Needs v City of Ryde Council - [2009] NSWLEC 1133

Land and Environment Court

of New South Wales

CITATION: Needs & Anor v City of Ryde Council [2009] NSWLEC 1133

PARTIES:
APPLICANT
Needs, Justin & Browne, Alison
RESPONDENT
City of Ryde Council

FILE NUMBER(S): 10016 of 2009

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- Demolition of existing building & erection of a new dwelling, overlooking of adjoining properties.

LEGISLATION CITED: City of Ryde Council Development Control Plan 2006
City of Ryde Council Development Control Plan 2008

DATES OF HEARING: 22 April 2009

EX TEMPORE JUDGMENT DATE: 22 April 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr M. Staunton, barrister
RESPONDENT
Mr J Strati, solicitor
for City of Ryde Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

22 April 2009

10016 of 2009 Needs, Justin & Browne, Alison -v- City of Ryde Council
JUDGMENT

1 COMMISSIONER: The applicant in these proceedings is seeking to construct a new dwelling house on the property known as 19 Boulton Street Putney.

2 The applicant proposes to demolish the existing dwelling and out buildings except for the in-ground swimming pool and construct a new dwelling. The new dwelling will consist of three levels; on the lower ground level there will be a storage area, a covered outdoor living area with barbeque area and laundry: on the ground floor there will be a double garage, entry, patio, guest room, study family room kitchen living room and balcony at the rear of the building: and on the first floor the bedrooms are located that is the master bedroom suite and three other bedrooms. To accommodate the lower ground level it is proposed to excavate about 1.8 m below the natural ground level at the rear of the property to accommodate the outdoor deck and under croft storage laundry area adjoining.

3 The Court met on site with the parties this morning to hear the consent orders. The Council had initially refused the development application and the applicant subsequently sought a s82A review there in Council determined that:

1. The proposal is unsatisfactory when assessed in terms of Council’s Development Control Plan 2006 with regard to floor space ratio, wall height number of levels at the rear.

4 The Council has come here today withdrawing its objection to the development application and has agreed to enter into consent orders following further advice.

5 Objectors to the proposal were advised in accordance with the Court’s requirements for consent orders and the adjoining property owner to the west advised yesterday afternoon they did not seek to be heard at today’s proceedings. Nonetheless, in my assessment of the consent orders I have considered their objection at folio 48 and 49 of Council’s bundle and further assessment has been undertaken today to satisfy the Court that there is no reason as to why the consent orders should not be entered into.

6 The adjoining owner is concerned that the dwelling is a three storey dwelling at the rear and that the proposed development will greatly inhibit the sunlight to his property particularly the outdoor living area, main bedroom and two bathrooms. They are also concerned about the impact on the privacy of his swimming pool from the proposed upstairs window. The letter also expresses concern about the new masonry retaining wall and fence to be built on the common boundary and that this will damage plants and vines that grown on their side of the paling fence.

7 Today the Court has the benefit of understanding the relative level of the upper floor bedroom area and its relationship to the adjoining property to the west and the swimming pool area referred to as of concern to the neighbour. Sight lines have been drawn today to show the relative level of the floor of the upper storey corner bedroom and the rear balcony from the bedrooms of the proposal to the swimming pool area of the neighbouring property having regard to the relative levels of each property. The Court is also mindful of the rear open cabana on the adjoining property that has a tiled roof and ridge running in a north south direction that extends beyond the rear of the proposed new dwelling house in close proximity of the side boundary. I am satisfied that it will be most difficult to view over this ridge line into the swimming pool of the neighbouring property from the corner bedroom and a sight line is not possible from the rear balcony over the ridge line of the open cabana of the adjoining property to the pool. The floor level of the bedroom in the corner and the relative level of the ridge I am satisfied that there is minimal opportunity for overlooking from the subject site. Furthermore this is a bedroom as opposed to a living room area.

8 On the issue of the vegetation of the adjoining property and on the timber paling fence it is proposed that the new masonry wall on the applicants land will not interfere with the existing paling fence that is to be retained.

9 On the question of the development being three storeys I am also satisfied that the excavated area to provide for a lower ground floor to the proposal that is connected to am out door open space terrace excavated some 1.8 m takes advantage of the significant fall in the land from the front of the land to the rear. As such the lower ground floor area will not be perceived from the public domain or adjoining properties. The ridge line of the proposed dwelling is approximately 1 m higher than the adjoining dwelling to the west and I am satisfied that it will not read as an overdevelopment or bulky when viewed from the street or adjoining properties.

10 The Court inquired about the relevant controls and statutory planning frame work. The land is zoned residential and the dwelling house is permissible with consent. I note that the Council has adopted a new Development Control Plan late 2008 and an assessment against the provisions of this DCP there is no reason for the Court not to agree to the consent orders. The floor space ratio in the DCP is 0.5:1 and the dwelling house complies if the lower ground area is not included. With the lower ground floor storage area the FSR is 0.59:1. however I am satisfied on a merits assessment that the purpose of the FSR to control bulk and height that the proposed development is not unreasonable and no adverse impacts flow from the dwelling with the FSR of 0.59:1 having regard to the excavation to provide the lower ground floor area. I note that in terms of the DCP that 35% permeable area is required and the proposed development is some 29% permeable area. Council does not raise this as a issue having regard to the fact this is the same amount of permeable area as the current development on the site.

11 On the question of overshadowing diagrams were provided to the Court these show both overshadowing on the elevation of the adjoining dwelling to the west and I am satisfied that the overshadowing is not unreasonable and that the Council’s guidelines are complied with. The subdivision pattern is one that provides for a back garden area that has an northerly aspect together with the rear of the dwelling with a northerly aspect. The adjoining neighbour was concerned about solar access to side windows including a kitchen window. I am satisfied that the proposed development does not create unreasonable overshadowing and that good solar access is maintained to the adjoining property given it’s northerly orientation at the rear. I note that the proposed dwelling does not extend as far into the rear of the property as the adjoining dwelling and the shadow diagrams provided for 9 am show increased overshadowing by the proposed development but by 12 noon there is little additional overshadowing.

12 An objection had also been received from No. 176 Princes Street, the property to the rear of the subject site. Their concerns are about overlooking from the proposed balconies at the rear of the proposed dwelling. I am satisfied that this is not a well founded objection given the distance separation between the properties and the intervening vegetation there will be no unreasonable amenity impacts.

13 To assist the Court Mr Sanders, consultant town planner, provided a position paper on behalf of the applicant. The Council did not provide a statement of facts and contentions as it had already agreed to enter into consent orders following further advice to the Council.

14 In my overall assessment of the development application I see no reason as to why the consent orders should not be agreed to by the Court.

15 Accordingly, the formal orders of the Court by consent are:

1. The appeal in respect of the property known as No. 19 Boulton St Putney is upheld.

2. The development application submitted No. LDA2007/755 to Ryde City Council for demolition and the erection of a new dwelling is determined by the granting of consent subject to the conditions in Annexure “A”.

3. The Court notes that each party is to pay its own costs of the proceedings.

___________________

Annexure ‘A’

Conditions of Consent

Needs, Justin & Browne, Alison -v- City of Ryde Council

Demolition and Erection of New Dwelling.

GENERAL

1. Development is to be carried out in accordance with the following Plans (listed below), together with support information submitted with the Development Application.

(a) Sheet A01, Issue C, dated Aug 2007;
(b) Sheet A02, Issue D, dated Aug 2007;
(c) Sheet A03, Issue D, dated Aug 2007;
(d) Sheet A04, Issue 0, dated Aug 2007;
(e) Sheet A05, Issue D, dated Aug 2007;
(f) Sheet A05A, Issue D, dated Aug 2007;
(g) Sheet A06A, Issue D, dated Aug 2007;
(h) Sheet A07A, Issue D, dated Aug 2007;
(i) Sheet A08A, Issue D, dated Aug 2007;
(j) Sheet A09, Issue C, dated Aug 2007;
(k) Sheet A10, Issue C, dated Aug 2007;
(l) Sheet A11, Issue C, dated Aug 2007;
(m) Sheet A12, Issue A, dated 2007;
(n) Sheet A13, Issue B, dated Feb 2008;
(o) Sheet A13A, Issue B, dated Feb 2008; and
(p) Sheet A13B, Issue B, dated Feb 2008.
(q) Amended stormwater management plan prepared by StormCivil Engineering Solutions, Issue C, dated 18 August 2008.
(r) Amended landscaping plan prepared by ecodesign Revision C dated 20 October 2008

2. Compliance with the Building Code of Australia

a) All building work (other than work relating to the temporary building) must be carried out in accordance with the requirements of the Building Code of Australia (as in force on the date of the application for the relevant construction certificate or complying development certificate was made)
b) This clause does not apply to the extent to which an exemption is in force under clause 187 or 188, in the Environmental Planning and Assessment Regulations 2000, subject to any terms of any condition or requirement referred to in Clause 187(6) or 188(4).

3. Prior to commencing any construction works, the following provisions of the Environmental Planning and Assessment Amendment Act, 1997 are to be complied with:

a) A Construction Certificate is to be obtained in accordance with Section 81A (2)(a) of the Act.
b) 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 and Form 7 of Schedule 1 to the Regulations.
c) Council is to be notified at least two (2) days prior to the intention to commence building works, in accordance with Section 81A (2)(c) of the Act and Form 7 of Schedule 1 to the Regulations.

4. The applicant may apply to the Council or an accredited certifier for the issuing of a Construction Certificate and to Council or an accredited certifier to monitor compliance with the approval and issue any relevant documentary evidence or certificate/s.

Council Officers can provide these services and further information can be obtained from Council by telephoning 9952 8222 (Customer Service).

5. The development is to be carried out in compliance with BASIX Certificate No 160455S dated 27 September 2007.

6. Any architectural and/or fixture changes to the development will require the submission of a new BASIX certificate. Please note that modifications may require the submission of a Section 96 application in accordance with the Environmental Planning & Assessment Act.

7. Residential Building Work

a) 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:

i) in the case of work to be done under the Act: has been informed in writing of the licensee’s name and contractor licence number, and is satisfied that the licensee had complied with the requirements of Part 6 of the Act; or
ii) in the case of work to be done by any other person: has been informed in writing of the person's name and owner-builder permit number; or 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 work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.

b) A certificate purporting to be used 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 purpose of this clause, sufficient evidence that the person has complied with the requirements of that Part.

8. Excavations and backfilling

a) All excavations and backfill associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.
b) 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.

9. Retaining walls and drainage

10. Telephone Installations

Advice should be obtained from your local telecommunications office regarding any telephone lines required to be installed in concrete floors.

11. Australia Post

Approval for the site and size of proposed household mailboxes must be obtained from Australia Post.

DEMOLITION CONDITIONS

12. A security deposit (category: demolition) is to be paid to Council (Public Works and Services Group) prior to the commencement of any demolition works. Please refer to Council's Management Plan for the current fee amounts.

13. Council's City of Ryde Development Control Plan 2006: Part 7.2- Waste Minimisation & Management sets out your obligations for Waste Management. A Waste Management Plan in accordance with the DCP (details of contractor(s) and destination(s) and quantities to be provided for all demolition materials) is to be submitted to and approved by Council prior to commencement of any demolition works.

BEFORE WORK COMMENCES

14. If any changes are made to the waste management plan, a new waste management plan must be submitted to and approved by Council. The new plan must include the types and estimated volumes of waste materials that will be generated; the proposed method of reuse, recycling or disposal; and the name and address of the recycling facility or landfill site if the waste is to be recycled or disposed of off site. Reuse and recycling must be maximised.

15. Council is to be notified in writing before work commences - The applicant must notify Council of the following particulars in writing at least seven (7) working days before demolition work commences:

16. Notification of neighbouring residents - At least seven (7) days before demolition work commences the applicant must notify the occupiers of all neighbouring premises of the date the work is due to commence by placing a written notice in the letter box of each premises.

During Demolition

17. Site security - Security fencing must be provided around the perimeter of the site, and other precautions taken, to prevent unauthorised entry to the site during the demolition period.

18. Hoardings - Where the site adjoins a public thoroughfare the common boundary must be fenced with a hoarding, unless the horizontal distance between the boundary and the structure being demolished is more than twice the height of the structure. All hoardings must be constructed of solid materials and be at least 1.8 metres high.

19. Overhead protection - Where the site adjoins a public thoroughfare with a footpath alongside the common boundary, the footpath must be provided with overhead protection in accordance with the requirements of Australian Standard AS 2601-1991 The Demolition of Structures, unless:

20. Site signage - A rigid durable sign showing the demolition contractor’s name, address and telephone contact details must be displayed in a prominent position on the site so that they can be easily read by anyone in any public road or other public place adjacent to the site.

21. Warning notices - Notices lettered in accordance with Australian Standard AS 1319-1994 Safety Signs for the Occupational Environment and displaying the words ‘DANGER! DEMOLITION WORK IN PROGRESS’ must be fixed to the security fencing/hoardings at appropriate intervals to warn the public.

22. Additional warning notices in relation to asbestos - Where the work involves the demolition or removal of asbestos products and materials, including asbestos-cement sheeting (ie. fibro), notices lettered in accordance with Australian Standard AS 1319-1994 Safety Signs for the Occupational Environment and displaying the words ‘WARNING! ASBESTOS’ must be fixed to the security fencing/hoardings at appropriate intervals to warn the public.

23. Erosion and sediment controls - Appropriate erosion and sediment controls must be installed before site works are commenced and be maintained at operational capacity until the site has been stabilised. These controls must include:

24. Toilet facilities - Toilets and hand washing facilities must be provided for workers in accordance with the Code of Practice: Amenities for Construction Work (WorkCover, 1996). Where practicable, the toilets must be standard flushing toilets connected to the sewerage system.

25. Protection of underground services - Before work commences the location of any underground services (eg. gas, water, electricity, telecommunications cables, etc.) must be identified and appropriate measures taken to protect those services.

26. Demolition work - All demolition work must be carried out in accordance with the requirements of Australian Standard AS 2601-1991 The Demolition of Structures.

27. Licenced contractor to carry out work - All demolition work must be carried out by an appropriately licensed contractor.

28. Asbestos work - All work involving asbestos products and materials, including asbestos-cement sheeting (ie. fibro), must be carried out in accordance with the guidelines for asbestos work published by WorkCover New South Wales.

29. Dust control - Appropriate measures must be taken to control the generation of dust during demolition work:

30. Hours of work - All demolition work must be restricted to between the hours of 7.00am and 7.00pm Mondays to Fridays and 8.00am and 4.00pm on Saturdays. No work is to be carried out on Sundays or public holidays.

31. Noise - Noise must be minimised by the selection of appropriate methods and equipment and the use of screening or barriers where practical.

32. Noise monitoring - Noise monitoring must be carried out by a qualified acoustical consultant if complaints are received, or if directed by Council, and any control measures recommended by the acoustical consultant must be implemented during the demolition work.

33. Protection of trees - Trees must not be removed, lopped or trimmed without the prior written approval of Council and any trees to be retained must be protected from damage during demolition work.

34. Protection of buildings - Any buildings or parts of buildings to be retained on the site and all adjacent buildings must be protected from damage during demolition work.

35. Excavation and backfilling - All excavation and backfilling associated with the demolition work must be carried out in a safe manner.

36. Demolition wastes - All demolition wastes must be stored in an environmentally acceptable manner and be removed from the site at such intervals as may be necessary to ensure that no nuisance or danger to health, safety or the environment is created.

37. Recyclable wastes - All wastes nominated for recycling or re-use in the approved waste management plan must be segregated from other wastes and be transported to a place or facility where they will be recycled or re-used.

38. Storage of asbestos wastes - All asbestos wastes must be segregated from other wastes and stored in a secure area in accordance with the requirements of the Protection of the Environment Operations (Waste) Regulation 2005.

39. Contaminated soil - All potentially contaminated soil excavated during demolition work must be stockpiled in a secure area and be assessed and classified in accordance with the Environmental Guidelines: Assessment, Classification & Management of Liquid & Non-Liquid Wastes (EPA, 1999) before being transported from the site.

40. Demolition wastes not to be placed on public roads, etc. - Demolition wastes must not be placed on public roads, footpaths or reserves, or be allowed to enter any street gutter, stormwater drain or waterway.

41. Burning of demolition waste - The burning of demolition waste is prohibited under the Protection of the Environment (Control of Burning) Regulation 2000.

42. Transportation of wastes - All wastes must be transported in an environmentally safe manner to a facility or place that can lawfully be used as a waste facility for those wastes. Copies of the disposal dockets must be kept by the applicant for at least 3 years and be submitted to Council on request.

43. Disposal of asbestos wastes - All asbestos wastes, including used asbestos-cement sheeting (ie. fibro), must be disposed of at a landfill facility licensed by the New South Wales Environment Protection Authority to receive asbestos waste.

44. Surplus excavated material - All surplus excavated material must be disposed of at a licensed landfill facility, unless Council approves an alternative disposal site.

45. Covering of loads - All vehicles transporting demolition materials from the site must have their loads covered.

46. Mud and debris from vehicles - All practicable measures must be taken to ensure that vehicles leaving the site do not deposit mud or debris on the road.

47. Removal of mud and debris from roadway - Any mud or debris deposited on the road must be cleaned up immediately in a manner that does not pollute waters (ie. by sweeping or vacuuming).

PRIOR TO CONSTRUCTION CERTIFICATE

48. A security deposit (dwelling houses with delivery of bricks or concrete or machine excavation) is to be paid to Council (Public Works and Services Group) as well as the Infrastructure Restoration and Administration Fee. Please refer to Council's Management Plan for the current fee amounts.

49. An Enforcement levy is to be paid to Council on lodgement of the Construction Certificate application in accordance with the requirements of Council’s Management Plan (scheduled fees).

50. Documentary evidence of payment of the Long Service Levy under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 is to be received prior to the issuing of the Construction Certificate.

51. The applicant is to apply to Council, pay the required fee, and have issued street alignment levels by Council prior to the issue of the Construction Certificate.

52. Documentary evidence of compliance with Conditions 48-51 to the satisfaction of Council or an accredited certifier is to be submitted to the Council prior to the issuing of the Construction Certificate.

53. Sydney Water

The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect any Sydney Water assets, sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped.
Please refer to the website for:

Quick Check agents details - see Building, Developing and Plumbing then Quick Check; and

Guidelines for Building Over/Adjacent to Sydney Water assets - see Building, Development and Plumbing then Building and Renovating.

Or telephone 13 20 92.
The consent authority or a private accredited certifier must ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate .

54. The applicant is to submit to and have approved by Council or an accredited certifier engineer’s details for all concrete work and structural steelwork prior to the issue of the Construction Certificate.

55. City of Ryde will not issue a Construction Certificate without evidence of Home Owners Warranty / Owner Builder’s Permit being submitted to Council.

56. Fencing is to be in accordance with Council's Fencing Development Control Plan and details of compliance are to be provided in the plans for the Construction Certificate.

57. Council's City of Ryde Development Control Plan 2006: Part 7.2- Waste Minimisation & Management sets out your obligations for Waste Management. A Waste Management Plan in accordance with the DCP is to be submitted to and approved by Council or an accredited certifier prior to the issue of the Construction Certificate.

58. Fire and Smoke Alarms are to be provided in accordance with Part 3.7.2 of the Building Code. Location details are to be submitted and approved by Council or an accredited certifier prior to the release of the Construction Certificate.

59. All retaining walls to excavated areas are to be completed at the earliest possible stage and prior to the erection of the timber and masonry framework. Details are to be submitted to and approved by Council or an accredited certifier prior to the issue of the Construction Certificate.

60. A site works plan indicating compliance with Council’s DCP 2006, Part 8.1 – Construction Activities, in relation to:

a) sedimentation and pollution controls;
b) tree preservation and protection measures;
c) security fencing;
d) builder’s identification signage and demolition in progress signage; and
e) provision of site toilets

to the satisfaction of Council or an accredited certifier is to be submitted to Council with the Construction Certificate .

61. The Construction Certificate plans and specifications are to detail all of the 'CC plan' commitments of the BASIX Certificate.

Swimming Pools

62. The pool fence is to be erected around the perimeter of the swimming pool having an effective height of at least 1.2 metres at any point along its length on the outside of the fencing, fitted with a self-closing and locking gate (the latch of which is to be placed on the inner face in such a position as to be out of reach of small children). The pool fence is to be constructed in accordance with the provisions of the Swimming Pools Act, 1992 and Swimming Pools Regulation 1998. Details of compliance are to be reflected on the plans submitted with the Construction Certificate.

63. (deleted)

64. The pool pump/filter is to be enclosed in an approved acoustic enclosure, which will ensure that the noise emitted therefrom does not exceed 5dB(A) above the background noise level when measured at the nearest source of annoyance. Full details are to be provided to Council or the accredited certifier prior to the issue of a Construction Certificate.

PRIOR TO COMMENCEMENT

65. Dial 1100 Before You Dig’

Underground pipes and cables may exist in the area. In your own interest and for safety, telephone 1100 before excavating or erecting structures. Information on the location of underground pipes and cables can also be obtained by fax on 1300 652 077 or through the following website .
If alterations are required to the configuration, size, form or design of the development upon contacting the Dial Before You Dig service, an amendment to the Development Consent (or a new development application) may be necessary. Council’s Assessment Officer should be consulted prior to the lodgment of an application for a Construction Certificate if this is the case.

66. Sediment control works are to be installed and maintained in accordance with Council’s DCP 2006, Part 8.1 – “Construction Activities”.

67. Signage is to be provided on the site as follows:

(a) During the entire construction phase signage shall be fixed on site identifying the PCA and principal contractor (the coordinator of the building work), and providing phone numbers.

Trimming of Trees:

68. A Notice of Intent is to be lodged with Council, in accordance with the Tree Preservation Order and Tree Management Policy, not less than seven (7) working days prior to the commencement of tree works on this site. This Notice should outline all tree works to be undertaken in accordance with the Conditions of Development Consent. If the tree/s to be pruned are owned by the adjoining neighbour and the tree/s are over five (5) metres in height, the neighbour’s approval is to be sought prior to lodging the Notice of Intent.

DURING CONSTRUCTION

69. The occasions on which building work must be inspected are:

a) at the commencement of the building work
b) after excavation for, and prior to the placement of, any footings
c) prior to pouring any in-situ reinforced concrete building element
d) prior to covering of the framework for any floor, wall, roof or other building element
e) prior to covering waterproofing in any wet areas
f) prior to covering any stormwater drainage connections
g) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

Documentary evidence of compliance with Council’s approval and relevant standards of construction is to be obtained prior to proceeding to the subsequent stages of construction and copies of the documentary evidence are to be maintained by the Principal Certifying Authority and be made available to Council officers upon request.
Prior to occupation of the building, an occupation certificate must be obtained. Prior to the issue of the occupation certificate, the mandatory inspections must be carried out.

70. In addition to the abovestated inspections, the Principal Certifying Authority is required to ensure that adequate provisions are made for the following measures at each stage of construction, to ensure compliance with the approval and City of Ryde's DCP 2006, Part 8.1 - “Construction Activities”:

a) Sediment control measures.
b) Security fencing.
c) Materials or waste containers upon the footway or road.
d) PCA and principal contractor (the coordinator of the building work) signage and site toilets.

71. Council recommends that a Registered Surveyors check survey certificate be submitted to the Principal Certifying Authority (and Council, if Council is not the PCA) detailing compliance with Council’s approval at the following stages:

72. In addition to the mandatory inspections above, the following other stages of construction are to be inspected by the Principal Certifying Authority or another accredited certifier approved by the Principal Certifying Authority:

a) Pool fencing installed prior to pool being filled with water.
b) Landscaping, water depth markers displayed within the pool, resuscitation poster being within plain sight of pool. Documentary evidence of compliance with Council’s approval and relevant standards of construction is to be obtained prior to proceeding to the subsequent stages of construction and copies of the documentary evidence are to be maintained by the Principal Certifying Authority and be made available to Council officers upon request.

73. Concrete wastes must be collected, stored and treated in accordance with the Concrete Wastes guide published by the Environment Protection Authority.

74. Only unpolluted water is to be discharged to Council’s stormwater drainage system.

75. The L10 noise level measured for a period of not less than 15 minutes while demolition and construction work is in progress must not exceed the background noise level by more than 20 dB(A) at the nearest affected residential premises.

76. All excavated material must be removed from the site. No fill is to be placed above the natural ground level.

77. All demolition and all construction and associated work is to be restricted to between the hours of 7.00am and 7.00pm Monday to Friday (other than public holidays) and between 8.00am and 4.00pm on Saturday. No work is to be carried out on Sunday or public holidays.

78. No spoil, stockpiles, building or demolition material is to be placed on any public road, footpath, park or Council owned land.

79. Site toilets shall be provided in accordance with the WorkCover Code of Practice entitled “Amenities for Construction Work”.

80. At all times work is being undertaken within a public road adequate precautions shall be taken to warn, instruct and guide road users safely around the work site. Traffic control devices shall satisfy the minimum standards outlined in AS1742.3-1996 “Traffic Control Devices for Work on Roads”.

81. Glass doors and fixed panels so located in relation to other parts of the building as to be capable of being mistaken as a doorway of unimpeded path or travel shall be provided with a Grade “A” Safety Glazing in accordance with AS 2008, Safety Glazing Materials for use in buildings (Human Impact Consideration). All other glazing shall be installed in accordance with Table 1A Appendix “A” of AS 1288 Glass Installation Code.

82. The doors to the sanitary compartments must be open outwards, slide or be readily removable from the outside of the compartment unless there is clear space of at least 1.2m between the closest pan and the nearest part of the doorway (3.8.3.3 of the Building Code of Australia).

83. Treads, risers and balustrades to comply with the Building Code of Australia Part 3.9.1 and Part 3.9.2. Balustrading is to be a minimum 1.0 metres high and any openings are not to exceed 125mm.

84. All timber framing is to comply with Part 3.4.3 – Timber Framing of the Building Code of Australia.

85. Perimeter of slabs are to be provided with a drop-edge beam so as to provide face brickwork from the natural ground level.

Swimming pools

86. (deleted)

87. (deleted)

88. (deleted)

89. (deleted)

90. Provide resuscitation chart containing warning “YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THIS POOL” located in the immediate vicinity of the pool area so as to be visible from all areas of the pool.

91. (deleted)

92. (deleted)

Rainwater Tanks

93. A first flush device shall be fitted to the rainwater tank to divert the first 5mm of runoff from the area draining away from the storage tank (e.g. 0.5 litre per square metre).

94. Adequate provisions shall be made to prevent mosquitoes breeding in the rainwater tank. This should include suitable screening to prevent eggs being laid within the tank.

95. All tanks and tank stand installations shall be structurally sound and comply with the manufacturer’s and/or designer’s instructions.

96. Tanks must be a commercially manufactured tank designed for the use of water supply.

97. Overflow from the tank shall be piped directly to an approved stormwater system.

98. The external finishes of tanks shall be painted or coloured to be compatible with the surrounding environment. Alternatively, the water tank may be screened behind a permanent physical barrier that serves that purpose.

99. Taps associated with the tank shall be clearly marked indicating the source of the water and that it is not to be used for Drinking Water.

ENGINEERING CONDITIONS

General

100. Design and Construction Standards. All engineering plans and work shall be carried out in accordance with the requirements as outlined within Council’s publication Environmental Standards Development Criteria and relevant Development Control Plans except as amended by other conditions.

101. Service Alterations. All mains, services, poles, etc., which require alteration shall be altered at the applicant’s expense.

102. Restoration. Public areas must be maintained in a safe condition at all times. Restoration of disturbed road and footway areas for the purpose of connection to public utilities will be carried out by Council following submission of a permit application and payment of appropriate fees. Repairs of damage to any public stormwater drainage facility will be carried out by Council following receipt of payment.

103. Road Opening Permit. The applicant shall apply for a road-opening permit where a new pipeline is proposed to be constructed within or across the footpath. Additional road opening permits and fees may be necessary where there are connections to public utility services (e.g. telephone, electricity, sewer, water or gas) are required within the road reserve. No drainage work shall be carried out on the footpath without this permit being paid and a copy kept on the site.

Prior To Construction Certificate

104. Drainage Security Deposit. The applicant shall lodge with Council a security deposit of $1,000 prior to the issue of the Construction Certificate to ensure the Positive Covenant has been prepared, lodged and registered and that the onsite stormwater detention system is constructed in accordance with the approval plans; this includes the correct sediment sump construction and fitting of the orifice plate and debris screen in the outlet control pit. Refund of this security deposit will be made on satisfactory completion of the works and notification to Council of lodgement of the Positive Covenant with the Department of Lands.

105. Driveway Grades. The maximum grade of all internal driveways and vehicular ramps shall be 1 in 4 and in accordance with the relevant section of AS 2890.1. The maximum change of grade permitted is 1 in 8 (12.5%) for summit grade changes and 1 in 6.7 (15%) for sag grade changes. Any transition grades shall have a minimum length of 2.0m. The driveway design is to incorporate Council’s issued footpath and gutter crossing levels where they are required as a condition of consent.

106. Drainage Plans. The plans and supporting calculations of the proposed drainage system, including the on-site detention system and details addressing any overland flow from upslope properties are to be submitted with the Construction Certificate application.

107. On-Site Stormwater Detention. Stormwater runoff from all impervious areas shall be collected and piped by gravity flow to a suitable on-site detention system in accordance with the City of Ryde, Development Control Plan 2006: - Part 8.2; Stormwater Management. The minimum capacity of the piped drainage system shall be equivalent to the collected runoff from a 20 year average recurrence interval storm event. Overland flow paths are to be provided to convey runoff when the capacity of the piped drainage system is exceeded up to the 100 year average recurrence interval and direct this to the on-site detention system. Runoff which enters the site from upstream properties should not be redirected in a manner which adversely affects adjoining properties.

The on-site detention system shall be designed to ensure peak flow rates at any point within the downstream drainage system do not increase as a result of the development during storms from the 5 year to the 100 year average recurrence interval of all durations. Outflow from the basin shall be piped to a point of discharge in accordance with the City of Ryde, Development Control Plan 2006: - Part 8.2; Stormwater Management. The gutters, pipes and downpipes shall be designed for the 1 in 100 year, 5 minute storm events.

108. On-site Stormwater Disposal. Stormwater runoff from the impervious areas as indicated shall be collected and piped by gravity flow to an absorption trench system to Council’s requirements. The absorption trench storage volume shall be designed in accordance with the City of Ryde, Development Control Plan 2006: - Part 8.2; Stormwater Management”. Earthworks are to be detailed to demonstrate that the ground downstream of the trenches will be permeable to allow seepage from the trenches. A level spreader shall be placed downstream of the trenches to prevent erosion and an adverse impact on downstream properties.

109. Charged Stormwater Runoff. Stormwater runoff from the indicated impervious areas shall be collected and piped to the street gutter via a charged line drainage system in a manner acceptable to Council. The minimum capacity of the piped drainage system and roof gutters shall be equivalent to the collected runoff from a 100 year average recurrence interval storm event. The design shall ensure that the development, either during construction or upon completion, does not impede or divert natural surface water so as to have an adverse impact upon adjoining properties.

110. Erosion and Sediment Control Plan. An Erosion and Sediment Control Plan (ESCP) shall be prepared by a suitably qualified consultant in accordance with the guidelines set out in the manual “Managing Urban Stormwater, Soils and Construction“ prepared by the Department of Housing. These devices shall be maintained during the construction works and replaced where considered necessary.

The following details are to be included in drawings accompanying the Erosion and Sediment Control Plan

Prior to Commencement of Construction

111. Sediment and Erosion Control. The applicant shall install appropriate sediment control devices in accordance with an approved plan prior to any earthworks being carried out on the site. These devices shall be maintained during the construction period and replaced where considered necessary. Suitable erosion control management procedures shall be practiced. This condition is imposed in order to protect downstream properties, Council's drainage system and natural watercourses from sediment build-up transferred by stormwater runoff from the site.

112. Compliance Certificate. A Compliance Certificate must be obtained confirming that the constructed erosion and sediment control measures comply with the construction plan and the City of Ryde, Development Control Plan 2006: - Part 8.1; Construction Activities.

113. Vehicle Footpath Crossings. Concrete footpath crossings shall be constructed at all locations where vehicles cross the footpath, to protect it from damage resulting from the vehicle traffic. The location, design and construction shall conform to the requirements of Council.

114. Crossings are to be constructed in plain reinforced concrete and finished levels shall conform with property alignment levels issued by Council’s Public Works Division. Kerbs shall not be returned to the alignment line. Bridge and pipe crossings will not be permitted.

Prior to Occupation Certificate

115. Compliance Certificates – Engineering. Compliance Certificates must be obtained for the following (If Council is appointed the Principal Certifying Authority [PCA] then the appropriate inspection fee is to be paid to Council) and submitted to the PCA:

Confirming that the driveway is constructed in accordance with the construction plan requirements and Ryde City Council’s Environmental Standards Development Criteria - 1999.
Confirming that the site drainage system (including the on-site detention storage system) servicing the development complies with the construction plan requirements and the City of Ryde, Development Control Plan 2006: - Part 8.2; Stormwater Management
Confirming that after completion of all construction work and landscaping, all areas adjacent the site, the site drainage system (including the on-site detention system), and the trunk drainage system immediately downstream of the subject site (next pit), have been cleaned of all sand, silt, old formwork, and other debris.

116. Work-as-Executed Plan. A Work-as-Executed plan signed by a Registered Surveyor clearly showing the surveyor’s name and the date, the stormwater drainage, including the on-site stormwater detention system if one has been constructed and finished ground levels is to be submitted to the Principal Certifying Authority (PCA) and to Ryde City Council if Council is not the nominated PCA. If there are proposed interallotment drainage easements on the subject property, a Certificate from a Registered Surveyor is to be submitted to the PCA certifying that the subject drainage line/s and pits servicing those lines lie wholly within the proposed easements.

117. On-Site Stormwater Detention System - Marker Plate. Each on-site detention system basin shall be indicated on the site by fixing a marker plate. This plate is to be of minimum size: 100mm x 75mm and is to be made from non-corrosive metal or 4mm thick laminated plastic. It is to be fixed in a prominent position to the nearest concrete or permanent surface or access grate. The wording on the marker plate is described in the City of Ryde, Development Control Plan 2006: - Part 8.2; Stormwater Management. An approved plate may be purchased from Council's Customer Service Centre on presentation of a completed City of Ryde OSD certification form.

118. Positive Covenant, OSD, Dispersal and Charged.

A Positive Covenant must be registered on title pursuant to Section 88E of the Conveyancing Act 1919, burdening the property with the requirement to maintain the following approved systems on the property:
(a) stormwater detention system
(b) stormwater dispersal system; and
(c) charged drainage system.

The terms of the instrument are to be generally in accordance with the Council's draft terms of Section 88E instrument for maintenance of such systems and to the satisfaction of Council.

119. Drainage Construction. The stormwater drainage on the site is to be constructed in accordance with the approved construction certificate version of the stormwater drainage plan drawings No. D1, D2 & D3 Issue C prepared by StormCivil Engineering Solutions dated 18/8/08.

PRIOR TO OCCUPATION CERTIFICATE

120. An Occupation Certificate must be obtained from the Principal Certifying Authority (PCA) and a copy furnished to Council in accordance with Clause 151 of the Environmental Planning and Assessment Regulation 2000 prior to commencement of occupation or use of the whole or any part of a new building, an altered portion of, or an extension to an existing building.

121. Documentary evidence of tree retention and landscape planting and construction in accordance with the approved plan and specified items is to be submitted to the Council prior to occupation of the building.

122. Prior to the issue of the Occupation Certificate, the Principal Certifying Authority is to ensure that the BASIX commitments have been implemented in accordance with the approved BASIX Certificate. NOTE: Certificates from suitably qualified persons are to be submitted to the Principal Certifying Authority (if Council is the PCA) verifying that all BASIX commitments listed have been fulfilled in accordance with the BASIX Certificate.

123. A certificate from a suitably qualified person is to be submitted to the Principal Certifying Authority (and Council, if Council is not the PCA) that the method of Termite Protection has been provided in accordance with Part 3.1.3 of the Building Code of Australia and the requirements of the Australian Standard 3660.1.

124. A certificate from a suitably qualified person is to be submitted to the Principal Certifying Authority (and Council, if Council is not the PCA) that the method of waterproofing wet areas has been provided in accordance with Part 3.8.1 of the Building Code of Australia and the requirements of the Australian Standard 3740 prior to wall tiling.

125. A certificate from a suitably qualified person is to be submitted to the Principal Certifying Authority (and Council, if Council is not the PCA) that Fire and Smoke Alarms have been provided in accordance with Part 3.7.2 of the Building Code.

POST OCCUPATION CERTIFICATE

126. Within 2 days of issuing a final Occupation Certificate, the Principal Certifying Authority (PCA) is required to generate a BASIX Completion Receipt in accordance with the provisions of the EP & A Regulation 2000. The PCA is to refer to the BASIX Completion Receipt tool at in order to generate the BASIX Completion Receipt and a printed copy of the receipt is to be placed on the PCA file.

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CITATION:	Needs & Anor v City of Ryde Council [2009] NSWLEC 1133
PARTIES:	APPLICANT Needs, Justin & Browne, Alison RESPONDENT City of Ryde Council
FILE NUMBER(S):	10016 of 2009
CORAM:	Murrell C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Demolition of existing building & erection of a new dwelling, overlooking of adjoining properties.
LEGISLATION CITED:	City of Ryde Council Development Control Plan 2006 City of Ryde Council Development Control Plan 2008
DATES OF HEARING:	22 April 2009
EX TEMPORE JUDGMENT DATE:	22 April 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M. Staunton, barrister RESPONDENT Mr J Strati, solicitor for City of Ryde Council