Manolev Associates Pty Ltd v Manly Council
[2003] NSWLEC 317
•12/10/2003
>
Land and Environment Court
of New South Wales
CITATION: Manolev Associates Pty Ltd v Manly Council [2003] NSWLEC 317 PARTIES: APPLICANT
RESPONDENT
Manolev Associates Pty Ltd
Manly CouncilFILE NUMBER(S): 10658 of 2003 CORAM: Hoffman C KEY ISSUES: Development Application :- Existing Council approvals for another house and swimming pool and elevated driveways and carports on the site - Visibility from Middle Harbour - the Spit and Mosman - Sydney Harbour foreshore scenic protection - the size of the house on a small allotment - The bushland setting of the Seaforth escarpment - Heights of walls - Side boundary setbacks
LEGISLATION CITED: Manly Local Environmental Plan 1988
Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan No. 53CASES CITED: DATES OF HEARING: 10, 11, 12, 19 November 2003 EX TEMPORE
JUDGMENT DATE :
12/10/2003LEGAL REPRESENTATIVES: RESPONDENT
APPLICANT
Mr B Hones, solicitor
SOLICITORS
Hones Lawyers
Mr C Leggatt, barrister
SOLICITORS
Abbott Tout
JUDGMENT:
IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
10658 of 2003
10 December 2003Hoffman C
- Applicant
- Respondent
Introduction
1 This was a Class 1 appeal No. 10658 of 2003 between Manolev Associates Pty Ltd and Manly Council in regard to the deemed refusal of a house on Lot 101 being a subdivision of Lots A and B DP 356608 at No. 1 Seaforth Crescent, Seaforth.
The site and environs
2 The site was on the south facing escarpment of Seaforth overlooking the Spit Bridge. Most houses were very large and several storeys high.
3 There was an existing house and suspended concrete driveway ramps on Lot 101. The Lot was 763 m2, and was rectangular except up at the street end. It was about 47 m long and 17.7 m wide.
4 The allotment was oriented northwest-south east along its length. But for simplicity I shall call the south-west side the west, adjoining No. 5 Seaforth Crescent. The north-east side, I shall call the east adjoining No. 41 Battle Boulevarde; the road frontage is the north; and the southern side is the boundary with No. 3 Seaforth Crescent, being Lot 102.
5 The council had granted several previous consents related to the subject site and Lot 102. The latter was a water front lot reached by a battleaxe pedestrian stairway from the street. A stairway was partly built in the access to the battleaxe plus an inclinator. A 4-storey house and a swimming pool was erected on Lot 102 just above the water. There was no vehicular access to the house.
6 The obvious reason for the limited access to Lot 102 was the steep topography.
7 From the road to the water there was 50 m fall in elevation over about 80 m distance. The battleaxe was on the west side of Lot 101, the subject site. The existing house on the site was 2 and 3 storeys high and overlapped 0.06 m into the battleaxe for Lot 102 and was approved that way by council in its subdivision consent.
8 The council had also approved extensions and alterations to the existing house on Lot 101, including a swimming pool in the same location as the subject proposal. It was in front of the house on its south side overlooking Middle Harbour.
9 The council had by separate consent approved the suspended concrete driveway and two double carports. The driveway had reciprocal rights of way for Lots 101 and 102. A carport and access stairway inclinator landing had been constructed within the battleaxe of Lot 102 up at the street boundary. This type of structure seemed to be fairly common along Seaforth Crescent and Battle Boulevarde due to the very steep topography.
10 On Lot 101 the driveway currently ended about 10 m above the slope below and was suspended on 3 tall columns. A carport for Lot 101 had been approved up at a similar height more than 10 m above the slope but it was not yet built.
The proposal
11 In the subject proposal the approved carport for Lot 101 was incorporated into the house on its flat roof, along with an entry porch and lift lobby to the new house below. Below the approved but unbuilt carport was the master bedroom suite on the third-storey of the house. There was another bedroom at that level on the western side.
12 There was a central stairway and elevator serving all 3 living levels plus the entry and carport level on the roof.
13 At the second-storey was a kitchen, a family, dining and TV room with a north facing patio between the TV room and the slope of the hill. There was also a cavernous space to be created under the suspended driveway between the house and slope of the hill on the north side. The ground beneath this structure was to be landscaped, and it was possible tall growing species planted in specific locations may eventually appear above the roof of the proposal.
14 There were external stairs down from the family room on the east side to a balcony outside the rumpus room on the ground floor. At the ground floor were two more bedrooms, bathroom, sauna, and the rumpus room, from which more external stairs went down to the swimming pool terrace.
15 The proposed house could be said to fit generally into the same footprint as the existing house plus the approved alterations and additions, and the approved highly elevated carport. As previously mentioned the proposed pool was in the same position as that in the approved alterations and additions.
16 Below the pool was steep land and was to be landscaped down to a cliff that dropped down to Lot 102. On the subject site there were two mature cheese trees just east of the swimming pool. The council was concerned to retain them, and the applicant had agreed to preserve them as they were the only trees on the site and were quite visible from the water of Middle Harbour, and the parklands and main roads of the Spit, and the Spit Bridge, and Mosman opposite the site.
17 As the evidence unfolded the area available for landscaping facing the water was very important under the Manly LEP 1988 and the Manly Residential Zone DCP and The Sydney Regional Environmental Plan (SREP 23). All three documents aimed at the protection of the scenic beauty of the harbour and its foreshores.
The issues
18 The issues were as follows:
1. Whether the proposal complies with the aims and objectives in s 3 (1) (b) (e), (i) and (j) of the Manly Local Environmental Plan1988 (“LEP 1998”).
2. Whether the proposal meets the policies and strategies in s 4 (a) (i) (ii) (v) (viii) of the LEP 1998.4. Whether the proposal complies with cl 17 - visual and aesthetic protection of certain land of LEP 1988.3. Whether the proposal complies with objective in s 1 (b) (c) (d) (e) (h) for the residential zone of LEP 1998.
Manly Development Control Plans
5. Whether the proposal complies with the aims and objective of the Development Control Plan for the Residential Zone, 2001 (“DCP 2001”) contained in Part A5.
Floor Space Ratio
6. Whether the proposal complies with the maximum 0.4:1 floor space ratio development requirement contained in the s 3.3.2 (a) of DCP 2001.7. Whether the proposal complies with the objectives of the floor space ratio development requirement contained in s 3.3.1 of DCP 2001.
9. Whether the proposal complies with the objectives of the building height development requirement contained in s 3.4.1 of DCP 2001.8. Whether the proposal complies with the maximum wall height contained in s 3.4.2 (i) (a) of DCP 2001.
Setbacks
11. Whether the proposal complies with the objectives for the setback development standard in Section 3.5.1 of DCP 2001.
10. Whether the proposal complies with the side and rear setback development standard in Section 3.5.2 of DCP 2001.
Open Space
12. Whether the proposal complies with minimum percentage of open space contained in s 3.2.2 (d) of DCP 2001.
Design
13. Whether the height and bulk of the building is out of character with the area.Privacy
15. Whether the development will result in a loss of privacy to the adjoining properties.
Amenity
16. Whether the development has regard to Sydney Regional Environmental Plan 23 - Sydney and Middle Harbours.
17. Whether the development will result in a loss of amenity to adjoining residents.
Public Interest and Issues of the Objectors
19. The issues raised by the objectors.18. Whether, in the circumstances of the case, the approval of the application will be in the public interest.
19 The respondent’s evidence was heard from:
Mr E B Armstrong, consultant town planner.
20 The applicant’s evidence was heard from:
The evidence and conclusionsMr M Goodyer, consultant town planner.
21 The respondent’s main issues could be summarised as:
- (a) The proposal did not provide sufficient open space on its site to achieve the council’s expectations under those statutes and controls.
(b) This was the result of the proposed house being too big for an undersized lot.
(c) The house itself also had unacceptable visual impact as seen from the important public places previously mentioned.
22 The physical demonstration of this in the respondent’s evidence was:
(a) The subject lot was 763.7 m2, the current council minimum size for subdivision was 1,150 m2. Part of the reason for the large lot requirement was the extremely steep topography of 1:2 slope average with some cliffs, and the council’s and the State Government’s desire to keep some of the vegetation on the harbour foreshore so that its beauty and natural features could still be seen rather than covered up with buildings. Nevertheless the council accepted that a house existed and a replacement house could be built on this existing allotment. The council’s case rested on the smaller lot needing a smaller house as indicated by the other non-compliances with the DCP controls as follows:
(b) The FSR control is 0.4:1, the proposal is 0.53:1.
(c) The total area of open space both hard and soft required under the council’s definition of open space is 534.6 m2. The proposal has 399 m2 as assessed by the council’s expert and 454.2 m2 as assessed by the applicant’s expert.
(e) The council’s minimum side boundary setbacks worked on a formula of being approximately 1/3 of the wall height at any point adjacent the building. On the west adjoining the battleaxe to No. 3, due to the slope the requirement worked out to be 3.3 m to 4.8 m. The proposal had 0.9 m to 4.6 m. On the east side adjoining No. 41 Battle Boulevarde due to the slope the requirement worked out to be 3.1 m to 5.2 m. The proposal had 2.8 m to 6.5 m. One will note that the 2.8 m setback on the east side was to the side wall of the master bedroom suite on the third-storey and the kitchen/family room on the second-storey. The 6.5 m setback more than complied with the council’s minimum and it included the eastern part of the swimming pool terrace across to the wall of the rumpus room.(d) The council’s maximum wall height is 8 m and the proposal on its west side adjacent the battleaxe of No. 3, and the allotment No. 5 Seaforth Crescent, had 10 m to 14.5 m wall heights. On its east side adjoining No. 41 Battle Boulevarde the wall heights were 9.4 m to 15.5 m.
23 There were other areas where the proposal more than complied with the council requirements and I mention them as being of relevance to the evidence for the overall assessment of the proposal:
- Out of the total area of open space, the soft component (which is where vegetation can grow) must, under the council’s definition be 267.3 m2. The proposal has 298.3 m2 as assessed by the council’s expert and 353.5 m2 as assessed by the applicant’s expert. The proposal therefore complied in this regard.
- The rear setback requirements were important as this was to be the area that faced Middle Harbour and in which the majority of vegetation could be grown. The council minimum requirement was 8.0 m and the proposal had 15.5 m, which more than complied, and was almost double the council’s minimum.
24 The front setback required was 6 m and the proposal had 10.1 m to the house. This was another compliance, but one should recall that the front setback was almost completely occupied by the huge structure of the suspended driveways and carport and access stairs and inclinator landing towering up to 10 m high above the slope below.
25 Due to the slope these roof-top structures were no higher than the road level in accordance with the council’s controls to enable persons on the street to enjoy the panorama over Middle Harbour, and the Spit, and out to Sydney Harbour Heads.
26 There was a dead tree near the street front boundary between the vehicle crossing and the pedestrian steps. This tree should be replaced and supplemented with shrubbery.
27 Important in the respondent’s evidence was the cheeze trees and the amount of space and vegetation to be planted out between the existing four-storey house at No. 3 on the waterfront and the proposed house at No. 1.
28 The council had done photomontages in exhibit 6 of the site and surrounds as seen from the water. The montage showed the harbour side wall of the pool, and the council said it left too little space for landscaping to maintain the continuity of bushland on the foreshore to protect the scenic attraction of the area.
29 The applicant’s evidence and the on-site view showed that the montage was wrong in its location of the pool wall and there was considerably more separation between it and No. 3.
30 There was also the fact that No. 3 existed below No. 1, and this reduced any potential for a continuous bushland band along the harbour foreshore.
31 In exhibit 6 similar situations could be seen at Nos. 39 and 39A Battle Boulevarde and Nos. 13 and 15, and 17 and 17A Seaforth Crescent.
32 The other properties with houses up at street level had no second house down on the waterfront and were unlikely ever to have a 2nd house due to the 1,450 m2 minimum lot size currently applicable. They had large areas of bushland above the foreshore.
33 The similar situations to the subject lot had less bushland, because of the houses down at the waters edge, but there was a linkage of green between the upper and lower houses, according to the evidence, that gave about a 50/50 balance between buildings and bushland along the escarpment of Seaforth as seen from Mosman and the Spit Bridge.
34 The proposed house on Lot 101 was kept uphill on about the same rear setback line as No. 41 and No. 5. Most of the other houses up next to the road had been kept to about the same rear setback.
35 As a result the Court has concluded this rear setback line for the proposal was satisfactory. And, provided good landscaping was incorporated, the green bushland links along the foreshore would be maintained and achieve, as far as reasonable, the foreshore bush and scenic protection objectives of the Manly LEP and SREP 23.
36 Turning to the proposed house itself, the council’s expert agreed that the mass of the already approved suspended driveways and carports seen from Middle Harbour was the factual top of structures on the site. And, combined with the council’s approved extensions to the existing house below, the driveways and carports formed a composite envelope within which the proposal generally fitted.
37 He thought however the visual impact could be reduced by lowering the ceiling heights of floors within the house especially the dining room that was 6 m floor to ceiling.
38 It was shown in cross-examination however, that reducing the dining room ceiling would not change the overall height of the house because the master bedroom suite on the third-storey was directly under the approved carport. The carport could not be lowered due to the driveway gradient and so there was nothing to be gained by lowering the master bedroom. On the second-storey there was the kitchen and family room directly under the master bedroom. The dining room was forward and in front of the main bedroom and family room and simply had a two-storey high ceiling that was partly in front of the master bedroom and partly in front of the family room.
39 At the west side of the dining room was the main stair, and the other bedroom on the third-storey. Their ceiling heights were only 2.7 m so they could be lowered very little. As a result lowering the dining room ceiling would alter one element of the house but not change the height of the building envelope as seen from the water.
40 There was further evidence that on the east side of the proposal, No. 41 was a huge residence under construction after council approval. It had four-storeys of living space, another level for a suspended swimming pool facing Middle Harbour, and as seen from that direction, pier supports beneath the pool equivalent to another storey.
41 No. 41 appeared equivalent to be a six-storey building from the water and was constructed with zero setback to the east and west boundary with a massive concrete slab that was suspended above and was stepped down the slope at each level. The side walls of the house at No. 41 were setback from this massive stepped slab, but it existed suspended well above ground level, and was apparently to provide walkways down both sides of the house to the pool deck level. It had 2 m high masonry boundary walls on top of the stepped slab giving it an even more massive appearance.
42 On the west of the subject site was No. 5 Seaforth Crescent. It was also a new house three-storeys high of about the same height and width as the proposal on Lot 101 and set on about the same contour of the hill.
43 Nos. 7 and 7a to the west of it were not dissimilar except they were four-storeys high, instead of three.
44 Number 5 had, contrary to Lot 101, a cliff of possibly 4 m just on the down hill side of the house and a retaining wall of say 1.5 to 2 m high on top of the cliff to provide a pool and pool terrace.
45 There were stormwater pipes seen on No. 5 and visible in exhibit 6, the photos, snaking down the cliff and the slope as seen from the water. On one side against the cliff, on No. 5 was a shed with what looked like a pool heater outside. The landscaping and steps to the water were still being constructed at the time of the view.
46 Due to the cliff and the retaining wall, No. 5 was unlikely to have the advantage of Lot 101 in having soil to grow significant vegetation immediately below the pool to screen it and the house. But, No.5’s allotment went all the way to the water like No. 41, so No. 5 would ultimately have a significant area of bushland down to the water as did No. 41.
47 The evidence was that the council had allowed many exceedances of its 8 m wall height limit and reduction of its side boundary setback requirements along Battle Boulevarde and Seaforth Crescent. This was verified in exhibit 6 where it could be seen No. 9 Seaforth Crescent was 3½ storeys, No. 9A was four-storeys and subfloor, and No. 7A was four-storeys and subfloor. No. 7 was four-storeys and subfloor, No. 5 was three-storeys and pool terrace retaining walls, No. 3 was four-storeys plus pool terrace, No. 41 Battle Boulevarde was four-storeys plus pool and subfloor levels, No. 39 was four-storeys plus subfloor, No.39A was four-storeys plus subfloor, No. 37 was three floors plus subfloor, and No. 35 was four storeys and subfloor. And it should be noted that many houses had their carports on their roofs as an additional level and there structures were visible from Middle Harbour, The Spit and Mosman.
48 No doubt these concessions were due to the difficulty of building on such a steep slope. As submitted by the respondent’s expert, No. 41 was so many storeys and had reduced setbacks because the council had requested it be moved up the hill as close to the road as possible, to create as much bushland above the foreshore as possible.
49 In the circumstances the proposal on Lot 101 gave acceptable side setbacks to No. 41 and achieved acceptable separation between houses when compared to the separation between other houses nearby approved by council. Also on the east side of Lot 101 were the two cheese trees which further softened the built forms and accentuated the separation.
50 On the west side it was noted the council had already approved the subdivision and the alterations and additions to the existing house on Lot 101 with the existing house intruding into the narrow 1.5 m access handle to Lot 102.
51 Lot 102 had a right of way 635 mm wide parallel to the access handle within Lot 101 that in theory, gave it access.
52 But the space created by the right of way was illusory at the pinchpoint of the existing house, where the available width according to the survey in exhibit K was about 1.4 m, and within that were the supporting columns and the monorail for the inclinator to Lot 102. At the time of the view there were makeshift timber stairs almost like a ladder between the existing house on Lot 101 and the boundary with No. 5. One had to squeeze around an inclinator column and beam in order to decend.
53 The Court was concerned that in any consent for Lot 101 access to Lot 102 must be maintained, the parties made submissions in that regard. The applicant in this appeal was also the owner of Lot 102 although a deposit had been taken for its sale.
54 Objectors’ concerns had been withdrawn by exhibits J and D following negotiations between the parties and the inclusion of their requirements in the drawings.
55 In regard to the need for a greater side setback to the neighbours on the west, the applicant’s evidence was that the new house on No. 5 had substantial side setbacks to the proposal, but with a high retaining wall on the boundary. There was space in the side setback of No. 5 and new vegetation was growing there. The inclinator and stairs to Lot 102 and the retaining wall created a permanent gap in any vegetation similar to the gap between No. 41 and No. 39 Battle Boulevarde, which also contained an inclinator. The Court concluded that creating a further setback on the west side of the proposed house on lot 101 to give more than the proposed 900mm setback to the access handle of lot 102 was not necessary, and the continuity of spaces between houses along the contour of the hill would be similar to that proposed. In any case Council had approved the extensions and alterations to the existing house on lot 101 at a lesser side boundary setback than the proposal would provide.
56 The parties had agreed to the amendment of the landscape plan and the drainage plans when the Court drew to their attention that stormwater pipes in exhibit B would pass very close to the 2 cheese trees said to be preserved. They agreed they would not survive excavation for the pipes, and the pipes must be relocated.
57 Also the plans showed an on site stormwater sedimentation sump and energy dissipater tank placed on top of the highly visible cliff above Lot 102, and in the location of a proposed tree in the landscape plan.
58 The applicant submitted that the sump and dissipater was already installed at the waterfront on Lot 102 to serve both Lots 101 and 102. The respondent needed to check that it was adequate by physical inspection, as the Court was advised the council could not find the relevant file and conditions of consent.
59 The parties agreed to a condition requiring the sump and dissipater must be on Lot 102 on its eastern side in the easement benefiting Lot 101 and below the cliff and hidden from view from Middle Harbour and surrounds. Any pipes to come down the cliff must be recessed into the rock and then covered over with imitation rock so as not to be seen from Middle Harbour and surrounds.
60 The parties also agreed to the deletion of a planter box shown on the downhill side of the swimming pools wet edge trough, and to change the vegetation selection to one that included more trees and species that would survive the harsh south facing exposure of the site.
61 The means of maintaining access to Lot 102 during demolition of the existing house on Lot 101 and the new construction on Lot 101 were not clear, including whether or not the makeshift stairs in the access handle to Lot 102 had to be replaced under the terms of subdivision consent or under any consent for a house on Lot 101.
62 In order to resolve all these matters and advise the Court, the parties sought an adjournment. The Court granted the adjournment in order to be in possession of corrected drawings that conformed to the evidence and submissions.
63 On resumption of the hearing updated copies of DA01D, DA02C, DA03C and DA04C were handed up. They included inter alia clarification of the demolition and construction to the patio area on the uphill side of the house, deletion of the planter box downhill of the swim pool wet edge trough, the construction of the missing stair flight to Lot 102 following the demolition of the existing house, correction of side setback dimensions and grouting of joints and a stone capping to existing garden retaining walls to stabilise them.
64 On updated drawings for Stormwater Drainage Level 1, dated 17 November 2003, the stormwater pipes were relocated to give a minimum clearance of 3 m from the trunks of the 2 cheeze trees, and the sump at the south east corner of the lot was relocated to give space so that the proposed coastal tea tree could be planted. Revised draft conditions were also tendered.
65 In regard to issues 15 and 17 the evidence was that the levels and layout of the proposed house would not create unacceptable privacy loss or loss of amenity to the neighbours. The already approved elevated driveway and carport had already created a lack of privacy to the clear glass windows of spa baths on each floor of No. 41 Battle Boulevarde. The applicant had agreed retrospectively to erect screens on the driveway to give the spas privacy.
66 The proposed house stood within similar front and rear setbacks to its neighbours with side windows in positions and at levels that did not create privacy intrusions. Acceptable privacy would result.
67 In terms of views sharing, the similar rear setbacks of the house and its neighbours meant that only the extreme edges of the panoramic views from other houses would be affected to a small extent and certainly not such that might warrant refusal.
68 In regard to Issue 13 the height and bulk of the proposal was in character with other houses in the area. They were nearly all huge multi-storey houses, most of them larger than the proposal.
69 In regard to Issue 12, the minimum percentage of open space, the proposal did not comply in the total area sought by the council’s controls but it more than complied with the area of soft landscaping required by the council and nearly all of it was on the downhill side of the house where existing and proposed vegetation could soften the form of the house and enhance the scenic quality of Middle Harbour.
70 In regard to Issues 7 and 8, 10 and 11 the evidence showed that the height and setback requirements were unreasonable in the circumstances of the approvals given by council to not comply with those requirements for many other houses adjoining and nearby. This site is almost the last redevelopment of an older house in the area. The character of the area has been established and part of that is the high walls and reduced side setbacks. Requiring compliance would result in a smaller house but there is little to be gained under s 79C considerations in the Environmental Planning and Assessment Act 1979, or the council’s statute and controls given the existing huge houses adjoining and the existing huge driveway structure and its visual impact from Middle Harbour.
71 They all form the frame within which any house on Lot 101 will be positioned. As a result a smaller house would be seen against the backdrop of the driveways and carports that would remain at the top of the site.
72 Council, for similar reasons had previously approved the new house at No. 7 Seaforth Crescent at a FSR of 0.6:1, No. 39 Battle Boulevarde at FSR of 0.5:1, the proposal is 0.53:1. The FSR is not a statutory maximum it is a development control, which is intended to allow some flexibility subject to appropriate considerations. The fact that the house exceeds the floor space ratio in Issue 6 has no unacceptable consequences in the circumstances of this case.
73 The applicants evidence, with the amended drawings revealed that the objectives of the Residential Zone 2001 Development Control Plan had been complied with in the circumstances, and the relatively minor impacts of this proposal compared to:
- the existing consents granted by council on this site; and
- the new houses built adjoining and nearby.
74 In regard to the Manly Local Environmental Plan 1988 statutory requirements and Sydney Regional Environmental Plan 23 provisions in issues 1, 2, 3, 4, 5 and 16. The Court been reached the conclusions that the proposal:
- Will provide a dwelling not having unacceptable effects on the character and amenity of this area of Manly.
- Will preserve the amenity and attractiveness of areas visible from public places and the harbour.
- Is on an existing allotment, which has an entitlement to one dwelling and therefore does not exceed the density objectives for the area even though the lot is less than the current minimum area for subdivision.
- Is a redevelopment of a lot having an existing house and will not degrade the amenity of neighbours or the scenic quality of the area.
- Will provide substantial landscaping that exceeds the council minimum for soft area planting for a site of this size and locates it facing the public places and the harbour where it can best complement the architectural form and preserve the balance between bushland and built forms on the Seaforth escarpment.
- That the visual impact of the proposal as seen from the harbour and other places is not such that it should be refused and
- it will preserve the landscape and scenic quality of the harbour foreshores.
75 Overall, subject to appropriate conditions the proposal should be approved.
76 Therefore, the Orders of the Court are:
2. A deferred commencement consent is granted for the erection of a house at No. 1 Seaforth Crescent, Seaforth being proposed Lot 101 of a subdivision of lots A & B DP 356608. The house and landscape works to be as shown on1. The appeal is upheld.
- DA/01 Issue D dated 17 November 2003
DA /02 Issue C dated 17 November 2003
DA/003 Issue C dated 17 November 2003
DA/04 Issue C dated 17 November 2003
DA/05 Issue B dated 7 November 2003
DA/06 Issue B dated 17 November 2003
DA/07 Issue A dated 22 October 2003
DA/08 Issue B dated 7 November 2003
DA/13 Issue A dated 22 October 2003
DA/14 Issue A dated 22 October 2003
DA/15 Issue A dated 22 October 2003
DA/16 Issue A dated 22 October 2003
DA/17 Issue A dated 22 October 2003
PrelimH/01 Issue B dated 17 November 2003
PrelimH/02 Issue B dated 17 November 2003
PrelimH/03 Issue B dated 17 November 2003
PrelimH/04 Issue B dated 17 November 2003
PrelimH/05 Issue B dated 7 November 2003
- Landscaping Plan DWG No. 305-1A dated 24 October 2003 and amended 17 November 2003 prepared by John O’Brien as modified in accordance with Part B condition 1A; and all as further amended by and in accordance with the conditions in Annexure A hereto.
K G Hoffman3. The exhibits be returned to the parties except Exhibits B, C, J, K, 6 and revised Exhibit 7.
Commissioner of the Court
Rjs/ljr
Conditions of Deferred Commencement
Development Consent
Annexure A
Manolev Associates Pty Ltd v Manly Council
SCHEDULE A
Except for the demolition of the existing house on Lot 101 and the erection of the stair access to Lot 102, this deferred commencement development consent is not to operate until the applicant carries out the following to the satisfaction of the Council:
1. The existing building on Lot 101 is to be demolished. Safe access is to be maintained during demolition to the property on Lot 102.
(b) The proposed stairs adjacent the south-western wall of the proposed dwelling house shall comply with the requirements of the Building Code of Australia.2.(a) The construction of stairs and paths within the access handle of Lot 102 and where necessary within the right of way over Lot 101 in favour of Lot 102 to provide pedestrian access to Lot 102 in accordance with the plan prepared by Manolev Associates Pty Limited numbered DA/01 Issue D dated 17 November 2003.
3. All demolition works and constructions works pursuant to the terms of this deferred commencement condition are to be undertaken in accordance with the development consent conditions where applicable.
4. Samples of brickwork and a schedule of external finishes are to be submitted and approved by Council or its delegate prior to issue of the Construction Certificate.
SCHEDULE B
1. The development is to be carried out in accordance with Development Application No. 496/02 and plans prepared by Manolev Associates Pty Limited being drawings numbered:
Landscaping Plan DWG No. 305-1A dated 24 October 2003 and amended 17 November 2003 prepared by John O’Brien as modified in accordance with condition 1A and Survey plan No. 25132 Sheet 4 prepared by Higgins Norton Partners dated 20 October 2003.DA/01 Issue D dated 17 November 2003
DA /02 Issue C dated 17 November 2003
DA/003 Issue C dated 17 November 2003
DA/04 Issue C dated 17 November 2003
DA/05 Issue B dated 7 November 2003
DA/06 Issue B dated 17 November 2003
DA/07 Issue A dated 22 October 2003
DA/08 Issue B dated 7 November 2003
DA/13 Issue A dated 22 October 2003
DA/14 Issue A dated 22 October 2003
DA/15 Issue A dated 22 October 2003
DA/16 Issue A dated 22 October 2003
DA/17 Issue A dated 22 October 2003
PrelimH/01 Issue B dated 17 November 2003
PrelimH/02 Issue B dated 17 November 2003
PrelimH/03 Issue B dated 17 November 2003
PrelimH/04 Issue B dated 17 November 2003
PrelimH/05 Issue B dated 7 November 2003
1A. Landscape Plan DWG No. 305-1A dated 24 October 2003 prepared by John O’Brien is to be modified to:
(1) accurately show the position of proposed planter box/planting beneath the existing rock faced wall, off the patio (north-west corner);
(2) show the existing rock retaining walls, terraces, cliff and exposed rock surfaces to lower garden and all existing tree locations including trunks and canopies;
(3) include appropriate timber or stone steps along northern boundary into mass planted areas, and access stepping stones to enable maintenance access;
(5) adjust the proposed planting as follows:(4) incorporate any remaining stone steps in 3. above;
(a) substitute L. laevigatum with Angophora costata planted closer to existing Cheese trees;
(b) substitute Melaleuca armillaris with appropriate Lilly Pillys (ie Syzigium and/or Acmewna species);
(c) substitute Callistemon linearis under driveway with shade tolerant species such as Cordyline stricta; and include tall growing tree or palm species in appropriate positions so that their crowns may eventually appear above the house top as seen from the water;
(d) mulch all mass planted areas with appropriate organic mulch 75m deep.
(e) street front vegetation to be provided including a new street tree and shrubs between the footpath and the concrete driveway ramp and footpath crossing across the width of the allotment.
(f) include provisions of condition 84 below.
(6) Prior to Construction Certificate approval, fully detailed landscape plans are to be developed to the satisfaction of Council’s landscape architect in accordance with the conditions above, which also clearly include the following:
(a) proposed RL’s to all areas hard and soft;
(b) details of all proposed paving, steps, paths, retaining walls and planting numbers, pot sizes, planting details; and
(c) a full landscape specification.
2. A Building Certificate under Section 149D of the Environmental Planning and Assessment Act will not be issued unless the building is completed strictly in accordance with the approved plans and specifications.
3. The construction of a vehicular footpath crossing is required. The design and construction shall be in accordance with Council's Policy. All works shall be carried out prior to issue of the Occupation Certificate.
4. A single entrance is permitted to service the site for demolition and construction. The footway and nature strip at the service entrance shall be planked out.
5. Access to the property at No. 3 Seaforth Crescent is to be maintained at all times during the construction phase.
6. Pursuant to Section 97 of the Local Government Act, 1993, Council requires, prior to issue of the Construction Certificate, or commencement of any excavation and demolition works, payment of a Trust Fund Deposit of $15,000.00. The Deposit is required as security of compliance with Conditions of Consent, and as security against damage to Council property during works on the site.
Note: Should Council property adjoining the site be defective e.g., cracked footpath, broken kerb etc., this shall be reported in writing to Council, at least 7 days prior to the commencement of any work on site.
7. No obstruction shall be caused to pedestrian use of Council's footpath or vehicular use of any public roadway during construction.
8. Details of the builder's name and licence number contracted to undertake the works shall be provided to Council prior to issue of the Construction Certificate.
9. Insurance must be undertaken with the contracted builder in accordance with the Home Building Act, 1997. Evidence of Insurance together with the contracted builders name and licence number must be submitted to Council prior to issue of the Construction Certificate.
10. 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 person or part of 20 persons employed at the site, by effecting either a permanent or temporary connection to the Sydney Water's sewerage system or by approved closets.
11. Retaining walls being constructed in conjunction with excavations with such work being in accordance with structural engineer's details. Certification of compliance with the structural detail during construction shall be submitted to the Principal Certifying Authority.
12. A sign must be erected on the subject site in a prominent position stating that unauthorised entry is prohibited and giving details of the name of the builder or the person responsible for the site and 24 hour contact details. The sign is to have dimensions of approximately 500mm x 400mm.
Note: The sign is not required if the building on the site is to remain occupied during the course of the building works.
13. Deleted
14. Consent given to build in close proximity to the allotment boundary is in no way to be construed as permission to build on or encroach over the allotment boundary. Your attention is directed to the provisions of the Dividing Fences Act which gives certain rights to adjoining owners, including use of the common boundary. In the absence of the structure standing well clear of the common boundary, it is recommended that you make yourself aware of your legal position which may involve a survey to identify the allotment boundary.
15. Natural lighting and ventilation shall be provided to the proposed room(s) by means of windows of a size and design to comply with the requirements of the Building Code of Australia.
16. Four (4) certified copies of the Structural Engineer's details in respect of all reinforced concrete, structural steel support construction and any proposed retaining walls shall be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.
17. All construction works shall be strictly in accordance with the Reduced Levels (RLs) to the satisfaction of the Principal Certifying Authority to AHD standard and evidence that the approved levels will be achieved shall be provided by a statement certified by an appropriately qualified person prior to the issue of the Construction Certificate.
18. Where any excavation extends below the level of the base of the footing of a building or structure on an adjoining allotment of land, the person causing the excavation shall support the neighbouring building in accordance with the requirements of the Building Code of Australia.
19. All timber framed walls, flooring and roofing construction shall be in accordance with the requirements of Australian Standard 1684, Timber Framing Code.
20. The floor surfaces of bathrooms, shower rooms, laundries and WC compartments are to be of an approved impervious material properly graded and drained and waterproofed in accordance with AS3740. Certification is to be provided to the Principal Certifying Authority from a licensed applicator prior to the fixing of any wall or floor tiles.
21. A suitable sub-surface drainage system being provided adjacent to all excavated areas and such drains being connected to an approved disposal system.
22. Where internal habitable areas are beneath natural site level, an open spoon drain shall be provided at the base of any excavation adjoining such habitable area. The spoon drain is to be a minimum of l50mm below the floor level of the adjoining habitable room. Adequate cross ventilation shall be provided.
23. Where any habitable room is located below ground level, internal walls are to be suitably treated so as to prevent ingress of moisture.
24. The implementation of adequate care during demolition/excavation/ construction to ensure that no damage is caused to any adjoining properties.
25. Certificate(s) from a professional Engineer or other appropriately qualified person is to be submitted which certifies that material, design and/or form of construction complies with the requirements of Clause A2.2 of the Building Code of Australia.
26. Stairways shall comply with the geometry and construction requirements of Part 3.9.1/Clause D2.13 of the Building Code of Australia.
27. The balustrades appurtenant to all balconies and stairways shall comply with Part 3.9.2/Clause D2.16 of the Building Code of Australia. (Note: A minimum height 1m and restriction of openings - not more than 125mm)
28. Prior to excavation applicants should contact the various utility providers to determine the position of any underground services.
29. An adequate security fence, is to be erected around the perimeter of the site prior to commencement of any excavation or construction works, and this fence is to be maintained in a state of good repair and condition until completion of the building project.
30. A Registered Surveyor’s certificate identifying the location of the building on the site is to be submitted to the Principal Certifying Authority immediately upon completion of the foundations and prior to work proceeding above dampcourse level.
31. On completion of the building structure a Registered Surveyor’s report is to be submitted to the Principal Certifying Authority confirming that the building has been completed in accordance with the levels as shown on the approved plan.
32. The selection, installation and operation of the domestic solid fuel heater must comply with the NSW Environmental Protection Authority’s Environmental Guidelines for Selecting, Installing and Operating Solid Fuel Heaters.
33. All external cladding and trim of the approved building shall be of a non reflective nature. Details of such finishes shall be submitted with the Construction Certificate Application.
34. The carport is not to be enclosed without the prior approval of Council.
35. Deleted
36. In relation to the demolition of the existing building on the site:
(ii) Should any hazardous materials be identified, as per item (1), a Work Plan shall be submitted to Council in accordance with AS2601-1991 - Demolition of Buildings. The report shall contain specific details regarding:(i) A report is to be submitted to the Principal Certifying Authority detailing whether any hazardous materials exist on the site. (eg. lead in paints and ceiling dust or asbestos). NOTE: If no hazardous materials are identified, the demolition may proceed in accordance with the following conditions including dust control and WorkCover requirements.
(a) The type of hazardous material;
(b) The level or measurement of the hazardous material in comparison to National Guidelines;
(c) Proposed methods of containment; and
(d) Proposed methods of disposal.
(iii) Where high levels of lead are found in a premises to be demolished, Item (ii) should be followed, and the soil sample from site should be tested by a NATA Registered Laboratory before and after demolition. This will determine whether remediation of the site is necessary.
(iv) The demolition must be in accordance with AS2601-1991.
(vi) All work involving lead paint removal must not cause lead contamination of air or ground. Particular attention must be given to the control of dust levels on the site.(v) Any asbestos cement sheeting must be removed in accordance with the requirements of the WorkCover Authority.
37. Prior to the commencement of any works on the land including demolition and site preparation, provision of silt control fences shall be provided. A Sediment/Erosion Control detail shall be submitted to the Certifying Authority prior to the issue of the Construction Certificate.
38. Any future structures to be erected on the site shall be the subject of a Development Application and Construction Certificate Application.
39. Excavation adjacent to the road boundary shall be adequately shored to support the roadway and all improvements and services within the road reserve. Protective fencing shall be provided to ensure the safety of the public.
40. No building materials may be stored on the road reserve without separate approval from Council.
41. Landscaping is to be carried is to be carried out in accordance with the Landscaping Plan as approved in Schedule B conditions 1 and 1A above. Evidence of an agreement for the maintenance of all plants for a period of 12 months from the date of practical completion of the building is to be provided to the Principal Certifying Authority prior to issue of the Final Occupation Certificate. The landscaping shall be maintained thereafter and replenished as necessary to comply with the consent for the life of the building.
42. All healthy trees and shrubs identified for retention on the plan must be:
(i) Suitably marked before any development starts and be suitably protected from damage during the construction process; and
(ii) Retained unless their location or condition is likely to cause damage and their removal has been approved by Council.
43. All disturbed surfaces on the land resulting from the building works authorised by this approval shall be revegetated and stabilised so as to prevent any erosion either on or adjacent to the land.
44. Deleted.
45. The trees to be retained are to be protected from trenching or excavation works or other construction activities. There is to be no interference with or damage caused to the Cheese and Lilly Pilly trees situated on the property in close proximity to the dwelling, and the owner or applicant is to deposit the sum of $20,000 with Council for the due performance of the requirements. The sum will be forfeited to the Council at its discretion for a breach of these requirements, and will be refunded to the applicant if the requirements have been observed on the completion of the building works. Alternatively, the applicant may enter into a bond with the Council for the sum of $20,000.00 conditioned to be void on the written release of the bond by council following the due performance of these requirements. The deposit or bond is to be finalised prior to issue of the Construction Certificate.
46. No tree other than on land identified for the construction of buildings and works as shown on the building plan shall be felled, lopped, topped, ringbarked or otherwise wilfully destroyed or removed without the approval of Council.
47. Precautions shall be taken when working near trees to be retained including the following:
- do not store harmful or bulk materials or spoil under or near trees
- prevent damage to bark and root system
- do not use mechanical methods to excavate within root zones
- do not add or remove topsoil from under the drip line
- do not compact ground under the drip line.
48. All materials on site or being delivered to the site shall generally be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 shall be complied with when placing/stockpiling loose material, disposing of concrete waste, or other activities likely to pollute drains or water courses.
49. Glare from internal lighting shall not be permitted to extend beyond the limits of the building authorised by this approval.
50. Any ancillary light fittings fitted to the exterior of the building are to be shielded or mounted in a position to minimise glare to adjoining properties.
51. All excavated material should be removed from the site in an approved manner and be disposed of lawfully to a tip or other authorised disposal area.
52. All plumbing and drainage, including sewerage drainage stacks, ventilation stacks and water service pipes shall be concealed within the building. Plumbing other than stormwater downpipes shall not be attached to the external surfaces of the building.
53. Any discharge to the atmosphere from the subject development shall comply with the requirements of the Protection of the Environment Operations Act 1997.
54. All demolition is to be carried out in accordance with AS2601-1991.
55. Asbestos cement sheeting must be removed in accordance with the requirements of the WorkCover Authority.
56. All building work must be carried out in accordance with the provisions of the Building Code of Australia.
57. An automatic fire detection and alarm system shall be installed in the proposed dwelling in accordance with the requirements of Part 3.7.2 of the Building Code of Australia 1996 - Housing Provisions.
58. Building or construction work must be confined to the hours between 7.00am to 6.00pm, Monday to Friday and 7.00am to 1.00pm, Saturday, with a total exclusion of such work on Public Holidays and Sundays. Non-offensive works where power operated plant is not used and including setting out, surveying, plumbing, electrical installation, tiling, internal timber or fibrous plaster fixing, glazing, cleaning down brickwork, magnesite flooring, painting, building or site cleaning by hand shovel and site landscaping, is permitted between the hours of 1.00pm to 4.00pm Saturdays.
Note: That the Protection of the Environment Operations Act 1997 may preclude the operation of some equipment on site during these permitted working hours.
59. A Construction Certificate Application is required to be submitted to and issued by the Principal Certifying Authority prior to any building works being carried out on site.
60. The works require the following inspection/certification during the course of construction: -
Silt control fences
Footing inspection - trench and steel
Reinforced concrete slab
Framework inspection
Wet area moisture barrier
Drainage inspection
Driveway crossing/kerb layback
Landscaping inspection
Swimming pool reinforcing steel inspection
Swimming pool safety fence inspection
Health inspection
Final inspection
The cost of these inspections by Council is $70.00 per inspection and $113.00 for Final inspection inclusive of GST) . Should you require Council to undertake the inspection/certification, then payment is required prior to the first inspection. Inspection appointments can be made by contacting the Development Control Unit on 9976 1573 or 9976 1587.
At least 24 hours notice should be given for a request for an inspection and submission of the relevant inspection card. Any additional inspection required as a result of incomplete works will incur a fee of $82.00.
61. A copy of the Soil and Water Management Plan must be kept on-site at all times and made available to Council officers on request.
62. Drains, gutters, roadways and access ways shall be maintained free of sediment and to the satisfaction of Council. Where required, gutters and roadways shall be swept regularly to maintain them free from sediment.
63. Prior to issue of the Occupation Certificate, a durable termite protection notice shall be permanently fixed to the building in a prominent location detailing the form of termite protection which has been used in accordance with Council's Code for the "Protection of Buildings Against Termite Attack".
64. All waste waters and overflow waters from any swimming pool shall be disposed of to the sewer in accordance with the requirements of Sydney Water.
65. The pool filter pump and motor shall not emit noise greater than 5 dbA above background noise level, when measured at any residential property boundary.
66. The pool filter pump and motor housing shall not be visible from Middle Harbour or its surrounds.
67. An approved Resuscitation Notice is to be erected in a prominent position in the immediate vicinity of the swimming pool and kept current at all times.
68. The swimming pool is to be surrounded by a child-resistant barrier in accordance with the Swimming Pools Act and Regulations 1992 which:
(a) separates the swimming pool from any residential building situated on the property and from any place adjoining the property; and
(b) is designed, constructed, installed and maintained in accordance with the standards prescribed by the Regulations and appropriate Australian Standard.
69. All surface waters from areas surrounding the swimming pool shall be collected and disposed of to the stormwater system.
70. No water shall be placed in the swimming pool until the required protective fencing has been inspected and approved by Council.
71. Doors providing access to the pool must be made child safe and comply with the following:
(a) Doors providing access to the pool are must have no openings below a height of 1.5m above the floor that a round bar 105mm can be passed through.
(b) The door must be kept closed at all times when not in use and kept child-safe by means of a lock, latch, bolt or other child-resistant device located at least 1.5m above finished floor level.
(c) The door or door frame must not be provided with any footholds wider than 10mm between the release mechanism of the door and any point 100mm above finished floor level.
(d) The Regulations do not specify the use of self-closing devices on doors. However, Council recommends their use as an additional safety measure which will also ensure the door will remain closed when not in use.
72. Windows giving access to the pool areas must be made child safe and comply with the following:-
However, if such windows are required for the ventilation of the room in accordance with the Building Code of Australia, they must be protected by way of a child safe grille only, unless satisfactory alternative provision is made for ventilation.(i) The bottom of the lowest opening panel of the window must (when measured in the close position) be at least 1.2m above finished floor level; and
(ii) Have no footholds wider than 10mm between the bottom of the lowest opening panel of the window and any point within 1.1m below the bottom of that panel; or
(iii) Be key locked or fixed by other approved means allowing no opening through which a round bar 105mm in diameter can be passed.
73. Any adjustment to the public utility service is to be carried out in compliance with their standards and the cost is to be borne by the applicant.
74. A suitable sub-surface drainage system being provided adjacent to all excavated areas and such drains being connected to an approved disposal system.
75. A geotechnical engineer’s report regarding the stability of the site is to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.
76. Roofwater and surface stormwaters from paved areas from the development shall be collected and piped to the harbour foreshore. The stormwater disposal system must be connected to the existing stormwater disposal system for No. 3 Seaforth Crescent and have a stilling sump and flow dissipater. The stilling sump and flow dissipater is to be located within the widened area of the easement to drain water 1.5m wide and variable over No. 3 Seaforth Crescent. The stilling sump and the flow dissipater must not be visible from Middle Harbour or its surrounds. Any pipes, or other part of the stormwater disposal system, that traverses any exposed rock outcrop must be within a channel chased into the rock. The channel to be no wider than 50mm either side of the pipes. The area over the pipes is to be provided with an artificial rock finish that matches the surface of the natural rock outcrop. Details to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.
77. All site waters during excavation and construction shall be contained on site in an approved manner to avoid pollutants entering into the Harbour or Council's stormwater drainage system.
78. The capacity and effectiveness of erosion and sediment control devices must be maintained to Council’s satisfaction at all times.
79. All disturbed areas shall be stabilised against erosion to Council’s satisfaction within 14 days of completion, and prior to removal of sediment controls.
80. The applicant and/or builder must prior to the commencement of work, install at the periphery of the site, measures to control sedimentation and the possible erosion of the land.
(i) siltation fencing;The measures must include:-
(ii) protection of the public stormwater system; and
(iii) site entry construction to prevent vehicles that enter and leave the site from tracking loose material onto the adjoining public place.
81. The public footways and roadways adjacent to the site shall be maintained at all times during the course of the work in a safe condition.
82. Drains, gutters, roadways and access ways shall be maintained free of sediment and to the satisfaction of Council. Where required, gutters and roadways shall be swept regularly to maintain them free from sediment.
83. Four (4) Architectural/Services Specifications are to be submitted with the Construction Certificate Application.
84. In addition to the existing 2 trees on the site, details are to be provided of at least two (2) proposed endemic trees for the site that are typically expected to reach a height at maturity of 10 metres. These two trees may include the Angophora Costata specified in condition 1A referred to above and the Eucalyptus Haemastoma specified in condition 93 of Development Consent No. 421/00 as modified on 4 November 2002. Details are to be submitted with the Construction Certificate to the satisfaction of the Principal Certifying Authority.
85. This approval shall expire if the development hereby permitted is not commenced within 2 years of the date hereof or any extension of such period which Council may allow in writing on an application made before such an expiry.
- __________________
K G Hoffman
Commissioner of the Court
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