Mirvac Homes (NSW) Pty Ltd v Blacktown City Council - [2005] NSWLEC 263

Land and Environment Court

of New South Wales

CITATION:
Mirvac Homes (NSW) Pty Ltd v Blacktown City Council [2005] NSWLEC 263

PARTIES:
Mirvac Homes (NSW) Pty Limited
Blacktown City Council

FILE NUMBER(S):
10099 of 2005

CORAM:
Cowdroy J

KEY ISSUES:
Development Application :- non-compliance with development control plan - parking - solar access - private open space - density - setbacks - justification for non-compliance

LEGISLATION CITED:
Blacktown Local Environmental Plan 1988 cl 9(3)
Blacktown Development Control Plan 1992

CASES CITED:
Parsonage v Ku-ring-gai Council [2004] NSWLEC 347;
Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254;
Zhang v Canterbury City Council (2001) 115 LGERA 373

DATES OF HEARING: 12/05/2005

DATE OF JUDGMENT:

05/23/2005

LEGAL REPRESENTATIVES:
APPLICANT
M Craig QC with E Ozen
SOLICITOR
Coudert Brothers
RESPONDENT
C Drury (solicitor)
SOLICITOR
Phillips Fox

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Cowdroy J

23 May 2005

10099 of 2005 Mirvac Homes (NSW) Pty Limited v Blacktown City Council
JUDGMENT

1 His Honour: This is an appeal against the refusal by Blacktown City Council (the council) of DA 04-2345/2 for the staged construction of an integrated housing and medium density residential development (“the proposal”) at 438-450 Sunnyholt Road, Acacia Gardens (“the site”).

2 Integrated housing is defined in the Blacktown Local Environmental Plan 1988 (“the LEP”) as:

“integrated housing” means development that consists of:

(a) the subdivision of land into 5 or more allotments, and

(b) the erection of a single detached dwelling-house on each of the allotments created by that subdivision,

where a single application for consent for the subdivision and other development is submitted.

3 Medium density housing is defined in the LEP as:

“medium density housing” means 3 or more dwellings on the same parcel of land where each dwelling has an individual entrance and direct private access to private open space at natural ground level for the exclusive use of the occupants of the dwelling but, in the Table to clause 9, does not include any other form of dwellings elsewhere specifically defined in this plan.

4 The site was inspected on the first morning of the hearing with representatives from both parties, two Court appointed experts and a local resident.

5 For reasons set out in the judgement the Court concludes that the appeal should be upheld and development consent granted subject to conditions.

6 The Court acknowledges the assistance of Commissioner Brown in the hearing of this appeal.

The site

7 The site is located in the developing residential area of Acacia Gardens. It comprises lots 4 and 5 of DP 1047875. The site has a 193 m frontage to Sunnyholt Road and a frontage of 67 m to Tamarind Drive, with a total site area of 3.4575 ha.

8 The site is vacant and has no significant vegetation.

The proposal

9 The proposal involves construction of a residential development comprising an integrated housing component containing 15 x 4 bedroom townhouses and a medium density housing component containing 98 x 3 bedroom and 3 x 4 bedroom townhouses and open space, including a swimming pool, spa and barbecue. Visitor car parking and public and private access roads are also provided.

10 The proposal provides for the concurrent Community Title subdivision of the site into 116 Torrens Title lots and one Community Title lot incorporating the common open space, visitor car parking and private access roads (see Attachment 1). The proposal is to be undertaken in sixteen stages.

Relevant planning controls

11 Most of the site is zoned 2(a) Residential under the LEP. Integrated housing and medium density housing developments are both permissible in this zone, with consent. The remaining part of the site is zoned 6(a) Public Recreation and is to be dedicated to the council for open space purposes.

12 Clause 9(3) of the LEP provides that consent shall not be granted unless the proposed development is generally consistent with one or more of the objectives of the plan or one or more of the objectives of the zone. There is agreement between the parties that the proposal satisfies this requirement.

13 Blacktown Development Control Plan 1992 – Part C (“the DCP”) also applies. The relevant parts of the DCP relate to density (s 5.6), building setbacks (ss 6.5 and 6.12), private open space (s 6.9), solar access (ss 5.16 and 6.7) and visitor parking (ss 5.10 and 6.13).

The issues

14 The council filed an Amended Statement of Issues containing six individual issues. The issues are:

The expert evidence

15 The parties agreed to the appointment of Mr Neil Kennan as the Court-appointed town planning expert and Mr Craig McLaren as the Court-appointed traffic expert.

Density

16 Section 5.6 of the DCP states:

The ratio of the gross floor space of any dwelling-house (within an integrated housing development) to the area of the allotment on which it is to be situated (the "floor space ratio") shall not exceed 0.5:1 or 50% of the site area.

17 The plans indicate that 13 of the 15 integrated housing townhouses exceed the 0.5:1 FSR requirement. These variations range from 0.51:1 to 0.57:1 with the overall average of approximately 0.53:1.

18 The Court notes the flexibility contained within ss 1.2 and 1.4 of the DCP to which Mr Kennan referred in his report. The Court also notes, as explained by Mr Kennan, that the site could be developed solely for medium density townhouses in respect of which no FSR requirements exist. Mr Kennan opines that in the proposed location, integrated housing townhouses are a more desirable form of development as they reflect the detached dwelling design on the opposite side of the street. Importantly he states that the deviation from the requirements of the DCP will not be discernible in the streetscape. Taking these considerations into account, Mr Kennan believes the deviations are acceptable.

19 Mr Kennan also notes that the townhouses satisfy the quantum of private open space required by the DCP and as such the amenity of those dwellings will not be compromised by non-compliance with the density requirements.

20 The council generally accepted the evidence of Mr Kennan and offered no expert evidence to refute his conclusions.

21 The Court accepts the evidence of Mr Kennan and agrees that there is sufficient justification for the departure of the density standard in the DCP.

Solar access

22 Section 5.16 of the DCP considers integrated housing and states:

Council will not favour development proposals which cause unreasonable overshadowing on either the adjoining sites or the proposed development site itself.

Integrated housing buildings should be designed to ensure that 50% of the on-site private open space areas of both the proposed development and the adjoining sites receive a minimum of 4 hours sunlight between the hours of 9.00 a.m. and 3.00 p.m. on 21 June.

The building design and site layout should ensure adequate sunlight access to the internal living spaces of the proposed and adjoining developments.

23 Section 6.7 of the DCP relates to medium density housing and relevantly provides:

Residential buildings should be designed to ensure that 50% of the common open space and private courtyard areas of both the proposed development and the adjoining sites receive a minimum of 4 hours of sunlight between the hours of 9am and 3pm on 21 June.

24 In relation to the integrated housing, Mr Kennan notes that the parties agree that each of the dwellings will receive a minimum of 3 hours of sunlight in the designated period. Of the dwellings that do not satisfy the 4 hour requirement, all but one adjoin a road with east-west orientation and are therefore necessarily north-facing. While the controls within the DCP do not take into account lot orientation, such factor is a relevant consideration under the Australian Model Code for Residential Development (AMCORD) and is relevant when considering the solar access planning principles stated in Parsonage v Ku-ring-gai Council [2004] NSWLEC 347.

25 In considering the DCP controls with AMCORD and the solar access planning principles, Mr Kennan concluded that it would be difficult to impose the 4 hour standard to the areas of private open space on the southern side of the lots without compromising the integrity of the urban design qualities of the proposal. Mr Kennan notes that the proposed development easily satisfies the AMCORD requirements of 2 hours of sunlight and in fact provides 3 hours of sunlight within the designated period.

26 Ten medium density housing lots do not satisfy the 4 hour standard. Mr Kennan maintains a similar view to that expressed above in relation to the units.

27 The council generally accepted the evidence of Mr Kennan and offered no expert evidence to refute his conclusions.

28 The Court accepts the evidence of Mr Kennan in relation to solar access and agrees that there is sufficient justification for the departure of the solar access standard in the DCP.

Private open space

29 Section 5.15 of the DCP requires that integrated housing have 100 m2 of private open space for 4-bedroom dwellings with a minimum width of 2.5 m. One part of the private open space must be capable of containing a rectangle of 4 m x 6 m which is directly accessible from the dwelling house.

30 Section 6.9 of the DCP requires that medium density housing include 70 m2 of private open space for 3 or more bedroom dwellings with a minimum square of 7 m x 7 m. The remaining private open space must have a minimum dimension in any direction of 2.5 m.

31 Following amendments to the proposal only lots 92 and 93 do not satisfy the DCP requirements. The departures consist of deficiencies of 5.3 m2 and 3.3 m2 respectively. In light of the location of these lots in close proximity to a substantial area of public open space and the insignificance of the breaches, Mr Kennan concludes that a variation to the design to achieve the required 70 m2 is not warranted.

32 The council generally accepted the evidence of Mr Kennan and offered no expert evidence to refute his conclusions.

33 The Court accepts the evidence of Mr Kennan in relation to private open space and agrees that there is sufficient justification for the departure of the private open space standard in the DCP.

Setbacks

Side boundary

34 Section 6.12 of the DCP relevantly states, in part for medium density housing:

Each dwelling unit shall be setback from the site boundaries (other than the street frontage boundary), from other dwelling units and from common access ways in accordance with the following principles:

…

-where dwellings are attached to each other and constructed in groups, the minimum distance between any external wall of one group of dwellings and any external wall of another group of dwellings shall be 6 m; and

- where individual detached dwellings are constructed, the minimum distance between any external walls of any dwellings shall be 2.5 m.

35 Based on his discussions with council town planners, Mr Kennan states that the 6 m separation requirement is to provide a reasonable separation where medium density developments are to be located amongst existing detached single dwellings. In this case however, the proposal is a stand alone development and so creates its own character.

36 While the 6 m separation could be achieved through the grouping of the medium density dwellings, Mr Kennan is of the view that this would be counterproductive in that the built form would be too bulky and overpowering in the environment within which it is to be located.

37 The council generally accepted the evidence of Mr Kennan and offered no expert evidence to refute his conclusions.

38 On this issue, the Court accepts the evidence of Mr Kennan and agrees that there is sufficient justification for the departure of the side setback standard in the DCP.

Front setback

39 Section 6.5 of the DCP states, in relation to medium density housing:

The building setback from the street for medium density housing shall be:

….

in newer "release area" localities where residential development is occurring for the first time and where the linen plan of subdivision is released by Council on or after 8 September 1988.

40 While not raised as an issue, the council sought a condition that required the integrated housing dwellings to comply with the DCP requirement for a 6 m front setback.

41 Mr Kennan states that the condition is unreasonable in the circumstances of this development. The affected dwellings are located opposite the proposed open space area and considering the maximum departure from the setback standard is in the order of 200 millimetres, Mr Kennan is of the view that the non-compliance will not be discernible in the streetscape.

42 Mr Kennan also expressed concern that if the 6 m setback is enforced, it may have an undue impact on the ability of some dwellings to meet the minimum 70 square metre private open space requirement.

43 The council generally accepted the evidence of Mr Kennan and offered no expert evidence to refute his conclusions.

44 On this issue, the Court accepts the evidence of Mr Kennan and agrees that there is sufficient justification for the departure of the front setback standard in the DCP.

Visitor parking

45 Section 5.10 of the DCP provides, in part, for integrated housing:

…

At least one visitor parking space should be provided per 3.5 dwellings (not including integrated housing which directly adjoins a public road with individual driveways off a public road).

46 Section 6.13 of the DCP provides, in part, for medium density housing:

All parking shall be provided on the development site … in addition to 1 visitor’s space per 2.5 dwellings (with the resultant figure rounded up to the next whole number).

47 In relation to the integrated housing, Mr McLaren states that the dwellings have the benefit of visitor parking within the adjacent kerbside parking lanes created by the 11 metre wide carriageway. Additionally the integrated housing potentially has the benefit of parking in front of the garages of the proposed dwellings. On this basis, the integrated housing component is acceptable in terms of visitor parking.

48 In relation to the medium density housing, Mr McLaren notes that the internal loop road serves a total of 73 medium density dwellings that gives rise to the need for 29 visitor spaces based on Section 6.13 of the DCP.

49 The provision of parking for the medium density housing was the subject of amended plans during the hearing, which impacted on the number and location of visitor car parking. The most recent amendment made provision for 29 visitor parking spaces. The council pressed for the provision of two additional visitor parking spaces.

50 Considering the limited area of dispute between the parties following the submission of amended plans, the Court agrees with the council that the two additional visitor parking spaces should be provided. Such spaces can be easily accommodated on the site without any noticeable environmental impacts. The Court has amended condition 29 accordingly.

Matters raised by objectors

51 Mr Paul Milchem of 46 Tamarind Drive outlined his concerns to the Court on site. He expressed the view that development on the site was welcome but that the proposal constituted an overdevelopment of the site. He preferred a development with fewer dwellings which would be more compatible with the style and character of the existing area.

52 In considering Mr Milchem’s concerns, regard must be given to the form of development anticipated by the council’s planning controls. While the proposal provides for a different form of development to that on the opposite side of Tamarind Drive, the Court accepts that the council and the applicant have attempted to provide some compatibility with nearby residential dwellings. Such attempts have been largely successful. This is not a matter that would warrant any amendments to the plans.

53 Even though Mr Milchem was the only resident to provide any evidence at the hearing, the Court acknowledges the further submissions provided to the council as outlined in the council officers report. Having read the submissions and the responses provided by the council officers, the Court agrees that there were no issues that would warrant the amendment or refusal of the development application.

Conclusion

54 In coming to this conclusion the Court has given consideration to the decisions in Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254 and Zhang v Canterbury City Council (2001) 115 LGERA 373, which relate to the effect of development control plans.

55 The role of a DCP is set out in some detail by the Chief Judge in Stockland Development Pty Ltd at [83]-[92] and includes a review of recent judgements on this issue. Relevantly at [87] his Honour states:

A development control plan is a detailed planning document which reflects a council's expectation for parts of its area, which may be a larger area or confined to an individual site. The provision of a development control plan must be consistent with the provisions of any relevant local environmental planning. However, a development control plan may operate to confine the intensity of development otherwise permitted by a local environmental planning.

56 His Honour further states at [87] the principles relevant to consideration of development control plans. These include the matters raised in the preceding paragraph and a number of specific matters that determine the weight to be given to such plans. These include the level of consultation with interested persons, including the affected community, any inconsistency in the council’s application of the development control plan, consistency with other policy outcomes adopted at a State, regional or local level and the consistency of decision-making.

57 The emphasis to be given to a DCP is addressed in Zhang, where Spigelman CJ at [75] raises three important propositions. Firstly, although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a DCP are to be considered as a fundamental element or focal point in the decision-making process, particularly if there are no issues relating to compliance with a local environmental plan. Thirdly a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but is not in itself determinative.

58 Even though the proposal deviates from the requirements of the DCP, the Court is satisfied that the proposal does not fundamentally alter the intent or focal point of the DCP. While the Court is not required to accept the findings of the Court-appointed experts, the Court considers that their opinions are sound and adopts their conclusions.

Orders

ATTACHMENT 1

DRAFT WITHOUT PREJUDICE CONDITIONS OF CONSENT

APPLICANT: MIRVAC HOMES PTY LTD

DEVELOPMENT: CONSTRUCTION OVER 16 STAGES INCLUDING INTEGRATED HOUSING COMPRISING 15 x 4 BEDROOM DWELLING-HOUSES/LOTS & A MEDIUM DENSITY HOUSING DEVELOPMENT COMPRISING 98 x 3 BEDROOM & 3 x 4 BEDROOM TOWNHOUSES, COMMON OPEN SPACE COMPRISING A SWIMMING POOL, SPA & BARBEQUE), VISITOR CAR PARKING & PRIVATE ACCESS ROADS & THE CONCURRENT COMMUNITY TITLE SUBDIVISION OF THE SITE INTO 116 TORRENS TITLE LOTS & 1 COMMUNITY LOT (INCORPORATING THE COMMON OPEN SPACE, VISITOR CAR PARKING & PRIVATE ACCESS ROADS)

ADVISORY CONDITIONS

Terminology

1. Any reference in this consent to a Construction, Compliance, Occupation or Subdivision Certificate is a reference to such certificates as defined by Section 109C of the Environmental Planning & Assessment Act 1979.

Scope of Consent

2. This consent relates to the following drawings/details submitted to Council with the Development Application*:

(a) Plans prepared by HPA dated May 2004 Issue A Drawing Nos. DA- 005, 015, 020, 040, 042-044, 100, and 105 and Issue C Drawing No. DA- 025;

(b) Plans prepared by HPA dated June 2004 Issue A Drawing Nos. DA-016 and 017 and Issue C Drawing Nos. DA- 060, 065 and 070;

(d) Plan prepared by HPA No. DA-010 NTS;

(e) Plan prepared by HPA dated April 05 Issue A titled House Planting Plan for Lots38-41 & 92-93;

(f) Subdivision plans prepared by Asher McNeill & Partners Drawing Nos. DA501-511,

but as modified in accordance with:
(g) Plan prepared by HPA dated May 2004 Issue G Drawing No. DA-030;
(h) Plan prepared by HPA dated May 2004 Issue C Drawing No. DA-035;
(i) Plan prepared by HPA dated May 2004 Issue C Drawing No. DA-041A; and
(j) Plan prepared by HPA dated May 2004 Issue D Drawing No.DA-052.

* Unless modified by any condition of this consent.

3. Prior to construction of the approved development it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued either by Council or an appropriately accredited certifier. A separate application, complete with detailed plans and specifications, must be made for the Construction Certificate.

4. The granting of this consent does not imply or confer compliance with the requirements of the Disability Discrimination Act 1992. The applicant is advised to investigate any liability that may apply under that Act. The current suite of Australian Standard 1428 - Design for Access and Mobility, should be consulted for guidance. The prescriptive requirements of Part 1 of the Standard apply to certain buildings requiring development consent.

Other Necessary Approvals

5. The applicant's attention is drawn to the need to obtain Council's separate approval for any ancillary activity not approved by this consent, including:

(a) The removal of any tree(s) not indicated on the approved plans and any trees(s) located greater than 3 metres from the building perimeter.

(b) Any fencing located forward of the proposed dwellings and exceeding the heights specified in Blacktown Local Environmental Plan (BLEP) 1988.

(c) The erection of any retaining walls, not being "Exempt Development" within BLEP 1988.

6. This consent does not authorise the encroachment or overhang of any stormwater drainage easement. Any encroachment of other easements must be separately approved by the relevant service authority.

Services

7. The applicant is advised to consult with:

(a) Sydney Water Corporation Limited;

(b) Integral Energy;

(d) The relevant local telecommunications carrier,

regarding their requirements for the provision of services to the development and the location of existing services that may be affected by proposed works, either on site or on the adjacent public road(s). All approved building construction plans attached to the Construction Certificate will need to be submitted to and stamped by a Sydney Water Corporation Limited Customer Centre or a Sydney Water Quick Check Agent as an indication the proposal complies with Sydney Water requirements. Sydney Water may also require the applicant to obtain a Trade Waste Approval as part of the operation of the approved development. Enquiries should be made of the Sydney Water requirements for the eventual operation of the approved use.

Sydney Water enquiries should be directed to a Quick Check Agent ( and developing/building& renovating) or telephone 132092.

8. Council requires the underground reticulation of low voltage electricity and telecommunications services for the approved development.

9. Information regarding the location of underground services may be obtained from the Sydney "Dial Before You Dig" service, telephone number 1100, fax number (02) 9806-0777. Inquirers should provide the street/road name and number, side of street/road and the nearest cross street/road.

Tree Planting and Service Locations

10. In order to facilitate street tree planting that does not impact on public utilities, the applicant is advised to liaise with the relevant service authorities regarding the location and use of their specific service allocation. These authorities have indicated that it may be possible to lay services on opposite sides of the road thereby providing larger areas for tree planting.

Suburb Name

11. The land the subject of this consent is known to be located in the following suburb. This suburb name is to be used for all correspondence and property transactions.

Suburb: ACACIA GARDENS

12. Any advertising of land sales in association with the approved development shall clearly indicate that the development is located in the following suburb.

Suburb: ACACIA GARDENS

Payment of Fees

13. If it is the applicant's intention to engage Council to undertake the checking of the engineering design plans and the issue of the Engineering Construction Certificate, it will be necessary to submit the relevant engineering plans in order that a quote for service can be provided.

A verbal quote will be provided within 48 hours based upon Council's Goods and Services Schedule. Written confirmation will be provided.

14. If it is the applicant's intention to engage Council to undertake Construction inspections and the issue of the Engineering Compliance Certificate, it will be necessary to contact Council's Development Services Engineer for a quote.

Other Fees and Security Deposits

15. The payment of the following fee to Council's Maintenance Section pursuant to Sections 608 and 609 of the Local Government Act 1993. The fee is subject to periodic review and may vary at actual time of payment.

(a) Vehicular Crossing Application and Inspection Fee: $3,724.00 (38 crossings).

NOTE: Council may grant a reduction in the above fee dependent upon the timing of the placement of the footpath crossings.

Consent Duration

16. Pursuant to Section 95(2) of the Environmental Planning and Assessment Act, 1979, the approved development must be commenced within 2 years of the date of this notice.

Scope of Consent

17. Prior to the issue of a Building Construction Certificate for the approved development, it is necessary to obtain an Engineering Construction Certificate. Alternatively, specific reference can be made within a Building Construction Certificate to the relevant engineering works as nominated in "Pre-Construction Certificate Matters (Engineering)" and "Part A - Engineering Works". The Engineering Construction Certificate may be issued by Council or an appropriately qualified certifier. In such instances the Private Certifier must provide evidence that he/she is accredited to do so. For Council to issue the Engineering Construction Certificate, a separate application must be made, on the prescribed form, complete with detailed plans and specifications. You are further advised that Council does not permit the private certification of works on existing public roads or reserves, Council property, or any property under the care and control of Council.

Other Necessary Approvals

18. A separate application or details (as necessary) shall be submitted for the separate approval of Council, under the provisions of the Local Government Act 1993 and/or the Roads Act 1993, for any of the following:

(a) The installation of vehicular footway crossings servicing the development, as required by "Part A - Engineering Works".

(b) The intersection of Private Road No. 1 with Tamarind Drive.

PRE-CONSTRUCTION CERTIFICATE MATTERS (PLANNING)

Preamble

19. The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Construction Certificate relating to the approved development, whether by Council or an appropriately accredited certifier. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications which accompany the Construction Certificate.

20. Not used

Other Fees and Security Deposits

21. Prior to the commencement of construction works, the following fees and bond are to be paid to Council. The fees and bond are subject to periodic review and may vary at actual time of payment.

Administration fee: $66.00

Road inspection fee: $126.00

Road maintenance bond: $5000.00

22. The road maintenance bond is a bond which is taken to cover the cost of any damage to Council's assets (e.g. drainage systems, footpaths, kerb and guttering etc) arising from private development work. The bond will be refunded (less administration costs) should no damage be caused to Council's assets adjacent to the development site, as a result of the construction works.

The road inspection fee covers the cost of an inspection of the road and footpath adjacent to the site at the commencement and upon completion of work.

Note: The road maintenance bond and inspection fee nominated above are valid only until the end of this financial year, after which a new amount/fee will apply.

Consistency with Approved Development Plans

23. Any Construction Certificate that may be issued in association with this development consent must ensure that any certified plans and designs are generally consistent (in terms of site layout, site levels, building location, size, external configuration and appearance) with the approved Development Application plans.

Compliance with Development Control Plan 1992

24. Except as otherwise approved, the design plans which accompany the Construction Certificate are to comply with the design criteria specified in Council's Development Control Plan 1992.

Lot Registration and Early Release

25. Should the "early release" of a Construction Certificate be required (i.e. prior to lot registration), the separate approval of Council must be obtained. Council's approval to the early release of a Construction Certificate will only be given where:

(a) the development is undertaken by the same person or company responsible for the subdivision or is a builder operating under arrangement with the person/company responsible for the subdivision for the construction of houses on the estate; or

(b) the work relates to an exhibition village; and
(c) the requirements of the former Department of Urban Affairs and Planning's (now the Department of Infrastructure, Planning and Natural Resources) Circular D11 have been met.

Landscaping/Appearances

26. Council is particularly concerned about the appearance of the development. Accordingly the following additional information is required to be submitted for its separate approval:

(a) Details of the proposed garage door materials and finishes, including colour samples from brochures or the like. Please note that suitable variation should be provided in garage doors.

(b) Not used.

(c) Proposed location of any retaining walls to be constructed on the site as part of the development. Please note that Council requires the construction of masonry retaining walls (i.e. no timber or treated log) where such walls are proposed to be located within the future front building setback. Treated timber retaining walls used at the rear or side boundaries should not exceed a height in excess of 1200mm without terracing and appropriate landscaping.

(d) Details of treatment to the accessways/driveways. In this regard, all accessways/ driveways are to be constructed of brick paving or other approved materials having a similar aesthetic effect (e.g. asphaltic concrete or coloured concrete). Please note that plain concrete will not be accepted as a suitable accessway/driveway finish.
(e) Details of outdoor lighting for the site. In this regard, the common open space area and internal accessways are to be appropriately illuminated by the use of bollard lighting or the like to provide for the safety of residents at night.

27. The reflectivity index of glass used in the external façade of the building is not to exceed 20 percent.

Other Matters

28. The internal driveway and parking areas are to be designed in accordance with Australian Standard 2890.1.

29. 2931 visitor car parking spaces are to be provided within the Community Lot together with resident spaces as provided by the approved plans with each space designated in accordance with Australian Standard 2890.1 as follows:

(i) Covered Single Garage: 3m x 6m

(ii) Covered Double Garage: 5.5m x 6m

(iii) Uncovered Car Space: 2.5m x 5.4m

(iv) On-Street Uncovered Car Space: 2.1m x 5.4m

Acoustic Measures

30. A 2.1 metre high solid masonry "decorative" fence shall be provided along Sunnyholt Road. DETAILS OF THE PROPOSED FENCE ARE TO BE SUBMITTED FOR APPROVAL PRIOR TO APPROVAL OF THE LINEN PLAN FOR THAT STAGE AND THE FENCE ERECTED.

Services and Service Authorities' Clearances

31. The following documentary evidence is to be obtained prior to the issue of any Construction Certificate:

(a) An application for a Section 73 Compliance Certificate under the Sydney Water Act 1994 must be made. Applications must be made through an authorised Water Servicing Coordinator. Please refer to the "Your Business" Section of the website then follow the "e-Developer" icon or telephone 13 20 92 for assistance.

Following application a "Notice of Requirements" will advise of water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

A copy of Sydney Water's Notice of Requirements must be submitted to the Principal Certifying Authority prior to the Construction Certificate being issued.

The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to the occupation of the development/release of the plan of subdivision, whichever occurs first.

(b) A "Notification of Arrangement" from Integral Energy stating that electrical services, including the provision of street lighting, can be made available to the development.
(c) A written clearance from Telstra or any other recognised communication carrier, stating that services have been made available to the development or that arrangements have been made for the provision of services to the development.

Other Matters

32. In order to ensure a reasonable level of privacy is maintained for all future residents there are to be no windows other than glass blocks located in a "zero lot line" wall.

33. Open-style pool fencing and associated landscaping shall be provided along the boundary of the site adjoining the future Council reserve in order to provide the opportunity for casual surveillance of the reserve by the residents of proposed Lots 37-42. Details of the fencing and landscaping to the reserve shall be submitted to Council for approval prior to the issue of the Linen Plan for the development.

34. The vehicle manoeuvring for Lots 58 and 72 shall comply with the template from the RTA's Guide to Traffic Generating Developments for non-critical manoeuvring areas (85% design car turning path).

PRE-CONSTRUCTION CERTIFICATE MATTERS (BUILDING)

Preamble

35. The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Construction Certificate relating to the approved development, whether by Council or an appropriately accredited certifier. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications which accompany the Construction Certificate.

Compliance with Building Code of Australia

36. All aspects of the building design shall comply with the applicable performance requirements of the Building Code of Australia so as to achieve and maintain acceptable standards of structural sufficiency, safety (including fire safety), health and amenity for the ongoing benefit of the community. Compliance with the performance requirements can only be achieved by:

(a) Complying with the deemed to satisfy provisions, or

(b) Formulating an alternative solution which:

(i) complies with the performance requirements, or

(ii) is shown to be at least equivalent to the deemed to satisfy provision, or

Site Works and Drainage

37. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, together with associated stormwater drainage measures, shall be designed by an appropriately qualified person. Details are to be included with the plans and specifications to accompany any Construction Certificate.

38. Stormwater drainage from the site shall be designed to satisfactorily drain rainfall intensities of 159mm per hour over an average recurrence interval of 20 years. The design shall:

(a) be in accordance with Australian Standard 3500.3.

(b) provide for drainage discharge to an existing Council drainage system.

(c) ensure that the development, either during construction or upon completion, does not impede or divert natural surface water runoff so as to cause a nuisance to adjoining properties.

It must be noted that the abovementioned rainfall intensity and average recurrence interval are increased to 208mm per hour and 100 years respectively, whenever On-site Stormwater Detention is imposed as a requirement of this Consent in "Part A - Engineering Works".

39. Soil erosion and sediment control measures shall be designed in accordance with Council's Soil Erosion and Sediment Control Policy. Details are to be included with the plans and specifications to accompany any Construction Certificate.

Swimming Pools

40. The swimming pool shall comply with the design and construction requirements of Council's Code for Private Swimming Pools and Part 2 of the Swimming Pool Act 1992.

PRE-CONSTRUCTION CERTIFICATE MATTERS (ENGINEERING)

Preamble

41. The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Construction Certificate relating to the approved development, whether by Council or an appropriately accredited certifier. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications which accompany the Construction Certificate.

Content and Type of Construction Certificate

42. Any Construction Certificate issued in relation to this consent shall incorporate and address the design of those works required by Part A of this consent, which do not require separate Roads Act or Local Government Act approval, and any ancillary works necessary to make the construction effective.

Drainage

43. Written permission must be obtained from adjoining owners to carry out any work on their land prior to the issue of any Construction Certificate.

44. Longitudinal sections must be shown on the Engineering Construction Certificate plans to identify those lot(s) or part of lot(s) which do not drain to a public road.

45. Council requires that any lot crated, not draining directly to a public road, be serviced by an interallotment drainage line and appropriate easement. Designs are to be included with any Construction Certificate.

Required Design Specification

46. All engineering works required by Part A must be designed and undertaken in accordance with the relevant aspects of the following documents, except as otherwise authorised by this consent:

(a) Blacktown City Council's Works Specification - Civil (Current Version)

(b) Blacktown City Council's Engineering Guide for Development (Current Version)

(d) Blacktown City Council's Soil Erosion and Sediment Control Policy

NOTE: Any variation from these design requirements must be separately approved by Council.

47. Road pavements are to be designed by a Professional Civil Engineer in accordance with the current version of Council's Engineering Guide for Developments and based upon soil tests performed by a registered NATA soils laboratory and the traffic loadings listed in Part A of this consent. The pavement designs must be lodged with Council for approval prior to issue of the Engineering Construction Certificate.

Asset Management

48. A detailed estimate of the cost of civil engineering work must be submitted to Council prior to the issue of the Engineering Construction Certificate. If engineering works are of a value greater than $25,000, documentary proof of payment of the levy required by the Building and Construction Industry Long Service Payments Act must be provided to Council, prior to any approval of engineering plans, either by Council or an appropriately accredited certifier.

Services and Service Authorities' Clearances

49. Soil erosion and sediment control measures for road drainage/OSD works shall be designed in accordance with Council's Soil Erosion and Sediment Control Policy. Details are to be included with the plans and specifications to accompany any Construction Certificate.

Adjoining Owner's Clearances

50. Written permission must be obtained from downstream owners to:

(a) Discharge stormwater onto adjoining owners' land.

(b) Carry out works on adjoining land.
(c) Drain the site across land owned by others, prior to the issue of any Construction Certificate.

Notice of Work Commencement

51. At least two (2) days written notice must be given for the commencement of engineering works. Such notice must be accompanied by evidence of the contractors Public Liability and Workers Compensation Insurances. For Public Liability Insurance this should be a minimum amount of $10,000,000.

Required Design Specification

52. A Traffic Control Plan shall be included as part of the Engineering Construction Certificate for road and drainage works to be carried out within public road reserves in strict compliance with the requirements of current Australian Standard 1742.3 (Traffic Control Devices for Works on Roads) and current RTA Traffic Control at Work Site manual. Any persons preparing such traffic control layout plans shall have the relevant RTA accreditation.

53. A notation is to be placed on the Engineering Construction Plans that "all light poles, street name poles and bus shelters in this subdivision will be black powder coated to the satisfaction of Blacktown City Council. Further, these light poles shall comply with Council's specifications".

Content and Type of Construction Certificate

54. Where this consent requires both engineering and building works to be undertaken, a separate Construction Certificate shall be issued for each category of works - i.e. a separate Engineering Construction Certificate (for any road works requiring dedication of such works as public road or creation as a private road; on-site stormwater detention; interallotment drainage etc) and a separate Building Construction Certificate (for all works relating to the erection and fit-out of a structure). This excludes all works on existing public roads significant enough to warrant separate engineering approval pursuant to the Roads Act 1993. In relation to this consent an Engineering Construction Certificate and/or engineering approval pursuant to the Road Act 1993 must be issued for road and drainage works prior to the issue of a Building Construction Certificate.

In lieu of issuing an Engineering Construction Certificate, the abovementioned engineering works can be included on a Building Construction Certificate provided that SPECIFIC REFERENCE is made to the relevant engineering works. In such instances, the certifier must provide evidence that they are accredited to do so. This is not applicable where Roads Act Approvals are required.

PRIOR TO CONSTRUCTION WORK COMMENCING

Notification to Council

55. Notice(s) of Appointment of Principal Certifying Authority and Commencement of Building/Subdivision Work must be submitted to Council at least 2 days prior to work commencing on site. The Notice(s) must be in accordance with the provisions of the Environmental Planning & Assessment Regulation 2000.

Tree Protection

56. All trees not otherwise approved to be removed are to be suitably protected prior to the commencement of construction works on the site. Tree guards, barriers or other measures as necessary are to be provided.

Residential Building Work

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

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

(i) has been informed in writing of the licensee's name and contractor licence number, and

(ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act, or

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

(i) has been informed in writing of the person's name and owner-builder permit number, or

(ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in Section 29 of that Act and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.

Note: 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 condition sufficient evidence that the person has complied with the requirements of that Part.

Toilet Facilities

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

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.

The provision of toilet facilities in accordance with this condition must be completed before any other work is commenced.

Signs on Building and Demolition Sites

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

(a) stating that unauthorised entry to the work site is prohibited, and

(b) 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.

This condition does not apply to:

(a) building work carried out inside an existing building, or

(b) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

Protection of Public Places

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

(a) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or

(b) involves the enclosure of a public place,

a hoarding or protective barrier must be erected between the work site and the public place. Such hoarding or barrier must be designed and erected in accordance with Council's Local Approvals Policy.

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

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

Soil Erosion and Sedimentation Control

61. All measures specified in the Construction Certificate to control soil erosion and sedimentation are to be installed prior to the commencement of construction works. Infringement Notices, incurring a monetary penalty, may be issued by Council where measures are not provided or maintained.

62. A single vehicle/plant access to the development site shall be provided to minimise ground disturbance and transport of soil onto any public place. Such access shall be provided in accordance with the requirements of Appendix "F" of Council's Soil Erosion and Sediment Control Policy. As a minimum, single sized 40mm or larger aggregate placed 150mm deep, and extending from the street, kerb/road shoulder to the site is to be provided.

Sydney Water Authorisation

63. (a) Sydney Water Corporation approval, in the form of appropriately stamped Construction Certificate plans, is to be obtained to verify that the development meets the Corporation's requirements concerning the relationship of the development to any water mains, sewers or stormwater channels. The Notice must be submitted to the Principal Certifying Authority prior to the Construction Certificate being issued.

(b) The approved plans are to be submitted to a Sydney Water Customer Centre or 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 plans must be appropriately stamped and all amended plans will require restamping. For Quick Check Agent details, please refer to the website see "Your Business" then Building and Developing then Building and Renovating or telephone 132092.

DURING CONSTRUCTION (PLANNING & BUILDING)

Compliance with Building Code of Australia

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

Car Parking and Access

65. All accessways/driveways and car parking spaces are to be sealed with a hard standing all-weather material and maintained to a satisfactory useable standard.

66. All accessways/driveways and other paved areas are to be graded to provide continuous surface drainage flow paths to approved points of discharge.

67. Not used.

Tree Protection and Landscaping

68. Barriers, tree guards and other measures employed to protect existing trees on the site are to be effectively maintained for the duration of construction works.

69. All landscaping is to be undertaken in accordance with the approved plans/details. All turfed areas are to be to finish level with adjoining surfaces and shall fall evenly to approved points of drainage discharge.

70. The proposed common open space area is to be embellished in accordance with the approved plans/details.

71. The visitor car parking spaces and all accessways/driveways are to be constructed of brick paving or other materials having a similar aesthetic effect (e.g. asphaltic concrete or coloured concrete) and are to be line-marked to indicate their intended usage. In this regard, the visitor car parking spaces and accessways/driveways are to be constructed in accordance with the details submitted to satisfy Condition 26(d) of this consent.

72. The common open space area and internal accessways are to be appropriately illuminated by the use of bollard lighting or the like to provide for the safety of residents at night. In this regard, all outdoor lighting must be provided in accordance with the details submitted to satisfy Condition 26(e) of this consent.

Excavations and Backfilling

73. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. Such work is to be guarded and protected to prevent it from being dangerous to life or property.

Support for Neighbouring Buildings

74. If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, including a public road or place, the person causing the excavation to be made:

(a) must preserve and protect the building from damage, and

(b) if necessary, must underpin and support the building in an approved manner, and

(c) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

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.

Surveys

75. The building(s) shall be set out by a registered surveyor to verify the correct position of each structure in relation to the property boundaries.

76. A registered surveyor's report confirming the required ground and/or floor levels, is to be obtained prior to work proceeding above the floor level of the building(s).

Noise Control

77. Any noise generated during the construction of the development shall not exceed the limits specified in the Protection of the Environment Operations Act 1997.

78. The hours of work for any noise generating construction of the proposed development are to be limited to between 7am and 6pm, Mondays to Fridays inclusive, 7am to 1pm Saturdays or if audible on residential premises 8am to 1pm, with no construction activities to be undertaken on Sundays or public holidays.

Construction Inspections

79. Any additional Council inspection, beyond the scope of any Compliance Certificate package and needed to verify the compliance of any work, will be charged at the individual inspection rate nominated in Council's Fees and Charges Schedule.

Maintenance of Soil Erosion Measures

80. All required soil erosion and sediment control measures are to be maintained during the entire construction period until disturbed areas are restored by turfing, paving or revegetation. Infringement Notices, incurring a monetary penalty, may be issued by Council where the maintenance of measures is inadequate.

Surface Drainage

81. To prevent surface water from entering the building:

(a) the floor level shall be a minimum of 225mm above finished ground level.

(b) seepage and surface waters shall be collected and diverted clear of the building site by a subsurface/surface drainage system.

NOTE: Care is to be taken to ensure that no run off is diverted to adjoining properties.

Building Materials and Wastes

82. Building and construction materials, plant, equipment and the like are not to be placed or stored at any time on Council's footpath or roadway.

83. Suitable and effective builder's refuse and waste storage facilities are to be provided on the development site for the duration of construction works.

Ancillary Works

84. Each dwelling is to be provided with an open air clothes drying area within its associated private courtyard or a mechanical facility within the dwelling.

85. The development is to be provided with fencing and screen walls at full cost to the developer as follows:

(a) Rear and side boundaries (behind the building line) and private rear courtyards are to be provided with walls/fences 1.8m high and constructed of timber (lapped and capped), colorbond or brick.

In this regard, all fencing and retaining walls must be constructed in accordance with the approved plans/details submitted to satisfy Condition 26 of this consent.

86. Mail boxes are to be provided on the site in accordance with the requirements of Australia Post.

87. Traffic calming measures being at grade pavement treatment is to be provided along the internal accessway at the locations shown in Annexure C to the report of Craig McLaren tendered to the Land & Environment Court and dated 10 May 2005.

88. A single master T.V. antenna is to be installed to service each building and provision made for connection to each dwelling within that building.

Other Matters

89. Should Council be appointed as the Principal Certifying Authority for the project, structural details of the following nominated building components, prepared and/or certified by a professional engineer or other appropriately qualified person, shall be lodged with Council prior to commencing or constructing that portion of the approved development.

Nominated components:

(a) Footing piers

(b) Footing system

(d) Wall frame bracing

(e) Roof trusses

(f) Structural steelwork

(g) Retaining walls

Construction Inspections

90. The person having the benefit of this consent is required to notify the Principal Contractor for the building construction project that various mandatory and critical stage inspections must be conducted by an accredited certifier, and may include inspections (where applicable):

(a) At the commencement of the building work; and

(b) After excavation for, and prior to the placement of, any footings; and

(c) Prior to pouring any in-situ reinforced concrete building element; and

(d) Prior to the covering of the framework for any floor, wall, roof or other building element, and prior to covering waterproofing in any wet areas; and

(e) Prior to covering waterproofing in any wet areas (but for a minimum of 10% of rooms with wet areas in any Class 2, 3 or 4 building); and

(f) Prior to covering any stormwater drainage connections; and
(g) After the building work has been completed and prior to any Occupation Certificate being issued in relation to the building.

The critical stage inspection "(g)" must be carried out by the Principal Certifying Authority.

Any inspection conducted by an accredited certifier other than the nominated PCA for the project must be verified by way of a Compliance Certificate issued for the relevant works.

Note: Failure to ensure the relevant inspections are conducted will preclude the issue of an Occupation Certificate for the project.

Other Matters

91. Removable bollards shall be installed midway along the common accessway located at the north-east corner of the site (which will provide emergency vehicle access) to prevent its use as a thoroughfare for everyday traffic.

DURING CONSTRUCTION (ENGINEERING)

Tree Protection

92. Existing vegetation must be left undisturbed except where roads, drainage lines and filling and/or building works are proposed.

Ancillary Works

93. Ancillary works shall be undertaken at no cost to Council to make the engineering works required at Part A of this consent effective. Such works shall include, but are not limited to, the following:

(a) the relocation of underground services where required by the positioning of new drainage and road infrastructure.

(b) the relocation of above ground power and telephone services.

Maintenance of Soil Erosion Measures

94. All required soil erosion and sediment control measures are to be maintained during the entire construction period until disturbed areas are restored by turfing, paving or revegetation. Infringement Notices, incurring a monetary penalty, may be issued by Council where the maintenance of measures is inadequate.

Notification to Council

95. At least 2 days written notice must be given for the commencement of engineering works. Such notice must be accompanied by evidence of the contractors Public Liability and Workers Compensation Insurances. For Public Liability Insurance, this should be for a minimum amount of $10,000,000.

Lot Filling & Compaction

96. Land shall be filled where necessary. All fill including existing fill must be compacted in accordance with the Council's "Works Specification - Civil (Current Version)". A compaction certificate is to be obtained from a practising Civil Engineer verifying that the correct compaction requirements have been met.

97. Removal of any unsuitable soil and/or fill material and its replacement with suitable material compacted in accordance with Council's "Works Specification - Civil (Current Version)".

Construction Inspections

98. Compliance Certificates are to be issued for works covered by the Engineering Construction Certificate at the completion of the following categories:

(A) Soil Erosion and Sediment Control

(a) Implementation of erosion and sediment control

(b) Revegetation of disturbed areas

(c) Construction of major controls (i.e. gabions, mattresses, shotcreting etc)

(d) Removal of sediment basins/fencing etc

(e) Internal sediment/pollution control devices
(f) Final Inspection

(B) Construction of Drainage Works (including interallotment)

(a) Pipes before backfilling, including trench excavation and bedding

(b) Sand backfilling

(c) Final pipe inspection

(d) Pit bases and headwall aprons

(e) Pit walls/wing walls/headwalls

(f) Concrete pit tops

(g) Connection to existing system

(h) Tail out works
(i) Final Inspection

(a) Boxing out

(b) Sub grade roller test

(c) Subsoil drainage

(d) Sandstone roller test layer 1

(e) Sandstone roller test layer 2

(f) Kerb pre-laying

(g) Kerb during laying, including provision of roof water outlets

(h) Sandstone depth

(i) Pavement profiles

(j) DGB depths and roller tests

(k) Wearing course

(l) Kerb final

(m) Concrete tests

(n) Formwork concrete pavements
(o) Final Inspection

(D) Provision of Street Furniture

(a) Street furniture (including street signs, guideposts, guardrail etc)
(b) Erection of fencing adjoining public/drainage reserves

(E) Footpath Works

(a) Footpath trimming and/or turfing (to ensure 4% fall)

(b) Pathway construction (cycle/link pathways)

(c) Path paving construction

(d) Service adjustments
(e) Final Inspection

(F) Traffic Control

(a) Implementation of traffic control
(b) Maintenance of traffic control during works

(G) Final Inspections

(a) Preliminary overall final inspection
(b) Overall final inspection

ALTERNATIVELY one overall Compliance Certificate may be issued to cover all of the abovementioned works.

Compaction Requirements

99. Special attention is drawn to the following requirements of Council's Works Specification - Civil (Current Version):

(a) Submission of compaction certificates for fill within road reserves.
(b) Submission of compaction certificates for road sub grade.

(c) Submission of compaction certificates for road pavement materials (sub-base and base course).

(d) The submission of 2 contour lot fill diagrams and lot fill compaction certificates. A Restriction as to User with Council's standard wording must be placed on filled lots.

(e) Compliance Certificates from road material suppliers.

General

100. PUBLIC SAFETY:

The applicant is advised that all works undertaken in a public place are to be maintained in a safe condition at all times. Council may at any time and without prior notification make safe any such works Council considers to be unsafe, and recover all reasonable costs incurred from the applicant.

PRIOR TO ISSUE OF OCCUPATION CERTIFICATE

Road Damage

101. NOTE: Should the cost of damage repair work not exceed the road maintenance bond Council will automatically call up the bond to recover its costs. Should the repair costs exceed the bond amount a separate invoice will be issued.

Compliance with Conditions

102. The use or occupation of the approved development within an approved stage shall not commence until such time as all conditions of this development consent relevant to that stage have been complied with.

Removal of Temporary Facilities

103. Any hoarding or similar barrier erected to protect a public place during the construction of an approved stage is to be removed from the site prior to the use or occupation of that stage.

104. Any temporary toilet facilities provided during construction works for an approved stage are to be appropriately dismantled, disconnected and removed from the site.

105. All temporary soil erosion controls employed during construction of an approved stage are to be removed and other permanent measures in accordance with Council's Soil Erosion Control Policy are to be implemented prior to the use or occupation of the development.

106. All temporary builder's signs or other site information signs are to be removed upon the completion of site works.

107. Any temporary site access provided for the purpose of construction works is to be removed and the kerb and gutter and/or previous roadworks reinstated in a manner satisfactory to Council. Should the reinstatement involve the provision of a new vehicular crossing, layback, kerb and gutter or road shoulder works the separate approval of Council's Maintenance Section is to be obtained (and appropriate fees paid) prior to such works commencing.

Additional Inspections

108. Any additional Council inspections beyond the scope of any Compliance Certificate package and needed to verify full compliance with the terms of this consent, will be charged at the individual inspection rate nominated in Council's Fees and Charges Schedule.

Payment of Fees

109. All fees payable to Council as part of any Construction, Compliance or Occupation Certificate or inspection associated with the development (including the registration of privately issued certificates) are to be paid in full.

Service Authorities

110. Prior to the occupation of an approved stage, the applicant is required to submit the following documentary evidence to the Principal Certifying Authority if such has not already been previously issued for that stage:

(a) A Section 73 Compliance Certificate issued un the Sydney Water Act 1994 by an unauthorised Water Servicing Coordinator. Please refer to the "Your Business" Section of the Sydney Water website then follow the "e-developer" icon or telephone 132092 for assistance.

(b) A "Notification of Arrangement" Certificate from Integral Energy, stating that electrical services, including the provision of street lighting, have been made available to the development.
(c) A written clearance from Telstra or any other recognised communication carrier, stating that services have been made available to the development or that arrangements have been made for the provision of services have been made available to the development or that arrangements have been made for the provision of services to the development.

PRIOR TO ISSUE OF SUBDIVISION CERTIFICATE

Section 94 Contributions

111. The following monetary contributions pursuant to Section 94 of the Environmental Planning & Assessment Act 1979 must be paid. The amounts below are BASE contributions which WILL BE INDEXED from the nominated base date to the date of payment. Payment of the indexed amounts must be made (BY BANK CHEQUE IF IMMEDIATE CLEARANCE IS REQUIRED. NOTE Council DOES NOT accept payment of S.94 Contributions by credit card or EFTPOS) prior to the issue of a Subdivision Certificate (for subdivision works) either by Council or any accredited certifier, whichever occurs first.

Contribution Item Base Amount Relevant Base

C.P. Date

(i) Open Space $2,014,837 5 1/9/03

(ii) Community Facilities $301,525 5 1/9/03

(iii) Tributary Trunk Drainage $127,645 5 1/9/03

(iv) Major Roads $108,002 5 1/9/03

(v) Local Roads $31,880 5 1/9/03

(vi) Tree Planting $2,621 10 1/6/00

* The contributions will be indexed according to the Australian Bureau of Statistics' Implicit Price Deflator for Gross Fixed Capital Expenditure (Private Dwellings) and the Consumer Price Index (Sydney Dwellings).

* Copies of the following relevant Contribution Plans may be inspected/purchased from Council's Development Services Unit:

S.94 CP No. 5 - Parklea Release Area

S.94 CP No. 10 - Tree Planting on Nature Strips

* The Section 94 Contributions have been based on the total developable area, the site's road frontage and/or the potential additional population nominated below. Should the final plan of survey indicate any change in the total developable area or should amendments change the potential additional population, the Section 94 Contributions will be adjusted accordingly.

Developable Area: 3.3575 hectares

Additional Population: 378.8 persons

Road Frontage: NA

No. of Allotments: 116 lots

* Only the payment of Section 94 Contributions for each stage of the development is required to be paid prior to Linen Release for that stage.

112. Not used

Road Damage

113. The cost of repairing any damage caused to Council's assets in the vicinity of the subject site as a result of construction works associated with the approved development is to be met in full by the applicant/developer prior to the issue of a Subdivision Certificate.

NOTE: Should the cost of damage repair work not exceed the road maintenance bond Council will automatically call up the bond to recover its costs. Should the repair costs exceed the bond amount a separate invoice will be issued.

Easements/Restrictions

114. Any easement(s) or restriction(s) required by tis consent must nominate Blacktown City Council as the authority to release, vary or modify the easement(s) or restriction(s). The form of easement or restriction created as a result of this consent must be in accordance with the following:

(a) Blacktown City Council's standard recitals for Terms of Easements and Restrictions (March 2000).

115. Council requires that each of the proposed lots serviced by the existing interallotment drainage easements has this burden and benefit created pursuant to Section 88B of the Conveyancing Act 1919.

116. A restriction as to user is to be created under Section 88B of the Conveyancing Act 1919 providing that:

(a) No fence shall be erected on the boundary of any Lot adjoining land which is to be created as Public Reserve or Drainage Reserve without the consent of the Council of the City of Blacktown.

(b) Such consent shall not be withheld, however, if such fence is erected without expense to the Council of the City of Blacktown.

117. The creation of reciprocal rights of way over the shared private accessways under Section 88B of the Conveyancing Act 1919.

NOTE: A restriction as to user for the "Maintenance and Repair of the Shared Accessways" is to be in accordance with Blacktown City Council's recitals for Terms of Easements and Restrictions (Current Versions).

118. All Section 88B restrictions and covenants created as part of this consent are to contain a provision that they cannot be extinguished or altered except with the consent of Blacktown City Council.

Works-As-Executed Plans

119. A works-as-executed plan (to a standard suitable for microfilming) under the hand of a Chartered Professional Engineer or a Registered Surveyor must be lodged with Blacktown City Council when the engineering works are completed.

Surveys/Certificates

120. Any Subdivision Certificate application lodged with Council or an application for practical completion shall be accompanied by Council's Form SEW20. A copy of Form SEW20 will be sent by Council with the approved Construction Certificate.

Roads and Traffic Authority

121. Not used

122. Prior to the release of the Linen Plan, the applicant is to submit a copy of the Community Management Statement to Council for review. This Statement is to include relevant details of the maintenance and repair of the Community Lot, establishment and regulation of the Owners Corporation and access to the Community Lot to maintain residential dwellings.

This is to be supported with a development contract setting out the future development stages, the works involved and timing for construction.

NOTE: The final wording of the Management Statement shall be to Council's satisfaction.

Compliance with Consent Conditions

123. The issue of a Subdivision Certificate for an approved stage is not to occur until all conditions of this consent relating to that stage have been satisfactorily addressed.

Inspection of Work

124. Any ADDITIONAL Council inspections beyond the scope of any Compliance Certificate package and needed to verify full compliance with the terms of this consent, will be charged at the individual inspection rate nominated in Council's Fees and Charges Schedule.

Payment of Fees

125. All fees payable to Council as part of any Construction's Compliance or Subdivision Certificate or inspection associated with the development (including the registration of privately issued certificates) are to be paid in full.

Final Plans and Fees

126. The submission of a final plan of subdivision for an approved stage, together with 7 exact copies and the appropriate fee. The final plan of subdivision for an approved stage will not be released until all conditions of this determination relating to that stage have been complied with.

127. Where any permanent control marks are placed in accordance with the Survey Practice Regulation 1990 in the preparation of the plan, 2 copies of the locality sketch plans of the marks placed are to be forwarded to Council with the final plan of subdivision.

Surveys/Certificates

128. A Compliance Certificate shall be submitted by a Registered Surveyor indicating that all pipelines and associated structures lie wholly within any easements required by this consent.

Security/Payments in Lieu/Contributions

129. An amount of $925.00 is to be paid to Council for the ongoing maintenance of the black powder coated light poles, street name poles bus shelters proposed in this subdivision. This amount is based on a fee of $25.00 per lot proposed in the subdivision and is to be paid prior to the release of the Linen Plan. This amount is valid only until 30 June 2005, upon which this amount will be updated in accordance with Council's adopted fee structure at the time. Any enquiries regarding this fee are to be directed to the Maintenance Section of the Directorate of Technical and Transport Services.

Subdivision Configuration

130. Any allotment which is intended to adjoin a zero lot line is to be appropriately burdened with an easement for maintenance and repair 900mm wide, pursuant to Section 88B of the Conveyancing Act 1919.

Compliance with Consent Conditions

131. The proposed common open space area within an approved stage is to be embellished in accordance with the approved plans/details. These embellished works are to be completed to Council's satisfaction prior to any release of the final Subdivision Certificate for that stage.

Site Access, Roadworks and Dedications

132. There shall be no vehicular or pedestrian access to or from the following nominated road for lots having frontage to that road and an appropriate restriction as to user shall be created under Section 88B of the Conveyancing Act 1919 covering this requirement. The Section 88B Instrument shall contain a provision that it may not be extinguished or altered except with the consent of Blacktown City Council.

Nominated Road: SUNNYHOLT ROAD

Services and Service Authorities' Clearances

133. The following documentary evidence is to be obtained prior to the issue of any Subdivision Certificate:

(a) A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Applications must be made through an authorised Water Servicing Coordinator. Please refer to the "Your Business" Section of Sydney Water website then follow the "e developer" icon or telephone 13 20 92. Following application a "Notice of Requirements" will advise detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and my impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Principal Certifying Authority piror to the release of the Plan of Subdivision. (b) A "Notification of Arrangement" Certificate from Integral Energy, stating that electrical services, including the provision of street lighting, have been made available to the development. (c) A written clearance from Telstra or any other recognised communication carrier, stating that services have been made available to the development or that arrangements have been made for the provision of services to the development.

Easements/Restrictions

134. Not used

59 Acoustic Measures

135. The 2.1 metre high solid masonry non-permeable "decorative" fence and associated landscaping specified in Condition 32 of this consent for an approved stage is to be constructed and completed to Council's satisfaction prior to the release of the Linen Plan for that stage.

a Relationship with other Approvals

136. Compliance with the requirements of the following nominated approvals:

A. Development Consent No. 04-1854 dated 12/8/04 issued by Blacktown City Council.

B. Any Engineering Construction Certificate for this development.

C. Relevant requirements of any other Development Consent or Construction Certificate issued under the Environmental Planning and Assessment Act 1979 or Building Approval issued under the local Government Act 1993.
The conditions contained within the above approvals relevant to an approved stage must be fully complied with in order to obtain release of the final plan of subdivision for that stage.

The authorised person signing the linen plan shall ascertain whether any Compliance Certificate(s) for the development is/are required to be issued in relation to any element, component or system incorporated in the development. A copy of each required Compliance Certificate shall be lodged with Council.

Other Matters

137. Prior to the release of the Linen Plan for the Community Title Subdivision for an approved stage, the applicant is to demonstrate compliance with the following requirements of Council's Manager Waste Services for that stage:

(a) A plan should be submitted to Council indicating the proposed collection points of garbage and recycling bins for the Medium Density Housing not having direct frontage to the looped private road or a public road.

(b) A clause in the Community Management Statement must be inserted to ensure that the designated collection points (as shown on the plan required by (a)) are not obstructed on collection nights and that all bins are removed from the kerb within 24 hours of collection having taken place.

(c) Council or its contractors are to receive full indemnity relating to any pavement damage or its failure occurring over the looped private road.

138. No separate torrens title subdivision of the Medium Density Housing shall be released by Council until such time as the community road, visitor car parking and common open space and embellishment thereof (i.e. proposed Lot 1) have been completed to Council's satisfaction.

OPERATIONAL MATTERS (PLANNING)

Car Parking and Access

139. All required off-street car parking spaces and internal accessways/driveways shall be maintained in a satisfactory useable manner.

General

140. Spillage of light, if any, shall be controlled so as not to cause nuisance to the amenity of adjoining land.

141. If artificial lighting is proposed full details are to be submitted indication the manner in which adjoining properties are to be protected.

142. If an intruder alarm is installed on the premises it shall be fitted with a timing device in accordance with the requirements of the Protection of the Environment Operations Act 1997.

143. Emission of sound from the premises shall be controlled at all times so as to not unreasonably impact upon nearby owners/occupants.

Landscape Maintenance

144. All landscaped areas are to be maintained at all times in a suitable manner.

Use of premises

145. The use of the approved development shall, at all times, be conducted in a manner consistent with the terms and conditions of this consent.

a) PART A - ENGINEERING WORKS

2 Roadworks

146. Proposed new private access road(s) must be constructed generally as follows:

Carriageway

Name Width Length Formation Traffic Loading

(m) (m) (m) N(E.S.A.)

Proposed Roads

1 and 2 6 - 8.6 552 N/A 2x105

Proposed Road

3 5 52 N/A 5 x 104

Proposed Road

4 4.5 52 N/A 5 x 104

NOTE: THE ROAD SHALL BE DESIGNED BY A CHARTERED PROFESSIONAL ENGINEER TO WITHSTAND A LOAD OF 25.5 TONNES TO ACCOMMODATE GARBAGE TRUCKS

Drainage Works

147. Interallotment drainage must be provided where any part of any lot does not drain to a public road. The interallotment drainage design must include the disposal of stormwater from upstream properties.

148. Drainage from the site must be connected into:

(a) Council's existing drainage system.

149. Overland flows up to the 1% A.E.P. (100 year Average Recurrence Interval) event must be intercepted at the boundary of the site and conveyed through the site in a satisfactory manner.

Intersection Treatment

150. Details of the intersection of Private Road No. 1 with Tamarind Drive shall be submitted to Council for approval under the Roads Act, 1993.

151. Construction of Council's standard residential vehicular footway and gutter (layback) crossings to each of the following nominated lots in accordance with Council's plan A(BS)102 but thickened to 150mm and reinforced with F82 steel reinforcing fabric. The construction standard for this work may be reduced if the house construction precedes the crossing construction.

Nominated Lots: 17-30, 35-36, 37, 53-57, 76-79, 98-99, 123-132.

Soil Erosion and Sedimentation Control

152. Re-vegetation must be applied to disturbed areas as soon as practical after completion of earthworks and must be established prior to release of the maintenance security. All open drains must be turfed.

153. Soil erosion and sediment control measures shall be implemented in accordance with Council's Soil Erosion and Sediment Control Policy.

154. Not used

155. Not used

ADDITIONAL MATTERS (LANDSCAPING)

156. Additional landscaping is to be provided to proposed Lots 92 and 93 in accordance with the plan prepared by HPA dated April 05 Issue A titled House Planting Plan for Lots38-41 & 92-93.

157. The approved landscape plan prepared by HPA dated May 2004 DA 105 Issue A is to be amended so that at least 1 indigenous native tree shall be provided in the rear yard of each dwelling.

============================

CITATION:	Mirvac Homes (NSW) Pty Ltd v Blacktown City Council [2005] NSWLEC 263
PARTIES:	Mirvac Homes (NSW) Pty Limited Blacktown City Council
FILE NUMBER(S):	10099 of 2005
CORAM:	Cowdroy J
KEY ISSUES:	Development Application :- non-compliance with development control plan - parking - solar access - private open space - density - setbacks - justification for non-compliance
LEGISLATION CITED:	Blacktown Local Environmental Plan 1988 cl 9(3) Blacktown Development Control Plan 1992
CASES CITED:	Parsonage v Ku-ring-gai Council [2004] NSWLEC 347; Stockland Development Pty Ltd v Manly Council (2004) 136 LGERA 254; Zhang v Canterbury City Council (2001) 115 LGERA 373
DATES OF HEARING:	12/05/2005
DATE OF JUDGMENT:	05/23/2005
LEGAL REPRESENTATIVES:	APPLICANT M Craig QC with E Ozen SOLICITOR Coudert Brothers RESPONDENT C Drury (solicitor) SOLICITOR Phillips Fox