Stralow D v North Sydney - [2004] NSWLEC 124

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Stralow D & Anor v North Sydney [2004] NSWLEC 124

PARTIES:
APPLICANT
STRALOW D & ANOR
RESPONDENT
NORTH SYDNEY COUNCIL

FILE NUMBER(S): 11487 of 2003

CORAM: Hoffman C

KEY ISSUES:
Development Application :- heritage item
streetscape
building height plane
landscape area
front setback.

LEGISLATION CITED: North Sydney Local Environment Plan 2001
North Sydney Development Control Plan 2002

CASES CITED:

DATES OF HEARING: 22 - 24/03/2004

DATE OF JUDGMENT: 03/24/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr B Hones (solicitor)
Hones Lawyers
RESPONDENT
Mr N Ogden (solicitor)
Mallesons Stephen Jacques

JUDGMENT:

1

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

11487of 2003

Hoffman C

24 March 2004

Douglas Stralow & Anor
Applicant

v

North Sydney Council

Judgment

1 . This was a Class 1 Appeal 11487 of 2003 between D & E Stralow and North Sydney Council regarding the refusal of an application for a two-car garage at No. 8 Baden Road, Neutral Bay.

2 . The house was a two-storey Federation heritage item under the North Sydney Local Environment Plan 2001 . The council had already approved a single car garage in a similar position and design to the proposal. This earlier consent involved rebuilding the front veranda of the heritage item across the full front facade of the house because its brick balustrade wall had developed a lean outwards and had dropped. Cracks in the brick balustrade of the verandah revealed this. The house itself had no cracks.

3 . The veranda was not to be rebuilt the same as the existing curved full brick balustrade. It had been approved by Council with a brick sub floor and a timber balustrade between brick piers with stone caps. The approved single garage extended between the verandah and the south side boundary and came out to the street boundary where there was a rock face stone wall about 1½ to 2 m high across the full frontage at footpath level except for two sets of entry steps. The wall retained the soil in the front setback of the house; the soil was at the top of the wall and then sloped up a little to the front wall of the house.

4 . The proposed two car garage extended beneath the southern corner of the verandah and butted up to the south east corner of the two storey house. It was 2.4 m wider than the existing approved garage. It was to have stone faced external walls with a central stone pillar to match the existing stone front wall. Above the lintel the concrete roof slab was to have a stone faced edge and a planter box in matching stone about 500mm high to match a similar stone faced garage and planter on No.6A Baden Road.

5 . Vegetation would hang over the edge of the planter box and behind that was hedge type shrubs with a timber framed balustrade mounted on the rear wall of the planter. This balustrade was apparently to match the style of the new verandah balustrade approved with the single car garage although there were no details of the balustrades design, and there were no conditions to require the two to match. This was peculiar as the house was a heritage item under the statute and one would of thought that such details would be important.

6 . The new access path from the top of the entry steps to the front door approved as a ramped path in the single garage development application, was altered in this proposal to be level with 4 steps onto the garage roof slab. This necessitated a balustrade between the path and the lower set of steps to comply with the Building Code of Australia. None was shown on the plans, but this was not raised by the Respondent. Also the steps onto the roof slab were shown in a different place on the plan view to the elevation. This was not raised by the Respondent. There was a landscape plan and it showed the planter box and shrubs on top of the garage roof as previously mentioned. An existing set of steps up from the footpath and a concrete side path on the south of the house was to be dug up and made into a landscaped area. Also landscaping was to be done across the full frontage to the street, which was 21.67 m long. The proposed garage was 6.6 m wide, the approved single garage was 4.2 m to the outside of its walls.

7 . At the north end of the site, Baden Road came to a dead end and there was a concrete carpark and carports to several blocks of flats on battle axe lots beyond the end of the street. A 4 or 5 m high stonewall of similar appearance to No. 8’s stonewall was on the uphill side of these carparks. It supported the backyard of a house fronting the next street uphill of Baden Road.

8 . Baden Road was not a conservation area. No. 6 & 6A was a matching Federation house to No. 8 and both of those and No. 2 Baden Road were heritage items. No. 6 & 6A came from the subdivision of the house into 2 units and it had 2 garages at the street front approved by the Council recently and they had been built with planter boxes above the garage door openings and stone facing.

9 . No. 2 Baden Road was a Federation apartment building and had a row of eight garages at the street front with planter boxes above the doors.

North Sydney Local Environment Plan 2001(NSLEP 2001)

· The proposal breaches the BHP by 2.6 metres on the Eastern Boundary.

State Environmental Planning Policy No.1

(a) The proposal breaches the setback control by 3.5 metres.

North Sydney Development Control Plan 2002.(NSDCP 2002)

(a) The proposal will result in a 15% non-compliance will the landscaped area control, given that the existing Site exhibits a defined landscaped area of 41.9% of the total site area and the proposal will result in a reduction of the landscaped area to 35% of the total site area.

(a) The proposal provides for only 66.5% soft landscaping when the control requires 80%.

(a) Cl. 14 of the NSLEP 2001 (Consistency with aims of plan, zone objectives and desired character) in that the proposed development fails to satisfy cl. 3(e) that being to identify and encourage the conservation of the heritage of North Sydney and to ensure that development does not adversely affect the significance of the heritage of North Sydney.

(b) Cl. 48(1)(a) and (c) of the NSLEP2001 in that the proposal compromises the heritage significance of the building,

(c) Cl. 48(7) of the NSLEP 2001 in that no structural engineers report has been submitted to Council demonstrating that the works can be undertaken in a practical manner to ensure that the heritage building and structures on neighbouring properties are not affected, or put at risk, by the works.

(d) S. 7.4(j) (iii) on the NSLEP 2001 in that the width and size of the double garage impacts upon the streetscape.
(e) Clause 39(1)(c) and 39(2) of the NSLEP 2001 in that the proposed double garage requires excavation that results in a detrimental impact upon the sandstone retaining wall.

(f) S. 7.2(a) of the NSDCP 2002 in that the proposal results in new ground levels that are greater than 500mm from the existing ground level, the proposal involves the partial removal of the sandstone retaining wall on the properties front boundary and excavation is proposed closer than 1 metre to this boundary.

(g) S. 8.8(c) (iv) of the NSDCP 2002 in that the proposal results in the demolition and removal of a section of the sandstone wall at the front of the site.

(h) S. 8.8(d) of the NSDCP 2002 in that the proposal develops the front garden area for carparking and does not retain a significant landscape feature of the site, being the front garden and the retaining wall.

(a) The proposal is inconsistent with clauses 14 & 16 of the NSLEP in that the development is of an unsatisfactory bulk and scale.

(b) The proposed width and size of the double garage compromises the streetscape.

11. Whether the proposed development is acceptable given built form requirements of s 7.3 of the NSDCP 2002:

(a) S 7.3(a) - context
(b) S 7.3(h) - form, massing, scale
(c) S 7.3(i) - built form character
(d) S 7.3(m) - colour and materials

11. The court heard the Respondent’s evidence from:
· Ms L Varley: landscape architect and Council’s conservation planner;
· Ms A Stuart: town planner – assessment officer for the council;
· Mr A Colenbrander: consultant Geotechnical Engineer.

12 . There were no objectors to the proposal and it had been publicly notified.

13. The applicant’s evidence was heard from:
· Mr G Brooks: charted architect and heritage expert;
· Mr G Goodyer: town planner and accountant;
· Ms N Sonter: landscape consultant who was not required for cross-examination but had prepared a plan that was in evidence.

14 . At the end of the hearing the parties agreed there were three threshold issues, being the three SEPP 1 objections being to;
· The building height plane
· The landscape area
· Building setback

15. The Respondent pressed the fourth threshold issue being cl 48(7)(b) the need for a structural engineers report as defined in the NSLEP2001 to ensure the stability of the heritage item and associated with the requirements of cl 39 of the LEP regarding excavation of land.

contrary to the front verandah that had developed structural faults, the house had no cracks. The house was probably founded on rock, in which case the proposed garage could be easily built touching the house on one corner. The site and the house would remain stable. If investigations found the house was not on rock, then it would have to be underpinned in the relevant corner. There were no engineering concerns that this could not be done if required.

18 . On the building height plane breach, the Court finds that the definition of existing ground level in the LEP, is as identified in the applicants evidence – that is at the top of the street boundary retaining wall, and not at its bottom. Therefore the breach of the height plane occurs only at the opening in the wall for the existing side steps and that is the same breach that the Council approved in giving consent to the single car garage.

19 . The Court accepts the applicant’s SEPP1 objection in exhibit J. In spite of the breach, the underlying objectives of the building height plane standard are achieved for the reasons in cl 4 of the objection, and compliance is unreasonable and unnecessary in the circumstances and there is no conflict with the objectives of the Act.

20 . On the building setback SEPP1 objection the Court accepts the applicant’s contention that the garages, both single and double, all along both sides of Baden Road are at or near zero setback to the street including the garage on No. 6A adjoining the site. The latter abuts the proposed garage on the southern boundary of the site. Further, the 5m high stone wall at the northern boundary is defined as building under the relevant statute. Under cl 19 therefore, no SEPP1 objection is needed. However, if I am wrong on that, the only relevant objective of the standard that can apply is the need to minimise the streetscape impact.

21 . The facts are clear. The street is not a conservation area. The subject site is the only property left without a carport, garage or parking area at zero setback to the street. The proposal is consistent with the streetscape and compliance with the standard is unreasonable and unnecessary in the circumstances and there is no conflict with the objectives of the Act.

22 . The only other way streetscape impact needs to be considered is from a question of how the garage might adversely effect the significance of the heritage item and its bulk and scale. In relation to heritage item I shall deal with that later.

23 . The third SEPP1 objection was related to landscaped area. At the end of the hearing the town planners of both parties agreed that the existing allotment did not comply with the standard of 50% of the site to be landscaped. The existing status was agreed at 41% landscaped area as the site stood, and the proposal would reduce that to 35%. A mitigating circumstance, not strictly related to the consideration of a SEPP1 objection, is that the Council had already agreed to a single car garage that further depleted that landscape area. And, the location of the single and the two car proposed garage was at the location of the existing side access steps up from the street and a wide concrete path with little vegetation. Despite this, the steps and the path currently counted as landscaped area under the definition in the statute, but did not function as soft landscaping vegetation. The proposed garage, being a building, could not have the planter box vegetation counted in the landscaped area even though it would have vegetation in it. Further the side pathway that was currently wide concrete behind the garage would be removed and made landscaped area. It would be much better quality landscaped area than existing.

24 . Turning to the SEPP1 objection the Court is satisfied that for the reasons given in the objection, the objectives of the standard and the Act are sufficiently complied with, including the requirement for soft landscaping, given the existing house on the land and its existing non compliance with the landscaped area.

25 . In regard to the heritage provisions of the NSLEP. The question is the impact of the proposal on the heritage significance of the item.

26 . The heritage item is the whole of No.8 Baden Road including the front boundary stone wall. The Council has agreed to removal of about 3.8 m of the stone wall for the single garage. The proposal adds 2.4 m to that, out of a total frontage of 21.67 m. It can be seen that a substantial part of the original wall will remain and that is the section that is directly in front of the house.
27 . The Heritage Study Inventory sheet was tendered and it was noted by the applicant that it referred only to the house, as did the photographs attached to it. The Court accepts that the wall is part of the item, and in the presentation of the item to the observer on the street, the wall is important.

28 . The Court is satisfied on the evidence that the impact of the garage will not prevent the observer understanding the original context of the house. The proposed garage is below and to the side of the house, although partly attached. One corner of the full width verandah will rest on the garage roof. But this is a small part of the veranda. The two buildings, the garage and the house, will still be seen as completely separate and the garage will match in materials and general size and planter box vegetation, the garage on the sister house at No. 6 and 6A. This similar garage on No. 6A provides an excellent opportunity for the Court to understand the final impact of the proposal on both the streetscape and the heritage item. Its bulk and scale are subordinate to, and diminutive compared to the house which will remain intact except as already approved by Council to be altered.

29 . One could say the existing two garages on the sister house at No. 6 and 6A Baden Road, and the subject proposal, when all built more or less to match, will enable the original houses to be more recognisable for their heritage, with their garages seen as a more recent addition to accommodate modern means of personal transport.

30 . The Council’s DCP recognises this need by requiring 1.5 cars per 3 bedroom house or dual occupancy. The subject house is not subdivided but it has been modified to have 2 domiciles, one downstairs and one upstairs. Although the elderly occupants do not use all the bedrooms as such, they are capable of having 3 bedrooms each requiring 3 car spaces.

31 . The evidence was that the number of garage entries in Baden Road have reduced the number of on street parking spaces to perhaps 5 or 6. This is partly because it is a narrow street and it is not possible to have parking both sides. The location of the proposed garage is in a “No Parking” restricted zone so that the creation of a footpath crossing to the proposal does not reduce on street car parking spaces that are in great demand. In fact it reduces the demand by 2 spaces.

32 . The Council recently tried to assist local frail or disable persons by resolving to make one car space opposite the site into a disable driver’s space. Since that space is the closest parking place to the subject site, which currently has no onsite car parking, the proposal would free up that on street space for other residents and visitors of Baden Road.

33 . Turning to the Character Statement for the South Cremorne Planning area which is part of the DCP 2002, it requires new buildings to complement existing building forms in massing, composition, materials and colours and maintaining existing subdivision patterns.

34 . The proposal does all those things in respect of the immediate neighbouring garages. It is not in conflict with the conservation of the heritage item and the new landscaping will visually improve the setting of the heritage item in both heritage experts’ opinions, and improve the visibility of the item to the observer in the street. There is no unacceptable impact on the additional requirements of the character statement included in the Kurraba Point South neighbourhood.

35 . Ms Varley expressed the opinion that the landscape treatment could be even better if it matched to the existing landscape on No.’s 6 and 6A which she thought was very successful and suited to the age and heritage significance of the building. In the end the draft deferred commencement conditions put by the Respondent enabled Council to have some input to this, and to the final structural solution, and, to the matching of the garage facade heights and associated works and materials to the adjoining garage on No. 6A Baden Road.

36 . Amended plans No. DA 03C, 04C and O5C went some way towards illustrating these changes of construction detail but further clarification was needed. To ensure it is satisfactory to Council and its heritage expert, deferred commencement is the best course.

37 . The Court is satisfied that the proposal , subject to appropriate conditions will not compromise the streetscape, building form and landscaped area of the site or the neighbourhood and will not compromise the heritage significance of the heritage item. It is an acceptable proposal and should be approved.

38 . Therefore the Orders of the Court are;

K G Hoffman

Appeal No: 11487 of 2003

Annexure “A”
Conditions of Deferred Commencement Consent

Douglas Stralow and Anor v North Sydney Council

8 BADEN ROAD, NEUTRAL BAY

DEVELOPMENT APPLICATION NO. D402/03

BUILDING CODE OF AUSTRALIA CLASSIFICATION: Class 1a

PART A

DEFERRED COMMENCEMENT CONDITIONS
This consent shall not operate until the following deferred commencement conditions have been satisfied.
Evidence required to satisfy this condition must be submitted to Council within 1 year of the date of this consent, or the consent will lapse in accordance with Section 95 of the Environmental Planning and Assessment Regulation 2000.
Investigative works and certification
AA1. To ensure the conservation of the heritage house upon the land, the Applicant will undertake the following to demonstrate the capacity for adequate support for the house: -

(a) Excavate 2 test pits and provide Concept Sketches as recommended by Peter Allsopp Pty Ltd and GHD Longmac Pty Ltd by Site Instruction Sheet dated 22 March 2004 and marked plan 04033/2 (Exhibit L); and

All details are to be certified by an appropriately qualified and practicing Structural Engineer and submitted to Council prior to the activation of this consent.

Structural Adequacy of Adjoining Properties
AA2. A report certificate prepared by an independent appropriately qualified and practising structural engineer, at no cost to the Council, detailing the structural adequacy of adjoining properties No’s. 6 & 6a Baden Road, and certifying their ability to withstand the proposed excavation and any measures required to be incorporated into the work to ensure that no damage will occur to adjoining properties during the course of the works, shall be submitted to Council prior to the activation of this consent.

(Reason: To ensure the protection and structural integrity of adjoining properties).

Structural Adequacy of Existing Building
AA3. A report Certificate prepared by an independent appropriately qualified and practising structural engineer,, detailing certifying the structural adequacy of the property and its ability to withstand the proposed additional, or altered structural loads shall be submitted to Council prior to the activation of this consent.

Structural Stability- Components to be Retained
AA4. A detailed reportcertificate prepared by anappropriately qualified and independent appropriately qualified and practising structural engineer, shall separately certifying the structural stability of, and the means of support during all stages of construction, of, and all components to be retained and/or altered, having regard to the overall development proposed. This shall be provided to Council prior to the activation of this consent. Application. The certificate shall also include all details of the methodology to be employed in construction phases to achieve the above requirements satisfying the criteria detailed in this condition.

(Reason: Heritage ConservationTo ensure that the development can be undertaken in accordance with accepted construction practices as indicated on the endorsed development plans, without the need for modification of the consent, and to ensure compliance with the terms of the development consent granted for the works).

Panelled door to garage

AA5. The garages is to be provided with panel lift doors with recessive colouring, detailing and finishing treatments that break up the visual solid mass of the door openings, and are complimentary to the texture and appearance of the adjacent and existing sandstone walling. The doors are to be installed and operated in such a manner that at no time do they project onto the public footpath during their operation. s to have panelled doorss . Amended plans demonstrating compliance with this condition must be submitted to Council prior to the activation of this consent.

(

External façade of the garage

AA6. The proposed face brick to be amendedexternal façade of the garages must be provided with a weathered sandstone of a texture, colour and surface finish that is consistent and complementary with the form, condition and age of the existing sandstone walling at the front of the property. Also the height of the garage door, and the stone planter box above is to be matched to the heights of the same elements in the abutting garage in No. 6A Baden Road. to sandstone or sandstone cladding Amended plans demonstrating compliance with this condition must be submitted to Council prior to the activation of this consent.

Concrete roof slab – street facade

AA7. The exposed concrete roof slab is not to be exposed at the street frontage, but and is to be fully obscured by weathered sandstone of a texture, colour and surface finish that is consistent and complementary with the form, condition and age of the existing sandstone walling at the front of the property. . Amended plans demonstrating compliance with this condition must be submitted to Council prior to the activation of this consent.

(

Concrete roof slab – landscaping

AA8. The proposed lawn and pavers should be amended to thegarage roof must be reinstatement provided with landscaping elements generally in accordance with the landscape plan numbered Job. 040201 Drawing LP.01/B, dated 19 March 2003, prepared by Botanica, and shall have a planter box above the southern wall of the garage of approximately 1200mm in width to that of the eastern planter box, a minimum depth of 750mm, and be provided with a permanent irrigation system. Council’s Heritage Officer may request landscaping within the front setback area across the full frontage of the property to be amended to reflect greater sympathy, for the age and heritage significance of the heritage item, being No. 8 Baden Roadof garden shrubbery over the majority of the concrete slab. Amended plans demonstrating compliance with this condition must be submitted to Council prior to the activation of this consent.

Lattice screen on Common Boundary

AA9. The lattice screen panel on the southern boundary closest to Baden Road tomust be scaled tapered down in height from 1.8 metres to a maximum height of one metre at the front boundary of No. 8 Baden Road. Amended plans demonstrating compliance with this condition must be submitted to Council prior to the activation of the consent.

Balustrade to front stairs

AA10. The Applicant will provide a balustrade wall compliant with the Building Code of Australia (BCA) for the proposed front stairs. This balustrade wall must be constructed with a weathered sandstone of a texture, colour and surface finish that is consistent and complimentary with the form, condition, and age of the existing walling at the front of the property. The balustrade design and dimensions are to be submitted to Council’s satisfaction. Amended plans demonstrating compliance with this condition must be submitted to Council prior to the activation of this consent.

PART B.

OPERATIONAL CONDITIONS

Once the conditions in Part A have been complied with to council’s satisfaction under s. 80(3) of the Environmental Planning and Assessment Act 1979, the following conditions apply.

A.

Conditions that Identify Approved Plans

Development in Accordance with Plans
A1. The development being carried out in accordance with drawings numbered DA.01B,DA.02B, DA.03C, DA.04C, DA.05C, DA.06B by Albion Architects and Builders, and Landscape Plan by Botanica drawing LP.01/B Job No. 040201, as modified to be satisfactory to Council in Part ‘A’ above , and as further amended by the following conditions.
(Reason: Statutory)

Plans on Site
A2. A copy of all stamped approved plans, specifications and documents (including the Construction Certificate if required for the work incorporating certification of conditions of approval) certification shall be kept on site at all times so as to be readily available for perusal by any officer of Council or the Principal Certifying Authority.

(Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council, Public Information and to ensure ongoing compliance)

No Demolition of Extra Fabric
A3. Alterations to, and demolition of the existing building shall be limited to that documented on the approved plans (by way of notation). No approval is given or implied for removal and/or rebuilding of any portion of the existing building which is shown to be retained.

(Reason: To ensure compliance with the approved development)

Approved Landscaping Plan

(Reason: To ensure appropriate landscaped area and landscaping amenity at the stage of the development)

C. Conditions that Require Subsidiary Matters to be Completed Prior to Issue of a Construction Certificate

Damage to Public Infrastructure
C1. The applicant shall bear the cost of all restoration works to Council’s property damaged during the course of this development. The applicant shall advise Council, in writing, of any existing damage to Council property before commencement of the development. A dilapidation survey of Council’s assets, including photographs and written record, must be prepared by a suitably qualified person and submitted to Council prior to the submission of an application forissuing of any Construction Certificate.

Note:

Damage Bond (Potential Damage)
C2. A Bond of $2,000.00 shall be deposited with Council, prior to the issue of any application for construction certificate, against the construction of drainage works that revert to Council’s care and control.against the potential for damage to Council’s footpath and road reserve infrastructure during the construction process.

(Reason: To ensure appropriate security is in place for the pStatutoryrotection or repair of Public Infrastructure)

Vehicular Access way Design

(a) The vehicular access way shall be designed to comply with AS 2890.1 to ensure that a B85 vehicle will not scrape/strike the surface of the carriageway, layback, vehicular crossing or garage floor.

(b) The width of the vehicular layback shall be 6.3 metres (including the wings).

Bond for Engineering Construction Works (Vehicular Crossing)

(Reason: To ensure appropriate security for works on public land and an appropriate quality for new Safety and Statutorypublic infrastructure)

Permit for Crossing and Bond

Infrastructure Specification and Vehicular Access Application Guidelines and Specification

(ENTER AMOUNT)

Crossing Plan Details

(i) Longitudinal section along the extremities and centre-line of each driveway/access ramp at a scale of 1:50.

(iv) The sections shall show the calculated clearance to the underside of any overhead structure.

(v) A longitudinal section along the gutter line showing how it is intended to blend the vehicular crossing into the existing kerb and gutter.

(vi) All details of internal ramps between parking levels.

All details are to be certified by an appropriately qualified and practising Civil Engineer, as complying with Australian Standard AS 2890.1, Parking Facilities and Council’s standard specifications.

Road Works- Reconstruct Carriageway Shoulder

C7. The applicant must reconstruct/construct the carriageway shoulder (600mm wide strip adjacent to all new gutter works), layback, full frontage kerb/gutter (except for the location of the layback), crossing, grass verge, footpath pavement and transition works. The works shall be designed and constructed in compliance with the following:

a) All elements of the works within the road reserve is to be constructed in accordance with Council’s current documents Infrastructure Specification and Vehicular Access Application Guidelines and Specification.

b) All redundant laybacks must be reinstated as kerb and gutter.

c) The proposed kerb gutter and layback gutter alignment shall be raised on a parallel alignment to the existing gutter to ensure that the crossfall grade of the carriageway shoulder is no greater than 5.5% or less than 1.0% for a distance of 600mm, falling to the gutter, starting from the surface of the existing carriageway 1050mm from the existing face of kerb.

d) The footpath pavement and grass verge shall be placed on a single straight grade of 3.0% falling to the top of kerb.

e) Footpath pavement transition works are required to ensure gentle changes in grade, drainage and no ‘trip’ hazards between the existing and proposed pavement. These works have been assessed as 1500mm in length or one pavement panel, whichever is the greatest.

i) Upstream of the proposed layback, the kerb/gutter must be reconstructed for a length of 1000mm or to a point where a longitudinal gutter grade of 1.0% can be achieved or to an existing joint, whichever is the greatest.

Downstream

(Reason: To facilitate suitable vehicular access to private sites, without disruption to pedestrian and vehicular traffic and to ensure appropriate access and infrastructure protection that is integral with infrastructure on surrounding sites)

Footpath level at property boundary

C8. The property alignment levels shall match the existing levels except where modified for the vehicular crossing. Where modified by the vehicular crossing the footpath level of the property boundary shall be 500mm lower than the existing property alignment level.

Property Alignment Levels
C2. The property alignment levels shall match the existing levels except where modified for the vehicular crossing. Where modified by the vehicular crossing the property alignment shall be 50mm lower than the existing property alignment level so that the entry floor level of the garage is 50mm below the existing boundary level.

(Reason: To facilitate suitable vehicular access to private sites, without disruption to pedestrian and vehicular traffic and to ensure appropriate access and infrastructure protection that is integral with infrastructure on surrounding sites)

Sediment Control

(a) All details of drainage to protect and drain the site during the construction processes;

(b) All sediment control devices, barriers and the like;

(c) Sedimentation tanks, ponds or the like;

(d) Covering materials and methods;

Details from an appropriately qualified person showing that these design requirements have been met shall be submitted with the Construction Certificate and approved by the Certifying Authority prior to issuing of the Construction Certificate.

(Reason: To protect the environment from the effects of sedimentation and erosion from development sites)

Dilapidation Survey

On completion of the excavation and building works and prior to occupation of the building, a certificate prepared by the person agreed to by the parties to the effect that no damage has resulted to adjoining premises, is to be provided to Council or the Principal Certifying Authority.

If damage is identified by the person agreed to by the parties which is considered to require rectification, the damage shall be rectified or a satisfactory agreement for rectification of the damage is to be made with the affected person/s as soon as possible and prior to occupation of the development.

All costs incurred in achieving compliance with this condition shall be borne by the person entitled to act on this Consent.

MUST DEMONSTRATE,

Note:

Waste Management Plan
C11. A Waste Management Plan is to be submitted with the Construction Certificate in accordance with the provisions of Section 19 of the North Sydney DCP 2002. The plans should include, but not be limited to, the estimated volume of waste and method of disposal for the construction and operation phases of the development, design of on-site waste storage and recycling area and administrative arrangements for waste and recycling management during the construction process.

(Reason: To encourage the minimisation of waste and recycling of building waste)

Security Bond Schedule
C12. All fees and security bonds in accordance with the schedule below must be paid or in place prior to the lodgement of any application forissue of the required Construction Certificate:-

SECURITY BOND & FEE SCHEDULE
8 BADEN ROAD, NEUTRAL BAY
DEVELOPMENT APPLICATION NO. D402/03

SECURITY BONDSAMOUNT $

Footpath Damage Bond

Engineering Construction Bond$2,000.00

$4,000.00

TOTAL BONDS$6,000.00

(Reason: Compliance with the development consent)

Bonds
C13. Council will accept a bank guarantee for the purpose of any security bond imposed by these conditions of consent. Such bank guarantee shall be in a form acceptable to the Council and shall be in place prior to the commencement of work and shall remain in place until the submission of the certificate required prior to the occupancy of the completed works.

(Reason: Information, Protection of infrastructure and the environment)

Parking Facility Garage

(Reason: Ease of manoeuvrability)

Stormwater and Seepage Water

That part of the stormwater drainage system that is to be reconstructed/constructed shall be designed and constructed in compliance with the following:

not a charged or pumped system

f) Subsoil drains are to be provided on the upstream side of any pit or retaining wall.

g) Seepage/subsoil water shall be drained to Council’s street kerb via a suitable silt arrester pit.
(Reason: Local flooding, safety and amenity)Central pier

C18. The double garage to be separated into two garages with a central pierAmended plans.

D. Conditions That Must Be Addressed Prior To Any Commencement

Excavation/Demolition
D1. No demolition or excavation shall be carried out until a Construction Certificate has been issued.

(Reason: To ensure compliance with statutory provisions)
Disposal Schedule

D1. A disposal schedule for waste materials arising from demolition and excavation shall be submitted to Council, prior to commencement of demolition or building works, identifying:

A maximum amount of materials shall be recycled or reused.

(Reason: Environmental Management Protection)

Re-use of Sandstone

( NOTE : The provisions of the Heritage Act may also apply to altering any sandstone elements on any site)

Inspection Fees

NOTE

(Reason: Information with Section 608 (6) of the Local Government Act 1993)

Cigarette Butt Receptacle – Residential

(Reason: To ensure adequate provision is made for builders’ waste)

Public Liability Insurance – Works on Public Land

Note: Applications for hoarding permits, vehicular crossings etc will require evidence of insurance upon lodgement of the application.

E. Conditions that Must be Complied With During Demolition and Building Work

Progress Inspections
J1. The Principal Certifying Authority SHALL BE given two (2) working days notice for inspection of the following:

Notes

1. Where North Sydney Council is acting as the Principal Certifying Authority for the project, notice is to be given by telephone to a Planning and Development Services Administration Officer and an appointment made for the relevant inspection. Failure to advise Council at the stages of construction identified above will result in fines being imposed.

MANDATORY INSPECTIONS

Replacement of Principal Certifying Authority
J2. If the person exercising the benefits of a development consent changes or replaces the Principal Certifying Authority (PCA) during works on the site, the replacement PCA must notify North Sydney Council within two (2) days of appointment.
(Reason: Statutory requirement)

Final Compliance Certificate
J3. Within seven (7) days of completion of the building works and prior to occupation or the issue of an Occupation Certificate a Certificate of Compliance under Section 109C (1) (a) of the Environmental Planning and Assessment Act 1979 must be provided by the Principal Certifying Authority. This Compliance Certificate must certify that the completed work complies with the relevant Plans and Specifications and with the following conditions of this development consent: A1, F1, G1, G2, G3, G4, G5.

(Reason: To ensure compliance with the terms of this development consent)

Removal of Extra Fabric
J4. Should any portion of the existing building, trees, or curtilage of the site which is indicated on the approved plans to be retained be damaged for whatever reason, all the works in the area of the damaged portion are to cease and written notification given to Council. No work is to resume until the written approval of Council is obtained. Failure to comply with the provisions of this condition will result in the Council institutinge immediate legal proceedings.

Noise
J5. Noise emissions and vibration must be minimised where possible and work is to be carried out in accordance with Environment Protection Authority guidelines for noise emissions from construction/demolition works and must also comply with the provisions of the Protection of the Environment Operations Act 1997.Noise emissions must comply with applicable standards under the Protection of the Environment Operations Act 1997. Vibration from the works must not be felt on any adjoining property.

(Reason: To ensure residential amenity is maintained in the immediate vicinity)

Dust Emission and Air Quality

Vehicles entering and leaving the site with soil or fill material must be covered.

(Reason: To ensure residential amenity is maintained in the immediate vicinity)

Vibration from Works
J7. Vibration from works is to be undertaken in accordance with industry best practice, and to ensure excessive levels of vibration do not occur and to minimise adverse effects experienced on any adjoining land.

Special Permits
J8. Unless otherwise specifically approved in writing by Council, all works, processes, storage of materials, loading and unloading associated with the development are to occur entirely on the property. The applicant, owner or builder must apply for specific permits available from Council’s Customer Service Centre for the undermentioned activities on Council’s property pursuant to S138 of the Roads Act. A minimum of forty-eight (48) hours notice is required for any permit:-
(1) On-street mobile plant

E.g. cranes, concrete pumps, cherry-pickers, etc. - restrictions apply to the hours of operation, the area of operation, etc. Separate permits are required for each occasion and each piece of equipment. It is the applicant’s, owner’s and builder’s responsibilities to take what ever steps are necessary to ensure that the use of any equipment does not violate adjoining property owner’s rights.

(Reason: Proper management of public land)

Hoardings

Permits are required to erect Class A and Class B hoardings. If an ‘A’ Class hoarding is to alienate a section of Council’s property, that section will require a permit for the occupation of Council’s property.

(Reason: Proper management of public land)

Storage of building materials and building waste containers (skips) on Council’s property

Permits to utilise Council property for the storage of building materials and building waste containers (skips) are required for each location. Failure to obtain the relevant permits will result in the building materials or building waste containers (skips) being impounded by Council with no additional notice being given. Storage of building materials and waste containers on open space reserves and parks is prohibited.

(Reason: Proper management of public land)

Kerbside restrictions, construction zones

Applicants should note that the alternatives of such restrictions may require referral to Council’s Traffic Committee and may take considerable time to be resolved. An earlier application is suggested to avoid delays in construction programs.

(Reason: Proper management of public land)Soil Depth

J1. Planting beds over concrete slabs (basements, roofs, etc) shall provide a minimum depth of soil of 750 mm. Wherever possible, trees and shrubs are to be planted in unexcavated soil. A reduced planting depth of 500 mm is acceptable in areas proposed to be turfed.

Noxious Plants
J9. All lantana, privet, rubber trees, parateria, and other declared noxious plants on the site, shall be eradicated before the commencement of landscape works.

(Reason: To ensure that plants identified as weed species are not allowed to proliferate or interfere with a quality landscaping outcome)

Construction Hours

Demolition and excavation works shall be restricted to within the hours of 8.00 am to 5.00 pm Monday to Friday only. (Excavation work includes the use of any excavation machinery and the use of jackhammers, rock breakers, excavators, loaders and the like, regardless of whether the activities disturb or alter the natural state of the existing ground stratum or are breaking up/removing materials from the site).

The builder and excavator shall display, on-site, their twenty-four (24) hour contact telephone number which is to be clearly visible and legible from any public place adjoining the site.

(Reason: To ensure that works do not interfere with reasonable amenity expectations of residents and the community)

Health and Safety

(Reason: To ensure the health and safety of the community and workers on the site)

Landscaping and Rehabilitation

(Reason: To ensure that appropriate landscaping is undertaken within a reasonable timeframe in accordance with community expectations)

Occupation Certificate Required

(Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act)

Prohibition on Use of Pavements
J14. Building materials shall not be placed on Council's footpaths, roadways, parks or grass verges and a suitable sign to this effect shall be erected adjacent to the street alignment.

Plant & Equipment Kept Within Site
J15. All plant and equipment used in the erection of the building, including concrete pumps, wagons, lifts, mobile cranes, etc, shall be situated within the boundaries of the site and so placed that all concrete slurry, water, debris and the like shall be discharged onto the building site, and is to be contained within the site boundaries..
(Reason: To ensure public safety and amenity on public land)

Heritage consultant
J16. An appropriately heritagequalified heritage consultant must be appointed to consult with the builder engaged to ensure adequate drainage and damp proofing is provided to the existing dwelling and sandstone wall in the vicinity of the garage, and must attend on the site and be consulted during the damp proofing process.

(Reason: To ensure adequate drainage and damp proofing is provided to protect the heritage building and sandstone wall; appropriate drainage methodology)

Structural engineer

F. Operational Conditions imposed under EP&A Act and Regulations and other relevant Legislation

Building Code of Australia
F1. All building work must be carried out in accordance with the provisions of the Building Code of Australia.

(Reason: Prescribed - Statutory)

Home Building Act
F2. (1) Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the Principal Certifying Authority for the development to which the work relates:

(a) in the case of work to be done by a licensee under that Act:

(i) has been informed in writing of the licensee’s name and contractor licence number, and

(ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act, or

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

Note

(2) (2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

(Reason: Prescribed - Statutory)

Excavation/Demolition
F3. (1) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.

a. (2) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

(Reason: To ensure that work is undertaken in a professional and responsible manner and protect adjoining property and persons from potential damage)

Retaining Walls & Drainage

(a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and

(b) adequate provision must be made for drainage in accordance with the provisions of AS3500.3.2.

(Reason: Prescribed -To ensure appropriate measures are in place to address site conditions and provide appropriate site drainage)

Support for Neighbouring Buildings

(a) must preserve and protect the building from damage;

(b) if necessary, must underpin and support the adjoining building in an approved manner; and

(c) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

(2) The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

(3) In this clause, allotment of land includes a public road and any other public place.

(Reason: Prescribed - StatutoryTo ensure adjoining owner’s property rights are protected and protect adjoining properties from potential damage)

Protection of Public Places

(a) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient; or

a hoarding or and site fencinge must be erected between the work site and the public place.

(2) If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

(3) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

(4) Any such hoarding, fence or awning is to be removed when the work has been completed.

NOTE

(Reason: Prescribed - StatutoryTo ensure public safety and the proper management of public land)

Site Sign

(a) stating that unauthorised entry to the work site is prohibited;, and

i. (b) showing the name of the principal contractor )or person in charge of the work site), and a telephone number at which that person may be contacted at any time for business purposes and outside working hours; and.

(3) This condition does not apply to :

(a) building works being carried out inside an existing building., or

(Reason: Statutory requirement)

Toilets

(2) Each toilet provided:

(a) must be a standard flushing toilet, and

(b) must be connected:

(i) to a public sewer; or

(ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or

(iii) 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.

(4) In this clause:

accredited sewage management facility

approved by the Council

public sewer

sewage management facility

(Reason: Prescribed -To ensure adequate facilities are provided for workers on the site)

G. Conditions which Must be Complied With Prior to Issue of Occupation Certificate

Reinstatement
G1. All redundant lay-backs and vehicular crossings shall be reinstated to conventional kerb and gutter, foot-paving or grassed verge as appropriate. All costs shall be borne by the applicant, and works shall be completed prior to the issue of an Occupation Certificate.

(Reason: To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic, and the preservation of on street parking spaces)

Certification- Civil Works
G2. (a) An appropriately qualified personappropriately qualified and practising Civil Engineer shall certify to the Principal Certifying Authority that the stormwater drainage system was constructed in accordance with the consent and the provisions of AS3500.3.2 The applicant shall, upon completion of the development works and prior to the final inspection/sissue of any Occupation Certificate, submit to Council a copy of the aforementioned letter of certification.

(b) An appropriately qualified and practicing Civil Engineer appropriately qualified person shall certify to the Principal Certifying Authority that the vehicular crossing and associated works and road works were constructed in accordance with thise consent. The applicant shall, upon completion of the development works and prior to the final inspection/s, submit to Council a copy of the aforementioned letter of certification.

(Reason: Compliance with the Consent)

Works as Executed Drawings- Stormwater

(Reason: Compliance with the Consent)

Damage to Adjoining Properties
G4. All precautions must be taken to prevent any damage likely to be sustained to adjoining properties. Adjoining owner property rights and the need for owner’s permission must be observed at all times, including the entering onto land for the purpose of undertaking works. Where damage occurs to adjoining property all necessary repair or suitable agreement for necessary repairs are to be undertaken by the applicant in consultation with and with the consent of the affected property owner prior to the occupation of the development or issue of a buildingan Occupation Ccertificate.

Utility Services
G5. All utility services shall be adjusted, to the correct levels and/or location/s required by this consent, prior to final completion and the issue of any occupation certificate.
(Reason: To ensure compliance with the terms of this consent)

__________________
K G Hoffman
Commissioner of the Court
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Citations

Stralow D v North Sydney [2004] NSWLEC 124

Cases Citing This Decision

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CITATION:	Stralow D & Anor v North Sydney [2004] NSWLEC 124
PARTIES:	APPLICANT STRALOW D & ANOR RESPONDENT NORTH SYDNEY COUNCIL
FILE NUMBER(S):	11487 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- heritage item streetscape building height plane landscape area front setback.
LEGISLATION CITED:	North Sydney Local Environment Plan 2001 North Sydney Development Control Plan 2002
CASES CITED:
DATES OF HEARING:	22 - 24/03/2004
DATE OF JUDGMENT:	03/24/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr B Hones (solicitor) Hones Lawyers RESPONDENT Mr N Ogden (solicitor) Mallesons Stephen Jacques