John Atra v Canterbury City Council - [2004] NSWLEC 317

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: John Atra v Canterbury City Council [2004] NSWLEC 317

PARTIES: APPLICANT
John Atra
RESPONDENT
Canterbury City Council

FILE NUMBER(S): 10171 of 2004

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Status of the Draft Local Environmental Plan - Streetscape impact - Overshadowing.

LEGISLATION CITED: Canterbury Planning Scheme Ordinance, (CPSO) - Draft Local Environmental Plan No 204, (DLEP) - Energy Smart Homes Policy - Development Control Plan No 37, (DCP37) - Development Control Plan No 32 - Notification Policy, (DCP32) - Single Unit Dwelling House Code, (Code)
Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED:

DATES OF HEARING: 10/06/2004

DATE OF JUDGMENT: 06/24/2004

LEGAL REPRESENTATIVES:
APPLICANT
Mr M J Connell
SOLICITORS
Michell Sillar
RESPONDENT
Mr A J Seton
SOLICITORS
Marsdens Law Group

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

24 June 2004

10171 of 2004 John Atra v Canterbury City Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Canterbury City Council (the council) of a development application to demolish the existing dwelling and to erect two new attached two-storey dwellings at Lots 2 and 3 of DP 4390, being Nos 28 and 28a Woolcott Street, Earlwood.
2 Separate development applications were lodged for each of the proposed two attached dwellings:
· DA No 332/03 - 28 Woolcott Street (Lot 2); and
· DA No 333/03 – 28a Woolcott Street (Lot 3).
3 By consent the two applications were dealt with together in this Appeal No 10171 of 2004.
4 I visited the land in company with the parties on the first day of the hearing.
5 I have concluded that both the development applications are satisfactory when assessed under the heads of consideration of s 79C of the Environmental Planning and Assessment Act 1979 .
6 I accept that the draft environmental planning instrument might be ‘certain and imminent’ as it has progressed well on the way to being gazetted. Despite this, the present planning controls continue to apply to the land and I am satisfied that the proposal is one that is acceptable under that zoning and may be approved with conditions.
The land
7 The land is situated on the eastern side of Woolcott Street between Elsie Street and Caroline Street, Earlwood. Erected on the land is a vacant freestanding single-storey fibro cottage, which straddles both lots, and with a rear-detached garage with driveway along the northern side of the land.
8 The land comprises two rectangular adjoining lots and each lot has a frontage of 6.095m with a depth of 36.575m giving an area of 222.9m2 and a combined area of 445.8m2.
9 The area is characterised by a mixture of single-storey and two-storey detached dwellings some that straddle two or more lots.
10 To the north of the land is a single-storey dwelling with a rear private open space area and car parking area accessed off Elsie Street. To the south is a single-storey dwelling containing a front porch and a detached garage with a rear open space area.
11 To the east of the land is a part single-storey and two-storey dwelling with access off Elsie Street.
12 To the west of the land located on the other (opposite) side of Woolcott Street are single-storey dwellings similar to those properties adjacent to the subject land.
13 A bus stop is located adjacent to the southern property adjoining the land to the south that services the local area with regular services operating throughout the week.

Relevant planning controls

Canterbury Planning Scheme Ordinance, (CPSO)
14 The land is zoned Residential 2(b) under the CPSO and the proposed developments are permissible with consent.

Draft Local Environmental Plan No 204, (DLEP)
15 In June 2003 the council resolved to prepare the DLEP for land bounded by Burlington Avenue, Karool Avenue, Caroline Street, Thompson Street, Spark Street and Woolcott Street, Earlwood.
16 The aim of this DLEP is to restrict the practice of demolishing a single dwelling house that straddles two or three allotments, and replacing that single house with multiple attached dwellings or one dwelling per lot.
17 The DLEP was placed on public exhibition from 30 October 2003 to 27 November 2003. All affected property owners were notified in writing.
18 On 11 December 2003, the council resolved that the DLEP be adopted and referred to the Department of Infrastructure Planning and Natural Resources (DIPNR) for final approval and gazettal. The Parliamentary Counsel has now indicated it may be made and a s 89 report has been prepared for the Minister.
19 It is not clear whether or not there will be contained within the instrument a ‘savings clause’ that would enable the present development applications, not yet determined, to be considered as if the existing planning instrument still applied.

Energy Smart Homes Policy - Development Control Plan No 37, (DCP37)
20 DCP37 applies to all land within the City of Canterbury for alterations and additions to dwellings, new dwelling houses, dual occupancy townhouses and villa homes multiple unit developments.
21 The objectives of DCP37 as stated in cl 1 are:
1. To contribute towards a more sustainable urban environment;
2. To promote a more liveable residential environment;
3. To promote energy efficiency in the design, construction and use of housing;
4. To protect solar access enjoyed by neighbours;
5. To encourage the use of energy efficient hot water heating and lighting appliances; and
6. To encourage the use of water saving devices.
22 Section 7.9 of DCP37 deals with solar access to neighbouring properties and requires that:

All proposals must demonstrate that any adjoining property will receive at least two hours of sunlight between 9.00am and 3.00pm on June 21 to at least 50% (or 35sqm with minimum of dimension 2.5m, whichever is lesser) of the principal area of ground level private open space of the adjacent properties. Where existing overshadowing by buildings and fences is already greater than this, sunlight is not to be further reduced by more than 20%.
In addition, at least one living room window must also receive a minimum of 2 hours sunlight between 9.00am and 3.00pm on June 21. For example, rooms normally occupied during the day. Where less than 2 hours of sunlight is currently available, that sunlight is not to be reduced further. When considering this issue Council will also take into account block orientation, existing boundary setbacks and solar access to living room windows not affected by the proposal.
Neighbouring clothes drying areas must also receive a minimum of two hours of sunlight on 21 June between 9.00am and 3.00pm.

Development Control Plan No 32 - Notification Policy, (DCP32)
23 DCP32 applies to all development in the City of Canterbury and stipulates a notification period of fourteen days.
Single Unit Dwelling House Code, (Code)
24 Clause 1.1 of the Code states:

1.1 This code applies to all new dwelling houses and extensions and alterations to existing dwelling houses.
1.4 Compliance with the requirements of the Code does not necessarily imply automatic approval, as the merits of each individual proposal will be taken into consideration in determining application.
1.5 Where special conditions or circumstances prevail, departures from the requirements of the Code will be considered on their merits by Council having regard to those special circumstances and conditions. In such cases, it is suggested that the application be accompanied by a letter detailing why a departure from the Code should be permitted.

25 The objectives of the Code are:

2.1 To ensure an acceptable standard of dwelling house development and to encourage good design within the City of Canterbury.
2.2 To permit the reasonable enjoyment of land within the Council Area and recognise the desire of individuals to develop the land to suit their particular needs whilst having regard to the existing and future amenity.

26 The Code also contains requirements in relation to front building lines, side setbacks, height of buildings, floor space ratio, car parking, general design requirements and additions to single unit dwellings.
The proposal as further amended and its history
27 Both development applications were lodged with the respondent council on 17 April 2003, seeking consent to demolish the existing dwelling and to erect two x two-storey attached dwellings on the separate lots known as lots 2 and 3 of DP 4390, presently known as No 28 and 28a Woolcott Street.
28 It is proposed to demolish the single-storey dwelling and construct the two attached dwellings with a party wall between the two on the common boundary.
29 During the hearing the application was further amended to add a hipped pitched tiled roof, and to move the proposal 2.1m to the west, towards the road. The front of the proposal would then align with the brick front wall of No 30 Woolcott Street to the south of the land.
30 Each proposed dwelling as amended would comprise:
· A ground floor with a garage and entry area with a dining /living area opening onto a covered patio. The patio opens up onto a rear open space area with steps to the private courtyard area.
· A first floor with a master bedroom and ensuite, three bedrooms and a bathroom with a partially covered front balcony and a covered rear balcony.
· External walls of double brick construction with concrete floors and a 27.5 degree pitched terra cotta Marseille pattern tiled roof. Retaining walls are to be built along the side boundaries and within the courtyard areas.
· The proposed dwellings would be setback 5.4m from the front boundary and 1m from the southern and northern boundaries with a zero setback along the common boundary.
· The setback to the rear boundary would be 7.831m to the edge of the pergola on proposed No 28 Woolcott Street. The pergola on No 28a Woolcott Street is proposed to be deleted.
31 The proposed amended dwellings would have a two-storey appearance with the ground floor excavated slightly into the natural ground about 600mm towards the street frontage and about 1.3 metres at the rear edge of the building.
Notification
32 The original development applications were notified from the 1 May 2003 to the 15 May 2003 in accordance with the requirements of DCP32 - Notification Policy and two submissions were received raising concerns in regards to privacy and overshadowing.
33 A further objection was received on 8 August 2003.
34 On 8 May 2003, the council wrote to the applicant requesting the submission of details showing compliance with the requirements of Section 7.9 of DCP 37 - Energy Smart Homes Policy.
35 On 22 July 2003, the council wrote to the applicant raising concerns and amended plans and additional information was lodged on 24 October 2003.
36 The development application plans were amended and notified from the 4 December 2003 to the 18 December 2003 and two further objections to the proposal were received.
37 Two of the objectors, Mr P Michalopoulos and Ms C Fraser were present on the site inspection when the changes were discussed.
38 The neighbour to the north Mrs V Grant of No 26 Woolcott Street, was also informed of the amendment on 15 June 2004. She told the council’s town planner Mr Brown that in respect of moving the building towards to the west, she raised no concerns provided that the windows located opposite her kitchen/ bedroom windows were frosted. As the proposed movement of the building would cause the second frosted window in No 28 Woolcott Street to be directly opposite her window she requested that this window be deleted from the plan.
39 Mr Brown was able to speak further with Ms Fraser about the amended plans and she advised him that if the proposal had to go ahead it should be sympathetic to the neighbours requirements. Otherwise she maintained the same issues of bulk and scale, as previously raised by her.

The council’s decision
40 When the appeal was filed the council had not formally determined the applications.

The hearing
41 The appeal was filed on 17 February 2004, on the basis of deemed refusals by the council of the development applications.
42 On 8 April 2004, amended development application plans were lodged with the Court.
43 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr M E Brown, Development Assessment Officer - Planning Canterbury City Council, [Note: Exhibit 12];
· Mr P Michalopoulos, resident of No 30 Woolcott Street, Earlwood, [Note: Exhibit 1];
· Mrs C Fraser, resident of No 13 Stone Street, Earlwood, [Note: Exhibit 1].

44 On behalf of the applicant evidence was given by:
· Mr S R Layman, consultant town planner, [Note: Exhibit E and joint statement Exhibit 13].
The issues
45 On 16 April 2004 the council filed a statement of issues in respect the applications:

1. The proposed development is unacceptable, as it fails to comply with Clause 7.9 ("Solar Access to Neighbouring Properties") of the Canterbury City Council Energy Smart Homes Policy Development Control Plan No.37 ("DCP 37").
Particulars:

1.1 Deleted.
1.2 The elevated shadow diagrams supplied by the Applicant in support of the application show that the kitchen/living room window on the northern elevation of the adjoining property to the south will have its access to direct sunlight reduced to less than two hours between 9.00am and 3.00pm on June 21.

2. The proposed development is prohibited under the Draft Canterbury Local Environmental Plan 204 which inserts Clause 62N into the Canterbury Planning Scheme Ordinance, in that the land subject of the proceedings does not comprise a "developable parcel".
3. The proposed development is incompatible with the existing character of the locality, and would result in an unacceptable impact on the streetscape of the locality insofar as it constitutes an over development of the land in terms of bulk and scale.
4. The proposed development is unacceptable, as the proposed parking arrangements for vehicles are inconsistent with Part (a) Clause 7 of Canterbury Council's Single Unit Dwelling House Code ("the Dwelling House Code").
Particulars:

4.1 The proposed provision of off street parking is for one parking space behind the building line. The Dwelling House Code requires off street parking for two car spaces behind the building line.

5. The proposed development is unacceptable as it is inconsistent with Note 2 of Clause 4.2 of the Dwelling House Code.
Particulars:

5.1 The proposal includes a zero metre setback for each of the proposed dwellings from the common (centre) boundary of the lots. The Dwelling House Code requires a minimum setback of one metre.

6. The proposed development is unacceptable and contrary to objective 2.2 of the Dwelling House Code as the amenity of the proposed dwelling is compromised by the limited solar access afforded to the living room and windows of the proposed southern dwelling, which is affected by overshadowing created by the proposed northern dwelling.
7. The proposed development is unacceptable and contrary to objective 2.2 of the Dwelling House Code as the amenity of the adjoining existing residences at 26 and 30 Woolcott Street is likely to be adversely impacted in terms of privacy.
Particulars:

7.1 The proposed development provides for balconies on the rear first floor elevation, and windows along each side elevation, which overlook the adjacent windows and private open space of numbers 26 and 30 Woolcott Street.

8. The proposed development is unacceptable and contrary to objective 2.2 of the Dwelling House Code as the amenity of each of the proposed dwellings is likely to be compromised in terms of privacy.
Particulars:

8.1 The proposed development provides for balconies on the rear first floor elevation of each proposed dwelling which permit reciprocal overlooking into the proposed private open space areas of each of the proposed dwellings.

9. The proposed development is unacceptable and contrary to objective 2.2 of the Dwelling House Code as the proposed excavation detailed in the Applicant's plans, which ranges from 600 mm to 1.3 metres , will compromise the amenity of the occupants of the proposed dwellings.
Particulars:

9.1 As a result of the excavation, the proposed dwellings would suffer from limited solar access, dampness, and drainage issues which will adversely impact upon the living standards of the occupants.

46 The salient issues in respect of both development applications are:
· Certainty of DLEP;
· Overshadowing of No 30 Woolcott Street;
· Dominance of the proposal on the streetscape;
· Adequacy of car parking and setback;
· Limited solar access to No 28A Woolcott Street; and
· Impact on privacy of neighbours.

The evidence and findings

Certainty of DLEP
47 Mr Brown stated in his report of 7 June 2004, that the Parliamentary Counsel has advised the council that the DLEP can be legally made and he understood that it would be forwarded to the Minister “…today or tomorrow”.
48 Mr Layman maintained that the DLEP remains neither imminent nor certain.
49 Mr Seton submitted that the DLEP is both ‘certain and imminent’, and Mr Connell took a contrary stance. Mr Connell submitted that it is not clear whether or not there would be a savings clause included in the gazetted document and also the council itself had approved two development applications for nearby sites on 27 May 2004, contrary to the DLEP, [Note: Exhibit 5].
50 During the hearing I asked the parties whether a Local Environmental Study, (LES) had been a precursor to the preparation of the DLEP. I was interested to understand whether the council, in preparing it’s DLEP, had addressed the s 117 directions relating to residential density and whether the existing development potential of each lot in this area had been taken into account in its residential strategy. I was told that no LES had been undertaken and that as the residential yield for this area had not been taken up on each individual subdivided lot, there would not be any conflict with the directions. This does not answer the concern I held for the possible reduction of density.
51 The DLEP as presently drafted does not include a ‘savings clause’ however, I could not be assured that no such clause would or would not be included in the gazetted version. The letters to the applicant from DIPNR shed little light on this aspect. I have assumed that if a savings clause were to be included, the restrictions in the DLEP would not be carried into effect for the present application.
52 I accept the submission of Mr Seton that the DLEP, is ‘certain and imminent’ and will be soon gazetted. Acknowledging the principle in regard to certainty and imminence I would normally give this finding great weight and perhaps find that it is determinative. However, I am also satisfied that the proposal as amended and conditioned is one of outstanding merit and one which may be granted development consent in the circumstances of this case, under the present 2(b) zone of the CPSO with the present lot sizes.

Overshadowing of No 30 Woolcott Street
53 Messrs Layman and Brown agreed that there were some inaccuracies in the original shadow diagrams and these were not relied upon. Mr Layman considered the solar access standard would be satisfied by the proposal however, Mr Brown maintained that the inaccuracy of the previous information would not enable determination of the extent of overshadowing.
54 Mr Michalopoulos the next-door neighbour to the south, who gave evidence on the site inspection, was primarily concerned to maintain as much sunlight as possible to the rear yard of his property. He agreed that if the proposal were moved 2.1m to the west, towards the street, the amount of sunlight to his rear yard would be increased. The further amended plans in Exhibit K show the proposal’s new position.

55 The amended shadow diagrams show that Mr Michalopoulos’ kitchen window would be overshadowed for most the day in midwinter however, the living room, to the south of the kitchen, which has an east-facing window overlooking the rear yard of that property would maintain morning sunlight. I am satisfied that sunlight to that living room window would not be significantly decreased by the proposal.
56 I am also satisfied that solar access to the garden to the south would be adequate and this no longer would be a reason for refusal of the application.

Dominance of the proposal on the streetscape;
57 There was a disagreement between the planning consultants as to the extent of streetscape under consideration.
58 Mr Layman for the applicant maintained that the relevant streetscape context is all of Woolcott Street and in particular that part of Woolcott Street between Fore Street/ Burlington Avenue and the top of the hill to the south of the subject land.
59 Mr Layman maintained that the bulk and scale of the proposal in the streetscape would not be inconsistent with a single dwelling built across both blocks found in the immediate area.
60 Mr Brown for the council maintained that the relevant streetscape is that part of Woolcott Street between Fore Street/ Burlington Avenue and Fuller Avenue (base of the hill to the south of the subject land).
61 Mr Brown disagreed and was of the opinion that the design would be inconsistent with single-dwelling development, having two entries and two balconies.
62 During the hearing the proposal was amended to include a hipped pitched roof and this was considered by the experts to be more in keeping with the streetscape as most buildings in Woolcott Street had similarly pitched tiled roofs.
63 The proposal would appear as a two-storey building straddling the common boundary with twin single garages and two entrances. I am satisfied that the amended design reflects the existing lot boundaries and would be sympathetic in the streetscape provided colours materials and textures are appropriate. I would not refuse the development for this reason.

Adequacy of car parking and setback
64 The council’s Code requires two car parking spaces for each dwelling. It is preferred that car parking not be in front of the building line. However, the Code allows opportunities for applicants to seek for a dispensation on this aspect depending on site conditions.
65 The proposal is for a single garage and single tandem space in front of the garage.
66 I am satisfied that given the limited frontage of each lot, the proposals would be acceptable and I would not refuse the applications for this reason. In this regard I prefer the evidence of Mr Layman.

Limited solar access to No 28a Woolcott Street
67 With east/ west oriented sites it is to be expected that limited solar access would be available to the southern building, as the common party wall would cast a shadow over the southern lot.
68 The experts agreed that with the removal of the pergola over the east facing ground floor patio doors that sufficient sunlight would penetrate the open plan ground floor living rooms.
69 The applicant agreed to a condition requiring the deletion of that pergola, and this was shown in the further amended plans. I would not refuse the application for this reason.

Impact on privacy of neighbours
70 The planning experts agreed that with frosted glazing to 1.5m above the upper floor level there would be no concern for privacy.
71 The applicant agreed to a condition in this respect, and I would not refuse the application for this reason.
72 For the above reasons, the appeal is upheld.

Conditions
73 The conditions are those in Exhibit 11, as amended by the conditions in Exhibit H. The first three proposed conditions in Exhibit H have been made otiose by the further amended plans. Two conditions remain which have been added as Conditions 2.10 and 2.11
74 I have added Condition 2.12 that:

The roof tiles are to be unglazed Marseilles pattern terra-cotta to match those on houses nearby.

75 I have also added a condition requiring the deletion of the second frosted window on the ground floor opposite the bathroom in proposed No 28 Woolcott Street to satisfy Mrs Grant’s privacy concerns.
Orders
76 My orders are:
1. The appeals under s 97 of the Environmental Planning and Assessment Act 1979 are upheld.
2. Development applications No DA No 332/03 - 28 Woolcott Street (Lot 2); and DA No 333/03 - 28a Woolcott Street (Lot 3); to demolish the existing dwelling and to erect two new attached two-storey dwellings at Lots 2 and 3 of DP 4390, being Nos 28 and 28a Woolcott Street, Earlwood, are approved subject to Conditions 1 to 2.13 attached in Annexure A.
3. The exhibits with the exception of Exhibits B, C, H, K and 11 are returned.
S J Watts
Commissioner of the Court
sw

In the Land and
Environment Court
of New South Wales

Appeal No 10171 of 2004

Conditions of development consent

Annexure A

John Atra

v

Canterbury City Council

1. The application be APPROVED subject to the following conditions:

1.1. The following must be submitted to either Council or an Accredited Certifier prior to the issuing of a Construction Certificate:

1.1.1. Details of: -

(a) Structurals.

(b) Method of termite protection.

(c) Stormwater disposal.

1.1.2. Evidence of an Owner Builder Permit (Class 1 & 10 buildings only); or

1.1.3. Evidence of a Home Building (Private) Insurance Certificate.

1.1.4. Payment of the Long Service Leave Levy to the Long Service Leave Corporation or to Council.

1.1.5. Payment to Council of:

1.1.6. If you appoint Council as your Principal Certifying Authority, the following fees are payable:

BEFORE COMMENCING THE DEVELOPMENT

1.2. Before the erection of any building in accordance with this Development Consent;

1.2.1. detailed plans and specifications of the building must be endorsed with a Construction Certificate by the Council or an Accredited Certifier, and

1.2.2. you must appoint a Principal Certifying Authority (either Canterbury City Council, or an Accredited Certifier) and notify the Council of the appointment (see Attachment – Notice of Commencement copy), and

1.2.3. you must give the Council at least 2 days notice of your intention to commence erection of the building (see Attachment – Notice of Commencement copy).

1.3. In the case of work which includes residential development, you must inform us in writing before the commencement of work of the following:

1.3.1. The name and contractor or licence number of the licensee who has contracted to do or intends to do the work; or

1.3.2. The name and permit number of the owner-builder who intends to do the work.

1.3.3. If it is intended to engage a builder or licensed contractor to do the work where it is valued over $12,000 then this person must take out home building insurance with a private insurer. The builder or person doing the work must also satisfy Council that they have taken out an insurance policy by producing evidence of the insurance certificate or other documentation. Further information on insurance requirements is available from the Department of Fair Trading (NSW Consumer Protection Agency) on 1800 802 055.

DEMOLITION

1.4. Demolition must be carried out in accordance with the following:

GENERAL

1.5. The development being carried out in accordance with the plans, specifications and details prepared by Peter Boulos, Revision E, dated 11 June 2004 and marked Drawing Job No.: 03026, except where amended by the conditions that follow.

1.6. Compliance with the Prescribed Conditions where relevant, as outlined in Clause 98 of the Environmental Planning and Assessment Regulations 2000.

1.7. All materials must be stored wholly within the property boundaries and must not be placed on the footway or roadway.

1.8. All building operations for the erection or alteration of new buildings must be restricted to the hours of 7.00 a.m. - 5.00 p.m. Monday to Saturday, except that on Saturday no mechanical building equipment can be used after 12.00 noon. No work is allowed on Sundays or Public Holidays.

1.9. The Development Consent hereby granted will automatically lapse and become void two years after the consent date pursuant to Section 95(2) of the Act unless the development has substantially commenced within that time.

1.10. A contribution being paid to Council in accordance with Council’s Section 94 Contributions Plan. The amount of the contribution has been assessed as $4884.16. This amount is made up from the following components:

Acc. Type of Contribution Amount

711 Open Space Acquisition $1607.10

712 Recreation Facilities $676.54

713 Community Facilities and Services $1718.65

714 Environmental Amenity Improvements $447.96

715 Traffic Control and Management $114.39

Total Contribution $4564.64

717 Research, Monitoring & Administration fee (7% of the total contribution) $319.52

Total Amount Payable $4884.16
The contribution is to be paid to Council in full prior to the release of the Construction Certificate, (or for a development not involving building work, the contribution is to be paid to Council in full before the commencement of the activity on the site,) in accordance with the requirements of the Contributions Plan.

1.11. All building construction work must comply with the Building Code of Australia 1996.

1.12. Provide a Surveyor’s Certificate to the Principal Certifying Authority prior to walls being erected more than 300mm above adjacent ground surfaces to indicate the exact location of all external walls in relation to allotment boundaries.

1.13. Provide a Surveyor’s Certificate to the Principal Certifying Authority prior to the pouring of concrete at ground level, first floor level and ridge level indicating the finished level to a referenced benchmark. These levels must relate to the levels indicated on the approved architectural plans and/or the hydraulic details.

1.14. The implementation of adequate care during building construction to ensure that no damage is caused to any adjoining properties.

1.15. Council’s warning sign for Soil and Water Management must be displayed on the most prominent point on the building site, visible to both the street and site workers. The sign must be displayed throughout construction.

1.16. The capacity and effectiveness of erosion and sediment control devices must be maintained at all times.

1.17. Concrete pumping contractors must not allow the discharge of waste concrete to the stormwater system. Waste concrete must be collected and disposed of on-site.

1.18. Materials must not be deposited on Council’s roadways as a result of vehicles leaving the building site.

1.19. An application being made to Council’s City Works Division for the construction of a vehicular crossing either by Council or an approved contractor complying with City Works Division standards and at the owner’s cost.

1.20. A single entry/exit point must be provided to the site which will be constructed of a minimum of 40mm aggregate of blue metal or recycled concrete. The depth of the entry/exit point must be 150mm. The length will be no less than 15m and the width no less than 3m. Water from the area above the entry/exit point shall be diverted to an approved sediment filter or trap by a bund or drain located above.

1.21. The bathroom windows to be opaque or translucent.

1.22. An application being made to Council’s City Works Division for the construction of a vehicular crossing either by Council or an approved contractor complying with City Works Division standards and at the owner’s cost.

COMPLETION OF DEVELOPMENT

1.23. Obtain an Occupation Certificate/Interim Occupation Certificate from the Principal Certifying Authority before partial/entire occupation of the development.

1.24. Compliance with the requirements of Development Control Plan No.37 - Energy Smart Homes Policy (“DCP 37”) must be demonstrated by submitting to the Principal Certifying Authority relevant Certificates of Compliance (Hot water system, plumbing fittings, insulation, clothes dryer) before the issue of an Occupational Certificate. Copies of Certificates of Compliance may be found in the appendices of DCP 37 and must be completed by appropriately qualified persons.

2.1. Where Council is appointed as the Principal Certifying Authority, you will be required to submit Compliance Certificates in respect of the following:

2.1.1. Structural engineering work

2.1.2. Protection from termites

2.1.3. Smoke alarms

2.1.4. NatHERS completion

2.1.5. Completion

2.2. Where Council is appointed as the Principal Certifying Authority, the building work is to be inspected at the following stages:

2.2.1. Trenches for footings/slabs/piers

2.2.2. Steel reinforcement

2.2.3. Dampcourses

2.2.4. Drains are laid

2.2.5. Framework

2.2.6. Wet areas/moisture barriers

2.2.7. Completion of the development

To arrange an inspection by Council please phone 9789-9300 during normal office hours.

2.3. Your attention is directed to the following construction requirements of the Building Code of Australia 1996:

2.3.1. Drainage complying with Part 3.1.2 BCA96 Vol.2, and AS 3500, including:

(a) roofwater connected to the street gutter by means of an approved pipe system.

2.3.2. Termite risk management complying with Part 3.1.3 BCA 96 Vol 2; comprising termite resistant materials, or alternatively:

2.3.3. The design/construction of the structure complying with Part 3.2 and 3.11 BCA96 Vol.2. Submit structural engineering details to the Principal Certifying Authority for any concrete footings, slabs, swimming pools, retaining walls, or structural steel prior to work reaching each respective stage. The details must be prepared by a qualified practising structural engineer who has/is eligible for membership of the Institution of Engineers Australia, and be accompanied by a completed Structural Design Certificate (SC1100a copy attached).

2.3.4. Masonry construction complying with Part 3.3 BCA96 Vol.2.

2.3.5. Framing construction complying with Part 3.4 BCA96 Vol.2, inclusive of requirements for member sizes, spaces, bracing, spans, locations and stress grades. Where roof trusses are to be used, provide full details of same to the Principal Certifying Authority before erection of the roof frame.

2.3.6. The separating wall of the Class 1/10a buildings shall have a fire resistance level of at least than 60/60/60 and:

2.3.7. Installation of an automatic smoke detection and alarm system in the Class 1a building complying with Part 3.7.2 BCA96 Vol.2, including a system of self contained smoke alarms:

2.3.8. Waterproofing of wet areas including bathrooms, showers, laundries, sanitary compartments and the like complying with Part 3.8.1 BCA96 Vol.2 and Australian Standard 3740.

2.3.9. Earthworks and excavation adjacent to any vacant adjoining property complying with Part 3.1.1 BCA96 Vol.2. Where excavation will be below the base of footings on an adjoining allotment, you must at your own expense:

2.4. If the proposed job involves residential work and is more than $200 in labour costs, then the contract must be in writing and contain certain provisions in accordance with the requirements of the Department of Fair Trading.

2.5. Any works to be carried out by Council at the applicant’s cost need to be applied for in advance.

2.6. The Approved Building plans must be submitted to any Business Office of Sydney Water prior to commencement of any works.

2.7. Before you dig, call “Dial before you Dig” on 1100 (listen to the prompts) or facsimile 1300 652 077 (with your street no./name, side of street and distance from the nearest cross street) for underground utility services information for any excavation areas.

2.8. No variation to the approved design and external appearance of the building (including colour of materials) will be permitted without the approval of Council.

2.9. Separate requirements may apply to certain buildings (other than residential dwellings/outbuildings) under Federal Government Legislation entitled “The Disability Discrimination Act”. Further information is available from the Human Rights and Equal Opportunity Commission on 1800 021 199.

2.10. The proposed timber pergola shall be deleted.

2.11. Any damage to side boundary fences as a result of the demolition and construction process shall be repaired at the applicant’s expense in consultation with the adjoining neighbours.

2.12. The roof tiles are to be unglazed Marseilles pattern terra-cotta to match those on houses nearby.

2.13. That the second frosted window on the ground floor opposite the bathroom of proposed No 28 Woolcott Street be deleted from the plans.

S J Watts

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Citations

John Atra v Canterbury City Council [2004] NSWLEC 317

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CITATION:	John Atra v Canterbury City Council [2004] NSWLEC 317
PARTIES:	APPLICANT John Atra RESPONDENT Canterbury City Council
FILE NUMBER(S):	10171 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Status of the Draft Local Environmental Plan - Streetscape impact - Overshadowing.
LEGISLATION CITED:	Canterbury Planning Scheme Ordinance, (CPSO) - Draft Local Environmental Plan No 204, (DLEP) - Energy Smart Homes Policy - Development Control Plan No 37, (DCP37) - Development Control Plan No 32 - Notification Policy, (DCP32) - Single Unit Dwelling House Code, (Code) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:
DATES OF HEARING:	10/06/2004
DATE OF JUDGMENT:	06/24/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr M J Connell SOLICITORS Michell Sillar RESPONDENT Mr A J Seton SOLICITORS Marsdens Law Group

Acc.	Type of Contribution	Amount
711	Open Space Acquisition	$1607.10
712	Recreation Facilities	$676.54
713	Community Facilities and Services	$1718.65
714	Environmental Amenity Improvements	$447.96
715	Traffic Control and Management	$114.39
Total Contribution	$4564.64
717	Research, Monitoring & Administration fee (7% of the total contribution)	$319.52
Total Amount Payable	$4884.16 The contribution is to be paid to Council in full prior to the release of the Construction Certificate, (or for a development not involving building work, the contribution is to be paid to Council in full before the commencement of the activity on the site,) in accordance with the requirements of the Contributions Plan.