Kermani v Ku-ring-gai Council - [2004] NSWLEC 692

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Kermani v Ku-ring-gai Council [2004] NSWLEC 692

PARTIES:
APPLICANT
Hoomayun and Tiran Kermani
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10536 of 2004

CORAM: Hoffman C

KEY ISSUES: Development Application :- Demolition of an existing house - erection of a single storey pre-school child long day care centre

LEGISLATION CITED: State Environmental Planning Policy No. 1 - Development Standards
Development Control Plan No. 43
Ku-ring-gai Planning Scheme Ordinance

CASES CITED:

DATES OF HEARING: 21/09/2004

EX TEMPORE
JUDGMENT DATE : 11/29/2004

LEGAL REPRESENTATIVES:

APPLICANT
Ms H R Irish, barrister
AGENT
B T Goldsmith Planning Services
RESPONDENT
Ms M Hawley, solicitor
SOLICITORS
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hoffman C

29 November 2004
10536 of 2004 Hoomayun & Tiran Kermani v

Ku-ring-gai Council

JUDGMENT

1 This was a Class 1 appeal No. 10536 of 2004 between H & T Kermani and Ku-ring-gai Council in regard to the refusal of DA 1435/03 for the demolition of an existing house, and the erection of a single storey pre-school child long day care centre, at No. 93 Bannockburn Road, Turramurra.

2 The site was a triangular shape with 21.3 m frontage to the road opposite the T-intersection with Coolabah Avenue. The site was 53.4 m deep. The hypotenuse boundary adjoined a public car park to the Princes Street local shopping centre. Behind the car park and the shops was Irish Park, that the car park also served. The site had a corner boundary to Irish Park and sought to have a gate into it so that it might occasionally be accessed from the site.

3 The site sloped down about 1.5 m from Bannockburn Road within the front setback and flattened out considerably with only about another 2 m fall to the rear. The existing house was probably 1950’s single storey pitch tiled roof structure. The proposal was set back a little closer to the street than the only adjoining house at No. 91 Bannockburn Road which was on the northern side of the site. Number 91 was elevated slightly uphill of the proposal.

4 The front elevation of the proposal had an articulated façade, such that the part of the front elevation adjacent No. 91 had a similar front setback and the centre part of the proposed childcare centre was at 5.516 front setback and complied with the council’s minimum.

5 Having a flat roof the proposal had a maximum height of RL 155.20, the existing house on the site was at RL 156.45. The ridge of No. 91 was at RL 157.44. The proposal sought accommodation of 15 children, nought to two years old, seven children two to three years old, and seven children three to six years old, making a total of 29. To look after them seven staff maximum would be on site at any one time, and operating hours were sought to be Monday to Friday, 7.30 am to 6.30 pm, 50 weeks of the year, with eight functions per year, 6.30 pm to 8.00 pm for parents nights, seminars and Christmas party.

6 The parking demand was assessed by council at eight car spaces. There were two provided on site for staff. They were located off Bannockburn Road, adjacent the public car park. Pick up and drop off was anticipated on Bannockburn, outside the front gate. The applicant said there was enough unused on-street parking to provide the six other spaces. The applicant admitted some parents may use the public car park, and in that event the applicant said there were always sufficient parking spaces available to cater for that. However, the only entry for customers being from Bannockburn it was more likely that the street parking would be used.

7 The issues were:

1. Whether consent ought to be granted in the absence of any legal right to access being granted across the adjoining council car park which is community land.

2. Whether the grant of such access across council’s adjoining car park would impose an inappropriate restraint on future uses of the car park.

3. Whether the proposed development maintains the existing amenity and environmental character of the residential zone in that it fails to maintain soft landscaping and is an overdevelopment of the site.

Development Control Plan No. 43, Car Parking

Particulars

The proposal provides only two of the required eight car parking spaces.

5 Whether the proposed development complies with cll 4.2 and 4.3 of council’s policy on childcare centres, in that the proposal does not provide sufficient outdoor play areas for the maximum number of children at the centre.

6. Whether the proposed development complies with cl 60C(2) of the Ku-ring-gai Planning Scheme Ordinance in that it has a proposed built upon area of 65%. ( I note that the applicant calculated this to be 61% ).

7. Whether consent can be granted to the proposed development in the absence of an objection to the standard contained in cl 60C(2) of the Ku-ring-gai Planning Scheme Ordinance in accordance with the provision of State Environmental Planning Policy No. 1, Development Standards .

8. Whether consent can be granted in the absence of the written approval of the downstream property owner being the council to grant a drainage easement over the proposed stormwater pipe in the public reserve.

8 Before the time of the hearing and following investigations and reports Ku-ring-gai Council had resolved to seek consent orders and this was in draft form in Exhibit 3. However, by the time of the hearing the parties were again in disagreement due to only two matters.

9 One was the council sought the number of children to be reduced to 25, to match with the council’s code for outdoor play areas for childcare centres. The applicant said the Department of Community Services had already agreed to the plan, and the outdoor play area had more than the Department’s space requirements.

10 The other concern was the need for an easement to drain stormwater into the Irish Park connection with council’s drains. No easement or owner’s consent had been granted by council. The applicant said it has attempted negotiations and the obtaining of terms of easement. The council has only given procedural information. A Court action for an easement may be the only option for the applicant if an approval for the rest of the development was received. The council agreed a deferred commencement condition regarding the easement would take account of the situation.

11 The hearing was set down to be held on-site. Attending on that day were for the respondent:

Ms M Hawley, solicitor of Philips Fox,
K A Andrews of 152 Bannockburn Road,
Peter Lewis of 97 Bannockburn Road,
Janelle Lewis of 97 Bannockburn Road,
Judy Nicholls of 17 Coolabah Avenue,
Cathy Goddard of 95 Bannockburn Road,
Sarah Armstrong of 9 Bangalla Street, Warrawee,
Michelle Balchin of 89 Bannockburn Road,
David Wilkinson of 126 Bannockburn Road,
B M Wilkinson of 126 Bannockburn Road,
Elizabeth McGeorge of 119 Bannockburn Road,
Robynne Carwardine of 32 Princes Street
Cheryl Stark of 20 Princes Street,
Barabara Moir of 136 Bannockburn Road, and
Andrew Kao of 22 Princes Street.

12 Ms K R Hawken, traffic engineer for the council provided reports, and on resumption of the hearing Ms Hawley was replaced by Mr Drury of the same solicitors.

13 For the applicant evidence was heard from:

Ms H R Irish, Barrister of Martin Place Chambers,
Mr and Mrs Kermani, applicants
Mr R T Goldsmith, planning consultant and
Ms H Lazarus of Lazarus Real Estate also attended and presented a letter of support signed by six other shop operators of the Princes Street, local centre
Mr J Coady, traffic engineer, provided reports.

14 A Court appointed Town Planner, Mr A Ludwig also attended and gave evidence and his report.

15 At the end of the day the residents cast sufficient doubt about absent information related to the proposal, the public car park and traffic matters, that the Court granted the parties an adjournment to produce evidence on the following matters:

16 On resuming the hearing a number of additional reports were tendered providing the information, and still favouring the proposal, although the respondent still sought a maximum of 25 children instead of the 29 sought. Mr Ludwig had considered the additional reports and still recommended in favour of the proposal.

17 Direction No. 5, and partly No. 4, was related to access of disabled persons to and from the childcare centre. It had been thought at the on-site day that the public car park would be used, as it gave an almost level route to the entry lobby. From Bannockburn Road a flight of steps was provided. Mr Ludwig preferred a wheelchair lift on those stairs, and the applicant proposed a Cama model 7, in Exhibit L. The stairs had been drawn in Exhibit A, drawing DA 01 amendment B with eight risers, for a 1.5 m change in level and a short mid landing. Mr Ludwig said the drawing was in error, as the landing was too short to be usable and it must have been a drafting error as he believed ten risers were needed for a 1.5 m change in level. Also the chair lift specified only ran in straight flights. He corrected the drawing in red.

18 In answer to the other concerns raised by the resident objectors, the new evidence was the RTA driving rules showed cars could park opposite the T-intersection of Coolabah Road, outside the site, to enable pick up and drop off. Parking studies by both Mr Coady and Ms Hawken revealed even on the busy Thursday and Friday afternoons, nominated by the residents, there were several parking spaces always available in the public car park and many more in the street.

19 The use of Princes Lane at the rear of the shops and adjoining the car park by commercial vehicles, especially those travelling opposite to the one way direction sign, was an occasional event that could not be blamed on the proposal. These isolated events would not create such danger that the proposal should be disallowed. This included the consideration that a transformer box on the footpath reduced driver safety vision when a vehicle came the wrong way on the one-way lane out on to Bannockburn Road.

20 On the speed surveys considering any potential danger in Bannockburn Road there had been a record of vehicles travelling at 160 km per hour in 2003 past the site. But the traffic speed surveys in 2003 had shown the 85 percentile speed was 63 to 65 km per hour, depending on the direction travelled, and the mean speed was 54 to 56 km per hour. Another survey in 2004 showed the eighty-fifth percentile speed as 59 to 61 km per hour, and the mean as 51 to 52 km per hour. Speeds above 80 km an hour were rare, and both the council and the applicant’s traffic engineers considered that the site frontage was safe for the operations proposed.

21 The draft deferred commencement consent condition 1 in Exhibit 3 was retained regarding the drainage easement, but the respondent deleted Nos. 2 and 3 regarding disabled access in view of the chairlift proposal.

22 Investigation of the current proposals for the Princes Street local shops revealed that no currently envisaged or approved extensions or alterations would reduce the available on-street and public car park spaces to such an extent that the childcare centre should be refused. The council’s and the applicant’s traffic engineers supplied a joint report on parking and traffic matters supporting the proposal.

23 In regard to the zoning the site was in the Residential 2A Zone under the Ku-ring-gai Planning Scheme Ordinance, childcare centres were permissible with consent.

24 Some of the objectors’ concerns were related to its visual impact in the streetscape. Part of this was the site coverage which was set as 60% in the statute and the proposal was 61%. Mr Goldsmith gave a report saying that in his opinion cl 60C(2) that set the standard applied to dwellings, but not a childcare centre.

25 He had tendered the State Environmental Planning Policy No. 1 objection in Exhibit L for more abundant caution. There was no stated purpose for the standard, but he concluded its underlying objective must be to control the size of buildings in relation to their site area to provide for soft soil areas to accommodate vegetation and ground water infiltration with its attendant visual softening of the built form. This latter character was a feature of the leafy environment of Ku-ring-gai.

26 In the Court’s opinion a 1% variation in the standard is de minimus and even if it applied it could be permitted for the reason it would be unreasonable and unnecessary to require compliance. Any impacts of reduction of ground water infiltration or reduced vegetation would be undetectable. On that basis the Court does not have to take the matter of site coverage and the standard any further.

27 The other controls applicable were the council policy on childcare centres, which was not a Development Control Plan, and the Car Parking Development Control Plan No. 43, and the generic plan of management of car parks.

28 On visual impact and streetscape, the Court has formed the opinion that the low profile design of this building set down on the low side of the road with a considerable amount of landscaping, including some to the council car park adjoining, would minimise visual impact to an acceptable degree once vegetation had grown. There was existing vegetation to be retained, particularly on the street front which would have an immediate effect.

29 In Exhibit P Mr Goldsmith provided uncontested photomontages of the proposal as seen from Bannockburn Road and the public car park. Some existing trees were to be retained and the building would have a low visual impact even without the landscaping proposed. It is acceptable as a building adjacent to, and really being part of the community centre that is formed by Irish Park, the Princes Street shops and the car park. It will enhance the community services of that centre.

30 In regard to the impact of its hours of operation, the objectors provided an amendment in Exhibit 6 to the proposed plan of management in Exhibit R. The main difference was the hours and weeks of operation. The residents sought 48 weeks per year, and last pick up of children at 5 pm, and six after-hours functions per year, all ending at 6.30 pm.

31 The applicant pointed out, that for long day care services for parents who worked in the city, a 6.30 pm last pick up of children was needed. Also the 48 week a year requirement was unfair to those parents who worked in those other crucial two weeks either side of Christmas and New Year.

32 The after-hours functions were essential for parent liaison and seminars on their children. Not all parents attended these functions, so numbers would not be of any great significance up to 8 pm, and being within the building would do little to disturb nearby residents. The building was to be sound proofed.

33 The only outside activity was the Christmas function which was a reasonable expectation for any school. And the only one in the year where family and extended family might attend. In any case it would be held after schools were on holidays, and the school weeks were said by the objectors to be the busiest for the shopping centre.

34 In regard to the reduction of child numbers to 25, the Court has concluded the compliance, in fact the exceedance of the outdoor play area space, compared to the Department of Community Services requirements for 29 children, demonstrated the council code which is not a developmental control plan, was unreasonable, when all related aspects were satisfactory. The larger area sought by the council may give more vegetation around the building, but in this particular case such was unnecessary in the Court’s opinion.

35 The only neighbour to the proposal on the northern side was also concerned about noise arising from the open play area in the back yard of the childcare centre. It was noted by the Court in evidence that half the children were nought to two years old. Children of that age group do not create significant noise. Those other children in the older age brackets possibly do, but they were 14 in number. Also the play times were staggered between age groups in order to avoid conflict between the children and therefore the extent of noise that might be experienced during day time hours by the neighbour on the northern side should not be significant, given the normal expectation of the suburban situation near a public park and car park.

36 Overall there was nothing sufficient for refusal of the childcare centre subject to the draft conditions as hand annotated by the parties in Exhibit 3, but further amended in accordance with this judgment.

37 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Deferred Commencement Consent is granted for a child long-day-care centre for 29 children at No. 93 Bannockburn Road, Turramurra, as shown on annotated plans in Exhibits A, B and C, all as further amended by, and built and operated in accordance with, the conditions in Annexure ‘A’ hereto.

K G Hoffman

Commissioner of the Court

rjs

Conditions of Development Consent

H oomayun & Tiran Kermani v Ku-ring-gai Council

Long day childcare centre at

No. 93 Bannockburn Road, Turramurra.

i. A. DEFERRED COMMENCEMENT CONDITIONS

This consent shall not operate until the Council is satisfied that the following conditions have been met:

The Applicant shall submit documentary evidence that the subject site is benefited by the necessary easement(s) for stormwater drainage as far as the approved point of discharge to the public drainage system. This information is to include, as a minimum, registered title documents, together with the instruments describing the terms of necessary drainage easement (s);

(i) B. GENERAL CONDITIONS

The following apply once the consent is operational.

1 The development is to be carried out in accordance with Development Application No. 1453/03 and the plans and elevations in Exhibit A of this appeal prepared by Paris John Spana Design, reference number PJS03-10 DA-00 Issue B, DA-01 Issue B as annotated in red, DA-02 Issue B dated October 2003 all as updated to 16 August 2004; and the Stormwater Disposal Plan in Exhibit C being No. 031044 D01 and D02, both Rev A, dated October 2003, both as updated to August 2004 drawn by Northern Beaches Consulting Engineers Pty Ltd. and the landscape plan in Exhibit B being Drawing No. 04:8:4 Sheet L1 dated August 2004 by Wallman Partners Pty Ltd all as further amended by the conditions of consent.

1A In order to provide suitable disabled access, a folding wheelchair stair lift of the type described as CAMA Model 7 supplied by Master Lifts Pty Ltd shall be permanently installed and maintained in operating condition on the front entrance stair access off Bannockburn Road.

2 All building works shall comply with the Building Code of Australia.

3 The approved plans must be submitted to Sydney Water, before any work is commenced to ensure that the proposed structure meets that Authority’s By-Laws. Failure to submit these plans before commencing work will render the owner liable to a penalty and may result in the demolition of work.

4 The approved building shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plans and a Occupation Certificate has been issued.

5 The opening of any footway, roadway, road shoulder or any part of the road reserve shall not be carried out without a Road Opening Permit being obtained from the Council (upon payment of the required fee) beforehand.

6 For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plan and this Consent and Construction Certificate shall be kept on site at all times.

7 For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the road or footpath without the written approval being obtained from the Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.

8 HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours:

Mondays to Fridays inclusive: 7.00am to 5.30pm.

Saturdays: 8.00am to 12.00 noon.

Sundays and Public Holidays: Not Permitted.

The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant.

Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment.

9 For the purpose of public safety, a sign shall be erected on the site prior to any work commencing which is clearly visible from a public place stating that unauthorised entry to the site is not permitted and showing the name of the builder or another person responsible for the site and a telephone number for contact outside working hours. The sign may only be removed on satisfactory completion of the works.

10 A sign shall be erected in a prominent position on the site which states the name and contact details of the Principal Certifying Authority.

11 For the purpose of maintaining visual amenity, no permanent electricity supply poles are to be erected forward of the building setback without the prior consent of Council. It is the onus of the applicant to consult with the authorised statutory electricity provider prior to construction commencing to ensure that direct connection to the building is possible. Details of any proposed permanent pole must be submitted to and approved by Council prior to installation.

12 The applicant is advised that the Construction Certificate plans and specifications must comply with the provisions of the Building Code of Australia.

13 All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.

All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

14 Toilet facilities are to be provided, within 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.

15 To maintain residential amenity, all electrical services to the site are to be provided underground and must not disturb the root system of any trees. Please contact the energy supply authority’s local customer service office to obtain documentary evidence that the authority has been consulted and that their requirements have been met. This information is to be submitted to Council prior to the release of the Occupation Certificate.

16 If the work involved in the erection or demolition of a building:

a hoarding or fence must be erected between the work site and the public place.

If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

Any such hoarding, fence or awning is to be removed when the work has been completed.

17 All noise generating equipment associated with any proposed mechanical ventilation system/s shall be located and/or soundproofed so the equipment is not audible within a habitable room in any other residential premises before 7am and after 10pm Monday to Friday and before 8am and after 10pm Saturday, Sunday and Public Holidays. Furthermore, the operation of the unit outside these restricted hours shall emit a noise level of not greater than 5dbA above the background when measure at the nearest adjoining boundary.

18 The fence and footings shall be constructed entirely within the boundaries of the property.

19 The demolition is to be carried out in accordance with the guidelines contained in Australian Standard 2601-1991: The Demolition of Structures.

20 Access to demolition sites shall be protected as directed by the Principal Certifying Authority by the use of suitable fences or hoardings.

21 Where a new development is not commencing immediately following demolition, the demolition shall be limited to the extent of the footprint of the building/s on the site and no excavation shall be carried out.

22 Demolition work, including removal of material or debris from the site, on any building in a residential area shall only be carried out during the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted.

23 A person taking down or demolishing or causing to be taken down or demolished any building or part thereof shall, upon identifying or suspecting that asbestos is present in the building, immediately notify the Workcover Authority. The Authority is the controlling body for the safe removal, handling and disposal of asbestos. The Authority supervises and monitors contractors engaged in asbestos removal.

The requirements and standards imposed by the Authority, its consultants or contractors shall be complied with.

24 Erosion control measures shall be provided on demolition sites to prevent the siltation of watercourses and drainage systems.

25 Dust control measures shall be taken on all demolition sites so as to avoid a nuisance to adjoining properties and harm to the environment.

26 Soil on vacant sites is to be stabilised as soon as possible to prevent erosion and the site shall be kept clear of excess vegetation.

27 A temporary construction exit and sediment trap to reduce the transport of sediment from the site onto public roads shall be provided before demolition commences.

28 Existing stormwater lines on the site are to be blocked and made inoperable after buildings are demolished so as to prevent the conveyance of silt or sediments into the gutter or street drainage system.

29 All combustible material shall be removed from the site on a daily basis. Material shall not be burnt on the site.

30 Materials salvaged from a demolition may be stored on site provided they are non combustible, neatly and safety stockpiled and not likely to become a harbourage for vermin.

31 Trees and vegetation on a site shall not be disturbed except with the approval of the Council.

32 Fire hoses are to be maintained on site during the course of demolition.

33 Adequate precautions shall be taken to ensure the protection of adjoining premises and persons therein from damage and injury during the process of demolition.

34 The applicant or builder/developer is responsible for the cost of making good any damage that may be caused to any Council property as a result of work associated with the demolition.

35 A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:

Any such sign is to be removed when the work has been completed. This clause does not apply to:
1.7 building work carried out inside an existing building, or
1.8 building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

36 All demolition materials of value for re-use either on-site or elsewhere, shall be separated and made available for re-cycling.

37 To preserve and enhance the natural environment, all soil erosion and sediment control structures shall be inspected following each storm event and any necessary maintenance work shall be undertaken to ensure their continued proper operation. Sediment shall be removed from the soil erosion and sediment control structures when no more than forty percent (40%) capacity has been reached. These structures shall continue in proper operation until all development activities have been completed and the site fully stabilised.

38 For the protection of the health and safety of occupants, workers and the environment, any person renovating or demolishing any building built before the 1970's should be aware that surfaces may be coated with lead-based paint. Lead dust is a hazardous substance. Persons are required to follow the WorkCover recommended guidelines to prevent personal and environmental contamination.

39 To prevent pollution, all vehicles making a delivery to or from the site are to be covered to prevent loose materials, dust etc falling from the vehicles.

40 A Tree Preservation Order exists within the Ku-ring-gai Council area whereby the removal, lopping or destruction of any tree exceeding 5.0 metres in height or 4.0 metres in canopy spread (except where exempt as defined under Council’s Tree Preservation Order) without prior written consent of Council is prohibited.

Release of the Construction Certificate gives automatic approval to the removal ONLY of those trees located on the subject property within the footprint of a proposed new building/structure or within 3.0 metres of a proposed new dwelling. Where this application is for a building/structure other than a dwelling then ONLY trees within the area to be occupied by this building/structure may be removed. Other trees SHALL NOT be REMOVED or DAMAGED without an application being made under Council’s Tree Preservation Order.

41 The landscape works shall be completed prior to issue of the Occupation Certificate and maintained in a satisfactory condition at all times.

42 Landscape planting shall be carried out in accordance with Landscape Drawing No L1, 04:8:4 prepared by Wallman Partners Pty Ltd and dated August 2004, except as amended by the following:

43 Tree planting to satisfy tree retention/replenishment requirements shall be completed prior to the issue of the final Certificate of Compliance

44 Tree roots between 10mm and 50mm diameter, severed during excavation, shall be cut cleanly by hand and the tree subsequently treated with a root growth hormone and wetting agent, by an experienced Arborist/Horticulturist with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate.

45 No tree roots of 50mm or greater in diameter located within the specified radius of the trunk/s of the following, tree/s shall be severed or injured in the process of any site works during the construction period.

Tree/Location Radius From Trunk

Cupressus species (Cypress Pine) Adjacent to western (front) site boundary 4.0m

Lagerstroemia indica (Crepe Myrtle) x 2 Being retained adjacent to western (front) site boundary 3.5m

Jacaranda mimosifolia (Jacaranda) Adjacent to northern site boundary in neighbouring property 4.0m

Castenospermum australe (Qld Blackbean Tree)
Adjacent to northern site boundary in neighbouring property
5.0m

46 The applicant shall ensure that at all times during the construction period no activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order.

47 The following tree species shall be planted, at no cost to Council, in the nature strip fronting the property along Bannockburn Rd. The tree/s used shall be 25 litre container size specimen/s:

Tree Species

Tristaniopsis laurina (Water Gum) x 2
48 Transplanting of the following trees/shrubs shall be directly supervised by an experienced Arborist/Horticulturist with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate.
Species/Location
Lagerstroemia indica (Crepe Myrtle)
Adjacent to western (front) site boundary within proposed car parking footprint

49 On completion of the landscape works/tree planting or screen planting, a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to issue of final Certificate of Compliance.

50 All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works.

51 The hours of operation are to be restricted to:

Saturday: Closed

Sunday and Public Holidays: Closed

Consent is also given for up to 8 functions per year between 6.30 pm and 8 pm Monday to Friday only for the purposes of Parent/Teacher, Information Evenings, Guest Speakers or other Day Care related programmes including the Christmas concert. Only the Christmas concert may be held outdoors. The other functions must be held indoors to minimise disturbance to neighbours.

The development shall provide child minding services for a maximum number of 29 children at any one time. Unless otherwise approved by Council, there will be up to:

15 children 0-2 years old

7 children 2-3 years old

52 7 children 3-6 years old

CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE

53 The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate.

Note: Required if cost of works exceed $25,000.00.

54 It is a condition of consent that the applicant, builder or developer or person who does the work on this residential building project arrange the Builders Indemnity Insurance and submit the Certificate of Insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Council or other Principal Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the Builder's Indemnity Insurance for residential building work over the value of $12,000 and to satisfy the Council or other Principal Certifying Authority by the presentation of the necessary Certificate of Insurance so as to comply with the applicable requirements of Part 6 of the Home Building Act 1989. The requirements for the Builder's Indemnity Insurance does not apply to commercial or industrial building work or for residential work less than $12,000, nor to work undertaken by persons holding an Owner/Builder's Permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work).

55 The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project.

56 Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act, 1979 (the 'Act') are to be complied with:

57 Stormwater runoff from all hard surfaces generating runoff or landscaped areas which are not at natural ground level shall be piped to the interallotment stormwater drainage line benefiting the subject site. The interallotment line is to be covered by the necessary easement for drainage which may exist or need to be created under this consent.

58 To maintain capacity of the Public drainage system, an On-site Stormwater Detention System must be provided in accordance with Council’s Stormwater Management Manual. An overflow is to be incorporated that will direct any excess flow to the downstream drainage system and subsoil drainage is to be provided from the underside of the sediment control sump to the outlet line or other approved location.

NOTE 1: The on-site stormwater detention system and property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist’s certification that such excavation will not affect the longevity of the subject tree(s).

NOTE 2: If the applicant wishes to vary the prescribed storage and outflow volumes contained in Council’s Stormwater Management Manual, a detailed analysis must be provided following the guidelines set out in Council's requirements for on-site detention with full computations accompanying the submission including a flood routing analysis.

NOTE 3: All roof, driveway and other hard-surface runoff water is to be intercepted and directed to the on-site stormwater detention system. If some areas of hard-surface are unable to be directed to the detention system an adjustment to the rate of discharge is to be made to attain the required site discharge.

NOTE 4: If a landscaped surface type detention system is used the storage volume required is to be increased by 20%.

NOTE 5: The standard Council On-site Stormwater Detention Calculation Sheet is to be completed and included on design drawings. This is available from Council upon request.

59 The public footways and roadways adjacent to the site are to be maintained in a safe condition, at all times, during the course of the works. A safe pedestrian circulation route a minimum of 1.5m wide and with a pavement free of trip hazards must be maintained at all times on or adjacent to the public footways fronting the construction site. Where the footpath is damaged, repair works must be carried when directed by Council officers and in accordance with the relevant clauses of the current edition of AUS-SPEC.

“Traffic Control Devices for Work on Roads”

If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

60 The provision of temporary sediment and erosion control facilities and measures are to be installed, prior to the commencement of any works on the site to minimise and/or eliminate unnecessary erosion and loss of sediment. These facilities must be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps must be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority, with all silt being removed from the site, or to an approved location within the site.

61 Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), full hydraulic design documentation for the required interallotment drainage system from the subject property to the approved point of discharge to the public drainage system. Plans are to be prepared by a suitably qualified and experienced consulting civil/hydraulic engineer in accordance with Council’s Water Management DCP 47 (available on Councils website and at Customer Services) and the Plumbing and Drainage Code (AS3500). New pipes within the downstream easement drainage system must be sized to have adequate capacity to carry design flowrates, or detention system overflows where detention systems are to be provided, from the subject property. The following details must be included:

62 For safety reasons a 150mm standard kerb and a barrier, designed to withstand forces that may arise from vehicles using the car parking area, must be provided where the drop from the edge of the car parking area is greater than 200mm or where the grade from the edge of the car parking area exceeds 25%. Details must be provided to the Principal Certifying Authority and approved prior to the release of the Construction Certificate.

63 DRIVEWAYS AND FOOTPATHS: Approval of this Development Application is for works wholly within the property and does not imply approval of footpath or driveway levels, materials or location within the road reserve regardless of whether this information is shown on the Application.

The grading of such footpaths or driveways outside the property are to comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant, and this may be affected by the alignment levels fixed by Council.

Note 1: The construction of footpaths and driveways outside the property, in materials other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations.

Note 2: When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant Development Application drawing which indicates the position and proposed level (if applicable) of the proposed driveway at the boundary alignment. Failure to submit this information may delay processing.

64 Design drawings for linemarking of Council’s carpark at 91 Bannockburn Road are to be submitted to Council's Director of Open Space for approval. Car spaces and manoeuvring areas are to comply with AS2890.1:2004, and an appropriate entrance and exit are to be shown on the plan. The drawings are to be approved by Council's Director of Open Space and evidence of the approval is to be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. A footpath is to be included in the design, to Council’s standard detail, which provides a safe access from the car park to the main pedestrian entrance to the childcare centre.

65 Full design drawings of the proposed method of achieving the requirements for on-site stormwater detention and all supporting calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Council requirements. These must be submitted to and approved by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

66 The property drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) shall be designed and based upon a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) for impervious surfaces. Design drawings and calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Council's Stormwater Management Manual and the national Plumbing and Drainage Code. These must be submitted to and approved by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

NOTE 2: If the proposed drainage system involves piping underneath or within the building then the designer is to certify that the design is in accordance with AS3500.3.2:1998 and the BCA.

NOTE 3: All enclosed floor areas, including habitable and garage floor levels, are to be safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

67 For stormwater retention, provision of a 2000 litre rainwater tank within the subject property designed to capture and retain runoff from at least one roof downpipe after which runoff bypasses the tank and reverts to the main drainage system. Design drawings are to be prepared by a suitably qualified and experienced civil/hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

NOTE 2:If abutting a wall of the dwelling, the tank must be below the eaves line.

NOTE 4 If the tank is to be attached to a structure then a structural engineer is to certify the adequacy of the design of the structure to carry the tank.

NOTE 5:Maximum height of the tank is 1.8 metres above natural ground level where installed along the side boundary setback of a dwelling.

NOTE 6:The tank is to be a commercially manufactured tank designed for the use of water supply and to be installed in accordance with manufacturers specifications.

NOTE 7:The tank is to be located above an available landscaped area so that the tank may be readily used for watering purposes.

NOTE 8:The tank is to be fitted with a standard garden tap or similar which is to be clearly marked as not to be used for drinking purposes.

NOTE 10:Upon completion, certification from a suitably qualified person is to be submitted to the Principal Certifying Authority with respect to this condition being satisfied

68 To prevent surface stormwater from entering the building, the finished habitable ground floor level(s) of the building shall be a minimum of 150mm above adjacent finished ground level(s). The entire outside perimeter of the building must have overland flow escape routes which will protect all finished floor levels from flooding during times of complete subsurface drainage blockage.

69 Prior to issue of the Occupation Certificate, all disused driveway crossings, pipe crossing and/or kerb laybacks are to be reinstated as footway and kerb and/or gutter to the satisfaction of Council’s Development Engineer. Reinstatement works to generally match surrounding infrastructure. Any infrastructure within the road reserve along the frontage of the subject site or within close proximity which has been damaged as a result of construction works on the subject site is to be repaired to the satisfaction of Council’s Development Engineer, at the Applicants cost.

70 The creation of a Positive Covenant and Restriction on the Use of Land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the on-site stormwater detention facilities on the property. These must be created prior to issue of the Occupation Certificate. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site detention facilities" (available from Council on request) and to the satisfaction of Council.

For existing Titles, the Positive Covenant and the Restriction on the use of Land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the On-Site Detention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms.

71 In order to maintain Council’s database of as-constructed on-site stormwater detention systems, if the Principal Certifying Authority is not Council then a copy of the approved stormwater detention design, the works-as-executed drawings and the Engineer’s certification of the as-constructed system is to be provided to Council, attention Development Engineer, prior to issue of the Occupation Certificate.

72 Construction of the On-site Stormwater Detention System is to be supervised and upon completion a Certificate and Works-as-Executed (WAE) plan is to be submitted to the Principal Certifying Authority for approval, prior to issue of the Occupation Certificate. Certification is to be provided by a suitably qualified civil/hydraulic engineer and the WAE plan is to be prepared by a registered surveyor. The certifying engineer must to also complete and submit Council’s standard On-site Stormwater Detention Certification sheet.

The Works-as-Executed drawing(s) are to include all relevant levels including:
1.34 invert levels
1.35 surface or pavement levels
1.36 floor levels including adjacent property floor levels
1.37 maximum water surface level to be achieved in the storage zone
1.38 dimensions of basin(s), tank(s), pit(s), etc.
1.39 location(s) of basin(s), tank(s) and distances from buildings, boundaries, and easements, etc.
1.40 storage volume(s) provided and supporting calculations
1.41 size of orifice(s)

73 Construction of the property stormwater drainage works is to be supervised and upon completion certified by a suitably qualified person that the works were carried out in accordance with the approved plans. Certification must be provided to the Principal Certifying Authority prior to issue of the Occupation Certificate.

74 Prior to issue of an Occupation Certificate, the construction of the required interallotment drainage system must be completed in full. The designing engineer or equivalent professional engineer must supervise the works. At the completion of works, and prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, the following shall be submitted to the Principal Certifying Authority (PCA):

75 The linemarking in and access path from Council’s carpark are to be completed to the satisfaction of Council’s Director Technical Services prior to issue of the Occupation Certificate.

76 The Construction Certificate shall not be released until a Site Management Plan is submitted to the Principal Certifying Authority and approved by a suitably qualified professional.

The plan shall indicate the planned phases of the construction work, erosion and drainage management, tree protection measures, areas nominated for storing materials, site access and where vehicle parking is proposed, during construction.

77 A cash bond/bank guarantee of $2 000.00 shall be lodged with Council as a Landscape Establishment Bond prior to the release of the Construction Certificate to ensure that the landscape works are installed and maintained in accordance with the approved landscape plan or other landscape conditions.

It is the responsibility of the applicant to notify Council in relation to the refunding of the bond at the end of the 3 year period. Where a change of ownership occurs during this period it is the responsibility of the applicant to make all arrangements regarding transference of the bond and to notify Council of such.

78 The applicant shall ensure that no underground services (ie water, sewerage, drainage and gas) shall be laid beneath the canopy of any tree protected under Council’s Tree Preservation Order, located on the subject allotment and adjoining allotments.

A plan detailing the routes of these services shall be submitted to the Principal Certifying Authority for approval prior to the release of the Construction Certificate.

79 To preserve the following tree/s, footings of the proposed shall be isolated pier or pier and beam construction within the specified radius of the trunk/s. The piers shall be located such that no roots of a diameter greater than 50mm shall be severed or injured in the process of any site works during the construction period. The beam shall be located on or above existing soil levels.

The location and details of the footings shall be submitted to Council’s Landscape Development Officer and be approved prior to release of the Construction Certificate.

Tree/Location	Radius From Trunk
Cupressus species (Cypress Pine) Adjacent to western (front) site boundary	4.0m
Lagerstroemia indica (Crepe Myrtle) x 2 Being retained adjacent to western (front) site boundary	3.5m
Jacaranda mimosifolia (Jacaranda) Adjacent to northern site boundary in neighbouring property	4.0m
Castenospermum australe (Qld Blackbean Tree) Adjacent to northern site boundary in neighbouring property	5.0m 80 Certification confirming the Construction Certificate plans meet the requirements of the Building Code of Australia in regards to Section D and in particular access for persons with a disability shall be submitted to the Principal Certifying Authority prior to the release of a Construction Certificate.

81 The section of the proposed steel beam between the eastern and western sun shades shall be deleted to provide a visual break between built form and as such reduce the visual impacts on the adjoining open space. Details indicating this revision shall be submitted to the Principal Certifying Authority prior to the release of a Construction Certificate.

82 Prior to the release of a Construction Certificate a plan and specifications detailing the construction of the kitchen in accordance with the Food Act 2004 shall be submitted and approved by the Principal Certifying Authority.

83 Certification shall be obtained from the NSW Department of Community Services for the proposed development. A copy of such certification shall be provided to the Principal Certifying Authority prior to the release of a Construction Certificate.

CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING

84 Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works.

85 External finishes and colours are to be sympathetic to the surrounding environment. Samples of materials and finishes are to be submitted to and approved by Council prior to the commencement of work.

86 To preserve and enhance the natural environment, the downslope side of the proposed construction area of the site is to be enclosed with a suitable erosion control barrier (e.g. straw bales or geofabric fence) along contour before any other work on the site commences.

87 To preserve the following tree/s, no work shall commence until the area beneath the canopy of the following tree/s excluding that area of the footpath shall be fenced off for the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site:

Tree/Location Radius From Trunk

Cupressus species (Cypress Pine) Adjacent to western (front) site boundary 4.0m

Lagerstroemia indica (Crepe Myrtle) x 2 Being retained adjacent to western (front) site boundary 3.5m
88 The tree protection fence shall be constructed of galvanised pipe at 2.4 metre spacings and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres prior to work commencing.

89 Upon completion of the installation of the required tree protection measures you are required to contact Council on telephone 9424 0888 or facsimile 9418 1117 to arrange an inspection of the site, in this regard a minimum of 24 hours notice is required. Following the carrying out of a satisfactory inspection and subject to the payment of all relevant monies and compliance with any other conditions of approval, work may commence.

90 Deleted.

CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION

91 Certification or a Compliance Certificate confirming the proposed development meets the requirements of the Building Code of Australia for a Class 9b building shall be submitted to the Principal Certifying Authority prior to the release of an Occupation Certificate.

BUILDING CONDITIONS

92 The following are required details and must be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify.

_____________
K G Hoffman
Commissioner of the Court
rjs/ljr

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Citations

Kermani v Ku-ring-gai Council [2004] NSWLEC 692

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CITATION:	Kermani v Ku-ring-gai Council [2004] NSWLEC 692
PARTIES:	APPLICANT Hoomayun and Tiran Kermani RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10536 of 2004
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Demolition of an existing house - erection of a single storey pre-school child long day care centre
LEGISLATION CITED:	State Environmental Planning Policy No. 1 - Development Standards Development Control Plan No. 43 Ku-ring-gai Planning Scheme Ordinance
CASES CITED:
DATES OF HEARING:	21/09/2004
EX TEMPORE JUDGMENT DATE :	11/29/2004
LEGAL REPRESENTATIVES:	APPLICANT Ms H R Irish, barrister AGENT B T Goldsmith Planning Services RESPONDENT Ms M Hawley, solicitor SOLICITORS Phillips Fox