Pullen v North Sydney Council - [2009] NSWLEC 1376

Land and Environment Court

of New South Wales

CITATION: Pullen v North Sydney Council [2009] NSWLEC 1376

PARTIES:
APPLICANT
Mark Pullen
RESPONDENT
North Sydney Council

FILE NUMBER(S): 10617 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT MODIFICATION :- Garage within front set back, height, streetscape and visual impacts

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
North Sydney Local Environmental Plan 2001
North Sydney Development Control Plan 2002;
Draft SEPP 1 and SEPP 55.

DATES OF HEARING: 12 November 2009

EX TEMPORE JUDGMENT DATE: 12 November 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Hones (solicitor)
SOLICITOR
Hones La Hood
RESPONDENT
Ms J Hewitt (solicitor)
SOLICITOR
HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

12 November 2009
10617 of 2009 Mark Pullen v North Sydney Council

This decision was given extemporaneously. It has been revised and edited prior to publication.

JUDGMENT

1 This appeal is against council refusal of a s 96 application to modify aspects of a development consent for a new dwelling, swimming pool and garage located at 12 Levick, Street, Cremorne. The particular modifications concern:

2 I understand from the submissions that the first 2 modification items are accepted by Council and in the absence of any compelling evidence, I accept this outcome, having considered the relevant controls in the LEP and DCP.

3 The remaining concern is the impact of the increased height of the parapet on the garage. This situation has apparently occurred because the natural ground levels on the lot, which falls away from the street, were incorrectly stated. Consequently, compliance with the approved levels precludes adequate height for a functional garage.

4 However, the location of the original garage is at the front of the dwelling and is part of the existing approval.

Planning controls

5 The following controls apply:

North Sydney LEP 2001; under which the site is in the Residential A2 zone.
North Sydney DCP 2002;
Draft SEPP 1 and SEPP 55.

The evidence

6 For this appeal, Mr G. Lovell (consulting town planner for the applicant) prepared a position paper addressing the merits of the application. Evidence on behalf of council was given by Mr G. Groundwater, council’s town planner.

7 Objections were lodged by the neighbouring property owners from 10 Levick Street and summarised as:

Dissatisfaction with the location of the double garage at the front of the property and on the southern side, rather than the lower northern side.
Dissatisfaction with the increased height of the proposed garage because of potential reduced solar access and its bulk and scale causing a negative impact on the amenity of their property.

8 With reference then to the unresolved issue of the height of the garage/parapet, I have considered the competing evidence in regard to the impacts arising from the incremental increase in garage parapet height. This then excludes consideration of alternative garage/carport structures and locations because applicant is not pursuing these options

9 Consequently, I understand that the modification has arisen due to the circumstances that the natural ground levels were incorrect. In order within for the garage to function reasonably, the roof structure has to be increased in order to provide satisfactory height for access and to fit doors.

10 Due to the cross-fall on the site, it is proposed to have a slight slope on the roof, which basically springs from the approved height on the south eastern corner of the approved garage location. This sloping roof is to be shielded by a horizontal parapet, which matches the existing parapet on the northern part of the dwelling.

11 The contentions raised by the council and neighbours that this parapet is not consistent with the streetscape and it will cause disamenity to the residents of 10 Levick Street in terms of shadowing and loss of solar access and also result in unsatisfactory visual bulk impacts.

Shadowing/loss of solar access

12 These impacts were discussed by the planners based on shadow impact assessment undertaken by Mr Lovell. This results in the southern part of the parapet projecting a relatively thin shadow strip, approximately 2 m wide across the front lawn in mid winter. It does not affect the dwelling or the principal outdoor, open space areas at the rear of the dwelling.

13 Both Mr Lovell and Mr groundwater agree that the shadowing impact is minimal. Having considered this matter and taking into account my observations at the view, I do not consider the shadowing from the relatively small section of the parapet onto No 10 causes such material effect, so as to warrant rejection in this respect. Accordingly, I am satisfied demonstrates reasonable compliance with s7.2 (f) of the NSDCP 2002.

Visual impacts

14 The other impact concerns the visual bulk, which Mr Lovell considers acceptable. When cross-examined, Mr Groundwater said that from the front of No 10, the non-complying, southern part of the parapet was a triangular section in the order of 400 mm high and length of approximately 1 m, which caused offence. However, as this triangular section of parapet is not in any primary viewing corridor, being instead in a secondary view corridor towards the side boundary, then he conceded that the visual impact was not of such magnitude to warrant rejection of the application. I accept this opinion in the circumstances.

15 Having considered the evidence, the objections and undertaken a view, I am satisfied that:

16 Clause 14 of the LEP requires:

14. Consistency with the aims of plan, zone objectives and desired character.

1) When considering a development application, the consent authority must take into account the aims and objectives stated in this plan.

2) Consent must not be granted to carrying out of any development that, in the opinion of the consent authority, is inconsistent with the specific aims of this plan, the objectives of the zone or the objectives of the controls.

17 Firstly, the aims and objectives of the plan refer to promoting the character of the North Sydney neighbourhoods, whereby residential development is to protect and enhance the residential uses and amenity. Considering that approval has already been granted for the garage in the front set back area, I am satisfied the proposed modifications are not inconsistent with these controls.

18 As the site is within Residential A2 zone, relevantly I am satisfied the proposal is consistent with the zone objectives of maintaining the lower scale of this residential neighbourhood, comprising mainly detached and duplex housing. There was no compelling evidence to the contrary.

19 C 18 deals with the Building Height Plane (BHP) provisions and this was reviewed on the basis of the details contained in exhibit B. From the side boundary, there is reasonable compliance. But there is a non-compliance on the south eastern corner from the front alignment. However, I am satisfied that the degree of this non-compliance is relatively contained to a minor part of the area and it is not inconsistent objectives in s18(1).

20 Furthermore, relative to clause 18 (5) I am satisfied that the proposal will not materially overshadow the neighbouring property or obstruct views from property. As previously noted, I have also considered the relevant controls in the DCP, particularly cl. 7.2 (f) dealing with solar access and I am satisfied this is reasonably complied with.

21 With reference to section; h, Form, massing and scale, I am satisfied that the modification is acceptable and not significantly larger than characteristic buildings in the neighbourhood.

22 I have also considered provisions of section; i Location of car parking, and note that while the location of garages in the front of properties is discouraged, this matter was originally determined by Council. This apparently took into account the features of the lot, in the context of the adjoining road alignment and traffic access. I now do not consider the incremental change arising from the s 96 modification is sufficient to warrant refusal of this application.

23 In this regard, I have considered the references made to other garage structures within the neighbourhood and I am satisfied that the proposed modification represents a reasonable balance terms of streetscape impacts and visual impacts on the neighbouring property. This is partly on the basis of the applicant’s agreement to incorporate appropriate, matching windows on the southern side elevation, to partially reduce apparent visual bulk. This can be covered by conditions.

24 Accordingly, I am satisfied that the proposed modifications merit conditional consent. This includes the agreed modifications to the dwelling roof and stormwater drainage, which satisfies concerns raised by the downstream neighbour.

25 The Court orders:

Consolidated Conditions of

Consent

R Hussey

Commissioner of the Court

Annexure ‘A’

Consolidated Conditions of Consent

12 LEVICK STREET, CREMORNE

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT, 1979 AS AMENDED
ROADS ACT 1993, AND LOCAL GOVERNMENT ACT 1993 AS APPLICABLE

A. Conditions that Identify Approved Plans

Development in Accordance with Plans (modified by NSWLEC 12/11/2009) A1

A1. The development being carried out in accordance with drawings numbered A01B, A02B, A04B, A05B, A06B, dated 29 April 2008; Drawing numbered A03A, dated 8 April 2008; Drawing numbered A08, dated May 2008; all drawn by Linda Lesslie Architects, and received at Council on 30 April 2008, and endorsed with Council’s approval stamp, except as modified by :-

a. Drawings numbered S96B01 & S96B03, dated June 2009, drawn by Linda Lesslie Architect; Drawing numbered A01C, dated 14 April 2009, drawn by Linda Lesslie Architect; Drawing numbered 07.063-SMP, Revision A, undated, drawn by GNG Designs; Drawing numbered S96B04, undated, drawn by Linda Lesslie Architect, except as amended by the following conditions.

(Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council, Public Information)

Plans on Site A2

(Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council, Public Information and to ensure ongoing compliance)

No Demolition of Extra Fabric A3

A3. Alterations to, and demolition of the existing building shall be limited to that documented on the approved plans (by way of notation). No approval is given or implied for removal and/or rebuilding of any portion of the existing building which is shown to be retained.

(Reason: To ensure compliance with the approved development)

Landscaped Plan

A4. Landscaping works on the site are to be undertaken generally in accordance with the landscaping plan titled Landscape Site Plan, and planting plan titled Planting Plan, both dated 28 September 2007, drawn by Paul Scrivener Landscape Architect, and all received at Council on 18 December 2007.

(Reason: To ensure appropriate landscaped area and landscaping amenity at the final inspection stage of the development)

Pool Sections

A5. The swimming pool works on the site are to be undertaken in accordance with the section plans titled Sections and Elevations, dated 28 September 2007, drawn by Paul Scrivener Landscape Architect, and received at Council on 18 December 2007.

(Reason: To ensure works are constructed in accordance with the consent)

Brick Boundary Fence

(Reason: Owner’s consent has not been provided for the removal or modification of the subject fence)

Boundary Fence

(Reason: To ensure the bulk and scale of the development is acceptable)

C. Conditions that Require Subsidiary Matters to be Completed Prior to Issue of a Construction Certificate

Street Tree

(Reason: To ensure that the existing streetscape is not adversely impacted by the development; to gain sufficient clearance between the street tree and driveway crossing)

Privacy Screen

(Reason: To ensure the visual privacy of the adjoining property to the southwest is not adversely impacted)

Southeast Elevated Walkway

(Reason: To ensure that the structure will not adversely impact on the amenity of the adjoining property)

Colour Scheme C6

(Reason: To ensure that the proposed paving is appropriate to the existing building and the surrounding conservation area)

Pool Lighting

(Reason: To ensure compliance with approved plans and to ensure pool lighting does not adversely affect residents of adjoining properties)

Pool Filter G13

(Reason: To ensure noise generated by equipment does not result in offensive noise)

Swimming Pool Water to Sewer G10

(Reason: Water from a swimming pool is classified as wastewater and cannot be legally disposed of into the stormwater system)

Pool Access C66

(Reason: To ensure the safety of children and make applicant aware of the need to comply with applicable pool fencing legislation)

Design and Survey for Public Infrastructure C13

(Reason: To ensure the provision of public infrastructure of an appropriate standard, and record keeping purposes)

Sediment Control C40

(a) All details of drainage to protect and drain the site during the construction processes;

(b) All sediment control devices, barriers and the like;

(c) Sedimentation tanks, ponds or the like;

(d) Covering materials and methods;

(e) A schedule and programme of the sequence of the sediment and erosion control works or devices to be installed and maintained.

(Reason: To protect the environment from the effects of sedimentation and erosion from development sites)

Dilapidation Survey C41

All costs incurred in achieving compliance with this condition shall be borne by the person entitled to act on this Consent.

In the event that access for undertaking the dilapidation survey is denied by an adjoining owner, the applicant, MUST DEMONSTRATE, in writing, to the satisfaction of Council 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. Written concurrence must be obtained from Council in such circumstances.

(Note: This documentation is for record keeping purposes only, and may be used by an applicant or affected property owner to assist in any action required to resolve any dispute over damage to adjoining properties arising from the works. It is in the applicant’s and adjoining owner’s interest for it to be as full and detailed as possible.)

(Reason: Proper management of records)

Structural Adequacy of Adjoining Properties – Excavation Works C42

Asbestos & Hazardous Material Survey C46

(a) A report prepared by an appropriately qualified person (such as an Occupational Hygienist or Environmental Consultant) is to be submitted to the Certifying Authority, with the Construction Certificate application, detailing whether any asbestos or hazardous materials exist on the site that are affected by the proposed building works. (eg. lead in paints and ceiling dust or asbestos based products).

Note: If no hazardous materials are identified, the demolition may proceed in accordance with AS2601 and the following conditions, including dust control and WorkCover requirements.

(c) Where unacceptably high levels of lead are found in a premises to be demolished, Item (b) is to be followed, and if the directed by the appropriately qualified person, the soil sample from site is to be tested by a NATA Registered laboratory before and after demolition and submitted to Council. This will determine whether remediation of the site is necessary.

(d) The demolition must be undertaken in accordance with AS2601.

(e) Any works involving asbestos based products must be undertaken in accordance with the requirements of the WorkCover Authority in relation to removal, handling and disposing of material, and the Work Safe Australia Asbestos Code of Practice. (Refer to the information publications provided in your approvals package for more specific information)

AS 4361.2-1998 : Guide to lead paint management - Residential and commercial buildings.

Details demonstrating compliance with these requirements are to be approved by the Certifying Authority and submitted with the Construction Certificate.

.
2. Failure to comply with legislative requirements relating to the removal or handling of hazardous materials is likely to result in enforcement action, including fines or prosecution without prior warnings.

(Reason: To ensure the long term health of workers on site and occupants of the building is not put at risk unnecessarily)

Reflectivity Index of Glazing C47

C14. The reflectivity index (expressed as a percentum of the reflected light falling upon any surface) of external glazing for windows, walls or roof finishes of the proposed development is to be no greater than 20%. Written confirmation of the reflectivity index of materials is to be submitted with the Construction Certificate.

(Note: The reflectivity index of glazing elements can be obtained from glazing manufacturers. Glass with mirrored or reflective foil finishes is unlikely to achieve compliance with this requirement.

(Reason: To ensure that excessive glare or reflectivity nuisance from glazing does not occur as a result of the development)

Roofing Materials - Reflectivity C48

C15. Roofing materials shall be factory pre-finished with low glare and reflectivity properties to be compatible with the colours of neighbouring buildings. The selected roofing material must not cause a glare nuisance or excessive reflectivity to adjoining or nearby properties. The Certifying Authority must ensure that the building plans and specifications submitted by the applicant, referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To ensure that excessive glare or reflectivity nuisance from roofing materials does not occur as a result of the development)

S94 Contributions C70

C16. A contribution pursuant to the provisions of Section 94 of the Environmental Planning and Assessment Act 1979, as specified under the North Sydney Section 94 Contribution Plan for the services detailed in column A and, for the amount detailed in column B shall be made to Council.

A	B ($)
Administration	49.17
Child Care Facilities	85.17
Community Centres	223.22
Library Acquisition	41.63
Library Premises & Equipment	128.81
Multi Purpose Indoor Sports Facility	35.17
Olympic Pool	114.56
Open Space Acquisition	1,403.92
Open Space Increased Capacity	2,782.81
Public Domain Improvements	110.01
Traffic Improvements	135.03
The total contribution is	$ 5,109.49

The contribution SHALL BE paid prior to determination of the application for Construction Certificate, where applicable.

The above amount, if not paid within one calendar year of the date of this consent, shall be adjusted for inflation by reference to the Consumer Price (All Ordinaries) Index applicable at the time of the payment of the contribution.

A copy of the North Sydney Section 94 Contribution Plan can be viewed at North Sydney Council’s Customer Service Centre, 200 Miller Street, North Sydney or downloaded via Council’s website at

Security Bond Schedule C71

C17. All fees and security bonds in accordance with the schedule below must be paid or in place prior to the issue of the required Construction Certificate:

SECURITY BONDS	AMOUNT ($)
Completion of Infrastructure Works Bond	3,500.00
Potential Damage to Council's Drainage Easement	2,000.00
TOTAL BONDS	$5,500.00
FEES
Section 94 contribution	5,109.49
TOTAL FEES	$5,109.49

(Reason: Compliance with the development consent)

Basix Commitments C78

C18. Under clause 97A(3) of the Environmental Planning & Assessment Regulation 2000, it is a condition of this development consent that all the commitments listed in each relevant BASIX Certificate for the development are fulfilled. Details and plans demonstrating compliance with these requirements are to be provided with the Construction Certificate.

In this condition:

(a) relevant BASIX Certificate means:

(ii) if a replacement BASIX Certificate accompanies any subsequent application for a construction certificate, the replacement BASIX Certificate; and

(b) BASIX Certificate has the meaning given to that term in the Environmental Planning & Assessment Regulation 2000.

(Reason: To ensure the proposed development will meet the Government’s requirements for sustainability and statutory requirements)

Dilapidation Report (Public Infrastructure)

C19. To enable issue of the Construction Certificate by the Certifying Authority, the applicant must first submit to North Sydney Council a photographic record and report on the visible condition of the existing public infrastructure over the full site frontage and adjacent areas (in color). The photos must include detail of:

The existing footpath
The existing kerb and gutter
The existing full road surface between the opposite kerb
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 in detail and demonstrated under the requirements of this condition.

Bond for Infrastructure Damage and Completion of Engineering Works
(Modified by NSWLEC 12/11/2009)

C20. Prior to the issue of a Construction Certificate the applicant must lodge a $5,500.00 public infrastructure damage bond with Council. This bond is applied pursuant to Section 97 of the Local Government Act 1993 to cover the cost of: -

Making good any damage that may be caused to any public infrastructure as a consequence of doing or not doing any thing to which this approval relates,
Completing any public infrastructure works that are required in connection with this approval.

The bond is calculated as follows:-

Description	Amount
Completion of required road infrastructure works	$3,500.00
Potential damage to Council’s drainage easement	$2,000.00

The bond shall be lodged in the form of a deposit or bank guarantee and will be refundable following completion of all works relating to the proposed development and at the end of any maintenance period stipulated by consent conditions, upon approval by Council’s Engineers. Further, Council shall have full authority to make use of the bond for such restoration works as deemed necessary by Council in the following circumstances:-

(Reason: To ensure security is in place to maintain quality of public infrastructure)

No External Service Ducts C49

C21. Service ducts shall be provided within the building to keep external walls free of plumbing, drainage or any other utility installations. The Certifying Authority must ensure that the building plans and specifications submitted by the Applicant referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To ensure quality built form of the development)

Waste Management Plan C54

C22. A Waste Management Plan is to be submitted with the Construction Certificate in accordance with the provisions of Section 19 of the North Sydney DCP 2002. The plans should include, but not be limited to, the estimated volume of waste and method of disposal for the construction and operation phases of the development, design of on-site waste storage and recycling area and administrative arrangements for waste and recycling management during the construction process.

(Reason: To encourage the minimisation of waste and recycling of building waste)

Underground Electricity and Other Services C57

C23. All overheard electricity and other lines (existing and proposed) shall be underground from the proposed building on the site to the appropriate power pole(s) or other connection point, in accordance with the requirements of Energy Australia. The Certifying Authority must ensure that the building plans and specifications submitted by the Applicant referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To provide infrastructure that facilitates the future improvement of the streetscape by relocation of overhead lines below ground)

Obtain Vehicle Access and associated works permit and specifications

C24. Prior to the issue of the construction certificate, North Sydney Council must issue the person acting on this consent a driveway crossing and road infrastructure works permit to suit the approved off street parking facilities . The responsibility for ensuring the permit is obtained from Council in accordance with this condition rests with the Principal Certifying Authority. In order to obtain the permit, the person acting on the consent must lodge a ‘ Vehicular Access Application’ form and pay the adopted assessment/inspection fee with Council. Council will require engineering construction drawings and certification from the applicant’s Civil Engineer to verify details and enable permit issue. The drawings shall satisfy the following requirements of Council:

1) All elements of the works within the road reserve shall be constructed in accordance with Council’s current documents Infrastructure Specification and Vehicular Access Application Guidelines and Specification.

6) The applicant shall reconstruct/construct the carriageway shoulder 600 mm wide strip adjacent to all new gutter works, layback, kerb/gutter.

All driveway and infrastructure works on the road reserve must proceed in accordance with the terms of the permit issued by Council. Inspections by Council will be required as specified.

(Reason: To facilitate appropriate vehicular access to private sites, without disruption to pedestrian and vehicular traffic prior to the issue of an Occupation Certificate)

Stormwater (Modified by NSWLEC 12/11/2009

C25. Plans indicating all engineering details relevant to the site regarding the collection and disposal of stormwater from the site, buildings, and adjacent catchments, shall be submitted to the Certifying Authority for approval with the Construction Certificate for construction works. Stormwater shall be conveyed by gravity from the site to the nearest Council stormwater drainage system. All proposals shall be in accordance with Council’s specifications.

(Reason: To ensure appropriate provision is made for the disposal and management of stormwater generated by the development, and to ensure that infrastructure reverting to Council’s care and control is of an acceptable standard)

Windows on Garage (Modified by NSWLEC 12/11/2009)

C26. The windows on the southern elevation of the garage, detailed on drawing numbered S96B04, undated, drawn by Linda Lesslie Architect must be obscure glazed. The Certifying Authority must ensure that the building plans and specifications submitted by the Applicant referenced on and accompanying the issued Construction Certificate, fully satisfy the requirements of this condition.

(Reason: To ensure compliance with this development consent)

D. Conditions That Must Be Addressed Prior To Any Commencement

Protection of Trees During Works D2

D1. All trees that are to be specifically nominated to be retained by notation or condition as a requirement of development consent shall be maintained and protected during demolition, excavation and construction on the site. Protection methods shall be provided to the Principal Certifying Authority by an appropriately qualified person prior to commencement of any works on the site, and any recommendations (or methods) to ensure the protection of trees shall be undertaken for the duration of works on the site.

(Reason: To ensure compliance with the requirement to retain significant planting on the site)

Excavation/Demolition D4

D2. No building work, demolition or excavation shall be carried out until a Construction Certificate has been issued.

(Reason: To ensure compliance with statutory provisions)

Re-use of Sandstone D5

D3. Sandstone blocks (if any) removed from the site are to be either stored for re-use on site or offered to Council in the first instance.

(Note: The provisions of the Heritage Act may also apply to altering any sandstone elements on any site)

(Reason: To allow for preservation of cultural resources within the North Sydney Council area)

Cigarette Butt Receptacle D9

D4. A cigarette butt receptacle is to be provided on the site for the duration of excavation/demolition/construction process, for convenient use of site workers.

(Reason: To ensure adequate provision is made for builders’ waste)

Public Liability Insurance – Works on Public Land D10

D5. Any person or contractor undertaking works on public land must take out Public Risk Insurance with a minimum cover of $10 million in relation to the occupation of, and approved works within Council’s road reserve or public land, as approved in this consent. The Policy is to note, and provide protection for North Sydney Council, as an interested party and a copy of the Policy must be submitted to Council prior to commencement of the works. The Policy must be valid for the entire period that the works are being undertaken on public land.

(Reason: To ensure the community is protected from the cost of any claim for damages arising from works on public land)

E. Conditions that Must be Complied With During Demolition and Building Work

Height E1

E1. The maximum RL of the proposed development shall be RL 60.15 AHD measured at its ridgeline

(Reason: To ensure compliance with the terms of this development consent)

Approved Materials E3

E2. The colour, texture and substance of all external materials shall be generally as detailed in the application.

(Reason: To ensure compliance with the terms of this development consent)

Removal of Extra Fabric E14

E3. Should any portion of the existing building, trees, or curtilage of the site which is indicated on the approved plans to be retained be damaged for whatever reason, all the works in the area of the damaged portion are to cease and written notification given to Council. No work is to resume until the written approval of Council is obtained. Failure to comply with the provisions of this condition will result in the Council taking further action including legal proceedings if necessary.

(Reason: To ensure compliance with the terms of this development consent)

Noise & Vibration E15

E4. Noise emissions and vibration must be minimised where possible and work is to be carried out in accordance with Environment Protection Authority guidelines for noise emissions from construction/demolition works and must also comply with the provisions of the Protection of the Environment Operations Act 1997.

(Reason: To ensure residential amenity is maintained in the immediate vicinity)

Dust Emission and Air Quality E16

E5. Materials must not be burnt on the site.

Vehicles entering and leaving the site with soil or fill material must be covered.
Dust suppression measures must be carried out to minimise wind-borne emissions in accordance with the NSW Department of Housing’s 1998 guidelines - Managing Urban Stormwater: Soils and Construction. Odour suppression measures must also be carried out where appropriate so as to prevent nuisance occurring at adjoining properties.

Applicant’s Cost of Work on Council Property E19

E6. The applicant shall bear the cost of all works associated with the development that occurs on Council’s property.

(Reason: To ensure the proper management of public land and funds)

Special Permits E23

E7. Unless otherwise specifically approved in writing by Council, all works, processes, storage of materials, loading and unloading associated with the development are to occur entirely on the property. The applicant, owner or builder must apply for specific permits available from Council’s Customer Service Centre for the undermentioned activities on Council’s property pursuant to S138 of the Roads Act. A minimum of forty-eight (48) hours notice is required for any permit:-

On-street mobile plant

Eg. cranes, concrete pumps, cherry-pickers, etc. - restrictions apply to the hours of operation, the area of operation, etc. Separate permits are required for each occasion and each piece of equipment. It is the applicant’s, owner’s and builder’s responsibilities to take whatever steps are necessary to ensure that the use of any equipment does not violate adjoining property owner’s rights.

(Reason: Proper management of public land)

Hoardings

Permits are required to erect Class A and Class B hoardings. If an ‘A’ Class hoarding is to alienate a section of Council’s property, that section will require a permit for the occupation of Council’s property.

(Reason: Proper management of public land)

Storage of building materials and building waste containers (skips) on Council’s property

Permits to utilise Council property for the storage of building materials and building waste containers (skips) are required for each location. Failure to obtain the relevant permits will result in the building materials or building waste containers (skips) being impounded by Council with no additional notice being given. Storage of building materials and waste containers on open space reserves and parks is prohibited.

(Reason: Proper management of public land)

Kerbside restrictions, construction zones

The applicant’s attention is drawn to the existing kerbside restrictions adjacent to the development. Should the applicant require alteration of existing kerbside restrictions, or the provision of a construction zone, the appropriate application must be made and the fee paid. Applicants should note that the alternatives of such restrictions may require referral to Council’s Traffic Committee and may take considerable time to be resolved. An earlier application is suggested to avoid delays in construction programs.

Noxious Plants E24

E8. All lantana, privet, rubber trees, asthma weed, and other declared noxious plants on the site, shall be eradicated before the commencement of landscape works.

(Reason: To ensure that plants identified as weed species are not allowed to proliferate or interfere with a quality landscaping outcome)

Construction Hours E25

E9. Building construction shall be restricted to within the hours of 7.00 am to 5.00 pm Monday to Friday and on Saturday to within the hours of 8.00 am to 1.00 pm inclusive, with no work on Sundays and Public Holidays.

Demolition and excavation works shall be restricted to within the hours of 8.00 am to 5.00 pm Monday to Friday only.

The builder and excavator shall display, on-site, their twenty-four (24) hour contact telephone number, which is to be clearly visible and legible from any public place adjoining the site.

(Reason: To ensure that works do not interfere with reasonable amenity expectations of residents and the community)

Installation and Maintenance of Sediment Control E27

E10. Techniques used for erosion and sediment control on building sites are to be adequately maintained at all times and must be installed in accordance with the “North Sydney Council Guidelines on Sediment and Erosion Control”. All techniques shall remain in proper operation until all development activities have been completed and the site fully stabilised.

(Reason: To protect the environment from the effects of sedimentation and erosion from development sites)

Sediment and Erosion Control Signage E28

E11. A durable sign, which is available from Council, shall be erected during building works in a prominent location on site, warning of penalties should appropriate erosion and sedimentation control devices not be maintained.

(Reason: To protect the environment from the effects of sedimentation and erosion from development sites)

Health and Safety E32

E12. The work undertaken must satisfy applicable occupational health and safety and construction safety regulations, including any WorkCover Authority requirements to prepare a health and safety plan. Site fencing must be installed sufficient to exclude the public from the site. Safety signs must be erected that; warn the public to keep out of the site, and provide a contact telephone number for enquiries.

Further information and details regarding occupational health and safety requirements for construction sites can be obtained from the internet at

(Reason: To ensure the health and safety of the community and workers on the site)

Landscaping and Rehabilitation E35

E13. Disturbed areas must be progressively stabilised and revegetated in accordance with the approved landscape plan as soon as practical after construction.

(Reason: To ensure that appropriate landscaping is undertaken within a reasonable timeframe in accordance with community expectations)

Occupation Certificate Required E40

E14. An Occupation Certificate shall be obtained in relation to the approved works prior to any use or occupation of those parts of the building.

(Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act)

Prohibition on Use of Pavements E41

E15. Building materials shall not be placed on Council's footpaths, roadways, parks or grass verges, (unless a permit is obtained from Council beforehand) and a suitable sign to this effect shall be erected adjacent to the street alignment.

(Reason: To ensure public safety and amenity on public land)

Plant & Equipment Kept Within Site E42

E16. All plant and equipment used in the erection of the building, including concrete pumps, wagons, lifts, mobile cranes, hoardings etc, shall be situated within the boundaries of the site (unless a permit is obtained from Council beforehand) and so placed that all concrete slurry, water, debris and the like shall be discharged onto the building site, and is to be contained within the site boundaries.

Details of Council requirements for permits on public land for standing plant, hoardings, storage of materials and construction zones and the like are available on Council’s website at .

(Reason: To ensure public safety and amenity on public land)

Temporary Disposal of Stormwater Runoff

E17. During construction, stormwater runoff must be disposed 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: Erosion and Sediment control)

Road Reserve Safety

E18. 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 and plant must not be stored in the road reserve without approval. 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 public amenity and safety)

Applicant responsible for all Services in, on or over site

E19. Council accepts no responsibility whatsoever for any matter arising from its approval of this application involving any influence upon service infrastructure not previously identified on the site (including but not limited to stormwater pipes, phone lines, water mains, sewer, gas, electricity and the like). It is the applicant’s full responsibility to ensure the approved development does not create undue impacts on the same, and to ascertain the impacts of the proposal upon such services. Where required, the adjustment or inclusion of any new service infrastructure must be carried out by the applicant and in accordance with the requirements of the relevant authority. These works shall be at no cost to Council. It is the applicant’s full responsibility to make contact with the relevant utility authorities.

(Reason: The applicant is responsible for ensuring the development is compatible with the services on the land)

F. Operational Conditions imposed under EP&A Act and Regulations and other relevant Legislation

Building Code of Australia F1

F1. All building work must be carried out in accordance with the provisions of the Building Code of Australia.

(Reason: Prescribed - Statutory)

Home Building Act F2

F2. (1) Building work that involves residential building work (within the meaning and exemptions provided in the Home Building Act) must not be carried out unless the Principal Certifying Authority for the development to which the work relates:

Note: The amount referred to in paragraph (b)(ii) is prescribed by regulations under the Home Building Act 1989. As at the date on which this Regulation was Gazetted, that amount was $3,000. As those regulations are amended from time to time, that amount may vary.

(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.

(3) If arrangements for doing residential building work are changed while the work is in progress so that the information submitted to Council is out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council), has given the Council written notice of the updated information.

(Reason: Prescribed - Statutory)

Excavation/Demolition F3

F3. (1) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.

(Reason: To ensure that work is undertaken in a professional and responsible manner and protect adjoining property and persons from potential damage)

Retaining Walls & Drainage F4

F4. If the soil conditions require it:

(Reason: To ensure appropriate measures are in place to address site conditions and provide appropriate site drainage)

Protection of Public Places F6

F5. (1) If the work involved in the erection or demolition of a building:-

(a) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient; or

(b) building involves the enclosure of a public place,

a hoarding and site fencing must be erected between the work site and the public place.

(2) 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.

(3) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

(4) Any such hoarding, fence or awning is to be removed when the work has been completed.

(5) No access across public reserves or parks is permitted.

(Reason: To ensure public safety and the proper management of public land)

Site Sign F7

F6. (1) A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:

(a) stating that unauthorised entry to the work site is prohibited;

(b) showing the name of the principal contractor (or person in charge of the work site), and a telephone number at which that person may be contacted at any time for business purposes and outside working hours; and

(2) Any such sign must be maintained while to building work or demolition work is being carried out, but must be removed when the work has been completed.

(3) This condition does not apply to building works being carried out inside an existing building.

(Reason: Statutory requirement)

Toilets F8

F7. (1) Toilet facilities are 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.

(2) Each toilet provided:

(a) must be a standard flushing toilet, and

(3) The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced.

(4) In this clause:

accredited sewage management facility

approved by the Council

public sewer

sewage management facility

(Reason: To ensure adequate facilities are provided for workers on the site)

G. Conditions which Must be Complied With Prior to Issue of Occupation Certificate

Certification- Civil Works G6

G1. (a) An appropriately qualified and practising Civil Engineer shall certify to the Principal Certifying Authority that the stormwater drainage system was constructed in accordance with this consent and the provisions of AS3500.3.2. The applicant shall, upon completion of the development works and prior to the issue of a final Occupation Certificate, submit to Council a copy of the aforementioned letter of certification.

(b) An appropriately qualified and practicing Civil Engineer shall certify to the Principal Certifying Authority that the vehicular crossing and associated works and road works were constructed in accordance with this consent. The applicant shall, upon completion of the development works and prior to the issue of a final Occupation Certificate, submit to Council a copy of the aforementioned letter of certification.

(Reason: Compliance with the Consent)

Pool Access G11

G2. Access to the pool shall be restricted by a child resistant barrier in accordance with the regulations prescribed in the Swimming Pools Act, 1992, and:-

(a) The pool shall not be filled with water or be allowed to collect stormwater until the installation of the child resistant barrier is completed; and

(b) The barrier is to conform to the requirements of AS 1926 Fences and Gates for Private Swimming Pools.

Certification from an appropriately qualified person confirming compliance with these requirements shall be provided prior to the issuing of any Occupation Certificate.

(Reason: To ensure that any person acting upon this consent is aware of their obligations under the provisions of the Swimming Pools Act, to prevent young children from accidental death by drowning)

Pool Safety Requirements G12

G3. The owner of the pool shall display a notice showing:

(a) Appropriate instructions of artificial resuscitation methods.

(b) A warning stating ‘YOUNG CHILDREN SHOULD BE SUPERVISED WHEN USING THIS POOL’.

Note: This notice shall be kept in a legible condition and at the pool side.
Details demonstrating compliance are to be provided with any Occupation Certificate issued for the pool.

Damage to Adjoining Properties G16

G4. All precautions must be taken to prevent any damage likely to be sustained to adjoining properties. Adjoining owner property rights and the need for owner’s permission must be observed at all times, including the entering onto land for the purpose of undertaking works.

On completion of the works and prior to the issue of a final Occupation Certificate, a certificate is to be prepared to the effect that that no damage has resulted to adjoining premises, and is to be provided to Council and the Principal Certifying Authority.

Alternatively, if damage is identified which is considered to require rectification, the damage shall be rectified or a satisfactory agreement for rectification of the damage is to be made with the affected person/s as soon as possible and prior to the issue of a final Occupation Certificate.

(Reason: To ensure adjoining owner’s property rights are protected)

Utility Services G18

G5. All utility services shall be adjusted, to the correct levels and/or location/s required by this consent, prior to final completion and the issue of a final occupation certificate.

(Reason: To ensure compliance with the terms of this consent)

Construction Consistent with Development Consent G23

G6. Prior to issuing a final Occupation Certificate for the proposed building work, the Principal Certifying Authority shall certify that the building, as constructed, is consistent with the details shown on the plans approved under this development consent, referred to in condition A1.

(Reason: This requirement is considered consistent with the role of the PCA as currently outlined within the provisions of the Environmental Planning and Assessment Act and Regulations. Council considers that confirming compliance with the approved plans and conditions is an essential and fundamental role of a PCA)

Asbestos Clearance Certificate G26

G7. Prior to issuing any Occupation Certificate for building works where asbestos based products have been removed or altered, an asbestos clearance certificate signed by an appropriately qualified person (being an Occupational Hygienist or Environmental Consultant) must be submitted to the Principal Certifying Authority (and a copy forwarded to Council) for the building work which certifies the following:-

The building is free of asbestos; or
The building has asbestos that is presently deemed safe.

The certificate must also be accompanied by tipping receipts, which detail that all asbestos waste has been disposed of at an approved asbestos waste disposal depot. If asbestos is retained on site the certificate must identify the type, location, use, condition and amount of such material.

(Note: Further details of licensed asbestos waste disposal facilities can be obtained from

Completion of infrastructure works

G8. Prior to issue of the final Occupation Certificate, the applicant must complete the following infrastructure works in association with the development:

All redundant lay-backs and vehicular crossings to be reinstated to conventional kerb and gutter, foot-paving or grassed verge as appropriate.
Repair of any damaged public infrastructure.
Construction of the new driveway crossing, layback and associated transitioning and/or road shoulder works in accordance with the vehicle access permit and specifications obtained from North Sydney Council prior to Construction Certificate issue.

All costs shall be borne by the applicant and works shall be completed to the satisfaction of Council development engineer.

Works as Executed Drawings – Stormwater (Modified by NSWLEC 12/11/2009)

G9. Prior to issue of the final occupation certificate, the applicant shall obtain a works-as-executed survey drawing (W.A.E.) of the completed site drainage system. The W.A.E. drawing shall show the alignment, depth and grade of the stormwater drainage pipelines, pits and ancillary plumbing. The W.A.E shall be reviewed by a qualified civil engineer and certification provided to the PCA that the as-built system achieves the design intent of the plans approved with the Construction Certificate. This certification shall be provided with the W.A.E survey.

(Reason: To ensure compliance and provide record of completed drainage system for future reference and maintenance purposes)

I. On-going Conditions that Must be Complied with at All Times

Pool Cover

I1. A pool cover must be installed and available for use at all times when the pool is not in use.

(Reason: To minimise water usage)

Pool Equipment I10

I2. The pool equipment shall not operate between 10.00 pm and 7.00 am.

(Reason: To ensure compliance with acceptable levels of noise established under best practice guidelines)

Paving I6

I3. Paving shall constitute not more than 20% of the total landscaped area.

(Reason: To ensure that landscaping provided on the site contains an appropriate quantum of soft landscaping)

_______________________
R Hussey
Commissioner of the Court
ljr

CITATION:	Pullen v North Sydney Council [2009] NSWLEC 1376
PARTIES:	APPLICANT Mark Pullen RESPONDENT North Sydney Council
FILE NUMBER(S):	10617 of 2009
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT MODIFICATION :- Garage within front set back, height, streetscape and visual impacts
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2001 North Sydney Development Control Plan 2002; Draft SEPP 1 and SEPP 55.
DATES OF HEARING:	12 November 2009
EX TEMPORE JUDGMENT DATE:	12 November 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Hones (solicitor) SOLICITOR Hones La Hood RESPONDENT Ms J Hewitt (solicitor) SOLICITOR HWL Ebsworth Lawyers