Linbay Pty Limited v Marrickville Council

[2004] NSWLEC 193

Land and Environment Court

of New South Wales

CITATION:

Linbay Pty Limited v Marrickville Council [2004] NSWLEC 193

PARTIES:

APPLICANT
Linbay Pty Limited

RESPONDENT
Marrickville Council

FILE NUMBER(S):

11386 of 2003

CORAM:

Watts C

KEY ISSUES:

Development Application :- proposed subdivision and implications on the streetscape - Height and architectural style - Side setbacks and Carparking

LEGISLATION CITED:

Marrickville Local Environmental Plan 2001, (LEP 2001)
Marrickville Development Control Plan No. 35, Vol 1 - Urban Housing, (DCP 35)
Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED:

DATES OF HEARING:

27/04/2004

DATE OF JUDGMENT:

04/29/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr C C Gough, solicitor

SOLICITORS
Storey & Gough

RESPONDENT
Mr G A Christmas, solicitor
SOLICITORS
Marrickville Council
RESPONDENT
Mr G A Christmas

SOLICITORS
Marrickville Council

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT OF
NEW SOUTH WALES


Marrickville Council
v
Linbay Pty Limited

Judgment
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Marrickville Council (the council) of a development application to subdivide into two lots and erect a two-storey dwelling on each lot at Lot 1 in DP 85202, being 10 Alfred Street, St Peters.
2 I visited the land in company with the parties on the morning of the hearing.
3 I have concluded that the application should succeed since when considered under s 79C of the Environmental Planning and Assessment Act 1979 it is satisfactory. I am satisfied that the proposal would fit in with the street both in terms of the subdivision pattern and building form.

The land
4 The land is situated on the southwestern side of Alfred Street, between Rolfe and Bakers Lanes. The land, which is vacant, is rectangular in shape and has a frontage to Alfred Street of 9.27m and is 30.715m deep, with an area of 283m2, and is generally level.
5 Nearby are other dwelling houses, and industrial uses are found on the Princes Highway and Rolfe Lane.
6 Single-storey dwelling houses are erected on abutting land. To the southeast at No 8 Alfred Street is a single-storey weatherboard cottage with a corrugated iron roof abutting the common boundary with the land. To the northwest at No 20 Alfred Street is another single-storey weatherboard cottage with a corrugated iron roof, set back about 900mm from the common boundary with the land.
7 With the exception of Nos 22, 22A and 24 Alfred Street the southwestern side of Alfred Street is generally characterised by single-storey dwelling houses. Nos 22, 22A and 24 Alfred Street are all two-storey terraced houses and on a corner site at No 56 Alfred Street two x two-storey dwelling houses are under construction, setback around 1.2m from each side boundary.
8 On the opposite northeastern side of Alfred Street single dwelling houses predominate and Nos 1 & 9 Alfred Streets are two-storey rendered brick residences.
9 Most land within the area has a frontage width in excess of 7.5m, with only four (4) of the thirty-five (35) properties having a width of less than 7.5m. No 22 Alfred Street two doors removed from the subject land is 4.03m wide.
10 Alfred Street also contains a significant number of 40-foot (12.19m) and 50-foot (15.24m) allotments.
11 The land is within the 25 to 30 ANEF2010 of Sydney Airport.

Relevant planning controls

Marrickville Local Environmental Plan 2001, (LEP2001)
12 The land is zoned Residential 2(A) under the provisions of LEP2001, gazetted on 18 May 2001, and the proposal is permissible with development consent.
13 There are no floor space ratio controls applying to land with a site area up to 200m2. No height limit applies to dwelling houses in the Residential A zones.

Marrickville Development Control Plan No 35, Vol 1 - Urban Housing, (DCP35)
14 DCP35 was adopted by the council on 5 December 2000 and came into force upon gazettal of LEP2001. The relevant sections of DCP35 include:

· B2 Building Setbacks;
· B3 Streetscape;
· 3A Subdivision; and
· 3B Garages, Carports and Driveways.

15 DCP35 includes Objective O1 and O3 and Control C1:
O1 To retain the prevailing subdivision and building character of the street.
O3 To ensure subdivision or amalgamation of sites reflects and reinforces the predominant subdivision pattern of the street.
C1 Proposed subdivision or amalgamation is similar to the prevailing subdivision and building character in terms of block width, site dimensions and layout, and is consistent with the streetscape of the subject development.
NB:
1. Council generally considers "streetscape" to apply to those adjoining and adjacent properties on either side of the subject site, fronting the same street, and the corresponding range of properties opposite. In most instances, it is appropriate to consider up to ten allotments on either side of the subject site.
2. Properties located in the surrounding streets do not usually form part of the streetscape context, and are therefore not taken into account.
16 Other Development Control Plans and Policies include:
· DCP No 19 - Parking Strategy;
· DCP No 27 - Controls for Site Waste Minimisation;
· DCP No 32 - Energy Smart Water Wise;
· DCP No 38 - Community Safety; and
· Marrickville Contributions Plan 1996.

17 Under DCP19 car parking at the rate of one (1) space per dwelling house is required.

The proposal and its history
18 Development application No 200300629 was lodged with the respondent council on 29 September 2003, to subdivide the land into two allotments and erect a two-storey dwelling house on each allotment.
19 The proposed allotments would have the following characteristics:

• Lot 1 the northwestern lot - Rectangular shaped allotment having an area of 137.9m² with a 4.6m frontage to Alfred Street.

• Lot 2 the southeastern lot - Rectangular shaped allotment having an area of 145.1m² with a 4.67m frontage to Alfred Street.

20 The dwelling house proposed on Lot 1 would comprise: a garage, laundry, kitchen, living and dining room on the ground floor with three bedrooms, an ensuite and a bathroom provided on the first floor.
21 The dwelling house proposed on Lot 2 would comprise a study, bathroom/laundry, kitchen, dining and living room on the ground floor with two bedrooms, an ensuite and a bathroom provided on the first floor.
13 The proposal is described in plans and details:
• A Statement of Environmental Effects prepared by the SPD Town Planners dated 6 August.2002;
• Floor Plans, Elevations, Section, Site Analysis Plan and Shadow Diagrams prepared by Cornerstone Design dated April 2002;
• A survey plan prepared, by Ballenden Surveyors dated 6 December 2001;
• A Landscape Plan prepared by Zenith Landscape Designs dated February 2002;
• A Concept Drainage Design prepared by N & T Consulting and Development dated 30 July 2002; and
• A NatHERS Certificate prepared by Peter Barlow.
22 On 7 June 2001, the council approved a development application (2001 00169) to erect a single-storey dwelling on the land. This approval remains valid.
23 On 26 February 2002, and prior to the lodgement of the application, Development Application No 200200112 was submitted to the council seeking approval to subdivide the land into two allotments and to construct two x two storey dwelling houses on the each allotment.
24 The council refused that application under delegated authority on 4 June 2002 for the following reasons: 1.
1. The proposed allotments are not in keeping with the prevailing subdivision pattern in the street.
2. The bulk, scale and height of the proposed development are excessive and would have an adverse impact on the amenity of the surrounding area.
3. The carrying out of the proposed development by virtue of its bulk, scale, height and the provision of garages within the front elevation would have an adverse impact on the streetscape.
4.. The proposed development would adversely affect the amenity of the adjoining residential properties by overshadowing and loss of privacy.
5. The open space proposed for the proposed dwellings does not comply with the requirements of Marrickville Development Control Plan No. 35 - Urban Housing and is considered inadequate for the size of the proposed dwellings.
6. In view of the circumstances, approval of the application would not be in the public interest.

Notification
25 The present application was notified to nearby owners and occupants and the council received one objection. This objection from a resident on the opposite side of the street was in reference to car parking.

The council’s decision
26 By notice dated 1 December 2003 the council refused the application for the following reasons:
1. The proposed allotments are not in keeping with the prevailing subdivision pattern in the street.
2. The bulk, scale and height of the proposed development are excessive and would have an adverse impact on the amenity of t he surrounding area.
3. The carrying out of the proposed development by virtue of its bulk, scale, height, lack of side set backs and the provision of a garage within the front elevation would have an adverse impact on the streetscape.
4. The proposal does not provide adequate off-street car parking.

The hearing
27 The appeal was filed on 13 November 2003.
28 At the hearing the court heard evidence on behalf of the respondent council from:

· Mr J Erken, town planner of Marrickville Council.

29 On behalf of the applicant evidence was given by:
· Mr M George, town planner.


The issues
30 On 15 January 2004 the council filed a statement of issues:
1. Whether the proposed subdivision of the land is consistent with the existing subdivision pattern in the street and would permit the continuation of the dominant building pattern, particularly having regard to objectives O1 and O3 and control C1 of Part 3A of Development Control Plan No 35 - Urban Housing, Volume 1 ("the DCP").
2. Whether the height and design of the proposed dwellings will impact on the streetscape and whether the height and architectural style is complimentary to development in the street and vicinity as required by objective O1 and controls C3, C7, C20 and C21 of Part B3 of the DCP.
3. Whether the proposed side boundary setbacks are acceptable having regard to objective O1 and controls C2 and C4 (bullet points 1 and 7) of Part B2 of the DCP.
4. Whether the proposed on-site car parking arrangements are satisfactory having regard to Part 3B of the DCP.

31 The following emerged as the salient issues:
· Proposed subdivision and implications on the streetscape;
· Height and architectural style of the building;
· Side setbacks; and
· Car parking.

The evidence and findings

Proposed subdivision and implications on the streetscape
32 Most land within the area has a frontage width in excess of 7.5m, with only four (4) of the thirty-five (35) properties having a width of less than 7.5m. No 22 Alfred Street is 4.03m wide and is erected with nil setbacks from the side boundaries, [Note: Exhibit 4 p 12].
33 Mr Erken considered the proposed subdivision of the land into two allotments with widths of 4.6m and 4.67m would set an undesirable precedent for future subdivision in the street and would not reflect or reinforce the predominant subdivision pattern of the street.
34 Mr George took a contrary view. He was of the opinion that the proposal is an attempt to work within the controls set by the council. He stated that the assessment would require an interpretation of the objectives and principles of DCP35. He considered the proposal to be acceptable in its context and compatible with the character of the street. He maintained that DCP35 encourages small allotments such as that proposed.
35 I accept the evidence of Mr George and I am satisfied that if approval were granted that no undesirable precedent would be set for future subdivision in the street and that the proposal would not do other than reflect or reinforce the subdivision pattern of the street.
36 In this regard No 22 Alfred Street is nearby and of similar width to the proposed and fits in well in the streetscape. I would not refuse the application for this reason.

Height and architectural style of the building
37 There are no height or bulk controls applying to land in the Residential A zone either under the LEP2001 or DCP35 for land of the dimensions proposed. The proposal for two dwellings with attics is to be determined on its merits.
38 Mr Erken was of the opinion that the proposed dwelling houses would not relate well to the adjoining properties or the predominant character of the street.
39 Mr George stated that there is no uniformity in the street and the proposal fits with the established framework of buildings and would not involve any starkly contrasting elements or unexpected.
40 I am satisfied that the proposal would present to the street as predominantly single-storey in height with attic dormer windows. Although the proposal would incorporate a gabled roof with the main ridge parallel to the street, it is within a streetscape that is without any uniformity and the proposal would fit-in as does No 22 Alfred Street. This was confirmed on the site inspection. In this regard I accept the evidence of Mr George. I would not refuse the application for this reason.

Setbacks
41 Nil setbacks are proposed and Mr George was of the opinion that this would result in a proposal that is reasonably integrated with the street.
42 Mr Erken was of the opinion that the street is characterised by dwellings that are setback from one or both side boundaries, and as a result the proposal would be out of character in that streetscape.
43 The DCP35 does not preclude zero side setbacks and there are some dwellings in the street that abut the side boundaries. I would not refuse the application for this reason and I prefer the evidence of Mr George in this regard.

Car parking
44 One car-parking garage is proposed for one of the terraced houses and not for the other. In the joint statement the planning experts agreed that in terms of visual impact the provision of a single garage door to the street is preferable to two garage doors, [Note: Exhibit 5 p 1].
45 Part 3B of DCP35 states:

(a) need to balance car parking access and provision with design, heritage and sustainability objectives.

46 Mr George was of the opinion that the proposal would not be inconsistent with the objective of the parking control. He noted that Control C9 indicates a preference for bi-fold panelled garage doors.
47 Mr Erken disagreed and considered it appropriate to provide one car parking space for each dwelling and maintained that the proposal could be seen as an overdevelopment of the land on the basis of insufficient car parking being provided.
48 Balancing the car parking access and provision with the design, I am satisfied that sufficient car parking would be provided given the proximity of the land to bus routes on Princes Highway and heavy rail about 500m to the west. I prefer the evidence of Mr George in this regard. The bi-fold doors on the garage of the Lot 1 dwelling would present satisfactorily to the street. There would remain on on-street car parking space in front of Lot 2.
49 For the above reasons, the appeal is upheld.

Conditions
50 The conditions are those in Exhibit 6 with the deferred commencement condition in Exhibit D added, that relates to the need to provide a box gutter for the dwelling to the south.

Orders
51 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 200300629 lodged with the respondent council on 29 September 2003, to subdivide into two lots and erect a two-storey dwelling on each lot at Lot 1 in DP 85202, being 10 Alfred Street, St Peters, is approved subject to deferred commencement and Conditions 1 to 52 in Annexure A.

3. The exhibits with the exception of Exhibits A, D, 2 and 6 are returned.

S J Watts
Commissioner of the Court
sw

Conditions of development consent
Annexure A
Linbay Pty Limited
v
Marrickville Council

DEFERRED COMMENCEMENT CONDITION
1. The encroachment of the existing roof gutter at No 8 Alfred Street on No 10 Alfred Street is to be rectified at the cost of the applicant with the agreement of the owner of No 8 Alfred Street, and to the satisfaction of the council.
2. The rectification of the encroachment is to occur in a manner that maintains adequate disposal of rainwater from the roof of No 8 Alfred Street, equivalent to the existing method of disposal of that rainwater.
GENERAL
1. The development being carried out in accordance with Job No. CD0102 (Plans 1 and 2) dated April 2002 prepared by Cornerstone Design and Landscape Plan No 02-1387A dated February 2002 and the details submitted to Council on 29 September 2003 with the application for development consent except where amended by the following conditions.
Reason : To confirm the details of the application as submitted by the applicant.
2. The premises on each allotment being used exclusively as a single dwelling-house and not being adapted for use as a dual occupancy, residential flat building, backpackers accommodation, serviced apartments or a boarding house and not being used for any industrial or commercial purpose.
Reason : To ensure that the premises on each allotment are used exclusively as a single dwelling house.
3. One (1) off-street car parking space being provided for the north western dwelling house (Lot 1), maintained at all times in accordance with the standards contained within Marrickville Development Control Plan No. 19 - Parking Strategy.
Reason : To ensure that practical off street car parking is available for the proposed development.
4. All building work must be carried out in accordance with the provisions of the Building Code of Australia 96.
Reason : To ensure the work is carried out to an acceptable standard and in accordance with the State's building code.
5. Any adjustment or augmentation of any public utility services including Gas, Water, Sewer, Electricity, Street lighting and Telecommunications required as a result of the development shall be at no cost to Council and undertaken before occupation of the site.
Reason: To ensure all costs for the adjustment/augmentation of services arising as a result of the redevelopment are at no cost to Council.
6. A road-opening permit shall be obtained for all works carried out in public roads or Council controlled lands. Restorations shall be in accordance with Marrickville Council's Restorations Code. Failure to obtain a road opening permit will incur an additional charge for unauthorised openings in the amount of $1,321.30, as provided for in Council's adopted fees and charges.
Reason: To ensure that all restoration works are in accordance with Council's code.
BEFORE THE ISSUE OF A SUBDIVISION CERTIFICATE
7. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained before the issue of the Subdivision Certificate . Application must be made through an authorised Water Servicing Coordinator. Please refer to "Your Business" section of Sydney Water's website at then the "e-developer" icon or telephone 13 20 92.
Reason : To comply with the requirements of that Act.
8. The submission of a final survey plan and ten (10) copies for the proposed subdivision before the issue of the Subdivision Certificate .
Reason : To comply with Council's requirements.
9. The payment of $770.00 for the approval of the final plan under the terms of Section 109J of the Environmental Planning and Assessment Act before the issue of the Subdivision Certificate.
Reason : To comply with the requirements of that Act.
10. All instruments used to create easements, rights and/or restrictions as to user including in them provisions that such may not be revoked or modified without the prior approval of Council.

Reason : To ensure that such instruments are not revoked or modified without the prior approval of Council.
11. A monetary contribution of $15,180.00 has been assessed as a contribution in lieu of public reserve for the increase in density resulting from the carrying out of the proposed development under Section 94 of the Environmental Planning and Assessment Act and Marrickville Contributions Plan 1996 (a copy of which may be inspected at the offices of the Council). The contribution, towards St Peters/Sydenham area Public Park and Council wide projects (Acc ount N o. 79.9608), must be paid to the Council in cash or by unendorsed bank cheque before the issue of the Subdivision Certificate or before the issue of the Construction Certificate, which ever occurs first.
Reason : To ensure provision is made for the increased demand for public amenities and services required as a consequence of the development being carried out.
12. Pursuant to Section 94 of the Environmental Planning & Assessment Act and Contributions Plan 1996 (a copy of which may be inspected at the Council offices) a monetary contribution of $1,022.00 towards the implementation of a traffic management scheme, St Peters area, must be paid to Council in cash or an unendorsed bank cheque before the issue of a Construction Certificate.
Reason: To ensure adequate provision is made for the provision of public amenities and services required as a consequence of the development being carried out.
13. Separate drainage systems being provided to drain each proposed lot. Plans detailing the proposed system shall be submitted to and accepted by Council before the issue of a Subdivision Certificate or before the Construction Certificate whichever occurs first.
Reason: To provide for adequate site drainage.
BEFORE THE ISSUE OF A CONSTRUCTION CERTIFICATE
14. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to "Your Business" section of Sydney Water's website at then the "e-developer" icon or telephone 13 20 92.
Following application a "Notice of Requirements" will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.
Sydney Water written advice that yo u h ave obtained the Notice of Requirements must be submitted to Council's satisfaction be fore the issue of the Construction Certificate.
Reason: To comply with the requirements of that Act.
15. Details of all finished surface materials, including colour and texture to be used in construction being submitted to Council's satisfaction before the issue of the Construction Certificate.
Reason: To ensure that finished surface details are in keeping with the character of the area.
16. Noise attenuation measures being incorporated into the development complying with Australian Standard 2021-2000 in relation to interior design sound levels, in accordance with details to be submitted to Council's satisfaction before the issue of the Construction Certificate together with certification by a suitably qualified acoustical engineer that the proposed noise attenuation measures satisfy the requirements of Australian Standard 2021-2000.
Reason : To reduce noise levels within the proposed development from aircraft.
17. Before the issue of a Construction Certificate evidence of payment of the building and construction industry Long Service Leave Scheme, is required to be given to Council. The required payment of $600.00 can be made at the Council Offices. This fee has been based on an estimated cost of works of $300,000.
Reason : To ensure that the appropriate levy (0.2% of the cost of the building and construction work costing $25,000 or more) is paid in accordance with the Building and Construction Industry Long Service Payments Act 1986.
18. Each dwelling house is to be provided with reticulated gas infrastructure with a separate meter for each dwelling and is to contain a hot water system with a minimum 3.5 star Greenhouse rating and being fitted out with AAA rated showerheads, basin and kitchen sinks and dual flush toilets in accordance with details to be submitted to Council's satisfaction before the issue of Construction Certificate.
Reason : To comply with the requirements of Marrickville Development Control Plan No. 32 - Energy Smart Water Wise.
19. The roof or ceiling area of the dwelling houses are to be insulated to a R3 rating. The approved plans are to be suitably marked before the issue of a Construction Certificate.
Reason : To ensure the development complies with the requirements of Marrickville Development Control Plan No 32 - Energy Smart Water Wise.
20. Where Council is appointed as the Principal Certifying Authority to carry out inspections of the works in progress for the purposes of issuing an Occupancy Certificate, a fee of $836.00 is required to be paid to Council for the required inspections and the Occupation Certificate before the issue of a Construction Certificate.
Reason : To inspect the works in progress to confirm that the works are built in accordance with the development consent and construction certificate.
21. A Soil and Water Management Plan must be submitted to and be accepted by the Principal Certifying Authority (PCA) before the issue of a Construction Certificate. The Soil and Water Management plan must be prepared and implemented by the person(s) supervising the works on site and must include details of the controls to be installed on the development site to prevent erosion and sedimentation of stormwater drains.
NOTE: 1. The plan should include the slope of the land, protection of street gutters and water channels, location of washdown and storage of material areas and methods of preventing mud, dirt and the like being tracked onto the public place by vehicles.
2. For guidance on the preparation of the Plan refer to the Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Regional Organisation Councils. Copies of the Guidelines are available from Council.
Reason : To ensure that appropriate controls are in place to control erosion and sedimentation.
22. Sediment control devices must be constructed and maintained in proper working order to prevent sediment discharge from the construction site. Sediment control plans and specifications complying with the `Urban Erosion and Sediment Control' Handbook, published by the NSW Department of Conservation and Land Management (CALM) must be submitted to the Principal Certifying Authority before the issue of a Construction Certificate.
Reason : To prevent soil erosion and sedimentation of Council's stormwater drainage system.
23. Before the issue of the Construction Certificate the owner or builder shall sign a written undertaking that they shall be responsible for the full cost of repairs to footpath, kerb and gutter, or other Council property damaged as a result of construction of the proposed development. Council may utilise part or all of any Building Security Deposit (B.S.D.) or recover in any court of competent jurisdiction, any costs to Council for such repairs.
Reason: To ensure that all damages arising from the building works are repaired at no cost to Council.
24. Payment to Council of $1,240.00 before to the issue of the Construction Certificate as a Building Security Deposit (B.S.D.) to a provide security against damage to Council's infrastructure. Council may utilise part or all of the B.S.D. to restore any damages. Further Council may recover, in any court of competent jurisdiction, any costs to Council for such restorations.
Reason: To ensure all damage to Council's infrastructure is repaired at the applicants expense and to satisfactory standard.
25. Plans, details and calculations of an On Site Detention system in accordance with Marrickville Council Stormwater and On Site Detention Code, shall be submitted to and accepted by Council before the issue of a Construction Certificate. The on site detention system shall be designed for all storm events from the 1 year to the 1:100 year storm event, with discharge to a Council controlled storm water system limited to pre-development conditions with the maximum allowable discharge to Council's street gutter limited to 25 litres/second. Storage for the 1-year storm event shall be provide fully below ground. Details shall also include the Height v Storage and Height v Discharge relationships.
Reason: To ensure the development does not increase the stormwater runoff from the site.
BEFORE COMMENCING WORKS
26. You must not commence building work or subdivision work until:
(a) a Construction Certificate has been issued by Council or an accredited certifier; and
(b) the person having benefit of the development (the Applicant) has appointed a Principal Certifying Authority (PCA), and where Council is not the PCA, notify Council of the appointment of the PCA; and
(c) you have given written notice to Council of your intention to commence building work.
Notification required by (b) and (c) above can be made by completing the attached form and returning it to Council's Development and Environmental Services Division.
Reason : To comply with the provisions of the Environmental Planning and Assessment Act.
27. The approved plans must be submitted to the Customer Centre of any office of Sydney Water before the commencement of any work, including excavation activity associated with the development, to ensure that the proposed work meets the requirements of Sydney Water in relationship to:
(a) sewers;
(b) watermains;
(c) stormwater channels; and
(d) development requirements where applicable.
Failure to submit these plans before commencing work may result in the demolition of the structure at the builder's expense should it be found that the work does not comply with the requirements of Sydney Water.
Reason: To ensure the location of Sydney Water's main sewer lines have been established before building work commences.
28. Before work commences the Principal Certifying Authority must be provided with either:
(a) a copy of the `Contract of Insurance' in accordance with Part 6 of the Home Building Act 1989 and the details of the name and licence number of the builder/contractor who has been contracted to do or intends to do the work; or
(b) a copy of a current owner-builder's permit (where the value of work exceeds $5,000) issued by the Department of Fair Trading stating the name and permit number of the owner-builder who intends to do the work.
Note: For information regarding the Home Building Act and the necessity to obtain insurance for the proposed work or for information regarding owner-builder permits contact any office of the Department of Fair Trading or telephone the Department on 2133220.
Reason : To comply with provisions of the Environmental Planning and Assessment Regulation.
29. Before commencing work sanitary facilities are to be provided at or in the vicinity of the work site at a rate of one (1) toilet for every 20 persons or part of 20 persons employed at the site and each toilet must be a standard flushing toilet and must be connected:
(a) to a public sewer, or
(b) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by Council, or
(c) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by Council.
Such facilities are to be located in a position, which will not cause a nuisance to the surrounding neighbourhood.
Reason : To ensure that sufficient and appropriate sanitary facilities are provided on the site.
30. Before commencing work:
(a) the site must be enclosed with suitable fencing or hoarding to prohibit unauthorised access to the site by the public. The fencing must be erected as a barrier between the public place and the site works; and
(b) a sign must be erected in a prominent position stating that unauthorised entry to the work site is prohibited and showing the name of the person in charge of the site and a telephone number at which that person may be contacted outside of working hours.
Enquiries for site fencing and hoardings in a public place including Council approval, can be made through Council's Technical Services Division on 9335 2222.
Reason: To secure the area of the site works so as to maintain the safety of the public.
CONSTRUCTION AND SITE WORKS
31. All demolition, construction and associated work necessary for the carrying out of the development being restricted to between the hours of 7.00 am to 5.30 pm Mondays to Saturdays, excluding Public Holidays. All trucks and vehicles associated with the construction, including those delivering to or removing material from the site, only having access to the site during the hours referred to in this condition. All construction vehicles bringing materials to and from the site being loaded and unloaded wholly within the property. No waste collection skips, spoil, excavation or demolition material from the site or building materials associated with the construction of the development being deposited on the public road, footpath, public place or Council owned property without Council's approval, having first been obtained. The developer being responsible to ensure that all contractors associated with the development are fully aware of these requirements.
Reason : To minimise the effect of the development during the construction period on the amenity of the surrounding neighbourhood.
32. The area surrounding the building work being reinstated to Council's satisfaction upon completion of the work.
Reason : To ensure that the area surrounding the building work is satisfactorily reinstated.
33. Soil and water management controls must be provided on the site and comply with the following:
(a) Council's warning sign for soil and water management must be displayed at the most prominent point on the site nearest to the construction area, visible to both the street and site workers. The warning signs must be displayed throughout the duration of construction/site works (Warning signs are available from Council); Note: Warning signs only need to be erected where a Soil and Water Management Plan has been submitted to and approved by Council;
(b) the capacity and effectiveness of erosion and sediment control devices being maintained at all times;
(c) a copy of the Soil and Water Management Plan (where required to be prepared) must be kept on-site at all times and made available to Council Officers on request;
(d) stockpiles are not permitted to be stored on Council property (including nature strip) unless prior approval from Council has been granted;
(e) stockpiles of topsoil, sand, aggregate, spoil or other material being stored clear of any drainage line or drainage easement, natural watercourse, kerb or road surface;
(f) drains, gutters, roadways and accessways must be maintained free of sediment;
(g) building operations such as brickcutting, washing tools or paintbrushes, and mixing mortar must not be carried out on the roadway or public footway. Building operations must be carried out in such a way as to prevent the discharge of materials into the stormwater drainage system;
(h) before the removal of sediment controls and within 14 days of completion, all disturbed areas must be stabilised against erosion. Methods for erosion control are detailed in the `Urban Erosion and Sediment Control' Handbook, published by the NSW Department of Conservation and Land Management (CALM), Ir 9895 7390; and
(i) stormwater from roof areas must be collected and drained via a downpipe to a stormwater disposal system immediately after completion of the roof area.
Reason : To protect the environment from soil erosion and sedimentation.
34. The applicant and/or owner is to comply with the following requirements during demolition, excavation and building works:
(i) No damage is to occur to adjoining buildings, land and public property during demolition and construction works and all necessary steps are to be taken to prevent the discharge of dust, water and other pollution types into adjoining premises and the public place;
(ii) Asbestos sheeting must only be removed by licensed operators with the consent of the WorkCover Authority of NSW. Proper procedures must be employed in the handling and removal of asbestos to minimize the risk to personnel and the escape of particles to the atmosphere;
(iii) All necessary permits required by Council, including hoarding permits and footpath occupation fees, must be obtained. and the applicant and/or owner must comply with any applicable requirements of the WorkCover Authority of NSW and the Environment Protection Authority before commencement of any demolition works;
(iv) All demolition, construction and associated work necessary for the carrying out of the development being restricted to between the hours of 7.00 am to 5.30 pm Mondays to Saturdays, excluding Public Holidays. All trucks and vehicles associated with the construction, including those delivering to or removing material from the site, only having access to the site during the hours referred to in this condition. All construction vehicles bringing materials to and from the site being loaded and unloaded wholly within the property. No waste collection skips, spoil, excavation or demolition material from the site or building materials associated with the construction of the development being deposited on the public road, footpath, public place or Council owned property without Council's approval, having first been obtained. The developer being responsible to ensure that all contractors associated with the development are fully aware of these requirements;
(v) All services have been disconnected prior to commencement of work;
(vi) Building and demolition works which will necessitate the use of appliances which emit noise of a highly intrusive nature, such as hydraulic hammers, must not give rise to an "offensive noise" as defined in the Protection of the Environment Operation Act 1997; (vii) Satisfactory methods and/or devices must be employed on the site to prevent the tracking of mud onto the surrounding streets from vehicles leaving the site;
(viii) All vehicles carrying materials to or from the site must have their loads covered with tarpaulins or similar covers;
(ix) All loading and unloading in connection with demolition excavation and building works being carried out within the site, unless otherwise specifically approved by Council. Vehicles (trucks) must not park or stand on the public way whilst waiting to gain access to the site;
Reason: To ensure the demolition, excavation and building works are carried out within the required standards, with minimal impact to the locality.
35. Where Council is appointed as the Principal Certifying Authority the following inspections of the building or work must be undertaken:
(a) soil and water management controls;
(b) reinforcing steel when in position and before concrete is placed;
(c) dampcourse, termite barriers and floor timbers before the floor material is fixed;
(d) filling the wall cavity with mortar up to weep-hole level before the laying of any brickwork above slab level;
(e) the framework including roof members when completed and before the fixing of any internal linings;
(f) wet areas (bathrooms, laundries), damp-proofing and flashings before linings are fixed;
(g) continuous cavity construction, flashing, waterproofing to the existing building(s);
(h) connection and hold-down fixing methods of component members;

(i) external stormwater drainage lines before backfilling of trenches and absorption pit where permitted;
(j) upper floor beams and joists before fixing any floor material;
(k) completion of the building or work.
At least 48 hours notice of the required inspection must be given to the Development and Environmental Services Division, 2 9335 2222.
Note: The person acting upon this consent must satisfy him/herself that each of the above building elements have been inspected and approved before continuing with construction.
Reason: To ensure the building work is carried out in accordance with the Building Code of Australia during the course of construction.
36. If it is required or intended to excavate below the level of the base of the footings of a building on the adjoining allotments of land, including a public place such as footways and roadways, the person causing the excavation to be made must:
(a) preserve and protect the premises from damage;
(b) if necessary, underpin and support the building in an approved manner. Where underpinning is required, details prepared by a practising structural engineer are to be submitted to the Principal Certifying Authority before underpinning works commence ; and
(c) give at least seven (7) days notice, including complete details of the work, to the owners of the adjoining land of the intention to excavate below the base of the footings.
Reason: To ensure that adjoining buildings are preserved and supported.
37. If the proposed work is likely to cause obstruction of the public place and/or is likely to endanger users of the public place, a suitable hoarding or fence approved by Council must be erected between the work site and the public place. Enquiries for site fencing and hoardings in a public place including Council approval, can be made through Council's Technical Services Division on 9335 2223.
Reason : To provide protection to the public place.
38. The placing of any building/demolition materials on Council's footpath or roadway is prohibited and under no circumstances must building operations be carried out on the footpath or roadway without the consent of Council. The placement of waste storage containers in a public place requires Council approval and must comply with Council's Local Policy - 'Placement of Waste Storage Containers in a Public Place'. Enquiries can be made through Council's Waste Services Section on 9335 2132 or 9335 2133.
Reason: To ensure the public ways are not obstructed and the placement of waste storage containers in a public place are not dangerous to the public.
39. The buildings, including footings, guttering and downpiping, must not encroach on the allotment boundaries and alignments to public places.
Reason: To ensure the building works are contained within the allotment boundaries.
40. A certificate of survey from a registered land surveyor must be submitted to the Principal Certifying Authority upon excavation of the footings and before the pouring of the concrete to verify that the structure will not encroach on the adjoining allotment boundaries.
Reason: To ensure all works are contained within the boundaries of the allotment.
41. All roof and surface stormwater from the site and any catchment external to the site that presently drains to it, shall be collected in a system of pits and pipelines/channels and major storm event surface flow paths and being discharged to a Council controlled stormwater drainage system in accordance with the requirements of Marrickville Council Stormwater and On Site Detention Code. The maximum discharge allowable to Council's street gutter is 25 litres/second.
Reason: To provide for adequate site drainage.
42. All stormwater drainage being designed in accordance with the provisions of the 1987 Australian Rainfall and Runoff (A.R.R.), Australian Standard AS3500.3.2-1998 `Stormwater Drainage-Acceptable Solutions' and Marrickville Council Stormwater and On Site Detention Code. Pipe and channel drainage systems shall be designed to cater for the twenty (20) year Average Recurrence Interval (A.R.I.) storm in the case of low and medium residential developments, the twenty (20) year A.R.I. storm in the case of high density residential development and commercial and/or industrial developments and the fifty (50) year A.R.I. storm in the case of heavy industry. In all cases the major event surface flow paths shall be designed to cater for the one hundred (100) year A.R.I. storm.
Reason: To provide for adequate site drainage.
43. The person acting on this consent must comply with the requirements of the Dividing Fences Act in respect to the erection, removal, alterations and additions to the boundary fences.
Reason: To ensure that the provisions of this Act are observed.
44. Adequate protection, including flashing, is to be provided between the approved building work and the adjoining building/s to prevent the penetration of water and dampness to the inner parts of both buildings.
Reason: To ensure healthy conditions are maintained within the buildings.
45. Paths, patios, paved areas and the like and any areas of the allotment that have been regraded are to allow free draining away from the dwelling and are not to direct the flow of surface waters into adjoining properties or against adjoining buildings.
Reason: To prevent damage to buildings and adjoining properties.
BEFORE OCCUPATION OF THE BUILDING
46. The subdivision of the land into two lots being registered at the Land Titles Office before the occupation of the dwelling house.
Reason: To confirm the terms of Council's approval.
47. You must obtain an Occupation Certificate from your Principal Certifying Authority before you occupy or use the building completed in accordance with this consent. A copy of the Certificate must be provided to Council within seven (7) days of the Certificate being determined.
Note : It is not an offence under the Environmental Planning and Assessment Act 1979 , if you do not obtain an Occupation Certificate.
Reason : To comply with the provisions of the Environmental Planning and Assessment Act.
48. The landscaping of the site being carried out prior to occupation or use of the premises in accordance with the approved plan, and being maintained at all times to Council's satisfaction.
Reason : To ensure adequate landscaping is maintained.
49. (i) Upon completion of the required noise attenuation measures referred to in Condition 16 and prior to the occupation of the dwelling-houses a report being prepared and submitted to Council's satisfaction by an accredited Acoustics Consultant independent of any consultant involved in the design and installation of the noise attenuation measures, certifying that the final construction meets AS2021-2000. Such report shall include external and internal noise levels to ensure that the external noise levels during the test are representative of the typical maximum levels that may occur at this development; and
(ii) Where it is found that internal noise levels are greater than the required dB(A) rating due to faulty workmanship or the like, necessary corrective measures shall be carried out and a further certificate being prepared and submitted to Council in accordance with the requirements as set down in Part (i) of this condition.
Reason : To reduce noise levels within the proposed dwelling-houses from aircraft and to ensure that the proposed noise attenuation measures incorporated into the dwelling-houses satisfactorily comply with the relevant sections of Australian Standard 2021-2000.
50. Compliance with the requirements of Marrickville Development Control Plan No 32- Energy Smart Water Wise is to be demonstrated via completion of the Council's Green Checklist, which is to be completed by the Council or the Principal Certifying Authority (PCA) before the issue of an Occupation Certificate. If completed by a PCA, a copy of the completed checklist must be forwarded to Council for its records.
Reason : To appropriately monitor the installation of energy and water conservation fixtures and appliances.
51. All works required to be carried out in connection with drainage, crossings, alterations to kerb and guttering, footpaths and roads resulting from the development shall be completed before occupation of the site. Works shall be in accordance with Council's Standard crossing and footpath specifications and AUS-SPEC#2-"Roadworks Specifications".
Reason: To ensure applicant completes all required work.
52. Before occupation of the site written verification from a suitably qualified professional civil engineer, stating that all stormwater drainage and related work has been certified and constructed in accordance with the approved plans shall be submitted to and accepted by the council. In addition, full works as executed plans, prepared and signed by a registered surveyor, shall be submitted to the council. These plans must include levels for all drainage structures, buildings (including floor levels), finished ground levels and pavement surface levels.
Reason: To ensure drainage works are constructed in accordance with the approved plans.
S J Watts
Commissioner of the Court