Saman Rahmani v Ku-ring-gai Council - [2004] NSWLEC 481

Land and Environment Court

of New South Wales

CITATION: Saman Rahmani v Ku-ring-gai Council [2004] NSWLEC 481

PARTIES: APPLICANT:
Saman Rahmani
RESPONDENT:
Ku-ring-gai Council

FILE NUMBER(S): 10388, 10391 and 10392 of 2004

CORAM: Watts C at 1

KEY ISSUES: Development Application :- Easement under s 88B of the Conveyancing Act 1919 - RoW conditions - Solar access - Privacy - Private open space - Liquidambar and landscaping - Passing bay - Streetscape - Separation between Dwellings A and B and· Quality and quantity of solar access to Dwelling A's private open space.

LEGISLATION CITED: Ku-ring-gai Planning Scheme Ordinance, (KPSO) - State Environmental Planning Policy No 53 - Metropolitan Residential Development, (SEPP53) - State Environmental Planning Policy No. 55-Site remediation, (SEPP55) - Sydney Regional Environmental Plan No 20 Hawkesbury Nepean River (No 2 - 1997), (SREP20) - Development Control Plan 43, (DCP43) - Development Control Plan 40?Waste management, (DCP40) - Dual Occupancy Development Control Code 2/2003, (Code) - Ku-ring-gai Notification Policy, (Policy) - Environmental Planning and Assessment Act 1979, ss79C and 97

CASES CITED:

DATES OF HEARING: 26/08/2004

DATE OF JUDGMENT: 08/26/2004

LEGAL REPRESENTATIVES:
APPLICANT:
Mr G McKee, solicitor
SOLICITORS:
McKees Legal Solutions
RESPONDENT:
Mr P R Rigg, solicitor
SOLICITORS:
Deacons

JUDGMENT:

Appeal No: 10388, 10391 and 10392 of 2004

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES
Watts C
25 August 2004
10388, 10391 and 10392 of 2004
Saman Rahmani v Ku-ring-gai Council
JUDGMENT
1 These appeals are under s 97 of the Environmental Planning and Assessment Act 1979, and are against the deemed refusals by Ku-ring-gai Council (the council) of three development applications to demolish the existing structures on the land and to construct a State Environmental Planning Policy No 53, (SEPP53) development comprising of three (3) detached dwellings on two Torrens title allotments at Lot 2, DP 13482, being No 345 Mona Vale Road, St Ives.
2 The proposed development is to be carried out in stages, comprising:
· Stage 1 Demolition of the existing dwelling and erection of Dwellings B & C; in DA 118/04, Appeal No 10388 of 2004;
· Stage 2 Two Lot Torrens Title Subdivision of Dwellings B & C; in DA 120/04, Appeal No 10931 of 2004;
· Stage 3 Erection of Dwelling A; in DA 121/04, Appeal No 10392 of 2004.

Environmental Planning and Assessment Act 1979

The land
6 The land is situated on the eastern side of Mona Vale Road at St Ives, between Ayres Road and Walker Avenue, opposite Sydney Grammar Preparatory School. It is rectangular in shape with an area of 1,524m2. The land has a frontage of 19.505m to Mona Vale Road and a depth of about 78m.
7 Erected on the land is a part single-storey and part two-storey brick and tile dwelling with a swimming pool. A 1.8m high brick front fence and gates is erected across the front boundary of the property, and there is little vegetation of significance on site.
8 Vehicular access is off Mona Vale Road via an existing driveway crossing located on the southern side of the frontage of the land.
9 The land slopes gradually down to the rear, with a fall of about 3.5 m from west to east. A drainage easement through properties to the rear is proposed to allow all collected surface water to be drained to council's existing stormwater system in Kirby Place.
10 The surrounding area comprises land zoned for residential, open space, commercial and special uses (school).
11 To the north, is No 347 Mona Vale Road, a single-storey dwelling, previously used as a veterinary practice. Development consent DA 1258/01 has been granted for a dual occupancy development on this site.
12 No 349 Mona Vale Road is ‘The Grevillea Respite Care House’ within a single-storey building and which provides accommodation for disabled persons.
13 Further north at No 351 Mona Vale Road is the recent re-developed ‘St Ives Plaza’ shopping centre, which contains a range of retail uses including:
· coffee shop/delicatessen;
· two restaurants;
· take-away food shop;
· newsagent;
· veterinary practice;
· chemist;
· hair and beauty salon; and
· liquor/Bottle shop.

Relevant planning controls
18 The proposal is ‘local development’ under the provisions of the Environmental Planning and Assessment Act 1979, as amended.

Ku-ring-gai Planning Scheme Ordinance, (KPSO)
19 The land is zoned Residential 2(c) under the provisions of the KPSO and the erection of a dwelling house is permissible with consent.
20 Prior to the 1998 amendments to the Environmental Planning and Assessment Act 1979 dwelling houses did not require consent under the requirements of the KPSO (Table under cl 23), however as a result of those amendments all dwelling houses now require development consent.

State Environmental Planning Policy No 53 - Metropolitan Residential Development, (SEPP53)
21 The proposed detached dual occupancy development is permissible under cll 16 & 17 of SEPP53.
22 Clause 16, states:

This part applies to all land to which this policy applies that is within a residential zone under another environmental planning instrument.

This part allows development that results in two dwellings being located on the one allotment of land if the land is within a zone, which, under another environmental planning instrument, permits the erection of dwelling houses.

State Environmental Planning Policy No 55–Site remediation, (SEPP55)
23 Under s 2 the object of this Policy is:

(1) The object of this Policy is to provide for a Statewide planning approach to the remediation of contaminated land.

(2) In particular, this Policy aims to promote the remediation of contaminated land for the purpose of reducing the risk of harm to human health or any other aspect of the environment:

(a) by specifying when consent is required, and when it is not required, for a remediation work, and

(b) by specifying certain considerations that are relevant in rezoning land and in determining development applications in general and development applications for consent to carry out a remediation work in particular, and

(c) by requiring that a remediation work meet certain standards and notification requirements.

Sydney Regional Environmental Plan No 20 Hawkesbury Nepean River (No 2 - 1997), (SREP20)
25 As the land is within the catchment of the Hawkesbury River it comes under the control of SEPP20 and any development of that land has the potential to impact on the integrity of downstream watercourses. There was no issue in respect of SREP20.

Development Control Plan 43, (DCP43)
26 DCP43 relates to car parking. The DCP43 would be overridden by SEPP53 and the proposal exceeds those requirements.

Development Control Plan 40-Waste management, (DCP40)
27 DCP40 relates to waste management. A waste management plan was submitted and there was no issue between the parties.

Dual Occupancy Development Control Code 2/2003, (Code)
33 The Code was adopted by the council on the 8 April 2003, and became effective on the 16 April 2003. The provisions of SEPP53 prevail to the extent of any, inconsistencies with other planning instruments in respect of the proposed dual occupancy.
34 The Code contains sections relating to stormwater management (Section 4.5), privacy (Section 4.3), Car Parking and Accessibility (Section 4.7). In relation to stormwater, the Code reflects Council's Stormwater Management Manual.
29 Subject to a deferred commencement condition in respect of storm water management and provision of an easement being obtained to the east of the land, the proposal would satisfy the council’s requirements and there would be no issue between the parties in this regard.

Ku-ring-gai Notification Policy, (Policy)
30 The council adopted this Policy on 17 December 2002. The proposal was notified as required by this Policy.

The proposal and its history
37 The development applications were lodged with the respondent council on 9 February 2004 for a SEPP53 development comprising of three (3) detached dwellings on two Torrens title allotments.

Stage 1
38 Stage 1 seeks approval to demolish the existing structures including the dwelling, swimming pool and front fence. It is then proposed to erect two detached two-storey dwelling houses (Houses B & C) upon the land. House B would be erected towards the centre of the land and House C to its rear or east.
39 Both these dwellings would be accessed via a common driveway, which is to enter the site and run parallel with the southern boundary of the land.
40 The proposed dwellings would be of brick veneer construction on the ground floor and lightweight construction on the upper level with a painted and rendered finish. A terra cotta tiled roof is proposed for each dwelling.
41 Dwelling B would be erected along an east-west axis with areas of private open space to the north and east. Varied setbacks of 3m and 4m would be provided from the northern side boundary. This dwelling would have private open space to its east including a covered terrace area and bi-fold doors from the living areas opening onto these areas.
42 Dwelling C, to the rear of Dwelling B, would be orientated to the rear with a minimum setback from the rear boundary of 6m. Setbacks from the side boundaries vary from 2.5m to the north and 1.5m to 3.3m from the southern side boundary. The private open space for this dwelling is located to the rear and to the east. Amended plans have increased the setbacks to the north from 2.5m to 4.5m including a private open space adjacent to the kitchen of that dwelling.
43 A turning bay, which allows for vehicles to enter and leave the site in a forward direction, is to be provided near Dwelling C. The turning bay also provides for a visitor car space to its rear. A condition has been agreed to setback the visitor car space 2.5m from the northern boundary.
44 The proposed dwellings would comprise:
Dwelling B Ground floor
· Entry, study, master bedroom with ensuite, kitchen, laundry, WC, family room, meals area and a double garage.
First floor
· 3 Bedrooms, 1 with ensuite, bathroom and TV room.

Dwelling-C Ground floor
· Entry, kitchen, meals room, family room, laundry, WC, master bedroom with ensuite, and double garage.
First floor
· 3 Bedrooms, 1 with ensuite, bathroom and TV room.

Stage 2
47 This application seeks approval for the Torrens title subdivision of the dual occupancy development resulting from Stage 1. The proposed subdivision boundaries would be consistent with the built forms proposed under that application.
48 The development indices for the proposed subdivision are:
· Proposed Lot Sizes
· Proposed Lot 2A 1,085.3m2
· Proposed Lot 2B 438.7m2

Stage 3
49 Stage 3 of the proposed development is to erect a two-storey dwelling house (House A) upon the front western portion of the proposed allotment resulting from the Stage 2 subdivision.
50 House A would be of brick veneer construction to the ground floor and light weight construction to the upper level with painted and rendered finish and terra cotta tiled roof.
51 Dwelling A would be sited so as to have a minimum 9m setback from Mona Vale Road. Side boundary setbacks would vary between 3m and 4m to the north and 5.4m and 6.4m to the south. A setback of 3m would be provided from the existing House B. Amended plans setback the eastern portion of this dwelling a further 4m from the northern boundary and this resulted in Dwellings A and B being separated on their northern side by 6.5m.
52 Primary private open space for this dwelling would be located to the north and east of the dwelling with a secondary portion being located to the west including part of the front setback located behind the proposed masonry acoustic wall.
53 Vehicular access to the dwelling would be via the driveway proposed by the Stage 1 application with vehicles being able to enter and leave the property in a forward direction.
54 The proposed dwelling comprises of the following rooms:
Dwelling A Ground floor
· Entry, master bedroom with ensuite, kitchen, laundry, WC, family room, meals area and a double garage.

First floor

· 3 Bedrooms, 1 with ensuite, bathroom and TV room.

Total Area: 631.9m2 or 58%

Clause 31 - Site Analysis
57 A site analysis plan was prepared by Patricia Vandenbruel, architect, and was provided to the council. The applicant asked that the site analysis plan be read in conjunction with a written site analysis.

Clause 32 - Design of Residential Development
58 Clause 32 of SEPP53 requires that consent must not be granted unless the council is satisfied that adequate regard has been given to the following design principles.

Neighbourhood amenity & streetscape	The applicant maintained that the proposal was designed so as to have minimal impact upon the neighbourhood amenity of the locality. In this regard given that Stage 1 of the proposal involves dwellings, which at their closest point will be about 30m from the street frontage it would not be until Stage 3 of the development that the development would have the potential to impact upon the streetscape. At the completion of Stage 3 the proposed development would present to Mona Vale Road as essentially a single dwelling, compatible in size, shape and design with other developments within the immediate vicinity. The completed proposal would be provided with a setback of 9 m to Mona Vale Road. The proposal also would involve the demolition of the existing red texture brick fence which is currently erected along the front boundary and its replacement with a painted and rendered wall which is to be setback from the boundary and screened with an extensive landscape screen.
Visual and acoustic privacy	The applicant maintained that the proposal has been designed having regard to the visual and acoustic privacy of both the future residents of the development and the adjoining property owners. In this regard it is considered that the development would provide future residents with a private and quiet living environment. This has been achieved through the location and design of the dwellings, the proposed front fence, retaining existing vegetation where possible to screen the dwellings, the proposed landscape treatment of the site, and the orientation of each dwelling and associated private open space areas. The proposal would provide a private living environment for future residents of this development without compromising the existing levels of privacy of adjoining properties.
Solar access and design	The applicant maintained that the proposal has been designed so as ensure that each of the units achieves in excess of the minimum daily allowance of sunlight as recommended by AMCORD. The proposal would involve the use of construction techniques and materials consistent with energy efficient design, such as masonry walls and concrete slabs. Minimising the height of the proposed buildings and locating the driveway on the southern side would ensure that there are no unreasonable levels of overshadowing to adjoining properties on the southern side.
Stormwater	The applicant maintained that all stormwater from built upon areas is proposed to be collected and drained via a proposed on-site stormwater detention system to a proposed easement which is to be created over adjoining properties. As the subject easement has not been created at this time it is requested that the Court deal with the matter via a deferred commencement approval.
Crime prevention	The applicant maintained that occupants of the development would be provided with a secure living environment. Appropriate lighting and security measures would be incorporated into the construction of the development. Dwellings would also be provided with secure courtyard fencing.
Accessibility	The applicant stated that the subject land is provided with excellent levels of accessibility. Vehicular access is available to the development via a single driveway located to the development’s south. The driveway has been designed so that vehicles can pass at one point. Vehicles would also be able to enter and leave the site in a forward direction. The site is also provided with excellent pedestrian access to local facilities as detailed within Section 3 of this report and public transport, with bus stops being located adjacent to the site. The site is also located in close proximity to a signalled pedestrian crossing on Mona Vale Road.
Waste management	Garbage and recycling storage areas are provided for each dwelling at the side of their respective garages. All garbage and recycling containers will be serviced from the street kerb by the council's waste and recycling contractors.
Visual Bulk	The proposed dwellings would be two-storeys in height and include articulation and recession of the first floor level. The proposal’s levels follow the land form.

Notification
59 The applications were notified to nearby owners and occupants and one submission was received by the council from Mr B R Chamberlain of No 4/343 Mona Vale Road (in reply to all three of the applications), who questioned whether his dwelling’s access to winter sun would be unreasonably blocked by the location and design of Dwelling C; and whether Dwelling C was of an appropriate size in terms of the number of rooms and shape of house for the size of the block. He was notified of the hearing date on 6 August 2004 and he did not attend the hearing.

The Council’s decision
60 When the appeals were filed the council had not determined the application so the Class 1 appeal is a deemed refusal. However by notices dated 28 July 2004 the council refused each application for the following reasons:

SCHEDULE A TO DEVELOPMENT APPLICATION No 118/04,

PREMISES: LOT 2, DP 13492, 345 MONA VALE ROAD, ST IVES

The proposed Dwelling C and adjacent retaining wall has an unacceptable impact upon the Liquid amber tree located adjacent to the southern boundary of property No. 347 Mona Vale Road.

Particulars:

The proposal fails to have regard to Clause 1B of the KPSO (Aims and Objectives for Residential Zones) in that the proposed development fails to satisfy Part 1(a) of Schedule 9 of the KPSO as the development fails to maintain and improve the existing amenity and environmental character of residential zones;

ii.

The proposal fails to have regard to Clause 2C of Schedule 9 of the KPSO (Aims and. Objectives for Residential Zones) in that the proposed development fails to maintain tree cover;

iii.

The proposal fails to have regard to Objective 5(ii) of Council's Dual Occupancy Code in that the proposed development fails to maintain or enhance the tree dominant landscape quality and tree canopy of Ku-ring-gal.

The application fails to provide for suitable drainage as the proposed development does not have the legal -might to pass its stormwater over intervening properties to connect to a recognised public drainage system.

Particulars:

The proposal fails to have regard to. Objective 4.5(1) of Council's Dual Occupancy Code in that the proposed development fails to control and minimise the disturbance and impacts of stormwater runoff on adjoining properties.

ii.

The proposal fails to 17ave regard to Clause 32(d)(i) of SEPP 53. In particular, the development fails to control and minimise the disturbance and impacts of stormwater runoff on adjoining properties and receiving waters.

The design and siting of Dwelling C is unsatisfactory.

Particulars:

(i)

Adequate regard has not been given to Clause 32(b)(i) of SEPP 53. In particular, the northern first floor windows of dwelling C have been inappropriately located and designed and do not consider the visual privacy of the neighbour at 347 Mona Vale Road.

(ii)

Adequate regard has not been given to Clause 1B of the KPSO (Aims and Objectives for Residential Zones). In particular, insufficient landscaping has been provided to Dwelling C. There is limited provision of landscape curtilage to the dwelling, a reduced setback to the south boundary, and excessive paving required for car turning and visitor parking areas.

4. The design and siting of Dwelling B is unsatisfactory.

Particulars:

(i)

Adequate regard has not been given to Clause 32(b)(i) of SEPP 53. In particular, the northern first floor windows of dwelling B have been inappropriately located and designed and do not consider the visual privacy of the neighbour at 347 Mona Vale Road.

(ii)

Adequate regard has not been given to Clause 1B of the KPSO (Aims and Objectives for Residential Zones). In particular, insufficient landscaping cartilage has been provided to Dwelling B.

(iii)

The proposal fails to have adequate regard to Objective 5(xi) and (xii) of Council's Dual Occupancy Code in that the proposal provides inadequate Private Open Space, particularly given the user requirements of the dwelling. The dimensions of the Private Open Space will be further reduced by the provision of adequate landscaping.

The application proposes inadequate separation between proposed dwellings B and C.

Particulars

(i) The proposal fails to have regard to Part 1(a) of Schedule 9 of the KPSO (Aims and Objectives for Residential Zones) in that the proposal falls to improve the existing amenity and fails to have adequate regard to Objective 4.9(v) of Council's Dual Occupancy Code in that the separation of the dwellings fail to retain an impression of openness and space between built elements.

The location of proposed Dwellings B and C is inappropriate.

Particulars:

Adequate regard has not been given to Clause 32(a)(i) in that the development proposes an excessive front setback, which fails to contribute to an attractive residential environment with clear character and. identity. This is particularly pertinent given the possibility that stages 2 and 3 may never proceed following the approval of stage 1.

ii.

The proposal fails to have regard to Clause 1B of the KPSO (Aims and Objectives for Residential Zones) in that the proposal fails to satisfy Part 1(a) of Schedule 9 of the KPSO, through providing excessive front setback.

iii.

The proposal does not have regard to Objective 4.9(iv) of Council's Dual Occupancy Code in that the excessive front setback fails to enhance streetscape quality.

Inadequate plans have been provided.

Particulars

(i)

The application fails to comply with the Environmental Planning and Assessment Regulation 2000 in that the landscaping plan provided (ref L01, Patio Landscape Design, dated 5th February 2001) is inappropriate given the possibility that Stages 2 and 3 may never proceed following approval of Stage 1.

SCHEDULE A TO DEVELOPMENT APPLICATION No 120/04

PREMISES: LOT 2, DP 13482, No 345 MONA VALE ROAD, ST IVES

1. The application is premature and cannot be considered prior to approval of DA0118104 for a detached dual occupancy development.

Particulars

(ii)

The application fails to comply with Clause 58B(3)(c) of the KPSO in that the proposed allotments fails to meet area requirements;

(iii)

The application fails to comply with Clause 588(5) of the KPSO in that the proposed allotments do not have an existing approval for a Dual Occupancy granted pursuant to SEPP53.

2. The application fails to provide for adequate stormwater drainage.

Particulars

(i)

The proposal fails to provide the necessary 88B instrument (pursuant to the

) to burden/ benefit the appropriate lots as regards to the legal right to drain stormwater over intervening properties as far as necessary to connect. to a recognised public drainage system.

3. Inadequate plans have been provided.

Particulars

(i)

Adequate plans have not been provided giving full details of the subdivision. The plan fails to show, in accordance with Clause 58B(4) of the KPSO, how each separate lot created has a boundary to the public road via the Right of Way. Additionally it is unclear whether the Right of Way allows for the erection of a letterbox and other facilities at Mona Vale Road for Dwellings B and C.

SCHEDULE A TO DEVELOPMENT APPLICATION No 121/04

PREMISES: LOT 2, DP 13482, No 345 MONA VALE ROAD, ST IVES

The proposed design of Dwelling A fails to have regard to the streetscape.

Particulars:

(i)

The application fails to comply with Clause 1B of the KPSO (Aims and Objectives for' Residential Zones) in that the proposed development fails to satisfy Part 1 -(a) of Schedule 9 of the KPSO;

(ii)

The application fails to have regard to Clause 32(a)(i) of SEPP53 in that the proposal fails to have regard to the streetscape and contribute to an attractive residential environment with clear character and identity.

2. The siting of proposed dwellings A and B is unsatisfactory.

Particulars

(i)

The proposal fails to have regard to Clause 1B of the KPSO (Aims and Objectives for Residential Zones) in that the proposal fails to satisfy Part 1(a) of Schedule 9 of the KPSO, by having limited separation between Dwellings A and B, fails to improve upon the existing amenity and environmental character of the area.

(ii)

The proposal fails to have adequate regard to Objective 4.9(v) of Council's Dual Occupancy Code in that the dwellings fail to retain an impression of openness and space between, built elements.

(iii)

The proposal fails to have regard to Objective 5(xi) and. (iii) of Council's Dual Occupancy Code in that the proposal provides inadequate Private Open Space to proposed Dwelling A; particularly given the user requirements of the dwelling. The dimensions and. siting of the Private Open Space remits in a development which provides open space of limited use and privacy, with little possibility for outdoor activity and planting, and which is in part shaded.

3. The application is premature and cannot be considered prior to the approval of the two previous applications (DA0118/04 and DA0120/04).

Particulars

The application relies in part on the determination of the two previous applications. Failure to secure the approval of the subdivision application and registration of the proposed lots prior to the determination of this application may inadvertently result in the approved development of three dwellings upon one lot, contrary to the provisions of the KPSO and SEPP53.

4. Inadequate plans have been provided.

Particulars

(i)

The application fails to comply with the

in that plan details provided of the driveway and gate conflict with Stage 1 details.

The hearing
61 The appeals were filed on 1 April 2004.
62 At the hearing the Court was provided with a statement of basic facts on behalf of the respondent council from Miss K A Lithgow, town planner of Ku-ring-gal Council.
63 Ms M D Laidlaw was the Court-appointed expert town planner.

The issues
64 On 22 July 2004 the council filed statements of issues.
65 In respect of DA 118/04, Appeal No 10388 of 2004, the respondent raised the following issues in the proceedings, with the case management notes in bold:
1. Whether the proposed dwelling C has an unacceptable impact upon the Liquid amber tree located adjacent to the southern boundary of property No 347 Mona Vale Road.

Particulars

The proximity of the dwelling to the tree will result in the removal of limbs;

30% of the canopy will have construction beneath, which threatens the long-term viability of the tree;

Impact of the retaining wall on the tree;

The cumulative impact to the tree taking into consideration the Dual Occupancy at 347 Mona Vale Road.

[Can be resolved]

Whether the proposed development has the legal right to pass its stormwater over intervening properties as far as necessary to connect to a recognised public drainage system.

[resolved]

The design and siting of Dwelling C.

Particulars:

(a)

Whether adequate regard has been given to Clause 32(b)(i) of SEPP 53. In particular, whether the northern first floor windows of dwelling C have been appropriately located and designed so as to consider the visual privacy of the neighbour at 347 Mona Vale Road (this can be addressed by condition requiring obscure/high windows).

(b)

Whether sufficient landscaping has been provided. There appears to be no provision of landscape curtilage to Dwelling C, a reduced setback to the south boundary, and excessive paving required for car turning and visitor parking areas.

The design and siting of Dwelling B:

Particulars:

(a)

Whether adequate regard has been given to Clause 32(b)(i) of SEPP 53. In particular, whether the northern first floor windows of dwelling B have been appropriately located and designed so as to consider the visual privacy of the neighbour at 347 Mona Vale Road (this can be addressed by condition requiring obscure/high windows);

(b)

Whether sufficient landscaping has been provided. There appears to be limited provision of landscaping curtilage;

(c)

Whether there is adequate Private Open Space provided, particularly given that the dwelling is proposed to be of four bedrooms. The dimensions of the Private Open Space will be further reduced by the provision of landscaping.

Whether there is adequate separation between proposed dwellings B and C.

Whether adequate regard has been given to Clause 32(c)(1) of SEPP 53. In particular whether the design of Dwelling C ensures adequate daylight to the main living areas of Unit 4 at 343 Mona Vale Road.

Impact upon Streetscape.

Particulars:

(a)

Whether the location of dwellings B and C are appropriate given the excessive front setback provided and the possibility that stages 2 and 3 may never proceed following the approval of Stage 1.

Adequacy of Plans.

Particulars:

(a) (i) Whether the landscaping plan (ref 1-01, Patio Landscape Design, 5th February 2004) is sufficient given the possibility that Stages 2 and 3 may never proceed following approval of Stage 1.

Whether the proposed development can be granted consent before consent has been granted to development application no 118/04 for a detached dual occupancy development.

[Not an issue]

Whether the proposal includes the necessary 88B instrument to burden/ benefit the appropriate lots as regards to the legal right to drain stormwater over intervening properties as far as necessary to connect to a recognised public drainage system. This matter is relevant to the imposition of a condition only.

[Applicant agrees and not an issue]

Inadequate plans for the subdivision have been provided:

Particulars:

No details have been provided as to how the Right of Way functions;

Dwelling C has no title frontage to Mona Vale Road and only has frontage via a Right of Way.

It is unclear whether the Right of Way allows for the erection of a letterbox

etc at Mona Vale Road for Dwellings B and C.

[Resolvable by condition]

Whether adequate consideration has been given to the streetscape.

Particulars:

(a)

Whether consideration has been given to the facade addressing Mona Vale Road.

Whether the siting of dwellings A and B is suitable, having regard to:

(a)

the adequacy of the separation between the dwellings. There appears to be limited space for adequate landscaping and access between Dwellings A and B; and

(b)

the provision of open space to dwelling A, which is of inadequate size and dimensions, particularly given the size of the dwelling. The open space may also be overshadowed by the neighbouring property.

Whether the proposed development can be granted consent before approval has been granted to DA0118/04 and the construction of Dwellings B and C to lock up stage.

Whether the proposed development can be granted consent before approval has been granted to DA0120/04 proposed subdivision of 1 lot into 2 lots and the subsequent registration of the proposed lots.

Adequacy of the plans.

Particulars:

(a) The Stage 3 plan details of the driveway and gate conflict with the Stage 1 details.

68 The following emerged as the salient issues in respect of Stage 1:
· Easement under s 88B of the Conveyancing Act 1919 ;
· RoW conditions;
· Solar access;
· Privacy;
· Private open space; and
· Liquidambar and landscaping.

69 The following emerged as the salient issues in respect of Stage 2:
· Passing bay; and
· RoW.

The evidence and findings

Stage 1: Easement under s 88B of the Conveyancing Act 1919;
71 In this regard the deferred commencement condition was agreed at the case management. This is no longer a reason to refuse the Stage 1 application.

Stage 1: RoW conditions;
72 A revised subdivision plan is required to identify the additional reciprocal rights-of-way to permit visiting drivers to manoeuvre at the eastern end of the driveway. The amendments are shown in red on the Stage 2 subdivision plan, dated 3 February 2004. The reciprocal right-of-way is to be cut short by 1.5m at the northern end of the visitor’s car space. This is also shown in red on the plan.

Stage 1: Solar access;
73 The neighbour Mr B R Chamberlain was concerned to ensure that the courtyard to his town house at No 4/343 Mona Vale Road would not be significantly overshadowed by the proposal. The applicant’s shadow diagrams show that his dwelling would receive some additional overshadowing at 9.00am in midwinter on the north facing windows at the eastern end of his dwelling. However, the diagrams show that those same windows would be substantially free of any shade at 12.00 noon and 3.00pm. The proposed development according to the shadow diagrams show that there would be some additional shadow of the courtyard on the northern side at noon, and 3.00pm. The area to the east and rear would continue to receive sunlight.
74 Ms Laidlaw indicated that such an impact would be acceptable in the circumstances and I accept that evidence. I would not refuse the application for this reason.

Stage 1: Privacy;
75 Ms Laidlaw recommended a reduction in the number of clear glazed windows providing a view over No 347 Mona Vale Road from the first floor bedrooms of Dwellings B and C and this could be achieved by either frosting the north facing windows in Bedroom 4 of each or alternatively providing a high sill window. By providing a new clear-glazed window on the eastern elevation additional light could be provided to Bedroom 4 of Dwelling B.
76 I accept that evidence and would not refuse the application for this reason.

Stage 1: Private open space;
77 In respect of the qualitative aspects of the private open space there was a concern especially in regard to the 7m-separation between buildings as required by the council’s Code. The applicant agreed to reduce the east west dimension of the terrace roof on the eastern side of Dwelling B by a further 1.5m and to provide a planter bed of 2m to the east of the patio. If this condition were imposed the separation between Dwellings B and C would be about 7.5m and exceed the Code requirements.
78 The total area of private open space exceeds the 100m2 required under the council’s Code.
79 I am satisfied that this matter has been resolved.

Stage 1: Liquidambar and landscaping,
80 The council was originally concerned to protect the canopy of the liquidambar on the adjoining property at No 347 Mona Vale Road from disturbance by the development. The council was also concerned to ensure that future occupants would not seek to remove significant branches of the tree under the tree preservation order (TPO). The applicant has amended the plans for Dwelling C to provide a greater separation to these branches. The building is now proposed to be outside the main structural limbs of the tree. Also it was agreed that there would be conditions under s 88B of the Conveyancing Act 1919 attached to any consent to ensure that the branches of the tree would not be exempted from the provisions of the TPO.
81 There was adequate open space for the rear two Dwellings B and C and the concern for the lack of landscaping between them has been addressed by requiring the minimum 2m landscape strip on the eastern side of Dwelling B.
82 I am satisfied with these arrangements and would not refuse the application for this reason.

Stage 2: Passing bay,
83 The council is satisfied that a passing bay has now been provided on the plans and this issue was not pressed.

Stage 2: RoW;
84 A revised subdivision plan is required to identify the additional reciprocal rights-of-way to permit visiting drivers to manoeuvre at the eastern end of the driveway, and this may be conditioned. The amendments required are shown in red on the Stage 2 subdivision plan, dated 3 February 2004. The reciprocal right-of-way is to be cut short by 1.5m at the northern end of the visitor’s car space. This is also shown in red on the plan.

Stage 3: Streetscape;
85 Prior to the erection of Stage 3 Dwelling B would be set back a significant distance from Mona Vale Road. Ms Laidlaw was of the opinion however, that as this streetscape was not uniform and as the area concerned would present in the interim as a garden area behind the front garden wall that this did not present a significant concern. When Dwelling A is constructed it would present as a single dwelling and would be set back a similar distance to the SEPP5 development at No 343 Mona Vale Road. Therefore she considered this acceptable.

86 I accept that evidence and would not refuse the application for this reason.

Stage 3: Separation between Dwellings A and B,
87 With the amendment to the north eastern corner of Dwelling A as shown in the amended plans the separation distance between Dwellings A and B on the northern side would be 6.5m and Ms Laidlaw considered this reasonable having regard for the Code’s control of 7m.
88 I accept that evidence.

Stage 3: Quality and quantity of solar access to Dwelling A’s private open space
89 Having regard to the amendment to the north eastern corner of Dwelling A as shown in the amended plans Ms Laidlaw was satisfied that Dwelling A would have open space that would receive adequate solar access during the winter solstice. This dwelling would also have an area enjoying good solar access on the western side albeit that this area is noise affected and may be suitable for some more active recreational activities.
90 I accept that evidence and would not refuse the application for this reason.
91 For the above reasons, the appeal is upheld.

Conditions
92 The conditions are those in Exhibit 3 as amended during the hearing.

Orders
93 My orders are:
1. The appeals under s 97 of the Environmental Planning and Assessment Act 1979 are upheld.
2. Development applications No 118/04, 120/04 and 121/04 lodged with the respondent council on 1 April 2004 to demolish the existing structures on the land and to construct a State Environmental Planning Policy No. 53, (SEPP53) development comprising of three (3) detached dwellings on two Torrens title allotments at Lot 2, DP 13482, being No 345 Mona Vale Road, St Ives, are approved subject to conditions in the annexures.
3. The exhibits with the exception of Exhibits A to F, 2 and 3 are returned.
S J Watts
Commissioner of the Court
sw

In the Land and

Environment Court

of New South Wales

No. 10388 of 2004

Saman Rahmani

Applicant

Ku-ring-gai Council

Respondent

Order

The Court orders that:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No 118/04, lodged with the respondent council on 1 April 2004 to demolish the existing structures on the land and to construct a State Environmental Planning Policy No. 53, (SEPP53) development comprising of two (2) detached dwellings at Lot 2, DP 13482, being No 345 Mona Vale Road, St Ives, is approved subject to a Deferred Commencement Condition A and Conditions 1 to 85 all in Annexure A.

3. The exhibits with the exception of Exhibits A to F, 2 and 3 are returned.

Ordered: 26 August 2004

By the Court

Susan Dixon
Registrar
sw

Appeal No: 10388 of 2004

Conditions of development consent

Annexure A

Saman Rahmani v Ku-ring-gai Council

No 345 Mona Vale Road, St Ives
Development Application – 0118/04
Land and Environment Court Proceedings No 10388 0f 2004
Demolition of existing dwelling and construction of a detached dual occupancy (Stage 1)

DEFERRED COMMENCEMENT CONDITION

A. To enable the submission of further information to clarify or resolve specific aspects of the proposed development this Development Consent is issued as ‘Deferred Commencement’ consent under the provisions of Section 80(3) of the Environmental Planning and Assessment Act 1979 as amended. The consent shall not operate until the applicant satisfies the Council that an easement has been created to permit drainage of the site over adjoining land to an approved stormwater system, and registered with the Land and Property Information Service.

The required information shall be submitted within 12 months of the date of issue of this development consent.

GENERAL CONDITIONS
1. The development to be in accordance with Development Application No 0118/04 and Development Application plans filed on lodgement 9th February 2004, comprised of: Site Layout/Site Analysis, Patricia Vandenbruel, Ref Stage 1 1/3, dated 3 February 2004, Floor Plan Layouts, Patricia Vandenbruel, Ref Stage 1 2/3, dated 3 February 2004, Elevations – Typical Section, Patricia Vandenbruel, Ref Stage 1 3/3, dated 3 February 2004, Stormwater Drainage Concept Plan, AFCE Environment + Building, Ref 343129/DA Rev 0, dated February 2004, Landscape Plan, Patio Landscape Design, dated 5th February 2004, except where amended by the conditions of consent.

2. All building works shall comply with the Building Code of Australia.

3. The submission of the approved plans to Sydney Water, before any work is commenced to ensure that the proposed structure meets that Authority’s By-Laws. Failure to submit these plans before commencing work will render the owner liable to a penalty and may result in the demolition of work.

4. The approved building shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plans and an Occupation Certificate has been issued.
5. For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plan and this Consent and Construction Certificate shall be kept on site at all times.
6. For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the road or footpath without the written approval being obtained from the Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.
7. HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant.
Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment.
8. A sign shall be erected in a prominent position on the site, which states the name and contact details of the Principal Certifying Authority.
9. To maintain existing ground levels all excavated material shall be removed from the site.
10. For the purpose of maintaining visual amenity, no permanent electricity supply poles are to be erected forward of the building setback without the prior Consent of Council. It is the onus of the applicant to consult with the authorised statutory electricity provider prior to construction commencing to ensure that direct connection to the building is possible. Details of any proposed permanent pole must be submitted to and approved by Council prior to installation.
11. Toilet facilities are to be provided, within the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.
12. The demolition is to be carried out in accordance with the guidelines contained in Australian Standard 2601-1991: The Demolition of Structures.
13. Access to demolition sites shall be protected as directed by the Principal Certifying Authority by the use of suitable fences or hoardings.
14. Where a new development is not commencing immediately following demolition, the demolition shall be limited to the extent of the footprint of the building/s on the site and no excavation shall be carried out.
15. Demolition work, including removal of material or debris from the site, on any building in a residential area shall only be carried out during the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted.
16. A person taking down or demolishing or causing to be taken down or demolished any building or part thereof shall, upon identifying or suspecting that asbestos is present in the building, immediately notify the Workcover Authority. The Authority is the controlling body for the safe removal, handling and disposal of asbestos. The Authority supervises and monitors contractors engaged in asbestos removal.
The requirements and standards imposed by the Authority, its consultants or contractors shall be complied with.
17. Erosion control measures shall be provided on demolition sites to prevent the siltation of watercourses and drainage systems.
18. Dust control measures shall be taken on all demolition sites so as to avoid a nuisance to adjoining properties and harm to the environment.
a. A person taking down or demolishing or causing to be taken down or demolished any building or portion of any building shall:

i. cause the windows or other openings in the external walls to be close boarded or otherwise covered;
ii. cause screens of canvas, hessian, boards, mats or other suitable material to be fitted in appropriate locations;
iii. cause areas, components and debris to be wetted down; in such a manner as to minimise, as far as practicable, the nuisance arising from the escape of dust during such taking down or demolition.

b. Such person shall not chute, throw or let fall or cause to chute, throw or let fall from the floor to floor or into any basement of such building any building materials or any other matter so as to cause dust to escape from the building or cause any such material to fall or cast upon a public way to the annoyance, inconvenience, or danger of persons using such public way.

19. Soil on vacant sites is to be stabilised as soon as possible to prevent erosion and the site shall be kept clear of excess vegetation.

20. All combustible material shall be removed from the site on a daily basis. Material shall not be burnt on the site.

21. Trees and vegetation on a site shall not be disturbed except with the approval of the Council.

22. Adequate precautions shall be taken to ensure the protection of adjoining premises and persons therein from damage and injury during the process of demolition.

23. Buildings built prior to the 1970’s may contain lead based paint. Lead dust is a hazardous substance. You are advised to follow the attached WorkCover guidelines to prevent personal and environmental contamination.

24. The applicant or builder/developer is responsible for the cost of making good any damage that may be caused to any Council property as a result of work associated with the demolition.

25. All demolition materials of value for re-use either on-site or elsewhere, shall be separated and made available for re-cycling.

26. To preserve and enhance the natural environment, all soil erosion and sediment control structures shall be inspected following each storm event and any necessary maintenance work shall be undertaken to ensure their continued proper operation. Sediment shall be removed from the soil erosion and sediment control structures when no more than forty percent (40%) capacity has been reached. These structures shall continue in proper operation until all development activities have been completed and the site fully stabilised.

27. To prevent pollution, all vehicles making a delivery to or from the site are to be covered to prevent loose materials, dust etc falling from the vehicles.

28. Stormwater runoff from all hard surfaces generating runoff or landscaped areas which are not at natural ground level shall be piped to the interallotment stormwater drainage line benefiting the subject site. The interallotment line is to be covered by the necessary easement for drainage which may exist or need to be created under this consent.

29. To maintain capacity of the public drainage system, an on site stormwater detention system must be provided in accordance with Council’s Stormwater Management Manual. An overflow is to be incorporated that will direct any excess flow to the downstream drainage system and subsoil drainage is to be provided from the underside of the sediment control sump to the outlet line or other approved location.

The system is to be cleaned regularly and maintained to the satisfaction of Council.

NOTE 1: The on site stormwater detention and property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist’s certification that such excavation will not affect the longevity of the subject tree(s).

NOTE 2: If the applicant wishes to vary the prescribed storage and outflow volumes contained in Council’s Stormwater Management Manual, a detailed analysis must be provided following the guidelines set out in Council’s requirements fro on site detention with full computations accompanying the submission including a flood routing analysis.

NOTE 3: All roof, driveway and other hard surface runoff water is to be intercepted and directed to the on site stormwater detention system. If some areas of hard surface are unable to be directed to the detention system an adjustment to the rate of discharge is to be made to attain the required site discharge.

NOTE 4: If landscaped surface detention system is used the storage volume required is to be increased by 20%.

NOTE 5: The standard Council on site stormwater detention calculation sheet is to be completed and included on design drawings. This is available from Council upon request.

OR
An on-site stormwater detention and/or retention system(s) must be provided for each dwelling in accordance with Council’s requirements described in chapter 6 of Councils Water Management Development Control Plan 47, available in hard copy at Council and on the Council website. Separate systems are to be provided for each residence, except where a single combined system may be located in a common location readily accessible by both owners (such as under a shared driveway). In this case appropriate cross burdens are to be created on title(s) as necessary.
30. For stormwater control a 200mm wide grated channel/trench drain with a heavy-duty removable galvanised grate is to be provided in front of the garage door for Dwelling C and connected to the main stormwater drainage system. The channel drain shall have outlet of minimum diameter 150mm to prevent blockage by debris.

31. All public footways and roadways fronting and adjacent to the site are to be maintained in a safe condition at all times during the course of the development works. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to the public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where circulation is diverted on to the roadway, clear directional signage and protective barricades must be installed in accordance with AS1742-3 1996 “Traffic Control Devices for Work on Roads” . If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

32. The provision of temporary sediment and erosion control facilities and measures are to be installed, prior to the commencement of any works on the site to eliminate unnecessary erosion and loss of sediment. These facilities must be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps must be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority and Council officers.

33. Driveways and access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard 2890.1 – 2004 “Off-Street car parking”.

34. The Applicant must obtain a Section 73 notice of requirements under the Sydney Water Act 1994 . An application must be made through an authorised Water Servicing Coordinator. Please refer to “Your Business” section of Sydney Water’s web site at then the “e-developer” icon or telephone 13 20 92. Following application a “Notice of Requirements” will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

35. During construction, stormwater runoff must be disposed in a controlled manner that is compatible with the erosion and sediment controls on the site. Immediately upon completion of any impervious areas on the site (including roofs, driveways, paving) and where the final drainage system is incomplete, the necessary temporary drainage systems shall be installed to control runoff as far as the approved point of stormwater discharge. Such measures shall be to the satisfaction of the Principal Certifying Authority (PCA).

36. The vehicular crossing is to be 6 metres wide at the kerbline and perpendicular to the kerb alignment, with a minimum driveway width of 5.5 metres for a distance of 6 metres inside the property boundary.

37. The visitor parking space is to be indicated by signposting near the entrance to the development and its location is to be clearly marked on the pavement.

38. A Tree Preservation Order exists within the Ku-ring-gai Council area whereby the removal, lopping or destruction of any tree exceeding 5.0 metres in height or 4.0 metres in canopy spread (except where exempt as defined under Council’s Tree Preservation Order) without prior written consent of Council is prohibited.

Release of the Construction Certificate gives automatic approval to the removal ONLY of those trees located on the subject property within the footprint of a proposed new building/structure or within 3.0 metres of a proposed new dwelling. Where this application is for a building/structure other than a dwelling then ONLY trees within the area to be occupied by this building/structure may be removed. Other trees SHALL NOT be REMOVED or DAMAGED without an application being made under Council’s Tree Preservation Order.

39. Landscape works shall be carried out in accordance with Landscape Drawing No L01 #04007 Issue B prepared by Patio Landscape Design and dated 5 ^th February 2004 submitted with the Development Application, except as amended by the following:

§ The proposed turning bay between the two dwellings is to be reduced in length by 1.5m to increase the setback from the northern site boundary. Screen planting (shrubs) up to 3.0m is to be planted in this area.
§ The proposed drying area/clothesline for the rear dwelling is to be relocated to the eastern side of the dwelling.
§ Existing ground levels and grades are to be maintained beneath the canopy drip line of the Liquidambar styraciflua (Sweet Gum) located adjacent to the northern site boundary in the neighbouring property.
40. Canopy and/or root pruning of the following tree/s which is necessary to accommodate the approved building works shall be undertaken by an experienced Arborist/Horticulturist, with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate: Written authority/consent is to be given from the owner of the tree prior to ANY pruning work being undertaken.

Tree Location

Liquidambar styraciflua (Sweet Gum) Adjacent to northern site boundary in the neighbouring property at No 347 Mona Vale Road.

A restriction on the use of the land under s 88B of the Conveyancing Act 1919, burdening the property with the requirement that not more than 10% of the canopy of the Liquidambar styraciflua (Sweet Gum) above the burdened property shall be removed. The Council shall approve the terms of the instrument and the instrument registered on title with the power to vary or remove such restriction vested with the Council.

41. Tree roots between 10mm and 50mm diameter, severed during excavation, shall be cut cleanly by hand and the tree subsequently treated with a root growth hormone and wetting agent, by an experienced Arborist/Horticulturist with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate.

42. No tree roots of 50mm or greater in diameter located within the specified radius of the trunk/s of the following, tree/s shall be severed or injured in the process of any site works during the construction period.

§ Tree/Location Radius From Trunk
Liquidambar styraciflua (Sweet Gum) 10.0m
Adjacent to northern site boundary in neighbouring property

43. Paving works within the specified radius of the trunk/s of the following tree/s shall be constructed to ensure that existing water infiltration and gaseous exchange to the tree/s root system is maintained. Details for the paving shall be submitted to the Principal Certifying Authority for approval by a suitably qualified professional prior to the commencement of paving construction:

§ Tree/Location Radius From Trunk
Liquidambar styraciflua (Sweet Gum) 10.0m
Adjacent to northern site boundary in neighbouring property

44. To facilitate landscape amenity adjacent to the northern site boundary, the proposed turning bay/visitors parking area between the two dwellings is to be shortened/reduced in length by 1.5m.

45. All excavation carried out within the specified radius of the trunk/s of the following tree/s shall be hand dug:

§ Tree/Location Radius From Trunk
Liquidambar styraciflua (Sweet Gum) 10.0m
Adjacent to northern site boundary in neighbouring property

46. The applicant shall ensure that at all times during the construction period no activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order.

47. On completion of the LANDSCAPE WORKS/TREE PLANTING OR SCREEN PLANTING, a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to issue of final Certificate of Compliance.

48. All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works.

CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE

49. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate.

Note: Required if cost of works exceed $25,000.00.

50. It is a condition of consent that the applicant, builder or developer or person who does the work on this residential building project arrange the Builders Indemnity Insurance and submit the Certificate of Insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Council or other Principal Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the Builder's Indemnity Insurance for residential building work over the value of $12,000 and to satisfy the Council or other Principal Certifying Authority by the presentation of the necessary Certificate of Insurance so as to comply with the applicable requirements of Part 6 of the Home Building Act 1989. The requirements for the Builder's Indemnity Insurance does not apply to commercial or industrial building work or for residential work less than $12,000, nor to work undertaken by persons holding an Owner/Builder's Permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work).

51. The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project.

52. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area.

TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF ONE (1) ADDITIONAL DWELLINGS IS CURRENTLY $33,057.22. The amount of the payment shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council’s Section 94 Contributions Plan to reflect changes in land values, construction costs and the consumer price index.

This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council’s adopted Section 94 Contributions Plan for Residential Development, effective from 20 December 2000, calculated for additional person as follows:

1. Preparation of New Residents Kit $10.98
2. New Resident Survey $9.87
3. New child care centre including land acquisition and construction of facility) $252.13
4. Additions/alterations to Acron Rd child care centre for additional 20 places $2.41
5. New Library bookstock $17.95
6. New Public Art $2.93
7. Acquisition of Open Space - Wahroonga $7,851.00
8. Koola Park upgrade and reconfiguration $143.09
9. North Turramurra Sportsfield development $986.80
10. Section 94 2000-2003 Study and Interim Plan preparation cost $49.34
11. Section 94 Officer for period of Plan 2000-2003 $118.42

To obtain the total contribution figure the following table of occupancy rates is to be used:

OCCUPANCY RATES FOR DIFFERENT DWELLING SIZES

Small dwelling (under 75 sqm) 1.25 persons
Medium dwelling (75 - under 110 sqm) 1.75 persons
Large dwelling (110 – under 150sqm) 2.75 persons
Very Large dwelling (150sqm or more) 3.5 persons
New Lot 3.5 persons

53. The north facing windows in Bedroom 4 in each of Dwellings B and C shall be either frosting or alternatively provided with a high sill to a height of 1.5m above finished floor level. Revised plans indicating the above changes shall be submitted to the Principal Certifying Authority prior to the release of a Construction Certificate.
54. Prior to issue of the Construction Certificate, amended drawings are to be submitted to and approved by the Principal Certifying Authority which demonstrate that the driveway has a minimum width of 2.9 metres, and that a passing bay has been provided with a minimum width of 5.5 metres and minimum length of 6.0 metres. Splays at 45 degrees are to be shown at each end of the passing bay.
55. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), registered title documents demonstrating that the subject site is benefited by the necessary easement(s) for stormwater drainage as far as the approved point of discharge to the public drainage system. This information is to include, as a minimum, registered Title documents demonstrating the benefit and burdens, together with the instruments describing the terms of necessary drainage easement (s).
56. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), full hydraulic design documentation for the required interallotment drainage system from the subject property to the approved point of discharge to the public drainage system. Plans are to be prepared by a suitably qualified and experienced consulting civil/hydraulic engineer in accordance with Council’s Water Management DCP 47 (available on Councils website and at Customer Services) and the Plumbing and Drainage Code (AS3500). New pipes within the downstream easement drainage system must be sized to have adequate capacity to carry design flowrates, or detention system overflows where detention systems are to be provided, from the subject property. The following details must be included:
a. Plan view of interallotment system to scale showing dimensions, location and reduced levels of all pits, grates, pipe inverts, flushing facilities and exact point of discharge,
b. The contributing catchment calculations and supporting pipe sizing information,
c. Longitudinal section showing existing ground levels and proposed pipe invert levels, grades and flow capacities,
d. Surrounding survey detail including all trees within seven (7) metres of the proposed drainage system,
e. Means to preserve the root systems of trees within seven (7) metres of the drainage system.

57. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), full construction drawings for the proposed method of achieving Council storage volume requirements for an on-site stormwater detention/retention system. The storage volumes and design shall comply with Councils Water Management DCP 47 (available on the Council website and at Council customer services), the manufacturers’ specifications and the relevant plumbing codes . Rainwater tank(s) if used shall be designed to capture and retain runoff from a minimum 100m ² roof area for each 5000 litres of storage. Overflow shall revert to the main drainage system. The design and construction plans, with all supporting documentation, are to be prepared by a qualified and experienced civil/hydraulic engineer and may be incorporated on the overall site drainage plan.

58. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), construction design drawings and calculations for the property drainage system components. The property drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) shall be designed for a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) and shall be compatible with the necessary retention and/or detention devices. Plans and calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Councils Water Management Development Control Plan 47 available on the Council website and at Council, and AS 3500.2 - Plumbing and Drainage Code.

59. Prior to issue of the Construction Certificate footpath and driveway levels for the new vehicular crossing between the property boundary and road alignment must be obtained from Council. The footpath crossing is to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings". These are issued with alignment levels after completing the necessary application form at Customer Services and payment of the adopted fee.

The grading of such footpaths or driveways outside the property shall comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant and the alignment levels fixed by Council may affect these. Approval of this Development Application is for works wholly within the property. DA consent does not imply approval of footpath or driveway levels, materials or location within the road reserve regardless of whether this information is shown on the application documents.

The design and construction of the layback is to be in accordance with RTA requirements. A detail of this requirement is to be obtained from the Roads and Traffic Authority’s Project Services Manager, Traffic Projects Section on (02) 8814 2144. A copy of this detail should be submitted to Council with the driveway levels application.

Note 1: The construction of footpaths and driveways outside the property, in material s other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations.

Note 2: When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant Development Application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment. Failure to submit this information may delay processing.

60. The Construction Certificate shall not be released until a Site Management Plan is submitted to the Principal Certifying Authority and approved by a suitably qualified professional.

The plan shall indicate the planned phases of the construction work, erosion and drainage management, tree protection measures, areas nominated for storing materials, site access and where vehicle parking is proposed, during construction.

61. To preserve the following tree/s, footings of the proposed dwelling C shall be isolated pier or pier and beam construction within the specified radius of the trunk/s. The piers shall be located such that no roots of a diameter greater than 50mm shall be severed or injured in the process of any site works during the construction period. The beam shall be located on or above existing soil levels.

The location and details of the footings shall be submitted to Council’s Landscape Development Officer and be approved prior to release of the Construction Certificate.

§ Tree/Location Radius in Metres
Liquidambar styraciflua (Sweet Gum) 10.0m
Adjacent to northern site boundary in neighbouring property

CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING

62. Prior to the commencement of any works on site and prior to issue of the Construction Certificate the applicant must submit, for review by Council Engineers, a Traffic Control Plan. The plan must be prepared by a qualified civil/traffic engineer in accordance with the documents SAA HB81.1 – 1996 – “Field Guide for Traffic Control at Works on Roads – Part 1” and RTA “Traffic Control at Work Sites (1998)”. The following matters must be addressed:

Heavy vehicle routes

a. Safe points of vehicular access to the construction site and details of the proposed route of heavy vehicles servicing the site. Light traffic roads and those subject to a load limit are to be avoided.

Safe ingress and egress

a. How the site will be safely accessed by all vehicles servicing the site including provision for forward ingress and egress and details of traffic control for the site, including provision of a flagperson to control vehicle movements to and from the site.
b. How safe egress for vehicles will be controlled on those occasions where forward egress is not possible.
c. How pedestrians will be safely managed across the frontage of the site.

Parking control

a. The provision of on-site parking for employee, tradesperson and construction vehicles.

RTA concurrence

a. Evidence of consultation with and concurrence of the RTA for the Traffic Control Plan where the site is located on an arterial road.

Stages

a. The Traffic Control Plan must recognise the different stages of the work, including site establishment, bulk excavation, concrete pours and tradesperson and landscaper access, and specify the traffic management requirements of each stage.

NOTE 1: The Traffic Control Plan shall be submitted to and reviewed by Council, attention Development Engineer. A written acknowledgment from Council shall be obtained prior to the issue of the Construction Certificate. The Plan shall be prepared by a suitably qualified and experienced traffic consultant and be certified by this person as being in accordance with the requirements of the abovementioned documents and the requirements of this condition. Evidence of RTA concurrence, as required above, is to be lodged concurrently with Council.

NOTE 2: The traffic management measures contained in the approved plan shall be implemented in accordance with the plan prior to the commencement of any works on-site including excavation.

63. Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act, 1979 (the 'Act') are to be complied with:

a. A Construction Certificate is to be obtained in accordance with Section 81A(2)(a) of the Act.
b. A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A(2)(b) of the Act.
c. Council is to be notified in writing, at least two (2) days prior to the intention of commencing buildings works, in accordance with Section 81A(2)(c) of the Act.
d. Should the development be certified by a Principal Certifying Authority other than Council, a fee for each Part 4A Certificate is to be paid to Council on lodgement of those Certificates with Council.

64. To preserve the following tree/s, no work shall commence until the area beneath the canopy of the following tree/s excluding that area of the proposed driveway shall be fenced off for the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site:

Tree/Location Radius From Trunk
Lagerstroemia indica (Crepe Myrtle) 3.0m
Adjacent to southern site boundary

65. The tree protection fence shall be constructed of star pickets at 2.4 metre spacings and connected by four strands of 2mm wire at 300mm spacings to a minimum height of 1.5 metres prior to work commencing.

66. Upon completion of the installation of the required tree protection measures you are required to contact Council on telephone 9424 0888 or facsimile 9418 1117 to arrange an inspection of the site, in this regard a minimum of 24 hours notice is required. Following the carrying out of a satisfactory inspection and subject to the payment of all relevant monies and compliance with any other conditions of approval, work may commence.

67. Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works.

CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION

68. Prior to the release of any occupation certificate, a compliance certificate must be obtained from an accredited certifier, certifying that the building works for the building to be occupied comply with the plans and specifications approved by this development consent; and any construction certificate associated with this consent for the buildings to be occupied. If the PCA is not the Council, then this compliance certificate must be submitted to the Council at the same time as the occupation certificate is submitted to the Council in accordance with Clause 151(2) of the E P & A Act regulations.

Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment.
10. A sign shall be erected in a prominent position on the site which states the name and contact details of the Principal Certifying Authority.
11. To maintain existing ground levels all excavated material shall be removed from the site.
12. For the purpose of maintaining visual amenity, no permanent electricity supply poles are to be erected forward of the building setback without the prior Consent of Council. It is the onus of the applicant to consult with the authorised statutory electricity provider prior to construction commencing to ensure that direct connection to the building is possible. Details of any proposed permanent pole must be submitted to and approved by Council prior to installation.
13. Toilet facilities are to be provided within the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.
14. Stormwater runoff from all hard surfaces generating runoff or landscaped areas which are not at natural ground level shall be piped to the interallotment stormwater drainage line benefiting the subject site. The interallotment line is to be covered by the necessary easement for drainage which may exist or need to be created under this consent.
15. To maintain capacity of the public drainage system, an on site stormwater detention system must be provided in accordance with Council’s Stormwater Management Manual. If the system has been provided at Stage 1, this is to be clearly indicated on the plans. An overflow is to be incorporated that will direct any excess flow to the downstream drainage system and subsoil drainage is to be provided from the underside of the sediment control sump to the outlet line or other approved location.

The system is to be cleaned regularly and maintained to the satisfaction of Council.

NOTE 1: The on site stormwater detention and property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist’s certification that such excavation will not affect the longevity of the subject tree(s).

NOTE 2: If the applicant wishes to vary the prescribed storage and outflow volumes contained in Council’s Stormwater Management Manual, a detailed analysis must be provided following the guidelines set out in Council’s requirements fro on site detention with full computations accompanying the submission including a flood routing analysis.

NOTE 3: All roof, driveway and other hard surface runoff water is to be intercepted and directed to the on site stormwater detention system. If some areas of hard surface are unable to be directed to the detention system an adjustment to the rate of discharge is to be made to attain the required site discharge.

NOTE 4: If landscaped surface detention system is used the storage volume required is to be increased by 20%.

NOTE 5: The standard Council on site stormwater detention calculation sheet is to be completed and included on design drawings. This is available from Council upon request.

OR
An on-site stormwater detention and/or retention system(s) must be provided for each dwelling in accordance with Council’s requirements described in chapter 6 of Councils Water Management Development Control Plan 47, available in hard copy at Council and on the Council website. Separate systems are to be provided for each residence, except where a single combined system may be located in a common location readily accessible by both owners (such as under a shared driveway). In this case appropriate cross burdens are to be created on title(s) as necessary.

16. All public footways and roadways fronting and adjacent to the site are to be maintained in a safe condition at all times during the course of the development works. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to the public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where circulation is diverted on to the roadway, clear directional signage and protective barricades must be installed in accordance with AS1742-3 1996 “Traffic Control Devices for Work on Roads” . If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

17. The provision of temporary sediment and erosion control facilities and measures are to be installed, prior to the commencement of any works on the site to eliminate unnecessary erosion and loss of sediment. These facilities must be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps must be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority and Council officers.

18. Driveways and access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard 2890.1 – 2004 “Off-Street car parking”.

19. The Applicant must obtain a Section 73 Compliance Certificate under the Sydney Water Act 1994 . An application must be made through an authorised Water Servicing Coordinator. Please refer to “Your Business” section of Sydney Water’s web site at then the “e-developer” icon or telephone 13 20 92. Following application a “Notice of Requirements” will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

20. During construction, stormwater runoff must be disposed in a controlled manner that is compatible with the erosion and sediment controls on the site. Immediately upon completion of any impervious areas on the site (including roofs, driveways, paving) and where the final drainage system is incomplete, the necessary temporary drainage systems shall be installed to control runoff as far as the approved point of stormwater discharge. Such measures shall be to the satisfaction of the Principal Certifying Authority (PCA).

21. The vehicular crossing is to be 6 metres wide at the kerbline and perpendicular to the kerb alignment, with a minimum driveway width of 5.5 metres for a distance of 6 metres inside the property boundary.

22. The visitor parking space is to be indicated by signposting near the entrance to the development and its location is to be clearly marked on the pavement.
23. A Tree Preservation Order exists within the Ku-ring-gai Council area whereby the removal, lopping or destruction of any tree exceeding 5.0 metres in height or 4.0 metres in canopy spread (except where exempt as defined under Council’s Tree Preservation Order) without prior written consent of Council is prohibited.

Release of the Construction Certificate gives automatic approval to the removal ONLY of those trees located on the subject property within the footprint of a proposed new building/structure or within 3.0 metres of a proposed new dwelling. Where this application is for a building/structure other than a dwelling then ONLY trees within the area to be occupied by this building/structure may be removed. Other trees SHALL NOT be REMOVED or DAMAGED without an application being made under Council’s Tree Preservation Order.

24. Landscape works shall be carried out in accordance with Landscape Drawing No L01 #04007 Issue B prepared by Patio Landscape Design and dated 5 ^th February 2004 submitted with the Development Application. The landscape works shall be completed prior to issue of the final Certificate of Compliance and be maintained in a satisfactory condition at all times.

25. Tree roots between 10mm and 50mm diameter, severed during excavation, shall be cut cleanly by hand and the tree subsequently treated with a root growth hormone and wetting agent, by an experienced Arborist/Horticulturist with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate.

26. The applicant shall ensure that at all times during the construction period no activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order.

27. On completion of the LANDSCAPE WORKS/TREE PLANTING OR SCREEN PLANTING, a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to issue of final Certificate of Compliance.

28. All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works.

CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE

29. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate.

Note: Required if cost of works exceed $25,000.00.

30. It is a condition of consent that the applicant, builder or developer or person who does the work on this residential building project arrange the Builders Indemnity Insurance and submit the Certificate of Insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Council or other Principal Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the Builder's Indemnity Insurance for residential building work over the value of $12,000 and to satisfy the Council or other Principal Certifying Authority by the presentation of the necessary Certificate of Insurance so as to comply with the applicable requirements of Part 6 of the Home Building Act 1989. The requirements for the Builder's Indemnity Insurance does not apply to commercial or industrial building work or for residential work less than $12,000, nor to work undertaken by persons holding an Owner/Builder's Permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work).

31. The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project.

32. Prior to issue of the Construction Certificate footpath and driveway levels for any fully new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Council. Such levels are only able to be issued by Council under the Roads Act 1993 . All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings" or as specified by Council. These are issued with alignment levels after completing the necessary application form at Customer Services and payment of the adopted fee.
33. The grading of such footpaths or driveways outside the property shall comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant and the alignment levels fixed by Council may affect these. Approval of this Development Application is for works wholly within the property. DA consent does not imply approval of footpath or driveway levels, materials or location within the road reserve regardless of whether this information is shown on the application documents.

Note 1: The construction of footpaths and driveways outside the property, in materials other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations.
Note 2: When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant Development Application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment. Failure to submit this information may delay processing.

34. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area.

TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF ONE (1) ADDITIONAL DWELLINGS IS CURRENTLY $33,057.22. The amount of the payment shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council’s Section 94 Contributions Plan to reflect changes in land values, construction costs and the consumer price index.

This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council’s adopted Section 94 Contributions Plan for Residential Development, effective from 20 December 2000, calculated for additional person as follows:

1. Preparation of New Residents Kit $10.98
2. New Resident Survey $9.87
3. New child care centre including land acquisition and construction of facility) $252.13
4. Additions/alterations to Acron Rd child care centre for additional 20 places $2.41
5. New Library bookstock $17.95
6. New Public Art $2.93
7. Acquisition of Open Space - Wahroonga $7,851.00
8. Koola Park upgrade and reconfiguration $143.09
9. North Turramurra Sportsfield development $986.80
10. Section 94 2000-2003 Study and Interim Plan preparation cost $49.34
11. Section 94 Officer for period of Plan 2000-2003 $118.42

To obtain the total contribution figure the following table of occupancy rates is to be used:

OCCUPANCY RATES FOR DIFFERENT DWELLING SIZES
Small dwelling (under 75 sqm) 1.25 persons
Medium dwelling (75 - under 110 sqm) 1.75 persons
Large dwelling (110 – under 150sqm) 2.75 persons
Very Large dwelling (150sqm or more) 3.5 persons
New Lot 3.5 persons

35. To ensure reasonable levels of amenity are maintained within the proposed dwelling, double glazing shall be provided to the television room within the western and southern elevations of the dwelling. Additionally the windows serving Bedroom 3 within the northern elevation shall also be provided with double glazing.

36. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), full construction drawings for the proposed method of achieving Council storage volume requirements for an on-site stormwater detention/retention system. The storage volumes and design shall comply with Councils Water Management DCP 47 (available on the Council website and at Council customer services), the manufacturers’ specifications and the relevant plumbing codes. Rainwater tank(s) if used shall be designed to capture and retain runoff from a minimum 100m ² roof area for each 5000 litres of storage. Overflow shall revert to the main drainage system. The design and construction plans, with all supporting documentation , are to be prepared by a qualified and experienced civil/hydraulic engineer and may be incorporated on the overall site drainage plan.

37. Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), construction design drawings and calculations for the property drainage system components. The property drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) shall be designed for a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) and shall be compatible with the necessary retention and/or detention devices. Plans and calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Councils Water Management Development Control Plan 47 available on the Council website and at Council, and AS 3500.2 - Plumbing and Drainage Code.
38. The Construction Certificate shall not be released until a Site Management Plan is submitted to the Principal Certifying Authority and approved by a suitably qualified professional.

The plan shall indicate the planned phases of the construction work, erosion and drainage management, tree protection measures, areas nominated for storing materials, site access and where vehicle parking is proposed, during construction.

39. An acoustic report is to be prepared by a suitably qualified acoustic consultant detailing the measures to be provided to ensure that the dwelling complies with AS2107-2000. The report is to be submitted to the PCA for approval prior to the release of the Construction Certificate. All works required by the report are to be completed and the works certified by a suitably qualified acoustic consultant prior to the release of the Occupation Certificate.

CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING
40. Prior to the commencement of any works on site and prior to issue of the Construction Certificate the applicant must submit, for review by Council Engineers, a Traffic Control Plan. The plan must be prepared by a qualified civil/traffic engineer in accordance with the documents SAA HB81.1 – 1996 – “Field Guide for Traffic Control at Works on Roads – Part 1” and RTA “Traffic Control at Work Sites (1998)”. The following matters must be addressed:

Heavy vehicle routes

a. Safe points of vehicular access to the construction site and details of the proposed route of heavy vehicles servicing the site. Light traffic roads and those subject to a load limit are to be avoided.

Safe ingress and egress

a. How the site will be safely accessed by all vehicles servicing the site including provision for forward ingress and egress and details of traffic control for the site, including provision of a flagperson to control vehicle movements to and from the site.
b. How safe egress for vehicles will be controlled on those occasions where forward egress is not possible.
c. How pedestrians will be safely managed across the frontage of the site.

Parking control

a. The provision of on-site parking for employee, tradesperson and construction vehicles.

RTA concurrence

a. Evidence of consultation with and concurrence of the RTA for the Traffic Control Plan where the site is located on an arterial road.

Stages

a. The Traffic Control Plan must recognise the different stages of the work, including site establishment, bulk excavation, concrete pours and tradesperson and landscaper access, and specify the traffic management requirements of each stage.

NOTE 1: The Traffic Control Plan shall be submitted to and reviewed by Council, attention Development Engineer. A written acknowledgment from Council shall be obtained prior to the issue of the Construction Certificate. The Plan shall be prepared by a suitably qualified and experienced traffic consultant and be certified by this person as being in accordance with the requirements of the abovementioned documents and the requirements of this condition. Evidence of RTA concurrence, as required above, is to be lodged concurrently with Council.
NOTE 2: The traffic management measures contained in the approved plan shall be implemented in accordance with the plan prior to the commencement of any works on-site including excavation.

41. Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act, 1979 (the 'Act') are to be complied with:

a. A Construction Certificate is to be obtained in accordance with Section 81A(2)(a) of the Act.
b. A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A(2)(b) of the Act.
c. Council is to be notified in writing, at least two (2) days prior to the intention of commencing buildings works, in accordance with Section 81A(2)(c) of the Act.
d. Should the development be certified by a Principal Certifying Authority other than Council, a fee for each Part 4A Certificate is to be paid to Council on lodgement of those Certificates with Council.

42. Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works.

CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION

43. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, any damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) must be fully repaired to the satisfaction of Council Engineers at no cost to Council or the Roads & Traffic Authority.
44. Prior to issue of an Occupation Certificate, the following must be provided to Council (attention Development Engineer):

a. A copy of the approved Construction Certificate stormwater detention/retention design for the site, and
b .A copy of the works-as-executed drawing of the as-built on-site detention/retention system, and
c. The Engineer’s certification of the as-built system.

This condition is required so Council may maintain its database of as-constructed on-site stormwater detention systems, and also applies if the Principal Certifying Authority (PCA) is not the Council.

45. Prior to issue of an Occupation Certificate the Section 73 Sydney Water compliance certificate must be obtained and submitted to the Principal Certifying Authority (PCA).
46. Prior to issue of an Occupation Certificate, Certification and a Works-as-Executed (WAE) plan, in relation to the as-built on-site detention/ retention and re-use are to be submitted to the Principal Certifying Authority (PCA) for approval. Certification is to be provided by a suitably qualified consulting civil/hydraulic engineer and the WAE plan is to be prepared by a registered surveyor.

The certificate is to specifically acknowledge compliance of the on-site detention system with the approved Construction Certificate plans and also compliance with the design requirements of appendix 5 in Councils Water Management DCP 47 - “Design of on-site detention systems”. The Works-as-Executed details shall be marked in red on the approved Construction Certificate design for the on-site detention system, and shall specifically include:

§ As constructed levels in comparison to design levels
§ As built location of all detention devices on the property (plan view) and distances to nearest adjacent boundaries, buildings and easements
§ As built locations of all pits and grates in the detention system, including dimensions.
§ The size of the orifice or pipe control fitted.
§ Dimensions of the discharge control pit and access grates
§ The achieved capacity of the detention storage and derivative calculation.
§ The maximum depth of storage over the outlet control.
§ Top water levels of storage areas and RL’s at overflow point(s)
47. Prior to issue of an Occupation Certificate (and at the completion of works), the applicant shall submit certification from a consulting civil/hydraulic engineer to the Principal Certifying Authority (PCA), that:

a. Construction of the stormwater drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) has been carried out by a licensed plumbing contractor, and
b. The works have been completed in accordance with the approved Construction Certificate drainage plans and the Plumbing and Drainage Code AS3500.3.2, and
c. All enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

48. A Works-as-Executed (WAE) drawing of the property stormwater drainage system is to be prepared by a registered surveyor and submitted to the Principal Certifying Authority (PCA) prior to issue of an Occupation Certificate. The WAE plan shall show the following as built details, marked in red on the approved construction certificate stormwater drawings:

a. As built reduced surface and invert levels for all drainage pits and connection points.
b. As built reduced level(s) at the approved point of discharge to the public drainage system.
c. Gradients of drainage lines, materials and dimensions.

BUILDING CONDITIONS
49. The following are required details and must be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify.

a. Details prepared by a practicing structural engineer for all or any reinforced concrete, structural steel or timber framing.
b. Wind bracing details complying with AS 1684-1992 National Timber Framing Code, AS 1170.2-1989 Wind Load Code or AS 4055-1992 Wind Loads for Housing Code.
c. Upper floor joist details, engineered or complying with AS 1684-1992 National Timber Framing Code.
d. Retaining walls and associated drainage.
e. Wet area waterproofing details complying with the Building Code of Australia.
f. Mechanical ventilation details complying with Australian Standard 1668-1993 Mechanical Ventilation & Airconditioning.
g. Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code.
h. Stormwater disposal details complying with Council's Stormwater Management Manual and/or other conditions of this consent.

50. All structural timber members subject to weather exposure shall have a durability class rating of 2 or better in accordance with Australian Standard 1684.2-1999 (National Timber Framing Code), or be preservative treated in accordance with Australian Standard 1604-1980 (Preservative Treatment for Sawn Timbers, Veneers and Plywood).

51. For the purpose of safety and convenience a balustrade of 1.0 metre minimum height shall be provided to any landing, verandah, balcony or stairway of a height exceeding 1.0 metre above finished ground level. The design may consist of vertical or horizontal bars but shall not have any opening exceeding 125mm. For floors more than 4.0 metres above the ground, any horizontal elements within the balustrade or other barrier between 150mm and 760mm above the floor must not facilitate climbing.
52. For the purpose of safe ingress and egress the stairs are to be constructed within the following dimensions:

Risers: Maximum 190mm Minimum 115mm
Going (Treads): Maximum 355mm Minimum 240mm

Note: Dimensions must also comply with limitations of two (2) Risers and one (1) going equalling a maximum 700mm or minimum 550mm. The Risers and Goings shall be uniform throughout the length of the stairway.

53. For fire safety an automatic fire detection and alarm system shall be installed throughout the dwelling in accordance with the following requirements:

a. A smoke alarm system complying with Part 3.7.2 of the Building Code of Australia Housing Provisions; or
b. Smoke alarms which:

i. comply with Australian Standard 3786 or listed in the Scientific Services Laboratory Register of Accredited Products (all accredited products should have scribed on them the appropriate accreditation notation); and
ii. are connected to the mains and have a standby power supply; and
iii. are installed in suitable locations on or near the ceiling and as prescribed under Part 3.7.2 of the Building Code of Australia Housing Provisions.

To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority.

54. The amended landscape plan shall provide for a screening hedge to mature to a height of 1.2m outside Bedroom 1 of Dwelling A.
S J Watts
Commissioner of the Court

CITATION:	Saman Rahmani v Ku-ring-gai Council [2004] NSWLEC 481
PARTIES:	APPLICANT: Saman Rahmani RESPONDENT: Ku-ring-gai Council
FILE NUMBER(S):	10388, 10391 and 10392 of 2004
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Easement under s 88B of the Conveyancing Act 1919 - RoW conditions - Solar access - Privacy - Private open space - Liquidambar and landscaping - Passing bay - Streetscape - Separation between Dwellings A and B and· Quality and quantity of solar access to Dwelling A's private open space.
LEGISLATION CITED:	Ku-ring-gai Planning Scheme Ordinance, (KPSO) - State Environmental Planning Policy No 53 - Metropolitan Residential Development, (SEPP53) - State Environmental Planning Policy No. 55-Site remediation, (SEPP55) - Sydney Regional Environmental Plan No 20 Hawkesbury Nepean River (No 2 - 1997), (SREP20) - Development Control Plan 43, (DCP43) - Development Control Plan 40?Waste management, (DCP40) - Dual Occupancy Development Control Code 2/2003, (Code) - Ku-ring-gai Notification Policy, (Policy) - Environmental Planning and Assessment Act 1979, ss79C and 97
CASES CITED:
DATES OF HEARING:	26/08/2004
DATE OF JUDGMENT:	08/26/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr G McKee, solicitor SOLICITORS: McKees Legal Solutions RESPONDENT: Mr P R Rigg, solicitor SOLICITORS: Deacons

Tree	Location
Liquidambar styraciflua (Sweet Gum)	Adjacent to northern site boundary in the neighbouring property at No 347 Mona Vale Road.