Hosking Munro Pty Ltd v Mosman Municipal Council

[2010] NSWLEC 1062

Land and Environment Court

of New South Wales

CITATION:	Hosking Munro Pty Ltd v Mosman Municipal Council [2010] NSWLEC 1062
PARTIES:	APPLICANT Hosking Munro Pty Ltd RESPONDENT Mosman Municipal Council
FILE NUMBER(S):	10730 of 2009
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- alterations and additions to existing unit - SEPP 1 objections to height and floor space ratio - bulk, scale
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Mosman Local Environmental Plan 1998 State Environmental Planning Policy No 1
CASES CITED:	Winten Property Group Limited v North Sydney Council (2001) 130 LGERA 79
DATES OF HEARING:	23 February 2010
EX TEMPORE JUDGMENT DATE:	24 February 2010
LEGAL REPRESENTATIVES:	APPLICANT Dr S Berveling, barrister SOLICITORS Hastings Business Lawyers RESPONDENT Ms J Walsh, solicitor SOLICITORS Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

24 February 2010

10730 of 2009 Hosking Munro Pty Ltd v Mosman Municipal Council

JUDGMENT

1 COMMISSIONER: This is an appeal against conditions imposed by Mosman Municipal Council (the council) on the approval of Development Application No. 8.2008.381.1 for alterations and additions to Unit 17, 21 Moruben Road, Mosman (the site).

2 The applicant contends that conditions 2, 3 and 4 are tantamount to the refusal of the application. The alterations and additions provide for a range of changes with some non controversial, however, the alterations and additions that are the centre of the dispute involve:

1. demolition of part of the existing living area;
2. construction of an additional 45 sq m of living area with new openings and access to the terraced area; and
3. construction of a new 3.5 m x 9.4 m pergola adjoining the new living area.

3 The contentions raised by the council relate to the non-compliance with the height, wall height and floor space ratio (FSR) development standards. As I understand, the proposed development did not raise any objections when advertised.

The site and surrounding area

4 The site is irregular in shape and has an area of 1,228 sq m with a frontage of 20.8 m to Moruben Road and 13 m to Punch Lane. The site presently contains a part 3 and part 4 storey masonry and concrete multiple dwelling development with parapet roof elements and ground level parking bays. The building was approved on 13 June 1961 and strata approval was granted on 25 September 1962. On 26 May 2003 approval was granted for external refurbishment of the building and the extension and upgrade of the main foyer area.

5 Unit 17 is located on the fourth floor and is one of three units on this level. The other units are at the rear of the site. Unit 17 has a large east facing terrace area which is situated on the roof slab of the units below. The terrace provides panoramic views of Middle Harbour.

6 The locality is predominantly residential in character comprising a mix of residential dwelling types and densities. The character of the western side of Moruben Road is largely 1960s and early 1970s, multiple dwellings with some staggered setbacks at upper levels and parapet roof elements with some rooftop balcony elements. Many of the units enjoy views north towards Balmoral Beach and Middle Harbour.

7 To the north is a multiple dwelling development with a similar style curve roof addition to the top floor unit. This building is approximately one level lower than the multiple dwelling development on the site. This building was approved in 2000. To the south is a part 1 and part 2 storey residential dwelling house which was approved in 1966. Beyond this dwelling is a multiple dwelling development. To the rear are multiple dwelling developments and dwellings fronting Punch Street and Punch Lane.

Relevant planning controls

8 The site is zoned Residential 2(d) under Mosman Local Environmental Plan 1998 (LEP 1998). The proposed development is ancillary to the use of the site for residential purposes and is permissible with consent.

9 Relevantly, cl 13 provides for a maximum building height of 8.5 m and a maximum wall height of 7.2 m and cl 14 provides for a maximum FSR of 0.7:1. The existing building does not satisfy these requirements even without the proposed additions having a maximum height of 11.5 m, a maximum wall height of 11 m and an FSR of 1.13:1.

10 The significant departures to the LEP 1998 development standards occur because the approval of the building pre-dates LEP 1998 and its predecessor, LEP 1. The applicant provided State Environmental Planning Policy No 1 – Development Standards (SEPP 1) objections to show that strict compliance with the development standards in LEP 1988 was unreasonable and unnecessary in the circumstances of the case.

The evidence

11 Evidence for the council was provided by Mr Stan Fitzroy-Mendis, a town planner with the council and Mr David Ryan, a town planner for applicant. Unit 17 was inspected on the site view and the location and size of the proposed extension, excluding the pergola was marked with a timber frame so that the impacts on the streetscape and character of the area could be observed when walking along Moruben Road.

Height

12 Mr Ryan adopts the approach in Winten Property Group Limited v North Sydney Council (2001) 130 LGERA 79 where a number of questions are posed. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard? Helpfully Mr Ryan and Mr Fitzroy-Mendis agreed on the relevant objectives for the development standards. The third question asked whether the compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

This policy provides flexibility in the application of planning controls operating by virtue of a development standard in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

13 This question also asks does compliance with the development standard tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:

(5) The objects of this Act are
(a) to encourage-
(i) the proper management, development and conservation of natural and artificial resources include agricultural land, natural areas, forest, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;
(ii) the promotion and coordination of the orderly and economic use and development of land .

14 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of the case and the fifth and final question asks whether the objection is well founded.

15 On the height development standard, Mr Ryan and Mr Fitzroy-Mendis agreed that the relevant objective is:

To minimise the effects of bulk and scale of existing buildings arising from new development in existing residential areas .

16 Mr Ryan states that it is important in assessing bulk and scale to concentrate on the overall streetscape setting and not individual elements within the streetscape. If considered in this way the proposed extension does not stand out in its surrounds. The view from Moruben Road towards buildings on the west side is not a special view and consists of an amalgam of varying building styles and elements with no distinct features other than a generally 4-storey residential form with some stepping in some places. There are changes in the level of the street, remnant rock faces, highly articulated forms in an eclectic array of styles at the lower levels, all of which contribute to a "busy streetscape at the lower levels". In this context, the proposed addition is not so obvious or different in height from any of its surrounds to rate even a second glance when travelling along Moruben Road by foot or by car.

17 He states that compliance is unreasonable and unnecessary because:

1. compliance with LEP 1998 controls is not possible;
2. there are significant amenity benefits to the owners of Unit 17 with no external impacts;
3. the LEP 1998 controls are not characteristic of the development in the locality; and
4. it is highly improbable that the form of existing buildings will change given the high value of the existing strata units.

18 For these reasons, Mr Ryan concludes the SEPP 1 objection is well founded.

19 Mr Fitzroy-Mendis states that the SEPP 1 objection does not demonstrate that compliance with the development standard is unreasonable or unnecessary. While acknowledging that strict compliance is not an absolute requirement, the height is unacceptable given the predominant setbacks of other buildings at that height. The building would be transformed from a building that follows the natural topography to a building that does not follow the natural topography or the built form of surrounding development at that height.

20 In his opinion, departures in the numerical controls, particularly development standards, must be assessed with a high degree of sensitivity. While there may be circumstances where additional height may be acceptable, such as at the rear of the site where it would be less visible from the street and locality. However, the proposal unacceptably adds to the bulk and scale of the building.

21 The consideration of the SEPP 1 objection in this case raises some unique features. Importantly, the current LEP 1998 development standards post-date the approval of the building and are significantly less in terms of density than applied at the time of the approval of the building. The consequence being that any redevelopment of the site to comply with the LEP 1998 controls is remote at best, particularly given the refurbishing of the building in 2003. There was also no evidence to suggest other buildings in the locality, of the same vintage and density as the subject building, would be redeveloped at the LEP 1998 lower density so it would be reasonable to assume that the character and form of the buildings in the locality will not change in any meaningful way.

22 The objective agreed seeks "to minimise the effects of bulk and scale" and uses the words "existing residential areas". I have taken this to mean the area along the western side of Moruben Road that is zoned Residential 2(d), between Awaba Road and Clifford Street. The residential areas beyond this particular area have different zonings and consequently a different character.

23 With the benefit of the view along Moruben Road and the ability to observe the location of the proposed additions, I am satisfied that the proposal satisfies the objective but with the deletion of the proposed pergola. In my view, the pergola does add to the bulk of the proposed additions. While it is a more lightweight structure than the extension of the living room, it will nonetheless be seen as part of the extension of the living room. As the pergola extends to within 2.5 m of the Moruben Road main part of the balcony, compared to 6.5 m for the extended living room, it will be clearly visible from most locations in Moruben Road. This needs to be compared to the limited visibility of only the extended living room from the south-east and north-east. The deletion of the pergola will also reinforce the greater setback for the upper levels of many of the buildings in Moruben Road that largely reflects the buildings following the natural topography.

24 In coming to this conclusion, I agree with Mr Ryan's description of the locality. Its wide range of buildings styles, heights, setbacks and streetscape features do not support Mr Fitzroy-Mendis' more rigid interpretation of the proposed effects on the existing bulk and scale of the buildings in the locality. In my view, when considering the limited locations where the extensions will be visible and the relatively small area that will be visible, the proposed additions will be largely lost amongst the varied building forms along Moruben Road and will not add, except in the most minimal way, to the existing bulk and scale of the buildings in Moruben Road. The removal of the pergola, in my view, minimises the bulk and scale to an acceptable level.

25 For these reasons I find that, with the deletion of the pergola, the SEPP 1 objection is well founded.

Floor space ratio

26 Mr Ryan provided a separate SEPP 1 objection to the FSR development standard. The agreed relevant objectives for the FSR development standard are:

To control the scale of developments so that it is compatible with the housing characters of the locality, and
To minimise the effects of bulk and scale on new development.

27 Mr Ryan's comments in the objection relating to bulk and scale are generally identical to those he made in the height SEPP 1 objection. Unsurprisingly, Mr Fitzroy-Mendis' response is also generally identical to his previous comments on the height SEPP 1 objection. Because of the largely identical considerations of the FSR SEPP 1 objection, it is not necessary to repeat the evidence or my conclusion beyond stating that for the reasons mentioned earlier in the judgment I find that the strict compliance with the FSR development standard is unnecessary and unreasonable and that the SEPP 1 objection is well founded, subject to the deletion of the pergola.

Orders

28 The orders of the Court are:

1. The appeal is upheld.
2. The development application for alterations and additions to Unit 17, 21 Moruben Road, Mosman is approved subject to the conditions in Annexure A.
3. The exhibits are returned with the exception of exhibit A.

___________________

G T Brown
Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Hosking Munro Pty Ltd v Mosman Municipal Council

1. The development must be carried out in accordance with the following plans and documentation, except where amended by later conditions of consent and the amendment/s identified in this condition:

Plan Nos.	Date of plan	Prepared by
A01 Revision G	9 December 2009	Hosking Munro
A02 Revision D	16 December 2009	Hosking Munro
A03 Revision H	9 December 2009	Hosking Munro
A04 Revision F	9 December 2009	Hosking Munro
A05 Revision F	undated	Hosking Munro
A06 Revision G	9 December 2009	Hosking Munro
A07 Revision G	9 December 2009	Hosking Munro

Document title	Date of document	Prepared by
Statement of Environmental Effects	October 13, 2008	Hosking Munro
BASIX Certificate	October 14, 2008	NSW Department of Planning
Waste Management Plan	October 17, 2008	Hosking Munro

Amendments to plans and documentation:

Deletion of the “new pergola”

2. Two copies of architectural and Structural Engineer’s plans must be submitted with the Construction Certificate application and must include the amendment identified in condition 1. The structural engineering plans must be signed by a qualified practicing Structural Engineer with membership of the Institute of Engineers Australia or who is eligible to become a member and has appropriate experience and competence in the related field.

The plans are to incorporate and note any changes from the approved development application plans as required by conditions of this consent.
For applications involving alterations and additions, one set of plans should be coloured which indicate the extent of new works.

3. To assist with an assessment of claims for the refund of the security deposit over Council’s property, a dilapidation report must be submitted. The report must document and provide photographs that clearly depict any existing damage to the road, kerb, gutter, footpath, driveways, street trees, street signs or any other Council assets in the vicinity of the development. Any damage not shown in this manner will be assumed to have been caused as a result of the site works undertaken and must either be rectified at the applicant’s expense or compensated by deduction from the security deposit.

4. The applicant shall supply Council with a dilapidation report for the adjoining property at all units sharing common walls, ceilings, or floors with Unit 17 which documents and photographs the condition of buildings and improvements on that property. The report will be held by Council and will be made available in any private dispute between the neighbours regarding damage arising from site and construction works.

5. Excavation works shall not commence prior to the issue of the Construction Certificate or the issue of any relevant notices to adjoining owners, the Principal Certifying Authority or Council as required by other conditions of this consent.

6. The applicant shall consult with the relevant public utility providers and meet any costs imposed by those providers for alterations to mains or services required as a consequence of this approval.

7. Materials and finishes shall be complimentary to the character and streetscape of the area. Highly reflective roofing materials shall not be used. Details of finished external surface materials, including colours and texture, must be to be submitted to the satisfaction of Council or the Accredited Certifier.

8. Where any conditions of this consent affect the commitments specified in the submitted BASIX Certificate, a revised BASIX Certificate is to be prepared to ensure energy efficiency targets are still achieved.

9. In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986, the applicant shall pay a long service levy at the prescribed rate of 0.35% of the total cost of the work to either the Long Service Payments Corporation or Mosman Municipal Council for any work costing $25,000 or more.

10. A cash deposit or bank guarantee to the value of $2,500 in favour of Council shall be provided for the making good of any damage caused to Council property and to ensure the satisfactory completion of any works required to be undertaken outside the property boundary. A request for a refund of unused funds (less an inspection fee) may be made following the completion of all works, both inside and outside the property boundary, and an inspection of the site by Council.

11. In accordance with Section 81A(2) of the Environmental Planning and Assessment Act 1979, no site works (including building works, demolition, excavation or the removal of vegetation) are to commence until:

(i) the Construction Certificate has been issued;

(ii) the person benefiting from the consent has appointed a Principal Certifying Authority (PCA) by way of completing Form 7A (attached at the end of the consent);

(iii) in instances where Council is not the PCA, the PCA has, no later than 2 days before the building work commences, notified Council of his or her appointment by way of forwarding a completed copy of Form 7A and notified the person benefiting from the consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work by way of completing Form 7B (attached at the end of this consent). In instances where Council is the PCA, Council has completed Form 7B if necessary and forwarded it to the person benefiting from the consent.

(iv) the person benefiting from the consent, if not carrying out the work as an owner-builder, has (by way of completing Form 7C):

· appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved; and

· notified the PCA of any such appointment; and

· unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work; and

(v) the person benefiting from the consent has given Council at least 2 days’ notice of the person’s intention to commence the erection of the building by way of completing Form 7D.

12. Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the council) has given the council written notice of the following information:

(a) in the case of work to be done by the holder of a contractor licence under that Act:
(i) the name and licence number of the contractor; and

(ii) the name of the insurer by whom the work is insured under Part 6 of that Act,

(b) in the case of work to be done by the holder of an owner-builder permit under that Act, the name and permit number of the owner-builder.
If arrangements for doing the residential building work are changed while the work is in progress so that the information notified above becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.

13. If site or building works will:

cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe; or

have the potential to damage adjoining private land by way of falling objects
then a temporary hoarding or fence must be erected prior to the commencement of works between the work site and the adjoining area to the following standards:
(a) if adjoining public land it shall be covered in cyclone wire mesh to discourage the graffiti

(b) the toe of the hoarding fence or its supporting structure must not protrude onto Council land including footpath areas so as to avoid a trip hazard

(c) the hoarding fence must be securely fixed to withstand strong winds

(d) the fence must have only one point of entry which must correspond with the vehicle crossing and have inward opening gates or gates which are removable and fitted with a locking device

(e) the hoarding/fence must have no protruding bolts nails or similar devices which may cause injury.
The hoarding/fence must be removed when the work has been completed.
Where construction requirements or site constraints necessitate the hoarding or fencing being located on Council land, a Footpath/Nature Strip/Roadway Occupation form is to be lodged with Council and all fees paid prior to the hoarding/fencing being erected. (A copy of the form is available on Council's website.)
Hoarding or fencing on Council land must maintain a minimum of 1500 clear footpath width at all times (lesser distances may be considered in exceptional circumstances).

14. Temporary sedimentation and erosion controls shall be constructed prior to commencement of any site works in order to prevent the discharge of sediment from the site. The controls shall be designed and installed in accordance with the requirements of the NSW Department of Environment and Conservation’s "Managing Urban Stormwater: Soils and Construction Manual Volume 1, 4^th Edition March 2004”. [Note: this document is now available from the Department of Planning]

15. In accordance with Section 95(2) of the Act, this consent shall lapse unless work has physically commenced on the land within 2 years from the date of the consent or in instances where no work is required, the use has commenced within 2 years from the date of the consent.

16. Public liability insurance to the value of $5,000,000 must be taken out by the builder or owner to protect any person, firm or company from injury, loss or damage sustained as a consequence of the carrying out of site works, including all excavation, demolition and construction works. A copy of the policy must be provided to Council or the Accredited Certifier.

17. All works are to be carried out in accordance with the requirements of the Building Code of Australia.

18. All demolition work must be carried out in accordance with the provisions of Australian Standard 2601-2001: The Demolition of Structures.

19. Where asbestos material shall be removed or disturbed as a result of any proposed demolition, alteration or addition, all work must be carried out by a person licensed under Chapter 10 of the Occupational Health and Safety Regulation 2001 and undertaken in accordance with the requirements of clause 29 of the Protection of the Environment Operations (Waste) Regulation 1996. All asbestos to be removed must be disposed of at a tip recommended by the NSW Environment Protection Authority and under no circumstances shall be re-used or sold.

20. A sign must be erected in a prominent position on any work site on which building work or demolition work is being carried out:

(a) showing the name, address and telephone number of the principal certifying authority for the work; and

(b) showing the name of the person in charge of the work and a telephone number at which that person may be contacted outside work hours; and

(c) stating that unauthorised entry to the work site is prohibited.
Any such sign shall be maintained while the building work or demolition work is being carried out, but must be removed when the work has been completed.
Where Council is the nominated PCA, these signs may be purchased from Council’s offices for a fee of $25.
This condition does not apply in relation to building work or demolition work that is carried out inside, and does not affect the external walls of, an existing building.

21. In order to maintain the amenity of adjoining properties, audible site works shall be restricted to between 7.00am and 6.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. Inaudible site works may also take place between 7.00am and 8.00am on Saturdays. No site works shall be undertaken on Sundays or public holidays.

Unless otherwise approved within a Construction Traffic Management Plan, construction vehicles, machinery, goods or materials shall not be delivered to the site outside the approved hours of site works.

22. Any construction hoarding or fencing is to be maintained in good order throughout the life of the fence.

23. Appropriate measures (e.g. fine water spray) shall be employed during demolition, excavation and construction works to prevent the emission of dust and other impurities into the surrounding environment. All such measures shall be co-ordinated with site sedimentation controls to ensure polluted waters do not leave the site.

24. The land and adjoining areas shall be kept in a clean and tidy condition at all times. No construction vehicles, building materials, waste, machinery or related matter shall be stored on the road or footpath for the duration of works unless separate approval has been obtained from Council’s Traffic Committee for the establishment of a Construction Zone. Under no circumstances will any person be allowed to mix or dispose of concrete, mortar or slurry within Council property.

25. The finished external surface materials, including colours and texture of any building, shall match the detail and materials of the existing building.

26. To minimise glare nuisance, the reflectivity index of the glass is not to be more than 20%.

27. All natural landscape features including trees and other vegetation, natural rock outcrops, soil and watercourses shall remain undisturbed except where affected by necessary works detailed on approved plans.

To minimise impacts upon trees to be retained, no permanent fill or storage of building materials, excavated fill or topsoil during site works shall take place within their driplines.

28. All street trees and trees on private property that are protected under Mosman Council’s Tree Preservation Order 2003, shall be retained except where Council's prior written consent has been obtained, or where after approval of the relevant Construction Certificate, trees stand within the envelope of approved buildings or within the alignment of approved permanent paved vehicular access roads and parking areas.

29. To reduce the potential for adverse amenity effects such as overshadowing, loss of views, and loss of plant diversity, Leighton Green Cypress Cupressocyparis leylandii or any of its cultivars, shall not be planted on the site for the life of the development. Further information on Leighton Green Cypress may be obtained from Council or viewed on its web site at and then under “Environment” and “Trees”. In the event of any inconsistency between this condition and the development application documents, this condition will prevail to the extent of the inconsistency.

30. To promote energy efficiency, the development is to be carried out in accordance with the commitments contained in the BASIX Certificate dated October 14, 2008.

31. To control noise impacts for adjoining properties, no external air conditioning unit shall be installed without prior consent. Applicants may have regard to Council’s complying development controls for air conditioning units under the Mosman Exempt and Complying Development DCP or State Environmental Planning Policy(Exempt and Complying Development Codes) 2008.

32. To provide reasonable worker amenity, toilet facilities shall be provided at or in the vicinity of the work site for the duration of site work activities.

33. Building materials shall be re-used, recycled or disposed of in accordance with the Waste Management Plan submitted with the application.

34. This consent does not authorise the carrying out of any of the following activities which require the separate approval of Council under Section 68 of the Local Government Act 1993:

Place a waste storage container in a public place

Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway
Note: A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence under Sections 626 and 627 of the Local Government Act 1993.

35. A copy of the stamped approved plans must be kept on site for the duration of site works and be made available upon request to either the Principal Certifying Authority or an officer of the Council.

36. To ensure building works are carried out properly and in accordance with the conditions of this consent, with the Building Code of Australia and/or with relevant Australian Standards, the following critical stage inspections are to be carried out:

A certifying authority must not issue a construction certificate for development on a site which affects an existing building unless a council, a consent authority or an accredited certifier has carried out an inspection of the building, and

prior to covering of waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within a building, and

prior to covering any stormwater drainage connections, and

after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

The critical stage inspections must be carried out by the Principal Certifying Authority (PCA), or if the PCA agrees, by another certifying authority excepting the final inspection which must be carried out by the PCA.
Notes: Records of the above critical stage inspections will be required to be submitted prior to the release of the Occupation Certificate – see later conditions of consent.
If you intend engaging Council to undertake the inspections, please telephone the area Building Surveyor to arrange a suitable time.

37. In accordance with clause 162B of the Environmental Planning and Assessment Regulation 2000, the certifying authority responsible for the critical stage inspections must make a record of each inspection as soon as practicable after it has been carried out. Where Council is not the PCA, the PCA is to forward a copy of all records to Council.

The record must include details of:

The development application and construction certificate number;

The address of the property at which the inspection was carried out;

The type of inspection;

The date on which it was carried out;

The name and accreditation number of the certifying authority by whom the inspection was carried out; and

Whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.

38. A Certifying Authority must not issue an Occupation Certificate (whether interim or final) unless it is satisfied that each of the BASIX commitments has been fulfilled. For the purpose of satisfying itself as to the fulfilment of any such commitment, a certifying authority may rely on the advice of any properly qualified person.

Within 2 days after issuing a final Occupation Certificate for a building, the Certifying Authority must apply to the Director-General for a BASIX completion receipt with respect to that building or part.
Further information on BASIX may be obtained from Council or viewed on its web site at and then under “Building and Development” and “Energy Efficiency”.

39. Where Council is not the Principal Certifying Authority, a copy of any compliance certificates received by the PCA shall be forwarded to Council prior to occupation or commencement of the use.

40. Occupation or use, either in part or full, shall not take place until an Occupation Certificate has been issued. The Occupation Certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with.

Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council.

During Occupation
The following conditions must be satisfied during occupation or use of the development.
Occupation

41. The premises shall be occupied solely for the approved use. No change of use or additional use of any part of the premises shall take place without prior development consent (other than for exempt development).

Air Conditioning Units

42. The use of the air conditioning system shall not give rise to:

(a) Transmission of 'offensive noise' to any place of difference occupancy; and

(b) A sound pressure level at affected premises that exceeds the background (LA90) noise level in the absence of the noise consideration by more than 5dBA. The source noise level shall be assessed as an Leq, 15 min and adjusted in accordance with EPA guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content; and

(c) A sound pressure level at any affected premises that exceeds the recommended planning levels outlined in the NSW, EPA Industrial Noise Policy.

______________________
G T Brown
Commissioner of the Court

Advice / Notes
The following points are issued as advice to the applicant. They do not form conditions of the Notice of Determination.

(i) Headings such as “Prior To The Release Of The Construction Certificate” together with bolded notes that immediately follow, form part of this Notice of Determination. Conditions under the respective headings shall be read in the context of the heading and note.

(ii) A public inquiry by a Commission of Inquiry was not held under Section 119 of the Act.

(iii) Other public authorities may have separate requirements and should be consulted in the following respects:

Australia Post for the positioning and dimensions of mail boxes in new commercial and residential developments;
AGL Sydney Limited for any change or alteration to gas line infrastructure;
Energy Australia for any change or alteration to electricity infrastructure or encroachment within transmission line easements;
Telstra, Optus or other telecommunication carriers for access to their telecommunications infrastructure.

(iv) This decision does not ensure compliance with the Commonwealth Disability Discrimination Act 1992. Applicants may wish to investigate their potential for liability under that Act.

(v) Failure to comply with the relevant provisions of the Act and/or the conditions of this consent may result in the serving of penalty notices or legal action through the Land and Environment Court.

(vi) In accordance with section 81A of the Act, the person benefiting from this consent is notified that if Council is engaged as the Principal Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading “Critical Stage Inspections” in this consent. If additional inspections are required, further notice will be provided.

(vii) All references to “the Act” under this consent relate to the Environmental Planning and Assessment Act 1979.

(viii) When private certifiers are registering Part 4A Certificates with Council, it is requested that plans be lodged in PDF format.

(ix) Following the issue of the Occupation Certificate an inspection fee of $140.00 (per inspection) is to be paid at the Cashier's desk at the Civic Centre to ledger number 1040202.2997.028 in order to release the footpath security deposit.

Note: Fees will be indexed by use of the Consumer Price Index and the actual amount to be paid will be determined at the date of payment. You may contact Council on 9978 4111 prior to payment to confirm current figures.