Smartspace Consultants Pty Limited v Parramatta City Council

[2004] NSWLEC 44

Land and Environment Court

of New South Wales

CITATION:

Smartspace Consultants Pty Limited v Parramatta City Council [2004] NSWLEC 44

PARTIES:

APPLICANT
Smartspace Consultants Pty Limited

RESPONDENT
Parramatta City Council

FILE NUMBER(S):

11477 of 2003

CORAM:

Watts C

KEY ISSUES:

Development Application :- 'Multi unit housing' development
The character of the proposal in the locality and the zone objectives
Certainty and imminence of the draft plan
Issues raised by objectors

LEGISLATION CITED:

Parramatta Local Environmental Plan 2001, (PLEP2001)
Parramatta Development Control Plan, (PDCP2001)
Environmental Planning and Assessment Act 1979, ss 79C and 97

CASES CITED:

DATES OF HEARING:

11/02/2004

DATE OF JUDGMENT:

02/18/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr G L Castellan, solicitor
of Coleman & Greig

RESPONDENT
Mr C C Gough, solicitor
of Storey & Gough

JUDGMENT:

In the Land and
Environment Court
of New South Wales

Smartspace Consultants Pty Limited
v
Parramatta City Council

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Parramatta City Council, (the council) of a development application to demolish the existing dwelling on the land, to erect a ‘multi unit housing’ development comprising four (4) dwellings and to strata subdivide Lot 5 DP 243258, being No 19 Constitution Road, Wentworthville.

2 Around sixty residents attended the on-site hearing and some gave evidence.

3 I have concluded that the application should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979 , and there are no adverse environmental impacts that would require me to refuse the application.


The land
4 The land is situated on the northwestern side of Constitution Road, Wentworthville. It is rectangular in plan with a frontage to Constitution Road of around 30.48m and a depth of 36.575m giving an area of some 1,114.8m2. The land has a slight fall from the north to the south towards the Constitution Road frontage.

5 Erected on the land is a single-storey dwelling with outhouses. This dwelling is not heritage listed and there are no heritage-listed properties in the vicinity.

6 Vehicular access to the rear carport is via a driveway on the northeastern boundary. There are no significant trees or vegetation on the land.

7 Adjoining and nearby development is characterised by mainly of single-storey dwelling houses on large allotments, although there is a two storey dwelling two doors to the southwest in Constitution Road.

8 The land is within walking distance of a variety of local shops on the corner of Emma Crescent and Hollis Street and public open space including Parabianga Reserve to the south east and Binalong Park a few streets to the west.


Relevant planning controls

Parramatta Local Environmental Plan 2001, (PLEP2001)
9 The land is zoned Residential 2(b) under the provisions of the PLEP2001, and the proposal is permissible with consent as ‘multi unit housing’ under the development control tables of cl 16 of that instrument. Under that clause, [Note: Exhibit 7 p 8]


...[c]onsent must not be granted to the carrying out of development on land to which this plan applies, unless the consent authority is of the opinion that the carrying out of the development is consistent with the objectives of the zone within which the development is proposed to be carried out.

10 The relevant objectives of the 2(b) zone of the PLEP2001 also are found in cl 16:

(a) to enhance the amenity and characteristics of the established residential areas; and
(b) to encourage redevelopment of low density housing forms, including dual occupancies and multi unit housing, where such redevelopment does not compromise the amenity of the surrounding residential areas or the natural and cultural heritage of the area; and
(c) to ensure that building form including that of alterations and additions, is in character with the surrounding built environment; and
(d) ...
(e) ...
(f) to ensure the road network has the capacity to cater for increased development.


11 Clause 39 of the PLEP2001 provides that consent shall not be granted to ‘multi unit housing’ where the height of the development would exceed two storeys.

12 Clause 40 of the PLEP2001 provides that ‘multi unit housing’ developments must not have a floor space ratio, (FSR) exceeding 0.6:1.


Parramatta Development Control Plan, (PDCP2001)
13 The PDCP2001 provides more detailed provisions for assessing development applications than are contained in the PLEP2001. The controls provided in Parts 4 and 5 of the PDCP2001 are relevant to ‘multi unit housing’.


Draft Parramatta Local Environmental Plan 2003, (DLEP)
14 The council has prepared the DLEP to change the zoning of the land from Residential 2(b) to Residential 2(a). There is a proposed savings clause which would capture the application however, the council’s strategic planner gave evidence that the DLEP could not be considered ‘certain and imminent’.


The proposal and its history
15 Development application No DA03/1678 was lodged with the respondent council on 2004.

16 The proposal is described in plans prepared by Carmelo Corrente Pty Limited Interior and Building Design and is to erect four (4) dwellings, Unit 1 with 2 bedrooms; Units 2 and 3 with 3 bedrooms; Unit 4 with 4 bedrooms and basement car parking to accommodate six (6) cars (including one (1) visitor/ car wash bay) accessed via a single combined ingress and egress along the northern boundary from Constitution Road. Bike stands are also proposed within the basement.

17 A ‘common’ landscaped area is proposed within the front setback area and each dwelling would be provided with a private courtyard at the rear, accessed via stairs leading from the family room of each dwelling.

18 Pedestrian access would be ramped up from the footpath to a verandah at the front to each dwelling. Stairs at the front would provide fire escapes from the basement parking level. Porches with pergolas over would be provided for each dwelling at the rear.

19 Setbacks would vary, with the primary front setback to Constitution Road being 9m and to the common porch being 6.0m. Side setbacks to the main walls of the proposal would be 1.5m on the northern side and 1.52m on the southern side and to the rear the setback would be 12.095m.

20 It is proposed to strata subdivide the four (4) dwellings once erected.


Notification
21 The application was notified to nearby owners and occupants and the council received eleven submissions and pro-forma letters. Concerns related to:


• Zone objectives;
• Terraced housing form of development;
• Building form and appearance;
• Materials;
• Character of the locality;
• Traffic and parking;
• Side boundary setbacks;
• Overshadowing impacts;
• Privacy impacts;
• Noise impacts;
• Safety and security;
• Fencing;
• Flooding;
• Soil destabilisation;
• Asbestos removal;
• Inadequacy of infrastructure; and
• Inconsistencies of documentation.

22 Having considered the application under s 79C of the Environmental Planning and Assessment Act 1979 and having addressed all the issues raised by the residents the council’s town planner in Exhibit 5, found no significant non-compliances.


The council’s decision
23 The council had not determined the matter when the appeal was filed.


The hearing
24 The appeal was filed on 12 February 2004and is a deemed refusal.

25 At the hearing the court heard evidence on behalf of the respondent council from:


• Mr M Occhiuzzi, Senior Project Officer, Integrated Planning, Parramatta City Council;
• Dr G Kanthan, resident of No 13 Hollis Road, Wentworthville;
• Mr W B Sexton, resident of No 17A Constitution Road, Wentworthville;
• Mr R A Huxley, resident of No 19A Constitution Road, Wentworthville;
• Mr A J Balanda, resident of No 12 Constitution Road, Wentworthville; and
• Many other interested residents.
26 On behalf of the applicant Mr D C Jones, consultant town planner prepared written expert evidence.


The issues
27 Only "...issues raised by objectors" were pursued in the proceedings. [Note: Exhibit 8: Statement of issues dated 27 January 2004].

28 The following emerged as the salient issues:


• The character of the proposal in the locality;
• Non-compliance with the zone objectives;
• Certainty and imminence of the draft plan;
• Issues raised by objectors.

The evidence and findings

The character of the proposal in the locality and non-compliance with the zone objectives
29 The council’s planning assessment report on the application was tendered and came to Court as Exhibit 5 and in this the council’s planning officer found that there were no significant environmental impacts resulting from the proposal. There was no expert evidence to the contrary and the Court heard from concerned residents. Mr Jones, for the applicant, had addressed the comments of the residents in Exhibit E. Based on that evidence and after having again visited the land, I would not refuse the application for any non-compliance with the zone objectives. I am satisfied that despite the proposed mooted change back to 2(a) the proposal would fit in well with the streetscape and the character of the area and I would not refuse the application for this reason.


Certainty and imminence of the draft plan
30 Mr M Occhiuzzi, Senior Project Officer, Integrated Planning, Parramatta City Council, confirmed that the DLEP had been forwarded to DIPNR for reporting to the Minister. He was unable to confirm that the DLEP was ‘certain and imminent’. He said, “I can’t say with any certainty that it is imminent. We have now responded and I can’t say that it is ‘certain and imminent’”.

31 The plan also has a savings clause that would allow the present application to be considered under the PLEP2001.


SEPP1 objection
32 The applicant submitted a State Environmental Planning Policy No 1 objection, (SEPP1) to the height standard in the PLEP2001. Mr Gough submitted that the height of the ground floor of the proposal would be no higher than 1m above the lowest point on the land and that the council is rectifying the height definition in the PLEP to take account of ‘the anomaly’.

33 The council is seeking to amend its plan in order to bring it in line with the height measurement that would permit the proposed height. There was no dispute between the parties that the objection is well founded. I am satisfied that the objection is well founded and in the circumstances of this case compliance with the standard would be unreasonable or unnecessary.


Issues raised by objectors
34 I have carefully considered the evidence of the resident objections contained in Exhibit 3 and especially the evidence given on site. Notes were taken of that evidence and transcribed during the hearing. Nearby residents such as:

35 Dr Kanthan commented that he:


• lives behind the development site and bought the house 6 months ago and at that time he had spoken to council officers about future development and was told there were no plans for any development nearby;
• would not have bought his adjoining property if he had known about the proposal?
• had concerns for four families overlooking his property and that the value of his property would decease;
• was concerned about the two-storey nature of the development proposal;
• agreed that he had been represented by a lawyer at the purchase of his property and was aware of the zoning and the possibility of town houses being erected nearby;
• did not think that the bedrooms on the first floor made a difference in terms of privacy as people would still overlook; and
• agreed that landscaping would ameliorate concerns for privacy especially at ground level.


36 Mr Sexton described the area as being “quiet and peaceful” and that he had not been notified of the change in zoning from Residential 2(a) to Residential 2(b) that would permit the proposal. He referred to a meeting on 15 December 2003 when the councillors agreed that residents had not been properly notified of the change. He said that the council had agreed to change the zoning back to 2(a) and that it had acknowledged that it had made a zoning error in the past. He read from the letter in Exhibit 1 and he understood that the Minister is in favour of the change in zoning and gazettal is close.

37 He considered the development would be out of character and more in keeping with inner city development near railway stations. He was of the opinion that the façade was dissimilar to facades of freestanding buildings in the locality and did not respect the setback in the street. He was concerned about his privacy and that mature plants would have to be removed along his boundary to make way for the development. He was also concerned that the excavation for the proposed basement car park might disturb the footings of his house.

38 He believed that the development would cause an increase in parking and rubbish bins in the street. He held concerns about water pressure in the area.

39 He considered that the proposal would be an overcapitalisation of the double block and that there were no other similar buildings in the area. He said that the change would affect the value of properties in the area. In cross-examination he was shown the treatment on the southeastern side of the proposal and he maintained that there would be an invasion of his privacy particularly as a result of the noise of cars accessing the underground car parking area near his property.

40 Mr Huxley said that he had lived at the same address since 1967 and raised a family there and enjoyed a peaceful neighbourhood. He said that he was concerned about the development causing an upheaval in the area and about additional traffic likely to be generated by the proposal. He held concern that as his house had the same street number (19A Constitution Road) as the proposal and he would be disturbed by people seeking to deliver to the dwellings in the proposal mistaking the address. He was concerned about the venting of the underground car park in proximity to his living. He pointed out that the proposal was in front of the existing building alignment and as a result would restrict breezes to his property. He was also concerned about overshadowing of his property.

41 He supports the rezoning to 2(a) and considers that if that does not proceed he should change the type of building on his lot to fit in with the new development. He supported the comments made by Mr Sexton.

42 Mr Balanda explained that he was part of an action group and was on the rezoning committee. He was aware that the council had forwarded the rezoning to the department and DIPNR had been responded to it. He believed that the rezoning was ‘imminent’.

43 With respect to the development itself he was concerned for the impact on the streetscape and amenity. He explained that amenity meant “…enjoyment of something” , and neighbours would not enjoy having the proposal erected near them. Whilst he did not have a problem with the height of development it was the overall size of the development with particular reference to the side setbacks that was of concern.

44 From his personal point of view he said that he would be affected by traffic noise, and the “slap slap” of cars passing in the street. He estimated that at least each household in the proposal would have two cars and that there would be on-street car parking problems. He referred to safety and security issues and with this number of people you would not know each and they “…might be up to no good” . He considered the streetscape would not blend in and contravened the PLEP2001, which required it to respect its neighbours. It did not fit in and was an overdevelopment of the land and that the building does not comply with the DCP that requires side setbacks of 6m. He urged on the Court that the rules should be complied with.

45 Other residents living further afield, also gave evidence in support of their written objections.

46 Mr Castellan submitted in respect of the resident evidence that:

• Dr Kanthan, in particular, was concerned for overlooking and privacy. He conceded that the landscaping [along the common boundary] would alleviate his privacy problems from the ground floor but not from the upstairs rooms. Mr Castellan submitted that a single dwelling could be built in the same location and the same issues would arise. Dr Kanthan, he submitted, was well aware of [the prospect of ‘multi unit housing’ development on the land] as he had obtained independent legal advice [when he purchased] and was aware of the zoning.
• Mr Sexton was more concerned about the zoning and the change from 2(a) to 2(b) and [that he was] not properly notified. A number of residents were concerned more about the zoning and not this development.
• Mr Huxley at 19A raised issue with traffic. There is no expert evidence of that. Further he raised issue with overshadowing and nothing has changed there since the first application considered by the Court and the building [would have an] identical impact on that [southwestern] side. Mr Huxley has a drive with carport on that side and that is the only thing impacted by overshadowing.
• Mr Balanda spoke about the development and the impact on the area as a whole and the character of adjoining development.
• The rest of the residents raised general character and streetscape that has been addressed elsewhere.

47 Mr Gough submitted that the applicant had addressed Mr Sexton’s concern about proximity of the proposal to his dwelling; however, the same could not be said of the southwestern side. He submitted that the overshadowing of Mr Huxley’s dwelling and shade on his house and the likelihood of mould is a concern.

48 Mr Gough also submitted that the zone objectives require ‘multi unit housing’ to be in character.

49 The resident evidence that I should refuse the application does not persuade me.

50 The potential overlooking of Dr Kanthan’s property would be from bedroom windows removed from his dwelling around m and if the rear boundary is planted as proposed and I am satisfied that privacy impacts would be adequately address if the windows were dressed with curtains and blinds.

51 The applicant had addressed the concerns of Mr Sexton’s concerns and I note the submissions of Mr Gough in this regard.

52 The potential overshadowing of Mr Huxley’s property is mainly over the driveway near the common boundary with the land and I am satisfied that I should not refuse the application for this reason.

53 It is a ‘multi unit housing’ development permitted in the zone and adequate landscaping is proposed. I am satisfied that the proposal would respect the existing and likely future character of the area.

54 For the above reasons, the appeal is upheld.


Conditions
55 The conditions are those in Exhibit 6 and were agreed between the parties.


Orders
56 My orders are:

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

2. The State Environmental Planning Policy No 1 objection, to the height standard in the PLEP2001 is upheld.

3. Development application DA03/1678 lodged with the respondent council on 2004 to demolish the existing dwelling on the land, to erect a ‘multi unit housing’ development comprising four (4) dwellings and to strata subdivide at Lot 5 DP 243258, being No 19 Constitution Road, Wentworthville, is approved subject to Conditions 1 to 59 in Annexure A.

4. The exhibits with the exception of Exhibits A, B, J and 2 are returned.
S J Watts
Commissioner of the Court
sw

Conditions of development consent

Annexure A

Smartspace Consultants Pty Limited
v
Parramatta City Council

DA03/1678 – 19 Constitution Road, Wentworthville Development application (DA03/1678) for the demolition of the existing building and the erection of a ‘multi unit housing’ development containing 4 dwellings, with basement car parking and strata subdivision on lot 5 DP 243258, known as No 19 Constitution Road, Wentworthville, in accordance with the following Plans prepared by Carmelo Corrente:

• Site and Ground Floor Plan development application-01-1040 Revision A,
• Carpark Plan DA-02-1040 Revision H,
• First Floor and Section Plan DA-04-1040,
• Elevation Plan DA-04-1040 Revision H,
• Shadow Diagram DA-05-1040 Revision H,
• Construction Notes and Drawings List Plan N04810-CP-01
• Plan of Works Plan N04810-CP-02
• Plan of Works – Basement Plan N04810-CP-03
• Erosion & Sediment Control Plan N04810-CP-04
• Landscape Plan prepared by Rural Design Plan 202811
be approved subject to the following conditions.
(1) All building work must be carried out in accordance with the provisions of the Building Code of Australia .
Reason: To comply with the Environmental Act Planning and Assessment Regulations .

(2) Residential Building work (within the meaning of the Home Building Act 1989 ) must not be carried out unless the principal certifying authority for the development to which the work relates:


(a) In the case of work to be done by a licensee under that Act; has been informed in writing of the licensee’s name and contractor licence number; and is satisfied that the licensee has complied with the requirements of Part 6 of the Act, OR

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

Note: A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1`989 that states that a person is the holder of an insurance policy issued for the purpose of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

Reason: To comply with the Home Building Act 1989 .

(3) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. All excavations associated with the erection or demolition for a building must be properly guarded and protected to prevent them from being dangerous to life or property.
Reason: To ensure safety.

(4) Where soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided inclusive of adequate provision for drainage.
Reason: To prevent soil movement.

(5) If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land; the person causing the excavation to be made; must preserve and project the building from damage; and if necessary, must underpin and support the building in an approved manner.


At least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made must give notice of intention to do so to the owner of the adjoining allotment of the land and furnish particulars of the excavation to the owner of the building being erected or demolished and submit to the Principal Certifying Authority details of the date and manner by which the adjoining owner(s) were advised.

The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this condition, whether carried out an the allotment of land being excavated or on the adjoining allotment of land.
In this condition, allotment of land includes public roads in any public places.

Reason: To control excavation procedures.

(6) A Hoarding Application together with the appropriate fee and details is to be submitted and approved for the enclosure of public space as required by Councils Hoarding Policy utilising Type A, B, or C Structures. The hoarding is required to protect persons from construction or demolition works and no works can commence until approval or the hoarding has been obtained.
Reason: To improve the visual impact of the hoarding structure and to provide safety adjacent to work sites.

(7) A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out stating that unauthorised entry to the work site is prohibited; and showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. Any such sign is to be removed when the work has been completed.
Reason: To provide information regarding the site.

(8) Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 person employed at the site. Each toilet provided must be a standard flushing toilet and must be connected to a public sewer, or if connection to a public sewer is not practicable, to an accredited sewage management facility approved by Council, or if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by Council. The provisions of toilet facilities in accordance with this condition must be completed before the commencement of on-site works.
Reason: `To ensure adequate toilet facilities are provided.

(9) Prior to the commencement of any works that involve the physical disturbance of the site, surface water and sediment control measures, including those shown on the approved plan(s), shall be implemented. The measures shall be utilised and maintained during the development at all times.
Reason: To prevent erosion and control sediment.


(10) Prior to the commencement of any works in the vicinity of trees or other existing site features that are to be retained (either on-site or on adjoining street reserve), physical protection measures including those shown on the approved plans shall be implemented and maintained at all times.
Reason: To ensure protection measures are in place.

(11) All demolition work shall be carried out in accordance with AS2601-1991.
Reason: To ensure appropriate demolition.

(12) Building work may only be carried out six (6) days a week, Monday to Friday between the hours of 7:00am to 8:00pm and Saturday 8:00am to 8:00pm. No work is permitted to be carried out on Sundays or Public Holidays.
Reason: To protect the amenity of the area.


(13) A house number is to be placed on the building in a readily visible location prior to occupation of the building.
Reason: To ensure a visible house number is provided.

(14) An Occupation Certificate shall be obtained prior to occupation or use of the premises.
Reason: To comply with legislative requirements.


(15) Immediately prior to the commencement of demolition an inspection is to be arranged with Council's Building Surveyor for the purpose of ensuring adequate measures are in place or will be taken to control dust, erosion or sediment that could leave the site as well as the protection of the road and footpath area from damage during the demolition process. Prior to commencement of demolition an inspection fee is to be paid in accordance with Council's current fee schedule.
Reason: To maintain the amenity of the area during demolition.

(16) The Construction Certificate is not to be released unless the Certifying Authority is satisfied that the required levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 has been paid.
Reason: To ensure that the levy is paid.

(17) Trees shall be planted on the footpath/nature strip area and be maintained until they are established. The location number and type of tree may be obtained by contacting Council's Tree Management Officer.
Reason: To enhance the landscape quality of the area.

(18) The approved plans must be submitted to the appropriate Sydney Water office to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water's requirements, the approved plans will be appropriately stamped. Evidence is to be provided to Council prior to occupation.
Reason: To comply with the requirements of Sydney Water.

(19) No building work shall commence until a Construction Certificate (formerly a Building Application) has been issued. A separate application must be completed for a Construction Certificate.

Note: Further information on Construction Certificates can be obtained by contacting Customer Service on 9806 5000.

Reason: To comply with legislative requirements.

(20) Dust control measures shall be implemented during all periods of earth works,
demolition, excavation and construction in accordance with the requirements of the NSW Environment Protection Authority. No dust is permitted to leave the site.
Reason: To protect the amenity of the area.


(21) Noise from construction and/or demolition activities associated with the development shall comply with the NSW Environment Protection Authority’s Environmental Noise Manual and the Protection of the Environment Operations Act 1997 .
Reason: To protect the amenity of the area.

(22) No materials, machinery, signs or vehicles used in or resulting from the construction or demolition relating to the development shall be stored or placed on Council's footpath, nature strip or roadway.
Reason: To ensure pedestrian access.

(23) If a Private Certifier is appointed to certify construction works Council's Development Unit shall be notified in writing within 7 days following commencement of the approved use and/or occupation of the development so that an inspection can be undertaken by Council to ensure compliance with this Consent.

Note: Be aware that the issuing of an Occupation Certificate by a Principal Certifying Authority does not mean that this consent is complied with and that Council cannot take any further action in regard to compliance with this Consent (refer to the Environmental Planning and Assessment Act and Regulation ).

Reason: To ensure that this Consent is complied with.

(24) A Survey Report by a registered surveyor shall be submitted to the Principal
Certifying Authority upon completion of the ground floor slab to confirm the location of the development is in accordance with the approval.
Reason: To ensure the structure is located in accordance with the approval.

(25) A survey report by a registered surveyor showing the finished level of the ground floor slab shall be provided to the Principal Certifying Authority upon completion of the ground floor slab.
Reason: To ensure compliance with the approval.

(26) A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water. An application form is available from Council or Sydney Water (call 13 20 92).

Following application a "Notice of Requirements" will detail water and sewer extensions to be build and charges to be paid. Please contact Sydney Water early, since building of water/sewer extensions can be time consuming and may impact on other services and building, drive way or landscape design.
The Section 73 certificate must be submitted to the principal certifying authority prior to release of the Construction Certificate/Linen plan (whichever is applicable).
Reason: To ensure the requirements of Sydney Water have been complied with.

(27) A Notification Agreement outlining the electrical construction requirements and associated fees shall be obtained from Integral Energy prior to the release of the linen plans.
Reason: To ensure electricity supply is available to all properties.
(28) The payment of the following monetary contributions in accordance with Council’s Comprehensive Section 94 Contributions Plan:

Traffic and Transport $321.00
Open Space, Public Space and Recreation $7,795.00
Community and Cultural $804.00
Other $14.00
Plan Management and Administration $1,217.00
This results in a total contribution of $10,151.00, to be paid to Council prior to the issue of the Construction Certificate. The Section 94 Contribution fees are subject to annual review and the current rates are applicable for the financial year 2003/2004. If you pay the contribution in a later financial year you will be required to pay the fee applicable at that time.

Reason – To comply with the adopted Section Plan.

(29) The landscaping shall be completed in accordance with the consent and approved plans, prior to occupation or use of the premises and shall be maintained at all times.
Reason: To ensure landscaping is completed in accordance with the approved plans.


(30) AAA rated water saving fixtures shall be fitted prior to issue of an Occupation Certificate.
Reason – To ensure the building is water efficient.

(31) The hot water systems shall have a minimum rating of 3.5 stars and shall be installed prior to issue of an Occupation Certificate.
Reason – To ensure the building is energy efficient.

(32) Five (5) working days (ie Monday to Friday with the exclusion of Public Holidays) notice in writing is to be given to Parramatta City Council for inspection prior to the commencement of any works. Such written notice is to include the date when demolition will commence and details of the name, address, business hours contact telephone number and licence number of the demolisher. Persons undertaking demolition work should obtain the relevant licence with WorkCover.
Reason – To ensure appropriate demolition and compliance with Workcover requirements.


(33) On the first day of demolition, work is not to commence until the Principal Certifying Authority (PCA) has inspected the site. Should the building to be demolished be found to be wholly or partly clad with asbestos cement, approval to commence demolition will not be given until the PCA is satisfied that all measures are in place so as to comply with WorkCover's "Short Guide to Working with Asbestos Cement" a copy of which accompanies this Development Consent.
Reason – To ensure compliance with Workcover requirements.

(34) Demolition works involving the removal and disposal of asbestos cement must only be undertaken by contractors who hold a current WorkCover "Demolition Licence" AND a current WorkCover "Class 2 (Restricted) Asbestos Licence".
Reason – To ensure compliance with Workcover requirements.

(35) On demolition sites where buildings to be demolished contain asbestos cement, a standard commercially manufactured sign containing the words "DANGER ASBESTOS REMOVAL IN PROGRESS" measuring not less than 400mm x 300mm is to be erected in a prominent visible position on the site to the satisfaction of Council's officers. Advice on the availability of these signs can be obtained by telephoning Council's Customer Service Centre during business hours on 9806 5000. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos cement has been removed from the site to an approved waste facility. This condition is imposed for the purpose of worker and public safety and to ensure compliance with Clause 259(2)(c) of the Occupational Health and Safety Regulation 2001.
Reason – To comply with legislative requirements.

(36) Demolition is to be carried out in accordance with the applicable provisions of Australian Standard AS2601 1991 - The Demolition of Structures. NOTE: Developers are reminded that WorkCover requires that all plant and equipment used in demolition work must comply with the relevant Australian Standards and manufacturer specifications.
Reason – To ensure appropriate demolition.

(37) All asbestos laden waste, including flat, corrugated or profiled asbestos cement sheets must be disposed of at a tip recommended by the NSW Environment Protection Authority (EPA).
NOTE: The person responsible for disposing of the above asbestos waste is to telephone the EPA on [phone] to determine the location of a tip licensed to receive asbestos. Upon completion of tipping operations the applicant must lodge with Council, all receipts issued by the receiving tip as evidence of proper disposal.
Reason – To ensure proper disposal of asbestos materials.

(38) Demolition works are restricted to Monday to Friday between the hours of 7:00am to 6:00pm. No demolition works are to be undertaken on Saturdays, Sundays or Public Holidays.
Reason – To protect the amenity of the area.


(39) The developer is to notify adjoining residents five (5) working days prior to demolition. Such notification is to be a clearly written note on note pad size paper giving the date demolition will commence and be placed in the letterbox of every premises (including every residential flat or unit, if any) either side and immediately at the rear and opposite the demolition site.
Reason – To minimise impact on adjoining properties.

(40) A copy of the notification and addresses of residents notified to be lodged with Council no less than two (2) days prior to demolition.
Reason – To minimise impact on adjoining properties.

(41) The proposed extension to the existing kerb inlet pit within the Constitution Road frontage shall be in accordance with Council’s Standard Plan No. 10680.
Reason – To ensure Council’s standards are met.

(42) Detailed engineering drawings of the proposed 375mm dia reinforced concrete pipe within Constitution Road and the kerb inlet pit details shall be submitted to the Principal Certifying Authority prior to the commencement of works.
Reason – To ensure Council’s standards are met.

(43) A heavy-duty vehicular crossing shall be constructed in accordance with Council’s Standard Plan No. 5426. A vehicular crossing bond for an amount of $2,344.00 shall be paid prior to the issue of a Construction Certificate.
Reason – To provide vehicular access.

(44) The disused driveways serving the property shall be removed and the kerb and gutter reconstructed in accordance with Council’s Standard Plan No. 5426 prior to issue of an Occupation Certificate.
Reason – To maintain public assets.


(46) A concrete footpath 1.2m wide and 70mm thick shall be constructed across the property frontage. Detailed drawings of the proposed footpath works shall be submitted to Council’s Infrastructure Unit prior to the commencement of works.
Reason – To provide pedestrian passage.

(47) The proposed on-site detention system shall be designed in accordance with the Upper Parramatta River Catchment Trust "On-Site Detention Handbook", Council's Drainage Code, and shall be in accordance with the Stormwater Concept Plan approved with the development consent. The design shall achieve a Site Storage Requirement of 470m3/ha and a Permissible Site Discharge of 80l/s/ha. Detailed working plans demonstrating the intended method of compliance with this condition shall be submitted to the Principal
Certifying Authority for approval prior to any works commencing on this component of the development.
Reason: To provide on-site detention.

(48) Works as executed plans certified by a suitably qualified person are to be submitted to the Principal Certifying Authority prior to occupation of the premises certifying that the stormwater drainage system has been constructed in accordance with the approved plans. A copy of the works as executed plans is to be submitted to Council's Development Unit to update the on-site detention database for the upper Parramatta River Catchment Trust.

Reason: To ensure works comply with approved plans and for data for the Upper Parramatta River Catchment Trust.

(49) A Positive Covenant and a Restriction is to be created on the property title (under the provision of the Conveyancing Act ) to ensure that the required on-site detention system will be adequately maintained. A copy of the typical covenant may be obtained from the Council's Development Unit. Proof of registration shall be submitted to the Principal Certifying Authority prior to occupation or use of the premises.

Note: The covenant is to be submitted to Council for approval prior to lodgment with the Land Titles Office.
Reason: To ensure maintenance of on-site detention facilities.

(50) The boundary and internal fences shall be lapped and capped timber fences.
Reason – To enhance the aesthetic quality of the area.

(51) The columns in the basement car park shall setback 750mm behind the front of the parking spaces.
Reason – To improve manoeuvring into the parking spaces.

(52) An additional Elaeocarpus reticulatis is to be planted in the front setback and shall have a 25L pot size at the time of planting. An amended landscape plan is to be submitted prior to issue of a Construction Certificate.
Reason – To ensure adequate landscaping is provided.

(53) A 1 metre wide garden area is to be provided adjacent to the front boundary fence and shall consist of the planting of eighteen Dianella (150mm containers), fourteen Lomandra (150mm containers) and four Westringia (200mm containers). An amended landscape plan is to be submitted prior to issue of a Construction Certificate.
Reason – To ensure adequate landscaping is provided.

(54) Garden beds are to be installed underneath the three trees located adjacent to the rear boundary. The garden beds are to have a minimum width of 2m and are to be planted with Dianella, at a rate of 3 per m2 with a container size of 150mm at planting. An amended landscape plan is to be submitted prior to issue of a Construction Certificate.
Reason – To ensure adequate landscaping is provided.

(55) All garden beds are to be mulched with natural woodchip to a depth of 75mm. All garden areas are to be covered by a fully automatic irrigation system. Details to be submitted prior to the issue of a Construction Certificate.
Reason – To ensure the landscaping is maintained.

(56) The roof tiles shall be of a reddish-brown colour. Details to be submitted prior to issue of a Construction Certificate.
Reason – To enhance the aesthetic quality of the area and improve the energy performance of the building.


(57) The garbage disposal/storage area shall be constructed and finished in accordance with the requirements of Council's Garbage Room Code.
Reason - To ensure a suitable garbage storage area.

(58) Submission of a linen plan and five (5) copies for approval by Council.
Reason: To ensure appropriate demolition.

(59) A separate application must be made for a subdivision certificate. All conditions of development consent are to be complied with prior to the issue of the certificate.
Reason: To comply with the requirements of the Environmental Planning and Assessment Act 1979 (as amended).
S J Watts
Commissioner of the Court