The Uniting Church in Australia Property Trust (NSW) v Sutherland Shire Council - [2005] NSWLEC 289

Land and Environment Court

of New South Wales

CITATION:
The Uniting Church in Australia Property Trust (NSW) v Sutherland Shire Council [2005] NSWLEC 289

PARTIES:
APPLICANT:
The Uniting Church in Australia Property Trust (NSW)
RESPONDENT:
Sutherland Shire Council

FILE NUMBER(S):
11303 of 2004

CORAM:
Lloyd J

KEY ISSUES:
Development Application :- subdivision - merit considerations - visual impact - allotments size - weight to be given to the draft local environmental instrument

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979, s 5(1), s 97
State Environmental Planning Policy No. 1 - Development Standards
Sutherland Shire Local Environmental Plan 2000

DATES OF HEARING: 18/04/2005 and 19/04/2005

EX TEMPORE JUDGMENT DATE:
04/19/2005

LEGAL REPRESENTATIVES:
APPLICANT:
B J Preston SC and J M Jagot (barrister)
SOLICITORS:
Mallesons Stephen Jaques
RESPONDENT:
S A Duggan (barrister)
SOLICITOR:
Chris Mathieson
Principal Environmental Lawyer
Sutherland Shire Council

JUDGMENT:

- 30 -

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Lloyd J

19 April 2005

LEC No. 11303 of 2004

THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) v SUTHERLAND SHIRE COUNCIL [2005] NSWLEC 289

EX TEMPORE JUDGMENT

1 HIS HONOUR: This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (NSW) (“the EP&A Act”), against the deemed refusal of an amended development application for a subdivision of land at Bundeena.

2 The site of the proposed development was, as I understand it, previously used as a conference centre and a church by the Uniting Church. It has an area of about 1.37 hectares, with frontages to two streets, Scarborough Street and Mary Street. It is proposed to create a community title subdivision comprising 15 lots for residential development, one community property lot and one lot to be retained by the church for church purposes. As I understand it, the lot to be retained by the church will continue to have access from Mary Street, as at present. Access to the residential lots will be by way of an internal road off Scarborough Street.

3 For reasons which will now follow, the Court has determined that the appeal will be allowed and the development application will be approved.

4 It must be said at the outset that this is a carefully and sensitively designed development that sits comfortably within an established residential area. In my experience I have not previously seen an application for subdivision into which so much thought and care has been put in creating a development which blends with its surroundings to the extent that this development does. For example, the extent to which significant trees are to be retained and protected is unprecedented in my experience; structures such as road works and carports which impinge upon the root zones of trees are to be suspended on piers so as not to interfere with the root zone; the road surface is to be paved with permeable material so as to allow rainwater to enter the root zones; the footprints of houses to be erected in due course, have been carefully located to avoid tree loss, and have been located and designed by a firm of award winning architects; trees that are necessarily lost will be replaced by new plantings; and conditions will be imposed to ensure that the new plantings of trees are maintained until they are fully established.

5 The Court has had the benefit of a view of the site and its surroundings with representatives of the parties and heard a large number of local residents at the site who object to the development. I shall presently return to discuss their objections.

6 The issues which arose may be shortly stated as follows:

7 Issues 1, 2 and 3 may all be seen to be related. The land is subject to the Sutherland Shire Local Environmental Plan 2000 (“the SSLEP 2000”) under which is it zoned Residential 2(a1). It is in the middle of an established residential area, being bordered on three sides by existing residential development. Bundeena Public School is on the opposite side of Scarborough Street. The land is on a north-west facing slope and some of the proposed lots will have obscured views through trees to Hordens beach and Bundeena bay.

8 I have referred to the fact that the site contains a large number of trees. The applicant has furnished plans showing the existing trees to be retained, trees to be removed and trees to be planted. As I understand the evidence, the site contains, at present, 138 trees. A total of 56 trees have been identified for removal, 16 of which are either dead or dying, and 3 of which are weed species. A total of 47 replacement trees will be planted.

9 During the view of the site the Court heard from the arborists retained by the parties, Mr Peter Castor for the applicant and Mr David Shiels for the respondent, Sutherland Shire Council (“the Council”). The measures taken to ensure that the retained trees will be unaffected by the development, together with the conditions designed to ensure the survival of the newly planted trees, satisfy the Court that the requirements of cll 19, 30 and 31 of the SSLEP 2000 regarding the retention and enhancement of vegetation, the protection of the landscape and visual character of the area, the protection of wildlife corridors, the protection of bushland vegetation and of the unique visual identity and amenity of the landscape, will be satisfied.

10 The requirements of the relevant development control plan which require that all healthy canopy trees be preserved, and that there be no loss of indigenous native canopy, will also be largely met. To the extent that those requirements are not met, the proposed development remains an acceptable form of development, having regard to the matters to which I have referred.

11 The Court does not accept that there will be a significant alteration to the character of the locality. In this respect, it would seem that any requirements of the New South Wales Rural Fire Service would equally apply to the land in its present state as well as post-development, so that the before and after situation may not be very different.

12 A number of other provisions of the SSLEP 2000 are relevant. The building footprints and building designs proposed for each lot will satisfy the floor space ratio and landscaped area requirements of cll 35 and 36. The areas of the lots will satisfy the minimum allotment size of 550 square metres required by cl 37.

13 Some of the lots, however, are marginally less than the minimum width of 15 metres, for their full depth, as required by cl 38, and this is the subject of an objection under State Environmental Planning Policy No. 1 – Development Standards (“SEPP No. 1”). As to this requirement, the Council’s residential subdivision development control plan states that the width of an allotment is to be measured at a distance of 7.5 metres at right angles to the front boundary. That is, the Council itself is clearly of the view that if the minimum width of fifteen metres may be achieved at a distance of 7.5 metres from the front boundary, and that would be satisfactory. All of the lots comply with this requirement.

14 As I have said, an objection has been lodged under SEPP No. 1, and this requires a number of considerations. Firstly, is the planning control in question a development standard? Clearly, yes. Next, what is the underlying object or purpose of the standard? That is set out in cl 38(1) of the SSLEP 2000, relevantly:

(1) The objectives of the allotment dimension requirements are:

(a) to require sufficient allotment widths and depth to enable some variations in design for development, and
(b) to ensure sites have adequate widths and depth for the arrangement of sufficient side boundary setbacks, efficient driveways, sufficient landscaped areas and satisfactory building form that takes into account the uses made of adjoining properties.

…

15 That is the underlying object or purpose of the development standard. This development meets those objectives.

16 The next question is whether compliance with the development standard is consistent with the aims of the policy? And in particular, does compliance with the development standard tend to hinder the attainment of the object specified in sub-s 5(a)(i) and (ii) of the EP&A Act? The answer is clearly and self-evidently, yes. Is compliance with the development standard unreasonable or unnecessary in the circumstances of this case? Again, the answer is unarguably, yes.

17 It is urged upon the Court on behalf of the respondent that there should be fewer allotments and larger allotments. The Council’s town planner consultant, Mr K R Nash, said in his evidence this morning that with larger lots one would get a larger building mass, assuming that the lots can be developed to a floor space ratio of 0:5:1. The question which then arises is whether a development which strictly complies with the development standard would be unreasonable or unnecessary? In view of the opinion expressed by Nash in his evidence this morning, to which I have just referred, the answer must again be, yes. The answer to the final question - is the objection well founded? – is obviously, yes.

18 There are a few other matters that need to be referred to. Firstly, there is the status of the draft local environmental plan. The draft SSLEP 2004 proposes to rezone the subject land in an Environmental Housing (Environmentally Sensitive Land) zone and in that zone the minimum lot size is proposed to be increased to 850 square metres with a minimum allotment width of 18 metres. It is conceded by the Council that the draft instrument is not imminent. Indeed, it is not even on the horizon. It has yet to receive a s 65 certificate. It is no means certain that, when it is eventually made, it will be in the form that it presently is, particularly in the light of a s 117 direction which requires that new plans not reduce site densities for residential development.

19 In view of the remoteness of the draft local environmental plan, the Court is prepared to give determining weight to the present instrument, which I note was made as recently as December 2000 and amended in 2003: it is, therefore, a fairly contemporary instrument.

20 There are a few other things that need to be said. Much criticism has been made of the subdivision layout and the lot sizes. The Council’s preference is for larger lots and, as a consequence, fewer lots. As conceded by Mr Nash, in his evidence, however, larger allotments do not necessarily mean less environmental impact.

21 Much criticism has been directed to the subdivision layout in the northern part of the site. This land is steep and there is limited useable private open space. It is true that some of these allotments are steep and will not provide flat areas for recreation. But people who require flat gardens, or flat outdoor areas, will not buy these lots. These kinds of lots are not at all uncommon in the Sydney metropolitan area. They are particularly common on the North Shore. People who buy these lots do so for their other attributes: for their bushland, for their outlook and for their proximity to other amenities. In this case the subdivision enjoys proximity to the National Park, to the Hordens beach and to Port Hacking.

22 It is said by Mr Nash that the dwellings on the northern part of the lot will look into the rear of the mixed residential and commercial development in Brighton Street adjoining. However, the distance of separation is adequate, and planting is proposed along the rear boundary of the subject development. It is also said that the houses will be visible from the water. This is undeniably true. However, the land is in the middle of a settled residential area. It is not a national park. The houses will be dominated by the landscaping and the trees. The roofs, when viewed from the water, will be well below the ridgeline. The visual impact is acceptable and this is confirmed by the view which was taken by the Court yesterday, which included the view from the water.

23 It remains to consider the concerns of residents who have objected to the development. Fourteen objectors gave evidence on the site, and another two in court this morning. The objections were mainly about things such as loss of views, impact on traffic and parking, and the fact that the land was granted to the Uniting Church specifically for youth services or similar activities. Some objectors wanted the land sterilised to the extent that they wanted it to remain in its present form, and indeed, added to the National Park. There was concern about the impact on a right of way which serves adjoining properties facing Brighton Street.

24 As to these objections, the parking is not in issue. The evidence is that the parking problems that exist in the area are a pre-existing problem and the proposed development will provide more than adequate parking to meet its own requirements. Every allotment will have two on-site car parking spaces. Some allotments will afford a third space in the driveway area. There is provision for some 11 additional visitor car parking spaces within the development.

25 As to traffic, again, there is an existing traffic problem, particularly at school pick up and drop off times, but again, the evidence from the only traffic expert that has furnished any report in this case, Mr P Twiney, is that the impact on traffic is marginal at most.

26 As to loss of views, extreme care has been taken to ensure that there will be little or minimal loss of views from those dwellings which exist on the high side of the property. As I have said, some objectors feel that the land should be kept undeveloped. That, however, is inconsistent with the present planning controls, and inconsistent with the proposed planning controls. There is no intention on the part of the Council to change the zoning from residential.

27 As to those residents who are concerned about the impact on the right of way that serves their properties in Brighton Street, there will be little or no impact, as far as I can see.

28 It therefore follows that the appeal will be allowed and development consent will be granted subject to conditions which will be published in due course. The exhibits may be returned.

I hereby certify that the preceding 28 paragraphs are a true copy of the reasons for judgment herein of the Honourable Mr Justice D H Lloyd.

**********

Annexure “A”

THE UNITING CHURCH IN AUSTRALIA PROPERTY TRUST (NSW) v SUTHERLAND SHIRE COUNCIL

LAND AND ENVIRONMENT COURT PROCEEDINGS NO. 11303 OF 2004

AGREED CONDITIONS

These general conditions are imposed to ensure that the development is carried out in accordance with the development consent, having regard to the environmental circumstances of the site.
1 Approved Plans and Documents
The development shall be implemented in accordance with the details and specifications set out on Job Number 03104 Drawing Number 03 (Issue G), 04 (Issue C), 06 (Issue B) prepared by Allen Jack and Cottier and dated 5 April 2005, Figures 1, 2, 3, 4, and 6 dated 1 March 2005 prepared by Patterson Britton and Partners Pty Ltd and any details on the application form and on any supporting information received with the application except as amended by the conditions specified and imposed hereunder.
Note 1:
Nothing in this development consent whatsoever approves or authorises the commencement, erection or construction of any subdivision works.
Note 2:
Prior to the commencement of any subdivision work being carried out a 'construction certificate' shall be obtained from Council or an Accredited Certifier.
Note 3:
Prior to any work being carried out relating to the development the subject of the consent, the person implementing the consent shall provide Council with:
a) Notification of the appointment of a Principal Certifying Authority and a letter of acceptance from the PCA.
b) Notification of the commencement of building and/or subdivision works with a minimum of 2 days notice of such commencement.
2 Prescribed Conditions
The following are prescribed conditions of development consent pursuant to s.80A(11) of the Environmental Planning and Assessment Act 1979 and cl.98 of the Environmental Planning and Assessment Regulation 2000.
A. Details to be Provided to Council with the Notice of Commencement.
In relation to non-residential building work Builders details shall be provided to Council with the Notice Of Commencement.
3 Public Liability Insurance
Prior to the commencement of work or the issue of a Construction Certificate, the owner or contractor shall take out a Public Liability Insurance Policy with a minimum cover of $5 million in relation to the occupation of and works within Council's road reserve, for the full duration of the proposed works. Evidence of this policy shall be submitted to Council prior to commencement of work or the issue of a Construction Certificate.

4 General Condition 1
Prior to the issue of a Subdivision Certificate, the developer is to provide one 1100 litre putrescible waste bin, 3 putrescible bins sized for individual households, 15 co-mingled (recyclable) and 15 green waste bins in accordance with Council’s requirements. 12 co-mingled and 12 green waste bins are to be installed within the waste bin storage area. The bins (including putresible, co-mingled and green waste bins) for lots 2, 3 and 11 are to be stored within those lots.

5 Waste Collection

The Community Management Plan shall incorporate the requirement that on waste collection days all bins (including co-mingle, putrisible and greenwaste) from lots 2, 3, and 11 shall be placed in Scarborough Street, east of the new access road. All other putrescible garbage shall be placed in the 1100L bin in the general location shown on the subdivision plans to be collected by a Council garbage vehicle entering into the emergency access from Mary Street. The gate ensuring that there is no potential for through access shall be located west of the garbage collection area (further into the site). Co-mingled and greenwaste bins shall be taken to the kerbside in Mary Street for collection and be returned to the bin holding area following servicing.

If the required 1100L bin, 12 co-mingled and 12 green waste bins are not able to be accommodated within the waste bin storage area adjacent to the Emergency Access, the area can be enlarged by adjusting the boundary of lot 16 (but not in a manner which would result in lot 16 having a site area of less than 550 square metres and only to the extent necessary to accommodate the bins).
6 General Condition 4
The following General Terms of Approval have been provided by the NSW Rural Fire Service and shall form part of the design and construction together with the ongoing maintenance of the subdivision and the future dwellings on the site:-

a) Construction shall comply with Australian Standard AS3959 - 1999 Level 1 "Construction of Buildings in bushfire prone areas".

b) The entire property shall be managed as an "Inner Protection Area" as defined within Section 4.2.2 in Planning for Bushfire Protection 2001. Trees that are located near dwellings that are over 100 metres from any unmanaged vegetation may be retained provided they do not drop extensive amounts of litter into gutters or form a continuous canopy.

c) A turning area shall be provided at the point where the emergency access links with the subdivision access road. This turning area shall comply with Section 4.3.1 of Planning for Bushfire Protection 2001 or the applicant shall consult with the RFA for a performance based alternative.

d) The proposed access roadway shall be provided as shown on the Proposed Site Plan (Job No. 03104 Drawing No.03 Issue F Plot Date 01/03/2005) and be of a paved surface capable of supporting a fully loaded fire fighting vehicle (approximately 28 tonnes or 9 tonnes per axle).

e) The recommendations detailed in the Bushfire Protection Assessment prepared by Conacher Travers (dated July 2004), other than those modified by the above conditions shall be complied with.

The Community Management Statement shall be amended to state that the Emergency Access Road is to be used only by emergency vehicles and is to be provided with a gate which is to remain closed at all times other than when the abovementioned vehicles require access. However, the Emergency Access Road may be used by other vehicles in an emergency.

Bonds and Contributions

The following security bonds and contributions have been levied in relation to the proposed development.

8 Council Property & Environment Damage Security - Construction

Before the commencement of any works or the issue of a Construction Certificate the applicant shall provide security to the value of $25000 for the payment of the cost of making good any damage caused to any Council property and / or the environment as a consequence of the implementation of this consent. The security may be provided by way of a deposit with the Council or a satisfactory guarantee. This shall be retained by Council for a period of 6 months following completion of the development for the purpose of remedying any damage to Council property or the environment that arises in this period. Should any public property and / or the environment sustain damage during the course of construction, or if the construction works put Council's assets or the environment at risk, Council may carry out any works necessary to repair the damage and / or remove the risk. The costs incurred shall be deducted from the security. The security will be released upon request 6 months after the completion of all works. (An administration fee is payable in relation to this bond.)

It is the applicant's responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a dilapidation report supported with suitable photographic records. This information shall accompany the Construction Certificate.

9 Public Liability Insurance

Prior to the commencement of work or the issue of a Construction Certificate, the owner or contractor shall take out a Public Liability Insurance Policy with a minimum cover of $5 million in relation to the occupation of and works within Council's road reserve, for the full duration of the proposed works. Evidence of this policy shall be submitted to Council prior to commencement of work or the issue of a Construction Certificate.

Section 94 Contributions

The following contributions have been levied in relation to the proposed development pursuant to Section 94 of the Environmental Planning and Assessment Act 1979.

10 Section 94 - Acquisition and/or Embellishment of Public Open Space

A monetary contribution of $151,720.27 shall be paid to Sutherland Shire Council for the cost of acquiring and embellishing public open space in lieu of its physical provision. The contribution is for the following:

District reserve embellishment $5,418.58 (A/c No. 2944DRA7BMAC94)

Augmentation of existing local reserves $146,301.69 (A/c No.2944LRA7BMACS940)

This contribution has been assessed pursuant to s.94 of the Environmental Planning and Assessment Act, and the Sutherland Shire Contributions Plan - Open Space, after identifying the likelihood that this development will require or increase the demand for local and district open space within the area. It has been calculated on the basis of 15 new allotments with a concession of 6 existing allotments.

The contribution will be indexed on 1 July in each year in accordance with indexing methods outlined in the Plan, with amended rates being available from Council.

Payment shall be made prior to the issue of the Subdivision Certificate in the case of development applications involving subdivision or alternatively prior to the issue of a Occupation Certificate or submission of the Completion Report in the case of development applications involving building work.

The payment of monetary contributions may be deferred in accordance with clause 13 of the Contributions Plan.

The Contributions Plan may be inspected or a copy purchased at the Customer Service Counter in Council's Administration Centre, Eton Street, Sutherland during office hours.

NOTE: Council has resolved that in relation to Section 94 Contributions for Open Space that all applications from the date that the draft Sutherland Shire Contribution Plan - Open Space 2000 was publicly exhibited (28/11/2000), to allow payments of the Section 94 Contributions for Open Space to be in accordance with the plan applying at the time of payment.

11 Community Facilities, Shire Wide 2003 Plan

A monetary contribution of $12,295.95 shall be made for the cost of providing community facilities. (Account No. TR2944776ASUTCS94)

This contribution has been assessed pursuant to s.94 of the Environmental Planning and Assessment Act, and the Sutherland Shire Contributions Plan - Community Facilities in the Sutherland Shire, after identifying the likelihood that this development will require or increase the demand for community facilities within the shire. It has been calculated on the basis of 15 new allotments, with a concession for 6 existing allotments.

The contribution will be indexed on 1 July in each year in accordance with the indexing methods outlined in the Plan, with amended rates being available from Council.

Payment is required on or before the times stated in clause 4.2.1 of the Contributions Plan unless the Council accepts a deferred or periodic payment in accordance with clause 4.2.2 of the Contributions Plan.

The Contributions Plan may be inspected or a copy purchased at the Customer Service Counter in Council's Administration Centre, Eton Street, Sutherland during office hours.

MATTERS RELATING TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

The following conditions involve either modification to the development proposal or further investigation prior to the issue of a Construction Certificate, so as to ensure that there will be no adverse impact on the environment or adjoining development. This information shall be submitted with the Construction Certificate.

These conditions are imposed to avoid problems in servicing the development and reduce adverse impacts on the lot layout or the design of buildings or associated facilities.

12 Sydney Water - Referral Requirements

The plans approved as part of the Construction Certificate shall be submitted to the appropriate Sydney Water office to determine as to whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water's requirements, the approved plans will be stamped appropriately.

DESIGN CONDITIONS

These design conditions are imposed to ensure the development, when constructed, meets appropriate standards for public safety and convenience.
13 Design Changes Required
To reduce the environmental and/or ecological impact of the development proposal, the following design changes shall be implemented:

a) Where the longitudinal gradients of the access roadways equal or exceed 12.5% a pedestrian handrail shall be constructed within the internal footpath areas. Where these longitudinal gradients equal or exceed 20% a separate set of pedestrian stairs and a handrail shall be installed.

b) The proposed garages/carports on Lots 9 and 10 shall not be fitted with any temporary or permanent roof structures.

c) The proposed garages/carports on Lots 9 and 10 shall be fitted with measures to prevent vehicle headlight glare affecting surrounding properties. These measures are to be installed on the northern and western alignments of the carport on Lot 10 and on the northern alignment of the carport on Lot 9.

Details of these design changes shall accompany the Construction Certificate.

14 Detailed Landscape Plan

A detailed landscape plan incorporating the road frontage area, retaining walls, trees to be retained and proposed trees to be planted shall be prepared to ensure that the landscaping is appropriate to the development and provides reasonable amenity for neighbouring properties. The plan which shall accord with the Plan of Existing Trees Drawing No 4 Issue G dated 5 April 2005 prepared by Allen Jack + Cottier, Tree Replacement Plan Drawing No 6 Issue G dated 5 April 2005, Council’s Landscape Development Control Plan and the relevant conditions of this development consent, shall accompany the Construction Certificate. Certification from an Accredited Certifier to the effect that the detailed landscape plan has been prepared having regard to these requirements shall be submitted with the construction certificate. The landscape plan shall include:-
i. Street tree planting to enhance the visual character of the area shall be provided within the footpath area of Scarborough Street fronting the subject site utilising two (2) Angophora costata of minimum 75 litres pot size in accordance with Council’s Urban Street Tree Planting Guide”. If soil conditions require it the area of the tree planting shall be excavated and backfilled with a suitable soil type to promote tree growth. The excavation and backfilling of the street tree planting areas shall be the subject of a report and recommendations of a suitably qualified and experienced horticulturist.
ii. Tree planting as indicated on Drawing 06 (Issue B) by Allen Jack and Cottier dated 5 April 2005.
15 Design and Construction of Works in Public Areas
Council has determined that the proposed development generates a need for the following works to be constructed in the approved Road Reserve. Survey and design plans for the following works are to be prepared by the Applicant and certified by a suitably qualified Engineer in accordance with the Engineering Specification for Subdivisions and Development. Construction of these works is to be carried out under the supervision of a suitably qualified Engineer.

(a) Temporary concrete footpath crossing/s for construction vehicle access.
(b) Road pavement construction between the existing sealed pavement and the lip of the proposed kerb and gutter.
(c) Stormwater drainage.
(d) Construction of 150mm Barrier type kerb and gutter across the full frontage of the site
(e) A layback crossing at the access points.
(f) The width of the footpath crossings in Scarborough Street to be in accordance with the design of frontage works prepared by Sutherland Council's Engineering Division.
(g) Excavation of the existing rock cutting to the west of the main vehicle entry/exit point in Scarborough Street shall be undertaken to provide satisfactory sight distance in accordance with Appendix B of the Traffic Report prepared by Masson Wilson Twiney dated September 2004 (Appendix D of the Report on Amendments, Ingham Planning Pty Limited, September 2004).
(h) Provision of pedestrian kerb ramps in accordance with the approved design.
(i) Construction of a 1.2m wide plain concrete footpath across the full frontage of the site in Scarborough Street.
(j) Regrading, topsoiling and turfing of the footpath area to final design levels across the full frontage of the site and across adjacent properties if required at a maximum longitudinal gradient of 1 in 14.
(k) Construction of a vehicular footpath crossing for the main entrance to the levels issued by the Council.
(l) Erosion and sediment controls
(m) Provision of street landscaping as shown on the Detailed Landscape Plan referred to in Condition 14.
(n) Adjustment to public services infrastructure where appropriate.

The approval of the plans will be subject to a fee and approval under the provisions of the Roads Act 1993, prior to the commencement of any works within Council's road reserve.

A fee quotation may be obtained by contacting the Design Branch Manager on telephone 97100247.

Note: In this condition, Council means the Council of the Sutherland Shire.

Approval of the design plans as well as permission under the Roads Act, 1993 shall be obtained from Council prior to the issue of a Construction Certificate.

16 Site Management Plan

A Construction and Site Management Plan shall accompany the Construction Certificate. This plan shall satisfy the objectives of Council's Environmental Site Management Development Control Plan and shall consider the following:

a) What actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from building activities, crossings by heavy equipment, plant and materials delivery, or static loads from cranes, concrete pumps and the like,

b) The proposed method of loading and unloading excavation machines, building materials, formwork and the erection of any part of the structure within the site,

c) The proposed areas within the site to be used for the storage of excavated material, construction materials and waste containers during the construction period,

d) How it is proposed to ensure that soil / excavated material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways,

e) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be certified by an Accredited Certifier in civil engineering.

f) The footpath and road reserve shall not be used for construction purposes.

Should extenuating circumstances exist then an application may be made to Council for approval under the Roads Act, 1993 to use the footpath or road reserve for construction purposes. These circumstances included where it is proposed to:

i. Pump concrete from within a public road reserve or laneway,

ii. Stand a mobile crane within the public road reserve or laneway,

iii. Use part of Council's road/footpath area,

iv. Pump stormwater from the site to Council's stormwater drains, or

v. Store waste containers, skip, bins, and/or building materials on part of Council's footpath or roadway

An application for a construction zone, a pumping permit, a hoarding, an approval to stand a mobile crane or an application to pump water into a public road, together with the necessary fee in accordance with Council's adopted schedule of fees and charges, shall be submitted to Council and approval obtained prior to the commencement of work.

Prior to the commencement of works or the issue of a Construction Certificate, the applicant shall submit to and obtain Council approval of a Soil and Water Management Plan and Statement which clearly identifies site features, constraints and soil types together with the nature of proposed land disturbing activities and also specifies the type and location of erosion and sediment control measures and also rehabilitation techniques necessary to deal with such activities.

The Plan shall take into account the objectives of Council's Environmental Site Management Development Control Plan and shall be compatible with any Construction Management Plan thus ensuring the following objectives are achieved, namely:

a) All possible sediment controls are installed before commencing work.

b) To minimise the area of soils exposed at any one time.

c) To conserve topsoil for re-use on site.

d) To identify and protect proposed stockpile locations.

e) To preserve existing vegetation and identify revegetation techniques and materials.

f) To control surface water flows through the development construction site in a manner that:

i. Diverts clean run-off around disturbed areas

ii. Minimises slope gradient and flow distance within disturbed areas

iii. Ensures surface run-off occurs at non-erodable velocities

iv. Ensures disturbed areas are promptly rehabilitated.

Trap sediment on site to prevent off site damage. Hay bales are not to be used as sediment control devices. To ensure regular monitoring and maintenance of erosion and sediment control measures and rehabilitation works until the site is stabilised (includes landscaping).

18 General Construction Certificate Condition 1

The access roadway leading from Mary Street to the waste collection area shall be designed and constructed to accommodate Councils standard waste disposal vehicle. The access roadway shall be designed with a maximum crossfall and longitudinal gradient of 5% adjacent to the container collection point.

19 General Construction Certificate Condition 2

The waste bin storage area shall be fitted with a roof to prevent stormwater entering the sewage system through the waste water collection point.

20 Access Application

An access application shall be made to Council to obtain footpath crossing and boundary alignment levels before commencing the final design of internal driveways, paths and car park area. A copy of the issued levels shall accompany the Construction Certificate.

21 Road Opening Approval Required

No work whatsoever shall be carried out within the Public Road Reserve unless a "Road Opening Permit" under the Roads Act, 1993 (NSW) has been issued by either Council or the Roads and Traffic Authority for every opening of the public road reserve.

Note: An application fee is payable for this application.

22 Nomination of Engineering Works Supervisor

Prior to the issue of a Construction Certificate the applicant shall nominate an appropriately accredited certifier to supervise all public area civil and drainage works to ensure that they are constructed in compliance with Council's current "Specification for Civil Works Associated with Subdivisions and Developments".

The engineer shall:

a) provide an acceptance in writing to supervise sufficient of the works to ensure compliance with:

(i) all relevant statutory requirements,

(ii) all relevant conditions of development consent,

(iii) construction requirements detailed in the above Specification, and

(iv) the requirements of all legislation relating to environmental protection,

b) on completion of the works certify that the works have been constructed in compliance with the approved plans, specifications and conditions of approval, and,

c) certify that the Works As Executed plans are a true and correct record of what has been built.

PUBLIC UTILITY AUTHORITIES REQUIREMENTS

These conditions are imposed to avoid problems in servicing the development and reduce adverse impacts on the lot layout or the design of buildings or associated facilities.

23 Public Utilities

Arrangements shall be made with Energy Australia, Telstra, cable television network providers and other public utilities in relation to:

a) The provision of underground low voltage electricity and cable television conduits within the footway area of Scarborough Street.

b) The method of connection of the property to the Energy Australia supply, ie either underground connection or by overhead supply, and

c) The need for the provision of a kiosk-type substation.

24 Sydney Water - Notice of Requirements

Prior to the issue of a Construction Certificate or Subdivision Certificate the applicant shall obtain a Notice of Requirements under the Sydney Water Act 1994, Part 6 Division 9 from Sydney Water and submit the Notice to the Council.

25 Public Utility Authorities

Arrangements shall be made to the satisfaction of all Utility Authorities including cable television network providers in respect to the services supplied to the development by those authorities. The necessity to provide or adjust conduits/ services within the road and footway areas shall be at full cost to the applicant.

26 Internal roadway profile

The internal roadway/s shall be designed to:

a) Provide adequate sight distance for the safety of pedestrians compliant with AS 2890.1 (2004) using the footpath on Scarborough Street where the roadway intersects with the road verge;

b) Align with Council's issued footpath crossing levels;

c) Provide a maximum grade of 5% for the first 3 metres inside the property boundary; and

d) Comply with AS2890.1(2004), and AS2890.2(2002) - Small Rigid Vehicle (only with regard to the diameter of the central median island in the turning head), in relation to the design of vehicular access, parking and general manoeuvring.

(e) Comply with the design envelope and loadings applicable to Council’s Standard Waste Disposal Vehicle in the access roadway leading to and adjacent to the waste bin holding area.

A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.

27 Drainage Design - General

The drainage for this development proposal shall be designed in accordance with the Institution of Engineers' publication "Australian Rainfall and Runoff" (1987), Council's "Urban Drainage Design" Manual together with Council's "Stormwater Management Policy and Guidelines" and "On-Site Stormwater Detention Policy and Technical Specification".

The design shall also take into account the specific requirements of any Development Control Plan, Catchment Management Plan or Stormwater Management Plan relevant to the site.

A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.

28 Drainage Design - Detailed Requirements

A detailed drainage design shall be prepared in accordance with "Australian Rainfall and Runoff (1987)", Council's Drainage Design Manual and Council's "On-site Stormwater Detention Policy and Technical Specification.

The design shall include:
a) A detailed drainage design supported by a catchment area plan and drainage calculations (including a Hydraulic Grade Line Analysis).
b) A layout of the drainage system showing existing and proposed pipe sizes, type, class, grades, lengths, invert levels, finished surface levels and location of all pipes with levels reduced to Australian Height Datum. Impacts on existing trees must be indicated on the plan.
c) A longitudinal section of the pipelines within the road reserve including existing natural surface levels, design surface levels, design invert levels of the proposed pipeline and the location, size and reduced level of all services to AHD where those services cross the proposed drainage line.
d) Concentrated stormwater flows shall be prevented from entering adjacent properties. These flows shall be directed to the site’s piped stormwater drainage system.
e) The rate of discharge of stormwater from the site to a drainage system under Council's control shall be controlled so that it does not exceed the pre-development rate of discharge or, if the rate of discharge is increased, that the existing drainage system be amplified to convey the increased flow. Specific certification from the designer to this effect shall be incorporated in the submitted drainage plans / details.
f) An easement to drain water over adjoining properties shall be created under s.88B of the Conveyancing Act to allow discharge of stormwater through adjoining properties to a drainage system within the natural catchment under Council's control. The easement shall be created prior to the issue of a construction certificate.
g) A drainage depression shall be provided for the full width and length of the drainage easement/s that facilitates the overland escape flow of stormwater. The escape route shall be designed to have the capacity to carry the difference between a 1 in 100 year flow and half the flow in the pipeline within the easement.
h) The design floor level of any future dwelling, existing building or any opening in any wall adjacent to the drainage easement shall be set at a minimum of 500mm above the level of the overland flow of stormwater generated in a 1 in 100 year storm recurrence interval event. Specific certification shall be provided by the designer to this effect as part of the submitted drainage design / details.

A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.

29 Drainage Design (Stormwater Disposal)

To ensure the efficient disposal of stormwater and that no problem is caused to surrounding premises, the stormwater from the development shall be discharged to:

a) The existing piped drainage systems, being a properly functioning system permitted by Council.

30 Stormwater Treatment

An appropriate stormwater treatment measure, selected from the Environment Protection Authority's document "Managing Urban Stormwater - Treatment Techniques, November 1997", shall be provided as part of the permanent site stormwater (water quality) management system.

31 Design of structures adjoining drainage easements

The walls of the dwellings or of any structure adjoining the easement shall be designed to withstand all necessary forces should excavation be required within the easement down to the existing pipe invert levels. Certification to this effect shall be provided by an Accredited Certifier and this shall accompany the Construction Certificate.

32 Footing design adjoining easements

All footings within 2m of the drainage easement shall be designed in such a manner that they are supported by foundations set at a minimum of 300mm below pipe invert levels or, alternatively, founded on sound rock. Certification to this effect shall be provided by an Accredited Certifier and this shall accompany the Construction Certificate.

33 Parking areas and access

All vehicular access, parking and manoeuvrability including waste collection areas for the proposed development shall be designed and constructed to comply with AS2890.1 - 2004 and, AS2890.2-2002, Small Rigid Vehicle (only with regard to the diameter of the central median island in the turning head), and Council's Standard Waste Disposal Vehicle.

The following specific requirements shall be incorporated into the constructed works:

The internal roadway and car parking area shall be paved using materials other than plain or exposed aggregate concrete.

34 General Engineering Condition 1

A Traffic Control Plan shall be prepared by a suitably qualified and experienced Accredited Certifier detailing the location of all traffic Advisory and Regulatory signs, revised line marking and any requisite parking controls relative to the proposed development. This plan shall comply with the requirements of Australian Standard AS1742-3 and shall be submitted to Council for Approval prior to the issue of a Construction Certificate. The plan shall relate to all works proposed for the development in Scarborough Street, Mary Street, Brighton Street and Loftus Street.

35 Garbage, recycling and green-waste storage area

To ensure proper storage of waste from the development, an enclosed garbage, greenwaste and recycling storage area shall be provided in accordance with Drawing Number 03 (Issue G), 04 (Issue C), 06 (Issue B) prepared by Allen Jack and Cottier amended in accordance with Conditions 4 and 5. Within this area a smooth impervious floor shall be provided that is graded to a floor waste and a tap and hose provided to facilitate regular cleaning of the bins. All waste water shall be discharged to the sewer in accordance with the requirements of Sydney Water.

The required number and type of waste and recycling material containers shall be provided at the full cost of the developer.

Details of the garbage, recycling and greenwaste storage area shall accompany the Construction Certificate.

The works included above shall be completed prior to the issue of a Subdivision Certificate.

36 External Lighting - (Amenity)

Any lighting on the site shall be designed and operated so as not to cause a nuisance nor adverse impact on the other residents of the surrounding area nor to motorists on nearby roads. All external lights shall be designed in accordance with Australian Standard AS4282 - Control of the Obtrusive Effects of Outdoor Lighting.

SUBDIVISION CONDITIONS

These subdivision conditions are imposed to ensure that adequate road works and engineering works are provided to minimise the impact of the development on the environment and the locality.

37 Engineering Work - Subdivision

All engineering work in relation to the proposed subdivision shall be designed and constructed in accordance with the requirements of Council's adopted "Specification for Civil Works Associated with Subdivisions and Developments".

PRE-COMMENCEMENT CONDITIONS

The following conditions are imposed to ensure that all pre-commencement matters are attended to before work is commenced.

38 Pre-Commencement - Notification Requirements

No works in connection with this development consent shall be commenced until:

a) A Construction Certificate has been issued and detailed plans and specifications have been endorsed and lodged with Council,

b) A Principal Certifying Authority has been appointed. Council shall be notified of this appointment along with details of the Principal Certifying Authority, and their written acceptance of the appointment, and

c) Notice of commencement has been provided to Council 48 hours prior to commencement of construction work on the approved development.

39 Signs to be Erected on Building and Demolition Sites

A rigid and durable sign shall be erected prior to the commencement of work and maintained in a prominent position on any work site on which subdivision work or demolition work is being carried out. The responsibility for this to occur is that of the principal certifying authority or the principal contractor.

The signage, which must be able to be easily read by anyone in any public road or other public place adjacent to the site, must:

(a) show the name, address and telephone number of the principal certifying authority for the work, and

(b) show 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

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.

40 Pre-Commencement Inspection

The pre-commencement meeting is to be convened on-site a minimum 5 days prior to any demolition and/or construction activity and between the hours of 8.00 am and 4.30 pm Monday to Friday. Prior to this meeting the relevant sections of the Environmental Site Management Plan (ESMP) must be implemented. The meeting must be attended by a Council Engineering Compliance Officer, Council's Civil Asset Manager, the PCA, the builder/site manager of the building/civil construction company and where necessary the supervising engineer. The attendance of the owner is required when it is intended to use more than one builder/principal contractor throughout the course of construction.

The purpose of the meeting is to:

(i) Inspect the implementation of relevant sections of the ESMP such as safe passage for pedestrians, the installation of sediment and erosion controls, hoardings, Work and Hoarded Zones;

(ii) Check the installation and adequacy of all traffic management devices;

(iii) Discuss/explain any sections of the development consent that may require clarification or elaboration;

(iv) Ensure that the Demolition/Construction site sign has been erected and is clearly visible;

(v) Confirm that a Construction Certificate has been issued where necessary and all Council fees paid;

(vi) Vet the compliance of any special/specific conditions of consent;

(vii) Confirm that the supervising engineer has a copy of Council's Specification for Civil Works Associated with Subdivisions and Developments – January 1996;

(viii) Confirm that the builder/site manager/principal contractor has a copy of the Environmental Site Management DCP and its associated Specification;

(ix) Distribute the information sheet advising of Council's regulatory provisions and the requirements of relevant legislation; and

(x) Confirm that copies of Public Liability Insurance, Certificates of Currency have been obtained and are current.

(xi) Confirm the installation of the tree protection fencing consistent with the requirement of condition 55.

Note:

An inspection fee of $150.00 applies (Account No. 1721550) shall be paid to Council prior the lodgement of the Notice of Commencement.

CONSTRUCTION CONDITIONS

These conditions are imposed to ensure the development does not unreasonably impact on the amenity of the locality during the construction or demolition phase.

41 Environmental Site Management DCP

All construction work approved by this development consent shall be undertaken in accordance with the principles and objectives of Council's Environmental Site Management Development Control Plan.

42 Permitted hours for building and demolition work

To minimise the noise impact on the surrounding environment all building and demolition work shall be carried out only between the hours of 7.00am and 6.00pm Monday to Friday inclusive, 8.00am and 5.00pm Saturdays. No work shall be carried out on Sundays and Public Holidays.

43 Demolition Work

To ensure that demolition of structures is carried out in an environmentally acceptable and safe manner:

a) The demolition of the existing building shall be carried out strictly in accordance with Australian Standard 2601 - The Demolition of Structures,

b) It is the applicant's responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a dilapidation report supported with suitable photographic records. This information shall be submitted to Council prior to the commencement of work. Any damage caused by the carrying out of the development other than that noted prior to commencement of the demolition shall be the responsibility of the owner of the property for repair or reinstatement, and

c) The applicant shall ensure that the demolition contractor has a current public liability insurance coverage for a minimum of $5 million. A copy of the Policy must be submitted to the Council prior to demolition.

d) If the building contains asbestos sheeting or asbestos products, the demolition work shall only be carried out by persons licensed by the Workcover Authority.

Note:

The formal approval of the Workcover Authority is required prior to commencement of work where the area of the sheeting or product exceeds 200 square metres.

44 Protection of Public Places

To protect public safety and convenience during the course of constructing the works covered by this consent, the following matters shall be complied with:

a) If the work involved in the erection or demolition of a building:

b) 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.

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

Any such hoarding, fence or awning shall be removed and any damage to any public place reinstated to Council's satisfaction when the work has been completed.

45 Noise control during construction and demolition

To minimise the impact on the surrounding environment:

a) For construction and demolition periods of 4 weeks or less the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the ambient background level by more than 20dB(A) when measured at the nearest affected premises.

b) For construction and demolition periods greater than 4 weeks and not exceeding 26 weeks the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 10 dB(A) when measured at the nearest affected premises.

c) For construction and demolition periods greater than 26 weeks the LAeq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 5 dB(A) when measured at the nearest affected premises.

46 Maintenance of Erosion Control Measures

Erosion and sediment control measures shall be implemented and maintained, during the course of construction, to minimise downstream sediment transfer particularly with respect to watercourses, stormwater outlets, fire trails, batters and disturbed ground. All control measures shall be maintained in accordance with Council's Environmental Site Management Development Control Plan and "Specification for Civil Works Associated with Subdivisions and Developments".

47 Stockpiling of materials during construction

Topsoil, excavated material, construction & landscaping supplies and on site debris shall be stockpiled within the erosion containment boundary and shall not encroach beyond the boundaries of the property. For further information, refer to Council's Environmental Site Management Development Control Plan.

48 Spoil deposited on public way (roads or reserves)

Any spoil deposited on public roads during cartage of materials from or to the site shall be removed immediately to the satisfaction of Council.

49 Toilet Facilities

Toilet facilities shall 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) shall be a standard flushing toilet, and

b) shall be connected:

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

50 Excavations and backfilling

a) All earthworks including excavations and backfilling associated with the erection or demolition of a building shall be executed safely and in accordance with appropriate professional standards.

b) 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.

c) All trees to be retained on the site shall be suitably protected from damage during excavation in accordance with Condition 55.

51 Retaining Walls and Drainage

If the soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided, and adequate provision must be made for drainage.

52 Support for Neighbouring Buildings

If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:

a) shall preserve and protect the building from damage, and

b) if necessary, shall underpin and support the building in an approved manner, and

c) shall, 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.

d) 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.

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

53 Vibration damage

To minimise vibration damage and loss of support to the buildings in close proximity where a hydraulic hammer is to be used within 30 metres of any building (other than a path or a fence) a report shall be prepared by a qualified geotechnical engineer detailing the maximum size of hammer to be used for excavation purposes. This report shall accompany the Construction Certificate.

54 Construction materials and machinery must be kept on site

All construction materials, sheds, skip bins, temporary water closets, spoil, and the like, shall be kept within the property. No vehicles or machines shall be permitted to stand on Council's footpath. For further information, refer to Council’s Environmental Site Management Development Control Plan.

LANDSCAPING REQUIREMENTS

These conditions are imposed to ensure the retention and enhancement of the existing landscaping.

55 Protection of trees and bushland

The following tree protection measures are to be implemented during all stages of the subdivision works and subsequent dwelling construction subject to this development consent.

iii. An experienced arborist with a minimum qualification of a Certificate in Arboriculture (the “Site Arborist”) is to be appointed to monitor tree protection during all stages of the subdivision and all subsequent dwelling construction. The site arborist is to be nominated and accept the nomination in writing and his/her contact details included with the Construction Certificate prior to works commencing.

iv. Prior to any earthworks being undertaken, the Primary Root Zones (PRZ) are to be established. PRZ are to be determined by an area of ten (10) times the tree trunk diameter measured at 1.4m above ground level (measured from the centre of the tree trunk) with a minimum offset of 2m. The protection fencings is to be erected to enclose the PRZ (except within the road or dwelling footprints). This fencing should be 1.8m high chainlink wire panels, supported on steel posts enclosing groups of trees wherever possible. The protective fencing is to be erected prior to any tree removal or site preparation works. “Tree Protection Zone - Entry Prohibited” signs are to be attached to the tree protection enclosure fencing in prominent locations on site with details of the site foreperson and site arborist.

v. There is to be no storage of building materials, stockpiling of site topsoils, deposition of any site fill or soil contaminants (eg cement tailing or paint) within the fenced enclosures. All PRZ are to be maintained weed free during the duration of all site works.

vi. Trunk protection is to be provided if construction activity or traffic is proposed within fenced enclosures or if enclosures cannot be erected due to access constraints. Tree protection should be hardwood 2400mm x 75mm x 50mm and secured to the tree at 150mm with hoop iron or similar.

vii. Mulching is to be undertaken within the PRZ where trenching, compacted fill, excavation or construction traffic is proposed within PRZ offsets. Mulch is to be free of weed, seed or other weed propagules (eg Coral Tree mulch).

viii. Trees 44, 71, 75 and 81 (as identified on Drawing 03 Issue G dated 5 April 2005, prepared by Allen Jack Cottier are to be specifically monitored during grading works. The site arborist is to brief the earthworks contractor and site foreperson prior to commencement of works on all tree protection requirements.

ix. Pruning of retained trees where required is to be undertaken by a suitably qualified arborist and to comply with Australian Standard AS4373 - 1996 “Pruning of Amenity Trees” and WorkCover NSW Code of Practice for Amenity Tree Industry.

x. The internal road serving the subdivision lots will be constructed in accordance with the construction methodology as shown in Figure 2 dated 1 March 2005 prepared by Paterson Britton and Partners Pty Ltd.

xi. To ensure the preservation of trees 44, 71 and 75, hand root mapping must be undertaken to the full depth of the root zone at the alignment of the proposed retaining wall for the access road. If roots greater than 100mm in diameter are encountered then measures must be implemented to ensure that these roots are not damaged.

All trees which are not expressly authorised by this development consent to be removed, damaged or interfered with shall be retained. Only trees the removal of which is expressly authorised by this development consent are permitted to be removed, damaged or interfered with.

56 Irrigation system

The communal open space areas shall be provided with a water efficient irrigation system to enable effective landscape maintenance. Details of this shall be provided in the detailed landscape plan referred to in Condition 14 which shall accompany the Construction Certificate.

57 The development is to be carried out having regard to the observations and general requirements of the Douglas Partners Pty Ltd geotechnical report dated 9 September 2004.

POST CONSTRUCTION CONDITIONS

These conditions are imposed to ensure all works are completed in accordance with the Development Consent prior to either the issue of the Subdivision Certificate.

58 A Subdivision Certificate shall not be issued until:

(a) A Final Completion Report is issued and provided to the Council; or

(b) An Approval to stage the development is issued; or

59 Completion Report

The Completion Report shall be submitted to Council by the Principal Certifying Authority which shall contain the following information. This report shall accompany the Final Occupation Certificate or shall be submitted prior to occupation.

a) Subject property description.

b) A description as to the whole or part of the development in respect of which the Completion Report is given.

c) Development Consent reference number and Construction Certificate reference number.

d) A description of any work/ stages that has been inspected, the date of the inspection and by whom such inspection was carried out.

e) A list of any documents required by the Consent, referred to or relied upon in respect of which the Completion Report is given.

f) A copy of any such documents referred to or relied upon within the report.

g) A statement to the effect that the Principal Certifying Authority certifies that the subject stages of the development were inspected and found to be satisfactory. The whole development or described part (as the case maybe), is completed and complies with the issued development consent and construction certificate (approved plans, specifications and conditions).

h) Name and signature of the Principal Certifying Authority (with Accreditation Number and Accreditation Body) making the report.

i) Date of the report.

60 Section 73 Compliance Certificate

A Compliance Certificate under s73 of the Sydney Water Act, 1994, shall be submitted to Council by the PCA prior to the issue of an Occupation Certificate or before the issue of a Subdivision Certificate. Sydney Water may require the construction of works and/or the payment of developer charges.

Advice from Sydney Water:
An application must be made through an authorised Water Servicing Coordinator. For details see the Sydney Water web site at or by telephone 13 20 92.

Following application a "Notice of Requirements" will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water / sewer extensions can be time consuming and may impact on other services as well as building, driveway or landscaping design.

61 Works As Executed Information

Certification shall be provided from a registered surveyor to the effect that:

a) All civil engineering works required by this development consent have been carried out in accordance with the terms of the development consent and the approved engineering drawings with regard to location and level.

b) All pipes, pits and detention facilities lay within their relevant existing or proposed easements.

c) All rights-of-way or positive covenants required by conditions of this development consent have been provided.

62 Works As Executed Drawings

Certification shall be provided from the supervising engineer to the effect that:

a) All civil engineering and stormwater works associated with development have been carried out in accordance with the terms of the development consent, the approved engineering drawings and in the case of public works Council's "Specifications For Civil Works associated with Subdivisions and Developments".

b) The construction of the drainage system for the proposed development has been carried out generally in accordance with the requirements of the approved stormwater drainage plans, Council's stormwater management policy and guidelines and Council's On-site Detention Policy and has been carried out in order that stormwater runoff downstream is not increased as a result of the development and that all assumptions made during the design remain valid. Works-as-Executed drawings certified in the above manner and containing all relevant information as required by Council's "Specification for Civil Works Associated with Subdivisions and Developments" shall accompany the Subdivision Certificate and be in accordance with this consent.

NEED FOR CERTIFICATION

To ensure that all works are completed in accordance with the Development Consent, certification from an Accredited Certifier shall accompany the Subdivision Certificate, to the effect that the following works have been completed:

63 Installation of Stairs, Handrails and Vehicle Impact Barriers

Certification from an Accredited Civil Engineer certifying that all necessary stairs, pedestrian handrails and vehicular impact barriers are compliant with Australian Standard AS1170 have been designed and constructed in the locations and to the standards required.

64 Discharge to Sewer

Certification as part of the Works As Executed drawings that any discharge to the sewer from the subject premises is in accordance with the requirements of the Trade Waste Section of Sydney Water Corporation Ltd.

65 General Compliance

Certification from the Principle Certifying Authority certifying that all works have been completed and comply with the approved plans, conditions and specifications.

66 Works in Roadway

A Compliance Certificate from an Accredited Certifier certifying that all works undertaken in the road reserve have been completed in accordance with the conditions of the Road Opening Approval and this consent.

67 Completion of Landscaping

Certification shall be provided from an Accredited Certifier prior to the issue of a subdivision certificate for the development verifying that the landscape works including any street tree planting and footpath works have been completed in accordance with the detailed landscape plan approved in conjunction with the Construction Certificate.

68 Tree Preservation

Certification shall be provided from an Accredited Certifier prior to the issue of a subdivision certificate for the development to the effect that tree preservation (including fencing), pruning, and surgery has been completed in accordance with the approved plans and conditions.

69 Stormwater Treatment

Certification shall be provided from an Accredited Certifier prior to the issue of a subdivision certificate for the development verifying that the stormwater treatment measure and positive covenant have been implemented in accordance with the requirements of this condition and this consent.

70 Final site Inspection

Prior to the issue of the Subdivision or Occupation Certificate, a final site inspection relating to the public area shall be arranged by the applicant, and shall be undertaken by the applicant's Supervising Engineer and Council's Compliance Officer. The purpose of the inspection is to ensure that notwithstanding the submission of any certificates required by the development consent, all impacts within the public area caused by the development have been satisfactorily addressed.

Note: An inspection fee of $150.00 applies (Account No. 1721550).

SUBDIVISION PLAN REQUIREMENTS

The following conditions have been imposed in relation to the preparation and release of the Linen Plans of Subdivision.

71 Linen Plan of Subdivision to conform with Development Consent

The Linen Plan of Subdivision shall conform with Council's Development Consent No. 04/0285 and all relevant conditions thereunder.

72 Interlot Drainage Lines - Subdivision

Interlot drainage lines shall be constructed to service all allotments which are not capable of being drained by gravity means within the natural catchment of the site. These drainage lines shall be connected to a drainage system within a public road or pipeline within an existing drainage easement. Filling of the site to redirect the stormwater is not permitted without the consent of Council.

73 Positive Covenant for maintenance of detention facilities - Subdivision

A positive covenant pursuant to section 88E of the Conveyancing Act, 1919 shall be created on the title of the allotment that contains the stormwater detention facility to provide for the maintenance of the detention facility. To this end the registered proprietor(s) of the property thereby burdened shall covenant with Sutherland Shire Council and its successors not to use the property except as permitted by this development specifically with respect to the provision and maintenance of the detention facilities. The location and extent of the detention facilities shall be delineated on the Linen Plan of Subdivision.

74 Positive Covenant - Stormwater Treatment

A positive covenant shall be created on the title of the property pursuant to Section 88E of the Conveyancing Act, 1919 as amended with respect to the maintenance of any stormwater treatment measure required as a condition of this development consent. To this end the registered proprietor(s) of the property thereby burdened shall covenant with Sutherland Shire Council and its successors not to use the property except as permitted by this development specifically with respect to the provision and maintenance of stormwater treatment facilities. The location and extent of the treatment measure shall be delineated on the Linen Plan of Subdivision.

75 Allocation of Community Property

Community property shall not be allocated for the exclusive use of a proprietor. No modification shall be made to a Plan of Subdivision without the prior development consent of Council.

76 Endorsement of Linen Plans of Subdivision by Council

To facilitate the issue of the Plan of Subdivision, following completion of the requirements detailed in the conditions of this Development Consent and the issue of the Subdivision Certificate by Council, a film and eight (8) paper copies of the Plan of Subdivision shall be submitted to Council together with the Instrument (in duplicate) under Section 88B of the Conveyancing Act, where required for ultimate lodgement at the Land Titles Office.

OPERATIONAL CONDITIONS
These conditions are imposed to ensure that the use or operation of the development does not adversely impact on the amenity of the neighbourhood and the environment.
77 Loading and Unloading
In the interests of public safety and amenity, all vehicles servicing the property shall stand within the curtilage of the site and shall be able to be driven in a forward direction when entering and leaving the site. Loading and unloading of vehicles from the roadway is not permitted.
78 Any tree planting required by Tree Replacement Plan Drawing 06 Issue B that fails shall itself be replaced by a tree or trees of the same species in close proximity to the original tree location. The replacement tree shall be of 75 litre minimum pot size and be subject to Condition 91 of this consent.

79 Dwelling-houses and garages or carports will not be erected beyond the perimeter and height of the one storey building zone or the two storey building zone shown on Drawing 03 Issue G prepared by Allen Jack + Cottier dated 5 April 2005. The maximum permissible FSR for each of the allotments is as specified in the ‘Resultant FSR’ column on the above drawing or as varied by any condition of the consent.

80 Building Perimeter: Nothing in Condition 79 prevents the approval of a second storey of a dwelling-house from extending beyond the perimeter of the second storey building zone to a maximum of 1 metre, such perimeter being shown on Drawing No. 03 Issue G dated 5 April 2005 prepared by Allen Jack + Cottier. Further, nothing prevents the extension of any deck or balcony up to a width of 2 metres. This is provided the dwelling-house satisfies the provisions of the Building Code of Australia and the extension does not require the destruction of important foliage of any tree identified as being preserved and shown on Drawing No. 06 Issue B dated 5 April 2005 prepared by Allen Jack + Cottier.

81 Building Height: Dwelling-houses and garages or carports will not be erected to a height greater than the ridge height or floor height shown on the Site Section Diagrams on Drawing No. 03 Issue G dated 5 April 2005 prepared by Allen Jack + Cottier.

82 The internal road serving the subdivision lot will be constructed in accordance with the variations permitted by Council’s Specifications For Civil Work to the levels and alignment as shown on Figures 1 and 2 dated 1 March 2005 prepared by Patterson Britton & Partners Pty Limited.

83 The carport on lot 7 must be suspended over the Critical Root Zone (“CRZ”) of the tree identified as T75. CRZs are to be determined by an area of 5 times the trunk diameter at 1.4 metres above ground level (measured from the centre of the trunk), with a minimum offset of 1.5 metres.

84 The carport on lots 9 and 10 must be suspended over the CRZ of the tree identified as T71.

85 The retaining wall adjacent to the turning head at the northern end of the roadway is to be suitably landscaped with climbing vegetation. Details to be approved by the principal certifying authority prior to the release of the Construction Certificate.

86 A Community Management Statement, generally in accordance with the Draft Community Management Statement contained behind tab 8 of Exhibit D, is to be registered on the title of Community Lot 1. The Community Management Statement is to be prepared in accordance with the conditions of this consent and is to be approved by the Council prior to the release of the linen plan for the subdivision. The conditions of this development consent are to be annexed to the Community Management Statement.

87 A Conservation Management Plan is to be prepared incorporating the findings and recommendations of Aboriginal Archaeological Test Excavations report dated August 2004 prepared by Mary Dallas Consulting Archaeologists, which is to form Schedule 3 of the Community Management Statement.

88 Future dwelling construction is to be as detailed in the Architectural Code contained in Schedule 1 of the Community Management Statement.

89 A Landscape Management Plan is to be prepared incorporating Conditions 55, 90 and 91 to form Schedule 4 of the Community Management Plan.

90 Tree removal

Trees to be removed are those indicated on Drawing No. 04 Issue C dated 5 April 2005 prepared by Allen Jack + Cottier.

(a) Tree removal is to be undertaken by, or supervised by, a suitably qualified Arborist complying with WorkCover NSW Code of Practice: Amenity Tree Industry.

xii. Stump grinding (rather than complete ‘grubbing’) of trees is to be undertaken where those trees to be removed are located within the PRZ of trees to be retained.

(c) Wood chip mulch produced during tree removal should be stockpiled on site for reuse other than the Coral Trees and any other woody weeds which are to be separated and taken to landfill.

91 Tree replacement

(b) Tree replacement is to be as indicated on Drawing No. 06 Issue G dated 1 April 2005 prepared by Allen Jack + Cottier.

(b) Replacement trees are to be maintained until each tree is of a size whereby it is protected by the Sutherland Shire Council Tree and Bushland Vegetation Preservation Order (i.e. until 100mm in trunk diameter or 3 metres in height).

92 The Applicant is to provide a parabolic safety mirror on the Southern side of Scarborough Street directly opposite the right of way (on lot 2) to provide a sight line between the western leg of Scarborough Street and the right of way (for cars entering and exiting the right of way). Details to be provided to the satisfaction of the Council prior to the release of the linen plan.

93 A footpath is to be constructed along the site frontage to Scarborough Street and extended to the east to link to the existing pedestrian crossing located at the Bundeena Public School.

CITATION:	The Uniting Church in Australia Property Trust (NSW) v Sutherland Shire Council [2005] NSWLEC 289
PARTIES:	APPLICANT: The Uniting Church in Australia Property Trust (NSW) RESPONDENT: Sutherland Shire Council
FILE NUMBER(S):	11303 of 2004
CORAM:	Lloyd J
KEY ISSUES:	Development Application :- subdivision - merit considerations - visual impact - allotments size - weight to be given to the draft local environmental instrument
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 5(1), s 97 State Environmental Planning Policy No. 1 - Development Standards Sutherland Shire Local Environmental Plan 2000
DATES OF HEARING:	18/04/2005 and 19/04/2005
EX TEMPORE JUDGMENT DATE:	04/19/2005
LEGAL REPRESENTATIVES:	APPLICANT: B J Preston SC and J M Jagot (barrister) SOLICITORS: Mallesons Stephen Jaques RESPONDENT: S A Duggan (barrister) SOLICITOR: Chris Mathieson Principal Environmental Lawyer Sutherland Shire Council