Masterbuilt Pty Limited V Hornsby Shire Council
[2005] NSWLEC 212
•05/18/2005
Land and Environment Court
of New South Wales
CITATION: Masterbuilt Pty Limited v Hornsby Shire Council [2005] NSWLEC 212
PARTIES: APPLICANT:
Masterbuilt Pty Limited
RESPONDENT:
Hornsby Shire CouncilFILE NUMBER(S): 11390, 11391, 11553, 11554, 11556 - 11562 of 2004
CORAM: Pain J
KEY ISSUES: Appeal :- development application for multi-unit residential townhouses and residential flat buildings - operation of existing use rights - bulk and scale - internal amenity
LEGISLATION CITED: Berowra/ Cowan Development Control Plan
Environmental Planning and Assessment Act 1979 s 79C(1), s 108(3)
Environmental Planning and Assessment Regulations 2000 cl 41(1)
Hornsby Local Environmental Plan 1994
Low Density Multi-unit Housing Development Control Plan
Medium Density Multi-Unit Housing Development Control Plan
Residential Subdivision Development Control PlanCASES CITED: Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243;
Fodor Investments Pty Ltd v Hornsby Shire Council [2005] NSWLEC 71;
Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305;
Star Property Investments Pty Limited and Another v Leichhardt Municipal Council [2000] NSWLEC 235DATES OF HEARING: 05/04/2005
06/04/2005
DATE OF JUDGMENT:
05/18/2005LEGAL REPRESENTATIVES: APPLICANT:
RESPONDENT:
Mr A Galasso (barrister)
SOLICITORS:
Maddocks
Mr P Jackson (solicitor)
SOLICITORS:
Pike Pike & Fenwick
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESPain J
18 May 2005
11390, 11391, 11553, 11554, 11556 – 11562 of 2004
JUDGMENTMasterbuilt Pty Limited v Hornsby Shire Council
Introduction
1 These proceedings concern 11 separate but related appeals for the residential redevelopment of part of the land formerly known as the “La Mancha Caravan Park” at 901 to 903 Pacific Highway, Berowra (“the site”).
2 A view of the site and surrounding area was undertaken on the morning of the first day of the hearing with representatives from both parties. A number of local residents also attended and provided their evidence at this time. I thank Commissioner Brown for his assistance in the consideration of the appeals.
The site
3 The site is semi circular in shape with its eastern boundary adjoining the Pacific Highway. It is located on a prominent ridgeline and is generally level with a gradual fall around the periphery. The site is the first property in Berowra when entering from the south along the Pacific Highway. It is surrounded on most of its perimeter by bushland owned by the Crown to the west and north known as Berowra Valley Regional Park and to the south owned by the Metropolitan Aboriginal Land Council.
4 The northern, western and eastern boundaries of the site are located at the edge of a cliff. The site has an elevated position with views to the east across Ku-ring-gai National Park and to the west across Berowra Valley Regional Park. It is visually prominent in Berowra and from surrounding areas. It can be seen from other parts of Berowra and the Mount Ku-ring-gai industrial area and, obviously, from the bushland areas such as the Berowra Valley Regional Park. It has a total area of 6.4ha.
5 The site has previously been used as a caravan park and has existing use rights. The improvements associated with the caravan park use have been removed with the exception of the roads. Some native vegetation is scattered around the site.
The proposal
6 The entire 6.4ha site is subject to a subdivision approval by Hornsby Shire Council (“the Council”) on 17 March 2004 which created 33 lots (see Attachment 1):
· Lot 1 comprises a community lot of 2.74ha, made up of a road reserve (0.888ha) and open space, including a perimeter fire trail (1.85ha),
· Lot 2 comprises an existing dwelling (0.264ha),
· Lots 3 to 29 and 32 comprises individual development lots (1.983ha), and
· Lots 30, 31 and 33 comprises larger development lots (1.396ha).
7 The Council has approved dwelling houses on Lots 7 to 26. The appeals relate to eight detached dwellings not approved by the Council for Lots 32, 3 – 6, 27-29 as follows:
· Matter No. 11553 of 2004 Lot 32 DA 1150/04 2 storey duplex,
· Matter No. 11556 of 2004 Lot 3 DA 1077/04 2 storey dwelling,
· Matter No. 11557 of 2004 Lot 4 DA 1076/04 2 storey dwelling,
· Matter No. 11558 of 2004 Lot 5 DA 1078/04 2 storey dwelling,
· Matter No. 11559 of 2004 Lot 6 DA 1079/04 2 storey dwelling,
· Matter No. 11560 of 2004 Lot 27 DA 1100/04 2 storey dwelling,
· Matter No. 11561 of 2004 Lot 28 DA 1101/04 2 storey dwelling,
· Matter No. 11562 of 2004 Lot 29 DA 1102/04 2 storey dwelling.
8 These eight appeals were not ultimately contested as the Council resolved to enter into consent orders prior to the hearing. The consent orders are addressed later in the judgment.
9 The appeals also relate to three multi-unit housing proposals:
· Matter No. 11390 of 2004 Lot 30 DA 1480/04 9 x 2 storey townhouses and subdivision,
· Matter No. 11391 of 2004 Lot 31 DA 1481/04 20 x 2 storey townhouses and subdivision and
· Matter No. 11554 of 2004 Lot 33 DA 1479/04 2 x 3 storey residential flat buildings containing 20 units and subdivision.
10 The multi-unit housing appeals were contested and were subject to expert town planning evidence from Mr Tony Moody for the Council and Mr Andrew Minto for the Applicant. Mr Moody and Mr Minto prepared a joint report outlining the areas of disagreement. Additionally, local residents Mr James McRobert, Mr Grant Hyman, Ms Jacqueline Steele, Ms Christine McLeod, Mr John Vaughan, Mr Robert Ledger, Ms Elizabeth Wood and Mr John Castelyn gave evidence at the site view opposing the developments on Lots 30, 31 and 33.
11 If the whole development of the 6.4ha was approved it would consist of 28 houses (one existing now), two lots of townhouses at the front and southern edge of the site and one residential flat building at the centre of the site. Internal roads will be constructed within the site to allow access to all the approved subdivision lots. The community lot is around the perimeter of the site on the southern, western and northern boundaries and is intended in part to be an asset protection zone to protect against fire. It cannot therefore be maintained as natural bushland such as adjoins the site.
12 There was agreement that the site has existing use rights because of the previous approval for use of the site as a caravan park. Section 108(3) of the Environmental Planning and Assessment Act 1979 (“the Act”) states:
- An environmental planning instrument may, in accordance with this Act, contain provisions extending, expanding or supplementing the incorporated provisions, but any provisions (other than incorporated provisions) in such an instrument that, but for this subsection, would derogate or have the effect of derogating from the incorporated provisions have no force or effect while the incorporated provisions remain in force.
13 Clause 41(1) of the Environmental Planning and Assessment Regulation 2000 (“the Regulation”) states that:
- An existing use may, subject to this Division:
…
(d) be changed to another use, including a use that would otherwise be prohibited under the Act.
14 The combined effect of s 108(3) of the Act and cl 41(1) of the Regulation is that planning instruments that derogate from cl 41(1) do not apply to the assessment of applications on sites with existing use rights. The tension between the application of existing use rights and planning laws is set out albeit in a different context in Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305. McHugh JA, with whom Hope and Samuels JJA agreed, said at 309-10.
- The object of `existing use' provisions in town planning legislation is to permit the continuation of the use of land for any purpose for which it was used immediately before the passing of the legislation even though the terms of the legislation prohibit that purpose wholly or partly or upon conditions. The rationale of these saving provisions is that it is unjust to deprive an owner of the right to use his land for an existing purpose. Because `existing use' provisions are incompatible with the main objects of the legislation of which they form part, the courts have had to develop principles which reconcile the right of owners to have the full benefit of the existing use of the land with the right of the local authority to enforce the conflicting objectives of town planning legislation. The courts have done so by refusing to categorise an `existing use' so narrowly that natural changes in the method of using the land or carrying on a business or industry will render an existing use right valueless. At the same time, the courts have been concerned not to categorise the purpose of an existing use so widely that the land or premises could be used for a prohibited purpose which was not part of its use at the commencement of the legislation.
15 In assessing any such development application, relevant matters arising under s 79C(1) of the Act must be taken into account, but any provisions in any environmental planning instrument which derogate from the existing use have no direct force and effect (Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243 per Pearlman J at [35]). While recognising this, in Fodor Investments Pty Ltd v Hornsby Shire Council [2005] NSWLEC 71 at [17] Senior Commissioner Roseth set out the following principles for considering applications made under existing use rights:
Planning principles: Assessment of proposals on land with existing use rights
Four questions usually arise in the assessment of existing use rights developments, namely:
How do the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites?
While planning controls, such as height, floor space ratio and setbacks do not apply to sites with existing use rights; they have relevance to the assessment of applications on such sites. This is because the controls apply to surrounding sites and indicate the kind of development that can be expected if and when surrounding sites are redeveloped. The relationship of new development to its existing and likely future context is a matter to be considered in all planning assessment.
What are the impacts on adjoining land?What is the relevance of the building in which the existing takes place?
… (not relevant here)
The impact on adjoining land should be assessed as it is assessed for all development. It is true that where, for example, a development control plan requires three hours of sunlight to be maintained in adjoining rear yards, the numerical control does not apply. However, the overshadowing impact on adjoining rear yards should be reasonable.
What is the internal amenity?
Internal amenity must be assessed as it is assessed for all development. Again, numerical requirements for sunlight access or private open space do not apply, but these and other aspects must be judged acceptable as a matter of good planning and design. None of the legal principles discussed above suggests that development on sites with existing use rights may have lower amenity than development generally.
16 In these proceedings, the first, third and fourth principles are relevant taking into account the particular circumstances of this development.
17 While the relevant Council environmental planning instruments and development control plans do not apply directly, it is useful to consider these as they provide important context for the three appeals particularly in relation to what surrounds or is likely to surround the site. The site is within the Residential A (Low Density) Zone and the Residential AS (Low Density – Sensitive Lands) Zone under the Hornsby Local Environmental Plan 1994 (“the LEP”). Lots 31 and 33 are zoned Residential A (Low Density) and Lot 30 is zoned Residential AS (Low Density – Sensitive Lands). Multi-unit housing is a permissible use in both zones, with consent, although there are different provisions within the Low Density Multi-unit Housing Development Control Plan that provide a different level of density within the two zones. In addition to the LEP, the other Council planning documents that were provided to the Court were:
· Berowra/ Cowan Development Control Plan (in force 13 November 1996) (“the Berowra/ Cowan DCP”);
· Medium Density Multi-Unit Housing Development Control Plan (in force 7 March 1995) (“the Medium Density DCP”);
· Low Density Multi-unit Housing Development Control Plan (in force 26 December 1994) (“the Low Density DCP”); and
· Residential Subdivision Development Control Plan (in force 21 March 1995) (“the Subdivision DCP”).
18 The key considerations that arise from Fodor are:
(i) the bulk and scale of the multi-unit housing proposals in relation to what is permissible on surrounding sites and the bushland context;
(ii) the visual impact of the multi-unit housing proposals from the Pacific Highway, the Mount Ku-ring-gai industrial area and on the surrounding Berowra and Berowra Heights area; and
(iii) the amenity of the multi-unit housing proposals, particularly in relation to solar access, visual impact, private open space and landscaping/setbacks.
How does the site relate to what is permissible on surrounding sites?
19 The first planning principle as expressed in Fodor asks how the bulk and scale (as expressed by height, floor space ratio and setbacks) of the proposal relate to what is permissible on surrounding sites. This principle seeks to establish an appropriate context for the assessment of the proposed development.
20 This site is right on the edge of Berowra and consequently is surrounded by bush on about three-quarters of its boundary. About one-quarter of the boundary running from the Pacific Highway adjoins low density residential development, predominantly two storey houses with gardens. Unlike Fodor, there is not extensive adjoining development.
21 In relation to the character of the site, with the benefit of the site view, the Court’s conclusion is that the site is relatively isolated from other development in the Berowra area. Its eastern boundary adjoins the Pacific Highway and apart from a small area on its northern boundary, where it adjoins existing residential development, the remainder of the boundary adjoins natural bushland. It is the first property in Berowra on the southern approach along the Pacific Highway, next to extensive bushland. It is therefore relevant to consider both the character of the site and the character of the general Berowra and Berowra Heights area in determining the appropriate context for the assessment of the multi-unit proposals.
22 In my view, the character of the area could be categorised in the following way. The Berowra and Berowra Heights areas sit within a bushland setting with much of the residential development having views and/or access to natural bushland. The residential development is almost exclusively single dwellings although the Court was directed to one townhouse development, well away from the site on the Pacific Highway at the edge of Berowra to the north. With residential development located on ridges, the visual impact of development on the natural bushland setting is a relevant consideration. The Berowra and Berowra Heights areas could be comfortably described as open, landscaped, low density residential area. They have the feel of a village because of their setting amongst natural bushland, their modest level of development and their lack of connectivity to other nearby urban areas.
23 In considering the appropriate context for the proposed development, it must be acknowledged that both the Residential A (Low Density) Zone and Residential AS (Low Density – Sensitive Lands) Zone currently permit multi-unit housing. While this was a fundamental concern of the local residents, the existence of multi-unit housing, per se, is not a matter that could support the rejection of the development applications. Mr Moody accepted that multi-unit housing could be accommodated on the site but argued not in the form proposed in the applications.
24 The desired future character contemplated by the Council planning controls is also relevant to consider. Based on the LEP, the residential areas of Berowra and Berowra Heights are largely within the Residential A (Low Density) Zone or Residential AS (Low Density – Sensitive Lands) Zone. There is a small area of land within the Residential B (Medium Density) Zone near the Berowra Railway Station (some 2km from the site). While it was submitted to the Court that consideration was being given by the Council to allowing residential flat buildings in the business areas of Berowra, I do not propose to give any weight to this submission as the proposal to allow this form of development is in the early stages of planning.
25 The issue of whether the three proposals should be granted consent in relation to the relevant planning principles in Fodor will be considered, taking into account my findings outlined above on the relevant character of the Berowra area.
Lot 30 - 9 x 2 storey townhouses and subdivision (11390 of 2004)
26 The proposal provides for the erection of 9 x 2 storey townhouses and the creation of a separate Community Title lot for each townhouse. The proposed lots will form part of the original Community Title subdivision (see Attachment 2). The area proposed is on the southern edge of the site overlooking the community lot and then bushland below that.
27 The Statement of Environmental Effects states that the site area is 3,159sq m and the proposed townhouses have a total floor space of 1,760sq m. This provides for a floor space ratio (FSR) of 0.56:1 and site coverage of 44.9 per cent.
- (i) Bulk and scale of Lot 30
28 While accepting that the proposal need not comply with the Council’s development standards, Mr Moody prepared a table for the multi-unit housing appeals comparing the proposed development with the Council’s planning controls to establish if the proposed development was acceptable as a matter of good planning and design. This showed that the proposals exceeded the numerical standards in the Low Density DCP.
29 Based on Mr Moody’s comparison with the Low Density DCP, the proposal exceeds the density (one dwelling per 351sq m compared to one dwelling per 400sq m), FSR (0.56:1 compared to 0.4:1), site coverage (44.9 per cent compared to 40 per cent), number of attached dwellings (three units attached compared to a maximum of no more than two units) and number of storeys (the proposal is two storeys compared to an allowance of one storey except at the street frontage).
30 Mr Moody noted that the proposed townhouses have little spatial separation between the buildings with only three small gaps separating the continuous line of townhouses. The density is in the order of one dwelling per 350sq m whereas the density on the adjoining locality is in the order of one dwelling per 600sq m to 700sq m. The proposal exceeds the allowable residential density in the LEP for the Residential AS (Low Density – Sensitive Lands) Zone of one dwelling per 600sq m, the multi-unit housing density for the Residential AS (Low Density – Sensitive Lands) Zone of one dwelling per 400sq m and the FSR for the adjoining residential environment of 0.4:1.
31 Mr Moody referred to the planning principles in Fodor and stated that while the Council’s planning controls do not apply to sites with existing use rights, they assist as an indicator for development that is likely to occur. When considering the inadequate setbacks, excessive bulk and scale, site coverage and density, Mr Moody concluded that the proposed development is unsatisfactory and incompatible with the existing and likely future character of the area.
32 The issues raised by the local residents generally addressed the potential impact on the area they described as quiet, family orientated and made up of single residential dwellings. Their evidence did not suggest a direct impact on any particular property but a general incompatibility with the character of the area through residential development that was seen to be inappropriate. The local residents indicated that both the townhouse developments were inappropriate for the Berowra area.
(ii) Amenity of Lot 30
33 Mr Moody also stated that the rear courtyards are too small and poorly orientated, being to the south of the proposed townhouses. He stated this is a direct consequence of the proposed subdivision and is contrary to accepted planning guidelines. Mr Moody described the proposal as an overdevelopment with the number of townhouses creating the poor solar access.
- (i) Bulk and scale of Lot 30
34 In relation to the concerns over bulk and scale, site coverage and density Mr Minto rejected Mr Moody’s comparison with the Council's planning controls because of the existing use rights that apply to the site. He stated that while the proposal might be different to the adjoining low density development to the north of the site it is not so different as to be inappropriate, nor does it possess any qualities that would warrant the refusal or modification of the application. Mr Minto also rejected any suggestion that the amounts of private open space in the front setbacks are unsuitable for private open space.
(ii) Amenity of Lot 30
35 Mr Minto acknowledged that the solar access is not ideal but is acceptable considering the configuration of Lot 30, the topography that provides a fall from front to rear, the availability of open space to the north of the townhouses in the setback area and importantly, the good solar access to the townhouses.
- (i) Bulk and scale of Lot 30
36 While part of the Council’s evidence includes a comparison of the proposed development and the Council’s planning controls I cannot and do not apply these controls in my analysis. Applying general planning principles as identified in Fodor and as required under s 79C(1), I agree with the evidence of Mr Moody that minimal separation between the townhouses creates an overly bulky appearance when viewed from within the site. The bulk is inconsistent with the form of development envisaged by the Council and contrasts markedly with the lower density form of the existing townhouse development located to the north of the site at the other end of Berowra. This contrast is more notable given that Lot 30 is located in the Residential AS (Low Density – Sensitive Lands) Zone that allows for lower density development than sits within the Residential A (Low Density) Zone.
37 From the more distant location at the Mount Ku-ring-gai industrial area, the bulk will be noticeable because the limited separation between buildings will be less obvious when read amongst the houses approved by the Council on Lots 22 to 29.
38 I consider that, particularly in regard to pars 21-24 above, the development is out of character with the current and future development in the Berowra and Berowra Heights area.
(ii) Amenity of Lot 30
39 I note that Mr Moody and Mr Minto agreed that the quantity of private open space satisfied the requirements of the Australian Model Code for Residential Development (AMCORD) and on this basis, I accept that it is adequate.
40 In my opinion, the location of the private open space at the rear is a significant flaw in the design. Mr Moody and Mr Minto agreed that the solar access to the courtyards is poor although the degree of departure from the prescriptive measures in the Low-Density DCP was not addressed by either expert. I do not accept Mr Minto's evidence that this deficiency is overcome through the provision of good solar access to the townhouse and the opportunity to use the front setback area for private recreational purposes.
41 Appropriate solar access to the internal areas of the townhouse is an important requirement however it is independent of the need to provide solar access to private open space areas. Providing there was adequate screening and protection, the front setback areas could be used to complement other areas of private recreation. In this case, however, the front setback area provides the only opportunity for solar access in winter for all townhouses. I am also not convinced that the available area could achieve a reasonable level of privacy without unacceptably imposing on the streetscape.
42 I also accept Mr Moody's evidence that the configuration of Lot 30 does not provide reasonable justification for inadequate solar access. I agree with Mr Moody's evidence that less development would provide opportunity for more adequate solar access into the rear courtyards.
43 In my view, the inadequate solar access to the private open space areas and the bulk of the proposed townhouses are significant issues. A less dense development appropriately designed would enable the solar access to be appropriately addressed in my view. These are sufficient grounds to support the refusal of this development application, particularly after considering s 79C(1)(b) of the Act. While medium density development can be approved for the site where the relevant statutory controls are not complied with given the existing use rights enjoyed by the Applicant, having regard to the considerations in s 79C(1) of the Act and Fodor I do not consider that this proposal is acceptable on this site.
Lot 31 - 20 x 2 storey townhouses and subdivision (11391 of 2004)
44 The proposal provides for the erection of 20 x 2 storey townhouses and basement carparking. Lot 31 fronts the Pacific Highway although the road reserve is wide at this point and the carriageway is some 40m to 60m from the lot. The townhouses are to be constructed in four groups of five dwellings over a common basement car park. The two end dwellings in each of the four corners of the proposal will each have access to a rooftop viewing platform and pergola via an internal stair (see Attachment 3).
45 The proposal provides for the strata subdivision of the townhouses and the proposed lots will then form part of the original Community Title subdivision. The Statement of Environmental Effects states that the site area is 4,818sq m and the proposed townhouses have a total floor space of 3,592sq m. This provides for an FSR of 0.745:1 and site coverage of 45.4 per cent.
- (i) Bulk and scale of Lot 31
46 Based on Mr Moody’s comparison with the Low Density DCP, the proposal exceeds the density (one dwelling per 378sq m compared to one dwelling per 350sq m), FSR (0.74:1 compared to 0.4:1), site coverage (45.4 per cent compared to 40 per cent), number of attached dwellings (five units attached in four groups compared to a maximum of no more than two units) and number of storeys (the proposal is two storeys compared to an allowance of one storey except at the street frontage). Mr Moody stated that the bulk, scale and density of the proposed development will be totally out of character with the existing adjoining residential environment both now and in the future. The proposed lots vary in size from 104sq m to 378sq m. This should be compared to the 500sq m minimum lots applicable to the adjoining residential locality under the LEP. Further, many of the proposed lots do not comply with the density provision of one dwelling per 250sq m in the Low Density DCP.
47 He stated that the proposal is uncharacteristic because of the excessive site coverage and hard paved surfaces and this is highlighted in the comparison with the Council’s planning controls where it exceeds the 40 per cent site coverage requirement and substantially exceeds the 0.4:1 FSR in the Low Density DCP. Other matters that impact on the character of the locality are the continuous courtyard wall and the inadequate spatial separation between groups of townhouses.
48 The local residents again submitted that the proposal creates an unacceptable impact on the character of the area through residential development that is inappropriate for the area.
(ii) Visual Impact of Lot 31
49 Mr Moody stated that the proposal would provide an undesirable visual impact when viewed from the Pacific Highway. Notwithstanding the setback of 40m to 60m, the setback largely comprises land owned by the Roads and Traffic Authority (“the RTA”) or used as Trig Station Hanley. He stated that a development should provide satisfactory landscaping on its own site and not rely on adjoining properties for landscaping.
(iii) Amenity of Lot 31
50 Mr Moody gave evidence that the site coverage and extent of the basement car park also severely limited the ability of the proposal to provide soft landscaping.
51 Mr Minto relied on the finding in Star Properties Investments Pty Limited & Anor v Leichhardt Municipal Council [2000] NSWLEC 235 at [61] that a proposal does not need to comply with the Council’s development standards and other planning controls to overcome the numerical non-compliances raised by Mr Moody. He reiterated that while Lot 31 differs to single dwelling houses, the application does not possess qualities that warrant refusal. Mr Minto stated that it is important to consider the proposal in the context of the site having no real relationship with any neighbouring residential property, apart from four residential properties along part of the northern boundary.
(ii) Visual Impact of Lot 31
52 Mr Minto’s opinion is that there are only limited views of the site available when travelling along the Pacific Highway in a northerly direction. A greater view is available when travelling in the opposite direction but these views are obscured by the angle of view and the substantial setback.
(iii) Amenity of Lot 31
53 He disagreed with Mr Moody over the provision of soft landscaped area. He stated that the perimeter deep soil zones and podium planting will provide meaningful levels of planting for the development.
Findings
(i) Bulk and scale of Lot 31
54 While part of the Council’s evidence includes a comparison of the proposed development and the Council’s planning controls I cannot and do not apply these controls in my analysis. Applying general planning principles as identified in Fodor and as required under s 79C(1), I agree with the conclusions of Mr Moody. If the proposed development is considered in the context outlined in pars 21-24 then Mr Moody's concerns over the bulk, scale and density of the proposed development are justified.
55 Accepting that there is always going to be an interface with different forms of residential development, I am not convinced that the bulk, scale and density of the proposal sits comfortably with the lower density development on the site. The eastern and western elevations are some 75m in length. Only a central 4m access corridor makes some attempt to break up the length of building. The proposed viewing areas with their metal pergolas also increase the perception of height and bulk. I acknowledge that the Applicant offered to remove the proposed viewing areas and also the 2 x 2 bedroom units in the eastern townhouses to reduce the bulk from this elevation, however a more comprehensive review of the overall design is required to provide a design that is more responsive to its context.
56 The minimal setbacks exacerbate the perception of bulk when viewed from nearby streets. The design provides for first floor balconies that overlook the street. These balconies are substantial structures and provide for full height common walls at the first floor level. They are clearly perceived as part of the overall building form. The balconies are generally set back around 4m to 5m from the property boundary and 3m from the proposed fencing. The main body of the townhouses are set back around 5m to 6m from the property boundary.
(ii) Visual impact of Lot 31
57 The perception of the proposed development from the Pacific Highway was a matter of dispute between Mr Moody and Mr Minto. The 40m to 60m setback from the carriageway of the Pacific Highway to the townhouses will reduce the impact on how the townhouses are viewed from this location, although the building form will be noticeable, particularly travelling in a southerly direction. Even at this considerable setback, I accept that the bulk will be noticeable in the low scale context of Berowra. I agree with Mr Moody that little weight should be given to the use of the RTA and Trig Station Hanley land for landscaping to provide screening for the townhouses. Indeed the Applicant did not rely on this area for this purpose. I see no problem with this area being used to supplement an already satisfactory area of landscaping however it is not appropriate to rely on landscaping on land not owned by the Applicant.
- (iii) Amenity of Lot 31
58 While Mr Moody raised concerns over the ability to provide suitable landscaping in the central area of the townhouses, above the basement car park, I accept Mr Minto's evidence that the raised planter beds can provide a suitable level of landscaping in this area. In my view, it is not necessary that this area provide deep soil planting because it is largely set aside for private courtyards. The raised planter beds can provide landscaping to achieve a level of privacy without impacting on solar access.
59 The street setback area for the whole lot provides for hard paving and some landscaping although for a development of this size the area designated for landscaping is limited. This is totally inadequate on this site for a multi-unit development of this size.
60 In my view, the inadequate street setbacks, the lack of landscaping and the bulk of the proposed townhouses are significant issues. I also consider that, particularly in regard to pars 21-24 above, the development in its current form is out of character with the current and future development in the Berowra and Berowra Heights areas. These issues are sufficient to support the refusal of the development application having regard to the considerations in s 79C(1) of the Act.
Lot 33 - 2 x 3 storey residential flat buildings containing 20 units and subdivision (11554 of 2004)
61 The proposal provides for the erection of 2 x 3 storey residential flat buildings. Each building is three storeys in height with the upper level set back from the lower levels. The 10 units in each building will consist of 6 x 3 bedroom and 4 x 2 bedroom units and have four units on each of the lower levels and two units on the upper level. Car parking is to be provided in a basement car park with internal access provided between units and their respective car spaces. Access throughout the building is provided by a shared lift and stairs (see Attachment 4). The buildings are in the centre of the overall subdivision.
62 The Statement of Environmental Effects states that the site area is 5,123.7sq m and the proposed units, including lobbies, have a total floor space of 3,294sq m. This provides for an FSR of 0.64:1 and site coverage of 28.5 per cent.
The Council’s evidence
(i) Bulk and scale of Lot 33
63 Based on Mr Moody’s comparison with the Low Density DCP, the proposal exceeds the density (one dwelling per 256sq m compared to one dwelling per 350sq m), FSR (0.64:1 compared to 0.4:1), number of attached dwellings (two building of ten units each compared to a maximum of no more than two units) and number of storeys (the proposal is three storeys compared to an allowance of one storey except at the street frontage) of possible future development in the area.
64 The significant issue raised by Mr Moody is the atypical height, bulk and scale of the proposed buildings although he acknowledged that the buildings are not likely to be viewed from more distant vantage points. His concerns relate exclusively to the upper level of the proposed buildings. Even though the top level is proposed to be set back from the lower two levels, Mr Moody stated that it will nonetheless be readily visible from within the site itself. He suggested that his concerns could be largely overcome if the upper level was reduced to a single unit.
65 The local residents expressed a general view that residential flat buildings created an unacceptable impact on the character of Berowra and were inappropriate for the Berowra area.
- The Applicant’s evidence
(i) Bulk and scale of Lot 33
66 Mr Minto disagreed with the conclusions of Mr Moody. He stated that the proposal is acceptable as it is located within the subdivision and occupies a position close to its centre. Even though it is three storeys in height, the design addresses the adjoining development by providing a flat roof with increased setbacks at the upper level. When this is combined with the generous area available for landscaping around its perimeter and the Council approval of two-storey residential dwellings adjoining the buildings, Mr Minto concluded that the proposal is appropriate in relation to height, bulk and scale.
- Findings
(i) Bulk and scale of Lot 33
67 While part of the Council’s evidence includes a comparison of the proposed development and the Council’s planning controls I cannot and do not apply these controls in my analysis. Rather I apply general planning principles as identified in Fodor and as required under s 79C(1). The issue between Mr Moody and Mr Minto centres on the appearance of the buildings from within the site. In balancing views of Mr Moody and Mr Minto I prefer the conclusions of Mr Moody. I accept Mr Moody’s assessment that the upper level is inappropriate when considered in its context. There is a significant difference in the building form and bulk of two storey and three storey developments. Clearly, an upper level that does not impose on the more modest residential density of the surrounding development is more desirable. Even with the proposed setbacks on the upper level, I accept Mr Moody's evidence that it will still be clearly visible, read as a third level and consequently relate unacceptably to its adjoining development.
68 I also consider that while these buildings will be in the centre of the site and if built will be surrounded by the numerous houses already approved around the perimeter of the site and some of the trees to be retained on the site the buildings will be partially visible from surrounding areas such as Berowra Heights and the Mount Ku-ring-gai industrial area. This will contribute to the bulky appearance and scale of development on the site.
69 I consider that, particularly in regard to par 21-24 above, the development is substantially out of character with current and future development in the Berowra and Berowra Heights areas. In addition to the bulk of the upper level of the residential flat buildings in my view this supports the refusal of this appeal having regard to the considerations in s 79C(1) of the Act.
70 In the Statement of Issues filed by the Council there was significant overlap in relation to each of the eight appeals now the subject of consent orders as set out at par 7. The issues in common between the appeals were:
Particulars(b) The proposal does not promote the well-being of the area’s population (clause 2(1)(d)).(a) The proposal does not protect and enhance the environmental qualities of the area (clause 2(1)(b)).
2. Whether the proposed bulk and scale is consistent with the character of the environment of the relevant residential zone.
3. Whether the proposed setbacks are satisfactory and in character with the environment of the relevant residential zone.
4. Whether there is adequate area within the proposed setbacks for landscaping having regard to the inadequate setbacks of the proposal and proposed driveways.
5. Public Interest.
71 No objections were received in relation to any of the proposed developments the subject of these appeals. Mr Moody and Mr Minto prepared a supplementary report (“the supplementary report”) on the planning merits of each of the eight appeals. The Council did not otherwise bring forward any evidence in relation to the identified issues in each appeal. No issue was raised by the Council or in the supplementary report in relation to any of the issues common to all the appeals.
Lot 32 – 2 storey duplex (11553 of 2004)
72 In addition to the issues in common the Council raised specific issues in relation to Lot 32 as follows:
Particulars
(b) The proposal does not provide for development that is within the environmental capacity of a low density residential environment (objective (c)).(a) The proposal does not promote a development which is compatible with a low density residential environment particularly in terms of its bulk, scale and density (objective (b)).
2. Whether there will be adequate vehicular access to the garages given the location of support beams/posts for the balcony and pergola and the location and width of the garage door openings.
3. Whether the proposed courtyard fencing will have an adverse impact on the streetscape and whether adequate details have been provided of the proposed fencing in terms of materials of construction.
73 Mr Moody and Mr Minto agreed that there were in no issues in relation to this appeal sufficient to warrant refusal subject to the provision of a 1.5m high privacy screen to the western first-floor balcony. This matter is addressed through an additional condition of approval.
74 The supplementary report indicates that the proposed duplex will not result in any unreasonable impacts internal or external to the site and will provide future residents with an appropriate level of amenity. Private open space faces north with the main living rooms generally to the north and adjacent to the private open space. Additionally the proposal provides appropriate setbacks and appropriate vehicular access and car parking. There is no basis on which the Court considers that a consent order in this appeal ought be refused.
Lots 3 to 6 – 4 x 2 storey dwellings (11556 - 11559 of 2004)
75 In addition to the issues in common the Council raised specific issues in relation to Lots 3 to 6:
(a) The proposal does not promote a development which is compatible with a low density residential environment particularly in terms of its bulk, scale and density (objective (b)).Particulars
(b) The proposal does not provide for development that is within the environmental capacity of a low density residential environment (objective (c)).
2. Whether each proposal in conjunction with the other three proposals will create an unreasonable streetscape impact when viewed from the internal access road.
76 Mr Moody and Mr Minto agreed that there are in no issues in relation to this appeal sufficient to warrant refusal, subject to the provision of privacy screens to some of the dwellings and the provision of appropriate fencing to Lot 3. These matters were addressed through additional conditions of approval.
77 Lots 3 to 6 are single allotments orientated such that the rear yard face north and adjoin four existing single residential properties to the north of the subject site. Vehicular access to each of these sites is via the proposed internal access road.
78 The supplementary report indicates that each of the proposed four dwellings is considered to be visually compatible with the dwellings on the adjoining properties, noting that each of these dwellings is also two storeys. The north facing courtyards are, on average, much greater than Council requirements while the average site coverage only slightly exceeds the requirement (41 per cent compared to 40 per cent). The dwellings provide appropriate internal setbacks consistent with that contemplated by the Subdivision DCP and appropriate vehicular access, car parking and areas of private open space. There is no basis on which the Court considers that consent orders ought be refused.
- Lots 27 to 29 – 3 x 2 storey dwellings (11560 - 11562 of 2004)
79 In addition to the issues in common the Council raised specific issues in relation to Lots 27 to 29:
Particulars
(a) The proposal does not promote a development which is compatible with a sensitive low density residential environment particularly in terms of its bulk, scale and density (objective (b)).
(c) The proposal does not provide for development that is within the environmental capacity of a sensitive low density residential environment (objective (c)).(b) The proposed development is not sensitive to the land capability and established character of a sensitive low density environment (objective (b)).
2. Whether there is unreasonable adverse overlooking from the first floor windows and balconies to adjoining residences.
3. Whether the proposed internal layout provides satisfactory solar access for future occupants of the development.
4. Whether the cumulative impact of the proposed dwelling and the adjacent dwellings on Lots 27 and 28 in terms of bulk, scale and density is satisfactory when viewed from the internal road and adjoining lands and whether such impact is compatible with a sensitive low density residential environment.
80 Lots 27 to 29 are single allotments orientated so that the front facades face north and adjoin the proposed internal access road. Mr Moody and Mr Minto agreed that there are no issues in relation to this appeal sufficient to warrant refusal.
81 The supplementary report indicates that each of the proposed dwellings is considered to be of a form consistent with the height of dwellings in the locality. It is not considered that the dwellings will result in any unreasonable external or internal impacts because of the acceptable levels of solar access to the internal living areas, appropriate internal setbacks and appropriate vehicular access, car parking and private open space. There is no basis on which the Court considers that consent orders ought be refused.
Orders
82 I make the following orders:
1. Development application 1150/04 for a 2 storey duplex on Lot 32 in Matter No. 11553 of 2004 is approved subject to the conditions of consent in Attachment 5;
2. Development application 1077/04 for a 2 storey dwelling on Lot 3 in Matter No. 11556 of 2004 is approved subject to the conditions of consent in Attachment 6;
3. Development application 1076/04 for a 2 storey dwelling on Lot 4 in Matter No. 11557 of 2004 is approved subject to the conditions of consent in Attachment 7;
4. Development application 1078/04 for a 2 storey dwelling on Lot 5 in Matter No. 11558 of 2004 is approved subject to the conditions of consent in Attachment 8;
5. Development application 1079/04 for a 2 storey dwelling on Lot 6 in Matter No. 11559 of 2004 is approved subject to the conditions of consent in Attachment 9;
6. Development application 1100/04 for a 2 storey dwelling on Lot 27 in Matter No. 11560 of 2004 is approved subject to the conditions of consent in Attachment 10;
7. Development application 1101/04 for a 2 storey dwelling on Lot 28 in Matter No. 11561 of 2004 is approved subject to the conditions of consent in Attachment 11;
8. Development application 1102/04 for a 2 storey dwelling on Lot 29 in Matter No. 11562 of 2004 is approved subject to the conditions of consent in Attachment 12;
9. Development application 1480/04 for 9 x 2 storey townhouses and subdivision on Lot 30 in Matter No. 11390 of 2004 is refused;
10. Development application 1481/04 for 20 x 2 storey townhouses and subdivision on Lot 31 in Matter No. 11391 of 2004 is refused;
11. Development application 1479/04 for 2 x 3 storey residential flat buildings containing 20 units and subdivision on Lot 33 in Matter No. 11554 of 2004 is refused;
12. No order as to costs;
13. Exhibits are to be returned.
WITHOUT PREJUDICE CONDITIONS OF CONSENT
MASTERBUILT PTY LIMITED v HORNSBY SHIRE COUNCIL
LAND AND ENVIRONMENT COURT PROCEEDINGS
NO. 11553 OF 2004
Deferred Commencement Consent
Deferred commencement consent is granted pursuant to s80(3) of the Environmental Planning and Assessment Act 1979 for the erection of two (2) dwellings and community title subdivision of one (1) lot into two (2) lots of Lot 32, No 901-903 Pacific Highway, Berowra in accordance with Development Application No 1150/2004, together with all supporting documentation including the Statement of Environmental Effects and accompanying documents which will form part of the consent and the following plans:
1. Plan of Proposed Subdivision, prepared by Richards & Loftus, Job No. 281-32, Issue A, dated June 2004.
2. Site Analysis Plan, prepared by Masterbuilt Pty Ltd, dated June 2004.
3. Site Data Plan, prepared by Masterbuilt Pty Ltd, dated June 2004.
4. Plans & Elevations, prepared by Jackson Architects, Drawing DA 01, Revision A, dated 15 March 2004.
5. Landscape Concept Plan, prepared by PSB, Revision C, dated 16 June 2004.
6. Stormwater Management Plan and Sediment and Erosion Control Plan, prepared by Masterbuilt Pty Ltd, dated June 2004.
A. Deferred Commencement Conditions
1. This consent shall have no force until such time as Council has released the Subdivision Certificate for No 901-903 Pacific Highway, Berowra related to Development Application No 2228/03.
B. Operational Conditions
Upon satisfaction of all the matters set out in the deferred commencement conditions of consent, the consent will then become effective and operative and the development shall be carried out in accordance with the following conditions.
GENERAL
Protection of Trees
1. In accordance with Hornsby Shire Council's Tree Preservation Order, all existing trees shall be retained except where Council's written consent has been obtained for removal, or where after approval of the relevant development application, trees stand within 3 metres of approved buildings or within the alignment of approved vehicular access or parking areas.
Underground utility installations are to be located at least 3m from the trees protected by this condition.
Use of Materials
2. The finished surface materials, including colours and texture of any building and/or hard paved areas, shall blend with the surrounding environment and shall be non-glare. If reflective glass is to be used externally in the construction of the building, the reflectivity index of the glass is to be no more than 20%. Details to satisfy this condition shall be shown on the Construction Certificate plans.
Fencing
3. The boundary between the courtyard areas shall be enclosed with 1.8m high lapped and capped fences screens/walls to protect the privacy of future and adjoining occupants.
Privacy
4. A 1.5m high louvre screen shall be erected along the western edge of the first floor balcony on Lot 32 as indicated in red on the approved plans, to establish an appropriate level of privacy in relation to adjoining properties resulting from this development.
DEVELOPMENT ENGINEER
Sydney Water
5. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to “ Your Business” section of Sydney Water’s web site at then the “e-developer” icon or telephone 13 20 92.
Following the application, a “Notice of Requirements” will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.
The Notice must be submitted to the Principal Certifying Authority prior to the Construction Certificate being issued.
The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to occupation of the development/release of the plan of subdivision.
Access Way/Driveway
6. The internal driveway and parking areas are to be designed and constructed in accordance with Australian Standard 2890.1.
7. The vehicular crossing shall have a minimum width of 3.5m at the property boundary alignment.
8. The vehicular crossings shall be designed and constructed in accordance with Council’s Civil Works - Design and Construction Specification 1999.
Drainage
9. Stormwater drainage from the site shall be designed and constructed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years. The design shall:
(a) Be in accordance with Hornsby Shire Council Civil Works – Design Specification 1999.
(b) Provide for drainage discharge to the existing drainage system. All stormwater from the roofed areas is to be discharged into on site rainwater tanks.
(d) An allotment filtration pit is to be constructed for each allotment in accordance with the typical designs associated with DA 2228/03.(c) Ensure that the development, either during construction or upon completion, does not impede or divert natural surface water runoff so as to cause a nuisance to adjoining properties.
Subdivision Certificate
10. Lodgement and approval of a Subdivision Certificate is required to authorise the Plan of Subdivision.
11. All conditions of the development consent are to be completed prior to the issue of the Subdivision Certificate.
12. An Occupation Certificate for each dwelling is to be issued prior to the approval of the Subdivision Certificate.
13. The following documentary evidence is to be obtained and forwarded to the Principal Certifying Authority prior to the release of the Subdivision Certificate:
(b) The submission of a Surveyor’s Certificate stating that no services, drainage lines or access way encroach over the proposed boundary other than as provided for by easements created by the final plan of subdivision.(a) Submission of a Surveyor’s Certificate stating that all structures within the subject land comply with the development consent in regard to clearance from proposed new boundaries.
Utility Services
14. Suitable provision is to be made for the supply of all relevant services to allotments.
ENVIRONMENTAL HEALTH & BUILDING SURVEYOR
Site Works
15. No site works, such as excavation or construction works, shall be commenced prior to:
15.2 Sediment and erosion control measures in accordance with condition No. 20 has been implemented.15.1 A Construction Certificate being issued.
Principal Certifying Authority
16. Before any construction works commence, you are required to appoint a Principal Certifying Authority as required by section 81A of the Environmental Planning & Assessment Act, 1979. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications.
Notifying Council of Commencement of Works
17. It is a requirement of Section 18A(2)(c) of the Environmental Planning and Assessment Act, that you notify Hornsby Council at least two (2) days prior to the intention to commence works.
Building Code of Australia
18. All building work must be carried out in accordance with the requirements of the Building Code of Australia.
Council Property
19. The land and adjoining areas are to be kept in a clean and tidy condition at all times. Litter and rubbish shall be placed in containers and removed from the site. A waste storage container is to be provided at the commencement of the building work.
Sediment & Erosion Control
20. Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site. The controls are to be designed and installed in accordance with the requirements of Landcom’s “Managing Urban Stormwater: Soils and Construction”, Volume 1, 4th Edition, March 2004, (the Blue Book), and Hornsby Shire Council’s “Sustainable Water Best Practices” Manual and shall:
* effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority’s satisfaction;
* include a single all weather accessway at the front of the property consisting of 50-75mm aggregate or similar material at a minimum thickness of 150mm and 5 metres long, laid over geotechnical fabric and constructed prior to commencement of works;
* include adequate measures to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition;
* ensure that no spoil or fill encroaches upon adjacent bushland for the duration of the works.
* ensure disturbed areas are rehabilitated with indigenous plant species, landscaped and treated by approved methods of erosion mitigation such as, mulching, and revegetation with native grasses or other suitable stabilising processes within fifteen days of the completion of works.
Dust Control
21. Measures to prevent the emission of dust or other impurities into the surrounding environment are to be implemented during demolition works.
Engineers Certifications –Building
22. A qualified practising chartered Structural Engineer shall inspect the slab steel reinforcement prior to the pouring of any concrete and supply the Principal Certifying Authority and a copy to Hornsby Shire Council with a certification of structural adequacy.
Signs for Construction Sites
23. On-site signage is required to clearly identify the PCA and the principal contractor (the coordinator of the building work) pursuant to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003, s157(1)(c1), Cl 98A, 136C & 227A.
Hours of Construction
24. In order to maintain the amenity of adjoining properties, site works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. No work shall be undertaken on Sundays or public holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless otherwise approved by Council.
Inspections – Building
25. The building works must be inspected and Compliance Certificates obtained certifying that the works comply with the development consent and the approved plans and specifications for the following nominated stages:
It is the responsibility of the builder/applicant to organise the required inspections in accordance with the development consent. Should Council be nominated as the certifier of works, inspections can be arranged by contacting Council on 9847 6760 during normal business hour.* Sediment control and tree protection barriers, prior to any excavation or demolition works commencing.
* The pier holes/pads before they are filled with concrete.
* The levels of each floor prior to the pouring of concrete or other means of construction.
* The framework including roof members when completed and prior to the fixing of any internal sheets.
* The wet areas, damp-proofing and flashing before or after lining, whichever is applicable.
* Stormwater drainage lines prior to backfilling of trenches.
* The building or structure when completed and before occupation or use is commenced.
Subterranean Termites
26. The building shall be treated against subterranean termites in accordance with AS 3660 Part 1, "Protection of Buildings from Subterranean Termites".
27. Certificates of treatment shall be submitted to the Principal Certifying Authority and Hornsby Council and a notice of treatment, in accordance with the standard shall be affixed to the building. (Building Code of Australia Part 3.1.3, “Termite Risk Management”).
Sydney Water
28. The approved 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. The approved plans will be appropriately stamped. For Quick Check agent details please refer to “Your Business” section of Sydney Water’s web site at then see Building & Renovating under the heading Building & Renovating, or telephone 13 20 92.
The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate.
Home Building Act 1989
29. The builder or person who does the residential building work must comply with the applicable requirements of Part 6 of the Home Building Act 1989 and must not contract to do any residential building work unless a contract of insurance that complies with that Act is in force in relation to the proposed work. A copy of the contract of insurance shall be submitted to Hornsby Council before any works commence.
Long Service Levy
30. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.2% of the total cost of the work and shall be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a Construction Certificate being issued.
Occupation
31. The building or part thereof shall not be occupied until an Occupation Certificate has been issued in accordance with Sections 109C and 109H of the Environmental Planning & Assessment Act, 1979.
32. The premises shall be occupied solely for the approved use. No separate occupation or use of any part of the premises shall take place without prior development consent, (other than for exempt or complying development).
CONTRIBUTIONS / FEES
33. The payment of a contribution towards the cost of transport and traffic management, open space and recreation facilities, library and community facilities, bushland and environmental works, stormwater drainage, bushfire protection and Section 94 administration in accordance with Sections 94, 94B and 94C of the Environmental Planning and Assessment Act, 1979, and Hornsby Shire Council’s Development Contributions Plan 2004-2010. The total contribution shall be $12,858.80 if paid prior to the end of the quarter of the date of consent. Following this date, contributions will be adjusted in accordance with the underlying consumer price index for the subsequent financial years, it being noted that there are:
* 1 x additional allotment @ $12,858.80 per allotment.
This amount is to be paid to Council prior to issue of the Construction Certificate or the Subdivision Certificate, whichever occurs first. The contribution rate will be adjusted on an annual basis in accordance with the underlying consumer price index movements if not paid prior to the end of the quarter of the date of consent.
Note: A copy of Council’s Contributions Plan may be inspected during business hours at the first floor of Hornsby Shire Council’s Administration Building located at No. 296 Pacific Highway, Hornsby.
PUBLIC AUTHORITIES
NSW Rural Fire Service
34. Dwellings shall be constructed to comply with AS 3959 Level 3 “Construction of Buildings in Bushfire Prone Areas”.
35. Roller doors, tilt-a-doors and the like shall be sealed to prevent entry of embers into the structure.
36. The entire property shall be managed as an “Inner Protection Area” as outlined within Section 4.2.2 of Planning for Bushfire Protection.
37. All fencing shall be constructed from non-combustible materials.
WITHOUT PREJUDICE CONDITIONS OF CONSENT
MASTERBUILT PTY LIMITED v HORNSBY SHIRE COUNCIL
LAND AND ENVIRONMENT COURT PROCEEDINGS
NO. 11556 OF 2004
Consent is granted pursuant to s80 of the Environmental Planning and Assessment Act 1979 for the erection of a dwelling house on Lot 3, No 901-903 Pacific Highway, Berowra in accordance with Development Application No 1077/2004, together with all supporting documentation including the Statement of Environmental Effects and accompanying documents which will form part of the consent and the following plans:
7. Plan of Community Title Subdivision, prepared by Richards & Loftus, Job No. 281, Issue A, dated May 2004.
8. Site / Roof Plan, prepared by Jackson Architects, Drawing DA 01, Revision A, dated 28 April 2004.
9. Ground Floor Plan, prepared by Jackson Architects, Drawing DA 02, Revision A, dated 28 April 2004.
10. First Floor Plan, prepared by Jackson Architects, Drawing DA 03 Revision A, dated 28 April 2004.
11. Elevations, prepared by Jackson Architects, Drawing DA 04, Revision A, dated 28 April 2004.
12. Elevations & Section, prepared by Jackson Architects, Drawing DA 05, Revision A, dated 28 April 2004.
13. Typical Detail Allotment Drainage Layout Low Level Allotment, prepared by AFCE Building & Environment, Drawing No. 332533/A1, Sheet 1 of 8, Revision 0, dated November 2003.
14. Typical Detail Allotment Drainage Layout High Level Allotment, prepared by AFCE Building & Environment, Drawing No. 332533/A2, Sheet 2 of 8, Revision 0, dated November 2003.
15. Rainwater Tank Configuration Detail, prepared by AFCE Building & Environment, Drawing No. 332533/A3, Sheet 3 of 8, Revision 0, dated November 2003.
16. Allotment Filtration Pit Detail, prepared by AFCE Building & Environment, Drawing No. 332533/A4, Sheet 4 of 8, Revision 0, dated November 2003.
17. Concept Site Stormwater Management Plan, prepared by AFCE Building & Environment, Drawing No. 332533/A7, Sheet 7 of 8, Revision 0, dated November 2003.
Operational Conditions
The development shall be carried out in accordance with the following conditions.
Amended Drawings
1. So as to ensure appropriate visual privacy to adjoining residents a 1.5m high privacy screen comprising of fixed vertical louvres is to be erected on the western elevation of the first floor balcony. Revised plans detailing the above modifications are to be submitted to the Principal Certifying Authority for approval prior to the release of the Construction Certificate.
Site Works
2. No site works, including the removal of vegetation or any demolition works, shall be commenced prior to:
2.1. A Construction Certificate being issued.
2.2. Sediment and erosion control measures being implemented.
(i) Construction Certificate – Building
3. In order to certify that detailed construction plans and specifications are in accordance with the requirements of the Building Code of Australia, development consent and relevant Australian Standards, a Construction Certificate must be obtained from either Council or an accredited certifier prior to building works commencing.
Principal Certifying Authority
4. Before any construction works commence, you are required to appoint a Principal Certifying Authority as required by section 81A of the Environmental Planning & Assessment Act, 1979. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications.
Notifying Council of Commencement of Works
5. It is a requirement of the Environmental Planning and Assessment Act (Section 81A(2)(c)) that you notify Hornsby Council at least two (2) days prior to the intention to commence works.
Building Code of Australia
6. All building work must be carried out in accordance with the requirements of the Building Code of Australia.
Use
7. The development approved under this consent shall be used for the purpose as described and no other purpose.
Engineers – Structural
8. All reinforced concrete slabs and footings shall be designed and constructed in accordance with Australian Standard 2870-1 - 1988 "Residential Slabs and Footings" or be designed by a qualified chartered professional structural engineer.
Protection of Trees
9. In accordance with Hornsby Shire Council's Tree Preservation Order, all existing trees shall be retained except where Council's written consent has been obtained for removal, or where after approval of the relevant development application, trees stand within 3 metres of approved buildings or within the alignment of approved vehicular access or parking areas. Underground utility installations are to be located at least 3m from the trees protected by this condition.
10. Tree guards are to be provided around trees to be retained. The tree guards are to be installed prior to the commencement of any work on the site. Any works, including utility installations (e.g. water, sewer, telephone, drainage), are not to be undertaken within 4 metres of the trunk of any such trees. The tree guards shall be a minimum 1200mm high at least four (4) metres from the base of the nominated tree/s and constructed from timber posts and rails or posts and suitable plywood panels.
11. The developer or contractor will take all measures to prevent damage to trees and root systems during site works, construction activities and the provision of utilities and stormwater drainage services.
Sediment and Erosion Control
12. Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site. The controls are to be designed and installed in accordance with the requirements of Landcom’s “Managing Urban Stormwater: Soils and Construction”, Volume 1, 4th Edition, March 2004, (the Blue Book), and Hornsby Shire Council’s “Sustainable Water Best Practices” Manual and shall:
* be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority’s satisfaction.
* include a single all weather accessway at the front of the property consisting of 50-75mm aggregate or similar material at a minimum thickness of 150mm and 5m long, laid over geotechnical fabric and constructed prior to commencement of works.
* include adequate measures to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition.
* ensure that no spoil or fill encroaches upon adjacent bushland for the duration of the works.
* ensure disturbed areas are rehabilitated with indigenous plant species, landscaped and treated by approved methods of erosion mitigation such as, mulching, and revegetation with native grasses or other suitable stabilising processes within fifteen days of the completion of works.
Dust Control
13. Measures to prevent the emission of dust or other impurities into the surrounding environment are to be implemented during demolition works.
Signs for Construction Sites
14. On-site signage is required to clearly identify the Principal Certifying Authority and the principal contractor (the coordinator of the building work) pursuant to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003, s157(1)(c1), Cl 98A, 136C & 227A.
Hours of Construction
15. In order to maintain the amenity of adjoining properties, site works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. Site works may extend to 4.00 pm on Saturdays if inaudible on residential properties. No work shall be undertaken on Sundays or public holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless otherwise approved by Council.
Inspections – Building
16. The building works must be inspected by the Principal Certifying Authority certifying that the works comply with the development consent and the approved plans and specifications for the following nominated stages:
* The pier holes/pads before they are filled with concrete.
* The steelwork (i.e. strip footings and each floor slab) when in position and before concrete is placed.
* The framework including roof members when completed and prior to the fixing of any internal sheets .
* The wet areas, damp-proofing and flashing before or after lining, whichever is applicable.
* Stormwater drainage lines prior to backfilling of trenches.
* The building or structure when completed and before occupation or use is commenced.
It is the responsibility of the builder/applicant to organise the required inspections. Should Council be nominated as the certifier of works, inspections can be arranged by contacting Council on 9847 6760 during normal business hours.
Sydney Water
17. The approved 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. The approved plans will be appropriately stamped. For Quick Check agent details please refer to “Your Business” section of Sydney Water’s web site at then see Building & Renovating under the heading Building & Renovating, or telephone 13 20 92.
The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate.
Landscaping
18. The area surrounding the building shall be reinstated to good order as soon as practical after the completion of site works including, where necessary, the establishment of new landscaping.
19. The natural ground levels of private open space areas are not to be altered unless otherwise indicated on the approved plans.
Use of Materials
20. The finished surface materials, including colours and texture of any building and/or hard paved areas, shall blend with the surrounding environment and shall be non-glare.
21. A Schedule of Finishes is to be provided with the Construction Certificate application.
Drainage
22. Roof and collected surface stormwater shall be collected and connected to Council's street water table or piped drainage easement. All stormwater drainage shall be designed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years.
83 Bushfire Conditions
23. Construction shall comply with AS3959-1999 level 3 ‘Construction of Buildings in Bushfire Prone Areas’.
24. Roller doors, tilt-a-doors and the like shall be sealed to prevent entry of embers into the structure.
25. The entire property shall be managed as an ‘Inner Protection Area’ as outlined within Section 4.2.2 of Planning for Bushfire Protection.
26. All fencing shall be constructed from non-combustible materials.
Retaining Walls
27. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, are to be constructed together with associated stormwater drainage measures prior to occupation of the development or before where site conditions require.
Survey Reports
28. To ensure that the building and any associated structures are correctly positioned on the site, a report prepared by a registered surveyor is to be submitted to the Principal Certifying Authority at footing stage and at the completion of the building indicating that the building, retaining walls and the like have been correctly positioned and at the correct height, on the site.
84 Council Property
29. No building materials, waste, machinery or related matter are to be stored on the road or footpath and the pathway is to be kept in a clean, tidy and safe condition during the building works. Further, Council may, without notice, impose a fine and/or rectify any such breach and charge the cost against the builder, owner or applicant.
30. The land and adjoining areas are to be kept in a clean and tidy condition at all times. Litter and rubbish to be placed in containers and removed from the site. A waste storage container is to be provided at the commencement of the building work.
31. Any damage that may be caused to any Council property or adjoining land as a consequence of doing or not doing anything to which this approval relates shall be made good, at the applicant's expense, prior to occupation or use of the structure.
32. This approval does not give right of access to the site from Council owned or controlled land, a park, a reserve or the like. Should such access be required, written approval is to be obtained from Council’s Environment Division.
85
86 Home Building Act 1989
33. The builder or person who does the residential building work must comply with the applicable requirements of Part 6 of the Home Building Act 1989 and must not contract to do any residential building work unless a contract of insurance that complies with that Act is in force in relation to the proposed work. A copy of the contract of insurance shall be submitted to Hornsby Council before any works commence.
Long Service Levy
34. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.2% of the total cost of the work and shall be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under Section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a Construction Certificate being issued.
Subterranean Termites
35. The building shall be treated against subterranean termites in accordance with AS 3660 Part 1, "Protection of Buildings from Subterranean Termites".
36. Certificates of treatment shall be submitted to the Principal Certifying Authority and Hornsby Council and a notice of treatment, in accordance with the standard shall be affixed to the building. (Building Code of Australia Part 3.1.3 “Termite Risk Management”).
87 Wet Areas
37. Wet areas shall be protected against water in accordance with the Building Code of Australia Part 3.8.1, "Wet Areas".
38. A certificate from a licensed installer shall be submitted to the Principal Certifying Authority and Hornsby Council certifying that the materials used and installation has been installed in accordance with the Building Code of Australia.
Noise
39. The use of amplified equipment, such as radios and the like during construction stage shall not be used where the noise is audible on any neighbouring property.
Toilet Facilities
40. Closet accommodation is to be provided at the work site at all times and be located wholly within the boundaries of the property.
Smoke Alarms
41. Smoke alarms shall be installed in the building in accordance with the Building Code of Australia. A certificate from a licensed electrician certifying that the smoke alarms have been connected to the consumer mains power is to be submitted to Hornsby Council with the Occupation Certificate.
Waste Minimisation and Management
Design of a Building
42. The proposed building materials and design techniques identified for use in the development application shall be incorporated in the building plans and specifications lodged with the application for the Construction Certificate.
43. A copy of the building plans and specifications shall be retained with the building to aid maintenance and resource recovery at the end of the building’s lifespan.
Construction of a Building
44. Documentary evidence (ie. tipping dockets/receipts from transfer stations and landfills) shall be submitted with Council or the principal certifier prior to the release of the Occupation Certificate to confirm compliance with the Construction Waste Management Plan lodged with the development application.
45. To minimise waste, appropriate project management techniques shall be employed in accordance with C1.01 of the Hornsby Shire Council Waste Minimisation and Management Guide.
C1.01 of the Hornsby Shire Council Waste Minimisation and Management Guide “Project Management” is attached for your guidance.
46. To minimise waste, appropriate work practices shall be employed in accordance with C1.02 of the Hornsby Shire Council Waste Minimisation and Management Guide.
C1.02 of the Hornsby Shire Council Waste Minimisation and Management Guide “Work Practices” is attached for your guidance.
47. An on-site area for material sorting, segregation of hazardous materials, recovery equipment and materials storage (including waste storage containers) to enable efficient source separation shall be established as detailed on the site plan lodged with the development application.
48. Vehicular access to and on-site to enable the efficient removal of reusable, recyclable and waste materials shall be established as detailed on the site plan lodged with the development application.
Waste Facility Design
49. Waste and recycling receptacles shall be provided in accordance with Specification FD1.01 of the Hornsby Shire Council Waste Minimisation and Management Guide.
Occupation
50. The dwelling shall not be occupied until Council has released the Subdivision Certificate for No 901-903 Pacific Highway related to Development Application No 2228/03.
51. The building or part thereof shall not be occupied until an Occupation Certificate has been issued in accordance with Sections 109C and 109H of the Environmental Planning & Assessment Act, 1979.
107 Bushfire Conditions
73. Construction shall comply with AS3959-1999 level 3 ‘Construction of Buildings in Bushfire Prone Areas’.
74. Roller doors, tilt-a-doors and the like shall be sealed to prevent entry of embers into the structure.
75. The entire property shall be managed as an ‘Inner Protection Area’ as outlined within Section 4.2.2 of Planning for Bushfire Protection.
76. All fencing shall be constructed from non-combustible materials.
Retaining Walls
77. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, are to be constructed together with associated stormwater drainage measures prior to occupation of the development or before where site conditions require.
Survey Reports
78. To ensure that the building and any associated structures are correctly positioned on the site, a report prepared by a registered surveyor is to be submitted to the Principal Certifying Authority at footing stage and at the completion of the building indicating that the building, retaining walls and the like have been correctly positioned and at the correct height, on the site.
108 Council Property
79. No building materials, waste, machinery or related matter are to be stored on the road or footpath and the pathway is to be kept in a clean, tidy and safe condition during the building works. Further, Council may, without notice, impose a fine and/or rectify any such breach and charge the cost against the builder, owner or applicant.
80. The land and adjoining areas are to be kept in a clean and tidy condition at all times. Litter and rubbish to be placed in containers and removed from the site. A waste storage container is to be provided at the commencement of the building work.
81. Any damage that may be caused to any Council property or adjoining land as a consequence of doing or not doing anything to which this approval relates shall be made good, at the applicant's expense, prior to occupation or use of the structure.
82. This approval does not give right of access to the site from Council owned or controlled land, a park, a reserve or the like. Should such access be required, written approval is to be obtained from Council’s Environment Division.
Privacy
83. A 1.5m high lapped louvre or solid screen shall be erected on the western side of the first floor balcony as indicated in red on the approved plans, to establish an appropriate level of privacy in relation to adjoining properties resulting from this development.
109 Home Building Act 1989
84. The builder or person who does the residential building work must comply with the applicable requirements of Part 6 of the Home Building Act 1989 and must not contract to do any residential building work unless a contract of insurance that complies with that Act is in force in relation to the proposed work. A copy of the contract of insurance shall be submitted to Hornsby Council before any works commence.
Long Service Levy
85. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.2% of the total cost of the work and shall be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a Construction Certificate being issued.
Subterranean Termites
86. The building shall be treated against subterranean termites in accordance with AS 3660 Part 1, "Protection of Buildings from Subterranean Termites".
87. Certificates of treatment shall be submitted to the Principal Certifying Authority and Hornsby Council and a notice of treatment, in accordance with the standard shall be affixed to the building. (Building Code of Australia Part 3.1.3 “Termite Risk Management”).
110 Wet Areas
88. Wet areas shall be protected against water in accordance with the Building Code of Australia Part 3.8.1, "Wet Areas".
89. A certificate from a licensed installer shall be submitted to the Principal Certifying Authority and Hornsby Council certifying that the materials used and installation has been installed in accordance with the Building Code of Australia.
Noise
90. The use of amplified equipment, such as radios and the like during construction stage shall not be used where the noise is audible on any neighbouring property.
Toilet Facilities
91. Closet accommodation is to be provided at the work site at all times and be located wholly within the boundaries of the property.
Smoke Alarms
92. Smoke alarms shall be installed in the building in accordance with the Building Code of Australia. A certificate from a licensed electrician certifying that the smoke alarms have been connected to the consumer mains power is to be submitted to Hornsby Council with the Occupation Certificate.
Waste Minimisation and Management
Design of a Building
93. The proposed building materials and design techniques identified for use in the development application shall be incorporated in the building plans and specifications lodged with the application for the Construction Certificate.
94. A copy of the building plans and specifications shall be retained with the building to aid maintenance and resource recovery at the end of the building’s lifespan.
Construction of a Building
95. Documentary evidence (ie. tipping dockets/receipts from transfer stations and landfills) shall be submitted with Council or the principal certifier prior to the release of the Occupation Certificate to confirm compliance with the Construction Waste Management Plan lodged with the development application.
96. To minimise waste, appropriate project management techniques shall be employed in accordance with C1.01 of the Hornsby Shire Council Waste Minimisation and Management Guide.
C1.01 of the Hornsby Shire Council Waste Minimisation and Management Guide “Project Management” is attached for your guidance.
97. To minimise waste, appropriate work practices shall be employed in accordance with C1.02 of the Hornsby Shire Council Waste Minimisation and Management Guide.
C1.02 of the Hornsby Shire Council Waste Minimisation and Management Guide “Work Practices” is attached for your guidance.
98. An on-site area for material sorting, segregation of hazardous materials, recovery equipment and materials storage (including waste storage containers) to enable efficient source separation shall be established as detailed on the site plan lodged with the development application.
99. Vehicular access to and on-site to enable the efficient removal of reusable, recyclable and waste materials shall be established as detailed on the site plan lodged with the development application.
Waste Facility Design
100. Waste and recycling receptacles shall be provided in accordance with Specification FD1.01 of the Hornsby Shire Council Waste Minimisation and Management Guide.
Occupation
101. The building or part thereof shall not be occupied until an Occupation Certificate has been issued in accordance with Sections 109C and 109H of the Environmental Planning & Assessment Act, 1979.
102. The premises shall be occupied solely for the approved use. No separate occupation or use of any part of the premises shall take place without prior development consent, (other than for exempt or complying development).
WITHOUT PREJUDICE CONDITIONS OF CONSENT
MASTERBUILT PTY LIMITED v HORNSBY SHIRE COUNCIL
LAND AND ENVIRONMENT COURT PROCEEDINGS
NO. 11562 OF 2004
Deferred Commencement Consent
Deferred commencement consent is granted pursuant to s80(3) of the Environmental Planning and Assessment Act 1979 for the erection of a dwelling house on Lot 29, No 901-903 Pacific Highway, Berowra in accordance with Development Application No 1102/2004, together with all supporting documentation including the Statement of Environmental Effects and accompanying documents which will form part of the consent and the following plans:
71. Plan of Community Title Subdivision, prepared by Richards & Loftus, Job No. 281, Issue A, dated May 2004.
72. Site / Roof Plan, prepared by Jackson Architects, Drawing DA 01, Revision A, dated 28 April 2004.
73. Ground Floor Plans, prepared by Jackson Architects, Drawing DA 02, Revision A, dated 28 April 2004.
74. First Floor Plan, prepared by Jackson Architects, Drawing DA 03, Revision A, dated 28 April 2004.
75. Elevations Sheet 1, prepared by Jackson Architects, Drawing DA 04, Revision A, dated 28 April 2004.
76. Elevations Sheet 2, prepared by Jackson Architects, Drawing DA 04, Revision A, dated 28 April 2004.
77. Typical Detail Allotment Drainage Layout Low Level Allotment, prepared by AFCE Building & Environment, Drawing No. 332533/A1, Sheet 1 of 8, Revision 0, dated November 2003.
78. Typical Detail Allotment Drainage Layout High Level Allotment, prepared by AFCE Building & Environment, Drawing No. 332533/A2, Sheet 2 of 8, Revision 0, dated November 2003.
79. Rainwater Tank Configuration Detail, prepared by AFCE Building & Environment, Drawing No. 332533/A3, Sheet 3 of 8, Revision 0, dated November 2003.
80. Allotment Filtration Pit Detail, prepared by AFCE Building & Environment, Drawing No. 332533/A4, Sheet 4 of 8, Revision 0, dated November 2003.
81. Concept Site Stormwater Management Plan, prepared by AFCE Building & Environment, Drawing No. 332533/A7, Sheet 7 of 8, Revision 0, dated November 2003.
A. Deferred Commencement Conditions
1. This consent shall have no force until such time as Council has released the Subdivision Certificate for No 901-903 Pacific Highway, Berowra related to Development Application No 2228/03.
B. Operational Conditions
Upon satisfaction of all the matters set out in the deferred commencement conditions of consent, the consent will then become effective and operative and the development shall be carried out in accordance with the following conditions.
Site Works
103. No site works, including the removal of vegetation or any demolition works, shall be commenced prior to:
1.2 Sediment and erosion control measures being implemented.1.1 A Construction Certificate being issued.
(i) Construction Certificate – Building
104. In order to certify that detailed construction plans and specifications are in accordance with the requirements of the Building Code of Australia, development consent and relevant Australian Standards, a Construction Certificate must be obtained from either Council or an accredited certifier prior to building works commencing.
Principal Certifying Authority
105. Before any construction works commence, you are required to appoint a Principal Certifying Authority as required by section 81A of the Environmental Planning & Assessment Act, 1979. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications.
Notifying Council of Commencement of Works
106. It is a requirement of the Environmental Planning and Assessment Act (Section 81A(2)(c)) that you notify Hornsby Council at least two (2) days prior to the intention to commence works.
Building Code of Australia
107. All building work must be carried out in accordance with the requirements of the Building Code of Australia.
Use
108. The development approved under this consent shall be used for the purpose as described and no other purpose.
Engineers – Structural
109. All reinforced concrete slabs and footings shall be designed and constructed in accordance with Australian Standard 2870-1 - 1988 "Residential Slabs and Footings" or be designed by a qualified chartered professional structural engineer.
Protection of Trees
110. In accordance with Hornsby Shire Council's Tree Preservation Order, all existing trees shall be retained except where Council's written consent has been obtained for removal, or where after approval of the relevant development application, trees stand within 3 metres of approved buildings or within the alignment of approved vehicular access or parking areas. Underground utility installations are to be located at least 3m from the trees protected by this condition.
111. Tree guards are to be provided around trees to be retained. The tree guards are to be installed prior to the commencement of any work on the site. Any works, including utility installations (e.g. water, sewer, telephone, drainage), are not to be undertaken within 4 metres of the trunk of any such trees. The tree guards shall be a minimum 1200mm high at least four (4) metres from the base of the nominated tree/s and constructed from timber posts and rails or posts and suitable plywood panels.
112. The developer or contractor will take all measures to prevent damage to trees and root systems during site works, construction activities and the provision of utilities and stormwater drainage services.
Sediment and Erosion Control
113. Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site. The controls are to be designed and installed in accordance with the requirements of Landcom’s “Managing Urban Stormwater: Soils and Construction”, Volume 1, 4th Edition, March 2004, (the Blue Book), and Hornsby Shire Council’s “Sustainable Water Best Practices” Manual and shall:
* be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority’s satisfaction.
* include a single all weather accessway at the front of the property consisting of 50-75mm aggregate or similar material at a minimum thickness of 150mm and 5m long, laid over geotechnical fabric and constructed prior to commencement of works.
* include adequate measures to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition.
* ensure that no spoil or fill encroaches upon adjacent bushland for the duration of the works.
* ensure disturbed areas are rehabilitated with indigenous plant species, landscaped and treated by approved methods of erosion mitigation such as, mulching, and revegetation with native grasses or other suitable stabilising processes within fifteen days of the completion of works.
Dust Control
114. Measures to prevent the emission of dust or other impurities into the surrounding environment are to be implemented during demolition works.
Signs for Construction Sites
115. On-site signage is required to clearly identify the Principal Certifying Authority and the principal contractor (the coordinator of the building work) pursuant to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003, s157(1)(c1), Cl 98A, 136C & 227A.
Hours of Construction
116. In order to maintain the amenity of adjoining properties, site works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. Site works may extend to 4.00 pm on Saturdays if inaudible on residential properties. No work shall be undertaken on Sundays or public holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless otherwise approved by Council.
Inspections – Building
117. The building works must be inspected by the Principal Certifying Authority certifying that the works comply with the development consent and the approved plans and specifications for the following nominated stages:
* The pier holes/pads before they are filled with concrete.
* The steelwork (i.e. strip footings and each floor slab) when in position and before concrete is placed.
* The framework including roof members when completed and prior to the fixing of any internal sheets .
* The wet areas, damp-proofing and flashing before or after lining, whichever is applicable.
* Stormwater drainage lines prior to backfilling of trenches.
* The building or structure when completed and before occupation or use is commenced.
It is the responsibility of the builder/applicant to organise the required inspections. Should Council be nominated as the certifier of works, inspections can be arranged by contacting Council on 9847 6760 during normal business hours.
Sydney Water
118. The approved 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. The approved plans will be appropriately stamped. For Quick Check agent details please refer to “Your Business” section of Sydney Water’s web site at then see Building & Renovating under the heading Building & Renovating, or telephone 13 20 92.
The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate.
Landscaping
119. The area surrounding the building shall be reinstated to good order as soon as practical after the completion of site works including, where necessary, the establishment of new landscaping.
120. The natural ground levels of private open space areas are not to be altered unless otherwise indicated on the approved plans.
Use of Materials
121. The finished surface materials, including colours and texture of any building and/or hard paved areas, shall blend with the surrounding environment and shall be non-glare. If reflective glass is to be used externally in the construction of the building, the reflectivity index of the glass is to be no more than 20%.
122. A Schedule of Finishes is to be provided with the Construction Certificate application to satisfy condition 19 above.
Drainage
123. Roof and collected surface stormwater shall be collected and connected to Council's street water table or piped drainage easement. All stormwater drainage shall be designed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years.
111 Bushfire Conditions
124. Construction shall comply with AS3959-1999 level 3 ‘Construction of Buildings in Bushfire Prone Areas’.
125. Roller doors, tilt-a-doors and the like shall be sealed to prevent entry of embers into the structure.
126. The entire property shall be managed as an ‘Inner Protection Area’ as outlined within Section 4.2.2 of Planning for Bushfire Protection.
127. All fencing shall be constructed from non-combustible materials.
Retaining Walls
128. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, are to be constructed together with associated stormwater drainage measures prior to occupation of the development or before where site conditions require.
Survey Reports
129. To ensure that the building and any associated structures are correctly positioned on the site, a report prepared by a registered surveyor is to be submitted to the Principal Certifying Authority at footing stage and at the completion of the building indicating that the building, retaining walls and the like have been correctly positioned and at the correct height, on the site.
112 Council Property
130. No building materials, waste, machinery or related matter are to be stored on the road or footpath and the pathway is to be kept in a clean, tidy and safe condition during the building works. Further, Council may, without notice, impose a fine and/or rectify any such breach and charge the cost against the builder, owner or applicant.
131. The land and adjoining areas are to be kept in a clean and tidy condition at all times. Litter and rubbish to be placed in containers and removed from the site. A waste storage container is to be provided at the commencement of the building work.
132. Any damage that may be caused to any Council property or adjoining land as a consequence of doing or not doing anything to which this approval relates shall be made good, at the applicant's expense, prior to occupation or use of the structure.
133. This approval does not give right of access to the site from Council owned or controlled land, a park, a reserve or the like. Should such access be required, written approval is to be obtained from Council’s Environment Division.
Privacy
134. A 1.5m high lapped louvre or solid screen shall be erected on the western side of the first floor balcony as indicated in red on the approved plans, to establish an appropriate level of privacy in relation to adjoining properties resulting from this development.
113 Home Building Act 1989
135. The builder or person who does the residential building work must comply with the applicable requirements of Part 6 of the Home Building Act 1989 and must not contract to do any residential building work unless a contract of insurance that complies with that Act is in force in relation to the proposed work. A copy of the contract of insurance shall be submitted to Hornsby Council before any works commence.
Long Service Levy
136. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.2% of the total cost of the work and shall be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a Construction Certificate being issued.
Subterranean Termites
137. The building shall be treated against subterranean termites in accordance with AS 3660 Part 1, "Protection of Buildings from Subterranean Termites".
138. Certificates of treatment shall be submitted to the Principal Certifying Authority and Hornsby Council and a notice of treatment, in accordance with the standard shall be affixed to the building. (Building Code of Australia Part 3.1.3 “Termite Risk Management”).
114 Wet Areas
139. Wet areas shall be protected against water in accordance with the Building Code of Australia Part 3.8.1, "Wet Areas".
140. A certificate from a licensed installer shall be submitted to the Principal Certifying Authority and Hornsby Council certifying that the materials used and installation has been installed in accordance with the Building Code of Australia.
Noise
141. The use of amplified equipment, such as radios and the like during construction stage shall not be used where the noise is audible on any neighbouring property.
Toilet Facilities
142. Closet accommodation is to be provided at the work site at all times and be located wholly within the boundaries of the property.
Smoke Alarms
143. Smoke alarms shall be installed in the building in accordance with the Building Code of Australia. A certificate from a licensed electrician certifying that the smoke alarms have been connected to the consumer mains power is to be submitted to Hornsby Council with the Occupation Certificate.
Waste Minimisation and Management
Design of a Building
144. The proposed building materials and design techniques identified for use in the development application shall be incorporated in the building plans and specifications lodged with the application for the Construction Certificate.
145. A copy of the building plans and specifications shall be retained with the building to aid maintenance and resource recovery at the end of the building’s lifespan.
Construction of a Building
146. Documentary evidence (ie. tipping dockets/receipts from transfer stations and landfills) shall be submitted with Council or the principal certifier prior to the release of the Occupation Certificate to confirm compliance with the Construction Waste Management Plan lodged with the development application.
147. To minimise waste, appropriate project management techniques shall be employed in accordance with C1.01 of the Hornsby Shire Council Waste Minimisation and Management Guide.
C1.01 of the Hornsby Shire Council Waste Minimisation and Management Guide “Project Management” is attached for your guidance.
148. To minimise waste, appropriate work practices shall be employed in accordance with C1.02 of the Hornsby Shire Council Waste Minimisation and Management Guide.
C1.02 of the Hornsby Shire Council Waste Minimisation and Management Guide “Work Practices” is attached for your guidance.
149. An on-site area for material sorting, segregation of hazardous materials, recovery equipment and materials storage (including waste storage containers) to enable efficient source separation shall be established as detailed on the site plan lodged with the development application.
150. Vehicular access to and on-site to enable the efficient removal of reusable, recyclable and waste materials shall be established as detailed on the site plan lodged with the development application.
Waste Facility Design
151. Waste and recycling receptacles shall be provided in accordance with Specification FD1.01 of the Hornsby Shire Council Waste Minimisation and Management Guide.
Occupation
152. The building or part thereof shall not be occupied until an Occupation Certificate has been issued in accordance with Sections 109C and 109H of the Environmental Planning & Assessment Act, 1979.
153. The premises shall be occupied solely for the approved use. No separate occupation or use of any part of the premises shall take place without prior development consent, (other than for exempt or complying development).
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