Michael Barclay v Mosman Council
[2004] NSWLEC 664
•12/01/2004
Land and Environment Court
of New South Wales
CITATION: Michael Barclay v Mosman Council [2004] NSWLEC 664 PARTIES: APPLICANT:
Michael Barclay
RESPONDENT:
Mosman CouncilFILE NUMBER(S): 10942 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Landscaping - Privacy LEGISLATION CITED: Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours, (SREP23) - Mosman Local Environmental Plan 1998, (MLEP) - Mosman Residential Development Control Plan, (MRDCP) - Notifications Development Control Plan, (NDCP) CASES CITED: DATES OF HEARING: 14/10/2004 and 01/12/2004 EX TEMPORE
JUDGMENT DATE :12/01/2004 LEGAL REPRESENTATIVES:
APPLICANT:
Mr M Barclay, owner
SOLICITORS:
N/A
RESPONDENT:
Mr S Griffiths, solicitor
SOLICITORS:
Pike Pike and Fenwick
JUDGMENT:
Appeal No: 10942 of 2004
- 10
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESWatts C
1 December 2004
10942 of 2004 Michael Barclay v Mosman Council
1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of Mosman Council to refuse a development application to alter and add to a dwelling at Lot 11 in DP 130191, being No 200 Spit Road, Mosman.JUDGMENT
2 I first visited the land in company with the parties on the morning of the first day of the proceedings.
3 I have concluded that the development application may be conditionally approved on the basis of the amended plans, when considered under s 79C of the Environmental Planning and Assessment Act 1979.
The land
4 The land is situated on the northwestern corner of Spit and Quakers Roads. It is generally rectangular in shape with an area of 497m2, (architectural plans indicate 505.8m2). It has an eastern (front) boundary to Spit Road of 16.89 m, a southern (side) boundary to Quakers Road of 31.21 m, a northern (side) boundary is 40.79 m, and a western (rear) boundary of 13.41 m. The land falls 2.5 m from the west to the east. The land is occupied by a single-storey dwelling house and single garage with vehicular access from Quakers Road.
5 The land is defined as being within the Spit/ Military Road Townscape. Spit Road, which adjoins the site, is one of the main arterial roads of Mosman.
6 Dwelling houses and multiple dwellings are nearby.
Relevant planning controls
Sydney Regional Environmental Plan No. 23 - Sydney and Middle Harbours, (SREP23)
7 The applicable general aim in SREP23 set out in Clause 2(1)(e) is:
- To recognise, protect and enhance the natural, scenic, environmental, cultural and heritage qualities of the land...
12 The table to cl 15(2) of the MLEP sets the requirements for landscaping for both single dwelling houses and multiple dwellings in the 2(c) Residential zone. A proposal for a single dwelling requires landscaping which is at least 60% of the gross floor area of the dwelling, which is 173m2 in this case. A multiple dwelling development, if the proposal were so characterised, would require 60% of the site area as landscaping, which is 287m2.Mosman Local Environmental Plan 1998, (MLEP)
8 The land is zoned Residential 2(c) under the provisions of the MLEP and the proposal is permissible with consent.
9 Clause 2 of the MLEP provides the objectives of the plan. Of relevance is cl 2(1), to protect, conserve and enhance landform and vegetation to maintain the landscape amenity of Mosman.
10 Clause 11 of the MLEP identifies residential zones and provides objectives of zones. Of relevance is objective 2, to maintain the general dominance of landscape over built form.
11 Clause 15(1) of the MLEP contains a number of objectives relating to the provision of landscaping. The relevant objectives of this clause are:
(a) to maintain and enhance the landscape and townscape character of Mosman's residential areas by requiring landscaping of sites in conjunction with other development, and
(b) to maintain a general dominance of landscape over buildings, particularly on harbour foreshores and in the 2(a1) and 2(a2) Residential zones, and
(e) to ensure there is adequate and useable ground level open space for recreation, landscaping and containing urban run-off.
13 Schedule 1 provides definitions of terms used in MLEP. Of relevance is the definition for ‘dwelling’, ‘multiple dwellings’ ‘landscaped area’ and ‘gross floor area’.
- ‘dwelling’ means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile.
‘multiple dwellings’ means two or more dwellings, whether attached or not.
14 Part 1.4 of the MRDCP provides the objectives of the plan. Of relevance are objectives (d) and (f) which relate to landscape amenity.
15 Part 4.4 of the MRDCP provides objectives and planning guidelines for landscaping. Of relevance are objectives O1, O3 and O4, and planning guideline P1, which relate to landscaping and landscaped area.
16 Part 6.5 of the MRDCP provides existing character elements and desired future character objectives for the Spit/ Military Road Townscape. Of relevance is objective 6, which relates to landscaping.
Notifications Development Control Plan, (NDCP)
17 There was no dispute that the application was notified as required under the NDCP.
20 The proposal as described in the original architectural plans complies with the standards of the MLEP except for the extent of landscaped area. The amended plans now bring the proposal more into compliance with the landscaped area requirements.The proposal and its history
18 Development application No 8.2003.195.1 was lodged with the respondent council on 26 May 2003 to alter and add to the existing dwelling on the land. Because of its configuration the council was concerned that it might be used as a multiple dwelling.
19 The proposal involves the:
· addition of an upper floor containing two bedrooms, two bathrooms, family room, bar, and deck;
· addition of an internal staircase from the ground floor to the upper floor; and
· external door to Bed 1 on ground floor to be removed and space filled in.
| MLEP standard | Proposed | Compliance | |
| Overall height | 8.5 metres | 8.3 metres | Yes |
| Wall height | 7.2 metres | 7.2 metres | Yes |
| Number of storeys | 2 storeys | 2 storeys | Yes |
| Floor area | Ground- | 176m2 | |
| First- | 113m2 | ||
| Total- | 289m2 | ||
| Floor space ratio (FSR) | 0.6: 1 | 0.58: 1 | Yes |
| Landscaped area | 173m2 (or deficient 69.2m2) | 45m2 + 88m2 = 133m2 (or 40m2 deficient) | No, but more in compliance with the amended plans |
21 The proposal also complies with the requirements of the MRDCP.
| Control | MRDCP | Proposed | |
| Setbacks | north (side) | 1.5m | 1.63m |
| south (side) | 1.5m | 1.66m | |
| west (rear) | merit | 8.4m | |
| east (front) | merit | 10.0m | |
| Parking | merit | 3 spaces as amended |
23 A letter of support was received from Mrs B Netherton of 43 Musgrave Road, Mosman.Notification
22 The development application was notified to nearby owners and occupants between 24 June 2003 and 8 July 2003 and the council received two submissions within time from:
· J L and E A Tancred of No 5/198 Spit Road; and
· K Vozoff and SP 36210 of No 26 Parriwi Road.
24 On 8 July 2003, correspondence was sent to the applicant requesting additional information to assist in the processing of the application, and a detailed landscaping plan was required. Also sought was confirmation that the applicant would be prepared to remove a second footpath crossing.
The council’s decision
25 By notice dated 11 August 2003 the council refused the development application for the following reasons:
1. The proposal is contrary to the objectives of the Mosman Local Environmental Plan 1998.
2. The proposal contravenes Clause 15 of the Mosman Local Environmental Plan 1998 as there is inadequate soft landscaped area provided on the site.
3. The proposal is contrary to the objectives of the Residential 2(c) zone of the Mosman Local Environmental Plan 1998.
4. The proposal contravenes Objectives O1, O3 and O4 and Planning Guideline P1 of Section 4.4 of the Mosman Residential Development Control Plan.
5. The proposal is not in the public interest.
28 On behalf of the applicant, evidence was given by:The hearing
26 The appeal was filed on 6 August 2004.
27 At the hearing the court heard evidence on behalf of the respondent council from:
· Mr S Harding, consultant town planner.
· Mr G Crick, architect. 29 Ms K E Webb, town planner of the council prepared the statement of basic facts.
The issues
30 On 3 September 2004 the council filed a statement of issues.
- Landscaping
- Particulars
2. The proposed development does not satisfy the following objectives within LEP 1998 due to the lack of landscaping.
- Particulars
(b) Clause 2, Objective (1);
(c) Clause 11, Objective 2 of the 2(c) residential zone.
- 3. The proposed development does not satisfy the following objectives within the Mosman Residential Development Control Plan ("MRDCP") due to the lack of landscaping.
- Particulars
(b) Part 4.4, Objectives O1, O3, O4 and Planning Guideline P1;
(c) Part 6.5, Objective 6 of the Desired Future Character objectives for Spit and Military Roads.
- 4. The removal of the second footpath crossing and the external stairs will enable further landscaping to be undertaken.
5. The landscape plan is inadequate and does not address the criteria within Planning Guideline P13 and P14 in Part 4.4 of MRDCP.
Privacy
6. The proposed development will result in an unacceptable loss of privacy for the adjoining property to the north at No 202 Spit Road.
- Particulars
(b) Non compliance with Part 5.6, Planning Guideline P1 and P4 as the proposed northern room windows and balcony will have a direct sightline to private open space in the adjacent dwelling of No 202. Measures to mitigate overlooking are inadequate.
- Inadequate information
- Issues raised by objectors
8. Issues raised by the objectors including:
(a) Loss of privacy due to the proposed southern windows, the proposed exterior staircase and proposed balcony;
(b) Limited landscaping; and
(c) Proposal is not in keeping with the area.
Planning principles31 The following emerged as the salient issues:
· Landscaping; and
· Privacy.
32 When an existing building is being altered and added to and where the existing landscaped area would be deficient of area, and the proposed extensions do not decrease that landscaped area, and the proposal would otherwise comply with the planning controls, it is reasonable to apply some flexibility in the application of the landscaped area requirements so as to not require automatic refusal of the application on the ground of deficiency of landscaped area.
33 One must assume that the applicant will obey the law when considering whether the proposal might be used for a use other than that applied for. In this case the applicant has applied to use as a single dwelling house as altered and added to and not a multiple dwelling. It must be assumed that the proposed use will be that of a single dwelling.
The evidence and findings
Landscaping
34 In order to ensure that landscaping maintains dominance over built-form in this residential zone, as required by the planning objectives, the council sought to minimise hard-standing area within the eastern front yard of the existing dwelling and to maximise landscaping on the land.
35 The owner presently parks, on occasions, at least two cars in this part of the yard, and would be reluctant to relinquish this use.
36 Mr Harding was of the opinion that the objectives and guidelines of the MLEP and the MRDCP have not been met in respect of the provision of landscaping and the proposal would be around 128m2 deficient of landscaped area.
37 Assuming that the owner is seeking to erect a single dwelling with the minimum landscaped area under the MLEP, the required landscaped area would be 173m2. As calculated by the council, only 45m2, was provided under the original architectural plans. The amended architectural plans now show the landscaped area increased to 133m2. This would leave a deficiency of around 40m2 and less than the previous deficiency.
38 The proposed additional bedrooms on the first floor would intensify the use of the land and thus would require, in a planning sense, additional landscaping and recreation area for the occupants. If the hard standing at the front were to be converted the total landscaped area would be increased and would approximate the required area of 60% of the gross floor area. The amended plans show a greater area of landscaping both at the front and the rear.
39 If the landscaping were increased in area as proposed, the Court understands that the council would be content in that regard and the other issues relating to privacy and overlooking could be conditioned.
40 I am satisfied that the application can now be approved as the deficiency in landscaped area has been reduced.
Privacy
41 The council is of the opinion that there would be unreasonable overlooking of persons standing on the proposed first floor deck towards the front yard of neighbouring No 202 Spit Road. The proposed deck would be situated 1.63m from the common northern side boundary with that neighbouring property. In addition the council maintains that the proposed transparent glass balustrade would exacerbate overlooking by persons standing on the deck. Mr Harding, town planner for the council, was of the opinion that the “current solution will have an unreasonable impact on the privacy of the adjoining premises”. He considered the deficiencies in this regard could be overcome with a more sympathetic design, perhaps including privacy screens and reduced window areas. A condition is proposed by the council that a 1.6 metre privacy screen is to be erected along the entire northern edge at the upper deck, in order to reduce overlooking of adjoining properties. The council also seeks to condition any consent so that the upper floor level deck is reduced in depth to extend no further to the east than the eastern wall of the internal staircase.
42 The applicant seeks to maintain the integrity of the design and to retain the deck and the proposed glazed balustrade.
43 The occupant of No 202 Spit Road, Mosman, Mr C Ho Diep, signed the original architectural plans in Exhibit E, on behalf of his wife, Mrs Ching Yu Yeh, the owner of that property, to indicate acceptance of the proposal. She subsequently signed on 1 December 2004.
44 I am satisfied that the deck may be extended as the applicant wishes and given the acceptance of the neighbour of the proposed balustrade along the northern side, in the short term, there would be no utility in requiring privacy screens along the northern edge of the balcony as the council sought. I recognise that from a planning point of view this outcome would not be ideal as the consent travels with the land.
45 In response to the objections of the Tancreds at No 5/198 Spit Road, I would require two out of the three windows on the southern elevation on the first floor of the proposed extensions to be opaque glazed. These windows would give light to the Bathroom and the Bar. In this regard, Mr Crick has noted the amended architectural plans.
46 In response to the council’s concerns, for more abundant caution and in order to ensure that the first floor is not used separately from the ground floor, the applicant deleted from the original and amended plans the external staircase on the southern elevation.
47 For the above reasons, the appeal is upheld.
Conditions
48 The conditions are those in Exhibit 5 as amended.
Orders
49 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.2. Development application No 8.2003.195.1 lodged with the respondent council on 26 May 2003 to alter and add to the existing dwelling at Lot 11 in DP 130191, being No 200 Spit Road, Mosman, is approved subject to Conditions 1 to 40 in Annexure A.
S J Watts3. The exhibits are retained.
Commissioner of the Court
sw
Conditions of development consent
Annexure A
Development Application 8.2003.195.1 for a proposed addition of a second storey to an existing dwelling house at No 200 Spit Road, Mosman, is approved subject to the following conditions:Michael Barclay v Mosman Council
Approved plans and documentation
1. The development must be carried out in accordance with the following stamped approved plans and documentation, except where amended by later conditions of consent:
Plan Nos. Date of plan Prepared by Survey Plan Ref 7072 29 May 2003 NL Hayes Pty Ltd Consulting Surveyors Dwg No. 1A Job No. 030202 February 2003 Guy Crick Architect Unnumbered (long section) May 2003 Guy Crick Architect Landscape plan October 2004 Guy and Steven Crick
Document title Date of document Prepared by Statement of Environmental Effects March 2003 Guy Crick Architect
2. Deleted.
3. To minimise overlooking of the private open space of the adjoining property to the north, the window within the northern elevation of bedroom 1 is to have a sill height of 1.6 metres above floor level, or the window is to be relocated to the western elevation of the room. The amendment is to be shown on the plans submitted with the Construction Certificate.
The following conditions must be satisfied prior to the release of the Construction Certificate. Conditions may require the submission of additional information with the Construction Certificate application. Applicants should also familiarise themselves with conditions in subsequent sections and provide plans in accordance with any design requirements contained therein.
4. Two copies of architectural and Structural Engineer’s plans must be submitted with the Construction Certificate application. A qualified practicing structural engineer with corporate membership of the Institute of Engineers Australia or who is eligible to become a corporate member and has appropriate experience and competence in the related field must sign the structural engineering plans.
- The plans are to incorporate and note any changes from the approved development application plans as required by conditions of this consent.
For applications involving alterations and additions, one set of plans should be coloured which indicate the extent of new works.
Dilapidation Report – Council Assets
5. To assist with an assessment of claims for the refund of the security deposit over Council’s property, a dilapidation report must be submitted. The report must document and provide photographs that clearly depict any existing damage to the road, kerb, gutter, footpath, driveways, street trees, street signs or any other Council assets in the vicinity of the development. Any damage not shown in this manner will be assumed to have been caused as a result of the site works undertaken and must either be rectified at the applicant’s expense or compensated by deduction from the security deposit.
6. Excavation works shall not commence prior to the issue of the Construction Certificate or the issue of any relevant notices to adjoining owners, the Principal Certifying Authority or Council as required by other conditions of this consent.
7. If soil conditions require it, retaining walls or other approved methods necessary to prevent the movement of soil, together with associated stormwater drainage measures, shall be designed and by a civil engineer or other appropriately qualified person. Details of any retaining walls shall accompany plans and specifications submitted with the Construction Certificate application.
8. The approved plans must be submitted to a Sydney Water Quick Check agent to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to “Your Business” section of Sydney Water’s web site at then see Building & Developing then Building & Renovating, or telephone 13 20 92.
- The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate.
Materials & Finishes
9. Materials and finishes shall be complimentary to the character and streetscape of the area. Highly reflective roofing materials shall not be used. Details of finished external surface materials, including colours and texture, must be submitted to the satisfaction of Council or the Accredited Certifier.
Landscape Plan
10. Deleted.
11. A site plan and elevation shall be submitted showing replacement of the existing fence on Spit Road to a height of no greater than 1.8m above footpath level and permanent removal of the signage structure. The plans showing this shall be submitted to Council’s or the Accredited Certifier’s satisfaction with the Construction Certificate application.
Long Service Levy
12. In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986, the applicant shall pay a long service levy at the prescribed rate of 0.2% of the total cost of the work to either the Long Service Payments Corporation or Mosman Municipal Council for any work costing $25,000 or more.
Security Deposit
13. A cash deposit or bank guarantee to the value of $2,500 in favour of Council shall be provided for the making good any damage caused to Council property. A request for a refund of unused funds may be made following the completion of works and an inspection of the property by Council.
14. Pursuant to Section 94 of the Environmental Planning & Assessment Act 1979, a monetary contribution of $5997.20 towards the acquisition and embellishment of public open space shall be paid to Council.
This condition is imposed under Mosman Municipal Council’s Section 94 Contributions Plan. The Plan may be inspected at Council’s offices within the Civic Centre, Mosman Square, Mosman.
- Note: Contribution rates will be indexed by use of the Consumer Price Index and the actual amount to be paid will be determined at the date of payment. You may contact Council on 9978 4111 prior to payment to confirm current figures.
Prior to the Commencement of Site Works
The following measures must be satisfied prior to the commencement of site works, including any works relating to demolition, excavation or vegetation removal.
Notice of Intent to Commence Site Works
15. In accordance with Section 81A(2) of the Environmental Planning and Assessment Act 1979, no site works (including building works, demolition, excavation or the removal of vegetation) are to commence until:
(i) the Construction Certificate has been issued;
(ii) the person benefiting from the consent has appointed a Principal Certifying Authority (PCA) by way of completing Form 7A (attached at the end of the consent);
(iii) in instances where Council is not the PCA, the PCA has, no later than 2 days before the building work commences, notified Council of his or her appointment by way of forwarding a completed copy of Form 7A and notified the person benefiting from the consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work by way of completing Form 7B (attached at the end of this consent). In instances where Council is the PCA, Council has completed Form 7B if necessary and forwarded it to the person benefiting from the consent.
(iv) the person benefiting from the consent, if not carrying out the work as an owner-builder, has (by way of completing Form 7C):
· appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved; and
· notified the PCA of any such appointment; and
· unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work; and
(v) the person benefiting from the consent has given Council at least 2 days’ notice of the person’s intention to commence the erection of the building by way of completing Form 7D.
16. Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the council) has given the council written notice of the following information:
(a) in the case of work to be done by the holder of a contractor licence under that Act:
(i) the name and licence number of the contractor; and
(ii) the name of the insurer by whom the work is insured under Part 6 of that Act,
(b) in the case of work to be done by the holder of an owner-builder permit under that Act, the name and permit number of the owner-builder.
- If arrangements for doing the residential building work are changed while the work is in progress so that the information notified above becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.
17. If site or building works will:
· cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe; or
· involve the enclosure of a public place; or
· have the potential to damage adjoining private land by way of falling objects
- then a temporary hoarding, fence or awning must be erected between the work site and the adjoining area. Any such hoarding, fence or awning must be removed when the work has been completed. The fence must be constructed prior to the commencement of works and where adjoining public land shall be covered in cyclone wire mesh to discourage the fixing of posters or graffiti.
Sediment & Erosion Controls
18. Temporary sedimentation and erosion controls shall be constructed prior to commencement of any site works in order to prevent the discharge of sediment from the site. The controls shall be designed and installed in accordance with the requirements of the NSW Department of Conservation and Land Management's "Urban Erosion and Sediment Control" manual. Note: this document is now available from the Department of Infrastructure, Planning and Natural Resources.
Lapsing of Consent if Site Works Not Commenced
19. In accordance with Section 95(1) of the Act, this consent shall lapse unless work has physically commenced on the land within 5 years from the date of the consent or in instances where no work is required, the use has commenced within 5 years from the date of the consent.
Public Liability Insurance
20. Public liability insurance to the value of $5,000,000 must be taken out by the builder or owner to protect any person, firm or company from injury, loss or damage sustained as a consequence of the carrying out of site works, including all excavation, demolition and construction works. A copy of the policy must be provided to Council or the Accredited Certifier.
21. All works are to be carried out in accordance with the requirements of the Building Code of Australia.
22. A sign must be erected in a prominent position on any work site on which building work or demolition work is being carried out:
(a) showing the name, address and telephone number of the principal certifying authority for the work; and
(b) showing their name of the person in charge of the work and a telephone number at which that person may be contacted outside work hours; and
(c) stating that unauthorised entry to the work site is prohibited.
- Any such sign shall be maintained while the building work or demolition work is being carried out, but must be removed when the work has been completed.
This condition does not apply in relation to building work or demolition work that is carried out inside, and does not affect the external walls of, an existing building.
Site Work Hours
23. In order to maintain the amenity of adjoining properties, audible site works shall be restricted to between 7.00am and 6.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. Inaudible site works may also take place between 7.00am and 8.00am on Saturdays. No site works shall be undertaken on Sundays or public holidays.
Unless otherwise approved within a Construction Traffic Management Plan, construction vehicles, machinery, goods or materials shall not be delivered to the site outside the approved hours of site works.
Excavation, Backfilling and Support for Neighbouring Buildings
24. If an excavation extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must:
· preserve and protect the building from damage;
· if necessary, underpin and support the building in an approved manner; and
· at least 7 days before excavating, give notice of an intention to excavate to the adjoining owner and furnish particulars to the owner of the proposed work.
25. All excavations and backfilling must be executed safely and if necessary properly guarded in accordance with appropriate professional standards to prevent them from being dangerous to life or property.
Sediment & Erosion Controls
26. Sedimentation and erosion controls must be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority’s satisfaction.
Council Property
27. The land and adjoining areas shall be kept in a clean and tidy condition at all times. No construction vehicles, building materials, waste, machinery or related matter shall be stored on the road or footpath for the duration of works unless separate approval has been obtained from Council’s Traffic Committee for the establishment of a Construction Zone. Under no circumstances will any person be allowed to mix or dispose of concrete, mortar or slurry within Council property.
Protection of Landscape Features
28. All natural landscape features including trees and other vegetation, natural rock outcrops, soil and watercourses shall remain undisturbed except where affected by necessary works detailed on approved plans.
Tree Preservation
29. All street trees and trees on private property that are protected under Mosman Council’s Tree Preservation Order 2003, shall be retained except where Council's prior written consent has been obtained, or where after approval of the relevant Construction Certificate, trees stand within the envelope of approved buildings or within the alignment of approved permanent paved vehicular access roads and parking areas.
Water Conservation
30. To minimise domestic water consumption, water conservation devices with an AAA rating must be used, including low flow tap and shower head roses, dual flush toilets and six litre/minute flow regulators in all bathroom basins, kitchen and laundry sinks.
Energy Efficiency
31. To promote energy efficiency all hot water system/s installed must have a minimum rating of 3.5 stars.
32. To provide reasonable worker amenity, toilet facilities shall be provided at or in the vicinity of the work site for the duration of site work activities.
33. This consent does not authorise the carrying out of any of the following activities which require the separate approval of Council under Section 68 of the Local Government Act 1993:
· Place a waste storage container in a public place
· Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway
- Note: A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence under Sections 626 and 627 of the Local Government Act 1993 .
34. A copy of the stamped approved plans must be kept on site for the duration of site works and be made available upon request to either the Principal Certifying Authority or an officer of the Council.
35. To ensure building works are carried out properly and in accordance with the conditions of this consent, with the Building Code of Australia and or with relevant Australian Standards, the following critical stage inspections are to be carried out:
· At the commencement of the building work;
· After the excavation for, and prior to the placement of, any footings;
· Prior to pouring any in-situ reinforced concrete building element;
· Prior to covering of the framework for any floor, wall, roof or other building element;
· Prior to covering waterproofing in any wet areas;
· Prior to covering any stormwater drainage connections;
· Smoke alarms prior to any occupation certificate being issued in relation to the building; and
· Final inspection after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
The critical stage inspections must be carried out by the Principal Certifying Authority PCA, or if the PCA agrees, by another certifying authority excepting the final inspection which must be carries out by the PCA.
If you intend engaging Council to undertake inspections, please telephone the area Building Surveyor or Council’s Case Officer on 9978 4044 to arrange a suitable time.Notes: Records of the above critical stage inspections will be required to be submitted prior to the release of the Occupation Certificate – see later conditions of consent.
Prior To The Release Of The Occupation Certificate
The following conditions must be satisfied prior to the issue of the Occupation Certificate.
Record of Inspections Carried Out
36. In accordance with clause 162B of the Environmental Planning and Assessment Regulation 2000, the certifying authority responsible for the critical stage inspections must make a record of each inspection as soon as practicable after it has been carried out. Where Council is not the PCA, the PCA is to forward a copy of all records to Council.
The record must include details of:
· The development application and construction certificate number;
· The address of the property at which the inspection was carried out;
· The type of inspection;
· The date on which it was carried out;
· The name and accreditation number of the certifying authority by whom the inspection was carried out; and
· Whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out.
37. Where Council is not the Principal Certifying Authority, a copy of any compliance certificates and or records of inspections received by the PCA shall be forwarded to Council prior to occupation or commencement of the use.
38. Occupation or use, either in part or full, shall not take place until an Occupation Certificate has been issued. The Occupation Certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with.
- Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council.
During Occupation
The following conditions must be satisfied during occupation or use of the development.
Occupation
39. The premises shall be occupied as a single domicile only. No change of use or additional use of any part of the premises shall take place without prior development consent (other than for exempt development).
40. A Blueberry Ash tree, (Eleaocarpus reticulatus) shall be included within the landscape plan for the rear yard of the premises as noted on the amended landscape plan.
Advice / Notes
The following points are issued as advice to the applicant. They do not form conditions of the consent.
(i) Other public authorities may have separate requirements and should be consulted in the following respects:
· Australia Post for the positioning and dimensions of mail boxes in new commercial and residential developments;
· AGL Sydney Limited for any change or alteration to gas line infrastructure;
· Energy Australia for any change or alteration to electricity infrastructure or encroachment within transmission line easements;
· Telstra, Optus or other telecommunication carriers for access to their telecommunications infrastructure.
(ii) This decision does not ensure compliance with the Commonwealth Disability Discrimination Act 1992. Applicants may wish to investigate their potential for liability under that Act.
(iii) Failure to comply with the relevant provisions of the Act and/or the conditions of this consent may result in the serving of penalty notices or legal action through the Land and Environment Court.
(iv) In accordance with section 81A of the Act, the person benefiting from this consent is notified that if Council is engaged as the Principal Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading “Critical Stage Inspections” in this consent. If additional inspections are required, further notice will be provided.
(v) All references to “the Act” under this consent relate to the Environmental Planning and Assessment Act 1979.
S J Watts
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