Leslie Parker and Safwen Hijazi v Leichhardt Council - [2005] NSWLEC 3

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Leslie Parker and Safwen Hijazi v Leichhardt Council [2005] NSWLEC 3
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT:
Leslie Parker and Safwen Hijazi
RESPONDENT:
Leichhardt Council

FILE NUMBER(S):
11121, 11122, 11123 of 2004

CORAM:
Watts C at 1

KEY ISSUES:
Development Application :- SEPP 1 objection in respect of FSR and landscaping - breach of building location zone - overdevelopment - adverse streetscape impacts - blocking views to the harbour - loss of privacy to Nos 2
2a and 4 Alexander Street.

LEGISLATION CITED:
Sydney and Middle Harbours Regional Environmental Plan and the Sydney and Middle Harbours & Parramatta River Development Control Plan, (REP and DCP) - Leichhardt Local Environmental Plan 2000, (LEP2000) - Amendment No. 4 to LEP2000, (Amendment 4) - Development Control Plan, (DCP) - Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED:
Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 - Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported)

DATES OF HEARING: 06/12/2004, 07/12/2004

DATE OF JUDGMENT:

01/18/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Ms M-L Taylor, solicitor
SOLICITORS:
Norman Waterhouse incorporating Taylor Kelso
RESPONDENT:
Mr G A Green, solicitor with Ms M Lyons, solicitor
SOLICITORS:
Pike Pike and Fenwick and Manager Legal Services Leichhardt Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

18 January 2005

11121, 11122, and 11123 of 2004 - Leslie Parker and Safwen Hijazi v Leichhardt Council

JUDGMENT

1 These appeals are under s 97 of the Environmental Planning and Assessment Act 1979, against the decisions of the Leichhardt Council (the council) to refuse development applications to remediate, subdivide, alter, add and erect dwelling houses land at Lot 2, DP 1013500 (No 3), Lot 1, DP 1013500 (No 5), being Nos 3, 5 and 5A Alexander Street, Balmain.

2 I visited the land in company with the parties on the morning of the first day of the hearing. I had previously visited the land in connection with an earlier appeal.

3 I have concluded that the applications should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979. I have conditional approved the development applications. The imposed conditions require the works be carried out in concert, so that the two new dwellings are erected on either side of the existing semi-detached draft heritage-listed terraced buildings to provide a unified group of buildings. To permit development of only one new building would not achieve the desired building ensemble. I have come to this view after considering in particular the evidence of Mr R Staas, heritage consultant.

The land

4 The land comprising the three lots is situated at the eastern end of the Balmain Peninsula, close to Mort Bay.

5 Nos 3 & 5 Alexander Street comprise a pair of Victorian semi-detached residences and 5A Alexander Street is a vacant lot with a pool constructed on it. Nos 3 & 5 Alexander Street are oriented to Mort Bay and each are proposed to be listed as heritage items under a draft Amendment 4 to Leichhardt Local Environmental Plan 2000. They are also within the Balmain Conservation Area under the same instrument. The existing dwelling houses are visible from Mort Bay and Balmain East foreshores, and the Alexander streetscape is important.

6 No 3 Alexander Street occupies a rectangular parcel of land with an area of about 511m2, a frontage to Alexander Street of about 13.5m, a northeastern boundary of about 13.5m and a depth of about 37m. Nos 5 and 5A Alexander Street combined, occupy a similar area of land with similar boundary dimensions. The land has a gentle slope down from the street, and a steeper slope towards the rear half. The overall change in level from Alexander Street to the rear is in the order of 3m.

7 The existing terraced buildings on Nos 3 & 5 Alexander Street comprise two main storeys above a basement level, with a dormer to an attic, and to the ‘rear’ there are two-storey wings, which extend towards Alexander Street. The foundations of these buildings are constructed of stone, and the walls above are of brickwork and the roof is hipped, sheeted in slate. This terraced building was built as a pair of houses, and is relatively intact and has been renovated. It is proposed to construct the new development, abutting these existing draft heritage-listed terraced buildings to create a symmetrical ensemble of buildings.

8 On-site car parking is provided on Alexander Street at the ‘rear’ (road frontage) for each dwelling. A carport has been provided at No 3 Alexander Street and at No 5 Alexander Street the car parking has been left open.

9 There is a masonry post and timber fence on Alexander Street for No 3 Alexander Street and an open palisade fence for No 5 Alexander Street. Private open space for each dwelling is provided on the northern ‘front’ of both existing dwellings. An in-ground lap-pool, abutting the southeastern boundary, has been provided for the occupants of No 5 Alexander Street. Works have commenced on the approved dwelling house at No 5A Alexander Street, which would be partly demolished if works were undertaken as now proposed.

10 A Eucalyptus microcorys (Tallowwood) tree is located adjacent to the northwestern boundary of No 5A Alexander Street. The arborist employed by the applicant is of the opinion that this tree is dying and should be removed. There are two (2) younger specimens of this species of tree adjacent to the northwestern boundary of No 5A Alexander Street located further to the north. There is also a Magnolia tree to the north of No 5 Alexander Street. These trees are visible from the street as well from Mort Bay and the nearby foreshore. There are small trees located on the southern boundary of the land to the north.

11 Development consent has been granted on land to the west at No 7 Alexander Street abutting No 5A Alexander Street to:

· D/1999/235 -Construct a residential flat building with four (4) dwellings over basement car parking, and strata subdivide; and

· D/2001/31 - Repair and replace a boatshed.

12 There are waterfront industrial uses with access to Mort Bay to the north east of the land. To the east of No 3 Alexander Street at No 1 Alexander Street, there is a raised open parking area for Sydney Ferries. At Nos 2, 2A and 4 Alexander Street opposite the land in Alexander Street are two-storey dwellings with terraces above garaging, facing northeast above the level of Alexander Street. No 55 Campbell Street is to the northwest of the land on the corner of Alexander and Campbell Streets.

13 Alexander Street is a traditional Balmain residential street with a mix of attached and freestanding residential buildings from the 19th and 20th Centuries that vary in size and scale. On the waterfront, industrial/ commercial uses predominate.

Relevant planning controls

Sydney and Middle Harbours Regional Environmental Plan and the Sydney and Middle Harbours & Parramatta River Development Control Plan, (REP and DCP)

14 There are no development standards relevant to the present application under the provisions of the REP and DCP. However, there are a number of objectives and ‘heads of consideration’ that apply to the land and are relevant. These include matters relating to natural, scenic, environmental, cultural and heritage qualities of foreshore land.

15 Clause 2 of the REP sets out relevant aims and objectives and cl 18 sets out relevant ‘heads of consideration’ including those relevant to the appearance of the development from the waterway and foreshores (Clause 18(a)) and the effect of development on any conservation area (Clause 18(j)).

16 The DCP identifies the site as within Landscape type ‘7’ and performance criteria requires that new residential development [should be in] a style, form and spacing compatible with existing residential development, and “…vegetation is integrated within the development to minimise the contrast between natural and building elements.”

Leichhardt Local Environmental Plan 2000, (LEP2000)

17 Under the provisions of LEP2000 the land is zoned ‘Residential’ and all aspects of the proposal, including alterations and additions, subdivision, erection of a new dwelling house, are permissible with consent.

18 A floor space ratio (FSR) of 0.7:1 applies to development on land in the Balmain Precinct under cl 19(2) of the LEP2000 and 40% of each site must be landscaped area under cl 19(3)(a) of the LEP2000. Of that landscaped area 25% must be soft landscaped under cl 19(3)(b) of the LEP2000.

19 A minimum subdivision area of 200m2 applies under cl 19(4) of the LEP2000. Under cl 30 of the LEP2000 the heads of consideration that apply to subdivision are set out. The proposed dwellings on each of the proposed new lots would not comply with the FSR standard or the Landscaped Area standard. No consent could issue unless a State Environmental Planning Policy No 1-Development Standards objection, (SEPP1) is upheld.

20 LEP2000 sets out the aims, objectives and heads of consideration relevant to the proposal on the land. Of relevance are the General Objectives in cl 13(2) (built and natural environment and amenity). Clause 15 of LEP2000 sets out objectives for heritage conservation. Clause 17 of LEP2000 sets out objectives for housing generally.

21 Clause 16(7) of LEP2000 sets out provisions relating to development in the vicinity of an heritage item. Heritage items in the vicinity include:

· Nos 68-70 Campbell Street - Formerly ‘Kinsale’ group of houses - Local significance;

· No 72 Campbell Street - House - Local significance;

· Nos 1-7 Trouton Street - Four terrace-houses - Local significance;

· No 19 Trouton Street - The Old Place (two storey sandstone house) - Local significance; and

· Nos 1-15 Wells Street – ‘Yeend's Terrace’ - Regional significance.

22 Clause 16(8) of LEP2000 sets out a requirement for assessment of the impact of new works, development or subdivision on the heritage significance of a conservation area.

Amendment No. 4 to LEP2000, (Amendment 4)

23 Nos 3 and 5 Alexander Street are proposed as heritage items of local significance under Amendment 4 to LEP2000. Amendment 4 has been advertised and adopted by the council for forwarding to the Minister and as yet has not yet been gazetted. As Amendment 4 is a draft instrument, the proposal is required to be assessed against the provisions of cl 16(2) of LEP2000, which sets out matters for consideration for development affecting heritage items.

Leichhardt Development Control Plan, (DCP)

24 Under the provisions of DCP the land is within the Mort Bay Distinctive Neighbourhood and the Campbell Street Hill Precinct.

25 Under DCP specific requirements for residential development include:

· a building envelope control that provides for a 3.6m building envelope generally (in the Mort Bay Distinctive Neighbourhood and the Campbell Street Hill Precinct), and also that a 6m wall-height may be suitable where two-storey development is dominant. The council accepts that the proposals for Nos 3A and 5A Alexander Street would comply with the 6m building envelope control.

· a building location zone (BLZ) that would require new development to be located so as to align with the front and rear of adjacent buildings. The proposal for No 3A Alexander Street would extend forward towards the north and the waters of Mort Bay and in front of the existing building at No 3 Alexander Street and hence the council maintains would not comply with the BLZ. No 5A Alexander Street would similarly extend to the northeast of No 5 Alexander Street, but would be ‘inside’ the footprint of, or to the south of the northern face of the proposed building, to the north at No 7 Alexander Street and would comply.

· minimum side setbacks which are subject to performance requirements contained in Section B1.2 of DCP. These performance requirements would allow discretionary variations subject to specified performance criteria. The council considers that the proposals would not comply with the side setback requirements to side boundaries.

· minimum front setbacks of 1 metre as contained in the Mort Bay Distinctive Neighbourhood Part 10.6.5 of DCP. However, where the established setback in the immediate area, within 3 houses of the subject, is different, the setback for new development should be consistent with the prevailing setback. The council considers that the proposals for Nos 3A and 5A Alexander Street would comply with the front setback control as assessed relative to the setbacks of Nos 3 & 5 Alexander Street.

· there is no minimum requirement for car parking under Section A8, of DCP. A maximum of two spaces are permitted for resident parking for each ‘dwelling’ and it is proposed that one car space per dwelling would be provided and this would not offend any car parking requirement under DCP.

26 Performance based requirements under DCP, relevant to the proposal have been prepared by the council:

Clause Comment

A4 Urban form and design

A5 Amenity

A7 Heritage and conservation (relevant primarily because the site is in the Balmain conservation area, because Nos 3 & 5 Alexander Street are proposed heritage items, and because there are heritage items in the vicinity

A8 Parking Standards and controls. This section includes the numerical standards for as well as design parameters for function

A10 Suburb Profiles. The site is located in Balmain and the ‘Mort Bay Distinctive Neighbourhood’ A10.6.5 and ‘Campbell Street Hill’ Precinct

B1.1 Site Layout, subdivision and design

B1.2 Building form, envelope controls

B1.3 Car parking

B1.4 Site drainage and stormwater control

B1.5 Elevations and materials

B1.6 Front gardens and dwelling entries

B1.7 Fences

B2.8 Landscaping

B3.1 Residential amenity and energy efficiency

B3.2 Private open space

B3.3 Visual privacy

B3.4 Access to views

84.4 Foreshore development

27 The council prepared a summary of non-compliances with planning controls/ standards:

28 The council considered that the proposals would not comply with the FSR development standard in cl 19(2) of LEP2000 for Balmain of 0.7:1.

Clause 19(2) - Floor Space

Except where the development is carried out in accordance with clause 23(1), consent must not be granted to the carrying out of residential development on land within a density area if it will result in the floor space ratio exceeding the ratio shown for the density area.

29 The proposals would result in FSRs:

Dwelling Floor space m2 Site Area m2 FSR

Existing at No 3 262 243 1.08:1

Proposed at No 3 252 268 0.94:1

Existing at No 5 268 249 1.08:1

Proposed at No 5A 242 262 0.92:1

30 The applicants have prepared and submitted objections State Environmental Planning Policy No 1 – Development Standard, (SEPP1) under LEP2000 seeking approval of the applications notwithstanding the non-compliance with the FSR standard.

31 The council contends that the proposals would not comply with the landscaped area development standard set out in Clause 19(3) of LEP2000.

Clause 19(3) -Landscaped Area

(a) the minimum landscaped area for residential development is 40% of the site area, and
(b) 25% of the landscaped area required under paragraph (a) or 10% of the total site area:

(i) is to be on natural or unpaved ground that is not overhung by or on top of any structure, and

(ii) is to be permeable, and

(iii) is to be appropriate for substantial deep planting.

32 The proposals would result in landscaped areas:

Dwelling Landscaped Area
ms Site Area (m2) Landscaped Area %

Existing at No 3 79 243 33%

Proposed at No 3 97 268 36%
5%

Existing at No 5 71 249 29%

Proposed at No 5A 91 262 35%

33 The applicants have prepared and submitted objections State Environmental Planning Policy No 1 – Development Standard, (SEPP1) under LEP2000 seeking approval of the applications notwithstanding the non-compliance with the landscaped area standard.

34 The council maintains that the proposals would not comply with the minimum subdivision standard under cl 19(4) of LEP2000, and the minimum soft landscaped area standard in cl 19(3) of LEP2000.

35 The council maintains that the proposals would not comply with the BLZ on Level 1, and Level 2, of No 3A Alexander Street, and the side setback requirements for all dwellings.

The proposal and its history

36 Development applications No D/2003/202, D/2003/203 and D/2003/204 were lodged with the respondent council on 3 April 2003. These are listed below:

DA Description Received Notified Consideration/ determination

D/2003/202 Adjustment of the approved 3 April 2003 11 June 2003 - Recommended for approval

subdivision 25 June 2003 Refused for 14 reasons 10 February 2004

boundaries of Nos. 5 and 5A

Alexander Street, and the

construction of a new three-storey

dwelling and lap pool and

removal of a

tree at 5A Alexander Street

D/2003/203 Remediation of site at 3 Alexander 3 April 2003 12 June 2003 - Recommended for approval

Street, Torrens 11 July 2003 Refused for 13 reasons 10 February 2004

title subdivision

into two allotments, and

construction of a new

three-storey dwelling

and lap pool on the new allotment

D/2003/204 Remediation of the site and 3 April 12 June 2003 - Recommended for approval

alterations and additions to 2003 11 July 2003 Refused for 13 reasons 10 February 2004

the existing

dwelling and

construction of a new lap pool

at 3 Alexander Street

37 Nos 3 & 5 Alexander Street comprise a pair of attached dwellings that are proposed as heritage items under a draft amendment to the planning controls. Nos 3 & 5 Alexander Street originally occupied a site area of 511m2 each with a frontage to Alexander Street of about 13.8m. The original No 5 Alexander Street has now been subdivided to create two lots, known as Nos 5 and 5A Alexander Street (Development Consent D/2001/820 and Subdivision Certificate Approval SC/2003/11).

38 The development applications involve:

· retention of the existing pair of dwelling houses, with alterations and a new pool for No. 3 Alexander Street, retention of existing pools for 5 and 5A Alexander Street;

· subdivision of No 3 Alexander Street, so as to provide a new lot, to the side of the existing dwelling house;

· amendment to the approved subdivision of Nos 5 & 5A Alexander Street;

· construction of a new attached dwelling on each of the two ‘new’ lots. In effect, there will be a change from a pair of ‘attached dwellings’, to a ‘terrace’ of four dwelling houses, each on a separate lot; and

· remediation works on 3 Alexander Street.

39 The proposed new dwelling at No 5A Alexander Street would comprise on the lower ground floor, three (3) bedrooms, two (2) bathrooms, a water closet and a rumpus room. On the first floor there would be a water closet, dining room, a kitchen and a lounge room, a wrap-around waterfront-facing terrace and a northwest facing lightwell. On the ground floor there would be a bedroom, a bathroom and walk-in-wardrobe and an elevated waterfront-facing terrace.

40 The proposed new dwelling at No 3A Alexander Street would comprise four (4) bedrooms and a bathroom on the lower ground floor. On the first floor there would be an entry foyer, a study, a water closet and a lounge room, a waterfront-facing wrap-around terrace and a southeast-facing lightwell. On the ground floor, there would be a kitchen, dining room, living room, and an elevated waterfront-facing terrace is proposed. One car parking space is proposed for each of the existing and proposed dwellings.

41 The proposed new dwellings at Nos 3A and 5A would be attached to Nos 3 and 5 Alexander Street, and would be of a contemporary flat-roofed design, with the roof level below the level of the eaves of the existing residences at Nos 3 & 5 Alexander Street. The external finishes would include timber battening and aluminium framed glazing and balustrades.

42 The council previously had approved at No 5A Alexander Street a detached dwelling house and work to erect this has commenced. Sone of these works would need to be demolished to provide for the new dwelling. The proposed new attached dwelling house on No 5A Alexander Street would be different to that approved by the council, as it would include a flat roof, in lieu of a pitched roof and detached form.

43 It is proposed also to adjust the boundary between Nos 5 and 5A Alexander Street so that the:

· allotment containing the existing dwelling at No 5 Alexander Street would have a frontage to Alexander Street of 6.55m; and

· allotment known as No 5A Alexander Street would have a frontage of 7.1m; and

· common boundary between Nos 5 and 5A Alexander Street would be located on the face of the northwestern wall of the existing dwelling at No 5 Alexander Street.

44 It is proposed to subdivide No 3 Alexander Street in to create a new allotment with a frontage of 6.7m for the allotment containing the existing dwelling and a frontage of 7m for the allotment containing the proposed dwelling. The resulting site areas would be:

No 3 proposed No 3A proposed (new) No 5 proposed 5A proposed (new)

Site area m2 243 268 249 262

Floor area m2 206 264 205 261

Landscaped area m2 197 93 102 101

45 It is proposed to alter and add to the existing dwelling at No 3 Alexander Street and to:

· demolish the existing carport, laundry, bathroom and entry areas and an internal wall;

· brick-up the existing south-east facing openings at ground/ first floor;

· reconfigure the ground floor to provide a new entry foyer, kitchen and water closet;

· provide a new first floor bathroom within the existing building envelope; and

· provide a new attic level bathroom and walk-in-wardrobe within the existing building envelope.

46 In letters to the applicants, dated 11 July 2003, the council sought further information concerning the FSR, landscaped area, bulk and scale, privacy impacts, potential loss of views from adjoining properties and stormwater disposal. In response, the applicant submitted amended plans on 2 September 2003, which are the plans before the Court.

Notification

47 The applications were notified to nearby owners and occupants and the council received eight submissions from:

· J Linnell, resident of No 55 Campbell Street, Balmain;

· D Porter (D/2003/202 only), resident of No 66 Campbell Street, Balmain;

· E Kendall, resident of No 70 Waterview Street, Balmain;

· P McCormick, resident of No 2a Alexander Street, Balmain;

· T Henry, resident of No 2 Alexander Street, Balmain;

· S Kuppe, - owner of No 4 Alexander Street, Balmain (D/2003/203 & D/2003/204); PO Box 488, Paradise Point, QLD, 4216;

· J Gelderen, resident of No 49 Campbell Street, Balmain;

· K Burrell - on behalf of the owners of Nos 2, 2a and 4 Alexander Street, Balmain, No 48 Victoria Road, Rozelle, NSW, 2039.

48 Concerns included:

· overdevelopment;

· adverse streetscape impacts;

· blocking views to the harbour;

· loss of privacy to Nos 2, 2a and 4 Alexander Street;

· unacceptable side boundary setbacks;

· traffic and car parking problems;

· unsympathetic to the Court decision with respect to No 5 Alexander Street;

· SEPP 1 objection not made out;

· loss of property value;

· loss of 19th century water well; and

· loss of the last significant eucalypt tree.

49 As the land is within 40 metres of Sydney Harbour the applications would be on ‘protected land’ under the Rivers and Foreshores Act 1948 and hence are for ‘integrated development’. The Waterways Authority has informed the council by letter, dated 26 June 2003, that a Part 3A permit would not be required provided measures for control of construction/ environmental impact etc are taken into account.

The council’s decision

50 By notice dated 18 February 2004, the council refused development application No D/2003/202 to adjust the boundary and to erect a new dwelling on Lot 5A Alexander Street for the following reasons:

1. The proposed development does not comply with clause 19(2) of Leichhardt Local Environmental Plan 2000 in respect of maximum floor space ratios, and a SEPP1 objection lodged in respect of clause 19(2) is not supported for reasons of excessive building envelope, bulk and scale.
2. The proposed development does not comply with the landscaped area provision in clause 19(3) of LEP 2000.
3. The proposed development does not respect the heritage significance of the proposed item of environmental heritage, which is an important building when viewed from the street and the harbour, and a conservation area.
4. The proposal is considered an overdevelopment of the subject site.
5. The proposed development does not satisfy the general objectives for the environment and amenity under clause 13(2) of the Leichhardt LEP 2000.
6. The proposed development does not satisfy the general objectives for heritage under clause 13(4) of Leichhardt LEP 2000.
7. The proposed development does not satisfy the general objectives the urban design under clause 14 Leichhardt LEP 2000.
8. The proposed development does not satisfy the general objectives for heritage conservation under clause 15 of Leichhardt LEP 2000.
9. The proposed development does not comply with the access to views controls under Part B 3.4 of Leichhardt DCP 2000.
10. The proposed development is not considered to be on the public interest.
11. Also significant tree,

Eucalyptus microcorys (Tallowwood).

12. Non-compliance with sidewall heights under clause B 1.3 in DCP 2000.
13. On-site car parking is forward of the building line and does not comply with clause B 1.3 and DCP 2000.
14. Loss of privacy to No 7 Alexander St., contrary to clause B 4.3 of DCP 2000.

51 The other development applications were refused for similar reasons.

The hearing

52 The appeals were filed on 14 September 2004.

53 At the hearing the Court heard evidence from Mr S Harding, consultant town planner, who was the Court-appointed expert in the matter. His statement came to the Court as Exhibit 4.

54 Mr R Staas heritage consultant on behalf of the applicant prepared a report in Exhibit C in respect of the applications. Professor R McKay, AM, heritage consultant on behalf of the respondent prepared a report in Exhibit 3 and jointly with Mr Staas, a report on heritage matters in Exhibit 5.

55 On the site inspection evidence was given on behalf the respondent by:

· Ms S Kuppe, - owner of No 4 Alexander Street, Balmain (D/2003/203 & D/2003/204); PO Box 488, Paradise Point, QLD, 4216;

· Mr T Henry, resident of No 2 Alexander Street, Balmain; and

· Ms E Kendall, resident of No 70 Waterview Street, Balmain.

56 Ms M D Laidlaw, consultant town planner, prepared the statement of basic facts, based on a report and calculations dated 10 February 2004 supplied by Mr I Betts, town planner of the council.

The issues

57 On 19 October 2004 the council filed a statement of issues:

Issue 1 Floor space ratio

The proposed development does not comply with the FSR development standard set out in Clause 19(2) of Leichhardt LEP 2000.

Clause 19(2) - Floor Space

"Except where the development is carried out in accordance with clause 23(1), consent must not be granted to the carrying out of residential development on land within a density area if it will result in the floor space ratio exceeding the ratio shown for the density area" as follows: - Balmain - 0.7:1.

The proposal would result in the following floor space ratios (FSRs):

Dwelling	Floor Space	Area (m2)	FSR
m2
Existing at	268	249	1.08:1
No 5
Proposed	242	262	0.92:1
at No 5A

Council's view is that the exceedances are in each case significant and the SEPP submitted by the applicant has not demonstrated why the development should not comply and why compliance would otherwise be 'unreasonable or unnecessary (noting that the approved development for 5A Alexander Street provides an appropriate building form and does comply with the FSR standard).
Council's view regarding the current proposal is that it is not compatible with the conservation area or the suite of controls under DCP 2000 (including performance standards in Parts A5, A7, B 1.2, B 1.5, B 1.6, B 1.7, B2.8, B3.4, B4.4 as well as controls under Part B1.2 - side setbacks and Building Location Zone) and will have an adverse impact on residential amenity, including view impact.
Accordingly the SEPP 1 should not be supported, particularly having regard to the objective of the density control as set out in Clause 17(a) of LEP 2000 viz ''To provide development standards to ensure that the density and landscaped areas of new housing reflect are complementary to and compatible with the style, orientation and pattern of surrounding buildings, works and landscaping and take into account the suite of controls in Leichhardt Development Control Plan 2000 to achieve the desired future character'.

Issue 2: Landscaped area

The proposed development does not comply with the Landscaped Area development standard set out in Clause 19(3) (a) of Leichhardt LEP 2000. Clause 19(3) - Landscaped Area

Clause 19(3) of LEP 2000 requires:

(a) the minimum landscaped area for residential development is 40% of the site area, and

(b) 25% of the landscaped area required under paragraph (a) or 10% of the total site area:

(i) is to be on natural or unpaved ground that is not overhung by or on top of any structure, and

(ii) is to be permeable, and

(iii) is to be appropriate for substantial deep planting."

The proposals would result in the following Landscaped areas:

Dwelling	Landscaped	Site Area m2	Landscaped
Area m2	Area
Existing at No 5	71	249	29%
Proposed at No5A	91	262	35%

Council's view is that the variations to the Landscaped Area standard are not supported by the SEPP 1 objections submitted by the applicants, which have not demonstrated that the SEPP 1 is well founded, nor has the SEPP 1 provided reasons as to why strict adherence would be unreasonable or unnecessary (noting that the approved development for 5A Alexander Street provides development which does comply with this standard).

Issue 3: Appropriateness of built form, elevations and materials

The Council considers the attached style and flat roof form of the proposed dwelling 5A Alexander St to be contrary to the preferred roof form (controls for Mort Bay, DCP 2000, 'maintain roof forms with pitched, gable or hipped roofs'). The attached dwelling style is inappropriate and detracts from the architectural integrity and character of the proposed heritage items at 3 & 5 Alexander Street. The proposed additions will confuse and undermine the fundamental character of these buildings and their contribution to the conservation area, including views from the street ('streetscape') as well as from the water ('impact on the foreshore environment').

The proposed elevational treatment of the new dwelling at 5A Alexander Street is incompatible with, and unsympathetic to, the dwellings at 3 & 5 Alexander Street, which are proposed as heritage items pursuant to DLEP No 4. The box-like form, use of timber slatted material and aluminium-framed glazing/balustrades for external treatment, inappropriate fenestration treatment (including long, horizontally proportioned windows and excessive areas of glazing) are considered unacceptable. The treatment of the front setback to Alexander Street is considered too cluttered and detracting to the setting of 3 & 5 Alexander Street. Council will make reference to the following provisions of LEP 2000 and DCP 2000:

LEP	Comments
Clause 13(2)	General Objectives built and natural environment and amenity
Clause 15	Objectives for heritage conservation.
Clause 16	Heritage and conservation
DCP
A4	Urban Form and Design
A7	Heritage and Conservation
A10	Suburb Profiles. The site is located in 'Balmain Suburb (A10.6) the Mort Bay Distinctive Neighbourhood' (A10.6.5) and 'Campbell Street Hill' precinct
B1.1	Site Layout, subdivision and design
B1.2	Building form, envelope and siting (including setback and envelope controls
B 1.3	Car parking
B1.5	Elevations and materials
B1 .6	Front gardens and dwelling entries
B1.7	Fences
B2.8	Landscaping
B4.4	Foreshore development

Issue 4: Insufficient information

Whether sufficient information has been submitted to allow the consent authority to determine the health of the Eucalyptus Microcorys (Tallowwood) tree and whether it should be removed.

Issue 5: Issues raised by residents:

Issues raised:

A. The proposal is another example of overdevelopment of this site, being excessive in floor space, and would not comply with the applicable FSR.

B. Adverse streetscape impacts: the buildings are important heritage buildings in this area, when viewed from both the street and the harbour. The proposals, together with the development at No 7 Alexander Street, would greatly diminish the heritage, architectural and aesthetic significance, and therefore, contributory value both existing dwellings contribute to the streetscape, harbour and amenity of the area. The large building mass (continuous massing of built form and lack of voids between Nos 3 and 7 Alexander Street and 8m walls exceeding the envelope control), its mass to the height of the eaves, flat roof forms and box-like structures would create a dominating built form and would be incompatible with the existing buildings and the streetscape.

C. The proposal, together with the approved development at No 7 Alexander Street, will impede upon views to the harbour from the street and adjoining properties, including No 55 Campbell Street and Nos 2, 2a and 4 Alexander Street, as well as views from the harbour to Mort Bay.

D. Loss of privacy to Nos 2, 2a and 4 Alexander Street.

The proposed timber slats are inadequate;

The flat roof to the new dwelling is of concrete, indicating that there is an intention to have roof terraces/gardens in the future (roof terraces/gardens formed part of D/2000/781, which was refused in the L & E Court), which could be constructed without consent.

E. The proposal would have unacceptable side boundary setbacks.

F. Increased traffic and car parking problems in an area where car parking demands are currently not met by existing owners.

G. The L & E Court judgement with respect to No 5 Alexander Street, approved development and approved development at No 7 Alexander Street all provide guidelines or constraints which have not been successfully resolved in the applications before Council. For example, a flat roof and cubic form was deemed to be inappropriate for the site and the Conservation Area. Significantly, an application was submitted to Council subsequent to the unsuccessful appeal which provided a pitched roof form, confirming that an appropriate standard of development can be provided on the site in accordance with the guidelines outlined in the judgment as well as Council standards and controls.

H. This proposal is similar to a development at No 5 Alexander Street a number of years ago which was refused in the L & E Court (D/2000/781).

I. The SEPP 1 Objection lodged by the applicant:

Has not been submitted in the proper manner;

Fails to address the objectives of the standard as well as the objectives of SEPP 1 and the Environmental Planning and Assessment Act; and

Fails to demonstrate why compliance is unnecessary and unreasonable, and what special circumstances exist as to why varying the standard should be supported by Council.

J. Loss of property value.

K. No reference is made to a large 19th century well under the carport of No 3 Alexander Street, or how water flow is to be dealt with.

L. Loss of the last significant eucalypt tree on the site (since the developer arrived, four eucalypts have been removed) and resultant detrimental impacts on the heritage value of the site. The previous DA was approved on the basis that this tree be protected. Any damage the tree has suffered has been due to the work, including remediation) carried out on the site, and it would be reasonable to request that the tree be retained and/or a replacement tree be planted.

M. If any development is allowed:

· It should not exceed the building envelope control of the area;
· It should be setback in-line with the main body of buildings at Nos 3 and 5 Alexander Street; and
· The roof form should be sympathetic or differential to existing buildings, or sloping with dormer windows.

The evidence and findings

FSR and the SEPP1 objection
59 The amended SEPP1 objection in relation to FSR non-compliance prepared by Mr Fletcher, came to the Court as Exhibit B, and followed Mr Harding’s earlier criticism of the original SEPP1 objections. Having considered the amended SEPP1 objection and the heritage evidence before the Court, Mr Harding concluded that compliance with the FSR standard of LEP2000 would be unreasonable and that he was comfortable with the variation.
60 I have applied the principles laid down by his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 paras 22 – 26 to the SEPP1 objection to FSR. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported):

…it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

Environmental Planning and Assessment Act 1979,

Landscaping and SEPP1 objection
63 Having considered the amended SEPP1 objection to landscaped area and the heritage evidence before the Court, Mr Harding concluded that compliance with the landscape area standard of LEP2000 would be unreasonable and that he was comfortable with the variation.
64 Applying the principles laid down by his Honour Justice Lloyd in Winten Property Group Limited and those of Hooker Corporation Pty Limited v Hornsby Shire Council.
65 Taking each question posed by his Honour Lloyd J and answering it:
· First, there was no dispute between the parties that the landscaped area standard in LEP2000 is a development standard. The proposals would be around 25% deficient of the standard (29% provided and 40% required).
· Second, the underlying object or purpose of the standard was considered by Mr Harding and clarified to mean in the amended SEPP1 objection to maintain a vegetative appearance to and from the water within each precinct.
· Third, non-compliance with the development standard would not be inconsistent with the aims of the Policy, and would not tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979 as the northern yard areas would provide an appropriate setting for the proposal.
· Fourth, I am satisfied that in the circumstances of this case that compliance with the development standard would be unreasonable or unnecessary. In relation to this question, a development, which complied with the development standard, might not enable development of a scale as imposing as one before the Court that would not comply. The proposal conforms at the upper levels with the BLZ. Some residential development could be expected to occur on each site in conformity with the Town Plan and the proposals for symmetrical extensions of the existing draft heritage listed terraced buildings would be of appropriate scale. The north-facing gardens are proportionately large of scale and would complement the scale of the proposal. Some canopy trees might eventually be established as indicated in the landscape plan. Sufficient area of each of the sites has been set aside for deep soil soft landscaping and the deficiency in landscaped area is not likely to impact greatly on the planting of trees.
· Fifth, I have concluded that objection well founded.
66 My findings are supported by the council’s planning report dated 10 February 2004, states, [Note: Exhibit 1 p 34]:

Generally, the front and rear gardens as recommended would be appropriately landscaped, and would provide an acceptable soft curtilage to the existing dwellings, while large trees in the corners of the allotments of the new dwellings would add to and frame the reading of the structures when viewed from the water.

Building location zone, (BLZ)
68 The lower ground floor of each new dwelling would come forward of the BLZ by around 1m and 2.5m. This breach would be under the stairs leading to the ground floor terrace, and under the ground floor terrace of the proposals. As such the breach would not be visible from many points outside the land. From within the land the shadow line beneath the stairs and terrace would not be so pronounced.
69 The upper floors of the proposed new dwellings would comply with the BLZ and it would be these parts of the new works that would be visible from nearby vantage points. The excess would not have no impact on the development of the adjacent site at No 1 Alexander Street. The development at No 7 Alexander Street is proposed to be setback from the side boundaries of that land and would not be impacted upon by the breach in the BLZ.
70 Mr Harding observed that the BLZ encroachment would:
· have little or no impact on the visual aspects of the bulk and scale as viewed from adjoining properties;
· have little or no impact on the amenity of the adjoining properties in terms of sunlight, privacy or views;
· not impact on existing vegetation;
· would have little impact on the extent of non-compliance with the floor space ratio or landscaped area requirement if compliance with the BLZ were required;
· have little or no impact on the streetscape or view of the building from the surrounding area; and
· make but a minor difference to the provision of private open space in the development.

Resident Submissions

Overdevelopment
73 In so far as FSR and landscaped area are indicators of bulk the proposal on first blush might be seen as an overdevelopment of the land as both these parameters are numerically in breach of the standards set down in the LEP2000 part of the Leichhardt Town Plan. However, for the reasons given above, I am satisfied that in the particular circumstances of this case, that dispensation should be granted under SEPP1 to both these breaches. The proposals would be large in scale and suitable as extensions to the existing grand draft heritage listed terraced buildings that they abut. I would not refuse the applications for reason of overdevelopment.
74 In so far as the breach of the BLZ would decrease the landscaped area and could be seen as a factor in considering the question of overdevelopment, I am satisfied that in the particular circumstances of this case that breach would be minor and would not warrant refusal of the applications.

Adverse streetscape impact
75 I am satisfied that the proposed new dwellings would form appropriate extensions to the existing draft heritage listed terraced buildings that they abut, when viewed from the street. There was no evidence to the contrary. I would not refuse the applications for this reason.

Blocking views to the harbour
76 Mr Harding assessed the applications in the light of Section 1.2 of DCP and the requirement of side boundary setbacks. The proposal with nil setbacks would not meet those side boundary setback requirements and would block views towards the water from vantage points to the south. Given that the wall height, as measured at the street elevation, would be around 7m the setback would be about 3.5m according to the graph on page B11 of the DCP.
77 Mr Harding pointed out that to impose such a setback would effectively exclude the development of the land, as the allotment widths are around 7m.
78 However, on p B11 of the DCP it is stated that the council may allow buildings to side boundaries where, among other things, the pattern of development would not be compromised. Mr Harding assessed the variation and observed:
· The setbacks of the upper floors are staggered and range from 900mm to 2.0m, with the 2.0m setbacks being provided at the western and southern corners of the first floor of the new dwellings.
· There will be little or no impact on adjoining properties as a result of the variation as most views would be removed as a result of the height of the proposal, which would comply with the requirements of the Town Plan.
· The pattern of development will not be compromised, as these are the last potential developments on this side of Alexander Street.
· The DCP allows the ground floor level to have a zero setback, effectively closing any water views or vistas from Alexander Street.
· Access to the rear of the property can be obtained through the dwelling; this issue alone is not sufficient to warrant requiring a 900mm setback for the development.
· The heritage experts agree that an acceptable heritage solution can be found irrespective of whether the proposed dwellings are attached or detached from the existing building. The setback is not required to preserve heritage integrity.

“The variations to the side boundary setbacks do not create or result in any significant impacts on

adjoining properties or adverse planning outcomes"”

Loss of privacy to Nos 2, 2a and 4 Alexander Street
85 The design turns its back on these properties to the south of the land and across Alexander Street and windows in the southern elevation are small or screened, [Note: Exhibit A Drawing No 0244a/DA11b]. I am satisfied that there would be no unreasonable loss 86 For the above reasons, the appeals are upheld.
Conditions
87 The conditions are those in Exhibit 8 as amended. I am not persuaded by the applicant’s submissions to remove those deferred commencement conditions requiring the proposed new dwellings to be erected in concert. The reason d’etre of the applications is to provide new dwellings in scale with the existing grand draft listed terraced buildings. If the new work cannot be carried out to provide symmetrical additions to the existing buildings the application should be reconsidered and might eventually fail as a result. For similar reasons, I have not deleted Condition No 3 for No 3 Alexander Street, as requested by the applicant’s advocate, as all the works should be carried in concert.
88 Condition No 14 for No 3 Alexander Street is amended to require the landscaping plans to show an Angophora costata (Sydney Redgum) planted in the northeastern garden.
89 The northeastern elevation in Exhibit 8 was added to the list of approved plans in the various conditions of consent. This plan shows the additional mullions to the louvred screens. Reference is made to Plan No 0244b/DA13b as amended by hand 6 December 2004 in Exhibit 8 in all the orders.
90 Conditions for the new buildings at 3A and 5A Alexander Street are to be amended to the effect that:
· The glazing pattern shall be modified to be divided into vertical panels by mullions and be fitted with sliding louvred panels to the outside face on the ground and first floor levels as per Exhibit 8. Details to be provide with the Construction Certificate documentation.
· The steel verandah frame connections to the party wall at the first floor level and roof level shall be deleted to create a visual gap between the existing building and the new work.
91 Condition 11 of the conditions for Nos 5 and 5A is to be amended to include the additional words relating to the structural details of the new dwelling:

Part of the existing works and structure may be removed and the applicant is to provide a detailed plan of the works to be retained and certification of a structural engineer as to the adequacy of the remaining structure to support the new works.

Orders
92 My orders are:
1. The appeals under s 97 of the Environmental Planning and Assessment Act 1979 are upheld.
2. The State Environmental Planning Policy No 1 objections to the standards of floor space ratio and landscaped area are upheld.
3. Development application No D/2003/202, D/2003/203 and D/2003/204 lodged with the respondent council on 3 April 2003, to remediate, subdivide, alter, add and erect dwelling houses land at Lot 2, DP 1013500 (No 3), Lot 1, DP 1013500 (No 5), being Nos 3, 5 and 5A Alexander Street, Balmain are approved subject to Conditions 1 to in Annexures A, B and C.
4. The exhibits with the exception of Exhibits A, B, D, E, H, 1, 2, 8 and 11 may be returned.

S J Watts
Commissioner of the Court
sw

In the Land and
Environment Court
of New South Wales

No. 11121 of 2004

Leslie Parker

Applicant

Leichhardt Council

Respondent

Order

The Court orders that:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. The State Environmental Planning Policy No 1 objections to the standards of floor space ratio and landscaped area are upheld.

3. Development application No D/2003/202, lodged with the respondent council on 3 April 2003, to remediate, subdivide, alter, add and erect dwelling houses land at Lot 1, DP 1013500 (No 5), being Nos 5 and 5A Alexander Street, Balmain is approved subject to Conditions 1 to 55 in Annexure A.

4. The exhibits with the exception of Exhibits A, B, D, E, H, 1, 2, 8 and 11 may be returned.

Ordered: 18 January 2005

By the Court

Susan Dixon
Registrar
sw

Appeal No 11121 of 2004

Conditions of development consent

Annexure A

Leslie Parker v Leichhardt Council

Nos 5 and 5A Alexander Street, Balmain

Pursuant to s81(1)(a) of the Environmental Planning & Assessment Act 1979 a “Deferred Commencement Consent” is granted to Development Application No: D/2003/202 for a boundary adjustment between 5 and 5A Alexander Street, Balmain and the construction of a new three (3) storey dwelling and lap pool and the removal of a tree at 5A Alexander Street at 5 and 5A Alexander Street, Balmain subject to the following conditions:

Environmental Planning and Assessment Act 1979

B. Pursuant to section 80A(1)(c) of the Environmental Planning and Assessment Act 1979 the partially built structure in accordance with Development Consent No. 2001/820 and Construction Certificate 2004/293 (referred to in A above) in respect to 5A Alexander Street, Balmain is to be partially demolished prior to commencement of this consent.

This consent will not operate unless the information in satisfaction of deferred commencement conditions A to B above is submitted to Council within 12 months of the date of this consent.

General Conditions

The development shall be implemented in accordance with the details set out on the Plan Nos 0249/DA04b and 0249/DA05b, prepared Kennedy Associates Architects and dated December 2004, 0249/DA06b, prepared by Kennedy Associates Architects and dated December 2004, 0249/DA07b, prepared by Kennedy and Associates Architects and dated December 2004, 0249/DA08b and 0249/DA09b, prepared by Kennedy Associates Architects and dated December 2004, 0249/DA11b and 0249DA/12b, prepared by Kennedy and Associates Architects and dated December 2004, 0244b/DA13b (as amended by hand 6 December 2004 in Exhibit 8) and 0249/DA14b, prepared by Kennedy Associated Architects and dated December 2004, and L01, prepared by Mather & Associates Landscape Architects P/L and dated March 2003 and on the application form and on any supporting information received with the application except as amended by the conditions specified hereunder.

The new dwelling is classified as a Class 1a building under the Building Code of Australia.

occupation

Eucalyptus microcorys (Tallowwood)

The Construction Certificate plans must include reference to the removal of the abovementioned tree, and identify the tree by shading them in the colour red.

Design Changes

In order to preserve the privacy of adjoining properties, amended plans are to be submitted detailing the following changes:

a) Horizontal louvres, fixed upwards at an angle of 45 degrees to horizontal, shall be provided adjacent to any openings associated with the north-west facing lightwell of No 5A Alexander Street.
b) A horizontal louvre screen, fixed upwards at an angle of 45 degrees to horizontal, shall be erected adjacent to the return to the first floor waterfront facing terrace of the new dwelling at No 5A Alexander Street, and shall extend the full depth of the return.
c) The glazing pattern shall be modified to be divided into vertical panels by mullions and be fitted with sliding louvred panels to the outside face on the ground and first floor levels as per Exhibit 8. Details to be provide with the Construction Certificate documentation.
d) The steel verandah frame connections to the party wall at the first floor level and roof level shall be deleted to create a visual gap between the existing building and the new work.

Reason: To ensure adequate privacy is provided between Nos 5A and 7 Alexander Street.

Conditions that must be satisfied before a Construction Certificate is issued

Before the issue of a Construction Certificate for the erection of a building, the applicant or successor shall lodge a payment or a security bond for road, footpath and drainage works in the form of a bank guarantee, for the sum of $11,600. The costs associated with the drainage works shall be assessed using Council’s adopted construction charges current at the time.

Should any of Council’s property and/or the environment sustain damage during the course of construction, or if the construction works put Council’s assets or the environment at risk, Council may carry out any works necessary to repair the damage and/or remove the risk. The cost of these works will be deducted from the security.

An inspection fee of $113.85 is also required to be paid to Council prior to the release of the Construction Certificate.

The amount nominated is current for the 2003/2004 financial year only and is revised each financial year. The amount payable must be consistent with Council’s Fees & Charges in force at the date of payment.

Reason: For the protection of council’s assets and the environment.

Prior the issue of a Construction Certificate, the applicant shall submit to and obtain approval from Council or the accredited certifier of a construction and site management plan that clearly sets out the following:

a) what actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from building activities, crossings by heavy equipment, plant and materials delivery, or static loads from cranes, concrete pumps and the like,

b) the proposed method of loading and unloading excavation machines, building materials, formwork and the erection of any part of the structure within the site,

c) the proposed areas within the site to be used for the storage of excavated material, construction materials and waste and recycling containers during the construction period,

d) how it is proposed to ensure that soil/excavated material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways,

Where it is proposed to:

an application for a construction zone, a pumping permit, an approval to stand a mobile crane or an application to pump water into a public road, together with the necessary fee in accordance with Council’s adopted schedule of fees and charges shall be submitted to Council and approval obtained before a Construction Certificate is issued.

A separate approval under the Roads Act 1993 must be obtained for the enclosure of a public place (hoarding).

Reason: To protect the environment and the amenity of the locality.

Prior the issue of a Construction Certificate, the applicant shall submit to and obtain approval from Council or the accredited certifier of a Soil and Water Management Plan and Statement which clearly identifies site features, constraints and soil types together with the nature of proposed land disturbing activities and also specifies the type and location of erosion and sediment control measures and also rehabilitation techniques necessary to deal with such activities.

The Plan shall be compatible with any Construction and Site Management Plan and shall ensure the following objectives are achieved, namely:

a) To minimise the area of soils exposed at any one time.

b) To identify and protect proposed stockpile locations.

d) To identify revegetation techniques and materials.

e) To prevent soil, sand, gravel, and any other sediment or spoil from leaving the site in an uncontrolled manner.

g) To ensure regular monitoring and maintenance of erosion and sediment control measures and rehabilitation works.

The plan is to be prepared in accordance with “Managing Urban Stormwater: Soils and Construction Manual” prepared by NSW Department of Housing (1998).

Reason To protect the environment and amenity of the area and stormwater drains, creeks, rivers and Sydney Harbour.

The applicant shall prepare an erosion and sedimentation control plan in accordance with Part 4 of the guidelines titled "Pollution Control Manual for Urban Stormwater", as recommended by the Environmental Protection Authority.

Any stormwater runoff collected from the site must be treated in accordance with the Guidelines, before discharge off the site to comply with the Clean Waters Act 1970, or other subsequent Acts.

Where sedimentation control basins are provided discharge shall be to the requirements of the Environment Protection Authority.

a) "Sedimentation and Erosion Control” - Department of Conservation and Land Management.

The plan must be submitted with the application for a construction certificate.

Further information may be obtained from:-

9. Waste Management Plan - Construction

Waste Planning Guide for Development Applications (Planning for Less Waste,

a) Estimations of quantities and type of materials to be reused, recycled or left over for removal from site;

b) Identification on a plan of on site material storage areas during construction, waste storage, recycling and composting areas;

Reason: To encourage waste minimisation (avoidance source separation, re-use and recycling) and ensure efficient storage and collection of reusable, recyclables and waste.

10. Materials Board and Colour Scheme

a) Detailed on the plans noted in condition 1 of this consent; and

Details are to be submitted with the application for a Construction Certificate.

Reason to ensure adequate aesthetics of existing and new buildings.

11. Structural Details – Residential Dwelling

Details and plans of all structural works must be provided and prepared by a practising Structural Engineer with suitable indemnity cover and is to be submitted to Council or the accredited certifier prior the issue of a Construction Certificate. Part of the existing works and structure may be removed and the applicant is to provide a detailed plan of the works to be retained and certification of a structural engineer as to the adequacy of the remaining structure to support the new works.

Reason: So that the structural adequacy of the design may be assessed in detail before construction commences.

To minimise vibration damage and loss of support to buildings in close proximity, a report shall be prepared by a qualified Geo-technical engineer detailing the maximum size of hammer to be used where a hydraulic hammer is to be used within 30 metres of any building (other than a path or a fence). The report is to be submitted to Council prior the issue of a Construction Certificate.

Reason: To reduce possible damage to adjoining premises.

Landscaping details are to be submitted with the application for a Construction Certificate. The landscape design shall be in accordance with the landscape plan, being Drawing No L01, prepared by Mather & Associates Landscape Architects P/L and dated March 2003 submitted with the application, however, this plan shall be amended to reflect the plans identified in condition 1 of this consent.

Reason: To ensure landscaping enhances the appearance of the development and amenity for residents, and that it contributes to energy efficient design.

14. Tree – Proposed protection measures

The existing Magnolia tree located adjacent to the north-eastern boundary of No 5 Alexander Street must be retained and protected:

Details of the protective measures shall be included with the landscape plan to be submitted with the Construction Certificate and shall be to the satisfaction of Council or the accredited certifier.

The existing stormwater drainage line that conveys the stormwater runoff from this property, through the drainage easement(s) to Parramatta River, must be inspected and the condition assessed. Any repair or upgrade works that are required to bring the drainage line to an appropriate standard, must be undertaken prior to issue of the Construction Certificate.

Certification of the stormwater drainage line by a suitably qualified Civil Engineer with NPER registration with the Institution of Engineers Australia, must be submitted to the Principle Certifying Authority prior to issue of the Construction Certificate.

A drainage design certified by a licensed plumber or practicing Hydraulic or Civil Engineer must be prepared and submitted to the Principle Certifying Authority prior to the issue of a Construction Certificate. The design must show stormwater runoff from all roof and paved areas within the property, collected in a system of gutters, pits and pipelines discharged to the drainage system within the drainage easement at the rear of the property.

The proposed car parking spaces and associated structures shall be adjusted as follows:

a) The entry gate design shall be modified to ensure that a minimum clear length of 5500mm is provided to the car space.

b) The floor level of the car space shall be adjusted to be a minimum of 150mm above the adjacent gutter invert levels in Alexander Street at the front boundary.

c) Any adjustments to the car space floor slab, required to achieve the above requirement, must be provided within the property boundary.

d) Steps or ramping will be required between the car space and the dwelling due to level adjustments required above.

Details shall be submitted to the Principle Certifying Authority prior to issue of the Construction Certificate demonstrating compliance with these requirements.

An application must be made to Council’s Engineer for the issue of a Certificate fixing levels at the property alignment prior to commencement of building work to ensure that the finished floor levels of new structures or land adjoining the roadway satisfy Council’s roadway design requirements. If in doubt, contact Council’s Operations Division, telephone 9367 9006, to avoid being required to carry out later rectification work.

a) Construction of vehicular crossings.

b) Closure of redundant vehicle crossings and replacement with concrete kerb and gutter.

This development consent does NOT give approval to any works on Council property. A SEPARATE APPROVAL IS REQUIRED UNDER SECTION 138 AND 139 OF THE ROADS ACT 1993 FOR ANY WORKS REQUIRED BY THIS CONDITION. The Construction Certificate must not be issued until Council’s Manager – Assets has issued the Applicant with a written consent under the Roads Act.

An “Application to carry out works in a Public Road” form must be completed and lodged, with the Application fee, at Council’s Customer Services counter. Detailed engineering drawings (plans, sections and elevation views) and specifications of the works required by this Condition must accompany the Application form.

Upon receipt of approval from Council, all amounts payable must be paid as soon as practicable to enable the works to be constructed prior to the completion of the development.

A heat pump hot water system or an energy efficient (minimum five star-rated) gas hot water service shall be installed in a position that maximises its efficiency by minimising heat loss in pipe-work. The service must be adequately sized to meet the anticipated maximum hot water demand of the dwelling. Where a pump is used to circulate water between tank and remote panels, any noise associated with the pump must not exceed 5dB at the property boundary.

Details to be submitted to Council or the accredited certifier prior the issue of a Construction Certificate.

To reduce both summer heat gain and winter heat loss, the proposed residential building(s) is to be insulated to achieve energy efficiency and thermal comfort. Insulation to the following R value standards is to be provided;

Details are to be included in the specification submitted with the Construction Certificate.

To minimise the damage to the environment, no rainforest timbers or timbers cut from old growth forests are to be used in the construction of buildings.

The Construction Certificate is to specify the timbers to be used. These are to be limited to plantation timbers grown on Australian farms, or State Forest Plantations, or recycled timbers.

A rainwater tank is to be installed and is to be designed and installed for outdoor and/or toilet usage.

Tank water supply taps are to be marked “tank water only - do not use for human consumption” unless a water purification system is also installed. It must also be maintained, as not to create a nuisance and both inlets and outlets must be protected against mosquito access by use of mesh or other mosquito barrier method.

The tank and any support structure must be set on a suitable, structurally sound, erosion resistant foundation. Any support structure elevating the tank above ground level must be in accordance with a design prepared by a practising structural engineer.

If a pump is installed it must not cause noise disturbance to neighbouring properties and should be weatherproofed and encased in sound insulation material. The tank must be covered or enclosed entirely to prevent children from wilfully or accidentally entering, climbing or falling into the tank.

The rainwater tank shall comply with AS/NZ 2179-1994 and AS2180-1986.

Details are to be submitted to the Council or the accredited certifier before the issue of a Construction Certificate.

To minimise the impact of the pool on adjoining properties and to ensure the safety of the pool area the design and construction of the swimming pool and associated equipment shall comply with the following requirements:

a) The Swimming Pools Act 1992 & Regulations

b) Australian Standard 1926 – Swimming Pool Safety

c) Protection of the Environment Operations Act 1997

d) The swimming pool pump and associated equipment shall be isolated so that the noise emitted does not exceed 5 dB above the background level in any octave band from 63.0 Hz centre frequencies inclusive at the boundary of the site. Note: The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1-1989.

Reason To ensure the safety and amenity of the area.

25. Swimming pool waste waters

Swimming pool wastewater must be collected and connected in accordance with the requirements of Sydney Water.

Details are to be submitted with the application for a Construction Certificate and are to be to the satisfaction of Council or the accredited certifier.

Reason: To ensure the disposal of water is in accordance with the Sydney Water Corporation.

26. Swimming pool overflow waters

Swimming pool overflow waters must be collected and connected to the swimming pool wastewater disposal system.

Details are to be submitted with the application for a Construction Certificate and are to be to the satisfaction of Council or the accredited certifier.

Reason: To ensure the disposal of water is in accordance with the Sydney Water Corporation.

A Notice of Requirements for a Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water.

Sydney Water may require you to construct works and/or pay developer charges, details of which will be provided in a Notice of Requirements from Sydney Water. You should make immediate application for a Certificate and obtain a Notice of Requirements. Early advice will avoid problems in providing water and sewer services to your development and adverse impacts on lot layout, other service or design of buildings, driveways and landscaping.

Sydney Water written advice that you have obtained the Notice of Requirements must be submitted to Council or the accredited certifier prior to the Construction Certificate being issued.

Conditions that must be satisfied before a Subdivision Certificate is issued

28. Subdivision plans

Prior the issue of a Subdivision Certificate, the applicant is to submit a survey plan, prepared by a registered surveyor, and at least six copies for certification by the General Manager or delegate.

Reason: Because it is in the public interest that the plan is certified by the General Manager or delegate, pursuant to the provisions of the Environmental Planning and Assessment Act 1979 (or if relevant Local Government Act 1919) and that Council retain and catalogue a copy of that plan.

29. Section 73 Certificate

Prior the issue of a Subdivision Certificate, the applicant is to submit a certificate under Section 73 of the Water Board (Corporisation) Act 1994.

12. Acquisition and/or Augmentation of Public Open Space

Prior issuing a Construction Certificate for works in connection with this development consent, a monetary contribution of $21,046 shall be paid to Leichhardt Council for the cost of acquiring and augmenting public open space in lieu of its physical provision.

This contribution has been imposed pursuant to s.94 of the Environmental Planning and Assessment Act, and the Leichhardt Open Space and Recreation Contributions Plan, after identifying that the development will increase the demand for local and district open space within the area.

It has been calculated on the basis of one new dwelling >120m2 @ $21,046 per dwelling.
The Contribution Plan may be inspected or a copy purchased at the Customer Service Counter in Council’s Administration Centre, 7-15 Wetherill Street, Leichhardt during office hours.

Reason: To ensure adequate provision is made for provision of public services and amenities required as a consequence of the development being carried out.

13. Community Facilities and Services

Prior to issuing a Construction Certificate for works in connection with this development consent, a monetary contribution of $3,486.07 shall be paid to Leichhardt Council for the cost of providing community facilities and services.

This contribution has been imposed pursuant to s.94 of the Environmental Planning and Assessment Act, 1979 and the Leichhardt Community Facilities and Services Contributions Plan, after identifying that the development will increase the demand for community facilities and services within the area.

It has been calculated on the basis of one (1) new dwelling >160m2 @ $3,486.07 per dwelling.
The Contribution Plan may be inspected or a copy purchased at the Customer Service Counter in Council’s Administration Centre, 7-15 Wetherill Street, Leichhardt during office hours.

Reason: To ensure adequate provision is made for provision of public services and amenities required as a consequence of the development being carried out.

14. Transport and Access - Works & Facilities

Prior to issuing the Construction Certificate:

a) A monetary contribution of $159.48 shall be paid to Leichhardt Council for the cost of providing Local Area Traffic Management works and facilities, calculated on the basis of one (1) new dwelling >120m2 @ $159.48 per dwelling.

b) A monetary contribution of $819.95 shall be paid to Leichhardt Council for the cost of providing Access to Balmain Pensinsula, which has been calculated on the basis of one (1) new dwelling >120m2 in area @ $819.95 per dwelling.
c) A monetary contribution of $34.13 shall be paid to Leichhardt Council for the cost of providing Bicycle Works, which has been calculated on the basis of one (1) new dwelling >120m2 in area @ $34.13 per dwelling.

The above contributions have been imposed pursuant to s.94 of the Environmental Planning and Assessment Act, 1979 and the Leichhardt Contributions Plan - Transport and Access, after identifying that the development will increase the demand for transport and access works and facilities within the area.

The Contribution Plan may be inspected or a copy purchased at the Customer Service Counter in Council's Administration Centre 7-15 Wetherill Street, Leichhardt during office hours.
Reason: To ensure adequate provision is made for provision of public services and amenities required as a consequence of the development being carried out.

15. Materials Board and Colour Scheme
The materials and colours proposed for the external fabric of the building shall be as:

a) Detailed on the plans noted in condition 1 of this consent; and
b) Identified on the Sample Board prepared by Kennedy Associates Architects and dated 2/4/03.

Details are to be submitted with an application for a Construction Certificate.

Reason to ensure adequate aesthetics of existing and new buildings.

16. Structural Details – Residential Dwelling

Details and plans of all structural works must be provided and prepared by a practising Structural Engineer with suitable indemnity cover and is to be submitted to Council or the accredited certifier prior the issue of a Construction Certificate.

Reason: So that the structural adequacy of the design may be assessed in detail before construction commences.
17. Vibration damage

To minimise vibration damage and loss of support to buildings in close proximity, a report shall be prepared by a qualified Geo-technical engineer detailing the maximum size of hammer to be used where a hydraulic hammer is to be used within 30 metres of any building (other than a path or a fence). The report is to be submitted to Council prior the issue of a Construction Certificate.

Reason: To reduce possible damage to adjoining premises.

18. Landscaping details

Landscaping details are to be submitted with the application for a Construction Certificate. The landscape design shall be in accordance with the landscape plan, being Drawing No L01, prepared by Mather & Associates Landscape Architects P/L and dated March 2003 submitted with the application, however, this plan shall be amended to reflect the plans identified in condition 1 of this consent.

Reason: To ensure landscaping enhances the appearance of the development and amenity for residents, and that it contributes to energy efficient design.

19. Stormwater Drainage

The existing stormwater drainage line that conveys the stormwater runoff from this property, through the drainage easement(s) to Parramatta River, must be inspected and the condition assessed. Any repair or upgrade works that are required to bring the drainage line to an appropriate standard, must be undertaken prior to issue of the Construction Certificate.

Certification of the stormwater drainage line by a suitably qualified Civil Engineer with NPER registration with the Institution of Engineers Australia, must be submitted to the Principle Certifying Authority prior to issue of the Construction Certificate.
20. A drainage design certified by a suitably qualified Civil Engineer with NPER registration with the Institution of Engineers Australia must be prepared and submitted to the Principle Certifying Authority prior to the issue of a Construction Certificate. The design must show stormwater runoff from all roof and paved areas within the property, collected in a system of gutters, pits and pipelines discharged to the drainage system within the drainage easement at the rear of the property. The design must include the provision of an interallotment drainage line through the proposed lot containing the existing dwelling at No 3 Alexander Street, to be located within a 1m wide drainage easement adjacent to the north-eastern boundary.

Further, the new swimming pool associated with the existing dwelling at No 3 Alexander Street shall be shortened such that a setback is provided adjacent to the north eastern boundary of the property to facilitate drainage works. Details of the required works shall be submitted to the Principle Certifying Authority prior to the issue of a Construction Certificate.

21. Car Parking

The proposed car parking space and associated structures shall be adjusted as follows:

a) The entry gate design shall be modified to ensure that a minimum clear length of 5500mm is provided to the car space.

b) The floor level of the car space shall be adjusted to be a minimum of 150mm above the adjacent gutter invert levels in Alexander Street at the front boundary.

c) Any adjustments to the car space floor slab, required to achieve the above requirement, must be provided within the property boundary.

d) Steps or ramping will be required between the car space and the dwelling due to level adjustments required above.

Details shall be submitted to the Principle Certifying Authority prior to issue of the Construction Certificate demonstrating compliance with these requirements.

22. Levels Certificate

An application must be made to Council’s Engineer for the issue of a Certificate fixing levels at the property alignment prior to commencement of building work to ensure that the finished floor levels of new structures or land adjoining the roadway satisfy Council’s roadway design requirements. If in doubt, contact Council’s Operations Division, telephone 9367 9006, to avoid being required to carry out later rectification work.

23. The applicant is required to bear the cost of the following works across the full frontage of the site, being No’s 5 and 5a Alexander Street:

a) Construction of vehicular crossings.

b) Closure of redundant vehicle crossings and replacement with concrete kerb and gutter.

c) Replace concrete footpath.

This development consent does NOT give approval to any works on Council property. A SEPARATE APPROVAL IS REQUIRED UNDER SECTION 138 AND 139 OF THE ROADS ACT 1993 FOR ANY WORKS REQUIRED BY THIS CONDITION. The Construction Certificate must not be issued until Council’s Manager – Assets has issued the Applicant with a written consent under the Roads Act.

An “Application to carry out works in a Public Road” form must be completed and lodged, with the Application fee, at Council’s Customer Services counter. Detailed engineering drawings (plans, sections and elevation views) and specifications of the works required by this Condition must accompany the Application form.
Four weeks should be allowed for assessment. Works generally must be in accordance with Council’s “Specification for Road and Drainage Works” and relevant Australian Standards.

Upon receipt of approval from Council, all amounts payable must be paid as soon as practicable to enable the works to be constructed prior to the completion of the development.
The cost of adjustment or relocation of any public utility service shall be borne by the owner/applicant

24. Street Numbering

An application for street numbering shall be lodged with Council for approval, prior to the issue of a Construction Certificate.

NOTE: Notification of all relevant authorities of the approved street numbers, shall be carried out by Council.

Reason: To ensure all properties have clearly identified street numbering, particularly for safety and emergency situations.

25. Hot Water System

A heat pump hot water system or an energy efficient (minimum five star-rated) gas hot water service shall be installed in a position that maximises its efficiency by minimising heat loss in pipe-work. The service must be adequately sized to meet the anticipated maximum hot water demand of the dwelling. Where a pump is used to circulate water between tank and remote panels, any noise associated with the pump must not exceed 5dB at the property boundary.

Details to be submitted to Council or the accredited certifier prior the issue of a Construction Certificate.

26. Insulation – Energy efficiency

To reduce both summer heat gain and winter heat loss, the proposed residential building(s) is to be insulated to achieve energy efficiency and thermal comfort. Insulation to the following R value standards is to be provided;

* R1.5 for roofs and ceilings (combined value)
* R1.0 for walls

Details are to be included in the specification submitted with the Construction Certificate.
27. Plantation or recycled timbers

To minimise the damage to the environment, no rainforest timbers or timbers cut from old growth forests are to be used in the construction of buildings.

The Construction Certificate is to specify the timbers to be used. These are to be limited to plantation timbers grown on Australian farms, or State Forest Plantations, or recycled timbers.

28. Rainwater Tank

A rainwater tank is to be installed, and is to be designed and installed for outdoor and/or toilet usage.
The overflow for the rainwater tank shall be connected into a drainage line and conveyed to the street gutter, common drainage line or otherwise disposed of on site. Overflow must not be directed into a sewer pipe.

Tank water supply taps are to be marked “tank water only - do not use for human consumption” unless a water purification system is also installed. It must also be maintained, as not to create a nuisance and both inlets and outlets must be protected against mosquito access by use of mesh or other mosquito barrier method.

The tank and any support structure must be set on a suitable, structurally sound, erosion resistant foundation. Any support structure elevating the tank above ground level must be in accordance with a design prepared by a practising structural engineer.

If a pump is installed it must not cause noise disturbance to neighbouring properties and should be weatherproofed and encased in sound insulation material. The tank must be covered or enclosed entirely to prevent children from wilfully or accidentally entering, climbing or falling into the tank.

The rainwater tank shall comply with AS/NZ 2179-1994 and AS2180-1986.

Details are to be submitted to the Council or the accredited certifier before the issue of a Construction Certificate.
29. Minimise impact of pool on adjoining properties

To minimise the impact of the pool on adjoining properties and to ensure the safety of the pool area the design and construction of the swimming pool and associated equipment shall comply with the following requirements:

a) The Swimming Pools Act 1992 & Regulations

b) Australian Standard 1926 – Swimming Pool Safety

c) Protection of the Environment Operations Act 1997

d) The swimming pool pump and associated equipment shall be setback a minimum 1.5m from surrounding boundaries and sound insulated and/or isolated so that the noise emitted does not exceed 5 dB above the background level in any octave band from 63.0 Hz centre frequencies inclusive at the boundary of the site. Note: The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1-1989.
Evidence from an appropriately qualified person that these design requirements have been met shall accompany the application for the Construction Certificate.

Reason To ensure the safety and amenity of the area.

30. Swimming pool waste waters

Swimming pool wastewater must be collected and connected in accordance with the requirements of Sydney Water.

Details are to be submitted with the application for a Construction Certificate and are to be to the satisfaction of Council or the accredited certifier.

Reason: To ensure the disposal of water is in accordance with the Sydney Water Corporation.

31. Swimming pool overflow waters

Swimming pool overflow waters must be collected and connected to the swimming pool wastewater disposal system.

Details are to be submitted with the application for a Construction Certificate and are to be to the satisfaction of Council or the accredited certifier.

Reason: To ensure the disposal of water is in accordance with the Sydney Water Corporation.

32. Swimming pool – Consultation with Energy Australia

Energy Australia must be consulted in respect of the location of the proposed swimming pool relative to any overhead electrical wiring within a distance of 9 metres of the pool. Details of consultation with Energy Australia are to be submitted to Council or the accredited certifier prior the issue of a Construction Certificate.

Reason: To ensure compliance with the requirements of Energy Australia .
33. Sydney Water

A Notice of Requirements for a Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water.

Sydney Water may require you to construct works and/or pay developer charges, details of which will be provided in a Notice of Requirements from Sydney Water. You should make immediate application for a Certificate and obtain a Notice of Requirements. Early advice will avoid problems in providing water and sewer services to your development and adverse impacts on lot layout, other service or design of buildings, driveways and landscaping.

Sydney Water written advice that you have obtained the Notice of Requirements must be submitted to Council or the accredited certifier prior to the Construction Certificate being issued.

Conditions that must be satisfied before a Subdivision Certificate is issued

34. Subdivision plans

Prior the issue of a Subdivision Certificate, the applicant is to submit a survey plan, prepared by a registered surveyor, and at least six copies for certification by the General Manager or delegate.

Reason: Because it is in the public interest that the plan is certified by the General Manager or delegate, pursuant to the provisions of the Environmental Planning and Assessment Act 1979 (or if relevant Local Government Act 1919) and that Council retain and catalogue a copy of that plan.

35. Section 73 Certificate

Prior the issue of a Subdivision Certificate, the applicant is to submit a certificate under Section 73 of the Water Board (Corporisation) Act 1994.

Reason: To ensure the provision of services is available to service the subdivision .

Conditions that must be completed before work commences for remediation or construction

36. Site Controls

Sediment and erosion controls must be in place before work is commenced on the site. The control strategies must be consistent with the technical requirements set out in the Sydney Coastal Councils’ “Stormwater Pollution Control Code for Local Government.”

Material from the site is not to be tracked onto the road by vehicles entering or leaving the site. At the end of each working day any dust/dirt or other sediment shall be swept off the road and contained on the site and not washed down any stormwater pit or gutter.

A sediment and erosion control plan must be prepared and identify appropriate measures for bunding and siltation fencing. Any such erosion and sedimentation controls shall also include the protection of stormwater inlets or gutter systems within the immediate vicinity of the site.

The sediment and erosion control measures are to be inspected daily and defects or system failures are to be repaired as soon as they are detected.

37. Sydney Water – Stamped Plans

Prior to the commencement of work, the approved plans must be submitted to the appropriate Sydney Water Office to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water’s requirements, the approved plans will be appropriately stamped.

Council or the accredited certifier must ensure that Sydney Water has stamped the approved plans before work commences on site.

Conditions that must be complied with during construction/remediation or construction

38. Building Work Compliance Inspections
The building works must be inspected at the following stages during construction:

a) Pre-commencement

b) Foundations

c) Steel Reinforcement

d) Framework including floors walls roof.

e) Stormwater drainage lines.
f) Wet area flashings

g) Completion

A compliance certificate or documentary evidence from a appropriately qualified person must be submitted detailing satisfactory compliance with the Building Code of Australia within seven days of inspection to the Principal Certifying Authority.

Reason: To ensure all works are completed in a satisfactory manner.

39. Site Controls

Demolition, excavation, building or subdivision work associated with the proposed development shall be restricted to the hours of 7.00 a.m. to 5.30 p.m. Monday to Friday inclusive, 7.00 a.m. to 1.00 p.m. Saturday. Work is not to be carried out on Sunday or Public Holidays.

Debris and rubbish must be hosed down and kept damp to prevent dust nuisance, and waste materials must not be burnt on the site.

Demolition must be carried out to AS2601-1991 Demolition Code.

Reason: To ensure that all works are carried out in a satisfactory manner so as to protect the amenity and safety of the public.

40. Noise

Noise levels during the demolition and construction stages must comply with the Environmental Protection Authority's Environmental Noise Control Manual and the Protection of the Environment Operations Act 1997.

Reason: To ensure that all works are carried out in a satisfactory manner so as to protect the amenity and safety of the public.
41. Construction materials and machinery must be kept on site

All construction materials, sheds, skip bins, temporary water closets, spoil, etc, shall be kept within the property. No vehicles, skips or machines shall be permitted to stand on Council's footpath or roadway.
Reason: To preserve the amenity of the locality and to protect stormwater systems from pollution.

42. Erosion control measures of stock piled materials

Topsoil, excavated material, construction & landscaping supplies and on site debris are to be stockpiled within the erosion containment boundary and shall not encroach upon the footpath, nature strip or road.
Reason: To protect stormwater systems from pollution.

43. Spoil deposited on public roads

Any spoil deposited on public roads during cartage of materials from or to the site shall be removed immediately to the satisfaction of Council. If Council determines that excessive depositing of spoil onto the roads is taking place the cartage of spoil shall cease if Council so directs.
Reason: To prevent pollution of stormwater systems and waterways.

44. Encroachments & Survey Certificate

No portion of the proposed works shall encroach onto the adjoining properties.

All footings and walls adjacent to a boundary must be set out by a registered surveyor. On commencement of brickwork or wall construction a Survey and Report must be submitted to the Principal Certifying Authority indicating the position of external walls in relation to the boundaries of the allotment.
Reason: To ensure that the building is erected in accordance with the approval granted and within the boundaries of the site, and that existing amenity, structural integrity and functionality of adjoining premises is maintained.

45. No encroachment on Council property

No portion of the proposed structure, including gates and doors during opening and closing operations, shall encroach upon Council’s footpath area.

Reason: To ensure no injury is caused to persons and to the existing and likely future amenity of the area.

Conditions that must be complied with before the building is occupied/swimming pool is operational

46. Approval to use/occupy building

The building and swimming pool or any part thereof must not be used or occupied until a completion inspection has been satisfactorily carried out.

Reason: To comply with the requirements of the Environmental Planning and Assessment Act 1979.

47. Street Number

A street number must be displayed in a position clearly visible from the street, in numbers having a height of not less than 75 mm. The number must be in place before the premises can be occupied.

Reason: To provide for the clear identification of the subject property.
48. Swimming Pools

Fences and gates must be erected prior the pool being filled with water and prior to a final inspection by the Principal Certifying Authority.

49. Surface waters from about the swimming pool must be collected and disposed of to the satisfaction of the Principal Certifying Authority.

Reason: To protect the amenity of adjoining properties .

50. Swimming Pool Safety Notice

The occupier of any premises in or which a swimming pool is situated must ensure that there is at all times maintained, in a prominent position in the immediate vicinity of the swimming pool, a sign which must contain the words "YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THIS SWIMMING POOL", together with details of resuscitation techniques (for adults, children and infants) set out in accordance with the relevant provisions of the document entitled "Cardio Pulmonary Resuscitation".

Reason: To ensure the protection of the public .

51. Upon completion of all drainage works, work-as-executed plans, certified by a licensed plumber or practicing Hydraulic or Civil Engineer with NPER registration shall be submitted to verify that the required drainage works have been constructed in accordance with the approved design, prior to the issue of the Occupation Certificate.
52. A suitable easement shall be created for drainage of stormwater runoff to Parramatta River. The easement width shall be a minimum of 1.0m.

The easement shall be registered on the title of the relevant lot(s) and lodged with the Land Titles Office. Council shall approve the easement plan prior to lodgement at the Land Titles Office. Proof of lodgement of the easement with the Land Titles Office shall be provided to Council prior to the issue of an Occupation Certificate.

Conditions that are ongoing requirements of Development Consents

53. Waste Storage, Removal and Recycling

The dwelling shall be provided with its own bins (waste and recycling) within the dwelling setback to Alexander Street. Bin storage should be suitably screened from the street.

Details to be provided with the application for a Construction Certificate.

Reason: To provide for appropriate and sensible disposal of waste or recycling.

54. The car parking space provided on the site shall remain as an uncovered car space.

55. The roof area of the new dwelling shall not be used as a terrace/garden or for entertainment purposes under any circumstances.

GENERAL TERMS OF APPROVAL – RIVERS AND FORESHORE IMPROVEMENT ACT 1948 PART 3A PERMIT

56. The proposed works are to be carried out so that:

e) No materials are eroded, or likely to be eroded, are deposited, or likely to be deposited, on the bed or shore or into the waters of the Parramatta River; and

f) No materials are likely to be carried by natural forces to the bed, shore or water of the Parramatta River.

57. Any material that does enter the Parramatta River must be removed immediately.
58. In relation to the above, best practice methods shall be adopted for the on-site control of runoff, sediment and other pollutants during, and post, construction.

Methods shall be in accordance with the relevant specifications and standards contained in the manual Managing Urban Stormwater – Soils & Construction issued by the NSW Department of Housing in 1998 and any other relevant Council requirements.

59. The erosion, sediment and pollution controls shall be installed and stabilised before commencement of site works. This does not include the works associated with the construction of the appropriate controls.

60. The proposed system for erosion, sediment and pollution control is to be effectively maintained at or above design capacity for the duration of the works and until such time as all ground disturbed has been stabilised and rehabilitated so that it no longer acts as a source of sediment.

61. Any material that is to be stockpiled on the site is to be stabilised to prevent erosion or dispersal of the material.
62. Landscaping is to be comprised of locally indigenous species, which represent the original plant communities that would have been found along the foreshore in the vicinity of the subject land.

Prescribed Conditions

S J Watts
Commissioner of the Court

28/06/2005 - Proceedings 11121 of 2004 - Paragraph(s) General Condition 1 reference to plans changed from 0249/DA13b to 0244b/DA13b

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Citations

Leslie Parker and Safwen Hijazi v Leichhardt Council [2005] NSWLEC 3

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Comrex Pty Ltd v Waverley Council [2008] NSWLEC 1306

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CITATION:	Leslie Parker and Safwen Hijazi v Leichhardt Council [2005] NSWLEC 3 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT: Leslie Parker and Safwen Hijazi RESPONDENT: Leichhardt Council
FILE NUMBER(S):	11121, 11122, 11123 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- SEPP 1 objection in respect of FSR and landscaping - breach of building location zone - overdevelopment - adverse streetscape impacts - blocking views to the harbour - loss of privacy to Nos 2 2a and 4 Alexander Street.
LEGISLATION CITED:	Sydney and Middle Harbours Regional Environmental Plan and the Sydney and Middle Harbours & Parramatta River Development Control Plan, (REP and DCP) - Leichhardt Local Environmental Plan 2000, (LEP2000) - Amendment No. 4 to LEP2000, (Amendment 4) - Development Control Plan, (DCP) - Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:	Winten Property Group Limited -v- North Sydney Council, NSWLEC 46, 6 April 2001 - Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported)
DATES OF HEARING:	06/12/2004, 07/12/2004
DATE OF JUDGMENT:	01/18/2005
LEGAL REPRESENTATIVES:	APPLICANT: Ms M-L Taylor, solicitor SOLICITORS: Norman Waterhouse incorporating Taylor Kelso RESPONDENT: Mr G A Green, solicitor with Ms M Lyons, solicitor SOLICITORS: Pike Pike and Fenwick and Manager Legal Services Leichhardt Council

Clause	Comment
A4	Urban form and design
A5	Amenity
A7	Heritage and conservation (relevant primarily because the site is in the Balmain conservation area, because Nos 3 & 5 Alexander Street are proposed heritage items, and because there are heritage items in the vicinity
A8	Parking Standards and controls. This section includes the numerical standards for as well as design parameters for function
A10	Suburb Profiles. The site is located in Balmain and the ‘Mort Bay Distinctive Neighbourhood’ A10.6.5 and ‘Campbell Street Hill’ Precinct
B1.1	Site Layout, subdivision and design
B1.2	Building form, envelope controls
B1.3	Car parking
B1.4	Site drainage and stormwater control
B1.5	Elevations and materials
B1.6	Front gardens and dwelling entries
B1.7	Fences
B2.8	Landscaping
B3.1	Residential amenity and energy efficiency
B3.2	Private open space
B3.3	Visual privacy
B3.4	Access to views
84.4	Foreshore development

Dwelling	Floor space m2	Site Area m2	FSR
Existing at No 3	262	243	1.08:1
Proposed at No 3	252	268	0.94:1
Existing at No 5	268	249	1.08:1
Proposed at No 5A	242	262	0.92:1

Dwelling	Landscaped Area ms	Site Area (m2)	Landscaped Area %
Existing at No 3	79	243	33%
Proposed at No 3	97	268	36% 5%
Existing at No 5	71	249	29%
Proposed at No 5A	91	262	35%

DA	Description	Received	Notified	Consideration/ determination
D/2003/202	Adjustment of the approved	3 April 2003	11 June 2003 -	Recommended for approval
subdivision	25 June 2003	Refused for 14 reasons 10 February 2004
boundaries of Nos. 5 and 5A
Alexander Street, and the
construction of a new three-storey
dwelling and lap pool and
removal of a
tree at 5A Alexander Street
D/2003/203	Remediation of site at 3 Alexander	3 April 2003	12 June 2003 -	Recommended for approval
Street, Torrens	11 July 2003	Refused for 13 reasons 10 February 2004
title subdivision
into two allotments, and
construction of a new
three-storey dwelling
and lap pool on the new allotment
D/2003/204	Remediation of the site and	3 April	12 June 2003 -	Recommended for approval
alterations and additions to	2003	11 July 2003	Refused for 13 reasons 10 February 2004
the existing
dwelling and
construction of a new lap pool
at 3 Alexander Street

No 3 proposed	No 3A proposed (new)	No 5 proposed	5A proposed (new)
Site area m2	243	268	249	262
Floor area m2	206	264	205	261
Landscaped area m2	197	93	102	101