. This may require the installation of suitable cut-off structures, inlets and/or barriers that direct runoff to the formal drainage system.
29. For stormwater control a 200mm wide grated drain with heavy duty removable galvanised grates is to be located within the property at the intersection of the driveway and Council's footway to collect all surface water flowing down the driveway. The drainage line from the grated drain shall be connected to the street system, either separately or via the main site outlet.
30. Where required, the adjustment of any utility service facilities must be carried out by the applicant and in accordance with the requirements of the relevant utility authority. These works shall be at no cost to Council. It is the Applicants responsibility to ascertain impacts of the proposal upon utility services and Council accepts no responsibility for any matter arising from its approval to this application involving an influence upon utility services provided by another authority.
31. All public footways and roadways fronting and adjacent to the site are to be maintained in a safe condition at all times during the course of the development works. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to the public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where circulation is diverted on to the roadway, clear directional signage and protective barricades must be installed in accordance with AS1742-3 1996 “Traffic Control Devices for Work on Roads” . If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.
32. The provision of temporary sediment and erosion control facilities and measures are to be installed, prior to the commencement of any works on the site to eliminate unnecessary erosion and loss of sediment. These facilities must be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps must be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority and Council officers.
33. Driveways and access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard 2890.1 – 2004 “Off-Street car parking”.
34. The Applicant must obtain a Section 73 Notice of Requirements under the Sydney Water Act 1994 . An application must be made through an authorised Water Servicing Coordinator. Please refer to “Your Business” section of Sydney Water’s web site at then the “e-developer” icon or telephone 13 20 92. Following application a “Notice of Requirements” will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.
35. To prevent surface stormwater from entering the building, the finished habitable ground floor level(s) of the building shall be a minimum of 150mm above adjacent finished ground level(s). The entire outside perimeter of the building must have overland flow escape routes which will protect all finished floor levels from flooding during times of complete subsurface drainage blockage.
CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE
36. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate.
Note: Required if cost of works exceed $25,000.00.
37. It is a condition of consent that the applicant, builder or developer or person who does the work on this residential building project arrange the Builders Indemnity Insurance and submit the Certificate of Insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Council or other Principal Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the Builder's Indemnity Insurance for residential building work over the value of $12,000 and to satisfy the Council or other Principal Certifying Authority by the presentation of the necessary Certificate of Insurance so as to comply with the applicable requirements of Part 6 of the Home Building Act 1989. The requirements for the Builder's Indemnity Insurance does not apply to commercial or industrial building work or for residential work less than $12,000, nor to work undertaken by persons holding an Owner/Builder's Permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work).
38. The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project.
39. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area.
TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF ONE ADDITIONAL DWELLINGS IS CURRENTLY $12,459.50. The amount of the payment shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council’s Section 94 Contributions Plan to reflect changes in land values, construction costs and the consumer price index.
This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council’s adopted Section 94 Contributions Plan for Residential Development, effective from 20 December 2000, calculated for additional person as follows:
1. Preparation of New Residents Kit $10.98
2. New Resident Survey $9.87
3. New child care centre
(including land acquisition and construction of facility) $252.13
4. Additions/alterations to Acron Rd child care centre
for additional 20 places $2.41
5. New Library bookstock $17.95
6. New Public Art $2.93
7. Acquisition of Open Space - St Ives $7,851.00
8. Koola Park upgrade and reconfiguration $143.09
9. North Turramurra Sportsfield development $986.80
10. Section 94 2000-2003 Study and Interim Plan preparation cost $49.34
11. Section 94 Officer for period of Plan 2000-2003 $118.42
To obtain the total contribution figure the following table of occupancy rates is to be used:
OCCUPANCY RATES FOR DIFFERENT DWELLING SIZES
Small dwelling (under 75 sqm) 1.25 persons
Medium dwelling (75 - under 110 sqm) 1.75 persons
Large dwelling (110 - under 150sqm) 2.75 persons
Very Large dwelling (150sqm or more) 3.5 persons
New Lot 3.5 persons
40. The Construction Certificate shall not be released until a Site Management Plan is submitted to the Principal Certifying Authority and approved by a suitably qualified professional.
The plan shall indicate the planned phases of the construction work, erosion and drainage management, tree protection measures, areas nominated for storing materials, site access and where vehicle parking is proposed, during construction.
41. To preserve the following trees, footings of the proposed development works shall be isolated pier or pier and beam construction within the specified radius of the trunks. The piers shall be located such that no roots of a diameter greater than 50mm shall be severed or injured in the process of any site works during the construction period. The beam shall be located on or above existing soil levels.
The location and details of the footings shall be submitted to Council’s Landscape Development Officer and be approved prior to release of the Construction Certificate.
Tree/Location Radius in Metres
#152 Angophora costata (Sydney Redgum) 10.0m
Adjacent to proposed driveway between Dwelling 1 and Dwelling 3
#171 Syncarpia glomulifera (Turpentine) 7.0m
Adjacent to southern site boundary/Dwelling 1 in
neighbouring property
42. Prior to issue of the Construction Certificate footpath and driveway levels for any fully new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Council. Such levels are only able to be issued by Council under the Roads Act 1993 . All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings" or as specified by Council. These are issued with alignment levels after completing the necessary application form at Customer Services and payment of the adopted fee.
The grading of such footpaths or driveways outside the property shall comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant and the alignment levels fixed by Council may affect these. Approval of this Development Application is for works wholly within the property. DA consent does not imply approval of footpath or driveway levels, materials or location within the road reserve regardless of whether this information is shown on the application documents.
Note 1: The construction of footpaths and driveways outside the property, in materials other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations.
Note 2: When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant Development Application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment. Failure to submit this information may delay processing.
43. Prior to the issue of the Construction Certificate, longitudinal driveway sections are to be prepared by a qualified civil/traffic engineer and provided for approval by the Principal Certifying Authority (PCA). These profiles are to be at a recognised scale along both edges of the proposed driveway, starting from the centreline of the frontage street carriageway to the garage of Dwelling 3. The driveway profiles must demonstrate the following:
a. That vehicular access can be obtained using grades of 25% (1 in 4) maximum, and
b. That all changes in grade (transitions) comply with Australian Standard 2890.1 –“Off-street car parking” (refer clause 2.5.3) to prevent the scraping of the underside of vehicles.
If a new driveway crossing is proposed in the road reserve, the longitudinal sections must incorporate the driveway crossing levels as issued by Council upon prior application.
44. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), full construction drawings for the proposed method of achieving Council storage volume requirements for an on-site stormwater detention system. The storage volumes and design shall comply with Councils Water Management DCP 47 (available on the Council website and at Council customer services), the manufacturers’ specifications and the relevant plumbing codes. The design and construction plans, with all supporting documentation, are to be prepared by a qualified and experienced civil/hydraulic engineer and may be incorporated on the overall site drainage plan.
45. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), construction design drawings and calculations for the property drainage system components. The property drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) shall be designed for a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) and shall be compatible with the necessary retention and/or detention devices. Plans and calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Councils Water Management Development Control Plan 47 available on the Council website and at Council, and AS 3500.2 - Plumbing and Drainage Code.
46. The WC and staircase windows in the southern façade at the first floor level of Dwelling 1 are to be provided with obscure glazing. Details to be provided for approval with the Construction Certificate application.
47. The proposed translucent glass acoustic screen as shown on the plans is to be deleted and the existing landscaping along the western and southern boundaries with No. 74 Collins Road is to be retained, including Tree 91 the Gordonia and the hedge of Murraya . The sandstone edging along the northern side of the driveway behind the established building line of No 74 Collins Road is to be retained and incorporated into the new driveway kerb. Any new landscaping on the northern side of the proposed driveway is to not to exceed a mature height of 1m above ground level.
48. The passing bay within the access handle is to be relocated towards the street and to the south to allow the existing landscaping behind the established building line of No 74 Collins Road to be retained.
Amended plans are to be provided for approval with the Construction Certificate showing the relocation of the passing bay in accordance with Section 3.2.2 of AS 2890.1 2004. Trees No 94 and 95 Jacarandas may be removed to achieve the amended location of the driveway if necessary.
49. The fence to the north of the private open space area of Dwelling 1 is to be 1.5m in height. Details to be provided for approval with the Construction Certificate application.
CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING
50. Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works.
51. To preserve the following trees, no work shall commence until the trunks are protected by the placement of 2.0 metre lengths of 50 x 100mm hardwood timbers spaced at 150mm centres and secured by 2mm wire at 300mm spacings. The trunk protection shall be maintained intact until the completion of all work on site. Any damage to the trees shall be treated immediately by an experienced Horticulturist/Arborist, with minimum qualification of Horticulture Certificate or Tree Surgery Certificate and a report detailing the works carried out shall be submitted to the Principal Certifying Authority:
Tree/Location
#152 Angophora costata (Sydney Redgum)
Adjacent to proposed driveway between Dwelling 1 and Dwelling 3
#96 Angophora costata (Sydney Redgum)
Adjacent to northern site boundary of driveway access handle
52. To preserve the following trees, no work shall commence until the area beneath the canopy of the following trees is fenced off at the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fences shall be maintained intact until the completion of all demolition/building work on site.
Tree/Location Radius in Metres
#214 Ulmus procera ‘Loui Van Houtte’ 2.5m
Adjacent to eastern site boundary/Dwelling 3
#315 Syncarpia glomulifera (Turpentine) 4.0m
Adjacent to northern site boundary/Dwelling 3
#314 Syncarpia glomulifera (Turpentine) 6.0m
Adjacent to northern site boundary/Dwelling 3
#318 Howea forsteriana (Kentia Palm) 2.0m
Adjacent to northern site boundary/Dwelling 3
#319 Jacaranda mimosifolia (Jacaranda) 2.0m
Adjacent to northern site boundary/Dwelling 3
53. To preserve existing trees located between the southern site boundary and the driveway, no work shall commence until the area between the driveway and the southern site boundary is fenced off to prevent any activities, storage or the disposal of materials within the fenced area. The fence is to be installed immediately adjacent to the southern side of the driveway and existing retaining wall. The fence is to run parallel with the driveway access handle from the Collins Rd site frontage to a two (2.0) metre offset from the proposed garage for Dwelling 1. The fence is then to return to the southern site boundary. The fence is to be maintained intact until the completion of all demolition/building work on site.
54. The tree protection fence shall be constructed of galvanised pipe at 2.4 metre spacings and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres prior to work commencing.
55. Upon completion of the installation of the required tree protection measures you are required to contact Council on telephone 9424 0888 or facsimile 9418 1117 to arrange an inspection of the site, in this regard a minimum of 24 hours notice is required. Following the carrying out of a satisfactory inspection and subject to the payment of all relevant monies and compliance with any other conditions of approval, work may commence.
CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION
56. Prior to the release of any occupation certificate, a compliance certificate must be obtained from an accredited certifier, certifying that the building works for the building to be occupied comply with the plans and specifications approved by this development consent; and any construction certificate associated with this consent for the buildings to be occupied. If the PCA is not the Council, then this compliance certificate must be submitted to the Council at the same time as the occupation certificate is submitted to the Council in accordance with Clause 151(2) of the E P & A Act regulations.
57. A survey report shall be submitted to the Principal Certifying Authority prior to occupation, which certifies that the development has been constructed in accordance with the terms of this consent in relation to built upon area, building levels and setbacks.
58. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, the following works must be completed:
a. Construction of the new driveway crossing and layback in accordance with the levels and specifications issued by Council,
b. Removal of all redundant driveway crossings, pipe crossing and/or kerb laybacks. Full reinstatement of these areas to footway, and/or turfed verge and/or kerb and gutter to the satisfaction of Council. Reinstatement works shall match surrounding adjacent infrastructure with respect to integration of levels and materials.
c. Any sections of damaged grass verge are to be fully replaced with a non-friable turf of native variety to match existing.
Any damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) must be fully repaired to the satisfaction of Council Engineers. This shall be at no cost to Council.
59. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, the following must be provided to Council (attention Development Engineer):
a. A copy of the approved Construction Certificate stormwater detention/retention design for the site, and
b A copy of the works-as-executed drawing of the as-built on-site detention/retention system, and
c. The Engineer’s certification of the as-built system.
This condition is required so Council may maintain its database of as-constructed on-site stormwater detention systems, and also applies if the Principal Certifying Authority (PCA) is not the Council.
60. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, Certification and a Works-as-Executed (WAE) plan, in relation to the as-built on-site detention are to be submitted to the Principal Certifying Authority (PCA) for approval. Certification is to be provided by a suitably qualified consulting civil/hydraulic engineer and the WAE plan is to be prepared by a registered surveyor.
The certificate is to specifically acknowledge compliance of the on-site detention system with the approved Construction Certificate plans and also compliance with the design requirements of appendix 5 in Councils Water Management DCP 47 - “Design of on-site detention systems”. The Works-as-Executed details shall be marked in red on the approved Construction Certificate design for the on-site detention system, and shall specifically include:
· As constructed levels in comparison to design levels
· As built location of all detention devices on the property (plan view) and distances to nearest adjacent boundaries, buildings and easements
· As built locations of all pits and grates in the detention system, including dimensions.
· The size of the orifice or pipe control fitted.
· Dimensions of the discharge control pit and access grates
· The achieved capacity of the detention storage and derivative calculation.
· The maximum depth of storage over the outlet control.
· Top water levels of storage areas and RL’s at overflow point(s)
61. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate (and at the completion of works), the applicant shall submit certification from a consulting civil/hydraulic engineer to the Principal Certifying Authority (PCA), that:
a. Construction of the stormwater drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) has been carried out by a licensed plumbing contractor, and
b. The works have been completed in accordance with the approved Construction Certificate drainage plans and the Plumbing and Drainage Code AS3500, 3.2, and
c. All enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.
A Works-as-Executed (WAE) drawing of the property stormwater drainage system is to be prepared by a registered surveyor and submitted to the Principal Certifying Authority (PCA) prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate. The WAE plan shall show the following as built details, marked in red on the approved construction certificate stormwater drawings:
a. As built reduced surface and invert levels for all drainage pits and connection points.
b. As built reduced level(s) at the approved point of discharge to the public drainage system.
c. Gradients of drainage lines, materials and dimensions.
62. The internal access road from the street to the western end of dwelling 1 and the visitor space are to be constructed prior to the occupation of the dwellings.
63. The boundary fencing is to be carried out in accordance with the plan in Job No. 2872/03 Sheet 1 of 3 amended 21 July 2004, prepared by Lindsay Little & Associates, dated 12 December 2003. The brush fencing on the northern boundary is to be retained and extended to the eastern boundary of proposed Lot 5, to a height of 1.6m as existing.
In the Land andS J Watts
Commissioner of the Court
Environment Court
of New South Wales
No. 10775 of 2004 Harry Charalambous Applicant Ku-ring-gai Council Respondent Order The Court orders that: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development applications No DA1724/03, [Stage 2], lodged with the respondent council on 29 December 2003 to Torrens title subdivide in Stage 2 into proposed Lots 1 and 2 under the provisions of the Ku-ring-gai Planning Scheme Ordinance, (KPSO), at Lot 3, DP 3146, being No 72 Collins Road, St Ives, is approved subject to Conditions 1 to 18 in Annexure B. 3. The exhibits with the exception of Exhibits A to Q and 6 are returned. Ordered: 23 August 2004 By the Court Susan Dixon Appeal No 10775 of 2004 |
v
Ku-ring-gai Council
No 72 COLLINS ROAD, ST IVES NSW 2075
DEVELOPMENT APPLICATION NO: 1724/03
SUBDIVISION OF DUAL OCCUPANCY
LAND & ENVIRONMENT COURT PROCEEDINGSSTAGE II
NO. 10775 of 2004
GENERAL CONDITIONS
1. The development to be in accordance with Development Application No1724/03 and Development Application plans prepared by N K Bennett & O’Donnell, reference number 9308-1B1, dated 17-12-03, as amended by the following conditions of consent.
2. This consent should be read in conjunction with the Development Applications and consents granted for the site, numbered DA 1723/03 stage 1, DA 1725/03 stage 3, DA 1727/03 stage 4, DA 1728/03 stage 5 and DA 1729/03 stage 6.
CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE
3. The appropriate fees set out in Councils adopted Schedule of Fees and Charges is payable to Council, prior to the issue of the subdivision certificate.
4. All on-site stormwater detention and associated drainage works required under DA 1723/03 are to be completed to the satisfaction of Council’s Development Engineer prior to the issue of a Subdivision Certificate.
5. In order to maintain Council’s database of as-constructed on-site stormwater detention systems under DA 1723/03, if the Principal Certifying Authority is not Council then a copy of the approved stormwater detention design, the works-as-executed drawings and the Engineer’s certification of the as-constructed system is to be provided to Council, attention Development Engineer, prior to the issue of a subdivision certificate.
6. The creation of a Positive Covenant and Restriction on the Use of Land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the on-site stormwater detention facilities on the property prior to the issue of a subdivision certificate. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site detention facilities" and to the satisfaction of Council. The location of the on-site detention systems is to be clearly denoted on the final subdivision plan.
7. The submission of an original Plan of Subdivision plus five (5) copies suitable for endorsement by the certifying authority.
Note 1: The Plan of Subdivision must be lodged with Council’s Standard Lodgement Form, available from Council’s Customer Services.
Note 2: The following details must be submitted with the Plan of Subdivision:
a. The 88B Instrument.
b. The Engineer's Certification on Council’s Standard Certification Sheet and a Works-as-Executed plan by a registered surveyor of the on-site Stormwater detention facilities for all dwellings.
c. Any Engineers and/or Surveyors Certification required by other conditions in this consent.
d. The Section 73 Compliance Certificate.
Note 3: Council will check the consent conditions and failure to submit the required information will delay issue of the Subdivision Certificate and require payment of re-submission fees.
8. The submission of an instrument under Section 88B of the Conveyancing Act with the Plan of Subdivision, plus five (5) copies, creating any required easements, rights-of-carriageway, positive covenants, restrictions etc, with Ku-ring-gai Council being named as the authority whose consent is required to release, vary or modify the same.
9. A survey report shall be submitted to Council, which certifies that the development has been constructed in accordance with the terms of DA 1723/03 in relation to built-upon area, floor space ratio, building floor levels and setbacks prior to the issue of the subdivision certificate.
10. Deleted.
11. Creation of burdens including drainage easements, service easements and rights-of-carriageway as required. A registered surveyor is to certify prior to the issue of the subdivision certificate that all interallotment drainage lines, services or driveways are fully contained within the proposed burdens and/or that future provision of such are fully covered by the proposed burdens. Alternatively if the surveyor is of the opinion that no interallotment easements or rights-of-carriageway are required then certification to this effect from the surveyor is to be submitted.
12. Creation of suitable drainage easements with minimum widths in accordance with Council’s Stormwater Management Manual over all of the inter-allotment and Council drainage systems.
13. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to “Your Business” section of Sydney Water’s web site at then the “e-developer” icon or telephone 13 20 92.
Following application a “Notice of Requirements” will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.
The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to the issue of the subdivision certificate.
14. The developer shall submit to Council a letter from the energy supply authority and either Telstra or Optus confirming that satisfactory arrangements have been made for the provision of underground telephone and power services, prior to the release of the subdivision certificate.
15. Prior to the issue of a Subdivision Certificate, all disused driveway crossings, pipe crossing and/or kerb laybacks are to be reinstated as footway and kerb and/or gutter to the satisfaction of Council’s Development Engineer. Any infrastructure within the road reserve along the frontage of the subject site or within close proximity which has been damaged as a result of construction works on the subject site is to be repaired to the satisfaction of Council’s Development Engineer.
16. The internal access road from the street to the western end of dwelling 1 and the visitor space are to be constructed prior to the issue of a Subdivision Certificate.
17. All visitor car parking spaces and all areas of common property, including on-site detention facilities must be included on the final plans of subdivision.
18. Prior to the issue of the Subdivision Certificate, the associated development approved under DA 1723/03 (stage 1) shall be completed to “lock-up” stage. In this respect a compliance certificate shall be issued by either Council or the Principal Certifying Authority certifying that the building has the following components: external walls, cladding roofing, and all doors and windows with locks, installed, erected or constructed in their approved completed form.
S J Watts19. The creation of a positive covenant and restriction on the use of land, under s 88B of the Conveyancing Act 1919, burdening the property with the requirement to obtain council approval for the removal of any tree shown on the approved landscape plan along the southern boundary adjacent to Nos 1 and 1A Mudies Road. The terms of this instrument are to be to the reasonable satisfaction of the Council.
Commissioner of the Court
- In the Land and
Environment Court
of New South Wales
No. 10776 of 2004 Harry Charalambous Applicant Ku-ring-gai Council Respondent Order The Court orders that: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No DA 1725/03, [Stage 3], lodged with the respondent council on 29 December 2003, to construct two (2) two-storey detached dual occupancy dwellings Nos 2 and 4 under the provisions of State Environmental Planning Policy No 53, (SEPP53), at Lot 3, DP 3146, being No 72 Collins Road, St Ives, is approved subject to Conditions 1 to 59 in Annexure C. 3. The exhibits with the exception of Exhibits A to Q and 6, are returned. Ordered: 23 August 2004 By the Court Susan Dixon Appeal No 10776 of 2004 |
v
Ku-ring-gai Council
CONDITIONS WITHOUT PREJUDICE
No 72 COLLINS ROAD, ST IVES NSW 2075
DEVELOPMENT APPLICATION NO: 1725/03
DUAL OCCUPANCY
LAND & ENVIRONMENT COURT PROCEEDINGSSTAGE III
NO. 10776 of 2004
GENERAL CONDITIONS
1. The development to be in accordance with Development Application No 1725/03 and Development Application plans
· Job No. 2872/03 Sheets 2 and 4 and Masterplan, prepared by Lindsay Little and Associates, dated 12 December 2003;
· Landscape Plans Job No. 03125, Drawing No. L01 dated 10 December 2003 and L03, dated 23 December 2003, both prepared by Patio Landscape Design;
· Stormwater Drainage Concept Plan, Job No. 342908, Sheets 1-2, dated 12/2003, prepared by AFCE Environment and Building Consultants;
· Job No. 2872/03 Sheet 1 of 3 amended 21 July 2004, prepared by Lindsay Little & Associates, dated 12 December 2003.
as amended by the following conditions of consent.
2. This consent should be read in conjunction with the Development Applications and consents granted for the site, numbered DA 1723/03 stage 1, DA 1724/03 stage 2, DA 1727/03 stage 4, DA 1728/03 stage 5 and DA 1729/03 stage 6.
3. The construction of dwellings approved under this consent shall not commence until the subdivision plan approved under DA1724/03 stage 2 has been registered. The purpose of this condition is to implement Council’s requirements for, and the applicant’s agreement to, development referred to in condition 2 above being completed prior to occupation of any of the buildings approved in this consent and the consents referred to in condition 2 above.
4. All building works shall comply with the Building Code of Australia.
5. The dwellings shall not be occupied and an occupation certificate shall not be issued until all the development referred to in condition 2 has been completed in accordance with all conditions of the consents and the approved plans referred to in condition 2.
6. The opening of any footway, roadway, road shoulder or any part of the road reserve shall not be carried out without a Road Opening Permit being obtained from the Council (upon payment of the required fee) beforehand.
7. For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plan and this Consent and Construction Certificate shall be kept on site at all times.
8. For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the road or footpath without the written approval being obtained from the Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.
9. HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant.
Note 1: The construction of footpaths and driveways outside the property, in materials other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations.
Note 2: When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant Development Application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment. Failure to submit this information may delay processing.
43. 43. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), full construction drawings for the proposed method of achieving Council storage volume requirements for an on-site stormwater detention system. The storage volumes and design shall comply with Councils Water Management DCP 47 (available on the Council website and at Council customer services), the manufacturers’ specifications and the relevant plumbing codes. The design and construction plans, with all supporting documentation, are to be prepared by a qualified and experienced civil/hydraulic engineer and may be incorporated on the overall site drainage plan.
44. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), construction design drawings and calculations for the property drainage system components. The property drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) shall be designed for a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) and shall be compatible with the necessary retention and/or detention devices. Plans and calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Councils Water Management Development Control Plan 47 available on the Council website and at Council, and AS 3500.2 - Plumbing and Drainage Code.
45. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area.
TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF ONE ADDITIONAL DWELLINGS IS CURRENTLY $12,459.50. The amount of the payment shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council’s Section 94 Contributions Plan to reflect changes in land values, construction costs and the consumer price index.
This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council’s adopted Section 94 Contributions Plan for Residential Development, effective from 20 December 2000, calculated for additional person as follows:
1. Preparation of New Residents Kit $10.98
2. New Resident Survey $9.87
3. New child care centre
(including land acquisition and construction of facility) $252.13
4. Additions/alterations to Acron Rd child care centre
for additional 20 places $2.41
5. New Library bookstock $17.95
6. New Public Art $2.93
7. Acquisition of Open Space - St Ives $7,851.00
8. Koola Park upgrade and reconfiguration $143.09
9. North Turramurra Sportsfield development $986.80
10. Section 94 2000-2003 Study and Interim Plan preparation cost $49.34
11. Section 94 Officer for period of Plan 2000-2003 $118.42
To obtain the total contribution figure the following table of occupancy rates is to be used:
OCCUPANCY RATES FOR DIFFERENT DWELLING SIZES
Small dwelling (under 75 sqm) 1.25 persons
Medium dwelling (75 - under 110 sqm) 1.75 persons
Large dwelling (110 - under 150sqm) 2.75 persons
Very Large dwelling (150sqm or more) 3.5 persons
New Lot 3.5 persons
CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING
46. Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works.
47. To preserve the following trees, no work shall commence until the area beneath the canopy of the following trees is fenced off at the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fences shall be maintained intact until the completion of all demolition/building work on site.
Tree/Location Radius in Metres
#465 Syncarpia glomulifera (Turpentine) 2.5m
Adjacent to northern site boundary/North western side
of Dwelling 5
#474 Angophora floribunda (Rough barked apple) 3.5m
Adjacent to northern site boundary
#475 Syzigium paniculatum (Lillypilly) 2.0m
Adjacent to northern site boundary
#494 Syncarpia glomulifera (Turpentine) 2.5m
Adjacent to north western side of Dwelling 5)
#508 Eucalyptus resinifera (Red Mahogany) 2.0m
Adjacent to western site boundary/south western side
of Dwelling 5
48. To preserve existing trees adjacent to the western site boundary, no work shall commence until the area between the western site boundary to an offset towards the east of 8.0m is fenced off to prevent any activities, storage or the disposal of materials within the fenced area. The fence is to be installed parallel to the western site boundary at the required 8.0m offset, from the northern site boundary for approximately 23.0m where it is then to return to the western site boundary. The fence is to be maintained intact until the completion of all demolition/building work on site.
49. The tree protection fence shall be constructed of galvanised pipe at 2.4 metre spacings and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres prior to work commencing.
50. Upon completion of the installation of the required tree protection measures you are required to contact Council on telephone 9424 0888 or facsimile 9418 1117 to arrange an inspection of the site, in this regard a minimum of 24 hours notice is required. Following the carrying out of a satisfactory inspection and subject to the payment of all relevant monies and compliance with any other conditions of approval, work may commence.
CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION
51. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, the following works must be completed:
a. Construction of the new driveway crossing and layback in accordance with the levels and specifications issued by Council,
b. Removal of all redundant driveway crossings, pipe crossing and/or kerb laybacks. Full reinstatement of these areas to footway, and/or turfed verge and/or kerb and gutter to the satisfaction of Council. Reinstatement works shall match surrounding adjacent infrastructure with respect to integration of levels and materials.
c. Any sections of damaged grass verge are to be fully replaced with a non-friable turf of native variety to match existing.
Any damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) must be fully repaired to the satisfaction of Council Engineers. This shall be at no cost to Council.
52. Prior to the release of any occupation certificate, a compliance certificate must be obtained from an accredited certifier, certifying that the building works for the building to be occupied comply with the plans and specifications approved by this development consent; and any construction certificate associated with this consent for the buildings to be occupied. If the PCA is not the Council, then this compliance certificate must be submitted to the Council at the same time as the occupation certificate is submitted to the Council in accordance with Clause 151(2) of the E P & A Act regulations.
53. A survey report shall be submitted to the Principal Certifying Authority prior to occupation, which certifies that the development has been constructed in accordance with the terms of this consent in relation to built upon area, building levels and setbacks.
54. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, the following must be provided to Council (attention Development Engineer):
a. A copy of the approved Construction Certificate stormwater detention/retention design for the site, and
b A copy of the works-as-executed drawing of the as-built on-site detention/retention system, and
c. The Engineer’s certification of the as-built system.
This condition is required so Council may maintain its database of as-constructed on-site stormwater detention systems, and also applies if the Principal Certifying Authority (PCA) is not the Council.
55. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, Certification and a Works-as-Executed (WAE) plan, in relation to the as-built on-site detention are to be submitted to the Principal Certifying Authority (PCA) for approval. Certification is to be provided by a suitably qualified consulting civil/hydraulic engineer and the WAE plan is to be prepared by a registered surveyor.
The certificate is to specifically acknowledge compliance of the on-site detention system with the approved Construction Certificate plans and also compliance with the design requirements of appendix 5 in Councils Water Management DCP 47 - “Design of on-site detention systems”. The Works-as-Executed details shall be marked in red on the approved Construction Certificate design for the on-site detention system, and shall specifically include:
· As constructed levels in comparison to design levels
· As built location of all detention devices on the property (plan view) and distances to nearest adjacent boundaries, buildings and easements
· As built locations of all pits and grates in the detention system, including dimensions.
· The size of the orifice or pipe control fitted.
· Dimensions of the discharge control pit and access grates
· The achieved capacity of the detention storage and derivative calculation.
· The maximum depth of storage over the outlet control.
· Top water levels of storage areas and RL’s at overflow point(s)
56. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate (and at the completion of works), the applicant shall submit certification from a consulting civil/hydraulic engineer to the Principal Certifying Authority (PCA), that:
a. Construction of the stormwater drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) has been carried out by a licensed plumbing contractor, and
b. The works have been completed in accordance with the approved Construction Certificate drainage plans and the Plumbing and Drainage Code AS3500, 3.2, and
c. All enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.
A Works-as-Executed (WAE) drawing of the property stormwater drainage system is to be prepared by a registered surveyor and submitted to the Principal Certifying Authority (PCA) prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate. The WAE plan shall show the following as built details, marked in red on the approved construction certificate stormwater drawings:
a. As built reduced surface and invert levels for all drainage pits and connection points.
b. As built reduced level(s) at the approved point of discharge to the public drainage system.
c. Gradients of drainage lines, materials and dimensions.
57. The internal access road from the street to the western end of dwelling 2 and the visitor space are to be constructed prior to the occupation of the dwellings.
S J Watts58. The boundary fencing is to be carried out in accordance with the plan in Job No. 2872/03 Sheet 1 of 3 amended 21 July 2004, prepared by Lindsay Little & Associates, dated 12 December 2003. The brush fencing on the northern boundary is to be retained and extended to the eastern boundary of proposed Lot 5, to a height of 1.6m as existing.
Commissioner of the Court
- In the Land and
Environment Court
of New South Wales
No. 10779 of 2004 Harry Charalambous Applicant Ku-ring-gai Council Respondent Order The Court orders that: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development applications No DA1729/03, [Stage 6] lodged with the respondent council on 29 December 2003 to Torrens title subdivide proposed Lot 22 into Lots 221 and 222 under the Ku-ring-gai Planning Scheme Ordinance, (KPSO), at Lot 3, DP 3146, being No 72 Collins Road, St Ives, is approved subject to Conditions 1 to 18 in Annexure F. 3. The exhibits with the exception of Exhibits A to Q and 6 are returned. Ordered: 23 August 2004 By the Court Susan Dixon Appeal No 10479 of 2004 |
Harry Charalambous
v
Ku-ring-gai Council
No 72 COLLINS ROAD, ST IVES NSW 2075
DEVELOPMENT APPLICATION NO: 1729/03
SUBDIVISION OF DUAL OCCUPANCY
STAGE VI
LAND & ENVIRONMENT COURT PROCEEDINGS
NO. 10779 of 2004
GENERAL CONDITIONS
1. The development to be in accordance with Development Application No 1729/03 and Development Application plans prepared by N K Bennett & O’Donnell, reference number 9308-4B1, dated 17-12-03, as amended by the following conditions of consent.
2. This consent should be read in conjunction with the Development Applications and consents granted for the site, numbered DA 1723/03 stage 1, DA 1724/03 stage 2, DA 1725/03 stage 3, DA 1727/03 stage 4 and DA 1728/03 stage 5.
CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE
3. The appropriate fees set out in Councils adopted Schedule of Fees and Charges is payable to Council, prior to the issue of the subdivision certificate.
4. All on-site stormwater detention and associated drainage works required under DA 1723/03 are to be completed to the satisfaction of Council’s Development Engineer prior to the issue of a Subdivision Certificate.
5. In order to maintain Council’s database of as-constructed on-site stormwater detention systems under DA 1723/03, if the Principal Certifying Authority is not Council then a copy of the approved stormwater detention design, the works-as-executed drawings and the Engineer’s certification of the as-constructed system is to be provided to Council, attention Development Engineer, prior to the issue of a subdivision certificate.
6. The creation of a Positive Covenant and Restriction on the Use of Land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the on-site stormwater detention facilities on the property prior to the issue of a subdivision certificate. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site detention facilities" and to the satisfaction of Council. The location of the on-site detention systems is to be clearly denoted on the final subdivision plan.
7. The submission of an original Plan of Subdivision plus five (5) copies suitable for endorsement by the certifying authority.
Note 1: The Plan of Subdivision must be lodged with Council’s Standard Lodgement Form, available from Council’s Customer Services.
Note 2: The following details must be submitted with the Plan of Subdivision:
a. The 88B Instrument.
b. The Engineer's Certification on Council’s Standard Certification Sheet and a Works-as-Executed plan by a registered surveyor of the on-site Stormwater detention facilities for all dwellings.
c. Any Engineers and/or Surveyors Certification required by other conditions in this consent.
d. The Section 73 Compliance Certificate.
Note 3: Council will check the consent conditions and failure to submit the required information will delay issue of the Subdivision Certificate and require payment of re-submission fees.
8. The submission of an instrument under Section 88B of the Conveyancing Act with the Plan of Subdivision, plus five (5) copies, creating any required easements, rights-of-carriageway, positive covenants, restrictions etc, with Ku-ring-gai Council being named as the authority whose consent is required to release, vary or modify the same.
9. A survey report shall be submitted to Council, which certifies that the development has been constructed in accordance with the terms of DA 1723/03 (stage 1), DA1722/03 (stage 3) and DA1728/03 (stage 5) in relation to built-upon area, floor space ratio, building floor levels and setbacks prior to the issue of the subdivision certificate.
10. Prior to the issue of the Subdivision Certificate, the associated development approved under DA 1728/03 (stage 5) shall be completed to “lock-up” stage. In this respect a compliance certificate shall be issued by either Council of the Principal Certifying Authority certifying that the building has the following components: external walls, cladding; roofing; and all doors and windows with locks, installed erected or constructed in their approved completed form.
11. Creation of burdens including drainage easements, service easements and rights-of-carriageway as required. A registered surveyor is to certify prior to the issue of the subdivision certificate that all interallotment drainage lines, services or driveways are fully contained within the proposed burdens and/or that future provision of such are fully covered by the proposed burdens. Alternatively if the surveyor is of the opinion that no interallotment easements or rights-of-carriageway are required then certification to this effect from the surveyor is to be submitted.
12. Creation of suitable drainage easements with minimum widths in accordance with Council’s Stormwater Management Manual over all of the inter-allotment and Council drainage systems.
13. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to “Your Business” section of Sydney Water’s web site at then the “e-developer” icon or telephone 13 20 92.
Following application a “Notice of Requirements” will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.
The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to the issue of the subdivision certificate.
14. The developer shall submit to Council a letter from the energy supply authority and either Telstra or Optus confirming that satisfactory arrangements have been made for the provision of underground telephone and power services, prior to the release of the subdivision certificate.
15. Prior to the issue of a Subdivision Certificate, all disused driveway crossings, pipe crossing and/or kerb laybacks are to be reinstated as footway and kerb and/or gutter to the satisfaction of Council’s Development Engineer. Any infrastructure within the road reserve along the frontage of the subject site or within close proximity, which has been damaged as a result of construction works on the subject site, is to be repaired to the satisfaction of Council’s Development Engineer.
16. The internal access road from the street to the western end of dwelling 2 and the visitor space are to be constructed prior to the issue of a Subdivision Certificate.
17. All visitor car parking spaces and all areas of common property, including on-site detention facilities must be included on the final plans of subdivision.
S J Watts
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