Kawkab Nassif v Holroyd City Council - [2004] NSWLEC 226

Land and Environment Court

of New South Wales

CITATION: Kawkab Nassif v Holroyd City Council [2004] NSWLEC 226

PARTIES:
APPLICANT
Mr Kawkab Nassif
RESPONDENT
Holroyd City Council

FILE NUMBER(S): 11388, 11389, 11390, 11391 and 11392 of 2003

CORAM: Watts C

KEY ISSUES: Development Application :- Character of the subdivision in the area
Non-Compliance of the subdivision with the frontage width
Character in the streetscape with garages taking up more than 50% of the width of the building
Inadequate area private open space for the rear four dwellings
Inadequate manoeuvring for vehicles into the garages at the rear
Solar access to rear courtyards.

LEGISLATION CITED: Holroyd Local Environmental Plan 1991, (HLEP)
Development Control Plan No 1 - Guidelines for Parking, (DCP1)
Development Control Plan No 4 - Guidelines for Dual Occupancy, Villa/Townhouse adn Integrated Housing Development, (DCP4)
Development Control Plan No 6 - Guidelines for Subdivision, (DCP6)
Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED:

DATES OF HEARING: 15/04/2004

DATE OF JUDGMENT: 04/30/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr C C Gough, solicitor
SOLICITOR
Storey and Gough
RESPONDENT
Mr A J Seton, solicitor
SOLICITOR
Marsdens

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
11388, 11389, 11390, 11391 and 11392 of 2003 Watts C 30 April 2004
Mr Kawkab Nassif
Applicant
v Holroyd Council
Respondent
Judgment
1 These appeals under s 97 of the Environmental Planning and Assessment Act 1979, are against the decision of the Holroyd City Council (the council) to refuse development applications to demolish the existing dwellings, Torrens title subdivide into four allotments, construct civil works including driveways, retaining walls and below-ground detention tanks, and erect eight dual occupancies on land at Lots 11 and 12, DP 13154 being Nos 86 - 88 Hampden Road, South Wentworthville.
2 I visited the land in company with the parties on the morning of the hearing 15 April 2004.
3 I have concluded that the application should succeed after being assessed under s 79C of the Environmental Planning and Assessment Act 1979 .
The land
4 The land is situated on the eastern side of Hampden Road, South Wentworthville and is a rectangular shaped allotment, with a combined frontage of 33.53m and a depth of 63.37m, and an area of 2,139m2.
5 The land has a fall from the southeast corner to the northwest corner of about 1m.
6 Erected on the land are two dwellings that are not listed as items of heritage. There is no significant vegetation on the land.
7 The area is characterised by single dwellings on large allotments. There are older style dwellings nearby.
8 To the north and abutting the land is a medium-density development containing eight units. To the south is a new two-storey dwelling. To the east and immediately adjoining are two lots of villa units. The eastern side of Hampden Road has been developed with single residences and is characterised by large lots of similar size and frontage to the subject land. On the western side, lots are smaller, but have a consistent frontage.

Relevant planning controls

Holroyd Local Environmental Plan 1991, (HLEP)
9 The subject land is zoned Residential 2(a) Zone under HLEP, which was gazetted on 15 November 1991 and in accordance with Clause 9 of the HLEP, the use of the land for the purpose of a dual occupancy development is permissible with consent.
10 Clause 9(3) of the HLEP states that, the council shall not grant consent to development unless the council is of the opinion that the carrying out of the development is consistent with the objectives of the zone.
11 The zone objectives of the Residential 2 (a) Zone as set out in Clause 9 of HLEP 1991 are as follows:
(a) to provide and maintain the amenity of a predominately low density living area and to enable sensitive infill medium density housing styles;
(b) to allow people to carry out a reasonable range of activities from their homes while maintaining neighbourhood amenity;
(c) to enable development for purposes other than residential only if it is compatible with the character of the living area and has a domestic scale and character; and
(d) to restrict development which is of a traffic generating, offensive, hazardous, noisy, intrusive or environmentally inappropriate nature.
12 Clause 5 of HLEP 1997 adopts certain definitions, and does not adopt the 1980 Model Provision for the purpose of defining a dual occupancy. The definition of 'Dual Occupancy' means:
2 dwellings on a single allotment of land, whether or not the dwellings are attached, where:
(a) The dwellings have the general appearance, character and scale of a dwelling-house or dwelling-houses; and
(b) The area of the allotment on which the dwellings are not situated is available for recreational use by the residents.

13 Subdivision of land is defined as having the same meaning as in the Environmental Planning and Assessment Act 1979 .
14 Clause 25 requires council’s consent for the carrying out of subdivision.
15 Clause 30 relates to medium density housing in Zone No 2(a). This clause states that the council shall not grant consent to development for the purposes of medium density housing on land within Zone 2(a) unless it is satisfied that:
(a) The development will not unreasonably deprive adjoining buildings of sunlight or privacy;
(b) The development will generally be compatible with its setting, having regard to the nature and use of adjoining buildings and to the streetscape;
(c) The design of the development will be compatible with the existing character of the neighbourhood; and
(d) The development will make a necessary contribution to the supply of housing in the City of Holroyd.

Development Control Plan No 1 - Guidelines for Parking, (DCP1)
16 DCP1 applies to the proposed development and carne into effect in 22 May 2002 and sets out the objectives and controls for off-street car parking. The objectives of DCP1 are:
1. To ensure that adequate and convenient off street parking facilities are provided for all vehicles generated by the various types of development.
2. To ensure that parking areas are readily accessible and useable and adequately provide for circulation and manoeuvring of vehicles.
3. To encourage the efficient flow of traffic through car parks to minimise the potential for pedestrian and vehicle conflict
4. To ensure that off-street parking facilities do not interfere with traffic flow and safety in adjacent streets or endanger pedestrian traffic on and off the site.
5. To ensure that parking areas and associated facilities are of an acceptable appearance by imposing construction standards and landscaping requirements.
6. To provide for adequate drainage, lighting and ventilation within car parking areas.

17 Clause 5.1 of DCP1 sets out the car parking requirements for specific land uses. The parking requirement for dual occupancy developments is as follows:
(a) One garage space per dwelling if the gross floor area is not greater than 110m2 or not exceeding two bedrooms.
(b) Two car parking spaces per dwelling if the gross floor area is or exceeds 100m2 or contains three or more bedrooms with at least one garage space per dwelling.
18 Parking in the case of each dwelling shall be separately accessible.
19 As each dwelling, (except Unit 4A which has two bedrooms), has three bedrooms and is greater than 110m2 in area, two car parking spaces are required for each of those dwellings. DCP1 does not state whether such spaces are to be provided behind the building line. It would be noted that four of the spaces are located in a stacked situation forward of the front building line.
Development Control Plan No 4 - Guidelines for Dual Occupancy, Villa/Townhouse and Integrated Housing Development, (DCP4)
20 DCP4 applies to the development and came into effect on 31 July 2002 and contains requirements for dual occupancy development, but this form of development would but for the savings provision be considered under DCP4(B). Clause 3 of DCP4 sets out the objectives:
(a) Providing controls for dual occupancy, villa/townhouse and integrated housing development.
(b) Setting reasonable environmental standards for solar access, privacy, noise, views, vehicular access, parking, trees and landscaping.

21 Other objectives of the DCP4 are:
(a) Provide controls which will lead to the production of dual occupancy, villa/ townhouse and integrated housing which is environmentally compatible with adjoining residential development be it detached or otherwise.
(b) Provide for an alternate one and two storey housing form with the City of Holroyd that is compatible and sympathetic with conventional detached dwelling-houses while maintaining the existing character of residential neighbourhoods.
(c) Assist in optimising the utilisation of land resources.
(d) Widen the choice of housing forms within the City available to people.
(e) Provide flexibility to encourage innovation, resulting in a more pleasing and harmonious appearance for residential areas.
(f) Provide a supply of housing to suit the needs of those members of the community for whom traditional detached housing is not the most appropriate type.
(g) Supply flexible housing to provide for modifications to meet changing lifestyles and mobility.
22 The relevant sections of DCP4 are:

6 – Definitions: Dual Occupancy means 2 dwellings on a single allotment of land, whether or not the dwellings area attached, where:

a) The dwellings have the general appearance, character and scale of a dwelling house or dwelling-houses; and
b) The area of the allotment on which the dwellings are not situated is available for recreational use by the residents.

7 - Dual Occupancy and Integrated Development: Two-storey development will only be considered where the following circumstances apply:

a) Along the principal street frontage where there are no adverse privacy and overshadowing impacts and where it is compatible with the existing streetscape.
b) The second storey must be well integrated into the design of the development avoiding overbearing bulk and scale in relation to adjoining properties (Refer to Section 12).
c) In the case of dual occupancy development on corner sites, the second dwelling having frontage to the side street shall be of single storey construction only.
d) Development of a two storey dual occupancy on the rear lot of a corner site, which was previously part of one allotment (as at 27 January 1999), shall not be permitted.

8 - Site Analysis: Generally: This part of the document states that good design goes beyond the application of controls outlined below. Careful appraisal and systematic analysis of a site, of its relationship with adjoining development and consideration of any natural and man-made constraints are essential starting points. This section then lists a number of matters that need to be considered as follows:

(a) Slope orientation of land: sunlight constraints, overshadowing from adjoining buildings
(b) Energy efficient design of subdivision and dwellings: development which optimises efficient use and conservation of energy
(c) Solar and daylight access to adjoining dwellings: potential to overshadow adjoining buildings or private open space
(d) Adequate visual and acoustic privacy to each dwelling: location and height of windows, existing noise sources such as swimming pools, roads and driveways
(e) Relationship to adjoining dwellings: materials, height, location of windows and private open space, any special features such as pools, large trees, type of fencing.
(f) Existing streetscape character: need for new infill development to be compatible with existing streetscape, achieved by consistency with established building scale, form, alignment, choice of materials and detailing.

10 - Allotment size and site requirements: Objectives:

a) Encourage variety and choice in housing forms by providing for a broad range of dwelling sizes, regardless of project size.
b) Meet projected requirements of people with differing housing needs.
c) Ensure that developments are compatible with both the established character and the desired future amenity of particular residential areas.
d) Provide sufficient area and dimensions for each allotment to enable the siting and construction of a dwelling and ancillary outbuildings, the provision of private outdoor space with regard to solar and daylight access and convenient vehicle access and parking where required.

Controls: The minimum lot size for an attached dual occupancy is 400m2.

11 – Density: Objectives
(a) Provide a low-medium density residential environment, which will accommodate a variety of building forms.
Controls: Floor Space Ratio: The ratio of the gross floor space of any development to the area of the allotment/site on which they are erected (floor space ratio or FSR) shall not exceed 0.5:1 for dual occupancy development.

12 – Setbacks: Objectives:

a) Permit flexibility in the siting of buildings.
b) Minimise adverse impacts on adjacent and adjoining properties.
c) Provide for a landscaped setting for residential buildings.

12.2 - Controls - setbacks from road reserve

a) The minimum setback is 6m;
b) A building height plane of 45° from the horizontal as measured at a height of 3.5m on the minimum setback from street frontages shall apply.
12.3 - Controls - Side and rear setbacks

Dual Occupancy
A minimum side and rear setback of 1 m shall apply for detached dual occupancy.
For attached dual occupancy the minimum setback is 2.25m x H/4, where H is the height of the ceiling of the topmost storey above natural ground level.

13 - Building Height: Objectives:

a) Encourage development that is compatible with the character and amenity of surrounding development;
b) Optimise streetscape quality.

Controls - the maximum height for single storey building is 3.6m to the ceiling and 7m to the ridge above natural ground. For two-storey buildings 7.2m to the ceiling of the topmost storey and 10m to the ridge.

14 - Open Space: Objectives:

a) To provide outdoor living space as an extension to the function of the main living area of the dwelling for the enjoyment of residents;
b) To provide private outdoor living space which receives a reasonable quantity of sunshine during all months of the year.
c) To provide a service for clothes drying.

Private Courtyard Space:
Single-storey dwellings
An unbuilt upon courtyard area shall be provided for each dwelling of at least 30% of the total floor area of the dwelling plus 15m2.
Two-storey dwellings
An unbuilt upon rear courtyard area shall be provided for each dwelling at least 50% of the total floor area of the dwelling plus 15m2. The minimum requirements for private open space in connection with one and two storey development are:
Courtyard Design
Private courtyards shall be provided at ground level in a single tract with minimum dimension of not less than 3m. Not less than half of the courtyard area shall, at some time during the day, between the core hours of 9.00am to 3.00pm midwinter, be capable of receiving direct sunlight at the same time.
The principal part of the courtyard shall be contiguous to a main living area of the dwelling for which it is provided and shall have a minimum dimension of 5m.

Fencing of rear courtyards
Rear private open space/courtyard areas shall be enclosed with a wall or fence, minimum height of 1.8m.
External access to rear courtyards
Rear private open space areas are to have external access: either through an associated garage or directly from a common area in order to facilitate maintenance of the courtyard and storage of garage bins.

15 - Vehicle Access and Parking: Objectives:

a) To provide convenient off-street parking for residents and, where necessary, visitors within each development;
b) Allow for service vehicle access where necessary;
c) Ensure vehicular and pedestrian safety;
d) Foster access design to form part of the overall landscape design.

Controls:

(a) Two car parking spaces per dwelling if the gross floor area exceeds 110m2 or contains three or more bedrooms with at least one garage space per dwelling. Parking in the case of each dwelling shall be separately accessible.

16 - Solar Access and Energy Conservation
Objectives

a) Provide reasonable access to sunlight for living spaces within buildings and open spaces around buildings.
b) Allow for active solar energy devices such as domestic water and pool heaters.
c) Encourage the siting, design and construction of dwellings that will receive the maximum benefit from solar energy and provide for conservation measures.

Controls:

New development should have reason access to daylight and sunlight and should not unreasonably overshadow adjoining properties. At the 22 June it is reasonable to expect that new development should not substantially obstruct sunlight to north facing habitable room windows between 9.00am and 3.00pm.
The shadow effect, either of the proposed building on existing buildings, or of existing buildings on the proposed building, must be such that habitable rooms are not thereby prevented from gaining a minimum of 4 hours sunlight for rooms facing north, during midwinter between the hours of 9.00am and 3.00pm.

24 - Safety and Security: Objectives: To create an environment which is safe and secure from theft, personal threat and accidents.
Controls: All areas in a development should be clearly recognisable as either private, common or public space. Surveillance from dwellings is important for the safety of residents and passing pedestrians. Where possible, a dwelling with street frontage should have an outlook to the footpath.

Development Control Plan No 6 – Guidelines for Subdivision, (DCP6)
23 DCP6 came into effect on 20 February 1998 and has the objectives to:
· Provide detailed guidance for the subdivision of land in residential, commercial and industrial areas.
· Permit urban subdivisions that provide a safe and convenient environment for pedestrians, cyclists and motorists.
· Provide subdivision layouts that are compatible with and acceptable for the intended use of each lot.
· Allow subdivision layouts that provide acceptable living and working spaces.

24 Sub-Clause 3.2 of DCP6 has objectives relating to subdivision in residential zones to:
· Facilitate greater diversity in housing choice;
· Strike a balance between cost effectiveness and recurrent costs to Council and the community;
· Provide an appropriate level of amenity for new and existing residential area;
· Ensure appropriate levels of service are achieved for utilities and road network;
· Optimise existing infrastructure;
· Ensure environmental constraints and impacts, such as flooding, drainage, vegetation, erosion etc are adequately considered;
· Encourage innovative design;
· Encourage energy efficiency.

25 Clause 11 of DCP6 relates to controls for subdivision in all zones and requires a site analysis, which addresses:
· Slope and orientation of land;
· Opportunities for solar access and daylight access to future development;
· Design of roads, accessways and individual site access;
· Possible need to retain existing subdivision character;
· Adequacy of each site considering relevant development standards such as setbacks, car parking, landscaping;
· The relationship of the subdivision layout to adjacent land suitable for subdivision.

26 Clause 17 of DCP6 relates to controls for subdivision in residential zones, namely to:
· Encourage energy efficient subdivision which maximises solar access, meets requirements for daylight and solar radiation and makes efficient use of roads and services;

· Provide for each allotment sufficient area and dimensions to enable construction of a dwelling and ancillary outbuildings, the provision of private outdoor space with regard to solar and daylight access and convenient vehicle access and parking where required.

27 Sub-Clause 17.2 of DCP6 relates to general controls and states that the allotment orientation should ensure that living and private open space areas of any dwelling can be orientated to the north and that dwellings can be positioned so that the possible overshadowing impact on existing or future adjoining buildings can be minimised. It also states that special care should be taken in the configuration of allotments to:
· Minimise boundary retaining walls;
· Minimise potential overlooking;
· Maintain solar access, where slopes face south. A greater distance between dwellings will generally be required to achieve the same solar access as on level sites or north facing slopes.

28 Sub-Clause 17.3 of DCP6 [Note: Exhibit 6 pp 20-1] relates to allotment sizes and dimensions. The council requires a rectangular building envelope of about 12m x 6m, and a setback of 6m to the rear boundary. The required minimum allotment size is 450m2 and each lot is to have a satisfactory ratio to depth frontage, having regard to the purpose for which the allotment is to be used. The area of a battleaxe shaped allotment shall exclude the area of the access corridor.
29 Under DCP6 cl 17.3 allotments should have a minimum width of 14m at the building line, as in the case of battleaxe allotments a minimum dimension of 14m in any direction. It states that this width has been selected because:
· It allows some variety in the choice of project house designs;
· It enables some off-street parking; and
· It reduces road construction and servicing costs for each residential allotment thus created.
30 An allotment should not be less than 27m in depth to ensure that there is some flexibility in the choice of housing design and siting of a dwelling house as well as suitable space available for other activities normally associated with the use of a dwelling house. The council's minimum width for a shared corridor is 6m, with no more than two allotments being served.
Development Control Plan No 4(B) – Guidelines for Dual Occupancy Development, (DCP4(B))
31 DCP4(B) came into effect in 17 September 2003.
32 DCP4(B) refers to the Residential Development Strategy that was adopted by Council in 2001. It states that the council determined that although there is a need to provide enough housing for the expanding population of Sydney, the quality of life of existing residents should not decline as a result.
33 DCP4(B) has a savings provision, which states that it applies to all development applications lodged on or after 10 April 2003. It sets out objectives and controls for such developments. The objectives of DCP4(B) are to ensure that for a given development proposal, the following standards are met:
· to provide design controls which will lead t the provision of environmentally sensitive dual occupancy development;
· to achieve a form of building which is similar in scale and appearance to a detached dwelling house;
· to create quality urban design which is based upon a comprehensive site and streetscape analysis and achieves the following:
Ø positive contributions to the existing streetscape;
Ø building designs which minimise adverse impacts on neighbours;
Ø which provides a high level of amenity for residents in the neighbourhood;
Ø buildings and private open space which provides a high level of amenity for future residents; and
Ø new buildings in a landscaped setting.

The proposal and its history
34 The application for subdivision (2002/887) was submitted to the council on 21 March 2002. After discussions with the officers of the council amended plans were submitted for the subdivision and four development applications (2002/998 - 2002/1001, inclusive) were lodged with the respondent council on 19 April 2002.
35 Appeal No 11391 of 2003 relates to DA 2002/ 887 - Four Lot Subdivision, [Note: Exhibit C Subdivision Plan]. The proposed subdivision as described in the Statement of Environmental Effects, but subsequently amended, is for the following:
· Subdivision of lot 11 (No 86) into two lots having areas of 450.4m2 (Lot 1) and 457.9m2 (Lot 2);
· Subdivision of Lot 12 (No 88) into two lots having areas of 451.3m2 (Lot 3) and 450m2 (Lot 4);
· Access to Lots 2 and 4 would be along a 6m wide combined right-of-carriageway, central to the development and having an area of 329.4m2. An easement to drain water is also proposed along this right-of-way; and
· All proposed allotments have widths less than 14m and have a depth greater than 31m.
36 DA's 2002/ 998 - 2002/ 1001 - Dual Occupancies: The applications propose two attached dual occupancies on each of the four lots created by DA 2002/ 887. Four of the dual occupancies are two-storeys high and front Hampden Road (Lots 1 and 3).
37 Whilst the other four dual occupancies are single-storey and are proposed on Lot 2 and 4, respectively.
38 All dwellings except one (Unit 4A) contain three bedrooms, kitchens, bathrooms and laundries. All dual occupancies except Unit 4A (81m2) are in excess of 100m2 in floor area. The front four dual occupancies have a single garage, with a stacked space located in front of the garage and generally in front of the building setback. These dwellings are setback 6m from Hampden Road, although there is an awning over the garage door that is setback 4.2m from the front alignment.
39 The rear four dual occupancies except Unit 4A also have a single garage, with a stacked drive-through space. These dwellings have various side and rear boundary setbacks.
40 Each dual-occupancy would provide private open space with drying areas and landscaped areas.
41 The dwellings are to be constructed of face brick, with concrete roof tiles.
42 The floor areas of each dwelling is as follows:
· Unit 1A - 112m2
· Unit 1B - 112m2
· Unit 2A - 103.6m2
· Unit 2B - 105m2
· Unit 3A - 112m2
· Unit 3B - 113m2
· Unit 4A - 81m2
· Unit 4B - 103.6m2
Notification
43 The application was notified to nearby owners and occupants and the council received no objections.

The council’s decision
44 On about 4 February 2002 the council resolved to refuse the subdivision application (DA2002/887) for the following reasons:
1. Non-compliance with the Development Control Plan No 6 'Guidelines for Subdivision' (Pursuant to Section 79C (1)(a)(iii) of the Environmental Planning and Assessment Act 1979 with regard to the following:
i. Part 17.3 Allotment sizes and dimensions
ii. Allotments should have a minimum width of 14 metres at the building line. Each of the proposed allotments does not achieve the minimum 14 metres required.
2. Based on the above deficiencies, approval of the proposed development would not be in the public interest (Pursuant to Section 79C (1)(e) of the Environmental Planning and Assessment Act 1979.
45 By notice dated 18 February 2003 the council refused all the applications.
46 On 17 March 2003 s 82A reviews were also refused.

The hearing
47 The appeals were filed on 13 November 2003.
48 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr M J Brown, consultant town planner.
49 On behalf of the applicant evidence was given by:
· Mr D Jones, consultant town planner; and
· Mr C Hazell, consultant traffic engineer.

The issues
50 In respect of subdivision application the council filed six issues on 19 December 2003. Other statements of issues were files in respect of each dual occupancy application.
51 On 19 December 2003, in respect of Lot 1, the northernmost front lot, the council filed a statement of issues:
1. The proposed development, when considered together with the three development applications for dual occupancy development on adjacent land, is incompatible with the existing character of the locality insofar as it constitutes an over development of the land in terms of density, bulk and scale and does not contribute to an attractive residential environment.
2. The proposed development is unacceptable in so far as it exceeds the maximum floor space ratio required by:
(i) Clause 11.2 of Holroyd Development Control Plan No. 4 ("Guidelines for Villa/Townhouse and Integrated Housing Development") ("DCP 4"), in that 0.51:1 is provided where 0.50:1 is required;
(ii) Clause 4 of Holroyd Development Control Plan No. 4 (B) "Guidelines for Dual Occupancy Development" ("DCP4B"), in that a floor space ratio of 0.51:1 is provided where 0.51:1 is required.
3. The proposed development is unacceptable in that it is inconsistent with Clause 14.3 of DCP 4, particularly in terms of the provision of 69.87m2 of private open space for Unit 1A, where 71.8m2 is required.
4. The proposed development is unacceptable in terms of the provision of a building height plane of greater than 45 degrees, where less than 45 degrees is required pursuant to Clause 12.2 of DCP4.
5. The proposed development is unacceptable in that it is inconsistent with Clause 14.3 of DCP 4, in terms of the provision of a principle courtyard that is not contiguous with the internal area of the proposed dwelling.
6. The proposed development is unacceptable in that it is inconsistent with Clause 24 of DCP 4, in terms of the provision of inadequate garage and internal safety and security.
7. The proposed development is unacceptable in that it is inconsistent with Clause 5.1(b) of DCP 4(B), in terms of the provision of a 450.4 m2 area of land upon which the proposed dwelling is to be constructed, where 600 m2 site area is required.
8. The proposed development is unacceptable in that it is inconsistent with Clause 8.1 of DCP 4(B), in terms of the proposal to pave 46% of the front setback area, where a paved area of less than 40% is required.
9. The proposed development is unacceptable in that it is inconsistent with Clause 10.1 of DCP 4(B), particularly in terms of the provision of a building height plane of greater than 45 degrees, where less than 45 degrees is required.
10. The proposed development is unacceptable in that it is inconsistent with Clause 10.1 of DCP 4(B), particularly in terms of the first floor gross roofed area being 107.85% of the ground floor gross roofed area, where 66% is required.
11. The proposed development is unacceptable in that it is inconsistent with Clause 14.1 of DCP 4(B), particularly in terms of the provision of 61.17 m2 private open space for Unit 1A, where 71.8m2 is required, and the provision of 64.74 m2 private open space for Unit 1B where 72.8 m2 is required.
12. The proposed development is unacceptable in that it is inconsistent with Clause 14.1 of DCP 4(B), in terms of the provision of a principle courtyard that is not contiguous with the internal area of the proposed dwelling.
13. The proposed development is unacceptable in that it is inconsistent with Clause 16.1 of DCP 4(B), particularly in terms of:
a. the provision of a parking space with a length of 5.5 metres, where 6 metres is required; and
b. the provision for car parking spaces that are 2.95 metres wide, where 3 metres is required; and
c. the proposal for a garage that is greater than 50% of the width of the proposed dwelling; and
d. the protrusion of the proposed garage being 5.5 metres, where a garage protrusion of less than 1.5 metres is required.
14. The proposed development is unacceptable in that it is inconsistent with Clause 16.2 of DCP 4(B), in terms of the provision of no storage space, where 8 metres cubed is required.
15. The proposed development is unacceptable in that it is inconsistent with Clause 17.1 of DCP 4(B), in terms of the failure to provide a NatHERS rating.
16. Whether adequate provision of surveillance is provided particularly in terms of the
a. garage protrusion and the poor internal and natural surveillance, as required by
b. Clause 20.2 of DCP 4(B).
17. The proposed development is unacceptable in that it is inconsistent with Clause 19.1 of DCP 4(B), particularly in terms of the failure to provide one rain water tank
a. per dwelling.
18. The proposed development is unacceptable in that it is inconsistent with Clause 23.3 of DCP 4(B), particularly in terms of the proposal to carry out fill on the land of greater than 300mm.
19. The proposed development is unacceptable in that it is inconsistent with Clause 23.4 of DCP 4(B) in terms of the provision of finished floor levels more than 500mm above ground level.
52 The following emerged as the salient issues:
· Character of the subdivision in the area;
· Non-compliance of the subdivision with the frontage width;
· Character in the streetscape with garages taking up more than 50% of the width of the building;
· Inadequate area private open space for the rear four dwellings;
· Inadequate manoeuvring for vehicles into the garages at the rear; and
· Solar access to rear courtyards.
The evidence and findings

Character of the subdivision in the area
53 Mr Brown stated there is a consistency of subdivision layout that has occurred over time in this area. He pointed to the medium-density residential development abutting the land to the north, which is a consolidated lot, and unlike what is proposed. He considered the proposal, which incorporates two battle-axe lots at the rear would not be consistent with other blocks in the vicinity. However, he conceded that there is one battle-axe block in the nearby cul-de-sac.
54 He considered over time, that the future character would change to be more like that of a medium-density area. He cited the controls of DCP4(B), which have been adopted by the council, as requiring the minimum size of lots to be 600m2 for three bedroom units and which would result in development more consistent with the eastern side of Hampden Road. He also agreed that if two x two bedroom villas are proposed under that instrument the minimum lot size would remain 450m2 and similar to that proposed.
55 Mr Jones stated there is “…not a strong degree of regularity” of development in the area and in fact, “…is quite diverse in frontage and depths”. There is a town house villa development nearby, but that is “…not a grid subdivision”. He maintained the proposal would not have a significant adverse impact on development patterns, as there is no special character in the area and the proposal would generally reflect diversity.
56 Mr Gough submitted for the applicant, that under DCP6 there is no “directed” requirement to maintain existing character of the streetscape. He submitted that subdivision in one sense could be seen as “…but a line on the ground”. He submitted that DCP6 at p 19 sets out the objectives and character is not included. He sought to dismiss the evidence of Mr Brown, who had commented on a consistency in subdivision pattern in the aerial photograph and, submitted, “…one does not read that from the air”. He submitted that from Hampden Road, the proposal would appear as two x two-storey dwellings. The medium density housing development abutting to the north is almost identical in the front layout, to that proposed. That is the type of development that one might expect, whether it be called dual occupancy or medium density, he submitted.
57 Mr Seton submitted for the respondent, that this is a large site and the proposal should comply in all respects with the requirements of DCP6. The ‘character of the area’ he submitted includes the existing and likely future form of development. He referred to the evidence of Mr Jones that this land would be capable of accommodating residential development but the proposal, on which he relies, would not comply in a number of respects. He referred the Court to the couoncil’s planning assessment of the proposal against the requirements of DCP4 and DCP4(B) [Note: Exhibit 8 Fols 44-47, Bundle of documents]. He stressed that Mr Brown was concerned about a number of aspects of the design, including natural surveillance of the rear units.
58 I accept the evidence of Mr Jones and I am persuaded by the submissions of Mr Gough, that the proposal with allotments sizes in excess of 450m2 and with two x two-storey dwellings proposed across the double-width block would be sympathetic to the existing and likely future character of the area. In this regard I note DCP4(B) would allow lots of 450m2 and similar to that proposed. I would not refuse the application for this reason.

Non-compliance of the subdivision with the frontage width
59 Mr Brown stated the non-compliance with the frontage width requirement of DCP6 is small but added to the other non-compliances, would warrant refusal of the subdivision application.
60 Mr Jones stated that the proposed allotments would be of sufficient frontage width to accommodate residential development and that the non-compliance with the frontage width is insignificant. He stated that the other non-compliances are: the minor intrusion into the 45-degree height plane, the non-compliant courtyard areas if the patios are included in built-upon area and the marginal non-compliances with the eastern setback of the southeastern town house 4B. He considered the extent of the non-compliances to be minimal, and not reason to refuse the applications.
61 Mr Gough submitted that the small deficiency in frontage width would not be able to be detected from the street by the passer-by. There would be no front fence proposed and one could redo the subdivision to take reciprocal rights-of-way over the central shared corridor to make up the minor deficiency. The actual non-compliance he submitted “…is minimal as stated by Mr Jones”. The battle-axe nature of the proposal would not be visible from the street, he submitted.
62 The underlying purpose of the 14m minimum width at the building line development requirement in DCP6 is stated as being to allow some variety in building design, to enable off-street parking to be provided, reduce road construction and servicing costs by maintaining a relatively short frontage. [Note: Exhibit 6 p 21]. There was no evidence to suggest that the council has not consistently applied the 14m requirement.
63 The proposed departure from the required minimum frontage width would be 235mm. This non-compliance or departure from the requirement would not be inconsistent with its aims, and in particular would not tend to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979. The proposed frontage width would allow some variety in building design, enable off-street parking to be provided and reduce road construction and servicing costs by maintaining a relatively short frontage. Thus, I am satisfied that compliance with the requirement would not be unreasonable or unnecessary in the circumstances of the case, and the departure is well founded. I would not refuse the applications for this reason.

Character in the streetscape with garages taking up more than 50% of the width of the building
64 Mr Gough submitted that this aspect was not raised as a planning issue.
65 However, Mr Seton submitted that it was a matter of concern as, the garages, which are projecting forward of the main building, would dominate the streetscape. He submitted that if DCP4(B) were consistently applied in the future, the proposed would not be the chosen design. He was also critical of the design of the ‘gun barrel’ driveway to the rear. He submitted that although there would be some meandering of the pavement within the shared corridor, this would not affect the line-of-sight to the rear.
66 Mr Gough submitted that this is not an issue in the case since, as I interpret his submissions, it would only arise under Issue 13d and under DCP4(B), which instrument does not apply by reason of the savings clause. So I have given this issue little weight. However, on merit I am satisfied that the proposal would present to the street as two dwelling houses with garages facing the street, similar in form to the medium density development to the north. I accept the submission of Mr Gough that the central shared corridor adds to the openness of the front gardens and the garages would be seen in that context. Also the façade of each of the pairs of the garages is proposed to be staggered in plan with a broken hipped roof and this would add to the interest in the façade.

67 The width of the proposed garages would be greater than 50% of the width of the proposed dwelling; however as a proportion of the total width of the frontage of the building the garages would be around 57% (taken overall of the elevation) and of the site would be around 40%. I would not refuse the application for this reason.

Inadequate area private open space for the rear four dwellings
68 The requirement under DCP4 for unbuilt-upon rear private courtyard space for two-storey dwellings is at least 50% of the total floor area of the dwelling plus 15m2, [Note: Exhibit 5 p13]. Thus for the two-storied Unit 1A with a total floor area of 112m2 the unbuilt-upon private courtyard space would be 71m2, and that provided for Unit 1A would be 69.87m2, on the basis that the patios were included in the built-up area. Other units might be similarly deficient of private courtyard space.
69 Mr Brown agreed that if the paved patio area were included in the calculation the area would meet the standard under DCP4. However, he stated that as defined, the unbuilt-upon area would exclude the patio.
70 Mr Gough submitted that the non-compliance of private open space would be minimal and patios are functionally important in courtyards.
71 Mr Seton submitted that the courtyards are deficient in the amount of soft landscaping if the patios are included.
72 There does not appear to be a definition of unbuilt-upon area in DCP4, [Note: Exhibit 5 pp 4-6]. I consider that the patio is part of the open-air recreation facilities referred to in the definition of ‘landscaped area’. If the patio were included as ‘landscaped area’, the unbuilt-upon rear private courtyard space would comply. If it is excluded the deficiency is not so great as to be a reason to refuse the application.

Inadequate manoeuvring for vehicles into the garages at the rear
73 Mr Hazell addressed the concerns of Mr Brown in respect of the manoeuvring of vehicles into and out of the garages on Units 4A. Despite this Mr Brown was of the view that the manoeuvring area would be still ‘tight’.
74 Mr Gough submitted that the council has not provided any traffic evidence in this regard. The turning circles indicate a generous assessment of the turning areas and the terms of the right-of-way would not permit parking so potential vehicular conflict would not arise.
75 Mr Seton submitted that the manoeuvring area between Units 4A, 4B, 2A and 2B would be inadequate and that the application of the 85%ile template showed that the area would be ‘tight’. It was conceded by Mr Hazell that if a vehicle were parked in front of the garage the access would be restricted but still workable and this is unlikely to happen regularly.
76 I accept the evidence of Mr Hazell that the turning areas are adequate and I would not refuse the application for this reason.

Solar access to rear courtyards
77 Mr Brown stated that the solar access to the courtyards complies with the requirements of cl 14.3 of DCP4 but is still unacceptable and provides poor amenity. At 12.00-midday the solar diagrams indicate that 50% of the private open space of the floor of the courtyards would be in sunlight and that it may be assumed that the upper part of people’s bodies when people are standing within the courtyards would be in sunlight for a greater period of the day.
78 Mr Jones stated that the DCP4 is specific on the amount of sunlight and the development complies, and he added that it is not just at 12.00midday that reasonable sunlight is available. It is always difficult to get full sunlight on the ground but this is achieved here. Under DCP4 an adequate amount of sunlight would be available to the courtyards.
79 Mr Gough submitted that adequate sunlight would be available in the courtyards of the proposal on the winter solstice. He referred to the evidence of Mr Jones that adequate sunlight would be provided and the upper parts of bodies would receive sunlight for longer during the day. He submitted that the application is acceptable in this regard and should be approved.
80 Mr Seton submitted that Mr Brown was concerned for solar access to the dwellings to the rear and the evidence of the applicant is entirely inadequate. He also submitted that Mr Jones conceded that he had not calculated the number of hours of sunlight during the day in midwinter.
81 He submitted that Mr Brown considers the proposal to be inappropriate and that the application pushes the controls to the limit. He submitted that overall, these applications should be refused, as they would not promote ‘good design’ or use of a scarce resource such as land in this area.
82 I am more than satisfied on the evidence of both the applicant and the respondent that the proposal is one that would provide for adequate sunlight in midwinter. I would not refuse the applications for this reason.
83 For the above reasons, the appeals are upheld.

Conditions
84 The conditions are those in Exhibit 9.

Orders
85 My orders are:
1. The appeals under s 97 of the Environmental Planning and Assessment Act 1979 are upheld.
2. Development application No DA 2002/887 lodged with the respondent council on 21 March 2002 in proceedings No 11391 of 2003 to demolish the existing dwellings, Torrens title subdivide into four allotments, construct civil works including driveways, retaining walls and below-ground detention tanks, at Lots 11 and 12, DP 13154 being Nos 86 - 88 Hampden Road, South Wentworthville, is approved subject to Conditions 1 to 72 in Annexure A.
3. Development applications No DA’s 2002/998, 2002/999, 2002/1000 & 2002/1001 in proceedings Nos 11388, (Lot 1), 11389, (Lot 3), 11390, (Lot 2), and 11392 of 2003, (Lot 4), respectively, to erect dual occupancies at Lots 11 and 12, DP 13154 being Nos 86 - 88 Hampden Road, South Wentworthville, is approved subject to the conditions in the various annexures.
4. The exhibits with the exception of Exhibits B, C, D, E, F, G, H, J, L, M, N, O, P, 1 and 9 are returned.
S J Watts
Commissioner of the Court
sw

Appeal No: 11391 of 2003

Conditions of development consent

Annexure A

Mr Kawkab Nassif

Holroyd City Council

Development Consent in respect of Nos 86-88 Hampden Road,

South Wentworthville subdivision (DA 887/ 2002)

Proceedings No 11391 of 2003

PRELIMINARY

1. This consent shall lapse if the above development is not commenced within two (2) years of the date of grant of consent. Any person entitled to act on the consent may apply to Council at least thirty (30) days before this two-year period expires, for an extension of one year.

2. Development shall take place generally in accordance with the following plans:-

Appointment of Council or a Private Certifier as the Principal Certifying Authority (PCA)

3. Either Council or a Private Certifier is to be appointed as the Principal Certifying Authority (PCA) for the development in accordance with Section 109E of the Act.

Accordingly, wherever reference is made to the Principal Certifying Authority in this Consent, it refers to Council or the Private Certifier as chosen by you.

Note: Once you have chosen either Council or a Private Certifier as the PCA, you cannot change from one to the other, or from one Private Certifier or another, without the approval of DIPNR.

4. The applicant shall consult with, as required:

5. The proposed structure/s are to be located clear of existing Council easements. Special footings will be required where the proposed/existing structures are adjacent to a drainage easement. The footings shall be taken down to the invert level of the existing drainage structure or to solid rock, whichever is the lesser. The footing depth may decrease by 500mm for every 1000mm increment in distance the footing is from the easement boundary.

The footing system is to be designed by a practising professional structural engineer.

6. Building materials, builders sheds, waste bins, site fencing, gates or any material of any description shall not be left or placed on any footway, road or nature strip. Footways and nature strips shall be maintained, including the cutting of vegetation, so as not to become unsightly or a hazard for pedestrians. Offenders will be prosecuted.

Demolition

7. In the event that demolition is to occur prior to the issue/release of a Construction Certificate, all relevant fees and bonds such as the demolition inspection fee, kerb & gutter and tree protection bonds shall be paid in full to Council prior to demolition commencing (as per the relevant conditions elsewhere in this Development Consent). Furthermore, the applicant/developer is to ensure that all relevant conditions in this Development Consent relating to the protection of the site, adjoining lands and trees are adhered to in full prior to commencement of any demolition works.

8. Permission is granted for the demolition of all structures currently existing on the property; subject to strict compliance with the following:-

a) Demolition is to be carried out in accordance with the applicable provisions of Australian Standard AS2601 1991 - The Demolition of Structures. Note : Developers are reminded that WorkCover requires that all plant and equipment used in demolition work must comply with the relevant Australian Standards and manufacturer specifications.
b) The developer is to notify owners and occupiers of premises on either side, opposite and at the rear of the development site five (5) working days prior to demolition. Such notification is to be a clearly written on A4 size paper giving the date demolition will commence and be placed in the letterbox of every premises (including every residential flat or unit, if any) either side, immediately at the rear of, and directly opposite the demolition site. The demolition must not commence prior to the date which has been notified in accordance with the conditions in the notification.
c) Five (5) working days (i.e., Monday to Friday with the exclusion of Public Holidays) notice in writing is to be given to Holroyd City Council for inspection prior to the commencement of works. Such written notice is to include the date when demolition will commence and details of the name, address, business hours contact telephone number and licence number of the demolisher. Persons undertaking demolition work should obtain the relevant licence with WorkCover. Works are not to commence prior to inspection being carried out. Works must also not commence prior to the date nominated.
d) On the first day of demolition, work is not to commence until the Principal Certifying Authority (PCA) has inspected the site. Should the building to be demolished be found to be wholly or partly clad with asbestos cement, approval to commence demolition will not be given until the PCA is satisfied that all measures are in place so as to comply with WorkCover’s “Your Guide to Working with Asbestos”, a copy of which accompanies this Development Consent. All demolition works must at all times comply with WorkCover’s “Your Guide to Working with Asbestos”.
e) On demolition sites where buildings to be demolished contain asbestos cement, a standard commercially manufactured sign containing the words “DANGER ASBESTOS REMOVAL IN PROGRESS” measuring not less than 400mm x 300mm is to be erected in a prominent visible position on the site to the satisfaction of Council’s officers. Advice on the availability of these signs can be obtained by telephoning Council's Customer Service Centre during business hours on 9840 9840. The sign to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos cement has been removed from the site to an approved waste facility. This condition is imposed for the purpose of worker and public safety and to ensure compliance with Clause 259(2)(c) of the Occupational Health and Safety Regulation 2001.
f) Demolition shall not commence until all trees required to be retained/transplanted are protected in accordance with those conditions stipulated under “Prior to Works Commencing” in this Consent.
g) All previously connected services are to be appropriately disconnected as part of the demolition works. The applicant is obliged to consult with the various service authorities regarding their requirements for the disconnection of services.
h) Demolition works involving the removal and disposal of asbestos cement must only be undertaken by contractors who hold a current WorkCover “Demolition Licence” and a current WorkCover “Class 2 (Restricted) Asbestos Licence”.
i) Demolition is to be completed within five (5) days of commencement at which time the applicant shall notify the Certifying Authority.
j) Demolition works are restricted to Monday to Friday between the hours of 7.00am to 6.00pm. No demolition works are to be undertaken on Saturdays, Sundays or Public Holidays.
k) Protective fencing is to be installed to prevent public access to the site.
l) Where materials containing asbestos cement are to be removed demolition is to be carried out by licensed contractors experienced with asbestos removal.
m) All asbestos laden waste, including asbestos cement flat and corrugated sheets must be disposed of at a tipping facility licensed by the Environment Protection Authority (EPA).

NOTE : The person responsible for disposing of the above asbestos waste is to telephone the EPA on (02) 9995 555 or Council’s Waste Officer on (02) 9840 9892 to determine the location of a tip licensed to receive asbestos. Upon completion of tipping operations and within fourteen (14) days, the applicant must lodge with Council, all receipts issued by the receiving tip as evidence of proper disposal.

n) Before demolition operations begin, the property shall be connected to the sewer of Sydney Water to which a pedestal pan shall be temporarily connected for the use as the employees’ toilet service during demolition operations.
o) After completion, the applicant shall notify the Principal Certifying Authority within seven (7) days to assess the site and ensure compliance with AS2601.
p) Within fourteen (14) days of completion of demolition, the applicant shall submit a signed statement to the Principal Certifying Authority verifying that demolition work and recycling of materials was undertaken in compliance with the Waste Management Plan prepared in accordance with DCP No. 35 “Guidelines for Planning for Less Waste”. The Certifying Authority is to submit a copy of the statement to Council.
In reviewing such documentation Council will require the provision of actual weighbridge receipts for the recycling/disposal of all materials.

9. Payment of $145.50 fee for inspection by Council of the demolition site prior to commencement of any demolition works.

PRIOR TO ISSUE/RELEASE OF CONSTRUCTION CERTIFICATE

The following conditions must be complied with prior to the issue of a Construction Certificate. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications which accompany the Construction Certificate:-

Payment of Bonds, Fees and Long Service Levy

10. The Principal Certifying Authority is to ensure and obtain written proof that all bonds, fees and contributions as required by this consent have been paid to the applicable authority. This includes all Long Service Levy payments to be made to the Long Service Payments Corporation.

Section 94 Contribution

11. A public reserve contribution of $5844 being for two (2) additional lots is to be paid to Council. This contribution is imposed under the Holroyd Section 94 Contributions Plan for Open Space and Recreation Facilities - which came into force on 2 December, 1998. A copy of this plan can be inspected at Council’s Civic Centre located at 16 Memorial Avenue, Merrylands between the hours of 8am and 4.30pm Monday to Friday. This contribution will form part of the funding towards the purchase/embellishment of Local, District and Regional Open Space and the administration of Council’s Section 94 Contribution fund.

12. A community facility contribution of $1790 being for two (2) additional lots is to be paid to Council. This contribution is imposed under the Holroyd Section 94 Contributions Plan for Community Facilities - which came into effect on 13 November, 2000. A copy of this plan can be inspected at Council’s Civic Centre located at 16 Memorial Avenue, Merrylands. This contribution will form part of the funding towards the provision, extension or augmentation of community facilities and services that will, or are likely to be, required as a consequence of development in the Holroyd Local Government Area.

Damage to Kerb and Gutter

13. A cash bond/bank guarantee of $1200 must be paid/lodged with Council to cover damage to footpath, vehicular crossing and/or kerb and guttering. This will be held for six (6) months after the completion of works or issue of Final Occupation Certificate (whichever occurs last) and may be applied to remedy any defects that may arise within this time.

Note: The owner shall be held responsible for and may be required to pay the full reinstatement costs for all existing footpaths, vehicular crossing, kerb and guttering damage, unless the owner notifies Council in writing and provides proof of any existing damage to footpaths, vehicular crossing or kerb and guttering. If damage does occur within the road reserve during construction, prior to reinstating any damaged footpath, vehicular crossing or kerb and guttering, the applicant shall complete a ‘vehicular crossing application’ for the design/specifications of any proposed works within the road reserve. Construction works within the road reserve shall be carried out by a licensed construction contractor at the applicant’s expense and shall be inspected by Council prior to placement of concrete.

Consistency with Endorsed Development Consent Plans

14. The Principal Certifying Authority must ensure that any certified plans forming part of the Construction Certificate, are in accordance with the Development Consent plans.

Engineering Fees and Bonds

15. Payment of a $175 fee for the design, specifications and inspection by Council of the vehicular crossing/s prior to placement of concrete.

16. Payment of a $241 fee for the design, specifications and inspection by Council of the footpath paving prior to placement of concrete.

17. Payment of a $241 fee for the design, specifications and inspection by Council of the kerb and guttering prior to placement of concrete.

18. Payment of a $304 fee for the inspection by Council of the stormwater and On Site Detention system at the key stages, where Council is the Principal Certifying Authority.

19. The applicant shall lodge with Council a $1300 cash bond or bank guarantee for the satisfactory completion of the construction or reconstruction of the concrete footpath paving adjacent to the site. This bond is refundable upon completion of all works on the site.

20. The applicant shall lodge with Council a $2300 cash bond or bank guarantee for the satisfactory completion of the construction or reconstruction of the concrete kerb and guttering adjacent to the site. This bond is refundable upon completion of all works on the site.

21. The applicant shall lodge with Council a $4295 cash bond to cover the registration of a Positive Covenant and Restriction as to User over the on-site stormwater detention system.

22. The applicant shall lodge with Council a $1000 cash bond or bank guarantee to cover the satisfactory reconstruction of the vehicular crossing situated adjacent to the neighbouring property, once drainage adjustments to the kerb are complete.

23. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

(Application must be made through an authorised Water Servicing Coordinator. Please refer to the “Your Business” section of the web site then follow the “e-Developer” icon or telephone 13 20 92 for assistance.

Following application, a “Notice of Requirements” will advise of water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design).

24. An erosion and sediment control plan (in duplicate) shall be submitted to the Principal Certifying Authority prior to the issue/release of the Construction Certificate and is to be prepared by a suitably qualified person in accordance with the guidelines set out in Holroyd City Council’s “Erosion and Sedimentation Control Policy”. The plan shall include as a minimum the following:-

n Locality

n Contours (initial and final)

n Existing vegetation

n Existing site drainage

n Land slope gradient

n Location of topsoil stockpiles

n Erosion control measures

n Sediment control measures

n Location of crushed rock construction entrance

n Location of roads, driveways and accessways and all impervious surfaces

n Details of site revegetation program

n Outline of a program of maintenance for the erosion and sediment controls

25. A Waste Management Plan shall be submitted to and approved by Council prior to the Issue/Release of the Construction Certificate. The plan shall be in accordance with Holroyd Development Control Plan No. 35 – “Guidelines for Planning for Less Waste”.

26. The applicant shall submit a hydraulic drawing prepared by a qualified Civil Engineer showing the proposed drainage works. In this regard a fully detailed drawing showing the location and level of inlet pits, the pipe sizes and grades and a pipe Longsection for the full length of the pipe shall be submitted to Council for assessing Prior to the Issue/Release of the Construction Certificate. The location of the proposed drainage easement shall not disturb any structures or root zones of existing trees within the property/properties. All trees overhanging or within 5m of the proposed easement are to be accurately indicated on the hydraulic drawing. These works shall be complete Prior to the Release of the Linen Plan.

PRIOR TO WORKS COMMENCING

The following conditions are to be complied with prior to any works commencing on the site:

Appointment of Principal Certifying Authority and Notification of Commencement of Work

27. The person having the benefit of the development consent, not the principal contractor (builder), must: -

(a) appoint a Principal Certifying Authority in accordance with Section 81A(2)(b) of the Act.

(b) Have the Principal Certifying Authority complete the ‘Accredited Certifier Details’ on the approved form provided by Council for this purpose, an original of which is attached to this Development Consent.
(c) Notify Council of the appointment of the Principal Certifying Authority and of the intention to commence building work, such notification is to be given to Council at least two (2) working days prior to the proposed commencement date, and be on the approved form provided by Council for this purpose, an original of which is attached to this Development Consent.

If nominated, Council can provide this service for you and act as the Principal Certifying Authority.

N.B. The Principal Certifying Authority must also notify the person having the benefit of the Development Consent of any mandatory critical stage inspections and other inspections that are to be carried out in respect of the building work such notification must comply with Clause 103A of the Regulations.
Notification of Principal Contractor (Builder)/Owner-Builder

28. The person having the benefit of the Development Consent must:-

(a) notify the Principal Certifying Authority that the person will carry out the work as an owner-builder, if that is the case;

OR

(b) Appoint a Principal Contractor for the building work (who must be the holder of a contractor licence if any residential building work is involved), and notify the Principal Contractor of any mandatory critical stage inspections and other inspections that are to be carried out in respect of the building work.
(c) notify the Principal Certifying Authority of any such appointment.

Where Council is the Principal Certifying Authority, such notification is to be on the approved form provided by Council for this purpose, an original of which is attached to this Development Consent.

Fencing of Sites

29. Fencing of sites is required to prevent public access when the site is unoccupied and building works are not in progress. In this regard the MINIMUM acceptable standard of fencing to the site is properly constructed chain wire fencing 1.8m high, clad internally with Hessian or Geotextile fabric. All openings are to be provided with gates, such gates are not at any time to swing out from the site or obstruct the footpath or roadway.

Signs to be erected on sites

30. A sign must be erected in a prominent position on any site on which building work, subdivision 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 principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours and at any time for business purposes , and

(c) stating that unauthorised entry to the work site is prohibited.

The sign must be rigid and durable and be read easily by anyone in any public road or other public place adjacent to the site.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building.
Note : Principal Certifying Authorities and Principal Contractors must also ensure that signs required by this clause are erected and maintained (clause 227A of the Regulations currently imposes a maximum penalty of $1,100).

31. A signboard legible from the street frontage shall be erected in a prominent visible position on the site. The signboard is to clearly show all of the following information:-

This clause does not apply to:-

Prohibited Signage

32. Advertising, Real Estate Agents, Architects, Designers, site suppliers and any other signage not mentioned in the conditions, is not to be placed or displayed on the site, such that the signage is visible from any public place. Offenders may be prosecuted.

Protection of Public Places

33. A hoarding or fence must be erected between the work site and any public place, if the work involved in the erection or demolition of the building; is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or involves the enclosure of a 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.

Site Control Measures

34. Suitable erosion and sediment control measures shall be provided at all vehicular entry/exit points and all other measures required with and/or shown on plans accompanying the Construction Certificate, to control soil erosion and sedimentation, are to be in place prior to the commencement of construction works. Such controls are to be provided in accordance with Holroyd City Council’s “Erosion & Sediment Control Policy.”

Note: On-the-spot fines may be issued by council where measures are absent or inadequate.

Footpaving, Kerbing and Guttering

35. Protection must be provided for Council footpaving, kerbing and guttering. Wooden mats must also be provided at all entrances where the site fronts paved footpaths.

Support for Neighbouring Buildings

36. 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 (including a public road and any other public place), the person causing the excavation to be made:-

allotment of land

Toilet Facilities

37. 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:

Roadworks

38. The applicant is to submit to Council an application for a road opening permit when the drainage connection into Council’s system is within the road reserve. In this regard the applicant shall pay Council a $100 fee prior to the commencement of works. Additional road opening permits and fees may be necessary where there are connections to public utility services (eg. telephone, electricity, sewer, water or gas) required within the road reserve.

39. The applicant to arrange with the relevant public utility authority the alteration or removal of any affected services in connection with the development. Any such work being carried out at the applicant’s cost.

Sydney Water

40. The approved plans must be submitted to Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. (For Quick Check agent details please refer to the web site see Your Business then Building & Developing then Building & Renovating or telephone 13 2092.)

DURING CONSTRUCTION

Endorsed Plans & Specifications

41. A copy of the endorsed stamped plans and specifications, together with a copy of the Development Consent and Construction Certificate are to be retained on site at all times.

Hours of Work & Display of Council Supplied Sign

42. For the purpose of preserving the amenity of neighbouring occupations building work including the delivery of materials to and from the site is to be restricted to the hours of 7.00am to 6.00pm Mondays to Fridays and 8.00am to 4.00pm Saturdays. Work on the site on Sundays and Public Holidays is prohibited.

The yellow “Hours of Building Work” sign (supplied by Council with the approval) is to be displayed in a prominent position at the front of the site for the duration of the work.

Site Control

43. All soil erosion measures required in accordance with Development Control Plan No. 38 – “Guidelines for Erosion and Sediment Control” and any other relevant conditions of this Consent are to be put in place prior to commencement of construction works are to be maintained during the entire construction period until disturbed areas are restored by turfing, paving or revegetation. This includes the provision of turf laid on the nature strip adjacent to the kerb.

44. Builder’s refuse disposal and storage facilities are to be provided on the development site for the duration of construction works and all rubbish shall be removed from the site upon completion of the project.

45. Stockpiles of sand, soil and other material shall be stored clear of any drainage line or easement, tree protection zone, water bodies, footpath, kerb or road surface and shall have erosion and sediment control measures in place to prevent the movement of such materials onto the aforementioned areas and adjoining land.

Asbestos Cement Sheeting

46. i) All asbestos cement sheeting must be removed by contractors with an appropriate licence issued by WorkCover and who are familiar with asbestos removal prior to the commencement of:-

(a) Brick veneering or re-cladding of any building where the existing walls to be covered are currently clad with asbestos cement;

(b) Construction work where new work abuts existing asbestos cement sheeting and/or where parts of the existing building clad with asbestos cement sheeting are to be altered or demolished.

Removal must be carried out strictly in accordance with WorkCover’s “Short Guide to Working with Asbestos Cement” (copy attached).

NOTE:

Waste Management Plan

47. The approved Waste Management Plan must be implemented and complied with during all stages of works on site.

48. Within seven (7) days of completion of construction/building works, the applicant shall submit a signed statement to Council or the Principal Certifying Authority verifying that demolition work and recycling of materials was undertaken in compliance with the Waste Management Plan. The Principal Certifying Authority shall submit a copy of the statement to Council.

In reviewing such documentation Council will require the provision of actual weighbridge receipts for the recycling/disposal of all materials.

Inspection of On Site Detention Works

49. The stormwater drainage works are to be inspected during construction, by the Council or by a suitably qualified Civil Engineer. Documentary evidence of compliance with Council’s specifications shall be obtained prior to proceeding to the subsequent stages of construction, encompassing not less than the following key stages:

(a) Initial inspection to discuss concept and site conditions/constraints prior to commencement of construction of the detention basin/tank.

(b) Prior to landscaping of detention basin or pouring of the roof of the detention tank.

(c) After completion of storage but prior to installation of fittings (e.g. orifice plates, screens, flap valves etc.)

(d) Final Inspection
Council’s standard inspection fee will apply to each of the above set inspection key stages. Additional inspection fees will apply for additional inspections required to be undertaken by Council.

Note: A private certifier or the Principal Certifying Authority cannot be engaged to do this inspection.

Road Works and Footpaving

50. Pedestrian access, including disabled and pram access, is to be maintained as per Australian Standard AS1742.3 “Part 3 – Traffic Control Devices for Works on Roads”.

51. All advisory and regulatory sign posting (for example parking restriction signage, pedestrian crossing signs, warning signs) are to remain in place during construction.

AFTER CONSTRUCTION

The following conditions are to be complied with:-

Principal Certifying Authority

52. A Compliance Certificate or similar documentary evidence is to be issued by the Accredited Certifier stating that all building and site works have been carried out in accordance with the Development Consent and Construction Certificate.

Compliance Certificates/Documentary Evidence

53. A final clearance is to be obtained from Integral Energy if such clearance has not previously been issued.

54. A Section 73 Certificate (Sydney Water) must be submitted to the Principal Certifying Authority prior to occupation of the development.

Driveway

55. The vehicle crossing between the street and front boundary shall be constructed of plain concrete with no colour or stencilling.

PRIOR TO RELEASE OF LINEN PLAN

The following conditions are to be complied with prior to the Release of the Linen Plan:-

Linen Plan

56. The linen plan for the subdivision when lodged for final approval must be accompanied by four (4) copies and linen plan release fee of $336.80.

Public Utilities

57. The Principal Certifying Authority is to be provided with a current Section 73 Compliance Certificate for the property from Sydney Water.

58. Public utility services (including water, sewer, electricity and telephone) shall be provided and any easements necessary created to the satisfaction of the relevant servicing authorities. Evidence of such is to be submitted prior to release of the linen plan of subdivision.

Fencing

59. Boundary and courtyard fences must be erected and finished in a professional manner.

60. New 1.8m lapped and capped timber paling or colorbond fences (colour to be sympathetic with the development) determined in consultation with adjoining property owners are to be erected along all side and rear boundaries of each new allotment, including along the access corridor, at full cost to the developer. Fences are to taper from the front building line to be not more than 900mm high at the front boundary. A Statutory Declaration or other documentary evidence of such consultation is to be submitted to the Principal Certifying Authority.

Alternatively, a $1,000 bond shall be lodged, to ensure that fences are erected after the completion of building works on new lots.

General

61. Documentary evidence and/or compliance certificates must be submitted to Council to show that all works have been completed in accordance with Development Consent 2002/887 and its accompanying Construction Certificate.

On-Site Detention Certification and Covenant

62. Documents giving effect to the creation of a Positive Covenant and Restriction on Use over the on-site stormwater detention system shall be registered on the title of the property. The wording of the terms of the Positive Covenant and Restriction as to User shall be in accordance with Council’s standards and specifications for stormwater drainage and on-site stormwater detention. The documents prepared shall be submitted to Council for approval prior to registration with Land and Property Information NSW.

The footing system is to be designed by a practising professional structural engineer.

7. Building materials, builders sheds, waste bins, site fencing, gates or any material of any description shall not be left or placed on any footway, road or nature strip. Footways and nature strips shall be maintained, including the cutting of vegetation, so as not to become unsightly or a hazard for pedestrians. Offenders will be prosecuted.

PRIOR TO ISSUE/RELEASE OF CONSTRUCTION CERTIFICATE

Payment of Bonds, Fees and Long Service Levy

8. The Principal Certifying Authority is to ensure and obtain written proof that all bonds, fees and contributions as required by this consent have been paid to the applicable authority. This includes all Long Service Levy payments to be made to the Long Service Payments Corporation.

Section 94 Contribution

9. A public reserve contribution of $2922 being for one (1) additional dwelling is to be paid to Council. This contribution is imposed under the Holroyd Section 94 Contributions Plan for Open Space and Recreation Facilities - which came into force on 2 December, 1998. A copy of this plan can be inspected at Council’s Civic Centre located at 16 Memorial Avenue, Merrylands between the hours of 8am and 4.30pm Monday to Friday. This contribution will form part of the funding towards the purchase/embellishment of Local, District and Regional Open Space and the administration of Council’s Section 94 Contribution fund.

10. A community facility contribution of $895 being for one (1) additional dwelling is to be paid to Council. This contribution is imposed under the Holroyd Section 94 Contributions Plan for Community Facilities - which came into effect on 13 November, 2000. A copy of this plan can be inspected at Council’s Civic Centre located at 16 Memorial Avenue, Merrylands. This contribution will form part of the funding towards the provision, extension or augmentation of community facilities and services that will, or are likely to be, required as a consequence of development in the Holroyd Local Government Area.

Consistency with Endorsed Development Consent Plans

11. The Principal Certifying Authority must ensure that any certified plans forming part of the Construction Certificate, are in accordance with the Development Consent plans.

Tree Planting/Landscaping

12. A bond of $1000 is to be lodged with Council against the planting, establishment and maintenance of the required landscaping. This bond will be retained for a minimum period of twelve (12) months from the issue of a Final Occupation Certificate after which a further inspection will be undertaken by Council or the Principal Certifying Authority (PCA), to ensure the satisfactory establishment and maintenance of the landscaping.

If Council is not the PCA, certification from the designer of the landscape works that the required landscaping is establishing and being maintained satisfactorily, is to be submitted to Council at the expiry of the bond period prior to the bond being refunded.
If the landscaping is not established or maintained to Council’s or the PCA’s satisfaction, the bond monies will be applied to fully implement the landscape plan.

Note: Retention of bonds for twelve (12) months provides for the landscaping to establish over a full cycle of seasons.

13. The following bond/s shall be lodged with Council prior to works commencing against the retention, protection during demolition/construction and adaptation to the altered environment, of the following tree/s identified on the endorsed plans:-

Tree No & Species Bond

1. Crepe Myrtle $1000

If Council is not the PCA, a report on the health and condition of the tree/s, from the Arborist engaged to ensure the proper protection and management of the trees required to be retained/transplanted, is to be submitted to Council at the completion of works/expiry of the bond period and prior to the bond being refunded. If the report indicates that the tree/s require remedial works, which are not exempt under Council’s Tree Management Order, an application for General Tree Works will be required to be submitted and approved, before the works are carried out and certified by the Arborist. Remedial works which are exempt under Council’s Tree Management Order will also be required to be completed and certified.

If the trees are not retained, protected or managed to Council’s or the PCA’s satisfaction, bond monies will be forfeited at the following rates unless remedial works are implemented:-

(a) An initial breach of any tree protection condition – 20% of total bond for particular tree/s.

(b) A second or the continuing breach of any tree protection condition - 40% of total bond for particular tree/s.

(c) If after 40% of the bond is retained, further breaches of the tree protection conditions occur, Council may instigate legal proceedings for the cessation of all works on the site.

(d) Death of any protected tree/s due to non-compliance with tree protection conditions – 100% of total bond for particular tree/s and possible legal action by Council.

Building Inspection Fee

14. Payment of a $1024.40 fee for the inspection by Council of the works at key stages, where Council is the Principal Certifying Authority.

Road Works

15. A Traffic Management Plan shall be lodged with Council for any road and drainage works to be carried out within public road reserves, or where construction activity impacts on traffic flow or pedestrian access, in strict compliance with the requirements of Australian Standard 1742.3 (Traffic Control Devices for Works on Roads). In this regard, the applicant shall pay Council a $100 fee for the assessment of the Traffic Management Plan by Council, prior to commencing works within the road reserves.

Required Submissions to Certifying Authority

16. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

(Application must be made through an authorised Water Servicing Coordinator. Please refer to the “Your Business” section of the web site then follow the “e-Developer” icon or telephone 13 20 92 for assistance.

17. An erosion and sediment control plan (in duplicate) shall be submitted to the Principal Certifying Authority prior to the issue/release of the Construction Certificate and is to be prepared by a suitably qualified person in accordance with the guidelines set out in Holroyd City Council’s “Erosion and Sedimentation Control Policy”. The plan shall include as a minimum the following:-

n Locality

n Contours (initial and final)

n Existing vegetation

n Existing site drainage

n Land slope gradient

n Location of topsoil stockpiles

n Erosion control measures

n Sediment control measures

n Location of crushed rock construction entrance

n Location of roads, driveways and accessways and all impervious surfaces

n Details of site revegetation program

n Outline of a program of maintenance for the erosion and sediment controls

Energy Efficiency - Residential

18. A hot water system with a minimum 3.5 star greenhouse rating shall be provided for each new dwelling. This may be achieved by solar-gas boost-storage, gas- instantaneous, gas-storage, electric heat pump-storage and solar-electric boost. Details shall be submitted to Council with the construction certificate.

Water Conservation - Residential

19. AAA rated water conservation devices including showerheads, water tap flow regulators and dual flush toilet & cisterns shall be provided for each new dwelling. Details shall be submitted to Council with the construction certificate.

PRIOR TO WORKS COMMENCING

The following conditions are to be complied with prior to any works commencing on the site:

Appointment of Principal Certifying Authority and Notification of Commencement of Work

20. The person having the benefit of the development consent, not the principal contractor (builder), must: -

(a) appoint a Principal Certifying Authority in accordance with Section 81A(2)(b) of the Act.

(b) Have the Principal Certifying Authority complete the ‘Accredited Certifier Details’ on the approved form provided by Council for this purpose, an original of which is attached to this Development Consent.
(c) Notify Council of the appointment of the Principal Certifying Authority and of the intention to commence building work, such notification is to be given to Council at least two (2) working days prior to the proposed commencement date, and be on the approved form provided by Council for this purpose, an original of which is attached to this Development Consent.

If nominated, Council can provide this service for you and act as the Principal Certifying Authority.
N.B. The Principal Certifying Authority must also notify the person having the benefit of the Development Consent of any mandatory critical stage inspections and other inspections that are to be carried out in respect of the building work such notification must comply with Clause 103A of the Regulations.

Notification of Principal Contractor (Builder)/Owner-Builder

21. The person having the benefit of the Development Consent must:-

(a) notify the Principal Certifying Authority that the person will carry out the work as an owner-builder, if that is the case;

OR

(b) Appoint a Principal Contractor for the building work (who must be the holder of a contractor licence if any residential building work is involved), and notify the Principal Contractor of any mandatory critical stage inspections and other inspections that are to be carried out in respect of the building work.
(c) notify the Principal Certifying Authority of any such appointment.

Where Council is the Principal Certifying Authority, such notification is to be on the approved form provided by Council for this purpose, an original of which is attached to this Development Consent.

Required Submissions to Council or the Principal Certifying Authority

22. To facilitate a complete assessment and enable the Certifying Authority to check compliance on site, truss validation and design, details certified by a qualified practising structural engineer shall be submitted to Council or the Principal Certifying Authority for examination and approval. Details shall include:

Fencing of Sites

23. Fencing of sites is required to prevent public access when the site is unoccupied and building works are not in progress. In this regard the MINIMUM acceptable standard of fencing to the site is properly constructed chain wire fencing 1.8m high, clad internally with Hessian or Geotextile fabric. All openings are to be provided with gates, such gates are not at any time to swing out from the site or obstruct the footpath or roadway.

Signs to be Erected on Sites

24. A sign must be erected in a prominent position on any site on which building work, subdivision 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 principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours and at any time for business purposes , and

(c) stating that unauthorised entry to the work site is prohibited.

The sign must be rigid and durable and be read easily by anyone in any public road or other public place adjacent to the site.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building.
Note : Principal Certifying Authorities and Principal Contractors must also ensure that signs required by this clause are erected and maintained (clause 227A of the Regulations currently imposes a maximum penalty of $1,100).

Prohibited Signage

25. Advertising, Real Estate Agents, Architects, Designers, site suppliers and any other signage not mentioned in the conditions, is not to be placed or displayed on the site, such that the signage is visible from any public place. Offenders may be prosecuted.

Protection of Public Places

26. A hoarding or fence must be erected between the work site and any public place, if the work involved in the erection or demolition of the building; is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or involves the enclosure of a 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.

Site Control Measures

27. Suitable erosion and sediment control measures shall be provided at all vehicular entry/exit points and all other measures required with and/or shown on plans accompanying the Construction Certificate, to control soil erosion and sedimentation, are to be in place prior to the commencement of construction works. Such controls are to be provided in accordance with Holroyd City Council’s “Erosion & Sediment Control Policy.”

Note: On-the-spot fines may be issued by council where measures are absent or inadequate.

Tree Protection Conditions

28. An Arborist qualified to at least Australian Qualifications Framework (AQF) Certificate Level 4 shall be retained throughout all demolition/construction work to ensure the proper protection and management of the tree/s required to be retained/transplanted and that any necessary pruning work within 1m of the building/s approved, is carried out in accordance with Australian Standard 4373-1996 “Pruning of Amenity Trees”. This includes on site supervision of the erection of tree protection measures and, where necessary, any works that are required within tree protection zones.

29. The tree/s identified on the endorsed plans as being retained/transplanted shall be protected prior to and throughout the construction process in accordance with the Guidelines for the Protection of Trees On and Adjacent To Demolition/Building sites, and relevant conditions of this Consent. All trees not authorised to be removed by this Consent must be retained. Prior to any work commencing, certification of the installation and inspection of the required tree protection works is to be provided to the Principal Certifying Authority by a suitably qualified person engaged to ensure the proper protection and management of the tree/s required to be retained/transplanted. A copy of the Certificate is to be issued to Council within seven (7) days of the inspection and prior to any works commencing. Additionally, trees identified for removal are to be retained until immediately prior to works commencing, to assist with soil management and erosion control.

30. Protective fencing is to be installed around the tree/s to be retained/transplanted in line with the dripline and/or that part of the dripline of the tree/s which overhangs the site and no further than 0.5m from the buildings . This fencing is to be constructed of chainwire mesh 1.8m high, which is supported by steel stakes or piping and braced to resist impacts. Where appropriate the trunk/s of the tree/s on the site and any street tree/s (which are not to be fenced other than as mentioned above), shall also be protected by vertical timber boards, installed by or under the supervision of a suitably qualified person/the arborist engaged to ensure the proper protection and management of the trees required to be retained/transplanted to accepted horticultural and TAFE standards.

Note: Removal of the protective fencing or timber boards during construction work, will affect the Bonds and may result in legal proceedings being instigated by Council against the applicant and builder.

31. The fenced zone/s surrounding the trees to be retained shall be mulched with 100mm of composted leaf mulch.

Footpaving, Kerbing and Guttering

32. Protection must be provided for Council footpaving, kerbing and guttering. Wooden mats must also be provided at all entrances where the site fronts paved footpaths.

33. Finished street levels shall not be assumed. The owner or builder must make application to Council’s Engineering Services Department for street levels.

Support for Neighbouring Buildings

34. 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 (including a public road and any other public place), the person causing the excavation to be made:-

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).

Toilet Facilities

35. 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:

Residential Building Work - Insurance

36. 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 (where not Holroyd City Council) has given Holroyd City Council written notice of the following information:-

(a) in the case of work for which a Principal Contractor is required to be appointed:

(i) the name and licence number of the Principal Contractor, and
(ii) the name of the insurer by which the work is insured under Part 6 of that Act,

(b) in the case of work to be done by an owner-builder:

(i) the name of the owner-builder, and
(ii) if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under this condition becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (where not Holroyd City Council) has given Holroyd City Council written notice of the updated information.

The notification is to be on the approved form provided by Council for this purpose, an original of which is attached to this Development Consent.

Roadworks

37. The applicant is to submit to Council an application for a road opening permit when the drainage connection into Council’s system is within the road reserve. In this regard the applicant shall pay Council a $100 fee prior to the commencement of works. Additional road opening permits and fees may be necessary where there are connections to public utility services (eg. telephone, electricity, sewer, water or gas) required within the road reserve.

38. The applicant to arrange with the relevant public utility authority the alteration or removal of any affected services in connection with the development. Any such work being carried out at the applicant’s cost.

Sydney Water

39. The approved plans must be submitted to Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. (For Quick Check agent details please refer to the web site see Your Business then Building & Developing then Building & Renovating or telephone 13 2092.)

Subdivision

40. The Torrens title plan of subdivision of Lots 11 & 12, DP 13154 in pursuance of the development consent issued for development application 887/2002 must be registered with Land and Property Information NSW prior to commencement of works.

DURING CONSTRUCTION

Endorsed Plans & Specifications

41. A copy of the endorsed stamped plans and specifications, together with a copy of the Development Consent and Construction Certificate are to be retained on site at all times.

Hours of Work & Display of Council Supplied Sign

The yellow “Hours of Building Work” sign (supplied by Council with the approval), is to be displayed in a prominent position at the front of the site for the duration of the work.

Site Control

Waste Management Plan

46. The approved Waste Management Plan must be implemented and complied with during all stages of works on site.

Inspection of Works

47. The building works are to be inspected during construction, by the Council or by an Accredited Certifier and documentary evidence of compliance with the relevant terms of the approval, is to be obtained prior to proceeding to the subsequent stages of construction, encompassing not less than the following key stages:

- after the first sheeting is fixed

- after the second sheeting is fixed

- after caulking is placed in the cornices

- after penetrations have been protected

Copies of the above stated documentary evidence are to be submitted to the Principal Certifying Authority upon completion of each specified stage of construction and prior to occupation of the building.

Compliance with Critical Stage Inspections and other Inspections nominated by the Principal Certifying Authority

48. Section 109E(d) of the Act requires certain specific inspections (prescribed by clause 162A of the Regulations) and known as ‘Critical Stage Inspections’ to be carried out for building work. Prior to permitting commencement of the work your Principal Certifying Authority is required to give notice of these inspections pursuant to clause 103A of the Regulations.

N.B. An Occupation Certificate cannot be issued and the building may not be able to be used or occupied where any mandatory critical stage inspections or other inspections required by the Principal Certifying Authority are not carried out.

Where Council is nominated as Principal Certifying Authority, notification of all inspections required is provided with the Construction Certificate approval.

Construction

49. The building and external walls are not to proceed past ground floor formwork/reinforcing steel level until such time as the Principal Certifying Authority has been supplied with a check survey report prepared by a registered surveyor certifying that the floor levels and external wall locations to be constructed, comply with the approved plans, finished floor levels (FFL)s and setbacks to boundary/ies. The slab shall not be poured, nor works continue, until the Principal Certifying Authority has advised the builder/developer that the floor level and external wall setback details shown on the submitted survey are satisfactory.

In the event that Council is not the Principal Certifying Authority, a copy of the survey shall be provided to Council within three (3) working days.
On placement of the concrete, works again shall not continue until the Principal Certifying Authority has issued a Compliance Certificate stating that the Condition of approval has been complied with and that the slab has been poured at the approved levels.

Landscaping/Site Works

50. All turfed areas shall be finished level with adjoining surfaces and also fall evenly to approved points of drainage discharge.

51. New 1.8m high lapped and capped timber paling or colorbond fences (colour to be sympathetic with the development) determined in consultation with adjoining property owner(s), are to be erected along all side and rear boundaries and between courtyards at full cost to the developer. A Statutory Declaration or other documentary evidence of such consultation is to be submitted to the Principal Certifying Authority.

52. A single master T.V. antenna is to be installed to service each building and provision made for connection to each dwelling within that building.

Tree Protection

53. The tree/s identified on the endorsed plans as being retained/transplanted shall be protected against damage throughout the demolition/construction process in accordance with the attached Council Guidelines for the Protection of Trees On and Adjacent to Demolition/Building Sites and relevant conditions of this Consent.

54. A report is to be prepared and submitted to Council by the Arborist engaged to ensure the proper protection and management of the tree/s required to be retained/transplanted that:

i) Sets out maintenance work carried out on tree/s; and
ii) Assesses the health and condition of the tree/s required to be retained/transplanted and protected.
The report should also provide documentary evidence that the tree protection conditions are being complied with in the form of site notes and photographs and be provided at three monthly intervals during construction works that are within 5m of any tree.

55. The applicant shall accept all responsibility for the accuracy of the information provided to Council for assessment. If any tree/s are not shown on the endorsed plan or are required to be retained/transplanted and protected but are threatened by demolition/construction work through unforeseen construction requirements or plan inaccuracy, all site and building works so affected are to cease until the matter is resolved to the satisfaction of Council. Council’s Environmental and Planning Services Department is to be notified immediately upon such a problem being encountered.

56. Branches of trees to be retained/transplanted within 1m of the approved building, may be pruned by an Arborist qualified to at least Australian Qualification Framework (AQF) Certificate Level 3 in accordance with Australian Standard AS4373-1996 ‘Pruning of Amenity Trees’ to enable demolition/construction works to occur.

Road Works and Footpaving

57. Pedestrian access, including disabled and pram access, is to be maintained as per Australian Standard AS1742.3 “Part 3 – Traffic Control Devices for Works on Roads”.

58. All advisory and regulatory sign posting (for example parking restriction signage, pedestrian crossing signs, warning signs) are to remain in place during construction.

Underground Cabling

59. All communications cabling shall be installed underground as per relevant authority requirements (including broadband and Category 5).

PRIOR TO ISSUE OF OCCUPATION CERTIFICATE

The following conditions are to be complied with prior to the issue of an interim/final occupation certificate:-

Principal Certifying Authority

60. An Occupation Certificate is to be issued by the Principal Certifying Authority prior to the occupation of the building.

61. A Compliance Certificate or similar documentary evidence is to be issued by the Accredited Certifier stating that all building and site works have been carried out in accordance with the Development Consent and Construction Certificate.

Compliance Certificates/Documentary Evidence

62. A final clearance is to be obtained from Integral Energy if such clearance has not previously been issued.

63. A Section 73 Certificate (Sydney Water) must be submitted to the Principal Certifying Authority prior to occupation of the development.

64. A Compliance Certificate from the supervising qualified structural engineer responsible for the design shall be submitted to the Principal Certifying Authority and shall state that all foundation works/reinforced concrete/structural members have been carried out/erected in accordance with the Engineer’s requirements and the relevant SAA Codes.

Note: Any such certificate is to set forth the extent to which the engineer has relied on relevant specifications, rules, codes of practice or publications in respect of the construction.

65. A certificate shall be submitted to the Principal Certifying Authority stating that safety glazing has been used in the building in accordance with AS1288 - “Glass in Buildings - Selection and Installation”.

Landscaping/Tree Protection

66. Certification is to be provided to the Principal Certifying Authority (PCA), from the designer of the landscape proposal, that all landscape works have been carried out in accordance with the endorsed landscape plan. If Council is the PCA, the certification is to be submitted to Council prior to or at the final landscape inspection. If Council is not the PCA, a copy of the certification is to be provided to Council with the Occupation Certificate.

67. The Arborist engaged to ensure the proper protection and management of the trees required to be retained/transplanted is to provide a report to Council concerning the health and condition of the tree/s and if necessary any remedial works required. The report should also provide documentary evidence that the tree protection conditions were complied with throughout the demolition/construction phases, in the form of site notes and photographs. Should the trees require remedial works which are not exempt under Council’s Tree Management Order, an application for General Tree Works will be required to be submitted and approved before the works are carried out and certified by the Arborist. Remedial works, which are exempt under Council’s Tree Management Order, will also be required to be completed and certified.

68. Boundary and courtyard fences must be erected and finished in a professional manner.

Driveway

69. The vehicle crossing between the street and front boundary shall be constructed of plain concrete with no colour or stencilling.

Road Works

70. A full width medium duty vehicular crossing shall be provided opposite the vehicular entrance to the site, with a maximum width of 5.0 metres and a minimum width of 3.0 metres at the boundary line. These works shall be carried out by a licensed construction contractor at the applicant’s expense and shall be in accordance with Council’s issued drawings and level sheets.

71. A compliance certificate for the construction of driveways, footpath paving, kerb and guttering and roadworks shall be obtained from Council and be submitted to the Principal Certifying Authority.

House/Street Number

72. A house/street number must be displayed on all newly developed properties in accordance with Council's "Policy on the Display of House Numbers" available from the Customer Services Counter or Council's website, The Torrens title plan of subdivision of Lots 11 & 12, DP 13154 must be registered with Land and Property Information NSW prior to release of all bonds/issue of Occupation Certificate.

__________________________

S J Watts

Commissioner of the Court

CITATION:	Kawkab Nassif v Holroyd City Council [2004] NSWLEC 226
PARTIES:	APPLICANT Mr Kawkab Nassif RESPONDENT Holroyd City Council
FILE NUMBER(S):	11388, 11389, 11390, 11391 and 11392 of 2003
CORAM:	Watts C
KEY ISSUES:	Development Application :- Character of the subdivision in the area Non-Compliance of the subdivision with the frontage width Character in the streetscape with garages taking up more than 50% of the width of the building Inadequate area private open space for the rear four dwellings Inadequate manoeuvring for vehicles into the garages at the rear Solar access to rear courtyards.
LEGISLATION CITED:	Holroyd Local Environmental Plan 1991, (HLEP) Development Control Plan No 1 - Guidelines for Parking, (DCP1) Development Control Plan No 4 - Guidelines for Dual Occupancy, Villa/Townhouse adn Integrated Housing Development, (DCP4) Development Control Plan No 6 - Guidelines for Subdivision, (DCP6) Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:
DATES OF HEARING:	15/04/2004
DATE OF JUDGMENT:	04/30/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C C Gough, solicitor SOLICITOR Storey and Gough RESPONDENT Mr A J Seton, solicitor SOLICITOR Marsdens