Mirvac Projects Pty Limited v Ku-ring-gai Council - [2007] NSWLEC 63

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Mirvac Projects Pty Limited v Ku-ring-gai Council [2007] NSWLEC 63

PARTIES:
APPLICANT
Mirvac Projects Pty Limited
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 11510 of 2004

CORAM: Murrell C

KEY ISSUES: Appeal :- s. 96 Modification Application, Streetscape, Bluegum High Forest - Ecological Community, Bush Regeneration, s. 88 Instruments restoration of Glenwood House heritage item.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 1/02/2007

EX TEMPORE JUDGMENT DATE: 1 February 2007

LEGAL REPRESENTATIVES:
APPLICANT
Mr R. Wilshire, solicitor
of Coudert Brothers
RESPONDENT
Mr C. Leggett, SC
instructed by Mrs L. Finn, solicitor
of Abbott Tout

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

1 February 2007
11510 of 2004. Mirvac Projects Pty Ltd v Ku-ring-gai Council

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

JUDGMENT

1 This is an extempore judgment for an appeal under section 96(6) of the Environmental Planning and Assessment Act. (the Act). The applicant is seeking to amend a development approved by the Court in 2005. This consent was for a community title residential estate with 17 new dwellings and for the retention of the heritage item known as ‘Glenwood House’. The property is on the corner of Eastern Road and Burns Road, Wahroonga.

2 By way of background, the site has been the subject of proceedings in this Court on a number of occasions including consent for the demolition of other heritage buildings on the site. and the Glenwood House is to be retained and restored as part of the approval of the current approvals for the application for the development of the estate which is largely community title, however the current s 96 modification application severs the lot with frontage to Water Street from the community title estate.

3 This appeal first came before the Court on 11 December 2006 and at that time the Court expressed concern about a thorough assessment of both the landscape plan and also the extent of modification to the dwellings because previously the Court had considered the whole estate in a most detailed way. In particular, the relationship of the new dwelling houses to Glenwood House, the heritage item on the subject site.

4 I make the point that the application was not made to the council but rather made directly to the Court. In this regard I recognize the assistance of Council’s officers in providing a detailed report of the proposed amendments. Mr David Hoy, council’s planning assessment officer, provided a written report to the Court and oral evidence to the Court. Mr Fenn, council’s arborist, provided advice to the Court in terms of the landscape plan as did Mr Wilke and the Court has also had the benefit of hearing from the applicant’s architect and the applicant’s landscape architect.

5 The Court met on site again this morning to hear from resident objectors and to assess the new envelopes of the dwellings in the context of the presentation of the estate as an integrated development. For the original consent there was a great deal of care in detailing conditions to ensure that the estate makes a positive contribution to the amenity of the area and in terms of the importance of the heritage item that is to be retained, Glenwood House.

6 For the original consent there was also a focus on the contribution of the site to the Bluegum High Forest Community, having regard to its juxtaposition between the two significant reserve/parklands in the vicinity of the site. The Court now has details of the landscaping, including the bush regeneration areas of the Bluegum High Forest and the exclusion areas to be the subject of a s88 instruments. The Court also has the benefit of the applicant’s architect to explain the philosophy behind the garden areas with the estate is to present as an integrated whole.

7 I am now satisfied with the amendments proposed in the landscape and architectural plans that the modification application is satisfactory.

8 The integrity of the estate is important in terms of its overall design and also in terms of the relationship it provides to maintaining the focus of Glenwood House, the heritage item to be restored. The issue of the landscaping treatment that had previously been undertaken has now been resolved and rectified in terms of the landscaping plan and the species are now consistent with the Bluegum High Forest Community. These areas are to be identified on a plan to show the exclusion zone for the 88E instrument to be imposed to ensure the continued viability, sustainability of the Bluegum High Forest Community.

9 There are detailed conditions which will ensure that the bush regeneration in terms of the community is sustained and it is important that such notification on the title of these dwelling houses be that the buyer is aware of the importance of the Bluegum High Forest and the importance of then future owners recognising the need that this must be maintained.

10 I am satisfied with the conditions as now proposed, including the 88E Instruments, that the Bluegum High Forest will be sustained in the future development of this estate.

11 The applicant has also made statements to assure the community that Glenwood House will be restored.

I will break from this extempore judgment to ask Mr Wilcher of the timeframe for the restoration works of Glenwood House, is there any timeframe when the necessary works would be completed? Should that be prior to the occupation of all the dwelling houses on the estate?

WILCHER: I’ll get instructions, Commissioner. Commissioner, I’m instructed that the conservation program for Glenwood House will be starting this year and it’ll take about 18 months to do, the aim being to bring it generally in line with the construction of the houses on site as well.

COMMISSIONER: So perhaps it may be appropriate that the occupation certificates for the dwelling houses not be issued until the restoration of Glenwood House has been attended to.

WILCHER: I would like to try and dissuade you on that one and for this reason, Commissioner, it is I think an unreasonable fetter upon the construction of these houses and the marketing of them. Partly the funds coming from the sale of these houses will assist in carrying out the conservation works and there’s no reason why the conservation work should be carried out before the houses are built or occupants move into them.

COMMISSIONER: Well, can I say that I don’t accept that is unreasonable. Glenwood House is the only remaining heritage item on the estate. The development of the site premised on Glenwood House being the focus of this estate and I think that it is only fair and reasonable in terms of community expectations that the restoration works be completed prior to the occupation of the dwelling houses.

WILCHER: In response, if I may, Commissioner, the applicant fully recognises its obligation under prior consents to preserve the house.

COMMISSIONER: But this is a community title development as well and it just seems to be an appropriate mechanism that the restoration works, given that you’ve said that they’ll be undertaken within 18 months, the timing would not appear to be out of kilter with when one may expect the first dwellings to be completed and occupation certificates applied for.

WILCHER: No, Commissioner, I said that the program will take 18 months to carry out, but it will start this year. So I’m not saying by June next year it will be carried out, I’m saying it will be commenced this year but the timetable is not yet said.

COMMISSIONER: Well the timetable may not be set and the timetable for the construction of the other dwelling houses may or may not be set but it would be appropriate that they go hand-in-glove, so to speak.

WILCHER: The problem being, as I say, that the commercial realities are that the profits from the sale of the houses go towards the expenses of the conservation of Glenwood House and I suggest it result in a better outcome if--

COMMISSIONER: Well can I say that the sale of the lot on Water Street, now that that is severed from the rest of the community title, may assist in that regard?

WILCHER: It may but it also may - it’ll definitely assist if the sales of the other lots, those profits are put there. I don’t think that pegging it to that occupation certificate is going to produce a better outcome--

COMMISSIONER: Well one should also consider, I would have thought in the marketing of this estate, that surely one would want to see Glenwood House restored to its former glory--

WILCHER: That’s right and that is the process of doing so, but the sale--

COMMISSIONER: I don’t believe it’s too onerous and I’ll adjourn to allow you to seek further instructions if you wish.

WILCHER: Well, can I - my instructions are we’ll accept that, Commissioner.
COMMISSIONER: Very well. So if an appropriate condition can be framed as such. So I’ll now return to the judgment.

12 As such, following discussions with the applicant it has been agreed that Glenwood House be restored prior to the occupation of the proposed dwellings on the subject site.

13 The Court has heard from a number of resident objectors today who expressed concerns about the process and also expressed concern about the Bluegum High Forest and expressed concern about the quality of the dwelling houses proposed to now be erected on the subject site, as these are seen to be of a lesser quality than originally approved.

14 The role of the Court is not to assess an application in terms of whether it is more expensive or less expensive, the role of the Court is to assess what the impacts of those changes are in the overall context in terms of an assessment under s79C.

15 I am satisfied that the modifications now proposed are satisfactory. In my assessment the cost of the dwellings should not be determinative but rather the dwellings should be assessed in their context and this includes the importance of the vegetation of the area. The built form is a relevant factor, not the cost of construction. Wahroonga, is noted for its prestige dwelling houses as well as the leafy character of the area and, in this pocket, the Bluegum High Forest, the natural vegetation is also a most significant factor. The quality of the dwelling houses I do not consider to be substandard. Many of the amendments as stated by Mr Wilcher for the applicant have in fact been to achieve a better layout and greater, or better livability in terms of the design of the houses.

16 The Court raised some concern with the dwelling on Lot 5, in terms of its presentation in the streetscape, however in the overall context of all the dwellings and their contribution to the streetscape, it would not warrant refusal of the modification application. Some minor modifications are proposed to improve its presentation. From an urban design point of view the dominance of garages in the streetscape is generally not considered ‘good design’ and with the minor changes the garages will still be a relatively dominant element in the streetscape but given the landscaping, given the overall context of the dwellings in the area and the relationship of unbuilt upon area as opposed to built upon area, the Court is satisfied that the modifications are satisfactory and should be approved. Many of the dwelling houses have been reduced in size, in some instances this has resulted in less built upon area and increased soft landscaping. Therefore in the overall scheme the total site will contribute to the landscape nature of the area.

17 A more formal garden setting for each of the dwellings in terms of their frontages is proposed with a streetscape of magnolias and there will be the backdrop of the Bluegum High Forest and indeed there are also canopy trees proposed within the individual curtilages of the dwelling houses.

18 The Court, in its assessment, is aware of the concerns raised by residents and the Court, in its deliberations, has considered the objectors’ concerns. In my overall final assessment of the recent changes to the modification application with the co-operation of both the applicant and the council, the resultant development in terms of the restoration of Glenwood house, the landscape plan and the modifications to the built form of the individual dwellings, warrants approval. As noted above the Court recognizes the assistance provided by council’s officers’ in their comprehensive reports and discussions.

19 The Court also notes that Council’s heritage architect has also considered the application is satisfactory from a heritage point of view.

20 Additional conditions are to be framed to ensure that the regeneration plan and the s88 instruments provide for a sustained landscaped setting for the individual dwelling houses and for a comprehensive integrated development in terms of community title for this estate.

21 The Court considers a ‘deferred commencement’ is necessary because an updated Basix certificate is required, however, the need for same does not present any uncertainty, I am satisfied that such a certificate would be forthcoming. A deferred commencement is also proposed in terms of the regeneration plan for the Bluegum High Forest Community

22 The amended conditions to be emailed will be exhibit 19. Part of the ‘deferred commencement’ condition about the regeneration plan will also require that the plan of what will be known as the exclusionary zone will form the basis of the 88E instrument, to also be submitted to the council for approval and the Court requires a copy of that plan for the Court’s records as well..

23 Accordingly the formal orders of the Court on receipt of the consolidated conditions to reflect my findings above will be:

___________________

J S Murrell
Commissioner of the Court
ljr

Annexure ‘A’

Consolidated Conditions of Consent

Incorporating modifications to 1 February 2007

Mirvac Projects Pty Ltd v Ku-ring-gai Council

Property: 134 Eastern Road, Wahroonga

Development Application No: DA 992/04

Proposal: Alterations and Additions to a heritage building

and construction of sixteen (16) new dwellings

at 134-138 Eastern Road, Wahroonga

Pursuant to s.80(3) of the Environmental Planning & Assessment Act 1979, this consent will not become operative until the following matters have been addressed:

A. The applicant is to provide to the Council current BASIX certificates for each of the houses in accordance with the SEPP - Building Sustainability Index (BASIX); and

B. The applicant has provided to Council, and Council has approved, a program of bush regeneration/weed removal of all areas of the site designated as bush regeneration area or zone on the Overall Landscape Plan Issue K, drawn by UmbaCo Pty Ltd, dated January 2007, prepared by a qualified and experienced bush regenerator. The program is to include:

a survey plan of the areas of the site designated as bush regeneration area or zone; and
a statement that seed and other propagation material of indigenous plants shall be collected from local or other compatible material. Seed shall be collected, stored and propagated by a qualified and experienced bush regenerator; and
provisions for supply to the Principal Certifying Authority of certification of the source of the stock obtained for the purposes of the program.

1. The development to be in accordance with Development Application No. DA 922/04 as amended by the following plans, unless otherwise indicated in the conditions below:

DA 001 Issue D, Site Masterplan drawn by HPA, dated May 2006
DA 002 Issue D, Streetscape elevations drawn by HPA, dated May 2006 (subject to changes to the elevations on lots 4 and 5 as shown in detailed plans below)
DA 003 Issue B, Site analysis drawn by HPA, dated May 2006
DA021 Issue B, Lot 2 Floor Plans, Elevations and Section, drawn by HPA, dated September 2004, lodged 13 May 2005, subject to amended Plans Drawing Nos. 021411 SK01-06 prepared by HPA Architects dated 29 August 2005.
DA022 Issue B Lot 2 Site/Roof Plan, Elevations and Design Analysis, drawn by HPA, dated September 2004, lodged 13 May 2005, subject to amended Plans Drawing Nos. 021411 SK01-06 prepared by HPA Architects dated 29 August 2005.
DA 031 Issue C, Lot 3 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 032 Issue C, Lot 3 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 041 Issue C, Lot 4 Floor plans, elevation and section drawn by HPA, dated January 2007
DA 042 Issue C, Lot 4 Site plan, roof plan, elevations and design analysis drawn by HPA, dated January 2007
DA 051 Issue C, Lot 5 Floor plans, elevation and section drawn by HPA, dated January 2007
DA 052 Issue C, Lot 5 Site plan, roof plan, elevations and design analysis drawn by HPA, dated January 2007
DA 061 Issue B, Lot 6 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 062 Issue B, Lot 6 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 071 Issue B, Lot 7 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 072 Issue B, Lot 7 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 081 Issue B, Lot 8 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 082 Issue B Lot 8 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 091 Issue C, Lot 9 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 092 Issue C, Lot 9 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 101 Issue E, Lot 10 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 102 Issue E, Lot 10 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 111 Issue C, Lot 11 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 112 Issue C, Lot 11 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 121 Issue K, Lot 12 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 122 Issue K, Lot 12 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 131 Issue B, Lot 13 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 132 Issue B, Lot 13 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 141 Issue B, Lot 14 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 142 Issue B, Lot 14 Site plan, roof plan, elevations and design nalysis drawn by HPA, dated May 2006
DA 151 Issue C, Lot 15 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 152 Issue C, Lot 15 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 161 Issue C, Lot 16 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 162 Issue C, Lot 16 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 171 Issue D, Lot 17 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 172 Issue D, Lot 17 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006
DA 181 Issue C, Lot 18 Floor plans, elevation and section drawn by HPA, dated May 2006
DA 182 Issue C, Lot 18 Site plan, roof plan, elevations and design analysis drawn by HPA, dated May 2006

DA 201 Issue B, Boundary fences site masterplan drawn by HPA, dated May 2006
DA 202 Issue B, Boundary fences elevations drawn by HPA, dated May 2006
Overall Landscape Plan Issue K, drawn by UmbaCo Pty Ltd, dated January 2007.
DA021 Issue B, Lot 2 Floor Plans, Elevations and Section, drawn by HPA, dated September 2004, lodged 13 May 2005, subject to amended Plans Drawing Nos. 021411 SK01-06 prepared by HPA Architects dated 29 August 2005.
DA022 Issue B Lot 2 Site/Roof Plan, Elevations and Design Analysis, drawn by HPA, dated September 2004, lodged 13 May 2005, subject to amended Plans Drawing Nos. 021411 SK01-06 prepared by HPA Architects dated 29 August 2005.

2. All building works shall comply with the Building Code of Australia.

3. The submission of the approved plans to Sydney Water, before any work is commenced to ensure that the proposed structures meet that Authority's By-Laws. Failure to submit these plans before commencing work will render the owner liable to a penalty and may result in the demolition of work.

4. An approved dwelling shall not be occupied unless that dwelling has been completed in accordance with all relevant conditions of consent and the approved plans and an Occupation Certificate has been issued for that dwelling.

5. For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plans and this Consent and Construction Certificates shall be kept on site at all times.

6. For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the public road or public footpath without the written approval being obtained from the Council beforehand. The footpath shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.

7. HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 2.00pm for the period ending 18 months after the date of commencement of construction of the first dwelling and thereafter 8.00am to 12.00 noon. Sundays and Public Holidays; Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant.

Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment.

8. A sign shall be erected in a prominent position on the site which states the name and contact details of the Principal Certifying Authority.

9. The requirements and standards imposed by the Principal Certifying Authority, its consultants or contractors shall be complied with.

10. Omitted.

11. Stormwater runoff from all hard surfaces generating runoff or landscaped areas which are not at natural ground level shall be piped to the site drainage system(s) constructed under DA4S0/99.

12. A maintenance period of six (6) months shall apply to any work in the public road reserve carried out by the applicant after works have been completed to Council's satisfaction. In that period, the applicant shall be liable for any section of the work which fails to perform in the manner outlined in Council's specifications, or as would reasonably be expected under the operating conditions.

13. Where required, the adjustment of any utility service facilities must be carried out by the applicant and in accordance with the requirements of the relevant utility authority. These works shall be at no cost to Council. It is the Applicants responsibility to ascertain impacts of the proposal upon utility services and Council accepts no responsibility for any matter arising from its approval to this application involving an influence upon utility services provided by another authority.

14. All public footways and roadways fronting and adjacent to the site are to be maintained in a safe condition at all times during the course of the development works. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to the public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where circulation is diverted on to the roadway, clear directional signage and protective barricades must be installed in accordance with AS 1742-3 1996 "Traffic Control Devices for Work on Roads". If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

15. The provision of temporary sediment and erosion control facilities and measures are to be installed, prior to the commencement of any works on the site to eliminate unnecessary erosion and loss of sediment. These facilities must be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps must be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority and Council officers.

16. Driveways and access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard 2890.1 – 2004 "Off-Street car parking".

17. For the purpose of any inspections by Council engineers, the corresponding fees set out in Councils adopted Schedule of Fees and Charges are payable to Council. A re-inspection fee per visit may be charged where work is unprepared at the requested time of inspection, or where remedial work is unsatisfactory and a further inspection is required. Engineering fees must be paid in full prior to any final consent from Council.

18. The Applicant must obtain a Section 73 Compliance Certificate under the Sydney Water Act 1994. An application must be made through an authorised Water Servicing Coordinator. Please refer to "Your Business" section of Sydney Water's web site at then the "e-developer" icon or telephone 13 20 92. Following application a "Notice of Requirements" will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

19. Prior to the issue of the Occupation Certificate for the first dwelling, there shall be submission of documentary evidence to the Council that the subdivision approved under DA480/99 has been registered and that the individual lots exist.

20. A Tree Preservation Order exists within the Ku-ring-gai Council area whereby the removal, lopping or destruction of any tree exceeding 5.0 metres in height or 4.0 metres in canopy spread (except where exempt as defined under Council's Tree Preservation Order) without prior written consent of Council is prohibited.

21. Any imported top soil material for planting indigenous native or locally occurring species shall be restricted to material from the local soil landscape on which the site is located or material compatible with the plants to be planted.

22. Constructed slopes greater than 1:3 gradient shall be vegetated immediately earthworks are completed.

23. The applicant shall ensure that at all times during the construction period no activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order.

24. Tree species shall be planted, at no cost to Council, in the nature strip fronting the property along Burns and Eastern Roads in accordance with the Overall Landscape Plan Issue K, drawn by UmbaCo Pty Ltd, dated January 2007.

25. To enhance native vegetation and promote biodiversity, at least 50% of the trees and shrubs and groundcovers on the Landscape Plan shall be selected from Council's species lists for Clive Evatt and Turiban Reserves that support Blue Gum High Forest as locally occurring native species.

26. Magnolia Exmouth to be planted in the community title road shall be:

planted with structural soil
have a plant size of 400 litres
have root barriers installed along kerbs and footpaths to 800mm depth

27. All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works.

28. The canopy trees to be planted within each lot shall be maintained in a healthy and vigorous condition until they attain a height of 5.0 metres whereby they will be protected by Council's Tree Preservation Order: Any of the trees found faulty, damaged, dying or dead shall be replaced with the same species.

29. In order to retain the heritage significance of Glenwood House, the original northern veranda on the first floor of Glenwood House (now proposed as Bedroom 4) is to be reworked in a manner which restores its general elevational .detail (as seen from Eastern Road) ad suggests the open `sleep-out' or verandah which is located in this position. Any coloured solid panels or glazed windows used to provide Bedroom 4 as a habitable room shall be located behind the retained elevation as shown on Drawing Nos. 021411-SV01 to 06 prepared by HPA Architects dated 29 August 2005. Missing timber elements including balustrades and handrails are to be reconstructed to match details in the photograph illustrated on page 17 of the Heritage Impact Statement prepared by Tanner Architects

30. Construction shall comply with AS3959 – 1999 Level 3 `Construction of Buildings in Bushfire Prone Areas'. (Note: RFS recommended condition of consent).

31. Roofing to all dwellings shall be gutterless or have leafless guttering and valleys are to be screened to prevent the build up of flammable material. (Note: RFS recommended condition of consent).

32. A radiant heat shield of not less than 1.8 metres is to be provided along the western boundary of Lots 11 and 12 in lieu of where a 10 metre defendable space is not achieved due to the siting of the dwellings. (Note: RFS recommended condition of consent).

33. In the interests of ensuring appropriate setback for landscaping, and ensuring minimal impact upon the setting of Glenwood House, the swimming pool to be sited on Lot 2 shall:

be sited a minimum of 2.0 metres from the boundary, and
shall have a pool coping level no higher than 500mm above finished ground level at any point.

34. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate. Note: Required if cost of works exceed $25,000.00.

35. It is. a condition of consent that the applicant, builder or developer who does the work on this residential building project arrange the Builders Indemnity Insurance and submit the Certificate of Insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Council or other Principal Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant builder or developer to arrange the Builder's Indemnity Insurance for residential building work over the value of $12,000 and to satisfy the Council or other Principal Certifying Authority by the presentation of the necessary Certificate of Insurance so as to comply with the applicable requirements of Part 6 of the Home Building Act 1989. The requirements for the Builder's Indemnity Insurance does not apply to commercial or industrial building work or for residential work less than $12,000, nor to work undertaken by persons holding an Owner/Builder's Permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work).

36. A bond or bank guarantee of $10,000 shall be lodged by the applicant with Council prior to the release of the Construction Certificate for the first dwelling to ensure that "Council Property" is repaired if damaged as a result of construction works. "Council Property" includes footpaths, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, and similar structures on road reserves for any adjacent public place.

The Council will advise the applicant of any damage to Council Property as a result of construction works and if the Applicant has not repaired the damage within 40 days of the issue of the Occupation Certificate for the last dwelling, the Council may undertake the repair work and apply the bond or bank guarantee to cover its cost.

The Council will return. the bond or bank guarantee to the Applicant or the balance which remains if any if the Council has applied the bank guarantee or bond in accordance with. this condition within 60 days of the issue of the Occupation Certificate for the last dwelling.

37. Prior to issue of a Construction Certificate for a dwelling, the applicant shall submit, for approval by the Principal Certifying Authority (PCA), a Soil and Erosion Control Plan prepared in accordance with the NSW Department of Housing document "Managing Urban Stormwater – Soils and Construction" (1998) for that dwelling lot. A suitably qualified and experienced civil/environmental engineer or surveyor shall prepare this plan in accordance with the above guidelines and section 8.2.1 of Councils Water Management DCP 47 (available on the Council website).

38. Prior to issue of a Construction Certificate for a dwelling the applicant shall submit, for approval by the Principal Certifying Authority (PCA), full construction drawings for the proposed method of achieving Council storage volume requirements for an on-site stormwater detention/retention system for that dwelling lot . The design shall be generally based on the concept plan by Craig & Rhodes, and shall be advanced for construction issue purposes. The storage volumes and design shall comply with Councils Water Management DCP 47 (available on the Council website and at Council customer services), the manufacturers' specifications and the relevant plumbing codes. Rainwater tank(s), shall be designed to capture and retain runoff from a minimum 100m2 roof area for each 5000 litres of storage. Overflow shall revert to the main drainage system. The design and construction plans, with all supporting documentation, are to be prepared by a qualified and experienced civil/hydraulic engineer and may be incorporated on the overall site drainage plan.

39. Prior to issue of a Construction Certificate for a dwelling the applicant shall submit, for approval by the Principal Certifying Authority (PCA), construction design drawings and calculations for the property drainage system components for that dwelling lot. The property drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) shall be designed for a 23 5mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) and shall be compatible with the necessary retention and/or detention devices. Plans and calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Councils Water Management Development Control Plan 47 available on the Council website and at Council, and AS 3500.2 - Plumbing and Drainage Code.

40. A Construction Certificate for a dwelling shall not be released until a Site Management Plan for that dwelling lot is prepared by a suitably qualified professional and approved by the Principal Certifying Authority.

The plan shall indicate the planned phases of the construction work, erosion and drainage management, tree protection measures, areas nominated for storing materials, site access and where vehicle parking is proposed, during construction.

41. DELETED IN LEC APPEAL JUDGEMENT 1.2.07.

42. DELETED IN LEC APPEAL JUDGEMENT 1.2.07.

43. DELETED IN LEC APPEAL JUDGEMENT 1.2.07.

44. The applicant shall ensure that underground services (ie water, sewerage, drainage and gas) to be laid beneath the canopy of any tree protected under Council's Tree Preservation Order, located on the subject allotment and adjoining allotments shall be supervised by a qualified aborist.

A plan detailing the routes of these services shall be submitted to the Principal Certifying Authority for approval prior to the release of the Construction Certificate for the dwelling on the lot on which the relevant tree or trees are situated.

45. To preserve the following tree/s, footings of the proposed DWELLINGS, RETAINING and BOUNDARY WALLS shall be isolated pier or pier and beam construction within the specified radius of the trunk/s. The piers shall be located such that no roots of a diameter greater than 50mm shall be severed or injured in the process of any site works during the construction period. The beam/s shall be located on or above existing soil levels.

The location and details of the footings shall be submitted. to the Principal Certifying Authority for approval prior to release of the Construction Certificate:

/2 Angophora costata (Sydney Red Gum) 5 metres

Adjacent to the northern boundary of Lot 12.

21 /Eucalyptus paniculata (Grey Ironbark) 8 metres

Near the north eastern corner of Lot 13.

22/Corymbia citriodora (Lemon Scented Gum) 4 metres

Close to the Burns Road boundary of Lot 14.

23/Corymbia citriodora (Lemon Scented Gum) 4 metres

Close to the Burns Road boundary of Lot 15.

24/Corymbia citriodora (Lemon Scented Gum) 4 metres

Close to the Burns Road boundary of Lot 16.

25/Eucalyptus saligna (Sydney Blue Gum) 4 metres

Within the Burns Road nature strip and

adjacent to the rear boundary of Lot 16.

26/Eucalyptus saligna (Sydney Blue Gum) 4 metres

Abutting the Burns Road boundary of Lot 16.

27/Corymbia citriodora (Lemon Scented Gum) 4 metres

Close to the Burns Road boundary of Lot 16.

33/Eucalyptus saligna (Sydney Blue Gum)

Within the Eastern Road nature strip of Lot 16 (in accordance with condition 3c of Land &Environment Court 11556 of 2003).

46. DELETED IN LEC APPEAL JUDGEMENT 1.2.07.

47. Prior to the commencement of any construction work relating to the erection of a dwelling, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works.

48. Prior to commencing any construction work relating to the erection of a dwelling, the following provisions of the Environmental Planning & Assessment Act, 1979 (the 'Act) are to be complied with:

49. Prior to the commencement of any construction work relating to the erection of a dwelling the applicant must submit, for review by Council Engineers, a construction site layout plan for the particular dwelling lot. This is to entail a plan view of the entire site and frontage roadways indicating scale locations for:

- Dedicated construction site entrances and exits, controlled by a certified traffic controller, to safely manage pedestrians and vehicles in the frontage roadway, Turning areas within the site for construction vehicles, allowing a forward egress for all construction vehicles on the site;

- The locations of proposed Work Zones in the frontage roadways,

- A dedicated unloading and loading point within the site for all construction vehicles, plant and deliveries

- Material, plant and spoil bin storage areas within the site, where all materials are to be dropped off and collected.

The plan shall be prepared in conjunction with the Construction Traffic Management Plan prepared by Masson Wilson Twiney, dated October 2004, submitted with the Development Application.

The construction site layout plan shall be submitted to Council, attention Development Engineer. The traffic management measures contained in the approved plan shall be implemented in accordance with the above plans prior to the commencement of any works on-site relating to the erection of a dwelling.

50. To preserve the following tree/s, no work relating to the construction of a dwelling shall commence until the area beneath the canopy of the following tree/s is fenced off at the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site.

No/Tree/Location Radius in Metres
8/Eucalyptus saligna (Sydney Blue Gum) 6 metres
Adjacent to the centre rear boundary of Lot 11.
12/Eucalyptus saligna (Sydney Blue Gum) 6 metres
Within the Turiban Reserve adjacent to the
western boundary of Lot 12.
17/Eucalyptus globoidea (White Stringybark) 4 metres
Close to the western boundary and near
the north-western corner of Lot 12.
/Eucalyptus globoidea (White Stringybark) 3 metres
On the southerly slope and near the western
boundary of Lot 12.
/Eucalyptus resinifera (Red Mahogany) 4 metres
On the southerly slope and near the eastern
boundary of Lot 12
lAngophora costata (Sydney Red Gum) 4 metres
Close to the Burns Road boundary and
near the north-western corner of Lot 13.
lAngophora costata (Sydney Red Gum) 5 metres
Adjacent to the Burns Road boundary and
near the north-eastern corner of Lot 12.
42/Eucalyptus saligna (Sydney Blue Gum) 8 metres
Close to the north-western corner of Lot 17.
43/Eucalyptus saligna (Sydney Blue Gum) 8 metres
Close to the north-western corner of Lot 17.
50/Eucalyptus pilularis (Blackbutt) 5 metres
Close to the northern boundary of Lot 17.
52/Eucalyptus pilularis (BIackbutt) 5 metres
Centrally within the eastern half of Lot 17.
53/Eucalyptus resinifera (Red Mahogany) 4 metres
Close to the southern boundary of Lot 17.
55/Eucalyptus pilularis (Blackbutt) 5 metres
Towards the south-eastern corner of Lot 18.
56/Eucalyptus pilularis (Blackbutt) 5 metres
Close to the southern boundary of Lot 17.
60/Eucalyptus resinifera (Red Mahogany) 4 metres
Adjacent to the southern boundary of Lot 17.
61 /Eucalyptus saligna (Sydney Blue Gum) 3 metres
Close to the southern boundary of Lot 17.

62/Eucalyptus resinifera (Red Mahogany) 3 metres
Near the south-eastern corner of Lot 17.

65/Eucalyptus pilularis (Blackbutt) 3 metres
Close to the northern boundary of Lot 3.

/Eucalyptus saligna (Sydney Blue Gum) 3 metres
Near the north-eastern corner of Lot 3.

91/Eucalyptus saligna (Sydney Blue Gum) 6.5 metres
Close to the central western boundary of Lot 4.

92/Eucalyptus saligna (Sydney Blue Gum) 5 metres
Adjacent to the central western boundary of Lot 4.

94/Eucalyptus saligna (Sydney Blue Gum) 7 metres
Abutting the western boundary towards the
southern end of Lot 4.

95/Eucalyptus saligna (Sydney Blue Gum) 4 metres
Close to the central western boundary of Lot 4.

100/Eucalyptus saligna (Sydney Blue Gum) 4 metres
Adjacent to the southern boundary of Lot 5.

/Eucalyptus saligna (Sydney Blue Gum) 4 metres
Close to the central southern boundary of Lot 5.

/Eucalyptus saligna (Sydney Blue Gum) 5 metres
At the south-eastern corner of Lot 6.

117/Eucalyptus saligna (Sydney Blue Gum) 5 metres

Close to the central western boundary of Lot 1

in the subdivision not forming part of the community title.

119/Eucalyptus pilularis (Blackbutt) 4 metres

Towards the north-western corner of Lot 1

in the subdivision not forming part of the community title.

124/Angophora costata (Sydney Red Gum) 4 metres

Towards the south-western corner of Lot 1

in the subdivision not forming part of the community title.

/Eucalyptus pilularis (Blackbutt) 5 metres

Close to the central western boundary of Lot 8.

/Eucalyptus pilularis (Blackbutt) 4 metres

Near the western end of the southern boundary of Lot 8.

51. To preserve the following tree/s, no construction work relating to the erection of a dwelling shall commence until the area beneath the canopy of the following tree/s (excluding that area of the proposed Burns Road frontage fence and Eastern Road retaining wall) is fenced off for the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site:

No/Tree/Location Radius From Trunk
2 Angophora costata (Sydney Red Gum) 5 metres
Adjacent to the Burns Road boundary.

21/Eucalyptus paniculata (Grey Ironbark) 8 metres
Near the north eastern corner of Lot 13.

52. The tree protection fence shall be constructed of galvanised pipe at 2.4 metre spacings and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres prior to work commencing.

53. Upon completion of the installation of the required tree protection measures you are required to arrange for an inspection of the site by the Principal Certifying Authority to verify that tree protection measures comply with all relevant conditions. Following the carrying out of a satisfactory inspection and subject to the payment of all relevant monies, and compliance with any other conditions of approval, work may commence.

54. Prior to the issue of the Final Compliance Certificate, the applicant shall create a Positive Covenant and Restriction on the Use of Land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the on-site stormwater retention/ detention facilities on the property. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site retention/ detention facilities" (available from Council on request) and to the satisfaction of Council. Registered title documents showing the covenants and restrictions must be submitted and approved by the Principal Certifying Authority (PCA) prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate.

For existing Titles, the Positive Covenant and the Restriction on the use of Land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the on-site retention/ detention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms.

55. Prior to the issue of the Final Compliance Certificate, the following must be provided to Council (attention Development Engineer):

This condition is required so Council may maintain its database of as-constructed on-site stormwater detention systems, and also applies if the Principal Certifying Authority (PCA) is not the Council.

56. Prior to the issue of the Final Compliance Certificate, any damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) must be fully repaired to the satisfaction of Council Engineers at no cost to Council.

57. Prior to occupation, an easement for waste collection must be provided over Lot 1, the internal road. This is to permit legal access for Council, and Council's contractors, and their vehicles over the subject property for the purpose of collecting waste from the property. The terms of the easement are to indemnify

Council and Council's contractors against damages to private land or property whilst in the course of carrying out waste collection services. The terms of the easement are to be generally in accordance with Council's draft terms for an easement for waste collection.

58. Prior to occupation, the Section 73 Sydney Water compliance certificate must . be obtained and submitted to the Principal Certifying Authority (PCA).

59. Prior to issue of a Final Compliance Certificate for a dwelling a suitably qualified consulting civil/hydraulic engineer (as defined in Water Management Development Control Plan 47) is to provide certification for approval by the Principal Certifying Authority. The certification must make specific reference to each of the following:

That construction of the stormwater drainage systems has been carried out by a plumbing contractor licensed to do so.

All Sydney Water approvals have been obtained for the augmentation of reticulated water.

That the as-built detention and retention systems achieve the design storage volumes approved by the Principal Certifying Authority with the Construction Certificate (engineer must complete form in appendix 4 of DCP47 in relation to the on-site detention system).

The as-built drainage layout (including pits, pipes, spreaders and the like) is in accordance with the relevant stormwater management and drainage plans approved by the Principal Certifying Authority with the Construction Certificate,

That all enclosed floor areas, including habitable and basement levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices. The completed as-built drainage and stormwater management systems will achieve the full intent of the approved design plans and Council’s Water Management DCP47.

60. Prior to issue of the Final Compliance Certificate the applicant shall submit the following Works-as-Executed (WAE) drawing(s) to the Principal Certifying Authority in relation to the installed property stormwater drainage and management systems:

As built reduced surface and invert levels for all drainage pits and junctions.

As built reduced level(s) at the approved point of discharge to the public drainage system.

Gradients of drainage lines, materials and dimensions. .

As built location and internal dimensions of all detention and retention structures on the property (plan view) and horizontal distances to nearest adjacent boundaries and buildings on site

As built locations of all access pits and grates in the detention system, including dimensions.

The size of the orifice or pipe control fitted.

Dimensions of the discharge control pit and access grates.

The achieved capacity of the retention and detention storages and derivative calculation.

The maximum depth of storage over the outlet control.

Top water levels of storage areas and indicative RL's through the overland flow path in the event of blockage of the on-site detention system.

The WAE(s) is to be prepared by a registered surveyor and shall show all critical constructed levels, materials and dimensions in comparison to those shown in the relevant designs approved by the Principal Certifying Authority with the Construction Certificate. All relevant details indicated must be marked in red on the Principal Certifying Authority stamped construction certificate stormwater drawings.

61. The trees to be retained shall be inspected, monitored and treated when necessary by a qualified Arborist before, during and after completion of development works to ensure their long term survival. during the course of the development work the subject of this development consent, the Arborist forms the view that any of the listed trees is dead or dying, such tree or trees shall, with the approval of the Council if required, be replaced with a tree or trees of the same species and the replacement tree or trees shall be maintained in a healthy and vigorous condition until they attain a height of 5 metres whereby it or they will be protected by Council's Tree Preservation Order. Documentation supporting regular inspections by the Arborist shall be submitted to the Principal Certifying Authority at the following phases of work. Documentary evidence of compliance with this condition shall be submitted by the Principal Certifying Authority to Council prior to issue of the Occupation Certificate for a dwelling located on a lot on which 1 or more of the listed trees is or are located:

No/Tree/Location Phase of Inspection
8/Eucalyptus saligna (Sydney Blue Gum) At earthworks stage. Adjacent to the centre rear boundary of Lot 11.

12/Eucalyptus saligna (Sydney Blue Gum) At earthworks stage.
Within Turiban Reserve adjacent to Lot 12.

17/Eucalyptus globoidea (White Stringybark) At earthworks stage.
Close to the western boundary and near the north western corner of Lot12.

/Eucalyptus globoidea (White Stringybark) At earthworks stage.
On the southerly slope and near the western boundary of Lot 12.

21/Eucalyptus paniculata (Grey Ironbark) At earthworks stage.

Near the north eastern corner of Lot 13.

42/Eucalyptus saligna (Sydney Blue Gum) At earthworks stage.
Close to the north western corner of Lot 17.

43/Eucalyptus saligna (Sydney Blue Gum) At earthworks stage.
Close to the north western corner of Lot 17.

50/Eucalyptus pilularis (Blackbutt) At earthworks stage.
Close to the northern boundary of Lot 17.

56/Eucalyptus pilularis (Blackbutt) At earthworks stage.
Close to the southern boundary of Lot 17.

91/Eucalyptus saligna (Sydney Blue Gum) At earthworks stage.
Close to the central western boundary of Lot 4.

92/Eucalyptus saligna (Sydney Blue Gum) At earthworks stage. Adjacent to the central western boundary of Lot 4.

94/Eucalyptus saligna (Sydney Blue Gum) At earthworks stage. Abutting the western boundary towards
the southern end of Lot 4.

95/Eucalyptus saligna (Sydney Blue Gum) At earthworks stage.
Close to the central western boundary of Lot 4.

62. The following noxious and weed species shall be removed from the property prior to completion of the proposed building works. Documentary evidence of compliance with this condition shall be submitted to the Principal Certifying Authority prior to release of the Occupation Certificate for the dwelling on the relevant lot:

Plant Species
Lot 2 in the community title scheme
Acacia podalyriifolia (Queensland Silver Wattle)
Asparagus densiflorus (Asparagus Fern)
Chlorophytum comosum (Spider Plant)
Cinnamomum camphora (Camphor laurel)
Cytisus scoparius (English / Scotch Broom)
Erythrina x sykesii (Coral Tree)
Hedera helix (English Ivy)
Ligustrum lucidum (Large-leaved Privet)
Ligustrum sinense (Small-leaved Privet)
Senna pendula (Cassia)
Tecomaria capensis (Cape Honeysuckle)
Wisteria sp . (Wisteria Vine)
Lot 3 in the community title scheme
Acacia podalyriifolia (Queensland Silver Wattle)
Acer negundo (Box Elder)
Asparagus densiflorus (Asparagus Fern)
Chlorophytum comosum (Spider Plant)
Cytisus scoparius (English / Scotch Broom)
Jasminum polyanthum (Jasminum)
Ligustrum lucidum (Large-leaved Privet)
Ligustrum sinense (Small-leaved Privet)
Lonicera japonica (Honeysuckle)
Senna pendula (Cassia)
Toxicodendron succedaneum (Rhus Tree)
Wisteria sp . (Wisteria Vine)
Lot 4 in the community title scheme
Acacia podalyriifolia (Queensland Silver Wattle)
Asparagus densiflorus (Asparagus Fern)
Conyza sp (Fleabane)
Cytisus scoparius (English / Scotch Broom)
Erythrina x sykesii (Coral Tree)
Jasminum polyanthum (Jasminum)
Ligustrum lucidum (Large-leaved Privet)
Ligustrum sinense (Small-leaved Privet)
Olea europaea subsp. africana (African Olive)
Senna pendula (Cassia)
Tecomaria capensis (Cape Honeysuckle)
Tradescantia albiflora (Wandering Jew)
Lot 5 in the community title scheme
Acacia podalyriifolia (Queensland Silver Wattle)
Asparagus densiflorus (Asparagus Fern)
Bidens pilosa (Cobblers Peg)
Cinnamomum camphora (Camphor laurel)
Ligustrum lucidum (Large-leaved Privet)
Ligustrum sinense (Small-leaved Privet)
Verbena bonariensis (Purple Top)
Wisteria sp . (Wisteria Vine)

Lot 6 in the community title scheme
Asparagus densiflorus (Asparagus Fern)
Bidens pilosa (Cobblers Peg)
Cinnamomum camphora (Camphor laurel)
Erythrina x sykesii (Coral Tree)
Ipomoea indica (Morning Glory)
Ligustrum lucidum (Large-leaved Privet)
Ligustrum sinense (Small-leaved Privet) T
Tradescantia albiflora (Wandering Jew)
Lot 1 in the subdivision not part of the community title scheme
Ipomoea indica (Morning Glory)
Ligustrum lucidum (Large-leaved Privet)
Phyllostachys sp . (Rhizomatous Bamboo)
Tradescantia albiflora (Wandering Jew)
Lot 7 in the community title scheme
Bidens pilosa (Cobblers Peg)
Erythrina x sykesii (Coral Tree)
Ipomoea indica (Morning Glory)
Ligustrum lucidum (Large-leaved Privet)
Phyllostachys sp . (Rhizornatous Bamboo)
Lot 8 in the community title scheme
Conyza sp (Fleabane)
Erythrina x sykesii (Coral Tree)
Ipomoea indica (Morning Glory)
Ligustrum lucidum (Large-leaved Privet)
Ligustrum sinense (Small-leaved Privet)
Tradescantia albiflora (Wandering Jew)
Verbena bonariensis (Purple Top)

Lot 9 in the community title scheme

Anredera cordifolia

Celtis australis

Erythrina x sykesii

Ipomoea indica

Ligustrum lucidum

Ligustrum sinense

Lonicera japonica

Tradescantia albiflora

Lot 10 in the community title scheme

Bidens pilosa

Cardiospermum grandiflorum

Erythrina x sykesii

Ipomoea indica

Ligustrum lucidum

Lot 11 in the community title scheme

Asparagus densiflorus

Cardiospermum grandiflorum

Erythrina x sykesii

Ipomoea indica

Ligustrum lucidum

Ligustrum sinense

Lonicera japonica

Verbena bonariensis

Lot 12 in the community title scheme

Asparagus densorus

Cinnamomum camphora

Ipomoea indica

Lot 13 in the community title scheme

Cotoneaster sp

Cytisus scoparius

Ligustrum lucidum

Ligustrum sinense

Lot 14 in the community title scheme

Acer negundo

Acetosa sagittata

Chlorophytum comosum

Cytisus scoparius

Erythrina x sykesii

Ligustrum lucidum

Ligustrum sinense

Lonicera japonica

Liquidambar styraciflua

Lot 15 in the community title scheme

Cinnamomum camphora

Erythrina x sykesii

Ligustrum lucidum

Ligustrum sinense

Lonicera japonica

Lot 16 in the community title scheme

Acer negundo

Acetosa sagittata

Bidens pilosa

Asparagus densiflorus

Chlorophytum comosum

Cinnamomum camphora

Hedychium gardneranum

Ligustrum lucidum

Ligustrum sinense

Lonicera japonica

Ochna serrulata

Verbena bonariensis

Asparagus densiflorus

Chlorophytum comosum

Cinnamomum camphora

Erythrina x sykesii

Hedychium gardneranum

Ligustrum lucidum

Ligustrum sinense

Lonicera japonica

Nephrolepis cordifolia

Ochna serrulata

Senna pendula

Toxicodendron succedaneum

63. The following noxious and weed species shall be removed from the Eastern and Burns Road nature strips and the Water Street pathway fronting the subject site prior to completion of the proposed building works. Documentary evidence of compliance with. this condition shall be submitted to the Principal Certifying Authority prior to release of the Occupation Certificate:

Plant Species

Acacia podalyriifolia

Acer negundo

Acetosa sagittata

Asparagus densiflorus

Bidens pilosa

Chlorophytum comosum

Cinnamomum camphora

Cotoneaster sp

Ligustrum lucidum

Ligustrum sinense

Lonicera japonica

Nephrolepis cordifolia

Ochna serrulata

Olea europaea subsp. africana

Paspalum dilatatum

Pennisetum clandestinum

Phyllostachys sp

Rubus fruticosus

Senna pendula

Sida rhombifolia

Tradescantia albiflora

Wisteria sp

64. The landscape works shall be installed in accordance with the Overall Landscape Plan Issue K, drawn by UmbaCo Pty Ltd, dated January 2007 and maintained in a healthy and vigorous condition at all times in accordance with the conditions of consent. The landscape works shall be completed for each allotment prior to the occupation the dwelling on that allotment. All landscape works in the road reserve to Eastern Road, Burns Road and the community title road shall be installed prior to the occupation of any dwelling.

65. Development Consent No. 480/99 dated 16 May 2001 granted by Council shall be modified by deletion of Conditions 5 and 12.

66. Development Consent No. 1163/03 granted by Council shall be modified by deletion of Conditions1(a) and 31(d).

67. The applicant shall create a restrictive covenant pursuant to s.88E of the Conveyancing Act 1919 over all the lots shown on the landscape plan designated as bush regeneration areas or zones on the Overall Landscape Plan Issue K, drawn by UmbaCo Pty Ltd, dated January 2007 to the following effect:

“Only species consistent with Blue Gum High Forest shall be planted in areas marked bush regeneration areas or bush regeneration zones shown on the Overall Landscape Plan Issue K, drawn by UmbaCo Pty Ltd, dated January 2007.”

68. On lot 5:

the garage door will be recessed 350mm from the front façade wall;
the eaves of the upper floor shall have a minimum depth of 900mm from the outer face of the dwelling wall..

69. The conservation and restoration works on Glenwood house shall be completed to council’s satisfaction prior to the occupation of any dwelling on the community title estate.

70. The applicant shall erect a plaque informing the public as to the existence of Blue Gum High Forest species on the site and the adjoining Clive Evatt and Turiban Reserves. The plaque shall have dimensions not exceeding 297mm x 420mm (A3) and may be erected on a pedestal not exceeding 1.0 metre in height. The plaque shall be erected in the bush regeneration area fronting Eastern Road at the rear of Lot 17, Lot 18 or at the road entry to the estate. The plaque shall state that the "Sydney Blue High forest community is an endangered ecological community under the NSW Threatened Species Conservation Act 1995" and may state that the site is a bush regeneration site and that the landscaping associated with the development has been chosen to encourage the re-establishment of Sydney Blue Gum High forest communities.

___________________

J S Murrell

Commissioner of the Court

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Citations

Mirvac Projects Pty Limited v Ku-ring-gai Council [2007] NSWLEC 63

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CITATION:	Mirvac Projects Pty Limited v Ku-ring-gai Council [2007] NSWLEC 63
PARTIES:	APPLICANT Mirvac Projects Pty Limited RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	11510 of 2004
CORAM:	Murrell C
KEY ISSUES:	Appeal :- s. 96 Modification Application, Streetscape, Bluegum High Forest - Ecological Community, Bush Regeneration, s. 88 Instruments restoration of Glenwood House heritage item.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	1/02/2007
EX TEMPORE JUDGMENT DATE:	1 February 2007
LEGAL REPRESENTATIVES:	APPLICANT Mr R. Wilshire, solicitor of Coudert Brothers RESPONDENT Mr C. Leggett, SC instructed by Mrs L. Finn, solicitor of Abbott Tout