Pavlovski v Ku-ring-gai Council - [2010] NSWLEC 1197

Land and Environment Court

of New South Wales

CITATION: Pavlovski v Ku-ring-gai Council [2010] NSWLEC 1197

PARTIES:
APPLICANT
Zlatko Pavlovski
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 10096 of 2010

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- whether road widening appropriate - whether non compliances with requirements in local environmental and development control plans can be supported - whether Court bound by direction of Minister under s 94E for s 94 contribution - whether credit should be given for existing dwelling

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No 1
Ku-ring-gai Council Local Environmental Plan (Town Centres) 2010
Ku-ring-gai Scheme Planning Ordinance
Ku-ring-gai Section 94 Contributions Plan 2004-2009 (Amendment 2)

DATES OF HEARING: 20 July 2010, written submissions 22 July 2010

DATE OF JUDGMENT:
28 July 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Hones, solicitor
SOLICITORS
Hones La Hood
RESPONDENT
Mr A Hudson, solicitor
SOLICITORS
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

28 July 2010

10096 of 2010 Zlatko Pavlovski v Ku-ring-gai Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the deemed refusal by Ku-ring-gai Council (the council) for the demolition of all existing structures and the erection of a residential flat building containing 5 units at 22 Pacific Highway, Roseville (the site).

2 Leave was granted on 20 May 2010 for the applicant to rely on amended plans. The amended plans sought to address the contentions raised by the council in their Statement of Facts and Contentions filed on 23 March 2010. As the appeal was lodged as a deemed refusal, the council had not prepared a town planning report on the development application. Similarly, the council had not prepared a town planning report on the amended plans. A table identifying the relevant controls for the development application was however provided indicating whether compliance was achieved or not, for both the original application and the amended plans. Helpfully, town planners Mr Andrew Minto provided oral evidence on the planning contentions for the applicant and Mr Graham Bolton for the council. They agreed that there were no reasons why the development application should not be approved based on the relevant planning controls. When advertised, the development application did not attract any objections.

3 While not raised in the Statement of Facts and Contentions, there was disagreement over a condition requiring the provision of a contribution under s 94 of the Environmental Planning and Assessment Act 1979 (the EPA Act).

4 The main areas addressed at the appeal related to:

Road widening

5 The site is currently partly within Zone R4 High Density Residential and partly within Zone SP2 Infrastructure under Ku-ring-gai Council Local Environmental Plan (Town Centres) 2010 (LEP 2010). This plan became effective on 25 May 2010. Prior to this time, the site was partly within Zone Residential 2(d) and partly reserved for widening of existing county roads (the Pacific Highway) under the Ku-ring-gai Scheme Planning Ordinance (the KPSO). Clause 1.8 of LEP 2010 repeals all local environmental plans and deemed environmental planning instruments however cl 1.8A provides savings provisions where a development application has been made and not determined before the commencement of LEP 2010. The clause provides that the application must be determined as if LEP 2010 had not commenced. It was agreed that cl 1.8A applies to the proposed development.

6 Clause 13(2) of the KPSO provides that where it appears that the purpose for which the land is reserved, that is road widening, cannot be carried out within a reasonable time, the owner of the land, with the consent of the Commissioner of Main Roads, may "erect a building or carry out work or alter a work of a permanent character or make or alter a permanent excavation".

7 The extent of the reservation at the street frontage of the site involves a splay between 11 and 13 m measured along the side boundaries of the site. The evidence provided to the Court (RTA facsimile dated 2 December 1998 - Exhibit 8) states that the road widening scheme shown on the KPSO has been abandoned although some road widening is still contemplated. The land identified in Zone SP2 Infrastructure runs parallel to the Pacific Highway and has a width of 4.9 m. LEP 2010 does not provide detailed plans of Zone SP2 Infrastructure and the 4.9 m width is obtained by scaling from the zone plans. Correspondence from the RTA (Exhibit 7) states "the 3.5 m wide road reservation from Mclaurin Place to No 22 appears to be adequate to accommodate the proposed road works suggested by Council (ie: 3 Northbound lanes)".

8 The proposed development, as amended, provides the opportunity for 3.5 m of the road widening to occur without impacting on the proposed development, particularly stormwater disposal and access grades to the basement car park. The road widening was acceptable to the council after consultation with the RTA.

9 Pursuant to cl 13(2) of the KPSO, and given the evidence from the council and the RTA, I accept that this clause creates no barrier to the approval of the development application.

Planning contentions

10 There was agreement between Mr Minto and Mr Bolton that the amended development did not satisfy a number of the numerical requirements in the KPSO and the Medium Density Residential Development - Development Control Plan 48 (DCP 48). Notwithstanding the departures from the requirements in these documents, Mr Minto and Mr Bolton agreed that the amended development was acceptable.

11 A critical matter in the consideration of any development of the site is that the site area of 716 sq m is considerably less than the minimum area of 1208 sq m under the KPSO. The site has a frontage of 17.07 m and is also considerably less than the minimum frontage in the KPSO of 27.4 m. An objection under State Environmental Planning Policy No 1 - Development Standards (SEPP 1) was provided in the Statement of Environmental Effects and sets out the reasons why strict compliance is unreasonable and unnecessary for the two development standards. Having read the SEPP 1 objection, I agree that the objection is well founded and that strict compliance is unreasonable and unnecessary in this case.

12 Given the zoning of the site that contemplates the erection of residential flat building and that there is little, if any opportunity for site amalgamation to satisfy the KPSO requirements, the assessment of the suitability of the amended plans is largely merit based.

13 The DCP 48 non-compliances relate to setback to the Pacific Highway, floor space ratio, building height plane, side and rear boundary setback, built upon area, built form, common open space, car parking and solar access. Some departures were minor while some were larger however I do not propose to address each of the exceedances individually as I accept the explanations provided orally by Mr Minto and Mr Bolton for the departures from each of the DCP 48 requirements.

14 I am also mindful that the development potential of the site is considerably greater under LEP 2010 than under the KPSO.

S 94 contribution

15 The dispute over the s 94 contribution centres on the direction given by the Minister the Planning on 4 June 2010 (and to take effect on 7 June 2010) pursuant to s 94E of the EPA Act, that states, in part:

(1) A council as a consent authority must not impose a condition of development consent under section 94(1) or 94(3) of the Act requiring the payment of the monetary contribution exceeding $20,000 for each dwelling authorised by the consent or in the case of a development consent that authorises the subdivision of land into residential lots, exceeding $20,000 for each lot authorised by the consent.

16 Condition 33 of the council’s draft conditions provides for a contribution of $127,833.41 based on Ku-ring-gai Section 94 Contributions Plan 2004-2009 (Amendment 2)(the Contribution Plan). Mr Hudson, for the council, submits that the direction refers only to a council as a consent authority and not the Court as a consent authority. On this basis, it is open to the Court to impose a condition requiring a contribution consistent with the Contribution Plan. Further, Mr Hudson submits that s 94B(3) allows the Court to disallow or amend a contribution even if it was determined in accordance with a direction of the Minister because it is unreasonable in the particular circumstances of the case. Section 94B(3) states:

3) A condition under section 94 that is of a kind allowed by a contributions plan (or a direction of the Minister under this Division) may be disallowed or amended by the

on appeal because it is unreasonable in the particular circumstances of that case, even if it was determined in accordance with the relevant contributions plan (or direction). This subsection does not authorise the

to disallow or amend the contributions plan or direction.

17 Mr Hudson further submits that if the Court does not accept a contribution based on the Contribution Plan, then the appropriate contribution is $100,000, based on five lots at $20,000 for each lot. This is based on the Ministers direction of $20,000 for each lot authorised by the consent.

18 Mr Hones, for the applicant, submits that the council can only apply conditions that comply with the Ministers direction and it should follow that the Court should be in the same position. If a "purposive approach " is adopted it would be unreasonable to do anything but comply with the Ministers direction as it would create an unintended consequence and be inconsistent with the Ministers clear intent.

19 Mr Hones submits that it would be unreasonable to not adopt a contribution of $80,000. The $80,000 contribution is calculated on a contribution of $20,000 for each of the five dwellings but with a credit of $20,000 for the existing dwelling on the site.

20 In considering the competing submissions, I am satisfied that the condition proposed by the applicant should be applied. There was no dispute that the appeal was properly constituted under s 97(1) of the EPA. The powers of the Court on appeal are found in s 39 of the Land and Environment Court Act 1979(the Court Act). The relevant parts of s 39 are:

(1) In this section, "appeal" means an

, objection, reference or other matter which may be disposed of by the

in proceedings in Class 1, 2 or 3 of its jurisdiction.

(2) In addition to any other functions and discretions that the Court has apart from this subsection, the Court shall, for the purposes of hearing and disposing of an appeal, have all the functions and discretions which the person or body whose decision is the subject of the appeal had in respect of the matter the subject of the appeal.

(3).

(4) In making its decision in respect of an appeal, the Court shall have regard to this or any other relevant Act, any instrument made under any such Act, the circumstances of the case and the public interest.

21 Importantly, s 39(2) of the Court Act provides that the Court has all the functions and discretions of the council in determining the appeal. It follows, in my view, that this must include the obligations imposed by the Ministers direction. The Ministers direction is also a relevant matter, being a circumstance(s) of the case, as set out in s 39(4).

22 The Court’s consideration of a contribution is not however exhausted at this stage (unlike the council) as a further opportunity to amend a contribution is available through s 94B(3). The discretion available through s 94B(3) is limited and while a contribution, either from a contributions plan or from a direction from the Minister under s 94E, may be disallowed or amended by the Court under this subsection it must be on the basis that the contribution is unreasonable in the particular circumstances of that case. The discretion of the Court does not extend to a general challenge to the Ministers direction, but it is limited to the unreasonableness of a contribution as it relates to a particular situation. In this case, no evidence was provided to show why the contribution is unreasonable in the particular circumstances of this development application (beyond the question of credit for an existing dwelling that is addressed in following paragraphs) and as such the discretion in s 94B(3) is not available to the council.

23 On the issue of credit, I accept that a credit for the existing dwelling on the site is appropriate. Importantly, s 94(1) provides the power for the imposition of a condition under s 94. It provides that a condition can only be imposed where the development "…will or is likely to require the provision of or increase the demand for public amenities and public services …". It is widely accepted that a credit should be granted if there is an existing dwelling or dwellings that form part of a site redevelopment because the existing dwelling or dwellings does not generate the demand for public amenities and public services, as presumably the occupants of the dwelling make use of existing public amenities and public services. Only the additional new dwellings can generate a demand for public amenities and public services.

24 This approach is adopted by the council in their Contributions Plan, at par 8.3, where it states:

8.3 Where a dwellings or dwellings replace an existing dwelling or dwellings on the site, the applicant will be entitled to a credit for existing dwelling or dwellings.

25 There is a valid reason why a credit should be given in this case and pursuant to s 94B(3), the Ministers direction is amended, in the particular circumstances of this case, by providing for a credit for the existing dwelling on the site, thereby requiring the total s 94 contribution in condition 33 to be $80,000.

Orders

26 The Orders of the Court are:

____________
G T Brown
Commissioner of the Court

ATTACHMENT “A”

CONDITIONS OF CONSENT

KU-RING-GAI COUNCIL ATS ZLATKO PAVLOVSKI

22 PACIFIC HIGHWAY ROSEVILLE NSW 2069

The conditions of consent are as follows:

Conditions that identify approved plans:

1. Approved architectural plans and documentation (new development)

The development must be carried out in accordance with the following plans and documentation listed below and, except where amended by other conditions of this consent:

Plan no. Drawn by Dated

00,01,02,03,04,05,06,07,08,09,10,11,12,13,14 and18, Rev F G. Gordon Fuller and Associates 10/05/10

ALP 01/A Botanica May 2010

09124 rev A Site Design 30 October 2009

Document(s) Dated

Basix Certificate No. 278253M 28 October 2009

Reason:

To ensure that the development is in accordance with the determination.

2. Inconsistency between documents

In the event of any inconsistency between conditions of this consent and the drawings/documents referred to above, the conditions of this consent prevail.

Reason: To ensure that the development is in accordance with the determination.

Conditions to be satisfied prior to demolition, excavation or construction:

3. Road opening permit

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 Council (upon payment of the required fee) beforehand.

Reason: Statutory requirement (Roads Act 1993 Section 138) and to maintain the integrity of Council’s infrastructure.

4. Notice of commencement

At least 48 hours prior to the commencement of any development (including demolition, excavation, shoring or underpinning works), a notice of commencement of building or subdivision work form and appointment of the principal certifying authority form shall be submitted to Council.

Reason: Statutory requirement.

5. Dilapidation photos (public infrastructure)

Prior to the commencement of any works on site the applicant must submit to Ku-ring-gai Council and the Principal Certifying Authority a photographic record on the visible condition of the existing public infrastructure over the full site frontage (in colour - preferably saved to cd-rom in ‘jpg’ format). The photos must include detail of:

The existing footpath
The existing kerb and gutter
The existing full road surface between kerbs
The existing verge area
The existing driveway and layback where to be retained
Any existing drainage infrastructure including pits, lintels, grates.

Particular attention must be paid to accurately recording any pre-developed damaged areas on the aforementioned infrastructure so that Council is fully informed when assessing damage to public infrastructure caused as a result of the development (which is not to be repaired by the Applicant as part of the development). The developer may be held liable to all damage to public infrastructure in the vicinity of the site, where such damage is not accurately recorded and demonstrated under the requirements of this condition prior to the commencement of any works.

Reason: To protect public infrastructure

6. Dilapidation survey and report (private property)

Prior to the commencement of any demolition or excavation works on site, the Principal Certifying Authority shall be satisfied that a dilapidation report on the visible and structural condition of all structures upon the following lands, has been completed and submitted to Council:

Address

18 Pacific Highway and 26 Pacific Highway

26a Pacific Highway, including the driveway

The dilapidation report must include a photographic survey of adjoining properties detailing their physical condition, both internally and externally, including such items as walls ceilings, roof and structural members. The report must be completed by a consulting structural/geotechnical engineer as determined necessary by that professional based on the excavations for the proposal and the recommendations of the submitted geotechnical report.

In the event that access for undertaking the dilapidation survey is denied by a property owner, the applicant must demonstrate in writing to the satisfaction of the Principal Certifying Authority that all reasonable steps have been taken to obtain access and advise the affected property owner of the reason for the survey and that these steps have failed.

Note: A copy of the dilapidation report is to be provided to Council prior to any excavation works been undertaken. The dilapidation report is for record keeping purposes only and may be used by an applicant or affected property owner to assist in any civil action required to resolve any dispute over damage to adjoining properties arising from works.

Reason: To record the structural condition of likely affected properties before works commence.

7. Geotechnical report

Prior to the commencement of any bulk excavation works on site, the applicant shall submit to the Principal Certifying Authority, the results of the detailed geotechnical investigation comprising a minimum of three cored boreholes to at least 1 metre below the proposed basement level and piezometer standpipes as recommended in the report 23379SP by Jeffery and Katauskas. The report is to address such matters as:

appropriate excavation methods and techniques

vibration management and monitoring

dilapidation survey

support and retention of excavates faces

hydrogeological considerations

The recommendations of the report are to be implemented during the course of the works.

Reason: To ensure the safety and protection of property.

8. Construction and traffic management plan

The applicant must submit to Council a Construction Traffic Management Plan (CTMP), which is to be approved prior to the commencement of any works on site.

RTA approval must be obtained for the CTMP and attached prior to submission to Council.

The plan is to consist of a report with Traffic Control Plans attached.

The report is to contain commitments which must be followed by the demolition and excavation contractor, builder, owner and subcontractors. The CTMP applies to all persons associated with demolition, excavation and construction of the development.

The report is to contain construction vehicle routes for approach and departure to and from all directions.

The report is to contain a site plan showing entry and exit points. Swept paths are to be shown on the site plan showing access and egress for an 11 metre long heavy rigid vehicle.

The Traffic Control Plans are to be prepared by a qualified person (red card holder). One must be provided for each of the following stages of the works:

Demolition

Excavation

Concrete pour

Construction of vehicular crossing and reinstatement of footpath

Traffic control for vehicles reversing into or out of the site.

Traffic controllers must be in place at the site entry and exit points to control heavy vehicle movements in order to maintain the safety of pedestrians and other road users.

When a satisfactory CTMP is received, a letter of approval will be issued with conditions attached. Traffic management at the site must comply with the approved CTMP as well as any conditions in the letter issued by Council. Council’s Rangers will be patrolling the site regularly and fines will be issued for any non-compliance with this condition.

Reason: To ensure that appropriate measures have been considered during all phases of the construction process in a manner that maintains the environmental amenity and ensures the ongoing safety and protection of people.

9. Erosion and drainage management

Earthworks and/or demolition of any existing buildings shall not commence until an erosion and sediment control plan is submitted to and approved by the Principal Certifying Authority. The plan shall comply with the guidelines set out in the NSW Department of Housing manual "Managing Urban Stormwater: Soils and Construction" certificate. Erosion and sediment control works shall be implemented in accordance with the erosion and sediment control plan.

Reason: To preserve and enhance the natural environment.

10. Tree protection fencing

To preserve the following tree/s, no work shall commence until the area beneath their canopy is fenced off at the specified radius from the trunk/s 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.

Schedule

Tree/location Radius from trunk

Cupressus sempervirens (Italian Cypress) Tree 1 2m

Jacaranda mimosifolia (Jacaranda) Tree 11 2m

Jacaranda mimosifolia (Jacaranda) Tree 12 2m

Cupressus sp (Cypress) Tree 14 3m

The tree protection fencing 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 in height prior to work commencing.

Reason : To protect existing trees during construction phase.

11. Tree protection signage

Prior to works commencing, tree protection signage is to be attached to each tree protection zone, displayed in a prominent position and the sign repeated at 10 metres intervals or closer where the fence changes direction. Each sign shall contain in a clearly legible form, the following information:

Tree protection zone.

This fence has been installed to prevent damage to the trees and their growing environment both above and below ground and access is restricted.

Any encroachment not previously approved within the tree protection zone shall be the subject of an arborist's report.

The arborist's report shall provide proof that no other alternative is available.

The Arborist's report shall be submitted to the Principal Certifying Authority for further consultation with Council.

The name, address, and telephone number of the developer.

Reason:

To protect existing trees during the construction phase.

12. Tree protection mulching

Prior to works commencing and throughout construction, the area of the tree protection zone is to be mulched to a depth of 100mm with composted organic material being 75% Eucalyptus leaf litter and 25% wood.

Reason: To protect existing trees during the construction phase.

13. Tree protection – avoiding soil compaction

To preserve the following tree/s and avoid soil compaction, no work shall commence until temporary measures to avoid soil compaction (eg rumble boards) beneath the canopy of the following tree/s is/are installed:

Schedule

Tree/Location

Jacaranda mimosifolia (Jacaranda) Tree 11

Jacaranda mimosifolia (Jacaranda) Tree 12

Cupressus sp (Cypress) Tree 14

Reason:

To protect existing trees during the construction phase.

14. Tree fencing inspection

Upon installation of the required tree protection measures, an inspection of the site by the Principal Certifying Authority is required to verify that tree protection measures comply with all relevant conditions.

Reason: To protect existing trees during the construction phase.

Conditions to be satisfied prior to the issue of the construction certificate:

15. Colour scheme

The proposed external finish colour of green shall be replaced with a subdued colour that responds to the surrounding development. Details are to be submitted to and approved by the Principle Certifying Authority prior to the issue of the Construction Certificate.

Reason : To ensure that the colour of the development is sympathetic with the surrounding development.

15A. Access for people with disabilities (commercial)

Prior to the issue of the Construction Certificate, the Certifting Authority shall be satisfied that access for propel with disabilities from the public domain and all car parking areas on site to all tenancies within the building is provided. Consideration must be given to the means of dignified and suitable access.

16. Road Traffic Noise Intrusion

The recommendations in the DA Acoustic Assessment Report prepared by Heggies Pty Ltd, Report No. 10.8336 Revision 0 dated 14 September, 2009 shall be carried out. Details are to be included with the Construction Certificate Application.

Reason : To maintain satisfactory internal noise levels.

17. Amendments to approved landscape plan

Prior to the issue of a Construction Certificate, the Certifying Authority shall be satisfied that the approved landscape plan, listed below, have been amended in accordance with the requirements of this condition as well as other conditions of this consent:

Plan no. Drawn by Dated

09124 rev A Site Design 30/10/09

ALP 01/A Botanica May 2010

The above landscape plan(s) shall be amended in the following ways:

1. The landscape plan shall be amended to incorporate the landscape regime depicted on Western Portion of the Site, as shown in the plan prepared by Narelle Sonter, 13/05/10 with the remainder of the site to be landscaped in accordance with the Landscape Plan prepared by Site Design, 30/10/09 subject to the following further conditions.

(a) To preserve neighbour amenity, the proposed planting of three (3) Howea fosteriana (Kentia Palm) between the proposed building and the southern boundary is to be substituted with three (3) Elaeocarpus reticulatus (Blueberry Ash) or similar;

(b) To preserve future viability of canopy tree planting to the front setback following the possible excise of 3.5m to accommodate road widening, the proposed planting of Angophora costata and Phoenix canariensis is to be setback a minimum of 5m from the front boundary. The proposed transplanted Canary Palms are to be setback a minimum of 5m from proposed building;

(c) Maintenance access to be provided/shown to access the proposed planter located on the southwestern corner of proposed building;

(d) The retaining wall located along the northern boundary of the subject site is to be constructed entirely within subject site.; and

(e) To preserve the health and condition of the following existing trees, the proposed excavation as shown on the West Elevation, Dwg DA09 rev F, prepared by Gordon Fuller and Assoc, dated 10/05/10 is to be amended to indicate the retention of existing levels within the canopy spread of trees. Finished levels to the communal open space are to be verified by an experienced arborist/horticulturist (AQF Level 5).

Tree/location

Jacaranda mimosifolia (Jacaranda) Tree 11

Jacaranda mimosifolia (Jacaranda) Tree 12

Cupressus sp (Cypress) Tree 14

Note:

An amended landscape plan, prepared by a landscape architect or qualified landscape designer shall be submitted to the Certifying Authority.

Reason: To ensure the development is in accordance with the determination.

18. Amendments to approved engineering plans

Prior to the issue of a Construction Certificate, the Certifying Authority shall be satisfied that the approved engineering plan(s), listed below and endorsed with Council’s stamp, have been amended in accordance with the requirements of this condition as well as other conditions of this consent:

Plan no. Drawn by Dated

GO090819/C1 ACOR Appleyard 5/2010

GO090819/C2, C3 ACOR Appleyard 5/2010

The above engineering plan(s) shall be amended as follows:

The rainwater tank on the amended Construction Certificate stormwater plans must not be smaller than the central rainwater tank listed on the BASIX Certificate.

The Basement floor level is to be consistent with architectural plans.

Water quality measures are to be provided.

The above amendments are required to ensure compliance with the following:

BASIX commitments and Ku-ring-gai Council Water Management Development Control Plan 47.

Note: An amended engineering plan, prepared by a qualified engineer shall be submitted to the Certifying Authority.

Reason: To ensure that the development is in accordance with the determination.

19. Long service levy

In accordance with Section 109F(i) of the Environmental Planning and Assessment Act a Construction Certificate shall not be issued until any long service levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or where such levy is payable by instalments, the first instalment of the levy) has been paid. Council is authorised to accept payment. Where payment has been made elsewhere, proof of payment is to be provided to Council.

Reason: Statutory requirement.

20. Outdoor lighting

Prior to the issue of a Construction Certificate, the Certifying Authority shall be satisfied that all outdoor lighting will comply with AS/NZ1158.3: 1999 Pedestrian Area (Category P) Lighting and AS4282: 1997 Control of the Obtrusive Effects of Outdoor Lighting.

Note: Details demonstrating compliance with these requirements are to be submitted prior to the issue of a Construction Certificate.

Reason: To provide high quality external lighting for security without adverse affects on public amenity from excessive illumination levels.

21. Air drying facilities

Prior to the issue of the Construction Certificate, the Certifying Authority shall be satisfied that a common open space area dedicated for open air drying of clothes is provided. This area is to be located at ground level behind the building line and in a position not visible from the public domain.

In lieu of the above, written confirmation that all units will be provided with internal clothes drying facilities prior to the Occupation Certificate is to be submitted to the Certifying Authority prior to the issue of the Construction Certificate.

Reason: Amenity & energy efficiency.

22. External service pipes and the like prohibited

Proposed water pipes, waste pipes, stack work, duct work, mechanical ventilation plant and the like must be located within the building. Details confirming compliance with this condition must be shown on construction certificate plans and detailed with construction certificate specifications. Required external vents or vent pipes on the roof or above the eaves must be shown on construction certificate plans and detailed with construction certificate specifications. External vents or roof vent pipes must not be visible from any place unless detailed upon development consent plans. Where there is any proposal to fit external service pipes or the like this must be detailed in an amended development (S96) application and submitted to Council for determination.

Vent pipes required by Sydney Water must not be placed on the front elevation of the building or front roof elevation. The applicant, owner and builder must protect the appearance of the building from the public place and the appearance of the streetscape by elimination of all external services excluding vent pipes required by Sydney Water and those detailed upon development consent plans.

Reason: To protect the streetscape and the integrity of the approved development.

23. Adaptable units

Prior to the issue of the Construction Certificate, the Certifying Authority shall be satisfied that the development contains one (1) adaptable unit and that such adaptable unit is designed as adaptable housing in accordance with the provisions of Australian Standard AS4299-1995: Adaptable Housing.

Note: Evidence from an appropriately qualified professional demonstrating compliance with this control is to be submitted to and approved by the Certifying Authority prior to the issue of the Construction Certificate.

Reason: Disabled access & amenity.

24. Stormwater management plan

Prior to issue of the Construction Certificate, the applicant must submit, for approval by the Principal Certifying Authority, scale construction plans and specifications in relation to the stormwater management and disposal system for the development. The plan(s) must include the following detail:

exact location and reduced level of discharge point to the public drainage system

Layout of the property drainage system components, including but not limited to (as required) gutters, downpipes, spreaders, pits, swales, kerbs, cut-off and intercepting drainage structures, subsoil drainage, flushing facilities and all ancillary stormwater plumbing - all designed for a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence)

location(s), dimensions and specifications for the required rainwater storage and reuse tanks and systems and where proprietary products are to be used, manufacturer specifications or equivalent shall be provided

specifications for reticulated pumping facilities (including pump type and manufacturer specifications) and ancillary plumbing to fully utilise rainwater in accordance with Ku-ring-gai Council Development Control Plan 47 and/or BASIX commitments

details of the required on-site detention tanks required by Ku-ring-gai Water Management DCP 47, including dimensions, materials, locations, orifice and discharge control pit details as required (refer Chapter 6 and Appendices 2, 3 and 5 of DCP 47 for volume, PSD and design requirements)

the required basement stormwater pump-out system is to cater for driveway runoff and subsoil drainage (refer appendix 7.1.1 of Development Control Plan 47 for design)

Water quality measures as required by Section 8.4.1 of DCP 47.

The above construction drawings and specifications are to be prepared by a qualified and experienced civil/hydraulic engineer in accordance with Council’s Water Management Development Control Plan 47, Australian Standards 3500.2 and 3500.3 - Plumbing and Drainage Code and the Building Code of Australia. The plans may be generally based on the Stormwater Management Concept Plan dated May 2010 by ACOR Appleyard submitted with the development application, which are to be advanced as necessary for construction certificate issue purposes.

Reason: To protect the environment.

25. Stormwater retention

Prior to the issue of a Construction Certificate, the Principal Certifying Authority is to be satisfied that:

1. A mandatory rainwater retention and re-use system, comprising storage tanks and ancillary plumbing is provided. The minimum total storage volume of the rainwater tank system, and the prescribed re-use of the water on site must satisfy all relevant BASIX commitments and the requirements specified in Chapter 6 of Ku-ring-gai Water Management Development Control Plan 47; and

2. An on-site stormwater detention system must be provided to control the rate of runoff leaving the site. The minimum volume of the required on-site detention system must be determined in accordance with Chapter 6 of the Ku-ring-gai Council Water Management Development Control Plan 47 - having regard to the specified volume concession offered in lieu of installing rainwater retention tanks. The on-site detention system must be designed by a qualified civil/hydraulic engineer and must satisfy the design controls set out in Appendix 5 of DCP 47.

Reason: To protect the environment.

26. Excavation for services

Prior to the issue of the Construction Certificate, the Principal Certifying Authority shall be satisfied that no proposed underground services (ie: water, sewerage, drainage, gas or other service) unless previously approved by conditions of consent, are located beneath the canopy of any tree protected under Council’s Tree Preservation Order, located on the subject allotment and adjoining allotments.

Note: A plan detailing the routes of these services and trees protected under the Tree Preservation Order shall be submitted to the Principal Certifying Authority.

Reason: To ensure the protection of trees.

27. Noise from plant in residential zone

Where any form of mechanical ventilation equipment or other noise generating plant is proposed as part of the development, prior to the issue of the Construction Certificate the Certifying Authority, shall be satisfied that the operation of an individual piece of equipment or operation of equipment in combination will not exceed more than 5dB(A) above the background level during the day when measured at the site’s boundaries and shall not exceed the background level at night (10.00pm –6.00 am) when measured at the boundary of the site.

C1. Note: A certificate from an appropriately qualified acoustic engineer is to be submitted with the Construction Certificate, certifying that all mechanical ventilation equipment or other noise generating plant in isolation or in combination with other plant will comply with the above requirements.

Reason: To comply with best practice standards for residential acoustic amenity.

28. Location of plant (residential flat buildings)

Prior to the issue of the Construction Certificate, the Certifying Authority shall be satisfied that all plant and equipment (including but not limited to air conditioning equipment) is located within the basement. This condition includes but is not limited to air conditioning equipment, except where the air conditioning is located behind a screened enclosure located adjacent to the southern external wall of the living room of unit 5. Details of the proposed enclosure to be submitted to the PCA prior to the issue of the Construction Certificate.

C1. Note: Architectural plans identifying the location of all plant and equipment shall be provided to the Certifying Authority.

Reason: To minimise impact on surrounding properties, improved visual appearance and amenity for locality.

29. Driveway grades – basement carparks

Prior to the issue of the Construction Certificate, longitudinal driveway sections are to be prepared by a qualified civil/traffic engineer and be submitted for to and approved by the Certifying Authority. These profiles are to be at 1:100 scale along both edges of the proposed driveway, starting from the centreline of the frontage street carriageway to the proposed basement floor level. The traffic engineer shall provide specific written certification on the plans that:

vehicular access can be obtained using grades of 20% (1 in 5) maximum and

all changes in grade (transitions) comply with Australian Standard 2890.1 –“Off-street car parking” (refer clause 2.5.3) to prevent the scraping of the underside of vehicles.

If a new driveway crossing is proposed, the longitudinal sections must incorporate the driveway crossing levels as issued by Council upon prior application.

Reason: To provide suitable vehicular access without disruption to pedestrian and vehicular traffic.

30. Basement car parking details

Prior to issue of the Construction Certificate, certified parking layout plan(s) to scale showing all aspects of the vehicle access and accommodation arrangements must be submitted to and approved by the Certifying Authority. A qualified civil/traffic engineer must review the proposed vehicle access and accommodation layout and provide written certification on the plans that:

all parking space dimensions, driveway and aisle widths, driveway grades, transitions, circulation ramps, blind aisle situations and other trafficked areas comply with Australian Standard 2890.1 – 2004 “Off-street car parking”

a clear height clearance of 2.6 metres (required under DCP40 for waste collection trucks) is provided over the designated garbage collection truck manoeuvring areas within the basement

no doors or gates are provided in the access driveways to the basement carpark which would prevent unrestricted access for internal garbage collection at any time from the basement garbage storage and collection area

the vehicle access and accommodation arrangements are to be constructed and marked in accordance with the certified plans

Reason:

To ensure that parking spaces are in accordance with the approved development.

31. Energy Australia requirements

Prior to issue of the Construction Certificate, the applicant must contact Energy Australia regarding power supply for the subject development. A written response detailing the full requirements of Energy Australia (including any need for underground cabling, substations or similar within or in the vicinity the development) shall be submitted to the Principal Certifying Authority for approval prior to issue of the Construction Certificate.

Any structures or other requirements of Energy Australia shall be indicated on the plans issued with the Construction Certificate, to the satisfaction of the Principal Certifying Authority and Energy Australia. The requirements of Energy Australia must be met in full prior to issue of the Occupation Certificate.

Reason: To ensure compliance with the requirements of Energy Australia.

Conditions to be satisfied prior to the issue of the construction certificate or prior to demolition, excavation or construction (whichever comes first):

32. Infrastructure restorations fee

To ensure that damage to Council Property as a result of construction activity is rectified in a timely matter:

a) All work or activity taken in furtherance of the development the subject of this approval must be undertaken in a manner to avoid damage to Council Property and must not jeopardise the safety of any person using or occupying the adjacent public areas.

b) The applicant, builder, developer or any person acting in reliance on this approval shall be responsible for making good any damage to Council Property, and for the removal from Council Property of any waste bin, building materials, sediment, silt, or any other material or article.

c) The Infrastructure Restoration Fee must be paid to the Council by the applicant prior to both the issue of the Construction Certificate and the commencement of any earthworks or construction.

d) In consideration of payment of the Infrastructure Restorations Fee, Council will undertake such inspections of Council Property as Council considers necessary and also undertake, on behalf of the applicant, such restoration work to Council Property, if any, that Council considers necessary as a consequence of the development. The provision of such restoration work by the Council does not absolve any person of the responsibilities contained in (a) to (b) above. Restoration work to be undertaken by the Council referred to in this condition is limited to work that can be undertaken by Council at a cost of not more than the Infrastructure Restorations Fee payable pursuant to this condition.

e) In this condition:

“Council Property” includes any road, footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, letter bins, trees, shrubs, lawns, mounds, bushland, and similar structures or features on any road or public road within the meaning of the Local Government Act 1993 (NSW) or any public place; and
“Infrastructure Restoration Fee” means the Infrastructure Restorations Fee calculated in accordance with the Schedule of Fees & Charges adopted by Council as at the date of payment and the cost of any inspections required by the Council of Council Property associated with this condition.

Reason

: To maintain public infrastructure.

33. Section 94 contribution – residential development (new construction)

(a) A contribution pursuant to section 94 of the Environmental Planning and Assessment Act as specified in Ku-ring-gai Section 94 Contributions Plan 2004-2009 (Amendment 2) for the services detailed in column A and for the amount detailed in Column B is required.

Column A
Column B

Community facilities (district)
$3,435.43

Park acquisition and embellishment works
$59,004.66

Park embellishment works
$6,618.18

Sportsgrounds works
$11,755.28

Aquatic / leisure centres
$695.91

Traffic and transport
$981.81

Section 94 Plan administration
$880.14

Sub total (1):
$83,371.41

Reason:

To ensure the provision, extension or augmentation of community facilities, recreation facilities, open space, traffic and transport, and administration that will, or are likely to be, required as a consequence of the development.

(b) Town Centres Development

A contribution pursuant to section 94 of the Environmental Planning and Assessment Act as specified in Ku-ring-gai town Centres Development Contributions Plan 2008 for the services detailed in column A and for the amount detailed in Column B is required:

Column A
Column B

Access and transport facilities
$11,084.00

Community facilities (local)
$2,592.00

Streetscape and public domain facilities
$30,632.00

Other (supporting studies)
$154.00

Sub total (2):
$44,462.00

Reason:

To ensure the provision, extension or augmentation of community facilities, access and transport, streetscape and the public domain, and administration that will, or are likely to be, required as a consequence of the development.

Subtotal 1 from (a) above $83,371.41

Subtotal 2 from (b) above $44,462.00

$127,833.41

However pursuant to Minister’s directions under section 94E dated 4 June 2010 the contribution is reduced to $20,000.00 x 4 units (5 units authorised by consent with credit for 1 unit).

Total contribution $80,000.00

(d) The contribution shall be paid to Council prior to the commencement of any development (including demolition) or prior to the issue of a Construction Certificate (whichever comes first).

34. Deleted/ incorporated into condition 33

Conditions to be satisfied during the demolition, excavation and construction phases:

35. Prescribed conditions

The applicant shall comply with any relevant prescribed conditions of development consent under clause 98 of the Environmental Planning and Assessment Regulation. For the purposes of section 80A (11) of the Environmental Planning and Assessment Act, the following conditions are prescribed in relation to a development consent for development that involves any building work:

The work must be carried out in accordance with the requirements of the Building Code of Australia

In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force before any works commence.

Reason: Statutory requirement.

36. Hours of work

Demolition, excavation, construction work and deliveries of building material and equipment must not take place outside the hours of 7.00am to 5.00pm Monday to Friday and 8.00am to 12 noon Saturday. No work and no deliveries are to take place on Sundays and public holidays.

Excavation or removal of any materials using machinery of any kind, including compressors and jack hammers, must be limited to between 7.30am and 5.00pm Monday to Friday, with a respite break of 45 minutes between 12 noon 1.00pm.

Where it is necessary for works to occur outside of these hours (ie) placement of concrete for large floor areas on large residential/commercial developments or where building processes require the use of oversized trucks and/or cranes that are restricted by the RTA from travelling during daylight hours to deliver, erect or remove machinery, tower cranes, pre-cast panels, beams, tanks or service equipment to or from the site, approval for such activities will be subject to the issue of an "outside of hours works permit" from Council as well as notification of the surrounding properties likely to be affected by the proposed works.

Note: Failure to obtain a permit to work outside of the approved hours will result in on the spot fines being issued.

Reason: To ensure reasonable standards of amenity for occupants of neighbouring properties.

37. Approved plans to be on site

A copy of all approved and certified plans, specifications and documents incorporating conditions of consent and certification (including the Construction Certificate if required for the work) shall be kept on site at all times during the demolition, excavation and construction phases and must be readily available to any officer of Council or the Principal Certifying Authority.

Reason: To ensure that the development is in accordance with the determination.

38. Statement of compliance with Australian Standards

The demolition work shall comply with the provisions of Australian Standard AS2601: 2001 The Demolition of Structures. The work plans required by AS2601: 2001 shall be accompanied by a written statement from a suitably qualified person that the proposal contained in the work plan comply with the safety requirements of the Standard. The work plan and the statement of compliance shall be submitted to the satisfaction of the Principal Certifying Authority prior to the commencement of any works.

Reason: To ensure compliance with the Australian Standards.

39. Site notice

A site notice shall be erected on the site prior to any work commencing and shall be displayed throughout the works period.

The site notice must:

be prominently displayed at the boundaries of the site for the purposes of informing the public that unauthorised entry to the site is not permitted

display project details including, but not limited to the details of the builder, Principal Certifying Authority and structural engineer

be durable and weatherproof

display the approved hours of work, the name of the site/project manager, the responsible managing company (if any), its address and 24 hour contact phone number for any inquiries, including construction/noise complaint are to be displayed on the site notice

be mounted at eye level on the perimeter hoardings/fencing and is to state that unauthorised entry to the site is not permitted

Reason:

To ensure public safety and public information.

40. Dust control

During excavation, demolition and construction, adequate measures shall be taken to prevent dust from affecting the amenity of the neighbourhood. The following measures must be adopted:

physical barriers shall be erected at right angles to the prevailing wind direction or shall be placed around or over dust sources to prevent wind or activity from generating dust

earthworks and scheduling activities shall be managed to coincide with the next stage of development to minimise the amount of time the site is left cut or exposed

all materials shall be stored or stockpiled at the best locations

the ground surface should be dampened slightly to prevent dust from becoming airborne but should not be wet to the extent that run-off occurs

all vehicles carrying spoil or rubble to or from the site shall at all times be covered to prevent the escape of dust

all equipment wheels shall be washed before exiting the site using manual or automated sprayers and drive-through washing bays

gates shall be closed between vehicle movements and shall be fitted with shade cloth

cleaning of footpaths and roadways shall be carried out daily

Reason:

To protect the environment and amenity of surrounding properties.

41. Post-construction dilapidation report

The applicant shall engage a suitably qualified person to prepare a post construction dilapidation report at the completion of the construction works for the public infrastructure along the full street frontage as wel as the following properties:

Address

18 Pacific Highway and 26 Pacific Highway

26a Pacific Highway, including the driveway

This report is to ascertain whether the construction works created any structural damage to adjoining buildings, infrastructure and roads. The report is to be submitted to the Principal Certifying Authority. In ascertaining whether adverse structural damage has occurred to adjoining buildings, infrastructure and roads, the Principal Certifying Authority must:

compare the post-construction dilapidation report with the pre-construction dilapidation report

have written confirmation from the relevant authority that there is no adverse structural damage to their infrastructure and roads.

In the event that access for undertaking the post development dilapidation report is denied by a property owner, the applicant must demonstrate in writing to the satisfaction of the Principal Certifying Authority that all reasonable steps have been taken to obtain access and advise the affected property owner of the reason for the repoprt and that these steps have failed.

A copy of this report is to be forwarded to Council at the completion of the construction works.

Reason: Management of records.

42. Further geotechnical input

The geotechnical and hydro-geological works implementation, inspection, testing and monitoring program for the excavation and construction works must be in accordance with the report by Jeffery and Katauskas and the report submitted prior to commencement of excavation. Over the course of the works, a qualified geotechnical/hydro-geological engineer must complete the following:

further geotechnical investigations and testing recommended in the above report(s) and as determined necessary

further monitoring and inspection at the hold points recommended in the above report(s) and as determined necessary

written report(s) including certification(s) of the geotechnical inspection, testing and monitoring programs

Reason:

To ensure the safety and protection of property.

43. Compliance with submitted geotechnical report

A contractor with specialist excavation experience must undertake the excavations for the development and a suitably qualified and consulting geotechnical engineer must oversee excavation.

Geotechnical aspects of the development work, namely:

appropriate excavation method and vibration control

support and retention of excavated faces

hydro-geological considerations

must be undertaken in accordance with the recommendations of the geotechnical report prepared by Jeffery and Katauskas and the report submitted prior to commencement of excavation. Approval must be obtained from all affected property owners, including Ku-ring-gai Council, where rock anchors (both temporary and permanent) are proposed below adjoining property(ies).

Reason: To ensure the safety and protection of property.

44. Use of road or footpath

During excavation, demolition and construction phases, no building materials, plant or the like are to be stored on the road or footpath without written approval being obtained from 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.

Reason: To ensure safety and amenity of the area.

45. Guarding excavations

All excavation, demolition and construction works shall be properly guarded and protected with hoardings or fencing to prevent them from being dangerous to life and property.

Reason: To ensure public safety.

46. Toilet facilities

During excavation, demolition and construction phases, toilet facilities are to be provided, on the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

Reason: Statutory requirement.

47. Recycling of building material (general)

During demolition and construction, the Principal Certifying Authority shall be satisfied that building materials suitable for recycling have been forwarded to an appropriate registered business dealing in recycling of materials. Materials to be recycled must be kept in good order.

Reason: To facilitate recycling of materials.

48. Approval for rock anchors

Approval is to be obtained from the property owner for any anchors proposed beneath adjoining private property. If such approval cannot be obtained, then the excavated faces are to be shored or propped in accordance with the recommendations of the geotechnical and structural engineers.

Reason: To ensure the ongoing safety and protection of property.

49. Road reserve safety

All public footways and roadways fronting and adjacent to the site must be maintained in a safe condition at all times during the course of the development works. Construction materials must not be stored in the road reserve. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to any 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 pedestrian circulation is diverted on to the roadway or verge areas, 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 across the site frontage, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

Reason: To ensure safe public footways and roadways during construction.

50. Services

Where required, the adjustment or inclusion of any new 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’ full responsibility to make contact with the relevant utility authorities to ascertain the impacts of the proposal upon utility services (including water, phone, gas and the like). Council accepts no responsibility for any matter arising from its approval to this application involving any influence upon utility services provided by another authority.

Reason: Provision of utility services.

51. Temporary rock anchors

If the use of temporary rock anchors extending into the road reserve is proposed, then approval must be obtained from Council and/or the Roads and Traffic Authority in accordance with Section 138 of the Roads Act 1993. The Applicant is to submit details of all the work that is to be considered, and the works are not to commence until approval has been granted. The designs are to include details of the following:

How the temporary rock anchors will be left in a way that they will not harm or interfere with any future excavation in the public road

That the locations of the rock anchors are registered with Dial Before You Dig

That approval of all utility authorities likely to use the public road has been obtained. All temporary rock anchors are located outside the allocations for the various utilities as adopted by the Streets Opening Conference.

That any remaining de-stressed rock anchors are sufficiently isolated from the structure that they cannot damage the structure if pulled during future excavations or work in the public road.

That signs will be placed and maintained on the building stating that de-stressed rock anchors remain in the public road and include a contact number for the building manager. The signs are to be at least 600mm x 450mm with lettering on the signs is to be no less than 75mm high. The signs are to be at not more than 60m spacing. At least one sign must be visible from all locations on the footpath outside the property. The wording on the signs is to be submitted to Council’s Director Technical Services for approval before any signs are installed.

Permanent rock anchors are not to be used where any part of the anchor extends outside the development site into public areas or road reserves.

All works in the public road are to be carried out in accordance with the Conditions of Construction issued with any approval of works granted under Section 138 of the Roads Act 1993.

Reason: To ensure the ongoing safety and protection of property.

52. Temporary disposal of stormwater runoff

During construction, stormwater runoff must be disposed of in a controlled manner that is compatible with the erosion and sediment controls on the site. Immediately upon completion of any impervious areas on the site (including roofs, driveways, paving) and where the final drainage system is incomplete, the necessary temporary drainage systems must be installed to manage and control runoff as far as the approved point of stormwater discharge. Such measures shall be to the satisfaction of the Principal Certifying Authority.

Reason: To preserve and enhance the natural environment.

53. Drainage to street

Stormwater runoff from all new impervious areas and subsoil drainage systems shall be piped to the street drainage system. New drainage line connections to the street drainage system shall conform and comply with the requirements of Sections 5.3 and 5.4 of Ku-ring-gai Water Management Development Control Plan No. 47.

Reason: To protect the environment.

54. Grated drain at garage

A 200mm wide grated channel/trench drain, with a heavy-duty removable galvanised grate is to be provided in front of the garage door/basement parking slab to collect driveway runoff. The channel drain shall be connected to the main drainage system and must have an outlet of minimum diameter 150mm to prevent blockage by silt and debris.

Reason: Stormwater control.

55. Sydney Water Section 73 Compliance Certificate

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

Reason: Statutory requirement.

56. Arborist’s report

The trees to be retained shall be inspected, monitored and treated by a qualified arborist during and after completion of development works to ensure their long term survival. Regular inspections and documentation from the arborist to the Principal Certifying Authority are required at the following times or phases of work:

Schedule

Tree/location Time of inspection

Cupressus sempervirens (Italian Cypress) Tree 1 Commencement of demolition

Jacaranda mimosifolia (Jacaranda) Tree 11 Commencement of excavation for basement

Jacaranda mimosifolia (Jacaranda) Tree 12 Commencement of excavation for basement

Cupressus sp (Cypress) Tree 14 Commencement of excavation for basement

Reason:

To ensure protection of existing trees.

57. Trees on nature strip

Removal/pruning of the following tree/s from Council's nature strip to permit vehicular access shall be undertaken at no cost to Council by an experienced tree removal contractor/arborist holding public liability insurance amounting to a minimum cover of $10,000,000.

Schedule

Tree/location

Populus sp. (Poplar)Tree 2

Populus sp. (Poplar)Tree 3

Reason:

To ensure protection of existing trees.

58. Canopy/root pruning

Canopy and/or root pruning of all trees protected by Council’s Tree Preservation Order which is 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. All pruning shall be undertaken in accordance with AS 4373-2007 Pruning of amenity trees.

Reason: To protect the environment.

59. Treatment of tree roots

If tree roots are required to be severed for the purposes of constructing the approved works, they shall be cut cleanly by hand, by an experienced Arborist/Horticulturist with a minimum qualification of Horticulture Certificate or Tree Surgery Certificate. All pruning works shall be undertaken as specified in Australian Standard 4373-2007 – Pruning of Amenity Trees.

Reason: To protect existing trees.

60. Cutting of tree roots

No tree roots of 30mm 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 works during the construction period.

Schedule

Tree/location
Radius from trunk

Cupressus sempervirens (Italian Cypress) Tree 1
2m

Jacaranda mimosifolia (Jacaranda) Tree 11
4m

Jacaranda mimosifolia (Jacaranda) Tree 12
4m

Cupressus sp (Cypress) Tree 14
3m

Reason:

To protect existing trees.

61. Approved tree works

Approval is given for the following works to be undertaken to trees on the site. An arborist report, prepared by Landscape Matrix, dated 16/10/09, has been submitted as part of the application. Tree numbers refer to this report.

Schedule

Tree location
Approved tree works

Chamaecyparis obtusa 'Crippsii' (Golden Cripps Cypress) Tree 4
Removal

Chamaecyparis obtusa 'Crippsii' (Golden Cripps Cypress) Tree 5
Removal

Araucaria heterophylla(Norfolk Island Pine) Tree 6
Removal

Brachychiton acerifolius (Flame Tree) Tree 8
Removal

Callitris rhomboidea (Port Jackson Pine) Tree 9
Removal

Phoenix canariensis (Canary Island Palm) Tree 13
Removal

Stenocarpus sinuatus (Firewheel Tree) Tree 15
Removal

Jacaranda mimosifolia (Jacaranda) Tree 12
Minor pruning for building clearance

Removal or pruning of any other tree on the site is not approved.

Reason: To ensure that the development is in accordance with the determination.

62. Hand excavation

All excavation within the specified radius of the trunk(s) of the following tree(s) shall be hand dug:

Schedule

Tree/location
Radius from trunk

Cupressus sempervirens (Italian Cypress) Tree 1
2m

Jacaranda mimosifolia (Jacaranda) Tree 11
4m

Jacaranda mimosifolia (Jacaranda) Tree 12
4m

Cupressus sp (Cypress) Tree 14
3m

Reason:

To protect existing trees.

63. No storage of materials beneath trees

No activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order at any time.

Reason: To protect existing trees.

64. Tree removal on nature strip

Following removal of Tree 2 and 3 from Council's nature strip, the nature strip shall be rehabilitated to the satisfaction of Council’s Landscape Assessment Officer at no cost to Council.

Reason: To protect the streetscape.

65. Supervision of transplanting

Transplanting of the following trees/shrubs shall be directly supervised by an experienced arborist/horticulturist with a minimum qualification of Horticulture Certificate or Tree Surgery Certificate.

Schedule

Species/From To

Phoenix canariensis (Canary Island Palm) Tree 7 Front setback as per approved Landscape Plan

Phoenix canariensis (Canary Island Palm) Tree 7 Front setback as per approved Landscape Plan

Reason:

To protect the trees during transplanting.

66. Removal of refuse

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.

Reason: To protect the environment.

67. Canopy replenishment trees to be planted

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

Reason: To maintain the treed character of the area.

68. Removal of noxious plants & weeds

All noxious and/or environmental weed species shall be removed from the property prior to completion of building works.

Reason: To protect the environment.

69. Survey and inspection of waste collection clearance and path of travel

At the stage when formwork for the ground floor slab is in place and prior to concrete being poured, a registered surveyor is to:

ascertain the reduced level of the underside of the slab at the driveway entry,

certify that the level is not lower than the level shown on the approved DA plans; and

certify that the minimum headroom of 2.6 metres will be available for the full path of travel of the small waste collection vehicle from the street to the collection area.

This certification is to be provided to Council’s Development Engineer prior to any concrete being poured for the ground floor slab.

No work is to proceed until Council has undertaken an inspection to determine clearance and path of travel.

At the stage when formwork for the ground floor slab is in place and prior to concrete being poured, Council’s Development Engineer and Manager Waste Services are to carry out an inspection of the site to confirm the clearance available for the full path of travel of the small waste collection vehicle from the street to the collection area. This inspection may not be carried out by a private certifier because waste management is not a matter listed in Clause 161 of the Environmental Planning and Assessment Regulation 2000.

Reason: To ensure access will be available for Council’s contractors to collect waste from the collection point.

70. On site retention of waste dockets

All demolition, excavation and construction waste dockets are to be retained on site, or at suitable location, in order to confirm which facility received materials generated from the site for recycling or disposal.

Each docket is to be an official receipt from a facility authorised to accept the material type, for disposal or processing.

This information is to be made available at the request of an Authorised Officer of Council.

Reason:

To protect the environment.

Conditions to be satisfied prior to the issue of an Occupation Certificate:

71. Easement for waste collection

Prior to issue of the Subdivision Certificate, an easement for waste collection is to be created under Section 88B of the Conveyancing Act 1919. This is to permit legal access for Council, Council’s contractors and their vehicles over the subject property for the purpose of collecting waste from the property. The terms of the easement are to be generally in accordance with Council’s draft terms for an easement for waste collection and shall be to the satisfaction of Council’s Development Engineer.

Reason: To permit legal access for Council, Council’s contractors and their vehicles over the subject site for waste collection.

71A. Fire Safety Certificate

Prior to the issue of the Occupation Certificate, the Principal Certifying Authority shall be satisfied that a Fire Safety Certificate for all the essential fire or other safety measures forming part of this consent has been completed and provided to Council.

Note: A copy of the Fire Safety Certificate must be submitted to Council.

Reason: To ensure suitable fire safety measures are in place.

71B. Mechanical Ventilation

Prior to the issue of the Occupation Certificate, the Principal Certifying Authority shall be satisfied that all mechanical ventilation system are installed in accordance with Part F4.5 of the Building Code of Australia and comply with Australian Standards AS1668.2 and AS3666 Microbial Control of Air Handling and Water System of Building

Reason: To ensure adequate levels of health and amenity to the occupants of the building.

72. Compliance with BASIX Certificate

Prior to the issue of an Occupation Certificate, the Principal Certifying Authority shall be satisfied that all commitments listed in BASIX Certificate No. 278253M have been complied with.

Reason: Statutory requirement.

73. Completion of landscape works

Prior to the release of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that all landscape works, including the removal of all noxious and/or environmental weed species, have been undertaken in accordance with the approved plan(s) and conditions of consent.

Reason: To ensure that the landscape works are consistent with the development consent.

74. Retention and re-use positive covenant

Prior to issue of the Occupation Certificate, the applicant must create a positive covenant and restriction on the use of land under Section 88E of the Conveyancing Act 1919, burdening the property with the requirement to maintain the site stormwater retention and re-use facilities on the property.

The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instruments for protection of retention and re-use facilities" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Water Management Development Control Plan No. 47). For existing titles, the positive covenant and the restriction on the use of land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the reuse and retention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms.

Registered title documents showing the covenants and restrictions must be submitted to and approved by the Principal Certifying Authority prior to issue of an Occupation Certificate.

Reason: To protect the environment.

75. Provision of copy of OSD designs if Council is not the PCA

Prior to issue of the Occupation Certificate, the following must be provided to Council’s Development Engineer:

a copy of the approved Construction Certificate stormwater detention/retention design for the site

A copy of any works-as-executed drawings required by this consent

The Engineer’s certification of the as-built system.

Reason:

For Council to maintain its database of as-constructed on-site stormwater detention systems.

76. Certification of drainage works (dual occupancies and above)

Prior to issue of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that:

the stormwater drainage works have been satisfactorily completed in accordance with the approved Construction Certificate drainage plans

the minimum retention and on-site detention storage volume requirements of BASIX and Ku-ring-gai Water Management Development Control Plan No. 47 respectively, have been achieved

retained water is connected and available for use

basement and subsoil areas are able to drain via a pump/sump system installed in accordance with AS3500.3 and Appendix 7.1.1 of Ku-ring-gai Water Management Development Control Plan No. 47

all grates potentially accessible by children are secured

components of the new drainage system have been installed by a licensed plumbing contractor in accordance with the Plumbing and Drainage Code AS3500.3 2003 and the Building Code of Australia

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

The rainwater certification sheet contained in Appendix 13 of the Ku-ring-gai Water Management Development Control Plan No. 47, must be completed and attached to the certification. Where an on-site detention system has been constructed, the on-site detention certification sheet contained in Appendix 4 of DCP 47 must also be completed and attached to the certification.

Note: Evidence from a qualified and experienced consulting civil/hydraulic engineer documenting compliance with the above is to be provided to Council prior to the issue of an Occupation Certificate.

Reason: To protect the environment.

77. WAE plans for stormwater management and disposal (dual occupancy and above)

Prior to issue of the Occupation Certificate, a registered surveyor or a qualified and experienced consulting civil/hydraulic engineer must provide a works as executed survey of the completed stormwater drainage and management systems. The survey must be submitted to and approved by the Principal Certifying Authority prior to issue of the Occupation Certificate. The survey must indicate:

as built (reduced) surface and invert levels for all drainage pits

gradients of drainage lines, materials and dimensions

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

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

the achieved storage volumes of the installed retention and detention storages and derivative calculations

as built locations of all access pits and grates in the detention and retention system(s), including dimensions

the size of the orifice or control fitted to any on-site detention system

dimensions of the discharge control pit and access grates

the maximum depth of storage possible over the outlet control

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

The works as executed plan(s) must show the as built details above in comparison to those shown on the drainage plans approved with the Construction Certificate prior to commencement of works. All relevant levels and details indicated must be marked in red on a copy of the Principal Certifying Authority stamped construction certificate stormwater plans.

Reason: To protect the environment.

78. Basement pump-out maintenance

Prior to issue of the Occupation Certificate, the Principal Certifying Authority shall be satisfied that a maintenance regime has been prepared for the basement stormwater pump-out system.

Note: A maintenance regime specifying that the system is to be regularly inspected and checked by qualified practitioners is to be prepared by a suitable qualified professional and provided to the Principal Certifying Authority.

Reason: To protect the environment.

79. OSD positive covenant/restriction

Prior to issue of the Occupation Certificate, the applicant must create a positive covenant and restriction on the use of land under Section 88E of the Conveyancing Act 1919, burdening the owner with the requirement to maintain the on-site stormwater detention facilities on the lot.

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" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Council Water Management DCP 47). For existing titles, the positive covenant and the restriction on the use of land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the on-site detention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms.

Registered title documents, showing the covenants and restrictions, must be submitted and approved by the Principal Certifying Authority prior to issue of an Occupation Certificate.

Reason: To protect the environment.

80. Sydney Water Section 73 Compliance Certificate

Prior to issue of an Occupation Certificate the Section 73 Sydney water Compliance Certificate must be obtained and submitted to the Principal Certifying Authority

Reason: Statutory requirement.

81. Certification of as-constructed driveway/carpark – RFB

Prior to issue of an Occupation Certificate, the Principal Certifying Authority is to be satisfied that:

the as-constructed car park complies with the approved Construction Certificate plans

the completed vehicle access and accommodation arrangements comply with Australian Standard 2890.1 – 2004 “Off-Street car parking" in terms of minimum parking space dimensions

finished driveway gradients and transitions will not result in the scraping of the underside of cars

no doors, gates, grilles or other structures have been provided in the access driveways to the basement carpark, which would prevent unrestricted access for internal garbage collection from the basement garbage storage and collection area

the vehicular headroom requirements of:
- Australian Standard 2890.1 – “Off-street car parking”,
- 2.6 metres height clearance for waste collection trucks (refer DCP 40) are met from the public street into and within the applicable areas of the basement carpark.

Note:

Evidence from a suitably qualified and experienced traffic/civil engineer indicating compliance with the above is to be provided to and approved by the Principal Certifying Authority prior to the issue of an Occupation Certificate.

Reason: To ensure that vehicular access and accommodation areas are compliant with the consent.

82. Reinstatement of redundant crossings and completion of infrastructure works

Prior to issue of the Occupation Certificate, the Principal Certifying Authority must be satisfied that the following works in the road reserve have been completed:

new concrete driveway crossing in accordance with levels and specifications issued by Council/ RTA

removal of all redundant driveway crossings and kerb laybacks (or sections thereof) and reinstatement of these areas to footpath, turfed verge and upright kerb and gutter (reinstatement works to match surrounding adjacent infrastructure with respect to integration of levels and materials)

full repair and resealing of any road surface damaged during construction

full replacement of damaged sections of grass verge to match existing

All works must be completed in accordance with the General Specification for the Construction of Road and Drainage Works in Ku-ring-gai Council, dated November 2004. The Occupation Certificate must not be issued until all 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) is fully repaired to the satisfaction of Council. Repair works shall be at no cost to Council.

Reason: To protect the streetscape.

Conditions to be satisfied at all times:

83. Outdoor lighting

At all times for the life of the approved development, all outdoor lighting shall not detrimentally impact upon the amenity of other premises and adjacent dwellings and shall comply with, where relevant, AS/NZ1158.3: 1999 Pedestrian Area (Category P) Lighting and AS4282: 1997 Control of the Obtrusive Effects of Outdoor Lighting.

Reason: To protect the amenity of surrounding properties.

84. No door restricting internal waste collection in basement

At all times, the basement garbage storage and collection area is to be accessible by Council’s Waste Collection Services. No doors, grilles, gates or other devices shall be provided in any location which would prevent this service. Where a gate, door or the like is to be erected, unimpeded access to the garbage collection point is to be provided by other means through written agreement with Council’s Waste Collection Services.

Reason: To facilitate access to the garbage collection point.

85. Noise control – plant and machinery

All noise generating equipment associated with any proposed mechanical ventilation system/s shall be located and/or soundproofed so the equipment is not audible within a habitable room in any other residential premises before 7am and after 10pm Monday to Friday and before 8am and after 10pm Saturday, Sunday and public holidays. The operation of the unit outside these restricted hours shall emit a noise level of not greater than 5dbA above the background when measured at the nearest boundary.

Reason: To protect the amenity of surrounding residents.

86. Integrated referral conditions:

1. The design and construction of modified driveway crossing off the Pacific Highway shall be in accordance with AS 2890. I — 2004 & RTA requirements (ie; 5.Sm at the property boundary & 6m at the kerbline). Details of these requirements could be obtained from the RTA’s Project Services Manager, Traffic Projects Section, Parramatta Ph; 8849 2144.

A certified copy of the design plans shall be submitted to the RTA for consideration & approval prior to the release of a construction certificate by Council and commencement of road works.

2. Council should ensure that post development storm water discharge from the subject site into the RTA drainage system does not exceed the pre development discharge.

Detailed design plans and hydraulic calculations of any changes to the stormwater drainage system are to be submitted to the RTA for approval, prior to the commencement of any works.

Details should be forwarded to :-
The Sydney Asset Management
P0 Box 973
Parramatta CBD NSW 2124
A plan checking fee may be payable and a performance bond may be required before the RTA’s approval is issued. With regard to the Civil Works requirement please contact the RTA’s Project Engineer, External Works Ph: 8849 2 114 or Fax: 8849 2766.

3. All works/ regulatory signposting associated with the proposed development are to be at no cost to the RTA.

In addition, the RTA provides the following advisory comments to Council for its consideration in the determination of the development application:

4. The proposed development should be designed such that road traffic noise from the Pacific Highway is mitigated by durable materials and complies with the requirements of Clause I 02 — (Impact of road noise or vibration on non-road development) of State Environmental Planning Policy (Infrastructure) 2007.

5. Council is to ensure that service vehicle (garbage/delivery/removalists) manoeuvring into / out of the site does not affect / worsen peak hour traffic flows / congestion and Council should ensure that the turning paths for garbage trucks (ie: small rigid vehicles) comply with the requirements of AS 2890.2 - 2002.

6. 0ff street parking associated with the proposed development (including driveways, grades, aisle widths, aisle lengths, turning paths, sight distance requirements, and parking bay dimensions) should be designed in accordance with AS 2890. I — 2004.

7. Car parking provision is to be in accordance with Council’s requirements.

8. Any proposed vegetation or fencing must not hinder sight distances to/from the proposed access driveway to motorists, pedestrians and/or cyclists. Sight distances are to comply with A52890. I -2004.

9. The transplanted palms (p. I I Statement of Environmental Effects) are to be offset from the current Pacific Highway boundary by at least 3m to allow for future road works.

10. To support the existing clearway restriction, the current part-time bus zone along the subject property’s frontage shall be changed to “Bus Zone, all other times”, This restriction should be implemented prior to the occupation of the proposed development. Prior to the installation of the changed parking restrictions the applicant is to contact the RTA’s Traffic Management Services on phone: (02) 8849 259 I for a works instruction

11. Suitable provision should be made on-site to accommodate all demolition/construction vehicles.

12. Council is to consider provision of cyclist facilities inside the proposed development.

13. All vehicles are to enter and exit the development in a forward direction.

___________

CITATION:	Pavlovski v Ku-ring-gai Council [2010] NSWLEC 1197
PARTIES:	APPLICANT Zlatko Pavlovski RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	10096 of 2010
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- whether road widening appropriate - whether non compliances with requirements in local environmental and development control plans can be supported - whether Court bound by direction of Minister under s 94E for s 94 contribution - whether credit should be given for existing dwelling
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No 1 Ku-ring-gai Council Local Environmental Plan (Town Centres) 2010 Ku-ring-gai Scheme Planning Ordinance Ku-ring-gai Section 94 Contributions Plan 2004-2009 (Amendment 2)
DATES OF HEARING:	20 July 2010, written submissions 22 July 2010
DATE OF JUDGMENT:	28 July 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr J Hones, solicitor SOLICITORS Hones La Hood RESPONDENT Mr A Hudson, solicitor SOLICITORS Wilshire Webb Staunton Beattie Lawyers

Plan no.	Drawn by	Dated
00,01,02,03,04,05,06,07,08,09,10,11,12,13,14 and18, Rev F	G. Gordon Fuller and Associates	10/05/10
ALP 01/A	Botanica	May 2010
09124 rev A	Site Design	30 October 2009

Document(s)	Dated
Basix Certificate No. 278253M	28 October 2009

Schedule
Tree/location	Radius from trunk
Cupressus sempervirens (Italian Cypress) Tree 1	2m
Jacaranda mimosifolia (Jacaranda) Tree 11	2m
Jacaranda mimosifolia (Jacaranda) Tree 12	2m
Cupressus sp (Cypress) Tree 14	3m

Column A	Column B
Community facilities (district)	$3,435.43
Park acquisition and embellishment works	$59,004.66
Park embellishment works	$6,618.18
Sportsgrounds works	$11,755.28
Aquatic / leisure centres	$695.91
Traffic and transport	$981.81
Section 94 Plan administration	$880.14
Sub total (1):	$83,371.41

Column A	Column B
Access and transport facilities	$11,084.00
Community facilities (local)	$2,592.00
Streetscape and public domain facilities	$30,632.00
Other (supporting studies)	$154.00
Sub total (2):	$44,462.00

Schedule
Tree/location	Time of inspection
Cupressus sempervirens (Italian Cypress) Tree 1	Commencement of demolition
Jacaranda mimosifolia (Jacaranda) Tree 11	Commencement of excavation for basement
Jacaranda mimosifolia (Jacaranda) Tree 12	Commencement of excavation for basement
Cupressus sp (Cypress) Tree 14	Commencement of excavation for basement

Schedule
Tree location	Approved tree works
Chamaecyparis obtusa 'Crippsii' (Golden Cripps Cypress) Tree 4	Removal
Chamaecyparis obtusa 'Crippsii' (Golden Cripps Cypress) Tree 5	Removal
Araucaria heterophylla(Norfolk Island Pine) Tree 6	Removal
Brachychiton acerifolius (Flame Tree) Tree 8	Removal
Callitris rhomboidea (Port Jackson Pine) Tree 9	Removal
Phoenix canariensis (Canary Island Palm) Tree 13	Removal
Stenocarpus sinuatus (Firewheel Tree) Tree 15	Removal
Jacaranda mimosifolia (Jacaranda) Tree 12	Minor pruning for building clearance

Schedule
Species/From	To
Phoenix canariensis (Canary Island Palm) Tree 7	Front setback as per approved Landscape Plan
Phoenix canariensis (Canary Island Palm) Tree 7	Front setback as per approved Landscape Plan