Manotik v Warringah Council - [2008] NSWLEC 1463

Land and Environment Court

of New South Wales

CITATION: Manotik and anor v Warringah Council [2008] NSWLEC 1463

PARTIES:
APPLICANT
Manotik Pty Limited and Tadros Holdings Pty Limited
RESPONDENT
Warringah Council

FILE NUMBER(S): 10647 of 2008

CORAM: Brown C

KEY ISSUES: Development Application :- demolition of an existing single storey dwelling previously used as a police station and the construction of a 3 storey apartment building - consideration of Desired Future Character Statement - streetscape/ character - view loss - overlooking - solar access

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Warringah Local Environmental Plan 2000

DATES OF HEARING: 08/09/08, 05/11/08, additional information 12/11/08

DATE OF JUDGMENT:
18 November 2008

LEGAL REPRESENTATIVES:
APPLICANT
Mr C Gough, solicitor
SOLICITORS
Storey & Gough
RESPONDENT
Mr N Howie, solicitor
SOLICITORS
Willshire Webb Staunton & Beattie

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

18 November 2008

10647 of 2008 Manotik Pty Limited and Tadros Holdings Pty Limited v Warringah Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of DA 2008/0351 by Warringah Council (the council) for the demolition of an existing single storey dwelling previously used as a police station and the construction of a 3 storey apartment building containing six apartments with basement car parking at 12 Ramsay Street Collaroy (the site).

The background

2 The matter was heard as a s 34 conference on site on 8 September 2008 where the conciliation conference was adjourned without termination for the applicant to prepare amended plans and the council to readvertise the amended plans. Directions were given for the preparation of the amended plans, the advertising and the timing of the reconvened s 34 conference.

3 The reconvened s 34 conference was held on site on 5 November 2008. The amended plans provided the following major changes:

the removal of the stepped floor level through the building with a single level through increased excavation at the rear of the site,
the reduction in overall height by 1.5 m to 1.8 m,
the use of a flatter roof form,
the repositioning of the external access from the western side to the eastern side of the building because of the greater separation between adjoining buildings,
the use of angled windows and privacy louvres to address overlooking to the west, and
amendments to the landscaping plan to replace the taller trees with smaller trees to address view loss and overshadowing.

4 At the reconvened s 34 conference no agreement was reached and the conciliation conference was terminated although a number of the previous issues raised by the council were satisfactorily addressed through the amended plans. The parties agreed to me disposing of the proceedings without a further hearing.

5 At the reconvened s 34 conference, the council raised a further issue relating to the driveway levels and the need to restrict street stormwater flows from entering the basement car park. This potentially necessitated adjustments to the configuration of the basement car park although a solution was reached on-site. It however needed the plans to be amended to reflect the new reconfiguration. Directions were given for the serving of amended plans by 7 November 2008 to reflect the changes to the basement, in addition to a number of other minor amendments that were accepted by the applicant on-site. The council was directed to file and serve an Amended Statement of Contentions, amended conditions and a compliance assessment against the relevant provisions of LEP 2000 by 12 November 2008. The parties agreed that no further hearing was required to address the additional information.

The planning controls

6 The site is located in the D3 Collaroy Footslopes Locality under Warringah Local Environmental Plan 2000 (LEP 2000). The Desired Future Character Statement for this locality states:

The Collaroy Footslopes locality will remain characterised by apartment style housing and detached style houses in landscaped settings interspersed by a range of complementary and compatible uses. New apartment development will be confined to the “medium density areas” shown on the map.

Future apartment style housing will be designed to address public streets and spaces, create visual interest and enable the establishment of substantial landscaping in the spaces between buildings. Unless exemptions are made to the housing density standard in this locality statement, any subdivision of land is to be consistent with the predominant pattern, size and configuration of existing allotments in the locality.

Apartment style housing will be excluded from the immediate footslopes of the Collaroy Escarpment and future development in this area will be of a low density nature. Development in this part of the locality will be integrated with the natural landscape including rock outcrops and remnant bushland and topography. Building materials are to blend with the colours and textures of the natural landscape.

7 The proposed development is identified as Category 1 development in this locality. Clause 12(3)(a) requires that before granting consent for a Category 1 development, the constant authority must consider the Desired Future Character Statement. Clause 20(1) states that for development that does not comply with one or more of the development standards, the consent authority must be satisfied that the resulting development is consistent with the Desired Future Character Statement.

8 The relevant Built Form Controls for the D3 Locality are building height (three storeys or 11 m), front setback (minimum 6.5 m), landscaped open space (50% of site area), building envelope (45° from a height of 4 m above natural ground level at the side boundaries) and side setbacks (minimum 4.5 m).

9 There was no dispute that the proposed development satisfied the requirements relating to height and front setback. While there were departures from other Built Form Controls; the council did not press the departures because of the extent of the departures, the relatively narrow 15.24 m width of the site and the constraint of being surrounded on all three sides by existing residential flat buildings.

The issues

10 The Amended Statement of Contentions, based on the amended plans, identifies the issues as:

the unacceptable setback of the top level of the proposed building on the Ramsay Street streetscape and the consequent inconsistency with the Desired Future Character Statement.
the bulk of the continuous wall plane on the north west corner of the upper level,
view loss, and
loss of sunlight to 14-16 Ramsay Street.

11 Further concerns were raised by a number of local residents who provided their evidence on site. Their concerns related to:

view loss,
loss of privacy,
retention of an existing wall,
garbage location,
loss of daylight, and
traffic.

The issues

12 Streetscape:- the issue of streetscape falls from the Desired Future Character Statement. The council submits that the proposal has not been designed to address public streets and spaces and create visual interest however if the upper level of the building and roof were setback a distance of 3m, the proposal would satisfy the Desired Future Character Statement. The applicant submits that any further setback would reduce the area of the apartment at this level and adversely impact on the amenity to an unacceptable level. Importantly, the proposed building satisfies the front setback and more than complies with the height requirements at this part of the building.

13 On this issue, I accept the submissions of the applicant. Notwithstanding the constraints of the site, the proposed development satisfies the 6.5 m front setback requirement and also satisfies the height requirement at this point by some 2 m. LEP 2000 contains no specific requirements for the stepping back of the upper level. I do not accept that there is a consistent setback at the street frontage or that it creates any unacceptable bulk and scale impacts. The overall width of the building is around 6.3 m however the balcony breaks up the facade of the building by extending 1 m beyond the building to the east and being indented some 2.5 m into the building so that extent of the building at the building line is only around 3.2 m. Considering the Desired Future Character Statement and the wider streetscape of Ramsay Street, I do not accept that it is necessary to reduce the setback at the upper level.

14 View loss - the owners of the units 6 and 10/ 14-16 Ramsay Street expressed concern over the potential loss of views. Each unit was inspected and with the benefit of height poles to indicate the location of the proposed development, an assessment of the impact on the existing views was undertaken.

15 For unit 6, the impact on views occurs largely from the balcony of the unit, in an easterly direction to the ocean. The restriction on views from the southern part of the balcony is caused by that part of the building at the street alignment. Views of the ocean are still available at the northern end of the balcony. Even though some views will be lost from parts of the balcony, I am satisfied that view loss from that this unit would not be a reason to refuse the application. Importantly, the setback from Ramsay Street determines the extent of view loss and as the proposed development satisfies the requirements in LEP 2000 for front setback, it would be inappropriate to require a greater setback, particularly when unchanged views are still available from the northern end of the balcony.

16 Unit 10 is located at a higher level than unit 6 and with the benefit of the height poles, there will be some loss of the lower water views however views of the water and horizon interface will be maintained. The impact on views from this unit would not be a reason to refuse the application. In coming to this conclusion, I am mindful that the height of the proposed building is some 2m below the maximum 11.5 m height limit specified in LEP 2000.

17 Loss of sunlight - this issue was raised in the context of the additional setback of the upper level providing additional sunlight to 14-16 Ramsay Street. For the reasons mentioned previously, the additional setback is not required and as such it could not be reasonably argued that there would be an unreasonable loss of sunlight to this area, considering the compliant front setback and height at this part of the building.

18 Loss of privacy –the issue of loss of privacy to the units at 14-16 Ramsay Street is satisfactorily addressed, in my view, through the amendments that provide for the use of angled windows and privacy louvres. Conditions have been provided that require greater detail to be provided in the design of the privacy louvres to ensure that privacy is protected.

19 Balconies are provided on the eastern side of the building facing towards the residential flat building at 8 Ramsay Street. The separation distance between the proposed building and 8 Ramsay Street is in the order of 12 m because of an existing battle-axe handle that leads to an existing residential flat building. Of the three levels of the proposed development, fencing will restrict overlooking at the lower level and the design of the balcony is likely to limit the potential for overlooking at the upper level. I accept that the separation distance at the second level will limit overlooking to the point where it is acceptable, given the form and density of development anticipated by the councils planning controls.

20 Retention of an existing wall – the owners of Unit 2/14-16 Ramsay Street expressed a desire to retain part of an existing wall that is located generally on the boundary with the site to ensure privacy with the adjoining courtyard, minimise disruption during construction and maintain reasonable levels between their properties. On the site view, there was general agreement that the retention of part of the wall should be undertaken unless there were compelling reasons why this could not be done. A condition was prepared to address this agreement.

21 Garbage location - the garbage receptacle is located at the north western corner of the site and adjoins 14-16 Ramsay Street. Residents of 14-16 Ramsay Street expressed concern at the potential for odour to be generated from this area. In accepting that the potential does exist for odour to be generated from this facility, there is little opportunity for relocation given the relatively narrow street frontage and the driveway for access to the basement car park. If maintained in a reasonable manner, I am satisfied that odour should not be an issue from the garbage receptacle.

22 Loss of daylight - this was an issue raised by a number of residents of the units at 8 Ramsay Street. The concern was that the height of the proposed development would block daylight and views of the sky currently available. As the proposed development more than satisfies the height requirements in LEP 2000, this concern would not be a matter that would warrant the refusal or amendment of the application.

23 Traffic – the additional traffic generated by the proposed development was seen to be a problem by a number of residents based on the existing high levels of existing on-street parking. As the proposed development satisfies the council's requirements for off street parking, it would be unreasonable to impose further requirements on the basis of an existing problem in the area.

Conditions

24 A number of conditions were in dispute between the parties.

25 Condition 1 - the applicant seeks to amend the condition to reflect the appropriate plan numbers and remove the requirement for the stamped endorsement by the council. I accept these amendments are appropriate.

26 Condition 32 - the applicant seeks to amend the condition by removing the need for the approval by the council of a Clearance Certificate from an appropriately qualified environmental consultant validating that the site has been remediated in accordance with the Remedial Action Plan. I accept the amendment by the applicant is appropriate based on the legal obligations imposed on the environmental consultant.

27 Condition 34 - the applicant seeks the condition to be amended to remove the requirement of a 45° angle for the angled louvres given the performance standard incorporated into the condition to prevent any overlooking into the adjoining property. I accept the amendment by the applicant as it will allow greater flexibility to achieve the agreed performance standard.

28 Condition 35 - the applicant offers an alternate condition for the retention of the existing wall located between the site and 14-16 Ramsay Street. The two conditions are not significantly different in that they both seek to retain the existing wall, if structurally sound. I have further amended the condition to provide for a report from the structural engineer in the event that the wall is found to be structurally unsound and not able to be retained in the manner specified in the condition.

29 Condition 36 - the applicant seeks the deletion of this condition to allow the use of blue and yellow colours on the rendered elements of the building. The council seeks muted and earthy tones for the rendered elements. The Desired Future Character Statement requires colours of the natural landscape. Based on the limited area to be coloured. I am satisfied that the proposed colours are acceptable considering the coastal context.

30 Condition 37 and 38 - these conditions can be deleted as they relate to the councils requirement for a setback at the upper level.

Orders

31 The Orders of the Court are:

ANNEXURE A

Manotik Pty Ltd and Tadros Holdings Pty Ltd v Warringah Council

Demolition of an existing dwelling and construction of an apartment building at 12 Ramsay Street Collaroy

GENERAL CONDITIONS

CONDITIONS THAT IDENTIFY APPROVED PLANS

1. Approved Plans And Supporting Documentation

The development is to be carried out in compliance with the following plans and documentation listed below, except where amended by other conditions of consent:

Drawing Number Dated Prepared By

DA02 Revision E 7/11/2008 A H & B Architects

DA03 Revision G 7/11/2008 A H & B Architects

DA04 Revision I 16/09/2008 A H & B Architects

DA05 Revision A 16/09/2008 A H & B Architects

DA06 Revision F 7/11/2008 A H & B Architects

DA07 Revision E 16/09/2008 A H & B Architects

DA08 Revision E 16/09/2008 A H & B Architects

DA09 Revision A 16/09/2008 A H & B Architects

DA010 Revision A 16/09/2008 A H & B Architects

DA011 Revision A 16/09/2008 A H & B Architects

No construction works (including excavation) shall be undertaken prior to the release of the Construction Certificate.

Note: Further information on Construction Certificates can be obtained by contacting Council’s Call Centre on 9942 2111, Council’s website or at the Planning and Assessment Counter.

Reason: To ensure the work is carried out in accordance with the determination of Council and approved plans.

2. Building Code of Australia

All building work must be carried out in accordance with the provisions of the Building Code of Australia.

Reason: Prescribed - Statutory.

3. Approved Stormwater Plan

The stormwater drainage works are to be generally in accordance with the drainage plan submitted by Mr Thomas Lau, drawing number RAMSEY12-SW1, Sheets 1 to 6 dated December 2007. The stormwater drainage plan is to be amended to address the following:

i. Permissible site discharge is to be calculated based on the maximum fraction impervious of 0%, for the 5 year ARI, 20 year ARI and100 year ARI storms

ii. A pool type fence is to be provided surrounding the onsite stormwater detention basin since the maximum depth of ponding in the basin is in excess of 300mm depth

iii. Invert level of the outlet point of the rising main is to be located at or above the maximum 100 year ARI water surface level of the basin

Amended stormwater drainage plan is to be submitted to Council / Accredited Certifier (Civil works) for approval prior to the issue of the Construction Certificate.

Reason: To ensure appropriate provision for stormwater disposal arising from the development.

Landscaping works on the site are to be undertaken generally in accordance with the Landscape Plan Drawing No. 1 prepared by IScape, dated December 2007.

CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE

5. Waste Service Access – requires modification.

The door used by collection staff to service the bins must open outwards (NOT inwards as shown on the plans). This may necessitate moving the bin bay away from the property boundary so that the door does not swing over the naturestrip. The door used by collection staff must be able to be latched in the open position. The door used by collection staff must remain unlocked at all times. Details demonstrating compliance are to be submitted to the certifying authority prior to the issue of the construction certificate.

Reason: To ensure compliance with conditions of consent
6. Energy Australia Requirements

Prior to any development being carried out, the approved plans must be submitted to Energy Australia’s local customer service office for approval to determine whether the development will affect Energy Australia’s network or easements.

Reason: To comply with the requirements of Energy Australia.
7. Waterproofing/Tanking of Basement Level

The basement area is to be permanently tanked or waterproofed. Details of the waterproofing/ tanking are to be prepared by a suitably qualified Engineer and submitted and approved by the Certifying Authority prior to the issue of the Construction Certificate.

Reason: To prevent ingress of sub-surface flows into the basement area.

8. Sediment Control

Where construction or excavation activity requires the disturbance of the soil surface and existing vegetation, details including plans and specifications shall be submitted to Council / Accredited Certifier accompanying the Construction Certificate, which provide adequate measures for erosion and sediment control. As a minimum, control techniques are to be in accordance with Soils and Construction Manual Volume 1 - Managing Urban Stormwater, or a suitable and effective alternative method. The Control Plan shall incorporate and disclose:

(a) All details of drainage to protect and drain the site during the construction processes;

(b) All sediment control devices, barriers and the like;

(d) Covering materials and methods;

(e) A schedule and programme of the sequence of the sediment and erosion control works or devices to be installed and maintained.

Details from an appropriately qualified person showing that these design requirements have been met shall be submitted with the Construction Certificate and approved by the Council / Accredited Certifier prior to issuing of the Construction Certificate.

Reason: To protect the environment from the effects of sedimentation and erosion from development sites

9. Pump-Out System Design for Stormwater Disposal

The design of the pump-out system for stormwater disposal will be permitted for drainage of basement areas only, and must be designed in accordance with all relevant Australian Standards and Codes by a suitably qualified professional.

Engineering details demonstrating compliance with this requirement and certified by an appropriately qualified and practising hydraulic engineer shall be provided to the Certifying Authority prior the issue of the Construction Certificate.

Note: The following Standards and Codes applied at the time of determination:

Australian/New Zealand Standard AS/NZS 3500.3:2003 - Plumbing and drainage - Stormwater drainage

Australian/New Zealand Standard AS/NZS 3500.3:2003/Amdt 1:2006 - Plumbing and drainage - Stormwater drainage

National Plumbing and Drainage Code.

Reason: To ensure adequate provision is made for the discharge of stormwater from the excavated parts of the site.

10. On-site Stormwater Detention Compliance Certification

Drainage plans detailing the provision of On-site Stormwater Detention in accordance with Warringah Council’s “On-site Stormwater Detention Technical Specification” and the concept drawing by Mr Thomas Lau, drawing number RAMSEY12-SW1, Sheets 1 to 6 dated December 2007, is to be submitted to the Certifying Authority (Civil Works) for approval prior to the issue of the Construction Certificate.

Reason: To ensure appropriate provision for disposal and stormwater management arising from the development.

11. Damage to Public Infrastructure

The applicant shall bear the cost of all restoration works to Council’s property damaged during the course of this development. The applicant shall advise Council, in writing, of any existing damage to Council property. A dilapidation survey of Council’s assets, including photographs and written record, must be prepared by a suitably qualified person and submitted to Council prior to the issue of the Construction Certificate.

Note: This documentation will be used to resolve any dispute over damage to infrastructure. It is in the applicant’s interest for it to be as full and detailed as possible.

Reason: To ensure the protection of existing built public infrastructure.

12. Development/Construction Security Bond

A bond (determined from cost of works) of $10,000 must be deposited with Council and an inspection fee paid of $200 prior to the issue of any Construction Certificate. This bond is to ensure the rectification of any damage that may occur to the Council infrastructure contained within the road reserve adjoining the site as a result of construction or the transportation of materials and equipment to and from the development site.

Reason: To ensure adequate protection to Council infrastructure.

13. Bond for Silt and Sediment Control

The payment of $5,000 shall be deposited with Council prior to the issue of the Construction Certificate as security to ensure that there is no transmission of material, soil etc off the site and onto the public road and/or drainage systems.

Reason: To ensure appropriate security against environmental damage.

14. Bond for Construction, Excavation and Associated Works

A bond of $10,000 shall be deposited with Council prior to the issue of the Construction Certificate as security against damage to Council’s road(s) fronting the site caused by the transport and disposal of materials and equipment to and from the site.

Reason: To ensure adequate protection to Council infrastructure.

15. Acceptable form of Security Bonds

Council will accept a bank guarantee in lieu of cash for the purpose of any security bond imposed by these conditions of consent. Such bank guarantee shall be in a form acceptable to Council and shall not have an expiry date. The bank guarantee shall be in place prior to the issuing of any Construction Certificate and shall remain in place until the submission of the Final Occupation certificate or termination of any maintenance period.

Reason: Information, Protection of infrastructure and the environment.

16. Sydney Water Approval

The approved consent plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped.

Please refer to the web site < for:

Quick Check agents details - see Building Developing and Plumbing then Quick Check; and

Guidelines for Building/over Adjacent to Sydney Water Assets - see Building Developing and Plumbing then Building and Renovating

Or telephone 13 20 92.

The Certifying Authority must ensure that a Quick Check agent/ Sydney Water has appropriately stamped the plans prior to the issue of any Construction Certificate.

Reason: To ensure compliance with the statutory requirements of Sydney Water.

17. Long Service Levy

Payment of the Long Service Levy is required prior to the release of the Construction Certificate. This payment can be made at Council or to the Long Services Payments Corporation. Payment is not required where the value of the works is less than $25,000. The Long Service Levy is calculated on 0.35% of the building and construction work.

The levy rate and level in which it applies is subject to legislative change. The applicable fee at the time of payment of the Long Service Levy will apply.

Reason: Prescribed - Statutory.

18. Heritage Photographic Survey

A black and white photographic survey, in accordance with the guidelines of the Heritage Council, is to be submitted with the Construction Certificate application prior to the demolition of the subject building. The photographic survey is to be submitted in an unbound report format, which is to contain:

(a) A front cover marked with:

(b) A layout plan of the existing building; identifying rooms and features shown in the photographs.

(c) Photographs of the interior, exterior, and streetscape view of the building, labelled to indicate their location in relation to the layout plan and elevations of the building; and a set of negatives. All photographs are to be mounted in acid-free photographic corner mountings and photographs are to be fixed into acid-free corner mounting.

(d) Where colour is a feature of the building (for example, the building features stained glass, leadlight or polychrome brickwork), additional colour photographs (with negatives) are to be included in the photographic survey report.

These documents are to be remitted to Council’s historical archives.

Reason: To provide a historical record of heritage significant works on the site for archival purposes.

19. Design for Access & Mobility

The development must be designed to comply with the requirements of the Disability Discrimination Act 1992 and Australian Standard AS1428.2-1992 Design for Access and Mobility - Enhanced and additional requirements - Buildings and facilities. Details demonstrating compliance are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate.

Reason: To ensure equitable access to members of the community to all public facilities.

20. Construction Management Program

A Construction Management Program shall be submitted to the Certifying Authority prior to the issue of a Construction Certificate. The program shall detail:

(a) The proposed method of access to and egress from the site for construction vehicles, including access routes through the Council area and the location and type of temporary vehicular crossing for the purpose of minimising traffic congestion and noise in the area, with no access across public parks or reserves being allowed;

(b) The proposed phases of construction works on the site, and the expected duration of each construction phase;

(c) The proposed order in which works on the site will be undertaken, and the method statements on how various stages of construction will be undertaken;

(d) The proposed manner in which adjoining property owners will be kept advised of the timeframes for completion of each phase of development/construction process.

(e) The proposed method of loading and unloading excavation and construction machinery, excavation and building materials, formwork and the erection of any part of the structure within the site. Wherever possible mobile cranes should be located wholly within the site;

(f) The proposed areas within the site to be used for the storage of excavated materials, construction materials and waste containers during the construction period;

(g) The proposed method/device to remove loose material from all vehicles and/or machinery before entering the road reserve, any run-off from the washing down of vehicles shall be directed to the sediment control system within the site;

(h) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be designed and certified by an appropriately qualified and practising Structural Engineer, or equivalent;

(i) Proposed protection for Council and adjoining properties;

(j) The location and operation of any on site crane; and

Reason: To ensure appropriate measures have been considered for site access, storage and the operation of the site during all phases of the construction process in a manner that respects adjoining owner’s property rights and protects amenity in the locality, without unreasonable inconvenience to the community.

21. BASIX Certification

The development shall fully comply with the schedule of BASIX Commitments. Plans and specifications that reflect those commitments identified on the BASIX Certificate to be satisfied prior to the issue of the Construction Certificate, shall be submitted to the Certifying Authority prior to the release of the Construction Certificate.

Reason: To ensure the development complies with the requirements of the SEPP (Building sustainability index: BASIX 2004).

22. Section 94A Contribution

$28,000 is to be paid to Warringah Council as a Section 94A levy prior to the issue of the Construction Certificate.

This amount has been calculated using the Warringah Section 94A Development Contributions Plan. The amount will be adjusted at the time of payment according to the quarterly CPI (Sydney - All Groups Index). Please ensure that you provide details of this Consent when paying contributions so that they can be easily recalculated.

The basis for the contributions is as follows:

Warringah Section 94A Development Contributions Plan

Contribution based on total development cost of $2,800,000.00

Contribution - all parts Warringah Levy Rate Contribution
PayableCouncil Code

Total S94A Levy 0.95% $26,6006923

S94A Planning and Administration 0.05% $1,4006924

Total 1.0% $28,000

Reason: To retain a level of service for the existing population and to provide the same level of service for the population resulting from new development.

23. Reflectivity Index of Glazing

The reflectivity index (expressed as a percentum of the reflected light falling upon any surface) of external glazing for windows, walls or roof finishes of the proposed development is to be no greater than 20%. Written confirmation of the reflectivity index of materials is to be submitted to the Certifying Authority prior to the issue of the Construction Certificate.

Note: The reflectivity index of glazing elements can be obtained from glazing manufacturers. Glass with mirrored or reflective foil finishes is unlikely to achieve compliance with this requirement.

Reason: To ensure that excessive glare or reflectivity nuisance from glazing does not occur as a result of the development.

24. High Quality Lighting

External lighting is to be provided for security that complies with the relevant Australian Standard. Details are to be submitted to the Certifying Authority prior to the issue of the Construction Certificate.

Note: The following Australian Standard at the time of determination:

Australian Standard AS4282 - 1997 Control of the obtrusive effects of outdoor lighting.

Reason: To ensure lighting provides security and amenity.

25. Exhaust Fumes from Car Park

Any exhaust ventilation from the car park is to be ventilated away from the property boundaries of the adjoining dwellings in accordance with the provisions of the relevant Australian Standards. Details demonstrating compliance are to be submitted prior to the issue of the Construction Certificate.

Note: The following Australian Standard applied at the time of determination:

Australian Standard AS1668.1:1998 - The use of ventilation and air-conditioning in buildings - Fire and smoke control in multi-compartment buildings.

Reason: To preserve community health and ensure compliance with acceptable standards.

26. Flood Protection – Driveway Crest level

The finished driveway crest level shall be Reduced Level = 5.10 m AHD and finished surface level of the driveway along the property alignment shall be Reduced Level = 4.30 m AHD. The crest within the driveway is to be located within the subject property. The transition grades are to be as follows. From the boundary up at 12.5% for 5.6m, up at 6.25% for 1.5m to the crest level of 5.10m then down at 6.25% for 1.5m, down at 19% for 10.8m to RL 2.95m at the garage entrance. Plans detailing compliance with this requirement and Australian/New Zealand Standard AS/NZS 2890.1:2004 Parking facilities - Off-street car parking are to be submitted to the Certifying Authority for approval prior to the issue of the Construction Certificate.

Reason: To protect the basement car parking area from inundation of floodwaters.

A Soil and Water Management Plan shall be prepared and submitted to the Principal Certifying Authority prior to the issue of a Construction Certificate. The Soil and Water Management Plan shall be prepared and implemented by the person(s) supervising the works on site and must be in accordance with Landcom's 'Managing Urban Stormwater: Soils and Construction' (2004), and include:

Planned stages of excavation and building;

The slope of the land;

Location of all pits, waterways and drains on and nearby the site;

Location of washdown and storage of material areas;

Proposed erosion and sediment controls and their location.

Sediment control basin locations and volume.

Reason: To protect the environment from the effects of sedimentation and erosion from development sites.

Prior to the commencement of any works (other than demolition works), a detailed site contamination investigation (Phase 2 investigation) report is to be submitted to the Principal Certifying Authority and, if the Principal Certifying Authority is not Council, to Council. The investigation should be conducted by a qualified environmental consultant approved in writing by Council in accordance with relevant NSW DEC (EPA) guidelines, including Guidelines for Consultants Reporting on Contaminated Sites, EPA, 1997. Without limiting the generality of the foregoing, the detailed site investigation is to:

Define the extent and degree of contamination;

Assess the potential risk posed by contaminants to human health and the environment;

Confirm the present suitability of the site or identify any remediation works that are required; and

Obtain sufficient information for the development of a remedial action plan (if necessary).

Reason: To verify the level of contamination on the site and recommend remedial action if required.

29. Remedial Action Plan

If the detailed site investigation report identifies that remediation works are required, a remedial action plan is to be prepared by an appropriately qualified environmental consultant approved in writing by Council in accordance with relevant NSW DEC (EPA) guidelines and any contaminated land planning guidelines under section 145C of the Environmental Planning and Assessment Act 1979 prior to the commencement of any works (other than demolition works).

Reason: To ensure appropriate remediation is undertaken.

Prior to the commencement of any works (other than demolition works and remediation works), any underground tanks shall be removed in accordance with:

Australian Institute of Petroleum (AIP) Code of Practice for the Removal and Disposal of Underground Petroleum Storage Tanks (ref. AIP CP22), AS 1674.1

WorkCover NSW requirements (this requires writing in advance to the Chief Inspector of Dangerous Goods, WorkCover NSW, locked Bag 10, Clarence St Sydney 2000 and complying with any conditions imposed).

NOTE: In the event of conflict between the AIP Code of Practice and WorkCover NSW requirements, the latter shall prevail.

Reason: To ensure the safe removal of underground storage tanks.

31. Site Remediation

If the detailed site investigation report identifies that remediation works are required, the site is to be remediated in accordance with the Remedial Action Plan prior to the commencement of any works (other than demolition works and remediation works).

Reason: To protect employees, occupants and the environment from potential harm arising from contaminated material.
32. Clearance Certificate

Prior to the commencement of any works (other than demolition works and remediation works), the applicant is to provide to the Principal Certifying Authority a Clearance Certificate from an appropriately qualified environmental consultant validating that the site has been remediated in accordance with the Remedial Action Plan.

Reason: To protect employees, occupants and the environment from potential harm arising from contaminated material.

33. Dilapidation Survey

A dilapidation survey of adjacent buildings must be conducted prior to any site work. The lateral extent of the survey must cover the likely “zone of influence” of any excavation or construction induced vibration. The survey must be properly documented. The dilapidation report must be submitted to Council and the Certifying Authority prior to the issue of the Construction Certificate.

Reason: Proper management of records.

34. Privacy screens

Fixed external privacy screens, incorporating fixed upwards angled louvers, shall be provided to all bedroom windows on the western elevation of the development to prevent any overlooking into the east facing courtyard, balcony and living areas at all levels of No. 14-16 Ramsay Street, Collaroy.

Reason: To ensure no overlooking opportunity into the adjoining property.

35. Existing brick wall to be retained

The section of existing external brick wall located partly over the boundary and onto No. 14-16 Ramsay Street is to be retained, in situ, to a preferred height of 1.8 m or a structurally acceptable level above the finished ground level of the subject development, or the existing ground levels on No. 14 -16 Ramsay Street, whichever is the greater. The demolition shall be supervised by a structural engineer who will be required to certify the stability of the remaining wall and in the event that the wall is to be demolished below the 1.8 m height, the structural engineer shall report on the reasons why the 1.8 m height could not be achieved. A minimum 14 days notice is to be given to the body corporate of No. 14-16 Ramsay Street prior to any demolition works such that the existing vegetation growing over the wall can be appropriately pruned/ removed.

Reason: To ensure that the existing ground levels on No. 14-16 Ramsay Street, adjacent to the existing brick wall which straddles the western boundary of the properties, are maintained and that the existing wall, if structurally possible, is retained to a height such that reasonable privacy is afforded between properties.

36. Colour schedule

Deleted

37. Amendment to the Approved Plans

Deleted

CONDITIONS THAT MUST BE ADDRESSED PRIOR TO ANY COMMENCEMENT

Unless otherwise specifically approved in writing by Council, all works, processes, storage of materials, loading and unloading associated with the development are to occur entirely on the property. The applicant, owner or builder must apply for specific permits available from Council’s Customer Service Centre for the undermentioned activities on Council’s property pursuant to Section 138 of the Roads Act 1993. A minimum of forty-eight (48) hours notice is required for all permits except work zones, which may require additional assessment time. (See below)

Permit for on-street mobile plant

Restrictions apply to the hours of operation and the area of operation for on street mobile plant equipment (for example cranes, concrete pumps, cherry pickers). Separate permits are required for each occasion and each piece of equipment. It is the responsibility of the applicant, owner and builder to take whatever steps are necessary to ensure that the use of any equipment does not violate adjoining property owner’s rights.

· Hoarding Permit

Permits are required to erect Class A, Class B and Class C hoardings. If an ‘A’ Class hoarding is to alienate a section of Council’s property, that section will require a permit for the occupation of Council’s property.

Storage of building materials and building waste containers (skips) on Council’s property

Permits to utilise Council property for the storage of building materials and building waste containers (skips) are required for each location. Failure to obtain the relevant permits will result in the building materials or building waste containers (skips) being impounded by Council with no additional notice being given.

Kerbside restrictions, work zones

Existing kerbside restrictions apply. An application must be made to Council for the alteration of existing kerbside restrictions or the provision of a construction zone.

Reason: Proper management of public land.

40. Road Opening Permit

The developer/applicant is to obtain a “Road Opening Permit” from Council and pay all appropriate charges prior to commencement of any work on Council property. The developer/applicant shall be responsible for all public utilities and services in the area of the work, and as such shall notify all relevant Authorities, and bear all costs associated with any repairs and/or adjustments as those Authorities may deem necessary.

Reason: Statutory requirement (Roads Act 1993).

41. Public Liability Insurance - Works on Public Land

Any person or contractor undertaking works on public land must take out Public Risk Insurance with a minimum cover of $10 million in relation to the occupation of, and approved works within Council’s road reserve or public land, as approved in this consent. The Policy is to note, and provide protection for Warringah Council, as an interested party and a copy of the Policy must be submitted to Council prior to commencement of the works. The Policy must be valid for the entire period that the works are being undertaken on public land.

Reason: To ensure the community is protected from the cost of any claim for damages arising from works on public land.

42. Construction Work within Public Open Space

The written consent of Council must be obtained to enter or undertake any work within adjoining public lands prior to the commencement of works.

Reason: Protection of existing public infrastructure.

43. Toilets

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

(2) Each toilet provided:

(a) must be a standard flushing toilet, and

(b) must be connected:

(i) to a public sewer; or
(ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or
(iii) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council.

(3) The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced.

(4) In this clause:

accredited sewage management facility means a sewage management facility to which Division 4 Sub-division 5 of the Local Government (General) Regulation 2005 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in of the Regulation.

approved by the Council means the subject of an approval in force under the Local Government (General) Regulation 2005.
public sewer has the same meaning as it has in the Local Government (General) Regulation 2005.
sewage management facility has the same meaning as it has in the Local Government (General) Regulation 2005.

Reason: To ensure adequate facilities are provided for workers on the site.

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

(a) stating that unauthorised entry to the work site is prohibited;
(b) showing the name of the principal contractor (or person in charge of the work site), and a telephone number at which that person may be contacted at any time for business purposes and outside working hours; and
(c) showing the name, address and telephone number of the Principal Certifying Authority for the work.

(2) Any such sign must be maintained while to building work or demolition work is being carried out, but must be removed when the work has been completed.

(3) This condition does not apply to building works being carried out inside an existing building.

Reason: Statutory requirement.

45. Notice of Commencement

At least 2 days prior to work commencing on site Council must be informed, by the submission of a Notice of Commencement in Accordance with Section 81A of the Environmental Planning and Assessment Act 1979 of the name and details of the Principal Certifying Authority and the date construction work is proposed to commence.

Reason: Legislative requirement for the naming of the PCA.

(1) Building work that involves residential building work (within the meaning and exemptions provided in the Home Building Act 1989) must not be carried out unless the Principal Certifying Authority for the development to which the work relates:

(a) in the case of work to be done by a licensee under that Act:
(i) has been informed in writing of the licensee’s name and contractor licence number, and
(ii) is satisfied that the licensee has complied with the requirements of the Home Building Act, or

(b) in the case of work to be done by any other person:
(i) has been informed in writing of the person’s name and owner-builder permit number, or
(ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in section 29 of that Act, and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.

Note: The amount referred to in paragraph (b)(ii) is prescribed by regulations under the Home Building Act 1989. As at the date on which this Regulation was gazetted, that amount was $3,000. As those regulations are amended from time to time, that amount may vary.

(2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

(3) If arrangements for doing residential building work are changed while the work is in progress so that the information submitted to Council is out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council), has given the Council written notice of the updated information.

Reason: Prescribed - Statutory.

47. Excavation/Building Works

No excavation or building works shall be carried out until a Construction Certificate has been issued.

Reason: To ensure compliance with statutory provisions. .

48. Protection of Trees During Works

All trees that are to be specifically nominated to be retained by notation or condition as a requirement of development consent shall be maintained and protected during demolition, excavation and construction on the site. Details of required protection methods shall be provided to the Certifying Authority by an appropriately qualified person prior to commencement of any works on the site.

CONDITIONS THAT MUST BE COMPLIED WITH DURING DEMOLITION AND BUILDING WORK

49. Vehicle Crossings

The provision of 1 vehicle crossing 3 metres wide in accordance with Warringah Council Drawing No A4-3330/1 N and specifications. An Authorised Vehicle Crossing Contractor shall construct the vehicle crossing and associated works within the road reserve in plain concrete. All redundant laybacks and crossings are to be restored to footpath/grass. Prior to the pouring of concrete, the vehicle crossing is to be inspected by Council and a satisfactory “Vehicle Crossing Inspection” card issued.

For details see Warringah Council's website < or phone (02) 9942 2111.

Reason: To facilitate suitable vehicular access to private property.

50. Maintenance of Road Reserve

The public footways and roadways adjacent to the site shall be maintained in a safe condition at all times during the course of the work.

Reason: Public Safety.

51. Layback Construction

A layback 3 metres wide (excluding the wings) is to be constructed in accordance with Warringah Council Drawing No A4-2276 and specifications.

Reason: To facilitate suitable vehicular access to private property.

52. Installation and Maintenance of Sediment Control

Techniques used for erosion and sediment control on building sites are to be adequately maintained at all times and must be installed in accordance with Soils and Construction Manual Volume 1 - Managing Urban Stormwater. All techniques shall remain in proper operation until all development activities have been completed and the site fully stabilised.

Reason: To protect the environment from the effects of sedimentation and erosion from development sites.

53. Dewatering

Where dewatering works are required on the development site during construction, the developer/applicant must apply for and obtain a bore license from the Department of Water and Energy. The bore license must be obtained prior to commencement of dewatering works. All requirements of the Department of Water and Energy are to be complied with and a copy of the approval must be submitted to the Certifying Authority.

Reason: Compliance with the requirements of State Government Requirements.

54. Footpath Construction

The applicant shall construct 1.2m wide concrete footpath (Ramsey Street). The works shall be in accordance with the following:

(a) All footpath works are to be constructed in accordance with Council’s minor works policy

(b) Council is to inspect the formwork prior to pouring of concrete to ensure the works are in accordance with Council’s specification for footpath.

Reason: To ensure compliance of footpath works with Council’s specification for engineering works.

55. Civil Works Supervision

All civil works approved in the Construction Certificate are to be supervised by an appropriately qualified and practising Civil Engineer.

Reason: To ensure compliance of civil works with Council’s specification for engineering works.

56. Applicant’s Cost of Work on Council Property

The applicant shall bear the cost of all works associated with the development that occurs on Council’s property.

Reason: To ensure the proper management of public land.

57. Traffic Control During Road Works

Lighting, fencing, traffic control and advanced warning signs shall be provided for the protection of the works and for the safety and convenience of the public and others in accordance with Council’s Minor Works Specification and to the satisfaction of the Principal Certifying Authority. Traffic movement in both directions on public roads, and vehicular access to private properties is to be maintained at all times during the works.

Reason: Public Safety.

58. Silt & Sediment Control

Provision shall be made throughout the period of demolition / Excavation & Construction to prevent transmission of soil to the public road and drainage system by vehicles leaving the site.

Reason: To avoid siltation to adjoining properties and waterways.

59. Structural Adequacy and Excavation Work

Excavation work is to ensure the stability of the soil material of adjoining properties, the protection of adjoining buildings, services, structures and / or public infrastructure from damage using underpinning, shoring, retaining walls and support where required.

All retaining walls are to be structurally adequate for the intended purpose, designed and certified by a Structural Engineer, except where site conditions permit the following:

(a) maximum height of 900mm above or below ground level and at least 900mm from any property boundary, and

(b) comply with AS3700, AS3600 and AS1170 and timber walls with AS1720 and AS1170.

Before excavation, the responsible person must notify their intention to the adjoining owner/s and shall at the same time furnish to such owner/s particulars of the work proposed to be carried out.

Reason: Safety.

60. Prohibition on Use of Pavements

No building, demolition, excavation or material of any nature shall be placed on Council's footpaths, roadways, parks or grass verges without prior Council Approval.

Reason: To ensure public safety and amenity on public land.

61. Property Boundary Levels

The property boundary levels shall match the existing levels except where modified for the vehicular crossing. The applicant shall design and construct having regard for the aforementioned levels. No approval is granted for any change to existing property alignment levels to accommodate the development.

Reason: To maintain the existing profile of the nature strip/road reserve.

62. Demolition Works

All Demolition Work shall be carried out in a safe manner by trained personnel under the management of a licensed demolisher who is registered with the WorkCover Authority, in accordance with all relevant Acts, Regulations and Australian Standards.

Note: The following Australian Standard applied at the time of determination

· Australian Standard AS2601.2001 - Demolition of Structures

Reason: To ensure a satisfactory standard of demolition works.

63. Construction Hours

Building construction shall be restricted to within the hours of 7.00 am to 5.00 pm Monday to Friday and on Saturday to within the hours of 8.00 am to 1.00 pm inclusive, with no work on Sundays and Public Holidays.

Demolition and excavation works shall be restricted to within the hours of 8.00 am to 5.00 pm Monday to Friday only. (Excavation work includes the use of any excavation machinery and the use of jackhammers, rock breakers, excavators, loaders and the like, regardless of whether the activities disturb or alter the natural state of the existing ground stratum or are breaking up/removing materials from the site).

Where it is necessary for works to occur outside those hours allowed by these conditions, approval for such will be subject to issue of a permit on each occasion from Council's Customer Services Centre. Such permit must be obtained and the appropriate fee paid at least two (2) clear working days in advance of each relevant date. Such occurrence shall be limited to two occasions per calendar month and shall only be approved if public safety or convenience is at risk.

Note: Failure to obtain a permit for work outside of the approved hours will result in on the spot fines being issued, or Council pursuing any action required (including legal proceedings) to have the out of hours work cease, without prior warning.

Reason: To ensure that works do not interfere with reasonable amenity expectations of residents and the community.

(1) If the work involved in the erection or demolition of a building:

(a) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient; or
(b) building involves the enclosure of a public place,

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

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

(3) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

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

(5) No access across public reserves or parks is permitted.

Note: Prior to the erection of any temporary fence or hoarding over property owned or managed by Council, written approval must be obtained.

Reason: To ensure public safety and the proper management of public land.

65. Plans on Site

A copy of all stamped approved plans, specifications and documents (including the Construction Certificate if required for the work incorporating certification of conditions of approval) shall be kept on site at all times so as to be readily available for perusal by any officer of Council or the Certifying Authority.

Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council, Public Information and to ensure ongoing compliance.

66. Plant & Equipment Kept Within Site

All plant and equipment used in the erection of the building, including concrete pumps, wagons, lifts, mobile cranes, etc, shall be situated within the boundaries of the site and so placed that all concrete slurry, water, debris and the like shall be discharged onto the building site, and is to be contained within the site boundaries. This condition shall be complied with during demolition and building work.

Reason: To ensure public safety and amenity on public land.

67. Health and Safety

The work undertaken must satisfy applicable occupational health and safety and construction safety regulations, including any WorkCover Authority requirements.

Reason: To ensure the health and safety of the community and workers on the site.

(1) If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:

(a) must preserve and protect the building from damage; (b) if necessary, must underpin and support the adjoining building in an approved manner Subject to adjoining owner’s consent; and (c) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

(2) The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

(3) In this clause, allotment of land includes a public road and any other public place.

Reason: To ensure adjoining owner’s property rights are protected and protect adjoining properties from potential damage.

69. Excavation / Backfilling

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

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

Reason: To ensure that work is undertaken in a professional and responsible manner and protect adjoining property and persons from potential damage.

70. Water Quality from Contaminated Sites

Runoff must be drained to an adequately bunded central collection sump and treated, if necessary, to meet NSW Department of Environment and Climate Change (formerly Environment Protection Authority) discharge criteria.

Reason: To protect the environment from contaminated sedimentation and erosion from development sites.

71. Sediment and Erosion Control Signage

A durable sign, which is available from Council, shall be erected during building works in a prominent location on site, warning of penalties should appropriate erosion and sedimentation control devices not be maintained.

Reason: To protect the environment from the effects of sedimentation and erosion from development sites.

Any removal of contaminated solids from the site must comply with applicable laws for the transportation, treatment and disposal of waste materials. Waste materials must not be disposed of on land without:

(a) Permission of the land owner;

(b) Development consent from the relevant local Council (if required);

(c) An environment protection licence from the NSW Environment Protection Authority; and

(d) Compliance with the provisions of the Protection of the Environment and Operations Act.

Reason: To protect the environment from contaminated material from development sites.
73. Disposal of Polluted Water

Site water discharged must not exceed suspended solid concentrations of 50 parts per million, and must be analysed for pH and any contaminants of concern identified during the preliminary or detailed site investigation, prior to discharge to the stormwater system. The analytical results must comply with the relevant Department of Environment and Conservation (EPA) and ANZECC standards for water quality.

Other options for the disposal of excavation pump-out water include disposal to sewer with prior approval from Sydney Water, or off-site disposal by a liquid waste transporter for treatment/disposal to an appropriate waste treatment/processing facility.

Reason: To prevent pollution of waterways.

74. Supervision of Potentially Contaminated Land During Excavation

A suitably qualified and experienced person must be nominated and available during excavations to assess any unexpected contamination, such as asbestos or underground storage tanks. This person must have sufficient authority to halt works should contamination be revealed by excavation works.

The name, qualifications and contact details of the suitably qualified person must be submitted to Council or the accredited certifier prior to commencement of excavation.

Reason: To protect employees, occupants and the environment from potential contamination arising from excavation of the soils.

75. Imported

Fill

All fill imported onto the site shall be validated to ensure the imported fill is suitable for the proposed land use from a contamination perspective. Fill imported onto the site shall also be compatible with the existing soil characteristic for site drainage purposes.

Council may require details of appropriate validation of imported fill material to be submitted with any application for future development of the site. Hence all fill imported onto the site should be validated by either one or both of the following methods during remediation works:

Imported fill should be accompanied by documentation from the supplier which certifies that the material is not contaminated based upon analyses of the material for the known past history of the site where the material is obtained; and/or
Sampling and analysis of the fill material should be conducted in accordance with the EPA Sampling Design Guidelines (1995) to ensure that the material is not contaminated.

Reason: To ensure that imported fill is of an acceptable standard.

Hazardous or intractable wastes arising from the refurbishment and excavation process shall be removed and disposed of in accordance with the requirements of WorkCover NSW and the Department of Environment and Conservation (DEC), and with the provisions of:

New South Wales Occupational Health and Safety Act 2000;
The Occupational Health and Safety (Asbestos Removal Work) Regulation 2001;
The Occupational Health and Safety (Hazardous Substances) Regulation 2001;
The Protection of the Environment Operations Act 1997;
'Code of Practice for the Safe Removal of Asbestos', NOHSC 2002;
The Protection of the Environment (Waste) Regulation 2005.

Excavated waste material and other building wastes shall be classified in accordance with the Department of Environment and Conservation's 'Environmental Guidelines- Assessment, Classification and Management of Liquid and Non-Liquid Wastes (1999), and removed to a waste facility licensed by the DEC to accept these materials.

Reason: To ensure waste is disposed of appropriately to protect the environment.

77. Requirement to Notify about New Contamination Evidence

Any new information revealed during demolition works that has the potential to alter previous conclusions about site contamination or hazardous materials shall be immediately notified to the Council and the Principal Certifying Authority.

Reason: To protect human health and the environment.

All work involving lead removal must not cause lead contamination of air or ground and must be carried out in accordance with the relevant Australian Standards. Particular attention must be given to the control of dust levels on the site.

Note: The following standard applied at the time of determination:

Australian Standard AS4361.2 - Guide to lead paint management - Residential and commercial buildings

Reason: To ensure the long term health of workers on site and occupants of the building is not put at risk unnecessarily.

79. Removing, Handling and Disposing of Asbestos

Any works involving asbestos based products in relation to removal, handling and disposing of material must be undertaken in accordance with all relevant Acts, Regulations, Guides and Codes.

Note: The following standards applied at the time of determination:

Code of Practice for the Safe Removal of Asbestos [NOHSC:2002 (1998)] and

Guide to the Control of Asbestos Hazards in Buildings and Structures [NOHSC: 3002 (1998)]

Reason: To ensure the long term health of workers on site and occupants of the building is not put at risk unnecessarily

80. Off-site Disposal of Contaminated Soil

All contaminated soil removed from the site must be disposed of at a waste facility that can lawfully receive that waste and must be done in accordance with all relevant Acts, Regulations and Guidelines. Copies of all test results and disposal dockets must be retained for at least 3 years and be made available to authorised Council officers on request.

Note: The following Acts and Guidelines applied at the time of determination:

Protection of the Environment Operations Act 1997 ; and

Environment Protection Authority’s Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes (1999).

Reason: For protection of environment and human health and to ensure compliance with the legislation.

81. Noise and Vibration

Noise emissions and vibration must be minimised where possible and work is to be carried out in accordance with Department of Environment and Climate Change (formerly) Environment Protection Authority guidelines for noise emissions from construction/demolition works and must also comply with the provisions of the Protection of the Environment Operations Act 1997. This Condition must be complied with during demolition and building work.

Reason: To ensure residential amenity is maintained in the immediate vicinity

82. Dust emission and air quality

Materials must not be burnt on site.

Vehicles entering and leaving the site with soil or fill material must be covered.

Dust suppression measures must be carried out to minimise wind-borne emissions in accordance with the Landcom’s Managing Urban Stormwater: Soils and Construction (The ‘Blue Book’). Odour suppression measures must be carried out so as to prevent nuisance occurring at neighbouring properties.

Reason: To ensure residential amenity is maintained in the immediate vicinity.

83. Noxious Plants

All plants on the site that are declared as noxious weeds in Warringah shall be eradicated before the commencement of landscape works.

Reason: To ensure that plants identified as weed species are not allowed to proliferate or interfere with a quality-landscaping outcome.

84. Protection of Trees

All trees which are not listed as exempt or noxious in Warringah that are not indicated for removal on Landscape Plan Drawing No. 1 prepared by IScape, dated December 2007 are to be protected.

Reason: Protection of existing environmental infrastructure and community assets.

85. Trees

(2) Tree roots of 50mm or greater in diameter encountered during excavation, shall only be cut following consultation with a qualified Arborist. Tree roots between 10mm and 50mm in diameter, severed during excavation, shall be cut cleanly by hand.

Reason: Protection of trees.

(5) The following guidelines are to be complied with at all times:

(a) The applicant shall ensure that at all times during the development period no activities, storage or disposal of materials shall take place beneath the canopy of any tree covered under Council’s Tree Preservation Order unless specifically approved by Council.

(b) Trees marked for retention are not to be damaged or used to display signage, or as fence or cable supports for any reason.

(d) Site personnel are to be made aware of tree requirements and protective measures. Paving materials placed within the dripline of any tree should be of a porous material.

Reason: Protection of trees.

(6) During the construction period the applicant is responsible for ensuring all protected trees are maintained in a healthy and vigorous condition. This is to be done by ensuring that all identified tree protection measures are adhered to. In this regard all protected plants on this site shall not exhibit:

(a) A general decline in health and vigour.

(b) Damaged, crushed or dying roots due to poor pruning techniques.

(d) Mechanical damage or bruising of bark and timber of roots, trunk and branches.

(e) Yellowing of foliage or a thinning of the canopy untypical of its species.

(f) An increase in the amount of deadwood not associated with normal growth.

(g) An increase in kino or gum exudation.

(h) Inappropriate increases in epicormic growth that may indicate that the plants are in a stressed condition.

(i) Branch drop, torn branches and stripped bark not associated with natural climatic conditions.

The presence of any of these symptoms or signs may be considered by Council as a breach of the Conditions of Development Approval.

Reason: Protection of trees.

(7) All trees on neighbouring properties are to be protected from adverse impacts caused by the works. Any excavations or changes of level occurring within the canopy of trees on neighbouring properties shall only be undertaken following consultation by a suitably qualified Arborist.

Any mitigating measures and recommendations required by the Arborist are to be implemented.

The owner of the adjoining allotment of land is not liable for the cost of work carried out for the purpose of this clause.

Reason: Protection of trees.

86. Tree Pruning

Any tree pruning necessary for construction shall be carried out under the supervision of an appropriately qualified Arborist and be in accordance with the relevant Australian Standards.

Note: The following Australian Standard applied at the time of determination:

Australian Standard AS 4373.2007 - Pruning of Amenity Trees.

Reason: To ensure protection and longevity of existing trees.

87. No Removal of Trees on Public Property

No trees or native shrubs or understorey on public property (footpaths, roads, reserves, etc.), unless specifically approved in this consent, shall be removed or damaged during construction including for the erection of any fences, hoardings or other temporary works.

CONDITIONS WHICH MUST BE COMPLIED WITH PRIOR TO ISSUE OF OCCUPATION CERTIFICATE

88. Authorisation of Legal Documentation Required for On-site Stormwater Detention

The original completed request forms (Department of Lands standard forms 13PC and/or 13RPA) must be submitted to Council for authorisation prior to the issue of the Interim/Final Occupation Certificate. A copy of the work-as-executed plan (details overdrawn on a copy of the approved drainage plan) and hydraulic engineer’s certification must be included with the above submission. Additionally a copy of the Component/Compliance Certificate issued by Council or an Accredited Certifier in Civil Works stating that the works are in accordance with the approved plans shall also be provided in the submission to Council.

If Council is to issue the Compliance Certificate for these works, the fee is to be in accordance with Council's Fees and Charges.

Reason: To create encumbrances on the land.

89. Creation of Positive Covenant and Restriction as to User

Where any conditions of this Consent require the creation of a positive covenant and/or restriction as to user, the original completed request forms, (Department of Lands standard forms 13PC and/or 13RPA), shall to be submitted to Warringah Council for authorisation. A certified copy of the documents shall be provided to Warringah Council after final approval and registration has been affected by the “Department of Lands" prior to issue of the Interim/Final Occupation Certificate.

Reason: To identify encumbrances on land.

90. Undergrounding of Telecommunications Services

The developer shall submit to the Principal Certifying Authority a letter from the telecommunications service provider confirming that satisfactory arrangements have been made for the provision of underground telecommunications services, prior to the issue an Interim/Final Occupation Certificate.

Reason: Provision of telecommunication facilities in a manner that facilitates the future underground provision of cable services.

91. Stormwater Disposal Certification

The stormwater drainage works shall be certified as compliant with all relevant Australian Standards and Codes by a suitably qualified professional. The certification is to be submitted to the Principal Certifying Authority prior to the issue of an Interim/Final Occupation Certificate.

Note: The following Standards and Codes applied at the time of determination:

Australian/New Zealand Standard AS/NZS 3500.3:2003 - Plumbing and drainage - Stormwater drainage

Australian/New Zealand Standard AS/NZS 3500.3:2003/Amdt 1:2006 - Plumbing and drainage - Stormwater drainage

National Plumbing and Drainage Code.

Reason: To ensure appropriate provision for disposal of stormwater arising from the development.

92. Restriction as to User for On-site Stormwater Detention

A restriction as to user shall be created on the title over the on-site stormwater detention system, restricting any alteration to the levels and/or any construction on the land prior to the issue of an Interim/Final Occupation Certificate. The terms of such restriction are to be prepared to Council’s standard requirements, (available from Warringah Council), at the applicant’s expense and endorsed by Council prior to lodgment with the Department of Lands. Warringah Council shall be nominated as the party to release, vary or modify such restriction.

Reason: To ensure no modification to the on-site stormwater detention structure without Council’s approval.

93. Reinstatement of Kerb

Prior to the issue of an Interim/Final Occupation Certificate all redundant laybacks and vehicular crossings shall be reinstated to conventional kerb and gutter, footpath or grassed verge as appropriate with all costs borne by the applicant.

Reason: To facilitate the preservation of on street parking spaces.

94. Registration of Encumbrances for On-site Stormwater Detention

A copy of the certificate of title demonstrating the creation of the positive covenant and restriction for on-site storm water detention as to user is to be submitted to Council prior to the issue of an Interim/Final Occupation Certificate.

Reason: To identify encumbrances on land.

95. Positive Covenant for On-site Stormwater Detention

A positive covenant shall be created on the title of the land requiring the proprietor of the land to maintain the on-site stormwater detention structure in accordance with the standard requirements of Council prior to the issue of an Interim/Final Occupation Certificate. The terms of the positive covenant are to be prepared to Council’s standard requirements, (available from Warringah Council), at the applicant’s expense and endorsed by Council prior to lodgment with the Department of Lands. Warringah Council shall be nominated as the party to release, vary or modify such covenant.

Reason: To ensure ongoing maintenance of the on-site stormwater detention system.

96. Positive Covenant for the Maintenance of Stormwater Pump-out Facilities

A Positive Covenant (under the provisions of Section 88B of the Conveyancing Act 1919) is to be created on the property title to ensure the on-going maintenance of the stormwater pump-out facilities on the property being developed.

Warringah Council shall be nominated in the instrument as the only party authorised to release, vary or modify the instrument. Warringah Council’s Authorised Officer shall sign these documents prior to the submission to the Department of Lands. Evidence of the registration of the instrument referred to in this condition is to be provided to Council prior to the issue of an Interim/Final Occupation Certificate.

Reason: To ensure adequate provision is made for the stormwater pump out system to be maintained to an appropriate operational standard.

97. On-Site Stormwater Detention Compliance Certification

Upon completion of the on-site stormwater detention (OSD) system, certification from a consulting engineer and a “work as executed” (WAE) drawing certified by a registered surveyor and overdrawn in red on a copy of the approved OSD system plans are to be provided to Council. Additionally a Compliance/Component Certificate shall be issued by Council or an Accredited Certifier in Civil Works stating that the works are in accordance with the approved plans prior to the issue of an Interim/Final Occupation Certificate.

If Council is to issue the Compliance Certificate for these works, the fee is to be in accordance with Council's Fees and Charges.

Reason: To ensure stormwater disposal is constructed to Council’s satisfaction.

98. Sydney Water

A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

Application must be made through an authorised Water Servicing Co-ordinator. Please refer to the Building Developing and Plumbing section of the web site < then refer to “Water Servicing Coordinator” under “Developing Your Land” or telephone 13 20 92 for assistance.

Following application a “Notice of Requirements” will advise of water and sewer infrastructure to be build and charges to be paid. Please make early contact with the Co-ordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design.

The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to the issue of an Interim / Final Occupation Certificate.

Reason: To ensure compliance with the statutory requirements of Sydney Water.

99. BASIX Compliance Certification

Prior to the issue of an Interim/Final Occupation Certificate, all the selected BASIX commitments as detailed in the BASIX Certificate, must be completed.

Reason: To ensure the development complies with the requirements of the SEPP (Building sustainability index: BASIX 2004).

100. Occupation Certificate Required

An Interim / Final Occupation Certificate shall be obtained in relation to the approved works prior to any use or occupation of those parts of the building.

Note: In issuing an Interim / Final Occupation Certificate the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning and Assessment Act 1979 have been satisfied.

Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act.

101. Intercom

An intercom system must be provided in a convenient location adjacent to the visitor parking entry to enable easier and safe access to visitor parking prior to the issue of an Interim/Final Occupation Certificate.

Reason: To ensure convenient access is available for visitors to the building.

102. Garbage and Recycling Facilities

Prior to the issue of an Interim/Final Occupation Certificate all internal walls of the storage area shall be rendered to a smooth surface, coved at the floor/wall intersection, graded and appropriately drained to the sewer with a tap in close proximity to facilitate cleaning.

Reason: To prevent pollution of the environment and to protect the amenity of the area.

103. Garbage and Recycling Facilities

Prior to the issue of an Interim/Final Occupation Certificate, garbage facilities are to be constructed in accordance with Warringah Council’s Code for Waste Handling in Residential Buildings.

Reason: To ensure the provision of appropriate waste facilities for residents and protect community health, and to ensure efficient collection of waste by collection contractors

104. Fire Safety Matters

At the completion of all works, a Fire Safety Certificate will need to be compiled which references all the Essential Fire Safety Measures applicable and the relative standards of Performance (as per Schedule of Fire Safety Measures). This certificate must be prominently displayed in the building and copies must be sent to Council and the NSW Fire Brigade.

Each year the Owners must send to the Council and the NSW Fire Brigade an annual Fire Safety Statement which confirms that all the Essential Fire Safety Measures continue to perform to the original design standard.

Reason: Statutory requirement under Part 9 Division 4 & 5 of the Environmental Planning and Assessment Regulation 2000.

105. Car parking Layout

All car spaces are to be line marked in accordance with the car parking layout on the approved plans prior to the issue of an Interim/Final Occupation Certificate.

Reason: To clearly identify car parking spaces in accordance with the approved plans.

106. Mechanical Exhaust Ventilation

Certification from an appropriately qualified Mechanical Engineer, is to be submitted to the Principal Certifying Authority to demonstrate that the mechanical exhaust ventilation system has been installed in accordance with the relevant Australian Standards prior to completion and the issue of an Interim/Final Occupation Certificate.

Note: The following Australian Standard applied at the time of determination.

Australian/ New Zealand Standard AS/NZS 1668.2 - 2002 The use of ventilation and air conditioning in buildings - Ventilation design for indoor contaminant control

ON-GOING CONDITIONS THAT MUST BE COMPLIED WITH AT ALL TIMES

107. Visitor Carparking

Visitor carparking must be permanently available and clearly marked. The visitor car parking spaces area not to be reallocated.

Reason: To ensure visitor carparking is available at all times and is clearly identified.

108. Vehicle Egress Signs

Appropriate sign(s) shall be provided and maintained within the site at the point(s) of vehicular egress to compel all vehicles to stop before proceeding onto the public way.

Reason: To ensure pedestrian safety.

109. Noise Generation

Noise from the combined operation of all mechanical plant and equipment shall not generate noise levels that exceed 5dB (A) above the ambient background noise level measured at the nearest residential property boundary when measured in accordance with the Environment Protection Authority’s NSW Industrial Noise Policy.

CONDITIONS THAT MUST BE COMPLIED WITH PRIOR TO THE ISSUE OF ANY STRATA SUBDIVISION OR SUBDIVISION CERTIFICATE

110. Services

All utilities/services and street lighting is to be installed by the applicant/developer prior to the release of the Subdivision Certificate. Certification is to be provided to Council stating the above requirement has been complied with.

Reason: Public safety and to ensure services have been provided for the newly created lots.

111. Plans

If the Strata Subdivision Certificate Application is lodged with Council, the linen plan and nine (9) copies of the strata plan are to be lodged with the application, or if the Subdivision Certificate is obtained from an Accredited Certifier, a copy of the endorsed Subdivision Certificate plan is to be forwarded to Council within 14 days of lodgement with the “NSW Land and Property Information Division”.

Reason: To ensure compliance with the Conveyancing Act 1919.

112. Allocation of Parking and Visitor Parking

Carparking provided shall only be used in conjunction with the units and tenancies contained within the development in the case of Strata subdivision, and shall be individually allocated to residential units as part of their unit entitlement.

Visitor parking facilities required by this consent are to be designated as common property on the strata plan, and under no circumstances shall Strata By-Laws be created to grant exclusive use of nominated Visitors Parking spaces to occupants/owners of units or tenancies within the building.

Reason: Provision of adequate on site parking facilities to service the development.

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CITATION:	Manotik and anor v Warringah Council [2008] NSWLEC 1463
PARTIES:	APPLICANT Manotik Pty Limited and Tadros Holdings Pty Limited RESPONDENT Warringah Council
FILE NUMBER(S):	10647 of 2008
CORAM:	Brown C
KEY ISSUES:	Development Application :- demolition of an existing single storey dwelling previously used as a police station and the construction of a 3 storey apartment building - consideration of Desired Future Character Statement - streetscape/ character - view loss - overlooking - solar access
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Warringah Local Environmental Plan 2000
DATES OF HEARING:	08/09/08, 05/11/08, additional information 12/11/08
DATE OF JUDGMENT:	18 November 2008
LEGAL REPRESENTATIVES:	APPLICANT Mr C Gough, solicitor SOLICITORS Storey & Gough RESPONDENT Mr N Howie, solicitor SOLICITORS Willshire Webb Staunton & Beattie

Drawing Number	Dated	Prepared By
DA02 Revision E	7/11/2008	A H & B Architects
DA03 Revision G	7/11/2008	A H & B Architects
DA04 Revision I	16/09/2008	A H & B Architects
DA05 Revision A	16/09/2008	A H & B Architects
DA06 Revision F	7/11/2008	A H & B Architects
DA07 Revision E	16/09/2008	A H & B Architects
DA08 Revision E	16/09/2008	A H & B Architects
DA09 Revision A	16/09/2008	A H & B Architects
DA010 Revision A	16/09/2008	A H & B Architects
DA011 Revision A	16/09/2008	A H & B Architects

Warringah Section 94A Development Contributions Plan
Contribution based on total development cost of	$2,800,000.00
Contribution - all parts Warringah	Levy Rate	Contribution PayableCouncil Code
Total S94A Levy	0.95%	$26,6006923
S94A Planning and Administration	0.05%	$1,4006924
Total	1.0%	$28,000