McNamee v The Hills Shire Council - [2010] NSWLEC 1169

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: McNamee v The Hills Shire Council [2010] NSWLEC 1169

PARTIES:
APPLICANT
Peter McNamee
RESPONDENT
The Hills Shire Council

FILE NUMBER(S): 10779 of 2009

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT CONSENT :- Modification of the Court development consent

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Roads Act 1993
Baulkham Hills Local Environment Plan 2005
Baulkham Hills Development Control Plan

CASES CITED: Makram Constructions Pty Limited v North Sydney Council [2002] NSWLEC 4
Australian Leisure and Hospitality Group v Manly Council (No 4) [2009] NSWLEC 226
North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468
Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685
King v Bathurst Regional Council (2006) 150 LGERA 362

DATES OF HEARING: 31 March 2010 and 1 April 2010

EX TEMPORE JUDGMENT DATE: 6 April 2010

LEGAL REPRESENTATIVES:
APPLICANT
Dr Berverling (barrister)
RESPONDENT
Mr Seymour (barrister)

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

6 April 2010
10779 of 2009 Peter McNamee v The Hills Shire Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 This is an application, pursuant to s 96(8) of the Environmental Planning Assessment Act 1979 (the Act), to modify the conditions of the development consent granted by the Court on 8 November 2005 in proceedings no: 11137 of 2000 for the construction of an apartment building on property at 9 Garthowen Crescent and 286A, 288 and 290 Old Northern Road, Castle Hill (the Court consent).

2 The applicant seeks deletion of conditions1, 3, 46, 67 and 68 of the Court’s consent and the inclusion of alternate conditions 3, 29a, 40(a), 46, 52(a) 52(b), 59(a), 59(b), 59(c), 67 as detailed in the Further Amended Without Prejudice Conditions (exhibit 6).

3 The main issues in this appeal are: whether Garthowen Crescent should be used by concrete pumping trucks and cranes for the construction of the development, the extent of the road dilapidation reports (condition 40(a), the amount of the security bond (condition 46) and the amenity and safety impacts caused by a modification of the consent.

4 The matter commenced as a conciliation conference under s34 of the Land and Environment Court Act 1979 (the Court Act) and was adjourned to allow the applicant time to prepare further planning evidence and a traffic management plan. Despite that further evidence, the parties were unable to reach agreement. The s34 conference was terminated and the parties consented, pursuant to s34 (4)(b)(i) of the Court Act, to my determining the matter based on the evidence I had heard at the conciliation conference and at the further hearing on 31 March 2010 and 1 April 2010.

5 Following a consideration of the evidence; including the residents’ objections and the relevant considerations in section 79C(1) of the Act I am of the opinion that the application should be approved because the modified conditions will satisfactorily address the issues raised by the council and the objectors. Accordingly, I order that the appeal be upheld subject to the agreed conditions in Annexure “A” for the reasons set out below.

Jurisdiction

6 This is not an appeal against a determination by the council but a modification of a development consent granted by the Court. In determining the applicant's modification application pursuant to 96(8) the Court is exercising original and not appellant jurisdiction. Makram Constructions Pty Limited v North Sydney Council [2002] NSWLEC 4 at 33.

7 Relevantly, the Court’s power under s 96(8) of the Act is limited to the modification of the original consent, subject to a merit assessment under s 79(1)(c) of the Act, and does not include any power to deal with an application for a construction permit under the Roads Act 1993 (Roads Act): Australian Leisure and Hospitality Group v Manly Council (No 4) [2009] NSWLEC 226 at 12 to 16.

8 This was explained to the objectors at the conciliation conference and the hearing because many of them attempted to give evidence about the road permit and the use of Garthowen Crescent in the construction of the development. I reiterate what was said on site; the grant of a construction permit under the Roads Act for this development is a matter for council, as the relevant roads authority, and not the Court. Any attempt to deal with the road permit or its conditions would be an error of law.

9 Having said that, council informed the residents and the Court during the hearing it had resolved to grant a permit under the Roads Act for a part time 30m construction zone, fronting the development site adjacent to 9-13 Garthowen Crescent. Furthermore, it was understood that in order to use the road permit this application must be approved because the conditions of the Court consent preclude the works allowed by the road permit from Garthowen Crescent.

Finding on jurisdiction

10 I am satisfied that I have power under section 96(8) of the Act to deal with this application because it concerns a modification of the conditions of a development consent granted by the Court.

11 In determining this application I must consider the relevant matters in s 79C(1) of the EPA Act. This includes any change in the facts and circumstances since the grant of the Court consent and the public interest. Furthermore, I note that the Court has I power to impose conditions on approval of a modification application, if applicable, provided they derive from the applicable power to approve the modification application: North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 at 476; 1643Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 at [41]; King v Bathurst Regional Council [2006] NSWLEC 505; (2006) 150 LGERA 362 at [53], [59], [76], [77], [84].

12 Based on the evidence, I am satisfied that the Court consent as modified will be substantially the same development consent as that originally approved by the Court. The parties did not raise this as an issue in the appeal but the Act requires that I must be satisfied of that fact.

13 The statement of facts and contentions describe the proposal as:

Deletion of Condition No 67;
Deletion of Condition No 68;
Amendment to the internal layout of Units 20 and 22;
Amendment of condition 3 to allow modified setback of the fence to Old Northern Road, between Garthowen Crescent and Old Northern Road.

Background

14 The site is located between Garthowen Crescent and Old Northern Road, Castle Hill and is zoned 2(a2) under the Baulkham Hills Local Environment Plan 2005 ("BHLEP") gazetted on 26 August 2005. At the time of the lodgement of the original application on 23 October 2000 the site was zoned residential 2(a) and this development was permissible. The relevant development history of the site and the planning controls are set out in the statement of facts and contentions filed with the Court and state that the site is also controlled by Baulkham Hills Development Control Plan (BHDCP) Part 6, Section 7, Apartment Buildings; BHDCP Part D, Section 1- Parking and BHDCP Part D, Section 3- Landscaping.

15 The history of the Court’s consent in this matter is set out in the facts and contentions filed by council and I do not need to repeat them. No issue was raised about my power to deal with this application.

16 Although the matter was not resolved at the s34 conciliation conference that process was useful because it allowed the residents an opportunity to articulate their concerns directly to the applicant. As a result of hearing those concerns the applicant prepared additional information including: a construction management plan, (exhibit E), prepared by Mike Dalzell Pty Limited, dated 8 January 2010; and a traffic management plan prepared by Dasco Australia Pty Limited dated 25 March 2010 (exhibit F); and a Statement of Evidence from the applicant’s planner Mr Goldsmith (exhibit D). The further reports attempt to address the issues discussed with the residents and council onsite. Relevantly, it proposes a plan for the co-ordination of traffic movements of construction vehicles and trade vehicles and pedestrians in Garthowen Crescent. It sets out the requirement for a monthly audit and report to council of construction traffic movements for the development and a reporting system to ensure compliance with the conditions of consent. Practically it offers a contact for the applicant who is available to respond to any issue requiring a response: for example the movement of construction vehicles to allow access to an emergency vehicle.

Applicant’s changed circumstances

17 A change of circumstance is a relevant consideration in the assessment of this modification application under section 79C(1) of the Act. The applicant’s evidence is that he needs to modify the conditions of the Court consent because his financial circumstances have changed since it was granted. The applicant’s current financial position is explained in his affidavit tendered at the hearing (exhibit C) and his correspondence to the bank (exhibit H). It demonstrates that the applicant can only arrange finance for the construction of one of the approved residential apartment buildings. Therefore, the developer is unable to rely on the adjoining site as an access point for construction vehicles. The adjoining site will not be developed simultaneously with this development.

18 With respect to the fence and landscaping the applicant’s evidence is that the fence needs to be moved to accommodate the existing vegetation that council requires be retained. To achieve this the conditions of the Court consent need to be modified.

Council’s evidence

19 Council's Manager of Infrastructure and Planning, Mr King, gave comprehensive oral evidence at the hearing consistent with his written evidence (exhibit 5). He said that the applicant’s traffic management plan and the construction management plan (subject to some minor amendments which were reflected in the conditions) which are to be incorporated in the conditions of consent satisfactorily address the traffic and safety issues raised by the application (exhibit 6).

20 Council also relied on the evidence of its Tree Management Coordinator, Mr Peacock. He supported the amended conditions that repositioned the front fence to the Old Northern Road and the amendment to the landscaping. He spoke to his written evidence, which was tendered in Court (exhibits 4). Ultimately the issues about the front fence and the trees were resolved by agreement and the agreed changes are reflected in the amended conditions in Annexure “A”.

Objector’s Evidence

21 Council’s Notice of Objectors dated 29 March 2010 lists the residents who did not support this application. That list was added to on the day of the hearing because some additional residents addressed the Court. In fact many of the objectors to this application attended both the s34 conference and the view at the commencement of the hearing and addressed me twice about their objections to the application. Their oral evidence in the main was consistent with their written objections lodged at the time of notification included in the council’s bundles of documents tendered to the Court (exhibit 2). Primarily, the residents’ concerns are; an increase in traffic, vehicle and pedestrian safety, noise and dust from construction vehicles, the loss of resident parking on the street, and damage by construction vehicles to the footpath and roadway in Garthowen Crescent.

22 The residents’ evidence was frank and passionate in its objection to this application. Collectively they expressed a fear about the approval of this application because of its impacts on their safety and amenity. I understood their concerns because I had the opportunity to walk the streets and experience their existing amenity. Most wanted to preserve the existing neighbourhood for the local residents and the commuters who currently use Garthowen Crescent.

23 Only one resident addressed me in support for the application. He told the Court that this developer needs practical access to the site and in his view this is achieved by allowing access as proposed by the applicant from the Crescent and Old Northern Road.

24 There was some discussion by some of the residents about the police opposition to the grant of a construction permit in Garthowen Crescent. However, for the reasons stated earlier this is not a relevant consideration in this matter because I have no jurisdiction to deal with the issue of the construction permit.

25 A number of residents also suggested measures to improve resident parking and safety in Garthowen Crescent, for example the adoption of restricted resident parking. Again those matters are outside this application to the Court and should be addressed to Council.

26 The notes of the evidence taken onsite was recorded by the council’s solicitor and tendered to the Court. I have read those notes and it accords with my recollection of that evidence.

The Bond

27 The bond in condition 46 proposed by council requires the applicant to pay the council a sum of $162,225 in respect of any damage.

28 According to the evidence a council officer determined this amount. The details of its assessment are set out in an email prepared by that officer. (exhibit 8). However, that officer did not give evidence in the hearing and the council was unable to provide any particular detail about the basis of the calculation. Mr King, who gave evidence on other issues was asked some questions about the justification of such a condition and the proposed amount but was not able to provide any further detail because he had no understanding of how the amount was assessed. This was not a matter he dealt with. The applicant's evidence is that he has already paid $30,000 to cover damage under another condition of the consent. He argued that payment was sufficient and the further payment could not be justified. Although I have power under s 80 A(6)(a) of the Act to impose a further amount for security, the applicant submits that based on his analysis of an appropriate amount, the sum would either be $6,762 or $8,172, depending on the methodology adopted.

Finding

29 I do not accept that exhibit 8 explains in any clear way how the amount of $162,225 was calculated or be justified under s80 A(6)(a) of the Act as an appropriate security bond in the circumstances of this case particularly having regard to the fact that the applicant has already agreed and paid $30,000 under another condition of the consent in respect of damage.

30 Having regard to the extent of the frontage that will be used to facilitate construction based on the evidence, I think it is appropriate to adopt the same methodology that the council appears to have relied upon in the imposition of the $30,000 and based on that methodology I accept the sum of $8,172 is an appropriate security bond.

Road Dilapidation Report

31 The residents and the council are concerned that construction vehicles will damage the roadway and footpath in Garthowen Crescent. To address this Council requires a comprehensive dilatation report of the area before and after the works. Based on the evidence, I am of the opinion that the extent of any road dilapidation report for this development should the frontage of the site. The suggestion that this applicant, unlike any other applicant within Council’s area, should be required to carry out a dilapidation report beyond the area used by the construction trucks and trade vehicles, is not justified, based on the evidence.

32 The applicant opposes condition 59(b), the condition in respect of the use of the site frontage and footpath for the pouring of concrete and by cranes. It requires the applicant to lodge an application with council for such a use and states that council is to respond within 14 days. The applicant say a response in 14 days is to slow.

Finding

33 The applicant advises that the development needs to be completed expeditiously. This would also be in the interests of those residents who expressed concern about the inconvenience caused by the construction works. Based on the evidence that the applicant may only find out it needs to pour concrete or use a crane 24 hours before the required date I think that a fourteen day response time is too long. A more reasonable time frame is 7 days, which according to Mr King's evidence is in keeping with the council’s usual practice of responding within a twenty-four hour period.

Construction Hours

34 Some residents complained about the construction hours. The current conditions allow for construction six days per week, Monday to Saturday, 7am to 5pm. As I understand council’s evidence this is a standard condition imposed by council on development consents. While I appreciate that one particular resident said that he would prefer that the construction start at a later time, I think it was 10 o'clock, to accommodate the fact that he was a shift worker, on the basis of Mr King's evidence it would be unfair to this applicant to impose hours of operation which are inconsistent with those normally applied to developments within the particular area.

35 Based on the evidence, I am satisfied after an assessment under section 79C of the Act that this application should be approve subject to the conditions. Having regard to the applicant’s changed financial position and the fact that he is unable to use the adjoining site to access the construction of this development I accept his evidence that it is necessary to allow access from Garthowen Crescent.

36 There is no doubt that the residents who addressed the Court about their objection to the application were genuinely concerned for the safety and amenity of their neighbourhood. However, the applicant has an approval to construct his development and based on the evidence it would appear that he needs access from Garthowen Crescent to construct this approved development. Therefore, it is necessary and reasonable in this case, based on the evidence to modify the conditions of the Court’s consent to allow that construction from Garthowen Crescent.

37 I am satisfied on the evidence that the applicant, through its construction management plan and traffic management plan, which are incorporated into the consent, will satisfactorily address the issues raised by the resident objectors and the council.

38 In the event that an issue arises between a resident and the developer in respect of the use of Garthowen Crescent the amended conditions identify a contact person to deal with that issue. The amended conditions require that council audit the trucks using Garthowen Crescent and based on the evidence and local residents’ concern I have no doubt that both the council and residents will monitor the construction of this development to ensure that the applicant complies with the conditions of the Court’s consent.

39 Accordingly, the Court makes the following Orders:

1. The appeal is upheld.
2. The development consent of the Court in matter No: 11137 of 2002 is amended by the imposition of the conditions as detailed in Annexure “A” which reflect the reasons in my judgment.
3. The exhibits are returned except Exhibit 6, F and E.

___________________

Susan Dixon

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

McNamee v The Hills Shire Council

1. Development in Accordance with Approved Plans

Subject to the conditions that follow, the development is to be carried out in accordance with the plans and details stamped and approved with NSW Land and Environment Court Appeal Determination No. 11137 of 2002 being the following:

DM 01/A-B dated 15 September 2005, prepared by Gelder Architects

DM 02/A Version B dated 15 September 2005, prepared by Gelder Architects
DM 03/A-B dated 15 September 2005, prepared by Gelder Architects
DM 04/A-B dated 15 September 2005, prepared by Gelder Architects
DM 05-B dated 15 September 2005, prepared by Gelder Architects
DM 06-B dated 15 September 2005, prepared by Gelder Architects
DM 07B dated 15 September 2005, prepared by Gelder Architects
DM 08/A -B dated 15 September 2005, prepared by Gelder Architects
DM 12 Version A dated 15 September 2005, prepared by Gelder Architects
DM 14 dated 15 September 2005, prepared by Gelder Architects
~~DM L01 dated October 2000 and Tree Survey Plan stamped 17 December 2003 and marked Exhibit 23";~~

as modified by the following plans and details stamped and returned with this NSW Land and Environment Court Appeal Determination being Appeal No. 10779 of 2009:-
REFERENCED PLANS AND DOCUMENTS

DRAWING NO. DESCRIPTION DATE

S96 03/A Ground Floor Plan 20/10/2009

S96 04/A First Floor Plan 20/10/2009

S96 05 Second Floor Plan 20/10/2009

S96 06 Third Floor Plan 20/10/2009

S96 07 Fourth Floor Plan 20/10/2009

No work (including excavation, land fill or earth reshaping) shall be undertaken prior to the issue of the Construction Certificate, where a Construction Certificate is required.

2. A plan (to scale) for the landscaping of the site in accordance with Development Control Plan No. L07 (Landscaping) being submitted to, and approved by, Council or a suitably qualified landscape architect or experienced horticulturalist prior to the issue of construction certificate. Details shall include:

(i) all existing trees, landscape features' and prominent structures;
(ii) a schedule of proposed planting, including botanic name, common name, expected mature height and staking requirements;
(iii) details indicating a minimum of 300mm of good quality topsoil to all garden beds;
(iv) details indicating a minimum of 150mm of good quality topsoil to all park areas;
(v) all garden bed areas to be clearly defined by brick, concrete or timber edging with its top edge finishing flush with the surface of adjacent grass areas.
(vi) perimeter planting shall be undertaken along site boundaries to provide a dense-foliaged plant screen of trees and shrubs over a broad height to minimise the effect of the development upon adjoining properties.
(vii) plant size and irrigation details.
(viii) street tree planting to Old Northern Road & Garthowen Crescent to Council's specifications.

3. Landscaping and Fence

A detailed Landscape Plan is to be submitted to Council for approval also showing the fence to be constructed along the Old Northern Road frontage. The fence is to be stepped back a minimum of 1500mm from the property boundary and up to 3000mm generally in accordance with Exhibit 7.

The Plan is also to show how construction of the fence over areas that may affect trees required to be retained by condition 42 of this consent will be carried out without affecting those trees.

Once approved by Council, the development is to be carried out in accordance with the approved Landscape Plan.

4. The landscaping of the site being carried out prior to occupation or use of the premises in accordance with the approved plan and being maintained at all times to Council's Landscaping Development Control Plan.

5. Submission of a bond or bank guarantee in the amount of $20,000 for landscaping required by Condition No.2 is to be lodged with Council prior to the issue of the construction certificate. It shall be refunded 6 months following final inspection and the submission to Council of certification from a qualified Landscape Architect or an accredited certifier that the works have been carried out in accordance with the approved landscape plan.

6. All vent riser stacks which project through the roof planes shall be enclosed within chimney style cladding with minimum dimensions of 450 x 900mm and to the height of the ridge with a painted finish to match the wall colour and finish.

7. The applicant shall cause to be registered on the title to the property (including any titles created by future subdivision) a restriction on use under Section 88E of the Conveyancing Act 1919 at no cost to the Council. The terms of restriction shall be to prohibit the marketing or use of any unit for more bedrooms than indicated in the approved plans. The Council's consent shall be required to vary or release the restriction on user.

8. All one-bedroom units shall be provided with only one bathroom and may in addition to the bathroom be provided with a separate W.C. room that provides for a toilet and hand basin only. Under no circumstances shall a shower or both be installed within the W.C. room.

9. Submission to, and approval by, Council or an Accredited Certifier of a construction certificate. Plans submitted with the construction certificate are to be amended to incorporate the conditions of the Development Consent.

10. Work on the project to be limited to the following hours: -

Monday to Saturday - 7.00am to 5.00pm;

No work to be carried out on Sunday or Public Holidays.

11. The demolition of the existing dwellings shall be carried out in accordance with Australian Standard AS 2601-1991: The Demolition of Structures. No demolition materials shall be burnt or buried on site. The person responsible for the demolition works shall ensure that all vehicles leaving the site carrying demolition materials, have their loads covered and do not track soil or waste materials onto the road. Hazardous and/or intractable wastes shall be disposed of to the satisfaction of Council's Manager -Environmental Protection. Should the demolition works obstruct or inconvenience pedestrian or vehicular traffic on an adjoining public road or reserve, separate application shall be made to Council to enclose the public place with a hoarding or fence.

12. A trade waste bin or a builder's rubbish compound shall be provided on the site within the property boundaries during construction of the building. The compound shall be a minimum of 2 metres x 2 metres squared and shall be constructed of sediment fencing or shade cloth firmly staked into the ground. During construction of the building, all building waste shall be disposed of into either the trade waste bin or the rubbish compound.

13. A stabilised all weather access point is to be provided prior to commencement of site works, and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the requirements of the Department of Land and Water Conservation.

14. Erosion and sedimentation controls shall be in place prior to the commencement of site works; and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the details approved by Council and the requirements of the Department of Land and Water Conservation. Additional erosion and sedimentation controls may be required on site as directed by Council's appropriate officer.

15. The building shall be a minimum Type A construction in accordance with the Building Code of Australia, as applicable to a Class 2 & 7a building.

16. Duplicate copies of Structural Engineer's details of footings, concrete beams, slabs and stairs, retaining walls, structural steelwork, roof timbers and roof construction to be submitted to the Principal Certifying Authority prior to work commencing. The details shall also include certification of the required FRLs of the structural members in accordance with the Building Code of Australia.

17. The erection of suitable fencing or other measures to prevent public access to the site and building works, materials or equipment when the building work is not in progress or the site is otherwise unoccupied.

The erection of a sign, in a prominent position, stating that unauthorised entry to the site is not permitted and giving an after hours contact name and telephone number. If the development is to be privately certified, the name and contact number of the Principal Certifying Authority shall be provided.

18. The following inspections are required to be carried out during the construction of the building:

You are advised that Council provides the service of carrying out the above inspections at the rate of $60.50 each (GST inclusive). Council may also issue a Compliance Certificate. Each Certificate for the above shall be at a charge of $71.50 (GST inclusive). 48 hours notice must be given, either in writing, or by telephone prior to Council carrying out the inspection. Should you, however, wish to obtain the services of a private accredited certifier to carry out the required inspections, you are required to notify Council of the Principal Certifying Authority within a minimum of 2 days prior to commencement of work.

NOTE

19. Details of the proposed mechanical ventilation system for the basement carparks shall be submitted to, and approved by the Principal Certifying Authority prior to installation and shall be in accordance with AS 1668.

20. Details of an acoustic consultant designed noise suppressant methods of construction for the traffic noise effected portions of the buildings to be submitted to Council with the Construction Certificate Application.

a) The L10 (20 minute) noise level in the dwelling, with windows and external facade doors closed, shall be less than 40 dB(A)
b) The L10 (20 minute) noise level in the dwelling, with windows and external facade doors normally open, shall be less than 50 dB(A).

The requirements of (b) may be equally satisfied by the alternative provision of either a mechanical or natural ventilation system or a special acoustic design solution as approved by Council.

21. The acoustic consultant shall progressively inspect the installation of the various noise suppression components and certify to Council as to their correct installation.

22. External plant such as compressors, air conditioners and other machinery likely to emit noise shall be located so adjoining areas are not adversely affected.

23. A car washing bay is to be provided within the carpark. The washbay is to be connected to the sewer in accordance with the requirements of Sydney Water.

24. In order to certify that engineering plans and specifications are in accordance with the Conditions of the Development Consent and Council's Design Guidelines and/or Works Specification, an Engineering Construction Certificate is to be obtained prior to the commencement of any works.

To obtain an Engineering Construction Certificate, a completed application form and payment of the appropriate fee is required with the submission of the design plans and specifications for approval. Such plans and specifications are to be prepared by a suitably qualified person or company. The engineering design shall be based on plans of survey showing existing contours and levels prepared by a registered surveyor to Australian Height Datum (AHD).

Four (4) copies of the plans and specifications are required to be submitted with the Engineering Construction Certificate application.
Please note: All construction work within the road reserve or any other land under Council's control are to be carried out under the provisions of the Roads Act (1993) and as such, may only be certified and approved by Council.

25. The submission to Council of an application for gutter and footpath crossings, accompanied by the current fee as prescribed in Council's Schedule of Fees and Charges.

26. All engineering works associated with the development are to be carried out under the supervision of a practising Professional Engineer or Registered Surveyor.

All work in the road reserve shall be supervised by a suitably qualified and experienced Civil Engineer, Registered Surveyor or Civil Engineering Foreman. The supervisor's name, address and contact phone number shall be submitted to Council prior to the commencement of construction in the road reserve.
In this regard a construction programme and anticipated duration of construction shall be submitted in writing to Council prior to the commencement of any works in the road reserve.

27. A formal subdivision application is to be submitted to Council in respect of any proposal to strata title subdivide the approved development.

28. Domestic Waste Management - 34 units

Construction of the garbage and recycling bin storage area(s) is to be in accordance with the "Bin Storage Facility Design Specifications" as attached to this consent. Storage facility is to be provided for a minimum of:

³

or as required by Council's Waste Management Co-Ordinator.

29. A dilapidation survey be completed by an experienced and qualified Heritage Architect for the Heritage building, with a view to identifying the current state of the structure, materials and finishes and identifying items of the above which may be prone to damage or decay during the construction period. The survey shall include recommendations for the protection of those areas and areas of the site.

29a. Further Dilapidation Report

A copy of this report is also to be distributed to the owners of the property.

30.

(i) An interpretive bronze plaque 350 x 250 mm to an agreed design shall be erected on a wall to the Old Northern Road frontage of the proposed development, at the cost of the Applicant.

(iii) An interpretive panel 800 x 600 mm to an agreed design shall be erected at the Railway Cutting site, Harold Sutton Park, at the cost of the Applicant.

(iv) An interpretive bronze plaque 350 x 250 mm to an agreed design shall be fixed to a wall within Strang Pathway, to mark the significance of the Garthowen access.

If this condition is given effect by the carrying out of the adjoining development at No. 11-13 Garthowen Crescent, Appeal No. 11017 of 2003 then this condition is deemed to be satisfactory.

31. The two buildings fronting Garthowen are to have an entrance pergola consisting of four brick piers across the entrance pathway, near the building façade surmounted by horizontal cross sets of timber rafters suitable for climbing plants.

32. The following fencing treatment is to be provided to Garthowen Crescent;

- Painted and rendered brick piers set 1 metre behind the property line to 1100 mm high 350 mm square with low brick link walls 300 mm high and stepped as required. Vertical steel rod balustrade infill , dark grey in colour to be provided between the piers on the rear face of piers and the low link walls remaining on the property line with hedging shrubs within the resultant planter area.

33. The buildings fronting Garthowen Crescent and Old Northern Road are to have detailed colour boards.

(i) The guttering and windows to the separate buildings are to be co-ordinated to provide separate and distinctive colour schemes and the Garthowen Crescent Building to have a lighter colour scheme and the Old Northern Road building to have a darker colour scheme.
(ii) The two gable ended facades to Garthowen Crescent are to be altered so as to address the provision of the entrance pergola and to each have differing window arrangements. The arrangement on each is to have larger windows to the ground floor and smaller windows to the first floor.

(iii) The garbage room is to be proven to be sufficient size to accommodate all units, to be set into the ground level as far as possible, to have a hipped roof and to clad above 1200 mm in vertical stained timbers, in a staggered arrangement to reduce the apparent bulk and to allow climbing planting.

34. The building fronting Garthowen Crescent is to have a different colour scheme from the darker scheme for the Old Northern Road building. Each scheme is to utilize face brickwork to external walls below 152.50 - or nominal ground floor level in each case. The external paint colours for the render are to be selected from the Pascol range or equivalent Heritage Colour Chart and submitted for approval prior to the Construction Certificate.

35. All roof tiles shall be in a non-glazed and matt finish in a grey colour to be demonstrated with a sample submitted prior to the Construction Certificate.

36. A "Waste Management Plan" is to be submitted with the application addressing all the requirements given in Council's "Waste Management Plan Guidelines" for Development Applications". This Guideline is supplied with all Development Application Forms.

37. Any excavated material not used in the development is to be disposed of in accordance with the Waste Management Plan.

38. The householder is required to notify Council prior to occupancy that the garbage service, which is mandatory, is to be commenced and pay the necessary charges upon receipt of an account.

39. Prior to demolition of any existing dwelling, Council shall be notified to collect any garbage or recycle bins and to discontinue the service.

40. An approved temporary closet connected to the sewers of the Sydney, or alternatively an approved chemical closet is to be provided on the land, prior to building operations being commenced.

40(a) Road Survey and Security Bond

The Applicant shall provide to Council a dilapidation survey, no later than 30 April 2010, of the roadway, kerbs and gutters, detailing the road condition of the sites frontage of Garthowen Crescent. The survey is to be include a video survey of the roadway and footpath reserve of Garthowen Crescent.

41. A contribution (currently $68,569.68) being paid to Council prior to the issue of a construction certificate in accordance with Section 94 of the Environmental Planning & Assessment Act 1979, to provide for the increased demand for public amenities and services resulting from the development.

The applicant is advised that the above contribution amount consists of $3,905.90 for each of the three (3) bedroom units, $2,603.91 for each of the two (2) bedroom units, $1,880.60 for each of the one (1) bedroom units, less $5,063.17 for each of the existing allotments.

42. Eighteen (18) trees are indicated for retention. They are tree numbers 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 19, 22, 24, 25, 27, 28, 29 and 30 as shown on the Tree Survey Plan stamped 17 December 2003 and marked “Exh 23” (subsequently also Exhibit L in the proceedings). All trees that are to be retained are to be protected during construction in accordance with condition 53.

43. In order to provide satisfactory servicing of the development, engineering design and construction works are to be provided in accordance with;

44. Concrete footpath paving 1.5 metres wide across the Garthowen Crescent frontage of the development site and extending/transitioning into the existing concrete footpath approximately 35 metres to the west of the site (Strang Pathway).

45. In order to provide satisfactory access and parking arrangements, the formation, paving, sealing and draining of all access roads, car parking and manoeuvring areas is required. The design of the parking area shall be in accordance with:

Australian Standard 2890.1 - 1993 -"Parking facilities -Off-street carparking"
Council's Development Control Plan No.102 - "Car Parking"
Council's Design Guidelines for Subdivisions and Developments

The work shall include the construction of a heavy duty layback and footpath crossing in Garthowen Crescent 6.0 metres wide at the boundary splayed to 7.5 metres wide at the kerb. All internal car parking spaces and access roads shall be prominently and permanently linemarked, signposted and maintained to ensure entry and exit is in a forward direction at all times and that parking and traffic circulation is appropriately controlled.
All access roads and carparking areas are to be separated from landscaped areas by means of a kerb or concrete dwarf wall.

46. Pavement and Public Asset Protection Bond

In accordance with Section 80A(6)(a) of the Environmental Planning & Assessment Act 1979 a security bond to the value of $8,172.00 is required to be submitted to Council to guarantee the protection of the adjacent road pavement and public assets during construction works. The above amount is calculated at the rate of $30.00 per square metre and encompasses the site’s frontage of Garthowen Crescent.

The bond shall be lodged with Council no later than 30 April 2010.

47. The provision of a security bond to guarantee the construction, completion and performance of all works external to the site is required. The amount of the security bond will be based on 150% of the value of providing all such works or $10,000.00 (whichever is greater) and shall be lodged with Council prior to the issue of an Engineering Construction Certificate.

The value of the External Works Security Bond shall be confirmed with Council prior to submission and may be in the form of cash or an unconditional bank guarantee. The bond is refundable upon written application, payment of the applicable bond release fee and subject to all work being completed to the satisfaction of Council’s Engineer.
Note : The release of a security bond for works in trafficable areas (measured from the rear of the kerb) shall be subject to a satisfactory performance period and final inspection 6 months after certified completion of the works.

48. The submission to Council of a Draft 88B Instrument/Request document, together with a $1,000 cash bond for the creation of a Positive Covenant and Restriction As to User in respect of the on-site stormwater detention system. Council will refund the $1,000 cash bond upon registration of the 88B Instrument/Request document at the Land Titles Office.

NOTE: A request document must be signed by .Council and a fee is payable in accordance with Council's "schedule of fees and charges".

49. Should a Bank Guarantee be the method of submitting a Security Bond, the guarantee is to:

NO BANK GUARANTEE WILL BE ACCEPTED DIRECT FROM THE APPLICANT.

50. The lodgement of a suitable undertaking, under the common seal of the company, to:

i) Effect the consolidation of allotments, prior to occupation and/or operation of any part of the approved development.

51.

(a) The Applicant shall apply for an excavation permit under Section 140 of the heritage Act 1977, prior to the release of the construction certificate.

(b) The Applicant shall comply with the conditions and requirements of any excavation permit required, and must ensure that allowance for compliance with these conditions and requirements is incorporated into the development schedule of works.

(c) General bulk excavation of the site is not to commence prior to compliance with the conditions and requirements of any excavation permit required.

PRIOR TO ANY WORK COMMENCING ON THE SITE

52. Prior to commencement of construction of medium density and apartment building development, the builder/developer is to submit to Council for approval a road inventory report in accordance with the designated access road identified for construction/excavation of material in the Waste Management Plan submitted to and approved by Council.

52(a). Construction Zone

52(b). Traffic Management Plan

53. The trees to be protected in accordance with the Arborists' drawing of 17 December 2003 are to be protected for the duration of construction by a 1.8m high chain wire mesh fence which is to be erected not less than 3m from the base of each tree. Composted leaf mulch is to be spread within the root protection zone to a depth of not greater than 100 mm. Further to this, the following is not to be undertaken within the root protection zone (RPZ) and will also restrict the following:-

Parking of vehicles or machinery within the RPZ as this leads to compaction of the soil
Mechanical damage occurring to the trees.
Storage of building materials or fill with the RPZ.
The placement of work site offices and sheds within the RPZ.
No excavation works at all are to be undertaken within the RPZ.
The installation of services whether they be permanent of temporary is not to be undertaken within the RPZ, if the services cannot be relocated then a qualified Arborist will be required to give advice on the works proposed.

Further to this a quarterly report is to be submitted by a qualified Arborist indicating the health of the seven (7) trees which are bonded.

54. Council must be notified in the event of any existing damage to the road, kerb and gutter, road shoulder, footpath, drainage structures and street trees fronting the development prior to commencement of work.

Adequate protection must be provided for Council infrastructure prior to work commencing and during building operations.
Any damage to Council's assets shall be made good prior to commencement of use.

55. All work shall be completed in accordance with the development consent, Council's Engineering Works Specification for Subdivisions/Developments and include any necessary works to make the construction effective. All works and public utility relocation shall incur no cost to Council.

56. The applicant shall contact Council's Supervising Officer 48 hours prior to commencement of work in Council's Road Reserve to arrange an on-site meeting between the superintendent (or applicant's delegate), the contractor and council's representative.

57. All contractors working in Council's road reserve shall take out public liability insurance for a minimum amount of $10 million. The policy shall specifically indemnify Council from all claims arising from the execution of the works. Written evidence of this insurance shall be supplied to Council's representative prior to the commencement of construction in the road reserve.

58. In order to ensure works are constructed in accordance with Council's Works Specification and the approval, inspections and/or compliance certificates are required at the following stages (where relevant) and subject to payment of the appropriate inspection fee:

59. Should an item be located during construction, which relates to the early railway and qualifies as a relic under the Heritage Act NSW, all work in the vicinity of the relic is to cease until an experienced archaeologist has examined the find and reported it to the Council and to the NSW Heritage Office.

59(a). Truck Movements and Access

1) Truck and heavy vehicle access to and from the development site will be restricted to the McMullen Avenue end of Old Castle Hill Road, with trucks moving in a clockwise direction in Garthowen Crescent.

59(b). Concrete Pumping and Cranes

59(c). Numbers of Trucks

PRIOR TO THE ISSUE OF OCCUPATION OR SUBDIVISION CERTIFICATE

60. Prior to the Occupation Certificate being issued, finalisation of the building project the builder/developer is to provide and updated road inventory report identifying any damage to local roads and means of rectification to these roads for the approval of Council.

61. In order to provide an accurate record of the works undertaken, you are required to submit a set of WAE plans detailing all completed civil works. The WAE plans shall be certified by a Registered Surveyor indicating that the survey is a true and accurate record of the works that have been constructed.

The WAE plans shall be prepared in accordance with Council's Design Guidelines for Subdivisions and Developments.

62. The on-site stormwater detention system shall be completed to the satisfaction of the Principal Certifying Authority prior to occupation of the dwelling. On completion of all works associated with the on-site storm water detention system, the Principal Certifying Authority will require:

The submission of works as executed drawings prior to a final inspection level. The drawings are to be prepared by a suitably qualified engineer or registered surveyor.
The submission of a certificate of hydraulic/hydrological compliance prior to a final inspection. This certificate is to be prepared by a suitably qualified engineer or registered surveyor and is to include details of any non-compliance with approved plans and specifications. The submission of a certificate of adequacy from the structural engineer for the on-site stormwater detention system.

63. "Positive Covenant" under Section 88E of the Conveyancing Act, 1919 is to be established over the title of the property to ensure the maintenance of the on-site detention structure.

64. A suitable "Restriction-As-To-User" is to be created over the on-site stormwater detention structure, that restricts development and/or the varying of the finished levels of the structure.

65. The consolidation of all allotments in the development into one (1) allotment prior to the issue of an occupation certificate.

66. "Positive covenant" under Section 88E of the Conveyancing Act, 1919 is to be established over the title of the property to ensure the maintenance of all linemarking, signage and traffic control devices.

67. Construction Access

For reasons of minimising the impact of construction traffic on the local residents of Garthowen Crescent, the following conditions are imposed:
(a) All construction works and delivery of materials is to be undertaken in accordance with the Construction Management Plan prepared by Mike Dalzell Pty Limited (Exhibit E).

68. [Deleted]

69. A copy of the fire safety schedule is to be displayed on a prominent location within the building.

70. Post-Construction Dilapidation Report - Heritage Item

A copy of this post construction report is also to be distributed to the owners of the property.

71. Post-Construction Dilapidation Report - Road Reserve

Prior to the issue of the Occupation Certificate, the Applicant shall provide to Council a post construction dilapidation survey of the roadway, kerbs and gutters, detailing the road condition of Garthowen Crescent as well as Old Castle Hill Road between McMullen Avenue and Garthowen Crescent (north). The survey can be a video survey of the roadway and footpath reserve of Garthowen Crescent.

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Citations

McNamee v The Hills Shire Council [2010] NSWLEC 1169

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

5

Makram Constructions Pty Limited v North Sydney Council [2002] NSWLEC 4

Australian Leisure and Hospitality Group Pty Ltd v Manly Council (No 4) [2009] NSWLEC 226

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

CITATION:	McNamee v The Hills Shire Council [2010] NSWLEC 1169
PARTIES:	APPLICANT Peter McNamee RESPONDENT The Hills Shire Council
FILE NUMBER(S):	10779 of 2009
CORAM:	Dixon C
KEY ISSUES:	DEVELOPMENT CONSENT :- Modification of the Court development consent
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Roads Act 1993 Baulkham Hills Local Environment Plan 2005 Baulkham Hills Development Control Plan
CASES CITED:	Makram Constructions Pty Limited v North Sydney Council [2002] NSWLEC 4 Australian Leisure and Hospitality Group v Manly Council (No 4) [2009] NSWLEC 226 North Sydney Council v Michael Standley & Associates Pty Ltd (1998) 43 NSWLR 468 Pittwater Road Pty Ltd v Pittwater Council [2004] NSWLEC 685 King v Bathurst Regional Council (2006) 150 LGERA 362
DATES OF HEARING:	31 March 2010 and 1 April 2010
EX TEMPORE JUDGMENT DATE:	6 April 2010
LEGAL REPRESENTATIVES:	APPLICANT Dr Berverling (barrister) RESPONDENT Mr Seymour (barrister)

DRAWING NO.	DESCRIPTION	DATE
S96 03/A	Ground Floor Plan	20/10/2009
S96 04/A	First Floor Plan	20/10/2009
S96 05	Second Floor Plan	20/10/2009
S96 06	Third Floor Plan	20/10/2009
S96 07	Fourth Floor Plan	20/10/2009