Peter Connor Building Consultants v Sutherland Shire Council - [2010] NSWLEC 1348

Land and Environment Court

of New South Wales

CITATION: Peter Connor Building Consultants v Sutherland Shire Council [2010] NSWLEC 1348

PARTIES:
APPLICANT
Peter Connor Building Consultants
RESPONDENTS
Sutherland Shire Council

FILE NUMBER(S): 10695 of 2010

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of an existing dwelling and the construction of a new dwelling - appropriate front setback

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2006
Sutherland Shire Development Control Plan 2006

DATES OF HEARING: 13 December 2010

EX TEMPORE JUDGMENT DATE: 13 December 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr D Wright, solicitor
SOLICITORS
Willis Bowring
RESPONDENT
Ms J Amy, solicitor
SOLICITORS
Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

13 December 2010

10695 of 2010 Peter Connor Building Consultants v Sutherland Shire Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application DA08/1202 by Sutherland Shire Council (the council) for the demolition of an existing dwelling and the construction of a new dwelling at 5 Sanderson Street Cronulla (the site).

2 The appeal was subject of a conciliation conference on 2 November 2010 and a further conciliation conference on 16 November 2010 under s 34 of the Land and Environment Court Act 1979. As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding at a later date pursuant to s 34(4)(b)(i). The hearing was conducted on 14 December 2010 as an On Site hearing. The judgment reflects the contents of the Amended Statement of Facts and Contentions and the reasons for the decision given on-site.

3 The contentions originally raised by the council had been reduced through further discussion and amended plans and the only remaining contention was the building setback to Sanderson Street and the additional overshadowing created by the reduced setback on the property to the south, specifically the kitchen window.

4 Additional contentions were raised by local residents that related to:

overlooking,
overshadowing, and
the appearance of the dwelling wall near the southern boundary.

5 The site has a frontage of 13.82 m to Sanderson Street and an area of 720.8 sq m. It is located within Zone 4 - Local Housing Zone under Sutherland Shire Local Environmental Plan 2006 where dwelling houses are permissible with consent.

(the DCP) applies. Relevantly, Chapter 3: Urban Design provides requirements for street setbacks at cl 2. The relevant objectives in cl 2.a.1.1 are:

a. to establish the desired spatial proportions of the street and define the street edge.

d. to preserve a perception of openness in streets where this is consistent with the desired future character.

e. to ensure new development is compatible within the established streetscape character.

7 Clause 2.b.1.1 states that:

Street setbacks are measured perpendicular from the property boundary to the closest extent of the building, including balconies, sunscreens, podiums and the like.

8 Clause 2.b.2, relevantly states that

1. A minimum 7.5 m setback from the street frontage is required for all development, unless an alternative street setback is specified in this plan

2. ….

3. In the case of corner properties, the 7.5 m setback applies to the narrowest street frontage. In the case of the second street, a minimum 3 m setback applies.

4. Should the existing streetscape and development patterns comprise of a dominant dwelling setback other than 7.5 m, the average of two dwelling setbacks on each side of the site must be used to establish the required setback.

9 A joint report was prepared by Mr David Crane, a town planner and Mr Peter Connor, the building designer for the applicant and Ms Debbie Pinfold, a town planner and Mr Peter Brooker, an architect for the council. There was agreement that the proposed setback was predominantly 6.135m to the first floor balcony edge but increased to 6.8 m for a distance of 600mm. The setback of the dwelling wall is 8.060 m.

10 Mr Crane states that the relevant setback requirement is cl 2.b.2.4. In his opinion, the development pattern comprises a dominant dwelling setback other than 7.5 m therefore the setback should be the average of the setback of the two dwellings on each side of the site. At the time of preparation of the plans for the site, the existing streetscape has a predominance of other than 7.5 m setbacks. The property at 19 Mitchell Road (corner of Sanderson Street) and 9 Sanderson Street have setbacks in excess of 7.5 m, 7 Sanderson Street has setbacks between 4.3 m and 5.8 m, the previous dwelling erected on 3 Sanderson Street had a setback between 2.7 m and 3.1 m and 1 Sanderson Street has a setback of 7.5 m. The existing dwelling on the site has a setback between 3.6 m and 5.4 m.

11 To further support of the variation to the setback control, Mr Crane states that as Sanderson Street is only developed on one side (the other side being open space that leads to the North Cronulla Beach) the openness of the streetscape is guaranteed. Further, the retention of the existing swimming pool at the rear of the site creates constraints to the design of the dwelling.

12 Mr Connor states that he had considered amendments to the dwelling to increase the setback however it was not considered practical because of the impacts on the amenity of the dwelling and the necessity to link the living rooms of the dwelling to the existing swimming pool.

13 Ms Pinfold states that the relevant setback requirement is cl 2.b.2.1 as the existing streetscape and development patterns do not comprise a dominant dwelling setback other than 7.5 m. She states that the five dwellings in Sanderson Street should be the basis of assessing the appropriate setback. The property at 19 Mitchell Road should be given little weight in this assessment because it is a corner lot although the dwelling satisfies the requirements in cl 2.b.2.3 in providing a 7.5 m setback to Mitchell Road and a 3 m setback to Sanderson Street. Of the five dwellings in Sanderson Street, only 7 Sanderson Street is setback below 7.5 m. This is an older style dwelling and could potentially be redeveloped. While accepting that the recently developed dwelling at 3 Sanderson Street has a setback of around 7.1 m, she acknowledged that the approval assumed, based on the documentation provided, that the setback was 7.5 m.

14 Mr Brooker stated that the existing swimming pool, in his opinion, was not a significant constraint to the development of the site dwelling and that with some adjustment to room sizes, a dwelling could be constructed that would satisfy the 7.5 m setback. Alternatively, the building could be moved towards the rear of the site to satisfy the 7.5 m setback and at the same time maintain access to the existing pool.

15 In balancing be competing evidence, and with the benefit of the site view, I agree with conclusions of Ms Pinfold. Accepting that weight must be given to the DCP (see Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 and Zhang v Canterbury City Council (2001) 115 LGERA 373), I accept that the setback must be measured to the closest extent of the building, including balconies, sunscreens, podiums and the like (cl 2.b.1.1) in this case, the edge of the first floor balcony. The undisputed evidence of Mr Pinfold was that since the coming into effect of the DCP in 2006, the council had rigidly applied this requirement (except with the inadvertent approval of the dwelling on 3 Sanderson Street).

16 On the question of whether the appropriate setback falls within cl 2.b.2.1 or cl 2.b.2.4 of the DCP, I can comfortably conclude that the former sub clause should be applied. I do not accept that there is a dominant dwelling setback other than 7.5 m for the lots in Sanderson Street. I agree with Ms Pinfold that little weight should be given to the dwelling at 19 Mitchell Drive in any assessment of an appropriate setback. Clause 2.b.2.1 of the DCP clearly contemplates a reduced setback for the secondary street although the dwelling on this site has a setback to the secondary street that is well in excess of the 3 m setback where it adjoins 9 Sanderson Street thereby creating a blending of setbacks rather than an abrupt change.

17 The relatively isolated location and limited length of Sanderson Street dictate that the remaining five dwellings should be the basis of any assessment of an appropriate assessment of a front setback. I agree with Ms Pinfold that greater emphasis should be given to the recently constructed dwellings rather than the existing older style dwellings that are potentially development sites. In this regard, the dwellings at 1 and 3 Sanderson Street generally adopt a 7.5 m setback. If the dwellings at 7 and 9 Sanderson Street are redeveloped, it would only be reasonable to apply a 7.5 m setback given the requirements in cl 2.b.2.1 of the DCP. I see no benefit in relying on the older style dwellings in establishing a front setback particularly when it would be inconsistent with the desired future character of the area contemplated by the DCP.

18 I do not accept the evidence of Mr Crane that the applicants desire to maintain the existing pool and that Sanderson Street is only developed on one side provides any basis for a reduced front setback.

19 Based on the finding that a 7.5 m setback is appropriate, Mr Wright, for the applicant, submitted that he would accept a condition specifying this setback although this would likely require the removal of the existing swimming pool. Ms Amy, for the council, submitted that such a condition was acceptable to the council.

20 Of those matters raised by the local residents, I am satisfied that these matters would not warrant the amendment of the application or its refusal.

21 As the applicant has accepted a condition requiring a 7.5 m front setback, there is no basis for the refusal of the application, so the Orders of the Court are:

_______________

G T Brown

Commissioner of the Court

ANNEXURE “A”

Peter Connor Building Consultants v Sutherland Shire Council Premises: 5 Sanderson Street, Cronulla

DEVELOPMENT CONSENT CONDITIONS

GENERAL CONDITIONS

These general conditions are imposed to ensure that the development is carried out in accordance with the development consent, having regard to the environmental circumstances of the site.

The development shall be implemented in accordance with the details and specifications set out on the Plan / Drawing No.0324W001 Rev. D; 0324W002 Rev. D and 0324W003 Rev. D and the landscape concept plan prepared by Peter Connor Building Consultants and any details on the application form and on any supporting information received with the application except as amended by the conditions specified and imposed hereunder.

Nothing in this development consent whatsoever approves or authorises the commencement, erection or construction of any building, construction or subdivision works.

Prior to the commencement of any building, construction, or subdivision work being carried out a 'construction certificate' shall be obtained from Council or an Accredited Certifier.

Prior to any work being carried out relating to the development the subject of the consent, the person implementing the consent shall provide Council with:

a) Notification of the appointment of a Principal Certifying Authority and a letter of acceptance from the PCA.
b) Notification of the commencement of building and/or subdivision works with a minimum of 2 days notice of such commencement.

The following are prescribed conditions of development consent pursuant to s.80A(11) of the Environmental Planning and Assessment Act 1979 and cl.98 of the Environmental Planning and Assessment Regulation 2000.

A. Compliance with the Building Code of Australia
The development must be carried out in accordance with the provisions of the Building Code of Australia.

B. Residential building work
1. Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the Principal Certifying Authority (PCA) for the development to which the work relates:

2. A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

C. Details to be provided to Council with the Notice of Commencement

The following works or activities shall not be carried out on public land (including a road) adjacent to the development site without approval under the Roads Act 1993 and/or the Local Government Act 1993:

a) Placing or storing materials or equipment;
b) Placing waste containers or skip bins;
c) Pumping concrete from a public road;
d) Standing a mobile crane;
e) Pumping stormwater from the site into Council’s stormwater drains;
f) Erecting a hoarding;
g) Establishing a construction zone;
h) Opening the road reserve for the purpose of connections including telecommunications, water, sewer, gas, electricity and stormwater; or
i) Constructing a vehicular crossing or footpath.

An application, together with the necessary fee, shall be submitted and approval granted by Council prior to any of the above works or activities commencing.

Note - Approval under the Roads Act or Local Government Act cannot be granted by a Principal Certifying Authority or by a Private Certifier. Failure to obtain approval may result in fines or prosecution.

4. Dilapidation Report

Prior to the issue of any Construction Certificate the applicant shall prepare a dilapidation report with photographs noting any existing damage to the abutting properties at No.3 and 7 Sanderson Street and Council's assets including the road reserve. A copy of the dilapidation Report shall be submitted to Sutherland Shire Council and the owners of No.3 and 7 Sanderson Street prior to the commencement of any works.

4A. Design and Construction of Works or Assets in Public Areas

Council has determined that the proposed development generates a need for works to be undertaken by the Applicant in the Road Reserve in conjunction with the development: These works shall be constructed in accordance with the requirements of Council's adopted "Specification for Civil Works Associated with Subdivisions and developments".

(a) A temporary concrete footpath crossing for construction vehicle access.

(f) A layback crossing at the access point

(g) The footpath crossing in Sanderson Street to be 3.5m wide.

(h) Regrading, topsoiling and turfing of the footpath area to final design levels across the full frontage of the site and across adjacent properties if existing levels are altered or the existing turf is damaged.

(i) Construction of a footpath crossing to the levels issued by the Council.

(j) Erosion and sediment controls.

(k) Provision of street landscaping and tree planting as detailed.

(l) Adjustment to public services infrastructure where required.

(m) Reconstruction of any damaged or cracked kerb and gutter.

Bonds and Contributions

The following security bonds and contributions have been levied in relation to the proposed development.

Before the commencement of any works (including demolition) or the issue of a Construction Certificate the applicant shall provide security to Council to the value of $4,700 against damage caused to any Council property and / or the environment as a consequence of the implementation of this consent. The security may be provided by way of a deposit with the Council or a satisfactory guarantee. A non refundable inspection/administration fee is also payable at the time of lodging this security deposit with Council.

Before the commencement of any works or the issue of a Construction Certificate the applicant shall provide security to Council as specified above and as set out in the adopted Schedule of Fees and Charges (in the form of cash, cheque or bank guarantee). A non refundable inspection / administration fee is included in the bond value. It is the applicant’s responsibility to notify Council of any existing damage prior to the commencement of works through the submission of a current dilapidation report supported by photographs at least 2 days prior to the commencement of works.

It is the applicant’s responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a current dilapidation report supported by photographs. This information shall be submitted to Council at least 2 days prior to the commencement of works.

Should any public property and / or the environment sustain damage during the course of and as a result of construction, or if the construction works put Council's assets or the environment at risk, Council may carry out any works necessary to repair the damage and / or remove the risk. The costs incurred shall be deducted from the security.

A request for release of the security deposit may be made to Council after all works relating to this consent have been completed. Such a request shall be submitted to Council on the ‘Bond Release Request Form’ signed by the owner or any person entitled to use of the consent.

Prior to the commencement of work or the issue of a Construction Certificate, the owner or contractor shall take out a Public Liability Insurance Policy with a minimum cover of $10 million in relation to the occupation of and works within Council's road reserve, for the full duration of the proposed works. Evidence of this policy shall be submitted to Council prior to commencement of work or the issue of a Construction Certificate.

MATTERS RELATING TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

The following conditions involve either modification to the development proposal or further investigation prior to the issue of a Construction Certificate, so as to ensure that there will be no adverse impact on the environment or adjoining development. This information shall be submitted with the Construction Certificate.

The Construction Certificate shall comprise all necessary documentation and information sufficient to verify that all commitments contained within the BASIX Certificate relevant to the issue of a Construction Certificate for works approved by this development consent have been included in the development.

7A. Design Changes Required

To reduce the environmental impact of the development proposal, the following design changes shall be implemented and incorporated into the plans prior to the release of the construction certificate:

a) The balustrade of the eastern first floor balcony shall be clear glass with no solid or opaque elements; and

A Detailed Landscape Plan shall be prepared by an experienced Landscape Designer (a person eligible for membership of the Australian Institute of Landscape Designers and Managers) or Landscape Architect (a person eligible for membership of the Australian Institute of Landscape Architects as a Registered Landscape Architect).

The plan shall accord with Section 6.7 of Councils Landscape Development Control Plan, which sets out the requirements for a Detailed Landscape Plan, and the relevant conditions of this consent.

The Detailed Landscape Plan shall be based on the Concept Landscape Plan No.0324W001 Rev. D prepared by Peter Connor Building Consultants dated 21/08/2008 and shall address the following:

a) The open space areas about the front building setback area from the street shall be graded to the finished ground floor level in order to eliminate any stepped difference in adjoining levels.
b) To enhance the visual impacts and privacy between the proposed development and No 7 Sanderson Street, shrub planting shall be located along the southern side boundary adjacent to the dwelling house and rear terrace. The plants selected shall have a minimum height at maturity of 3 metres, be a minimum pot size of 25 litres and be planted at a rate of 1 per lineal metre.

An Environmental Site Management Plan shall accompany the Construction Certificate. This plan shall satisfy the Objectives and Controls in Part 4 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and shall address the following:

The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

f) The provision of temporary fencing to secure the work site (fencing, hoarding or awnings over public land require Council approval under the Roads Act).
g) The control of surface water flows within and through the construction site to minimise erosion and movement of sediment off site.
h) The type and location of erosion and sediment control measures, strategies to minimise the amount of soil uncovered at any time, the conservation of topsoil for re-use on site, the location and protection of stockpiles.

Prior to the commencement of works or the issue of a Construction Certificate, the applicant shall submit to and obtain Council approval of a Soil and Water Management Plan and Statement which clearly identifies site features, constraints and soil types together with the nature of proposed land disturbing activities and also specifies the type and location of erosion and sediment control measures and also rehabilitation techniques necessary to deal with such activities.

The Plan shall take into account the objectives of Council's Environmental Site Management Development Control Plan and shall be compatible with any Construction Management Plan thus ensuring the following objectives are achieved, namely:

To minimise the impact of the swimming pool on the amenity of adjoining properties and to ensure the safety of the pool area, the design and construction of the swimming pool or spa pool and associated equipment shall comply with the following requirements:

Swimming Pools Act & Regulations

Swimming Pools Act

ii) Additional information is available from Sutherland Shire Swimming Pool Environmental Specification 2007.

Details of all child-resistant barriers (existing and proposed) to be utilised to comply with the requirements of the Swimming Pools Act and Regulations applicable at the time shall be shown on the Construction Certificate plans. The information is required for recording in Sutherland Shire Pool Register.

Where the wall of a building is to be used as part of the required child-resistant barrier, the plans shall indicate if the wall has any openings and how they comply with pool safety requirements.

Landscaping and ancillary structures are not to intrude into the child-resistant barrier Non-Climbable Zone.

To ensure the safety of persons, the design and construction of the structure, where it may provide access to the swimming pool or spa pool area, shall comply with the following requirements:

Swimming Pools Act

b) Australian Standard 1926 Swimming Pool Safety as prescribed under the Regulations.

Details of all child-resistant barriers (existing and proposed) to be utilised to comply with the requirements of the Swimming Pools Act and Regulations applicable at the time shall be shown on the Construction Certificate plans. The information is required for recording in Sutherland Shire Pool Register.

Where an existing swimming pool is to be retained and other structures on the property, that form part of the child resistant safety barrier are to be demolished, child-resistant safety barriers shall be erected and inspected by an Accredited Certifier prior to demolition of structures to comply with the requirements of the Swimming Pools Act and Regulations.

Details of all child-resistant barriers to be utilised to comply with the requirements of the Swimming Pools Act and Regulations shall be provided prior to commencement of demolition works and shown on the Construction Certificate plans. The information is required for recording in Sutherland Shire Pool Register.

Conditions Relating to Works in the Road Reserve

These conditions are imposed to ensure that adequate road works are provided to minimise the adverse effect of traffic generated by the development.

No work whatsoever shall be carried out within the Public Road Reserve unless a "Road Opening Permit" under the Roads Act, 1993 (NSW) has been issued by Council for every opening of the public road reserve.

Note: An application fee is payable for this application.

Permission shall be obtained from Council to carry out these works and an application under the Roads Act, together with the necessary fee, shall be submitted and issued by Council prior to the issue of any Construction Certificate. Approval under the Roads Act cannot be granted by a Principal Certifying Authority or by a Private Certifier. Failure to obtain approval may result in enforcement action by Council.
Survey and design plans for the above works shall be prepared by Council’s Engineering Division and issued by Council’s Civil Assets Manager prior to the issue of a Construction Certificate. A fee quotation may be obtained by submitting a "Detailed Frontage Design" application to Council. The application form can be obtained from Council's web site.

14A. Access Application

An access application shall be made to Council to obtain footpath crossing, footpath area and boundary alignment levels before commencing the final design of the internal driveways and paths. The proposal shall comply with the levels issued by Council and a copy of the issued levels shall accompany the Construction Certificate.

Public Utility Authorities Requirements

These conditions are imposed to avoid problems in servicing the development and reduce adverse impacts on the lot layout or the design of buildings or associated facilities.

The plans approved as part of the Construction Certificate shall be submitted to a Sydney Water Quick Check agent or Customer Centre to determine as to whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and / or easements, and if further requirements need to be met. Plans will be stamped appropriately.

Please refer to the web site for:

Quick Check agents details – see Building Development and Plumbing then Quick Check; and
Guidelines for Building Over / Adjacent to Sydney Water Assets – see Building Development and Plumbing then Building and Renovation.

Arrangements shall be made to the satisfaction of all Utility Authorities including cable television network providers in respect to the services supplied to the development by those authorities. The necessity to provide or adjust conduits/ services within the road and footway areas shall be at full cost to the applicant.

Prior to the issue of a Construction Certificate the applicant shall nominate an appropriately qualified Accredited Certifier in Civil Engineering to supervise all public area civil and drainage works to ensure that they are constructed in compliance with Council's current "Specification for Civil Works Associated with Subdivisions and Developments".

The engineer shall:

a) provide an acceptance in writing to supervise sufficient of the works to ensure compliance with:
(i) all relevant statutory requirements,
(ii) all relevant conditions of development consent,
(iii) construction requirements detailed in the above Specification, and
(iv) the requirements of all legislation relating to environmental protection,
b) on completion of the works certify that the works have been constructed in compliance with the approved plans, specifications and conditions of approval, and,
c) certify that the Works As Executed plans are a true and correct record of what has been built.

16B. Internal Driveway Profile and Parking

The internal driveway profile shall be designed to:

(a) Provide adequate sight distance for the safety of pedestrians using the footpath area;

(b) Align with Council’s issued footpath crossing levels;

(c) Comply with AS2890.1(2004) in relation to the design of vehicular access, parking, general manoeuvring and headroom clearance.

A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.

The drainage for this development proposal shall be designed in accordance with the Institution of Engineers' publication "Australian Rainfall and Runoff" (1987), Council's "Urban Drainage Design" Manual together with Council's "Stormwater Management Policy and Guidelines" and "On-Site Stormwater Detention Policy and Technical Specification".

The design shall also take into account the specific requirements of any Development Control Plan, Catchment Management Plan or Stormwater Management Plan relevant to the site.
A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.

18. Drainage Design – Detailed Requirements
A detailed drainage design shall be prepared in accordance with Sutherland Shire Development Control Plan 2006 (Chapter 8 - Ecologically 'Sustainable Development'; Section 6 - 'Stormwater Management') “Australian Rainfall and Runoff (1987)”, Council's Drainage Design Manual and Council's "On-site Stormwater Detention Policy and Technical Specification.
The design shall include:

(a) A layout of the drainage system showing existing and proposed pipe sizes, type, class, grades, lengths, invert levels, finished surface levels and location of all pipes with levels reduced to Australian Height Datum. Impacts on existing trees must be indicated on the plan.Drainage of the tanks in the subfloor area to the street kerb is to be via gravity and not a charged system
(b) A longitudinal section of the pipeline within the road reserve including existing natural surface levels, design surface levels, design invert levels of the proposed pipeline and the location, size and reduced level of all services to AHD where those services cross the proposed drainage line.
(c) A physical barrier (eg. concrete kerb or earth mound within the landscaping) shall be provided around the perimeter of the site to prevent the discharge of surface water flows onto adjoining properties or the road reserve.

(d) Two 4500 ltr rainwater tanks shall be provided.

(e) The pipeline within the footpath area shall be hot dipped galvanised steel hollow section with a minimum wall thickness of 3mm, a section height of 75mm and maximum width of 200mm.

Certification from an Accredited Certifier, to the effect that the stormwater drainage and water harvesting systems have been prepared having regard to the conditions of development consent, shall accompany the application for the Construction Certificate.
Certification from an Accredited Certifier for stormwater design or a Chartered Civil Engineer, to the effect that the basement pump-out system has been prepared having regard to Sections 5 and 9 and Appendix L of AS/NZS3500.3:2003, shall accompany the application for the Construction Certificate.
19. Stormwater Drainage System
Plans including all engineering details relevant to the site regarding collection and dispersal of stormwater from the site and buildings shall be submitted with the construction certificate. The stormwater drainage system shall be designed and constructed in accordance with Australian Standard AS/NZS3500.3:2003, the BASIX Certificate issued against this development and the drainage details indicated on drawing No.0324W001 prepared by Peter Connor Building Consultants, except where modified by the following;

a) The design drawings are to indicate the alignment, sizes, type, class, grades and lengths of all the pipelines and associated structures,

b) The roof gutter and downpipe system attached to the dwelling shall capture and flow the Q₂₀ discharge,

c) Drainage is to be by gravity (not a charged system) between the tank in the “sub floor” to the street kerb,

d) Two 4500 rainwater tanks shall be provided, and

e) The pipeline within the footpath verge shall be a hot dipped galvanised steel hollow section with a minimum wall thickness of 3mm, a section height of 75mm and a maximum section width of 200mm.
Certification from an Accredited Certifier, to the effect that the stormwater drainage and water harvesting systems have been prepared having regard to the conditions of development consent, shall accompany the application for the Construction Certificate.
Certification from an Accredited Certifier for stormwater design or a Chartered Civil Engineer, to the effect that the basement pump-out system has been prepared having regard to Sections 5 and 9 and Appendix L of AS/NZS3500.3:2003, shall accompany the application for the Construction Certificate.
19A. Basement car park design

The basement car park shall be designed in accordance with AS 2890 and shall incorporate the following:

(a) The minimum headroom in the basement parking area shall be 2.2m measured from the parking floor to the underside of any beam, ventilation duct or service conduit, or to the underside of any door including a security door and fittings when those doors are in an open position.

Certification to this effect shall be provided by an Accredited Certifier and this shall accompany the Construction Certificate.
19B. Engineering Work

All engineering work within the road reserve in relation to the proposed development shall be designed and constructed in accordance with the requirements of Council’s adopted “Specification for Civil Works Associated with Subdivisions and Developments”.
19C. Vibration damage

To minimise vibration damage and loss of support to the buildings in close proximity where a hydraulic hammer is to be used within 30 metres of any building (other than a path or a fence) a report shall be prepared by a qualified geotechnical engineer detailing the maximum size of hammer to be used for excavation purposes. This report shall accompany the Construction Certificate.
19D. Rainwater Harvesting & Use

Tank Installation: The tank and support structure shall be placed on a suitable foundation in accordance with the manufacturer’s or engineer’s details. It must not rest (in full or part) on the footings of any building or structure or on a retaining wall without being specifically designed for. The tank shall not be installed over or immediately adjacent to a stormwater drainage easement, water or sewer main or associated infrastructure without the consent of the appropriate authority. The tank may be free standing, partially or wholly below ground level, incorporated into the building eaves or fixed to a wall. The tank installation and all plumbing works shall be carried out by a plumber licensed with the NSW Department of Fair Trading.

Plumbing Connections
Pipes that may be in contact with rainwater for extended period are to comply with AS/NZS4020. In general, this does not apply to guttering or downpipes that deliver rainwater directly by gravity into the top of the rainwater tanks because contact with the water is transient. Underground pipework delivering water to the tank, or between tanks, or from tanks to houses (for reuse in toilets and laundries) shall comply with AS/NZS4020. Polyethylene pipes used for such pressure applications shall comply with AS/NZS4130

The installation of tanks and associated pipework infrastructure shall comply with the following standards: 1 AS/NZS2179 – Specifications for rainwater goods, accessories and fasteners. 2 AS2180 – Metal rainwater goods – selection and installation. 3 AS/NZS3500 – National Plumbing and Drainage Code. 4 AS/NZS4130 – Polyethylene (PE) pipes for pressure applications.

Potable Water Back-up
Potable water from the back-up system shall be introduced directly to the rainwater tanks(s) and not to the distribution system. Potable water is to be supplied via a dry break connection. For the developments where a single rainwater tank is used, this tank shall be considered as the Potable Water Make-up Tank. Should a development include more than one (1) rainwater tank, a single rainwater tank shall be nominated as the Potable Water Make-up Tank The Potable Water Make-up Tank shall be installed such that potable water is supplied when the storage level is reduced to between 5% and 10% of installed rainwater storage capacity. At this level, an approved mechanical float device or electrical float switch is to be used to make up potable water.

Overflow
Intense or prolonged rainfall will exceed the capacity of the rainwater tank therefore a (gravity) overflow system shall be provided to an appropriate approved Council storm water drainage system and via any OSD or retention facility if required.

Any lighting on the site shall be designed and operated so as not to cause a nuisance nor adverse impact on the other residents of the surrounding area nor to motorists on nearby roads. All external lights shall be designed in accordance with Australian Standard AS4282 - Control of the Obtrusive Effects of Outdoor Lighting.

To ensure that adequate provision is made for ventilation of the building mechanical and / or natural ventilation systems shall be provided. These shall be designed, in accordance with the provisions of:

a) The Building Code of Australia.
b) AS 1668 Part 2 - 1991.
Details of all mechanical and / or natural ventilation systems, along with specific certification provided by an appropriately qualified person verifying compliance with the abovementioned requirements, shall accompany the Construction Certificate.

To minimise the impact of noise from the development, all sound producing plant, equipment, machinery, mechanical ventilation system or refrigeration systems, shall be designed and / or located so that the noise emitted does not exceed an LAeq sound pressure level of 5dB above the ambient background level when measured at the most affected point on or within any residential property boundary.
Note: The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1.

To minimise the noise impact on the surrounding environment, the air conditioning unit and / or heat pump water heater shall be designed and/or located so that noise generated shall not cause an LAeq (15min) sound pressure level in excess of 5 dB(A) above the ambient background level, at any time the unit operates, when measured at the most affected point on or within any residential property boundary.
Notwithstanding the above requirements, between the hours of 10.00pm and 8.00am on weekends and public holidays and 10.00pm and 7.00am any other day, noise emitted shall not be heard within any residence or sole occupancy unit with its windows and/or doors open or closed.

PRE-COMMENCEMENT CONDITIONS
The following conditions are imposed to ensure that all pre-commencement matters are attended to before work is commenced.

No works in connection with this development consent shall be commenced until:
a) A Construction Certificate has been issued and detailed plans and specifications have been endorsed and lodged with Council;
b) A Principal Certifying Authority has been appointed. Council shall be notified of this appointment along with details of the Principal Certifying Authority, and their written acceptance of the appointment; and
c) Notice of commencement has been provided to Council 48 hours prior to commencement of construction work on the approved development.

Where proposed works affect the external walls of a building, a rigid and durable sign shall be erected prior to the commencement of work and maintained in a prominent position on any work site on which building work, subdivision work or demolition work is being carried out. The responsibility for this to occur is that of the principal certifying authority or the principal contractor.

The signage, which must be able to be easily read by anyone in any public road or other public place adjacent to the site, must:

a) show the name, address and telephone number of the principal certifying authority for the work, and
b) show the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and
c) state that unauthorised entry to the work site is prohibited.
Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

CONSTRUCTION CONDITIONS
These conditions are imposed to ensure the development does not unreasonably impact on the amenity of the locality during the construction or demolition phase.

All construction work approved by this development consent shall be undertaken in accordance with the objectives and controls in Part 3 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management.

To minimise the noise impact on the surrounding environment all building and demolition work shall be carried out only between the hours of 7.00am and 6.00pm Monday to Friday inclusive, 8.00am and 1.00pm Saturdays. No work shall be carried out on Sundays and Public Holidays.

Toilet facilities shall to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

Each toilet provided:
a) shall be a standard flushing toilet, and
b) shall be connected:
i) to a public sewer, or
ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or
iii) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council.

The provision of toilet facilities in accordance with this clause shall be completed before any other work is commenced.

To ensure that demolition of structures is carried out in an environmentally acceptable and safe manner:
a) The demolition of the existing building shall be carried out strictly in accordance with Australian Standard 2601 - The Demolition of Structures.
b) It is the applicant's responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a dilapidation report supported with suitable photographic records. This information shall be submitted to Council prior to the commencement of work. Any damage other than that noted prior to commencement of the demolition shall be the responsibility of the owner of the property for repair or reinstatement.
c) The applicant shall ensure that the demolition contractor has a current public risk insurance coverage for a minimum of $5 million. A copy of the Policy must be submitted to the Council prior to demolition.
d) If demolition is to commence prior to the issue of a Construction Certificate, the applicant shall submit to Council a Site Management Plan – Demolition for assessment prior to the commencement of any demolition work. This plan shall satisfy the objectives of Council's Environmental Site Management Development Control Plan and shall consider the following:
i) What actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from demolition activities, crossings by heavy equipment, plant and materials deliveries and the like;
ii) The proposed method of loading and unloading demolition machines within the site;
iii) The proposed areas within the site to be used for the storage of demolished material and waste containers during the demolition period;
iv) How it is proposed to ensure that soil / demolished material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways;
v) The requirements of any site specific Development Control Plan that may affect this development site.

e) Pre-Commencement Inspection

If demolition is to commence prior to the issue of a Construction Certificate, the Builder/principal contractor shall undertake a pre-commencement site inspection with Council's Engineering Compliance Officer and Council's Civil Asset Manager . The purpose of this inspection is to facilitate the implementation of the consent specifically with regard to the impact on the public way and to clarify any matters of concern.

Note: An inspection fee shall be paid to Council prior to the meeting. Please refer to Sutherland Shire Council’s Adopted Schedule of Fees and Charges.

To ensure that the removal and transportation of any asbestos material from the premises is carried out in an environmentally acceptable and safe manner, all work shall comply with the following:

a) Occupational Health and Safety Act 2000;
b) Occupational Health and Safety Regulation 2001;
c) Code of Practice for the Safe Removal of Asbestos 2nd Edition [NOHSC:2002(2005)];
d) Workcover NSW ‘Working with Asbestos – Guide 2008’; and,
e) Protection of the Environment Operations Act 1997.

Should works involve the removal of more than 10 square metres of asbestos material, a bonded asbestos licence is required. A friable asbestos licence is required to remove, repair or disturb any amount of friable asbestos. For further information contact the NSW Workcover Authority. Asbestos waste in any form shall be disposed of at a waste facility licensed by the Department of Environment Climate Change & Water to accept asbestos waste.
The applicant shall notify Council’s Environment & Health Regulation Unit (phone (02) 97100333 during normal business hours) of any proposed removal of asbestos material not less than 72 hours prior to the commencement of the work.

a) All earthworks including excavations and backfilling associated with the erection or demolition of a building shall be executed safely and in accordance with appropriate professional standards.
b) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.
c) All canopy, trunk and root system of all trees to be retained on site and neighbouring properties shall be protected from damage during excavation.

If the soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided, and adequate provision must be made for drainage.

If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:

a) Shall preserve and protect the building from damage.
b) If necessary, shall underpin and support the building in an approved manner.
c) Shall, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.
d) The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.
In this clause, allotment of land includes a public road and any other public place.

To protect public safety and convenience during the course of constructing the works covered by this consent, the following matters shall be complied with:
a) If the work involved in the erection or demolition of a building:
i) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed, inconvenienced, or rendered unsafe; or
ii) building involves the enclosure of a public place,
A hoarding or fence shall be erected between the work site and the public place.
b) If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.
c) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.
Any such hoarding, fence or awning shall be removed and any damage to any public place reinstated to Council's satisfaction when the work has been completed.

To minimise the impact on the surrounding environment:
a) For construction and demolition periods of four (4) weeks or less, the LAeq sound pressure level measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the ambient background level (LA90 15min) by more than 20dB(A) when measured at the nearest affected premises.
b) For construction and demolition periods greater than four (4) weeks, the LAeq sound pressure level measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the ambient background level (LA90 15min) by more than 10dB(A) when measured at the nearest affected premises.

The environment protection and management measures described in the required Environmental Site Management Plan (including sediment controls and tree protection) shall be installed or implemented prior to commencement of any site works and continuously maintained during the period of construction or demolition. These measures shall generally be in accordance with the requirements of Part 3 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management.

Run-off and erosion controls shall be installed prior to commencement of any site works and shall be continuously maintained during the period of construction or demolition. These control measures shall generally be in accordance with the requirements of Part 3 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management and shall specifically address the following matters:
a) diversion of uncontaminated runoff around cleared or disturbed areas;
b) a silt fence or other device to prevent sediment and other debris escaping from the cleared or disturbed areas into drainage systems or waterways;
c) controls to prevent tracking of sediment by vehicles onto adjoining roadways and public areas; and
d) disturbed areas shall be stabilised either temporarily or permanently by the use of turf, mulch, paving or other methods approved by the Council.

Topsoil, excavated material, construction and landscaping supplies and on site debris shall be stockpiled within the erosion containment boundary and shall not encroach beyond the boundaries of the property or the drip-line of any tree marked for retention. For further information, refer to Part 3 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management.

All construction materials, sheds, skip bins, temporary water closets, spoil, and the like, shall be kept within the property. No vehicles or machines shall be permitted to stand on Council's footpath. For further information, refer to Part 3 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management.

Any spoil deposited on public roads during cartage of materials from or to the site shall be removed immediately to the satisfaction of Council. If Council determines that excessive depositing of spoil onto the public way is taking place then the cartage of spoil shall cease if so directed by Council.

To ensure the safety of persons, the swimming pool excavation and/or swimming pool must be provided with suitable fencing to prevent a risk of falling into or drowning in the excavation and/or pool as soon as and for the period that such hazard exists.

Certificate shall be provided from a Registered Surveyor to ensure that when completed the structure will comply with the design details endorsed and accompanying the Construction Certificate:

a) Prior to the placement of concrete for the driveway ramp, verify that the location and level of the formwork is such to ensure that the concrete when placed will comply with the approved alignment of the driveway ramp, and

b) Prior to the placement of concrete for the basement floor, verify that the location and level of the formwork is such to ensure that the concrete when placed will comply with the approved finished floor levels.
43. Deleted.

Tree and shrub screen planting as required by the landscape plan in condition 8 shall be planted and maintained at all times for the life of the development.

POST CONSTRUCTION CONDITIONS
These conditions are imposed to ensure all works are completed in accordance with the Development Consent prior to either the issue of an Occupation Certificate, a Subdivision Certificate or habitation / occupation of the development.

Prior to the issue of an Occupation Certificate, a New South Wales Fire Brigades "Fire Risk Identification Guide" sticker shall be completed and permanently affixed to the inside of the dwelling's electricity meter box.
Further information can be obtained from the New South Wales Fire Brigades' website ( your local Fire Station, or by searching the keyword "FRIDG" on Council's website ( ).

All work on public land required or proposed as part of this consent shall be completed in accordance with the requirements and time frames specified in the approvals granted by Council for the work under the Local Government Act 1993 or the Roads Act 1993.
No work shall be undertaken within the road reserve or on public land without approval from Council.

Need for Certification
To ensure that all works are completed in accordance with the Development Consent, certification from an Accredited Certifier shall accompany the Occupation Certificate, to the effect that the following works have been completed.

Certificate from a Registered Surveyor certifying that the building has been set-out in relation to location and levels, in accordance with the requirements of the development consent.

Certification from a Registered Surveyor certifying that the lowest floor (or the initial floor construction) and the roof ridge of the development has been constructed in compliance with the levels approved by this development consent.

Certification from a suitably qualified Mechanical Engineer certifying that all work associated with the installation of the mechanical or natural ventilation systems has been carried out in accordance with the conditions of the development consent.

Certification from the Principal Certifying Authority certifying that all works have been completed and comply with the approved plans, conditions and specifications.

A Compliance Certificate from an Accredited Certifier certifying that all works undertaken in the road reserve have been completed in accordance with the conditions of the Road Opening Approval.

52. Deleted.

The Development shall not be occupied or used until:
a) A Final Occupation Certificate is issued and provided to Council for the development; or
b) An Interim Occupation Certificate is issued and provided to Council for the development. This shall clearly identify the part of the development to which the Interim Occupation Certificate relates.

53A. Works As Executed Information

Certification shall be provided from a registered surveyor to the effect that all civil engineering works required by this development consent have been carried out in accordance with the terms of the development consent and the approved engineering drawings with regard to location and level.
53B. Works As Executed Drawings

Certification shall be provided from the supervising engineer acting as an Accredited Certifier, to the effect that:

1. All civil engineering and stormwater works associated with development have been carried out in accordance with the terms of the development consent, the approved engineering drawings and in the case of public works Council’s Specifications For Civil Works associated with Subdivisions and Developments”.

2. The construction of the drainage system for the proposed development has been carried out in accordance with the terms of the development consent, the requirements of the approved stormwater drainage plans and Council’s stormwater management policy and guidelines and has been carried out in order that stormwater runoff downstream is not increased as a result of the development and that all assumptions made during the design remain valid. Works-as-Executed drawings certified in the above manner and containing all relevant information as required by Council's "Specification for Civil Works Associated with Subdivisions and Developments" shall accompany the Occupation Certificate.

OPERATIONAL CONDITIONS
These conditions are imposed to ensure that the use or operation of the development does not adversely impact on the amenity of the neighbourhood and the environment.

The operation of all devices or appliances installed within the development approved by this consent as stipulated in the BASIX Certificate shall be maintained in good operating order at all times.

All external lights shall be operated and maintained in accordance with the Australian Standard AS4282 - Control of the Obtrusive Effects of Outdoor Lighting so as not to cause a nuisance or adverse impact on the amenity of residents of the surrounding area nor to motorists on nearby roads.

To minimise the noise impact on the surrounding environment, the use of the air conditioning unit and / or heat pump water heater shall not cause an LAeq (15min) sound pressure level in excess of 5 dB(A) above the ambient background level, at any time the unit operates, when measured at the most affected point on or within any residential property boundary.
Notwithstanding the above requirements, between the hours of 10.00pm and 8.00am on weekends and public holidays and 10.00pm and 7.00am any other day, noise emitted shall not be heard within any residence or sole occupancy unit with its windows and/or doors open or closed.

To ensure that adequate ventilation within the building, all mechanical and / or natural ventilation systems shall be operated and maintained in accordance with the provisions of:
a) The Building Code of Australia.
b) AS 1668 Part 2 - 1991.

The swimming pool / spa pump and associated equipment shall be maintained and operated so that the noise emitted does not exceed an LAeq (15min) of not more than 5 dB(A) above the background level when measured at the most affected point on or within any residential property boundary. Not withstanding the above levels, the swimming pool/spa pump(s) and any associated equipment shall not be operated between 8.00pm and 7.00am on weekdays and 8.00pm and 8.00am weekends and Public Holidays if the noise they generate can be heard within a habitable room in any other residential premises regardless of whether any door or window to that room is open.

The operation of all devices or appliances installed within the development approved by this consent as required by conditions pertinent to rainwater harvesting and rainwater reuse shall be maintained in good operating order at all times.

The use or occupation of the basement floor area shall not be for any habitable activity, office, entertainment or general living purpose.

61. Balustrade
There shall be no balustrade on the eastern ground floor terrace.

To prevent overshadowing of the kitchen window at No 7 Sanderson Street, no planter boxes, pots, furniture or the like shall be located on the south eastern corner of the front deck in any location which casts a shadow to any part of the kitchen window at No 7 Sanderson Street.

CITATION:	Peter Connor Building Consultants v Sutherland Shire Council [2010] NSWLEC 1348
PARTIES:	APPLICANT Peter Connor Building Consultants RESPONDENTS Sutherland Shire Council
FILE NUMBER(S):	10695 of 2010
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- demolition of an existing dwelling and the construction of a new dwelling - appropriate front setback
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmental Plan 2006 Sutherland Shire Development Control Plan 2006
DATES OF HEARING:	13 December 2010
EX TEMPORE JUDGMENT DATE:	13 December 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr D Wright, solicitor SOLICITORS Willis Bowring RESPONDENT Ms J Amy, solicitor SOLICITORS Sutherland Shire Council