Toon v Ku-ring-gai Council - [2004] NSWLEC 173

Land and Environment Court

of New South Wales

CITATION: Toon v Ku-ring-gai Council [2004] NSWLEC 173

PARTIES:
APPLICANT
John Toon
RESPONDENT
Ku-ring-gai Council

FILE NUMBER(S): 11563 of 2003

CORAM: Cowdroy J

KEY ISSUES: Appeal :- SEPP 5 development - effect of draft Local Environment Plan - heritage issues.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 4, s 79C
Ku-ring-gai Planning Scheme Ordinance
State Environmental Planning Policy No. 1 - Development Standards
State Environmental Planning Policy No.5 - Housing for Older Persons or Persons with a Disability, cl 3, cl 4, cl 5, cl 10, cl 12, cl 13, cl 13A, cl 19, cl 25
State Environmental Planning Policy (Seniors Living) 2004, cl 6

CASES CITED: Walker v North Sydney Council (2000) 110 LGERA 397;
Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46

DATES OF HEARING: 31/03/2004; 01/04/2004

DATE OF JUDGMENT: 04/30/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr P. Tomasetti (Barrister)
SOLICITORS
Taylor Kelso
RESPONDENT
Mr P. Rigg (Solicitor)
SOLICITORS
Deacons

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11563 of 2003

Cowdroy J

30 April 2004

John Toon

Applicant

Ku-ring-gai Council

Respondent

Judgment

Introduction

1 This is an appeal against the refusal of Development Application 165/03 by Ku-ring-gai Council (“the council”) for the demolition of an existing building and the erection of a development for older people or people with a disability at 50 Pentecost Avenue, Pymble (“the subject site”).

2 A view of the subject site, some adjoining properties and the general area was undertaken on the morning of the first day of hearing in the company of representatives from both parties. With the agreement of the parties, a number of local residents provided their evidence at this time.

3 For the reasons set out in the judgment I have concluded that the appeal should be upheld and development consent granted subject to conditions.

4 I record I was assisted by Commissioner Brown in the appeal.

Subject site and surrounding area

5 The subject site is identified as lot B in DP 337907. It is rectangular in shape with a frontage to Pentecost Avenue and a rear boundary of 32.005 m and side boundaries of 53.525 m, giving a total area of 1713.5 sq m. It has a moderate fall of 5.3 m from the south-east corner to the north-west corner at Pentecost Avenue.

6 A large two-storey dwelling, dating from 1938 is located on the subject site and is setback some 15 to 16 m from the Pentecost Avenue boundary. A timber garage/shed is located in the south east corner of the rear yard with access along the western boundary of the site. The subject site contains landscaped gardens and a number of large trees.

7 The subject site is located within a residential area with a mixture of housing types consisting mainly of large detached dwellings and more recent modern developments of housing for older people or people with a disability. Recent developments for older people or people with a disability adjoin the subject site to the east and on the opposite side of Pentecost Ave. Large detached dwellings are located to the rear and the west of the subject site.

Proposed development

8 The proposal seeks the demolition of all existing structures on the subject site and the construction of two buildings, generally over two levels, containing a total of 6 x 3 bedroom apartments. The apartments range in size from 131.01 sq m to 152.78 sq m. A basement car park is provided and contains 12 resident car parking spaces and one visitor car space. The basement car park extends above natural ground level but not more than 1 m. A lift provides access from the basement car park to each level of the development.

Relevant planning controls

9 The subject site is zoned Residential 2(c) under the Ku-ring-gai Planning Scheme Ordinance (“the Ordinance”). The proposed development is defined in the Ordinance as a "residential flat building" and is prohibited within the Residential 2(c) zone. Schedule 9 of the Ordinance sets out aims and objectives for development in residential zones.

10 The site is however subject to the provisions of State Environmental Planning Policy No.5 - Housing for Older Persons or Persons with a Disability (“SEPP 5”) and the proposed development is permissible through cl 4 of SEPP 5. Clause 5 of SEPP 5 states that if the policy is inconsistent with any other environmental planning instrument, in this case the Ordinance, the policy prevails to the extent of the inconsistency. State Environmental Planning Policy (Seniors Living) 2004 repealed SEPP 5 on 31 March 2004 but the provisions of SEPP 5 continue to apply to the subject application through the transitional provisions in cl 6.

11 SEPP 5 provides detailed development standards, development criteria and design principles to guide control of development for housing for older people or people with a disability. There was no dispute that the proposed development satisfies the requirements for location of facilities and support services (cl 12), height (cl 13(2)), site frontage (cl 13(3)), access and usability (cl 13A), building height, density and scale, landscaped area, parking, visitor parking and private open space (cl 14), solar access and design for climate, stormwater, crime prevention, accessibility and waste management (cl 25).

The issues

12 The council filed an Amended Statement of Issues containing 12 separate issues and a number of sub issues. The issues still pressed by the council can be conveniently grouped into the following main areas:

13 The issues not pressed by the council relate to water and sewerage disposal (Issue 10), retention of some existing trees (Issues 5(a) and (c)) and the adequacy of the landscaping design (Issue 12). The public interest and matters raised by the objectors (Issues 8 and 9) are generally addressed as part of the discussion on the active issues. Other issues raised by objectors are addressed separately.

Point of Law

14 The subject site is not identified as a heritage item in Schedule 7 of the Ordinance nor is it located within a Conservation Area identified in the Ordinance. It is however subject to draft (Heritage Conservation) Local Environmental Plan No. 28 (“the draft LEP”). The draft LEP seeks to amend the Ordinance by including the subject site in Schedule 7 of the Ordinance, thereby making the property subject to the heritage requirements in the Ordinance. In general terms, these requirements aim to retain the significance of the environmental heritage of the municipality by "conserving heritage buildings and their garden curtilage" and "conserving the visual vicinity of setting of heritage items".

15 By way of background, the council resolved to prepare the draft LEP on 16 December 2003, this being some 10 months after the development application was lodged in February 2003. This resolution was based on a report by Mr Paul Dignam, the council's heritage conservation planner. The December resolution of the council also sought an independent heritage assessment. The draft LEP was exhibited between 2 February 2004 and 18 March 2004. The exhibition resulted in one submission from the applicant objecting to the draft LEP. The matter was further considered by the council in a report by Mr Dignam on 18 March 2004. This report contained the independent heritage assessment prepared by Mr Graham Brooks. This assessment stated that "based on analysis of available information it is considered that the subject house does not meet the minimum entry threshold as a heritage item in the Ku-ring-gai Planning Scheme Ordinance". The report also contains references to discussions with heritage consultants Godden Mackay Logan where, apart from other matters, the heritage significance of the garden was raised. Notwithstanding the assessment by Mr Brooks, the report recommended the council adopt the draft DCP and submit the draft plan to the Minister. Most recently, a Rescission Motion was lodged by three councillors to rescind the adoption of the draft LEP. At the time of the hearing, the Rescission Motion had not been heard.

16 During the course of submissions the applicant raised a point of law concerning the effect of the respondent’s draft LEP as follows:-

Are the provisions of draft LEP 28 a relevant consideration to the assessment of a development application for SEPP 5 development in Ku-ring-gai Municipal Council local government area?

17 The applicant submits that the provisions of SEPP 5 comprise a comprehensive code for all development being carried out under such Policy. The aims of SEPP 5 which include the provision for housing which meets the need of older people or people with a disability is stated to be achieved, inter alia by cl 3(2) thereof:-

(a) setting aside local planning controls that would prevent the development of housing for older people or people with a disability that meets the development standards specified in this Policy, and

18 The applicant submits that a draft LEP is not a “Environmental Planning Instrument” as defined in s 4 of the Environmental Planning and Assessment Act 1979 (“EP&A Act”). Clause 10 of SEPP 5 provides:-

This Part allows development for the purpose of any form of housing for older people or people with a disability, despite the provisions of any other environmental planning instrument, if the development is carried out in accordance with this Policy.

19 The applicant refers to cl 5(3) of SEPP 5 which provides:-

(3) This Policy does not affect a provision in another environmental planning instrument that relates to the demolition of a heritage item.

(1) If development to which this Policy applies is proposed to be carried out in a heritage conservation area or in the vicinity of a heritage item and the area or item is identified as being of State or regional heritage significance in another environmental planning instrument, the consent authority, before granting development consent, must notify the Heritage Council of New South Wales of its intention to grant development consent and must take into consideration any comments received from the Heritage Council within 28 days after the notification is given

20 The applicant submits that the Policy suggests that unless demolition of a heritage item listed in an environmental planning instrument is proposed or development in the vicinity of a heritage conservation area is involved, heritage significance is not a relevant consideration for the purposes of a development being carried out pursuant to SEPP 5.

21 The council submits that the Court is entitled to consider the provisions of the draft LEP. It has been placed on exhibition and now only awaits the Minister’s approval. Accordingly the council submits that the making of the LEP is certain and relies upon the decision of this Court in Walker v North Sydney Council (2000) 110 LGERA 397. In Walker the Court took into consideration in its assessment pursuant to s 79C of the EP&A Act that the making of a draft LEP was imminent.

22 The council submits that cl 10 of SEPP 5 does not operate so as to exclude considerations under s 79C of the EP&A Act, and that the Court must take the provisions of the draft LEP into consideration.

23 The Court observes that the provisions of SEPP 5 were formulated for a specific purpose, namely the increase the supply and diversity of housing which meets the needs of older people or people with a disability. Clause 10 is clear and unambiguous. It provides that Part 2 of SEPP 5 prevails over any other environmental planning instrument, provided the development is carried out in accordance with such Policy. Clause 10 also has the effect of limiting the considerations arising under s 79C(1)(a) in that the provisions of SEPP 5 prevail over the provisions of any other environmental planning instrument or of any draft thereof.

24 Protection is provided to heritage items as provided by cl 19(1) of SEPP 5. The dwelling currently erected upon the subject land has not been classified as a heritage item for the purpose of cl 19(1).

25 It follows that the draft LEP is not consideration which is relevant to the Court’s assessment of the development application.

Heritage

26 Ms Sheridan Burke a conservation planner provided evidence for the council. The council also relied on the heritage assessment carried out by Mr Dignam. Mr Trevor Howells and Mr Robert Staas, both architects and conservation heritage consultants provided evidence for the applicant. Further evidence was provided by Mr David Taylor, a conservation landscape architect. The applicant also relied on the heritage assessment carried out by Mr Brooks. Each provided comments on the assessment of the heritage significance of the subject using the criteria in the document Assessing Heritage Significance produced by the Heritage Office. These can be broadly described as:

- Criterion (a)- Historic:- Evolution

- Criterion (b)- Historic: - Association

- Criterion (c)-Aesthetic Significance

- Criterion (d)-Social Significance

- Criterion (e)-Research Potential

- Criterion (f)-Rarity

- Criterion (g)-Representativeness

27 The evidence highlights an evolving understanding of the history of the subject site although respective experts remain at odds in their assessments. Ms Burke and Mr Dignam come to the conclusion that the subject site satisfies each criterion for a heritage item of local significance. Mr Stass, Mr Brooks and Mr Howells come to the opposite conclusion.

28 The evidence focused on three principal areas. These are:

- the existing building (Criterion (a), (c) and (g)),

- the garden (Criterion (a), (c) and (g)),

- special associations (Criterion (a), (b) and (c))

The existing building

29 The original report prepared by Mr Dignam has been largely overtaken by more recent research contained in the statements of the other experts. It does have some relevance in that it was the basis for initiating the process of listing the subject site as heritage item. Relevantly, it states that "it is difficult to prepare a definitive statement of significance". Notwithstanding this he concludes by saying that:-

…the property is worth keeping as a good representative example of a local interwar heritage item. Further research should be done to reveal possible links with the noted architect Aley or other architects of the period if Aley did not design the house. Investigations into the Pymble Golf Club and the former occupants Harry Sutton should be undertaken to fully explore this aspect of significance.

30 With the benefit of further research it was generally agreed that the dwelling was not the work of Aley or any other prominent architect of this time. Mr Howells took this further and suggested after a careful inspection of the interior fabric and external details the evidence suggests that the house is most likely the design of a builder rather than an architect. Examples of the inconsistent detail are set out in his statement and were shown to the Court on the site view. Mr Brooks sums up the applicant's position by stating that the subject building displays a number of design elements of the Mediterranean - Georgian style, however in comparison to some of the listed (and even some not listed) buildings, the subject house is not a sophisticated example of the style, lacking in any interesting details and complexity of geometric form evidence in the listed examples. It exhibits features that are fairly common in the municipality (some of them still widely used in Ku-ring-gai ) and is considered and undistinguished example of the Mediterranean - Georgian style.

31 This, however was not a conclusion accepted by Ms Burke who suggests that this is not unusual as significant works often remain unnoticed until seminal research is undertaken. She notes the use of finer trims and fairfaced plastered reveals is more exacting of workmanship, requiring greater time and care and not associated with an everyday builder. In her opinion, this suggests the involvement of an architect pursuing "style".

The garden

32 The heritage significance of the garden surrounding the existing dwelling was raised relatively late although it was addressed by both parties. It was acknowledged that, at least part of the garden was likely to have been designed by Jocelyn Brown a prominent landscape architect through the 1930’s and 1940’s. There was general agreement that the sun terrace in the rear yard was her work. At this point the parties disagreed on the significance of the gardens. Ms Burke, through discussions with previous owners of the property, established links between Jocelyn Brown and the former owners. It was her opinion that the gardens were originally laid out to the design of Jocelyn Brown. This was disputed by Mr Staas who maintained that any influence of Jocelyn Brown has long since been removed and replaced with the current garden scheme of the applicant. Plans were provided to the Court showing the areas of the garden and paving created by the applicant following his purchase in 1980. In the opinion of Mr Staas, the current garden is largely the result of the present owners own activities and is unrelated to any earlier structure or design intent.

33 Mr Taylor supports these conclusions and states that the existing garden does not demonstrate intact elements to warrant being seen as a Jocelyn Brown garden. Central elements of her design lacking in this garden include axial and close relationship to the house and the absence of "external rooms", both these elements being considered call values of her work. There have been substantial changes over time including the extension of the drive to the rear of the property and the development of the garden by the present owner.

Special associations

34 In addition to the possible association with prominent architects and Jocelyn Brown, Ms Burke identifies the subject site as constituting as significant demonstration of the cultural history of Ku-ring-gai. It demonstrates the continuing development of the North Shore Railway spine for garden suburbs. The house was constructed for the Harry Sutton family, who were active in local community affairs. An association with the Pymble Golf Club was also identified.

35 Mr Staas states that there are no established associations of significance identified for the subject site. No significant event or occupation of the place has been established in any research that suggests a level of association that would warrant the listing of the property is a heritage item.

36 In balancing the evidence of the numerous experts, I prefer the conclusions reached by Mr Staas, Mr Howells, Mr Taylor and Mr Brooks. While the building displays some characteristics of the Inter War Mediterranean - Georgian style I accept that it is not an overly sophisticated example of this style. Contemporary alterations have also diminished its significance although I agree it is fundamentally compromised. The great weight of evidence supports the conclusion that it was not designed by an architect of any notoriety. Mr Brooks assessment thoroughly addresses the architects that were considered to potentially have some claim to the design. All were discounted by Mr Brooks and his conclusions were not challenged.

37 Any association with Jocelyn Brown is at best limited and restricted to the sun terrace. The location of this feature was seen as being inconsistent with her other landscape designs through a lack of internal symmetry as well its relationship with the dwelling. I agree with Mr Staas and Mr Taylor that the significance of this feature must be diminished by its context and the lack of original garden. For comparison, the Court was provided with nearby and more intact examples of her work.

38 Any special associations with the Harry Sutton family and Pymble Golf Course are, in my view peripheral and do not support the retention of the dwelling on heritage grounds.

39 On the basis of the evidence provided to the Court, the original reasons for the draft LEP have been further investigated and have been found to be unsupportable. Even with the additional heritage matters, such as the garden being raised, there are no heritage reasons why the building should not be demolished. In any event, the heritage provisions in the Ordinance do not prohibit the demolition of a heritage item identified in Schedule 7.

Existing vegetation

40 On this issue, Mr Tony Lydon provided evidence for the council Mr Peter Castor provided evidence for the applicant. Both are arborists. They conferred prior to the hearing and prepared a joint statement. The retention of two trees remained in dispute. These are:

English Elm

(ulmus procera)

41 This tree is located adjacent to the eastern side boundary. It is some eight or nine metres in height with a full canopy. Mr Lydon describes the tree as a significant landscape feature. The excellent physiological health of the tree is a testament to its ability to survive the inpacts of the pruning of its lower canopy and the inpacts of recent adjacent development. The tree will require some future made and pruning to promote improve structural health and to ensure its long-term safe retention.

42 Mr Castor advocates the removal of the tree because of safety reasons brought about by the existing level of trunk defect. To support this conclusion the tree was drilled at near ground level to confirm the degree of trunk hollowness. A hollow was detected at 150 mm on two different locations. He rejects Mr Lydon's conclusions by stating that drastic height production pruning is not a feasible option in this instance due to the resulting loss of amenity and ongoing maintenance costs, assuming the tree survives the drastic pruning. As adequate deep soil is available in the vicinity of this tree, replacement tree planting is recommended.

43 On the question of whether the tree should be retained, I agree with the conclusions of Mr Castor. The test carried out by Mr Castor to determine the hollowness was explained to the Court on site and while the tree appeared to be in good health, the matter of public safety should be paramount in the Courts consideration and must outweigh any amenity considerations.

Blue gum

(Eucalyptus Saligna)

44 This tree is located in the south western corner of the subject site. It is also a significant tree and the dispute between Mr Castor and Mr Lydon centres on the appropriate setback of the proposed building from this tree. Concerns over changes to the ground level in the vicinity of the tree were addressed through additional conditions. Mr Lydon maintains that the 5.5 m setback from the bedroom of unit 5 is insufficient as the building will be constructed under the canopy of the tree and will result in excessive pruning and impact significantly on the tree roots that currently exist in this area.

45 Mr Castor states that there will be no significant impact on the tree, as the Critical Root Zone is not proposed to be excavated. These conclusions are based on the findings of root mapping that did not disclose any large structural roots in the area of the proposed building. While the root mapping uncovered essential feeder routes, Mr Castor states that it is likely that there may be as many of these roots on adjacent properties. There is also a large area of deep soil to be retained around the tree, in addition to the open landscape areas on adjoining properties.

46 On this issue, I prefer the evidence of Mr Castor. I accept that reasonable attempts have been made to ensure the longevity of the tree by minimising site disturbance in the area surrounding the tree. The natural ground levels are to be retained and disturbances brought about by the installation of stormwater drainage are to be minimised. The root mapping has not disclosed any significant structural roots and sufficient moisture is likely to still be available from the relatively undisturbed areas surrounding with the tree although on adjoining properties.

Neighbourhood amenity and streetscape character

47 Clause 25 of SEPP 5 states that consent must not be granted unless the Court is satisfied that the proposed development demonstrates that adequate regard has been given to a number of principles. Clause 25(a) addresses neighbourhood amenity and streetscape and states that the proposed development should:

(i) contribute to an attractive residential environment with clear character and identity, and

(ii) where possible, retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and

(iii) where possible, maintain reasonable neighbour amenity and appropriate residential character by providing building setbacks that progressively increase as wall heights increase to reduce bulk and overshadowing, and

(iv) where possible, maintain reasonable neighbour amenity and appropriate residential character by using building form and siting that relates to the site’s land form, and

(v) where possible, maintain reasonable neighbour amenity and appropriate residential character by adopting building heights at the street frontage that are compatible in scale with adjacent development, and

(vi) where possible, maintain reasonable neighbour amenity and appropriate residential character by considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and

(vii) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and

(viii) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape.

48 Mr Harvey Sanders provided evidence for the council and Mr Neal Ingham provided evidence for the applicant. Both are town planners. Dr Richard Lamb, a visual impact consultant provided additional evidence for the applicant.

49 Mr Sanders states that the proposed development fails to satisfy all of the above criteria. In his opinion, the proposal does not contributed to an attractive residential environment primarily because the proposed bulk and scale of the development is not compatible with the adjacent development. It does not maintain reasonable neighbourhood amenity through inappropriate building form and siting. While being technically compliant, a significant part of the northern elevation facing Pentecost Street has the visual appearance, bulk and scale of a three-storey structure. This results in an unsympathetic form of development when viewed from neighbouring properties.

50 Mr Ingham takes the opposite view. He states that the proposed development has a clear character and identity that is compatible with surrounding development. It creates a character that is compatible in scale with the development on the adjoining site to the east and is not on uncharacteristic of other development in locality generally. The proposal has a two-storey facade that is setback to satisfy the building line of adjoining development. It is being developed into buildings with a separation that will be able to be understood from the properties to the east and west, thereby ensuring compatibility with these buildings.

51 Dr Lamb supports the evidence of Mr Ingham. He states that while the development will appear different to the prevalent detached dwellings located within the surrounding streets, it does not follow that it is necessarily has an unacceptable appearance. In his opinion the proposal is appropriate when viewed within the streetscapes and respond adequately to the landscape quality of locality. He identifies the design, how it addresses the street, the character of the proposed landscaping, the setbacks and the articulation of the buildings as meritorious aspects of the proposal.

52 With the benefit of the comprehensive view of the subject site and surrounding areas, I prefer the evidence of Mr Ingham and Dr Lamb. There is little doubt that the existing dwelling on the subject site provides a strong presence in the streetscape and forms part of the character of the area. However, this character has evolved over recent times to include other SEPP 5 developments. I agree with Dr Lamb that these forms of development are different to the previously dominant residential dwellings that existed in the area but this does not necessarily make this form of development unsuitable. In my view, it is a question of an appropriate design within the parameters set by SEPP 5 and in this regard the proposal is acceptable.

53 The character of an area is made up of a number of elements such as front and side setbacks, landscaping, design, height, bulk and massing. Mr Sanders expressed a concern that the bulk of the eastern building was exacerbated by its similar height to the adjoining SEPP 5 development. In his view, the proposed building should be lower to reflect the decreasing natural ground level at this point. While Mr Sanders concerns may appear to have some merit I am not convinced that they have sufficient substance to warrant the refusal or amendment of the application based on the requirements in cl 25(a). The separation between the buildings in question, the landscaping that is to be provided, the fact that the highest point on the subject building is located some distance from the street and importantly, the proposals compliance with the height control within SEPP 5 are also relevant considerations.

54 Overall, and in accordance with cl 25(a), I accept that the proposed development has given adequate regard to neighbourhood amenity and streetscape character.

Overlooking

55 Overlooking was an issue raised by Mr and Mrs Kavanagh who reside at the dwelling to the west of the subject site (52 Pentecost Ave) and Mrs Thornton who reside in the dwelling to the rear of the subject site (9 Fairway Ave). In addressing the overlooking concerns, an estimate was made of the location of the proposed buildings and any relevant feature on the adjoining properties.

56 Clause 25(b) of SEPP 5 addresses visual and acoustic privacy and states:-

The proposed development should, where possible, consider the visual and acoustic privacy of neighbours in the vicinity and residents by:

(i) appropriate site planning, the location and design of windows and balconies, the use of screening devices and landscaping, and

(ii) ensuring acceptable noise levels in internal living and sleeping areas of new dwellings by locating the living and sleeping areas away from driveways, parking areas and paths.

57 The concerns from 52 Pentecost Ave related to the opportunities for overlooking into the rear yard, the windows along the elevation of their dwelling adjoining the subject site and the pool area located in the front yard. With the benefit of the site view and considering those matters set out in cl 25(b), I accept that the proposed development has given sufficient regard to the question of visual privacy. The rear yard is largely protected from overlooking by proposed boundary fencing. The east facing windows of unit 6 are some 12 metres from the boundary and provide adequate separation. Additionally, views from these windows are partially restricted by the roof form of unit 5. The potential for overlooking into the windows of the adjoining property are again limited by the proposed boundary fencing on the ground level. The windows on the upper level of unit 3 are either high-level windows or are located at such an oblique angle as to make any overlooking unlikely. I note the inclusion of a 1.8 m high timber privacy screen to the terrace of this unit and the applicants proposal to extend this to further diminish the opportunity for overlooking to the pool area. I accept that this provides a reasonable attempt to reduce overlooking impact in this area.

58 The concerns from 9 Fairway Ave relate to the potential for overlooking from the rear deck for unit 6 and other windows in the southern elevation. With the benefit of the site view and considering those matters set out in cl 25(b), I accept that the proposed development has given sufficient regard to the question of visual privacy. The applicant proposes the construction of a privacy screen on the southern edge of the balcony to restrict any overlooking and I accept that this satisfactorily addresses this concern. The potential overlooking from other windows in this elevation is satisfactorily addressed through the separation distance and the provision of additional landscaping along the rear boundary.

Deep soil planting

59 Clause 14(f) of SEPP 5 provides requirements for landscape areas. There was no dispute that the proposed development satisfies the numerical requirements of this clause. Mr Geoff Bird, the council's landscape development officer and Mr Matthew Taylor, the applicants landscape architect however disagreed on the effectiveness of the proposed deep soil planting areas.

60 Mr Bird acknowledges compliance with the numerical standards in SEPP 5 and notes that cl 14(f) also provides that the area should be "preferably located at the rear of site". He sees this requirement as a means of providing a corridor of trees within the neighbourhood, as is the case with the existing neighbourhood and the subject site. It is his preference that this existing tree corridor should be maintained an enhanced with future planting at the rear of the subject site.

61 Mr Taylor states that 160 sq m that is available for deep soil planting at the rear of the site and this is sufficient for the proposed tree and shrubs planting. The 30 m high Sydney Blue Gum is to be retained in this area. The proposed planting provides an appropriate form, shape and character for the area and provides a mid level strata of vegetation and habitat to link the subject site to the adjoining bush land areas.

62 On this issue I find the proposal to be acceptable. SEPP 5 indicates a preference for the landscaped area to be provided at the rear however an equally compelling case can be mounted to have landscaping distributed over the site. In this case, there is a valid argument that landscaping should be available at the rear to link with the nearby areas of natural bush land. In my view, an equally valid case can be made out for landscaping to be provided at the front of the site to maintain the landscape streetscape character along Pentecost Ave. I accept that the proposal achieves a suitable balance between these two competing priorities.

Garbage storage area

63 Clause 13A(21) of SEPP 5 requires "an outside garbage storage area must be provided in an accessible location". As the proposal provides for the garbage storage area in the basement rather than "outside" the applicant provided an objection pursuant to State Environmental Planning Policy No. 1 - Development Standards (“SEPP 1”) to show why compliance with the development standards was unreasonable or necessary in this instance.

64 The council accepted the SEPP 1 objection was well founded and did not press the issue. Notwithstanding the council's acceptance of the SEPP 1 objection the Court must also come to a similar conclusion.

65 The appropriate manner of dealing with a SEPP 1 objection is found in the judgment of Lloyd J in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, at par 26, where a number of questions are posed. In considering these questions and the contents of the SEPP 1 objection I concur with the conclusion reached by the council and find that compliance with the development standards is unreasonable and unnecessary in this case and that the SEPP 1 objection is well founded.

Resident objections

66 The following matters were raised by residents have not been addressed elsewhere in the discussion on the issues:

Access to facilities

67 This is a matter specifically addressed in SEPP 5. The applicant provided a report addressing the requirements in SEPP 5 and concludes that the proposal satisfies these requirements. I accept this conclusion.

Traffic/safety/parking

68 SEPP 5 provides the level of car parking and there was no dispute that the proposed development satisfies this requirement. I note the comments in the council officers report that describes the traffic generation as "comparatively low" with a total of 3 and 0.35 additional trips along Pentecost Ave per day and peak hour respectively. I concur with the council officers comments that the refusal of the application on the basis of traffic is not considered to be well based. I note no questions of inadequate sight lines or potential safety problems were raised in this report.

Conditions

69 Draft conditions have been provided to the Court and there remain some areas of disagreement between the parties.

70 The applicant proposes additions to proposed condition 1 involving reliance on landscape and drainage plans already prepared by the applicant. The council would prefer separate proposed condition 69 being made which would require further landscaping plans being prepared by the applicant. The Court is satisfied that the applicant has lodged sufficient information for its plans to be relied upon and will make the alterations the applicant suggests to proposed condition 1. The Court declines to make proposed condition 69.

71 The council proposes condition 31 which would require the applicant to provide a full archival recording of the property. On the basis of the evidence in relation to heritage issues as discussed above and the findings in respect of those issues, the Court considers such record to be unnecessary and will not make such condition.

72 The applicant appears not to have received the figures referred to in proposed condition 41, however the Court is prepared to make such condition because such figures appear to be based upon the applicant’s plans.

73 The applicant submits that proposed condition 44.3 should be replaced, and conditions 51 and 81 should be altered. Such conditions involve drainage and arboreal issues and the Court considers, on the basis of the evidence and findings in relation to such issues above, that the applicant’s suggested alterations should be given effect to.

74 The council submits that proposed condition 85 should be altered in order to make external finishes and colours subject to the samples tendered to the Court as exhibit “AC” and the Court will make such condition.

Orders

75 Accordingly, the Court makes the following orders:

1. ORDER that Development Application No 165/03 for the demolition of existing structures and construction of a State Environmental Planning Policy No.5 - Housing for Older Persons or Persons with a Disability development consisting of six (6) units and basement carparking for Lot B in DP 337907, 50 Pentecost Avenue, Pymble be approved for a period of 5 years, subject to the conditions annexed as Annexure “A”;

ORDER

Annexure “A”

GENERAL CONDITIONS

1. The development to be in accordance with Development Application No 165/03 and Development Application plans prepared by Zhinar Design Partnership amended by Dickson Rothschild Pty Ltd , reference number [0301A issue C, 0302A issue C, 0303A issue C, 0304A issue D, 0305A issue D] and landscape plan LA01C of Taylor Brammer and drainage plans by WP Brown & Partners Pty. Ltd C01 Rev 2 and C02 Rev 2.

2. All building works shall comply with the Building Code of Australia.

3. The submission of the approved plans to Sydney Water, before any work is commenced to ensure that the proposed structure meets that Authority’s By-Laws. Failure to submit these plans before commencing work will render the owner liable to a penalty and may result in the demolition of work.

4. The works set forth in the plans and specifications and approved under this consent, once commenced, shall be completed within two (2) years from the date of commencement.

5. The approved building shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plans and a Occupation Certificate has been issued.

6. The opening of any footway, roadway, road shoulder or any part of the road reserve shall not be carried out without a Road Opening Permit being obtained from the Council (upon payment of the required fee) beforehand.

7. For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plan and this Consent and Construction Certificate shall be kept on site at all times.

8. For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the road or footpath without the written approval being obtained from the Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.

9. HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant.

Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment.

10. For the purpose of public safety, a sign shall be erected on the site prior to any work commencing which is clearly visible from a public place stating that unauthorised entry to the site is not permitted and showing the name of the builder or another person responsible for the site and a telephone number for contact outside working hours. The sign may only be removed on satisfactory completion of the works.

11. A sign shall be erected in a prominent position on the site which states the name and contact details of the Principal Certifying Authority.

12. All excavations shall be properly guarded and protected with hoardings or fencing to prevent them from being dangerous to life and property.

13. Any excavation of rock involving hydraulic or compressed air rock hammers or other excavation equipment shall comply with the requirements of Council’s Code for the Control and Regulation of Noise on Building Sites.

14. No rock breaking or other machinery for the excavation, drilling or removal of rock shall be used on the site without the prior approval of the Principal Certifying Authority. Should rock breaking or associated machinery be required, the following details are to be submitted to the Principal Certifying Authority for consideration:

a. The type and size of machinery proposed.
b. The routes of all trucks to convey material to and from the site.
c. A report by a Geotechnical Engineer detailing the measures recommended in undertaking the work so as to prevent any damage to any adjoining or nearby buildings.

15. The applicant is advised that the Construction Certificate plans and specifications must comply with the provisions of the Building Code of Australia.

16. 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. must preserve and protect the building from damage, and
b. if necessary, must underpin and support the 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.

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.

17. Toilet facilities are to be provided, within 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.

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

a. is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or
b. building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place.

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.

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 is to be removed when the work has been completed.

19. The demolition is to be carried out in accordance with the guidelines contained in Australian Standard 2601-1991: The Demolition of Structures.

20. Access to demolition sites shall be protected as directed by the Principal Certifying Authority by the use of suitable fences or hoardings.

21. Demolition work, including removal of material or debris from the site, on any building in a residential area shall only be carried out during the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted.

22. A person taking down or demolishing or causing to be taken down or demolished any building or part thereof shall, upon identifying or suspecting that asbestos is present in the building, immediately notify the Workcover Authority. The Authority is the controlling body for the safe removal, handling and disposal of asbestos. The Authority supervises and monitors contractors engaged in asbestos removal.

The requirements and standards imposed by the Authority, its consultants or contractors shall be complied with.

23. Erosion control measures shall be provided on demolition sites to prevent the siltation of watercourses and drainage systems.

24. Dust control measures shall be taken on all demolition sites so as to avoid a nuisance to adjoining properties and harm to the environment.

a. A person taking down or demolishing or causing to be taken down or demolished any building or portion of any building shall:

i. cause the windows or other openings in the external walls to be close boarded or otherwise covered;
ii. cause screens of canvas, hessian, boards, mats or other suitable material to be fitted in appropriate locations;
iii. cause areas, components and debris to be wetted down; in such a manner as to minimise, as far as practicable, the nuisance arising from the escape of dust during such taking down or demolition.
b. Such person shall not chute, throw or let fall or cause to chute, throw or let fall from the floor to floor or into any basement of such building any building materials or any other matter so as to cause dust to escape from the building or cause any such material to fall or cast upon a public way to the annoyance, inconvenience, or danger of persons using such public way.

25. Soil on vacant sites is to be stabilised as soon as possible to prevent erosion and the site shall be kept clear of excess vegetation.

26. A temporary construction exit and sediment trap to reduce the transport of sediment from the site onto public roads shall be provided before demolition commences.

27. Existing stormwater lines on the site are to be blocked and made inoperable after buildings are demolished so as to prevent the conveyance of silt or sediments into the gutter or street drainage system.

28. Adequate precautions shall be taken to ensure the protection of adjoining premises and persons therein from damage and injury during the process of demolition.

29. Buildings built prior to the 1970’s may contain lead based paint. Lead dust is a hazardous substance. You are advised to follow the attached WorkCover guidelines to prevent personal and environmental contamination.

30. The applicant or builder/developer is responsible for the cost of making good any damage that may be caused to any Council property as a result of work associated with the demolition.

32. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:

a. stating that unauthorised entry to the work site is prohibited, and
b. showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.

Any such sign is to be removed when the work has been completed.

This clause does not apply to:

a. building work carried out inside an existing building, or
b. building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

33. All demolition materials of value for re-use either on-site or elsewhere, shall be separated and made available for re-cycling.

34. The development is to remain as Housing for Aged or Disabled Persons within the meaning of State Environmental Planning Policy No 5 at all times.

35. All advertising, signage, marketing or promotion of the sale of the dwellings in this development shall make clear reference to the fact that this is a SEPP5 development and that at least one occupier shall be aged 55 years or over or have a disability:

37. A Tree Preservation Order exists within the Ku-ring-gai Council area whereby the removal, lopping or destruction of any tree exceeding 5.0 metres in height or 4.0 metres in canopy spread (except where exempt as defined under Council’s Tree Preservation Order) without prior written consent of Council is prohibited.

Release of the Construction Certificate gives automatic approval to the removal ONLY of those trees located on the subject property within the footprint of a proposed new building/structure or within 3.0 metres of a proposed new dwelling. Where this application is for a building/structure other than a dwelling then ONLY trees within the area to be occupied by this building/structure may be removed. Other trees SHALL NOT be REMOVED or DAMAGED without an application being made under Council’s Tree Preservation Order.

38. Separate written approval under Council’s Tree Preservation Order is required prior to the pruning of the following trees within the subject property:

Tree/Location
Eucalyptus saligna (Bluegum)
Adjacent to southern (rear) site boundary/south west site corner

Liquidambar styraciflua (Sweet Gum)
Adjacent to southern (rear) site boundary in neighbouring property
Liquidambar styraciflua (Sweet Gum)
Pentecost Ave nature strip

39. The landscape works shall be completed prior to issue of final Certificate of Compliance and maintained in a satisfactory condition at all times.

40. Aboricultural Reporting Procedures – Appointment of Supervising or Site Aborist

40.1 A Supervising or Site Aborist to monitor and advise in regard to tree related issues is to be appointed. The nominated Arborist will supervise and maintain tree protection measures for the duration of construction. Any appointed successor to the nominated Site Arborist must be notified, in writing, to the Principal Certifying Authority with details of the date of transfer of responsibility.

Reason – to ensure continuity of advice throughout the project period and to clarify a legally binding chain of responsibility in the event of future tree decline or failure.

40.2 The Site Aborist is to prepare a Site Specific Tree Management Plan. The plan is to consider all matters assessed by the appointed Site Arborist as relevant but must as a minimum incorporate all tree related conditions contained elsewhere in these conditions of consent. The Site Tree Management Plan is to be submitted to Council for approval prior to the issue of a Construction Certificate for any site works including any demolition works.

Reason – To ensure that no matters relevant to tree protection are overlooked.

40.3 The Site Arborist is to carry out independent bi-monthly inspections during the construction period to ensure ongoing tree health and make reports as required following each inspection to the PCA and client in relation to all tree management issues.

Reason – To promote communication and allow timely action to be taken if required.

41. Establishment of Areas for Tree Protection Zones

Jacaranda (Tree 2) Figure 1
Sydney Blue Gum (Tree 3) Figure 2
Liquidambar (Adjacent property to rear) Figure 2
Liquidambar (Street Tree) As per condition 88

Reason – To ensure that both site managers and PCA have a detailed plan to facilitate compliance.

42. Conduct of Tree Protection Zones

42.1 Tree protection fencing is to be installed at the boundary of each TPZ.

Reason – To ensure that boundaries of TPZs are properly marked.

42.2 Tree protection fencing may be modified in accordance with the diagram at Figure 3.

Reason – To ensure adequate pedestrian works access as required.

42.3 Unauthorised removal or disruption of the Tree Protection Zone fencing is to be considered a breach of the conditions of consent.

Reason – To indicate that both site workers and PCA take tree protection measures seriously.

42.4 Prohibited within the TPZ are:

· unauthorised access including access for vehicles or pedestrian traffic;

· storage or stockpiling of materials;

· excavation, levelling, soil removal, or work of any kind unless specifically approved or supervised by the Site Aborist;

· incursion of pollutants, solvents, excess water or other material harmful to the protected trees such as silt, concrete, paint or mortar mix;

· location of site sheds, or other temporary structures;

· bitumen driveway will remain until building work is completed.

Reason – To ensure that the most significant causes of tree damage and future decline or hazard formation are prevented.

42.5 TPZ fences are to remain in place until the end of construction when their removal is to be approved by the Site Aborist.

Reason – To ensure any necessary access to TPZs is properly supervised and to prevent ‘last minute’ damage to trees or tree root zones.

42.6 The Tree Protection Fence is to display clear signs indicating the reason for the fence and action to be taken if access is desired.

An example of such a sign follows:

TREE PROTECTION ZONE

No construction Access – Do not move this fence

For information regarding access or tree health please contact the Site Aborist on (02) ???????????

Reason – Site workers need to be made aware of the protection measures in place and the reasons those measures are required.

43. Action Regarding Roots at Boundaries of Tree Protection Zones

Reason – Poor root pruning or other root damage can cause long-term tree decline and liability due to decay many years after project completion.

44. Works Within Tree Protection Zones

44.1 Removal of existing unwanted materials, including asphalt paving or undergrowth, shall be carried out by hand under the supervision of the Site Aborist.

Reason – The use of heavy machinery within the Critical Root Areas will have a significant detrimental affect on the health of the retained trees.

44.2 Any landscaping or paving works within the Tree Protection Zones specified at condition 41 shall be designed and constructed following a review by the Site Aborist to ensure that site/soil conditions sufficient to protect the existing areas for healthy root growth are maintained. The Site Aborist shall issue a compliance report stating that such action has been carried out to the PCA as part of the periodic arboricultural reporting procedures.

Reason – Common landscape specifications, including the cultivation or ripping of subgrades, compaction beneath paved areas, strip footing for retaining walls and introduction of hard surfaces will all have a detrimental affect on retained trees.

44.3 Stormwater and drainage works as indicated in W.P Brown & Partners Pty Ltd dated 24 March 2004, ref: C01, Rev 02 shall be implemented. Rating should be as close to building alignment as possible. All trenching to be hand dug with no severance of roots greater than 50mm.

45. Additional Treatments With Tree Protection Zones

45.1 Application of mulch in the form of 75-100 min layer of composted leaf mulch is to be applied under the direction of the Site Aborist within the area of each TPZ.

Reason – Mulch will assist in stabilising soil moisture and surface temperature conditions. Appropriate application of leaf mulch is also of benefit for trees in the long term. Among other advantages it provides enhanced conditions for beneficial soil organisms, may reduce compaction of surface soil layers and acts as a slow release source of nutrients.

45.2 Weeds shall be removed from the TPZ during the construction period

Reason – competition from grass and weeds will lead to additional stress in trees already impacted by site works or past soil conditions.

45.3 The Site Aborist shall monitor soil conditions to ensure adequate soil moisture. A watering regime shall be implemented or adjusted as part of the reporting conditions. A drip irrigation system based on a dedicated tap supply is highly recommended.

Reason – Imposition of a new drainage and moisture regime on the root system of retained trees may cause significant stress, but may be moderated by supplementary irrigation.

45.4 Application of additional root or soil treatments such as root hormones, nutrients or fungal inoculants is to be carried out as determined by the Site Aborist.

Reason – Additional measures to maintain the health of retained trees may be required, unapproved measures including excessive nutrients may lead to increased stress.

46. Additional Tree related Matters

Any pruning of the canopy of retained trees is to be carried out under the supervision of the Suitably Qualified Aborist and in accordance with the guidelines of AS4373 – 1996 The Australian Standard for Pruning of Amenity Trees.

Reason – To ensure that any pruning necessary is carried out in an industry standard manner.

47. On completion of the LANDSCAPE WORKS/TREE PLANTING OR SCREEN PLANTING, a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to issue of final Certificate of Compliance.

48. All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works.

49. To retain existing streetscape character and landscape amenity, the existing stone wall adjacent to the Pentecost Ave site frontage is to be retained as much as possible. Where demolition of the wall is required to accommodate the driveway, the existing wall is to be made good and reconstructed as necessary. The arched pedestrian entry is to be reconstructed over the proposed pedestrian entry adjacent to the eastern site boundary.

50. Stormwater runoff from all hard surfaces, or landscaped areas which are not at natural ground level, shall be piped to the street drainage system via the site On-Site Detention system. Drainage line connections to the kerb shall conform and comply with the detailed requirements contained within Council's Plan No82/024 ("Connections of Drainage Lines to Kerb and R.C. Pipe"). Drainage crossings of the footway area shall be a single 100mm diameter sewer grade uPVC pipe with kerb adaptor, where the total design flows from the property are within the capacity of such a pipe, otherwise suitably sized galvanised RHS shall be used. To ensure compliance with this condition, a Certificate from the installer is to be submitted to the Principal Certifying Authority prior to issue of the Final Compliance Certificate.

51. To maintain capacity of the Public drainage system, an On-site Stormwater Detention System must be provided in accordance with Council’s Stormwater Management Manual and generally in accordance with the drainage concept plans by WP Brown and Partners, drawings W003040-C01 and C02, dated 24/03/2004. An overflow is to be incorporated that will direct any excess flow to the downstream drainage system and subsoil drainage is to be provided from the underside of the sediment control sump to the outlet line or other approved location.

The system is to be cleaned regularly and maintained to the satisfaction of Council.

NOTE 1: The on-site stormwater detention system and property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by the Site Aborist’s certification that such excavation will not affect the health and longevity of the subject tree(s). No excavation or fill of any kind associated with the onsite stormwater or property drainage system shall be carried out within the Tree Protection Zones of protected trees as identified under condition 41.

NOTE 2: If the applicant wishes to vary the prescribed storage and outflow volumes contained in Council’s Stormwater Management Manual, a detailed analysis must be provided following the guidelines set out in Council's requirements for on-site detention with full computations accompanying the submission including a flood routing analysis.

NOTE 3: All roof, driveway and other hard-surface runoff water is to be intercepted and directed to the on-site stormwater detention system. If some areas of hard-surface are unable to be directed to the detention system an adjustment to the rate of discharge is to be made to attain the required site discharge.

NOTE 4: If a landscaped surface type detention system is used the storage volume required is to be increased by 20%.

52. For stormwater control all paved areas are to be drained to the main drainage system.

53. For stormwater control a 150mm wide grated drain with heavy duty removable galvanised grates is to be located within the property at the intersection of the driveway and Council's footway to collect all surface water from the driveway.

54. A maintenance period of six (6) months shall apply to the work in the public road carried out by the Applicant after it has been completed to Council's satisfaction. In that period, the applicant shall be liable for any section of the work which fails to perform in the manner outlined in Council's specifications, or as would reasonably be expected under the designed conditions.

55. The relocation or adjustment of any utility service facilities must be carried out by the Applicant in accordance with the requirements of the utility authority at no cost to Council.

56. The public footways and roadways adjacent to the site are to be maintained in a safe condition, at all times, during the course of the works. A safe pedestrian circulation route a minimum of 1.5m wide and with a pavement free of trip hazards must be maintained at all times on or adjacent to the public footways fronting the construction site. Where the footpath is damaged, repair works must be carried when directed by Council officers at the Applicants expense. Where circulation is diverted on to the roadway clear directional signage and protective barricades must be installed in accordance with Aust AS1742-3 1996 “Traffic Control Devices for Work on Roads”. If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

57. The provision of temporary sediment and erosion control facilities and measures are to be installed, prior to the commencement of any works on the site to minimise and/or eliminate unnecessary erosion and loss of sediment. These facilities must be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps must be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority, with all silt being removed from the site, or to an approved location within the site.

58. Driveways and access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard AS 2890.1 – “Off-Street car parking” and the provisions of SEPP5.

59. For the purpose of any Council inspections, the appropriate fees set out in Councils adopted Schedule of Fees and Charges are payable to Council, prior to the release of the approved plans. A re-inspection fee per visit may be charged where remedial work is unprepared at the requested time of inspection or where remedial work is unsatisfactory and a further inspection is requested. Engineering fees must be paid prior to the final approval of the works.

60. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to “Your Business” section of Sydney Water’s web site at then the “e-developer” icon or telephone 13 20 92. Following application a “Notice of Requirements” will detail 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 and building, driveway or landscape design.

61. To prevent surface stormwater from entering the building, the finished habitable ground floor level(s) of the building shall be a minimum of 150mm above adjacent finished ground level(s). The entire outside perimeter of the building must have overland flow escape routes which will protect all finished floor levels from flooding during times of complete subsurface drainage blockage.

CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE

62. The Waste Management facility is to be designed in accordance with Council’s DCP 40 and have sufficient space for the quantity of waste generated and to promote source separation of materials (eg recyclables). Details being submitted prior tot the issue of the Construction Certificate.

63. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate.

Note: Required if cost of works exceed $25,000.00.

64. It is a condition of consent that the applicant, builder or developer or person who does the work on this residential building project arrange the Builders Indemnity Insurance and submit the Certificate of Insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Council or other Principal Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the Builder's Indemnity Insurance for residential building work over the value of $12,000 and to satisfy the Council or other Principal Certifying Authority by the presentation of the necessary Certificate of Insurance so as to comply with the applicable requirements of Part 6 of the Home Building Act 1989. The requirements for the Builder's Indemnity Insurance does not apply to commercial or industrial building work or for residential work less than $12,000, nor to work undertaken by persons holding an Owner/Builder's Permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work).

65. The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project.

66. Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act, 1979 (the 'Act') are to be complied with:

a. A Construction Certificate is to be obtained in accordance with Section 81A(2)(a) of the Act.

b. A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A(2)(b) of the Act.

c. Council is to be notified in writing, at least two (2) days prior to the intention of commencing buildings works, in accordance with Section 81A(2)(c) of the Act.

d. Should the development be certified by a Principal Certifying Authority other than Council, a fee for each Part 4A Certificate is to be paid to Council on lodgement of those Certificates with Council.

67. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area.

TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF FIVE (5) ADDITIONAL DWELLINGS IS CURRENTLY $17,183.84. The amount of the payment shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council’s Section 94 Contributions Plan to reflect changes in land values, construction costs and the consumer price index.

This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council’s adopted Section 94 Contributions Plan for Residential Development, effective from 20 December 2000, calculated for additional person as follows:

1. Preparation of New Residents Kit $10.98

2. New Resident Survey $9.87

3. New Library bookstock $17.95

4. New Public Art $2.93

5. Acquisition of Open Space - Pymble $1,966.00

6. Koola Park upgrade and reconfiguration $143.09

7. North Turramurra Sportsfield development $986.80

8. Section 94 2000-2003 Study and Interim Plan preparation cost $49.34

9. Section 94 Officer for period of Plan 2000-2003 $118.42

10. Preparation of New SEPP 5 Residents Kit $22.44

11. SEPP 5 S94 Study and Interim Plan, 2000-2003 $108.95

To obtain the total contribution figure the occupancy rate for all SEPP 5 developments is 1.3 persons

68. The Construction Certificate shall not be released until a Site Management Plan is submitted to the Principal Certifying Authority and approved by a suitably qualified professional.

The plan shall indicate the planned phases of the construction work, erosion and drainage management, tree protection measures, areas nominated for storing materials, site access and where vehicle parking is proposed, during construction.

70. A plan detailing screen planting of the southern, eastern and western site boundaries shall be submitted to Council prior to the release of the Construction Certificate and approved by Council’s Landscape Development Officer, prior to completion of building works. The plan shall incorporate species capable of attaining a height of 2.5, 4.0 and 4.0 metres respectively.

71. The property shall support a minimum number of nine trees that will attain 13.0 metres in height on the site, to preserve the tree canopy of Ku-ring-gai, in accordance with Council’s policy of Tree Retention/Replenishment on Residential Allotments adopted 26 April 1988. The existing tree/s, and additional tree/s to be planted, shall be shown on the Landscape Plan/Site Plan. The plan shall be submitted to Council prior to release of Construction Certificate and approved by Council’s Landscape Development Officer, prior to commence of work.

72. The five trees to be planted shall be maintained in a healthy and vigorous condition until they attain a height of 5.0 metres whereby they will be protected by Council’s Tree Preservation Order. Any of the trees found faulty, damaged, dying or dead shall be replaced with the same species.

73. A cash bond/bank guarantee of $10 000.00 shall be lodged with Council as a Landscape Establishment Bond prior to the release of the Construction Certificate to ensure that the landscape works are installed and maintained in accordance with the approved landscape plan or other landscape conditions.

Fifty percent (50%) of the this bond will be refunded upon issue of the final Certificate of Compliance, where landscape works as approved have been satisfactorily installed. The balance of the bond will be refunded 3 years after issue of the building certificate, where landscape works has been satisfactorily established and maintained.

It is the responsibility of the applicant to notify Council in relation to the refunding of the bond at the end of the 3 year period. Where a change of ownership occurs during this period it is the responsibility of the applicant to make all arrangements regarding transference of the bond and to notify Council of such.

74. A cash bond/bank guarantee of $10 000.00 shall be lodged with Council prior to the release of the Construction Certificate to ensure that the following trees are maintained in the same condition as found prior to commencement site development work.

The bond will be returned following issue of the final Certificate of Compliance, provided the trees are undamaged.

In the event that any specified trees are found damaged, dying or dead as a result of any negligence by the applicant or its agent, or as a result of the construction works at any time during the construction period, Council will have the option to demand the whole or part therefore of the bond.

Tree/Location

Eucalyptus saligna (Bluegum)

Adjacent to southern site boundary/south west site boundary

75. To preserve the following tree/s, footings of the proposed shall be isolated pier or pier and beam construction within the specified radius of the trunk/s. The piers shall be located such that no roots of a diameter greater than 50mm shall be severed or injured in the process of any site works during the construction period. The beam shall be located on or above existing soil levels.

The location and details of the footings shall be submitted to Council’s Landscape Development Officer and be approved prior to release of the Construction Certificate.

Tree/Location Radius in Metres

Jacaranda mimosifolia (Jacaranda) 5.0m

Adjacent to western site boundary

Liquidambar styraciflua (Liquidambar) 6.0m

Pentecost Ave nature strip

76. Prior to issue of the Construction Certificate, the Applicant must submit design documentation and plans for the following infrastructure works in the Pentecost road reserve which must be completed to Council satisfaction prior to issue of the final compliance certificate:

a. Footpath and associated infrastructure works to enable pedestrian and disabled access to services in the vicinity. These works may link the site frontage to footpath works carried out in association with construction on 46-48 Pentecost Avenue.

Council will assess plans for the necessary works under section 138 and 139 of the Roads Act 1993. The Construction Certificate must not be issued until Council has issued a formal written consent under the Roads Act 1993.

To obtain an assessment under the Roads Act 1993 for the infrastructure works necessary on Council property, full engineering drawings (plans, longsections and elevations) and specifications for the works must be prepared. A suitably qualified and experienced consulting engineer and/or surveyor must prepare the plans. Plans and specifications must be submitted and approved by Council (only) as the Roads Authority in this location. Should approval be granted, construction of the works must proceed in accordance with any conditions attached to the Council Roads Act approval.

The works must be designed in accordance with Council’s “Specification for Road and Drainage Works”. The exact locations of all existing services, driveway crossings, street trees and signs must be shown on the plans submitted. In addition, the drawings are to detail any erosion control requirements and traffic management requirements during the course of works. Traffic management is to be certified on the drawings as being in accordance with the documents SAA HB81.1 – 1996 – Field Guide for Traffic Control at Works on Roads – Part 1 and RTA Traffic Control at Work Sites (1998).

NOTE 1: A minimum of three (3) weeks will be required for assessment.

NOTE 2: An hourly assessment fee (set out in Councils adopted fees and charges) will be charged and Council will withhold any consent until full payment of the correct fees.

77. DRIVEWAYS AND FOOTPATHS: Approval of this Development Application is for works wholly within the property and does not imply approval of footpath or driveway levels, materials or location within the road reserve regardless of whether this information is shown on the Application.

Footpath and driveway levels at the property boundary/road alignment are to be obtained from Council prior to release of the Construction Certificate. All footpaths and driveways are to be constructed strictly in accordance with Council's specifications "Construction of Gutter Crossings and Footpath Crossings". This is issued with alignment levels after completing the necessary application form at Customer Services and payment of the appropriate fee.

The grading of such footpaths or driveways outside the property are to comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant, and this may be affected by the alignment levels fixed by Council.

Note 1: The construction of footpaths and driveways outside the property, in materials other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations.

78. Submission of details and certification by a qualified civil/traffic engineer, for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate, that the parking provisions provided in common areas and within private parking areas comply with:

· SEPP 5 (as amended December 2000), and

· Australian Standard 2890.1 – 1993 “Off-street car parking”, and

Note 1: This is to specifically include certification that 2.5 m headroom requirements are met beneath all suspended service lines in the basement carpark, including stormwater and sewer lines.
Note 2: All driveway access widths, grades, transitions, circulation aisle widths, sight distances, signage, clearances are to comply with these requirements.

79. Submission, for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate, of a Soil and Erosion Control Plan prepared in accordance with the NSW Department of Housing document “Managing Urban Stormwater – Soils and Construction” (1998) by a suitably qualified and experienced engineer. Such controls should include but not be limited to appropriately sized sediment basins, diversion systems, appropriate controls for each stage of works identified and barrier fencing which maximises and protects areas which are not to be disturbed. The plan must also specify inspection and maintenance regimes and responsibilities and rehabilitation measures.

81. The property drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) shall be designed and based upon a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) for impervious surfaces. Design drawings and calculations are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Council's Stormwater Management Manual and the national Plumbing and Drainage Code. These must be submitted to and approved by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

NOTE 1: The property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by the Site Aborist’s certification that such excavation will not affect the health and longevity of the subject tree(s). No excavation or fill of any kind associated with the onsite stormwater or property drainage system shall be carried out within the Tree Protection Zones or Critical Root Areas of protected trees as identified under condition 41 unless approved by the Site Arborist.

NOTE 2: If the proposed drainage system involves piping underneath or within the building then the designer is to certify that the design is in accordance with AS3500.3.2:1998 and the BCA.

82. Provision of on-site stormwater retention trenches and/or rainwater tanks which are to be designed to have a void-space and/or tank-space available volume which is sufficient to capture and retain the first 10mm of rainfall from the total subject property after which the trenches/tanks are to be designed to bypass and divert to the main drainage system. Appropriate sediment and litter arrestor pits/provisions are to be provided upstream from these trenches/tanks. Any rainwater tanks are to be located so that they may be readily used for landscaping watering purposes. Design drawings are to be prepared by a suitably qualified and experienced civil/hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate.

NOTE 1: Retention trenches may be achieved by the use of a separate low-level outlets from pits located on the main drainage system.

NOTE 2: Where practicable, runoff from driveway and landscaped areas is to be directed to retention trenches in preference to roof runoff.

NOTE 3: Trenches shall be 700mm wide x 700mm deep and fitted with half round PVC (450mm radius) dome sections backfilled with crushed or round river gravel to within 150mm of surface level, surrounded with suitable geofabric and finished with topsoil.

NOTE 4: Trenches are to be at least 5 metres from private property boundaries and 3 metres from the footings of any structure.

NOTE 5: A suitably designed litter and coarse sediment 450mm square grated arrestor pit is to be provided immediately upstream of trenches.

NOTE 6: Trenches are not to require excavation underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist’s certification that such excavation will not affect the longevity of the subject tree(s).

NOTE 7: Maximum capacity of an individual rainwater tank to be 3000 litres.

NOTE 8: If abutting a wall of the dwelling, rainwater tanks must be below the eaves line.

NOTE 9: Rainwater tanks must not be located on the front facade of a dwelling.

NOTE 10: If rainwater tanks are to be attached to a structure then a structural engineer is to certify the adequacy of the design of the structure to carry the tank.

NOTE 11: Maximum height of a rainwater tank is 1.8 metres above natural ground level where installed along the side boundary setback of a dwelling.

NOTE 12: Rainwater tanks to be commercially manufactured tanks designed for the use of water supply and to be installed in accordance with manufacturers specifications.

NOTE 13: Rainwater tanks to be located above an available landscaped area so that the tank may be readily used for watering purposes.

NOTE 14: Rainwater tanks to be fitted with a standard garden tap or similar which is to be clearly marked as not to be used for drinking purposes.

83. Submission to Council prior to the issue of a Construction Certificate of a $10,000.00 bond. This bond will cover the restoration by Council of any damage to Council’s infrastructure in the public road along the frontage or within close proximity to the subject development caused as a result of construction works relating to the subject development. The bond will also cover any incomplete works,. The bond shall be refundable following completion of all works relating to the proposed development, or at the end of any maintenance period stipulated by consent conditions, upon approval by Council’s Development Engineer. Council shall have full authority to make use of the bond for such restoration works as deemed necessary by Council in the following circumstances:

a. Where the damage constitutes a hazard in which case Council may make use of the bond immediately.
b. The damage has not been repaired, or incomplete works have not been completed, by the Applicant within 48 hours of the issue by Council in writing of instructions to undertake such repairs or works.

CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING

84. Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works.

85. External finishes and colours are to be sympathetic to the surrounding environment. This condition is made subject to the samples that were tendered to the Court as Exhibit “AC”.

86. To reduce or eliminate the transport of sediment from the construction site onto public roads, a temporary construction exit, together with necessary associated temporary fencing, shall be established prior to commencement of any work on the site and shall be maintained throughout the duration and progress of construction.

87. To preserve and enhance the natural environment, a geofabric filter fence shall be installed along contour immediately downslope of construction and disturbed areas prior to any earthworks or construction commencing. Both ends shall be turned uphill by 1.0 metre. Approved geofabric, such as CSR - Humes "Propex" Terram 1000, Polyfelt TS500, Bidim U24 or Terratrack 2415 or equivalent is to be stretched between posts placed at 2.0 to 3.0 metre centres. The base of the fabric must be buried at least 200mm in the ground on the upslope side. Geofabric material shall be replaced at intervals not exceeding 18 months, or as directed by the Principal Certifying Authority.

The geofabric filter fence shall be maintained in an operational condition until the development activities have been completed and the site fully stabilised. Sediment shall be removed from the structure when 40% capacity has been reached.

88. To preserve the following tree, no work shall commence until the area beneath the canopy of the following tree excluding the driveway and Pentecost Ave is fenced off for the specified radius from the trunk to prevent any activities, storage or the disposal of any materials within the fenced area. The location of the fence is to allow for a minimum 1.2m pedestrian access at all times. The fence shall be maintained intact until the completion of all demolition/building work on site.

Tree/Location Radius in metres

Liquidambar styraciflua (Sweet Gum) 5.0m

Pentecost Ave nature strip

89. Upon completion of the installation of the required tree protection measures you are required to contact Council on telephone 9424 0888 or facsimile 9418 1117 to arrange an inspection of the site, in this regard a minimum of 24 hours notice is required. Following the carrying out of a satisfactory inspection and subject to the payment of all relevant monies and compliance with any other conditions of approval, work may commence.

CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION

90. The Section 73 Sydney Water compliance certificate must be obtained and submitted prior to occupation, issue of the Final Compliance Certificate or issue of the Subdivision Certificate.

91. Prior to issue of the Final Compliance Certificate or the issue of a Subdivision Certificate, all disused driveway crossings, pipe crossing and/or kerb laybacks are to be reinstated as footway, turfed verge and kerb and/or gutter to the satisfaction of Council’s Development Engineer. Reinstatement works to generally match surrounding infrastructure. Any infrastructure within the road reserve along the frontage of the subject site or within close proximity which has been damaged as a result of construction works on the subject site is to be repaired to the satisfaction of Council’s Development Engineer, at the Applicants cost.

92. Construction of the road, footpath and/or drainage works in the public road in accordance with the Council approved drawings must be undertaken prior to occupation, issue of the Final Compliance Certificate or issue of a Subdivision Certificate. The works are to be to the satisfaction of Council’s Development Engineer and must be supervised by the Applicant’s designing engineer. This engineer is to provide certification upon completion that the works were constructed in accordance with the Council approved drawings. The works are also to be subject to inspection by Council as noted on the approved drawings. Any conditions attached to the approved drawings for these works must be met to the satisfaction of Council’s Development Engineer. The completed works are to be approved by Council’s Development Engineer prior to issue of the Final Compliance Certificate or issue of a Subdivision Certificate.

93. The creation of a Positive Covenant and Restriction on the Use of Land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the on-site stormwater detention facilities on the property. These must be created prior to issue of the Final Compliance Certificate or issue of a Subdivision Certificate. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site detention facilities" (available from Council on request) and to the satisfaction of Council.

For existing Titles, the Positive Covenant and the Restriction on the use of Land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the On-Site Detention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms.

94. In order to maintain Council’s database of as-constructed on-site stormwater detention systems, if the Principal Certifying Authority is not Council then a copy of the approved stormwater detention design, the works-as-executed drawings and the Engineer’s certification of the as-constructed system is to be provided to Council, attention Development Engineer, prior to issue of the Final Compliance Certificate or issue of a Subdivision Certificate.

95. Prior to issue of any related Subdivision Certificate, the creation of a Restriction-on-Use under the Conveyancing Act, restricting the occupation of the premises to:

a. People aged 55 years or over, or people with a disability as defined by the provisions of State Environmental Planning Policy No 5 (as amended December 2000).
b. People who live with such people as defined in (a) above.
c. Staff employed to assist in the administration of and provision of services to housing provided in this development.

96. All parking spaces and all areas of common property, including visitor car parking spaces and on-site detention facilities, which is to be denoted common property, be included on any final plans of strata subdivision.

97. Submission of certification from a suitably qualified and experienced traffic/civil engineer to the Principal Certifying Authority, prior to issue of the Final Compliance Certificate, that:

· The dimensions of all as-constructed private carparking spaces meet the dimension requirements of SEPP (as amended December 2000).

· The as-constructed carpark complies with the approved Construction Certificate plans.

· That the vehicular headroom requirements of SEPP 5 (as amended December 2000) for parking spaces and the headroom requirements of AS2890.1 are met from the public street into and within the respective relevant areas of the basement carpark.

98. Construction of the On-site Stormwater Detention System is to be supervised and upon completion a Certificate and Works-as-Executed (WAE) plan is to be submitted to the Principal Certifying Authority for approval, prior to issue of the Final Compliance Certificate or issue of the Subdivision Certificate. Certification is to be provided by a suitably qualified civil/hydraulic engineer and the WAE plan is to be prepared by a registered surveyor. The certifying engineer must to also complete and submit Council’s standard On-site Stormwater Detention Certification sheet.

The Certificate is to be with respect to compliance with:

· Compatibility of the drainage system with the approved plans

· The soundness of the structure.

· The adequacy of the outlet control mechanism to achieve the discharge as specified.

· The capacity of the detention storage as specified.

· The size of the orifice or pipe control fitted.

· The maximum depth of storage over the outlet control.

· The adequate provision of a debris screen.

· The inclusion of weepholes in the base of the outlet control pit.

· The provision of an emergency overflow path.

· All enclosed floor areas, including habitable and garage floor levels, being safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

The Works-as-Executed drawing(s) are to include all relevant levels including:

· invert levels

· surface or pavement levels

· floor levels including adjacent property floor levels

· maximum water surface level to be achieved in the storage zone

· dimensions of basin(s), tank(s), pit(s), etc.

· location(s) of basin(s), tank(s) and distances from buildings, boundaries, and easements, etc.

· storage volume(s) provided and supporting calculations

· size of orifice(s)

99. Construction of the property stormwater drainage works is to be supervised and upon completion certified by a suitably qualified person that the works were carried out in accordance with the approved plans. Certification must be provided to the Principal Certifying Authority prior to issue of the Final Compliance Certificate or issue of any Subdivision Certificate.

BUILDING CONDITIONS

100. The following are required details and must be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify.

a. Details prepared by a practicing structural engineer for all or any reinforced concrete, structural steel or timber framing.
b. Wind bracing details complying with AS 1684-1992 National Timber Framing Code, AS 1170.2-1989 Wind Load Code or AS 4055-1992 Wind Loads for Housing Code.
c. Retaining walls and associated drainage.
d. Wet area waterproofing details complying with the Building Code of Australia.
e. Mechanical ventilation details complying with Australian Standard 1668-1993 Mechanical Ventilation & Airconditioning.
f. Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code.
g. Stormwater disposal details complying with Council's Stormwater Management Manual and/or other conditions of this consent.

101. The building works are to be inspected during construction by the Council, an accredited certifier or other suitably qualified person/s (as applicable) and a Compliance Certificate shall be issued prior to proceeding to the subsequent stages of construction, encompassing not less than the following stages:

a. All sediment and erosion control and tree protection measures and installations in place on the site prior to the commencement of any earthworks, excavations or other work.
b. Any pier holes and/or foundation material.
c. Any steel reinforcement prior to placement of concrete. This includes all reinforcement of floors, slabs, trenches, columns, beams and stairs (if components of this structure).

d. Any structural components (i.e. timber framework, structural steelwork or the like) before fixing any lining or covering.
e. Any stormwater drainage works prior to covering.
f. The completed landscape works in accordance with the approved plans.
g. The completed structure prior to occupation.

The required inspection fees (which also covers the issue of the Compliance Certificate) are to be paid to the Council before the issue of a Construction Certificate for this development.

If inspections are to be carried out by Council, 24 hours notice is required by Council's Department of Environmental and Regulatory Services, by telephoning Customer Service on 9424 0888 during business hours (8.30am to 4.30pm) or by facsimile on 9418 1117.

Note: Inspections of work which is found to be defective or not ready will attract a reinspection fee. Please cancel bookings which will not be ready for inspection.

102. To ensure compliance with this determination the building shall be set out by a Registered Surveyor and the Survey Report shall be lodged with the Principal Certifying Authority prior to the external wall construction proceeding above floor level.

103. All structural timber members subject to weather exposure shall have a durability class rating of 2 or better in accordance with Australian Standard 1684.2-1999 (National Timber Framing Code), or be preservative treated in accordance with Australian Standard 1604-1980 (Preservative Treatment for Sawn Timbers, Veneers and Plywood).

104. For the purpose of safety and convenience a balustrade of 1.0 metre minimum height shall be provided to any landing, verandah, balcony or stairway of a height exceeding 1.0 metre above finished ground level. The design may consist of vertical or horizontal bars but shall not have any opening exceeding 125mm. For floors more than 4.0 metres above the ground, any horizontal elements within the balustrade or other barrier between 150mm and 760mm above the floor must not facilitate climbing.

105. For the purpose of safe ingress and egress the stairs are to be constructed within the following dimensions:

Note: Dimensions must also comply with limitations of two (2) Risers and one (1) going equalling a maximum 700mm or minimum 550mm. The Risers and Goings shall be uniform throughout the length of the stairway.

106. Termite protection which will provide whole of building protection in accordance with Australian Standard 3660 - "Protection of Buildings from Subterranean Termites" is to be provided.

Council has a non chemical policy for termite control but will consider proposals involving physical barriers in combination with approved chemical systems. Handspraying is prohibited.

Where a monolithic slab is used as part of a termite barrier system, the slab shall be constructed in accordance with Australian Standard 2870.1 or as designed by a structural engineer but in either case shall be vibrated to achieve maximum compaction.

To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate.

107. The following are required details and must be submitted to the Council on completion of the works. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify.

a. Wet area waterproofing details complying with the Building Code of Australia.
b. Mechanical ventilation details complying with Australian Standard 1684 Mechanical Ventilation & Airconditioning.
c. Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code.
d. Stormwater disposal details complying with Council's Stormwater Management Manual and/or other conditions of this consent.
e. Waterproofing of walls/floors below ground level to prevent the entry of water into the building.

108. The development is to meet the requirements of Clause 13A(2), (3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16), (17), (18), (19) and (20) of the State Environmental Planning Policy No 5. A compliance certificate is to be submitted from a suitably qualified person to the effect that the design complies with the relevant design standards.

Figure1:

Figure 2:

Figure 3:

CITATION:	Toon v Ku-ring-gai Council [2004] NSWLEC 173
PARTIES:	APPLICANT John Toon RESPONDENT Ku-ring-gai Council
FILE NUMBER(S):	11563 of 2003
CORAM:	Cowdroy J
KEY ISSUES:	Appeal :- SEPP 5 development - effect of draft Local Environment Plan - heritage issues.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 4, s 79C Ku-ring-gai Planning Scheme Ordinance State Environmental Planning Policy No. 1 - Development Standards State Environmental Planning Policy No.5 - Housing for Older Persons or Persons with a Disability, cl 3, cl 4, cl 5, cl 10, cl 12, cl 13, cl 13A, cl 19, cl 25 State Environmental Planning Policy (Seniors Living) 2004, cl 6
CASES CITED:	Walker v North Sydney Council (2000) 110 LGERA 397; Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	31/03/2004; 01/04/2004
DATE OF JUDGMENT:	04/30/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr P. Tomasetti (Barrister) SOLICITORS Taylor Kelso RESPONDENT Mr P. Rigg (Solicitor) SOLICITORS Deacons