Stathakis v Woollahra Municipal Council - [2010] NSWLEC 1324

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Stathakis v Woollahra Municipal Council [2010] NSWLEC 1324

PARTIES:
APPLICANT
Mr Ross Stathakis
RESPONDENT
Woollahra Municipal Council

FILE NUMBER(S): 10425 of 2010

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT MODIFICATION :- Inclusion of roof top terrace; amenity impacts of noise; anti-social behaviour; loss of privacy.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005
Woollahra Local Environmental Policy 1995

DATES OF HEARING: 19 October 2010 & 17 November 2010

DATE OF JUDGMENT:
2 December 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr T Robertson (Senior Counsel)
SOLICITOR
Woolf & Associates
RESPONDENT
Mr J Merlino (Solicitor)
SOLICITOR
Lindsay Taylor Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

2 December 2010
Appeal No 10425 of 2010 Strathakis, R v Woollahra Municipal Council

1 This appeal was lodged against council’s refusal of an application to modify a development consent to allow a roof top terrace for Unit 3 on an approved residential flat building (RFB) at 9 Military Road, Watsons Bay. The property contains an existing RFB that is to be demolished

2 The original development application proposed a roof top terrace but Condition C1, (f) required its deletion and restricted access to the roof for maintenance purposes only.
3 The modified roof terrace has been reduced in area, a timber extension to the rear deleted, a rooftop staircase housing has been deleted and the replacement of planting and some pebble finish in a recessive colour to reduce the bulk of the planter boxes. Consequently, the issues identified by council are summarised as follows:

Acoustic privacy.

Necessity and reasonableness.

Objections.

4 The appeal commenced by way of a s34 Conference. As there was no resolution, the parties agreed that the matter be determined by Hussey C. Following discussions between the parties, the proposed rooftop terrace layout was further amended to that shown in the DA 05 Issue F plan.

The evidence
5 Expert reports were submitted by:

Mr N Juradowitch; Consulting planner for council,

Mr P Grech; Consulting planner for the applicant,

Mr A Simpson; Council’s tree officer.

Mr G Atkins; Acoustic consultant for council,

Mr N Gross, Acoustic consultant for the applicant.

6 In addition to this, a number of residents were given the opportunity to express objections to the application. The objections concern:

The potential shading and loss of daylight due to the inclusion of the rooftop terrace.

Adverse noise impacts,

Likelihood of anti – social behaviour from the use the terrace,

Non – compliance with setback controls,

Excessive area of the terrace allowing large numbers of people on the terrace creating reduced amenity for neighbours.

Potential problems with the maintenance of the proposed plantings.

7 As a result of further conferencing between the parties, additional revisions were made to the proposed terrace configuration as shown in the Issue G plans (Attachment AA) and the associated landscape plan - Issue D (Attachment BB). These plans now propose:

A reduced ‘active’ front terrace area of approximately 5m x 8m, which is located adjacent to and oriented towards the street front boundary.

A defined, tapering width pathway from this area to the stairs.

The provision of plantings in the areas surrounding the front terrace and pathway. This incorporates planting buffers approximately 1m wide adjacent to the front terrace area to restrict potential overlooking and neighbour disamenity.

The rear, eastern part of the rooftop has restricted stepped access over a small parapet wall to a central stepping stone circuit to allow passive experience of the landscaping and access for maintenance. Sections of this roof area are to have a pebble finish around the perimeter, which should restrict any undue pedestrian activity and loss of amenity to neighbours.

The applicant has accepted that only low light intensity of this rear area is to be allowed so as to minimise night time use and potential amenity impacts from this area.

8 The planner’s conferencing addressed the relevant planning controls including the Watsons Bay Heritage Conservation Area DCP (WBHCA), the Residential DCP and SEPP 65 in regard to the amenity issue. From this they agree that a roof terrace for unit 3 is a reasonable proposal, although by reference to other terraces, Mr Juradowitch considered a maximum area of 35 sq m appropriate for a private terrace.

9 Insofar as the final amendments restricting the useable areas were made, Mr Juradowitch still considers there would be potential for large gatherings and prefers the imposition of conditions restricting the number of terrace users and a time limit of restricting use from 10pm to 7am, apart from a limited number (up to 4/year) of ‘special events’.

10 An associated component of the amenity impacts concerns the acoustic issue. Noise modelling was initially undertaken at the site and predictions made about potential noise levels arising from the terrace use. A particular concern raised by Mr Atkins related to noise arising from people congregating towards the rear of the terrace (Area B) and potentially causing disturbance to neighbours.

11 However, following the subsequent amendments restricting congregation locations that are likely to impact on the neighbours, it is apparent from the acoustic experts evidence that compliance with the proposed conditions of consent should result in an acceptable acoustic environment.
12 In this regard, I have considered the applicant’s alternative time restriction condition, which is from 12pm to 7am on any day that is not a special day. In the circumstances, I think that the council’s finish time of 10pm is unduly restrictive and the times proposed by the applicant reasonable to impose. Whilst it will be an attractive area, I think it is a reasonable assumption that it will be used on a “good neighbour basis” so that the resultant amenity should be acceptable. In this regard, I note that there are other outdoor entertaining areas in this neighbourhood. If however anti – social behaviour is created, the provisions of the Protection of the Environment Operations Act 1997 are available.

Conclusions
13 Having carefully considered the evidence, the submissions and undertaken a view, I am satisfied that this modification application merits consent. During the appeal further amendments were made which significantly reduce the area of the front “active” part of the terrace, together with restrictions on general pedestrian access to the rear part. This includes low level lighting and a limited width path to limit night – time use.

14 In terms of the consideration of the modification application, I am satisfied that it relates to the same development and that the objectors were notified and their concerns, which are substantially consistent with the council’s issues, considered.

15 In the first instance, I rely on the planner’s agreement that a roof terrace of the form proposed is permissible in this area. Insofar as concerns were raised about potential amenity impacts, I am satisfied that the revised and reduced effective size of the terrace should result in acceptable amenity.

16 The principal active area is located at the front of the building and is primarily oriented towards the street. This orientation affords attractive westerly views towards the city and harbour as compared to any secondary viewing towards the neighbouring properties, thereby minimising impacts, in my assessment.

17 The front terrace now incorporates internal planters along the sidewalls to prevent overlooking towards neighbours and I am satisfied this matter is now addressed. The amount and type of low planting in the rear “passive” area also restricts pedestrian access and should not impact on the solar and privacy amenity of neighbouring units, according to the evidence of the planners, on which I rely.

18 Insofar as there was some disagreement about the separation of the rear part whereby Mr Juradowitch preferred the retention of the glass wall from the water feature and the inclusion of a gate, I do not consider this reasonable in the circumstances. The steps over the parapet walls and reduced landing area restrict access to this area. As the proposed gate could be propped open and cause an additional noise source, I do not consider it is warranted.

19 The other significant issue concerns potential noise impacts arising primarily from the night time use of the terrace. The particular concern identified by the acoustic experts related to congregation in the rear part of the terrace. But this situation has been substantially addressed in my assessment by the redesign that includes the non – trafficable landscaped area, comprising the revised species suggested by Mr Simpson that restricts access. Also, the low intensity lighting of this area should restrict adverse amenity from this area.

20 Taking into consideration the context of this rooftop terrace and its access through the unit, I am satisfied that its general usage should result in a reasonable balance of amenity for the occupants and neighbours.
Court orders
21 The Court orders that:

1 The appeal is upheld.
2 The s96 modification to allow the construction and use of a rooftop terrace at 9 Military Road, Watsons Bay is approved subject to the conditions in Annexure A.
3 The exhibits may be returned except 4, 5, 12 and A.

R Hussey
Commissioner of the Court

Annexure “A”

Conditions of Consent

For the property know as 9 Military Road WATSONS BAY

For demolition of existing residential flat building & construction of new 3 unit apartment building with underground carparking, landscaping and siteworks

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:

The collection of stormwater,

The retention of stormwater,

The reuse of stormwater,

The detention of stormwater,

The controlled release of stormwater; and

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:

the use of land in connection with development,

the subdivision of land,

the erection of a building,

the carrying out of any work,

the use of any site crane, machine, article, material, or thing,

the storage of waste, materials, site crane, machine, article, material, or thing,

the demolition of a building,

the piling, piering, cutting, boring, drilling, rock breaking, rock sawing or excavation of land,

the delivery to or removal from the site of any machine, article, material, or thing, or

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)

DA.02 Issue D
DA.03 Issue C Architectural Plans Zoltan Kovacs Architect 03/09

DA.04 Issue E
DA.06 Issue D
DA.07 Issue E Architectural Plans Zoltan Kovacs Architect 03/10

*DA. 05 Issue G Architectural Plan Zoltan Kovacs Architect 11/10

194096M BASIX Certificate Department of Planning 14.05.08

Plant by Plant Revised Plan Issue A Landscape Plan Tracey Plant dated not supplied.

*Landscape Plan Issue D Landscape Plan Tracey Plant 10/10

Driveway Profiles Zoltan Kovacs Architect 03/09

22077ZRrpt Geotechnical Report Jeffery and Katauskas P/L 15/05/2008

STW01-04 Stormwater Management Plan Brian O’Mara & Partners 15/05/2008

(*) Modified by Land and Environment Court of New South Wales 2 December 2010

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

An archival record of the building and landscape elements to be demolished is to be submitted, to the satisfaction of Council’s heritage officer, prior to the commencement of the demolition work and prior to the issue of a Construction certificate.

The archival record is to be completed by a heritage consultant listed by the NSW Heritage Office or by another suitably qualified consultant who must demonstrate a working knowledge of archival principles.

The archival record is to be bound in an A4 format, with drawings folded to suit and is to include the following:
a. A copy of the final heritage report submitted with the development application,
b. A site plan at a scale of 1:200 (or 1:500 if appropriate) of all structures and major landscape elements including their relationship to the street and adjoining properties; floor plans at scale of 1:100; postcard sized photographs of:

i. each elevation;
ii. each structure and landscape feature and significant parts of the property as
defined in the submitted statement of significance;
iii. views to the subject property from each street and laneway or public space;
and
iv. external and internal details as nominated in the assessment report by Council’s heritage officer.

c. Each photograph to be mounted, labelled and cross-referenced in accordance with recognised archival recording practice.
d. The original, coloured, photographic set and one coloured photocopy are to be submitted to the satisfaction of Council’s heritage officer prior to the commencement of demolition work and prior to the issue of a construction certificate. The original will be retained by Council and the coloured photocopy will be provided to the Woollahra Local History Library.

Standard Condition: B3

To limit the potential for damage to trees to be retained, Tree Protection Zones are to be established around all trees to be retained on site. The Tree Protection Zones are to comply with the following requirements;

a) Tree Protection Zone areas

Council Reference No: Species Location Radius from Trunk (metres)*

1
Cupressus spp Cypress Pine Northern side of driveway entrance to 7 Military Road Watsons Bay

1.75

2
Ficus benjamina Weeping Fig Side northern boundary of 7 Military Rd Watsons Bay

2.25

3
Ficus benjamina Weeping Fig Side northern boundary of 7 Military Rd Watsons Bay most eastern specimen

1.5

4
Casuarina equisetifolia Coastal She-oak Side northern boundary of 7 Military Rd Watsons Bay most western specimen

1.5

5
Melaleuca quinquenervia Broad-leafed Paperbark Side northern boundary of 7 Military Rd Watsons Bay

2

6
Casuarina equisetifolia Coastal She-oak Side northern boundary of 7 Military Rd Watsons Bay most eastern specimen

2.5

10, 11, 12, 13, 14, 15, 16, 17 Casuarina glauca Swamp She-oak Side southern boundary of 11 Military Rd Watsons Bay

1.75

18 Syagrus romanzoffianum Cocos Palm Side southern boundary of 11 Military Rd Watsons Bay

1.5

*NB: Where this condition relates to street trees and the fence cannot be placed at the specified radius, the fencing is to be positioned so that the entire verge (nature strip) area in front of the subject property, excluding existing driveways and footpaths, is protected.
b) Tree Protection Zones are to be fenced with a 1.8 metre high chainmesh or weldmesh fence to minimise disturbance to existing ground conditions. The area within the fence must be mulched, to a depth of 75mm, irrigated and maintained for the duration of the construction works (Figure 1).

c) A sign must be erected on each side of the fence indicating the existence of a Tree Protection Zone and providing the contact details of the site Arborist.
d) Existing soil levels must be maintained within Tree Protection Zones. Where excavation is undertaken adjacent such an area, the edge of the excavation must be stabilised, until such time as permanent measures are installed (eg. retaining wall etc) to prevent erosion within the Tree Protection Zone.
e) Sediment control measures are to be installed around all Tree Protection Zones to protect the existing soil levels.
f) The storage of materials, stockpiling, siting of works sheds, preparation of mixes, cleaning of tools or equipment is not permitted within Tree Protection Zones.
Site personnel must be made aware of all Tree Protection requirements, measures and any actions that constitute a breach of the Conditions of Development Consent with regard to tree protection on site during their site induction.

Standard Condition: B5

In accordance with British Standard BS5837, one incursion no greater than 20% of a trees calculated Tree Protection Zone is considered allowable provided the tree is a healthy and vigorous specimen. Upon completion of approved works within the Tree Protection Zone, the specified Tree Protection Zone fencing must end either side of the allowable incursion. The table below provides a radius distance from the centre of the trunk of existing trees whereby the following incursions are permissible:

a) Permissible Work within Tree Protection Zones

Council Reference No: Species Location Radius from Trunk(metres) Approved works within incursion

1
Cupressus spp Cypress Pine Northern side of driveway entrance to 7 Military Road Watsons Bay

1.75

Approved landscaping

2
Ficus benjamina Weeping Fig Side northern boundary of 7 Military Road Watsons Bay

2.25

Approved landscaping

3
Ficus benjamina Weeping Fig Side northern boundary of 7 Military Road Watsons Bay most eastern specimen

1.5

Approved landscaping

4
Casuarina equisetifolia Coastal She-oak Side northern boundary of 7 Military Road Watsons Bay most western specimen

1.5

Approved landscaping

5
Melaleuca quinquenervia Broad-leafed Paperbark Side northern boundary of 7 Military Road Watsons Bay

2

Approved landscaping

6
Casuarina equisetifolia Coastal She-oak Side northern boundary of 7 Military Road Watsons Bay most eastern specimen

2.5

Approved landscaping

10, 11, 12, 13, 14, 15, 16, 17 Casuarina glauca Swamp She-oak Side southern boundary of 11 Military Road Watsons Bay

1.75

Proposed pedestrian access path

18 Syagrus romanzoffianum Cocos Palm Side southern boundary of 11 Military Road Watsons Bay

1.5

Proposed pedestrian access path

b) Where excavation is undertaken within a specified Tree Protection Zone, the edge of the excavation must be stabilised, until such time as permanent measures are installed (eg. retaining wall etc) to prevent erosion within the Tree Protection Zone.
c) To prevent damage to roots and compaction within the Tree Protection Zone of specified trees, excavation must be hand dug. Small hand tools only are to be utilised, mattocks and similar digging tools are not be used within these areas. No root with a diameter equal to or in excess of 50mm is to be cut unless approved, in writing, by a qualified Arborist (minimum qualification of Australian Qualification Framework Level 4 or recognised equivalent).

All root pruning must be undertaken in accordance with the Australian Standard 4373 “Pruning of Amenity Trees” and carried out by a qualified Arborist (minimum qualification of Australian Qualification Framework Level 4 or recognised equivalent).

Beyond this radius, mechanical excavation is permitted, when root pruning by hand along the perimeter line of such works is completed.

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

The approved plans and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation , must detail the following amendments:

i. Modified by Land and Environment Court of New South Wales 2 December 2010

A glass balustrade 600mm high is to be provided on the small parapet wall between the roof top water feature and the northern edge of the steps from the trafficable areas and the landscaped areas on the roof terrace. The edges of the landscaped area at the eastern and southern edges that adjoin the rear trafficable area are to be planted with species that deter access over the small parapet wall.

12.00pm and 7am, on any day which is not a special day,
1.00am and 7am, on a special day such as New Years day but limited to no more than 6 special days per year.

Note : The effect of this condition is that it requires design changes and/or further information to be provided with the Construction Certificate drawings and specifications to address specific issues identified during assessment under section 79C of the Act .

Note : Clause 146 of the Regulation prohibits the issue of any Construction Certificate subject to this condition unless the Certifying Authority is satisfied that the condition has been complied with.

Note

Regulation

Construction Certificate

Part 4A Certificate

construction certificate

subdivision certificate or occupation certificate

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
$36,000.00

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)
$17,000.00
+ Index Amount

Yes, quarterly

T96

INSPECTION FEES
under Section 608 of the Local Government Act 1993

Public Road/Footpath Infrastructure Inspection Fee
$363.25

No

Security Administration Fee
$168.00

No

T16

TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES $53,531.25 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. 194096M 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

This development consent does NOT give approval to works or structures over, on or under public roads or footpaths excluding minor works subject to separate Road Opening Permit.
Detailed plans and specifications of all works (including but not limited to structures, road works, driveway crossings, footpaths and stormwater drainage) within existing roads, must be submitted to Council’s Development Engineer and approved by Council under the Roads Act 1993, before the issue of any Construction Certificate . To accommodate this requirement, the following infrastructure works must be carried out on Council property at the Applicants expense:

Road & Footpath

Full width vehicular crossings having a width of 3.5m including new layback and gutter in accordance with Council’s standard drawing RF2.
Removal and replacement of the existing footpath with approved pavers for the full width of the property in accordance with Council’s standard drawing RF3.
Removal of all driveway crossings and kerb laybacks which will be no longer required and replacement with standard K&G in accordance with Council’s standard drawing RF3
Reinstatement of footpath, kerb and gutter to match existing.

Connection to the existing Council pit at the northern side of the property..
The developer shall be responsible for carrying out any service investigations to allow a gravity connection.

An “Application to carry out works in a Public Road” form (available from Councils web-site ) must be completed and lodged, with the Application fee, at Councils Customer Services counter. Detailed engineering plans and specifications of the works required by this Condition must accompany the Application form. The plans must clearly show the following:

Engineering drawings (plan, sections and elevation views) and specifications of the footpath, driveways, kerb & gutter, pits etc showing clearly the connection point of site outlet pipe(s

The Construction Certificate plans and specifications required by Clause 139 of the Regulation, must make provision for:

Standard Condition: C16

The Construction Certificate plans and specifications, required by clause 139 of the Regulation , must demonstrate that all utility services (telecommunications, electricity, gas, water and waste water) will be provided underground. All service ducts, pipes and conduits must be provided within the fabric of the building (excluding stormwater down pipes).

Where telecommunications and electricity are provided from existing poles in the road they must, in accordance with the relevant suppliers’ requirements, be carried to the site underground directly to the main switch board within the fabric of the building.

Note : Where adequate provision has not been made for an electrical sub-station within the building, this may necessitate the lodgement of an application to amend this consent under section 96 of the Act to detail the location, landscape/streetscape impacts and compliance with AS2890 as applicable.

The location of service poles and substations required by the relevant suppliers must be shown upon the plans submitted with any Construction Certificate application together with a letter from each relevant supplier setting out their requirements.
Proposed water pipes, waste pipes, stack work, duct work, mechanical ventilation plant and the like must be located within the building unless expressly shown upon the approved DA plans. Details confirming compliance with this condition must be shown on the Construction Certificate plans and/or detailed within the Construction Certificate specifications. Required external vents or vent pipes on the roof or above the eaves must be shown on the Construction Certificate plans.

Note : The intent of this condition is that the design quality of the development must not be compromised by cables, pipes, conduits, ducts, plant, equipment, electricity substations or the like placed such that they are visible from any adjoining public place. They must be contained within the building unless shown otherwise by the approved development consent plans.

The Construction Certificate plans and specifications, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the replacement of all private sewer pipes between all sanitary fixtures and Sydney Waters sewer main where they are not found by inspection to be UPVC or copper with continuously welded joints.

Note

Standard Condition: C20

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

Regulation

Accredited Certifier

The Construction Certificate plans and specifications required by clause 139 of the Regulation must, show the following information;

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:

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:

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 include a Stormwater Management Plan for the site.

The Stormwater Management Plan must detail:

a. general design in accordance with Brian O’Mara & Partners drawings STW-01 – STW-04 dated 15 May 2008 other than amended by this and other conditions;
b. pumps are only permitted to remove water that enters the carpark from the driveway surface and water reuse. The pumping of subsurface or groundwater is not permitted.
c. the discharge of stormwater, by direct connection, to Councils stormwater drainage pit adjacent to the development in Military Road;
d. compliance the objectives and performance requirements of the BCA;
e. any rainwater tank required by BASIX commitments including their overflow connection to the Stormwater Drainage System , and
f. general compliance with the Council’s draft Development Control Plan Stormwater Drainage Management (draft version 1, public exhibition copy dated 23 August 2004), and
g. on-site stormwater detention (“OSD’).

OSD Requirements

The minimum (OSD) Site Storage Requirements (“SSR”) and the Peak Site Discharge (“PSD”) from the site must be in accordance with the following minimum storage/discharge relationships based upon a 1000m ² site area:

Average Reoccurrence Interval	PSD L/s	Minimum Site Storage Requirement (SSR) ^m³
2 year	23.5 L/s	4m³
100 year	34 L/s	25m³ – Dwelling House 27m³ – Residential Flat Building 29m³ – Other Development
All values based on per 1000m² site area (interpolate to site area).

Where the rainwater tank is used for external uses only, 40% of the rainwater tank volume to a maximum of 4m³ , or
Where the rainwater tank is used for external and internal uses, 75% of the rainwater tank volume to a maximum of 7.5m³.

Example : The Site Storage Requirements may be 25,000 litres and a 10,000 litre rainwater tank is to be used for garden irrigation. Therefore, the rainwater tank contributes 4,000 litres toward SSR. Therefore, the OSD tank needs to be 21,000 litres (25,000 litres less the 4,000 litres allowance). Note: 1m³ = 1,000 litres.

Stormwater Management Plan

A detailed drainage plan at a scale of 1:100 based on drainage calculations prepared in accordance with the Institute of Engineers Australia publication, Australian Rainfall and Run-off, 1987 edition or most current version thereof.

All pipe layouts, dimensions, grades, lengths and material specification,
Location of On-Site Detention,
All invert levels reduced to Australian Height Datum (AHD),
Location and dimensions of all drainage pits,
Point and method of connection to Councils drainage infrastructure, and
Overland flow paths over impervious areas.

On-site Detention (OSD) details

Any potential conflict between existing and proposed trees and vegetation,
Internal dimensions and volume of the proposed detention storage,
Diameter of the outlet to the proposed detention storage basin,
Plans, elevations and sections showing the detention storage basin invert level, centre-line level of outlet, top water level, finished surface level and adjacent structures,
Details of access and maintenance facilities,
Construction and structural details of all tanks and pits and/or manufacturer’s specifications for proprietary products,
Details of the emergency overland flow-path (to an approved Council drainage point) in the event of a blockage to the on-site detention system,
Non-removable fixing details for orifice plates where used,

Copies of certificates of title, showing the creation of private easements to drain water by gravity, if required.

Subsoil Drainage - Subsoil drainage details, clean out points, discharge point.

Note:

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

Home Building Act 1989

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.

BCA

Note

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):

a) 11 Military Road
b) 7 Military Road,
c) 3 Military Road,
d) 6 Gap Road
e) 7 Gap Road, and
f) 7 A Gap Road.

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

principal contractor

owner builder

notice of commencement

Act

Standard Condition: D4 (Autotext DD4)

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

Conveyancing Act

The principal contractor must be provide piezometers within the excavation area and a further piezometers around the perimeter of the wall. The piezometers are to be installed to monitor groundwater levels before and during all dewatering works for the construction phase.

The Ground Water Levels monitoring wells and monitoring program must be maintained until the issue of the Final Occupation Certificate .

Ground Water Levels are to be regularly monitored during the course of the works as required by the Work Method Statement for the control of Ground Water Levels. Any damaged piezometers are to be replaced to allow uninterrupted monitoring.

professional engineer

Standard Condition: D7

To limit the potential for damage to trees to be retained, Tree Protection Zones are to be established around all trees to be retained on site. The Tree Protection Zones are to comply with the following requirements;

a) Tree Protection Zone areas

Council Reference No: Species Location Radius from Trunk (metres)*

1
Cupressus spp Cypress Pine Northern side of driveway entrance to 7 Military Rd Watsons Bay

1.75

2
Ficus benjamina Weeping Fig Side northern boundary of 7 Military Rd Watsons Bay

2.25

3
Ficus benjamina Weeping Fig Side northern boundary of 7 Military Rd Watsons Bay most eastern specimen

1.5

4
Casuarina equisetifolia Coastal She-oak Side northern boundary of 7 Military Rd Watsons Bay most western specimen

1.5

5
Melaleuca quinquenervia Broad-leafed Paperbark Side northern boundary of 7 Military Rd Watsons Bay

2

6
Casuarina equisetifolia Coastal She-oak Side northern boundary of 7 Military Rd Watsons Bay most eastern specimen

2.5

10, 11, 12, 13, 14, 15, 16, 17 Casuarina glauca Swamp She-oak Side southern boundary of 11 Military Rd Watsons Bay

1.75

18 Syagrus romanzoffianum Cocos Palm Side southern boundary of 11 Military Rd Watsons Bay

1.5

b) Tree Protection Zones are to be fenced with a 1.8 metre high chainmesh or weldmesh fence to minimise disturbance to existing ground conditions. The area within the fence must be mulched, to a depth of 75mm, irrigated and maintained for the duration of the construction works.
c) A sign must be erected on each side of the fence indicating the existence of a Tree Protection Zone and providing the contact details of the site Arborist.
d) Existing soil levels must be maintained within Tree Protection Zones. Where excavation is undertaken adjacent such an area, the edge of the excavation must be stabilised, until such time as permanent measures are installed (eg. retaining wall etc) to prevent erosion within the Tree Protection Zone.
e) Sediment control measures are to be installed around all Tree Protection Zones to protect the existing soil levels.
f) The storage of materials, stockpiling, siting of works sheds, preparation of mixes, cleaning of tools or equipment is not permitted within Tree Protection Zones.

Site personnel must be made aware of all Tree Protection requirements, measures and any actions that constitute a breach of the Conditions of Development Consent with regard to tree protection on site during their site induction.

Note : Water Restrictions take precedence over this condition. Having regard to water restrictions manual hosing may be necessary.

Standard Condition: D8

In accordance with British Standard BS5837, one incursion no greater than 20% of a trees calculated Tree Protection Zone is considered allowable provided the tree is a healthy and vigorous specimen. Upon completion of approved works within the Tree Protection Zone, the specified Tree Protection Zone fencing must end either side of the allowable incursion. The table below provides a radius distance from the centre of the trunk of existing trees whereby the following incursions are permissible:

a) Permissible Work within Tree Protection Zones

Council Reference No: Species Location Radius from Trunk (metres) Approved works within incursion

1
Cupressus spp Cypress Pine Northern side of driveway entrance to 7 Military Rd Watsons Bay

1.75

Approved landscaping

2
Ficus benjamina Weeping Fig Side northern boundary of 7 Military Rd Watsons Bay

2.25

Approved landscaping

3
Ficus benjamina Weeping Fig Side northern boundary of 7 Military Rd Watsons Bay most eastern specimen

1.5

Approved landscaping

4
Casuarina equisetifolia Coastal She-oak Side northern boundary of 7 Military Rd Watsons Bay most western specimen

1.5

Approved landscaping

5
Melaleuca quinquenervia Broad-leafed Paperbark Side northern boundary of 7 Military Rd Watsons Bay

2

Approved landscaping

6
Casuarina equisetifolia Coastal She-oak Side northern boundary of 7 Military Rd Watsons Bay most eastern specimen

2.5

Approved landscaping

10, 11, 12, 13, 14, 15, 16, 17 Casuarina glauca Swamp She-oak Side southern boundary of 11 Military Rd Watsons Bay

1.75

Proposed pedestrian access path

18 Syagrus romanzoffianum Cocos Palm Side southern boundary of 11 Military Rd Watsons Bay

1.5

Proposed pedestrian access path

b) Where excavation is undertaken within a specified Tree Protection Zone, the edge of the excavation must be stabilised, until such time as permanent measures are installed (eg. retaining wall etc) to prevent erosion within the Tree Protection Zone.
c) To prevent damage to roots and compaction within the Tree Protection Zone of specified trees, excavation must be hand dug. Small hand tools only are to be utilised, mattocks and similar digging tools are not be used within these areas. No root with a diameter equal to or in excess of 50mm is to be cut unless approved, in writing, by a qualified Arborist (minimum qualification of Australian Qualification Framework Level 4 or recognised equivalent).

All root pruning must be undertaken in accordance with the Australian Standard 4373 “Pruning of Amenity Trees and carried out by a qualified Arborist (minimum qualification of Australian Qualification Framework Level 4 or recognised equivalent).

Beyond this radius, mechanical excavation is permitted, when root pruning by hand along the perimeter line of such works is completed.

As a result of the site constraints, limited space and access a Construction Management Plan is to be submitted to Council. Due to the lack of on-street parking availability a Work Zone may be required from Council during construction.
A construction management plan must be submitted and approved by Council’s Development Engineer. The plan must:-
a) Describe the anticipated impact of the construction works on:

Local traffic routes

Pedestrian circulation adjacent to the building site

On-street parking in the local area

b) Describe the means proposed to:

Manage construction works to minimise such impacts,

Provide for the standing of vehicles during construction,

Provide for the movement of trucks to and from the site, and deliveries to the site

c) Show the location of:

Any site sheds and any anticipated use of cranes and concrete pumps,

Any areas of Council property on which it is proposed to install a Works Zone (Construction Zone)

Structures to be erected such as hoardings, scaffolding or shoring

Any excavation

d) Describe the excavation impact on the area including

Number and types of trucks to be used

Time frame

Streets to be used

Routes to be taken

Directions of travel

Truck storage areas

It is recommended that vehicle routes be shared

Excavation is to only be carried out outside peak and school hours between 9.30am to 2.30pm week days

The CMP is to include both demolition and excavation works

e) Show the location
Of all Tree Protection (Exclusion) Zones as required within the conditions of this development consent.

The Plan must make provision for all materials, plant, etc. to be stored within the development site at all times during construction. Structures or works on Council property such as hoardings, scaffolding, shoring or excavation need separate approval from Council. Standing of cranes and concrete pumps on Council property will need approval on each occasion.
Note: A minimum of eight weeks will be required for assessment. Work must not commence until the Construction Management Plan is approved. Failure to comply with this condition may result in fines and proceedings to stop work.
Standard Condition: D9

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: .

Security 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.
Note : 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)

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

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

Standard Condition: D13

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

Soil and Water Management Plan

Do it Right On Site, Soil and Water Management for the Construction Industry

Managing Urban Stormwater - Soils and Construction

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

Protection of the Environment Operations Act

Warning

Protection of the Environment Operations Act

Standard Condition: D14

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

Home Building Act 1989

Home Building Act 1989

In the case of work for which a principal contractor is required to be appointed:
In the case of work to be done by an owner-builder:

Standard Condition: D17

Prior to the commencement of any work the principal contractor or owner builder must ensure that a surveyor registered under the Surveying Act 2002 sets out:

a) the boundaries of the site by permanent marks (including permanent recovery points);
b) the location and level of foundation excavations, footings, walls and slabs by permanent marks, pegs or profiles relative to the boundaries of the land and relative to Australian Height Datum (“AHD”) in compliance with the approved plans;
c) establishes a permanent datum point (bench mark) within the boundaries of the site relative to AHD; and
d) provides a copy of a survey report by the registered surveyor detailing, the title boundaries, pegs/profiles, recovery points and bench mark locations as established pursuant to this condition to the PCA.

Note : Where the principal contractor or owner builder notes any discrepancy between the approved development consent and the Construction Certificate , especially in relation to the height, location or external configuration of the building (but not limited to these issues) the principal contractor or owner builder should not proceed until satisfied that the variations as shown are consistent with the consent. Failure to do so may result in a breach of development consent.

Note

Standard Condition: D18

E. Conditions which must be satisfied during any development work

For the purposes of section 80A (11) of the Act, the following condition is 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.

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

building

Note

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

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

Do it Right On Site, Soil and Water Management for the Construction Industry

Managing Urban Stormwater - Soils and Construction

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

Warning

E.18 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

Site Crane(s) and hoist(s) may be erected within the boundary of the land being developed subject to compliance with Australian Standards AS 1418, AS 2549 and AS 2550 and all relevant parts to these standards.

Cranes must not swing or hoist over any public place unless the principal contractor or owner builder have the relevant approval under the Local Government Act 1993 , Crown Lands Act 1989 or Roads Act 1993 .

The crane must not be illuminated outside approved working hours other than in relation to safety beacons required by the Civil Aviation Safety Authority under the Civil Aviation Act 1988 (Cth).

No illuminated sign(s) must be erected upon or displayed upon any site crane.

Note : Where it is proposed to swing a crane over a public place the principal contractor or owner builder must make a separate application to Council under section 68 of the Local Government Act 1993 and obtain activity approval from Council prior to swinging or hoisting over the public place.

Note

principal contractor

owner builder

Access to Neighbouring Land Act 2000

Conveyancing Act 1919

Land & Environment Court Act 1979

Standard Condition: E19

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

Standard Condition: E21

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

Protection of the Environment Operations (Control of Burning) Regulation

Standard Condition: E22

Dust Control - Do it right on site

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

All work carried out on assets which are under Council ownership or will revert to the ownership, care, control or management of Council in connection with the development to which this consent relates must comply with Council’s Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003.

The owner , principal contractor or owner builder must meet all costs associated with such works.

This condition does not set aside the need to obtain relevant approvals under the Roads Act 1993 or Local Government Act 1993 for works within Roads and other public places.

Note:

Specification for Roadworks, Drainage and Miscellaneous Works

Standard Condition: E24

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)

Act

Note

Standard Condition: F1

The owner or principal contractor must install all approved amenity landscaping (screen planting, soil stabilisation planting, etc.) prior to any occupation or use of the site.
Note : This condition has been imposed to ensure that the environmental impacts of the development are mitigated by approved landscaping prior to any occupation of the development.
Standard Condition: F6

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

The principal contractor or owner builder must submit, to the satisfaction of Woollahra Municipal Council, certification from a professional engineer that all public infrastructure works have been executed in compliance with this consent and with Council’s Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003.

The development must be provided with street and sole occupancy unit numbers determined by Council. This condition has been imposed to ensure that emergency services, utility services, and the general public are able to clearly and readily locate any property. Further, this condition has been imposed to protect the integrity of street numbering and land information.

Note

All letter boxes must be constructed and located in accordance with AS/NZS 4253:1994 Mailboxes and to Australia Post’s satisfaction.

Note

Standard Condition: F12

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

If an electricity substation, is required on the site the owner must dedicate to the appropriate energy authority (to its satisfaction), free of cost, an area of land adjoining the street alignment to enable an electricity substation to be established. The size and location of the electricity substation is to be in accordance with the requirements of the appropriate energy authority and Council. The opening of any access doors are not to intrude onto the public road (footway or road pavement).

Documentary evidence of compliance, including correspondence from the energy authority is to be provided to the Principal Certifying Authority prior to issue of the Construction Certificate detailing energy authority requirements.

The Accredited Certifier must be satisfied that the requirements of energy authority have been met prior to issue of the Construction Certificate.

Standard Condition: G4

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

All BASIX commitments must be effected in accordance with the BASIX Certificate No. 194096M.

Note

certifying authority

Standard Condition: H7

All landscape work including all planting must be completed by the principal contractor or owner in compliance with the approved landscape plan, arborist report, transplant method statement and tree management plan. The principal contractor or owner must provide to PCA a works-as-executed landscape plan and certification from a qualified landscape architect/designer, horticulturist and/or arborist as applicable to the effect that the works as completed comply with this consent.

Note

Final Occupation Certificate

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

Final Occupation Certificate

The following works must be completed to the satisfaction of Council, in compliance with Council’s “Specification for Roadworks, Drainage and Miscellaneous Works” dated January 2003 unless expressly provided otherwise by these conditions at the principal contractor’s or owner’s expense:

road

b) Driveways and vehicular crossings within the road;

c) Removal of redundant driveways and vehicular crossings;

d) New footpaths within the road;

e) Relocation of existing power/light pole

f) relocation/provision of street signs

g) New or replacement street trees;

h) New footway verges, where a grass verge exists, the balance of the area between the footpath and the kerb or site boundary over the full frontage of the proposed development must be turfed. The grass verge must be constructed to contain a uniform minimum 75mm of friable growing medium and have a total cover of turf predominant within the street.

i) New or reinstated kerb and guttering within the road; and

j) New or reinstated road surface pavement within the road.

Note

Final Occupation Certificate

Standard Condition: H13

On completion of construction work, stormwater drainage works are to be certified by a professional engineer with Works-As-Executed drawings supplied to the PCA detailing:

a) Compliance with conditions of development consent relating to stormwater;
b) The structural adequacy of the On-Site Detention system (OSD);
c) That the works have been constructed in accordance with the approved design and will provide the detention storage volume and attenuation in accordance with the submitted calculations;
d) Pipe invert levels and surface levels to Australian Height Datum;
e) Contours indicating the direction in which water will flow over land should the capacity of the pit be exceeded in a storm event exceeding design limits.
f) A positive covenant pursuant to Section 88E of the Conveyancing Act 1919 must be created on the title of the subject property, providing for the indemnification of Council from any claims or actions and for the on-going maintenance of the on-site-detention system and/or absorption trenches, including any pumps and sumps incorporated in the development. The wording of the Instrument must be in accordance with Council’s standard format and the Instrument must be registered at the Land Titles Office.

Note

Final Occupation Certificate

Standard Condition: H20

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

All BASIX commitments must be maintained in accordance with the BASIX Certificate No. 194096M.

Note:

Standard Condition: I7

All landscaping must be maintained in general accordance with this consent.

This condition does not prohibit the planting of additional trees or shrubs subject that they are native species endemic to the immediate locality.

This condition has been imposed to ensure that the landscaping design intent is not eroded over time by the removal of landscaping or inappropriate exotic planting.

Note

Standard Condition: I8

No clothes, linen or the like must be hung from any balcony, terrace or veranda such that they are visible from any public place.

Reason

Standard Condition: I9

The Owner(s) must in accordance with this condition and any positive covenant:

a) Permit stormwater to be temporarily detained by the system;
b) Keep the system clean and free of silt rubbish and debris;
c) If the car park is used as a detention basin, a weather resistant sign must be maintained in a prominent position in the car park warning residents that periodic inundation of the car park may occur during heavy rain;
d) Maintain renew and repair as reasonably required from time to time the whole or part of the system so that it functions in a safe and efficient manner and in doing so complete the same within the time and in the manner reasonably specified in written notice issued by the Council;
e) Carry out the matters referred to in paragraphs (b) and (c) at the Owners expense;
f) Not make any alterations to the system or elements thereof without prior consent in writing of the Council and not interfere with the system or by its act or omission cause it to be interfered with so that it does not function or operate properly;
g) Permit the Council or its authorised agents from time to time upon giving reasonable notice (but at anytime and without notice in the case of an emergency) to enter and inspect the land with regard to compliance with the requirements of this covenant;
h) Comply with the terms of any written notice issued by Council in respect to the requirements of this clause within the time reasonably stated in the notice;
i) Where the Owner fails to comply with the Owner’s obligations under this covenant, permit the Council or its agents at all times and on reasonable notice at the Owner’s cost to enter the land with equipment, machinery or otherwise to carry out the works required by those obligations;
j) Indemnify the Council against all claims or actions and costs arising from those claims or actions which Council may suffer or incur in respect of the system and caused by an act or omission by the Owners in respect of the Owner’s obligations under this condition.

This condition has been imposed to ensure that owners are aware of require maintenance requirements for their stormwater systems.

Note

Standard Condition: I12

Outdoor lighting must comply with AS 4282-1997: Control of the obtrusive effects of outdoor lighting. The maximum luminous intensity from each luminare must not exceed the level 1 control relevant under table 2.2 of AS 4282. The maximum illuminance and the threshold limits must be in accordance with Table 2.1 of AS 4282.

This condition has been imposed to protect the amenity of neighbours and limit the obtrusive effects of outdoor lighting in public places.

Note

Outdoor lighting must comply with AS 4282-1997: Control of the obtrusive effects of outdoor lighting . The maximum luminous intensity from each luminare must not exceed the level 1 control relevant under table 2.2 of AS 4282. The maximum illuminance and the threshold limits must be in accordance with Table 2.1 of AS 4282.

All lighting to be installed on the roof terrace will be recessed lights or will be surface wall/balustrade mounted lights at a maximum height of 600 mm above the finished floor level of the roof terrace.

No lighting is to be installed in the landscaped area at the rear of the roof terrace.

This condition has been imposed to protect the amenity of neighbours and limit the obtrusive effects of outdoor lighting.

Note

Standard Condition: I44

Noise from the operation of mechanical plant and equipment and the roof top water feature must not exceed background noise when measured at the nearest lot boundary of the site. Where noise sensitive receivers are located within the site, noise from the operation of mechanical plant and equipment and the roof top water feature must not exceed background noise when measured at the nearest strata, stratum or community title boundary.

: Words in this condition have the same meaning as in the:

NSW Industrial Noise Policy

Noise Guide for Local Government

J. Miscellaneous Conditions

None relevant.

K. Advisings

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

Note

the Crimes (Sentencing Procedure) Act

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 .

Standard Advising: K2

The Disability Discrimination Act 1992 (DDA) makes it against the law for public places to be inaccessible to people with a disability. Compliance with this development consent, Council’s Access DCP and the BCA does not necessarily satisfy compliance with the DDA.

The DDA applies to existing places as well as places under construction. Existing places must be modified and be accessible (except where this would involve "unjustifiable hardship”).

Further detailed advice can be obtained from the Human Rights and Equal Opportunity Commission (“HEROC”):

a)
b)

[email protected]

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): .

Standard Condition: K5

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: 9619 8618 or by post to: Marketing Branch, PO Box 972, Parramatta NSW 2124.

The Guide can be down loaded from:

principal contractor

Standard Condition: K6

Occupational Health and Safety Act

2000 No 40

Note

Standard Condition: K7

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

Standard Advising: K8

It is beyond the scope of this consent to provide detailed information about dealing with lead paint. Painters working in an area containing lead-based paint should refer to Australian Standard AS 4361.1–1995, Guide to Lead Paint Management—Industrial Applications, or AS 4361.2–1998, Guide to Lead Paint Management—Residential and Commercial Buildings.

Industrial paints, may contain lead. Lead is used in some specialised sign-writing and artist paints, and road marking paints, and anti-corrosive paints. Lead was a major ingredient in commercial and residential paints from the late 1800s to 1970. Most Australian commercial buildings and residential homes built before 1970 contain lead paint. These paints were used both inside and outside buildings.

Standard Advising: K9

Council is always prepared to discuss its decisions and, in this regard, please do not hesitate to contact Eleanor Smith, Assessment Officer, on (02) 9391 7090

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.

Standard Condition: K14

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:

Standard Condition: K15

Home Building Act 1989

Standard Condition: K18

If you submitted a model with the application it must be collected from the Council offices within fourteen (14) days of the date of this determination. Models not collected will be disposed of by Council.

Standard Condition: K21 (Autotext KK21)

______________________

R Hussey

Commissioner of the Court

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Citations

Stathakis v Woollahra Municipal Council [2010] NSWLEC 1324

Cases Citing This Decision

0

Cases Cited

1

Statutory Material Cited

3

Over Our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125

CITATION:	Stathakis v Woollahra Municipal Council [2010] NSWLEC 1324
PARTIES:	APPLICANT Mr Ross Stathakis RESPONDENT Woollahra Municipal Council
FILE NUMBER(S):	10425 of 2010
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT MODIFICATION :- Inclusion of roof top terrace; amenity impacts of noise; anti-social behaviour; loss of privacy.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Woollahra Local Environmental Policy 1995
DATES OF HEARING:	19 October 2010 & 17 November 2010
DATE OF JUDGMENT:	2 December 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr T Robertson (Senior Counsel) SOLICITOR Woolf & Associates RESPONDENT Mr J Merlino (Solicitor) SOLICITOR Lindsay Taylor Lawyers

Reference	Description	Author/Drawn	Date(s)
DA.02 Issue D DA.03 Issue C	Architectural Plans	Zoltan Kovacs Architect	03/09
DA.04 Issue E DA.06 Issue D DA.07 Issue E	Architectural Plans	Zoltan Kovacs Architect	03/10
*DA. 05 Issue G	Architectural Plan	Zoltan Kovacs Architect	11/10
194096M	BASIX Certificate	Department of Planning	14.05.08
Plant by Plant Revised Plan Issue A	Landscape Plan	Tracey Plant	dated not supplied.
*Landscape Plan Issue D	Landscape Plan	Tracey Plant	10/10
Driveway Profiles	Zoltan Kovacs Architect	03/09
22077ZRrpt	Geotechnical Report	Jeffery and Katauskas P/L	15/05/2008
STW01-04	Stormwater Management Plan	Brian O’Mara & Partners	15/05/2008
(*) Modified by Land and Environment Court of New South Wales 2 December 2010

Council Reference No:	Species	Location	Radius from Trunk (metres)*
1	Cupressus spp Cypress Pine	Northern side of driveway entrance to 7 Military Road Watsons Bay	1.75
2	Ficus benjamina Weeping Fig	Side northern boundary of 7 Military Rd Watsons Bay	2.25
3	Ficus benjamina Weeping Fig	Side northern boundary of 7 Military Rd Watsons Bay most eastern specimen	1.5
4	Casuarina equisetifolia Coastal She-oak	Side northern boundary of 7 Military Rd Watsons Bay most western specimen	1.5
5	Melaleuca quinquenervia Broad-leafed Paperbark	Side northern boundary of 7 Military Rd Watsons Bay	2
6	Casuarina equisetifolia Coastal She-oak	Side northern boundary of 7 Military Rd Watsons Bay most eastern specimen	2.5
10, 11, 12, 13, 14, 15, 16, 17	Casuarina glauca Swamp She-oak	Side southern boundary of 11 Military Rd Watsons Bay	1.75
18	Syagrus romanzoffianum Cocos Palm	Side southern boundary of 11 Military Rd Watsons Bay	1.5

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	$36,000.00	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)	$17,000.00 + Index Amount	Yes, quarterly	T96
INSPECTION FEES under Section 608 of the Local Government Act 1993
Public Road/Footpath Infrastructure Inspection Fee	$363.25	No
Security Administration Fee	$168.00	No	T16
TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES	$53,531.25 plus any relevant indexed amounts and long service levy