Matsoukas v Woollahra Municipal Council - [2010] NSWLEC 1255

Land and Environment Court

of New South Wales

CITATION: Matsoukas v Woollahra Municipal Council [2010] NSWLEC 1255

PARTIES:
APPLICANT
Harry Matsoukas
RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S): 10329, 10500 of 2010

CORAM: Pearson C

KEY ISSUES: DEVELOPMENT MODIFICATION :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Woollahra Residential Development Control Plan 2003

CASES CITED: 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685

DATES OF HEARING: 10 September 2010

DATE OF JUDGMENT:
13 September 2010

LEGAL REPRESENTATIVES: APPLICANT
Ms J Reid, solicitor
Pikes Lawyers
RESPONDENT
Mr P Rigg, solicitor
Norton Rose

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Commissioner Pearson

13 September 2010

10329 of 2010 Matsoukas v Woollahra Municipal Council
10500 of 2010 Matsoukas v Woollahra Municipal Council
JUDGMENT

1 Commissioner: These appeals are from the refusal by the Woollahra Municipal Council (the Council) of two applications to modify a development consent for the erection of a dwelling house at 38 Fitzwilliam Road Vaucluse (the site).

2 The proposed erection of a dwelling house on the site has a long history. The first approval for the demolition of the existing single storey dwelling house and the erection of a new three storey dwelling house and excavated garage was granted by the Council in 1997 (BA 687/1997). That approval has been the subject of a number of modifications approved by the Council, which are detailed in the Council’s Statement of Facts and Contentions filed in each of the proceedings. In 2004 the Council approved development application DA 161/2004 for alterations and additions to the approved dwelling house, which included some unauthorised works. In 2008 the Court upheld three appeals in respect of applications for modification of the then current consents pursuant to an agreement reached between the parties under s34(3) of the Land and Environment Court Act 1979 (the Court Act), and approved plans which required rectification of unauthorised works on the site.

3 In these proceedings, the two applications made to the Council were stated to have been made under s96AA of the Environmental Planning and Assessment Act 1979 (the Act). The applications to the Court, and the Council’s Statement of Facts and Contentions filed in both proceedings, identify the appeals as being made under s96 of the Act. The applications seek to modify the development consent granted by the Council in 2004, as modified by the Court in 2008. The parties have confirmed that the applications before the Court are made pursuant to s96(6) of the Act, relying on s96(1A) of the Act.

10329 of 2010

4 The unauthorised works include the construction of a concrete balcony with three supporting columns on the front and north western elevation on level 2. In application DA161/2004/4 the applicant sought approval for the deletion of the approved cantilevered steel and glass awning to the front (north east) elevation and the north western elevation at the base of level 2, and for the retention of the concrete structure as an awning, reduced by 1.5m on the south eastern side of the building. The concrete structure as built is approximately twice the vertical thickness of the approved glass and steel awning, and is reduced in length from the Court approved awning along the western elevation by approximately 5m.

10500 of 2010

5 Application DA161/2004/5 sought approval for modifications to the landscaping and fencing at the front of the site and modification of the front stairs and landing adjacent to the front terrace at basement level. The proposed modifications at the front of the site include the retention of an unauthorised front 1m of the garage level, the deletion of the approved deep soil landscaped front setback at the garage level and the provision of a deep planter (500mm soil depth) 9m long x 1m wide x 600m deep to the front of the garage roof; the addition of a palisade fence across the front section of the roof of the garage setback 1m from the street alignment and extending to a height of 1.6m above the garage roof slab, and the erection of a new stone retaining wall to the north west of the driveway. The proposed modifications at the south eastern side of the building include the retention of the unauthorised 1.6m x 5m section of slab adjacent to the south eastern side of the front terrace at basement level and the addition of a 500mm deep planter on it, and the modification of the front stairs and landing adjacent to the front terrace at basement level.

Issues

6 The Council identified a number of issues in the Statement of Facts and Contentions filed in each appeal. Common to both appeals were the contentions that the proposed modifications are not consistent with the objectives and criteria in parts 4.13.3; 5.1.1, 5.1.2, and 5.1.3; and 5.2 of the Woollahra Residential Development Control Plan 2003; that there are adverse visual impacts and view loss; that it is in the public interest to ensure compliance with the Court’s orders made in 2008 requiring removal of the unauthorised works; that there is insufficient information concerning the asserted engineering necessity of leaving the unauthorised structures in place; and that there is insufficient engineering information regarding the as built structure.

7 The Council did not press these contentions, and the only issue in dispute identified at the hearing was the matters raised by the neighbouring residents.

Evidence

8 The hearing commenced with a site view, and evidence was given on site by the residents of Nos 36 and 40 Fitzwilliam Road, and 97 Wentworth Road. The site view included a view from 36 and 40 Fitzwilliam Road. The exterior of the building is for the most part unfinished concrete, and paint has been applied so to indicate those parts of the building required to be removed in compliance with the orders made in 2008, or proposed to be removed as part of the modifications sought in these proceedings, which assisted in an understanding of the proposed modifications and their possible impacts.

9 The concerns of the neighbouring residents expressed both at the site view and in their written submissions to the Council were the possibility of the use of the awning as a verandah, privacy impacts for 36 Fitzwilliam Road, the bulk and scale of the dwelling, and fencing along the side boundaries.

10 The expert planners engaged by the parties, Mr Stuart Harding for the applicant and Mr Tony Moody for the Council, provided a written joint report. Mr Harding was present at the site view and outlined the proposed modifications. In relation to the concrete awning the experts agreed that the construction of the awning in concrete instead of the approved glass and steel has a benefit in terms of BASIX regarding heat loads; that it does not create adverse impacts on the adjoining properties or the public domain sufficient to warrant removal; that the side boundary setback on the western side does not comply with the planning controls but that the proposed change of material does not alter the setback compared to the Court approved plans; and that the proposed awning does not have an adverse impact on the street sufficient to warrant removal and this is unchanged with the change in materials; and that the location and size of the awning is acceptable.

11 In relation to the removal of part of the slab and columns at the south eastern side of the dwelling, the experts agreed that the proposed modified works are acceptable, subject to the approved landscaping including 3m high planting within the eastern side setback; the screening of the underside of the slab from view of the adjoining property at 36 Fitzwilliam Road by continuing the external wall of the house with a rendered finish to ground level; and the reinstatement of the boundary fencing.

12 In relation to the proposed modifications to the garage wall and landscaping at the front of the site, the experts agreed that the proposed modifications are acceptable, on the assumption that there is to be a sandstone façade provided to the front wall of the garage facing the street similar to that at 36 Fitzwilliam Road, and landscaping within the Council grass verge.

Consideration

13 Section 96(1A) of the Act provides:

(1A) Modifications involving minimal environmental impact

14 The parties were in agreement that s96(1A)(b) is met. When considering the proposed modifications in the context of the development as approved in 2004, based on the material in the Council’s Statement of Facts and Contentions and in the bundle of documents, I am satisfied that the threshold issues raised by s96(1A)(a) and (b) are satisfied. The applications were notified and the submissions made by neighbouring residents are before the Court in the Council’s bundle of documents.

15 Section 96(3) requires that the matters referred to in s79C of the Act that are of relevance to the development the subject of the applications be considered. The relevant planning controls are those contained in the Woollahra Residential Development Control Plan 2003 (the DCP). It was common ground that while the side boundary setback of the concrete awning on level 2 does not comply with the requirements of part 4.13.3 of the DCP, the modification application presently before the Court makes no change to the setback approved by the Court in 2008. I accept the evidence of the planners that the awning does not create adverse impacts on the adjoining property, and that the reduction along the western side reduces the bulk of the development.

16 In considering the objectives and criteria in part 5 of the DCP, it was common ground that the nearest property of social, cultural or historic interest is Wentworth Church at 32B Fitzwilliam Road, and that the modification applications do not impact on this site. It was common ground that while there is a proposal to include the church building as a heritage item in a draft local environmental plan, the draft could not be regarded as being certain and imminent, and that the physical separation from the subject site means that the proposed modifications would not impact on that site.

17 The Council did not press the contentions relating to compliance with part 5.1.3 relating to streetscape. I accept the evidence of the expert planners, which was confirmed at the site view, that the proposed changes to the garage wall, palisade fencing and planting along the street frontage are consistent with the adjoining property at 36 Fitzwilliam Road and contribute to a cohesive streetscape consistent with the objective at part 5.1.3.

18 Part 5.2.2 of the DCP requires consideration of sharing of views and preservation of privacy and sunlight access for neighbouring residents. The experts agreed that with appropriate conditions for screening, plantings, and fencing along the eastern boundary, the proposed modifications relating to the removal of part of the slab and columns are acceptable. The parties have agreed on conditions addressing the privacy issues, which are discussed below.

19 The Council’s Statement of Facts and Contentions included contentions that the applicant had not provided sufficient engineering information to confirm that the concrete awning at level 2 could not be removed so that the glass and steel awning approved by the Court could be erected, or that the proposed removal of part of the slab on the south eastern side of the building could be undertaken without compromise to the slab. At the hearing the Council did not press these contentions on the basis that it was now satisfied on those issues based on further engineering information provided by the applicant.

20 The neighbouring residents raised concerns about compliance with previous consents. The parties were in agreement that the modification applications must be assessed on the assumption that any conditions imposed will be complied with, and that enforcement of the conditions would be a matter for the Council in the exercise of its enforcement powers under the Act.

Conditions

21 In 1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685, McClellan CJ held that conditions can be imposed by a consent authority when determining an application for modification, and that the impacts of the already approved development must at least be considered, even if the proposed modification will not exacerbate or diminish some or all of them.

22 The parties have agreed on 6 conditions which they propose should be imposed. Proposed new condition 69 provides:

The awning extending from the balcony on level 2 shall be non-trafficable and have applied to it a pebblecrete surface or the like to ensure that it remains non-trafficable.

23 This condition is proposed to address the concerns of the neighbouring residents that the awning may be used as a verandah. The plans include a balustrade set back from the edge of the awning, and it was apparent from the site view that the part of the awning to remain outside the balustrade is at a lower level than that on the other side. I am satisfied that this condition will assist in limiting the function of the concrete structure to that of an awning as is currently approved to be constructed in glass and steel, and thus address concerns of possible increase in trafficable area, and is appropriate to be imposed.

24 Proposed conditions 67 and 68 require screening of the underside of the slab at the south eastern corner once the proposed modification of the slab and stairs is undertaken by continuing the external wall with a rendered finish, and replacement of the glass in two windows by frosted glass. Proposed condition 65 relates to boundary fencing on both side boundaries and requires provision of a brush box fence to a height of 1.8m. Conditions in the form of proposed conditions 65 and 67 were supported by the expert planners, and Mr Moody supported the improvement to privacy achieved by proposed condition 68. I am satisfied that these conditions ameliorate the privacy and overlooking impacts of the development from both 36 and 40 Fitzwilliam Road, consistent with part 5.2.2 of the DCP, and should be imposed.

Conclusion

25 The contentions raised by the Council have either been addressed in the form of the proposed new conditions, or were not pressed. The matters of concern raised by the neighbouring residents relating to privacy and overlooking and the potential use of the concrete awning on level 2 have been addressed by the configuration of the awning as shown on the plans and as built, and by the proposed conditions. Having considered the relevant matters raised under s79C of the Act, including the applicable planning controls, I am satisfied that the applications to modify development consent DA161/2004, as modified by the Court in 2008, should be approved.

26 The Orders of the Court are:

Matter 10329 of 2010

1. The appeal is upheld.

2. The application DA161/2004/4 to modify the development consent DA161/2004 as modified for the erection of a dwelling house at 38 Fitzwilliam Road Vaucluse is approved subject to the imposition of new conditions 2(b), 65, 66, 67, 68 and 69 included in the consolidated conditions of consent in Annexure A.

3. Exhibits are returned except for exhibit C.

Matter 10500 of 2010

1. The appeal is upheld.

2. The application DA161/2004/5 to modify the development consent DA161/2004 as modified for the erection of a dwelling house at 38 Fitzwilliam Road Vaucluse is approved subject to the imposition of new conditions 2(b), 65, 66, 67, 68 and 69 included in the consolidated conditions of consent in Annexure A.

3. Exhibits are returned except for exhibit C.

Linda Pearson
Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Matsoukas v Woollahra Municipal Council

38 Fitzwilliam Road, Vaucluse

Pursuant to Section 96 of the Environmental Planning & Assessment Act 1979, the development consent is now modified as follows:-

These conditions of consent apply severally to BA 687/1997/4. DA 161/2004/2 and DA 577/2002/4 and any previous conditions issued in respect thereto are superceded and replaced by these presents.

Consent is granted to carry out the development as modified in the plans listed hereunder and development must be carried out in accordance with these plans, all of which carry a Council stamp “ Approved DA Plans ” and the signature of a Council officer, except where amended by the following conditions. The stamped approved full size plans shall be the same as the plans filed at Court on 12 May 2008 and as annotated.
Schedule of Plans

i. Demolition:- 2 sheets prepared by Roland Scheen & Associates P/L
a. Drawing No. S4800-A60 – Revision C (dated 11/12/07)
b. Drawing No. S4800-A65 - Revision D (dated 17/3/08)

ii. Architectural:- 11 sheets prepared by Roland Scheen & Associates P/L
a. Drawing No. S4800-DA010: Garage level – Revision G (dated 6/12/07)
b. Drawing No. S4800-DA020: Undercroft Level- Revision J(dated 8/5/08)
c. Drawing No. S4800-DA030: Basement - Revision J (dated 8/5/08)
d. Drawing No. S4800-DA040: Level 1 - Revision J (dated 8/5/08)
e. Drawing No. S4800-DA050: Level 2- Revision H (dated 8/5/08)
f. Drawing No. S4800-DA060: Attic level- Revision J (dated 17/3/08)
g. Drawing No. S4800-DA110: NW & SE Elevation- Revision J (dated 8/5/08)
h. Drawing No. S4800-DA115: NE & SW Elevation- Revision J (dated 8/5/08)
i. Drawing No. S4800-DA120: Long & Cross Sections- Revision F (dated 8/5/08)
j. Drawing No. S4800-DA125: Shadow Diagram Sheet 1- Revision C (dated 10/12/07)
k. Drawing No. S4800-DA130: Shadow Diagram Sheet 2- Revision C (dated 10/12/07)
l. NW fencing at Drawing X and S/E fencing at Drawing Y and both dated 20 May 2008 attached to bundle of Plans filed with Court on 12 May 2008.

iii. Landscaping:- 1 sheet prepared by Taylor Brammer Landscape Architects Pty Ltd
a. Drawing No. LC01: Landscape Concept Plan – Revision B (dated 3/10/07)

2(b). Those acting upon or under this consent must carry out all work and maintain the use and works in accordance with the approved plans in condition 2, as amended by the plans amended by hand in red and attached to these conditions.

(Amended LEC proceedings 10329 and 10500 of 2010)

3. This consent is limited in respect of DA 161/2004/2 and DA 577/2002/4 to those plans listed above which directly modify the plans previously approved for these consents.

4. Provision of sandstone cladding to the front elevation

In order to ensure that the development relates appropriately to the local environmental context, sandstone cladding is to be applied as indicated on the plans:
a. smooth cut or sand stone finish (marked in the Plans as STN) is limited to the upper surrounds of the pool area and the stairs above the undercroft level as appears in Drawing S4800 – DA 110

b. the stepped planters below the pool level and garage and returns from the street face are to be rockface finish (as marked on the Plans as STN-RF) and the size and finish matching the existing street front stone retaining walls.
c. Existing stone street front retaining wall and return across the public footpath to the garage entry shall be stone masonry of size, finish and capping to match the existing stone wall.

In order to maintain the visual privacy of adjoining property at 36 Fitzwilliam Road , the privacy screen louvres to the SE elevation at basement and level 1 shall be limited in height to 1.8m. Such is to be indicated on the plans submitted with the construction certificate application.

Landscaping adjacent to the boundary to 36 Fitzwilliam Road and between the landing at RL 20.9m and the front boundary shall be limited and maintained to a height not greater than the height of the finished level of the pool terrace..

Stormwater drainage on and from the site shall be carried out generally in accordance with stormwater plans (97897 H1 to H4 Revision A) prepared by Bruce Arundell and Partners which shall be re-calculated and updated to reflect the plans hereby modified and where possible disclose the matters (a) to (d) set out below except to the extent that drainage works which have been carried out to date shall not be required to be altered:

a. the location of the Stormwater Drainage System including all pipes, inspection openings, surface drains, pits and their discharge location,
b. any remedial works required to upgrade the Stormwater Drainage System to comply with the BCA
c. any interceptor drain(s) at the site boundary to prevent stormwater flows from the site crossing the footpath, and
d. general compliance with the Council’s draft Development Control Plan Stormwater Drainage Management (draft version 1, public exhibition copy dated 14 December 2006)

Where any new Stormwater Drainage System crosses the footpath area within any road, separate approval under section 138 of the Roads Act 1993 must be obtained from Council for those works prior to the issue of any Construction Certificate .

All Stormwater Drainage System work within any road or public place must comply with Woollahra Municipal Council’s Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003.

On completion of construction work, stormwater drainage works are to be certified by a professional engineer with Works-As-Executed drawings supplied to the PCA detailing:
a. compliance with conditions of development consent relating to stormwater;
b. the structural adequacy of the On-Site Detention system (OSD);
c. that the works have been constructed in accordance with the approved design and will provide the detention storage volume and attenuation in accordance with the submitted calculations;
d. Pipe invert levels and surface levels to Australian Height Datum; and
e. Contours indicating the direction in which water will flow over land should the capacity of the pit be exceeded in a storm event exceeding design limits.
f. A positive covenant pursuant to Section 88E of the Conveyancing Act 1919 must be created on the title of the subject property, providing for the indemnification of Council from any claims or actions and for the on-going maintenance of the on-site-detention system and/or absorption trenches, including any pumps and sumps incorporated in the development. The wording of the Instrument must be in accordance with Council’s standard format and the Instrument must be registered at the Land Titles Office.

Erosion and sediment control measures will be installed and maintained throughout construction, designed in accordance with the SSROC Soil and Water Management Brochures titled “Do it Right on Site” and the current version of the NSW Landcom publication “Managing Urban Stormwater: Soils and Construction” (The Blue Book) . The measures to be employed must be submitted to Council or the accredited certifier for approval before commencement of further excavation or construction work.

A vehicle wheel wash, cattle grid, wheel shaker or other appropriate device, must be installed to prevent mud and dirt leaving the site and being deposited on the street.

Throughout the demolition, excavation and construction period, Council’s warning sign for soil and water management must be displayed on the most prominent point of the building site, visible both from the street and site. A copy of the sign is available from Council.

Stockpiles of topsoil, sand, aggregate, soil or other material must not be located on any drainage line or easement, natural watercourse, footpath or roadway, or within the dripline of any Street Tree. Stockpiles within the construction site must be protected with adequate sediment controls, in accordance with Council’s Code for Sediment Control.

Building operations such as brick cutting, washing tools or brushes and mixing mortar must not take place on public roadways or footways or in any other location which could lead to the discharge of materials into the stormwater drainage system. Footpaths, gutters and roadways must be swept regularly to keep them free from sediment.

Stormwater from any roof areas must be linked, via a temporary downpipe, to a Council approved stormwater disposal system immediately upon completion of the roof installation.

The disposal of site water (includes groundwater, seepage, dewatering and stormwater trapped in excavations) must be in accordance with the requirements contained within Council’s “Stormwater Development Control Plan and Local Approvals Policy”. Disposal of site water to Council’s stormwater system is not permitted unless it is treated to a level acceptable for discharge to the receiving waters. Details to be submitted to Council and approved prior to the issue of the Construction Certificate.

The site must be appropriately secured and fenced to the satisfaction of Council during demolition, excavation and construction work to ensure there are no unacceptable impacts on the amenity of adjoining properties. .

Hoarding must be erected to prevent dust and minimise disturbance to adjoining properties prior to any demolition or construction including on the boundary adjacent to the open terrace on the NW of 36 Fitzwilliam Road.

Dust mitigation must be implemented in accordance with “ Dust Control - Do it right on site ” published by the Southern Sydney Regional Organisation of Councils.

This generally requires:

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

Note 1 : “ Dust Control - Do it right on site ” can be down loaded free of charge from Council’s web site or obtained from Council’s office.

Note 2: Special precautions must be taken when removing asbestos or lead materials from development sites. Additional information can be obtained from and . Other specific condition and advice may apply.

Note 3:

Standard Condition: E23

$158.00

Estimated cost of work Deposit

Council property adjoining the construction site must be fully supported at all times during all excavation, demolition and building construction works. Details of shoring, propping and anchoring of works adjoining Council property, prepared by a qualified Structural Engineer or Geotechnical Engineer, must be submitted for the approval of Council’s Development Engineer, or certified as structurally adequate by the accredited certifier, before the commencement of the works.

This development consent does NOT give approval to works or structures over, on or under public roads or footpaths excluding minor works subject to a Road Opening Permit.

Detailed plans and specifications of all works within existing roads (including but not limited to structures, road works, driveway crossings, footpaths and stormwater drainage), must be submitted to and approved by Council under the Roads Act 1993, before such work is undertaken.

Specific works include:

a. Full width vehicular crossings in accordance with Council’s standard drawing RF2;

b. Sandstone cladding to the garage entry porch; and

c. Stone walls depicted in the plans to match existing within the road reserve

Access levels and grades to and within the development must match access levels and grades within the road approved under the Roads Act 1993.

All public domain works must comply with Council’s “ Specification for Roadworks, Drainage and Miscellaneous Works ” dated January 2003 unless expressly provided otherwise by these conditions. This specification can be downloaded from .

Note: To ensure that this work is completed to Council’s satisfaction, this consent by separate condition, may impose one or more Infrastructure Works Bonds.

Note: When a large RoadsAct is required, then four (4) weeks is to be allowed for assessment.

Note : Road has the same meaning as in the Roads Act 1993.

Note

Construction Certificate

Road Act

Standard Condition: C13

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

Temporary rock anchors may be permitted, where alternative methods of stabilisation would not be practicable or viable, and where there would be benefits in terms of reduced community impact due to a shorter construction period, reduced disruption to pedestrian and vehicular traffic on adjacent public roads, and a safer working environment.

If temporary rock anchors under Council’s public road proposed, a separate application, including payment of fees, must be made to Council under Section 138 of the Roads Act 1993. Should anchors be proposed under Council’s adjoining Reserve then an application is to be submitted to Council’s Public Open Space Department complying with Council’s “Rock Anchor Policy”

A safe pedestrian circulation route a minimum of 1.5m wide and with a pavement free of trip hazards must be maintained at all times on or adjacent to the public footpaths fronting the construction site. Where the footpath is damaged, repair works must be carried when directed by Council officers and in accordance with the relevant clauses of the current edition of AUS-SPEC.

Where circulation is diverted on to the roadway clear directional signage and protective barricades must be installed in accordance with Aust AS1742-3 1996 “Traffic Control Devices for Work on Roads”.

The following works must be undertaken at the applicant’s expense prior to the final building inspection and the issuance of the Occupation Certificate.

Construction of a new full width concrete driveway crossing and layback in accordance with Council’s Standard Drawing RF2. Levels in the footpath area must match existing.

$ 3,000

If Council’s infrastructure is damaged during the course of works, Council’s Development Engineer must be notified and necessary repairs must be undertaken within the time stipulated by Council, to Council’s specifications, and at no cost to Council. Works generally must be in accordance with the relevant clauses of the current edition of AUS-SPEC.

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

40 Fitzwilliam Road
40A Fitzwilliam Road
The dilapidation reports must be completed and submitted to Council with the Notice of Commencement prior to the commencement of any development work.
Where further excavation of the site will extend below the level of any immediately adjoining building the principal contractor or owner builder must give the adjoining building owner(s) a copy of the dilapidation report for their building(s) and a copy of the notice of commencement required by s81A(2) of the Act not less than two (2) days prior to the commencement of any work.
Building Certificate.

the Environmental Planning and Assessment Act 1979

(a) detailed plans and specifications of the building have been endorsed with a Construction Certificate by:

(b) a principal certifying authority (PCA) has been appointed and the Council has been notified in writing of the appointment, and

38. Swimming Pools and Spa Pools

The pool must comply with the following requirements:

all waste water must be drained into the main sewer with the permission of Sydney Water;

filtration or other mechanically operated equipment must be operated by a time switch and must be installed set and sealed so that the operation of such equipment is limited to between the hours of 7.00 am and 8.00 p.m. Monday to Saturday and 8:00am and 8:00pm on Sundays and public holidays;

filtration or other mechanically operated equipment must be installed in a masonry housing and treated to prevent the noise level, when the equipment is in operation, from rising above the background noise level, when measured at the boundaries of the subject site;

vertical depth markers must be permanently fitted and clearly visible at the deep and shallow ends of the pool to ensure reasonable levels of safety;

where the pool concourse is higher than 1 metre above the adjacent ground level, a protective guard or handrail complying with the provisions of Clause D2.16 of the Building Code of Australia must be fitted;

an egress ladder or steps into the pool must be provided to ensure reasonable levels of safety;

the pool must be fenced, prior to filling the structure with water to a depth of 300 mm or more in such a manner so as to obstruct the entry to the pool in accordance with the provisions of the Swimming Pools Act 1992 and Regulations and Australian Standard 1926 "Fences and Gates for Private Swimming Pools;"

all overflow and splash must be contained within the boundaries of the site, to ensure reasonable levels of amenity for neighbouring properties and the locality;

warning notices must be provided in accordance with the provisions of the Swimming Pools Act 1992 Section 17 and Regulation 8, to ensure reasonable levels of safety.

Any vent for the pool plant room and fresh air intake for mechanical ventilation shall be to the NW elevation.

The relative levels of the ground floor, first floor and the overall height of the roof in relation to Australian Height Datum must be shown on the drawings submitted with the Construction Certificate Application to ensure that building construction complies with the development consent.

Noise from the operation of mechanical plant and equipment must not exceed background noise when measured at the nearest lot boundary of the site. Where noise sensitive receivers are located within the site, noise from the operation of mechanical plant and equipment must not exceed background noise when measured at the nearest strata, stratum or community title boundary.

Reason : This condition has been imposed to protect the amenity of the neighbourhood.
Note : Words in this condition have the same meaning as in the:

NSW Industrial Noise Policy ( )
ISBN 0 7313 2715 2, dated January 2000, and
Noise Guide for Local Government ( )

Structural engineering details and design calculations, prepared and certified by a qualified practising Structural Engineer, must be submitted with Construction Certificate application, for any modification to existing structure or any further reinforced concrete work, structural steel work, retaining walls, brick fences, shoring and underpinning, isolated piers, chimneys, parapets and other structural members. This condition is imposed to ensure the structural integrity of the proposed building work.

All electrical and telephone services to the subject property must be placed underground. If an electrical sub-station is required, it must be situated within the boundaries of the subject property and suitably screened.

Demolition, excavation and construction work must not take place outside the hours of 7.00am to 5.30pm Monday to Friday and 7.00am to 1.00pm Saturday. No work and no deliveries are to take place on Sundays and public holidays. Noise from construction activities associated with the development must comply with the guidelines contained in the NSW EPA Environmental Noise Control Manual Chapter 171.

Excavation or removal of any materials involving the use of machinery of any kind, including compressors and jack hammers, must be limited to between 9.00am and 4.00 pm Mondays to Fridays, with regular breaks of 15 minutes each hour. This condition is imposed to ensure reasonable standards of amenity for occupants of neighbouring properties.

The Principal Contractor or Owner Builder must ensure that a surveyor registered under the Surveying Act 2002 carries out check surveys and provides survey certificates confirming the location of the building(s) and the extent of excavation for the underground carpark and limits of excavation relative to the boundaries of the site and that the height of buildings and drainage systems relative to Australian Height Datum complies with this consent at the following critical stages.

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

a) Upon the completion of foundation walls prior to the laying of any floor or the pouring of any floor slab and generally at damp proof course level;
b) Upon the completion of formwork for floor slabs prior to the laying of any floor or the pouring of any concrete and generally at each storey;
c) Upon the completion of formwork or framework for the roof(s) prior to the laying of any roofing or the pouring of any concrete roof;
d) Upon the completion of formwork and steel fixing prior to pouring of any concrete for any ancillary structures, swimming pool or spa pool or the like;
e) Driveway transitions and crest thresholds prior to pavement of driveways;
f) Stormwater Drainage Systems prior to or post construction confirming location, height and capacity of works.
Note : This condition has been imposed to ensure that development occurs in the location and at the height approved under this consent.

For the purpose of indicating relative levels in terms of Australian Height Datum and boundary clearances, and to ensure that any further building construction complies with the development consent, survey certificates must be provided to the PCA in respect of the building/s layout and ground floor level/s prior to pouring of any further concrete or laying of timber floor boards.

The Applicant, Owner and Builder, jointly and severally, must ensure that they call their Principal Certifying Authority ("the PCA") to carry out such critical phase building inspections required by the PCA, the PCA Service Agreement and that the PCA is satisfied with the level of compliance achieved before the Builder proceeds to the next phase of construction. Ample notice of required inspections must be given to the PCA in accordance with the PCA Service Agreement. The Applicant, Owner and Builder must comply with the PCA Service Agreement (Service Contract) and any lawful direction given by the Principal Certifying Authority.
Note: It is the responsibility of the PCA to ensure that critical phase building inspections are undertaken in accordance with a PCA Service Agreement and issue to the Applicant, Owner and Builder appropriate Notice under Section 109L of the Environmental Planning & Assessment Act 1979 ("the Act") where any breach of this consent occurs. Failure of the PCA to issue such notice may result in Council taking action under Section 109V of the Act. Failure of the Applicant, Owner and Builder to comply with a PCA Service Agreement and comply with lawful directions of the PCA under this condition may result in Council issuing fines, notices, orders and commencing legal proceedings. Council will only enter into PCA Agreements with the Owner of the land being developed. Council, if appointed as the PCA, will report to the owner of the land being developed.

Prior to the issue of any Occupation Certificate, a surveyor registered under the Surveying Act 2002 must certify that the finished floor and roof levels and the layout of all external walls, including retaining walls complies with the development consent.

A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H (4) of the Act ) unless an occupation certificate has been issued in relation to the building or part.

All floors of wet areas are to be constructed and finished so as to be impervious to water and graded to a sufficient number of floor drains.

Proposed water pipes, waste pipes, stack work, duct work, mechanical ventilation plant and the like must be located within the building. Details confirming compliance with this condition must be shown on construction certificate plans and detailed with construction certificate specifications. Required external vents or vent pipes on the roof or above the eaves must be shown on construction certificate plans and detailed with construction certificate specifications. External vents or roof vent pipes must not be visible from any place unless detailed upon development consent plans. Where there is any proposal to fit external service pipes or the like this must be detailed in an amended development (S96) application and submitted to Council for determination.
Vent pipes required by Sydney Water must not be placed on the front elevation of the building or front roof elevation. The applicant, owner and builder must protect the appearance of the building from the public place and the appearance of the streetscape by elimination of all external services excluding vent pipes required by Sydney Water and those detailed upon development consent plans.

Unless previously paid, a Long Service Levy under Section 34 of the Building & Construction Industry Long Service Payment Act , 1986, must be paid and proof of payment provided prior to the issue of a Construction Certificate. The Levy can be paid directly to the Long Services Payments Corporation or to Council.

Water saving showerheads must be fitted to all showers within the development to reduce water consumption and promote energy efficiency.

All demolition work must be undertaken in accordance with the provisions of Australian Standard AS2601-2001: The Demolition of Structures.

a) All building work must be carried out in accordance with the provisions of the Building Code of Australia.
b) This condition does not apply to the extent to which an exemption is in force under Clause 187 or 188, of the Environmental Planning and Assessment Regulation 2000 , subject to the terms of any condition or requirement referred to in Clause 187 (6) or 188 (4) of the Regulation.

a) Building work that involves residential building work (within the meaning of the Home Building Act 1989 ) must not be carried out unless the principal certifying authority (PCA) for the development to which the work relates:

in the case of work to be done by a licensee under that Act:

i) has been informed in writing of the licensee's name and contractor license number; and
ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act; or

in the case of work to be done by any other person:

iii) has been informed in writing of the person's name and owner-builder permit number; or
iv) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in Section 29 of that Act,

and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.

Note: The amount referred to in paragraph (a) (iv) above is prescribed by regulations under the Home Building Act 1989. As at the date on which this Regulation was Gazetted, that amount was $3,000. As those regulations are amended from time to time, so that amount may vary.
b) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

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

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

58. Retaining walls and drainage

If the soil conditions require it:

a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided; and

b) adequate provision must be made for drainage.

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

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

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

c) In this condition, allotment of land includes a public road and any other public place.

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

i) is likely to cause pedestrian or vehicular traffic on a public place to be obstructed or rendered inconvenient, or
ii) building involves the enclosure of a public place;

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

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

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

d) Any such hoarding, fence or awning must be removed when the work has been completed.

Note : Prior to the erection of any hoarding, fence or the like on any footpath or other property owned or controlled by Council, permission must be sought and obtained from Council and the prescribed rental fee paid.

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

i) stating that unauthorised entry to the work site is prohibited; and
ii) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.

b) Any such sign must be removed when the work has been completed.

c) This clause does not apply to:

i) building work carried out inside an existing building; or
ii) building work carried out on premises that must be occupied continuously (both during and outside working hours) while the work is being carried out.

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

b) Each toilet provided:

a) must be a standard flushing toilet; and

b) must be connected:

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

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

(d) In this condition:

accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in Clause 95B of the Regulation.
approved by the Council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993 . public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993 . sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

Council must be provided with the following information prior to the commencement of any works;

a) the proposed builder's details (in writing); and
b) proof of payment of the required insurance premium pursuant to Part 6 of the Home Building Act 1989 .

A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H (4) of the Act ) unless an occupation certificate has been issued in relation to the building or part.

Note : New building includes an altered portion of, or an extension to, an existing building.

The applicant is to provide a brush box fence to 1.8m high generally along the boundaries of the eastern and western perimeters of the site where the current fencing has been demolished or deteriorated. Specifically, the capped and lapped paling fence to the rear of 36 Fitzwilliam Road, is to be shored.

The fencing to the eastern boundary is to include strip footings where appropriate and is to be completed on the eastern side within six (6) months of the date of the issue of the minute of order by the Land and Environment Court NSW in proceedings 10329 and 10500 of 2010. Details of the specification of the finalised quotation for the fence to the eastern boundary are to be provided to the owners of 36 Fitzwilliam Road seven (7) days before acceptance of the quotation.
( Inserted LEC proceedings 10329 and 10500 of 2010 )

Consent pursuant to s138 of the Roads Act is required prior to any works taking place on the Council’s road reserve.
( Inserted LEC proceedings 10329 and 10500 of 2010 )

The underside of the slab that is to remain and forming part of the basement slab shall be fully screened from view of the adjoining property at 36 Fitzwilliam Road by continuing the external wall of the house with a rendered finish to ground level to screen the underside of the slab when viewed from the adjoining property.
( Inserted LEC proceedings 10329 and 10500 of 2010 )

The two (2) windows to the eastern elevation to the living room and bedroom on level 1 are to be replaced with frosted glass.
( Inserted LEC proceedings 10329 and 10500 of 2010 )

The awning extending from the balcony on level 2 shall be non-trafficable and have applied to it a pebblecrete surface or the like to ensure that it remains non-trafficable.
( Inserted LEC proceedings 10329 and 10500 of 2010 )

ADVICE

The required Application for a Construction Certificate may be lodged with Council. Alternatively, you may apply to an accredited private certifier for a Construction Certificate.

WARNING: Failure to obtain a Construction Certificate prior to the commencement of any building work is a serious breach of Section 81A(2) of the Environmental Planning & Assessment Act 1979. It is also a criminal offence which attracts substantial penalties and may also result in action in the Land and Environment Court and orders for demolition.

This development consent does not remove the need to obtain any other statutory consent or approval necessary under any other Act, including:

an Application for Approval under Section 68 of the Local Government Act 1993 for an activity under that Act, including the erection of a hoarding. All such applications must comply with the Building Code of Australia.

an application for an Occupation Certificate under Section 109(C)(2) of the Environmental Planning and Assessment Act 1979.

An application for an Occupation Certificate may be lodged with Council if the applicant has nominated Council as the Principal Certifying Authority.

an Application for Strata Title Subdivision under the Strata Schemes (Freehold Development) Act 1973, if strata title subdivision of the development is proposed.

Sydney Water may require the construction of additional works and/or the payment of additional fees. Other Sydney Water approvals may also be necessary prior to the commencement of construction work. You should therefore confer with Sydney Water concerning all plumbing works, including connections to mains, installation or alteration of systems, and construction over or near existing water and sewerage services. Contact Sydney Water, Rockdale (Urban Development Section) regarding the water and sewerage services to this development.

Australia Post has requirements for the positioning and dimensions of mail boxes in new commercial and residential developments. A brochure is available from your nearest Australia Post Office.

AGL Sydney Limited has requirements for the provision of gas connections.

Sydney Electricity has a requirement for the approval of any encroachments including awnings, signs etc, over a public roadway or footway. The Engineer Mains Overhead Eastern Area should be contacted on 9663 9408 to ascertain what action, if any, is necessary.

Telstra has requirements concerning access to services that it provides.

All site works must comply with the occupational health and safety requirements of the NSW WorkCover Authority.

"Builders are advised to obtain a copy of the EPA publication Solutions to Pollution for Builders which provides environmental information including hazardous material management. The EPA can be contacted by phone on 131 555 or at "

Hazardous or intractable wastes arising from the demolition process must be removed and disposed of in accordance with the requirements of WorkCover and the EPA, and in accordance with the provisions of:

New South Wales Occupational Health and Safety Act, 1983;

New South Wales Construction Safety Act, 1912; Regulation 84A-J Construction Work Involving Asbestos or Asbestos Cement 1983;

The Occupational Health and Safety (Hazardous Substances) Regulation 1996;

The Occupational Health and Safety (Asbestos Removal Work) Regulation 1996; and

The Waste Minimisation and Management Act and Regulations.

Details of the exact nature, quantity, location, method of storage and packing of any material covered by the Dangerous Goods Act, 1975 , must be submitted to the WorkCover Authority in accordance with its requirements.

Approval is required from Council prior to the placement of any stor age bin on Council's footpath and/or roadway.

Home Building Act Insurance must be obtained from an insurance company approved by the Department of Fair Trading prior to the commencement of demolition or construction work.

10. Long Service Levy

The current rate of the levy required by this consent is 0.35% of the cost all building and construction work costing $25,000 or more.

Linda Pearson
Commissioner of the Court

CITATION:	Matsoukas v Woollahra Municipal Council [2010] NSWLEC 1255
PARTIES:	APPLICANT Harry Matsoukas RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10329, 10500 of 2010
CORAM:	Pearson C
KEY ISSUES:	DEVELOPMENT MODIFICATION :-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Woollahra Residential Development Control Plan 2003
CASES CITED:	1643 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685
DATES OF HEARING:	10 September 2010
DATE OF JUDGMENT:	13 September 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms J Reid, solicitor Pikes Lawyers RESPONDENT Mr P Rigg, solicitor Norton Rose