Star v Woollahra Municipal Council

[2009] NSWLEC 1231

Land and Environment Court

of New South Wales

CITATION:

Star v Woollahra Municipal Council [2009] NSWLEC 1231

PARTIES:

APPLICANT
Judith Anne Star

RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S):

10197 of 2009

CORAM:

Murrell C

KEY ISSUES:

DEVELOPMENT APPLICATION :- Alterations and Additions, height at rear balcony relative to adjoining properties and laneway.

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Woollahra Local Environmental Plan
Paddington Development Control Plan

DATES OF HEARING:

23 June 2009

EX TEMPORE JUDGMENT DATE:

23 June 2009

LEGAL REPRESENTATIVES:

APPLICANT
Mr I Hemmings (barrister
SOLICITOR
M.E. McMahon & Associates

RESPONDENT
Mr S Patterson (solicitor)
SOLICITOR
Wilshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

23 June 2009

10197 of 2009 Judith Anne Star v Woollahra Muncipial Council

This decision was given extemporaneously and

has been revised and edited prior to publication.

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against Woollahra Council’s refusal of a development application for alterations and additions to the property known as No. 30 Stafford Street, Paddington.

2 The Court met on site this morning and undertook a view in the presence of the parties. I also had the opportunity of hearing from the structural engineers as to the methodology proposed for the excavation of what is regarded as the lower ground or basement level of this property.

3 The alterations and additions proposed a basement level or lower ground level however, it is proposed that the overall height of the dwelling not be changed, that there be excavation to accommodate the space below the existing floor level. It is also proposed that there be an extension to the property by way of a balcony and a reconfiguration of the floor levels to provide for a more desirable living area and elimination of a number of stairs.

4 On site, it could be seen that the adjoining property, that is No. 28 to the west of the subject site, has not been extended. Number 30, the subject property, is proposed to have a balcony which will partly project over the rear car parking space in the back of the property. The subject property enjoys the benefit of rear lane access from Stafford Lane as do the adjoining properties. The plans were provided on site of the property at No. 32 to understand the relative levels of the approved alterations and additions to that property which include a balcony compared to the subject property. At No. 34, there are existing alterations and additions including a balcony.

5 After meeting on site this morning, the parties have come back to Court today and the applicant has proposed an amended plan to which the respondent raises no objection and the Court grants leave for the amended plan as such.

6 It is proposed that the balcony be lowered or rather the back portion of the dwelling house have two stairs to incorporate a split between the hallway and the living areas so that these areas can be contiguous with the rear balcony to be at an RL of 51.3. The 51.3 level is 250 millimetres lower than that originally proposed and the importance of this level being lowered is not only in respect of what we see at No. 34, but what has been approved at No. 32 which has a balcony approved at a level of 50.825. That balcony would be 475 millimetres lower than this current amended development application.

7 Council is satisfied that the lowering of the balcony and the reduction in depth such that it is reduced by 500 millimetres from 3 metres to 2.5 metres will in fact alleviate their concerns with overlooking and privacy and respect the continuity of the built form in the conservation area of Paddington as viewed from the rear lane.

8 It is also important in cases such as this that the issue of precedent is considered because of the fact that other people may seek to invoke similar decisions and consistency in decision-making, especially in this important heritage conservation area of Paddington, is important.

9 In this regard, the Court sees no reason as to why the development application should not be approved in its amended form and notes that the issues initially raised by the council in its Statement of Facts and Contentions, that is with respect to excavation, visual acoustic privacy and deep soil landscaping have now been satisfied by the amended plan.

10 As consent orders the Court must be satisfied that the proposal is one that is satisfactory and is consistent with council’s local planning regime, the local planning regime being the Woollahra Local Environmental Plan and the Paddington Development Control Plan.

11 Council officers have undertaken a comprehensive assessment of the proposal and the concerns were identified as the contentions. With the amended plan proposed by the applicant, there is no reason as to why the application should not be approved. I am satisfied that the amendments make the development one that is satisfactory in its context.

12 The Court also notes that there is the amendment to provide for the required amount of landscaping to comply with council’s standard of 9.8 metres squared for this site. The plans are to be amended accordingly. Similarly, the plans are to be amended to show the 250 millimetre reduction in RL for the rear balcony and a reduction in the depth of the balcony to 2.5 metres. These are to be shown in an amended plan to be submitted to the council by Friday of this week, 26 June, together with the materials, finishes and colours. Council will have the opportunity to consider same and the plans with the amended conditions to reflect the plan numbering et cetera are to be forwarded to the Court by Tuesday 30 June. The Court will then make the orders consistent with my findings above.

13 Accordingly, the formal Orders of the Court will be:

1. The appeal in respect of the property known as No. 30 Stafford Street, Paddington, is upheld.
2. The development application submitted to Woollahra Council and as amended is determined by the granting of consent subject to the conditions contained in Annexure A.
3. The exhibits are returned to the parties with the exception of Exhibit A and Exhibit 2.

___________________

J S Murrell
Commissioner of the Court
ljr

Annexure ‘A’

Conditions of Consent

Star v Woollahra Municipal Council

30 Stafford Street, Paddington

A. General Conditions

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

Standard Condition: A1

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

Applicant means the applicant for this Consent.

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

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

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

Council means Woollahra Municipal Council

Court means the Land and Environment Court

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

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

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

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

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

PCA means the Principal Certifying Authority under the Act .

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

Professional Engineer has the same meaning as in the BCA.

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

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

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

Site means the land being developed subject to this consent.

WLEP 1995 means Woollahra Local Environmental Plan 1995

Work for the purposes of this consent means:

a. the use of land in connection with development,
b. the subdivision of land,
c. the erection of a building,
d. the carrying out of any work,
e. the use of any site crane, machine, article, material, or thing,
f. the storage of waste, materials, site crane, machine, article, material, or thing,
g. the demolition of a building,
h. the piling, piering, cutting, boring, drilling, rock breaking, rock sawing or excavation of land,
i. the delivery to or removal from the site of any machine, article, material, or thing, or
j. the occupation of the site by any person unless authorised by an occupation certificate .

Note : Interpretation of Conditions - Where there is any need to obtain an interpretation of the intent of any condition this must be done in writing to Council and confirmed in writing by Council.
Standard Condition: A2

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

Reference	Description	Author/Drawn	Date(s)
A01 & A02 Issue E	Architectural Plans	Msb Design	25/06/2009
A35787	BASIX Certificate	Department of Planning	28 May 2008
AW18457 (Version 1)	Geotechnical Report	Auswide Geotechnical	09/04/2008
AW18457 (Version 2)	Geotechnical Report	Auswide Geotechnical	07/10/2008
Sheet 1 Issue D	Structural Details	Harrison & Morris Consultancy P/L,	23/6/09
‘Materials Sample/ Colour Board’	Materials & Sample Board	Msb Design	26/06/09

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

Standard Condition: A5

The owner must procure the repair, replacement or rebuilding of all road pavement, kerb, gutter, footway, footpaths adjoining the site or damaged as a result of work under this consent or as a consequence of work under this consent. Such work must be undertaken to Council's satisfaction in accordance with Council’s “Specification for Roadworks, Drainage and Miscellaneous Works” dated January 2003 unless expressly provided otherwise by these conditions at the owner’s expense.

Note : This condition does not affect the principal contractor's or any sub-contractors obligations to protect and preserve public infrastructure from damage or affect their liability for any damage that occurs.

Standard Condition: A8

Prescribed conditions in force under the Act and Regulation must be complied with.

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

Standard Condition: A30

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

Where demolition is associated with an altered portion of, or an extension to an existing building the demolition of any part of a building is "commencement of erection of building" pursuant to section 81A(2) of the Act. In such circumstance all conditions in Part C and Part D of this consent must be satisfied prior to any demolition work. This includes, but is not limited to, the issue of a Construction Certificate, appointment of a PCA and Notice of Commencement under the Act.

Note: See Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.

Standard Condition: B1

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

The certifying authority must not issue any Part 4A Certificate until provided with the original receipt(s) for the payment of all of the following levy, security, contributions, and fees prior to the issue of a construction certificate , subdivision certificate or occupation certificate , as will apply.

Description	Amount	Indexed	Council Fee Code
LONG SERVICE LEVY under Building and Construction Industry Long Service Payments Act 1986
Long Service Levy	Contact LSL Corporation or use online calculator	No
SECURITY under section 80A(6) of the Environmental Planning and Assessment Act 1979
Property Damage Security Deposit -making good any damage caused to any property of the Council	$9,618	No	T115
DEVELOPMENT LEVY under Woollahra Section 94A Development Contributions Plan 2005 This plan may be inspected at Woollahra Council or downloaded at .
Development Levy (Section 94A)	$3,809 + Index Amount	Yes, quarterly	T96
INSPECTION FEES under Section 608 of the Local Government Act 1993
Security Administration Fee	$175	No	T16
TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES	$13,662.00 plus any relevant indexed amounts and long service levy

Building and Construction Industry Long Service Payment
The Long Service Levy under Section 34 of the Building and Construction Industry Long Service Payment Act , 1986, must be paid and proof of payment provided to the Certifying Authority prior to the issue of any Construction Certificate . The Levy can be paid directly to the Long Services Payments Corporation or to Council. Further information can be obtained from the Long Service Payments Corporation’s website or the Long Service Payments Corporation on 13 14 41.

How must the payments be made?
Payments must be made by:
• Cash deposit with Council,
• Credit card payment with Council, or
• Bank cheque made payable to Woollahra Municipal Council.

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

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

Do you need HELP indexing the levy?
Please contact our customer service officers. Failure to correctly calculate the adjusted the development levy will delay the issue of any Part 4A Certificate and could void any Part 4A Certificate (construction certificate, subdivision certificate, or occupation certificate).

Deferred periodic payment of section 94A levy under the Woollahra Section 94A Development Contributions Plan 2005
Where the applicant makes a written request supported by reasons for payment of the section
94A levy other than as required by clause 3.9, the Council may accept deferred or periodic payment. The decision to accept a deferred or periodic payment is at the sole discretion of the Council, which will consider:
• The reasons given;
• Whether any prejudice will be caused to the community deriving benefit from the public facilities;
• Whether any prejudice will be caused to the efficacy and operation of this plan; and
• Whether the provision of public facilities in accordance with the adopted works schedule will be adversely affected.

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

Any deferred or outstanding component of the section 94A levy will be adjusted in accordance with clause 3.13 of the plan. The applicant will be required to pay any charges associated with establishing or operating the bank guarantee. Council will not cancel the bank guarantee until the outstanding contribution as indexed and any accrued charges are paid.
Standard Condition: C5

The applicant must submit to the Certifying Authority BASIX Certificate No. A35787 with any application for a Construction Certificate .

Note : Where there is any proposed change in the BASIX commitments the applicant must submit of a new BASIX Certificate to the Certifying Authority and Council. If any proposed change in the BASIX commitments are inconsistent with development consent (See: Clauses 145 and 146 of the Regulation ) the applicant will be required to submit an amended development application to Council pursuant to section 96 of the Act.

All commitments in the BASIX Certificate must be shown on the Construc tion Certificate plans and specifications prior to the issue of any Construction Certificate .

Note : Clause 145(1)(a1) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: (a1) that the plans and specifications for the building include such matters as each relevant BASIX certificate requires,"

Standard Condition: C7

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

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

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

Note : This condition has been imposed to eliminate potential water pollution and dust nuisance.
Note : The International Erosion Control Association – Australasia lists consultant experts who can assist in ensuring compliance with this condition. Where erosion and sedimentation plans are required for larger projects it is recommended that expert consultants produce these plans.
Note : The “ Do it Right On Site, Soil and Water Management for the Construction Industry ” publications can be down loaded free of charge from .
Note : Pursuant to clause 161(1)(a)(5) of the Regulation an Accredited Certifier may satisfied as to this matter.
Standard Condition: C25

A certificate from a professional engineer (Structural Engineer), certifying the adequacy of the existing supporting structure to support the additional loads proposed to be imposed by the development, must be submitted with the Construction Certificate application.

Note : This condition is imposed to ensure that the existing structure is able to support the additional loads proposed.

Standard Condition: C35

The Construction Certificate plans and specifications, required by clause 139 of the Regulation, must include detailed professional engineering plans and/or specifications for all structural, electrical, hydraulic, hydro-geological, geotechnical, mechanical and civil work complying with this consent, approved plans, the statement of environmental effects and supporting documentation.

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

Note: This does not affect the right of the developer to seek staged Construction Certificates.
Standard Condition: C36

The Construction Certificate plans and specification required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation must be accompanied by a Geotechnical / Hydrogeological Monitoring Program together with civil and structural engineering details for foundation retaining walls, footings, basement tanking, and subsoil drainage systems, as applicable, prepared by a professional engineer, who is suitably qualified and experienced in geotechnical and hydrogeological engineering. These details must be certified by the professional engineer to:

a) To ensure appropriate support and retention during excavation and after construction, the following construction methodology must be adopted:

i. Construction of contiguous piled walls as shown on Harrison & Morris drawing sheet 1 (Issue D) with a minimum rock socket of 400mm and the bottom of the piers to be at least 200mm below the lowest point of the proposed excavation level.

ii. The construction of slab at level 1 is to be completed prior to bulk excavation commencing.

b) A comprehensive Hydraulic drawing showing clearly the proposed means of intercepting, collecting and disposing of all groundwater must be prepared.
c) Provide tanking of all below ground structures to prevent the entry of all ground water such that they are fully tanked and no on-going dewatering of the site is required.
d) Provide a Geotechnical and Hydrogeological Monitoring Program that:
• Incorporates the conditions stated in the Auswide Geotechnical Report AW 18457, dated 7 October 2008, Clause 5.
• Incorporate the conclusions and recommendations stated in the Auswide Geotechnical Report AW 18457, dated 7 October 2008, Clauses 6.11- 6.13 except that the peak particle velocity be limited to 5mm/sec at both property boundaries and adjoining structures.
• Will detect any settlement associated with temporary and permanent works and structures;
• Will detect deflection or movement of temporary and permanent retaining structures (foundation walls, shoring bracing or the like);
• Will detect vibration in accordance with AS 2187.2-1993 Appendix J including acceptable velocity of vibration (peak particle velocity);
• Will detect groundwater changes calibrated against natural groundwater variations;
• Details the location and type of monitoring systems to be utilised;
• Details the preset acceptable limits for peak particle velocity and ground water fluctuations;
• Details recommended hold points to allow for the inspection and certification of geotechnical and hydro-geological measures by the professional engineer; and;
• Details a contingency plan.

Standard Condition: C40

The Construction Certificate plans and specifications required by clause 139 of the Regulation , must detail :

a) The location of the existing Stormwater Drainage System including all pipes, inspection openings, surface drains, pits and their discharge location,
b) The state of repair of the existing Stormwater Drainage System ,
c) Any remedial works required to upgrade the existing Stormwater Drainage System to comply with the BCA,
d) Any remedial works required to upgrade the existing Stormwater Drainage System crossing the footpath and any new kerb outlets,
e) Any new Stormwater Drainage System complying with the BCA,
f) Interceptor drain(s) at the site boundary to prevent stormwater flows from the site crossing the footpath,
g) Any rainwater tank (See Note below) required by BASIX commitments including their overflow connection to the Stormwater Drainage System , and
h) General compliance with the Council’s draft Development Control Plan Stormwater Drainage Management (Draft Version 1.1, Public Exhibition Copy dated 14/12/2006)

Where any new Stormwater Drainage System crosses the footpath area within any road, separate approval under section 138 of the Roads Act 1993 must be obtained from Council for those works prior to the issue of any Construction Certificate .

All Stormwater Drainage System work within any road or public place must comply with Woollahra Municipal Council’s Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003.

Note: Clause F1.1 of Volume 1 and Part 3.1.2 of Volume 2 of the BCA provide that stormwater drainage complying with AS/NZS 3500.3 Plumbing and drainage - Part 3: Stormwater drainage is deemed-to-satisfy the BCA. Council’s specifications apply in relation to any works with any road or public place.
Note: The collection, storage and use of rainwater is to be in accordance with Standards Australia HB230-2008 “Rainwater Tank Design and Installation Handbook”.
Note : Stormwater Drainage Systems must not discharge to any Sewer System. It is illegal to connect stormwater pipes and drains to the sewerage system as this can overload the system and cause sewage overflows. See:
Note : Woollahra Municipal Council’s Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003 and Council’s draft Development Control Plan Stormwater Drainage Management (Draft Version 1.1, Public Exhibition Copy dated 14/12/2006) can be downloaded from Council’s website:
Standard Condition: C49

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

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

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

This condition does not apply:

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

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

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

Standard Condition: D1

Dilapidation surveys must be conducted and dilapidation reports prepared by a professional engineer (structural) of all buildings on land whose title boundary abuts the site and of such further buildings located within the likely “zone of influence” of any excavation, dewatering and/or construction induced vibration.

These properties must include (but is not limited to):
28 Stafford Street,
32 Stafford Street

The dilapidation reports must be completed and submitted to Council with the Notice of Commencement prior to the commencement of any development work .

Where excavation of the site will extend below the level of any immediately adjoining building the principal contractor or owner builder must give the adjoining building owner(s) a copy of the dilapidation report for their building(s) and a copy of the notice of commencement required by s81A(2) of the Act not less than two (2) days prior to the commencement of any work.

Note: The reasons for this condition are:
• To provide a record of the condition of buildings prior to development being carried out
• To encourage developers and its contractors to use construction techniques that will minimise the risk of damage to buildings on neighbouring land
Also refer to the Dilapidation Report Advising for more information regarding this condition Standard Condition: D4

The principal contractor must ensure that a professional engineer determines the possibility of any adjoining buildings founded on loose foundation materials being affected by piling, piers or excavation. The professional engineer (geotechnical consultant) must assess the requirements for underpinning any adjoining or adjacent buildings founded on such soil on a case by case basis and the principal contractor must comply with any reasonable direction of the professional engineer .

Note : A failure by contractors to adequately assess and seek professional engineering (geotechnical) advice to ensure that appropriate underpinning and support to adjoining land is maintained prior to commencement may result in damage to adjoining land and buildings. Such contractors are likely to be held responsible for any damages arising from the removal of any support to supported land as defined by section 177 of the Conveyancing Act 1919.
Standard Condition: D6

Security fencing must be provided around the perimeter of the development site, including any additional precautionary measures taken to prevent unauthorised entry to the site at all times during the demolition, excavation and construction period. Security fencing must be the equivalent 1.8m high chain wire as specified in AS 1725.

Where the development site adjoins a public thoroughfare, the common boundary between them must be fenced for its full length with a hoarding, unless the least horizontal distance between the common boundary and the nearest parts of the structure is greater than twice the height of the structure. The hoarding must be constructed of solid materials (chain wire or the like is not acceptable) to a height of not less than 1.8 m adjacent to the thoroughfare.

Where a development site adjoins a public thoroughfare with a footpath alongside the common boundary then, in addition to the hoarding required above, the footpath must be covered by an overhead protective structure and the facing facade protected by heavy-duty scaffolding, unless either:

a) the vertical height above footpath level of the structure being demolished is less than 4.0 m; or

b) the least horizontal distance between footpath and the nearest part of the structure is greater than half the height of the structure.

The overhead structure must consist of a horizontal platform of solid construction and vertical supports, and the platform must:

a) extend from the common boundary to 200mm from the edge of the carriageway for the full length of the boundary;

b) have a clear height above the footpath of not less than 2.1 m;

c) terminate 200mm from the edge of the carriageway (clearance to be left to prevent impact from passing vehicles) with a continuous solid upstand projecting not less than 0.5 m above the platform surface; and

d) together with its supports, be designed for a uniformly distributed live load of not less than 7 kPa.

The principal contractor or owner builder must pay all fees associated with the application and occupation and use of the road (footway) for required hoarding or overhead protection.

The principal contractor or owner builder must ensure that Overhead Protective Structures are installed and maintained in accordance with WorkCover NSW Code of Practice - Overhead Protective Structures, gazetted 16 December 1994, as commenced 20 March 1995. This can be downloaded from: fencing, hoarding and overhead protective structure must not obstruct access to utilities services including but not limited to man holes, pits, stop valves, fire hydrants or the like.

: The principal contractor or owner must allow not less than two (2) weeks from the date of making a hoarding application for determination. Any approval for a hoarding or overhead protection under the Roads Act 1993 will be subject to its own conditions and fees.

Standard Condition: D11 (Autotext DD11)

D.5 Site Signs


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

“Erection of signs
• For the purposes of section 80A (11) of the Act, the requirements of subclauses (2) and (3) are prescribed as conditions of a development consent for development that involves any building work, subdivision work or demolition work.
• A sign must be erected in a prominent position on any site on which building work, subdivision `work or demolition work is being carried out:
  a. showing the name, address and telephone number of the principal certifying authority for the work, and
  b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and
  c. stating that unauthorised entry to the work site is prohibited.
• Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.
• This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building.
• This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State’s building laws.”

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

Standard Condition: D12

D.6 Toilet Facilities


Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Each toilet provided:

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

The provision of toilet facilities in accordance with this condition must be completed before any other work is commenced.

In this condition:
accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in clause 95B of the Local Government (Approvals) Regulation 1993.
approved by the council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993.
public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993.
sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993.

Note : This condition does not set aside the requirement to comply with Workcover NSW requirements.

Standard Condition: D13

D.7 Erosion and Sediment Controls – Installation


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

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

Where there is any conflict The Blue Book takes precedence.


Note : The International Erosion Control Association – Australasia ( ) lists consultant experts who can assist in ensuring compliance with this condition. Where Soil and Water Management Plan is required for larger projects it is recommended that this be produced by a member of the International Erosion Control Association – Australasia.
Note : The “Do it Right On Site, Soil and Water Management for the Construction Industry” publications can be down loaded free of charge from .

Note : A failure to comply with this condition may result in penalty infringement notices, prosecution, notices and orders under the Act and/or the Protection of the Environment Operations Act 1997 without any further warning . It is a criminal offence to cause, permit or allow pollution.
Note : Section 257 of the Protection of the Environment Operations Act 1997 provides inter alia that “the occupier of premises at or from which any pollution occurs is taken to have caused the pollution”

Warning : Irrespective of this condition any person occupying the site may be subject to proceedings under the Protection of the Environment Operations Act 1997 where pollution is caused, permitted or allowed as the result of their occupation of the land being developed.

Standard Condition: D14

D.8 Building - Construction Certificate, Appointment of Principal Certifying Authority, Appointment of Principal Contractor and Notice of Commencement (s81A(2) of the Act)


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

a) A construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited Certifier, and

b) The person having the benefit of the development consent has:
• Appointed a principal certifying authority for the building work, and
• Notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and
  
c) The principal certifying authority has, no later than 2 days before the building work commences:
• Notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and
• Notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and
  
d) The person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:
• Appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and
• Notified the principal certifying authority of any such appointment, and
• Unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and
• Given at least 2 days’ notice to the council of the person’s intention to commence the erection of the building.

Note: building has the same meaning as in section 4 of the Act and includes part of a building and any structure or part of a structure.
Note : new building has the same meaning as in section 109H of the Act and includes an altered portion of, or an extension to, an existing building.
Note : The commencement of demolition works associated with an altered portion of, or an extension to, an existing building is considered to be the commencement of building work requiring compliance with section 82A(2) of the Act (including the need for a Construction Certificate ) prior to any demolition work. See: Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.
Note : Construction Certificate Application, PCA Service Agreement and Notice of Commencement forms can be downloaded from Council’s website .
Note : It is an offence for any person to carry out the erection of a building in breach of this condition and in breach of section 81A(2) of the Act.
Standard Condition: D15
D.9 Notification of Home Building Act 1989 requirements

a) For the purposes of section 80A (11) of the Act, the requirements of this condition are prescribed as conditions of a development consent for development that involves any residential building work within the meaning of the Home Building Act 1989 .
b) Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information:
• In the case of work for which a principal contractor is required to be appointed:
- the name and licence number of the principal contractor, and
- the name of the insurer by which the work is insured under Part 6 of that Act,
• In the case of work to be done by an owner-builder:

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

c) If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.
d) This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State’s building laws.

Standard Condition: D17

E. Conditions which must be satisfied during any development work

E.1 Compliance with Australian Standard for Demolition

Demolition of buildings and structures must comply with Australian Standard AS 2601—1991: The Demolition of Structures, published by Standards Australia, and as in force at 1 July 1993.

Standard Condition: E2

E.2 Requirement to notify about new evidence

Any new information which comes to light during remediation, demolition or construction works which has the potential to alter previous conclusions about site contamination, heritage significance, threatened species or other relevant matters must be immediately notified to Council and the Principal Certifying Authority..

Standard Condition: E4

E.3 Critical Stage Inspections


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

Work must not proceed beyond each critical stage until the PCA is satisfied that work is proceeding in accordance with this consent, the Construction Certificate(s) and the Act .
critical stage inspections means the inspections prescribed by the Regulations for the purposes of section 109E(3)(d) of the Act or as required by the PCA and any PCA Service Agreement.

Note : The PCA may require inspections beyond mandatory critical stage inspections in order that the PCA be satisfied that work is proceeding in accordance with this consent.
Note : The PCA may, in addition to inspections, require the submission of Com pliance Certificates , survey reports or evidence of suitability in accordance with Part A2.2 of the BCA in relation to any matter relevant to the development.

Standard Condition: E5

E.4 Hours of Work –Amenity of the neighbourhood


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

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

Note : The use of noise and vibration generating plant and equipment and vehicular traffic, including trucks in particular, significantly degrade the amenity of neighbourhoods and more onerous restrictions apply to these activities. This more invasive work generally occurs during the foundation and bulk excavation stages of development. If you are in doubt as to whether or not a particular activity is considered to be subject to the more onerous requirement (9am to 4pm weekdays and 9am to 1pm Saturdays) please consult with Council.
Note : Each and every breach of this condition by any person may be subject to separate penalty infringement notice or prosecution.
Note : The delivery and removal of plant, equipment and machinery associated with wide loads subject to RTA and Police restrictions on their movement out side the approved hours of work will be considered on a case by case basis.
Note : Compliance with these hours of work does not affect the rights of any person to seek a remedy to offensive noise as defined by the Protection of the Environment Operations Act 1997, the Protection of the Environment Operations (Noise Control) Regulation 2000.
Note : EPA Guidelines can be down loaded from .
Note : see

Standard Condition: E6

E.5 Maintenance of Vehicular and Pedestrian Safety and Access


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

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

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

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

Note : Section 73 of the Road Transport (Safety and Traffic Management) Act 1999 allows the Police to close any road or road related area to traffic during any temporary obstruction or danger to traffic or for any temporary purpose. Any road closure requires Police approval.
Note : Section 138 of the Roads Act 1993 provides that a person must not:
• erect a structure or carry out a work in, on or over a public road, or
• dig up or disturb the surface of a public road, or
• remove or interfere with a structure, work or tree on a public road, or
• pump water into a public road from any land adjoining the road, or
• connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority.
Note : Section 68 of the Local Government Act 1993 provides that a person may carry out certain activities only with the prior approval of the council including:
• Part C Management of Waste:
  a. For fee or reward, transport waste over or under a public place
  b. Place waste in a public place
  c. Place a waste storage container in a public place.”
• Part E Public roads:
  a. Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway
  b. Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to overhang any part of the road or outside a shop window or doorway abutting the road, or hang an article beneath an awning over the road.”
  c. Any work in, on or over the Road or Footway requires Council Approval and in the case of classified roads the NSW Roads and Traffic Authority. Road includes that portion of the road uses as a footway.

Standard Condition: E7

E.6 Maintenance of Environmental Controls


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

a) Erosion and sediment controls,
b) Dust controls,
c) Dewatering discharges,
d) Noise controls;
e) Vibration monitoring and controls;
f) Ablutions;

Note: See for additional information.
Standard Condition: E11

E.7 Compliance with Geotechnical/Hydrogeological Monitoring Program


Excavation must be undertaken in accordance with the recommendations of the Geotechnical / Hydrogeological Monitoring Program and any oral or written direction of the supervising professional engineer .

The principal contractor and any sub-contractor must strictly follow the Geotechnical / Hydrogeological Monitoring Program for the development including, but not limited to;

a) the location and type of monitoring systems to be utilised;
b) recommended hold points to allow for inspection and certification of geotechnical and hydrogeological measures by the professional engineer ; and
c) the contingency plan.

Note : The consent authority cannot require that the author of the geotechnical/hydrogeological report submitted with the Development Application to be appointed as the professional engineer supervising the work however, it is the Council’s recommendation that the author of the report be retained during the construction stage.

Standard Condition: E12

E.8 Support of adjoining land and buildings


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

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

Note : This condition does not authorise any trespass or encroachment upon any adjoining or supported land or building whether private or public. Where any underpinning, shoring, soil anchoring (temporary or permanent) or the like is considered necessary upon any adjoining or supported land by any person the principal contractor or owner builder must obtain:
a. the consent of the owners of such adjoining or supported land to trespass or encroach, or
b. an access order under the Access to Neighbouring Land Act 2000, or
c. an easement under section 88K of the Conveyancing Act 1919, or
d. an easement under section 40 of the Land & Environment Court Act 1979 as appropriate.
Note : Section 177 of the Conveyancing Act 1919 creates a statutory duty of care in relation to support of land. Accordingly, a person has a duty of care not to do anything on or in relation to land being developed (the supporting land) that removes the support provided by the supporting land to any other adjoining land (the supported land).
Note : Clause 20 of the Roads (General) Regulation 2000 prohibits excavation in the vicinity of roads as follows: “ Excavations adjacent to road - A person must not excavate land in the vicinity of a road if the excavation is capable of causing damage to the road (such as by way of subsidence) or to any work or structure on the road.” Separate approval is required under the Roads Act 1993 for any underpinning, shoring, soil anchoring (temporary)) or the like within or under any road. Council will not give approval to permanent underpinning, shoring, soil anchoring within or under any road.
Note : The encroachment of work or the like is a civil matter of trespass or encroachment and Council does not adjudicate or regulate such trespasses or encroachments except in relation to encroachments upon any road, public place, crown land under Council’s care control or management, or any community or operational land as defined by the Local Government Act 1993.
Standard Condition: E13

E.9 Vibration Monitoring


Vibration monitoring equipment must be installed and maintained, under the supervision of a professional engineer with expertise and experience in geotechnical engineering, between any potential source of vibration and any building identified by the professional engineer as being potentially at risk of movement or damage from settlement and/or vibration during the excavation and during the removal of any excavated material from the land being developed.

If vibration monitoring equipment detects any vibration at the level of the footings of any adjacent building exceeding the peak particle velocity adopted by the professional engineer as the maximum acceptable peak particle velocity an audible alarm must activate such that the principal contractor and any sub-contractor are easily alerted to the event.

Where any such alarm triggers all excavation works must cease immediately.
Prior to the vibration monitoring equipment being reset by the professional engineer and any further work recommencing the event must be recorded and the cause of the event identified and documented by the professional engineer .
Where the event requires, in the opinion of the professional engineer , any change in work practices to ensure that vibration at the level of the footings of any adjacent building does not exceed the peak particle velocity adopted by the professional engineer as the maximum acceptable peak particle velocity these changes in work practices must be documented and a written direction given by the professional engineer to the principal contractor and any sub-contractor clearly setting out required work practice.

The principal contractor and any sub-contractor must comply with all work directions, verbal or written, given by the professional engineer .

A copy of any written direction required by this condition must be provided to the Principal Certifying Authority within 24 hours of any event.

Where there is any movement in foundations such that damaged is occasioned to any adjoining building or such that there is any removal of support to supported land the professional engineer , principal contractor and any sub-contractor responsible for such work must immediately cease all work, inform the owner of that supported land and take immediate action under the direction of the professional engineer to prevent any further damage and restore support to the supported land .

Note : Professional engineer has the same mean as in Clause A1.1 of the BCA.
Note : Building has the same meaning as in section 4 of the Act i.e. “ building includes part of a building and any structure or part of a structure”.

Note : Supported land has the same meaning as in section 88K of the Conveyancing Act 1919. Standard Condition: E14

E.10 Erosion and Sediment Controls – Maintenance


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

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

Where there is any conflict The Blue Book takes precedence.

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

Note : Section 257 of the Protection of the Environment Operations Act 1997 provides that “the occupier of premises at or from which any pollution occurs is taken to have caused the pollution”.

Warning : Irrespective of this condition any person occupying the site may be subject to proceedings under the Protection of the Environment Operations Act 1997 where pollution is caused, permitted or allowed as the result of the occupation of the land being developed whether or not they actually cause the pollution.
Standard Condition: E15


E.11 Disposal of site water during construction

The principal contractor or owner builder must ensure:


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

Note : This condition has been imposed to ensure that adjoining and neighbouring land is not adversely affected by unreasonable overland flows of stormwater and that site water does not concentrate water such that they cause erosion and water pollution.

Standard Condition: E17

E.12 Check Surveys - boundary location, building location, building height, stormwater drainage system and flood protection measures relative to Australian Height Datum


The Principal Contractor or Owner Builder must ensure that a surveyor registered under the Surveying Act 2002 carries out check surveys and provides survey certificates confirming the location of the building(s), ancillary works, flood protection works and the stormwater drainage system relative to the boundaries of the site and that the height of buildings, ancillary works, flood protection works and the stormwater drainage system relative to Australian Height Datum complies with this consent at the following critical stages.

The Principal Contractor or Owner Builder must ensure that work must not proceed beyond each of the following critical stages until compliance has been demonstrated to the PCA’s satisfaction:

a) Upon the completion of foundation walls prior to the laying of any floor or the pouring of any floor slab and generally at damp proof course level;
b) Upon the completion of formwork for floor slabs prior to the laying of any floor or the pouring of any concrete and generally at each storey;
c) Upon the completion of formwork or framework for the roof(s) prior to the laying of any roofing or the pouring of any concrete roof;
d) Upon the completion of formwork and steel fixing prior to pouring of any concrete for any ancillary structure, flood protection work, swimming pool or spa pool or the like;
e) Upon the completion of formwork and steel fixing prior to pouring of any concrete for driveways showing transitions and crest thresholds confirming that driveway levels match Council approved driveway crossing levels and minimum flood levels.;
f) Stormwater Drainage Systems prior to back filling over pipes confirming location, height and capacity of works.

g) Flood protection measures are in place confirming location, height and capacity.

Note : This condition has been imposed to ensure that development occurs in the location and at the height approved under this consent. This is critical to ensure that building are constructed to minimum heights for flood protection and maximum heights to protect views and the amenity of neighbours.

Standard Condition: E20

E.13 Placement and use of Skip Bins

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

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

Note : Waste storage containers must not be located on the footpath without a site specific activity approval. Where such site specific activity approval is granted a 1.5m wide clear path of travel is maintained free of any trip hazards.
Standard Condition: E21

E.14 Prohibition of burning


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

Note : Pursuant to the Protection of the Environment Operations (Control of Burning) Regulation 2000 all burning (including burning of vegetation and domestic waste) is prohibited except with approval. No approval is granted under this consent for any burning.

Standard Condition: E22

E.15 Dust Mitigation

Dust mitigation must be implemented in accordance with “ Dust Control - Do it right on site ” published by the Southern Sydney Regional Organisation of Councils.
This generally requires:


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

Note : “ Dust Control - Do it right on site ” can be down loaded free of charge from Council’s web site or obtained from Council’s office.
Note: Special precautions must be taken when removing asbestos or lead materials from development sites. Additional information can be obtained from and . Other specific condition and advice may apply.
Note: Demolition and construction activities may affect local air quality and contribute to urban air pollution. The causes are dust, smoke and fumes coming from equipment or activities, and airborne chemicals when spraying for pest management. Precautions must be taken to prevent air pollution.

Standard Condition: E23

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

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

A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H (4) of the Act ) unless an occupation certificate has been issued in relation to the building or part.
Note : new building includes an altered portion of, or an extension to, an existing building.

Standard Condition: F1

F.2 Commissioning and Certification of Systems and Works


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

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

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

Note : This condition has been imposed to ensure that systems and works as completed meet development standards as defined by the Act , comply with the BCA, comply with this consent and so that a public record of works as execute is maintained.
Note : The PCA may require any number of WAE plans, certificates, or other evidence of suitability as necessary to confirm compliance with the Act , Regulation , Development Standards, BCA , and relevant Australia Standards . As a minimum WAE plans and certification is required for stormwater drainage and detention, mechanical ventilation work, hydraulic services (including but not limited to fire services).
Note : The PCA must submit to Council, with any Occupation Certificate , copies of works-as-executed (“WAE”) plans, Compliance Certificates and evidence of suitability in accordance with Part A2.2 of the BCA upon which the PCA has relied in issuing any Occupation Certificate .

Standard Condition: F7

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

No relevant conditions.

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

H.1 Fulfillment of BASIX commitments – Clause 154B of the Regulation


All BASIX commitments must be effected in accordance with the BASIX Certificate No. A35787.

Note : Clause 154B(2) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying authority must not issue a final occupation certificate for a BASIX affected building to which this clause applies unless it is satisfied that each of the commitments whose fulfilment it is required to monitor has been fulfilled."

Standard Condition: H7

H.2 Removal of Ancillary Works and Structures


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

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

Note : This condition has been imposed to ensure that all ancillary matter is removed prior to the issue of the Final Occupation Certificate .
Standard Condition: H12


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

I.1 Maintenance of BASIX commitments


All BASIX commitments must be maintained in accordance with the BASIX Certificate No. A35787.

Note: This condition affects successors in title with the intent that environmental sustainability measures must be maintained for the life of development under this consent.

Standard Condition: I7

J. Miscellaneous Conditions

No relevant conditions.

K. Advisings

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


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

Where there is any breach Council may without any further warning:

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

Warnings as to potential maximum penalties

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

Warning as to enforcement and legal costs

Should Council have to take any action to enforced compliance with this consent or other environmental laws Council’s policy is to seek from the Court appropriate orders requiring the payments of its costs beyond any penalty or remedy the Court may order.
This consent and this specific advice will be tendered to the Court when seeking costs orders from the Court where Council is successful in any necessary enforcement action.

Note : The payment of environmental penalty infringement notices does not result in any criminal offence being recorded. If a penalty infringement notice is challenged in Court and the person is found guilty of the offence by the Court, subject to section 10 of the Crimes (Sentencing Procedure) Act 1999, a criminal conviction is recorded. The effect of a criminal conviction beyond any fine is serious. You can obtain further information from the following web sites: and the Attorney General’s .
Standard Advising: K1

K.2 Dial before you dig

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

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

Standard Advising: K2

K.3 Builders Licences and Owner Builders Permits


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

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

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

Standard Condition: K5

K.4 Building Standards - Guide to Standards and Tolerances


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

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

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

The Guide can be down loaded from:

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

Standard Condition: K6

K.5 Workcover requirements


The Occupational Health and Safety Act 2000 No 40 and subordinate regulations, codes of practice and guidelines control and regulate the development industry.

Note : Further information can be obtained from Workcover NSW’s website: or through their head office: Location: Workcover NSW, 92-100 Donnison Street, GOSFORD 2250 Postal address: WorkCover NSW, Locked Bag 2906, LISAROW 2252, Phone [phone], Fax [phone].
Standard Condition: K7

K.6 Asbestos Removal, Repair or Disturbance


Anyone who removes, repairs or disturbs bonded or a friable asbestos material must hold a current removal licence from Workcover NSW.
Before starting work, a work site-specific permit approving each asbestos project must be obtained from Workcover NSW. A permit will not be granted without a current Workcover licence.

All removal, repair or disturbance of or to asbestos material must comply with:

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

Note : The Code of Practice and Guide referred to above are known collectively as the Worksafe Code of Practice and Guidance Notes on Asbestos. They are specifically referenced in the Occupational Health and Safety Regulation 2001 under Clause 259. Under the Occupational Health and Safety Regulation 2001, the Worksafe Code of Practice and Guidance Notes on Asbestos are the minimum standards for asbestos removal work. Council does not control or regulate the Worksafe Code of Practice and Guidance Notes on Asbestos. You should make yourself aware of the requirements by visiting or one of Workcover NSW’s offices for further advice.

Standard Advising: K8

K.7 Dividing Fences


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

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

K.8 Appeal


Council is always prepared to discuss its decisions and, in this regard, please do not hesitate to contact Ms C Owen, Assessment Officer, on [phone].

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

This approach is less adversarial, it achieves a quicker decision than would be the case through a full Court hearing and it can give rise to considerable cost and time savings for all parties involved. The use of the Section 34 Conference approach requires the appellant to agree, in writing, to the Court appointed commissioner having the full authority to completely determine the matter at the conference.

Standard Condition: K14

K.9 Release of Security


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

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

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

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

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

Note: The Application for Refund of Security form can be downloaded from

Standard Condition: K15

K.10 Recycling of Demolition and Building Material

It is estimated that building waste, including disposable materials, resulting from demolition, excavation, construction and renovation, accounts for almost 70% of landfill. Such waste is also a problem in the generation of dust and the pollution of stormwater. Council encourages the recycling of demolition and building materials.
Standard Condition: K17

K.11 Owner Builders

Under the Home Building Act 1989 any property owner who intends undertaking construction work to a dwelling house or dual occupancy to the value of $12,000 or over must complete an approved education course and obtain an owner-builder permit from the Office of Fair Trading. See .

Standard Condition: K18

K.12 Compliance with the Building Code of Australia

Preliminary assessment of the development application drawings indicates that the proposal may not comply with the following sections of the Building Code of Australia :
a) Part 3.3.4 - Weatherproofing of masonry
b) Part 3.4.1 - Sub floor ventilation
c) Part 3.7 - Fire safety
• Part 3.7.1 Fire separation
• Part 3.7.2 Smoke alarms
• Part 3.7.3 Heating appliances
d) Part 3.8 - Health and amenity
• Part 3.8.1 Wet areas
• Part 3.8.3 Facilities
• Part 3.8.4 Light
• Part 3.8.5 Ventilation
• Part 3.8.6 Sound insulation
e) Part 3.9 - Safe movement and access
• Part 3.9.1 Stair construction
• Part 3.9.2 Balustrades
Note: There must be no removal of heritage building fabric unless expressly authorised under this consent where compliance with the BCA cannot be achieved without work not authorised under this consent application to amend this consent is required.
Standard Condition: K20 (Autotext KK20)
_______________________
J S Murrell
Commissioner of the Court
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