Hazan v Waverley Council - [2009] NSWLEC 1262

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Hazan v Waverley Council [2009] NSWLEC 1262

PARTIES:
APPLICANT
Sylvia Hazan
RESPONDENT
Waverley Council

FILE NUMBER(S): 10205 of 2009

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT APPLICATION :- Off-Street parking space, front setback and streetscape.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006

CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167
Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

DATES OF HEARING: 8 July 2009

EX TEMPORE JUDGMENT DATE: 8 July 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr Clay (barrister)
RESPONDENT
Mr S Patterson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

8 July 2009
10205 of 2009 Sylvia Hazan v Waverley Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 This is an appeal against Waverley Council’s refusal of a development application for a hardstand parking space within the front setback of a property known as 18 Jensen Avenue, Vaucluse. The proceedings were commenced onsite as a s 34 conciliation conference, however no agreement was reached and the parties consented to me disposing of the proceedings with a hearing pursuant to s 34(4)(b) of the Land and Environment Court Act 1979.

2 In summary, the issues are: the impact of the proposed development on the streetscape, the location of the car parking space within the front setback of the property, the length of the proposed space, removal of two trees and associated landscaping, the loss of an on-street car space, and the possible precedent effect of any approval.

The site

3 The property is on the western side of Jensen Avenue between Tower and Clarke Streets. It is a rectangular lot with a frontage to Jensen Avenue of 7.62 metres and a length of 30.48 metres. The properties on this side of the road are all relatively narrow lots.

4 A brick, semi-detached, single storey house with no vehicular access from Jensen Avenue stands on the property. The site frontage contains a low stone front fence and a 4 metre high, a white frangipani and a lilly pilly.

5 The property has no heritage significance and is not located in a heritage conservation area or within a residential character study area.

6 Jensen Avenue is a quiet residential street with an eclectic and varied built form including single dwellings, semi-detached houses and residential flat buildings. The eastern side of the avenue fronts the ocean.

7 A number of properties on the western side of Jensen Ave have driveways for vehicular access to hard stand car spaces within their front setbacks including properties at Nos. 14,16, 20 and 22.

8 There are a number of garages and driveways on the opposite side of the street located within their front setbacks.

The proposal and its history

9 Council has previously approved the development of a hardstand car park within the front setback of the property in March 1997. The status of that consent was not discussed.

10 The applicant lodged the development application the subject of this appeal with the council on 7 January 2008.

11 The development application was advertised in accordance with council’s policy for a period of 14 days and no submissions were received.

12 Council’s Development and Building Unit (DBU) considered the application on 31 March 2008 and resolved to refuse the application on the grounds as set out in the statement of facts and contentions.

13 Since the lodgement of the this appeal the application has been amended and with the consent of the council the applicant seeks approval of the amended proposal as detailed in drawing number 09-513-L001 prepared by Land Studio landscape architects.

14 Council concedes that the amended proposal reduces the hardstand area of the car space and increases the landscape component of the proposal.

15 An assessment of this development application under s 79C of the Environmental Planning and Assessment Act 1979 requires that I have regard to the following planning controls:

Waverley Local Environmental Plan

Waverley Development Control Plan

The Issues

16 At the commencement of the s34 conference the council confirmed that it maintained its objection to the amended application on 6 grounds.

17 The first ground is that the proposed development is contrary to the objectives of the Residential 2(a) zone under the Waverley Local Environmental Plan 1996, as it does not maintain and improve the amenity and existing characteristics of its locality.

18 Particulars of that issue are identified in the Statement of Contentions to include:

19 The second ground is that the proposed development will unreasonably detract from the appearance and quality of the streetscape contrary to objectives (a) of cl 5.7 and cl 5.7(3) set out in Part D1. Dwelling House and Dual Occupancy Development, and contrary to the design considerations set out in cl 5.1 and cl 5.2 of Part L1-Land Use and Transport of Waverley Development Control Plan 2006.

20 The third ground is pedestrian safety as it will reduce pedestrian safety contrary to objective (b) set out in cl 5.7 of Part 1 of the WDCP 2006.

21 The fourth ground is loss of on-street parking as it will result in the loss of on-street parking contrary to objective (c) set out in cl 5.7 of part D, and the design considerations set out in cl 5.1 of part L1 of the DCP.

22 The fifth issue is the undersized hardstand area. The proposed development should not be approved, as it will result in an undersized hard stand contrary to control 5.7 of Part 1 of the WDCP 2006.

23 The sixth and final ground concerns landscaping.

24 While the Council concedes that the amended landscape plans do address the numerical non-compliance of the landscaping proposed in the original design this does not overcome their objection to the removal of the frangipani and a lilly pilly trees.

The Evidence.

25 The applicant relies on the documentary and oral evidence of its town planning expert, Mr Moody, and its traffic expert, Mr Varga, both of whom prepared position papers which was tendered, and the amended plans prepared by the landscape architect, Land Studio.

26 The respondent relies on documentary evidence from the council’s files and the oral evidence of its senior town planner, Ms Yap.

27 The parties agreed at the outset that the relevant streetscape is that part of Jensen Avenue between Clarke and Tower Streets. I had the benefit of a view of the property with the parties to better appreciate the relevant streetscape.

Streetscape

28 Mr Moody’s expert evidence is that the proposal does not adversely impact on the streetscape and is not contrary to the objectives of the residential 2(a) zone under the WLEP.

29 The applicant says that the amended proposal significantly increases the amount of landscaped open space within the front setback area to 65 per cent, which is above the 50 per cent required by the WDCP, and thereby improves the amenity and existing character of the locality. Furthermore, Mr Moody calculates that approximately 50 per cent of all properties in the immediate locality have either hardstand car spaces or garages within their front setback area. The approval of this development he says will not unreasonably detract from the appearance and quality of the streetscape amenity. He referred the Court to the existing hardstand car spaces at Nos. 14, 16, 20 and 22 Jensen Avenue. In particular he referred the Court to the council’s assessment report in respect of No. 22 Jenson Ave wherein it states:

“…the hardstand car space will not adversely impact upon the appearance of the streetscape or unduly impact upon the amenity of the adjoining semis or premises within the vicinity.”

30 Mr Moody evidence is that the council’s officers have previously accepted that a hardstand car space does not adversely impact on the streetscape in Jensen Avenue and that that assessment should extend to this application.

31 It is the applicant’s evidence that the new car space at No. 22 was approved under similar planning controls in the DCP.

32 The applicant’s evidence is that the landscaping in the amended proposal improves the visual relationship between the street and the property. The applicant’s evidence is that the exiting landscape is barren apart from the frangipani and the lilly pilly.

33 The applicant’s evidence is that the proposed hardstand car space has landscaping on 3 sides and that this improves the visual relationship between the street and the development. The applicant says the proposal offers a more acceptable development compared to the existing hardstand car spaces, which are not bounded by landscaping.

34 The applicant is willing to accept a condition requiring the replacement of the frangipani tree with a mature substitute frangipani, or planting in accordance with council’s policy of indigenous species of plant if required.

35 Ms Yap’s evidence is that the streetscape is not improved by this development. She gave evidence that the interrelationship between the property and the street as it currently exists is more acceptable in achieving the objectives of the zone. Ms Yap referred the Court to the assessment report of the council for the development, in particular the loss of visual open front garden to the street.

36 Ms Yap, did however, concede that the council assessment report referred to above was made before the amended plans were lodged. Ms Yap agreed that the amended plans did improve the design and offered a more sympathetic interaction of the proposed development with the existing streetscape.

37 Mr Varga the traffic expert for the applicant addressed the pedestrian safety issue and rejected council’s concern that the proposal would impose an increased risk to pedestrian safety. His evidence is that the revised plan proposes driveways, which allow for forward entry and reverse entry with good visibility in both directions. He says that the proposal is consistent with the typical and commonplace features of an urban environment and this streetscape. The applicant’s evidence is that the proposal is not contrary to objective (b) in cl 5.7 of Part D1 of the Waverley Development Control Plan 2006.

38 In respect of the issue of the loss of one street car parking space, Mr Varga and Mr Moody agree in their evidence that the construction of the proposed driveway would still allow for one vehicle to be parked outside the property on the street. While the current layout allows for two cars, their evidence is that this can only be achieved if both vehicles are parked very closely between the existing crossings in the street. Both experts speculated that in practice this would rarely occur and based on their observations of traffic movements and parking in the locality suggested it is more likely that one car more often than not parks in the existing space.

39 The applicant’s evidence is that the site inspection during the course of the hearing confirmed the existing haphazard nature of parking in the street outside the property.

40 Mr Varga’s also gave evidence that the removal of a car from the street would in his opinion improve the amenity of the locality.

41 The applicant’s evidence is that the proposal is the same length (4.8 metres) as the existing hardstand car space at the adjoining property at number 20 Jensen Ave. (It is necessary to note that the council was unable to locate any development approval for the hard stand car space at No. 20 Jensen Avenue at the time of the hearing and submitted that it may be unauthorised development. The applicant’s evidence is that the hard stand car space at number 20 has been there for perhaps 20 years without any action by council to remove it).

42 The applicant concedes that the length of the proposed hardstand car space of 4.8 metres does not comply with the council’s WDCP control in cl 5.7(4) of Part 1 of the DCP. Ms Yaps’ evidence is that this is unacceptable and it does not accommodate a standard 85 percentile vehicle and sets an unacceptable precedent.

43 Both parties accept that the Court has discretion to approve the application despite any non-compliance with the WDCP controls.

Car space controls in the WDCP

44 The DCP requirement is for a car space with a length of 5.5 metres to accommodate an 85th percentile vehicle. The council’s evidence is that the proposal does not allow a standard 85th percentile vehicle to park in the space without overhanging onto the footpath. The council says this is unacceptable because it sets a precedent for undersized car spaces and makes redundant council’s DCP control in respect of this issue.

45 The council’s development and building unit considered this application on 31 March 2008 and under delegation refused the application on the basis that the proposed hard stand of 4.8 is considered to be significantly short of the minimum standard, however the applicant’s evidence is that it is the same size as the adjacent car park on No. 20 and will accommodate up to a 73 percentile vehicle.

46 The council’s refusal also was based on the fact that the proposed hard stand is located in front of the front building line contrary to objective (a) of cl 5.7 and cl 5.7(3) set out in the DCP, Dwelling House and Dual Occupancy Development, and contrary to the design considerations in cl 5.1 and cl 5.2 of Part L1, Land Use and Transport of the Waverley Development Control Plan 2006.

47 Ms Yap is evidence is that the council has since 2007 more rigorously applied the DCP controls in an effort to discourage development forward of the front building line, but conceded that the council adopted a more relaxed attitude before that date.

48 It is clear that the council in 2009 strongly opposes the proposed location and size of the car space the subject of this application. However, this application must be considered in context of the existing streetscape and the applicant’s evidence is that over 50 per cent of properties in the street have car spaces in their front alignment forward of the front building line.

49 The applicant invited the court to note this on the site inspection.

Removal of Trees

50 Ms Yap’s evidence in respect of the frangipani and lilly pilly is that they are significant trees and should be retained.

51 Ms Yap is not an arborist and the council did not file any evidence from a landscape expert.

52 In the event of removal of the trees Ms Yap asked that an indigenous species from the council’s planning policy be a condition of approval as her evidence is that it is a more appropriate choice than replacement with a mature frangipani and lilly pilly.

53 The applicant says that the trees are not significant trees. However, the applicant is willing to replant a mature frangipani or any species of plant council requires.

Overhanging of vehicle

54 In the event of an approval of this application Ms Yap asked the court to impose a condition to ensure that there would be no overhanging of any vehicle when parked in the space.

55 To that end Ms Yap asked the court to impose a condition requiring a gate at the entry to the car space.

56 Ms Yap was of the opinion that this would be an acceptable element to assist in ensuring compliance with any overhanging of a vehicle onto the footpath.

57 The council referred the Court to the condition imposed on the consent issued for No. 16 Jensen Street, which required that the applicant submit plans detailing landscaping and gates at the boundary in keeping with the streetscape and to the satisfaction of the Director of Environmental Services.

58 The applicant is happy to accept such a condition although the applicant drew to the court’s attention that there is no gate constructed on the existing hardstand car space at No. 16.

59 The Court heard evidence that the policing of a condition requiring the use a gate or a restriction of the size of the vehicle to be parked in a car space is difficult task for council’s given there resources. In my view, the Court should not impose impractical conditions, which require policing by the council.

Findings and Reasons.

60 The Court is obliged to take into consideration matters required by s 79C of the Environmental Planning and Assessment Act.

61 The proposed development is permissible development under the WLEP1996 and WDCP 2006 applies to the site.

62 I am mindful that WDCP 2006 is a relevant starting point in a consideration of this application (Zang v Canterbury City Council [2001] NSWCA167.

63 The WDCP is a consolidated plan, which has had several amendments since it was introduced in 1994.

64 The council’s evidence is that the last amendment to the WDCP is particularly relevant to this application, as it requires all car accommodation to be located behind the front building line.

65 The WDCP also relevantly addresses: streetscape, pedestrian safety, vehicular access, parking and off-street parking controls and landscaping.

66 However, strict adherence to the controls of a WDCP is discretionary.

67 I have considered the evidence of the parties, in the context of the planning controls and the relevant considerations under section 79C of the Act and prefer the evidence of the applicant for the following reasons.

68 The applicant’s evidence is that the proposal does not adversely impact on the existing amenity of the residential area. The site inspection provided me with an opportunity to appreciate the built character and surrounds of the proposed development and the relevant streetscape. The existing built form includes many existing hard car spaces forward of the front building line. The subject site is in fact adjoined on both sides by existing hardstand car spaces.

69 I accept Mr Moody’s assessment that the amenity of the residential area is improved by this development because of the landscaping and off-street parking provided on site.

70 I do not accept that the proposal will increase conflict between pedestrians and vehicles. The evidence of Mr Varga is that the vehicle crossings are typical of the area and allow for acceptable visibility in both directions. The site inspection confirms this evidence.

71 The traffic is not increased by the proposal and cl 3 of the WDCP is satisfied in my view.

72 I do not accept the council’s submission that the proposal does not satisfy cl 1(b), general aims of the WLEP and will result in a loss of visual relationships between the open front garden and the street.

73 I accept the evidence of Mr Moody that this development will not result in a loss of visual relationship between the open front garden and the street. In my opinion the proposed landscaping on 3 sides of the development ensures the visual relationship is maintained if not improved.

74 I accept the applicant’s evidence that the adjoining hard stand car spaces are made of concrete blocks or pavers with minimal landscaping, if any and that this development is an improvement to the existing streetscape because it is not a solid concrete hard stand car space.

75 In this case, the proposed car space incorporates two concrete wheel strips with permeable grass area in the centre. Landscaping is proposed on three sides of the car space. This contrasts with the existing hardstand car spaces in the locality, which have little or no landscaping around them.

76 Part 1, Land Use and Transports WDCP 2006, requires that all car accommodation is to be located behind the front building line and that no vehicle crossings or off-street parking are permitted in areas where there will be an adverse impact on existing streetscape, the character of the built form or landscape setting.

77 The evidence supports an assessment that the amended proposal does not adversely impact on the existing streetscape or landscaping. On the contrary, the evidence is that the landscaping component is at 65%, which exceeds the 50% requirement in the WDCP.

78 Given the particular existing streetscape and constraints of this site I am of the opinion that it acceptable to locate a hard stand car space in front of the building line. I accept the applicant’s evidence that the development will enhance the streetscape, not dominate the street or detract from the appearance and quality of the dwelling house or surrounding eclectic development within the locality.

79 The streetscape is not a blank canvas the proposal fits in with the existing development.

80 I am satisfied on the evidence that any non-compliance with council’s controls in the DCP will not result in an unacceptable impact on the streetscape. It is a sympathetic development having regard to the existing streetscape. The development will not result in an unacceptable loss of on-street parking but will offer additional on-site parking as required by the WDCP for a three-bedroom dwelling.

81 There are other driveway crossings that support individual hard stand car spaces on adjoining lots and approval of this development will not have an unacceptable visual impact from the public domain.

82 The provisions of the WDCP are not determinative and may, subject to appropriate considerations of all matters pursuant to s 79C of the Act, be set aside if on the merits of the proposal it is otherwise acceptable notwithstanding any breach of the provisions of the WDCP.

83 Cl 3.11 of part 1 of the WDCP provides me with that opportunity to waive a requirement to comply with the WDCP to achieve a better planning solution to development of the site.

84 I have considered the evidence in respect of the objectives to part D entitled “Dwelling house and dual occupancy development” with particular regard to the grounds of the council’s refusal and am satisfied that the proposal is visually appropriate and sympathetic to the streetscape and surrounding area. The evidence in the particular circumstances of this case supports any non-compliance with the DCP part 5.73 to allow the car space to be located forward of the building line and thereby in breach of Part L1 ccl 5.1, 5.2 and 5.3.

85 I have considered the public interest in the merits of my assessment above and based on the evidence before me have formed the view that the proposal is suitable for the site.

86 With respect to the council’s concern that the approval of this development application will have an undesirable precedent effect within the locality, I make the following comments.

87 The decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 makes clear that the precedent effect of an approval is a relevant consideration in an assessment of an application. However, in this appeal the approval is distinguished on the facts of the case and the particular constraints of this site in this particular streetscape. Various judgments were tendered to me during the course of the hearing either supporting or refusing car spaces controlled by council’s WDCP. Each of those cases is able to be distinguished on their facts, as is this appeal.

88 After a consideration of all of the evidence and submissions, I am of the opinion that the following additional conditions should be incorporated in council’s conditions.

89 I ask the parties to incorporate the above conditions into the final conditions. To that end my Orders are as follows.

[Note, these conditions are to be forwarded electronically to the Court by Friday 10 July and are to reflect the findings in my judgment.].

3. The exhibits will be returned when the judgment is published except for the conditions and the approved plans.

___________________

S Dixon

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

SYLVIA HAZAN v WAVERLEY COUNCIL

1. Approved Development

The development must be in accordance with:

(a) Amended Landscape plan received by Land and Environmental Court on 26 June 2009; and,
(b) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006, except where amended by the following conditions of consent.

B. Compliance Prior to Issue of Construction Certificate

2. general modifications

The proposal shall be amended as follows:

(a) Any vehicle parked in the car space must be fully contained within the property boundary.

(b) The car space parking area with wheel strips shall be constructed using pervious surface material to allow water run-off.

(c) The new vehicle crossing and vehicle crossover on the Council land is to be wheel strips instead of full width concrete driveway.

(d) The car space must have concrete or metal wheel stops of the western end of the car space to ensure the vehicle is parked as close as practicable to the dwelling and wholly within the property boundary.
(e) The planting showed in the landscaped plan is to be replaced by appropriate plant species selected from Council schedule and on the southern boundary planning it to be at a height to avoid conflict with the opening of the car door.

The amendments shall be submitted for the approval of Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.

3.

NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE

The building work, including demolition, must not be commenced until:

(a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment ; and

b) a Principal Certifying Authority has been appointed and Council has been notified of the Act, 1979 appointment in accordance with Section 81(A)(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and

The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority.

4. security deposit

A deposit or guarantee satisfactory to Council for the amount of $250.00 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.

This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work to the person who paid the deposit.

5. SERVICE AUTHORITIES

The applicant is to seek approval from Telstra regarding any possible modification to the service authorities infrastructure prior to the issue of a construction Certificate.

6. EROSION, SEDIMENT AND POLLUTION CONTROL

Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

C. Compliance Prior to and During Construction

7. PRIOR TO SITE WORKS

The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:

(a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or

(b) the name and permit number of the owner/builder who intends to do the work; and
(c) any change to these arrangements for doing of the work.

8. home building act

The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences.

9. CONSTRUCTION SIGNS

Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works.

10. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS

All site works complying with the occupational health and safety requirements of WorkCover NSW.

11. STOCKPILES

Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.

12. LOCATION OF BUILDING OPERATIONS

Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.

13. ALL BUILDING MATERIALS STORED ON SITE

All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.

14. CONSTRUCTION HOURS

Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on:

(a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;

(b) Sundays and public holidays; and
(c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW.

Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000.

15. CONSTRUCTION NOISE - PERIODS GREATER THAN 4 WEEKS

The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver.

16. BUILDING CODE OF AUSTRALIA

All building work must be carried out in accordance with the requirements of the Building Code of Australia.

17. quality of construction act - inspections (dwelling houses class 1 and 10)

The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certificate.

MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.

The specified MANDATORY inspections are:

In the case of a Class 1 and 10 building:

The following additional inspections are required to be undertaken by the PCA:

(a) sediment control measures prior to the commencement of building work;
(b) foundation material prior to undertaking building work;
(c) shoring of excavation works, retaining walls, piers, piling or underpinning works;
(d) steel reinforcement, prior to pouring concrete;
(e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns;
(f) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls).

Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.

18. NEW VEHICLE CROSSING

A new vehicle crossing is to be provided to access the proposed hardstand. A separate application is required for the modified vehicle crossing, with all work to be carried out with the approval of and in accordance with the requirements of Council. All new vehicle crossings to be Wheel Strips instead of full width concrete driveway wherever feasible.

19. VEHICULAR ACCESS - FINISHED LEVELS

The finished level at the property boundary on both sides of the vehicle crossing is to match the level of the existing concrete footpath.

20. work outside property boundary

All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council at the applicant's expense.

C. Compliance Prior to Occupation or During Occupation

21. FINAL OCCUPATION CERTIFICATE

The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied.

_________________________

S Dixon
Commissioner of the Court

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Citations

Hazan v Waverley Council [2009] NSWLEC 1262

Cases Citing This Decision

0

Cases Cited

2

Statutory Material Cited

3

Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75

Zhang v Canterbury City Council [2001] NSWCA 167

CITATION:	Hazan v Waverley Council [2009] NSWLEC 1262
PARTIES:	APPLICANT Sylvia Hazan RESPONDENT Waverley Council
FILE NUMBER(S):	10205 of 2009
CORAM:	Dixon C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Off-Street parking space, front setback and streetscape.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006
CASES CITED:	Zhang v Canterbury City Council [2001] NSWCA 167 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75
DATES OF HEARING:	8 July 2009
EX TEMPORE JUDGMENT DATE:	8 July 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr Clay (barrister) RESPONDENT Mr S Patterson (solicitor) SOLICITOR Wilshire Webb Staunton Beattie