Roger C Corbin Pty Ltd v Hornsby Shire Council - [2001] NSWLEC 6

Land and Environment Court

of New South Wales

CITATION: Roger C Corbin Pty Ltd v Hornsby Shire Council [2001] NSWLEC 6

PARTIES:
APPLICANT
Roger C Corbin Pty Ltd
RESPONDENT
Hornsby Shire Council

FILE NUMBER(S): 10459 of 2000 and 11069 of 2000

CORAM: Pearlman J

KEY ISSUES: Development :- subdivision - car parking - consistency with zone - objectives - access and traffic - tree and vegetation impact - heritage - lot size - visual amenity - stormwater and drainage

LEGISLATION CITED: Hornsby Local Environmental Plan 1994
Low Density Multi-Unit Housing Development Control Plan
Residential Subdivision Development Control Plan

CASES CITED:

DATES OF HEARING: 17/11/2000, 20/11/2000, 21/11/2000, 22/11/2000, 23/11/2000, 24/11/2000, 29/11/2000, 05/12/2000, 08/12/2000, 24/01/2001

DATE OF JUDGMENT:
03/23/2001

LEGAL REPRESENTATIVES:

APPLICANT
Mr P D McClellan QC with Mr A E Galasso (Barrister)
SOLICITORS
Carroll & O'Dea
RESPONDENT
Mr R K Graham (Solicitor)
SOLICITORS
Abbott Tout

JUDGMENT:

Contents

Section Paragraph Number

Introduction 1 to 5

The site 6 to 10

Surrounding environment 11

The proposed development 12 to 20

The relevant planning instruments

Hornsby Local Environmental Plan

Residential Subdivision Development Control Plan

Other development control plans

Evidence 35 to 37

The issues 38 to 39

Consistency with Special Uses zone 40 to 42

Access, parking, pedestrian and traffic arrangements 43 to 48

Lots 128 to 134 49 to 54

Lots 105 to 109 and lot 112 55

Lots 98 to 114 56 to 57

Heritage impact 58 to 62

The Blue Gum High Forest 63 to 65

Stormwater and drainage system 66 to 72

Conditions of consent 73 to 74

Orders 75 to 77

IN THE LAND AND 10459 of 2000 and 11069 of 2000
ENVIRONMENT COURT

Pearlman J

OF NEW SOUTH WALES 23 March 2001

ROGER C CORBIN PTY LTD

Applicant

HORNSBY SHIRE COUNCIL

Respondent

JUDGMENT

Introduction

1. These proceedings involve two appeals against the refusal of Hornsby Shire Council to grant consent to a development application for the subdivision of land into 134 lots and a development application for the construction of car parks.

2. In essence, the proposal is to subdivide land that is surplus to the requirements of Oakhill College on Old Northern Road, Castle Hill. The proposal requires the relocation of some of the College’s car parking and consequently a separate development application was made for new car parking areas.

3. In making his final address, Mr Graham, who appeared for the council, conceded that the council did not totally oppose the grant of development consent in respect of both development applications, but he submitted that there were “tender areas” which should be carefully assessed. Those “tender areas” were the subject of the issues in the case as they were refined during the hearing, and my conclusions in respect of each of them are set out below.

4. I have concluded that development consent should be granted in respect of both development applications, subject in each case to the imposition of conditions of consent. I do not propose, however, to grant development consent in respect of some of the proposed lots, namely, lots 105 to 109, lot 112, and lots 128 to 131.

5. I record that I have had the benefit of a site inspection and I have had the assistance of Commissioner Murrell.

The site

6. The site is located on the eastern side of Old Northern Road, Castle Hill and is known as No 423 - 515 Old Northern Road.

7. The total area of the site is 28.2 hectares and it is described as lot 1 DP 120199, lot 7 DP 840120, lot 320 DP 859559, lot 4 DP 133491 and lot 15 DP 8265027. The site is irregular in shape and has a frontage of some 800 m to Old Northern Road.

8. The College buildings are generally located on the higher part of the site. Adjacent to Old Northern Road the site falls steeply away. A telecommunications tower is located towards the north-western corner of the site. The lower southern portion of the site contains the College’s sporting facilities including playing fields, tennis and basketball courts, cricket nets, and a swimming pool. The eastern portion of the site is predominantly cleared grazing land traversed by a watercourse which flows to the end of Foley Place. In this location there is also a remnant stand of Blue Gum High Forest.

9. Included amongst the College buildings is the John Baptist Building (“the JBB”). It is not in dispute that the JBB is a heritage item listed in the Hornsby Shire Local Environmental Plan 1994 (although that listing vaguely refers to “Oakhill college, original building, gate house and grounds”).

10. The College has two access points off Old Northern Road. The northern access provides direct access to the JBB as well as to the College facilities. The impact of the proposed development upon the northern access (“the upper driveway”) was the subject of some particular evidence during the hearing. The southern access is the main entrance to the College where there are traffic lights and a bus lane and vehicle exit lane. A more informal access is provided via a right-of-way at Tawmii Place.

Surrounding environment

11. On the northern boundary of the site the Oakhill Primary School is located as well as one and two storey detached dwellings. To the south of the site is a large residential retirement village and church known as Mowll Village. On the eastern side of the site there is a common boundary with a low density residential development consisting of one and two storey detached houses. To the west across Old Northern Road is the site known as Heritage Park, a potential urban release area within Baulkham Hills local government area.

The proposed development

12. The development applications in summary sought approval for the following:

· subdivision of the site into three lots: lot 135 (to contain Oakhill College), lot 136 and lot 137;

· staged subdivision of lots 136 and 137 to create 134 residential lots containing a mixture of community title and Torrens title lots;

· site preparation works including bulk earth works and cut and fill;

· construction of 50 dwellings on the proposed community titles;

· construction of a community facility comprising a swimming pool, tennis court and community meeting room;

· construction of new roadways both public and private;

· construction of a stormwater detention system;

· creation of a wetland;

· new car parking areas for some 100 spaces on lot 135;

· revised ingress and egress to the College; and

· the demolition of some buildings.

13. The new lot 136 is intended to be subdivided into 82 conventional residential lots in the eastern portion of the site ranging in size from 500 m2 to 750 m2. Most of the residential lots will be accessed via two new cul-de-sac roads, one of which will be an extension to Foley Place.

14. It is intended that lot 137 will be subdivided into 52 community title lots, ranging in size from 350 m2 to 645 m2 with one community lot. The majority of the community title lots will be accessed via a right-of-carriageway linked to Tawmii Place but it is intended that lots 128 to 134 will have access via the upper driveway. It is proposed to construct dwellings on all community title lots except the lot upon which the telecommunications tower is erected, which will remain vacant until that tower is removed. Twelve different house designs are proposed for the community title lots which are to be predominantly two-storey with some three-storey dwellings on the steeper lots.

15. The community lot includes access roads, 15 visitor parking spaces, landscaping and community facilities including a swimming pool, tennis court, play area and community meeting room for use by the residents of the community title lots.

16. An additional community title open space area is to be located to the west of the JBB and this currently forms a landscape garden curtilage to the JBB.

17. It is proposed that the development be staged as shown below.

Stage Description

1 Consolidation of existing lots; Subdivision creating proposed lots 135, 136 and 137

2 Lots 1 - 33 - Torrens title

3 Lots 34 - 82 - Torrens title

4 Lots 52 - 68 - Torrens title

5 Lots 83 - 97 - community title lot with communal facilities (Phase 1 of community title development)

6 Lots 98 - 127 - Phase 2 of community title development

7 Lots 128 - 134 - Phase 3 of community title development

18. A wetland is proposed to be constructed near the Blue Gum High Forest to accommodate stormwater up to the 1:20 year storm event with the water then to be conveyed to the piped stormwater system via Foley Place. The purpose of the wetland is to enable stormwater detention and water quality treatment prior to discharge to the stormwater system.

19. Landscaping works are proposed to complement the existing landscape and to provide amenity and privacy to residents and existing neighbours and to create recreational areas.

20. However, the proposal described above was modified towards the end of the hearing when the applicant tendered plan ‘X’. The modification made was, firstly, to reduce the number of lots fronting the upper driveway in the vicinity of the garden adjacent to the JBB from seven to four lots, secondly, to provide a community title area of 15 m to 25 m between those lots and Old Northern Road, and thirdly, to provide a 7.5 m buffer of community title land between lots 105 and 108 and Old Northern Road.

The relevant planning instruments

Hornsby Local Environmental Plan 1994 (“LEP 1994”)

21. The largest part of the site is zoned Special Uses A (Community Purposes). A portion of the site, in the south-east near Bassett Place and Foley Place, is zoned Residential A (Low Density). The proposed development is permissible in both zones.

22. The aims of LEP 1994 include:

(b) to protect and enhance the environmental qualities of the area;
(c) to facilitate the orderly and economic development of land within the area;
(d) to promote the well being of the area’s population.

23. The objectives of LEP 1994 include:

(b) to protect environmentally sensitive areas and the heritage of the area;
(c) to improve opportunities for ecologically sustainable development

24. Clause 7(2) of LEP 1994 provides that the objectives of each zone are to be taken into account before development consent is given. The objectives of the Special Uses A zone are:

(a) to provide for the cultural needs of the community;
(b) to identify land for the provision of community services and facilities,
(c) to ensure that community uses are compatible with the amenity of the area in which they are located.

25. The objectives for the Residential A zone are:

(a) to provide for the housing needs for the population of the Hornsby area;
(b) to promote a variety of housing types and other land uses compatible with the low density residential environment;
(c) to provide for development that is within the environmental capacity of a low density residential environment.

26. The heritage provisions are contained in cl 18, the objective of which is “to provide for continuity with the past by conserving the heritage of the Hornsby area …”. Clause 18(5) provides as follows:

(5) The council must take into consideration the likely effect of the proposed development on the heritage significance of a heritage item and its setting … when determining an application for consent to carry out development on land in its vicinity.

27. The density for the Residential A zone is contained in cl 14 and the minimum allotment area per dwelling is 500 m2. For multi-unit housing consent can be granted where development will result in a density not greater than one dwelling per 350 m2. Clause 15 provides a floor space ratio for the Residential A zone of 0.4:1.

28. For the Special Uses A zone there are no density controls or minimum subdivision sizes provided in LEP 1994.

Residential Subdivision Development Control Plan (Residential Subdivision DCP)

29. The primary purpose of the Residential Subdivision DCP is to provide controls for residential subdivision in low density residential and special use zones. It achieves this by providing for a number of controls or elements, and, in respect of each, it sets out an objective, performance criteria, and prescriptive measures.

30. The density element objective is:

To promote a low density residential environment and provide for lots of sufficient size to satisfy user requirements.

31. It is noted that lots may be “torrens titled or community titled”, and the relevant prescriptive measures are:

lots should have a minimum area of 500 m2 in the Residential A … and adjoining Special Use zones.
To minimise the potential for overlooking and overshadowing and ensure the amenity of both future and adjoining residents, the allotment size on sloping sites should increase as slope increases in accordance with the (allotment size graph provided).

32. The soil water and management element objective is :

To minimise soil erosion and sedimentation by minimising land disturbance and requiring control measures at the source.

33. The prescriptive measures require the preparation of a soil water management plan which should demonstrate “that there will be minimum practicable net increase in pollution of downstream lands or receiving waters”.

Other development control plans

34. A number of other development control plans apply to development upon the site. The Low Density Multi-Unit Housing Development Control Plan relevantly reinforces the density stipulated in the Residential Subdivision DCP, namely, that the density of multi-unit housing should not exceed one dwelling per 350 m2. The Heritage Development Control Plan provides controls for development relating to heritage items and in particular annexes the heritage provisions of LEP 1994. Controls for the erection of dwelling houses in the low density residential and special use zones are set out in the Dwelling House Development Control Plan.

Evidence

35. On behalf of the council evidence was provided by the following expert witnesses:

· Mr J A Moody, town planner;

· Mr R A Moore, heritage architect;

· Mr S Douglas, ecologist;

· Mr C B Martin, arborist;

· Mr L M Querin, landscape architect;

· Mr C J Wilson, traffic engineer; and

· Dr P Bacon, wetlands, soil and water management specialist

36. The Court also heard evidence from a number of residents in the area who had made written submissions to the Council opposing the proposed development. They and their addresses were:

· Mr D Lear, 1 Bassett Place;

· Ms P Dell, 14 Bassett Place;

· Mr R Smith, 18 Oakhill Drive;

· Mr G Hogan, 25 Tawmii Place; and

· Ms P Cherry, 5 Bassett Place.

37. For the applicant evidence was provided by the following expert witnesses:

· Mr N Ingham, town planner;

· Mr M B Colston, traffic engineer;

· Dr S J Perrens, hydrologist;

· Mr J J Travers, ecologist,

· Mr R Staas, heritage architect; and

· Mr J G Nelson, engineer, surveyor and townplanner.

The issues

38. The council raised 19 issues in its amended statement of issues, but during the hearing the issues were refined into the following:

(1) Consistency with the objectives of the Special Uses A (Community Purposes) zone;

(2) Access, parking, pedestrian and traffic arrangements;

(3) The particular impact of proposed lots 128 to 134;

(4) The particular impact of proposed lots 105 to 109 and 112;

(5) The size, shape and configuration of the community title lots;

(6) Heritage impact in relation to the JBB and its setting;

(7) Impact upon the Blue Gum High Forest; and

(8) The proposed stormwater and drainage works.

39. I deal with each of these issues in turn.

Consistency with Special Uses zone

40. The council’s concern, as expressed by Mr Moody, is that a residential subdivision within land zoned Special Uses A is not in conformity with the objectives of that zone because it “will have the effect of removing Community Purposes land and setting it aside for private residential use …”.

41. In response, Mr Ingham pointed to three matters. First, he drew attention to the fact that subdivision, dwellings and multi-unit housing are uses which are specified in the Special Uses A zoning table as being permissible with consent, and such development is noted as occurring in that zone in both the Residential Subdivision DCP and the Low Density Multi-Unit Housing DCP. His opinion was, therefore, that the proposed development is appropriate within the zone. Secondly, he noted the fact that the proposed development is designed for land that is surplus to the needs of the College, and the proposed development relates to a relatively small proportion of the site. His opinion, therefore, was that the proposed development will not reduce the value of the College as a community asset. Thirdly, he pointed to the proposed community facilities associated with the community title lots as being supportive of the zone objectives.

42. I have taken all these matters into account as I am required to do by cl 7(2) of LEP 1994, and I am persuaded by Mr Ingham’s evidence. This issue does not justify refusal of development consent.

Access, parking, pedestrian and traffic arrangements

43. This issue relates to the impact of the proposed development on the existing street system as well as the impact of the change of vehicle ingress and egress and parking arrangements for the College. Three separate matters arose.

44. First, there is the matter of vehicular access to the College. Currently one form of access is obtained from Tawmii Place via a right-of-way. This access will cease. Instead there will be access via Foley Place. That street will be extended to serve the surrounding residential development, but it will also provide a new entrance to the College with a boom gate (designed to avoid through traffic, ie the “rat run”, as it was called). The main entrance to the College will continue to be from the southern entrance on Old Northern Road, where the bus set-down and car entry are to be upgraded. Although Mr Wilson expressed some misgivings about whether or not a boom gate system would work to control through traffic, neither he nor Mr Colston had any major objections to the access arrangements.

45. Secondly, both the council and the residents expressed concern that the proposed development would generate additional traffic on the road network of the residential area which is already congested, especially because access to the community title lots is to be provided from Tawmii Place. All the residents expressed particular concern about the exacerbation of traffic congestion connected with Oakhill Public School and they voiced concerns about safety. In particular, Mr Smith furnished evidence of road counts he had conducted, and Mrs Dell spoke about traffic congestion at the public school at peak times.

46. Mr Wilson considered that access to the community title lots from Tawmii Place to be acceptable subject to formalisation of the setdown/pickup for the public school. He told the Court that where residential areas are proximate to schools it is inevitable there will be peaks in the morning and afternoon. Mr Colston concluded that the formalising of parking within the College grounds, the closure of the Tawmii Place access to the College and the upgrading of the main access from Old Northern Road all mean that on balance the proposal is beneficial in traffic terms.

47. While the proposed development will result in more traffic on the road system I have been persuaded by the evidence of both experts that the capacity of the roads would accommodate the increased traffic. Mr Wilson and Mr Colston agreed that there are no concerns with the environmental/physical capacity of the street system to take the volume of projected traffic. However, a condition of consent was proposed which would require a traffic management plan to be submitted to the council for its approval and this condition is acceptable to the applicant. Similarly, a traffic management plan to ensure the safety of pedestrians and students waiting adjacent to the bus pick up/set down area at the southern access to the site will be required.

48. Thirdly, new car parks are proposed for the College. I accept the applicant’s evidence that the visual impact of the car parks can be mitigated by the provision of landscaping. A condition of consent requiring the provision of one shade tree for every six car spaces is also proposed and this will further assist. Furthermore, I am satisfied that car park 4 will not unreasonably intrude upon the visual aspect of the JBB, when viewed from Old Northern Road or within the College grounds.

Lots 128 to 134

49. Originally, there were to be seven community title lots along the upper driveway. As I have earlier indicated, this proposal has been modified by plan ‘X’, so that only four community title lots are intended for this location. The largest of them is to be lot 131, upon which the telecommunications tower is located and it is not proposed that this lot would be developed for residential purposes until after the tower has been removed. The remaining lots, 128, 129 and 130, are each slightly in excess of 440 m2 in area, and each will have a road frontage of about 25 m with a depth of 18 m.

50. There are two serious constraints which impact upon development in this area of the site. The first is the extremely steep slope of the land towards the west down to Old Northern Road. The second is the existence of brush box, hoop pine and date palm trees in the area. The reconfiguration of the lots which plan ‘X’ contemplates would provide a buffer in community title ownership of 15 to 25 m to Old Northern Road, encompassing the steep parts of the site in this area, and so far as possible it is intended to retain significant trees.

51. However, I remain unconvinced that residential development as presently proposed is appropriate for this area. Mr Martin pointed to the possibility that future residents might clear understorey for amenity use or to improve access to impressive views to the west, and that would adversely impact upon trees to be retained. He also said that construction of buildings in such proximity to trees may adversely impact upon the long-term health of the trees. In his opinion, the trees in this location are landmark plantings, and provide buffers from westerly and southwesterly winds.

52. Mr Martin’s evidence was supported by Mr Querin. He also thought that the retention of trees in this location could not be assured. No countervailing evidence was provided on behalf of the applicant, although it endeavoured to meet the issue by plan ‘X’.

53. Two other matters about the proposed development in this location cause me concern. The first is the proximity of these lots to the upper driveway and the proximity of the lots to the JBB. The JBB is a heritage item, as I have previously explained, and the upper driveway is of some significance as being the original entrance to the site. While I accept that the upper driveway is not a ceremonial roadway, I accept Mr Moody’s opinion that it forms “part of the landscape setting and feeling and presentation attached to the site”. Secondly, I have noted, from the landscaping plans, that two significant Canary Island date palms and other significant trees are situated on lot 131 and they ought not to be jeopardised.

54. In all these circumstances, I have concluded that development consent in respect of the proposed lots 128 to 131 should not be granted, and they should be deleted from the proposal. I will impose a condition of consent to this effect. The consequence is, of course, that stage 7 of the staged development will not proceed.

Lots 105 to 109 and lot 112

55. These lots were also the subject of an amendment in plan ‘X’. It is now intended that lots 105 to 108 will have a 7.5 m buffer to Old Northern Road. The 7.5 m buffer, however, further reduces the size of the allotments with the smallest lots being 360 m2 in area but, it appears, the same size dwelling are to be located as originally proposed. Furthermore, a 7.5 m buffer is considerably less than the 15 m buffer which Mr Moody thought was required. In addition, Mr Martin’s opinion was that development upon lots 105 to 108 (including basement excavation) would have an adverse impact upon existing trees and upon soil available for future planting. As to lots 109 and 112, I note that they are to have a common boundary with the original driveway and this also seems unsatisfactory, having regard to the need to provide a significant vegetated buffer to conserve the setting of the upper driveway. Therefore, lots 105 to 109 and 112 as proposed in plan ‘X’ should not be the subject of development consent. I will impose a condition to this effect.

Lots 98 to 104

56. The council’s concern relates to the size and depth of the lots which range from 475 m2 to 480 m2 with a depth of about 25.5 m. The concern is that the proposed lots would be out of character with existing lots in the immediate vicinity. The existing lots, Nos 16 to 21 Tawmii Place, are generally in the order of approximately 800 m2, although, on the opposite side of the road, there are lots ranging in size from 375 m2 and in Oakhill Drive there are many lots below 500 m2, ranging in size from 350 m2 with several allotments around 415 m2.

57. I am satisfied that, while lots 98 to 104 are generally smaller than existing lots immediately adjoining them, the percentage of each lot to be covered by each proposed dwelling will be no greater than that of the houses with frontages to Tawmii Place. In terms of the Residential Subdivision DCP, there will be adequate area for private open space and rear boundary landscaping as shown on the landscaped plan for the community title area. Furthermore, the occupants of the lots will have the benefit of the use of the community facility that the existing smaller lots in the area will not enjoy. I also note from the landscape plan that the proposed dwellings on lots 98 to 104 will not have any rear decks and balconies which would further reduce any potential for overlooking the rear yards of the properties behind them. I am also satisfied there is adequate separation between the rear of the dwellings. This issue does not, therefore, justify refusal of consent.

Heritage Impact

58. Three areas of concern arose from consideration of the heritage impact of the proposed development. The first was the question of whether the triangular area to the west of the JBB should remain within the lot to be retained by the College and thus under the control of the College, or whether, as the applicant proposed, it should be part of the community facility of the community title lots. The second was the potential impact of the proposed development, especially lots 105 to 109, lot 112 and lots 128 to 131, upon the landscaped upper driveway. The third was the visual impact of the proposed new car parks upon the heritage vista of the JBB.

59. The triangular area had been identified by Clouston Landscape Architects as part of the “essential” (rather than “extended”) curtilage of the JBB, and Mr Staas had also identified it as such. Mr Moore did not agree with the distinction between “essential” and “extended”, but, in giving oral evidence, he said that placing the triangular area in the community title subdivision would remove it from its “logical relationship” with the JBB, and that it should remain tied to the ownership of the JBB. Mr Staas disagreed. He said that severing the triangular area from ownership of the JBB and fencing it off from the JBB would not sever its relationship with the JBB because it will remain undeveloped. It is on the western side of the JBB, which is the building’s less significant side, and there is already a hedge where the land would be fenced.

60. I accept Mr Staas’ opinion on this matter. In particular, I note that the triangular area is intended to remain undeveloped, but will form a communal garden area for the community title lots. I am not persuaded that different ownership will have the adverse impact that the council claims.

61. The upper driveway is not ceremonial nor is it part of the heritage curtilage of the JBB, although as Mr Moody pointed out, it provides a visual setting for the western area of the site. However, the potential for impact upon the upper driveway would arise from lots 128 to 131 and from lots 105 to 109 and lot 112. For the reasons I have already given, I propose to delete these lots from the subdivision, with the consequence that this concern does not arise.

62. Mr Moore was concerned about the impact of the new car parks upon the visual aspect of the JBB, especially car park 4 proposed to the south. Mr Staas said that the impact would be minimal, and, especially, views of the cupola and top of the roof of the JBB would not be impeded. I accept Mr Staas’ evidence in this respect, and I do not regard the visual impact of such significance as to warrant refusal of consent.

The Blue Gum High Forest

63. The remnant Blue Gum High Forest in the south of the site is proposed to be retained as private open space in the ownership of the College. The only issue which arose was whether or not it would suffer any adverse impact as a consequence of the proximity of lots 19 to 22. The council’s concern is that noxious weeds and exotic plants might invade the habitat of the forest.

64. The council seeks the imposition of a condition of consent which would reflect the recommendations of Mr Douglas, that is, a requirement for a 3 to 5 m mown buffer between the rear of the those lots and the Blue Gum High Forest, and, in addition, the provision of a colorbond style fence on each rear boundary. The applicant objects to this condition. It relied upon a report prepared by Ian Perkins Consultancy Services, which included a restoration and management plan in relation to the Blue Gum High Forest. In his report, Mr Travers annexed a further report from Ian Perkins Consultancy Services and stated that he agreed with its contents. Based on that material, the applicant contended that a 1 m wide concrete strip together with a pool style fence would be sufficient to avoid adverse impact from lots 19 to 22.

65. I accept the council’s view that a solid fence is required to control the invasion of weeds. If such a fence was installed, with no access to the Blue Gum High Forest, then this would obviate the need for a 3 to 5 m mown buffer. Furthermore, a solid masonry or brick fence may be preferred. I propose to impose a condition of consent which takes account of these matters.

Stormwater and drainage system

66. The proposed stormwater and drainage system comprises two main components. First, runoff from the majority of the site will drain to the council’s stormwater system in Oakhill Drive and thence to Pyes Creek. Secondly, a wetland will be constructed at the southern end of the site. It is intended that the wetland will treat stormwater from an area of about 40 hectares, only 2 hectares of which forms part of the site. That 40 hectares will include Mowll Village and an area of land to the south up to the intersection of Old Northern Road and Castle Hill Road.

67. Dr Perrens said that the system was intended to achieve a no net increase in pollutant load upon the council’s overall system. The notion is that, whilst stormwater runoff from most of the site would drain untreated into the council’s system, the wetland will provide a filter to remove a certain percentage of pollutants from the 40 hectares sub-catchment, so that overall the goal of no net increase will be achieved in the greater catchment. The size of the wetland as proposed is intended to provide a partial rather than a full treatment of runoff from the 40 hectare area, but it will, in Dr Perrens’ opinion, be sufficient to ensure that no net increase will be achieved.

68. Dr Bacon, however, was critical of the proposal. He could see no reason, except cost, as to why the whole of the proposed development should not drain to the wetland, and he believed, in principle, that a stormwater system should be designed for the whole of the new development. He was also concerned about the design and capacity of the wetland. He furnished a total re-design of the wetland system and he also furnished an alternate concept design called “plan view of wetland”.

69. I accept the principle which Dr Perrens espoused, namely, that the no net increase goal can be achieved by treating runoff from other urban catchments. The relevant environmental instruments do not require runoff from the whole site to the drain to the wetland. They do, however, set the goal of no net increase of pollutants in the council’s overall system. As I have already indicated, both the Residential Subdivision DCP and the Low Density Multi-Unit Housing DCP require a soil and water management plan that “should demonstrate that there will be minimum practicable net increase in the pollution of downstream lands or receiving waters”.

70. I am also concerned with the impact which might result from the excavation and other works which would be required to transport all runoff from the site to the wetland. If, as I accept, there will be no net increase in pollutants to the overall system, then it is preferable to avoid the consequences of such excavation and other works.

71. There was considerable debate as to whether or not the wetland as proposed will in fact achieve the desired goal. Both Dr Perrens and Dr Bacon made various calculations, but I generally accept Dr Perrens’ evidence. Dr Perrens did not agree with Dr Bacon’s proposal for a total re-design but he had no concern with Dr Bacon’s “plan view of wetland”. There is no doubt in my mind that an appropriate and satisfactory design can be achieved and that detailed design can have regard to the “plan view of wetland”. I propose to impose conditions of consent which give effect to these matters, and in doing so, I reject the condition which the council sought which would have the effect of implementing Dr Bacon’s total re-design.

72. A further issue was whether appropriate stormwater control devices, that is, CDS units, should be installed and maintained in the other catchment area where the majority of the lots are to be sited. Dr Perrens did not consider that CDS units were necessary because of his opinion that no net increase would be achieved by the system he proposed. However, CDS units are indicated on the submitted plans and in the draft conditions of consent and I consider they are appropriate as an added precaution.

Conditions of consent

73. With the Court’s encouragement, the parties met together several times over a lengthy period to endeavour to settle appropriate conditions of consent. The ultimate draft versions for both the subdivision development application and the car parking development application were tendered on 24 January 2001. I have adopted those versions with the following adjustments to the conditions relating to the subdivision development application:

(1) I have inserted a condition (numbered 1) which expressly removes lots 105 to 109, lot 112, and lots 128 to 131 from development consent;

(2) The removal of those lots is expressly referred to wherever plan ‘X’ is mentioned;

(3) I have amended the conditions which relate to the submission of a detailed design of the wetland so that it expressly refers to the “plan view of wetland” but omits Dr Bacon’s total re-design;

(4) As I earlier foreshadowed, I have amended the conditions to include the option of a solid masonry or brick fence between lots 19 to 22 and the Blue Gum High Forest;

(5) I have adjusted the s 94 contributions in relation to stage 6 of the proposed development to reflect the removal of lots 105 to 109 and lot 112;

(6) I have excised the conditions relating to stage 7 of the proposed development, as that is the stage which related to lots 128 to 131 now removed.

74. In a “tidying up” mode relating to both sets of conditions, I have removed references to “deleted” from the draft, re-numbered the conditions, and made some typographical adjustments for the sake of consistency, for example, referring to Hornsby Shire Council throughout as “the Council”.

Orders

75. For the reasons which I have set out, I have concluded that development consent to the proposed subdivision generally and to the proposed car parking should be granted, both consents subject to conditions. I have, however, refrained from granting development consent in relation to lots 105 to 109, lot 112 and lots 128 to 131.

76. My formal orders, therefore, are as follows:

(1) The appeals are upheld;

(2) Proceedings No 10459 of 2000:

Development application No 2848/99 in respect of the subdivision into residential lots, the demolition of a building, and the erection of dwellings on land at Old Northern Road, Castle Hill, is determined by the granting of development consent subject to the conditions set out in annexure ‘A’;

and

Proceedings No 11069 of 2000:

(3) The exhibits, with the exception of exhibits 1, 2, 3, 4, AJ, AR and AS, may be returned.

77. I make no order as to costs.

Roger C Corbin Pty Ltd

Hornsby Shire Council

Property: 423 - 515 Old Northern Road, Castle Hill

[ Lot 1 DP 120199, Lot 7 DP 840120, Lot 320 DP 859559,

Lot 4 DP 133491 and Lot 15 DP 8265027 ]

Conditions of Consent

Annexure ‘A’

1. Development consent is not granted for proposed lots 105, 106, 107, 108, 109, 112, 128, 129, 130 and 131 and wherever such lots are designated in the submitted plans they are deleted.

2. Development shall take place generally in accordance with development application 2848/99 as amended by plan Nos 20/5142-12C, 13C, 14C, 15C, 16C and 17C except as modified by these conditions.

3. The amount of fill on lots 98 and 99 shall be no greater than 1.0 m above natural ground level provided that the driveways to dwellings to be constructed on lots 98 and 99 can be constructed in accordance with condition 22.

4. At the commencement of stage 2, the applicant shall undertake screen planting at the rear of lots 98 to 104 to the reasonable satisfaction of the Council and in accordance with a landscape plan to be submitted to and approved by the Council.

GENERAL CONDITIONS

5. No site works, including the removal of vegetation or any demolition works, shall be commenced prior to a Construction Certificate being issued.

6. In accordance with clause 78E of the Environmental Planning and Assessment Regulation, 1994 any retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided as required by the Principal Certifying Authority, and adequate provision must be made for drainage.

7. In order to maintain the amenity of adjoining properties, site and building works shall be restricted to between 7.00am and 6.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. If inaudible on residential premises, site and building works shall be restricted to between 7.00am and 4.00pm on Saturday. No work shall be undertaken on Sundays or public holidays.

8. In order to restore the Council's facilities, kerb and gutter damaged as a result of this development consent as well as gutter and footpath crossings made redundant by this development are to be removed and the respective kerb sections and footpath areas are to be restored in accordance with the Council's Civil Works - Design and Construction Specifications 1999 prior to the release of the relevant final plan of subdivision.

Excavation and backfilling

9. All excavations and backfilling must be executed safely and in accordance with appropriate professional standards.

10. All excavations must be properly guarded and protected to prevent them from being dangerous to life or property.

Demolition of Structures

11. The applicant shall comply with the relevant requirements of AS 2601-1991 - The Demolition of Structures during approved demolition works.

12. Demolished building materials shall be disposed of to an EPA licensed waste disposal depot or to an EPA licensed landfill site. Documentary evidence of such disposal shall be submitted with the Construction Certificate application.

Council Land

13. During construction no building materials, machinery or the like are to be stored on the road or footpath and the pathway is to be kept in a clean, tidy and safe condition.

14. Any damage that may be caused to Council property as a consequence of doing or not doing anything to which this approval relates shall be made good at the applicant's expense.

Home Building Act 1989

15. Approval is subject to the condition that the builder or person who does the residential building work complies with the applicable requirements of Part 6 of the Home Building Act 1989 whereby a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Council that they have complied with the applicable requirements of Part 6.

Use of Materials

16. The fascias, roofing sheeting, roller doors and external wall cladding are to be painted, factory pre-coloured or treated to prevent glare nuisance.

BUILDING CONSTRUCTION CONDITIONS

Construction Certificate

17. Prior to the commencement of any works a Construction Certificate for the building works must be obtained in order to certify that detailed construction plans and specifications are in accordance with the requirements of the Development Consent, relevant Australian standards and the Building Code of Australia.

Principal Certifying Authority

18. Prior to works commencing the applicant is required to appoint a Principal Certifying Authority for the building works. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the conditions of development consent, approved plans and specifications.

19. The Council shall be given 48 hours notice prior to commencement of site work in accordance with the Environmental Planning and Assessment Regulation 1994.

Compliance with the Building Code of Australia

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

Drainage

21. Roof and collected surface stormwaters from each building shall be collected and disposed of to the Council's street water table or piped drainage system. All stormwater drainage within roads shall be designed to satisfactorily drain rainfall intensities for an average recurrence of 20 years.

Driveways / Crossings

22. Prior to occupation a standard concrete crossing shall be constructed for each dwelling. The internal driveway grades shall not exceed 25 per cent and changes in grades shall not exceed 8 per cent without a vertical curve.

Energy Efficiency and Services

23. Prior to the issue of a construction certificate for any dwelling, a Compliance Certificate shall be obtained confirming that the building when erected will comply with the ‘NatHERS Energy Efficient Housing Policy’. The Compliance Certificate must be issued by either the Council or an accredited certifier and be submitted to the Council with the Construction Certificate. A completed copy of the Council’s ‘Thermal Assessment Score Sheet’ or NatHERS energy efficient assessment shall be submitted with the Compliance Certificate.

Required Building Inspections

24. During the course of construction an approved Compliance Certificate must be issued for each building at the following nominated construction stages to ensure the structural integrity and efficiency of buildings, the maintenance of minimum health standards, the management of the buildings’ surrounds and the protection of the environment.

* The pier holes/pads before they are filled with concrete.

* The steelwork (ie strip footings and each floor slab) when in position and before concrete is placed.

* The dampcourse level, antcapping, anchorage and floor timbers before the floor material is laid.

* The framework including roof members when completed and prior to the fixing of any internal sheets. Timber framing shall be erected in compliance with AS 1684 and the National Timber Framing Code.

* The wet areas, damp-proofing and flashing before or after lining, whichever is applicable. Water proofing of wet areas in residential buildings shall comply with AS 3740 and BCA Part 3.8.1 - Housing Provisions.

* Stormwater drainage lines prior to backfilling of trenches.

* The buildings or structures when completed and before occupation or use is commenced.

* Swimming pool fencing.

* Essential services for the community building

The Compliance Certificate, together with any required certificates, are to be submitted to the Council within seven days from the date of a satisfactory inspection.

It is the responsibility of the builder/applicant to organise the required inspections for Compliance Certificates in accordance with the development consent. Should the Council be nominated as the certifier of works, inspections can be arranged by contacting Council on 9847 6760 during normal business hours.

Note: All building Compliance Certificates submitted to the Council are to be accompanied by a $11.00 administration service fee (GST included and subject to change through the Council’s “Adopted Fees and Charges” )

Subterranean Termites

25. During the course of construction each building shall be treated against subterranean termites in accordance with AS 3660 Part 1, "Protection of Buildings from Subterranean Termites".

26. Prior to occupation, certificates of treatment for each building shall be submitted to the Principal Certifying Authority and the Council and a notice of treatment in accordance with the standard shall be affixed to the building. (BCA clause B1.1, B1.3)

Survey Reports

27. A report prepared by a registered surveyor shall be submitted to the principal certifying authority and the Council at footing stage and at the completion of each building indicating that the building, retaining walls and the like have been correctly positioned on the site.

28. Prior to the pouring of concrete a report prepared by a registered surveyor is to be submitted to the Principal Certifying Authority and the Council at the ground floor level of each building indicating that the formwork levels are in accordance with the approved plans.

Footing Requirements

29. All reinforced concrete slabs and footings are to be designed and constructed in accordance with AS 2870-1 - 1988 "Residential Slabs and Footings", the Building Code of Australia or be designed by a qualified structural engineer.

30. Prior to works commencing full structural engineer's details for all reinforced concrete work, structural steelwork, underpinning and the like, are to be submitted to the Principal Certifying Authority. A copy of the engineer’s details shall be forwarded to the Council with the occupation certificate for the Council’s records.

31. A qualified structural engineer is to inspect the piers and reinforcing steel of each slab prior to the pouring of concrete. A copy of the engineers certification shall be forwarded to the Principal Certifying Authority and the Council with the “footing stage” Compliance Certificate.

Smoke Alarms

32. Prior to occupation a certificate from a licensed electrician certifying that the smoke alarms have been connected to the consumer mains power, for each building is to be submitted to the Council with the occupation certificate.

Temporary closets

33. During construction an on site toilet is to be provided at the rate of one closet for every 20 persons and be constructed in accordance with the requirements of subclause 3.1 of the BCA, and be located wholly within the boundaries of the property.

Sediment and Erosion Control

34. Prior to the commencement of work, temporary sedimentation and erosion controls are to be constructed to protect the adjoining land and receiving watercourses by eliminating the discharge of sediment from the site. The controls are to be designed in accordance with the requirements of the Department of Conservation and Land Management's "Urban Erosion and Sediment Control" manual.

35. Prior to the commencement of any work on-site an all weather accessway to the property consisting of 50-75 mm aggregate or similar material at a minimum thickness of 200 mm and 7 m long laid over geotechnical fabric is to be installed

36. During the course of construction sedimentation and erosion controls are to be effectively maintained at all times and shall not be removed until the site has been stabilized or landscaped to the Principal Certifying Authority’s satisfaction.

37. Prior to occupation of the dwellings in each stage of the development, the site is to be stabilised so that the sediment control barriers can be removed on that stage.

Signage on Building and Demolition Sites

38. Prior to commencing of works a sign must be erected in a prominent position on the premises on which the erection or demolition of a building is being carried out:

(b) showing the name of the builder or other person in control of the premises and a telephone number at which the builder or other person may be contacted outside work hours;

(c) Any such sign is to be removed when the erection or demolition of the building has been completed; and

(d) This clause does not apply to building work carried out inside an existing building, or 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.

Retaining Walls

39. A construction certificate must be obtained for retaining walls of a height greater than 600mm and supplied to the Principal Certifying Authority and the Council.

Swimming Pool Fencing

40. Before any water is placed in the pool a Compliance Certificate is to be obtained certifying that the pool fencing is in conformity with the requirements of the Swimming Pools Act 1992 and AS 1926.

Noise Attenuation

41. The filtration motor and pump, or spa heater and blower unit are to be housed in an approved soundproofed structure at the time of installation of the pool.

PARKS AND LANDSCAPE

42. Landscaped areas shall be established and maintained in good order. Plans for the proposed landscaping showing trees, shrubs, mounding, retaining walls, etc. shall be prepared in accordance with the Council's "Landscape Code for Development and Building Approval" and submitted for approval with the Construction Certificate application.

43. All natural landscape features, including natural rock outcrops, natural vegetation, soil and watercourses, are to remain undisturbed except where affected by necessary works detailed on approved plans.

44. Annexed and marked ‘X’ is a plan which identifies:

(a) those significant trees to be retained;

(c) those trees which are to be removed [insofar as plan ‘X’ contemplates removal of trees from the lots deleted by condition 1 it is to be ignored].

The applicant must appoint an aborist approved by the Council.

In respect of any tree within category (a):

· The aborist must form part of the design team for any works within 4 m of such tree.

· The aborist must prepare a specific list of instructions for any protection or other works within 4 m of such tree.

· Such specific instructions shall form part of the plans lodged for the subdivision Construction Certificate.

· The aborist must supervise any works within 4 m of any such tree and shall ensure compliance with the approved protection works.

In respect of any tree within category (b):

· The aborist must prepare a list of instructions for protection or other works within 4 m of such tree.

· Such instructions shall form part of the plans lodged for the subdivision Construction Certificate.

· The aborist must supervise any works within 4 m of any such tree and shall ensure compliance with the approved protection works.

Prior to the commencement of works within any stage, tree guards are to be placed around any tree which is to be retained and in respect of which it is proposed to carry out works within 4 m. The tree guards shall be a minimum 1,200 mm high at least 4 m from the base of the trees and constructed from timber posts and rails or posts and suitable plywood panels. Suitable protective fencing enclosing a stand or stands of trees may be substituted for individual tree guards.

45. Subject to condition 44, the developer/contractor will prevent damage to trees and tree root systems during site works and construction activities including the provision of water, sewerage and stormwater drainage services. In particular, works, erection of structures, excavation or changes to soil levels within 4 m of the trunks of trees to be retained are not permitted unless part of the development as approved and the storage of spoil, building materials, soils or the driving or parking of any vehicle or machinery within 4 m of the trunk of a tree to be retained, is not permitted.

46. In order to maintain tree canopy cover, the trees removed to allow re-shaping of the site and to allow for the provision of access (ie trees numbered 106 to 117) shall each be replaced by a medium to large (at maturity) locally indigenous tree and is to be planted in an appropriate position ie not within 3 m of the foundation walls of a dwelling or inground swimming pool. The pot size is to be a minimum of 25 litres and the tree must be maintained and protected, until it reaches the height of 3 m so it is then covered by the Council’s Tree Preservation Order. Criteria for tree selection is that the tree is locally indigenous, local plant material is preferable, mature height greater than 12 m, life span greater than 20 years.

Water Catchments

Soil and Water Management Plan

47. In order to protect the adjoining land and downstream water quality from sedimentation a Soil and Water Management Plan (SWMP) is to be prepared by a suitably qualified/experienced consultant and implemented prior to commencement of works in each stage. The SWMP is to detail the sediment and erosion control measures to be implemented during the construction of the proposed development and is to be submitted to the Principal Certifying Authority incorporating a plan to scale of 1:500 or larger and supporting information.

· location of site access and stabilisation of site access;

· construction standard drawings are to be provided on each type of sediment and erosion control measure proposed.

47.2 Watercourse: A “by-pass” or other approved methods shall be provided diverting upstream flows around the instream excavation works, such control measures shall demonstrate minimal impacts of flows and environmental impacts to water quality during instream excavation of the watercourse.

47.3 Stockpiling: Location of material stockpiles shall be depicted on the SWMP. Strip and stockpiling of topsoil shall be placed at a designated area diverted away by a 5 m buffer zone from natural streams and overland drainage flow paths. Stabilisation protection such as siltation fencing and impervious covering to be applied. Mulching and seeding may be applied to stockpiles as a protective measure after 15 days exposure.

47.4 Soil Loss Modelling: Soil loss modelling should be applied (eg Revised Universal Soil Loss Equation) to determine projections of potential soil loss by sheet and rill erosion from the proposed development. The model should assess the erosion risk of the site, identify suitable measures to overcome the erosion risk, estimate the required capacity of sediment retarding basins and compare the effectiveness of various erosion control measures.

47.5 Sediment Basins: The location of sediment basins with supporting design specifications calculations including method of disposal and dissipation of flow velocities are to be provided on the SWMP. Accordingly, sediment basins shall be designed to contain 25 mm runoff from the 75th percentile, 5-day rainfall event or a 5-day ARI time of concentration storm event, with a volume capacity of water that will enter in 6 minutes, one-hour storm event with an additional 20 per cent capacity provided for storage of sediment.

· details of catchment area of basin;

· design capacity dimensions of basin and overflow mechanism;

· estimate of the average volumes of water to be disposed from the basin;

· method of disposal of water from basin;

· location of discharge points and / or disposal areas of water from basin, and

· inspection and maintenance program for basin/s.

47.7 Site Access and Exit: Vehicular access shall be controlled to prevent tracking of sediment onto adjoining roadways, particularly during wet weather or when the site is muddy. Sedimentation deposited on adjoining roadways shall be removed by means other than washing, (e.g. street sweeping, vacuum suction). Accordingly, location and stabilisation of site access shall be shown on the SWMP. Access and exit areas to the site shall be restricted to a designated area and shall include shake-down or other approved methods for the removal of soil materials from motor vehicles.

47.8 Staging of Works and Undisturbed Areas: Detailed staging of the construction works are to be shown on the SWMP to ensure no areas are disturbed unnecessarily and to minimise overall load disturbance. Barrier fencing shall be erected to ensure protected areas and existing vegetation is not unnecessarily disturbed. Vegetation not directly effected by the proposal shall remain undisturbed by a “no go” barrier.

48.1 The wetland information and design configuration shall be amended by a suitably qualified/experienced consultant, and shall be designed to have regard to the concept diagram annexed and marked 'B'. The amended design be submitted to the Council for approval before being implemented prior to the commencement of works for stage 2 of the subdivision.

The wetland design criteria should include the following:

· hydraulic flows/residence time,

· length to width ratios,

· optimum depth < 1 m,

· plant selection species mix and timing,

· substrate,

· public health and safety,

· baffling,

· water level control,

· access and ongoing operation and maintenance.

48.2 High flow bypasses: Stormwater pipeline (20 year ARI) located at the wetland inlet has the potential to dry the wetland. The design criteria for inlet flows into the wetland should be 1 in 2 year ARI storm event. All higher flows should be diverted around the wetland.

48.3 Stormwater Treatment Devices: In line stormwater treatment/separator/vortex devices (ie CDS units) to be included downstream of the development for the collection of stormwater suspended matter pollution generated during the post development phase. Pollutants will include litter, floatable debris, organic debris, coarse sediments, suspended solids (road grit).

Accordingly, the proponent is required to provide specific engineering details in regards to the mitigation of stormwater pollution from the established development. Such specifications should include performance design storm efficiency, hydraulic capacity, and performance capture criteria in excess to 90 per cent of suspended and settleable matter.

48.4 Long Term Management Plan: A community title management plan for the long-term maintenance for the wetland and the CDS units shall be prepared and implemented. The environmental management plan shall include installation plan layout, performance criteria, and the long-term maintenance of all the stormwater treatment devices.

Accordingly, all stormwater treatment devices shall be inspected fortnightly or after each storm event for litter, sediment, and organic waste accumulation. All litter/debris should be removed within two working days.

Wetland inspections should assess for damage to landscape & structural integrity, appropriate water levels, build up of litter/sediment and plant condition and initiate rectification of any problems within five working days of occurrence.

49. The written approval of the Department of Land and Water Conservation shall be obtained for the proposed works associated with the watercourse.

Water Catchments - Bushland Management

50. All environmental weeds, noxious and invasive plants including Blackberry (Rubus fruticosus), Broadleaf Privet (Ligustrum lucidum), Camphor Laurel (Cinnamomum camphora), Bridal Creeper (Asparagus asparagoides), Asparagus Fern (Asparagus densiflorous), Wandering Jew (Tradescantia fluminensis), Crofton Weed (Ageratina adenophora), Canna Lily (Canna sp.), Weeping Willow (Salix babylonica), Impatiens (Impatiens sp.), Kikuyu (Pennisetum clandestinum) and Paspalum (Paspalum dilatatum), are to be removed and continually suppressed using an appropriate bush regeneration method, in accordance with the approved Remnant Blue Gum High Forest Restoration and Management Plan.

51. The Remnant Blue Gum High Forest Restoration and Management Plan, prepared by Ian Perkins Consultancy Services, shall be implemented and the recommendations and actions strictly followed in perpetuity to ensure the long term conservation of the Blue Gum High Forest remnant. The site is to be monitored by the Council to ensure compliance with the approved Restoration and Management Plan.

52. 'Colorbond' or solid masonry/brick style fencing, 2 m high, is to be erected along the boundary between the Blue Gum High Forest remnant and the residential lots 19, 20, 21, and 22. No accessway to the Blue Gum High Forest remnant, through provision of a gate, is permitted. The fencing is to be inspected by the Council’s Water Catchments Team prior to the commencement of construction and clearing works.

53. No livestock or domestic animals are permitted to enter the Blue Gum High Forest remnant. Appropriate fencing is to be installed and continuously maintained along the boundary of the Oakhill College grounds and the Blue Gum High Forest remnant. The fencing is to be inspected by the Council’s Water Catchments Team.

54. Landscaping shall be primarily composed of locally occurring native species. Landscaping plants should require minimal maintenance in the form of fertiliser application and watering.

Note: Advice on suitable species for landscaping can be gained from the Water Catchments Team or from the planting guide titled “Indigenous Plants for the Bushland Shire” which can be purchased through the Council at a cost of $4.40.

General and Administrative Issues

55.1 The work to which these general terms of approval apply is not to commence until such time as a formal permit under Part 3A of the Rivers and Foreshores Improvement Act 1948 has been issued from the Department of Land and Water Conservation (“DLWC”)

55.2 If in the opinion of a DLWC officer any activity is being carried out in such a manner that it may damage or detrimentally affect the stream, or damage or interfere in any way with any work, such activity on that section of the stream shall cease immediately upon oral or written direction of such officer.

55.3 Work as executed survey plans shall be forwarded to the DLWC upon request.

55.4 If the permit conditions have been breached the permit holder shall restore the site to the satisfaction of the DLWC. If the necessary works are not completed then the permit holder shall pay a fee prescribed by the DLWC for the initial breach inspection and all subsequent inspections.

55.5 Operations shall be conducted in such a manner as not to cause damage or increase the erosion of adjacent stream banks. The permit holder shall carry out any instructions given by DLWC with a view to preventing damage to the banks.

55.6 Any vegetation or other material removed from the area of operations shall be disposed of to an appropriate site where the debris cannot be swept back into the river during a flood.

55.7 When the works the subject of the Part 3A permit are to cease, DLWC is to be notified one month in advance of the cessation of the operation.

56.1 The constructed wetland can be constructed on-line of the watercourse. Inundation of the Blue Gum High Forest is not to occur. The design for the constructed wetland is to be prepared by a suitably qualified person, to the satisfaction of the Council and the DLWC, and approved by the DLWC, prior to the issue of a Part 3A permit.

56.2 Except as otherwise provided in this consent no works are to occur within the Blue Gum High Forest area.

56.3 Work is to be carried out in accordance with any conditions imposed by other government agencies.

56.4 Work is to be carried out in accordance with drawings approved by DLWC and which will accompany the Part 3A permit.

56.5 Excavated material shall be transported from the excavation site and disposed of in accordance with the development application.

56.6 A Soil and Water Management Plan for the works is to be prepared by a suitably qualified person, to the satisfaction of the Council and the DLWC and approved by the DLWC, prior to the issue of a Part 3A permit. The Plan is to meet the requirements outlined in the NSW Department of Housing’s “Managing Urban Stormwater: Soils and Construction” (1998) manual.

ENGINEERING

The following conditions outline the general engineering conditions for the proposal, as well as special conditions related to the stages of the proposed subdivision:

PRIOR TO ISSUE OF A CONSTRUCTION CERTIFICATE

57. In order to certify that detailed construction plans and specifications are in accordance with the requirements of the development consent and the Council standards, you are required to obtain a Construction Certificate for engineering works prior to the commencement of any works.

58. Any Construction Certificate that may be issued in association with this development consent must ensure that any certified plans and designs are generally consistent (in terms of site layout, site levels, building location, size, external configuration and appearance) with the approved development applications plans.

59. Should any masonry fence greater than 600 mm in height be proposed to be erected as part of the development, the Construction Certificate shall address the manner of its construction.

60. A tree retention plan is to be included with any Construction Certificate indicating:

(b) all areas left undisturbed that are to be cordoned off from construction works.

61. A separate application or details (as necessary) shall be submitted for the separate approval of the Council, under the provisions of the Local Government Act 1993 and Road Act 1993 for any of the following:

(a) the undertaking of work within a public road (this includes laneways, public pathways, footways).

62. All engineering works specified in the general ENGINEERING WORKS and any works related to the stages of this development must be designed and constructed in accordance with:

(a) Australian Rainfall and Run-Off 1987; and

(b) The Council's Civil Works - Design and Construction Specifications 1999.

DURING CONSTRUCTION

(AFTER THE ISSUE OF A CONSTRUCTION CERTIFICATE)

63. All engineering work required in the general ENGINEERING WORKS and any works related to the stages of the development must be inspected at the hold points as nominated in the Council's Civil Works Construction Specifications 1999.

64. Before any construction works commence you are required to appoint Principal Certifying Authorities for all subdivision works in accordance with the relevant legislation applicable from time to time. It will be necessary to enter into a formal agreement with the Principal Certifying Authority .

65. At least two days written notice must be given of the commencement of engineering works. Such notice must be accompanied by evidence of the contractor's Public Liability and Workers Compensation Insurances. The public risk policy shall be in such amount as determined by the General Manager (not being less than $5,000,000.00) and shall cover the Owner and the Council against any injury loss or damage sustained by any person firm or company.

ENGINEERING WORKS

66. Construction of an inter-allotment stormwater drainage system to service all proposed lots that naturally do not drain to the kerb and gutter. The inter-allotment drainage for each stage is to be constructed prior to the release of the Subdivision Certificate for each stage.

67. Stormwater drainage from the site shall be designed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years. The design shall:

(b) ensure that the development, either during construction or upon completion, does not impede or divert natural surface water runoff so as to cause a nuisance to adjoining properties.

68. Construction of catch drain or other diversionary works to the Council’s satisfaction along the residue lot 135 abutting the proposed lots. The catch drain or other diversionary works shall be constructed to cater for the 1 in 100 year average recurrence storm overland flow path. The catch drain or other diversionary works for stages 2, 3, 4 and 5 is to be constructed prior to the release of the final Plan of Subdivision for the respective stages.

69. Details of approved stormwater and sediment control shall be submitted to Council for approval with the Construction Certificate for each stage. The works for each stage are to be completed prior to the release of the subdivision certificate for each stage.

70. Disturbed areas must be stabilised as soon as practical after completion of earthworks and must be established and maintained.

71. Formation of internal driveways on all lots steeper than 16 per cent grade. Where cut or fill exceeds 500 mm and a batter 1 in 4 cannot be achieved, a retaining wall designed by a certified practising structural engineer, shall be constructed.

72. Internal driveways and waste truck turning areas in the locations nominated are to be designed in accordance with the requirements of Australian Standard AS2890.1 – 1993 and the Council’s Waste Truck Turning circle. Plans are to show the vehicular paths and dimensions of clear manoeuvring areas.

73. A Traffic Control Plan, prepared by a qualified Work Site Traffic Controller, is to be submitted with any construction certificate, demonstrating compliance with the Roads and Traffic Authority’s Traffic Control At Worksites Manual, 1998, and detailing:

· Public notification of proposed works

· Long term signage arrangement

· Short term (during actual works) signage

· Vehicle movement plans, where applicable

· Traffic management plans

· Pedestrian and cyclist access/safety

74. Undergrounding of all new electricity, street lighting and telephone services together with satisfactory arrangements, based on the plan layout submitted, being made with Energy Australia regarding provision of off-street substation sites. Certification to this effect is required from the relevant authorities. The certification is to be submitted prior to the release of the final plan of subdivision for each stage.

75. Submission of a construction management plan for the site and also access to the site. Details of the construction vehicular route to the site from the Council road networks are to be included in construction management plan. Such plans are to be submitted with the respective Construction Certificates.

76. Construction within stages 2 and 3 of a stormwater overland flow path to contain the 1 in 100 year ARI storm from upstream lots. All fences within the subject site shall be adjusted to allow for the unobstructed flow of runoff.

PRIOR TO ISSUE OF A SUBDIVISION CERTIFICATE

77. A work-as-executed plan under the hand of a registered surveyor must be lodged with the Council when the engineering works for each stage are complete. All engineering work required in the general ENGINEERING WORKS and any works related to the stages of the development must be completed.

78. Lodgement and approval of a subdivision certificate is required to authorise the plan of subdivision. It should be noted that a subdivision certificate can only be issued by the Council unless an environmental planning instrument identifies that an accredited certifier can undertake the work.

To obtain a subdivision certificate, you must submit a subdivision certificate application form, pay the appropriate fee and provide the following:

(b) An original section 88B document together with one additional copy, in accordance with Conveyancing Act 1919; and

(c) Documentary evidence, where appropriate or necessary, indicating that all conditions of development consent have been complied with. Where the subdivision involves construction works, the works must be completed in accordance with the development consent and Construction Certificate, and the Compliance Certificate submitted.

Note: The issue of a subdivision certificate is not to occur until all conditions related to a particular stage of the proposed subdivision as noted in this consent have been satisfactorily addressed.

79. The cost of repairing any damage caused to the Council's assets in the vicinity of the site as a result of construction works associated with the approved development is to be met in full by the applicant/developer prior to the issue of a subdivision certificate.

80. All section 88B restrictions and covenants required by this consent are to contain a provision that they cannot be extinguished or altered except with the consent of the Council.

81. The creation of any drainage easement and easement for services shall be created under section 88B of the Conveyancing Act 1919.

82. The creation of a restriction on the use of land" on that area affected by the overland flow path within lots to:

(b) Prohibit the erection of a structure (including fencing) in the floodway without the written permission of the Council.

83. The creation of a "restriction on the use of land" on those lots within the subdivision, adjacent to the floodway, to ensure that the floor level of any habitable room is not less than 0.5m above the 100 year average recurrence interval storm, such levels to be detailed on the section 88B Instrument and related to Australian height datum. The levels are to be established by a hydraulic engineer.

84. Provision of a "drainage easement", in accordance with the Council's standard definition, over the watercourse required to drain depressions in the land, to contain the floodway of a 100 year average recurrence interval storm.

85. The following documentary evidence is to be obtained and forwarded to the Principal Certifying Authority prior to the release of the Subdivision Certificate:

(a) Sydney Water issuing a subdividor/developer certificate certifying that it has no objection to the subdivision proceeding so far as water and sewerage requirements are concerned;

(c) Submission of a surveyor's certificate stating that all structures within the site comply with the approved plans in regard to clearances from proposed new boundaries;

(d) A final clearance is to be obtained from the Water Board for the construction of building, detention basin and structures adjacent to or within the Boards easement; and

(e) The submission of a surveyor's certificate stating that no services, drainage lines or accessway encroach over the proposed boundary other than as provided for by easements created by the final plan of subdivision.

86. Submission of certification from an appropriately qualified Worksite Traffic Controller that the documentation requirements of Section 6 of the Traffic Control at Work Sites Manual 1998 (RTA), have been complied with. Where necessary the Council may require a copy of all documentation to be submitted to Council for audit purposes prior to the issue of a subdivision certificate. The Council may also audit this documentation at any time during the development works.

87. Special attention is drawn to the following requirements of the Council's Civil Works Construction Specification 1999.

(a) Submission with subdivision certificate, of compaction certificate from a NATA registered geotechnical consultant for:

2. embankment for the wetland.

(b) A restriction as to user with the Council's standard wording must be placed on all filled lots to ensure that any structures erected on all such lots are designed by a structural engineer; and

(c) Compliance Certificates from road material suppliers to be in accordance with the Council’s Construction Civil Works Specification 1999.

88. The lodgement with the Council of an acceptable security (bond) guaranteeing the future completion of the final road sealing works and construction of concrete footpath. The bond amount is to be calculated at the asphalt contribution rate current at the time and is to be accompanied by the Council's standard deed of agreements for bonds. The security and deed is to be finalised prior to the issue of the subdivision certificate.

89. All fees payable to the Council as part of any Construction Compliance or Subdivision Certificate or inspection associated with the development (including the registration of privately issued certificates) are to be paid in full prior to the release of the final Plan of Subdivision.

(b) Road opening fees must be paid BEFORE any road or path is opened.

121. The hours of operation of the use of the proposed community room, tennis courts and swimming pool shall be limited to 7.00 am - 8.00 pm, seven days a week. There shall be no lighting of the pool or tennis courts. The applicant shall be entitled to apply to the Council to alter these hours of operation provided the applicant submits an acoustic report for the Council’s consideration.

122. The lot layout to allow for a 1 m concrete strip to be a buffer between the rear of the proposed lots 19, 20, 21 and 22 (southern boundary) and the edge of the Blue Gum High Forest (“BGHF”) remnant which is to be retained as Private Open Space (6b). The edge of the BGHF is accepted to be as defined in the Plan of Management prepared by Ian Perkins for the applicant.

123. The Plan of Management is to specify that the boundary between the BGHF remnant and the proposed lots 19 to 22 be fenced with colorbond or solid masonry/brick style fencing.

124. The Plan of Management is to specify the use of fencing that will permanently exclude all livestock from the BGHF remnant. Such fencing is to also be of a nature as will reaonably deter all unauthorised/unsupervised access to the BGHF by students or any other people who may enter the College grounds.

125. The College is to enter into a perpetual Property Agreement under the Native Vegetation Conservation Act in relation to the BGHF remnant. The Agreement is, as a minimum, to be consistent with the Plan of Management (amended as specified in this document).

126. The landscape plan is to be amended to exclude the use of the following species on the basis of their inappropriateness to this site and is to exclude all noxious and known or likely environmental weeds: Jacaranda mimosifolia, Phoenix canariensis, Syzigium paniculatum, Eucalyptus botryoides, Doryanthes excelsor, Calaoeodendrum capense, Callistemon “Kings Park Special”, Callitris spp., Stenocarpus sinuatus, Magnolia grandiflora, Corymbia maculata, Eucalyptus sideroxylon. Locally indigenous species are to be used wherever possible.

127. The following works are required in relation to road No 12:

(a) construction of kerb and gutter (roll top) and associated road works adjacent to the community building lots served by road No 12;

(b) rehabilitation of road No 12 from the intersection of Old Northern Road extending to the southern boundary of the proposed lot 134 to the following requirements

(i) The works are to be designed for traffic loadings certified by the geotechnical engineer referred to in requirement (b)(ii) below and as approved by the Council.

(ii) The works are to be designed by a practicing geotechnical engineer in accordance with the Council’s Civil Works Specification-Design Series 1999.

(iii) The carriageway shall be constructed to a 5.5 m wide pavement width.

Roger C Corbin Pty Ltd

Hornsby Shire council

Property: 423 - 515 Old Northern Road, Castle Hill

[Lot 1 DP 120199, Lot 7 DP 840120, Lot 320 DP 859559,

Lot 4 DP 133491 and Lot 15 DP 8265027]

Conditions of Consent

Annexure ‘B’

Development shall take place in accordance with plan No 20/5142-19 Issue D dated 1 September 2000 except where modified by the following additional conditions.

Detailed plans of all new internal roads, boomgate controls and parking areas (scale 1:100) shall be submitted to the Council for its consideration and approval prior to commencement of works.

All 90° parking spaces shall have minimum dimensions of 2.5 m x 5.5 m with a minimum access aisle width of 6.7 m.

A minimum of 2 per cent of the total car parking provision shall be provided for persons with disabilities. The disabled parking spaces shall be distributed evenly throughout the proposed car parking areas and shall have minimum dimensions of 3.2 m x 5.5 m with a minimum access aisle width of 6.7 m. Additional requirements relating to disabled access are set down under conditions 28 to 31.

Roadworks shall be carried out in accordance with the Plan 20/5142-19 Issue D dated 1 September 2000 as modified in red on 7 December 2000 annexed and marked “A”. A Traffic Plan of Management shall be submitted to the council for its consideration and approval outlining the operation of the proposed boomgate controls. The Plan of Management shall include all details relating to the boomgates including, but not limited to, the following:

(b) measures to preclude the connection between Foley Place and Old Northern Road being used for any movement which does not involve pickup or dropoff of students;

(c) measures to allow visitors to the school being able to use the on-site parking facilities;

(d) the design and location of the boomgate controls.

The required Traffic Plan of Management for the boomgate controls shall be submitted to the Council for its consideration and approval prior to commencement of works. The Council approved Traffic Plan shall be complied with at all times.

Any upgrading works required by the Roads and Traffic Authority (“RTA”) for the main southern entry point on Old Northern Road are not to commence until the applicant provides written evidence and stamped approved plans to the Council to demonstrate that the RTA has given approval, under section 138(2) of the Roads Act 1993, for the proposed alterations to the vehicular and pedestrian entry at the main southern entry point, including (but not limited to) a revised bus pickup/set down area to accommodate the needs of the College, and extension of the turning lane from Old Northern Road to ensure safe vehicular entry and exit from the College. All costs and any dedication of land (if required) is to be at the developer’s cost.

Any upgrading works required by the RTA for pursuant to this development consent on the northern entry point on Old Northern Road is not to commence until the applicant provides written evidence to the Council to demonstrate that the RTA has given approval, under section 138(2) of the Roads Act 1993, for any required upgrading of the northern access point to the College site, via the existing internal access road from property No 505 Old Northern Road, Castle Hill. All costs and any dedication of land (if required) is to be at the developer’s cost.

In order to ensure the safety of pedestrians/students waiting adjacent to the bus pick up/set down area at the southern entry point on Old Northern Road, a Traffic Management Plan is to be submitted to the Council for its consideration and approval to ensure that traffic/pedestrian movements within the site are safe and traffic movements outside the site are efficient. The Traffic Management Plan shall include, but not be limited to, the following details:

(b) surveys of the number of students standing in the queuing area on school days in order to ensure that the new queuing area (following provision of the barrier in (a) above) has adequate capacity;

(c) adequate manoeuvring is provided to the proposed car parking spaces. The minimum access aisle width is to be 6.7 m; and

(d) the queuing of buses does not block pedestrian and vehicular access to car park No 3.

The Council approved Traffic Management Plan is to be complied with at all times.

In order to ensure vehicles can egress car park No 2 in a forward direction a roundabout is to be provided at the western end of the car park. Details of the required roundabout are to be submitted in conjunction with the plans required under condition 2.

All parking areas and driveways are to be sealed to an all weather standard, line marked, signposted and maintained.

Parking areas are to be used solely for that purpose and in relation to school activities are to be readily available to staff and students at all times.

In order to avoid vehicular conflict, the ingress and egress crossings shall be suitably sign posted.

Shade trees are to be provided in open parking areas at the ratio of 1 shade tree for every 6 spaces.

Site Works

In accordance with clause 78E of the Environmental Planning and Assessment Regulation 1994, 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 adequate provision must be made for drainage.

Council Land

No building materials, machinery or the like are to be stored on the road or footpath and the pathway is to be kept in a clean, tidy and safe condition during the building operations. Further, the Council reserves the right, without notice, to rectify any such breach and to charge the cost against the builder, owner or applicant.

The land and adjoining areas are to be kept in a clean and tidy condition at all times. Litter and rubbish shall be placed in containers and removed from the site. A waste storage container is to be provided at the commencement of the building work.

Any damage caused to any Council property including any adjoining footway or public road as a consequence of doing or not doing anything to which this approval relates shall be made good at the applicant's expense prior to commencement of use of the approved parking areas.

In order to restore the Council's facilities, kerb and gutter damaged as a result of this development consent as well as gutter and footpath crossings made redundant by this development are to be removed and the respective kerb sections and footpath areas are to be restored in accordance with the Council’s Civil Works - Design Specification 1999, at the cost of the applicant.

Excavation and backfilling

All excavations and backfilling must be executed safely and in accordance with appropriate professional standards.

All excavations must be properly guarded and protected to prevent them from being dangerous to life or property.

Landscaping

Landscaped areas shall be established and maintained in good order. Plans for the proposed landscaping showing trees, shrubs, mounding, retaining walls, etc. shall be prepared in accordance with the Council's “Landscape Code for Development and Building Approval" and submitted for the consideration and approval of the Council with the Construction Certificate application. The Council approved landscape plan shall be complied with at all times.

All natural landscape features, including natural rock outcrops, natural vegetation, soil and watercourses, are to remain undisturbed except where affected by necessary works detailed on approved plans.

Noise

A detailed acoustic report shall be prepared by a qualified consultant and lodges with the Council for its approval prior to implementation to limit noise intrusion resulting from the use of proposed car park No 1 on future residential properties in the vicinity of the car park ie airborne sound generated within car park No 1 shall not cause the noise levels to exceed 5 dBA above background noise level when measured at any likely affected residence. Any recommendation made in the report, which requires specialised acoustic treatment of car park No 1 shall be complied with prior to commencement of use of car park No 1.

Disabled Access and Mobility

Car parking spaces for persons with disabilities shall have appropriate pavement and pillar signage.

Directional signage to parking spaces for persons with disabilities shall be provided from the entry to the car park.

Kerb ramps shall be provided at all street and pedestrian crossings.

Information submitted with the Construction Certificate Application should demonstrate compliance with the following requirements:

(b) any bollards having a clear opening of at least 1000 mm.

Principal Certifying Authority

Before any construction works commence, the applicant is required to appoint a Principal Certifying Authority as required by section 81A of the Environmental Planning and Assessment Act 1979. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications.

The Council shall be given 48 hours notice of commencement of site works in accordance with the Environmental Planning and Assessment Regulation 1978.

Temporary closets

Closet accommodation is to be provided at the work site at all times at the rate of one closet for every 20 persons and be constructed in accordance with the requirements of subclause 3.1 of the BCA, and be located wholly within the boundaries of the property.

BUILDING SURVEYOR

Signage on Building and Demolition Sites

A sign must be erected in a prominent position on the premises on which the construction or demolition of the building and works are being carried out:

(b) showing the name of the builder or other person in control of the premises and a telephone number at which the builder or other person may be contacted outside work hours;

(c) any such sign is to be removed when the construction or demolition of the building or works have been completed; and

(d) this clause does not apply to buildings or works carried out inside an existing building, or buildings or works carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

BUILDING CONDITIONS

Building Code of Australia

All building work must be carried out in accordance with the requirements of the Building Code of Australia. Fully detailed plans shall be submitted with the Construction Certificate application.

Demolition of Structures

The applicant shall comply with the relevant requirements of AS 2601-1991 - The Demolition of Structures during approved demolition works.

Demolished building materials shall be disposed of to an Environment Protection Authority (“EPA”) licensed waste disposal depot or to an EPA licensed landfill site. Documentary evidence of such disposal shall be submitted with the Construction Certificate application.

Required Building Inspections

At the request of the applicant, the Principal Certifying Authority is to inspect the site and building works at the following nominated construction stages and certify that the building and associated works are in accordance with the conditions of development consent, approved plans and specifications, and Building Code of Australia. The certifying certificate, together with any required certificates are to be submitted to the Council within seven days from the date of the inspection:

(b) completed work – with certification from a Structural Engineer

Note: All building component inspection certificates submitted to the Council are to be accompanied by a $11.00 administration service fee (including GST) subject to change and in accordance with the Council’s “Adopted Fees and Charges”.

EDUCATION AND COMPLIANCE

Erosion, Sediment and Nutrient Controls

In order to protect the adjoining land and downstream water quality, the following measures are required:

(a) sediment and erosion control measures are to be constructed in accordance with plans prepared by John G Nelson Pty Ltd and shown on Figure 4 of the Statement of Environmental Effects for the proposed development. The applicant is to provide detailed sediment and erosion control plans for the approved works with the Construction Certificate;

(b) no development works are to commence until the approved sediment and erosion control measures are implemented; and

(c) all sediment and erosion control measures once installed are to be maintained in good working order and repair until development and rehabilitation/landscaping works have been completed.

Note: If new best practice measures are proposed to be incorporated into the proposed development an amended plan for erosion and sediment control may be submitted with the Construction Certificate.

All sediment and erosion control measures shall be installed before any disturbance to the natural area of land, excavation or site works are commenced and shall be maintained in good working order and repair throughout the course of building construction or development work on the site and until the building or development works have been completed to the satisfaction of the Principal Certifying Authority.

PARKS AND LANDSCAPE

(a) Annexed hereto and marked ‘X’ is a plan which identifies:

(i) those significant trees to be retained;

(ii) those other trees where removal is not contemplated and which will not be removed without Council approval; and

(iii) those trees which are to be removed.

(b) The applicant must appoint an arborist approved by the Council.

(i) The arborist must form part of the design team for any works within 4 m of such tree.

(ii) The arborist must prepare a specific list of instructions for any protection or other works within 4 m of such tree.

(iii) Such specific instructions shall form part of the plans lodged for Construction Certificate.

(iv) The arborist must supervise any works within 4 m of any such tree and shall ensure compliance with the approved Council protection works.

(d) In respect of any tree within category (b):

(i) The arborist must prepare a list of instructions for protection or other works within 4 m of such tree.

(ii) Such instructions shall form part of the plans lodged for Construction Certificate.

(iii) The arborist must supervise any works within 4 m of any such tree and shall ensure compliance with the approved protection works.

(e) Prior to the commencement of works within any stage, tree guards are to be placed around any tree which is to be retained and in respect of which it is proposed to carry out works within 4 m. The tree guards shall be a minimum 1,200 mm high at least 4 m from the base of the trees and constructed from timber posts and rails or posts and suitable plywood panels. Suitable protective fencing enclosing a stand or stands of trees may be substituted for individual tree guards.

Subject to condition 38, the developer/contractor will prevent damage to trees and tree root systems during site works and construction activities including the provision of water, sewerage and stormwater drainage services. In particular, works, erection of structures, excavation or changes to soil levels within 4 m of the trunks of trees to be retained are not permitted unless part of the development as approved, and the storage of spoil, building materials, soils or the driving or parking of any vehicle or machinery within 4 m of the trunk of a tree to be retained, is not permitted.

Car park No 1 is to be laid on existing grade using open grade asphaltic concrete with no excavation or fill within the nominated restriction zone in condition No 38. The driveway edge being located no closer than 0.5 m to the edge of the trunks. The arborist referred to in condition 38 is to be on site overseeing the work to ensure that the works will not adversely affect the longevity of the tree.

DEVELOPMENT ENGINEER

Prior to issue of a Construction Certificate

In order to certify that detailed construction plans and specifications are in accordance with the requirements of the Development Consent and Council standards, the applicant is required to obtain a Construction Certificate prior to the commencement of any works.

To obtain a Construction Certificate, the applicant must complete an application form, pay the appropriate fee and submit the form together with engineering design plans for approval. It should be noted that a Construction Certificate may be obtained from either the Council or an Accredited Certifier. Engineering design plans and specifications are to be prepared by a suitably qualified person or company for any proposed works. The plans and specifications are to be in accordance with Development Consent conditions, appropriate Australian standards, and applicable Council standards, in particular “Hornsby Shire Council Civil Works - Design Specification”. Information required to be submitted with a Construction Certificate is as follows:

(a) copies of compliance certificates relied upon;

(b) four copies of the detailed engineering plans in accordance the Council's Civil Works - Design Specification 1999. The detailed plans may include but are not limited to the earthworks, roadworks, road pavements, road furnishings, stormwater drainage, landscaping and erosion control works.

Any Construction Certificate issued in relation to this consent shall incorporate and address the design of those works required by conditions No 44, 45 and 46 and any ancillary works necessary to make the construction effective.

All engineering works required by conditions No 44, 45 and 46 must be designed and approved prior to issue of Construction Certificate and completed prior to issue of compliance certificate in accordance with:

(a) Australian Rainfall and Run-Off 1987;

(b) Australian Standard AS 2890.1 –1993.

The new internal driveways are to be designed according to the requirements of Australian Standard AS 2890.1 - 1993. Plans are to show the vehicular turning paths and dimensions of clear manoeuvring areas. Plans are to be prepared by a suitably qualified engineer.

(a) Parking areas and driveways are to be paved and drained. Details of pavement and drainage design are to be submitted in the form of calculations and specifications or details shown on engineering plans. Spot levels, cross sections and/or design contours must be shown on the plans.

(b) Plans must be prepared by a civil engineer.

A stormwater drainage system for all new internal roads and new parking areas shall be designed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years. The design shall:

(b) provide for drainage discharge to an existing downstream drainage system or be dissipated within the site to the Council’s requirements;

(c) ensure that these works, either during construction or upon completion, do not impede or divert natural surface water runoff so as to cause a nuisance to adjoining properties and:

(d) provide that drainage from works required under condition 5 shall be dissipated within the site to the Council’s satisfaction

ENGINEERING WORKS

Construction of the new approved parking areas (and associated drainage systems) and new internal access road to car park No 2 and all other works required under condition 5 shall be in accordance with the relevant Australian Standards.

Note: A pavement design for the car parking shall be prepared by a qualified civil engineer.

DURING CONSTRUCTION

Before any construction works commence, the applicant is required to appoint a Principal Certifying Authority who will be responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications.

At least two days’ written notice must be given prior to the commencement of engineering works. Such notice must be accompanied by evidence of the contractor's public liability and workers compensation insurances.

In order to maintain the amenity of adjoining properties, site works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. If inaudible on residential premises, site works shall be restricted to between 7.00 am and 4.00 pm on Saturday. No work shall be undertaken on Sundays or public holidays.

PRIOR TO ISSUE OF AN COMPLIANCE CERTIFICATE

The following conditions in this section of the consent must be complied with or addressed prior to the issue of any Compliance Certificate relating to the approved development, whether by the council or an appropriately accredited certifier. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications that accompany the Compliance Certificate application.

All engineering work required by this consent must be inspected at the following nominated stages. A Compliance Certificate is to be issued that the works comply with Development Consent, Construction Certificate, the Council’s Civil Works - Design Specification for each nominated stage of the project:

• Implementation of traffic control

• Final erosion control inspection

• Driveways and accessways

• Pavement marking

• Final Inspection

The cost of repairing any damage caused to the Council's assets in the vicinity of the subject site as a result of construction works associated with the approved development is to be met in full by the applicant/developer prior to the issue of a Compliance Certificate.

59. A work-as-executed plan under the hand of a civil engineer or a registered surveyor must be lodged with the Council when the engineering works are completed.

60. All fees payable to the Council as part of any Construction or Compliance Certificate or inspection associated with the development (including the registration of privately issued certificates) are to be paid in full, prior to the release of the Compliance Certificate.

Note: Any additional Council inspections beyond the scope of any Compliance Certificate needed to verify full compliance with the terms of this consent will be charged at the individual inspection rate nominated in the Council's Fees and Charges Schedule.

HERITAGE

61. In order to limit any potential adverse impacts on the heritage significance of the John Baptist Building (“JBB”) and its curtilage, landscaping shall be provided on the southern side of car park Area No 4 to screen parked vehicles from the view of persons looking towards the JBB from the vicinity of Old Northern Road. The landscaping shall be incorporated in the landscape plan required under condition 21.

CITATION:	Roger C Corbin Pty Ltd v Hornsby Shire Council [2001] NSWLEC 6
PARTIES:	APPLICANT Roger C Corbin Pty Ltd RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	10459 of 2000 and 11069 of 2000
CORAM:	Pearlman J
KEY ISSUES:	Development :- subdivision - car parking - consistency with zone - objectives - access and traffic - tree and vegetation impact - heritage - lot size - visual amenity - stormwater and drainage
LEGISLATION CITED:	Hornsby Local Environmental Plan 1994 Low Density Multi-Unit Housing Development Control Plan Residential Subdivision Development Control Plan
CASES CITED:
DATES OF HEARING:	17/11/2000, 20/11/2000, 21/11/2000, 22/11/2000, 23/11/2000, 24/11/2000, 29/11/2000, 05/12/2000, 08/12/2000, 24/01/2001
DATE OF JUDGMENT:	03/23/2001
LEGAL REPRESENTATIVES:	APPLICANT Mr P D McClellan QC with Mr A E Galasso (Barrister) SOLICITORS Carroll & O'Dea RESPONDENT Mr R K Graham (Solicitor) SOLICITORS Abbott Tout

Stage	Description
1	Consolidation of existing lots; Subdivision creating proposed lots 135, 136 and 137
2	Lots 1 - 33 - Torrens title
3	Lots 34 - 82 - Torrens title
4	Lots 52 - 68 - Torrens title
5	Lots 83 - 97 - community title lot with communal facilities (Phase 1 of community title development)
6	Lots 98 - 127 - Phase 2 of community title development
7	Lots 128 - 134 - Phase 3 of community title development