MPN Nominees Pty Limited v North Sydney Council
Case
•
[2004] NSWLEC 604
•10/29/2004
No judgment structure available for this case.
Land and Environment Court
of New South Wales
CITATION: MPN Nominees Pty Limited v North Sydney Council [2004] NSWLEC 604 PARTIES: APPLICANT:
MPN Nominees Pty Limited
RESPONDENT:
North Sydney CouncilFILE NUMBER(S): 10781 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Consent :- Trunk stormwater pipeline LEGISLATION CITED: North Sydney Local Environmental Plan 2001 (NSLEP) - Environmental Planning and Assessment Act 1979, ss 79C, 96 CASES CITED: DATES OF HEARING: 29/10/2004 EX TEMPORE
JUDGMENT DATE :10/29/2004 LEGAL REPRESENTATIVES:
APPLICANT:
Mr J Webster, barrister instructed by Mr H Snow, solicitor
SOLICITORS:
Swaab Attorneys
RESPONDENT:
Ms E Duenow, solicitor
SOLICITORS:
Mallesons Stephen Jaques
JUDGMENT:
Appeal No: 10781 of 2004
- 15
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESWatts C
29 October 2004
10781 of 2004 - MPN Nominees Pty Limited v North Sydney Council
1 This is an appeal under s 96(6) of the Environmental Planning and Assessment Act 1979, against the decision of the North Sydney Council (the council) to refuse to modify a development consent in respect of a development application to demolish the existing buildings and to construct a two apartment building comprising thirty-five (35) dwelling units with car parking for forty-seven (47) vehicles at being known as Nos 21-31 Young Street & Nos 49-51 Belgrave Street, Cremorne.JUDGMENT
2 In lieu of relocating the trunk stormwater pipeline that passes through the land the applicant now proposes to leave the pipeline in its existing position and to encase it in concrete where necessary. This modification, it is argued by the applicant would not change the capacity of the stormwater system that passes through the land. As a result of more accurately locating the trunk stormwater main, the applicant seeks to remove those deferred commencement conditions of the original consent that relate to the relocation of the stormwater main. A side issue is the deletion of a deferred commencement condition relating to landscaping plans and some other conditions.
3 I have concluded that the parties have addressed the stormwater drainage issues relating to the trunk pipeline that passes through the land and the Court may grant the consent orders that the parties have arrived at.
The land
4 The land is described as Lots A and B, DP 415930, (Nos 23 and 21 Young Street), Lots B and D, DP557817, (No 25 Young Street), Lot 30, DP, 544430, (No 27 Young Street), Lot 1, DP 87218, (No 29 Young Street), Lot 1, DP 738864, (No 31 Young Street), Lot 1, DP 850085, (No 49 Belgrave Street), Lot 1, DP 89410, (No 51 Belgrave Street).
5 The land is situated on the northeastern corner of Young and Grosvenor Streets and extends through to Belgrave Street at Neutral Bay. It also has a frontage to Belgrave Lane. It has an area of some 2094.22m2.
Relevant planning controls
North Sydney Local Environmental Plan 2001, (NSLEP)
6 The land is within the Residential zone of the NSLEP and the proposal is permissible with consent.
The modification application
7 By notice dated 19 August 2003 the council granted deferred commencement consent to Development Application No D 102/02 to demolish the existing dwelling houses and to erect two residential apartment buildings over common basement car parking. The applicant seeks to modify that development consent by deleting two of three deferred commencement conditions that address stormwater management and the other deferred commencement condition relating to landscaping.
8 The modification application, under s 96(2) of the Act, involves the following:
1. Deletion of Deferred Commencement Conditions Nos AA1, AA2 and AA3.
2. Correction of a typographical error in Condition C23, which refers to the properties to be included in the dilapidation survey. It is requested to correct the error by inserting No 35 Young Street and deleting the reference to No 53 Young Street.
3. Changes to the drawings as follows:
- Basement Level 1:
· Redesign of the access ramp from oval to circular shape;
· Access stairs relocated to the north-western corner; and
· Rearrangement of car spaces and mechanical and service facilities. (Note: This level will now accommodate 12 residents car parking and 3 visitor parking instead of 11 residents parking and 4 visitors parking.)
- Basement Level 2:
· Redesign of access ramp as above;
· Re adjustment of the lift and storage areas under Building A (drawings corrected); and
· Rearrangement of car spaces and the provision of two storerooms. (Note: This level would now accommodate 12 residents parking and 3 visitors parking instead of 11 residents parking and 5 visitors parking).
- Basement Level 3:
9 The s 96 modification application would require a change to Condition No A1, to reflect the changed plans. The application to modify the consent also involves the change in the provision of visitor parking from 9 spaces to 8 spaces but this would not change the total number of parking spaces. The proposal would now be described as follows:· Basement plan redesigned to be in line with the basements above;
· New access stairs provided;
· Rearrangement of car spaces, storage spaces and car wash bay; and
· Drawings corrected for the location of the lifts. (Note: This level would now accommodate 15 residents parking and 2 visitors parking instead of 16 residents parking).
- Demolition of existing buildings and construction of two apartment buildings to contain 35 units and parking for 47 motor vehicles including 8 for the visitors.
10 The stormwater Deferred Commencement Conditions state:
- Deed of Agreement
AA1. The applicant must enter into a Deed of Agreement with Council to Council's satisfaction in respect of the diversion of Council's trunk drainage system, which runs through the subject property. The Deed of Agreement must provide that the applicant will carry out the following works prior to the issue any occupation certificate for the development or occupation of the development:
Further, the Deed of Agreement shall establish the following:
· Council may, at its discretion, choose to augment the approved system to rectify other issues in the immediate vicinity, and Council will be liable for any additional costs for this augmentation;
· that the developer will pay a monetary bond of an amount to be determined by Council based on the approved design of the drainage system, prior to the issue of the Construction Certificate, in lieu of the construction of the drainage works.
Final Hydraulic DesignThe Deed of Agreement shall be prepared, executed and registered at the sole cost of the developer, including the cost of Council in obtaining any advice (legal, survey etc), producing documents or otherwise facilitating the preparation, execution and registration of the required documents and shall bind all successors in title.
(Reason: To ensure that adequate public infrastructure is in place to prevent local flooding).
AA2. Final hydraulic design of the required diversion of Council's drainage pipe works, as referred to in Condition AAI above, shall be prepared in consultation with Council Engineers and SHALL BE TO THE SATISFACTION OF THE director of Planning and Environmental Services.
(Reason: To ensure that the appropriate drainage system is in place).
11 Condition AA3 relates to the final landscaping plan and reads:
- AA3. Final Landscaping Plan shall be prepared incorporating appropriate tree species, shall reflect the changes made to the site plan and also incorporate screen landscaping with super advanced and evergreen trees with a minimum mature height of 5 metres, within the setback areas along the northern and eastern boundary adjacent to 35 Young Street and 58 Grosvenor Street respectively. The landscaping plan shall be prepared in consultation with Council’s Landscape Development Officer and to the satisfaction of Council’s Director of Planning and Environmental Services.
(Reason: To ensure appropriate landscaping of the site and provide privacy)
12 Condition No 23 reads as follows:
- Dilapidation Survey
C23. A photographic survey of adjoining properties No's. 58 Grosvenor Street and 53 Young Street, detailing the physical condition of those properties, both internally and externally, including such items as walls, ceilings, roof, structural members and other similar items, SHALL BE submitted to Council and the Principal Certifying Authority (where Council does not issue the Construction Certificate) prior to the issue of a Construction Certificate. This survey is to be prepared by an appropriately qualified independent person agreed to in writing by both the applicant and the owner of the adjoining property.
On completion of the excavation and building works and prior to occupation of the building, a certificate prepared by the person agreed to by the parties to the effect that no damage has resulted to adjoining premises, is to be provided to Council or the Principal Certifying Authority.
If damage is identified by the person agreed to by the parties which is considered to require rectification, the damage shall be rectified or a satisfactory agreement for rectification of the damage is to be made with the affected person/s as soon as possible and prior to occupation of the development.
All costs incurred in achieving compliance with this condition shall be borne by the person entitled to act on this Consent.
(Reason: Structural Safety).
13 The modification application was notified to nearby owners and occupants and the council received five submissions.
14 One was from the Parks Precinct raising no objection to the application, subject to the council being satisfied with the arrangements for management of stormwater.
15 One submittor stated:
- We wish to register our strong objections to the amendments. We believe the additional strain on the stormwater trunks arising from this development could at any time have a severe impact on the properties situated below the development in Young Street. The property at 41 Young Street is vulnerable as I believe the drain runs under the rear garden and flooding has been experienced in the past.
17 Another submittor considered that the council should adhere to the recommendations made by the council engineers and assessment planners. The existing stormwater infrastructure is inadequate (requiring trunk drainage to cope with 1 in 20 year storm events with overland flow capacity of up to 1 in 100 year events).
18 Another submittor considered the applicant's proposal for stormwater management to be inadequate, and
- The removal of stormwater trunk from private property to Cooper lane would make any future access or repairs much easier than the proposed situation with a five storey building and underground car parking over or near the trunk line.
19 Those who made submissions also made other comments that are not directly relevant.
The council’s decision
20 The council refused the modification application for reasons relating to stormwater.
The hearing
21 The hearing in respect of the modification application was filed on 2 July 2004.
22 After the stormwater proposal was more fully explained to her, Ms N Vincenc of Unit1/ 58 Grosvenor Street, Cremorne, said that the agreement between the parties “…sounds reasonable”. She added that she hoped that the council would undertake appropriate supervision of the works.
The issue
23 The salient issue of the modification appeal relate to the trunk stormwater pipeline passing through the land.
25 The council's assessment officer Mr Z Ahmed, Executive Assessment Planner, of North Sydney Council, considered whether the proposed development as modified would be substantially the same development as originally approved by the council and concluded that:The evidence and findings
24 Section 96(2) (other modifications) of the Environmental Planning and Assessment Act 1979 states:
2. A consent authority may on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:
a. it is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified (if at all), and
b. it has consulted the relevant Minister, public authority or approval body (within the meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence to the consent or in accordance with the general terms of an approval proposed to be granted by the approval body, and that Minister, authority or body has not, within 21 days after being consulted, objected to the modification of that consent, and
c. it has notified the application in accordance with:
i. the regulations, if the regulations so require, or
ii. a development control plan, if the consent authority is a council that has made a development control plan under section 72 that requires the modification or advertising of applications for modification of a development consent, and
d. it has considered any submissions made concerning the proposed modification within the period prescribed by the regulations or provided by the development control plan, as the case may be.
3. In determining an application for modification of a consent under this section, the consent authority has taken into consideration such of the matters referred to in section 79C(1) as are of relevance to the development the subject of the application.
- Given the circumstances of the case, the removal of the conditions in question from the development consent in their entirety is considered a fundamental departure from the original approval. This deviation from the basic premise of the approval is of such a magnitude that the proposed development if modified by the deletion of the conditions will not remain substantially the same development approved by Council. The diversion of the stormwater main and associated Council infrastructure works are considered a key element to Council having granted consent to the application.
27 The council's engineers then sought to co-ordinate the private stormwater works with the council's stormwater improvement works. The deferred commencement conditions were imposed to this end.
28 Now that the applicant has accurately located the stormwater drain within the land it seeks to modify the deferred commencement conditions. The applicant’s reasons for seeking a modification are:
a. The true position of the existing pipeline is not entirely within the subject site and part of the pipe runs through No 58 Grosvenor Street, therefore, it is now possible to review the previous decisions affecting the stormwater. (Note: This fact is revealed by plans prepared by MPN Group, received by the council 19 June 2002).
b. Basement plans have been amended (part of this s 96 modification application) to keep the site excavation away from the existing pipeline, therefore, diversion of the pipeline is no longer required;
c. Existing pipeline will remain undisturbed by the proposed building and will be encased where it is covered by new building;
d. The proposal has no effect on the existing trunk drainage system and it is unreasonable to have the system diverted at the applicant's cost;
e. The overland flow study carried out by Patterson Britton & Partners commissioned by the applicant (received by Council on 21 January 2004) established that the development has no impact on 1 in 100 years storm event flow quantities or their distribution; and
f. The study indicates that the total flow for the 1 in 100 years storm event arriving at the Grosvenor Street sag would be about 4.8m3/second (now 5.3m3/sec), which is split with 2.4m3/s in the pipe drainage system, 0.4m3/s in overland flow through the site and the remainder 2.0m3/s flowing down Cooper Lane. The proposed development would not change this distribution and would not affect present overland flow in Cooper Lane.
30 Whichever option the applicant elected, Mr Ahmed insisted that a detailed hydraulic analysis and engineering design adequately demonstrating that the existing piped system would cater for 1 in 20 years storm event with an overland flow corridor to cater for 1 in 100 years storm event would be required. The applicant prepared this.29 Mr Ahmed, in considering the modification application proposed two options for consideration by the applicant:
Option l: Provide architectural plans based on a detailed survey plan that shows the accurate location of the trunk line in question to ensure that no structure encroaches over the stormwater easements; or
Option 2: Divert the trunk line to ensure that no part of the buildings encroaches over the trunk line.
31 In the council officer's report dated 2 June 2003 it is indicated that the upgrading of the pipeline from Belgrave Street towards Willoughby Bay has been included in the council's 2003/2004 budget and the works are to be carried out in association with this development. The council has completed the design of those drainage extension works. That design indicates that the pipeline would be constructed from a new inlet junction pit in Cooper Lane and Belgrave Street intersection (now commencing at Grosvenor Street) to a new junction pit in Grasmere Lane via Cooper Lane and connected to the existing trunk drainage pipeline that runs through Grasmere Children's Park to Willoughby Bay. This would effectively improve the flooding problem currently being experienced by the downstream properties.
32 The council's design was based on the diversion of the existing trunk drainage line into Cooper Lane. The council’s extension works would be carried out when the applicant commenced the drainage works in Cooper Lane.
33 The parties have agreed that an easement be created over the existing trunk pipeline on the subject land and a restriction as to the user would be required under s 88B of the Conveyancing Act 1919 to ensure access for maintenance of the trunk pipeline.
34 The council engineers now agree to the deletion of the Deferred Commencement Conditions AA1 and AA2 provided that additional conditions requiring the applicant to carry out a detailed hydraulic analysis of the stormwater system from the inlet pit in Grosvenor Street to the pit in Belgrave Street, including all stormwater flows, both underground and overland, by roads, depression etc., and design the system to cater for the 5% Annual Exceedence Probability (i.e., 1 in 20 years) storm event for the piped system and 1% Annual Exceedence Probability (i.e., 1 in 100 years) storm event for either the piped system or a combination of piped plus overland flow.
36 Applying those principles to the present case; here we have a private property through which North Sydney Council’s trunk stormwater pipeline passes. The parties have reached agreement that broadly addresses the above principles. The developer in this case is not proposing to restrict the flow of upstream stormwater within that pipeline and in fact has agreed to augment it by providing an additional pipe. In this case the proportion of the site covered by hard surfaces would be less than existing and the parties agreed that the development would not increase the runoff of stormwater falling on the land and there would be no need to detain stormwater falling on the land. The trunk stormwater pipeline that passes through the land, was originally proposed to be diverted, however; more accurate survey information and minor changes to the plan make a diversion unnecessary. The applicant in this case is providing for overland flows in accordance with the requirements of the council.Planning principles
35 Several planning principles are to be considered when assessing stormwater issues. They are:
· The owner of a property through which a local authority’s trunk stormwater pipeline passes shall not decrease the flow of stormwater within that pipeline.
· Where a development increases stormwater runoff, the property’s stormwater system shall detain the increased runoff on site, so that stormwater flows downstream are not increased and are equal to or less than the stormwater flows from the land in its natural state.
· If diversion of a trunk stormwater pipeline passing through private land is necessary, the hydraulic capacity of that pipline shall not be reduced by that diversion, and the developer of that land shall be required to pay for that diversion.
· If the existing trunk stormwater pipeline passing through private land is inadequate to meet existing upstream stormwater, augmentation costs are not the developer’s responsibility.
· Where there is no easement or s 88B instrument under the Conveyancing Act 1919 over a trunk stormwater pipeline, and a local authority requires its creation, that local authority should meet the costs of its creation.
· Where an overland stormwater flow path passes through private property the owner of that property shall not obstruct that flow path.
· Where an overland stormwater flow path is to be changed through development, that overland flow shall not be restricted in width or depth. Any change to the overland flow path shall be at the cost of the developer.
37 It is also noted that under s 94 of the Roads Act 1912, the local authority has a right, despite there being no stormwater easement through that property, to enter that property and to maintain a trunk stormwater pipeline. However, by Condition G8, the applicant has agreed to pay the cost of creating an easement over the trunk stormwater pipeline passing through the land and the cost of preparing a s 88B instrument under the Conveyancing Act 1919.
38 The landscaping referred to in Deferred Commencement Condition AA3 is now conditioned by reference to the landscaping plans prepared by Ms Sonter.
39 The agreement between the parties is expressed in the following terms:
- The Deferred Commencement Consent granted by North Sydney Council on 11 August 2003 to Development Application 102/02/2 is modified as follows:
b. Condition No A1 is deleted and the following substituted:
- Development in Accordance with Plans
A1. The development being carried out in accordance with drawings numbered DA01E, DA02E, DA03E, DA04E, DA05E, DA06E, DA10E, DA11E and DA12E, dated July 2002, drawn by David Emerson Architects Pty Limited, and received by Council on 1 July 2003, and endorsed with Council’s approval stamp as modified by plans numbered DA07F, DA08F, and DA09F all dated July 2002, drawn by David Emerson Architects Pty Limited, and received by Council on 3 November 2003 and by sketch numbered SK206 dated 16.08.2004, except as amended by the following conditions.
- (Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council, Public Information).
(c) The following conditions are inserted after Condition C36:
Protection of existing drainage pipeline
C37 An engineering design including the design of proposed concrete encasement of the existing trunk drainage pipeline that runs below the proposed building shall be prepared and submitted with the application for Construction Certificate to ensure that no loads whatsoever from the building over the existing pipeline are transferred onto the pipeline that would be below the building structure. This includes the driveway ramp, which will need to be designed and constructed as a suspended slab over the pipe. The development must then be constructed in accordance with that approved design .
(Reason: To ensure that the existing drainage pipeline is appropriately protected.)
Drainage
C38 Final design of a suitable drainage system for stormwater overflow running from Grosvenor Street to Belgrave Street and incorporating:
- a 375 millimetre pipe running through the site;
an inlet capacity to cater for the 375 mm pipe using either:
(b) a 600 mm x 600 mm grated pit with 0.3 m ponding;
- plans showing the above;
shall be prepared in consultation with the Council’s Engineers and shall be to the satisfaction of the Director, Planning and Development Services and submitted with the application for Construction Certificate. The drainage system must then be constructed in accordance with that approved design.
(Reason: to ensure that the appropriate drainage system is in place.)
Landscaping
C39 The landscaping plan No. LPC.01/C dated 30 July 2003 drawn by Narelle Sonter of Botanica received by Council on 1 August 2003 shall be amended to the satisfaction of the Director, Planning and Development Services and submitted with the application for Construction Certificate showing the following:
2. redesign the pavements and water features to be located away from the proposed stormwater overflow pipe referred to in Condition C38;
3. replace the existing olive trees growing in the verge area of Young Street with Banksia serrata instead of Tristainiopsis laurina as shown on the plan; and
4. show the existing trees on the site to be retained and the trees to be removed with accurate description in both botanical and accepted common names.
- The site must then be landscaped in accordance with the approved modified landscape plan prior to the release of any occupation certificate for any part of the development.
(Reason: To ensure appropriate landscaping of the site.)
- Creation of Easement and Covenants
G8 An easement shall be created along the full length of the drainage line as shown on sketch numbered SK206 dated 16.08.2004 a minimum of 2.5m wide, pursuant to the provisions of Section 88B of the Conveyancing Act 1919 benefiting Council for the purpose of drainage water together with the right for North Sydney Council and any person authorised by it with any tools, implements or machinery necessary for the purpose to enter into the property for inspecting, cleaning, maintaining or the like of the drainage pipeline.
- North Sydney Council shall be nominated in the instrument as the only party authorised to release, vary or modify the instrument, and North Sydney Council’s Official Seal shall be affixed to these documents, prior to the submission to the Land and Property Information Office. Evidence of the lodgment of the instrument referred to in this condition is to be provided to Council prior to the issue of the Occupation Certificate.
All costs involved in establishing this easement, including a survey and legal costs, shall be borne by the applicant.
- (Reason: To ensure Council’s rights and appropriate drainage system are in place and to ensure owners, or intending owners are aware of the restrictions on the drainage easement.)
G9 A Covenant pursuant to the provisions of Section 88B of the Conveyancing Act 1919 shall be placed on the title of the property, indicating that:
· no barrier is to be placed within the drainage pipeline that may create a blockage of the water flow;
· except as set out in Condition C37.
- North Sydney Council shall be nominated in the instrument as the only party authorised to release, vary or modify the instrument and North Sydney Council’s Official Seal shall be affixed to these documents, prior to the submission to the Land and Property Information Office. Evidence of the lodgment of the instrument referred to in this condition is to be provided to Council prior to the issue of the Occupation Certificate.
All costs involved in establishing this covenant, including survey and legal costs, shall be borne by the applicant.
- (Reason: To ensure owners, or intending owners of the subject property are aware of the restrictions placed on the title for the maintenance of the overland flow path.)
- Inspection of Pipeline
H3 Upon completion of works and prior to occupation of the development, the applicant shall conduct and provide Council with a CCTV inspection report of the existing 900mm trunk drain and of the Council’s storm water overflow pipeline referred to in Condition C38. The applicant, at its own cost, shall repair any movements or damage to the existing 900mm trunk drain pipe that was caused during construction, to the reasonable satisfaction of the Director, Planning & Development Services of North Sydney Council.
- (Reason: To ensure the public infrastructure is protected).
Conditions
41 The amended conditions are those set out in para 39 above and re-engrossed.
Costs
42 I note the agreement of the parties that each party is to pay its own costs.
Consent orders
43 The orders by consent are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.2. The modification of the development consent No D 102/02 in respect of a development application to demolish the existing buildings and to construct a two apartment building comprising thirty-five (35) dwelling units with car parking for forty-seven (47) vehicles at Lots A and B, DP 415930, (Nos 23 and 21 Young Street); Lots B and D, DP557817, (No 25 Young Street); Lot 30, DP 544430, (No 27 Young Street); Lot 1, DP 87218, (No 29 Young Street); Lot 1, DP 738864, (No 31 Young Street); Lot 1, DP 850085, (No 49 Belgrave Street); Lot 1, DP 89410, (No 51 Belgrave Street); being known collectively as Nos 21-31 Young Street & Nos 49-51 Belgrave Street, Cremorne, is approved subject to Conditions A1 to K4 in Annexure A.
3. The exhibits are retained.
S J Watts
Commissioner of the Court
swConditions of development consent
Annexure A
MPN Nominees Pty Limited v North Sydney Council
ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979
Notice to Applicant of Determination of a Development ApplicationA. Conditions that Identify Approved PlansPursuant to Section 80(3) of the Act, notice is given that Development Application No. 102/02 proposing demolition of existing buildings and construction of two apartment buildings to contain 35 units and parking for 47 motor vehicles including 8 for the visitors on land described as Nos 21-31 Young Street & 49-51 Belgrave Street, Cremorne has been determined by granting of consent subject to the conditions below. The reason for the imposition of the conditions is to protect the existing and future amenity of the neighbourhood.
AA. Deferred Commencement Conditions
Deed of Agreement
AA1. Deleted.
Final Hydraulic Design
AA2. Deleted.
Final Landscaping Plan
AA3. Deleted.
Development in Accordance with Plans
A1. The development being carried out in accordance with drawings numbered DA01E, DA02E, DA03E, DA04E, DA05E, DA06E, DA10E, DA11E and DA12E, dated July 2002, drawn by David Emerson Architects Pty Limited, and received by Council on 1 July 2003, and endorsed with Council’s approval stamp as modified by plans numbered DA07F, DA08F, and DA09F all dated July 2002, drawn by David Emerson Architects Pty Limited, and received by Council on 3 November 2003 and by sketch numbered SK206 dated 16.08.2004, except as amended by the following conditions.
- (Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council, Public Information)
A2. A copy of all approved certified plans, specifications and documents incorporating conditions of approval certification shall be kept on site at all times so as to be readily available for perusal by any officer of Council or the Principal Certifying Authority.
- (Reason: To ensure compliance with approved plans)
Adaptable Housing
C1. A unit within the development is to be designed as an adaptable dwelling in accordance with the provisions of AS1428. Details are to be provided with the Construction Certificate.
- (Reason: Compliance with DCP 2002, access and housing for people with disabilities)
C2. The access driveway off Cooper Lane shall be designed in accordance with Standards Australia (AS 2890.1 – 1993).
- (Reason: To facilitate efficient vehicle manoeuvring)
C3. All redundant lay-backs and vehicular crossings shall be reinstated to conventional kerb and gutter, foot-paving or grassed verge as appropriate. Details of the location of relevant crossings and laybacks shall be shown on documentation supporting any application for Construction Certificate. All costs shall be borne by the applicant, and works shall be completed prior to the issue of the required compliance certificate.
- (Reason: To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic, and the preservation of on street parking spaces)
C4. The applicant shall reconstruct/construct the carriageway shoulder (600mm wide strip adjacent to all new gutter works), layback, full frontage kerb/gutter (except for the location of the pram-ramp), grass verge, footpath pavement and transition works. The works shall be designed and constructed in compliance with the following:
- a) All elements of the works within the road reserve shall be constructed in accordance with Council’s current documents Infrastructure Specification and Vehicular Access Application Guidelines and Specification.
b) All redundant laybacks shall be reinstated as kerb and gutter.
c) The proposed kerb gutter alignment shall be raised on a parallel alignment to the existing gutter to ensure that the cross-fall grade of the carriageway shoulder is 5.5% for a distance of 600mm, falling to the gutter, starting from the surface of the existing carriageway 1050mm from the existing face of kerb.
d) The footpath pavement and grass verge shall be placed on a single straight grade of 3.0% falling to the top of kerb. The footpath pavement shall match the existing footpath in width and shall be placed adjacent to the front boundary of the property.
- e) Footpath pavement transition works are required to ensure gentle changes in grade, drainage and no ‘trip’ hazards between the existing and proposed pavement. These works have been assessed as 1500mm in length or one pavement panel, whichever is the greatest.
- i) Upstream of the proposed layback, the kerb/gutter shall be reconstructed for a length of 1000mm or to a point where a longitudinal gutter grade of 1.0% can be achieved or to en existing joint, whichever is the greatest.
ii) Downstream of the existing layback, the kerb/gutter shall be reconstructed for a length of 1000mm or to an existing joint, whichever is the greatest.
- (Reason: To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic)
C5. The applicant shall reconstruct/construct the full carriageway width and full length of Cooper Lane, layback, full length of kerb/gutter in Cooper Lane (except for the location of the layback), crossing, footpath pavement and transition works. The works shall be designed and constructed in compliance with the following:
- a) All elements of the works within the road reserve shall be constructed in accordance with Council’s current documents Infrastructure Specification and Vehicular Access Application Guidelines and Specification.
b) All redundant laybacks shall be reinstated as kerb and gutter.
c) The proposed kerb gutter and layback gutter alignment shall be raised on a parallel alignment to the existing gutter to ensure that the cross-fall grade of the carriageway shoulder is 5.5% for a distance of 600mm, falling to the gutter, starting from the surface of the existing carriageway 1050mm from the existing face of kerb.
d) The footpath pavement shall be placed on a single straight grade of 3.0% falling to the top of kerb. The footpath pavement shall be full in width and placed adjacent to the front boundary of the property.
e) Footpath pavement transition works are required to ensure gentle changes in grade, drainage and no ‘trip’ hazards between the existing and proposed pavement. These works have been assessed as 1500mm in length or one pavement panel, whichever is the greatest.
f) Kerb/gutter transition works are required to ensure gentle changes in grade and longitudinal drainage between the existing and proposed kerb and gutter. These works have been assessed as:
- i) Upstream of the proposed layback, the kerb/gutter shall be reconstructed for a length of 1000mm or to a point where a longitudinal gutter grade of 1.0% can be achieved or to en existing joint, whichever is the greatest.
ii) Downstream of the existing layback, the kerb/gutter shall be reconstructed for a length of 1000mm or to an existing joint, whichever is the greatest.
C6. The applicant shall reconstruct/construct the carriageway shoulder (600mm wide strip adjacent to all new gutter works), full frontage kerb/gutter, grass verge, footpath pavement and transition works. The works shall be designed and constructed in compliance with the following:
- a) All elements of the works within the road reserve shall be constructed in accordance with Council’s current documents Infrastructure Specification and Vehicular Access Application Guidelines and Specification.
- c) The proposed kerb gutter and layback gutter alignment shall be raised on a parallel alignment to the existing gutter to ensure that the cross-fall grade of the carriageway shoulder is 5.5% for a distance of 600mm, falling to the gutter, starting from the surface of the existing carriageway 1050mm from the existing face of kerb.
d) The footpath pavement and grass verge shall be placed on a single straight grade of 3.0% falling to the top of kerb. The footpath pavement shall match the existing footpath and shall be placed adjacent to the front boundary of the property.
e) Footpath pavement transition works are required to ensure gentle changes in grade, drainage and no ‘trip’ hazards between the existing and proposed pavement. These works have been assessed as 1500mm in length or one pavement panel, whichever is the greatest.
f) Kerb/gutter transition works are required to ensure gentle changes in grade and longitudinal drainage between the existing and proposed kerb and gutter. These works have been assessed as:
- i) Upstream of the proposed layback, the kerb/gutter shall be reconstructed for a length of 1000mm or to a point where a longitudinal gutter grade of 1.0% can be achieved or to en existing joint, whichever is the greatest.
ii) Downstream of the existing layback, the kerb/gutter shall be reconstructed for a length of 1000mm or to an existing joint, whichever is the greatest.
C7. Plans indicating all engineering details relevant to the site regarding the collection and disposal of stormwater from the site, buildings, and adjacent catchments shall be submitted for approval with the Construction Certificate. The plans shall be in accordance to details agreed on the meeting held in Council on 22 November 2002, between the applicant and Council’s engineering staff. Stormwater shall be conveyed by gravity (not a charged system) from the site to the nearest Council stormwater drainage system unless otherwise specified by Council.
- That part of the stormwater drainage system that is to be reconstructed/constructed shall be designed and constructed in compliance with the following:
b) The applicant shall engage a specialist Hydraulics Engineer to carry out an evaluation of Council’s stormwater drainage system and the effect of the proposed development on this system. The results of this evaluation shall be submitted with all other drainage details to Council.
c) Video inspection must be carried out of completed drainage works that are to revert to council and a videotape forwarded to council’s development engineer to support the certification. Bonds held by Council will be returned after receipt of satisfactory information.
d) All civil and drainage works within the road reserve and Council’s stormwater drainage easement shall be designed and built in accordance with Council’s current “Infrastructure Specification”.
e) The internal stormwater drainage system shall be designed for an average recurrence interval (A.R.I.) of 1 in 20 years.
f) All redundant stormwater pipelines within the footpath area shall be removed and the footpath and kerb reinstated.
g) All plumbing within the site shall be carried out in accordance with AS/NZ3500.3.2 1998, National Plumbing and Drainage Code.
h) Subsoil drains are to be provided on the upstream side of any pit or retaining wall.
i) Seepage/subsoil water shall be drained to Council’s street stormwater gully pit via a suitable silt arrester pit.
j) The use of pump system will be permitted for drainage of basement areas only (if necessary).
k) Appropriate drainage easement/s with covenants or agreement/s shall be created where required. The easement or registrable agreement shall be created under Sections 88B and/or 88K of the Conveyancing Act 1919 prior to final inspection for release of the Compliance Certificate or prior to release of the linen plan/s of strata subdivision.
- (Reason: Local flooding, safety and amenity)
C8. The foundations for building structures and walls adjacent to the drainage easement are to be constructed in such manner that does not affect stormwater drainage lines.
- (Reason: To allow maintenance without affecting the building and to ensure there is no damage to public assets)
C9. A 1200mm wide concrete footpath shall be constructed within the setback area to the fence along Cooper Lane boundary line and a garbage/Removalist Truck Bay shall be created along the driveway entry point to the site as shown on drawing No. DA01E and DA02E dated July 2002, drawn by David Emerson Architects and received by Council on 1 July 2003. Details shall be submitted with the application for Construction Certificate.
- (Reason: Pedestrian safety and amenity)
C10. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Co-ordinator, for details see the Sydney Water web site customer\urban\index, or telephone 13 20 92.
- Following application, a ‘Notice of Requirements’ will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Co-ordinator since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.
The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the linen plan/occupation of the development.
(Reason: Statutory)
C11. The applicant shall bear the cost of all restoration works to Council’s property damaged during the course of this development. The applicant shall advise Council, in writing, of any existing damage to Council property before commencement of the development. A dilapidation survey of Council’s assets, including photographs and written record, must be prepared by a suitably qualified person and submitted to Council prior to the submission of an application for Construction Certificate.
- Note: This documentation will be used to resolve any dispute over damage to infrastructure. It is in the applicant’s interest for it to be as full and detailed as possible.
Drainage Bond
C12. A Bond of $ 160,000 shall be deposited with Council, prior to the issue of any application for construction certificate, against the construction of drainage works that revert to Council’s care and control.
- (Reason: Statutory)
C13. Where any shoring is to be located on or is supporting Council’s property, engineering drawings certified by an Accredited Certifier showing all details, including the extent of encroachment and the method of removal, shall be submitted with the Construction Certificate. Where private certification is being utilised for the issue of the Construction Certificate, a copy of this documentation will be provided to the Council for record purposes.
(Reason: Protection of existing public infrastructure)
Garbage Bay
C14. A garbage bay shall be provided for the storage of garbage bins, or approved containers and household rubbish.
- (a) All internal surfaces of the bay shall be rendered to a smooth surface, coved at the intersection with walls and floor, graded and drained with a water tap in close proximity to facilitate cleaning.
(b) The bay shall be adequately screened from the street, with the entrance to the enclosures no more than 2 metres from the boundary of the property.
Details are to be provided with the Construction Certificate.
Recycling Facilities
C15. Garbage bay facilities, including provision for the separation and storage in appropriate categories of material suitable for recycling, shall be provided within the subject premises in accordance with Council’s Garbage Code. Details are to be provided with the Construction Certificate.
- Note: The applicant may wish to discuss bin storage requirements and location with Council prior to finalisation of the required detail.
Overland Flow
C16. Where overland flow occurs to the site, a formal drainage system designed to conform with Council’s Stormwater Management Policy, including the creation of appropriate drainage reservations and/or easements where necessary, shall be constructed. Engineering details prepared to appropriate Australian Standards and Council Policy shall be certified by an Accredited Certifier and provided with the application for a Construction Certificate.
- Where adjacent properties are affected by the overland flow of stormwater, drainage formalisation, including the provision of appropriate drainage easements, shall be extended to include those properties to the satisfaction of the adjacent owners.
Sediment Control
C17. Where construction or excavation activity requires the disturbance of the soil surface and existing vegetation, details, including plans and specifications, shall be submitted to Council accompanying the Construction Certificate which provide adequate measures for erosion and sediment control. As a minimum, control techniques are to be in accordance with North Sydney Council Guidelines on Erosion and Sediment Control, or a suitable, alternative method. The Control Plan shall incorporate and disclose:
- (a) All details of drainage to protect and drain the site during the construction processes;
(b) All sediment control devices, barriers and the like;
(c) Sedimentation tanks, ponds or the like;
(d) Covering materials and methods;
(e) A schedule and programme of the sequence of the sediment and erosion control works or devices to be installed and maintained.
(Reason: Protection of the Environment)
C18. The applicant shall design the vehicular accessway in compliance with the following:
- (a) The vehicular accessway shall be designed to comply with AS 2890.1 1993 to ensure that a B85 vehicle will not scrape/strike the surface of the carriageway, layback, vehicular crossing or garage floor.
(b) The width of the vehicular layback shall be 6.0 metres (including the wings).
- (c) The crossing (between the layback and the property boundary) shall be placed on a single straight grade of approximately 4.5%, falling to the back of the layback.
(d) An Accredited Certifier shall provide to the Principal Certifying Authority a certificate that, where required, the architectural design drawing has been amended to comply with the Consent. A photocopy of the aforementioned certificate shall be presented with the Construction Certificate.
(Reason: To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic)
C19. A Bond of $ 33,000 shall be deposited with Council against the construction of kerb and gutter and footpath paving works prior to the issue of a Construction Certificate. (See schedule).
- (Reason: Safety and Statutory)
C20. A Construction Management Program shall be prepared and submitted with the application for a Construction Certificate. The program shall detail:
- (a) The proposed method of access to and egress from the site for construction vehicle, including access routes through the Council area and the location and type of temporary vehicular crossing for the purpose of minimising traffic congestion and noise in the area;
(b) The proposed method of loading and unloading excavation and construction machinery, excavation and building materials, formwork and the erection of any part of the structure within the site. Wherever possible mobile cranes should be located wholly within the site;
(c) The proposed areas within the site to be used for the storage of excavated materials, construction materials and waste containers during the construction period;
(d) The proposed method/device to remove loose material from all vehicles and/or machinery before entering the road reserve, any run-off from the washing down of vehicles shall be directed to the sediment control system within the site;
(e) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be designed by an appropriately qualified engineer;
(g) The location and operation of any on site crane.
- (Reason: Maintenance of Environmental Amenity)
C21. The applicant shall apply for a vehicle crossing permit and this shall incorporate Council’s required and specified levels. The applicant shall construct (reconstruct) full-width concrete vehicular crossings to all entrances and exits in accordance with Council’s standard plans and specifications. Construction shall include all service adjustments and shall have regard of adjacent footpaths and kerb and gutter. Such is to be certified by an Accredited Certifier to the appropriate Australian Standard.
- A Bond of $2,500 shall be deposited with Council against the construction/ reconstruction of the vehicular crossing prior to the issue of a construction certificate.
- (Reason: To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic)
C22. The following details must be submitted with the application for Construction Certificate:
- (i) Longitudinal section along the extremities and centre-line of each driveway/access ramp at a scale of 1:50.
(ii) Sections to be taken from the centre-line of the roadway through to the parking area itself and shall include all changes of grade both existing and proposed.
(iii) The sections shall show all relevant levels and grades (both existing and proposed) including those levels stipulated as boundary levels.
(iv) The sections shall show the calculated clearance to the underside of any overhead structure.
(v) A longitudinal section along the gutter line showing how it is intended to blend the vehicular crossing into the existing kerb and gutter.
(vi) All details of internal ramps between parking levels.
All details are to be certified by an Accredited Certifier as complying with Australian Standard AS 2890, Parking Facilities and Council’s standard specifications.
(Reason: To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic)
C23. A photographic survey of adjoining properties Nos. 58 Grosvenor Street and 53 Young Street, detailing the physical condition of those properties, both internally and externally, including such items as walls, ceilings, roof, structural members and other similar items, SHALL BE submitted to Council and the Principal Certifying Authority (where Council does not issue the Construction Certificate) prior to the issue of a Construction Certificate. This survey is to be prepared by an appropriately qualified independent person agreed to in writing by both the applicant and the owner of the adjoining property.
- On completion of the excavation and building works and prior to occupation of the building, a certificate prepared by the person agreed to by the parties to the effect that no damage has resulted to adjoining premises, is to be provided to Council or the Principal Certifying Authority.
If damage is identified by the person agreed to by the parties which is considered to require rectification, the damage shall be rectified or a satisfactory agreement for rectification of the damage is to be made with the affected person/s as soon as possible and prior to occupation of the development.
All costs incurred in achieving compliance with this condition shall be borne by the person entitled to act on this Consent.
Damage to Adjoining Properties
C24. All precautions must be taken to prevent any damage likely to be sustained to adjoining properties. Adjoining owner property rights must be observed at all times. Where damage occurs to adjoining property all necessary repair or suitable agreement for necessary repairs are to be undertaken by the applicant in consultation with and with the consent of the affected property owner prior to the occupation of the development or issue of a building certificate.
- (Reason: Structural Safety)
C25. A survey of the existing building fabric shall be undertaken identifying the presence or otherwise of asbestos contamination. Any works subsequently required to address asbestos contamination shall be undertaken in strict accordance with the requirements of the WorkCover Authority in relation to the removal, handling and disposal of material containing asbestos and the Work Safe Australia Asbestos Code of Practice and detailed in the Construction Certificate.
- (Reason: Health and Safety)
C26. Car-parking spaces for disabled persons shall be provided as part of the total car-parking requirements. Consideration must be given to the means of access from the car-parking spaces to adjacent buildings, to other areas with the building and to footpath and roads and shall be clearly shown on the plans submitted with the Construction Certificate. All details shall be prepared in consideration of, and construction completed in accordance with Australian Standard AS2890.1 to achieve compliance with the Disability Discrimination Act 1995 .
(Reason: Safety and convenience)
Pruning
C27. Any tree pruning necessary for construction shall be carried out under the supervision of an appropriately qualified horticulturalist. Appropriate certification indicating the nature of the pruning and the long term effects on the tree shall be submitted to Council or the Principal Certifying Authority upon completion of the pruning works.
(Reason: Protection of environment)
S94 Contributions
C28. A contribution pursuant to the provisions of Section 94 of the Environmental Planning and Assessment Act 1979 , as specified under the North Sydney Section 94 Contribution Plan adopted on the 19 July 1999 for the services and amounts detailed shall be made to Council.
| A | $B |
| Administration | 3,190.80 |
| Child Care | 8,604.80 |
| Community Centres | 1,808.88 |
| Library Acquisitions | 2,471.88 |
| Library Extensions, Fixtures etc | 407.16 |
| Library Extension (2002) | 5,570.91 |
| Multi Use Indoor Sports | 1,608.56 |
| Open Space Acquisitions | 223,435.74 |
| Open Space Embellishment | 64,035.59 |
| Olympic Pool | 3,044.62 |
| Streetscape Improvements | 3,502.15 |
| Traffic & Transport Improvements | 7,952.16 |
| The total contribution is | $325,633.25 |
- The contribution SHALL BE paid prior to determination of the application for Construction Certificate.
The above amount, if not paid within one calendar year of the date of this consent, shall be adjusted for inflation by reference to the Consumer Price (All Ordinaries) Index applicable at the time of the payment of the contribution. In addition, GST will be levied, at the applicable rate at the time of payment, from 1 July 2000.
(Reason: To retain a level of service for the existing population and to provide the same level of service to the population resulting from new development)
C29. A Security Bond of $ 8,000 for protection of trees in public places shall be deposited with Council prior to the issue of a Construction Certificate. (See schedule below).
- If any tree is removed or damaged Council shall deduct from this Bond the reasonable cost of replacement with a tree of the same species and to the same stage of growth it would have attained at the completion of the work.
In the case of any tree, which cannot be replaced with a similar specimen, the Security Bond for that tree will be forfeited to Council.
SCHEDULE
· Water Gum growing in the verge area of Belgrave Street.
- (Reason: Protection of existing environment public infrastructure)
C30. A Security Bond of $ 10,000 for protection of trees within the subject property shall be deposited with Council prior to the issue of a Construction Certificate. (See schedule below).
- If any tree is removed or damaged Council shall deduct from this Bond the reasonable cost of replacement with a tree of the same species and to the same stage of growth it would have attained at the completion of the work.
In the case of any tree, which cannot be replaced with a similar specimen, the Security Bond for that tree will be forfeited to Council.
SCHEDULE
· Jacaranda at 21 Young Street.
- (Reason: Compliance with Tree Preservation Order, Significant Tree Register, Protection of Environment)
C31. All fees and security bonds in accordance with the schedule below must be paid or in place prior to the lodgement of any application for the required Construction Certificate:
| SECURITY BOND & FEE SCHEDULE 21-31 YOUNG STREET & 49-51 BELGRAVE STREET, CREMORNE DEVELOPMENT APPLICATION NO. 102/02 |
| SECURITY BONDSAMOUNT $ |
| Vehicular Crossing Bond Drainage Bond Footpath Damage Bond Tree Protection Bond (Street trees) Tree Damage Bond (Within site) · Mature Eucalyptus tree ($7,000) · Jacaranda tree ($3,000)2,500.00 160,000.00 33,000.00 8,000.00 10,000.00 |
| TOTAL BONDS$213,500.00 |
| FEES |
| Section 94 contribution325,633.25 |
| TOTAL FEES $325,633.25 (Reason: Compliance with the development consent) |
C32. Council will accept a bank guarantee for the purpose of any security bond imposed by these conditions of consent. Such bank guarantee shall be in a form acceptable to the Council and shall be in place prior to the commencement of works and shall remain in place until the submission of the compliance certificate required prior to the occupancy of the completed works.
- NOTE : A summary of all security bonds, contributions and fees are appended at the end of this consent.
(Reason: Information, Protection of infrastructure and the environment)
C33. That provision be made for cigarette butt receptacles on the site to minimise littering. Details of the size and the location of the receptacle are to be provided in the Construction Certificate.
- (Reason: Environment Protection)
C34. The reflectivity index (expressed as a percentum of the reflected light falling upon any surface) of external finishes, including painted surfaces, glazing, walls or roof treatment of the proposed development is to be no greater than 20%. Written confirmation of the reflectivity is to be submitted with the construction certificate.
(Reason: Amenity)
Undergrounding of Electricity and Other Services
C35. All electricity and other lines (existing and proposed) shall be under grounded from the appropriate power pole/s or other connection point on the western side of Young Street to the proposed building on the site in accordance with the requirements of Energy Australia. Any redundant poles on the eastern side of Young Street are to be removed. Details are to be submitted with the application for Construction Certificate.
- (Reason: Streetscape)
C36. Any power substation required by the proposed development shall be installed entirely within the subject site without affecting the provision of landscaped area required by the North Sydney Local Environmental Plan 2001 . The lines from the sub-station shall be undergrounded to the nearest power poles on the western side of Young Street or the southern side of Grosvenor Street. The applicant shall liaise with Energy Australia in this matter and details shall be provided with the application for Construction Certificate.
- (Reason: To ensure the streetscape amenity is not adversely affected)
C37 An engineering design including the design of proposed concrete encasement of the existing trunk drainage pipeline that runs below the proposed building shall be prepared and submitted with the application for Construction Certificate to ensure that no loads whatsoever from the building over the existing pipeline are transferred onto the pipeline that would be below the building structure. This includes the driveway ramp, which will need to be designed and constructed as a suspended slab over the pipe. The development must then be constructed in accordance with that approved design .
- (Reason: To ensure that the existing drainage pipeline is appropriately protected.)
C38 Final design of a suitable drainage system for stormwater overflow running from Grosvenor Street to Belgrave Street and incorporating:
- a 375 millimetre pipe running through the site;
an inlet capacity to cater for the 375 mm pipe using either:
(d) a 600 mm x 600 mm grated pit with 0.3 m ponding;
- plans showing the above;
shall be prepared in consultation with the Council’s Engineers and shall be to the satisfaction of the Director, Planning and Development Services and submitted with the application for Construction Certificate. The drainage system must then be constructed in accordance with that approved design.
(Reason: to ensure that the appropriate drainage system is in place.)
C39 The landscaping plan No. LPC.01/C dated 30 July 2003 drawn by Narelle Sonter of Botanica received by Council on 1 August 2003 shall be amended to the satisfaction of the Director, Planning and Development Services and submitted with the application for Construction Certificate showing the following:
5. the Eucalyptus sp nominated as tree No. 13 on landscaping plan No. LPC.01/C be retained and any works around the tree including installation of the proposed stormwater overflow pipe referred to in Condition C38 shall not interfere with the root system;
6. redesign the pavements and water features to be located away from the proposed stormwater overflow pipe referred to in Condition C38;
7. replace the existing olive trees growing in the verge area of Young Street with Banksia serrata instead of Tristainiopsis laurina as shown on the plan; and
8. show the existing trees on the site to be retained and the trees to be removed with accurate description in both botanical and accepted common names.
- The site must then be landscaped in accordance with the approved modified landscape plan prior to the release of any occupation certificate for any part of the development.
(Reason: To ensure appropriate landscaping of the site.)
Protection of Trees During Works
D1. All trees, which are to be retained as a requirement of development consent, shall be maintained and protected during demolition, excavation and construction on the site. Protection method shall be provided to the Principal Certifying Authority by an appropriately qualified person prior to commencement of works.
- (Reason: Compliance with the Tree Preservation Order and significant tree register)
D2. Building materials shall not be placed on Council's footpaths; roadways, parks or grass verges and a suitable sign to this effect shall be erected adjacent to the street alignment.
(Reason: Safety and Access)
Plant & Equipment
D3. All plant and equipment used in the erection of the building, including concrete pumps, wagons, lifts, mobile cranes, etc, shall be situated within the boundaries of the site and so placed that all concrete slurry, water, debris and the like shall be discharged onto the building site.
(Reason: Protection of the Environmental Health and Safety)
Excavation/Demolition
D4. No demolition or excavation shall be carried out until a Construction Certificate has been issued.
(Reason: Information/ Statutory/ Structural safety)
Disposal Schedule
D5. A disposal schedule for waste materials arising from demolition and excavation shall be submitted to Council, prior to commencement of demolition or building works, identifying:
· those materials to be recycled;
· those materials to be reused;
· those materials to be disposed of.
- A maximum amount of materials shall be recycled or reused.
(Reason: Environmental Management Protection)
D6. Sandstone blocks (if any) removed from the site be either stored for re-use on site or offered to Council in the first instance.
- (Reason: Environmental Protection)
D7. Where Council is acting as the Principal Certifying Authority and where an inspection of building, civil or landscape work is required by these conditions, inspection fees and component certification fees must be paid to Council before Council will undertake any inspections. These fees may be paid at the time of submission of the required Notice of Commencement of works (Form 7). This condition applies regardless of whether a Compliance Certificate fee is also payable.
- NOTE : The submission of a ‘Form 7’ to Council is a statutory requirement prior to the commencement of any works on site.
(Reason: Compliance with Section 608(6) of the Local Government Act 1993 )
Materials
E1. The colour, texture and substance of all external materials shall be as detailed in the application. An application to modify the consent pursuant to S96 will be required to change any external finish or material substance.
- (Reason: Compliance & Heritage Conservation)
E2. Council or the Principal Certifying Authority SHALL BE given five (5) days notice for inspection of the following:
- (a) Foundations before footings are laid.
(b) Reinforcement prior to encasement in concrete.
(c) Damp-proofing and flashing prior to covering.
(d) Structural steelwork prior to covering.
(e) Timber framing prior to lining.
(f) Stormwater and drainage prior to backfilling.
(g) On completion of building works.
- 1. The appointed Principal Certifying Authority has a discretion to determine additional inspections which are required to ensure compliance or otherwise with relevant codes and standards.
2. Where North Sydney Council is acting as the Principal Certifying Authority for the project, notice is to be given by telephone to the Inspection Services Administration Officer and an appointment made for the relevant inspection.
(Reason: Compliance, Health and Safety)
E3. Within seven (7) days of completion of the building works and prior to occupation or the issue of an Occupation Certificate (whether for part of a building or the whole) a Certificate of Compliance under Section 109C(1)(a) of the Environmental Planning and Assessment Act 1979 must be provided by the Principal Certifying Authority. This Compliance Certificate must certify that the completed work complies with the relevant Plans and Specifications and with the following conditions of this development consent: A1, C1-C9, C11, C14-C16, C18, C23-C27, D1, E16, E17, F1, G1-G4.
- (Reason: Statutory)
E4. In order to ensure compliance with approved plans, a Survey Certificate, prepared to Australian Height Datum, shall be prepared by an Accredited Surveyor showing the following:
- (a) at the completion of excavation, prior to the placement of any footings, showing the completed level of the excavation and its relationship to the boundaries;
(b) prior to placement of concrete at the ground floor level, showing the level of the form work and its relationship to boundaries including relevant footpath and roadway levels;
(c) prior to placement of concrete at each fifth floor level showing the principal level of the formwork and the intended relationship of the completed works to the boundary;
(d) prior to roofing, or completion of the highest point of the building showing the anticipated level of the completed work and it relationship to the boundary;
(e) at completion, works showing the relationship of the building to the boundary and showing the maximum height of the overall works and the height of the principal roof elements.
Progress certifications in response to points (a) through to (e) shall be provided to the Council or the Principal Certifying Authority at the time of carrying out relevant progress inspections. Under no circumstances will work be allowed to proceed should such survey information be unavailable or reveals discrepancies between the approved plans and the proposed works.
(Reason: To ensure compliance with approved plans)
E5. Unless tested by a person with suitable experience and expertise and shown to be otherwise, buildings constructed before 1970 are assumed to:
· Have accumulated hazardous amounts of fine lead dust in ceiling and wall cavities; and
· Contain components and surfaces coated with lead paint.
- Appropriate measures to minimise hazards and contamination from lead are to be implemented.
(Reason: Lead-safe demolition)
E6. Noise emissions must comply with applicable standards under the Protection of the Environment Operations Act 1997 . Vibration from the works must not be felt on any adjoining property.
- (Reason: Amenity)
E7. Materials must not be burnt on the site.
- Vehicles entering and leaving the site with soil or fill material must be covered. Dust suppression measures must be carried out to minimise wind-borne emissions in accordance with the NSW Department of Housing’s 1998 guidelines - Managing Urban Stormwater: Soils and Construction. Odour suppression measures must be carried out so as to prevent nuisance occurring at adjoining properties.
(Reason: Safety and Amenity)
E8. The applicant shall bear the cost of all works associated with the development that occurs on Council’s property.
(Reason: Protection of existing public infrastructure)
No Removal of Trees on Public Property
E9. No trees on public property (footpaths, roads, reserves, etc.) unless specifically approved in its consent shall be removed or damaged during construction including the erection of any fences, hoardings or other temporary works.
(Reason: Protection of existing environmental infrastructure)
Special Permits
E10. Unless otherwise specifically approved by Council, all works, processes, storage of materials, loading and unloading associated with the development, are to occur entirely on the property. The applicant, owner or builder must apply for specific permits available from Council’s Customer Service Unit for the undermentioned activities on Council’s property pursuant to s 138 of the Roads Act 1912 . A minimum of forty-eight (48) hours notice is required for any permit:-
- (1) On-street mobile plant
- Eg. cranes, concrete pumps, cherry-pickers, etc. - restrictions apply to the hours of operation, the area of operation, etc. Separate permits are required for each occasion and each piece of equipment. It is the applicants, owners and builders responsibilities to take whatever steps are necessary to ensure that the use of any equipment does not violate adjoining property owners rights.
(Reason: Safety)
- Permits are required to erect Class A and Class B hoardings. If an ‘A’ Class hoarding is to alienate a section of Council’s property, that section will require a permit for the occupation of Council’s property.
(Reason: Safety)
- Permits to utilise Council property for the storage of building materials and building waste containers (skips) are required for each location. Failure to obtain the relevant permits will result in the building materials or building waste containers (skips) being impounded by Council with no additional notice being given.
(Reason: Safety)
- The applicant’s attention is drawn to the existing kerbside restrictions adjacent to the development. Should the applicant require alteration of existing kerbside restrictions, or the provision of a construction zone, the appropriate application must be made and the fee paid. Applicants should note that the alternatives of such restrictions may require referral to Council’s Traffic Committee and may take considerable time to be resolved. An earlier application is suggested to avoid delays in construction programs.
(Reason: Safety)
E11. Building construction shall be restricted to within the hours of 7.00 am to 5.00 pm Monday to Friday and on Saturday to within the hours of 8.00 am to 1.00 pm inclusive, with no work on Sundays and Public Holidays.
- Demolition and excavation works shall be restricted to within the hours of 8.00 am to 5.00 pm Monday to Friday only. (Excavation work includes the use of any excavation machinery and the use of jackhammers, rock breakers, excavators, loaders and the like, regardless of whether the activities disturb or alter the natural state of the existing ground stratum or are breaking up/removing materials from the site).
The builder and excavator shall display, on-site, their twenty-four (24) hour contact telephone number, which is to be clearly visible and legible from any public place adjoining the site.
(Reason: Amenity, Health and Safety)
E12. Techniques used for erosion and sediment control on building sites are to be adequately maintained at all times and all techniques shall remain in proper operation until all development activities have been completed and the site fully stabilised.
- (Reason: Protection of the Environment)
E13. A durable sign, which is available from Council, shall be erected during building works in a prominent location on site warning of penalties should appropriate erosion and sedimentation control devices not be maintained.
- (Reason: Environmental Health)
E14. All asbestos must be removed by a licensed asbestos contractor in compliance with the Work Safe Australia Asbestos Code of Practice and guidance notes.
- (Reason: Health and Safety)
E15. The work must satisfy applicable occupational health and safety and construction safety regulations, including any WorkCover Authority requirements to prepare a health and safety plan. Site fencing must be installed sufficient to exclude the public from the site. Safety signs must be erected that; warn the public to keep out of the site, and provide a contact telephone number for enquiries.
- (Reason: Protection of the environment)
E16. All permanent survey markers shall be retained, undamaged, and not relocated.
- (Reason: Statutory)
E17. Disturbed areas must be progressively stabilised and re-vegetated in accordance with landscape plan.
- (Reason: Protection of environment)
Building Code of Australia
F1. All building work must be carried out in accordance with the provisions of the Building Code of Australia.
- (Reason: Prescribed - Statutory)
F2. (1) Building work that involves residential building work (within the meaning of the Home Building Act 1989 ) must not be carried out unless the Principal Certifying Authority 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
- (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 : The amount referred to in paragraph (b)(ii) is prescribed by regulations under the Home Building Act 1989 . As at the date on which this Regulation was gazetted, that amount was $3,000. As those regulations are amended from time to time, so that amount may vary.
- (2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.
(Reason: Prescribed - Statutory)
F3. (1) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.
- (2) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.
(Reason: Prescribed - Statutory)
F4. If the soil conditions require it:
- (a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and
(b) adequate provision must be made for drainage.
(Reason: Prescribed - Statutory)
F5. (1) 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, 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.
- (2) 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 clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.
(3) In this clause, allotment of land includes a public road and any other public place.
(Reason: Prescribed - Statutory)
F6. (1) 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) building involves the enclosure of a public place,
a hoarding or fence must be erected between the work site and the public place.
- (2) 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.
(3) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.
(4) Any such hoarding, fence or awning is to be removed when the work has been completed.
(Reason: Prescribed - Statutory)
F7. (1) A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:
- (a) stating that unauthorised entry to the work site is prohibited, and
- (b) showing the name of the owner of the premises and of the person in charge of the work site, and a telephone number at which that person may be contacted outside working hours.
- (2) Any such sign is to be removed when the work has been completed.
(3) This clause 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.
F8. (1) 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 one toilet for every 20 persons or part of 20 persons employed at the site.
- (2) 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.
(4) In this clause:
- accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in clause 95B of the Regulation.
approved by the Council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993.
public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993.
sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993.
Disabled Access
G1. Provision shall be made for wheelchair access to the building on the site for disabled persons in accordance with AS 1428 Parts 1 to 4 prior to occupation. Particular attention should be given to tactile ground surface indicators for the orientation of people with vision impairment (AS 1428.4).
- (Reason: Disabled Access)
G2. Tactile ground surface indicators complying with AS1428.4 shall be provided at the point of common public access to the building and at the vehicular access points to assist people with visual impairments in gaining access from the public way to the premises prior to occupation.
- (Reason: Safety, Disabled Access)
G3. All sound producing plant, equipment, machinery or fittings associated with or forming part of the mechanical ventilation system and/or the refrigeration system, shall be sound insulated and/or isolated so that the noise emitted does not exceed 5 dB(A) above the background level in any octave band from 63.0 HZ centre frequencies inclusive, at any time the plant is in operation, at the boundary of the site.
- Note : The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1 - 1989.
A report prepared by an appropriately qualified or accredited person shall be submitted to the Council or to the Principal Certifying authority demonstrating compliance with this condition prior to the occupation of the completed works.
(Reason: Environmental Health)
G4. (a) An appropriately qualified person shall certify to the Principal Certifying Authority that the stormwater drainage system was constructed in accordance with the consent. The applicant shall, upon completion of the development works and prior to the final inspection/s, submit to Council a copy of the aforementioned letter of certification.
- (b) An appropriately qualified person shall certify to the Principal Certifying Authority that the vehicular crossing and associated works and road works were constructed in accordance with the consent. The applicant shall, upon completion of the development works and prior to the final inspection/s, submit to Council a copy of the aforementioned letter of certification.
(Reason: Compliance with the Consent )
G5. The applicant shall, upon completion of the development works, submit to Council the works-as-executed drawing (W.A.E.) and letter of certification, prior to occupancy. The W.A.E. drawing shall show the alignment of the stormwater drainage pipelines, easement and associated structures.
- (Reason: Compliance with the Consent)
G6. A restriction pursuant to Section 88B of the Conveyancing Act 1919 shall be created on the property title indicating that the use of level 1 of Building A shall be restricted to non-habitable purpose only, and lodged with NSW Land and Property Information. Such restriction shall be created prior to the issue of occupation certificate or prior to the issue of a strata subdivision certificate whichever comes first. Such Section 88B shall be prepared, executed and registered at the cost of the developer including the costs of Council including any legal advice and shall contain such covenants, terms and conditions which the Council may reasonably require. The Section 88B shall not be registered without the prior written approval of the Council.
- (Reason: To ensure that the floor at level 1 of Building A remains a non-habitable floor)
G7. Prior to the issue of an Occupation Certificate, all existing titles on the site are to be consolidated into a single title of land.
- (Reason: Planning Purpose)
G8 An easement shall be created along the full length of the drainage line as shown on sketch numbered SK 206 dated 16.08.2004 a minimum of 2.5m wide, pursuant to the provisions of Section 88B of the Conveyancing Act 1919 benefiting Council for the purpose of drainage water together with the right for North Sydney Council and any person authorised by it with any tools, implements or machinery necessary for the purpose to enter into the property for inspecting, cleaning, maintaining or the like of the drainage pipeline.
- North Sydney Council shall be nominated in the instrument as the only party authorised to release, vary or modify the instrument, and North Sydney Council’s Official Seal shall be affixed to these documents, prior to the submission to the Land and Property Information Office. Evidence of the lodgment of the instrument referred to in this condition is to be provided to Council prior to the issue of the Occupation Certificate.
All costs involved in establishing this easement, including a survey and legal costs, shall be borne by the applicant.
(Reason: To ensure Council’s rights and appropriate drainage system are in place and to ensure owners, or intending owners are aware of the restrictions on the drainage easement.)
G9 A Covenant pursuant to the provisions of Section 88B of the Conveyancing Act 1919 shall be placed on the title of the property, indicating that:
· no construction of any kind is to be erected within, over or on the drainage easement; and
· no barrier is to be placed within the drainage pipeline that may create a blockage of the water flow;
· except as set out in Condition C37.
- North Sydney Council shall be nominated in the instrument as the only party authorised to release, vary or modify the instrument and North Sydney Council’s Official Seal shall be affixed to these documents, prior to the submission to the Land and Property Information Office. Evidence of the lodgment of the instrument referred to in this condition is to be provided to Council prior to the issue of the Occupation Certificate.
All costs involved in establishing this covenant, including survey and legal costs, shall be borne by the applicant.
- (Reason: To ensure owners, or intending owners of the subject property are aware of the restrictions placed on the title for the maintenance of the overland flow path.)
Intercom
H1. An intercom system must be provided in a convenient location adjacent to the visitor parking entry to enable easier and safe access to visitor parking prior to final completion of the development.
- (Reason: Convenience)
H2. Upon completion of works and prior to occupation, the person entitled to act on this consent shall provide to Council the following information;
- (a) the total tonnage of all waste and excavated material disposed of from the site, and
- Such information shall be categorised in accordance with the forgoing and is required for waste research purposes.
Inspection of Pipeline
H3 Upon completion of works and prior to occupation of the development, the applicant shall conduct and provide Council with a CCTV inspection report of the existing 900mm trunk drain and of the Council’s storm water overflow pipeline referred to in Condition C38. The applicant, at its own cost, shall repair any movements or damage to the existing 900mm trunk drain pipe that was caused during construction, to the reasonable satisfaction of the Director, Planning & Development Services of North Sydney Council.
- (Reason: to ensure the public infrastructure is protected).
Carparking Allocation
I1. Carparking shall be allocated (including in any strata subdivision of the development) as follows:
o 1 space per dwelling (minimum).
o Identified visitor and disabled parking spaces and loading area to remain common property.
(Reason: Adequate allocation of on-site parking and facilities)
K. Advisings
Public Risk Insurance
K1. The owner/applicant/contractor must take out Public Risk Insurance with a minimum cover of $10 million in relation to the occupation of, and works within Council’s road reserve. The Policy is to note Council as an interested party and a copy of the Policy must be submitted to Council prior to commencement of the works.
- (Reason: Safety and statutory)
K2. All utility services shall be adjusted, to the correct levels and/or location/s, to the satisfaction of North Sydney Council’s Development Engineer and the relevant public authority.
- (Reason: Protection of existing infrastructure)
S J WattsSydney Water
K3. The applicant is advised that it is necessary to submit a copy of this approval to Sydney Water, before any work is commenced, to ensure compliance with that Authority's By-Laws. Failure to submit these plans before commencing work may render the owner liable to penalty and may result in the demolition of work.
(Reason: Information)
Mail Boxes
K4. Mail deliveries shall be in accordance with Australia Post Guidelines. In general, a clearly marked mailbox (or group of mailboxes) shall be provided within 500 mm of the footpath alignment for premises at ground level, or adjacent to the main entrance to the development, where applicable.
(Reason: Access and Information)
Prior to commencing any building, subdivision or associated constructions works, the following provisions of the Environmental Planning and Assessment Act 1979 (the “Act”) are to be complied with:
(i) A Construction Certificate is to be obtained in accordance with Section 81A(2) (a) of the Act.
(ii) A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A(2)(b) of the Act.
(iii) Council is to be notified at least two (2) days of the intention to commence building works, in accordance with Section 81A(2)(c) of the Act which provides that the applicant may request the Council to review the determination. The request must be made in writing (or on the review application form) within twenty-eight (28) days after the ‘Determination Date’, as specified in this notice of determination, together with payment of the appropriate fee .
The applicant may apply to the Council or an Accredited Certifier for the issuing of a Construction Certificate and to be the Principal Certifying Authority to monitor compliance with the approval and issue necessary documentary evidence or certificate/s.
Unauthorised use or work undertaken prior to an approval or not in accordance with an approval is an offence carrying a penalty of up to $100,000 pursuant to the Environmental Planning & Assessment Act, 1979 .
A copy of this consent is to be located and made available at all times during the construction of the development.
Commissioner of the Court
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