Innovac Dyer Pty Limited v Mosman Council
[2003] NSWLEC 7
•02/04/2003
>
Land and Environment Court
of New South Wales
CITATION: Innovac Dyer Pty Limited v Mosman Council [2003] NSWLEC 7 PARTIES: APPLICANT
RESPONDENT
Innovac Dyer Pty Limited
Mosman CouncilFILE NUMBER(S): 0341 of 2002 CORAM: Cowdroy J KEY ISSUES: Development Application :- refusal by council - appeal upheld LEGISLATION CITED: Home Building Act 1989
Local Government Act 1993, Ordinance 4
Environmental Planning and Assessment Regulation 2000
State Environmental Planning Policy No. 1
Mosman Local Environmental Plan 1998CASES CITED: DATES OF HEARING: 16/12/2002, 17/12/2002 DATE OF JUDGMENT:
02/04/2003LEGAL REPRESENTATIVES:
APPLICANT
Susan Hill (Solicitor)RESPONDENT
SOLICITORS
Julie Walsh (Solicitor)
Pike Pike & Fenwick
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
(1)0341 of 2002
4 February 2003Cowdroy J
- Applicant
- Respondent
Facts
1 By application class 1 filed on 4 July 2002 the applicant challenges the deemed refusal by Mosman Council (“the council”) of application 8.2001.316.1 (the “application”) lodged with the council on 7 September 2001 for the development of land having a frontage to and known as No. 6 Central Avenue Mosman (“the land”). Subsequent to the lodgement of this appeal, the council refused the application.
2 The application sought consent of council for the demolition of an existing derelict dwelling on the land and the erection of a new two storey flat roofed dwelling with basement car parking in its place. The dwelling would contain a basement area for the parking of two vehicles and turning area beneath the dwelling. The ground floor would contain living room, dining room, study, breakfast room, kitchen, bathroom, laundry and stairs providing access to the basement and first floor. The first floor would be fixed at RL25.425 and would contain four bedrooms, a void space, a bathroom, ensuite and walk-in wardrobe and three terraced areas. The total gross floor area is 302 m2.
Grounds of Refusal
3 In its letter of 15 July 2002 refusing consent to the application council nominated the following grounds for refusal:-
- The reasons for refusal are:-
- (a) The proposal does not meet the objectives of the development standard;
(b) The design of the proposal does not appropriately respond to the constraints of the site and the context of the surrounding area;
(c) The areas of non-compliance will cause significant detrimental impacts on the amenity of the neighbourhood; and
(d) Requiring compliance with the standard would not reasonably constrain the development to the desired response.
Issues
4 The issues identified by the parties in the proceedings are stated to be as follows:-
- 1. Whether the proposal contravenes objectives 1(b), (h), (l), (k) and (o) of the Mosman Local Environmental Plan 1998 (“the Local Environmental Plan”).
2. Whether the proposal contravenes the objectives of the Residential 1(a)(1) zone of the Local Environmental Plan.
3. Whether the proposal contravenes Clause 13 (Height), Clause 14 (Floor Space Ratio), Clause 27 (Foreshore Scenic Protection Area) and Clause 31 (Excavation) of the Local Environmental Plan.
4. Whether the proposal contravenes the provisions of clause 5.2 (Car parking & Access) of the Mosman Residential Development Control Plan).
5. Whether the proposal is in the public interest.
5 The two principal concerns of council were summarised as follows:-
- (i) The location of the basement parking with access from Central Avenue which results in the excessive floor space, excessive height, and unsatisfactory impact on streetscape.
(ii) The proposed flat concrete roof with colourbond metal desk could easily be adapted to an outdoor terrace.
Planning Controls
6 The land is affected by the provisions of the Mosman Local Environmental Plan 1998 (“the LEP”). The provisions of the LEP which are relevant to the issues in this proceeding are as follows:
- Part 1
2. The objectives of this plan are the following:
(b) to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity,
(h) to project and conserve the nature and built heritage of Mosman,
(k) to minimise the level of, with the aim of eliminating, pollution of all types, including air, land, water, visual and noise pollution, which may result from development allowed by this plan,
(l) to protect, conserve and enhance the landform and vegetation, especially foreshores or bushland, in order to maintain the landscape amenity of Mosman,
(o) to minimise and manage all waste generated in Mosman in accordance with the principles of ecologically sustainable development,
7 The land is also affected by the provisions of the Mosman Residential Development Control Plan (“the RDCP”) which became operative on 7 October 1999.
SEPP 1 Objection
8 The applicant has lodged an objection pursuant to State Environmental Planning Policy No. 1 in respect of the infringement of height control provided by cl 13 of the LEP and of the floor space ratio contained in cl 14 of the LEP.
Council’s Evidence
9 The evidence of the council is contained in a report prepared by Sonny Ooi, a town planner employed by the council. Mr Ooi holds the degrees of Bachelor of Town Planning from Auckland University and Town and Country Planner’s Certificate under Ordinance 4 of the Local Government Act 1993.
Basement Parking
10 The land has a rear frontage to Quakers Road, which is used extensively for the purpose of vehicular access to houses having a frontage to Central Avenue. The council submits that the basement double parking area and turning area could be eliminated and replaced by a double garage at the rear of the site. Council relies upon cl 5.2 of the RDCP which strongly recommends that garages and carports be located at the rear of a site where rear lane access is available. The objectives of such plan are relevantly stated in cl 5.2 thereof as follows:-
- 01. To have the siting of the car-parking structures respect the character of the streetscape.
02. To have carports and garages designed to be in sympathy with the residential building without becoming the dominant feature of the site.
03. To have the width of street vehicular crossings and driveways limited (depending on the site frontage) to minimise visual impact, to maximise on street parking space and allow opportunities for off street planting.
04. To have existing rear lanes used for access for vehicles, particularly for semi-detached dwellings and dwelling houses.
11 Council points out that all properties Nos. 4 to 26 which have frontages to both Central Avenue and Quakers Road, only four presently have vehicular access with parking on the Central Avenue frontage. Vehicular access for Nos. 8 and 18 from Central Avenue were approved by this Court.
Excessive Floor Space
12 The land has an area of 613.3 m2. Pursuant to cl 14 of the LEP, the maximum floor space ratio (“FSR”) is 0.5:1. The entry drive and basement would require excavation to a depth of 2.3 m resulting in an increase in the floor area of the development. The RDCP permits 36 m2 of garage space to be exempted from the calculation of FSR before it is included in gross floor space (see cl 5.2). The provision of basement turning area would result in the floor space ratio exceeding the 0.5:1 specified in cl 14 of the LEP and increasing to 0.62:1.
13 Included in the basement area is a space allocated for an air conditioning plant. The plant room would occupy 15 m2 and the turning area approximately 55 m2. Council submits that such space could be eliminated by provision of parking at the rear of the site. If the applicant accepted such suggestion the infringement of the floor space ratio would be eliminated.
14 The applicant submits that the area of approximately 15 m2 is exempt from the calculation of FSR because of the definition of “gross floor area” contained in Schedule 1 to the LEP. The definition relevantly provides:-
- gross floor area means the sum of the areas of each floor of a building where the area of each floor is taken to be the area within the outer face of the external enclosing walls as measured at a height of 1400 millimetres above each floor, excluding:
- (a) the floor area of lift towers and motor rooms, and
(b) where a dwelling house or a semi-detached dwelling is the only dwelling on the allotment, garage floor area not exceeding that of two standard garages (for a dwelling house) or that of one standard garage (for a semi-detached dwelling), and …
15 If the definition of sub-par (a) is not confined to lift motor rooms, but motor rooms generally, the applicant submits that the motor for the air conditioning plant is contained in an area which should be excluded from the calculation of FSR. If excluded the result is an infringement of 0.6:1.
Excessive Height
16 Council submits the location of the garage under the dwelling unnecessarily raises the finished ground floor level of the proposed dwelling, having a consequential effect on the overall height of the building.
17 Clause 13 of the LEP relates to height limits in residential zones. The objective is stated in cl 13(1) as follows:-
(1) The objectives of this clause are:13 Height limits in residential zones
- (a) to protect public and private views, and
- (b) to minimise the visual impact of buildings when viewed from the harbour and surrounding foreshores, and
(c) to ensure buildings resulting from new development are compatible with existing buildings in terms of height and pitched roof form, and
(d) to minimise the effects of bulk and scale of buildings arising from new development in existing residential areas.
- (2) A building must comply with the requirements of the Table to this subclause.
18 Pursuant to the table in cl 13(2) the maximum wall height for the proposed building is 7.2m. The council submits that there is an infringement of wall height on the eastern wall of the building by approximately 1m at its northern most end for a length of approximately 2m.
19 Council also submits that an infringement to wall height is created by the proposed dormer windows. Council concedes that they do not significantly add to the bulk, scale or height of the proposal.
Flat Concrete Roof
20 Council acknowledges that the infringement of the height limit is not of major concern. Rather it is the form of the flat roof which creates the impression of excessive bulk and scale. Originally the application proposed a flat concrete roof with glazed balustrade. Whilst the plans have been amended to delete the balustrade council is concerned that the proposed flat roof is not a typical roof form in the area. The RDCP (cl 6.12) emphasises that gabled roofs are particularly characteristic of this locality. Council maintains that the roof should be redesigned to incorporate a pitched roof to comply with the roof form existing in the street.
21 Mr Ooi’s report expresses the concern that the owners might take advantage from the elevated position of the land to use the roof top terrace for entertaining. Mr Ooi’s report states:
- The design does not, however, use the approach generally sought by Council in that it does not use a pitched or gabled roof form and, in part, uses curved metal roofing. Clause 13(i)(c) of the Mosman Local Environmental Plan requires that buildings resulting from new development are compatible with existing buildings in terms of height and pitched roof form.
Impact on streetscape
22 The council maintains that the proposal would have an undesirable impact on the streetscape. Not only is the height and bulk of the building said to be excessive, but the flat roof and the impact of the driveway located in Central Avenue is said to be unsatisfactory. At present a stone fence exists along the street frontage of the land. It would be interrupted by the driveway, thereby disturbing the continuity of the street.
23 Mr Ooi expressed the following opinion:-
- As a result of the basement excavation, elevated floor levels, and the design, particularly the flat roof is insensitive to the characteristics of the area, particularly to the two adjoining buildings to the east and west.
- Summary of Council’s objections
24 Council submits that the proposal constitutes an overdevelopment of the site and that it is not in the public interest. It is submitted that it would have a detrimental impact on the amenity of the adjoining properties and on the character of the area.
25 Several letters of objection are contained in the report of Mr Ooi to the proposal. Mr Collins and Ms Cooper who live at No. 4 Central Avenue have complained that their privacy will be adversely affected by the proximity of the proposed dwelling to their house. Their letter of 2 October 2001 refers to such impact, together with the impact of over-shadowing on their rear garden especially in winter. They also object to the height of the proposed dwelling and the invasion of their privacy from windows at a level higher than the fence level. Objection is also made to the verandah at the rear of the proposed dwelling because of its potential impact upon the privacy of their rear garden.
26 Mr and Mrs Kemani who own No. 8 Central Avenue operate a childcare centre on that site. Their objection raises issues of privacy because the proposed terraces on the west side of the proposed dwelling overlook the rear yard of No. 8. Additionally a shadow would be cast across a portion of the rear yard in winter. Such area is used as a children’s playground.
27 Mr and Mrs Kemani submitted that the roof top terrace would be utilised for entertaining which would impact upon their privacy. They also requested, as a condition of any approval, that certain windows be altered to protect their privacy.
Applicant’s Evidence
28 The applicant relied upon the evidence of Mr Gary A. Shiels, town planner. Mr Shiels considered that the proposal readily satisfies the objectives of the Residential 2(a)(1) zone of the LEP. He testified that there would be no impact upon views as a result of the development and that the development satisfied council’s height requirements and other provisions relating to scale. He acknowledged the basement parking area, if included in FSR would not comply with the requirements of the FSR. However, in his opinion it did not contribute to the bulk and scale of the building.
29 Mr Shiels considered the basement garage had no impact upon the height of the proposed building. He said that even if the basement garage (at level RL19.6) were removed the existing height levels of the building should be maintained. The ground floor was proposed at level RL22.250 namely 0.14m lower than the floor level of the existing dwelling. The site was sloping and such factor confined the opportunities for the design of a dwelling. He said:-
- The location of a garage below the dwelling will allow significant additional landscaped area in the rear of the property and, dependent upon the location of a garage located in the rear of the property, eliminates the potential of overshadowing to the adjoining properties from such a structure.
30 Mr Shiels regarded it as a positive result that vehicles could both enter and leave the land in a forward direction rather than to have the undesirable consequence that vehicles reverse into Quakers Road. Mr Shiels considered that parking on site within the building was consistent with the requirements of the RDCP which specified that for new buildings, car parking be an integral part of building design.
31 In respect of impact upon adjoining properties Mr Shiels considered that over shadowing was minimal and acceptable. He stated:-
- The relationship of the proposed dwelling with adjoining properties has been satisfactorily addressed in the proposal. The privacy of adjoining dwellings will be maintained and additional over shadowing generated by the development is minimal and acceptable.
32 Photographs contained in the expert reports tendered in evidence by the applicant show that the street has a variety of residential buildings comprising cottages, two storey houses and buildings. This was also apparent from the view that was conducted by the Court.
Basement Parking
Findings
33 The council’s car parking and access code seeks to ensure that where rear lane access is available to a land, vehicular access will be provided by that means. Quakers Road provides the type of access which is envisaged by council.
34 There are however other considerations which prevail in the present circumstances. The land comprises sloping land and the provision of basement car parking would appear to be an eminently practical and space saving solution. The site is not large and the applicant proposes to landscape the whole of the rear garden which would be severely reduced in size if garaging were included in that area.
35 Secondly, the RDCP contains provision as follows:-
- 5.2 Car-Parking and Access
- Siting and Design
P3. For all new dwelling houses and semis, the siting of garages/carports must be integrated into the design at the time of the application.
The proposed dwelling integrates garages into the design, as required by the RDCP.
36 Taking into consideration the circumstance that the site lends itself uniquely to underground car parking, the Court considers that such a provision warrants a departure from the objective of cl 5.2(04) of the RDCP which requires rear lane access where available.
Impact on Floor Space Ratio
37 The applicant acknowledges that the provision of the turning area and plant room in the basement has a consequence that the overall gross floor area of the building would exceed the limit provided by the LEP.
38 Taken individually the ground floor level and the first floor level are within the maximum FSR limits. The FSR limit is exceed only by the turning area and area allocated for the plant room, the excess being 75 m2. The definition of gross floor area excludes the floor area of “lift towers and motor rooms”. Such exemption is not confined to lift motor rooms only but to motor rooms generally. A “motor room” would include, upon a literal interpretation, a room used for the purpose of a motor for air conditioning. There is no adverse environmental impact whatsoever by such non-compliance and the infringement of FSR is minor. For this reason the Court upholds the applicant’s SEPP1 objection in relation to FSR.
Height of the Building
39 The dormer windows on the roof were considered by council to constitute an infringement of the maximum wall height of 7.2m fixed by the LEP. Additionally Mr Ooi identified an area of approximately 1m on the eastern wall of the building at its northern most extremity which exceeded the 7.2m limit.
40 The provision of basement car parking has not lead to an increase in the height of the building. The ground floor is approximately 1,400mm below the level of the ground floor of the existing dwelling and the wall height infringement is minimal. The position of the dormer windows is such that they could not be regarded as forming part of the wall height.
41 In closing address two matters were offered by way of compromise by the applicant. Firstly the applicant offered to lower the building by 400mm. Secondly, the applicant offered to lower the parapet on the sides of the building by 500mm. The Court considers that each of these concessions would substantially address the council’s concern in respect of the height limit. The Court notes however that the council is opposed to the reduction in height of the parapet for the reason that it may result in an unslightly appearance of the building.
Flat Concrete Roof
42 Council’s concerns appear to relate to two issues. Firstly, council was concerned that a gabled roof would be more compatible with the existing style of the street. Secondly, council was concerned that a flat concrete roof could be used for the purposes of entertaining. For these reasons council required a colourbond roof to be provided with a low pitch, as had been required for the development of No. 18 Central Avenue.
43 The houses in Central Avenue have a variety of roof styles and shapes. Traditionally gabled roofs were more common. However, in recent years it is apparent that differing styles have been constructed. A more uniform pattern of gable roof style exists to the west of No. 18 Central Avenue, but to the east of No. 18 the variation in roof styles is noticeable. The existing dwelling has a flat roof, and this circumstance suggests that its replacement with a building having a similar roof style will not impact adversely upon the streetscape. The Court adopts the observations of Mr Shiels referred to in his evidence, namely that a gable roof would be unsuitable for the style of architecture.
44 Council’s concern regarding the use of the roof area can easily be met by a condition that the space should not be used by the inhabitants of the building.
45 Having considered the above, the council’s proposal for a colourbond roof is, in the Court’s opinion unnecessary, and would be inconsistent with the architectural style of the building.
Streetscape
46 Council seeks to retain the stone fence at the front of the land. The applicant is agreeable to such course but the provision of the driveway would result in its partial removal. The fence lines are already truncated in the street by several driveways and, at No. 8, by a parking area. On the view it was apparent that certain properties have double garage frontages to the street and others have single frontages. There is no pattern of uniformity. Mr Shiels stated in his report:
- It is important to acknowledge the number of driveways, garages and open parking spaces that form part of the character of Central Avenue. The proposal will appropriately relate to the street and, in my view with the restructured sandstone wall and landscaping will provide an attractive streetscape.
Accordingly there is no pattern of uniformity which justifies the rejection of the proposal.
47 The appearance of the building is said to be uncharacteristic of the area. An examination of other development in the street shows the wide variety of designs which have been constructed. It is apparent that the brick bungalow style of the street is being replaced with more modern and contemporary styles of building. The style proposed does not have a gabled roof, nor does it have the appearance of a traditional dwelling. The Court however adopts the opinion of Mr Shiels contained in the conclusion of his report:-
The driveway in Central Avenue is also appropriate on a street with a width of 13m and there are a number of other examples of driveways and garages in this locality.Central Avenue has a variety of both new and older buildings. The newer buildings are two storeys and are a more contemporary style of architecture. The proposal does not seek to imitate a heritage building or other forms of architectural style and, it appropriately adopts a contemporary form of architecture, which is in keeping with other buildings in the street. The existing front fence is maintained and incorporated into the new development in an appropriate manner.
The Court finds that the architectural style of the proposed dwelling is acceptable. The Court would require as a condition of consent that the blade wall at the front of the building be removed as considered at the hearing as it tends to accentuate the modern style of the building.
- Privacy
48 The Court has carefully considered the position of the occupants of No. 4 Central Avenue. As a result of negotiations the applicant has agreed to remove terrace No. 2 of the eastern side of the proposed dwelling. As such the privacy of the residents of No. 4 will be maintained along the western side of their house. Additionally the lowering of the building will assist in the possibility of intrusion from the side windows. The Court, on the view, noted that the lounge room windows of the occupants of No. 4 will not be directly overlooked by any windows on the ground floor level of the proposed dwelling.
49 The occupants of No. 4 also required balcony No. 4 to be removed. It has been reduced in size by the elimination by the eastern projection. The Court considers that the provision of the reduced balcony will not cause such an adverse impact that its total removal should be required. The aspect of the balcony will be to the south and not to the east. It adjoins a bedroom and is unlikely to be used for entertainment. The sight lines from such balcony could be towards the rear garden of No. 4 but there is already a substantial screening of that area from foliage on No. 4. The removal of balcony No. 4 is not warranted.
50 With respect to privacy of No. 8, the Court considers that the balcony proposed on the 1st floor of the building is situated in a satisfactory position and that its removal is not required.
Overshadowing
51 Overshadowing to No. 4 and No. 8 is minimal. Overshadowing charts prepared for 9.00am and 3.00pm for 21 June reveal that there is a slight impact to the rear yard of No. 8 in the morning and to the rear yard of No. 4 in the afternoon. The impact is not such as to warrant rejection of the proposal. Additionally the impact of overshadowing would be reduced in consequence of the lowering of the building.
General observations
52 The Court acknowledges that the style of the building is different to the adjoining buildings. The presence of a variety of other styles in the street satisfies the Court that the proposed development will not be sufficiently different to warrant its refusal.
53 The Court considers that set backs from the boundaries of No. 4 and of No. 8 are generous and are more extensive than the existing dwelling. It appears that care and thought has been applied to the design to avoid adverse impacts to the adjacent residents. Whilst the residents of No. 4 are concerned for their privacy, a different design could have had much greater impact. The concessions made by the applicant during the course of this hearing should greatly assist in allaying their concerns.
54 The Court is mindful of the careful approach taken by the council in its assessment of this proposal. The SEPP 1 objections to the very minor infringements of FSR and height are justified. The requirement for rear garaging as required by the RDCP is not essential in this instance due to the sloping nature of the land and the design which integrates parking. As a result of the matters that have been the subject of evidence by Mr Ooi and of Mr Shiels, and of the concessions that have been made by the applicant, the Court considers that despite council’s initial rejection of the proposal this appeal should be upheld, subject to conditions which reflect the amendments made to the proposal during the hearing.
Orders
55 The Court orders:-
- 1. The appeal be upheld subject to the conditions set out in Annexure A being Exhibit C which has been amended by:-
- (a) the deletion of paragraph 1.2 of Exhibit C and by the deletion of the handwritten amendment to paragraph 1.2, and
(b) by the addition of conditions as set out in Annexure A hereto.
- 2. The exhibits be returned.
The draft conditions of consent are:
1. The development consent relates to the following plans and documentation:
1.1 This approval relates to the following plan numbers (except where amended by the following conditions):
Plan Nos. Date of Plan Prepared by Drawing No 852.00 DA 1 – DA 5 26 November 2002 Innovac Dyer Landscape Plan 01142b/L01 30 October 2002 Ray Fuggle & Associates P/L
[BC1]
1.2 DELETED
2 The following conditions are to be satisfied upon lodgement and prior to release of the Construction Certificate
2.1 If Council is the certifying authority for the issue of a Construction Certificate the applicable fee in accordance with Council’s adopted pricing policy is required.
2.2 Adequate public liability insurance must be taken out by the builder or owner for the protection of adjacent property owners. The liability insurance shall provide for a minimum protection cover of $5,000,000 and shall be increased in cover where deemed necessary by the Director Environment and Planning. Evidence of the public liability insurance policy in the form of a copy of the policy is to be submitted to Council for approval. The policy is to have adequate cover for damage occasioned by excavation, demolition works or other building or related activities in the particular case. The copy of the policy is to be submitted to Council prior to any excavation work being carried out and prior to issue of the Construction Certificate. [BC15]
2.3 A bank guarantee, cheque or cash deposit for an amount of at least $2,500.00, to cover the required trust fund deposit against damage to Council property or installations, is to be lodged with Council prior to issue of the Construction Certificate. [BC13]
2.4 If Council is nominated as the Principal Certifying Authority, the applicant must pay the applicable inspection fees in accordance with Council’s adopted pricing policy prior to issue of the Construction Certificate. [BC16A]
2.5 The applicant must pay the applicable Long Service Leave levy prior to issue of the Construction Certificate. [BC16B]
2.6 Duplicate copies of Structural Engineer’s details of all pier holes, footings, beams, slabs, stairs, ramps, balustrades, parapets, balcony walls, retaining walls, structural members, brickwork, underpinning and shoring, which are to be in accordance with the requirements of the relevant design codes are to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.
2.7 The applicant is required to prepare a dilapidation report on the condition of all Council assets adjacent to the proposed development and lodge it with Council prior to the issue of a construction certificate. The report must include photographs of the road, kerb and gutter, footpath, driveways, street trees, street signs and any other Council assets in the vicinity of the development. The photographs must be of suitable quality and taken from an appropriate location to allow easy identification of any damage that exists. Generally, wide angle photographs taken some distance from the subject will not be suitable. A written description of the nature and extent of any damage that exist prior to commencement of the work must also be provided with the photographs. It should be noted that any damage not documented prior to works commencing will be assumed to be caused during construction and the repair costs will be taken out of the deposit against damage to Council property. [AS96]
2.8 A. Drainage from the site shall include on-site detention. A construction certificate will only be issued upon submission of a design in accordance with Council's current “Policy for On-Site Detention”. The purpose of the on-site detention system is to ensure that the proposed development does not result in run off above the permissible site discharge as calculated in accordance with the policy. The detention system, once constructed for this purpose, must be maintained in an operable condition and must not be removed without the prior consent of Council. A qualified engineer must submit a certificate to Council certifying that the design has been prepared in accordance with Council’s “Policy for On-Site Detention”, prior to the issue of a construction certificate.
B. A positive covenant is to be placed on the title of the property to the effect that:
(i) the Registered Proprietors will at their own expense well and sufficiently maintain and keep in good and substantial repair and working order any detention system which exists from time to time on the land;
(iii) the term “Registered Proprietors” shall include the Registered Proprietors of the land from time to time and all their heirs, executors, assigns and successors in title to the land and where there are two or more registered proprietors of the land the terms of the Covenant shall bind all those registered proprietors jointly and severally .(ii) the Registered Proprietors shall not remove the detention system without the prior consent of the Prescribed Authority; and
The positive covenant must be registered on the property title to the satisfaction of Council's solicitor, prior to the issue of a occupation certificate. All costs associated with the creation and registration of the positive covenant are to be met by the applicant. [AS55]
2.9 A design for the proposed pump-out system should be prepared in accordance with Council's current “Guidelines for Stormwater Drainage Systems”. A certificate to this effect shall be submitted from a qualified engineer prior to the issue of a construction certificate.
An Electrical Engineer's Certificate shall be supplied to Council on completion of the works, certifying that the electrical details of the pump-out system have been checked and fully tested and are operating in accordance with the above Guidelines. The applicant will be required to have a positive covenant registered on the property title advising of the existence of the pump-out system and requiring that a certificate as referred to above be submitted to Council every 12 months. [AS60]
2.10 Council's current policy states that vehicular crossings should be designed on the basis of a single kerb opening of not more than 3 m in width for single garages (excluding transition wings on each side), as well as minimising the loss of on-street car parking spaces. The applicant shall submit details outlining the necessary modification to the vehicular crossing width. A certificate to this effect shall be supplied from a qualified engineer or architect prior to the issue of a construction certificate. [AS20]
2.11 The applicant shall meet all costs associated with the construction of the proposed vehicular crossing.
Prior to the issue of a construction certificate a separate application shall be made to Council's Environment and Planning Department for approval to construct the proposed vehicular crossing. [AS5]
2.12 The existing vehicular crossing will become redundant and the crossing must be removed, and kerb and gutter and concrete paving constructed in accordance with Council’s standard specification, at the applicant's expense. [AS16]
3. The following conditions are to be satisfied prior to the commencement of any works (including demolition related to the work)
3.1 Construction Certificate for the proposed work must have been issued.
3.2 The approved plans must be submitted to the appropriate Sydney Water office to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water’s requirements, the approved plans will be appropriately stamped.
3.3 A Form 7 must be submitted to Council a minimum of 2 days prior to construction commencing, which must include Builder’s details.
3.4 Documentary evidence of Home Warranty Insurance in accordance with Part 6 of the Home Building Act 1989 must be submitted with the Form 7.
4. The following conditions are to be satisfied during the construction period
4.1 All works, including ancillary works, relating to this proposal are to be substantially commenced within 5 years from the date on which the consent operates.
Signs to be Erected on Building and Demolition Sites
4.2 A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:
4.2.1 stating that unauthorised entry to the work site is prohibited, and
4.2.2 showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.
Any such sign is to be removed when the work has been completed
This clause does not apply to:
(i) building work carried out inside an existing building, or
(ii) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.
Change of Building Use
4.3 A building in respect of which there is a change of building use must comply with the Category 1 fire safety provisions applicable to the proposed new use.
Note: The obligation under this subclause to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in the relevant development consent.
Excavations and Backfilling
4.4 All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.
4.5 All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.
Retaining Walls and Drainage
4.6 If the soil conditions require it:
4.6.1 retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and
4.6.2 adequate provision must be made for drainage.
Support for Neighbouring Buildings
4.7 If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:
4.7.1 must preserve and protect the building from damage, and
4.7.2 if necessary, must underpin and support the building in an approved manner, and
4.7.3 must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.
The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.
In this clause, allotment of land includes a public road and any other public place.
Protection of Public Places
4.8 If the work involved in the erection or demolition of a building; and
4.8.1 is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or allow pedestrian access into a construction site from the public way; or
4.8.2 involves the enclosure of a public place, then
4.8.3 a hoarding or fence must be erected between the work site and the public place.
If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.
The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.
Any such hoarding, fence or awning is to be removed when the work has been completed.
Toilet Facilities
4.9 Toilet facilities are to be provided, at or in the vicinity of 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.
Each toilet provided:
(i) must be a standard flushing toilet; and
(ii) must be connected to the sewer.
4.10 No plant is to be operated on or across a public road or footpath involving the use of a crane, hoist, lift or concrete pump or the placement of any article including, but not limited to, pipes across or above any part of a road or footpath/verge, unless written approval has first been obtained from Council. Application for a permit must be made at least 24 hours prior to operating such plant and permits will not be issued on the proposed day of operation.
Any person operating plant in contravention of this condition is liable for an on-the-spot fine exceeding $300. [BC6A]
4.11 Owners, builders and/or demolishers are not to occupy and/or obstruct any portion of the footpath, verge or roadway with building or demolition material, waste containers, portable toilets or building sheds. Approval to occupy the footpath/roadway will only be considered where circumstances prevent on-site storage. Application to occupy the footpath/roadway is to be made on the prescribed form and lodged, together with payment of Council’s scheduled fees, for the consideration of the Manager Ranger Services. Street gutters are to be kept clear of any building materials at all times. Unauthorised waste containers are not permitted to occupy any portion of the footpath or roadway.
4.12 Under no circumstances is any person permitted to mix concrete or mortar or carry out any building works or activity on Council property.
4.13 Before any road, footpath, public reserve or public place is opened for any lawful purpose by a plumber, drainer, builder or any other person, a permit is to be obtained from the Council. The charge for restoration of the road, footpath, public reserve or public place to be opened (calculated in accordance with the schedule of charges for restoration of roads, footpaths, public reserves and public places fixed by Council) is to be paid to Council prior to the commencement of the opening.
4.14 The construction of footpath and vehicular crossings and laybacks in the kerb is to be undertaken by either the applicant's contractor or by a Council Authorised Contractor. The applicant is to make application on the form available at the Environment and Planning Department and pay any deposits required prior to the commencement of the work.
4.15 No person shall use or occupy the building or portion which is the subject of this consent until it is completed in accordance with the approved plans and the conditions of this consent.
4.16 In order to prevent objectionable noises or operations on any land or premises, the following construction hours shall apply:
4.16.1 Work or the demolition of any building is restricted to the hours of 7:00 a.m. to 6:00 p.m. on Mondays to Fridays, inclusive, and 7:00 a.m. to 1:00 p.m. on Saturdays if inaudible on adjoining residential premises, otherwise 8:00 a.m. to 1:00 p.m. Construction work or demolition work is prohibited on Sundays and Public Holidays.
4.16.2 The burning of demolition material on the site is prohibited at all times.
4.17 Construction works associated with this approval shall not cause pollution of any waters.
4.18 Stages of building construction shall be appropriately inspected to ensure the safety and health of the building.
4.19 If Council is not the Principal Certifying Authority, a Compliance Certificate is to be obtained from an accredited certifier after every inspection and submitted to Council with any other relevant certification.
4.20 If works involve demolition, excavation or any stone cutting, appropriate measures (e.g. fine water spray) shall be implemented to ensure that dust and silica emissions do not leave the site. However, such measures shall be coordinated with site sedimentation control measures to ensure polluted waters do not leave the site.
5. The following conditions are to be satisfied prior to use or occupation
5.1 An Occupation Certificate must be issued, and provided to Council (with the applicable registration fee) if Council is not the Principal Certifying Authority, confirming that the building is suitable for use or occupation in accordance with its classification under the Building Code of Australia.
5.2 Prior to occupation of the premises the following shall be submitted:-
a. Works as executed drawings of the detention storage shall be furnished to Council upon completion of the works.
b. A certificate from a qualified engineer shall be supplied to Council in respect of:-
i. the soundness of the storage structure;
ii. the capacity of the detention storage;
iii. the works being constructed in accordance with the approved design. [AS57]
9 The following conditions are to apply post-construction/other general conditions
9.1 All conditions of approval must be complied with before land use (including occupancy) takes place. Any consent given shall be void if the development to which it refers is not substantially commenced within five years after the date of approval.
10 Prescribed Conditions (EPA Act Regulations 2000)
10.1 All building work must be carried out in accordance with the provisions of the Building Code of Australia.
10.2 Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless there is a contract of insurance, in accordance with Part 6 of the Home Building Act, 1989, and that such a contract of insurance is in force.
All conditions of approval must be complied with before land use (including occupancy) takes place. Any consent given shall be void if the development to which it refers is not substantially commenced within five years after the date of approval.
Additional Conditions of Approval
1. No part of the concrete roof of the building is to be used by the occupants other than for the purpose of maintenance.
2. The whole of the proposed building is to be lowered by 400 mm.
3. Terrace No. 2 is to be deleted.
4. The stone fence is to be retained except for the driveway and pedestrian access. Any pillars required for the purpose of fencing or gate posts are to be constructed in matching stone.
5. The blade wall is to be deleted from the northern elevation of the building.
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