Parker v Waverley Council
[2007] NSWLEC 171
•22 March 2007
Land and Environment Court
of New South Wales
CITATION: Parker v Waverley Council [2007] NSWLEC 171 PARTIES: APPLICANT
RESPONDENT
Luke and Alicia Parker
Waverley CouncilFILE NUMBER(S): 11166 of 2006 CORAM: Hoffman C KEY ISSUES: Appeal :- s 34 Conference, demolish existing house and erect a three level house stepped above the garage, Conditions of Consent No. DA - 556/2006, height, roof top terrace, side setback to public lane, fencing to lane, landscape proposal. LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996DATES OF HEARING: 22/03/2007 EX TEMPORE JUDGMENT DATE: 22 March 2007 LEGAL REPRESENTATIVES: APPLICANT
Mr G. Green, solicitor
of Pike Pike & FenwickRESPONDENT
Mr M. Staunton, solicitor
Staunton Beattie Solicitors
JUDGMENT:
- The Court orders that:
1. The appeal is upheld in part.
2. Conditions a), b), c), d) and e) in Attachment A of Consent No. DA 556/2006 are deleted in the approval for demolition of existing and construction of a new house at No. 63 Gardyne Street, Bronte Beach.
3. Conditions 1 and 4 are amended as in Annexure A hereto.
4. Condition 5 is retained.
Annexure “A”
Conditions of Consent
Luke & Alicia Parker v Waverley Council
63 Gardyne Street, BRONTE NSW 2024
Development Consent DA 556/2006 is granted to demolition of existing building and erection of a new house subject to the following conditions.
A. Approved Development
1. Approved Development
The development to be in accordance with architectural plans prepared by John Smith and Associates, Architectures, Plan Nos DA1, DA2, DA4, DA5 & DA19, dated July 2006 3A, 6A, 7A, 8A, 9A, 10A, 12A, 13A, 14A, 15A dated January 2007, DA11B dated March 2007 and landscape plans by Lorna Harrison P/L drawing nos. 423.1 and 423.2 except where amended by the following conditions of consent;
2. general modifications
(a) An amended landscape plan is required to be submitted detailing additional local native tree species. Certain trees identified by the Tree Manager can either be removed or relocated on site. However, the applicant is to confer with the Council’s Tree Manager in respect to the removal / relocation of such trees to ensure that such operations are conducted in a satisfactory manner.
(b) The existing 8m Bangalow Palms in the rear yard adjacent to the southeast corner of the proposed pool are to be retained or relocated on site.
3. LANDSCAPE PLAN
The applicant submit another landscape plan that includes Albert Lane adjacent to the subject property and in front of the property in Gardyne Street, to be approved by the Director, Planning & Environmental Services and then implemented as part of the construction works.
4. other modifications
The proposal shall be amended as follows:-
Materials and external finishes to Albert Lane shall be carried out in accordance with drawing no. DA11B prepared by John Smith & Associates architects.
In general external sandstone finish to the building is to be a high quality load bearing finish.
Modification to be approved by the project’s principal certifying authority and to be included as part of the Construction Certificate for the development.The fence details shown east of the building on Albert Lane shall be deleted and replaced with a landscape treatment / planter a minimum 1.0m wide with a fence not higher than 1200mm behind and allowing for pedestrian access to the adjoining terrace from the Lane. The landscaping shall be higher than the fence.
5. TOP TERRACE
The top terrace on the original application plans, above the living room, be made a non-trafficable roof (as now shown in drawings in Condition 1 above) in accordance with the applicant’s offer made at the site inspection meeting.
6. DILAPIDATION REPORT
A dilapidation report is to be prepared prior to commencement of any works on the site. This is to record the condition of all surrounding adjacent land, including Gardyne Street steps and trees, Albert Lane walkway and private land adjacent to the site to the north and west. Any damage to adjacent land or to public property is to be made good at the applicant’s expense and where appropriate to the direction of the council ’ s officers.
7. EXCAVATION TO BE LIMITED
Excavation shall be limited to that shown in the approved plans. Excavation, proposed or undertaken in the certification or construction of the development, that results in additional habitable or non-habitable floor space (including storage) shall require the submission of a new development application or Section 96 application to modify the approved development. During consideration of this application construction work on site shall cease without prior agreement of Council. Failure to comply with this condition may lead to Council prosecuting or taking a compliance action against the development for breach of its consent.
B. Compliance Prior to Issue of Construction Certificate
8. section 94 contribution
A cash contribution is payable to Waverley Council pursuant to section 94A of the Environmental Planning and Assessment Act 1979 and the "Waverley Council Development Contributions Plan 2006” in accordance with the following:
(a) A cost report indicating the itemised cost of the development shall be completed and submitted to Council:
1. Where the total development cost is less than $500,000:
"Waverley Council Cost Summary Report"; or,
2. Where the total development cost is $500,000 or more:
"Waverley Council Registered Quantity Surveyor's Detailed Cost Report".
A copy of the required format for the cost reports may be obtained from Waverley Council Chambers (First Floor) or downloaded from:
(b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000.Advisory NoteWaverley Council Development Contributions Plan 2006 may be inspected at Waverley Council Chambers, First Floor, Cnr Paul Street and Bondi Road, Bondi Junction.
· A development valued at $100,000 or less will be exempt from the levy.
· A development valued at $100,001 - $200,000 will attract a levy of 0.5%.
· A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development.
9. security deposit
A deposit or guarantee satisfactory to Council for the amount of $10,000 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.
This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work.
10. long service levy
A long service levy, as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, is to be paid in respect to this building work. In this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate.
Note : Council acts as an agent for the Long Service Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.2% of building work costing $25,000 or more.
11. no building works prior to release of construction certificate
The building work, including demolition, must not be commenced until:
(a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and
(c) Council is given at least two days Notice in writing of the intention to commence the building works.(b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81A(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and
The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority.
12. hoarding required
A standard A-Class hoarding designed and constructed in accordance with the requirements of the Work Cover Authority being erected on the street alignments of the property, prior to the commencement of building operations, and such hoardings to be maintained during the course of building operations. Details of the hoarding are to be provided to Council prior to issue of the Construction Certificate.
Where the hoarding is to be erected over the footpath or any public place, the approval of Council must be obtained prior to the erection of the hoarding.
13. DETAILS OF EXCAVATION, SHORING OR PILE CONSTRUCTION
A Report shall be prepared by a practising Structural Engineer detailing the proposed methods of excavation, shoring or pile construction, including details of vibration emissions and any possible damage which may occur to adjoining or nearby properties as a result of the proposed building and excavation works. The Report shall be submitted to the Principal Certifying Authority prior to the issue of a Construction Certificate.
Any practices or procedures specified in the Structural Engineer's report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into the plans and specifications together with the Construction Certificate.
A copy of the Structural Engineer's report is to be submitted to Council, if Council is not the Principal Certifying Authority.
14. GEOTECHNICAL ENGINEERS REPORT
A geotechnical engineers report, regarding the stability of the subject site and stating that damage should not occur to any adjoining premises as a result of the proposed bulk excavation, driven type piles and shoring works, is to be submitted to the Principal Certifying Authority, Council and the owners of adjoining premises. The report is to be submitted prior to the issue of a Construction Certificate and commencement of any such works on the site.
15. Construction Vehicle Plan of Management
Submission of a "Construction Vehicle Plan of Management" for the routing and control of construction vehicles accessing and exiting the site. Such plan to address the hours of operation, the employees' vehicles, holding areas for vehicles wanting to access the site and truck works and provide a means of ensuring vehicular and pedestrian access to adjoining resident's properties for the duration of the works. The "Construction Vehicle Plan of Management" is to be approved by Council prior to the issue of a Construction Certificate and the undertaking of any demolition, remediation or construction on the site.
16. SITE WASTE AND RECYCLING MANAGEMENT PLAN
A Site Waste and Recycling Management Plan (SWRMP) Checklist Part 2 shall be submitted to Council for approval in accordance with Council's DCP 19 prior to the issue of the Construction Certificate. In this regard, Council expects demolition and excavated material to be reused and/or recycled wherever possible.
The builder and all subcontractors shall comply with the approved SWRMP (Part 1 and 2) at all times during construction. At least one copy of the SWRMP is to be available on site at all times during construction.
17. EROSION, SEDIMENT AND POLLUTION CONTROL
Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to Council prior to the issuing of a Construction Certificate.
18. STORMWATER MANAGEMENT
All seepage and surface waters and roof waters being collected and disposed of in accordance with Council's Stormwater Policy and this may involve the provision of an on-site detention system (OSD). Details prepared by a Hydraulics Engineer are to be submitted to and approved by the Principle Certifying Authority prior to the issue of a Construction Certificate.
19. VEHICULAR ACCESS
Vehicular access and gradients of vehicle access driveway(s) within the site are to be in accordance with Australian Standard 2890.1 Parking Facilities - Off Street Car Parking with details provided on the plans prior to the issue of the Construction Certificate.
20. LONG SECTION OF DRIVEWAY
A long section of the driveway shall be submitted with the Construction Certificate. The long section is to be drawn at a scale of 1:25 and shall include Reduced Levels (RLs) of the road centreline, kerb, road reserve, and pavement within the property and garage floor. The RLs shall include the existing levels and the design levels.
21. ALL BUILDING MATERIALS STORED ON SITE
All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.
22. BASIX - NEW DWELLING HOUSE
The undertakings provided in the Basix Certificate Number 99988S shall be provided for in the Construction Certificate plans and documentation prior to the issue of the Construction Certificate plans. The Principal Certifying Authority shall be responsible for ensuring that all the undertakings are satisfied prior to the issue of an Occupation Certificate.
The above condition is a prescribed condition under the Environmental Planning and Assessment Act Regulations clause 97A and the above Basix commitments are mandatory and can not be modified under Section 96 of the Environmental Planning and Assessment Act, 1979.
23. USE OF RENEWABLE TIMBERS
Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings so as to help protect the existing areas of rainforest. In this regard, a schedule of proposed timber products to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used.
C. COMPLIANCE PRIOR TO AND DURING CONSTRUCTION
24. PRIOR TO SITE WORKS
The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:
(a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or
(c) any change to these arrangements for doing of the work.(b) the name and permit number of the owner/builder who intends to do the work; and
25. home building act
The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences.
26. CONSTRUCTION SIGNS
Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works.
27. excavation below footings
If an excavation associated with the erection or demolition of a building extends below the level of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made, at their own expense, must:
(a) preserve and protect the building from damage; and
(c) must, at least seven days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.(b) if necessary, must underpin and support the building in an approved manner; and
28. TOILET FACILITIES
Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water.
29. NO USE OF ORGANOCHLORIN PESTICIDES
The use of organochlorin pesticides as termite barriers in new development is prohibited pursuant to Council Policy. Only physical barriers are to be used for termite control. The building shall comply with Australian Standard 3660: Protection of building from subterranean termites - prevention, detection and treatment of infestation.
30. DILAPIDATION REPORT
A dilapidation report prepared by a practising Structural Engineer shall be submitted to the Principal Certifying Authority prior to the commencement of demolition, excavation or building works, detailing the current condition and the status of all buildings, including ancillary structures located upon the adjoining properties.
31. DEMOLITION OR ALTERATION OF PRE 1987 BUILDINGS
At least five (5) days prior to the demolition, renovation work or alterations and additions to any building constructed before 1987, the person acting on the consent shall submit a Work Plan prepared in accordance with Australian Standard AS260-2001, Demolition of Structure and a Hazardous Materials Assessment by a person with suitable expertise and experience. The Work Plan and Hazardous Materials Assessment shall:
(a) outline the identification of any hazardous materials, including surfaces coated with lead paint;
(b) confirm that no asbestos products are present on the subject land; or
(c) particularise a method of safely disposing of the asbestos in accordance with the Code of Practice for the Safe Removal of Asbestos NOHSC 2002 (1998);
(d) describe the method of demolition;
(f) describe the disposal methods for hazardous materials.(e) describe the precautions to be employed to minimise any dust nuisance; and
32. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS
All site works complying with the occupational health and safety requirements of WorkCover NSW.
33. SOIL AND WATER MANAGEMENT PLAN
A Soil and Water Management Plan (also known as an Erosion and Sediment Control Plan) shall be prepared according to SSROC's Soil and Water Management Brochure and the DEC's Managing Urban Stormwater: Construction Activities. This Plan shall be implemented prior to commencement of any works or activities. All controls in the Plan shall be maintained at all time. A copy of the Soil and Water Management Plan must be kept on site at all times and made available to Council officers on request.
34. SOIL AND WATER MANAGEMENT SIGN
Throughout the construction/remediation/demolition period, Council's warning sign for soil and water management must be displayed on the most prominent point of the building site, visible to both the street and site works. A copy of the sign is available from Council.
35. STOCKPILES
Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.
36. LOCATION OF BUILDING OPERATIONS
Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.
37. ALL BUILDING MATERIALS STORED ON SITE
All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.
38. construction hours
Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Saturdays with no work to be carried out on:
(a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;
(c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW.(b) Sundays and public holidays; and
Noise from construction activities shall comply with the Protection of the Environment Operations (Noise Control) Regulation 2000.
39. CONSTRUCTION NOISE - PERIODS GREATER THAN 4 WEEKS AND NOT EXCEEDING 26 WEEKS
The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver.
40. BUILDING CODE OF AUSTRALIA
All building work must be carried out in accordance with the requirements of the Building Code of Australia.
41. quality of construction act - inspections (dwelling houses class 1 and 10)
The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certificate.
MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.
The specified MANDATORY inspections are:
In the case of a Class 1 and 10 building:
(a) at the commencement of building work;
(b) after excavation for, and prior to the placement of, any footings;
(c) prior to pouring any in-situ reinforced concrete building element;
(d) prior to covering of the framework for any floor, roof or other building element;
(e) prior to covering any waterproofing in any wet areas;
(f) prior to covering any stormwater drainage connections; and
(g) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building.Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.The following additional inspections are required to be undertaken by the PCA:
(a) sediment control measures prior to the commencement of building work;
(b) foundation material prior to undertaking building work;
(c) shoring of excavation works, retaining walls, piers, piling or underpinning works;
(d) steel reinforcement, prior to pouring concrete;
(e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns;
(f) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls);
42. ENCROACH BEYOND THE BOUNDARIES
No portion of the proposed building works, including the footings and roof eaves, to encroach beyond the boundaries of the subject property.
43. HOT TAP WATER SCALDING
To reduce the incidence of hot tap water scalding and, for the purpose of energy efficiency, all new or replacement hot water systems shall deliver hot water to a maximum 50 degrees Celsius at the outlet of all sanitary fixtures used for personal hygiene.
44. SMOKE ALARM SYSTEM
A smoke alarm system is to be installed within the building in accordance with the requirements of the Building Code of Australia.
45. CAR PARKING AREA IS TO BE GRADED
The proposed car parking area is to be graded and drained and all surface waters are to be collected and conveyed to the street gutter via underground pipes. A grate drain is to be provided across the front alignment of the hardstand car space.
46. EXISTING VEHICLE CROSSING IS TO BE MODIFIED
The existing vehicle crossing is to be modified to provide access to the proposed basement carpark. A separate application is required for the modified vehicle crossing, with all work to be carried out with the approval of and in accordance with the requirements of Council.
47. VEHICULAR ACCESS - FINISHED LEVEL
The finished level at the property boundary on both sides of the vehicle crossing is to 50mm above the level of the existing concrete footpath.
48. work outside property boundary
All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council at the applicant's expense.
49. Swimming pools
The following requirements apply to the use and operation of the approved pool:
(a) The pool water being treated by an approved water treatment and filtration unit.
(b) The pool is to be fitted with a cover that shall be fitted when the pool is not in use to minimise evaporation and conserve water.
(d) To prevent noise nuisance to surrounding property owners, the pool filtration motor and pump unit is to be relocated on the site to as shown on the DA site plan.(c) To prevent noise nuisance to surrounding properties, the pool filtration motor and pump unit is to be housed within a ventilated soundproof enclosure.
50. construction of swimming pools
The following applies to the construction of swimming pools:
(a) Reinforcement is to be inspected by an Accredited Officer or other suitably qualified person prior to the pouring of concrete;
(b) The electrical wiring system for any proposed underwater artificial lighting installation to the pool being installed in accordance with the requirements of Australian Standard 3000, Part 1 - Wiring Rules;
(c) The finished level of the proposed pool is not to exceed a maximum height of 200mm above the existing natural ground level, RL 44.55.
(e) A final inspection of the completed pool is to be carried out by the Principal Certifying Authority prior to the pool being filled with water.(d) To minimise the likelihood of accidental drowning, the swimming pool is to be provided with a child resistant safety fence, designed and constructed in accordance with the requirements of Australian Standard 1926-1993 "Fencing for Private Swimming Pools". This fencing is to be erected and inspected by the Principal Certifying Authority prior to the pool being filled with water; and
51. POOL DRAINAGE
Waste waters from the proposed pool being discharged into Sydney Water's sewerage system and in this regard, approved plans MUST be submitted to Sydney Water at least fourteen (14) days prior to commencement of building operations.
D COMPLIANCE PRIOR TO OCCUPATION OR DURING OCCUPATION
52. FINAL OCCUPATION CERTIFICATE
The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied.
53. LANDSCAPE PLAN
The site is to be landscaped and turfed in accordance with the approved landscaped plan with the landscape works completed prior to the issue of the Occupation Certificate.
54. LIGHTING
Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 Control of the Obtrusive Effects of Outdoor Lighting .
55. waste storage
The following requirements apply to waste management:
Residential
Amenity
(a) All garbage and recycling must be inside council approved bins, with lids closed to reduce littering, stormwater pollution, odour and vermin.
(b) All organic waste, should be either treated in a composting or worm farming system, or must be stored in a Council approved bin or skip with lid closed(a) All waste and recycling receptacles must be put out for kerb-side collection no earlier than the previous evening.Management
(b) All waste and recycling must be removed from the kerb-side as soon as possible on the same day as the collection service.
56. STREET NUMBER/S
The street number for the property shall be a minimum of 75mm high and shall be positioned 600mm-1500mm above ground level on the site boundary that fronts the street. Should the number be fixed to an awning then it shall be a minimum 150mm high.
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