Vivian v Waverley Council
[2010] NSWLEC 1233
•25 August 2010
Land and Environment Court
of New South Wales
CITATION: Vivian v Waverley Council [2010] NSWLEC 1233 PARTIES: APPLICANT
RESPONDENT
Philip Vivian
Waverley CouncilFILE NUMBER(S): 10236 of 2010 CORAM: Dixon C KEY ISSUES: DEVELOPMENT MODIFICATION :- privacy and amenity LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s96(2)
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006 (Amendment No 4 )DATES OF HEARING: 22 June , 27 July and 6 August 2010
DATE OF JUDGMENT:
25 August 2010LEGAL REPRESENTATIVES: APPLICANT
Ms Taylor (solicitor)
SOLICITORS
Bartier PerryRESPONDENT
Mr Patterson (solicitor)
SOLICITORS
Wilshire Webb Staunton Beattie
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESDixon C
25 August 2010
JUDGMENT10236 of 2010 Philip Vivian v Waverley Council
Summary
1 This is an appeal against Waverley Council’s decision to refuse consent to the modification of a newly constructed dwelling house at 45 Gardyne Street, Bronte.
2 The applicant’s modification application DA452/2008/B, which was lodged with the council on 8 October 2009 pursuant to section 96(2) of the Environmental Planning and Assessment Act 1979, seeks to modify the original development consent DA452/2008 to allow for:
- A new glass roof to the first floor terrace (currently approved with open louvres).
- Reduce first floor terrace planter size (modified to 25% of terrace area).
- A new gate linking the ground floor courtyard to an external path along the northern side boundary and reconfiguration of the existing external stair.
- Northern side boundary fencing (as required by Condition 2a).
- Several minor modifications (new toilet at first floor and window and door changes).
3 The main issue of the appeal is the impact of the proposed modifications on the amenity of the adjoining property at 43 Gardyne Street. According to the evidence, the original development consent incorporated a deferred commencement condition which sought to protect the privacy and amenity of the adjoining property it states:
- “The front terrace be reduced by 25% and reorientated toward the east."
4 According to the evidence, the deferred commencement condition was satisfied by amended plans on 24 February 2009 and by a reduction in area by 35% of the northern section of the terrace through the incorporation of a large planter box (approximate dimensions of 5m x1.5m).
5 The applicant now seeks to reduce the area of the planter box to 25% and reconfigure the planter box to allow a larger usable area.
6 Despite initial objections to the proposed modifications at the hearing the parties negotiated with the objectors to resolve the issues by agreement. At the conclusion of the evidence a set of consolidated conditions was tendered for my consideration in support of an approval of the application.
7 Having considered the agreed conditions and the evidence, I am satisfied that I have jurisdiction to deal with this matter under section 96(2) of the Act because the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted; and, before that, consent as originally granted was modified. Furthermore, I am satisfied on a merit assessment under section 96(2) and section 79C(1) of the Act that the conditions proposed by the parties satisfactorily address the issues raised in this appeal. Accordingly, I order that the appeal is upheld and consent is granted to modification application DA452/2008/B subject to the conditions detailed below.
The Site and Locality
8 The site is located on the western side of Gardyne Street between St. Thomas Street and is legally known as Lot B DP 300855 45 Gardyne Street, Bronte. The site has a frontage of 12.495m to Gardyne Street, side boundaries of 31.655m and 37.345m and a rear boundary to St. Thomas Street of 12.19m with a total area of 394.75m2.
9 The site originally contained a single storey masonry and title dwelling with three bedrooms. Vehicle access to the site is via a single garage (storeroom under) located adjacent to the St.Thomas Street frontage.
10 Surrounding the site is predominantly single to two storey dwelling houses, which step down in accordance with the prevailing topography. To the east of the site, on the opposite side of Gardyne Street & Bronte Road is Bronte Park and Beach.
The Proposal
11 Development Application No. 452/2008 was granted deferred commencement approval on 7 February 2009 for the alterations and additions to the existing dwelling including a first floor addition.
12 As noted above on 24 February 2009 amended plans and accompanying documentation was received that satisfied the deferred commencement condition.
13 At the time of the hearing, the new dwelling house was constructed in accord with the deferred commencement plans and by the conclusion of the evidence the applicant and his family had moved into the new dwelling house presumably under an interim occupation certificate.
14 A Section 96 application (DA_452/2008/A) was approved by Council on 28 May 2009 to allow changes to the roof and window at southern elevation.
The Modification Application the Subject of the Appeal
15 DA 425/2009/B to modify the glass roof to terrace, reconfigure the external stairs and other changes was refused by Council on 5 February 2010 for the following reasons:
- 1. The proposal is unsatisfactory in respect to the provisions of Section 79C(1)(a) of the EP&A Act 1979, as the proposal does not satisfy the requirements of the Waverley LEP 1996 in relation to the General aims (c1.2), Specific Aims (cl.7d&f) and Zone Objectives (c1.10), in that:
(b) The proposed new gate linking the ground floor courtyard to an external path along the northern boundary has the potential to exacerbate privacy impacts upon the adjoining neighbour.(a) The proposed modifications to the terrace, including the increase in size by reducing the planter box and the proposed roof over, will adversely impact upon the visual and acoustic privacy impacts upon the adjoining neighbour; and
- 2. The proposal is unsatisfactory and considered contrary to the Waverley Development Control Plan 2006 (Amendment No 4), Part D1 Residential, 5.6 Privacy and Noise Controls, Objectives (a), (b) and (c) in relation to overlooking and noise impacts .
Statutory Controls
16 The site is zoned Residential 2(a) - Low Density under Waverley Local Environmental Plan 1996 ('WLEP 1996’).
17 The site is not listed as a heritage item under the WLEP 1996 or within a heritage conservation area. The sandstone wall at the front of the site is listed as a Heritage Landscape Item (L42) - WLEP 1996 being "Sandstone retaining wall, Split level Road design and Street Trees, Gardyne Street, Bronte".
18 The following parts of Waverley Development Control Plan 2006 (Amendment No. 4) (`WDCP 2006’) apply to the subject site:
- Part C3 - Advertised and Notified Development;
- Part D1 - Dwelling House and Dual Occupancy development;
- Part G Environment (G1 Site Waste Minimisation and Management, G2 Solar Access, G4 Water Management);
- Part H Heritage;
- Part I Land Use and Transport.
19 The modification application was notified to surrounding property owners and four submissions were received during the notification period. The following issues were raised in the submissions from the objectors:
- a. the proposed glass roof over the approved louvre pergola above the first floor;
b. terrace area;
c. increase of terrace area and reorientation to the east;
d. side gate and ground floor access to courtyard;
- e. fencing.
Contentions
20 The Respondent contends that the proposed should not be approved for the following reasons:
The proposed new glass roof to the first floor terrace and the reduction of the first floor planter will result in an unreasonable impact on the aural and visual privacy of surrounding neighbours contrary to the general and specific aims of the WLEP 1996 set out in clause 2(c), clause 3(7)(d) and (f), clause 10(2) and the objectives and strategy set out in clause 5.6 and Part D1 of the WDCP 2006.
(a) The proposed modifications are likely to result in more frequent and intense use of the terrace.Particulars
(b) The first floor deck will be in excess of the maximum area and depth for elevated external decks (10m 2 and 1.5m respectively) as set out in Section 5.6.2 - Privacy and Noise of WDCP 2006 Part D9.
(c) Reducing the size of the planter box will allow overlooking into the internal areas and open space of the adjacent dwelling to the north (43 Gardyne Street) contrary to objectives (a) and (b) of Section 5.6 - Privacy and Noise of WDCP 2006 Pail D9.
(d) The location of the proposed glass roof is in close proximity 'to the living/sleeping areas of the property to the North.
- 2. New Gate Linking the Ground Floor Courtyard And External path Along the Northern Boundary and Reconfiguration of the Existing External Stair
- The new gate and reconfiguration of the stairs result in loss of privacy to the adjoining neighbour to the north contrary to the general and specific aims of the WLEP 1996 set out in clause 2(c), clause 3(7)(d) and (f), clause 10(2) and the objectives and strategy set out in clause 5.6 and Part D1 of the WDCP 2006.
On site Hearing
21 The hearing commenced onsite and involved an extensive view of the site and the adjoining property to the north. This allowed me the opportunity to hear the evidence from a number of local residents who objected to the application including the neighbours who reside in the adjoining property to the north. The applicant’s consultant town planner Ms Robinson, who prepared a joint report with council’s planner, Ms Yap, dated 1 June 2010, also spoke to their report onsite.
22 By the end of the hearing, both planners supported an approval of the application subject to the agreed conditions.
23 Many objectors expressed concern that this is development “by creep”. It is according to the evidence, the second attempt by the applicant to modify and extend what they collectively describe as an excessive and obtrusive development in their local area. I have read the council’s bundle of documents and the submissions received. It was particularly useful in this appeal to inspect the adjoining property to the north at 43 Gardyne Street and hear from those objectors because the inspection made clear the fact that they are clearly the most affected by this application.
24 In my assessment, the objectors at 43 Gardyne Street raise real concerns about the application and its impact on their already compromised existing amenity and privacy. In my opinion their objections were reasonable because their property is already significantly impacted on by the applicant’s large and imposing dwelling house which looms over their property. Essentially, they asked for some privacy and amenity and were satisfied to agree to what the applicant wanted including the secondary side access on the applicant’s northern boundary and the glass cover over the terrace subject to appropriate privacy measures. It was clear on inspection (because of the slope of the land) that without screen planting the first floor terrace of the new dwelling directly overlooks the objectors’ main living room, bedroom and outdoor patio off the living room. Not only could I watch the television screen from the first floor terrace but also whilst sitting in the objector’s main living room, I could view directly the north eastern end of the first floor terrace of the new dwelling.
25 Both properties enjoy magnificent ocean views to the water to their east and it is easy to appreciate the council imposed the deferred commencement condition requiring the reorientation of the new dwelling’s front terrace to the east in order to protect the amenity and privacy of the adjoining property to the north.
26 The council’s planner was supportive of the privacy measures requested by the objectors to the north and was of the opinion that mature plant screening of a minimum height of 1.5 m in planter boxes, which decrease the useable area by not less than 25%; and fixed louvers on the northern boundary are necessary to maintain the neighbours’ privacy. (P3 planner’s joint report).
Agreed Conditions
27 At the conclusion of the evidence because the parties and the objectors had come to an agreement about acceptable conditions I asked that a consolidated version of the conditions be forwarded to the Court for my consideration. On receipt all conditions were agreed except for condition 1 of Attachment A and condition 2(d) of Attachment B.
Condition 1 Attachment A
28 The applicant submits that condition 1 of Attachment A (the deferred commencement condition) should be deleted as it has been satisfied and is now superseded and made redundant by the amended plans in this appeal.
29 The council submits that it should be retained in the consolidated conditions because if it were removed the consent would no longer read as a deferred commencement consent despite the satisfaction of that condition by the amended plans as noted in council’s letter to the applicant dated 27 February 2009.
Finding on condition 1 Attachment A
30 To ensure certainty in the planning process, particularly in the event of any future section 96 applications, and to ensure the privacy of the adjoining property to the north is reasonably maintained, I have decided to adopt the council’s version of the conditions which retains the original deferred commencement condition. This deferred commencement condition in fact provides the reason why the new amended condition 2 is imposed in respect of the plant screening in the planter box fixtures and the fixed louvres on the northern side of the house.
31 Furthermore, an assessment under section 96(2) of the Act requires a comparison of the original consent before modification and the proposed consent as modified. It is not open to me to remove the deferred commencement condition from the consolidated consent because to do so would in my opinion result in a development that could not be said to be substantially the same as required by the section.
Condition 2(d) of Attachment B
32 This condition relates to the type of barrier to be installed to comply with Performance Requirement P2.5.2 of the BCA Volume 2 as it forms part of the balustrade serving the balcony.
33 Council submits that its version of the condition 2(d) is appropriate as it provides some certainty as to the style of barrier. The applicant submits that its version of this condition is preferable because it allows the applicant some flexibility as to the final form of the barrier but still requires the barrier to comply with the BCA.
Finding
34 I have considered the competing versions and prefer the council’s condition because it is clear and promotes certainty and in my assessment is an enforceable condition.
35 The northern objectors agree to the secondary side access to the site as ultimately proposed subject to a boundary survey and the applicant erecting (at his expense) an agreed boundary fence in accordance with condition (condition 2(e)) prior to the release of the final construction certificate. I am satisfied with the condition proposed in respect of this issue, because it will help maintain the security and privacy of the adjoining properties, which is a proper consideration under section 79 C (1) of the Act.
- For the above reasons, the Court makes the following Orders:
1. The Appeal is upheld.
2. Development consent DA 452/2008 for alterations and additions to a dwelling house at 45 Gardyne Street, Bronte is modified in accordance with DA-452/2008/B dated 8 October 2009 subject to the Conditions in Annexure “A” to this judgment.
3. The exhibits are returned except A and C
___________________
Susan Dixon
Commissioner of the Court
Annexure ‘A’
Conditions of Consent
Consolidated conditions of consent
Attachment A DA-452/2008
The consent authority must be satisfied as to the following matters before the consent can operate.
1. The front terrace be reduced by 25% and re-orientated towards the east.
Attachment B DA-452/2008
Upon satisfying the consent authority as to the matters in Attachment A, the following conditions will apply.
A. Condition 1 is modified as follows:
1. Approved Development
The development must be in accordance with:
(a) Architectural Plan Nos. IS214 – A2 01 05, A2 02 05, 3 01 07, A3 02 06 revision dated 10 October 2008, tables and documentation prepared by BATESSMART, dated 10 October 2008, received by Council on 20 October 2008 and amended Plan Nos. A2 01 08 dated 29 September 2009, A3 02 09 dated 17 June 2010 and A3 01 13 dated 21 June 2010 (s.96 application), received by Council on 22 June 2010 and A2 02 12 dated 22 July 2010, except where amended by the following conditions of consent;
(b) Landscape Plan No. Drawing No L-01, Issue A and documentation prepared by Kate Mitchell Design, dated 05.08.08, and received by Council on 5 August 2008;
(c) BASIX Certificate;
(d) Schedule of external finishes and colours in plans received by Council on 20 October 2008; and
(e) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006.
Except where amended by the following conditions of consent.
B. Condition 2 is modified as follows:
2. general modifications
The proposal shall be amended as follows:
(a) The privacy louvres on the northern side of the house are to be permanently fixed at an angle in order to prevent overlooking into the habitable rooms of the adjoining dwelling at 43 Gardyne Street.
(b) The planter box at the front terrace is to have a minimum internal width of 600mm and internal length of 4m (measured between the inside face walls of the planter box) and be setback 150mm from the northern balustrade of the terrace. The internal length shall comprise of 2m in each direction (generally east and west) from the eastern end of the eastern most wooden louvre of the privacy screen as constructed and shown on Plan No. A2 02 12.
(c) The planter box at the front terrace is to contain a minimum soil depth of 500mm and is to be planted with mature plants installed and maintained at a minimum height of 1.5m above the terrace level and which have an adequately dense foliage so as to minimise overlooking into the habitable rooms of 43 Gardyne Street. If any plant dies it is to be replaced and maintained with a plant that satisfies the terms of this condition. The landscape works are to be completed along with an ongoing watering, replacement and detailed maintenance programme developed/implemented to allow for the optimum care and maintenance of the plants in the planter box. The recommended species to be planted is lilli pillis. Evidence/details of the maintenance programme are to be submitted to Council’s Director of Planning and Environmental Services for approval prior to the issue of the Final Occupation Certificate.
(d) A non-climbable barrier shall be incorporated above the planter box to a height of 1050mm from the finished first floor level, in order to address safety issues. The non-climbable barrier is to be installed around the southern, western and eastern ends of the planter box.
(e) A suitable fence no higher than 1.2m in height which is in character with the rest of the street is to be installed at the Applicant’s expense on the northern boundary as it adjoins 43 Gardyne Street between the front boundary alignment and the gate on the northern side of the house to the satisfaction of Council and the adjoining owner. The fence is to be erected prior to the release of the Final Occupation Certificate.
The amendments shall be submitted for the approval of Council’s Director of Planning and Environmental Services prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.
3. Construction Vehicle Plan of Management
The Construction Vehicle Plan of Management be amended to require ingress and egress to the site from St Thomas Street only.
4. USE OF DWELLING
The premises are to be used only as a single unit dwelling house.
5. MAINTENANCE OF WATER TREATMENT DEVICES
All waste water and stormwater treatment devices (including drainage systems, sumps and traps) must be regularly maintained in order to remain effective. All solid and liquid wastes collected from the device must be disposed of in accordance with the Protection of the Environment Operations Act, 1997.
6. EXCAVATION TO BE LIMITED
Excavation shall be limited to that shown in the approved plans. Excavation, proposed or undertaken in the certification or construction of the development, that results in additional habitable or non-habitable floor space (including storage) shall require the submission of a new development application or Section 96 application to modify the approved development. During consideration of this application construction work on site shall cease without prior agreement of Council. Failure to comply with this condition may lead to Council prosecuting or taking a compliance action against the development for breach of its consent.
B. Compliance Prior to Issue of Construction Certificate
7. SECTION 94A CONTRIBUTION
A cash contribution is payable to Waverley Council pursuant to section 94A of the Environmental Planning and Assessment Act 1979 and the "Waverley Council Development Contributions Plan 2006” in accordance with the following:
(a) A cost report indicating the itemised cost of the development shall be completed and submitted to Council:
1. Where the total development cost is less than $500,000:
"Waverley Council Cost Summary Report"; or,
2. Where the total development cost is $500,000 or more:
"Waverley Council Registered Quantity Surveyor's Detailed Cost Report".
A copy of the required format for the cost reports may be obtained from Waverley Council Chambers (First Floor) or downloaded from:
(b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000.
Waverley Council Development Contributions Plan 2006 may be inspected at Waverley Council Chambers, First Floor, Cnr Paul Street and Bondi Road, Bondi Junction.
Advisory Note
· A development valued at $100,000 or less will be exempt from the levy.
· A development valued at $100,001 - $200,000 will attract a levy of 0.5%.
· A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development.
8. security deposit
A deposit or guarantee satisfactory to Council for the amount of $7,000.00 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work.
This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work to the person who paid the deposit.
9. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE
The building work, including demolition, must not be commenced until:
(a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the ; and
(c) Council is given at least two days Notice in writing of the intention to commence the building works.(b) a Principal Certifying Authority has been appointed and Council has been notified of the Environmental Planning & Assessment Act, 1979 appointment in accordance with Section 81(A)(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and
The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority.
10. hoarding required
A standard A-Class hoarding designed and constructed in accordance with the requirements of the Work Cover Authority being erected on the street alignments of the property, prior to the commencement of building operations, and such hoardings to be maintained during the course of building operations. Details of the hoarding are to be provided to Council prior to issue of the Construction Certificate.
Where the hoarding is to be erected over the footpath or any public place, the approval of Council must be obtained prior to the erection of the hoarding.
11. DETAILS OF BULK EXCAVATION, SHORING OR PILE CONSTRUCTION
A report shall be prepared by a suitably qualified and practising Structural Engineer detailing the proposed methods of bulk excavation, shoring or pile construction, including details of vibration emissions and any possible damage which may occur to adjoining or nearby properties as a result of the proposed building and excavation works. The Report shall be submitted to the Principal Certifying Authority, Council and the owners of adjoining properties prior to the issue of a Construction Certificate.
Any practices or procedures specified in the Structural Engineer's report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into the plans and specifications together with the Construction Certificate.
12. EROSION, SEDIMENT AND POLLUTION CONTROL
Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.
13. Construction Vehicle Plan of Management
Submission of a "Construction Vehicle Plan of Management" for the routing and control of construction vehicles accessing and exiting the site. Such plan to address the hours of operation, the employees' vehicles, holding areas for vehicles wanting to access the site and truck works and provide a means of ensuring vehicular and pedestrian access to adjoining resident's properties for the duration of the works. The "Construction Vehicle Plan of Management" is to be approved by Council prior to the issue of a Construction Certificate and the undertaking of any demolition, remediation or construction on the site.
14. STORMWATER MANAGEMENT
Certification is to be provided from a suitably qualified professional, that the stormwater system has been designed in accordance with the Water Management Technical Guidelines. Stormwater system details are to be submitted in accordance with the Waverley Development Control Plan 2006 (Amendment No.2) - Part B, Clause 9.2, prior to a Construction Certificate.
15. ENGINEERING DETAILS - CERTIFICATE OF ADEQUACY
A Certificate of Adequacy prepared by a practicing Structural Engineer, certifying the adequacy of the existing building structure to carry the extra load of the proposed additions is to be provided to Council or the Accredited Certifier prior to the issue of a Construction Certificate.
16. ENGINEERING DETAILS
Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with major structural components prior to the issue of a Construction Certificate.
17. VEHICULAR ACCESS
Vehicular access and gradients of vehicle access driveway(s) within the site are to be in accordance with Australian Standard 2890.1 Parking Facilities - Off Street Car Parking with details provided on the plans prior to the issue of the Construction Certificate.
18. BASIX
The undertakings provided in the Basix Certificate shall be provided for in the Construction Certificate plans and documentation prior to the issue of the Construction Certificate plans. The Principal Certifying Authority shall be responsible for ensuring that all the undertakings are satisfied prior to the issue of an Occupation Certificate.
The above condition is a prescribed condition under the Environmental Planning and Assessment Act Regulations clause 97A and the above Basix commitments are mandatory and can not be modified under Section 96 of the Environmental Planning and Assessment Act, 1979.
19. USE OF RENEWABLE TIMBERS
Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings so as to help protect the existing areas of rainforest. In this regard, a schedule of proposed timber products to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used.
20. TREE PLAN
A landscape plan is to be submitted with the Construction Certificate showing the location of all trees on the land in relation to the proposed development, including trees to be removed. All trees and shrubs identified for retention and within 7.5m of the building work are to be provided with a tree guard and a notice on each guard indicating "This tree is the subject of a Tree Preservation Order by Waverley Council." This notice is to be in place prior to commencement of any building or demolition work. Only trees with the approval of Council for removal may be removed from the site.
21. amended landscape plan
The Landscape Plan is to be amended by the following changes:
(a) Selective species of trees, shrubs and groundcovers are to be a minimum of 50% local native species
The amended landscape plan is to be submitted to the Principal Certifying Authority with the plans for the Construction Certificate.
22. TREE PROTECTION
Precautions shall be taken when working near trees to ensure their retention, including the following:
(a) Do not store harmful or bulk materials or spoil under or near trees;
(b) Prevent damage to bark and root system;
(c) Do not use mechanical methods to excavate within root zones;
(d) Do not add or remove topsoil from under the drip line;
(e) Do not compact ground under the drip line;
(f) Do not mix or dispose of liquids within the drip line of the tree; and
(g) All trees marked for retention must have a protective fence/guard placed around a nominated perimeter.
C. Compliance Prior to and During Construction
23. PRIOR TO SITE WORKS
The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:
(a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or
(b) the name and permit number of the owner/builder who intends to do the work; and
(c) any change to these arrangements for doing of the work.
24. home building act
The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences.
25. CONSTRUCTION SIGNS
Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works.
26. EXCAVATION AND BACKFILLING
All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property.
27. excavation below footings
If an excavation associated with the erection or demolition of a building extends below the level of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made, at their own expense, must:
(a) 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 seven 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.
28. TOILET FACILITIES
Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water.
29. DILAPIDATION REPORT
A dilapidation report prepared by a practising Structural Engineer shall be submitted to the Principal Certifying Authority, Council and the owners of the adjoining properties prior to the commencement of demolition, bulk excavation or building works, detailing the current condition and the status of all buildings (both internal and external), including ancillary structures located upon the adjoining properties.
30. use of fill on site
All fill imported on to the site shall be validated to ensure the imported fill is suitable for the proposed land use from a contamination perspective. Fill imported onto the site shall also be compatible with the existing soil characteristics for site drainage purposes.
Council may require details of appropriate validation of imported fill material to be submitted with any application for future development of the site. Hence all fill imported on to the site should be validated by either one or both of the following methods during remediation works;
(a) Imported fill should be accompanied by documentation from the supplier which certifies that the material is not contaminated based upon analyses of the material for the known past history of the site where the material is obtained; and/or
(b) Sampling and analysis of the fill material should be conducted in accordance with the DEC Sampling Design Guidelines (1995) to ensure that the material is not contaminated.
31. DEMOLITION OR ALTERATION OF PRE 1987 BUILDINGS
At least five (5) days prior to the demolition, renovation work or alterations and additions to any building constructed before 1987, the person acting on the consent shall submit a Work Plan prepared in accordance with Australian Standard AS260-2001, Demolition of Structure and a Hazardous Materials Assessment by a person with suitable expertise and experience. The Work Plan and Hazardous Materials Assessment shall:
(a) outline the identification of any hazardous materials, including surfaces coated with lead paint;
(b) confirm that no asbestos products are present on the subject land; or
(c) particularise a method of safely disposing of the asbestos in accordance with the Code of Practice for the Safe Removal of Asbestos NOHSC 2002 (1998);
(e) describe the precautions to be employed to minimise any dust nuisance; and(d) describe the method of demolition;
(f) describe the disposal methods for hazardous materials.
32. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS
All site works complying with the occupational health and safety requirements of WorkCover NSW.
33. STOCKPILES
Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.
34. LOCATION OF BUILDING OPERATIONS
Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system.
35. TEMPORARY DIVERSION OF ROOF WATERS
Stormwater from roof areas shall be linked via a temporary downpipe to Council's stormwater system immediately after completion of the roof area. Inspection of the building frame will not occur until this is completed.
36. ALL BUILDING MATERIALS STORED ON SITE
All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.
37. CONSTRUCTION HOURS
Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on:
(a) The Saturday ( except minor renovation o refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;
(c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW.(b) Sundays and public holidays; and
Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000.
38. quality of construction act - inspections (dwelling houses class 1 and 10)
The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certificate.
MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.
In the case of a Class 1 and 10 building:The specified MANDATORY inspections are:
(a) at the commencement of building work;
(b) after excavation for, and prior to the placement of, any footings;
(c) prior to pouring any in-situ reinforced concrete building element;
(d) prior to covering of the framework for any floor, roof or other building element;
(e) prior to covering any waterproofing in any wet areas;
(f) prior to covering any stormwater drainage connections; and
(g) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building.
The following additional inspections are required to be undertaken by the PCA:
(a) sediment control measures prior to the commencement of building work;
(b) foundation material prior to undertaking building work;
(c) shoring of excavation works, retaining walls, piers, piling or underpinning works;
(d) steel reinforcement, prior to pouring concrete;
(e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns;
(f) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls);
Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.
39. CERTIFICATE OF SURVEY - LEVELS
All construction works shall be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans. Certification from a Registered Surveyor certifying ground, upper floor/s and finished ridge levels is to be submitted to the Principal Certifying Authority during construction and prior to continuing to a higher level of the building.
40. CERTIFICATE OF SURVEY - BOUNDARIES AND LOCATION OF BUILDING
A Certificate of Survey prepared by a Registered Surveyor setting out the boundaries of the site and the actual situation of the building on the site is to be submitted to the Principal Certifying Authority to certify the building is located in accordance with the development consent plans. The Certificate is to be submitted prior to the construction of the external walls above the ground floor level of the building.
41. WATER PROOFING
The floor and wall surfaces of the proposed bathrooms, laundry and kitchen areas being protected against water in accordance with the Building Code of Australia. The wet areas are to be examined and certified by an Accredited Certifier.
Note: Water proofing is to be in accordance with AS 3740 - Water Proofing of Wet Areas within residential buildings.
42. HOT TAP WATER SCALDING
To reduce the incidence of hot tap water scalding and, for the purpose of energy efficiency, all new or replacement hot water systems shall deliver hot water to a maximum 50 degrees Celsius at the outlet of all sanitary fixtures used for personal hygiene.
43. EXISTING VEHICLE CROSSING IS TO BE MODIFIED
The existing vehicle crossing is to be modified to provide access to the proposed garage . A separate application is required for the modified vehicle crossing, with all work to be carried out with the approval of and in accordance with the requirements of Council.
D. Compliance Prior to FINAL Occupation CERTIFICATE or During Occupation
44. FINAL OCCUPATION CERTIFICATE
The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing a Final Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of these conditions of consent and Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied.
45. LIGHTING
Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 Control of the Obtrusive Effects of Outdoor Lighting .
Survey details are to be provided to Council and the owner of 43 Gardyne Street prior to the release of the occupation certificate certifying that the pathways and the stairs in proximity to the northern boundary are to be located wholly within the applicant’s property.
This condition was inserted by the Land and Environment Court in Proceedings No. 10263 of 2010 on 25/8/10.
_________________________
Susan Dixon
Commissioner of the Court
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