Lim v Woollahra Municipal Council - [2010] NSWLEC 1252

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Lim v Woollahra Municipal Council [2010] NSWLEC 1252

PARTIES:
APPLICANT
Julina Lim
RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S): 10485 of 2010

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- consent orders - demolition of an existing dwelling and the erection of a new dwelling - resident objectors - streetscape - building height developmenr standard - setbacks - loss of views - loss of privacy - floor space ratio

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
State Environmental Planning Policy No. 1
Woollahra Local Environmental Plan 1995
Woollahra Residential Development Control Plan 2003
Practice Note – Class 1 Development Appeals

CASES CITED: Winten Property Group v North Sydney Council [2001] NSWLEC 46
Wehbe v Pittwater Council [2007] NSWLEC 827
Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 9 September 2010

DATE OF JUDGMENT:
10 September 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr G Green, solicitor
SOLICITORS
Pikes Lawyers
RESPONDENT
Mr S Patterson, solicitor
SOLICITORS
Wilshire Webb Stauntion Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

10 September 2010

10485 of 2010 Julina Lim v Woollahra Municipal Council
JUDGMENT

This matter comes before the Court for consent orders in relation to the demolition of an existing dwelling and the erection of a new dwelling at 114 Wolseley Road, Point Piper (the site). The site is irregularly shaped with an area of 678.4 sq m and falls around 4.6 m from the street frontage to the rear boundary. Expansive views of Sydney Harbour are available from the rear of the dwelling and the rear of the site.

Background

2 The development application (Application Number 385/2009/1) was lodged with the council on 30 July 2009. The developed application was advertised on two occasions, the second notification being for amendments to the original development application. The development application was recommended for approval by council staff but ultimately refused by the elected council on 29 April 2010. The appeal was filed on 23 June 2010. The council sought independent town planning advice from Nexus Environmental Planning Pty Ltd and Willana Associates on the likelihood of success in defending the appeal. Both town planners advised the council that the assessment by the council staff was appropriate and approval of the development application could be supported. The Development Control Committee of the council on 30 August 2010 consequently determined to finalise the appeal by consent orders.

3 On 6 September 2010, a Notice of Motion was heard by me that sought three residents, adjoining and near the site, to be joined as a party to the proceedings pursuant to s 39A of the Land and Environment Court Act 1979. After submissions from the applicant, the council and the residents legal representative, the Notice of Motion was declined however leave was granted for their town planning consultant, Mr Tony Robb, to have access to the independent town planning advice from Nexus Environmental Planning Pty Ltd and Willana Associates and to provide a report prior to the hearing on 9 September 2009. It was agreed that Mr Robb would be permitted to speak to his report at the hearing, which was to commence on site.

The Court’s Practice Note

4 Practice Note – Class 1 Development Appeals, par 36, provides in part, that:

36. Any application for consent final orders in development appeals will be listed before the Court for determination. The parties will be required to present such evidence as is necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent or approval having regard to the whole of the relevant circumstances, including the proposed conditions. The consent authority will be required to demonstrate that relevant statutory provisions have been complied with and that any objection by any person has been properly taking into account. Additionally, the consent authority will be required to demonstrate that it has given reasons will notice to all persons who were objected to the proposal….

5 In response to the Practice Note, the council provided a comprehensive bundle of documents, including the staff reports and the independent town planning advice from Nexus Environmental Planning Pty Ltd and Willana Associates. The Court was also provided with a report from Mr Robb, a response to the issues raised by the objectors by Mr Harvey Saunders on the town planning issues and a report from Mr Jonathan Evans, the project architect on the architectural and design issues on behalf of the applicant. The Court also had the benefit of an extensive view of the site, the streetscape of Wolseley Road near the site, and an internal inspection of the adjoining property at 116 Wolseley Road and the property on the opposite side of Wolseley Road at 77 Wolseley Road.

The matters raised by objectors

6 The matters raised by Mr Robb can be summarised as:

State Environmental Planning Policy No. 1 - Development Standards

Woollahra Residential Development Control Plan 2003

7 The matters raised by Mr Robb overlap and that the matters relating to streetscape and amenity are largely addressed in the discussion on the SEPP 1 objection and compliance with the requirements in DCP 2003.

Maximum height development standard

The objector’s position

8 Mr Robb states that the SEPP 1 objection should be rejected as the development fails to satisfy the objectives of the height standard in relation to view loss, overshadowing, visual privacy and compatibility. The development also fails to satisfy the objectives of the Environmental Planning and Assessment Act 1979 with respect to orderly development of land and public participation in the planning process. As there is no reason why a compliant development cannot be constructed on the site, compliance with the standard is considered to be both reasonable and necessary.

The building height development standard

9 Clause 12(1) provides that a building shall not be erected to a height greater than the maximum height shown on the height map applicable to that zone. In his case, the maximum height on the height map is 9.5 m. The maximum height of the proposed development is 12.84 m measured above the level of the undercroft to the western most point of the roof of the terrace on the western facade.

10 Clause 12AA provides objectives of the maximum building height development standards. The objectives are:

a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines, public and private open spaces and views of the Sydney City skyline,

(b) to provide compatibility with the adjoining residential neighbourhood,

(c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings,

(d) to minimise detrimental impacts on existing sunlight access to interior living rooms and exterior open space areas and minimise overshadowing,

(e) to maintain the amenity of the public domain by preserving public views of the harbour and surrounding areas and the special qualities of streetscapes.

The SEPP 1 objection- building height

11 The SEPP 1 objection was prepared by Mr Sanders and included in the Statement of Environment Effects when submitted to the council with the development application. The SEPP 1 objection identifies the relevant development standard, quantifies the extent of the non-compliance and identifies the approach set out in Winten Property Group v North Sydney Council [2001] NSWLEC 46 to determine whether the SEPP 1 objection is well founded.

12 The SEPP 1 also take into consideration the ways to establish whether compliance with a development standard is unreasonable or unnecessary as set out in Wehbe v Pittwater Council [2007] NSWLEC 827 where the relevant approach is " to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard achieved notwithstanding non-compliance with standard".

13 Using the objectives in cl 12AA, the SEPP 1 objection states that while the numerical standard is exceeded, the objectives of the standard are met as the height of the proposed development is acceptable in its context and would not give rise to unacceptable impacts on any of the neighbouring properties or on the public domain. The SEPP 1 objection expands on these conclusions in the following areas:

Character, streetscape and the public domain

14 The proposed development is sympathetic to the existing development in the area being a two-storey building (with rooms in the roof). This part of the street is characterised by multi-level substantial dwelling houses that step down the slope towards the harbour. Most dwellings have a height of one to two storeys above the level of Wolseley Road and three to four levels at the rear facing the harbour. The height and scale of the proposed development is generally consistent with that on the adjoining properties and surrounding area and would be compatible with the existing streetscape.

Views

Privacy

15 The SEPP 1 objection states that the proposed development has been designed to minimise the impacts on the privacy of its neighbours and future occupants of the proposed dwelling. The primary outlook from the internal spaces is towards the rear garden and harbour views or the central courtyard of the proposed dwelling. Where windows are located on side boundaries, the windows are tall, narrow "slot" windows (around 250 mm wide) which would not provide significant vantage points for overlooking. The terraces at the rear of the building are set well back from the boundary with 116 Wolseley Rd to minimise potential for overlooking.

Overshadowing

16 The shadow diagrams submitted with the application indicate that the proposed development will maintain sunlight access to the rear garden of 108 Wolseley Road consistent with the council's controls for sunlight. The shadow elevations also indicate that the proposed development will maintain three hours sunlight to the north facing windows of 108 Wolseley Road at midwinter, also in compliance with the council's requirements.

Findings

17 I am satisfied that the SEPP 1 objection adopts the correct methodology. While SEPP 1 does not advocate a particular methodology, the approach initially in Winten and more recently Wehbe, have been widely accepted as the appropriate means of addressing an application under SEPP 1. In this case, I accept that the appropriate approach is through a consideration of the proposed development against objectives for the development standard in cl 12AA.

18 The objectives identify a number of relevant considerations although all are not relevant in this particular case as I understood that the impact of the proposed development from the harbour was not an issue nor was views of the harbour from the public domain. The SEPP 1 objection uses different terminology however I accept that the objectives are adequately addressed by:

Character, streetscape and the public domain

19 Part 4.5 addresses the Point Piper Precinct and provides Desired Future Character Objectives, Precinct character (Pt 4.5.1). Part C 4.5.7 of DCP 2003 addresses the Point Piper area and provides for a minimum 4 m setback (Pt C 4.5.7.1), a maximum height of two storeys (Pt C 4.5.7.2), well articulated and designed roof forms (Pt C 4.5.7.3), front fences no greater in height and 1.2 m (Pt C 4.5.7.6) and a building design that has a maximum unarticulated length of 6 m (Pt C 4.5.7.8).

20 The general requirements for streetscape are found in Pt 5 of DCP 2003 where the relevant objectives are:

O 5.1.1 To achieve housing forms of the scale and character in keeping with the desired future character for the locality.

O 5.1.3 To ensure development contributes to cohesive streetscapes and desirable pedestrian movements.

21 Mr Robb expressed the view that the proposed development will present as a three-storey building from the street and be inconsistent with the general form of development near the site that largely consists of a single storey development. Mr Robb states that the proposed use of the roof space does not satisfy the requirements for an attic and as such is an additional storey. While there are examples of two-storey building forms at the street frontage, Mr Rob states that these developments represent an older form of development and that the single storey form represents the more contemporary development along Wolseley Road.

22 Mr Sanders and Mr Evans address the issue of streetscape in some detail in their reports. Mr Evans states that the proposed form of the setback creates a garden setting for the residents and is an improvement over existing landscaping. Most of the properties on Wolseley Road have a zero setback to residences and street walls on the front boundary despite larger site areas. The predominant roof form along Wolseley Road consists of pitched roofs, both pitched and gable styles with no common angle of roof pitch. The proposed roof form is a contemporary approach to a traditional pitched roof, softening the aggressive angles of a traditional roof with more gentle curves. This approach both reduces the overall height of the roof elements and also provides a more gentle character to the roof form. Mr Sanders and Mr Evans both agree that the proposed development is acceptable in the streetscape.

23 On this matter, I agree with the conclusions of Mr Sanders and Mr Evans. I understand there was no issue in relation to the requirements in DCP 2003 for the proposed building setback, the proposed front fence and the articulation of the building. While there are parts of the lower side of Wolseley Road where the predominant form consists of masonry fences on the street boundary, garage doors or open carports on the street boundary and single storey building forms; there are also two-storey building forms located on the street boundary, including the property adjoining the site. In my view, Mr Robb has taken an overly narrow view of the streetscape. Even though the older style buildings do not always reflect the more can contemporary design solutions, they nonetheless form part of the streetscape and it would be inappropriate to ignore these building forms in any assessment of the streetscape.

24 I also do not accept Mr Robb’s conclusions on the appearance of the building from the street. The number and limited size of the windows in the roof area acknowledge that the roof area is used for accommodation but not to the extent that it would overtly suggest a three-storey building. The use of roof space for accommodation is a matter clearly contemplated by DCP 2003. I am also largely untroubled by the roof form given that Pt C 4.5.7.3 provides no specific design requirement and that the proposed roof form is clearly compatible with roof forms in the area.

25 Finally, and of some importance is the requirement in Pt C 4.5.7.2 that allows for two-storey development. The fact that other developments have not taken advantage of this requirement should not be reason to deny the opportunity to construct in accordance with the requirements of DCP 2003 on this site.

Views

26 Part 5.5 of DCP 2003 provides requirements for views. The relevant objective is:

O 5.5.2 To encourage view sharing as a means of ensuring equitable access to views

from dwellings

27 For private views, the relevant of performance criteria is

C 5.5.6 Building forms unable a sharing of views with surrounding residents, particularly from the main habit or rooms of surrounding residences.

28 Objective (a) seeks to minimise impact of new development on existing and DCP 2003 adopts a view sharing approach however with the benefit of the site inspection from properties in Wolseley Road, I have no trouble in concluding that the proposed development will have only a minimal impact on views, at best from these properties. Whether the test is to minimise or share views, the impact on views is negligible. The panoramic views obtained from adjoining nearby properties of the Sydney Harbour, the Sydney skyline, the Harbour Bridge, the Opera House, North Sydney and bush land towards the Heads will be unaffected. At best, a small area of water may be lost but this area would be insignificant given the retention of the greater than 180° panoramic views currently enjoyed by the residents inspected on site view

29 The owner of the property at 116 Wolseley Rd also sought the removal of the structural columns supporting the roof over the ground floor terrace on the basis that they would interrupt the views in this direction. With the benefit of the site view I am satisfied that as virtually all the existing views are maintained from this property, the removal of the structural columns cannot be justified.

O 5.8.1 To ensure adequate acoustic and visual privacy for occupants and neighbours.

31 The relevant performance criteria are:

C 5.8.5 Habitable room windows with a direct sightline to the habitable room window in an adjacent dwelling within 9.0 m:

are offset from the edge of one window to the edge of the other by a distance sufficient to limit views into the adjacent windows;

have sill heights of 1.7 m above floor level; or

have fixed obscure glazing in any part of the window below 1.7 m above floor level.

C 5.8.6 Balconies, terraces, decks, roof terraces and other like areas within a development are suitably located and screened to prevent direct views into habitable rooms will private open space of adjoining and adjacent dwellings

32 The issue of visual privacy relates to the adjoining property at 116 Wolseley Road. The areas of concern relate to the potential overlooking from the ground floor terrace, the windows for the internal stairs and the balconies on the upper level of that part of the dwelling near the street frontage.

33 While C 5.8.6 specifically addresses an appropriate separation distance between windows, I note that the separation distance between the ground floor balcony and the adjoining sunroom on 116 Wolseley Road is around 9 m. On this basis, I accept that sufficient separation is provided to ensure a reasonable level of privacy. I am also mindful that overlooking can potentially occur at present giving the location and configuration of the existing dwellings, including the private open space area on the site.

34 The potential overlooking from the windows of the upper level of a dwelling near the street frontage is not, in my view, an issue that would warrant the amendment to the proposed dwelling. Any overlooking into the rooms of the adjoining property is unlikely given the elevated level of the windows and also the oblique angle that any overlooking would need to occur.

35 The issue of overlooking for the windows from the internal stairs can be adequately addressed through a condition requiring the provision of translucent glazing (see condition C 1 (d)).

Overshadowing

36 The overshadowing diagrams provided by the applicant indicate that any overshadowing on 108 Wolseley Road would satisfy the requirements of DCP 2003. For this reason overshadowing would not be an issue that would warrant the amendment to the plans.

37 I note that the owner of the property at 116 Wolseley Road raised concern over the loss of daylight (as distinct from overshadowing) to the windows in the elevation of her dwelling, the additional bulk of the proposed building and the proposed side setback.

38 Part C 4.5.4 provides requirements for side setbacks and adopts a sliding scale depending on the width of the lot and the height of the building. The strict compliance with this requirement would result in different setbacks for different parts of building ranging between 3 m and 3.5 m. For the setback adjoining 116 Wolseley Road, and because of the irregular shape of a lot, the setbacks range between 1.8 m near the street frontage to 3.5 m towards the rear of the proposed dwelling.

39 I am satisfied that the proposed setbacks are acceptable given that they largely reflect the setbacks of existing dwelling and in large, the setbacks have increased from the setback of the existing dwelling. Where the setbacks have increased, the increase is not large. I note that the existing garages located on the street boundary and on the adjoining boundary 116 Wolseley Road has not been replicated in the proposed development. I have reviewed the report prepared by the council officer on the variation to the setback where the numerical model compliance is acknowledged however the author notes that the objectives of the control are satisfied for number of reasons. I concur with these conclusions.

40 While the proposed building will provide additional bulk near the street frontage, that currently does not exist, the compliance with the maximum height requirement in this location supports the applicant's position that the building is acceptable in this location. Near the kitchen window of the adjoining property, the proposed building has a reduced height compared to the existing building although further to the rear of the site additional building form is proposed. This is the location where the proposed building exceeds the maximum height requirement. While the departure from the 9.5 m height requirement is significant in numerical terms, it is important to understand the basis for the departure. The definition of height in Schedule 1 of Woollahra Local Environmental Plan 1995 (LEP 1995) states:

height,

in relation to building, means the greatest distance measured vertically from any point on the building to the existing ground level immediately below that point

41 In this case, height is measured from the proposed building to an excavated area on the site. This area was excavated to accommodate a suspended inground pool for the existing residential development. While the definition of height in LEP 1995 must be applied, it is essentially an artificial measurement of height. In my view, the additional bulk created by the proposed building in the area identified as exceeding the maximum height requirement is not that significant as would be suggested by the numerical non-compliance.

42 For the reasons mentioned in the preceding paragraphs, I am satisfied that the SEPP 1 objection was appropriately prepared and correctly concluded that strict compliance with the maximum height requirement in cl 12 of LEP 1995 is unreasonable and unnecessary and that the SEPP 1 objection is well founded.

Development Control Plan 2003

43 The weight to be given to a development control plan is addressed in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a development control plan are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, and importantly in this case, a provision of the development control plan directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

44 The variations to DCP 2003 that have not been addressed previously in relation to the SEPP 1 objection relate to floor space ratio and

building footprint.

Floor space ratio

45 Part C 5.2.9 provides for a floor space ratio on a scale based on the size of the proposed allotment. For the proposed lot, a floor space ratio of 0.55:1 is required. The proposed development has a floor space ratio of 0.85:1.

46 The relevant objective is:

O 5.2.3 To ensure that form and scale of development is not excessive and maintains the continuity of building forms and front setbacks in the street.

47 While the numerical difference is large it must be remembered that the existing dwelling has a floor space ratio of 0.74:1. The Court was also advised that the recent approval at 108 Wolseley Road has a floor space ratio of 0.85:1. Given my previous findings on the suitability of the proposed development in terms of streetscape and character and the absence of any unacceptable amenity impacts, I am satisfied that the above objective is satisfied and the variation to the floor space ratio requirement can be justified in this instance.

Building footprint

48 Part C 5.5.8 provides a sliding scale for the maximum building footprint based on the size of the lot. In this case a building footprint of 41% is required. The calculations of the applicant indicate that the existing building has a building footprint of 48.64% and the proposed building has a building footprint of 34.9%. This was a figure not accepted by Mr Robb. The architectural plans for the proposed development indicate the outline of the existing dwelling and while it is not necessary to confirm the exact calculations of the applicant, it would appear that the 41% requirement is achieved. I note that the report of the council officer also indicated compliance with this requirement.

Orders

49 Having read the report provided by Mr Robb, the reports prepared for the council by their officers, the independent town planning advice from Nexus Environmental Planning Pty Ltd and Willana Associates and with an understanding of the relevant planning controls and with the benefit of the site inspection, I find that the variations to the council planning controls are justified and there is no basis to not endorse the consent orders. Consequently, the Orders of the Court, by consent are:

___________
G T Brown
Commissioner of the Court

Annexure‘A’

Woollahra Council ats Julina Lim

Land and Environment Court proceedings No. 10485 of 2010

Development Application No:

385/2009/1

Address:

114 Wolseley Road POINT PIPER

Proposal:

Demolition of existing dwelling and construction of new dwelling

A. General Conditions

Consent is granted subject to the following conditions imposed pursuant to section 80 of the Environmental Planning & Assessment Act 1979 (“the Act ”) and the provisions of the Environmental Planning and Assessment Regulation 2000 (“the Regulation ”) such conditions being reasonable and relevant to the development as assessed pursuant to section 79C of the Act.

Standard Condition: A1

Unless specified otherwise words have the same meaning as defined by the Act , the Regulation and the Interpretation Act 1987 as in force at the date of consent.

Applicant means the applicant for this Consent.

Approved Plans mean the plans endorsed by Council referenced by this consent as amended by conditions of this consent.

AS or AS/NZS means Australian Standard ® or Australian/New Zealand Standard ®, respectively, published by Standards Australia International Limited.

BCA means the Building Code of Australia as published by the Australian Building Codes Board as in force at the date of issue of any Construction Certificate .

Council means Woollahra Municipal Council

Court means the Land and Environment Court

Local native plants means species of native plant endemic to Sydney’s eastern suburbs (see the brochure titled “Local Native Plants for Sydney’s Eastern Suburbs published by the Southern Sydney Regional Organisation of Councils).

Stormwater Drainage System means all works, facilities and documentation relating to:

The collection of stormwater,
The retention of stormwater,
The reuse of stormwater,
The detention of stormwater,
The controlled release of stormwater; and
Connections to easements and public stormwater systems.

Owner means the owner of the site and successors in title to the site .

Owner Builder has the same meaning as in the Home Building Act 1989.

PCA means the Principal Certifying Authority under the Act .

Principal Contractor has the same meaning as in the Act or where a principal contractor has not been appointed by the owner of the land being developed Principal Contractor means the owner of the land being developed.

Professional Engineer has the same meaning as in the BCA.

Public Place has the same meaning as in the Local Government Act 1993.

Road has the same mean as in the Roads Act 1993.

SEE means the final version of the Statement of Environmental Effects lodged by the Applicant.

Site means the land being developed subject to this consent.

WLEP 1995 means Woollahra Local Environmental Plan 1995
Work for the purposes of this consent means:
the use of land in connection with development,
the subdivision of land,
the erection of a building,
the carrying out of any work,
the use of any site crane, machine, article, material, or thing,
the storage of waste, materials, site crane, machine, article, material, or thing,
the demolition of a building,
the piling, piering, cutting, boring, drilling, rock breaking, rock sawing or excavation of land,
the delivery to or removal from the site of any machine, article, material, or thing, or
the occupation of the site by any person unless authorised by an occupation certificate .

Note : Interpretation of Conditions - Where there is any need to obtain an interpretation of the intent of any condition this must be done in writing to Council and confirmed in writing by Council.
Standard Condition: A2

Those with the benefit of this consent must carry out all work and maintain the use and works in accordance with the plans and supporting documents listed below as submitted by the Applicant and to which is affixed a Council stamp “Approved DA Plans” unless modified by any following condition. Where the plans relate to alterations or additions only those works shown in colour or highlighted are approved.

Reference Description Author/Drawn Date(s)

08039 – 0100, 1100, 1101, 1102 issue D; , 1500, 1501 issue C; , 3000 and 3001 all Issue B issue D Architectural Plans Alexander Tzannes and Associates Dec 2009March 2010

LPDA09-322/1B Landscape Plan Conzept Landscape Architects July 2009

H001 to H105 Revision A Inclusive Hydraulic and Stormwater Plans Aecom Australia Pty Ltd 24.07.2009

22909WHrpt Geotechnical Engineers Report Jeffrey & Katauskas Pty Ltd 16.07.2009

Note: Warning to Accredited Certifiers – You should always insist on sighting the original Council stamped approved plans. You should not rely solely upon the plan reference numbers in this condition. Should the applicant not be able to provide you with the original copy Council will provide you with access to its files so you may review our original copy of the approved plan.
Note: These plans and supporting documentation may be subject to conditions imposed under section 80A(1)(g) of the Act modifying or amending the development (refer to conditions which must be satisfied prior to the issue of any Construction Certificate .)

Standard Condition: A5

The owner must procure the repair, replacement or rebuilding of all road pavement, kerb, gutter, footway, footpaths adjoining the site or damaged as a result of work under this consent or as a consequence of work under this consent. Such work must be undertaken to Council's satisfaction in accordance with Council’s “Specification for Roadworks, Drainage and Miscellaneous Works” dated January 2003 unless expressly provided otherwise by these conditions at the owner’s expense.
Note : This condition does not affect the principal contractor's or any sub-contractors obligations to protect and preserve public infrastructure from damage or affect their liability for any damage that occurs .

Standard Condition: A8

Prescribed conditions in force under the Act and Regulation must be complied with.

Note : It is the responsibility of those acting with the benefit of this consent to comply with all prescribed conditions under the Act and the Regulation . Free access can be obtained to all NSW legislation at
Standard Condition: A30

B. Conditions which must be satisfied prior to the demolition of any building or construction

Where demolition is associated with an altered portion of, or an extension to an existing building the demolition of any part of a building is "commencement of erection of building" pursuant to section 81A(2) of the Act. In such circumstance all conditions in Part C and Part D of this consent must be satisfied prior to any demolition work. This includes, but is not limited to, the issue of a Construction Certificate, appointment of a PCA and Notice of Commencement under the Act.

Note : See Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.

Standard Condition: B1

A photographic archival record of the building and landscape elements to be demolished is to be submitted prior to the commencement of demolition work and prior to the issue of a Construction certificate.

The photographic archival recording is to be bound in an A4 format and is to include the following:
a) Site plan at a scale of 1:200 (or 1:500 if appropriate) of all structures and major landscape elements including their relationship to the street and adjoining properties.
b) Postcard sized photographs of:
each elevation,
each structure and landscape feature;
views to the subject property from each street and laneway or public space.

Each photograph to be mounted, labelled and cross-referenced in accordance with recognised archival recording practice.

One original coloured photographic set and a coloured photocopy are to be submitted to the satisfaction of Council prior to the commencement of demolition work and prior to the issue of a construction certificate. The original will be retained by Council and the coloured photocopy will be provided to the Woollahra Local History Library

Standard Condition: B4

C. Conditions which must be satisfied prior to the issue of any construction certificate

The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation , must detail the following amendments:

a) All works to the existing driveway wall between Nos.108 and 114 Wolseley Road are to be deleted.
b) The existing driveway between Nos.108 and 114 Wolseley Road shall not be used for demolition or construction works.
c) The boundary fence shall comply with the Woollahra Residential Development Control Plan 2003 – Part 5.4 Control C5.4.10, C5.4.11 and C5.4.14.
d) The windows to the stair well are to be translucent glass.

Note

Construction Certificate

Act

Note

Regulation

Construction Certificate

Certifying Authority

Note

Regulation

Construction Certificate

Part 4A Certificate

construction certificate

subdivision certificate or occupation certificate

Description

Amount

Indexed

Council
Fee Code

LONG SERVICE LEVY
under Building and Construction Industry Long Service Payments Act 1986

Long Service Levy

Contact LSL
Corporation or use online calculator

No

SECURITY
under section 80A(6) of the Environmental Planning and Assessment Act 1979

Property Damage Security Deposit -making good any damage caused to any property of the Council
$78,883.00

No

T115

DEVELOPMENT LEVY
under Woollahra Section 94A Development Contributions Plan 2005
This plan may be inspected at Woollahra Council or downloaded at .

Development Levy (Section 94A)
$38,144.16
+ Index Amount

Yes, quarterly

T96

INSPECTION FEES
under Section 608 of the Local Government Act 1993

Public Road/Footpath Infrastructure Inspection Fee
$394.00

No

Security Administration Fee
$175.00

No

T16

TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES $117,596.16 plus any relevant indexed amounts and long service levy

Building and Construction Industry Long Service Payment

The Long Service Levy under Section 34 of the Building and Construction Industry Long Service Payment Act , 1986, must be paid and proof of payment provided to the Certifying Authority prior to the issue of any Construction Certificate . The Levy can be paid directly to the Long Services Payments Corporation or to Council. Further information can be obtained from the Long Service Payments Corporation’s website or the Long Service Payments Corporation on 13 14 41.

How must the payments be made?

Payments must be made by:

Cash deposit with Council,
Credit card payment with Council, or
Bank cheque made payable to Woollahra Municipal Council.

The payment of a security may be made by a bank guarantee where:
The guarantee is by an Australian bank for the amount of the total outstanding contribution;
The bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first [NOTE: a time limited bank guarantee or a bank guarantee with an expiry date is not acceptable];

The bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent;
The bank guarantee is lodged with the Council prior to the issue of the construction certificate; and
The bank’s obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required.
How will the section 94A levy be indexed?

To ensure that the value the development levy is not eroded over time by increases in costs, the proposed cost of carrying out development (from which the development levy is calculated) will be indexed either annually or quarterly (see table above). Clause 3.13 of the Woollahra Section 94A Development Contributions Plan 2005 sets out the formula and index to be used in adjusting the s.94A levy.

Do you need HELP indexing the levy?

Please contact our customer service officers. Failure to correctly calculate the adjusted the development levy will delay the issue of any Part 4A Certificate and could void any Part 4A Certificate (construction certificate, subdivision certificate, or occupation certificate).

Deferred periodic payment of section 94A levy under the Woollahra Section 94A Development Contributions Plan 2005

Where the applicant makes a written request supported by reasons for payment of the section
94A levy other than as required by clause 3.9, the Council may accept deferred or periodic payment. The decision to accept a deferred or periodic payment is at the sole discretion of the Council, which will consider:
The reasons given;
Whether any prejudice will be caused to the community deriving benefit from the public facilities;
Whether any prejudice will be caused to the efficacy and operation of this plan; and
Whether the provision of public facilities in accordance with the adopted works schedule will be adversely affected.

Council may, as a condition of accepting deferred or periodic payment, require the provision of a bank guarantee where:

The guarantee is by an Australian bank for the amount of the total outstanding contribution;
The bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first [NOTE: a time limited bank guarantee or a bank guarantee with an expiry date is not acceptable];
The bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent;
The bank guarantee is lodged with the Council prior to the issue of the construction certificate; and
The bank’s obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required.
Any deferred or outstanding component of the section 94A levy will be adjusted in accordance with clause 3.13 of the plan. The applicant will be required to pay any charges associated with establishing or operating the bank guarantee. Council will not cancel the bank guarantee until the outstanding contribution as indexed and any accrued charges are paid.
Standard Condition: C5

The applicant must submit to the Certifying Authority BASIX Certificate No.260122S with any application for a Construction Certificate .

Note : Where there is any proposed change in the BASIX commitments the applicant must submit of a new BASIX Certificate to the Certifying Authority and Council. If any proposed change in the BASIX commitments are inconsistent with development consent (See: Clauses 145 and 146 of the Regulation ) the applicant will be required to submit an amended development application to Council pursuant to section 96 of the Act.

All commitments in the BASIX Certificate must be shown on the Constru c tion Certificate plans and specifications prior to the issue of any Construction Certificate .
Note : Clause 145(1)(a1) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: (a1) that the plans and specifications for the building include such matters as each relevant BASIX certificate requires,"

Standard Condition: C7

A separate application under Section 138 of the Roads Act 1993 is to be made to, and approved by Council prior to the issuing of a Construction Certificate for the following infrastructure works, which must be carried out at the applicant’s expense:

Note:

Note

Road

Roads Act

Note

Construction Certificate

Roads Act

Note

Section K. Advisings

Roads Act Application

The Construction Certificate plans and specifications required by clause 139 of the Regulation, must make provision for:

The Construction Certificate plans and specifications, required by clause 139 of the Regulation , must demonstrate that all utility services (telecommunications, electricity, gas, water and waste water) will be provided underground. All service ducts, pipes and conduits must be provided within the fabric of the building (excluding stormwater down pipes).

Note

The location of service poles and substations required by the relevant suppliers must be shown upon the plans submitted with any Construction Certificate application together with a letter from each relevant supplier setting out their requirements.

Construction Certificate

Note : The intent of this condition is that the design quality of the development must not be compromised by cables, pipes, conduits, ducts, plant, equipment, electricity substations or the like placed such that they are visible from any adjoining public place. They must be contained within the building unless shown otherwise by the approved development consent plans.

Note

The principal contractor or owner builder must submit to the Certifying Authority a soil and water management plan complying with:

a) “ Do it Right On Site, Soil and Water Management for the Construction Industry ” published by the Southern Sydney Regional Organisation of Councils, 2001; and
b) “ Managing Urban Stormwater - Soils and Construction ” published by the NSW Department of Housing 4th Edition” ( 'The Blue Book' ).

The Blue Book

Certifying Authority

Construction Certificate

Note

Do it Right On Site, Soil and Water Management for the Construction Industry

Note

Regulation

Accredited Certifier

professional engineer

Construction Certificate

Note

Standard Condition: C35

Construction Certificate

professional engineering

Detailed professional engineering plans and/or specifications must be submitted to the Certifying Authority with the application for any Construction Certificate .

Note:

Standard Condition: C36

The Construction Certificate plans and specification required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation must be accompanied by a Geotechnical / Hydrogeological Monitoring Program together with civil and structural engineering details for foundation retaining walls, footings, basement tanking, and subsoil drainage systems, as applicable, prepared by a professional engineer, who is suitably qualified and experienced in geotechnical and hydrogeological engineering. These details must be certified by the professional engineer to:

NOT

The use of permanent ground anchors under Council land is not permitted.

Temporary ground anchors may be permitted, in accordance with Council’s “Rock Anchor Policy", where alternative methods of stabilisation would not be practicable or viable, and where there would be benefits in terms of reduced community impact due to a shorter construction period, reduced disruption to pedestrian and vehicular traffic on adjacent public roads, and a safer working environment.

Roads Act

Note:

Note

Road

Roads Act

Note

Roads (General) Regulation 2000

Excavations adjacent to road

Standard Condition: C41

The Construction Certificate plans and specifications required by clause 139 of the Regulation, must include detailed plans and specifications for all bicycle, car and commercial vehicle parking in compliance with AS2890.3:1993 Parking Facilities - Bicycle Parking Facilities , AS/NZS 2890.1:2004 : Parking Facilities - Off-Street Car Parking and AS 2890.2:2002 – Off-Street Parking: Commercial Vehicle Facilities respectively.

Access levels and grades must comply with access levels and grade required by Council under the Roads Act 1993.

Certifying Authority

Standard Condition: C45

Standard Condition: C50

The Construction Certificate plans and specifications, required by clause 139 of the Regulation , must include a Stormwater Management Plan for the site.

The Stormwater Management Plan must detail:

Stormwater Drainage System

Stormwater Management Plan

A detailed drainage plan at a scale of 1:100 based on drainage calculations prepared in accordance with the Institute of Engineers Australia publication, Australian Rainfall and Run-off, 1987 edition or most current version thereof.

It must include:

All pipe layouts, dimensions, grades, lengths and material specification,
All invert levels reduced to Australian Height Datum (AHD),
Location and dimensions of all drainage pits,
Point and method of connection to Councils drainage infrastructure, and
Overland flow paths over impervious areas.

Copies of certificates of title, showing the creation of private easements to drain water by gravity, if required.

Note:

Standard Condition: C51

Construction Certificate

Certifying Authority

Regulation

BCA

AS 1668.1

AS 1668.2

AS/NZS 3666.1

Construction Certificate

evidence of suitability

Public Health (Microbial Control) Regulation

regulated systems

Protection of the Environment Operations Act

Note

Regulation

Construction Certificate

Accredited Certifier

Council

Regulation

Construction Certificate

Protection of the Environment Operations Act

AS 1668.2

D. Conditions which must be satisfied prior to the commencement of any development work

Home Building Act 1989

For the purposes of section 80A (11) of the Act, the following conditions are prescribed in relation to a development consent for development that involves any building work:

a) that the work must be carried out in accordance with the requirements of the Building Code of Australia,
b) in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force before any building work authorised to be carried out by the consent commences.

This condition does not apply:

a) to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4),
b) to the erection of a temporary building.

BCA

Note

Standard Condition: D1

Dilapidation surveys must be conducted and dilapidation reports prepared by a professional engineer (structural) of all buildings on land whose title boundary abuts the site and of such further buildings located within the likely “zone of influence” of any excavation, dewatering and/or construction induced vibration.

These properties must include (but is not limited to)

108 Wolseley Road
110 Wolseley Road
112 Wolseley Road
116 Wolseley Road
118 Wolseley Road

The dilapidation reports must be completed and submitted to Council with the Notice of Commencement prior to the commencement of any development work .
Where excavation of the site will extend below the level of any immediately adjoining building the principal contractor or owner builder must give the adjoining building owner(s) a copy of the dilapidation report for their building(s) and a copy of the notice of commencement required by s81A(2) of the Act not less than two (2) days prior to the commencement of any work.

Note: The reasons for this condition are:
To provide a record of the condition of buildings prior to development being carried out
To encourage developers and its contractors to use construction techniques that will minimise the risk of damage to buildings on neighbouring land
Also refer to the Dilapidation Report Advising for more information regarding this condition Standard Condition: D4

The principal contractor must ensure that a professional engineer determines the possibility of any adjoining buildings founded on loose foundation materials being affected by piling, piers or excavation. The professional engineer (geotechnical consultant) must assess the requirements for underpinning any adjoining or adjacent buildings founded on such soil on a case by case basis and the principal contractor must comply with any reasonable direction of the professional engineer .
Note : A failure by contractors to adequately assess and seek professional engineering (geotechnical) advice to ensure that appropriate underpinning and support to adjoining land is maintained prior to commencement may result in damage to adjoining land and buildings. Such contractors are likely to be held responsible for any damages arising from the removal of any support to supported land as defined by section 177 of the Conveyancing Act 1919.
Standard Condition: D6

As a result of the site constraints, limited space and access a Construction Management Plan is to be submitted to Council. Also, due to the lack of on-street parking a Work Zone may be required during construction.
A construction management plan must be submitted and approved by Council’s Development Engineer. The plan must:-
a) Describe the anticipated impact of the demolition, excavation and construction works on:
Local traffic routes
Pedestrian circulation adjacent to the building site
On-street parking in the local area

b) Describe the means proposed to:
Manage construction works to minimise such impacts,
Provide for the standing of vehicles during construction,
Provide for the movement of trucks to and from the site, and deliveries to the site

c) Show the location of:
Any site sheds and any anticipated use of cranes and concrete pumps,
Any areas of Council property on which it is proposed to install a Works Zone (Construction Zone)
Structures to be erected such as hoardings, scaffolding or shoring
Any excavation

d) Describe the excavation impact on the area including
Number and types of trucks to be used
Time frame
Streets to be used
Routes to be taken
Directions of travel
Truck storage areas
It is recommended that vehicle routes be shared
Excavation is to only be carried out outside peak and school hours between 9.30am to 2.30pm week days

e) Protect Trees, Bushland and Public Open Space:
Show the location of all Tree Protection (Exclusion) Zones as required within the conditions of this development consent.
The storage of building materials in or access through the Reserve will not be permitted without prior approval by Council.

The Plan must make provision for all materials, plant, etc. to be stored within the development site at all times during construction. Structures or works on Council property such as hoardings, scaffolding, shoring or excavation need separate approval from Council. Standing of cranes and concrete pumps on Council property will need approval on each occasion.

Note: A minimum of eight weeks will be required for assessment. Work must not commence until the Construction Management Plan is approved. Failure to comply with this condition may result in fines and proceedings to stop work.
Standard Condition: D9

Security fencing must be provided around the perimeter of the development site, including any additional precautionary measures taken to prevent unauthorised entry to the site at all times during the demolition, excavation and construction period. Security fencing must be the equivalent 1.8m high chain wire as specified in AS 1725.

Where the development site adjoins a public thoroughfare, the common boundary between them must be fenced for its full length with a hoarding, unless the least horizontal distance between the common boundary and the nearest parts of the structure is greater than twice the height of the structure. The hoarding must be constructed of solid materials (chain wire or the like is not acceptable) to a height of not less than 1.8 m adjacent to the thoroughfare.

Where a development site adjoins a public thoroughfare with a footpath alongside the common boundary then, in addition to the hoarding required above, the footpath must be covered by an overhead protective structure and the facing facade protected by heavy-duty scaffolding, unless either:

a) The vertical height above footpath level of the structure being demolished is less than 4.0 m; or
b) The least horizontal distance between footpath and the nearest part of the structure is greater than half the height of the structure.

The overhead structure must consist of a horizontal platform of solid construction and vertical supports, and the platform must:
a) Extend from the common boundary to 200mm from the edge of the carriageway for the full length of the boundary;
b) Have a clear height above the footpath of not less than 2.1 m;
c) Terminate 200mm from the edge of the carriageway (clearance to be left to prevent impact from passing vehicles) with a continuous solid upstand projecting not less than 0.5 m above the platform surface; and
d) Together with its supports, be designed for a uniformly distributed live load of not less than 7 kPa.

The principal contractor or owner builder must pay all fees associated with the application and occupation and use of the road (footway) for required hoarding or overhead protection.

The principal contractor or owner builder must ensure that Overhead Protective Structures are installed and maintained in accordance with WorkCover NSW Code of Practice - Overhead Protective Structures, gazetted 16 December 1994, as commenced 20 March 1995. This can be downloaded from: .
Security fencing, hoarding and overhead protective structure must not obstruct access to utilities services including but not limited to man holes, pits, stop valves, fire hydrants or the like.

Note : The principal contractor or owner must allow not less than two (2) weeks from the date of making a hoarding application for determination. Any approval for a hoarding or overhead protection under the Roads Act 1993 will be subject to its own conditions and fees.

Standard Condition: D11

The Principal Contractor or owner builder must ensure that the sign/s required by clauses 98A and 227A of the Regulation is/are erected and maintained at all times.

Clause 98A of the Regulation provides:

Erection of signs

Act

Clause 227A of the Regulation provides:

Signs on development sites

If there is a person who is the PCA or the principal contractor for any building work, subdivision work or demolition work authorised to be carried out on a site by a development consent or complying development certificate:
Each such person MUST ensure that a rigid and durable sign showing the person’s identifying particulars so that they can be read easily by anyone in any public road or other public place adjacent to the site is erected in a prominent position on the site before the commencement of work, and is maintained on the site at all times while this clause applies until the work has been carried out.

Note : Clause 227A imposes a penalty exceeding $1,000 if these requirements are not complied with.
Note : If Council is appointed as the PCA it will provide the sign to the principal contractor or owner builder who must ensure that the sign is erected and maintained as required by Clause 98A and Clause 227A of the Regulation .

Standard Condition: D12

Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Each toilet provided:

a) must be a standard flushing toilet, and
b) must be connected to a public sewer, or
c) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the council, or
d) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the council.

The provision of toilet facilities in accordance with this condition must be completed before any other work is commenced.

In this condition:

accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in clause 95B of the Local Government (Approvals) Regulation 1993.

approved by the council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993.

public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

sewage management facility

Local Government (Approvals) Regulation

Note

Standard Condition: D13

The principal contractor or owner builder must install and maintain water pollution, erosion and sedimentation controls in accordance with:

Soil and Water Management Plan

Do it Right On Site, Soil and Water Management for the Construction Industry

Managing Urban Stormwater - Soils and Construction

Where there is any conflict The Blue Book takes precedence.

Note : The International Erosion Control Association – Australasia ( ) lists consultant experts who can assist in ensuring compliance with this condition. Where Soil and Water Management Plan is required for larger projects it is recommended that this be produced by a member of the International Erosion Control Association – Australasia.
Note : The “Do it Right On Site, Soil and Water Management for the Construction Industry” publications can be down loaded free of charge from .
Note : A failure to comply with this condition may result in penalty infringement notices, prosecution, notices and orders under the Act and/or the Protection of the Environment Operations Act 1997 without any further warning . It is a criminal offence to cause, permit or allow pollution.
Note : Section 257 of the Protection of the Environment Operations Act 1997 provides inter alia that “the occupier of premises at or from which any pollution occurs is taken to have caused the pollution”

Warning

Protection of the Environment Operations Act

Standard Condition: D14

The erection of the building in accordance with this development consent must not be commenced until:

a) A construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited Certifier, and
b) The person having the benefit of the development consent has:
Appointed a principal certifying authority for the building work, and
Notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and

c) the principal certifying authority has, no later than 2 days before the building work commences:
Notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and
Notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

d) The person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:
Appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and
Notified the principal certifying authority of any such appointment, and
Unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and
Given at least 2 days’ notice to the council of the person’s intention to commence the erection of the building.

Note: building has the same meaning as in section 4 of the Act and includes part of a building and any structure or part of a structure.
Note : new building has the same meaning as in section 109H of the Act and includes an altered portion of, or an extension to, an existing building.
Note : The commencement of demolition works associated with an altered portion of, or an extension to, an existing building is considered to be the commencement of building work requiring compliance with section 82A(2) of the Act (including the need for a Construction Certificate ) prior to any demolition work. See: Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.
Note : Construction Certificate Application, PCA Service Agreement and Notice of Commencement forms can be downloaded from Council’s website .
Note : It is an offence for any person to carry out the erection of a building in breach of this condition and in breach of section 81A(2) of the Act.
Standard Condition: D15

Home Building Act 1989

Home Building Act 1989

principal contractor

E.14 Disposal of site water during construction

The principal contractor or owner builder must ensure:

a) Prior to pumping any water into the road or public stormwater system that approval is obtained from Council under section 138(1)(d) of the Roads Act 1993;
b) That water pollution , as defined by the Protection of the Environment Operations Act 1997, does not occur as the result of the discharge to the road, public stormwater system or other place or any site water;
c) That stormwater from any roof or other impervious areas is linked, via temporary downpipes and stormwater pipes, to a Council approved stormwater disposal system immediately upon completion of the roof installation or work creating other impervious areas.
Note : This condition has been imposed to ensure that adjoining and neighbouring land is not adversely affected by unreasonable overland flows of stormwater and that site water does not concentrate water such that they cause erosion and water pollution.

Standard Condition: E17

To the extent that this consent permits filling of the site such fill must be virgin excavated natural material (“VENM”) .

VENM

Virgin excavated natural material (such as clay, gravel, sand, soil and rock) that is not mixed with any other type of waste and which has been excavated from areas of land that are not contaminated with human-made chemicals as a result of industrial, commercial, mining or agricultural activities and which do not contain sulphidic ores or soils

Note

Protection of the Environment Operations Act 1997

Note

Protection of the Environment Operations Act 1997.

Note

Protection of the Environment Operations Act 1997

Note

Illegal waste dumping

Is that fill legal?

Standard Condition: E18

Site Crane(s) and hoist(s) may be erected within the boundary of the land being developed subject to compliance with Australian Standards AS 1418, AS 2549 and AS 2550 and all relevant parts to these standards.

Cranes must not swing or hoist over any public place unless the principal contractor or owner builder have the relevant approval under the Local Government Act 1993 , Crown Lands Act 1989 or Roads Act 1993 .

The crane must not be illuminated outside approved working hours other than in relation to safety beacons required by the Civil Aviation Safety Authority under the Civil Aviation Act 1988 (Cth).

Note

principal contractor

owner builder

Local Government Act 1993

Note

principal contractor

owner builder

Access to Neighbouring Land Act 2000

Conveyancing Act 1919

Land & Environment Court Act 1979

Standard Condition: E19

The Principal Contractor or Owner Builder must ensure that a surveyor registered under the Surveying Act 2002 carries out check surveys and provides survey certificates confirming the location of the building(s), ancillary works, flood protection works and the stormwater drainage system relative to the boundaries of the site and that the height of buildings, ancillary works, flood protection works and the stormwater drainage system relative to Australian Height Datum complies with this consent at the following critical stages.

The Principal Contractor or Owner Builder must ensure that work must not proceed beyond each of the following critical stages until compliance has been demonstrated to the PCA’s satisfaction:

a) Upon the completion of foundation walls prior to the laying of any floor or the pouring of any floor slab and generally at damp proof course level;
b) Upon the completion of formwork for floor slabs prior to the laying of any floor or the pouring of any concrete and generally at each storey;
c) Upon the completion of formwork or framework for the roof(s) prior to the laying of any roofing or the pouring of any concrete roof;
d) Upon the completion of formwork and steel fixing prior to pouring of any concrete for any ancillary structure, flood protection work, swimming pool or spa pool or the like;
e) Upon the completion of formwork and steel fixing prior to pouring of any concrete for driveways showing transitions and crest thresholds confirming that driveway levels match Council approved driveway crossing levels and minimum flood levels.;
f) Stormwater Drainage Systems prior to back filling over pipes confirming location, height and capacity of works.
g) Flood protection measures are in place confirming location, height and capacity.

Note

Standard Condition: E20

The principal contractor or owner builder must ensure that all waste storage containers, including but not limited to skip bins, must be stored within the site unless:

Local Government Act

Road Transport (Safety and Traffic Management) (Road Rules) Regulation

Note

Standard Condition: E21

Note

Protection of the Environment Operations (Control of Burning) Regulation

Standard Condition: E22

Dust Control - Do it right on site

This generally requires:

a) Dust screens to all hoardings and site fences.
b) All stockpiles or loose materials to be covered when not being used.
c) All equipment, where capable, being fitted with dust catchers.
d) All loose materials being placed bags before placing into waste or skip bins.
e) All waste and skip bins being kept covered when not being filled or emptied.
f) The surface of excavation work being kept wet to minimise dust.
g) Landscaping incorporating trees, dense shrubs and grass being implemented as soon as practically possible to minimise dust.

Note : “ Dust Control - Do it right on site ” can be down loaded free of charge from Council’s web site or obtained from Council’s office.
Note: Special precautions must be taken when removing asbestos or lead materials from development sites. Additional information can be obtained from and . Other specific condition and advice may apply.
Note: Demolition and construction activities may affect local air quality and contribute to urban air pollution. The causes are dust, smoke and fumes coming from equipment or activities, and airborne chemicals when spraying for pest management. Precautions must be taken to prevent air pollution.

Standard Condition: E23

F. Conditions which must be satisfied prior to any occupation or use of the building (Part 4A of the Act and Part 8 Division 3 of the Regulation)

Act

Note

Standard Condition: F1

The owner or principal contractor must install all approved amenity landscaping (screen planting, soil stabilisation planting, etc.) prior to any occupation or use of the site.

Note

Standard Condition: F6

The principal contractor or owner builder must submit to the satisfaction of the PCA works-as-executed (“WAE”) plans, Compliance Certificates and evidence of suitability in accordance with Part A2.2 of the BCA confirming that the works , as executed and as detailed, comply with the requirement of this consent, the Act , the Regulations , any relevant construction certificate , the BCA and relevant Australian Standards .

Works-as-executed (“WAE”) plans, Compliance Certificates and evidence of suitability in accordance with Part A2.2 of the BCA must include but may not be limited to:

a) Certification from the supervising professional engineer that the requirement of the Geotechnical / Hydrogeological conditions and report recommendations were implemented and satisfied during development work.
b) All flood protection measures.
c) All garage/car park/basement car park, driveways and access ramps comply with Australian Standard AS 2890.1 – “Off-Street car parking.”
d) All stormwater drainage and storage systems.
e) All mechanical ventilation systems.
f) All hydraulic systems.
g) All structural work.
h) All acoustic attenuation work.
i) All waterproofing.
j) Such further matters as the Principal Certifying Authority may require.

Note

development standards

Act

Note

PCA

Act

Regulation

BCA

Australia Standards

Note

PCA

Occupation Certificate

Compliance Certificates

BCA

PCA

Occupation Certificate

Standard Condition: F7

All letter boxes must be constructed and located in accordance with AS/NZS 4253:1994 Mailboxes and to Australia Post’s satisfaction.

Note

Standard Condition: F12

G. Conditions which must be satisfied prior to the issue of any Subdivision Certificate

If an electricity substation, is required on the site the owner must dedicate to the appropriate energy authority (to its satisfaction), free of cost, an area of land adjoining the street alignment to enable an electricity substation to be established. The size and location of the electricity substation is to be in accordance with the requirements of the appropriate energy authority and Council. The opening of any access doors are not to intrude onto the public road (footway or road pavement).

Documentary evidence of compliance, including correspondence from the energy authority is to be provided to the Principal Certifying Authority prior to issue of the Construction Certificate detailing energy authority requirements.

The Accredited Certifier must be satisfied that the requirements of energy authority have been met prior to issue of the Construction Certificate.

Standard Condition: G4

H. Conditions which must be satisfied prior to the issue of a Final Occupation Certificate (s109C(1)(c))

Note

certifying authority

Standard Condition: H7

principal contractor

owner

principal contractor

owner

PCA

Note

Final Occupation Certificate

The principal contractor or owner must remove from the land and any adjoining public place:

Note

Final Occupation Certificate

The following works must be completed to the satisfaction of Council, in compliance with Council’s “Specification for Roadworks, Drainage and Miscellaneous Works” dated January 2003 unless expressly provided otherwise by these conditions at the principal contractor’s or owner’s expense:

road

b) Driveways and vehicular crossings within the road;

c) Removal of redundant driveways and vehicular crossings;

d) New footpaths within the road;

e) Relocation of existing power/light pole

f) relocation/provision of street signs

g) New or replacement street trees;

h) New footway verges, where a grass verge exists, the balance of the area between the footpath and the kerb or site boundary over the full frontage of the proposed development must be turfed. The grass verge must be constructed to contain a uniform minimum 75mm of friable growing medium and have a total cover of turf predominant within the street.

i) New or reinstated kerb and guttering within the road; and

j) New or reinstated road surface pavement within the road.

Note : Security held by Council pursuant to section 80A(6) of the Act will not be release by Council until compliance has been achieved with this condition. An application for refund of security must be submitted with the Final Occupation Certificate to Council. This form can be downloaded from Council’s website or obtained from Council’s customer service centre.
Standard Condition: H13

I. Conditions which must be satisfied during the ongoing use of the development

All BASIX commitments must be maintained in accordance with the BASIX Certificate No. 260122S.

Note:

Standard Condition: I7

All landscaping must be maintained in general accordance with this consent.

This condition does not prohibit the planting of additional trees or shrubs subject that they are native species endemic to the immediate locality.

Note

Standard Condition: I8

No clothes, linen or the like must be hung from any balcony, terrace or veranda such that they are visible from any public place.

is not detrimentally affected by a proliferation of such practices.

Standard Condition: I9

Outdoor lighting must comply with AS 4282-1997: Control of the obtrusive effects of outdoor lighting. The maximum luminous intensity from each luminare must not exceed the level 1 control relevant under table 2.2 of AS 4282. The maximum illuminance and the threshold limits must be in accordance with Table 2.1 of AS 4282.

Note

Waste Management must comply with the approved Waste Management Plan .

Waste Management must comply with Council’s current waste management policy as is in force from time to time.

The occupier of the site must place waste and recycling bins/crates placed on the footpath for collection but not earlier than 12 hours prior to the designated collection time.

The occupier of the site must remove waste and recycling bins/crates from the footpath within 12 hours of being emptied by Council’s waste service and they must be stored within the site in the approved waste storage area.

Note

background noise level

The background noise level is the underlying level present in the ambient noise, excluding the subject noise source, when extraneous noise is removed.

: Words in this condition have the same meaning as in the:

NSW Industrial Noise Policy

Noise Guide for Local Government

J. Miscellaneous Conditions

None relevant.

K. Advisings

Failure to comply with this development consent and any condition of this consent is a criminal offence. Failure to comply with other environmental laws is also a criminal offence.

Where there is any breach Council may without any further warning:

a) Issue Penalty Infringement Notices (On-the-spot fines);
b) Issue notices and orders;
c) Prosecute any person breaching this consent; and/or
d) Seek injunctions/orders before the courts to restrain and remedy any breach.

Warnings as to potential maximum penalties

Maximum Penalties under NSW Environmental Laws include fines up to $1.1 Million and/or custodial sentences for serious offences.

Warning as to enforcement and legal costs

Note

the Crimes (Sentencing Procedure) Act

The principal contractor , owner builder or any person digging may be held financially responsible by the asset owner should they damage underground pipe or cable networks. Minimise your risk and Dial 1100 Before You Dig or visit .

Standard Advising: K2

The Disability Discrimination Act 1992 (DDA) makes it against the law for public places to be inaccessible to people with a disability. Compliance with this development consent, Council’s Access DCP and the BCA does not necessarily satisfy compliance with the DDA.

The DDA applies to existing places as well as places under construction. Existing places must be modified and be accessible (except where this would involve "unjustifiable hardship”).

Further detailed advice can be obtained from the Human Rights and Equal Opportunity Commission (“HEROC”):

a)
b)

[email protected]

The Rose Bay Local Area Command closely aligns with the boundaries of the Woollahra local government area.

Council and Police approval is required prior to a partial or full temporary road closure. If you are seeking a partial or full temporary road closure you must comply with the relevant conditions of this consent and you must also gain the approval of the Traffic Sergeant, Paddington Police Station, 16 Jersey Road, Paddington. Phone No.: 0283568299 or Fax No.: 0283568211.

Warning

Standard Advising: K4

Section 81A of the Act requires among other matters that the person having the benefit of the development consent, if not carrying out the work as an owner-builder , must appointed a principal contractor for residential building work who must be the holder of a contractor licence.

Further information can be obtained from the NSW Office of Fair Trading website about how you obtain an owner builders permit or find a principal contractor (builder): .

Standard Condition: K5

The PCA does not undertake detailed quality control inspections and the role of the PCA is primarily to ensure that the development proceeds in accordance with this consent, Construction Certificates and that the development is fit for occupation in accordance with its classification under the Building Code of Australia. Critical Stage Inspections do not provide the level of supervision required to ensure that the minimum standards and tolerances specified by the “Guide to Standards and Tolerances©” ISBN 0 7347 6010 8 are achieved.

The quality of any development is a function of the quality of the principal contractor’s or owner builder’s supervision of individual contractors and trades on a daily basis during the development. The PCA does not undertake this role.

The NSW Office of Fair Trading have published a “Guide to Standards and Tolerances©” ISBN 0 7347 6010 8. The guide can be obtained from the Office of Fair Trading by calling 13 32 20 or by Fax: 9619 8618 or by post to: Marketing Branch, PO Box 972, Parramatta NSW 2124.

The Guide can be down loaded from:

principal contractor

Standard Condition: K6

Occupational Health and Safety Act

2000 No 40

Note

Standard Condition: K7

Anyone who removes, repairs or disturbs bonded or a friable asbestos material must hold a current removal licence from Workcover NSW.
Before starting work, a work site-specific permit approving each asbestos project must be obtained from Workcover NSW. A permit will not be granted without a current Workcover licence.

All removal, repair or disturbance of or to asbestos material must comply with:

Note

Standard Advising: K8

It is beyond the scope of this consent to provide detailed information about dealing with lead paint. Painters working in an area containing lead-based paint should refer to Australian Standard AS 4361.1–1995, Guide to Lead Paint Management—Industrial Applications, or AS 4361.2–1998, Guide to Lead Paint Management—Residential and Commercial Buildings.

Industrial paints, may contain lead. Lead is used in some specialised sign-writing and artist paints, and road marking paints, and anti-corrosive paints. Lead was a major ingredient in commercial and residential paints from the late 1800s to 1970. Most Australian commercial buildings and residential homes built before 1970 contain lead paint. These paints were used both inside and outside buildings.

Standard Advising: K9

Dividing Fences Act

Note:

Council is always prepared to discuss its decisions and, in this regard, please do not hesitate to contact Mr Dimitri Lukas , Senior Assessment Officer, on (02) 9391 7159.

However, if you wish to pursue your rights of appeal in the Land & Environment Court you are advised that Council generally seeks resolution of such appeals through a Section 34 Conference, site hearings and the use of Court Appointed Experts, instead of a full Court hearing.

Standard Condition: K14

An application must be made to Council by the person who paid the security for release of the securities held under section 80A of the Act .

The securities will not be released until a Final Occupation Certificate has lodged with Council, Council has inspected the site and Council is satisfied that the public works have been carried out to Council’s requirements. Council may use part or all of the security to complete the works to its satisfaction if the works do not meet Council’s requirements.

Council will only release the security upon being satisfied that all damage or all works, the purpose for which the security has been held have been remedied or completed to Council’s satisfaction as the case may be.

Council may retain a portion of the security to remedy any defects in any such public work that arise within 6 months after the work is completed.

Note:

Standard Condition: K15

Home Building Act 1989

Standard Condition: K18

Woollahra Municipal Council's Tree Preservation Order 2006 (TPO) may require that an application be made to Council prior to pruning or removing any tree. The aim is to secure the amenity of trees and preserve the existing landscape within our urban environment.

If you submitted a model with the application it must be collected from the Council offices within fourteen (14) days of the date of this determination. Models not collected will be disposed of by Council.

__________

G T Brown

Commissioner of the Court

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Citations

Lim v Woollahra Municipal Council [2010] NSWLEC 1252

Most Recent Citation

Lederer v Woollahra Municipal Council [2011] NSWLEC 1190

Cases Citing This Decision

1

Lederer v Woollahra Municipal Council [2011] NSWLEC 1190

Cases Cited

4

Statutory Material Cited

6

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

Wehbe v Pittwater Council [2007] NSWLEC 827

Zhang v Canterbury City Council [2001] NSWCA 167

CITATION:	Lim v Woollahra Municipal Council [2010] NSWLEC 1252
PARTIES:	APPLICANT Julina Lim RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10485 of 2010
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- consent orders - demolition of an existing dwelling and the erection of a new dwelling - resident objectors - streetscape - building height developmenr standard - setbacks - loss of views - loss of privacy - floor space ratio
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 State Environmental Planning Policy No. 1 Woollahra Local Environmental Plan 1995 Woollahra Residential Development Control Plan 2003 Practice Note – Class 1 Development Appeals
CASES CITED:	Winten Property Group v North Sydney Council [2001] NSWLEC 46 Wehbe v Pittwater Council [2007] NSWLEC 827 Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	9 September 2010
DATE OF JUDGMENT:	10 September 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr G Green, solicitor SOLICITORS Pikes Lawyers RESPONDENT Mr S Patterson, solicitor SOLICITORS Wilshire Webb Stauntion Beattie

Reference	Description	Author/Drawn	Date(s)
08039 – 0100, 1100, 1101, 1102 issue D; , 1500, 1501 issue C; , 3000 and 3001 all Issue B issue D	Architectural Plans	Alexander Tzannes and Associates	Dec 2009March 2010
LPDA09-322/1B	Landscape Plan	Conzept Landscape Architects	July 2009
H001 to H105 Revision A Inclusive	Hydraulic and Stormwater Plans	Aecom Australia Pty Ltd	24.07.2009
22909WHrpt	Geotechnical Engineers Report	Jeffrey & Katauskas Pty Ltd	16.07.2009

Description	Amount	Indexed	Council Fee Code
LONG SERVICE LEVY under Building and Construction Industry Long Service Payments Act 1986
Long Service Levy	Contact LSL Corporation or use online calculator	No
SECURITY under section 80A(6) of the Environmental Planning and Assessment Act 1979
Property Damage Security Deposit -making good any damage caused to any property of the Council	$78,883.00	No	T115
DEVELOPMENT LEVY under Woollahra Section 94A Development Contributions Plan 2005 This plan may be inspected at Woollahra Council or downloaded at .
Development Levy (Section 94A)	$38,144.16 + Index Amount	Yes, quarterly	T96
INSPECTION FEES under Section 608 of the Local Government Act 1993
Public Road/Footpath Infrastructure Inspection Fee	$394.00	No
Security Administration Fee	$175.00	No	T16
TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES	$117,596.16 plus any relevant indexed amounts and long service levy