Nick, Simon and Victor Matouk v Ku-ring-gai Council

[2004] NSWLEC 654

Land and Environment Court

of New South Wales

CITATION:	Nick, Simon and Victor Matouk v Ku-ring-gai Council [2004] NSWLEC 654
PARTIES:	APPLICANT: Nick, Simon and Victor Matouk RESPONDENT: Ku-ring-gai Council
FILE NUMBER(S):	10861-10866 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- streetscape & contribution to attractive residential environment - visual and acoustic privacy impacts on neighbours - adequacy of internal solar access & energy efficiency - impact on the solar access to neighbours - relationship to neighbours amenity - building setbacks and visual impact - and residents' submissions.
LEGISLATION CITED:	Ku-ring-gai Planning Scheme Ordinance 1971, (as amended), (KPSO) - State Environmental Planning Policy No 53, (SEPP53) - Environmental Planning and Assessment Act 1979, ss 79C and 97
CASES CITED:
DATES OF HEARING:	24/11/2004
DATE OF JUDGMENT:	11/24/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr S Kondilios, solicitor SOLICITORS: Maddocks RESPONDENT: Mr P R Rigg, solicitor SOLICITORS: Deacons

JUDGMENT:

Appeal No: 10861-10866 of 2004

15

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

25 November 2004

10861 to 10866 of 2004 - Nick, Simon and Victor Matouk v Ku-ring-gai Council

JUDGMENT

1 These are appeals under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of six (6) development applications to demolish two existing dwellings and to construct six (6) detached dual occupancy dwellings (as a series of three detached dual occupancy developments) and to Torrens Title subdivide into six (6) individual allotments under the provisions of State Environmental Planning Policy No 53, (SEPP53) and Ku-ring-gai Planning Scheme Ordinance (KPSO) at Lot 7 DP 12723 and Lot 11 DP 4323, being Nos 32-34 Tennyson Road, Turramurra.
2 I visited the land in company with the parties on the day of the hearing.
3 I have concluded that the application may be upheld when considered under s 79C of the Environmental Planning and Assessment Act 1979.

The land
4 The land is situated on the southern side of Tennyson Avenue and is rectangular in shape with an area of 3,300.3m2.
5 The land has a frontage to Tennyson Avenue of 45.415m, a rear boundary of 45.415m, an eastern side boundary of 72.815m and a western side boundary of 72.52m. The land slopes down from the road to the rear with a fall of about 5.5m, with a gentler slope towards the rear third of the land. An easement to drain water 1.5m wide is located on the adjacent western lot towards the rear of that lot.
6 The streetscape in the locality exhibits a wide variety of buildings varying in age, materials, architectural style, design and scale. The newer buildings tend to be two-storeys in height rather than single-storey. Landscaping and large trees are a significant element in the streetscape and the backdrop to dwellings. The landscaping tends to dominate the buildings.

Relevant planning controls

Ku-ring-gai Planning Scheme Ordinance 1971, (as amended), (KPSO)
7 Under the provisions of the KPSO the land is zoned Residential 2(c), and the proposal would be prohibited were it not for the provisions of State Environmental Planning Policy No 53, - Metropolitan Residential Development, (SEPP 53), which permits the development with consent. Subdivision of land is permissible with consent under the KPSO.
8 SEPP53 permits with the consent of the council, development that results in two dwellings on the one allotment of land, commonly referred to as detached dual occupancy development. The proposal being a series of separate dual occupancy and subdivision development applications is permissible with consent. The permissibility of these sequential, but concurrent, development applications is not in dispute between the parties.
9 Clause 3 of SEPP53 sets out the aims of the Policy and states:

3. Aims
(1) This Policy aims to encourage the provision of housing in metropolitan areas that will:
(a) broaden the choice of building types and locations available in the housing market, and
(b) make more efficient use of existing infrastructure and services, and
(c) reduce the consumption of land for housing and associated urban development on the urban fringe, and
(d) be of good design.
(2) These aims are to be achieved:
(a) by establishing planning controls that will provide opportunities for a variety of housing types, such as multi unit housing or multi unit housing combined with development for any other purpose to be developed in areas the councils of which have not adopted residential development strategies approved by the Minister, and
(b) by setting out design principles that, if followed, will achieve built form that responds to the characteristics of its site and location, and
(c) by encouraging councils to prepare and adopt residential development strategies and supporting local environmental plans and policies that will achieve those aims, and by allowing local government areas to be exempted from the whole or parts of this policy when those strategies and plans are in place.

10 Clauses 19 & 20 under SEPP53 relate to dual occupancy development and state:
19. Development standards
1. The following development standards apply for development allowed by this Part:
(a) The allotment is to have an area of:
(i) 400 square metres or more where the two dwellings are attached, or
(ii) 600 square metres or more where the two dwellings are detached,
(b) The building or buildings on the allotment after the development is carried out are to have a floor space ratio:
(i) of 0.5:1 or less, or
(ii) equal to or less than the floor space ratio of any dwelling that was on the allotment before the development was carried out, if that ratio exceeds 0.5:1.
(2) However, if another environmental planning instrument provides development standards that allow higher density development on the allotment concerned, the standards that allow higher density development apply.
20. Car parking requirements consent authority may impose
(1) A consent authority cannot, in granting consent for development allowed by this Part, require more than:
(a) one car parking space for each dwelling with a gross floor area of 150 square metres or less, or
(b) two car parking spaces for each dwelling with a gross floor area of more than 150 square metres.
(2) This clause does not prevent a development from having a greater number of car parking spaces than the consent authority can require.
11 The proposed dual occupancy developments comply with these development standards. However, the proposed dual occupancy developments' compliance with the requirements of cl 32 of SEPP53 has been identified in several of the specific issues in these proceedings.
12 Clause 32, Part 5 - Design Requirements of SEPP53 deals with design of residential development and states:
32. Design of residential development
Consent must not be granted for development to which this Part applies unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the following principles:
(a) The proposed development should:
(i) contribute to an attractive residential environment with clear character and identity , and, (Court’s emphasis added)
(ii) where possible, retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan.
(b) The proposed development should, where practicable, consider the visual and acoustic privacy of neighbours in the vicinity and residents by:
(i) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and
(ii) ensuring acceptable noise levels in internal living and sleeping areas of new dwellings.
(c) The proposed development should, where possible:
(i) ensure adequate daylight to the main living areas of neighbours in the vicinity and residents and adequate sunlight to substantial areas of private open space, and
(ii) involve site planning, dwelling design and landscaping that reduces energy use and makes the best practicable use of natural ventilation solar heating and lighting.
(d) The proposed development should, where possible:

(i) control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters, and
(ii) include, where practical, on-site stormwater detention or re-use for second quality water uses, and
(iii) be designed with regard to the scope for on-site infiltration of water.
(e) The proposed development should, where possible, provide personal property security for residents and visitors and encourage crime prevention by:
(i) site planning that allows, from inside each dwelling, general observation of the street, the site and the approaches to the dwelling's entry, and
(ii) providing shared entries that serve a small number of dwellings and are able to be locked, and
(iii) providing dwellings designed to allow residents to see who approaches their dwellings without the need to open the front door.
(f) The proposed development should, where appropriate:
(i) have convenient, obvious and safe pedestrian and bicycle links from the site that provide access to public transport services and local facilities, and
(ii) provide attractive, yet safe, environments for pedestrians, cyclists and motorists with convenient access and parking for residents and visitors, and
(iii) where feasible, involve site layout and design that enables people with a disability to access, on one continuous accessible path of travel, the street frontage, car parking, and all buildings, facilities and open spaces within the site.
(g) The proposed development should, where possible, be provided with waste facilities that maximise recycling by the provision of appropriate facilities.
(h) The proposed development should, where practicable, maintain reasonable neighbour amenity and appropriate residential character by:
(a) providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and
(b) using building form and siting that relates to the site's land form, and
(c) adopting building heights at the street frontage that are compatible in scale with adjacent development, and
(d) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours.

13 Compliance with Ku-ring-gai Development Control Plans Nos 40, 43 & 47 was not raised as an issue in the proceedings or as a reason for refusal in the Notice of Determination. DCP40 deals with construction, demolition and waste management, DCP47 deals with water management and DCP43 is the council's Car Parking Code.

The proposal and its history
14 The six development applications being: No 217/04, deemed refusal of application for lot consolidation, demolition and construction of two dwellings – Stage 1, (Appeal No 10861); No 218/04, deemed refusal of application for Torrens title subdivision of Stage 1 and Stage 2, (10862); No 219/04, Stages 3A and 3B, (10863); No 220/04, deemed refusal of application for Torrens title subdivision of Stages 3A and 3B - Stage 4, (10864), DA 221/04 deemed refusal of application for construction of two dwelling in Stages 5A and 5B, (10865); No 222/04 deemed refusal of application for Torrens title subdivision of Stages 5A and 5B – Stage 6, (10866) were lodged with the respondent council on 8 March 2004.

Notification
15 The six (6) development applications were notified to nearby owners and occupants and the council received (10) ten submissions, including three in Tennyson Avenue and seven from the rear residential complex. A petition was also received from the residents of No 20 The Chase Road, Turramurra. The residents of No 20 The Chase Road and the owners of No 36 Tennyson Avenue commissioned Mr K Brodie, town planner to make a further submission.
16 Submissions were received from Mr D and Mrs F Adams of No 36 Tennyson Avenue, Turramurra; Mr D and Mrs S Dickson of No 37 Tennyson Avenue, Turramurra; Mr D Wong for Mrs M Wong of No 39 Tennyson Avenue, Turramurra; Ms B Sturrock of No 1/20 The Chase Road, Turramurra; Mr D and Mrs G Manor of No 3/20 The Chase Road, Turramurra; Mr L and Mrs P Jones of 4/20 The Chase Road, Turramurra; Mr B and Mrs B Forbes of No 5/20 The Chase Road, Turramurra; Mr B and Mrs J Gray of No 6/20 The Chase Road, Turramurra; Mr J Bagley of No 18/20 The Chase Road, Turramurra; Mrs M Burgess of No 20 The Chase Road, Turramurra.
17 Concern was expressed as to the adverse impact of the proposed dual occupancies on their amenity and lifestyle, particularly with respect to:
· overshadowing and loss of sunlight;
· loss of privacy;
· adverse impact on outlook;
· extensive clearing of existing mature native and exotic vegetation;
· destruction of the visual and scenic qualities of the neighbourhood;
· excessive hard surface areas;
· potential stormwater run off and drainage problems; and
· inappropriate building design and inability of the dwellings to respect and complement the prevailing streetscape characteristics on the southern side of Tennyson Avenue.

18 Amended plans were provided and notified to the adjoining property owners for a period of fourteen (14) days from 1 to 18 September 2004. Although a number of residents from No 20 The Chase Road were satisfied that the amendments addressed their previous concerns, some residents telephoned the council and stated they still had concerns for the amended plans. The drainage issue was not pressed, however, all the other issues remain of concern to the residents and the council.
19 The application was referred to the following specialist units of the council:
· Landscaping:
The result in effect is that the entire site is to be cleared. This will obviously have a significant visual impact on the existing streetscape character and adjoining properties. It should be noted that tree numbers differ between the Arborists report and the Landscape Plan. The Landscape Plan overall is satisfactory subject to conditions.
· Development engineers:
The engineers have recommended approval subject to engineering conditions; and
· Heritage:
The council's heritage/ urban design consultant stated:
I do not object to demolition of No 32, but would recommend recording of the house to be undertaken to the heritage office guidelines.
I do not support demolition of No 34. It could be easily retained/adapted/renovated as part of any new development on the site.

The council’s decision
20 When the applications were filed, the council had not determined them, however, by 17 September 2004 the council had formally refused the applications.

The hearing
21 The appeals were filed on 21 July 2004 and are within time.
22 At the hearing the Court heard from Mr L Fletcher, Court-appointed expert. Mr S Segall, Executive Planner of Ku-ring-gai Council, prepared the statement of basic facts.
23 In the preparation of his statement of evidence, Mr Fletcher inspected the site of the proposed developments and the surrounding locality and reviewed the following documents:
· Plan of Proposed Consolidation of Lot 11 7 Lot 7 by N.K. Bennett & O'Donnell Surveyors;
· Plans of Proposed Subdivision 9316 - 2131, 3131, 3132, 4131 & 4132 by N.K. Bennett & O'Donnell Surveyors dated 16 January 2004;
· Architectural plans 2838/03-2 & 3 by Lindsay Little & Associates P/L dated November 2003;
· Amended Site Analysis Plan 2838/03-1 by Lindsay Little & Associates P/L dated 10 August 2004;
· Amended architectural plans 2838/03-4 to 7 by Lindsay Little & Associates P/L dated August 2004;
· Additional architectural plan 2838/03-1-1 by Lindsay Little & Associates P/L dated August 2004;
· Amended Shadow diagram 2838/03-8 by Lindsay Little & Associates P/L dated August 2004;
· Survey Plan of Lot 7 DP 12723 by StrataSurv - Surveyors dated January 2003;
· Survey Plan of Lot 11 DP 4323 by Degotardi, Smith & Partners - Surveyors dated October 1999;
· Landscape Master Plan 06.041017 and Landscape Plans 06.041009 - 010 dated February 2004 by Ian Jackson Landscape Architect PIL;
· Revised Concept Stormwater Drainage Plans and calculations 343175 D1 & D2 by AFCE Environment & Building - Consulting Engineers;
· Tree survey & impact assessment report & plans by Footprint Green Pty Ltd - Arborcultural, Environmental & Horticultural Consultants dated 14 April 2004;
· State Environmental Planning Policy (SEPP) No.53 - Metropolitan Residential Development;
· Ku-ring-gai Planning Scheme Ordinance (KPSO) as amended to 1411112003;
· Ku-ring-gai Council Dual Occupancy DCP;
· the Statement of Basic Facts prepared by the council's executive planner;
· the Statement of Issues filed by the respondent; and
· other documents from both parties as referred to in this Statement of Evidence.

The issues
24 On 20 September 2004 the council filed a statement of issues.
1. The proposed development is inappropriate infill development and does not make a sympathetic contribution to the streetscape as required pursuant to Clause 32(a) of State Environmental Planning Policy No 53, ("SEPP 53") (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(i)).
2. The overall proposed development does not achieve good design, as required pursuant to Clause 32(b) of SEPP 53, in accordance with the design principles contained in Part 5 (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(i)).
3. The proposed development is not consistent with the aims of SEPP 53 in that the proposal fails to achieve built form that responds to the characteristics of its site and location, as required pursuant to Clause 3(2)(b) (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(i)).
4. There is a loss of privacy to the surrounding residents, particularly to the west and to the south of the proposal, as required pursuant to Clause 32(b) of SEPP 53 (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(i)).
5. The proposal does not have regard to neighbour amenity and residential character as required pursuant to Clause 32(h) of SEPP 53 (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(i)).
6. There is an adverse impact on a number of dwellings in terms of overshadowing and inadequate solar access into the private recreation area of the dwellings, pursuant to the requirements and objectives of SEPP 53 (clause 32(c)) and Council's Dual Occupancy Code (clause 4.4.1) (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(i)).
7. The proposed development will cause loss of amenity (visual, acoustic and overshadowing) to residents of the dwellings situated at 36 Tennyson Avenue, Turramurra due to the proximity of the proposed dwellings 2 and 4 and the lack of appropriate landscaping opportunities (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(b)).
8. The proposed development will cause loss of amenity (visual, acoustic and overshadowing) to residents of the dwellings situated at 22 The Chase Road, Turramurra due to the proximity of the proposed dwellings 2 and 4 and the lack of appropriate landscaping opportunities (Environmental Planning and Assessment Act 1979 s 79C(1)(a)(b)).
9. The proposed development is not in the public interest as indicated from the number of valid objections received and the adverse impact on the adjoining properties (Environmental Planning and Assessment Act 1979 s 79C(1)(e)).
25 The salient issues as identified by Mr Fletcher are:
· streetscape & contribution to attractive residential environment;
· visual and acoustic privacy impacts on neighbours;
· adequacy of internal solar access & energy efficiency;
· impact on the solar access to neighbours;
· relationship to neighbours amenity - building setbacks and visual impact; and
· residents’ submissions.

26 The council also identified stormwater, crime prevention and accessibility as issues, however; these were resolved between the parties prior to the hearing. The council's engineers have recommended that stormwater conditions be applied.

The evidence and findings

Streetscape
27 Clause 32 - Design of Residential Development under SEPP53 requires that the proposal should “…contribute to an attractive residential environment with clear character and identity”.
28 In the statement of basic facts, Mr Segall, Executive Planner of Ku-ring-gai Council, indicated that the built form on the lower side of Tennyson Avenue in the vicinity of the land, when viewed from Tennyson Avenue, is predominantly single-storey. He added that despite dwelling houses being either a single-storey or two-storey height at the rear, dense landscaping with tall trees, augmented by medium and low height vegetation adds to the feeling of gardens predominating over buildings.
29 Viewed from Tennyson Avenue, he considered the proposed two-storey dwelling houses would not conform to this established character and identity and would not demonstrate that adequate regard has been given to the attractive residential environment.
30 Mr Fletcher, in his statement, addressed this assertion:

In this broader context, the character of the proposed development is not in my opinion incompatible with the surrounding residential environment and indeed could be argued to be quite typical of the prevailing form of redevelopment of such large deep properties in this locality.
In regard to assessment of the streetscape, the analysis is appropriately more confined and becomes essentially the impact of the proposal on views from Tennyson Avenue. In this regard I note that the Statement of Basic Facts suggests that the proposal will be seen as 3 rows of two-storey dwellings when viewed from Tennyson Avenue and that this is contrary to the predominantly single storey dwelling houses currently in Tennyson Avenue.
However, I disagree with this assessment in a number of respects. Firstly, the streetscape is not exclusively single storey and, in my view, it is significant that the immediately adjoining property to the east is in fact a two-storey dwelling house.
Secondly, the proposal will appear as essentially single storey buildings with attic rooms rather than as typical two-storey buildings. In that sense, it could be argued that the proposal maintains and is compatible with the predominant single storey street facade, notwithstanding that each dwelling contains bedrooms and bathrooms at an upper level within the roof form. In any event, in assessing building appearance and streetscape impact, reference documents such as AMCORD provide some useful guidance. AMCORD suggests that appropriate relationships and compatibility is achieved where the height of buildings is within one storey of the height of neighbouring buildings at the street elevation. On this basis, it is my opinion that the height and design of the proposed dwellings facing Tennyson Avenue is not incompatible with, or out of character with the streetscape of the locality.
Thirdly, the design of the two dwellings facing Tennyson Avenue, whilst similar in style, are different in both plan and elevation and will certainly not give the appearance of two identical dwellings. In my view, the general scale, massing and articulation of the buildings is not dissimilar to existing dwelling houses and other forms of housing development in the locality.
Finally, when viewed from Tennyson Avenue, it is my opinion that it will not be readily apparent to the casual observer that the development comprises three rows of dwellings. A combination of the design and siting of dwellings, together with the topography of the land sloping away from Tennyson Avenue, will mean that essentially only the front 2 dwellings will be particularly visible from the street and they will appear as one dwelling on each property. From immediately in front of either of those dwellings, one would not be able to see the dwellings located behind them.
It is only from an oblique angle, either between the proposed development and the neighbouring properties, or when looking down the driveway of the proposed development that one would recognise that there are indeed three rows of dwellings. In my opinion, even in those instances visibility will be constrained and the appearance of the buildings softened by the proposed landscape treatment. Even when viewing down the driveway, the proposed divided driveway and median treatment with significant landscaping will further constrain views and therefore reduce the perception of multiple rows of dwellings.
As a consequence, it is my view that the proposed development will contribute to an attractive residential environment and an attractive streetscape in accordance with the objectives and provisions of SEPP 53.

31 I am satisfied that the proposed dwelling houses would conform to the established character and identity and would pay adequate regard to the existing residential environment.
32 I am satisfied that the proposed dwelling houses would be of a predominantly single storey with attics scale and when viewed from Tennyson Avenue would respect the scale of other buildings in the street.
33 I am satisfied that the proposed dwelling-houses on comparatively small allotments accessed by a central driveway would be acceptable in this area of established trees extending east-west along Tennyson Avenue. On the site inspection the applicant agreed to retain a number of trees that were to be removed. While I recognise that around 23 of the 37 trees on the land would be removed, landscaping is proposed to augment and enhance those retained and I am satisfied that the character and identity of this attractive residential environment would not be eroded and lost, such as to require the refusal of the applications.
34 I am satisfied that the type, extent and density of proposed planting would in time soften the buildings and would go some way to compensating for the tree loss. During the course of the hearing further amendments were made to the landscaping to better relate the proposal to nearby properties.
35 The proposed 70m ‘gun barrel’ central driveway would be softened by additional planting and would not so detract from the character and identity of the area.
36 I am also content that the ‘architecture” would not be inconsistent with the variety of architectural forms evident within the locality.
37 I am persuaded by the evidence of Mr Fletcher and by what I saw on the site inspection that I should not refuse the application for reasons of streetscape impacts or any impact on the attractive residential environment.

Visual and acoustic privacy
38 Mr Segall, Executive Planner of Ku-ring-gai Council was of the opinion that the proposal would overlook No 36 Tennyson Avenue. In addition as the courtyard of Dwelling No 2 is the only area of private open space and is sufficient size to accommodate a gathering of people there would noise impact on the outdoor entertainment area of No 36 Tennyson Avenue.
39 Mr and Mrs Adams expressed their concern in this regard.
40 On the site inspection I was able to gauge the likely impact of the proposal on the amenity of Mrs and Mrs Adams in their residence at No 36 Tennyson Avenue. Conditions were proposed to alleviate some of the impacts and included a 12m long masonry wall to be erected on the common boundary to attenuate some of the noise of persons using courtyards to Dwellings No 2 and 4, which are closest to the Adams’ residence. The top of that wall was to be set at a level of 154.7m AHD which is around the height of the southern end of the existing garage on the subject land. Also the applicant agreed to double glaze the windows of Bedrooms 2 and 3 in the Adams’ residence.
41 The applicant also agreed to amendments to the landscaping plan to delete Turpentine trees proposed to be planted along the common boundary of the land with No 36 Tennyson Avenue and for a hedge of mature Camellias to be substituted.
42 With these amendments I am satisfied that concern for visual and acoustic privacy at No 36 Tennyson Avenue, would no longer be a reason to refuse the application.

Solar access and energy efficiency
43 Mr Segall, was of the opinion that the dwellings to the south of the proposed development will be subject to shadow at all times of the day during the mid winter solstice. In addition the courtyards of Dwellings 3, 4, 5 and 6 will be in shadow virtually all day.
44 Mr and Mrs Adams also expressed concern for the overshadowing of the rear of their residence at No 36 Tennyson Avenue.
45 On the site inspection, with the assistance of the experts and the applicant’s shadow diagrams, I was able to gauge the likely shadowing impact of the proposal on adjoining properties. The experts confirmed the height of the eaves of proposed Dwelling No 2 would be around 2.4m below the height of the eaves of No 36 Tennyson Avenue. Any overshadowing in the morning would be minimal and largely contained by the shade of the fence. The height of the eaves of proposed Dwelling No 4, to the south of Dwelling No 2 would be around 4.5m lower than the eaves of No 36 Tennyson Avenue. As a result of the height of the proposal and setbacks from boundaries I am satisfied that there would be no significant overshadowing. I would not refuse the application for this reason.

Neighbours’ amenity
46 Mr Segall, considered the proposed two-storey dwellings would be of an unsympathetic design that would not harmonise with the residential character on the lower side of Tennyson Avenue.
47 Mr Fletcher held a contrary view, and stated that the proposed development would indeed contribute to an attractive residential environment and an attractive streetscape in accordance with the objectives and provisions of SEPP 53.
48 I prefer the evidence of Mr Fletcher and would not refuse the application for this reason.

Residents’ submissions
49 Mr and Mrs Adams were the only residents to attend the site inspection/hearing. Other resident objectors had been notified of the hearing and had indicated they did not wish to attend. As a result of the evidence of Mr and Mrs Adams the conditions were amended to include a masonry privacy screen, double-glazing and mature Camellias as a hedge along the common boundary.
50 I am satisfied that the concerns of the nearby residents have been adequately addressed and there are no outstanding issues that would require further attention.
51 For the above reasons, the appeal is upheld.

Conditions
52 The conditions are those in Exhibit 5 as amended during the on-site hearing.

Orders
53 My orders are:
1. The appeals under s 97 of the Environmental Planning and Assessment Act 1979 are upheld.

2. The six development applications being: No 217/04, deemed refusal of application for lot consolidation, demolition and construction of two dwellings – Stage 1, (Appeal No 10861); No 218/04, deemed refusal of application for Torrens title subdivision of Stage 1 and Stage 2, (10862); No 219/04, Stages 3A and 3B, (10863); No 220/04, deemed refusal of application for Torrens title subdivision of Stages 3A and 3B and Stage 4, (10864), DA 221/04 deemed refusal of application for construction of two dwelling in Stages 5A and 5B, (10865); No 222/04 deemed refusal of application for Torrens title subdivision of Stages 5A and 5B – Stage 6, (10866) lodged with the respondent council on 8 March 2004 to demolish two existing dwellings and to construct six (6) detached dual occupancy dwellings (as a series of three detached dual occupancy developments) and to Torrens Title subdivide into six (6) individual allotments under the provisions of State Environmental Planning Policy No 53, (SEPP53) and Ku-ring-gai Planning Scheme Ordinance (KPSO) at Lot 7 DP 12723 and Lot 11 DP 4323, being Nos 32-34 Tennyson Road, Turramurra, are approved subject to various conditions set out in Annexures A to F.

3. The exhibits are retained.

S J Watts
Commissioner of the Court
sw

In the Land and
Environment Court
of New South Wales

No. 10861 of 2004

Nick, Simon and Victor Matouk

Applicant

Ku-ring-gai Council

Respondent

Order

The Court orders that:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 217/04, for lot consolidation, demolition and construction of two dwellings – Stage 1, (Appeal No 10861), lodged with the respondent council on 8 March 2004, under the provisions of State Environmental Planning Policy No 53, (SEPP53) and Ku-ring-gai Planning Scheme Ordinance (KPSO) at Lot 7 DP 12723 and Lot 11 DP 4323, being Nos 32-34 Tennyson Road, Turramurra, is approved subject to Conditions 1 to 66 in Annexure A.

3. The exhibits are retained.

Ordered: 24 November 2004

By the Court

Susan Dixon
Registrar
sw

Appeal No: 10861 of 2004

Conditions of development consent

Annexure A

Nick, Simon and Victor Matouk v Ku-ring-gai Council

Premises: Nos 32-34 Tennyson Avenue, Turramurra
Development Application No. 217/04

Construction of Dual Occupancy (Dwelling 5 and 6) – Stage I

GENERAL CONDITIONS

1. The development to be in accordance with Development Application No 217/04 and Development Application plans prepared by Lindsay Little & Associates, reference number 2838/03-1-8, 2838/03-6-8, 2838/03-7-8, dated 11 November 2004 and Revised Landscape Masterplan (06.04/123) prepared by Ian Jackson Landscape Architect Pty Limited dated November 2004, Landscape Specification prepared by Ian Jackson Landscape Architect Pty Limited dated November 2004; and Revised Concept Stormwater Drainage Plans D1 Revision A and D2 Revision A, prepared by AFEC Environment and Building Consulting Engineers, Job No 343175, dated June 2004.

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

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

4. The approved building shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plans and a Occupation Certificate has been issued.

5. The opening of any footway, roadway, road shoulder or any part of the road reserve shall not be carried out without a Road Opening Permit being obtained from the Council (upon payment of the required fee) beforehand.

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

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

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

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

9. For the purpose of public safety, a sign shall be erected on the site prior to any work commencing which is clearly visible from a public place stating that unauthorised entry to the site is not permitted and showing the name of the builder or another person responsible for the site and a telephone number for contact outside working hours. The sign may only be removed on satisfactory completion of the works.

10. Toilet facilities are to be provided, within 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.

11. To maintain residential amenity, all electrical services to the site are to be provided underground and must not disturb the root system of any trees. Please contact the energy supply authority’s local customer service office to obtain documentary evidence that the authority has been consulted and that their requirements have been met. This information is to be submitted to Council prior to the release of the Occupation Certificate.

12. To preserve and enhance the natural environment, all soil erosion and sediment control structures shall be inspected following each storm event and any necessary maintenance work shall be undertaken to ensure their continued proper operation. Sediment shall be removed from the soil erosion and sediment control structures when no more than forty percent (40%) capacity has been reached. These structures shall continue in proper operation until all development activities have been completed and the site fully stabilised.

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

Release of the Construction Certificate gives automatic approval to the removal ONLY of those trees located on the subject property within the footprint of a proposed new building/structure or within 3.0 metres of a proposed new dwelling. Where this application is for a building/structure other than a dwelling then ONLY trees within the area to be occupied by this building/structure may be removed. Other trees SHALL NOT be REMOVED or DAMAGED without an application being made under Council’s Tree Preservation Order.

14. Landscape works shall be carried out in accordance with Landscape Drawing No 06.04/123, Sheet 1 prepared by Ian Jackson Landscape Architects and dated November 2004 submitted with the amended development application for the areas surrounding Dwellings 5 and 6 only. The landscape works shall be completed prior to issue of the final Certificate of Compliance and be maintained in a satisfactory condition at all times. A revised landscape plan is to be submitted prior to the release of the construction certificate and shall include:
· retention of trees in Condition 15;
· transplant of all Camellias in the grounds of No 32 Tennyson Avenue, to the western boundary of the land to enhance privacy screening;
· removal of Tree #9 Cupressus (Cypress);
· provision of a 230mm masonry screen wall on the western side boundary of the courtyard of House No 4, extending north to the rear of House No 2 for a distance of 12m. The top of that wall shall be at a level of 154.7m AHD; and
· the external face of the masonry screen wall on the common boundary with No 36 Tennyson Avenue, to be bagged and painted in a colour nominated by the owners of No 36 Tennyson Avenue, Turramurra.

15. Canopy and/or root pruning of the following tree/s which may be necessary to accommodate the approved building works shall be undertaken by an experienced Arborist/ Horticulturist, with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate:

Tree/Location
Syncarpia glomulifera (Turpentine) #’s 23, 24, 25 and 26
Adjacent to southern (rear) site boundary;
Mulberry tree #15 in neighbour’s property adjacent to western boundary of the land;
Box Elder , #16 in neighbour’s property adjacent to western boundary of the land;
Liquid Ambar , # 18 in neighbour’s property adjacent to western boundary of the land.

Tree #18, the Liquid Ambar in the courtyard of House No 6 is to be retained together with Tree #6 the Melaleuca and Trees #7 and #8, the Camellias adjacent to House No 2 are to be retainede. The House No 2 retaining wall is to be modified, if necessary, to ensure the retention of the Camellias .

16. Tree roots between 10mm and 50mm diameter, severed during excavation, shall be cut cleanly by hand and the tree subsequently treated with a root growth hormone and wetting agent, by an experienced Arborist/Horticulturist with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate.

17. No tree roots of 50mm or greater in diameter located within the specified radius of the trunk/s of the following, tree/s shall be severed or injured in the process of any site works during the construction period.

Tree/Location Radius From Trunk
#6 Melaleuca armillaris at the front in the northwestern corner 2.0m

#s 7 and 8 Camellias on the western boundary of the land 1.0m

#15 Mulberry tree,
in neighbour’s property adjacent to western boundary of the land; 4.0m

#16 Box Elder ,
in neighbour’s property adjacent to western boundary of the land; 4.0m

#18 Liquid Ambar ,
in neighbour’s property adjacent to western boundary of the land; 4.0m

#19 Pittosporum undulatum (Native Daphne) 4.0m
Adjacent to western (side) site boundary of Dwelling 6

#’s 23 and 24 Syncarpia glomulifera (Turpentine) 5.0m
Adjacent to southern (rear) site boundary

#’s 25 and 26 Syncarpia glomulifera (Turpentine) 4.0m
Adjacent to southern (rear) site boundary

18. The trees to be retained shall be inspected, monitored and treated when necessary by a qualified Arborist before, during and after completion of development works to ensure their long term survival. Regular reports from the Arborist to the Council shall be required at monthly intervals. Documentary evidence of compliance with this condition shall be submitted to Council with the final Certificate of Compliance.

19. To preserve the ongoing health and vigour of existing trees to be retained, no hard landscape surfaces (paving), soil excavation or changes to existing soil levels and grades is permitted within a 4.0m radius of tree #’s 23, 24, 25 and 26 Syncarpia glomulifera (Turpentine) located adjacent to the southern (rear) site boundary.

20. To preserve the ongoing health and vigour of existing trees to be retained, proposed Pit 13 as shown on the Stormwater Drainage Plan drawn by AFCE Environment and Building, dated Feb 04, submitted with the development application is to be deleted.

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

22. On completion of the landscape works/tree planting or screen planting, a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to issue of final Certificate of Compliance.

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

24. To facilitate landscape amenity, tree #57 Pinus radiata (Radiata Pine) is to be removed and replaced with two Syncarpia glomulifera (Turpentine) in the same location. The trees to be planted are to have a minimum pot size at planting of 25 Litres. Documentary evidence of compliance with this condition is to be submitted to the principal certifying authority prior to the issue of the final certificate of compliance.

25. Stormwater runoff from all hard surfaces generating runoff or landscaped areas which are not at natural ground level shall be piped to the interallotment stormwater drainage line benefiting the subject site. The interallotment line is to be covered by the necessary easement for drainage which may exist or need to be created under this consent.

26. To maintain finite capacity of downstream drainage systems, an on-site stormwater detention system must be provided for each dwelling in accordance with Council’s requirements described in chapter 6 of Councils Water Management Development Control Plan 47, available in hard copy at Council and on the Council website. Separate systems are to be provided for each residence, except where a single combined system may be located in a common location readily accessible by both owners (such as under a shared driveway). In this case appropriate cross burdens are to be created on title(s) as necessary.

27. Provision of a stormwater pollution control device(s) which are designed to treat stormwater runoff and remove as much of the nutrients and suspended solids as practicable. This may achieved by the use of a suitably designed 1.0m x 1.0m x 0.6m medium-grained sand filter pit which is readily maintainable. Alternatively the use of a proprietary product(s) may be proposed.

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

29. All public footways and roadways fronting and adjacent to the site are to be maintained in a safe condition at all times during the course of the development works. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to the public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where circulation is diverted on to the roadway, clear directional signage and protective barricades must be installed in accordance with AS1742-3 1996 “Traffic Control Devices for Work on Roads” . If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

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

31. Construction of the concrete access driveway to the proposed dwellings. The driveway entrance and crossing width is to be widened in order to comply the AS2890.1 requirement for a 5.5m width for the first 6 metres from the road kerb. The balance of the driveway is to be constructed with a minimum clear width between adjacent obstructions of 3.0 metres in accordance with Australian Standard 2890.1 “Off-street car parking”.

32. Provision of a passing bay is to be provided in accordance with AS2890.1 – “Off street car parking” where sight distance from one end to the other is restricted and/or the length of driveway exceeds 30 metres.

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

34. To prevent surface stormwater from entering the building, the finished habitable ground floor level(s) of the building shall be a minimum of 150mm above adjacent finished ground level(s). The entire outside perimeter of the building must have overland flow escape routes which will protect all finished floor levels from flooding during times of complete subsurface drainage blockage.

CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE

35. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate.

Note: Required if cost of works exceed $25,000.00.

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

37. The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project.

38. Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act 1979 (the 'Act') 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.
c. Council is to be notified in writing, at least two (2) days prior to the intention of commencing buildings works, in accordance with Section 81A(2)(c) of the Act.
d. Should the development be certified by a Principal Certifying Authority other than Council, a fee for each Part 4A Certificate is to be paid to Council on lodgement of those Certificates with Council.

39. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area.

TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF ONE ADDITIONAL DWELLING IS CURRENTLY $12,459.72. The amount of the payment shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council’s Section 94 Contributions Plan to reflect changes in land values, construction costs and the consumer price index.

This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council’s adopted Section 94 Contributions Plan for Residential Development, effective from 20 December 2000, calculated for additional person as follows:

1. Preparation of New Residents Kit $10.98
2. New Resident Survey $9.87
3. New child care centre
(including land acquisition and construction of facility) $252.13
4. Additions/alterations to Acron Rd child care centre
for additional 20 places $2.41
5. New Library bookstock $17.95
6. New Public Art $2.93
7. Acquisition of Open Space -Turramurra/Warrawee $1,966.00
8. Koola Park upgrade and reconfiguration $143.09
9. North Turramurra Sportsfield development $986.80
10. Section 94 2000-2003 Study and Interim Plan preparation cost $49.34
11. Section 94 Officer for period of Plan 2000-2003 $118.42

To obtain the total contribution figure the following table of occupancy rates is to be used:

OCCUPANCY RATES FOR DIFFERENT DWELLING SIZES

Small dwelling (under 75 sqm) 1.25 persons
Medium dwelling (75 - under 110 sqm) 1.75 persons
Large dwelling (110 - under 150sqm) 2.75 persons
Very Large dwelling (150sqm or more) 3.5 persons
New Lot 3.5 persons

40. Landscape works must be installed and maintained in accordance with the approved landscape plan or other landscape conditions.

The final Certificate of Compliance shall be issued only where landscape works as approved have been satisfactorily installed.

41. The following trees must be maintained in the same condition as found prior to commencement of site development work.

The final Certificate of Compliance may only be issued if the trees are undamaged.

Tree/Location
Syncarpia glomulifera (Turpentine)
Adjacent to southern (rear) site boundary

42. To preserve the following tree/s, footings of the proposed garage for Dwelling 6 shall be isolated pier or pier and beam construction within the specified radius of the trunk/s. The piers shall be located such that no roots of a diameter greater than 50mm shall be severed or injured in the process of any site works during the construction period. The beam shall be located on or above existing soil levels.

The location and details of the footings shall be submitted to Council’s Landscape Development Officer and be approved prior to release of the Construction Certificate.

Tree/Location Radius in Metres
Syncarpia glomulifera (Turpentine #’s 25 and 26) 6.0m
Adjacent to southern (rear) site boundary

43. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), certification from a suitably qualified and experienced civil/hydraulic engineer that:

a. The existing pipes within the interallotment drainage easement system to be utilised, not to be reconstructed, are in satisfactory condition and
b. The existing pipes to be utilised have hydraulic capacity to carry design flowrates and detention system overflows (where detention systems are to be provided) from the subject property as far as the approved point of discharge to the public drainage system.

Where it is found that the existing pipes are in disrepair or will have insufficient hydraulic capacity to carry additional flows from the approved development the Applicant shall submit full design documentation for an upgraded interallotment drainage system from the subject property to the approved point of discharge to the public drainage system. This design documentation shall be approved by the Principal Certifying Authority (PCA), prior to issue of the Construction Certificate. Plans are to be prepared by a suitably qualified and experienced consulting civil/hydraulic engineer in accordance with in accordance with Council’s Stormwater Management Manual and the Plumbing and Drainage Code (AS3500). New pipes within the downstream easement drainage system must be sized to have adequate capacity to carry design flowrates, and detention system overflows where detention systems are to be provided, from the subject property. The following details must be included:

a. Plan view of interallotment system to scale showing dimensions, location and reduced levels of all pits, grates, pipe inverts, flushing facilities and exact point of discharge,
b. The contributing catchment calculations and supporting pipe sizing information,
c. Longitudinal section showing existing ground levels and proposed pipe invert levels, grades and flow capacities,
d. Surrounding survey detail including all trees within seven (7) metres of the proposed drainage system,
e. Means to preserve the root systems of trees within seven (7) metres of the drainage system.

44. DRIVEWAYS AND FOOTPATHS: Approval of this Development Application is for works wholly within the property and does not imply approval of footpath or driveway levels, materials or location within the road reserve regardless of whether this information is shown on the Application.

Footpath and driveway levels at the property boundary/road alignment are to be obtained from Council prior to release of the Construction Certificate. All footpaths and driveways are to be constructed strictly in accordance with Council's specifications "Construction of Gutter Crossings and Footpath Crossings". This is issued with alignment levels after completing the necessary application form at Customer Services and payment of the appropriate fee.
The grading of such footpaths or driveways outside the property are to comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant, and this may be affected by the alignment levels fixed by Council.

Note 1: The construction of footpaths and driveways outside the property, in materials other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations.

Note 2: When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant Development Application drawing which indicates the position and proposed level (if applicable) of the proposed driveway at the boundary alignment. Failure to submit this information may delay processing.

45. The property drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) shall be designed and based upon a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) for impervious surfaces. Design drawings and calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Council's Stormwater Management Manual and the national Plumbing and Drainage Code. These must be submitted to and approved by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

NOTE 1: The property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist’s certification that such excavation will not affect the longevity of the subject tree(s).

NOTE 2: If the proposed drainage system involves piping underneath or within the building then the designer is to certify that the design is in accordance with AS3500.3.2:1998 and the BCA.

NOTE 3: All enclosed floor areas, including habitable and garage floor levels, are to be safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

46. The stormwater plan prepared by AFCE, Drawing No. 343175-D1 and D2, Issue A, dated 9/6/04, shall be amended to, but not limited to the following:

i. Provision of a stormwater pollution control device(s) shall be provided since the amalgamated site is in excess of 2000m2;

Full design drawings of the proposed method of achieving the requirements for on-site stormwater detention including the above issues and all supporting calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Council requirements. These must be submitted to and approved by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

47. Provision of design drawings prepared by a suitably qualified and experienced hydraulic engineer for the stormwater pollution control works for approval by the Principal Certifying Authority prior to issue of the Construction Certificate.

48. For stormwater retention, provision of a 2000 litre rainwater tank within the subject property designed to capture and retain runoff from at least one roof downpipe after which runoff bypasses the tank and reverts to the main drainage system. Design drawings are to be prepared by a suitably qualified and experienced civil/hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

NOTE 1: The tank is to be located at or above existing natural ground level.

NOTE 2: If abutting a wall of the dwelling, the tank must be below the eaves line.

NOTE 3: The tank must not be located on the front façade of a dwelling.

NOTE 4: If the tank is to be attached to a structure then a structural engineer is to certify the adequacy of the design of the structure to carry the tank.

NOTE 5: Maximum height of the tank is 1.8 metres above natural ground level where installed along the side boundary setback of a dwelling.

NOTE 6: The tank is to be a commercially manufactured tank designed for the use of water supply and to be installed in accordance with manufacturers specifications.

NOTE 7: The tank is to be located above an available landscaped area so that the tank may be readily used for watering purposes.

NOTE 8: The tank is to be fitted with a standard garden tap or similar which is to be clearly marked as not to be used for drinking purposes.

NOTE 9: The tank is to be fitted with measures to prevent mosquito breeding.

NOTE 10: Upon completion, certification from a suitably qualified person is to be submitted to the Principal Certifying Authority with respect to this condition being satisfied.

NOTE 11: This requirement does not apply where the Applicant considers installation to be impracticable

CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING

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

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

Tree/Location Radius in Metres
Syncarpia glomulifera (Turpentine #’s 23, 24, 25 and 26) 3.0m
Adjacent to southern (rear) site boundary

Pittosporum undulatum (Native Daphne #19) 3.0m
Adjacent to western site boundary/Dwelling 6 within neighbouring property

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

52. Upon completion of the installation of the required tree protection measures you are required to contact Council on telephone [phone] or facsimile 9418 1117 to arrange an inspection of the site, in this regard a minimum of 24 hours notice is required. Following the carrying out of a satisfactory inspection and subject to the payment of all relevant monies and compliance with any other conditions of approval, work may commence.

CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION

53. If required, the construction of the required interallotment drainage system must be completed in full prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate. The designing engineer or equivalent professional engineer must supervise the works. At the completion of works, and prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, the following shall be submitted to the Principal Certifying Authority (PCA):

a. Certification from the supervising engineer that that the as-constructed works comply with the approved interallotment design documentation, and
b. A full works-as-executed drawing of the as built drainage line (dimensions, grades, materials, invert levels) prepared by a registered surveyor, and
c. Certification from the surveyor that all drainage structures are wholly contained within the drainage easement(s).

54. Prior to occupation, or the issue of an Occupation Certificate or the issue of a Subdivision Certificate, all disused driveway crossings, pipe crossing and/or kerb laybacks are to be reinstated as footway and kerb and/or gutter to the satisfaction of Council’s Development Engineer. Reinstatement works to generally match surrounding infrastructure. Any infrastructure within the road reserve along the frontage of the subject site or within close proximity which has been damaged as a result of construction works on the subject site is to be repaired to the satisfaction of Council’s Development Engineer, at the Applicants cost.

55. In order to maintain Council’s database of as-constructed on-site stormwater detention systems, if the Principal Certifying Authority is not Council then a copy of the approved stormwater detention design, the works-as-executed drawings and the Engineer’s certification of the as-constructed system is to be provided to Council, attention Development Engineer, prior to occupation, or the issue of an Occupation Certificate or the issue of a Subdivision Certificate.

56. Construction of the driveway and passing bay are to be supervised and upon completion certified by a suitably qualified and experienced civil engineer that the works were carried out in accordance with AS2890.1- “Off street car parking”. Certification must be provided to the Principal Certifying Authority prior to occupation, or the issue of an Occupation Certificate, or issue of the Subdivision Certificate.

57. Construction of the property stormwater drainage works is to be supervised and upon completion certified by a suitably qualified and experienced civil/hydraulic engineer, prior to occupation, or the issue of an Occupation Certificate, or the issue of s Subdivision Certificate, that:

a) The works were carried out and completed in accordance with the approved plans.
b) All enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

A Works-as-Executed drawing of the property stormwater drainage system prepared by a registered surveyor is also to be furnished by the Certifier Prior to issue of the Final Compliance Certificate.

58. Provision of certification by a suitably qualified and experienced hydraulic engineer that the stormwater pollution control works were carried out in accordance with the approved drawings prior to occupation, or issue of the Occupation Certificate.

59. Construction of the On-site Stormwater Detention System is to be supervised and upon completion a Certificate and Works-as-Executed (WAE) plan is to be submitted to the Principal Certifying Authority for approval, prior to occupation, or the issue of an Occupation Certificate, or the issue of a Subdivision Certificate. Certification is to be provided by a suitably qualified civil/hydraulic engineer and the WAE plan is to be prepared by a registered surveyor. The certifying engineer must to also complete and submit Council’s standard On-site Stormwater Detention Certification sheet.

The Certificate is to be with respect to compliance with:

· Compatibility of the drainage system with the approved plans
· The soundness of the structure.
· The adequacy of the outlet control mechanism to achieve the discharge as specified.
· The capacity of the detention storage as specified.
· The size of the orifice or pipe control fitted.
· The maximum depth of storage over the outlet control.
· The adequate provision of a debris screen.
· The inclusion of weepholes in the base of the outlet control pit.
· The provision of an emergency overflow path.
· All enclosed floor areas, including habitable and garage floor levels, being safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

The Works-as-Executed drawing(s) are to include all relevant levels including:

· invert levels
· surface or pavement levels
· floor levels including adjacent property floor levels
· maximum water surface level to be achieved in the storage zone
· dimensions of basin(s), tank(s), pit(s), etc.
· location(s) of basin(s), tank(s) and distances from buildings, boundaries, and easements, etc.
· storage volume(s) provided and supporting calculations
· size of orifice(s)

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

BUILDING CONDITIONS

61. The following are required details and must be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify.

a. Details prepared by a practicing structural engineer for all or any reinforced concrete, structural steel or timber framing.
b. Upper floor joist details, engineered or complying with AS 1684-1992 National Timber Framing Code.
c. Retaining walls and associated drainage.
d. Wet area waterproofing details complying with the Building Code of Australia.
e. Mechanical ventilation details complying with Australian Standard 1668-1993 Mechanical Ventilation & Airconditioning.
f. Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code.

62. The building works are to be inspected during construction by the Council, an accredited certifier or other suitably qualified person/s (as applicable) and a Compliance Certificate shall be issued prior to proceeding to the subsequent stages of construction, encompassing not less than the following stages:

a. All sediment and erosion control and tree protection measures and installations in place on the site prior to the commencement of any earthworks, excavations or other work.
b. Any pier holes and/or foundation material.
c. Any steel reinforcement prior to placement of concrete. This includes all reinforcement of floors, slabs, trenches, columns, beams and stairs (if components of this structure).
d. Any structural components (i.e. timber framework, structural steelwork or the like) before fixing any lining or covering.
e. Any stormwater drainage works prior to covering.
f. The completed landscape works in accordance with the approved plans.
g. The completed structure prior to occupation.

The required inspection fees (which also covers the issue of the Compliance Certificate) are to be paid to the Council before the issue of a Construction Certificate for this development.

If inspections are to be carried out by Council, 24 hours notice is required by Council's Department of Environmental and Regulatory Services, by telephoning Customer Service on 9424 0888 during business hours (8.30am to 4.30pm) or by facsimile on 9418 1117.

Note: Inspections of work which is found to be defective or not ready will attract a reinspection fee. Please cancel bookings which will not be ready for inspection.

63. For the purpose of safety and convenience a balustrade of 1.0 metre minimum height shall be provided to any landing, verandah, balcony or stairway of a height exceeding 1.0 metre above finished ground level. The design may consist of vertical or horizontal bars but shall not have any opening exceeding 125mm. For floors more than 4.0 metres above the ground, any horizontal elements within the balustrade or other barrier between 150mm and 760mm above the floor must not facilitate climbing.

64. For the purpose of safe ingress and egress the stairs are to be constructed within the following dimensions:
Risers: Maximum 190mm Minimum 115mm
Going (Treads): Maximum 355mm Minimum 240mm

Note: Dimensions must also comply with limitations of two (2) Risers and one (1) going equalling a maximum 700mm or minimum 550mm. The Risers and Goings shall be uniform throughout the length of the stairway.

65. For fire safety an automatic fire detection and alarm system shall be installed throughout the dwelling in accordance with the following requirements:
a. A smoke alarm system complying with Part 3.7.2 of the Building Code of Australia Housing Provisions; or
b. Smoke alarms which:
i. comply with Australian Standard 3786 or listed in the Scientific Services Laboratory Register of Accredited Products (all accredited products should have scribed on them the appropriate accreditation notation); and
ii. are connected to the mains and have a standby power supply; and
iii. are installed in suitable locations on or near the ceiling and as prescribed under Part 3.7.2 of the Building Code of Australia Housing Provisions.


To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority.

66. The applicant is to provide, with the consent of the owners, double glazing to the east facing windows to Bedrooms 2 and 3 of No 36 Tennyson Avenue, Turramurra.
END OF CONDITIONS

S J Watts
Commissioner of the Court

In the Land and
Environment Court
of New South Wales

No. 10862 of 2004

Nick, Simon and Victor Matouk

Applicant

Ku-ring-gai Council

Respondent

Order

The Court orders that:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 218/04, for Torrens title subdivision of Stage 1 and Stage 2, (Appeal No 10862), lodged with the respondent council on 8 March 2004, under the provisions of State Environmental Planning Policy No 53, (SEPP53) and Ku-ring-gai Planning Scheme Ordinance (KPSO) at Lot 7 DP 12723 and Lot 11 DP 4323, being Nos 32-34 Tennyson Road, Turramurra, is approved subject to Conditions 1 to 15 in Annexure B.

3. The exhibits are retained.

Ordered: 24 November 2004

By the Court

Susan Dixon
Registrar
sw

Appeal No: 10862 of 2004

Conditions of development consent

Annexure B

Nick, Simon and Victor Matouk v Ku-ring-gai Council

Premises: Nos 32-34 Tennyson Avenue, Turramurra
Development Application No. 218/04

Torrens title subdivision of constructed dual occupancy of the amalgamated site into two allotments being Lot 11 and Lot 12 Stage II

GENERAL CONDITIONS

1. The development to be in accordance with Development Application No 218/04 and Development Application plans prepared by N K Bennett & O’Donnell, reference number 9316-2B1, dated 16 January 2004 and lodged with Council on 8 March 2004 and Revised Landscape Masterplan (06.04/123) prepared by Ian Jackson Landscape Architect Pty Limited dated November 2004; Landscape Specification prepared by Ian Jackson Landscape Architect Pty Limited dated November 2004; and Revised Concept Stormwater Drainage Plans D1 Revision A and D2 Revision A, prepared by AFEC Environment and Building Consulting Engineers, Job No 343175, dated June 2004.

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

CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE

3. The appropriate fees set out in Councils adopted Schedule of Fees and Charges is payable to Council, prior to the issue of the Subdivision Certificate.

4. For endorsement of the linen plan/issue of the subdivision certificate, the applicant shall submit an original plan of subdivision plus six (6) copies, suitable for endorsement by Council. The following details must be submitted with the plan of subdivision and copies:

* Council’s Subdivision Lodgement Form, available from Council’s Customer Services.
* The endorsement fee current at the time of lodgement,
* The 88B Instruments plus six (6) copies,
* A copy of the Occupation Certificate.
* The Consulting Engineer's certification of the on-site stormwater detention facility. This must be on the standard Council on-site detention certification sheet, available from Council.
* A copy of all works-as-executed plans required under the consent,
* All Surveyor’s and/or Consulting Engineer’s certification(s) required under this consent,
* The Section 73 (Sydney Water) Compliance Certificate for the subdivision.

Council will check the consent conditions on the subdivision. Failure to submit the required information will delay endorsement of the linen plan, and may require payment of rechecking fees.

Note 1: Plans of subdivision and copies must not be folded.
Note 2: Council will not accept bonds in lieu of completing subdivision works.

5. For endorsement of the linen plan / issue of the subdivision certificate, the Applicant shall submit an original instrument under Section 88B of the Conveyancing Act 1919 with the plan of subdivision, plus six (6) copies. This is to create any required easements, rights-of-carriageway, positive covenants, restrictions-on-use or other burdens/benefits as may be required. Ku-ring-gai Council must be named as the authority whose consent is required to release, vary or modify the same.

6. The Subdivision Certificate shall not be issued from the Certifying Authority until the dwellings approved in consent DA 217/04 have been completed to lock-up stage.

7. All on-site stormwater detention and associated drainage works required under DA 217/04 are to be completed to the satisfaction of Council prior to the issue of the Subdivision Certificate.

8. The developer shall submit to the Certifying Authority a letter from the energy supply authority and either Telstra or Optus confirming that satisfactory arrangements have been made for the provision of underground telephone and power services, prior to issue of the Subdivision Certificate.

NOTE 5: If a landscaped surface type detention system is used the storage volume required is to be increased by 20%.

NOTE 6: The standard Council On-site Stormwater Detention Calculation Sheet is to be completed and included on design drawings. This is available from Council upon request.

25. The relocation or adjustment of any utility service facilities must be carried out by the Applicant in accordance with the requirements of the utility authority at no cost to Council.

26. The public footways and roadways adjacent to the site are to be maintained in a safe condition, at all times, during the course of the works. A safe pedestrian circulation route a minimum of 1.5m wide and with a pavement free of trip hazards must be maintained at all times on or adjacent to the public footways fronting the construction site. Where the footpath is damaged, repair works must be carried when directed by Council officers and in accordance with the relevant clauses of the current edition of Council’s Specification for Drainage and Road Works.

Where circulation is diverted on to the roadway clear directional signage and protective barricades must be installed in accordance with Aust AS1742-3 1996 “Traffic Control Devices for Work on Roads” .

If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

27. The provision of temporary sediment and erosion control facilities and measures are to be installed, prior to the commencement of any works on the site to minimise and/or eliminate unnecessary erosion and loss of sediment. These facilities must be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps must be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority, with all silt being removed from the site, or to an approved location within the site.

28. Construction of the concrete access driveway to the proposed dwellings. The driveway entrance and crossing width is to be widened in order to comply the AS2890.1 requirement for a 5.5m width for the first 6 metres from the road kerb. The balance of the driveway is to be constructed with a minimum clear width between adjacent obstructions of 3.0 metres in accordance with Australian Standard 2890.1 “Off-street car parking”.

29. Provision of a passing bay is to be provided in accordance with AS2890.1 – “Off street car parking” where sight distance from one end to the other is restricted and/or the length of driveway exceeds 30 metres.

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

31. To prevent surface stormwater from entering the building, the finished habitable ground floor level(s) of the building shall be a minimum of 150mm above adjacent finished ground level(s). The entire outside perimeter of the building must have overland flow escape routes which will protect all finished floor levels from flooding during times of complete subsurface drainage blockage.

CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE

32. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate.

Note: Required if cost of works exceed $25,000.00.

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

34. The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project.

35. Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act, 1979 (the 'Act') 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.
c. Council is to be notified in writing, at least two (2) days prior to the intention of commencing buildings works, in accordance with Section 81A(2)(c) of the Act.
d. Should the development be certified by a Principal Certifying Authority other than Council, a fee for each Part 4A Certificate is to be paid to Council on lodgement of those Certificates with Council.

36. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area.

TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF ONE ADDITIONAL DWELLING IS CURRENTLY $12,459.72. The amount of the payment shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council’s Section 94 Contributions Plan to reflect changes in land values, construction costs and the consumer price index.

This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council’s adopted Section 94 Contributions Plan for Residential Development, effective from 20 December 2000, calculated for additional person as follows:

1. Preparation of New Residents Kit $10.98
2. New Resident Survey $9.87
3. New child care centre
(including land acquisition and construction of facility) $252.13
4. Additions/alterations to Acron Rd child care centre
for additional 20 places $2.41
5. New Library bookstock $17.95
6. New Public Art $2.93
7. Acquisition of Open Space -Turramurra/Warrawee $1,966.00
8. Koola Park upgrade and reconfiguration $143.09
9. North Turramurra Sportsfield development $986.80
10. Section 94 2000-2003 Study and Interim Plan preparation cost $49.34
11. Section 94 Officer for period of Plan 2000-2003 $118.42

To obtain the total contribution figure the following table of occupancy rates is to be used:

OCCUPANCY RATES FOR DIFFERENT DWELLING SIZES

Small dwelling (under 75 sqm) 1.25 persons
Medium dwelling (75 - under 110 sqm) 1.75 persons
Large dwelling (110 - under 150sqm) 2.75 persons
Very Large dwelling (150sqm or more) 3.5 persons
New Lot 3.5 persons

37. DRIVEWAYS AND FOOTPATHS: Approval of this Development Application is for works wholly within the property and does not imply approval of footpath or driveway levels, materials or location within the road reserve regardless of whether this information is shown on the Application.

Footpath and driveway levels at the property boundary/road alignment are to be obtained from Council prior to release of the Construction Certificate. All footpaths and driveways are to be constructed strictly in accordance with Council's specifications "Construction of Gutter Crossings and Footpath Crossings". This is issued with alignment levels after completing the necessary application form at Customer Services and payment of the appropriate fee.
The grading of such footpaths or driveways outside the property are to comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant, and this may be affected by the alignment levels fixed by Council.

Note 1: The construction of footpaths and driveways outside the property, in materials other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations.

Note 2: When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant Development Application drawing which indicates the position and proposed level (if applicable) of the proposed driveway at the boundary alignment. Failure to submit this information may delay processing.

38. The property drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) shall be designed and based upon a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) for impervious surfaces. Design drawings and calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Council's Stormwater Management Manual and the national Plumbing and Drainage Code. These must be submitted to and approved by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

NOTE 1: The property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist’s certification that such excavation will not affect the longevity of the subject tree(s).

NOTE 2: If the proposed drainage system involves piping underneath or within the building then the designer is to certify that the design is in accordance with AS3500.3.2:1998 and the BCA.

NOTE 3: All enclosed floor areas, including habitable and garage floor levels, are to be safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

39. The stormwater plan prepared by AFCE, Drawing No. 343175-D1 and D2, Revision A, dated 9/6/04, shall be amended to, but not limited to the following:
Provision of a stormwater pollution control device(s) shall be provided since the amalgamated site (under DA217/04) is in excess of 2000m2;

Full design drawings of the proposed method of achieving the requirements for on-site stormwater detention including the above issues and all supporting calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Council requirements. These must be submitted to and approved by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

40. For stormwater retention, provision of a 2000 litre rainwater tank within the subject property designed to capture and retain runoff from at least one roof downpipe after which runoff bypasses the tank and reverts to the main drainage system. Design drawings are to be prepared by a suitably qualified and experienced civil/hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

NOTE 1: The tank is to be located at or above existing natural ground level.

NOTE 2: If abutting a wall of the dwelling, the tank must be below the eaves line.

NOTE 3: The tank must not be located on the front façade of a dwelling.

NOTE 4: If the tank is to be attached to a structure then a structural engineer is to certify the adequacy of the design of the structure to carry the tank.

NOTE 5: Maximum height of the tank is 1.8 metres above natural ground level where installed along the side boundary setback of a dwelling.

NOTE 6: The tank is to be a commercially manufactured tank designed for the use of water supply and to be installed in accordance with manufacturers specifications.

NOTE 7: The tank is to be located above an available landscaped area so that the tank may be readily used for watering purposes.

NOTE 8: The tank is to be fitted with a standard garden tap or similar which is to be clearly marked as not to be used for drinking purposes.

NOTE 9: The tank is to be fitted with measures to prevent mosquito breeding.

NOTE 10: Upon completion, certification from a suitably qualified person is to be submitted to the Principal Certifying Authority with respect to this condition being satisfied.

NOTE 11: This requirement does not apply where the Applicant considers installation to be impractical.

CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING

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

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

Tree/Location Radius in Metres
# 3Corymbia maculata (Spotted Gum) 2.5m
Centrally located adjacent to the northern (front) site boundary
(Tree is identified as #5 on the submitted Landscape Plan)

#61 Lagerstroemia indica (Crepe Myrtle) 3.0m
Adjacent to the eastern site boundary within the front
setback of Dwelling 1
(Tree is identified as #21 on the submitted Landscape Plan)

#9 Chamaecyparis obtusa (Hinoki Cypress) 3.5m
Adjacent to the western site boundary
(Tree identified as #11 on the submitted Landscape Plan)

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

44. Upon completion of the installation of the required tree protection measures you are required to contact Council on telephone [phone] or facsimile 9418 1117 to arrange an inspection of the site, in this regard a minimum of 24 hours notice is required. Following the carrying out of a satisfactory inspection and subject to the payment of all relevant monies and compliance with any other conditions of approval, work may commence.

CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION

45. Prior to occupation, or the issue of an Occupation Certificate or the issue of a Subdivision Certificate, all disused driveway crossings, pipe crossing and/or kerb laybacks are to be reinstated as footway and kerb and/or gutter to the satisfaction of Council’s Development Engineer. Reinstatement works to generally match surrounding infrastructure. Any infrastructure within the road reserve along the frontage of the subject site or within close proximity which has been damaged as a result of construction works on the subject site is to be repaired to the satisfaction of Council’s Development Engineer, at the Applicants cost.

46. In order to maintain Council’s database of as-constructed on-site stormwater detention systems, if the Principal Certifying Authority is not Council then a copy of the approved stormwater detention design, the works-as-executed drawings and the Engineer’s certification of the as-constructed system is to be provided to Council, attention Development Engineer, prior to occupation, or the issue of an Occupation Certificate or the issue of a Subdivision Certificate.

47. Construction of the driveway and passing bay are to be supervised and upon completion certified by a suitably qualified and experienced civil engineer that the works were carried out in accordance with AS2890.1- “Off street car parking”. Certification must be provided to the Principal Certifying Authority prior to occupation, or the issue of an Occupation Certificate, or issue of the Subdivision Certificate.

48. Construction of the property stormwater drainage works is to be supervised and upon completion certified by a suitably qualified and experienced civil/hydraulic engineer, prior to occupation, or the issue of an Occupation Certificate, or the issue of s Subdivision Certificate, that:

The works were carried out and completed in accordance with the approved plans.
All enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

A Works-as-Executed drawing of the property stormwater drainage system is also to be furnished by the Certifier Prior to issue of the Final Compliance Certificate.

49. Construction of the On-site Stormwater Detention System is to be supervised and upon completion a Certificate and Works-as-Executed (WAE) plan is to be submitted to the Principal Certifying Authority for approval, prior to occupation, or the issue of an Occupation Certificate, or the issue of a Subdivision Certificate. Certification is to be provided by a suitably qualified civil/hydraulic engineer and the WAE plan is to be prepared by a registered surveyor. The certifying engineer must to also complete and submit Council’s standard On-site Stormwater Detention Certification sheet.

The Certificate is to be with respect to compliance with:

· Compatibility of the drainage system with the approved plans
· The soundness of the structure.
· The adequacy of the outlet control mechanism to achieve the discharge as specified.
· The capacity of the detention storage as specified.
· The size of the orifice or pipe control fitted.
· The maximum depth of storage over the outlet control.
· The adequate provision of a debris screen.
· The inclusion of weepholes in the base of the outlet control pit.
· The provision of an emergency overflow path.
· All enclosed floor areas, including habitable and garage floor levels, being safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

The Works-as-Executed drawing(s) are to include all relevant levels including:

· invert levels
· surface or pavement levels
· floor levels including adjacent property floor levels
· maximum water surface level to be achieved in the storage zone
· dimensions of basin(s), tank(s), pit(s), etc.
· location(s) of basin(s), tank(s) and distances from buildings, boundaries, and easements, etc.
· storage volume(s) provided and supporting calculations
· size of orifice(s)

BUILDING CONDITIONS

50. The following are required details and must be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify.

a. Details prepared by a practicing structural engineer for all or any reinforced concrete, structural steel or timber framing.
b. Upper floor joist details, engineered or complying with AS 1684-1992 National Timber Framing Code.
c. Retaining walls and associated drainage.
d. Wet area waterproofing details complying with the Building Code of Australia.
e. Mechanical ventilation details complying with Australian Standard 1668-1993 Mechanical Ventilation & Airconditioning.
f. Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code.

51. The building works are to be inspected during construction by the Council, an accredited certifier or other suitably qualified person/s (as applicable) and a Compliance Certificate shall be issued prior to proceeding to the subsequent stages of construction, encompassing not less than the following stages:

a. All sediment and erosion control and tree protection measures and installations in place on the site prior to the commencement of any earthworks, excavations or other work.
b. Any pier holes and/or foundation material.
c. Any steel reinforcement prior to placement of concrete. This includes all reinforcement of floors, slabs, trenches, columns, beams and stairs (if components of this structure).
d. Any structural components (i.e. timber framework, structural steelwork or the like) before fixing any lining or covering.
e. Any stormwater drainage works prior to covering.
f. The completed landscape works in accordance with the approved plans.
g. The completed structure prior to occupation.

The required inspection fees (which also covers the issue of the Compliance Certificate) are to be paid to the Council before the issue of a Construction Certificate for this development.

If inspections are to be carried out by Council, 24 hours notice is required by Council's Department of Environmental and Regulatory Services, by telephoning Customer Service on 9424 0888 during business hours (8.30am to 4.30pm) or by facsimile on 9418 1117.

Note: Inspections of work which is found to be defective or not ready will attract a reinspection fee. Please cancel bookings which will not be ready for inspection.

52. For the purpose of safety and convenience a balustrade of 1.0 metre minimum height shall be provided to any landing, verandah, balcony or stairway of a height exceeding 1.0 metre above finished ground level. The design may consist of vertical or horizontal bars but shall not have any opening exceeding 125mm. For floors more than 4.0 metres above the ground, any horizontal elements within the balustrade or other barrier between 150mm and 760mm above the floor must not facilitate climbing.

53. For the purpose of safe ingress and egress the stairs are to be constructed within the following dimensions:

Risers: Maximum 190mm Minimum 115mm
Going (Treads): Maximum 355mm Minimum 240mm

Note: Dimensions must also comply with limitations of two (2) Risers and one (1) going equalling a maximum 700mm or minimum 550mm. The Risers and Goings shall be uniform throughout the length of the stairway.

54. For fire safety an automatic fire detection and alarm system shall be installed throughout the dwelling in accordance with the following requirements:

a. A smoke alarm system complying with Part 3.7.2 of the Building Code of Australia Housing Provisions; or
b. Smoke alarms which:

i. comply with Australian Standard 3786 or listed in the Scientific Services Laboratory Register of Accredited Products (all accredited products should have scribed on them the appropriate accreditation notation); and
ii. are connected to the mains and have a standby power supply; and
iii. are installed in suitable locations on or near the ceiling and as prescribed under Part 3.7.2 of the Building Code of Australia Housing Provisions.


To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority.
END OF CONDITIONS

S J Watts
Commissioner of the Court

In the Land and
Environment Court
of New South Wales

No. 10866 of 2004

Nick, Simon and Victor Matouk

Applicant

Ku-ring-gai Council

Respondent

Order

The Court orders that:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 222/04 for Torrens title subdivision of Stages 5A and 5B – Stage 6, (Appeal No 10866), lodged with the respondent council on 8 March 2004, under the provisions of State Environmental Planning Policy No 53, (SEPP53) and Ku-ring-gai Planning Scheme Ordinance (KPSO) at Lot 7 DP 12723 and Lot 11 DP 4323, being Nos 32-34 Tennyson Road, Turramurra, is approved subject to Conditions 1 to 16 in Annexure F.

3. The exhibits are retained.

Ordered: 24 November 2004

By the Court

Susan Dixon
Registrar
sw

Appeal No: 10866 of 2004

Annexure F

Nick, Simon and Victor Matouk v Ku-ring-gai Council

Premises: Nos 32-34 Tennyson Avenue, Turramurra
Development Application No. 222/04

Subdivision of the two constructed detached dual occupancies on the previously subdivided land (DA 221/04) from two allotments being lot 111 on 121 – Stage VI

GENERAL CONDITIONS

1. The development to be in accordance with Development Application No 222/04 and Development Application plans prepared by N.K. Bennett and O’Donnell, reference number 9316-4B1, dated 16 January 204 and lodged with Council on 8 March 2004 and 18 June 2004 and Revised Landscape Masterplan (06.04/123) prepared by Ian Jackson Landscape Architect Pty Limited dated November 2004; Landscape Specification prepared by Ian Jackson Landscape Architect Pty Limited dated November 2004; and Revised Concept Stormwater Drainage Plans D1 Revision A and D2 Revision A, prepared by AFEC Environment and Building Consulting Engineers Job No 343175 dated June 2004.

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

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

CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF A SUBDIVISION CERTIFICATE

4. The appropriate fees set out in Councils adopted Schedule of Fees and Charges is payable to Council, prior to the issue of the Subdivision Certificate.

5. For endorsement of the linen plan/issue of the subdivision certificate, the applicant shall submit an original plan of subdivision plus six (6) copies, suitable for endorsement by Council. The following details must be submitted with the plan of subdivision and copies:

a. The endorsement fee current at the time of lodgement.
b. The 88B Instruments plus six (6) copies.
c. Council’s Subdivision Lodgement Form, available from Council’s Customer Services.
d. A copy of the Occupation Certificate.
e. The Consulting Engineer's certification of the on-site stormwater detention facility. This must be on the standard Council on-site detention certification sheet, available from Council.
f. A copy of all works-as-executed plans required under the consent.
g. All Surveyor’s and/or Consulting Engineer’s certification(s) required under this consent.
h. The Section 73 (Sydney Water) Compliance Certificate for the subdivision.

Council will check the consent conditions on the subdivision. Failure to submit the required information will delay endorsement of the linen plan, and may require payment of rechecking fees.

Note 1: Plans of subdivision and copies must not be folded.
Note 2: Council will not accept bonds in lieu of completing subdivision works.

6. For endorsement of the linen plan / issue of the subdivision certificate, the Applicant shall submit an original instrument under Section 88B of the Conveyancing Act with the plan of subdivision, plus six (6) copies. This is to create any required easements, rights-of-carriageway, positive covenants, restrictions-on-use or other burdens/benefits as may be required. Ku-ring-gai Council must be named as the authority whose consent is required to release, vary or modify the same.

7. The Subdivision Certificate shall not be issued from the Certifying Authority until the dwellings approved in consent DA 221/04 have been completed to lock-up stage.

8. All on-site stormwater detention and associated drainage works required under DA 221/04 are to be completed to the satisfaction of Council prior to the issue of the Subdivision Certificate.

9. The developer shall submit to the Certifying Authority a letter from the energy supply authority and either Telstra or Optus confirming that satisfactory arrangements have been made for the provision of underground telephone and power services, prior to issue of the Subdivision Certificate.

10. A survey report shall be submitted to the Certifying Authority, which certifies that the development has been constructed in accordance with the terms of DA 221/04 in relation to built-upon area, floor space ratio, building floor levels and setbacks prior to the issue of the subdivision certificate.

11. Prior to release of the linen plan/issue of the subdivision certificate by the Consent Authority, the applicant shall create a Positive Covenant and Restriction on the Use of Land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the site on-site stormwater detention and pollution control facilities. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site detention facilities" (available from Council on request) and to the satisfaction of Council. The location of the on-site detention facilities is to be denoted on the final plan of subdivision.

12. Prior to release of the linen plan/issue of the subdivision certificate the applicant must submit to Council (attention Development Engineers) a copy of the approved stormwater detention design, the works-as-executed drawings and the Engineer’s certification of the as-constructed drainage system. This only applies where Council is not appointed the Principal Certifying Authority (PCA). These details are required to maintain Council’s database of as-constructed on-site stormwater detention systems.

13. Prior to release of the linen plan/issue of the subdivision certificate, the following works must be completed:
a. Construction of the new driveway crossing and layback in accordance with the levels and specifications issued by Council,
b. Removal of all redundant driveway crossings, pipe crossing and/or kerb laybacks. Full reinstatement of these sections to footway, and/or turfed verge and/or kerb and gutter to the satisfaction of Council. Reinstatement works shall match surrounding adjacent infrastructure with respect to marrying of levels and materials.
c. Any sections of damaged grass verge are to be replaced with a non-friable turf of native variety to match existing.

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

14. Prior to release of the linen plan/issue of the subdivision certificate, the applicant shall create all burdens including but not limited to drainage easements, easements for services and rights-of-carriageway, as required. A registered surveyor is to certify, prior to release of the linen plan/issue of the subdivision certificate, that all existing interallotment drainage lines, services and/or driveways are fully contained within the proposed burdens and/or that future provision of such are fully covered by the proposed burdens. Alternatively, where the surveyor is of the opinion that no interallotment easements or rights-of-carriageway are required, then certification to this effect must be submitted to the Principal Certifying Authority (PCA).

15. Creation of suitable drainage easements with minimum widths in accordance with Council’s Water DCP47 over all of the inter-allotment and Council drainage systems.

16. Prior to release of the linen plan/issue of the subdivision certificate, the Section 73 Sydney Water compliance certificate, which refers to the subdivision application, must be obtained and submitted to the Council.
END OF CONDITIONS

S J Watts
Commissioner of the Court