Ritah Associates Pty Limited v North Sydney Council

[2003] NSWLEC 324

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Land and Environment Court

of New South Wales

CITATION:	Ritah Associates Pty Limited v North Sydney Council [2003] NSWLEC 324
PARTIES:	APPLICANT Ritah Associates Pty Limited RESPONDENT North Sydney Council
FILE NUMBER(S):	10215 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- height exceedance building height plane exceedance street setbacks character of locality streetscape privacy and bulk
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 North Sydney Local Environmental Plan 2001 State Enviornmental Policy No. 1
CASES CITED:
DATES OF HEARING:	19/08/03 - 20/08/03
DATE OF JUDGMENT:	11/28/2003
LEGAL REPRESENTATIVES:	APPLICANT Mr D Parry, barrister instructed Pike Pike & Fenwick RESPONDENT Mr M C Fraser instructed by Mallesons

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

10215 of 2003

Hoffman C

28 November 2003

Ritah Associates Pty Ltd

Applicant
v

North Sydney Council

Respondent

Judgment

Introduction

1 This was a class 1 appeal between Ritah Associates Pty Ltd and North Sydney Council in regard to the deemed refusal of DA No.674/2002 for demolition of an existing house and the erection of a duplex including strata subdivision at 86 McPherson St, Cremorne.

The site and locality

2 The site was on a 3-way corner with Fernhurst Ave and Ourimbah St. This was a major traffic corner with traffic lights, and is on the back route from Mosman to The Spit Bridge, along McPherson and Ourimbah Streets. The land was on what might be described as the “quiet” side of the corner away from the main traffic.

3 The site was on low side of corner having a frontage of 15.157m to Mcpherson St, and 39.625m to Fernhurst Ave. The latter was a cul-de-sac ending only a few houses along from the site.

4 With an area of 596.5 sq.m, the rectangular lot had falls across and down the site diagonally away from the street corner, giving a total fall of about 5.5m. There existed quite dense boundary vegetation especially on the street corner.

5 The garages are proposed on the first floor of the building, accessed by a “bridge” from the footpath boundary of Fernhurst Ave. It went above the slope of the site to the first floor that was to be at about Fernhurst Ave level. The garages are 1.24 m from that boundary and other parts of the building have variable setbacks up to 3.4 m.

6 The setbacks to McPherson St are also variable at 6.390m to the lounge and 10.020m to the kitchen and porch. The front porches of both townhouses face Fernhurst St, and are at the mid-level landings of the stairs between the middle (bedrooms) and the lower (living areas) floors.

7 The middle floor of each dwelling contains a tandem garage and the bedrooms. Above that is a pitched tiled roof containing attic rooms with no nominated use. On the lower floor of each townhouse is the kitchen and family room, dining room, lounge.

8 One townhouse is at the McPherson Street end of the property, at the other end of the building adjacent Fernhurst Ave is the other townhouse. This means that each unit has access directly from its lounge and dining room to an adjoining courtyard, one at the McPherson Street end, the other to its courtyard adjoining No.16 Fernhurst Ave at the western end.

9 On the down hill side was No. 88 McPherson Street, it had an elevated garage directly off the street boundary adjoining the subject property. There was a retaining wall on the street and stairs down to the house. It was a single storey 1920’s house with later extensions at the rear including rooms in the roof.

Building Height Plane
1. Whether the development application is able to be approved given that development fails to comply with the Building Height Plane requirements of Clause 18 of North Sydney Local Environmental Plan 2001 (“ LEP 2001 ”) in that the proposal would create a material privacy loss to the property at 88 McPherson Street.

2. Whether the applicant’s State Environment Planning Policy No. 1 (“ SEPP 1 ”) objection to compliance with clause 18 of LEP 2001 is able to be upheld.

Building Height
3. Whether the development application ought to be approved given that the proposal fails to meet the building height requirements of LEP 2001 and North Sydney Development Control Plan 2002 (“ DCP 2002 ”) and would result in the proposed development appearing as a 2 storey building from the North and West of the site.

Particulars

(a) LEP 2001, Clause 17(1)(a).
(b) DCP 2002, Clause 7.2(h).

4. Whether the applicant’s SEPP 1 objection to compliance with clause 17 of LEP 2001 should be upheld.

Streetscape and Character

5. Whether the development application ought to be approved given that the proposal is inconsistent with the aims and objectives of Clause 3 of LEP 2001.

6. Whether the development application ought to be approved given that the proposal is out of character with the neighbourhood in which it is to be carried out.

Particulars
(a) LEP 2001, Clause 14(b).
(b) DCP 2002, Clause 7.3(f), (g), (h), (i) (n) and (g).
(c) North Cremorne Area Character Statement, Clause 7.7(g).

Setback
7. Whether the development application ought to be approved given that it fails to meet the setback requirements of LEP 2001.

Particulars
(a) LEP 2001, Clause 19.
(b) North Cremorne Area Character Statement, Clause 7.7(g).
(c) DCP 2002, Clause 7.3(f) and Clause 7.4(i).

8. Whether the applicant’s SEPP 1 objection to compliance with clause 19 of LEP 2001 should be upheld.

Objector Concerns
9. Whether the development application ought to be approved given the concerns raised by the residents of the neighbouring property at 88 McPherson Street, Cremorne, relating to loss of privacy, loss of light, devaluation, drainage, loss of trees and noise concerns.

Parking
10. Whether the development application ought to be approved given that it does not meet Council’s parking Controls.

Particulars
(a) DCP 2002, Clause 7.4(i)(h)

10 The court heard the respondents evidence from:

• Mr H.M Sanders consultant town planner.
• Mr P. B. Thompson of No 88 McPherson Street the next house downhill on the northern side.

11 Ms M.D Laidlaw consultant town planner gave evidence for the applicant.

The evidence

12 Mr Sanders said that the primary façade and frontage of proposal was to McPherson Street. On Fernhurst, the proximity to the boundary, and the garages and building bulk made it the dominant elevation.

13 He had prepared an aerial photo to show the average front setbacks of the houses along McPherson Street. The lounge room of the eastern unit projected in front of the average line he said. He did not consider that the garage at the front boundary of No.88 and the others further down hill, should justify the projection.

14 On the north side boundary if the setbacks were greater, then the bulk and the height exceedance over the allowed limit would disappear. He thought the steepness of the roof pitch added to the bulk of the building unnecessarily. The typical roof pitch in the area he believed was around 25 degrees. The proposal had a roof pitch of 36 degrees.

15 The house on the opposite corner of Fernhurst was No 84 McPherson had been referred to. It was a single storey bungalow that because of the cross fall in the land presented as two-storey for about 20 m along the side boundary to Fernhurst. Mr Sanders said that it was not typical of the other properties on that intersection.

16 In cross-examination Mr Sanders was taken to a wider aerial photo than his. It was in Exhibit B, Ms Laidlaw’s report and it showed houses further afield. It was put that the houses on the corner of McPherson Street and Davidson Pde, the next intersection south, had very similar houses to No.84. He said there were smaller. But he agreed they had narrow setbacks to the side streets and that houses on the corner of Bray Street and McPherson were similar.

17 It was put the applicant had resolved the concerns in regard to privacy of No 88 on the northern side of the site, by providing sight screens, planter boxes and changing windows. Mr Sanders thought the windows required fixed lower panes with frosted glass.

18 In regard to the height limit exceedance he thought the height and bulk would present unsatisfactorily to No 88 in particular due to its downhill position. Given that there was penetration of the envelope control and the height limit on that side at the eaves level and the top of the roof ridge, the design could be amended to comply.

19 It was put in the proposal would look single storey from the streets due to the slope. He agreed that the two-storey could only be perceived from certain locations, but especially from No 88.

20 He said the proposal also extended too far to the rear boundary penetrating the minimum 10 m set back by 4 m. It was put to him that this occurred only at the family room, and at the porch and lounge room the setbacks from the rear boundary were 10 m. Also the northern side boundary setbacks varied from a minimum of 1.760 m to 5 1/2 m and 6 1/2 m providing generous separation from No.88.

21 Mr Sanders said that it would still look bigger than the existing house that was to be demolished and non-compliances made it worse.

22 He agreed that from Fernhurst Street the proposed pallisade side fence and landscaping as indicated on drawing DA14a would soften the appearance and was a good transitional type of fence.

23 He agreed that he did not consider the garage built on No.88 at its front boundary to be a precedent for the proposal. He disagreed that type of garage was characteristic of the area. He was directed to the garages in the Fernhurst cul-de-sac. He thought they were away from the site and did not form part of the streetscape character near the proposal. He agreed similar street-front garages did form part of the character of McPherson St further down the hill from the site.

24 In reply Mr Sanders summarised his concerns as being a matter of degrees of impact. The proposal was just too big as indicated by the non-compliances with the physical requirements of the controls.

25 Mr Thompson owner and resident of No.88 McPherson Street said his major concerns were:

• windows of the proposal would overlook his backyard and
• the proposed building would look huge because it extended parallel to about half the length of his backyard area.
• the rock strata prevalent in the area meant that he received stormwater run-off through his land and the shadowing by the proposal would retain damp for longer periods.
• dust during construction, and security of building site during construction was important as he had young children and did not want them to be able to access the site from his backyard.
• looking downhill from his property and inside his property there was considerable amounts of pleasant vegetation. He feared the proposal would reduce that amenity.
  

26 Ms Laidlaw gave expert evidence for the applicant. In regard to the respondent’s complaint that the roof pitch of 36 degrees was uncharacteristic of the area. She said most roofs in the locality were 30 degrees but there was one almost next to the proposal which was at 50 degrees and there were some flat roofs. She said, in the area 30 degrees to 36 degrees was not unusual.

27 She did not consider the bulk of the proposal would be unacceptable as seen from No 88. She thought the architect had done a good job in designing the building and compared drawing DA 12 B. with the existing house. She said the design of the roof at the garages on the 2nd storey showed that the roof raked down almost to single storey eaves level, whereas the existing house was two-storey at that point. The set back from the side boundary with No 88 at that point was 1.8m, whereas the existing house was set back only about 1.4 m at the same point.

28 The existing house was 2-storey and 1.4m setback along its whole north side adjacent No.88. The proposal was 1.8m setback for about half its building length, and 2.6m setback for a quarter of its length, and 5.5m setback from No.88 for the remaining quarter.

29 Adjacent No.88’s back yard was where the 2.6m and 5.5m setbacks occurred. Also the existing garage on the site was only about 1m from the back yard of No.88, and the garage would be removed, so that building bulk would be replaced with vegetation. The boundary screen plantings in the landscape proposal, combined with the large setbacks would retain privacy for both No.88 and the proposal, and soften the bulk to acceptable levels.

30 Ms Laidlaw noted that No.88 had a covered patio extending into its back yard almost for its full length.

31 Further reducing any potential for overlooking or bulk, the architect had set back the 2nd story of the proposal further than the ground floor above the 2.6m setback section adjacent No.88’s rear yard. It was 3.445m setback, and the windows at that level were only a bathroom and Bedroom 3. On the ledge created by the increased setback at the 2nd storey, there was proposed a planter trough with screen vegetation. No unacceptable overlooking would be possible from those windows, Ms Laidlaw said. The Bedroom 1 windows at 2nd floor level facing towards No.88 were back at the 5.5m setback. It was only bedroom windows that normally were not used during the day, and the separation was much more than might be expected if a new house was built on No.86.

32 The other windows on the northern side only looked into the roof of No.88, or its side walls, as at the present time. The advantage to No.88 due to the proposal was a greater side boundary setback, and in some locations a lower height to the eaves level, both giving more light than at present, The sense of aspect and space would improve for No.88, and the existing and new vegetation would have more space to grow.

33 Ms. Laidlaw did not think frosted lower panels in any of the windows was justified.

34 In regard to the street front setback, she said that where street front setbacks were not consistent, or not in accordance with the development control plan, one fell back to analysing the characteristic setbacks of the area.

35 Nos 86, 88 and 90 McPherson Street were much further setback (at up to 10m) than other houses. This appeared to have occurred because of the steep drop from McPherson Street into their front yards necessitating a retaining wall. Most other houses have a 5 or 6 m setback from Street some having garages or carports within the front setback. Many houses were two-storey.

36 The proposal had only the single storey lounge room of the eastern unit facing McPherson Street with a 6.3 m setback. The two-storey section of the eastern townhouse was 10 m back from the street frontage. Given the elevated garage of No 88 at the street front boundary and directly adjoining the side boundary with No 86, together with the heavy vegetation on the street front and corner boundaries, Ms Laidlaw saw the proposal was a very good fit into the McPherson St character of the area. She said the setback was supported by the terms of cl 19(2) of the North Sydney LEP 2001, and over-rode inconsistencies in the DCP 2002.

37 On corners most houses were set close to the side street boundary. The proposal in having 1.2m to 3.4m variable setbacks to the side street, and by addressing the side streets, gave a better presentation than most corner houses. It did have a longer building length than others, but those typical nearby had shorter allotments, so the proposal was in proportion. The proposal had significant trees and vegetation to both its front yard and the rear yard so the building was framed between. The building would appear as single storey to Fernhurst with attic skylights in the pitched tiled roof. The roof was highly articulated with ridges at 5 different levels. It fitted the Fernhurst St character in her opinion.

38 Ms Laidlaw agreed that it would be possible to lower the roof pitch to 30 degrees, and therby reduce the visual bulk of the roof, and comply with the height limit, and the only changes would be to lower the ceilings of the attic rooms a little more. She confirmed there was no intention to use them for habitable purposes.

39 She disagreed that the height plane penetrations at the eaves should also be eliminated. They were minor at the garages and the western unit, and lowering of the eaves would make the tandem garages into single garages. The concerns of No.88 were in the same parts of the proposal, but she was sure that the design had eliminated any unacceptable impacts.

40 The height plane penetration of the bedrooms of the eastern unit was greater. But lowering the eaves there would eliminate Bedrooms 2 & 3. There were no unacceptable impacts created by the penetration, because it was at the eastern end of the building where little was seen from No.88 or the street due to:

• No.88’s garage and
• the roof of the house at No.88 and
• the 10.020m setback from McPherson St of the bedrooms
• the vegetation existing and proposed
• the topography including the slope of the street.

41 Ms Laidlaw had the opinion Mr Sanders calculation of Floor Space Ratio (FSR) were not relevant as the North Sydney statutes and controls did not apply FSR limits to this type of use. In any case his calculation of the FSR only showed the proposal was medium density residential development and that was what duplexes were.

42 The Council wanted additional s94 monetary contributions on the basis of the attic rooms being able to be used for bedrooms and therefore increasing the demand for facilities and services in North Sydney. Ms Laidlaw said that the attics would only have headroom under the roof apexes, and at the walls would be between 1.3m and 1.8m high. The volume and heights of the rooms would be insufficient to comply as habitable rooms under the Building Code of Australia.

43 On stormwater drainage the evidence in exhibit H showed that during construction there would be a silt fence on the downhill side of the site, and a sediment filter and sump that would discharge via a pump to Fernhurst St. This would protect No.88 during construction. On completion of construction that temporary system would be removed. However ALL of the roof gutter stormwater of the duplex would be conducted via high level pipes on the building, around to the east end, where it would go into underground pies and discharge to McPherson St. This would considerably reduce the amount of overland flows currently experienced by No.88.

Conclusions

44 In submissions the applicant accepted a condition that the roof pitch be lowered to 30 degrees and it would reduce the roof height by 500 mm. No State Environmental Planning Policy No 1 (SEPP 1) objection would be needed in that regard.

45 The penetration of building height plane remained in issue on account of loss of privacy. The respondent in opening had accepted that privacy screens on the windows of concern would resolve the privacy matter. The applicant proposed conditions in exhibit J to provide the privacy screens.

46 The applicant was concerned that the respondent again raised the matter during the hearing under the LEP clause 18 (5)(d) that referred to daylight and ventilation being affected by the exceedence of the building height plane. This aspect was dealt with in the SEPP1 objection in exhibit B.

47 Because the site No.86, was on the south side of No.88, there was NO overshadowing at all from the proposal in the applicable periods, and no reduction of daylight. The increased setbacks of the proposal would give more space for ventilation and ambient light to No.88. The Court concluded that the objectives would be achieved even though there was a non-conformity. The objection is supported.

48 The street setback argument revolved around whether or not the garage on No.88 could be included in the averaging of the front setbacks. The Court concluded the statute only excluded outbuildings on the SITE, not those on adjoining or adjacent properties. The garage on No.88 existed, and was unlikely to be removed, and was part of the streetscape into which the proposal would fit.

49 There is variable front setback character adjoining and near the site. For example the two buildings opposite the site in McPherson St, one of which is a duplex on the corner with Ourimbah St, have only 4.5m front setbacks. The other houses’ setbacks in McPherson have already been described. A SEPP1 objection is not needed under the statute for the front setback of the proposal, and it is satisfactory.

50 In regard to No.16 Fernhurst, it can be seen that it having an 8m front setback would make the site undevelopable in any practical sense if the proposal had to have the same setback. In any case, No.16 is not a corner block, and the subject site is, and its principal frontage is to McPherson St. The typical character of corner lots in the area near the site is to have a narrow side setback. The proposal has a greater side setback than most other corner houses, and more articulation.

51 The Court concluded that the SEPP 1 objection to the Fernhurst Ave boundary could be supported on the basis that the standard was unreasonable when applied to a corner lot side-street boundary, and the proposal was consistent with other corner lot side setbacks in the area and the local character of the residential area.

52 Lowering of the roof would in the Court’s opinion eliminate the use of the attic spaces as habitable rooms and the s94 contributions calculated by the respondent should be reduced accordingly. The parties agreed on the amounts, should the Court come to that conclusion.

53 Also the FSR calculations by Mr Sanders included the attic floorspace, so it gave an exaggerated impression of the relationship between FSR and bulk. The proposal is a little larger than some of the houses in the nearby area, but not so much so that it could be seen as out of character. The articulation of the roof, the most noticeable feature from the streets, will break up the bulk, especially with the lowered height. The street fencing is seen by both party’s experts to be acceptable. The proposal will fit in.

54 The Court sees no reason sufficient for refusal of the proposal and that the draft conditions as amended in exhibit J should be imposed.

55 Therefore the orders of the Court are:

1. The appeal is upheld.
2. Development consent is granted to two townhouses at No.86 McPherson St, North Cremorne as shown on drawings Nos. DA01A, DA02A, DA03B, DA04A, DA05A, DA06A, DA07A, DA08A, DA09A, DA10A, DA11A, DA12B, DA14A as in exhibit A, and drawings for drainage Nos. 1011/02 sheets 1 of 2 and 2 of 2 in exhibit H, and the landscape plan No. 1975–DA01–A and planting schedule by Natheldra Design in exhibit E, all as amended by and in accordance with the conditions in annexure A hereto.
3. The exhibits be returned to the parties except for exhibits A, E, H, J, K, L and 6.

KG Hoffman.
Commissioner of the Court
ljr

Appeal No: 10215 of 2003

Conditions of development consent

Annexure A

Ritah Associates Pty Limited -v- North Sydney Council

Duplex development at No. 86 McPherson Street,
North Cremorne
BUILDING CODE OF AUSTRALIA CLASSIFICATION: Class 1a and 10
A. Conditions that Identify Approved Plans


Development in Accordance with Plans

A1. The development being carried out in accordance with drawings numbered DA01A, DA02A, DA03B,to DA04A, DA06A to DA09A, DA11A and DA12BA, and by, and received by Council on 10 February 2003drawings numbered DA05A, DA10A and DA14A drawn by for Ritah Associates Pty Ltd, as in exhibit A; and drawings numbered 1/10011/02 and 2/20011/02, drawn by Lyle Marshall and Associates Pty Ltd, as in exhibit H, and Landscape Plan No. 1975-DA01-A and planting schedule by Natheldra Design in exhibit E, except where amended by the following conditions.

(Reason: Statutory)

Plans on Site

A2. A copy of all approved certified plans, specifications and documents incorporating conditions of approval certification shall be kept on site at all times so as to be readily available for perusal by any officer of Council or the Principal Certifying Authority.


(Reason: To ensure compliance with approved plans)


C. Conditions that Require Subsidiary Matters to be Completed to Satisfaction of Council or Accredited Certifier Prior to Issue of a Construction Certificate

Landscape Planting

C1. Mature vegetation shall be planted along the northern boundary of the site from the western end at No.16 Fernhurst to the eastern end of the lounge room of dwelling A. The planted vegetation shall be to a minimum height of 1.6 2 metres. Details are to be submitted with the construction certificate.

(Reason: Privacy)

Sill Heights and Obscure Glazing

C2. The proposed first floor bathroom window in the northern elevation shall be obscurely glazed. The first floor windows serving bedroom No. 1 of Dwelling ‘A’ and bedroom No. 2 (facing north) of Dwelling ‘B’ shall have minimum sill heights of 1.5 metres. Details are to be submitted with the construction certificate.

(Reason: Privacy)


Privacy Screens, Lowered Roof Height and use of Attic Rooms

C3. (a) A privacy device shall be provided to a minimum width of 350mm, to a top height of RL 68.44 metres for the full width of the north facing windows to Bedroom 2 and Bedroom 3 of Dwelling B, and for a distance extending 300mm each side of the window. Details are to be incorporated in the plans for the construction certificate.

(b) A louvred screen or similar device be provided on the northern edge of the planter opposite Bedroom 3 of Dwelling A, to a height of RL 67.1 metres for the width of the window. Details are to be incorporated in the plans for the construction certificate.

(c) The maximum roof pitch shall be 30o, with revised plans to achieve this and satisfactory access for the attics to be included in the plans for construction certificate

(d) The attics shall not be used as bedrooms and the applicant shall register an instrument under s88B of the Conveyancing Act 1919 on the title(s) to that effect.

(Reason: Visual Amenity)


Sydney Water

C4. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Co-ordinator, for details see the Sydney Water web site , or telephone 13 20 92.

Following application, a ‘Notice of Requirements’ will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Co-ordinator since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the linen plan/occupation of the development.

(Reason: Statutory)


Sediment Control

C5. Where construction or excavation activity requires the disturbance of the soil surface and existing vegetation, details, including plans and specifications, shall be submitted to Council accompanying the Construction Certificate which provide adequate measures for erosion and sediment control. As a minimum, control techniques are to be in accordance with North Sydney Council Guidelines on Erosion and Sediment Control, or a suitable, alternative method. The Control Plan shall incorporate and disclose:


(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: Protection of the Environment)

Dilapidation Survey

C6. A photographic survey of adjoining properties No. 88 McPherson Street detailing the physical condition of the property, both internally and externally, including such items as walls, ceilings, roof, structural members and other similar items, shall be submitted to Council and the Principal Certifying Authority (where Council does not issue the Construction Certificate) prior to the issue of a Construction Certificate. This survey is to be prepared by an appropriately qualified independent person agreed to in writing by both the applicant and the owner of the adjoining property.


On completion of the excavation and building works and prior to occupation of the building, a certificate prepared by the person agreed to by the parties to the effect that no damage has resulted to adjoining premises, is to be provided to Council or the Principal Certifying Authority.

If damage is identified by the person agreed to by the parties 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 occupation of the development.

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

(Reason: Structural Safety)


Structural Adequacy

C7. A report prepared by an independent Accredited Certifier, at no cost to the Council, detailing the structural adequacy of adjoining properties No. 88 McPherson Street, and its ability to withstand the proposed excavation and any measures required to be incorporated into the work to ensure that no damage will occur during the course of the works, shall be submitted to Council or the Principal Certifying Authority with the Construction Certificate.

(Reason: Structural Safety)

Damage to Adjoining Properties

C8. All precautions must be taken to prevent any damage likely to be sustained to adjoining properties. Adjoining owner property rights must be observed at all times. Where damage occurs to adjoining property all necessary repair or suitable agreement for necessary repairs are to be undertaken by the applicant in consultation with and with the consent of the affected property owner prior to the occupation of the development or issue of a building certificate.

(Reason: Structural Safety)

Asbestos Conditions

C9. A survey of the existing building fabric shall be undertaken identifying the presence or otherwise of asbestos contamination. Any works subsequently required to address asbestos contamination shall be undertaken in strict accordance with the requirements of the WorkCover Authority in relation to the removal, handling and disposal of material containing asbestos and the Work Safe Australia Asbestos Code of Practice and detailed in the Construction Certificate.


(Reason: Health and Safety)


S94 Contributions

C10. 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 adopted on the 19 July 1999 for the services detailed in column A and, for the amount detailed in column B shall be made to Council.

CONTRIBUTION ($)	Section 94 Payable (proposed minus credit)
Community Centres	$44.20
Child Care	$210.20
Library Acquisition	$57.10
Library extensions, fixtures & computers	$9.95
Library extension (2002)	$136.10
Multi-use indoor sports facility	$39.95
Olympic Pool	$74.35
Open Space embellishment	$1,564.80
Open Space acquisition	$5,458.25
Streetscape Improvements	$85.60
Traffic & Transport Improvements	$196.20
Administration	$77.65
TOTAL	$7,954.35


[This condition concerning s.94 contributions have been calculated on the basis of 8 bedrooms, with existing 5 bedrooms as credit, that is on the basis of 3 bedrooms, whereas only 6 bedrooms are proposed; the above amounts are one third of the Council proposed amounts, ie 1 additional bedroom rather thatn 3].

The contribution shall be paid prior to determination of the application 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. In addition, GST will be levied, at the applicable rate at the time of payment, from 1 July 2000.
(Reason: To retain a level of service for the existing population and to provide the same level of service to the population resulting from new development)


Security Bond

C11. All fees and security bonds in accordance with the schedule below must be paid or in place prior to the lodgement of any application for the required Construction Certificate:

DEVELOPMENT APPLICATION NO. 674/02

SECURITY BONDS	AMOUNT $
Vehicle Crossing Bond	2,500.00
TOTAL BONDS	$2,500.00
FEES
Section 94 contribution	7,954.35
TOTAL FEES	$7,954.35

(Reason: Compliance with the development consent)


Bonds

C12. Council will accept a bank guarantee for the purpose of any security bond imposed by these conditions of consent. Such bank guarantee shall be in a form acceptable to the Council and shall be in place prior to the commencement of work and shall remain in place until the submission of the compliance certificate required prior to the occupancy of the completed works.

NOTE : A summary of all security bonds, contributions and fees are appended at the end of this consent.
(Reason: Information, Protection of infrastructure and the environment)

Cigarette Butt Receptacle

C13. Deleted

Damage to Public Infrastructure

C14. The applicant shall bear the cost of all restoration works to Council’s property damaged during the course of this development. The applicant shall advise Council, in writing, of any existing damage to Council property before commencement of the development. A dilapidation survey of Council’s assets, including photographs and written record, must be prepared by a suitably qualified person and submitted to Council prior to the submission of an application for Construction Certificate.


Note: This documentation will be used to resolve any dispute over damage to infrastructure. It is in the applicant’s interest for it to be as full and detailed as possible. It is also the applicant’s responsibility to notify Council of any existing damage prior to commencement of any works.

(Reason: Protection of existing built public infrastructure)


Bond for Damage

C15. A Bond of $5,500 shall be deposited with Council against the construction of kerb and gutter and footpath paving works prior to the issue of a Construction Certificate. (See schedule).


(Reason: Safety and Statutory)


Vehicular Accessway Design

C16. The applicant shall design the vehicular accessway in compliance with the following:


(a) The vehicular accessway shall be designed to comply with AS 2890.1 1993 to ensure that a B85 vehicle will not scrape/strike the surface of the carriageway, layback, vehicular crossing or garage floor.

(b) The width of the vehicular layback shall be 6.5 metres (including the wings).

(c) The crossing (between the layback and the property boundary) shall be placed on a single straight grade of approximately 4.5%, falling to the back of the layback.

(d) An Accredited Certifier shall provide to the Principal Certifying Authority a certificate that, where required, the architectural design drawing has been amended to comply with the Consent. A photocopy of the aforementioned certificate shall be presented with the Construction Certificate.
(Reason: To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic)

Crossing Plan Details

C17. The following details must be submitted with the application for Construction Certificate:


(i) Longitudinal section along the extremities and centre-line of each driveway/access ramp at a scale of 1:50.

(ii) Sections to be taken from the centre-line of the roadway through to the parking area itself and shall include all changes of grade both existing and proposed.

(iii) The sections shall show all relevant levels and grades (both existing and proposed) including those levels stipulated as boundary levels.

(iv) The sections shall show the calculated clearance to the underside of any overhead structure.

(v) A longitudinal section along the gutter line showing how it is intended to blend the vehicular crossing into the existing kerb and gutter.

(vi) All details of internal ramps between parking levels.

All details are to be certified by an Accredited Certifier as complying with Australian Standard AS 2890, Parking Facilities and Council’s standard specifications.

(Reason: To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic)


Vehicle Crossings

C18. All redundant lay-backs and vehicular crossings shall be reinstated to conventional kerb and gutter, foot-paving or grassed verge as appropriate. Details of the location of relevant crossings and laybacks shall be shown on documentation supporting any application for Construction Certificate. All costs shall be borne by the applicant, and works shall be completed prior to the issue of the required compliance certificate.

(Reason: To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic, and the preservation of on street parking spaces)


Road Works (Fernhurst Avenue)

C19. The applicant shall reconstruct/construct the carriageway shoulder (600mm wide strip adjacent to all new gutter works), layback, full frontage kerb/gutter (except for the location of the layback), crossing, footpath pavement and transition works. The works shall be designed and constructed in compliance with the following:

a) 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.
b) All redundant laybacks shall be reinstated as kerb and gutter.
c) The proposed kerb gutter and layback gutter alignment shall be raised on a parallel alignment to the existing gutter to ensure that the cross-fall grade of the carriageway shoulder is 5.5% for a distance of 600mm, falling to the gutter, starting from the surface of the existing carriageway 1050mm from the existing face of kerb.
d) The footpath pavement shall be placed on a single straight grade of 3.0% falling to the top of kerb. The footpath pavement shall be full in width and placed adjacent to the front boundary of the property.
e) Footpath pavement transition works are required to ensure gentle changes in grade, drainage and no ‘trip’ hazards between the existing and proposed pavement. These works have been assessed as 1500mm in length or one pavement panel, whichever is the greatest.
f) Kerb/gutter transition works are required to ensure gentle changes in grade and longitudinal drainage between the existing and proposed kerb and gutter. These works have been assessed as:
i) Upstream of the proposed layback, the kerb/gutter shall be reconstructed for a length of 1000mm or to a point where a longitudinal gutter grade of 1.0% can be achieved or to en existing joint, whichever is the greatest.
ii) Downstream of the existing layback, the kerb/gutter shall be reconstructed for a length of 1000mm or to an existing joint, whichever is the greatest.
(Reason: To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic)


Stormwater and Seepage Water

C20 Stormwater plans approved in condition C1. Storm water drains to be installed to the appropriate Australian Standard and consent obtained from Council for discharge pipes under the McPherson Street footpath through the kerb and gutter.

Undergrounding of Power

C21 The power supply to the building shall be provided by underground conduits from the mains to the primary supply box or room within the subject building. Any redundant power poles shall be removed. All works shall be completed to Energy Australia’s requirements. Details to be provided with any application for Construction Certificate.

(Reason: To facilitate future undergrounding of power, streetscape)


D. Conditions That Must Be Complied With Prior To Any Demolition

Protection of Trees During Work

D1. All trees which are to be retained as a requirement of development consent, shall be maintained and protected during demolition, excavation and construction on the site. Protection method shall be provided to the Principal Certifying Authority by an appropriately qualified person prior to commencement of works.

(Reason: Compliance with the Tree Preservation Order and significant tree register)


Prohibition on Use of Pavements

D2. Building materials shall not be placed on Council's footpaths, road ways, parks or grass verges and a suitable sign to this effect shall be erected adjacent to the street alignment.

(Reason: Safety and Access)

Plant & Equipment

D3. All plant and equipment used in the erection of the building, including concrete pumps, wagons, lifts, mobile cranes, etc, shall be situated within the boundaries of the site and so placed that all concrete slurry, water, debris and the like shall be discharged onto the building site.

(Reason: Protection of the Environmental Health and Safety)

Excavation/Demolition

D4. No demolition or excavation shall be carried out until a Construction Certificate has been issued.

(Reason: Information/Statutory/Structural safety)

Disposal Schedule

D5. A disposal schedule for waste materials arising from demolition and excavation shall be submitted to Council, prior to commencement of demolition or building works, identifying:

a. those materials to be recycled;
b. those materials to be reused;
c. those materials to be disposed of.
A maximum amount of materials shall be recycled or reused.
(Reason: Environmental Management Protection)


Inspection Fees

D6. Where Council is acting as the Principal Certifying Authority and where an inspection of building, civil or landscape work is required by these conditions, inspection fees and component certification fees must be paid to Council before Council will undertake any inspections. These fees may be paid at the time of submission of the required Notice of Commencement of Works. This condition applies regardless of whether a Compliance Certificate fee is also payable.

NOTE : The submission of a Notice of Commencement of Works to Council is a statutory requirement prior to the commencement of any works on site.
(Reason: Compliance with Section 608 (6) of the Local Government Act 1993)

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


Retention of Trees

E1. All trees on the site are to be retained except the four trees expressly identified on the approved plans as being removed.

(Tree Preservation)

Materials

E2. The colour, texture and substance of all external materials shall be as detailed in the application. An application to modify the consent pursuant to S96 will be required to change any external finish or material substance.


(Reason: Compliance & Heritage Conservation)

Progress Inspections

E3. Council or the Principal Certifying Authority shall be given five (5) days notice for inspection of the following:


(a) Foundations before footings are laid.
(b) Reinforcement prior to encasement in concrete.
(c) Damp-proofing and flashing prior to covering.
(d) Structural steelwork prior to covering.
(e) Timber framing prior to lining.
(f) Stormwater and drainage prior to backfilling.
(g) On completion of building works.

Notes :

1. The appointed Principal Certifying Authority has a discretion to determine additional inspections which are required to ensure compliance or otherwise with relevant codes and standards.
2. Where North Sydney Council is acting as the Principal Certifying Authority for the project, notice is to be given by telephone to the Inspection Services Administration Officer and an appointment made for the relevant inspection.
(Reason: Compliance, Health and Safety)


‘Final’ Compliance Certificate

E4. Within seven (7) days of completion of the building works and prior to occupation or the issue of an Occupation Certificate (whether for part of a building or the whole) a Certificate of Compliance under Section 109C (1) (a) of the Environmental Planning and Assessment Act 1979 must be provided by the Principal Certifying Authority. This Compliance Certificate must certify that the completed work complies with the relevant Plans and Specifications and with the following conditions of this development consent: A1, C3, E14 and F1.

(Reason: Statutory)

Hazardous Materials

E5. Unless tested by a person with suitable experience and expertise and shown to be otherwise, buildings constructed before 1970 are assumed to:


• Have accumulated hazardous amounts of fine lead dust in ceiling and wall cavities; and
• Contain components and surfaces coated with lead paint.
Appropriate measures to minimise hazards and contamination from lead are to be implemented.
(Reason: Lead-safe Demolition)


Noise

E6. Noise emissions must comply with applicable standards under the Protection of the Environment Operations Act 1997. Vibration from the works must not be felt on any adjoining property.

(Reason: Amenity)

Dust Emission and Air Quality

E7. 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 be carried out so as to prevent nuisance occurring at adjoining properties.
(Reason: Safety and Amenity)


Special Permits

E8. Unless otherwise specifically approved 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 Unit 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:-

(1) 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 applicants, owners and builders responsibilities to take whatever steps are necessary to ensure that the use of any equipment does not violate adjoining property owners rights.
(Reason: Safety)
(2) 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: Safety)
(3) 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.
(Reason: Safety)
(4) 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.
(Reason: Safety)

Construction Hours

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. (Excavation work includes the use of any excavation machinery and the use of jackhammers, rock breakers, excavators, loaders and the like, regardless of whether the activities disturb or alter the natural state of the existing ground stratum or are breaking up/removing materials from the site).

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: Amenity, Health and Safety)


Maintenance of Sediment Control

E10. Techniques used for erosion and sediment control on building sites are to be adequately maintained at all times and all techniques shall remain in proper operation until all development activities have been completed and the site fully stabilised.

(Reason: Protection of the Environment)


Erosion Signage

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: Environmental Health)


Asbestos Conditions

E12. All asbestos must be removed by a licensed asbestos contractor in compliance with the Work Safe Australia Asbestos Code of Practice and guidance notes.

(Reason: Health and Safety)


Health and Safety

E13. The work 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.

(Reason: Protection of the environment)


Landscaping and Rehabilitation

E14. Prior to the issue of an Occupation Certificate disturbed areas must be progressively stabilised and revegetated in accordance with the landscape plan approved in Condition A1, as modified by Condition C1. The vegetation shall be maintained and replenished as necessary to continue compliance with the approved plan throughout the life of the building.

(Reason: Protection of the environment)


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

Building Code of Australia

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

(a) in the case of work to be done by a licensee under that Act:
(i) has been informed in writing of the licensee’s name and contractor licence number, and
(ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act, or
(b) in the case of work to be done by any other person:
(i) has been informed in writing of the person’s name and owner-builder permit number, or
(ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in section 29 of that Act, and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.
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, so 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.
(Reason: Prescribed - Statutory)


Excavation/Demolition

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.

(2) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.
(Reason: Prescribed - Statutory)


Retaining Walls & Drainage

F4. If the soil conditions require it:

(a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and
(b) adequate provision must be made for drainage.
(Reason: Prescribed - Statutory)

Support for Neighbouring Buildings

F5. (1) If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:-


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


Protection of Public Places

F6. (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 or fence 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.
(Reason: Prescribed - Statutory)


Site Sign

F7. (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, and
(b) showing the name of the owner of the premises and of the person in charge of the work site, and a telephone number at which that person may be contacted outside working hours.
(2) Any such sign is to be removed when the work has been completed.
(3) This clause does not apply to:
(a) building work carried out inside an existing building, or
(b) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.
(Reason: Prescribed - Statutory)


Toilets

F8. (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
(b) must be connected:
(i) to a public sewer; or
(ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or
(iii) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council.
(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 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 Regulation.
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.
(Reason: Prescribed - Statutory)


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

Certification

G1. (a) An appropriately qualified person shall certify to the Principal Certifying Authority that the stormwater drainage system was constructed in accordance with the consent. The applicant shall, upon completion of the development works and prior to the final inspection/s, submit to Council a copy of the aforementioned letter of certification.

(b) An appropriately qualified person shall certify to the Principal Certifying Authority that the vehicular crossing and associated works and road works were constructed in accordance with the consent. The applicant shall, upon completion of the development works and prior to the final inspection/s, submit to Council a copy of the aforementioned letter of certification.
(Reason: Compliance with the Consent)


Works as Executed Drawings

G2. The applicant shall, upon completion of the development works, submit to Council the works-as-executed drawing (W.A.E.) and letter of certification, prior to occupancy. The W.A.E. drawing shall show the alignment of the stormwater drainage pipelines, easement and associated structures.

(Reason: Compliance with the Consent)
K. Advisings


Public Risk Insurance

K1. The owner/applicant/contractor must take out Public Risk Insurance with a minimum cover of $10 million in relation to the occupation of, and works within Council’s road reserve. The Policy is to note Council as an interested party and a copy of the Policy must be submitted to Council prior to commencement of the works.

(Reason: Safety and statutory)

Utility Services

K2. All utility services shall be adjusted, to the correct levels and/or location/s, to the satisfaction of North Sydney Council’s Development Engineer and the relevant public authority.

(Reason: Protection of existing infrastructure)

CONTRIBUTION ($)	2x4 bedroom duplex	1x3 bedroom 1x4 bedroom duplex	2x3 bedroom duplex
Community Centres	136.26	101.09	65.92
Child Care	648.28	480.98	313.08
Library Acquisition	186.38	138.31	90.24
Library building equipment	30.69	22.78	14.87
Library extension	419.70	311.39	203.08
Multi-use indoor sports facility	121.19	89.92	58.65
Olympic Pool	229.36	170.71	110.98
Open Space embellishment	4,825.83	3,580.45	2,335.07
Open Space acquisition	16,833.22	12,489.15	8,145.08
Streetscape Improvements	264.02	195.89	127.76
Traffic & Transport Improvements	605.07	448.93	292.79
Administration	239.56	177.74	115.92
TOTAL	24,539.56	18,206.80	11,874.04

K G Hoffman
Commissioner of the Court
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