Redford v Woollahra Municipal Council - [2009] NSWLEC 1208

Land and Environment Court

of New South Wales

CITATION: Redford v Woollahra Municipal Council [2009] NSWLEC 1208

PARTIES:
APPLICANT
Peter Redford and Maria Redford
RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S): 10165 of 2009

CORAM: Murrell C

KEY ISSUES: SECTION 96 APPLICATION :- Development modification application, impact on streetscape and impact on heritage item.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan
Woollahra Development Control Plan
Paddington Heritage Conservation Area Development Control Plan

DATES OF HEARING: 18 June 2009

EX TEMPORE JUDGMENT DATE: 18 June 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr R Smyth (Agent)
RESPONDENT
Mr N Howie (Solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

18 June 2009
10165 of 2009 Peter Redford and Maria Redford v Woollahra Municipal Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 The applicant in these proceedings has submitted a s 96 application for a modification to the consent granted by the Woollahra Municipal Council. The council approval 10 November 2008 was for major alterations and additions to a dwelling house at No. 106 Glenmore Road, Paddington. It is noted that the subject dwelling does not exhibit heritage qualities in terms of the need for it to be conserved.

2 Adjoining the subject property at No. 96-104 Glenmore Road, is the heritage item known as ‘Lammermuir’ and therefore the relevant Local Environmental Plan provisions as to any impact of development in the vicinity of a heritage must be considered. On the same allotment as the heritage item or perhaps on a different title, but on the street frontage to Glenmore Road there is a studio/shop built to the street boundary of Glenmore Road.

3 To the east of the subject site there is a row of terraces. Opposite the subject site there are two and three terrace row houses and on this southern side of Glenmore Road there is a marked consistency in the streetscape of the Victorian Terraces. The street and neighbourhood is within the conservation area of Paddington.

4 The northern side of Glenmore Road, where the subject site is located, it is more varied in that there are shops and dwellings built over various periods displaying different forms of architecture. The subject site has a dwelling house that was erected in the 1920’s with major alterations and additions in the 1980’s and 1990’s. The application before the Court is for significant changes to the subject dwelling and its presentation to Glenmore Road.

5 The Court has the benefit of hearing from council’s town planner and also the benefit of hearing from the applicant’s architect and heritage consultant. The Court also has the opportunity of viewing the streetscape and hearing the concerns of the objectors to the proposal.

6 The parties in this On-site Hearing today have agreed to enter into consent orders. That is the council no longer holds any objection to the modification of the consent. The s 96 application originally raised the contention of the removal of the condition that required a setback of the existing built form from the street boundary.

7 I have assessed the proposed modification to delete the setback condition in terms of its relationship to the basement level and its relationship to the adjoining shop/studio on Glenmore Road and in the context of the heritage item to the west and the terraces to the east.

8 The Court heard from two objectors to the proceedings today. Mrs Shackman, who owns the heritage item at No 96-104 Glenmore Road, is concerned about the impact on the streetscape and that the development should be setback to be in line with the houses in Glenmore Road. It is noted having the opportunity of inspecting her front garden that her dwelling house has a considerable setback and was originally the dwelling that dominated the area when it was built in the mid 19th century.

9 The Court also heard from Mr Elgar who is concerned about the streetscape and the fact that the infill development should be appropriate suitable and improve the streetscape where possible. He considers that the dwelling house should be brought in line with the other terraces in the street.

10 The adjoining neighbour at No. 108, Mr Porteous was not available this morning but I have been taken to his objections in the bundle and he is concerned also about the impact of the proposal on streetscape.

11 The role of the Court in the consent order proceedings it to hear the concerns of objectors and assess the merits of the s96 modification application. In my overall assessment today with the benefit of all the evidence to the Court, including the experts and understanding the proposal in the streetscape, the modification application should be approved. That is to allow the single storey element to the west adjacent to the studio on the adjoining property with a slightly improved setback from what is there today. This single storey flat roofed element to the streetscape will open up views to the upper storey of the heritage item of ‘Lammermuir’. I appreciate that the two storey extension of the subject dwelling house itself will provide for some obscuring of the corner of the heritage item from Glenmore Road but on the other hand I accept the evidence of Mr Logan that with the single storey flat roof element at the front this will also provide a greater opportunity for viewing the façade from the opposite side of Glenmore Road.

12 It is noted in council officer’s report that in terms of the heritage significance of the building or the viewing of the building that there are other opportunities to view the heritage item and from the inspection this morning it can be seen that the adjoining shop front on Glenmore Road directly in front of ‘Lammermuir’ provides for greater obfuscation of the heritage item than the proposed development. I am satisfied the net gain will be greater for the viewing of the heritage item with the proposed development than what currently exists on the subject site.

13 The Court is conscious of the fact that the community is desirous to ensure that new development fits within the streetscape of this most important Victorian Heritage Conservation area and council has detailed guidelines in the Paddington Heritage Conservation Area Development Control Plan for infill development and new developments. While the existing dwelling house does not make a positive contribution in terms of the heritage significance of the area nonetheless any new development should not detract from what is a relatively coherent streetscape, although as I have already noted the northern side of Glenmore Road is varied but it certainly has important elements that should be respected.

14 The Court has assessed the plans this morning in the context of the streetscape and I accept the evidence of Mr Logan that the modulation and articulation of the building, the rhythm of the building in terms of the new design will read as a modern interpretation and contemporary design of the terraces within the streetscape. The elements that the Court was taken to in terms of the front façade being broken up into not dissimilar modules of the adjoining terraces to the east I accept is an appropriate resolution for the subject site. In my assessment it will also provide for a suitable fit with the streetscape and is of a passive design not detracting from the heritage item to the east.

15 The Court has noted that in terms of the Regulations to the Act that matters such as materials, finishes and colours can not be conditioned for further approval of council and a sample board same should be provided to the Court prior to the issuing of the formal orders. While these are details at the same time they are important in the final outcome and execution of the plans to ensure, together with the built form, that the new development respects and fits comfortably in the context of this heritage streetscape.

16 The Court also has the benefit of the council officers assessments in the bundle of documents previously undertaken for the proposal. I note, prior to the council issuing its consent with the now contested condition (to remove and setback the front portion of the building) that the council officer’s report and the heritage assessments undertaken therein recommended approval of the application without this condition.

17 I have determined that there is no reason as to why the Court should not agree to the consent orders now proposed by the parties. My assessment is with the understanding of not only the site in its context but with the benefit of council’s controls and planning regime in its LEP and DCP for Paddington. This includes the provisions in the DCP for: the conservation philosophy; the desired future character of the Paddington Heritage Conservation Area; and contemporary design in Paddington.

18 In my assessment I am satisfied the modification application to the approved development will not adversely impact on the heritage item or the conservation area and the adjoining Victorian terrace row to the east. The footprint of the proposal is similar to the current building with a slightly greater setback to the street for the western single storey element that will be modified to also provide a flat roof element with a setback to the second storey addition.

19 Accordingly the formal orders of the Court in this matter are:

1. By consent the appeal in respect of the s 96 appeal in respect of the property known as No. 106 Glenmore Road, Paddington is upheld.

2. The s 96 modification application submitted to Woollahra Council is approved subject to the conditions contained in Annexure A.

___________________

J S Murrell

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Redford v Woollahra Municipal Council

A. General Conditions

Consent is granted subject to the following conditions imposed pursuant to section 80 of the Environmental Planning & Assessment Act 1979 (“the Act ”) and the provisions of the Environmental Planning and Assessment Regulation 2000 (“the Regulation ”) such conditions being reasonable and relevant to the development as assessed pursuant to section 79C of the Act. Standard Condition: A1

Unless specified otherwise words have the same meaning as defined by the Act , the Regulation and the Interpretation Act 1987 as in force at the date of this consent.

Applicant means the applicant for this Consent.

Approved Plans mean the plans endorsed by Council referenced by this consent as amended by conditions of this consent.

AS or AS/NZS means Australian Standard ® or Australian/New Zealand Standard ®, respectively, published by Standards Australia International Limited.

BCA means the Building Code of Australia as published by the Australian Building Codes Board as in force at the date of issue of any Construction Certificate .

Council means Woollahra Municipal Council

Court means the Land and Environment Court

Local native plants means species of native plant endemic to Sydney’s eastern suburbs (see the brochure titled “Local Native Plants for Sydney’s Eastern Suburbs published by the Southern Sydney Regional Organisation of Councils).

Stormwater Drainage System means all works, facilities and documentation relating to:

a. The collection of stormwater,
b. The retention of stormwater,
c. The reuse of stormwater,
d. The detention of stormwater,
e. The controlled release of stormwater; and
f. Connections to easements and public stormwater systems.

Owner means the owner of the site and successors in title to the site .

Owner Builder has the same meaning as in the Home Building Act 1989.

PCA means the Principal Certifying Authority under the Act .

Principal Contractor has the same meaning as in the Act or where a principal contractor has not been appointed by the owner of the land being developed Principal Contractor means the owner of the land being developed.

Professional Engineer has the same meaning as in the BCA.

Public Place has the same meaning as in the Local Government Act 1993.

Road has the same mean as in the Roads Act 1993.

SEE means the final version of the Statement of Environmental Effects lodged by the Applicant.

Site means the land being developed subject to this consent.

WLEP 1995 means Woollahra Local Environmental Plan 1995

Work for the purposes of this consent means:

a. the use of land in connection with development,
b. the subdivision of land,
c. the erection of a building,
d. the carrying out of any work,
e. the use of any site crane, machine, article, material, or thing,
f. the storage of waste, materials, site crane, machine, article, material, or thing,
g. the demolition of a building,
h. the piling, piering, cutting, boring, drilling, rock breaking, rock sawing or excavation of land,
i. the delivery to or removal from the site of any machine, article, material, or thing, or
j. the occupation of the site by any person unless authorised by an occupation certificate .
Note : Interpretation of Conditions - Where there is any need to obtain an interpretation of the intent of any condition this must be done in writing to Council and confirmed in writing by Council.
Standard Condition: A2

The owner must procure the repair, replacement or rebuilding of all road pavement, kerb, gutter, footway, footpaths adjoining the site or damaged as a result of work under this consent or as a consequence of work under this consent. Such work must be undertaken to Council's satisfaction in accordance with Council’s “Specification for Roadworks, Drainage and Miscellaneous Works” dated January 2003 unless expressly provided otherwise by these conditions at the owner’s expense.
Note : This condition does not affect the principal contractor's or any sub-contractors obligations to protect and preserve public infrastructure from damage or affect their liability for any damage that occurs.

Standard Condition: A8

Those with the benefit of this consent must carry out all work and maintain the use and works in accordance with the plans and supporting documents listed below as submitted by the Applicant and to which is affixed a Council stamp “Approved DA Plans” unless modified by any following condition . Where the plans relate to alterations or additions only those works shown in colour or highlighted are approved.

Reference Description Author/Drawn Date(s)

DA04, DA05 & DA06 All Issue D Architectural Plans DRE Design 14.9.08

A33782 BASIX Certificate Department of Planning 2 June 2008

DO1 Stormwater Plan Northern Beaches Consulting Engineers P/L May 2008

LPP/01/A Landscape Plan
(Except from where it differs from the approved architectural plans listed above) JCA Landscape Architects 21.5.2008

Materials & Colours Schedule- 106 Glenmore Rd, Paddington DA 377/2008
(6 x boards) Materials and sample board DRE Design 23 June 2009

Note: Warning to Accredited Certifiers – You should always insist on sighting the original Council stamped approved plans. You should not rely solely upon the plan reference numbers in this condition. Should the applicant not be able to provide you with the original copy Council will provide you with access to its files so you may review our original copy of the approved plan.
Note: These plans and supporting documentation may be subject to conditions imposed under section 80A(1)(g) of the Act modifying or amending the development (refer to conditions which must be satisfied prior to the issue of any Construction Certificate .)
Standard Condition: A5

Prescribed conditions in force under the Act and Regulation must be complied with.
Note : It is the responsibility of those acting with the benefit of this consent to comply with all prescribed conditions under the Act and the Regulation . Free access can be obtained to all NSW legislation at

Standard Condition: A30

B. Conditions which must be satisfied prior to the demolition of any building or construction

Where demolition is associated with an altered portion of, or an extension to an existing building the demolition of any part of a building is "commencement of erection of building" pursuant to section 81A(2) of the Act. In such circumstance all conditions in Part C and Part D of this consent must be satisfied prior to any demolition work. This includes, but is not limited to, the issue of a Construction Certificate, appointment of a PCA and Notice of Commencement under the Act.
Note: See Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.

Standard Condition: B1

A photographic archival record of the building and landscape elements to be demolished is to be submitted prior to the commencement of demolition work and prior to the issue of a Construction certificate.

The photographic archival recording is to be bound in an A4 format and is to include the following:

Site plan at a scale of 1:200 (or 1:500 if appropriate) of all structures and major landscape elements including their relationship to the street and adjoining properties.
Postcard sized photographs of:

a. each elevation,
b. each structure and landscape feature;
c. views to the subject property from each street and laneway or public space.

Each photograph to be mounted, labelled and cross-referenced in accordance with recognised archival recording practice.
One original coloured photographic set and a coloured photocopy are to be submitted to the satisfaction of Council prior to the commencement of demolition work and prior to the issue of a construction certificate. The original will be retained by Council and the coloured photocopy will be provided to the Woollahra Local History Library.

Standard Condition: B4

C. Conditions which must be satisfied prior to the issue of any construction certificate

The Construction Certificate plans and specifications required by clause 139 of the Regulation must, show the following information;
a. trees to be numbered in accordance with these conditions,
b. shaded green where required to be protected and retained,
c. shaded yellow where required to be transplanted,
d. shaded blue where required to be pruned,
e. shaded red where authorised to be removed and,
f. references to applicable tree management plan, arborists report, transplant method statement or bush regeneration management plan.
Standard Condition: C30

The approved plans must be amended and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation , must detail:

a) Apart from the approved front elevation Juliet balcony off bedroom 4, the flat roof above the single storey element of the dwelling must remain non-trafficable.

The principal contractor or owner builder must submit to the Certifying Authority a soil and water management plan complying with:

a. “ Do it Right On Site, Soil and Water Management for the Construction Industry ” published by the Southern Sydney Regional Organisation of Councils, 2001; and
b. “ Managing Urban Stormwater - Soils and Construction ” published by the NSW Department of Housing 4th Edition” ( 'The Blue Book' ).

Where there is any conflict The Blue Book takes precedence. The Certifying Authority must be satisfied that the soil and water management plan complies with the publications above prior to issuing any Construction Certificate .

Note : This condition has been imposed to eliminate potential water pollution and dust nuisance.

Note : The International Erosion Control Association – Australasia lists consultant experts who can assist in ensuring compliance with this condition. Where erosion and sedimentation plans are required for larger projects it is recommended that expert consultants produce these plans.

Note : The “ Do it Right On Site, Soil and Water Management for the Construction Industry ” publications can be down loaded free of charge from .

Note : Pursuant to clause 161(1)(a)(5) of the Regulation an Accredited Certifier may satisfied as to this matter.

Standard Condition: C25

Construction Certificate

professional engineering

Detailed professional engineering plans and/or specifications must be submitted to the Certifying Authority with the application for any Construction Certificate .

Note:

Construction Certificate

Parking Facilities - Bicycle Parking Facilities

Parking Facilities - Off-Street Car Parking

Off-Street Parking: Commercial Vehicle Facilities

The existing footpath level and grade at the street alignment of the property must be maintained.
The internal garage floor slab is to be adjusted on private property to match the existing street alignment levels.
Any adjustments required between the garage slab and the street levels are to be carried out internally on private property. The driveway levels are to comply with AS2890.1 and Council’s Standard Drawing RF2.
The applicant is to install a turn table to allow a single vehicle only to enter and exit in a forward direction

Access levels and grades must comply with access levels and grade required by Council under the Roads Act 1993. The existing footpath crossing grades and footpath levels at the road boundary must be maintained unless varied by an approval under the Roads Act 1993.

Revised plans are to be submitted and approved by Council with driveway application. An “Application to carry out works in a public road” available from Council's website . must be completed with plans/sections complying with the above and submitted to Council’s Customer Service Centre and approved by Council prior to the issue of a Construction Certificate. For any technical enquiries regarding alteration to existing footpath levels, alignments or inspections, please contact Council’s Works Supervisor on 9391 7982.

The Certifying Authority has no discretion to reduce or increase the number or area of car parking or commercial parking spaces required to be provided and maintained by this consent.
Standard Condition: C45

The Construction Certificate plans and specifications, required by clause 139 of the Regulation , must include a Stormwater Management Plan for the site.

The Stormwater Management Plan must detail:

a) General design in accordance with Stormwater disposal concept plan prepared by N B Consulting Engineers P/L, dated 05/2008, Dwg No. D01 other than amended by this and other conditions;
b) The discharge of stormwater, by direct connection, to Kerb;
c) Compliance the objectives and performance requirements of the BCA;
d) Any rainwater tank required by BASIX commitments including their overflow connection to the Stormwater Drainage System , and
e) General compliance with the Council’s draft Development Control Plan Stormwater Drainage Management (draft version 1.1 public exhibition copy dated 14/12/2006)

Stormwater Management Plan

A detailed drainage plan at a scale of 1:100 based on drainage calculations prepared in accordance with the Institute of Engineers Australia publication, Australian Rainfall and Run-off, 1987 edition or most current version thereof.

All pipe layouts, dimensions, grades, lengths and material specification,
All invert levels reduced to Australian Height Datum (AHD),
Location and dimensions of all drainage pits,
Point and method of connection to Councils drainage infrastructure.

Subsoil Drainage - Subsoil drainage details, clean out points, discharge point.

Note:

C.7 (Deleted by the Land and Environment Court of NSW on 18 June 2009)

The following water saving measures must be shown on the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation :

a. Low-flow water regulators must be fitted to all new kitchen and bathroom taps

b. Duel flush toilets must be installed within the development to reduce water consumption.
c. Water saving showerheads must be fitted to all showers within the development to reduce water consumption and promote energy efficiency.

The person(s) with the benefit of this consent must pay the following long service levy, security, development levy, and fees prior to the issue of any construction certificate, subdivision certificate or occupation certificate , as will apply.

The certifying authority must not issue any Part 4A Certificate until provided with the original receipt(s) for the payment of all of the following levy, security, contributions, and fees. Specifically

a. prior to the issue of a construction certificate , where a construction certificate is required; or

b. prior to the issue of a subdivision certificate , where only a subdivision certificate is required; or

c. prior to the issue of an occupation certificate in any other instance.

Description Amount Indexed Council
Fee Code

LONG SERVICE LEVY
under Building and Construction Industry Long Service Payments Act 1986

Long Service Levy
Use Calculator: Contact LSL
Corporation or use their online calculator No

SECURITY
under section 80A(6) of the Environmental Planning and Assessment Act 1979

Property Damage Security Deposit - Making good any damage caused to any property of the Council as a consequence of the doing of anything to which the consent relates. $9,200.00 No T115

DEVELOPMENT LEVY
under Woollahra Section 94A Development Contributions Plan 2005
This plan may be inspected at Woollahra Council or downloaded from our website .

Development Levy (S94A) $3,600.00 + Index Amount Yes, quarterly T96

INSPECTION FEES
under section 608 of the Local Government Act 1993

Security Administration Fee $168 No T16

TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES $12,968.00
Plus any relevant indexed amounts and long service levy

Building & Construction Industry Long Service Payment

The Long Service Levy under Section 34 of the Building & Construction Industry Long Service Payment Act , 1986, must be paid and proof of payment provided to the Certifying Authority prior to the issue of any Construction Certificate .

Note : The Levy can be paid directly to the Long Services Payments Corporation or to Council. Further information can be obtained from the Long Service Payments Corporation’s website or by telephoning the Long Service Payments Corporation on 13 14 41.

How must the payments be made?

Payments must be made by:

a. Cash deposit with Council,
b. Credit card payment with Council, or
c. Bank cheque made payable to Woollahra Municipal Council.

The payment of a security may be made by a bank guarantee where:
a. the guarantee is by an Australian bank for the amount of the total outstanding contribution;
b. the bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first;
c. the bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent; and
d. the bank’s obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required.

To ensure that the value the development levy is not eroded over time by increases in costs, the proposed cost of carrying out development (from which the development levy is calculated) will be indexed either annually or quarterly (see table above). Clause 3.13 of the Woollahra Section 94A Development Contributions Plan 2005 sets out the formula and index to be used in adjusting the s.94A levy.

Do you need HELP indexing the levy?

Please contact our customer service officers. Failure to correctly calculate the adjusted the development levy will delay the issue of any Part 4A Certificate and could void any Part 4A Certificate (construction certificate, subdivision certificate, or occupation certificate).
Deferred periodic payment of section 94A levy under the Woollahra Section 94A Development Contributions Plan 2005

Where the applicant makes a written request supported by reasons for payment of the section
94A levy other than as required by clause 3.9, the Council may accept deferred or periodic payment. The decision to accept a deferred or periodic payment is at the sole discretion of the Council, which will consider:

a. the reasons given;
b. whether any prejudice will be caused to the community deriving benefit from the public facilities;
c. whether any prejudice will be caused to the efficacy and operation of this plan; and
d. whether the provision of public facilities in accordance with the adopted works schedule will be adversely affected.

Council may, as a condition of accepting deferred or periodic payment, require the provision of a bank guarantee where:

a. the guarantee is by an Australian bank for the amount of the total outstanding contribution;
b. the bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first;
c. the bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent; and
d. the bank’s obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required.
Any deferred or outstanding component of the section 94A levy will be adjusted in accordance with clause 3.13 of the plan. The applicant will be required to pay any charges associated with establishing or operating the bank guarantee. Council will not cancel the bank guarantee until the outstanding contribution as indexed and any accrued charges are paid.
Standard Condition: C5

The applicant must submit to the Certifying Authority BASIX Certificate No A33782 with any application for a Construction Certificate .
Note : Where there is any proposed change in the BASIX commitments the applicant must submit of a new BASIX Certificate to the Certifying Authority and Council. If any proposed change in the BASIX commitments are inconsistent with development consent (See: Clauses 145 and 146 of the Regulation ) the applicant will be required to submit an amended development application to Council pursuant to section 96 of the Act.

Council considers pursuant to clause 94 of the Regulation that it is appropriate to require the existing building to be brought into total or partial conformity with the BCA .

The Construction Certificate plans and specification required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation must detail building upgrade works required by this condition.

The Certifying Authority must be satisfied that such work, to be implemented as part of the development, will upgrade the building to bring it into compliance with the following provisions of the BCA as in force at the date of the Construction Certificate application:

a. Volume 1, F4.5(b) - Ventilation of Rooms
b. Housing Provisions, Clause 3.7.2.2 - Requirements for smoke alarms,
c. Housing Provisions, Clause 3.9.1 - Stair construction,
d. Housing Provisions, Clause 3.9.2 - Balustrades,

Note : This will typically involve as a minimum ensuring that all habitable dwellings and sole occupancy units have a hard wired smoke detection and alarm system applicable to the buildings classification complying with the BCA.

Note : The Certifying Authority issuing the Construction Certificate has no power to remove the requirement to upgrade the existing building as required by this condition. Where this conditions specifies compliance with performance requirements of the BCA the Certifying Authority , subject to their level of accreditation, may be satisfied as to such matters. Where this condition specifies compliance with prescriptive (deemed to satisfied) provisions of the BCA these prescriptive requirements must be satisfied and cannot be varied unless this condition is reviewed under section 82A or amended under section 96 of the Act .

Note : This condition does not set aside the Certifying Authorities responsibility to ensure compliance with clause 143 of the Regulation in relation to Fire Protection and Structural Adequacy.
Note : AS 4655 Guidelines for fire safety audits for buildings (or any succeeding AS) should form the basis of any fire upgrade report.

Standard Condition: C10

A certificate from a professional engineer (Structural Engineer), certifying the adequacy of the existing supporting structure to support the additional loads proposed to be imposed by the development, must be submitted with the Construction Certificate application.
Note : This condition is imposed to ensure that the existing structure structural is able to support the additional loads proposed.

Standard Condition: C35

D. Conditions which must be satisfied prior to the commencement of any development work

The principal contractor or owner builder must install and maintain water pollution, erosion and sedimentation controls in accordance with:

Soil and Water Management Plan

Do it Right On Site, Soil and Water Management for the Construction Industry

Managing Urban Stormwater - Soils and Construction

Where there is any conflict The Blue Book takes precedence.

Note : The International Erosion Control Association – Australasia ( lists consultant experts who can assist in ensuring compliance with this condition. Where Soil and Water Management Plan is required for larger projects it is recommended that this be produced by a member of the International Erosion Control Association – Australasia.

Note : The “Do it Right On Site, Soil and Water Management for the Construction Industry” publications can be down loaded free of charge from .

Note : A failure to comply with this condition may result in penalty infringement notices, prosecution, notices and orders under the Act and/or the Protection of the Environment Operations Act 1997 without any further warning . It is a criminal offence to cause, permit or allow pollution.
Note : Section 257 of the Protection of the Environment Operations Act 1997 provides inter alia that “the occupier of premises at or from which any pollution occurs is taken to have caused the pollution” Warning , irrespective of this condition any person occupying the site may be subject to proceedings under the Protection of the Environment Operations Act 1997 where pollution is caused, permitted or allowed as the result of their occupation of the land being developed.
Standard Condition: D14

For the purposes of section 80A (11) of the Act, the following conditions are prescribed in relation to a development consent for development that involves any building work:

a. that the work must be carried out in accordance with the requirements of the Building Code of Australia,
b. in the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force before any building work authorised to be carried out by the consent commences.

This condition does not apply:

a. to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4); or

b. to the erection of a temporary building.
In this condition, a reference to the BCA is a reference to that code as in force on the date the application for the relevant construction certificate is made.

Note : This condition must be satisfied prior to commencement of any work in relation to the contract of insurance under the Home Building Act 1989. This condition also has effect during the carrying out of all building work with respect to compliance with the Building Code of Australia.
Standard Condition: D1

The Principal Contractor or owner builder must ensure that the sign required by clauses 98A and 227A of the Regulation is erected and maintained at all times.

“Erection of signs

1. For the purposes of section 80A (11) of the Act , the requirements of subclauses (2) and (3) are prescribed as conditions of a development consent for development that involves any building work, subdivision work or demolition work.
2. A sign must be erected in a prominent position on any site on which building work, subdivision `work or demolition work is being carried out:

a. showing the name, address and telephone number of the principal certifying authority for the work, and
b. showing 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. stating that unauthorised entry to the work site is prohibited.

3. 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.

4. This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building.

5. This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State’s building laws.”

Note : PCA and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which imposes a penalty exceeding $1,000).
Note : If Council is appointed as the PCA it will provide the sign to the principal contractor or owner builder who must ensure that the sign is erected and maintained as required by Clause 98A of the Regulation .

Standard Condition: D12

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.

Each toilet provided:

a. must be a standard flushing toilet, and
b. must be connected to a public sewer, or
c. if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the council, or
d. 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 condition must be completed before any other work is commenced.

In this condition:

accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in clause 95B of the Local Government (Approvals) Regulation 1993.

approved by the council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993.

public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

Note

Standard Condition: D13

The principal contractor or owner builder must install and maintain water pollution, erosion and sedimentation controls in accordance with:

Soil and Water Management Plan

Do it Right On Site, Soil and Water Management for the Construction Industry

Managing Urban Stormwater - Soils and Construction

Where there is any conflict The Blue Book takes precedence.

Note : The International Erosion Control Association – Australasia ( lists consultant experts who can assist in ensuring compliance with this condition. Where Soil and Water Management Plan is required for larger projects it is recommended that this be produced by a member of the International Erosion Control Association – Australasia.

Note : The “Do it Right On Site, Soil and Water Management for the Construction Industry” publications can be down loaded free of charge from .

Note : A failure to comply with this condition may result in penalty infringement notices, prosecution, notices and orders under the Act and/or the Protection of the Environment Operations Act 1997 without any further warning . It is a criminal offence to cause, permit or allow pollution.
Note : Section 257 of the Protection of the Environment Operations Act 1997 provides inter alia that “the occupier of premises at or from which any pollution occurs is taken to have caused the pollution” Warning , irrespective of this condition any person occupying the site may be subject to proceedings under the Protection of the Environment Operations Act 1997 where pollution is caused, permitted or allowed as the result of their occupation of the land being developed.
Standard Condition: D14

The erection of the building in accordance with this development consent must not be commenced until:

a. a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited Certifier, and
b. the person having the benefit of the development consent has:
i. appointed a principal certifying authority for the building work, and
ii. notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and

b1. the principal certifying authority has, no later than 2 days before the building work commences:
i. notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and
ii. notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

b2. the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:
i. appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and
ii. notified the principal certifying authority of any such appointment, and
iii. unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and
iv. given at least 2 days’ notice to the council of the person’s intention to commence the erection of the building.

Note: building has the same meaning as in section 4 of the Act and includes part of a building and any structure or part of a structure.

Note : new building has the same meaning as in section 109H of the Act and includes an altered portion of, or an extension to, an existing building.

Note : The commencement of demolition works associated with an altered portion of, or an extension to, an existing building is considered to be the commencement of building work requiring compliance with section 82A(2) of the Act (including the need for a Construction Certificate ) prior to any demolition work. See: Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.

Note : Construction Certificate Application, PCA Service Agreement and Notice of Commencement forms can be downloaded from Council’s website .
Note : It is an offence for any person to carry out the erection of a building in breach of this condition and in breach of section 81A(2) of the Act.
Standard Condition: D15

a. For the purposes of section 80A (11) of the Act, the requirements of this condition are prescribed as conditions of a development consent for development that involves any residential building work within the meaning of the Home Building Act 1989 .
b. Residential building work within the meaning of the Home Building Act 1989 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 following information:

i. in the case of work for which a principal contractor is required to be appointed:

the name and licence number of the principal contractor, and

the name of the insurer by which the work is insured under Part 6 of that Act,

ii. in the case of work to be done by an owner-builder:

the name of the owner-builder, and

if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

c. If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes 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.
d. This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State’s building laws.

Standard Condition: D17

E. Conditions which must be satisfied during any development work

Tree Preservation Order

a. There must be no excavation or work within the required Tree Protection Zone(s). The Tree Protection Zone(s) must be maintained during all development work .

b. Where excavation encounters tree roots with a diameter exceeding 40mm excavation must cease. The principal contractor must procure an inspection of the tree roots exposed by a qualified arborist. Excavation must only recommence with the implementation of the recommendations of the qualified arborist or where specific instructions are given by Council's Tree Management Officer in strict accordance with such Council instructions.

c. Where there is damage to any part of a tree the principal contractor must procure an inspection of the tree by a qualified arborist immediately. The principal contractor must immediately implement treatment as directed by the qualified arborist or where specific instructions are given by Council's Tree Management Officer in strict accordance with such Council instructions.

Note

Standard Condition: E8

All landscape works must be undertaken in accordance with the approved landscape plan, arborist report, tree management plan and transplant method statement as applicable.

The following trees may be removed:

Council Reference No: Species Location Dimension (Metres)

1 Celtis occidentalis Hackberry Rear yard 12 x 12

2, 3, 4, 5 Cupressus sempervirens "Stricta" Pencil Pine Rear boundary 5 x 0.4 each

Note : The tree trees that may be removed should appear coloured red on the construction certificate plans.

The following compensatory replacement plantings must be planted to ensure the preservation of the landscape character of the area. Areas for future planting must be plotted on the submitted landscape or architectural plans and be protected from damage, especially soil compaction and contamination from construction activity by erecting a barrier or implementing ground protection. Where ground protection during construction activity is not implemented, remediation measures prior to planting such as soil ripping or subsoil aeration must be employed.
Any replacement plant is to be maintained in a healthy and vigorous condition until it attains a height of 5 metres or a spread of 3 metres, whereby it will be protected by Council’s Tree Preservation Order. If the replacement plant is found to be faulty, damaged, dying or dead before it attains a size whereby it is protected by Council’s Tree Preservation Order, it must be replaced with another of the same species which complies with the criteria outlined below.

Species/Type Planting Location Container Size or Size of Tree (@ time of planting) Minimum Dimensions at Maturity

1 x Elaeocarpus reticulatus Blueberry Ash Rear yard within deleted basement floor terrace area 100 litre Natural

1 x Magnolia grandiflora “Little gem” Magnolia Front yard 75 litre 5 x 3

All replacement trees are to be NATSPEC grown.

The principal contractor or owner builder and any other person acting with the benefit of this consent must:

a. Not erect or maintain any gate or fence swing out or encroaching upon the road or the footway.
b. Not use the road or footway for the storage of any article, material, matter, waste or thing.
c. Not use the road or footway for any work .
d. Keep the road and footway in good repair free of any trip hazard or obstruction.
e. Not stand any plant and equipment upon the road or footway.

This condition does not apply to the extent that a permit or approval exists under the section 73 of the Road Transport (Safety and Traffic Management) Act 1999, section 138 of the Roads Act 1993 or section 94 of the Local Government Act 1993 except that at all time compliance is required with:

a. Australian Standard AS 1742 (Set) Manual of uniform traffic control devices and all relevant parts of this set of standards.
b. Australian Road Rules to the extent they are adopted under the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999.

Note : Section 73 of the Road Transport (Safety and Traffic Management) Act 1999 allows the Police to close any road or road related area to traffic during any temporary obstruction or danger to traffic or for any temporary purpose. Any road closure requires Police approval.
Note : Section 138 of the Roads Act 1993 provides that a person must not:

(a) erect a structure or carry out a work in, on or over a public road, or
(b) dig up or disturb the surface of a public road, or
(c) remove or interfere with a structure, work or tree on a public road, or
(d) pump water into a public road from any land adjoining the road, or
(e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority.

Note : Section 68 of the Local Government Act 1993 provides that a person may carry out certain activities only with the prior approval of the council including:

Part C Management of Waste:
“1. For fee or reward, transport waste over or under a public place
2. Place waste in a public place
3. Place a waste storage container in a public place.”

Part E Public roads:
“1. Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway
2. Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to overhang any part of the road or outside a shop window or doorway abutting the road, or hang an article beneath an awning over the road.”

Any work in, on or over the Road or Footway requires Council Approval and in the case of classified roads the NSW Roads and Traffic Authority. Road includes that portion of the road uses as a footway.

Standard Condition: E7

The principal contractor or owner builder must ensure that the following monitoring, measures and controls are maintained:

a) Erosion and sediment controls,
b) Dust controls,
c) Dewatering discharges,
d) Noise controls;
e) Vibration monitoring and controls;
f) Ablutions;
Note 1: See for additional information.
Standard Condition: E11

The principal contractor or owner builder must maintain water pollution, erosion and sedimentation controls in accordance with:
a) The Soil and Water Management Plan required under this consent;
b) “ Do it Right On Site, Soil and Water Management for the Construction Industry ” published by the Southern Sydney Regional Organisation of Councils, 2001; and
c) “ Managing Urban Stormwater - Soils and Construction ” published by the NSW Department of Housing 4th Edition (“ The Blue Book ”).

Where there is any conflict The Blue Book takes precedence.

Note 1 : A failure to comply with this condition may result in penalty infringement notices, prosecution, notices and orders under the Act and/or the Protection of the Environment Operations Act 1997 without any further warning. It is a criminal offence to cause, permit or allow pollution.

Note 2

Warning

Standard Condition: E15

E.7 Disposal of site water during construction

a) Prior to pumping any water into the road or public stormwater system that approval is obtained from Council under section 138(1)(d) of the Roads Act 1993;
b) That water pollution , as defined by the Protection of the Environment Operations Act 1997, does not occur as the result of the discharge to the road, public stormwater system or other place or any site water;
c) That stormwater from any roof or other impervious areas is linked, via temporary downpipes and stormwater pipes, to a Council approved stormwater disposal system immediately upon completion of the roof installation or work creating other impervious areas.

Note

Standard Condition: E17

E.8 Compliance with Council’s Specification for Roadworks, Drainage and Miscellaneous Works Road works and work within the Road and Footway

All work carried out on assets which are under Council ownership or will revert to the ownership, care, control or management of Council in connection with the development to which this consent relates must comply with Council’s Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003.

The owner , principal contractor or owner builder must meet all costs associated with such works.

This condition does not set aside the need to obtain relevant approvals under the Roads Act 1993 or Local Government Act 1993 for works within Roads and other public places.

Note:

Specification for Roadworks, Drainage and Miscellaneous Works

Standard Condition: E24

E.9 Compliance with Australian Standard for Demolition

Standard Condition: E2

E.10

Requirement to notify about new evidence

Standard Condition: E4

E.11 Critical Stage Inspections

Critical stage inspections must be called for by the principal contractor or owner builder as required by the PCA, any PCA service agreement, the Act and the Regulation .

Work must not proceed beyond each critical stage until the PCA is satisfied that work is proceeding in accordance with this consent, the Construction Certificate(s) and the Act .

critical stage inspections means the inspections prescribed by the Regulations for the purposes of section 109E(3)(d) of the Act or as required by the PCA and any PCA Service Agreement.

Note : The PCA may require inspections beyond mandatory critical stage inspections in order that the PCA be satisfied that work is proceeding in accordance with this consent.

Note : The PCA may, in addition to inspections, require the submission of Com pliance Certificates , survey reports or evidence of suitability in accordance with Part A2.2 of the BCA in relation to any matter relevant to the development.

Standard Condition: E5

E.12 Hours of Work –Amenity of the neighbourhood

a. No work must take place on any Sunday or public holiday,
b. No work must take place before 7am or after 5pm any weekday,
c. No work must take place before 7am or after 1pm any Saturday, and
d. No piling, piering, cutting, boring, drilling, rock breaking, rock sawing, jack hammering or bulk excavation of land or loading of material to or from trucks must take place before 9am or after 4pm any weekday, or before 9am or after 1pm any Saturday.
e. No rock excavation being cutting, boring, drilling, breaking, sawing, jack hammering or bulk excavation of rock, must occur without a 15 minute break every hour.

This condition has been imposed to mitigate the impact of work upon the amenity of the neighbourhood. Impact of work includes, but is not limited to, noise, vibration, dust, odour, traffic and parking impacts.

Note : The use of noise and vibration generating plant and equipment and vehicular traffic, including trucks in particular, significantly degrade the amenity of neighbourhoods and more onerous restrictions apply to these activities. This more invasive work generally occurs during the foundation and bulk excavation stages of development. If you are in doubt as to whether or not a particular activity is considered to be subject to the more onerous requirement (9am to 4pm weekdays and 9am to 1pm Saturdays) please consult with Council.

Note : Each and every breach of this condition by any person may be subject to separate penalty infringement notice or prosecution.

Note : The delivery and removal of plant, equipment and machinery associated with wide loads subject to RTA and Police restrictions on their movement out side the approved hours of work will be considered on a case by case basis.

Note : Compliance with these hours of work does not affect the rights of any person to seek a remedy to offensive noise as defined by the Protection of the Environment Operations Act 1997, the Protection of the Environment Operations (Noise Control) Regulation 2000.

Note : EPA Guidelines can be down loaded from .

Note : see

Standard Condition: E6

E.13 Support of adjoining land and buildings

A person must not to do anything on or in relation to the site (the supporting land) that removes the support provided by the supporting land to any other land (the supported land) or building (the supported building).

For the purposes of this condition, supporting land includes the natural surface of the site, the subsoil of the site, any water beneath the site, and any part of the site that has been reclaimed.

Note

principal contractor

owner builder

Conveyancing Act 1919,

Land & Environment Court Act 1979

Note : Section 177 of the Conveyancing Act 1919 creates a statutory duty of care in relation to support of land. Accordingly, a person has a duty of care not to do anything on or in relation to land being developed (the supporting land) that removes the support provided by the supporting land to any other adjoining land (the supported land).

Note : Clause 20 of the Roads (General) Regulation 2000 prohibits excavation in the vicinity of roads as follows: “ Excavations adjacent to road - A person must not excavate land in the vicinity of a road if the excavation is capable of causing damage to the road (such as by way of subsidence) or to any work or structure on the road.” Separate approval is required under the Roads Act 1993 for any underpinning, shoring, soil anchoring (temporary)) or the like within or under any road. Council will not give approval to permanent underpinning, shoring, soil anchoring within or under any road.

Note

Local Government Act

Standard Condition: E13

E.14 Placement and use of Skip Bins

The principal contractor or owner builder must ensure that all waste storage containers, including but not limited to skip bins, must be stored within the site unless:

a) Activity Approval has been issued by Council under section 94 of the Local Government Act 1993 to place the waste storage container in a public place, and
b) Where located on the road it is located only in a positions where a vehicle may lawfully park in accordance with the Australian Road Rules to the extent they are adopted under the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999.

Note

Standard Condition: E21

E.15 Prohibition of burning

There must be no burning of any waste or other materials. The burning of CCA (copper chrome arsenate) or PCP (pentachlorophenol) treated timber is prohibited in all parts of NSW. All burning is prohibited in the Woollahra local government area.

Note

Protection of the Environment Operations (Control of Burning) Regulation

Standard Condition: E22

E.16 Dust Mitigation

Dust Control - Do it right on site

This generally requires:

a) Dust screens to all hoardings and site fences.
b) All stockpiles or loose materials to be covered when not being used.
c) All equipment, where capable, being fitted with dust catchers.
d) All loose materials being placed bags before placing into waste or skip bins.
e) All waste and skip bins being kept covered when not being filled or emptied.
f) The surface of excavation work being kept wet to minimise dust.
g) Landscaping incorporating trees, dense shrubs and grass being implemented as soon as practically possible to minimise dust.

Note 1 : “ Dust Control - Do it right on site ” can be down loaded free of charge from Council’s web site or obtained from Council’s office.

Note 2: Special precautions must be taken when removing asbestos or lead materials from development sites. Additional information can be obtained from and . Other specific condition and advice may apply.

Note 3: Demolition and construction activities may affect local air quality and contribute to urban air pollution. The causes are dust, smoke and fumes coming from equipment or activities, and airborne chemicals when spraying for pest management. Precautions must be taken to prevent air pollution.

Standard Condition: E23

F. Conditions which must be satisfied prior to any occupation or use of the building (Part 4A of the Act and Part 8 Division 3 of the Regulation)

F.1 Occupation Certificate (section 109M of the Act)

Act

Note

Standard Condition: F1

F.2 Commissioning and Certification of Systems and Works

The principal contractor or owner builder must submit to the satisfaction of the PCA works-as-executed (“WAE”) plans, Compliance Certificates and evidence of suitability in accordance with Part A2.2 of the BCA confirming that the works , as executed and as detailed, comply with the requirement of this consent, the Act , the Regulations , any relevant construction certificate , the BCA and relevant Australian Standards .

Works-as-executed (“WAE”) plans, Compliance Certificates and evidence of suitability in accordance with Part A2.2 of the BCA must including but may not be limited to:

a. Certification from the supervising professional engineer that the requirement of the Geotechnical / Hydrogeological conditions and report recommendations were implemented and satisfied during development work.
b. All flood protection measures.
c. All garage/car park/basement car park, driveways and access ramps comply with Australian Standard AS 2890.1 – “Off-Street car parking.”
d. All stormwater drainage systems.
e. All mechanical ventilation systems.
f. All hydraulic systems.
g. All structural work.
h. All acoustic attenuation work.
i. All waterproofing.
j. Such further matters as the Principal Certifying Authority may require.

Note : This condition has been imposed to ensure that systems and works as completed meet development standards as defined by the Act , comply with the BCA, comply with this consent and so that a public record of works as execute is maintained.

Note : The PCA may require any number of WAE plans, certificates, or other evidence of suitability as necessary to confirm compliance with the Act , Regulation , Development Standards, BCA , and relevant Australia Standards . As a minimum WAE plans and certification is required for stormwater drainage and detention, mechanical ventilation work, hydraulic services (including but not limited to fire services).

Note

PCA

Occupation Certificate

Compliance Certificates

BCA

PCA

Occupation Certificate

Standard Condition: F7

G. Conditions which must be satisfied prior to the issue of any Subdivision Certificate

No relevant conditions.

H. Conditions which must be satisfied prior to the issue of a Final Occupation Certificate (s109C(1)(c))

H.1 Landscaping

principal contractor

owner

principal contractor

owner

PCA

Note

Final Occupation Certificate

Standard Condition: H9

H.2 Road Works (including footpaths)

The following works must be completed to the satisfaction of Council, in compliance with Council’s “Specification for Roadworks, Drainage and Miscellaneous Works” dated January 2003 unless expressly provided otherwise by these conditions at the principal contractor’s or owner’s expense:

a. stormwater pipes, pits and connections to public stormwater systems within the road ;
b. driveways and vehicular crossings within the road ;
c. removal of redundant driveways and vehicular crossings;
d. new footpaths within the road ;
e. new or replacement street trees;
f. new footway verges, where a grass verge exists, the balance of the area between the footpath and the kerb or site boundary over the full frontage of the proposed development must be turfed. The grass verge must be constructed to contain a uniform minimum 75mm of friable growing medium and have a total cover of turf predominant within the street.
g. new or reinstated kerb and guttering within the road ; and
h. new or reinstated road surface pavement within the road .

Note

Final Occupation Certificate

or obtained from Council’s customer service centre.

Standard Condition: H13

H.3 Fulfillment of BASIX commitments – Clause 154B of the Regulation

All BASIX commitments must be effected in accordance with the BASIX Certificate No. A33782.

Note

certifying authority

Standard Condition: H7

H.4 Removal of Ancillary Works and Structures

The principal contractor or owner must remove from the land and any adjoining public place:

a. The site sign;
b. Ablutions;
c. Hoarding;
d. Scaffolding; and
e. Waste materials, matter, article or thing.

Note

Final Occupation Certificate

Standard Condition: H12

I. Conditions which must be satisfied during the ongoing use of the development

I.1 Maintenance of Landscaping

All landscaping must be maintained in general accordance with this consent.

This condition does not prohibit the planting of additional trees or shrubs subject that they are native species endemic to the immediate locality.

Reason : This condition has been imposed to ensure that the landscaping design intent is not eroded over time by the removal of landscaping or inappropriate exotic planting.

Note

I.2 Maintenance of BASIX commitments

All BASIX commitments must be maintained in accordance with the BASIX Certificate No A33782.

Note:

Standard Condition: I7

J. Miscellaneous Conditions

No relevant conditions.

K. Advisings

K.1 Criminal Offences – Breach of Development Consent & Environmental laws

Failure to comply with this development consent and any condition of this consent is a criminal offence . Failure to comply with other environmental laws are also a criminal offence.

Issue Penalty Infringement Notices (On-the-spot fines);
Issue notices and orders;
Prosecute any person breaching this consent; and/or
Seek injunctions/orders before the courts to restrain and remedy any breach.

Warnings as to potential maximum penalties

Maximum Penalties under NSW Environmental Laws include fines up to $1.1 Million and/or custodial sentences for serious offences.

Warning as to enforcement and legal costs

Should Council have to take any action to enforced compliance with this consent or other environmental laws Council’s policy is to seek from the Court appropriate orders requiring the payments of its costs beyond any penalty or remedy the Court may order.

Note

the Crimes (Sentencing Procedure) Act

and the Attorney General’s .

Standard Advising: K1

K.2 Dial before you dig

The principal contractor , owner builder or any person digging may be held financially responsible by the asset owner should they damage underground pipe or cable networks. Minimise your risk and Dial 1100 Before You Dig or visit .

When you contact Dial Before You Dig, you will be sent details of all Dial Before You Dig members who have underground assets in the vicinity of your proposed excavation.

Standard Advising: K2

K.3 Builders Licences and Owner Builders Permits

Section 81A of the Act requires among other matters that the person having the benefit of the development consent, if not carrying out the work as an owner-builder , must appointed a principal contractor for residential building work who must be the holder of a contractor licence.

Further information can be obtained from the NSW Office of Fair Trading website about how you obtain an owner builders permit or find a principal contractor (builder): .

The Owner(s) must appoint the PCA . The PCA must check that Home Building Act insurance is in place before the commencement of building work. The Principal Contractor (Builder) must provide the Owners with a certificate of insurance evidencing the contract of insurance under the Home Building Act 1989 for the residential building work.

Standard Condition: K5

K.4 Building Standards - Guide to Standards and Tolerances

The PCA does not undertake detailed quality control inspections and the role of the PCA is primarily to ensure that the development proceeds in accordance with this consent, Construction Certificates and that the development is fit for occupation in accordance with its classification under the Building Code of Australia. Critical Stage Inspections do not provide the level of supervision required to ensure that the minimum standards and tolerances specified by the “Guide to Standards and Tolerances©” ISBN 0 7347 6010 8 are achieved.

The quality of any development is a function of the quality of the principal contractor’s or owner builder’s supervision of individual contractors and trades on a daily basis during the development. The PCA does not undertake this role.

The NSW Office of Fair Trading have published a “Guide to Standards and Tolerances©” ISBN 0 7347 6010 8. The guide can be obtained from the Office of Fair Trading by calling 13 32 20 or by Fax: 9619 8618 or by post to: Marketing Branch, PO Box 972, Parramatta NSW 2124.
The Guide can be down loaded from:

Council, as the PCA or otherwise, does not adjudicate building contract disputes between the principal contractor , contractors and the owner.

Standard Condition: K6

K.5 Workcover requirements

Occupational Health and Safety Act

2000 No 40

Note

or through their head office: Location: Workcover NSW, 92-100 Donnison Street, GOSFORD 2250 Postal address: WorkCover NSW, Locked Bag 2906, LISAROW 2252, Phone (02) 4321 5000, Fax (02) 4325 4145.

Standard Condition: K7

K.6 Asbestos Removal, Repair or Disturbance

Anyone who removes, repairs or disturbs bonded or a friable asbestos material must hold a current removal licence from Workcover NSW.

Before starting work, a work site-specific permit approving each asbestos project must be obtained from Workcover NSW. A permit will not be granted without a current Workcover licence.

The Occupational Health and Safety Act 2000;
The Occupational Health and Safety Regulation 2001;
The Code of Practice for the Safe Removal of Asbestos [NOHSC: 2002 (1998)];
The Guide to the Control of Asbestos Hazards in Buildings and Structures [NOHSC: 3002 (1998)] ]; and
The Workcover NSW Guidelines for Licensed Asbestos Removal Contractors.

Note

or one of Workcover NSW’s offices for further advice.

K.7 Lead Paint

It is beyond the scope of this consent to provide detailed information about dealing with lead paint. Painters working in an area containing lead-based paint should refer to Australian Standard AS 4361.1–1995, Guide to Lead Paint Management—Industrial Applications, or AS 4361.2–1998, Guide to Lead Paint Management—Residential and Commercial Buildings.

Industrial paints may contain lead. Lead is used in some specialised sign-writing and artist paints, and road marking paints, and anti-corrosive paints. Lead was a major ingredient in commercial and residential paints from the late 1800s to 1970. Most Australian commercial buildings and residential homes built before 1970 contain lead paint. These paints were used both inside and outside buildings.

Standard Advising: K9

K.8 Dividing Fences

The erection of dividing fences under this consent does not affect the provisions of the Dividing Fences Act 1991. Council does not adjudicate civil disputes relating to the provision of, or payment for, the erection of dividing fences.

Note:

. Community Justice Centres provide a free mediation service to the community to help people resolve a wide range of disputes, including dividing fences matters. Their service is free, conﬁdential, voluntary, timely and easy to use. Mediation sessions are conducted by two impartial, trained mediators who help people work together to reach an agreement. Over 85% of mediations result in an agreement being reached. Mediation sessions can be arranged at convenient times during the day, evening or weekends. Contact the Community Justice Centre either by phone on 1800 671 964 or at .
Standard Advising: K10

K.9 Appeal

Council is always prepared to discuss its decisions and, in this regard, please do not hesitate to contact:

Ms C Owen, Assessment Officer on (02) 9391 7150

However, if you wish to pursue your rights of appeal in the Land & Environment Court you are advised that Council generally seeks resolution of such appeals through a Section 34 Conference, site hearings and the use of Court Appointed Experts, instead of a full Court hearing.

Standard Condition: K14

K.10 Release of Security

An application must be made to Council by the person who paid the security for release of the securities held under section 80A of the Act .

The securities will not be released until a Final Occupation Certificate has lodged with Council, Council has inspected the site and Council is satisfied that the public works have been carried out to Council’s requirements. Council may use part or all of the security to complete the works to its satisfaction if the works do not meet Council’s requirements.

Council will only release the security upon being satisfied that all damage or all works, the purpose for which the security has been held have been remedied or completed to Council’s satisfaction as the case may be.

Council may retain a portion of the security to remedy any defects in any such public work that arise within 6 months after the work is completed.

Upon completion of each section of road, drainage and landscape work to Council's satisfaction, 90% of the Bond monies held by Council for these works will be released upon application. 10% may be retained by Council for a further 6 month period and may be used by Council to repair or rectify any defects or temporary works during the 6 month period.

Note:

Standard Condition: K15

K.11 Recycling of Demolition and Building Material

K.12 Owner Builders

Home Building Act 1989

Standard Condition: K18

K.13 Pruning or Removing a Tree Growing on Private Property

Woollahra Municipal Council's Tree Preservation Order 2006 (TPO) may require that an application be made to Council prior to pruning or removing any tree. The aim is to secure the amenity of trees and preserve the existing landscape within our urban environment.

or you may contact Council on 9391-7000 for further advice.
Standard Condition: K19

K.14 Compliance with the Building Code of Australia

Building Code of Australia

Part 3.3.4 - Weatherproofing of masonry

Part 3.4.1 - Sub floor ventilation

Part 3.7 - Fire safety

Part 3.7.1 Fire separation

Part 3.7.2 Smoke alarms

Part 3.7.3 Heating appliances

Part 3.8 - Health and amenity

Part 3.8.1 Wet areas

Part 3.8.3 Facilities
Part 3.8.4 Light
Part 3.8.5 Ventilation
Part 3.8.6 Sound insulation

Part 3.9 - Safe movement and access
Part 3.9.1 Stair construction
Part 3.9.2 Balustrades
Part 3.9.3 Pool access

Note:

Standard Condition: K20 (Autotext KK20)

________________________
J S Murrell
Commissioner of the Court
ljr

CITATION:	Redford v Woollahra Municipal Council [2009] NSWLEC 1208
PARTIES:	APPLICANT Peter Redford and Maria Redford RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10165 of 2009
CORAM:	Murrell C
KEY ISSUES:	SECTION 96 APPLICATION :- Development modification application, impact on streetscape and impact on heritage item.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Woollahra Local Environmental Plan Woollahra Development Control Plan Paddington Heritage Conservation Area Development Control Plan
DATES OF HEARING:	18 June 2009
EX TEMPORE JUDGMENT DATE:	18 June 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr R Smyth (Agent) RESPONDENT Mr N Howie (Solicitor) SOLICITOR Wilshire Webb Staunton Beattie Lawyers

Reference	Description	Author/Drawn	Date(s)
DA04, DA05 & DA06 All Issue D	Architectural Plans	DRE Design	14.9.08
A33782	BASIX Certificate	Department of Planning	2 June 2008
DO1	Stormwater Plan	Northern Beaches Consulting Engineers P/L	May 2008
LPP/01/A	Landscape Plan (Except from where it differs from the approved architectural plans listed above)	JCA Landscape Architects	21.5.2008
Materials & Colours Schedule- 106 Glenmore Rd, Paddington DA 377/2008 (6 x boards)	Materials and sample board	DRE Design	23 June 2009

Description	Amount	Indexed	Council Fee Code
LONG SERVICE LEVY under Building and Construction Industry Long Service Payments Act 1986
Long Service Levy Use Calculator:	Contact LSL Corporation or use their online calculator	No
SECURITY under section 80A(6) of the Environmental Planning and Assessment Act 1979
Property Damage Security Deposit - Making good any damage caused to any property of the Council as a consequence of the doing of anything to which the consent relates.	$9,200.00	No	T115
DEVELOPMENT LEVY under Woollahra Section 94A Development Contributions Plan 2005 This plan may be inspected at Woollahra Council or downloaded from our website .
Development Levy (S94A)	$3,600.00 + Index Amount	Yes, quarterly	T96
INSPECTION FEES under section 608 of the Local Government Act 1993
Security Administration Fee	$168	No	T16
TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES	$12,968.00 Plus any relevant indexed amounts and long service levy

Council Reference No:	Species	Location	Dimension (Metres)
1	Celtis occidentalis Hackberry	Rear yard	12 x 12
2, 3, 4, 5	Cupressus sempervirens "Stricta" Pencil Pine	Rear boundary	5 x 0.4 each

Species/Type	Planting Location	Container Size or Size of Tree (@ time of planting)	Minimum Dimensions at Maturity
1 x Elaeocarpus reticulatus Blueberry Ash	Rear yard within deleted basement floor terrace area	100 litre	Natural
1 x Magnolia grandiflora “Little gem” Magnolia	Front yard	75 litre	5 x 3
All replacement trees are to be NATSPEC grown.