Walsh v Holroyd City Council - [2009] NSWLEC 1271

Land and Environment Court

of New South Wales

CITATION: Walsh and Anor v Holroyd City Council [2009] NSWLEC 1271

PARTIES:
APPLICANT
William Walsh and Lyn Walsh
RESPONDENT
Holroyd City Council

FILE NUMBER(S): 11123 of 2008

CORAM: Murrell C

KEY ISSUES: DEVELOPMENT APPLICATION :- Mixed use development containing commercial and residential and basement car park; overshadowing and impact on adjoining properties.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

DATES OF HEARING: 26 May 2009

EX TEMPORE JUDGMENT DATE: 26 May 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr D Collett (Agent)
Mr W Walsh (Litigant in person)
RESPONDENT
Ms P Hudson (solicitor)
SOLICITOR
Marsdens Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

26 May 2009
11123 of 2008 William Walsh and Lyn Walsh v Holroyd City Council

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 The applicant in these proceedings is seeking to construct a four-storey building, a mixed use development containing commercial on the ground floor and residential above with basement car parking and the address of the property is 15-17 Lane Street, Wentworthville.

2 The council and the applicant have agreed to enter into consent orders and as such have provided the Court with the consent orders and the conditions of consent. The conditions of consent contain a deferred commencement condition for amended plans and the details of a number of matters such as the on-site detention pump-out systems, landscape plan, disabled access, waste services and minor matters that council is of the opinion can be dealt with by way of amended plans which are the subject of deferred commencement consent contained within the consent orders handed up today.

3 The council has advised the three objectors who made written submissions to the council opposing the proposed development and the Court has had the opportunity today, with the assistance of Ms Hudson, to understand the concerns of the residents and how council has addressed same.

4 The three persons that made objections are: Ms Moira Jacombs, and she is concerned about a mixed use development in close proximity to the single-storey house that she currently rents. It is understood that the property in which she resides is subject to a redevelopment application and is also zoned 3(a) consistent with the zoning of the subject site.

5 The other objections are from Ms Bourke and she is concerned about the excavation and the size of the development and the commercial and retail component is incompatible with the residential precincts in this particular case. With respect to the retail component, the council has a condition of consent such that the ground floor can only be used for commercial purposes with no retailing or restaurants. On the issue of the excavation, council is satisfied that the information submitted is appropriate and that the basement parking is consistent with the contemplation for development in the area.

6 The third objection is from Ms Fitzgerald. She expressed concern about the development, in particular the use of shops/restaurants being out of character with the residential street in terms of traffic and noise pollution and light pollution. This concern appears to be primarily resolved by the condition that council has imposed that there be no retail uses at the ground level. She is also concerned about the height of the building and the sunlight to surrounding buildings. Council is satisfied with the additional overshadowing diagrams that have been submitted, that the proposal is satisfactory.

7 The contentions that council raised when the appeal was lodged included solar access and the shadow impact. As stated council is satisfied with the further information that has been submitted by the applicant that this would not warrant refusal of the application and that solar access is satisfactory.

8 In terms of the disabled parking contention, a further amendment has been proposed to the development to satisfy council’s concerns about the disabled parking.

9 On the basis of the information that has been forthcoming to the Court today and the submissions of Ms Hudson I am satisfied there is no reason as to why the Court should not agree to the issuing of the consent orders that have been agreed to between the parties.

10 Accordingly the formal Orders of the Court are:

___________________

J S Murrell

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Walsh v Holroyd CC

Conditions Relating to a “Deferred Commencement” Consent pursuant to Section 80(3) of the Environmental Planning & Assessment Act, 1979

PART A

A. Pursuant to section 80(3) of the Environmental Planning and Assessment Act 1979 (“EP&A Act”) this development consent is not to operate until the applicant satisfies Holroyd City Council (“Council”) as to the following matters:

Stormwater/Drainage Plans

a. Four (4) copies of stormwater and drainage plans and calculations must be submitted to and approved by Council, together with the payment of a $525 checking fee. The plans and specifications must include the following:

All Plans

b. Full details of the road reserve, existing/proposed street trees and all services along the entire site frontage shall be shown on all plans including architectural, landscape and engineering drawings.

On-Site Detention (OSD) Design

c. Full details in relation to the design of an on-site detention system prepared by a practising engineer must be submitted to and approved by Council. The location and type of storage areas, discharge point and overflow spillway should generally be in accordance with the concept plan. The design of the OSD system shall be in accordance with Holroyd City Council On-Site Detention Policy which is based on the Upper Parramatta River Catchment Trust Handbook – 3rd Edition. In this regard, the following shall be addressed: -

Pump Out Systems

d. Fully detailed design drawings and calculations prepared by a practising Civil Engineer for the basement pump-out system must be submitted to and approved by Council. Design and construction of pump-out system shall be in accordance with Council’s standards and specifications. The proposed system shall be amended and shall be designed in accordance with clause 7.9 of Council’s On-Site Detention policy and address the following matters: -

[Note: The catchment area draining to the basement level pumpout system should mainly be based on the access ramp and should generally not exceed 50m2. Also, an allowance may be considered for seepage and subsoil drainage.]

e. The detailed design drawings for the pump-out system must be approved by Council having regard to the stormwater drainage plan approved pursuant to part a of this deferred commencement condition.

Landscape Plan

f. A fully documented final landscape plan, prepared at a minimum scale of 1:100, must be submitted to and approved by Council, together with an associated specification prepared for the site by an appropriately qualified person. The landscape plan must be designed in conjunction with all other plans. The plan is to provide: -

g. Amended plans must be submitted to and approved by Council to address the Building Code Australia (BCA) Part D3 (requirements for access by people with a disability), Holroyd City Council’s Development Control Plan 5- Guidelines for Residential Flat Development (Clause 25) (“DCP 5”), AS1428.1 and AS4299-1995 Adaptable housing. The plans must include the following details:

[

Note:

It would appear a complete revision of unit dimensions is required to meet the requirements of AS4299 Adaptable housing, DCP 5 controls and BCA /Disability Discrimination Act in relation to access to and the provision of accommodation for people with disability.]

h. Amended plans and further documentation must be submitted to and approved by Council identifying details of the proposed commercial waste storage area and access thereto. These plans must include clearly indicated facilities for the collection of recycling material to be disposed of from the commercial area and shall accommodate 4 x 1100 litre garbage bins and 10 x 240 litre recycling bins and be in accordance with the following:

i) An area is to be nominated on site for communal composting.
ii) The Waste Management Plan shall be amended to include the details (i.e., name and address) of the facility where the existing bitumen/paving will be disposed of.

i. The applicant must consult with Council’s Waste Services Team Leader regarding the servicing of this development’s residential waste and recycling which must be designed to Council’s satisfaction. This service will be carried out by Council or its contractor and not a private contractor.

Environmental Health Matters

j. Basement level ventilation: A mechanical ventilation system is required for the basement levels (car parking). In this regard, amended plans must be submitted to and approved by Council that include the location of any exhaust risers and additional details shall be submitted to address what impacts (if any) these would have on the amenity and the neighbours of the adjoining premises.

k. The Erosion and Sediment Control Plan must be amended to include the location of the waste stockpiles, location of all other stockpiles and details of the methods to remove excess stormwater during periods of rain whilst construction activities are occurring.

l. Vehicle Wash Bays: A minimum of 2 vehicle wash bays must be provided for the proposed development and nominated on all relevant plans.

Privacy

m. Amended plans must be submitted to and approved by Council that identify design changes to address adverse internal overlooking impacts from balconies at upper levels to windows at the internal courtyard; ground level private open space and communal walkways; and upper level windows and balconies to the external podium level private open space below, in accordance with State Environmental Planning Policy 65 Design Code requirements. In particular the following matters must be addressed:

n. Amended plans must be submitted to and approved by Council which address safety concerns in relation to the concealment of access areas within the commercial entrance, in particular:

o. Amended plans are required to be submitted to and approved by Council that include all the BASIX commitments that are required to be provided on the development application plans. For example, the plans must be amended to include the proposed 40,000L rainwater tank as per the BASIX Certificate, which shall be included on all architectural, landscape and drainage/stormwater plans.

p. Shading devices must be incorporated to all north, east and west facing windows to minimise summer sun access and maximise winter sun access (as per the submitted photomontage).

The period within which the applicant must produce evidence to satisfy the Council as to the matters set out in condition A above is 24 months from the date of grant of this consent.

If the applicant satisfies the Council as to the matters set out in condition A above, within the time frame specified above , the Council will give notice to the applicant of the date from which the consent operates in accordance with the provisions of section 80(3) of the EP&A Act and the development consent shall then operate from that date subject to the conditions set out in Part B that follows.

PART B

Having regard to the Deferred Commencement Conditions in Part A, this consent cannot operate until such time as the Council has given written notice to the applicant of the date from which the consent operates in accordance with the provisions of section 80(3) of the EP&A Act

PRELIMINARY

1. This consent shall lapse if the approved development is not physically commenced within 24 months from the date of operation of the consent (as notified by Council in accordance with the conditions in Part A). Any person entitled to act on the consent may apply to Council at least thirty (30) days before this 24 month period expires, for an extension of one year, provided that good cause is shown.

Note: Failure to lodge an application for extension of consent will mean the consent lapses and a fresh application will be required that will be assessed in accordance with current controls.

2. Development shall take place in accordance with the following plans, as amended by any conditions of this consent:

Architectural plans prepared by Rudder, Littlemore & Rudder Pty Ltd, Sheet No. DA, Drawing Nos. A01GG, A02E, A03GG, A04E, A05B, A06B, A07A, A08F, A09E & A010G, (Job No. W74) dated January 2009 and as amended by Schedule “A” conditions.
Sediment Control Plan prepared by Rudder, Littlemore & Rudder Pty Ltd, Sheet No. DA, Drawing No. A11A (Job No. W74) dated January 2009 and as amended by Schedule “A” conditions.
Landscape plans prepared by Ray Fuggle & Associates, Drawing Nos. L-01/2 & L-02/2, Issue B, amended 15 January 2009 and as amended by Schedule “A” conditions.
Stormwater plans prepared by Samir Bayeh, Drawing Nos. H0, H1, H2, H3 & H4, Issue A, amended 15 January 2009 and as amended by Schedule “A” conditions.

Waste Management Plan dated 4 October 2006 and as amended by Schedule “A” conditions.
Submitted Schedule of External Colours and Finishes.
BASIX Certificate No. 100695M dated 3 October 2006.

3. All building work shall be carried out in accordance with the requirements of the Building Code of Australia. Fully detailed plans including fire safety details shall be submitted with the Construction Certificate application. No work is to commence until such time as a Construction Certificate is obtained for the work/building permitted by this Consent.

Appointment of Council or a Private Certifier as the Principal Certifying Authority (PCA)

4. Either Council or a Private Certifier is to be appointed as the Principal Certifying Authority (PCA) for the development in accordance with Section 109E of the Act.

Note: Once you have chosen either Council or a Private Certifier as the PCA, you cannot change from one to the other, or from one Private Certifier or another, without the approval of the NSW Department of Planning.

5. The applicant shall consult with, as required:

(b) Integral Energy

(c) Natural Gas Company

(d) A local telecommunications carrier regarding their requirements for the provision of services to the development and the location of existing services that may be affected by proposed works, either on site or on the adjacent public road(s).

6. The proposed structure/s are to be located clear of existing Council easements. Special footings will be required where the proposed/existing structures are adjacent to a drainage easement. The footings shall be taken down to the invert level of the existing drainage structure or to solid rock, whichever is the lesser. The footing depth may decrease by 500mm for every 1000mm increment in distance the footing is from the easement boundary.

The footing system is to be designed by a practising professional structural engineer.

7. Building materials, builders sheds, waste bins, site fencing, gates or any material of any description shall not be left or placed on any footway, road or nature strip. Footways and nature strips shall be maintained, including the cutting of vegetation, so as not to become unsightly or a hazard for pedestrians. Offenders will be prosecuted.

8. No approval is granted or implied for the use of the commercial tenancies. Separate Development Consent is required PRIOR to occupation.

Demolition

9. In the event that demolition is to occur prior to the issue/release of a Construction Certificate, all relevant fees and bonds such as the demolition inspection fee, kerb & gutter and tree protection bonds shall be paid in full to Council prior to demolition commencing (as per the relevant conditions elsewhere in this Development Consent). Furthermore, the applicant/developer is to ensure that all relevant conditions in this Development Consent relating to the protection of the site, adjoining lands and trees are adhered to in full prior to commencement of any demolition works.

10. Permission is granted for the demolition of the existing bitumen/pavement on the property, subject to strict compliance with the following:-

Note

b) Five (5) working days (i.e., Monday to Friday with the exclusion of Public Holidays) notice in writing is to be given to Holroyd City Council for inspection of the site prior to the commencement of works. Such written notice is to include the date when demolition will commence and details of the name, address, business hours, contact telephone number and licence number of the demolisher. Works are not to commence prior to Council’s inspection and works must also not commence prior to the commencement date nominated in the written notice.

c) On the first day of demolition, work is not to commence until Holroyd City Council has inspected the site. Should the building to be demolished be found to be wholly or partly clad with asbestos cement, approval to commence demolition will not be given until Council is satisfied that all measures are in place so as to comply with WorkCover’s document “Your Guide to Working with Asbestos”, a copy of which accompanies this Development Consent and demolition works must at all times comply with its requirements.

d) On demolition sites where buildings to be demolished contain asbestos cement, a standard commercially manufactured sign containing the words “DANGER ASBESTOS REMOVAL IN PROGRESS” measuring not less than 400mm x 300mm is to be erected in a prominent visible position on the site to the satisfaction of Council’s officers. Advice on the availability of these signs can be obtained by telephoning Council's Customer Service Centre during business hours on 9840 9840. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos cement has been removed from the site to an approved waste facility. This condition is imposed for the purpose of worker and public safety and to ensure compliance with Clause 259(2)(c) of the Occupational Health and Safety Regulation 2001.

e) Demolition shall not commence until all trees required to be retained/transplanted are protected in accordance with those conditions stipulated under “Prior to Works Commencing” in this Consent.

f) All previously connected services are to be appropriately disconnected as part of the demolition works. The applicant is obliged to consult with the various service authorities regarding their requirements for the disconnection of services.

g) Demolition works involving the removal and disposal of asbestos cement must only be undertaken by contractors who hold a current WorkCover “Demolition Licence” and a current WorkCover “Class 2 (Restricted) Asbestos Licence”.

h) Demolition is to be completed within five (5) days of commencement.

i) Demolition works are restricted to Monday to Friday between the hours of 7.00am to 6.00pm. No demolition works are to be undertaken on Saturdays, Sundays or Public Holidays.

j) Protective fencing is to be installed to prevent public access to the site.

k) All asbestos laden waste, including asbestos cement flat and corrugated sheets must be disposed of at a tipping facility licensed by the Department of Environment and Conservation (DEC).

l) Before demolition operations begin, the property shall be connected to the sewer of Sydney Water to which a pedestal pan shall be temporarily connected for the use as the employees’ toilet service during demolition operations.

m) After completion, the applicant shall notify Holroyd City Council within seven (7) days to assess the site and ensure compliance with AS2601 1991 – The Demolition of Structures.

NOTE: The person responsible for disposing of the above asbestos waste is to telephone the NSW DEC on (02) 9995 5000 or Council’s Waste Officer on (02) 9840 9715 to determine the location of a tip licensed to receive asbestos. Within fourteen (14) days of the completion of demolition works, the applicant must lodge with Council, all original weighbridge receipts issued by the receiving tip as evidence of proper disposal.

n) Within fourteen (14) days of completion of demolition, the applicant shall submit to Council:

ii) A signed statement verifying that demolition work and the recycling of materials was undertaken in accordance with the Waste Management Plan approved with this consent under DCP 2007 Part A, Section 9.0. In reviewing such documentation Council will require the provision of original weighbridge receipts for the recycling/disposal of all materials.

Note: To find a list of NATA accredited facilities visit the NATA website at and under ‘Find a Facility or Lab’ type in ‘asbestos identification’ in ‘keywords’ then click on ‘chemical testing’ in NSW then click on the search button. A list of laboratories will be produced which you can contact for the purpose of having a clearance certificate issued.

11. Payment of $206.00 fee for inspection by Council of the demolition site prior to commencement of any demolition works.

BASIX (Building Sustainability Index)

12. Under Clause 136D of the Environmental Planning & Assessment Regulation 2000, it is a condition of this Development Consent that all the commitments listed as per Condition 2 in relation to BASIX are fulfilled.

NOTE: FEES, BONDS & CONTRIBUTIONS INDICATED IN CONDITIONS OF THIS CONSENT MAY VARY IN ACCORDANCE WITH THOSE ADOPTED BY COUNCIL AT SUBSEQUENT ANNUAL REVIEWS OF ITS “FEES AND CHARGES” AND SUBSEQUENT CHANGES TO THE BUILDING PRICE INDEX. FEES CHARGED WILL BE THOSE CURRENT AT THE TIME OF PAYMENT.

PRIOR TO ISSUE/RELEASE OF CONSTRUCTION CERTIFICATE

The following conditions must be complied with prior to the issue of a Construction Certificate. In many cases the conditions require certain details to be included with or incorporated in the detailed plans and specifications which accompany the Construction Certificate:-

Payment of Bonds, Fees and Long Service Levy

13. Prior to the issue of a Construction Certificate, the Principal Certifying Authority is to ensure and obtain written proof that all bonds, fees and contributions as required by this consent have been paid to the applicable authority. This includes all Long Service Levy payments to be made to the Long Service Payments Corporation.

Section 94 Contribution

14. Prior to the issue of a Construction Certificate, a public reserve contribution of $45,451 being for 28 additional dwellings is to be paid to Council. This contribution is imposed under the Holroyd Section 94 Contributions Plan for Open Space and Recreation Facilities - which came into force on 2 December, 1998. A copy of this plan can be inspected at Council’s Civic Centre located at 16 Memorial Avenue, Merrylands between the hours of 8am and 4.30pm Monday to Friday. This contribution will form part of the funding towards the purchase/embellishment of Local, District and Regional Open Space and the administration of Council’s Section 94 Contribution fund.

15. Prior to the issue of a Construction Certificate, a community facility contribution of $15,517.51 being for 28 additional dwellings is to be paid to Council. This contribution is imposed under the Holroyd Section 94 Contributions Plan for Community Facilities - which came into effect on 13 November, 2000. A copy of this plan can be inspected at Council’s Civic Centre located at 16 Memorial Avenue, Merrylands. This contribution will form part of the funding towards the provision, extension or augmentation of community facilities and services that will, or are likely to be, required as a consequence of development in the Holroyd Local Government Area.

Damage Deposit

16. Prior to the issue of a Construction Certificate, a cash bond/bank guarantee of $2,060 must be paid/lodged with Council to cover making good any damage caused to the property of Council, by any works associated with the development. This will be held for ‘six (6) months after the completion of works’ or six (6) months after the issue of ‘Final Occupation Certificate’ (whichever occurs last) to remedy any defects that may arise within this time.

Note:-

Consistency with Endorsed Development Consent Plans

17. Prior to the issue of a Construction Certificate, the Principal Certifying Authority must ensure that any certified plans forming part of the Construction Certificate, are in accordance with the Development Consent plans.

Tree Planting/Landscaping

18. Deleted.

Engineering Fees and Bonds

19. Prior to the issue of a Construction Certificate, payment must be made to Council of a $265 fee for the design, specifications and inspection by Council of the vehicular crossing/s prior to placement of concrete.

20. Prior to the issue of a Construction Certificate, payment must be made to Council of a $600 fee for the design, specifications and inspection by Council of the kerb and guttering prior to placement of concrete.

21. Prior to the issue of a Construction Certificate, payment must be made to Council of a $360 fee for the inspection by Council of the stormwater drainage and Onsite Stormwater Detention System at the key stages, where Council is the Principal Certifying Authority.

22. Prior to the issue of a Construction Certificate, the applicant must lodge with Council a $1,500 cash bond or bank guarantee to cover the removal of redundant vehicular crossings and laybacks along the full road frontage and replacement with kerb and gutter. This bond will be held for ‘Six (6) months after the completion of works’ or issue of a ‘Final Occupation Certificate’ (whichever occurs last) to remedy and defects that may arise within this time.

23. Prior to the issue of a Construction Certificate the applicant must lodge with Council a $4,600 cash bond or bank guarantee for the satisfactory completion of the construction and/or reconstruction of the concrete kerb and guttering adjacent to the site. This bond will be held for ‘Six (6) months after the completion of works’ or issue of a ‘Final Occupation Certificate’ (whichever occurs last) to remedy and defects that may arise within this time.

24. Prior to the issue of a Construction Certificate the applicant must lodge with Council a $5,000 cash bond to cover the registration of a Positive Covenant and Restriction as to User over the Onsite Stormwater Detention System. This bond is refundable upon the submission of proof of registration of the Restriction on Use and Positive Covenant with the Land and Property Information NSW.

Road Works

25. Prior to the issue of a Construction Certificate a Traffic Management Plan must be lodged with Council for any road and drainage works to be carried out within public road reserves, or where construction activity impacts on traffic flow or pedestrian access, in strict compliance with the requirements of Australian Standard 1742.3 (Traffic Control Devices for Works on Roads). In this regard, the applicant shall pay Council a $300 fee for the assessment of the Traffic Management Plan by Council, prior to commencing works within the road reserves. A copy of the approved Traffic Management Plan shall be kept on site during the course of construction for reference and compliance.

Required Submissions to Certifying Authority

26. Prior to the issue of a Construction Certificate a Section 73 Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation and submitted to the PCA.

then follow the “e-Developer” icon or telephone 13 20 92 for assistance.

Following application, a “Notice of Requirements” will advise of 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).

Submission a copy of Sydney Water’s Notice of requirements to the Principal Certifying Authority.

27. Retaining walls greater than 1.0m above finished ground level or other approved methods necessary to prevent the movement of excavated or filled ground, together with associated stormwater drainage measures, shall be designed by an appropriately qualified person. Details are to be included with any Construction Certificate application.

28. Prior to the issue of a Construction Certificate structural engineer’s details (in duplicate) prepared and certified by a practising qualified structural engineer of all reinforced concrete and structural members shall be submitted to the Principal Certifying Authority.

Fire Safety Upgrading & Essential Services

29. The Construction Certificate is to include a schedule specifying all of the essential fire or other safety measures (both current and proposed) that are required for the building or premises to ensure the safety of persons in the building in the event of fire.

Car Wash Bay

30. Two (2) vehicle wash bays shall be provided for residents of the development. Collection, reuse and ultimate disposal of water used in the vehicle wash bay shall be in accordance with Sydney Water’s requirements. The car wash bays shall be designed so that the following requirements are met:-

Have an adequate parking and washing floor space.
Provide a water supply.
Minimise water use with appropriate devices (e.g., such as a gun-type nozzle which closes when released and a timer operative valve, collection and use of rainwater).
Have a water supply cut out system/fail-safe mechanisms provided to ensure that mechanical failure; drainage blockage or lack of maintenance cannot result in wastewater surcharge into the stormwater system.
Be designed to ensure that over spray, drift of water or detergent does not cause a nuisance to persons, vehicles, residences, other buildings, neighbouring properties or the environment.
Be located so that washing can occur with minimal disturbance to other residents,

Air Conditioning

31. Prior to the issue of a Construction Certificate details and specifications for the mechanical ventilation system complying with the Australian Standard are to be submitted and approved by Council.

Design Verification Statement

32. In accordance with Environmental Planning and Assessment Regulation 2000 and State Environmental Planning Policy (SEPP) 65 “Design Quality of Residential Flat Development”, the subject developmet must be undertaken or directed by a “qualified designer” (i.e., a “registered architect” under the Architects Act). In this regard, a design verification statement shall be submitted to the Principal Certifying Authority (PCA) for approval prior to the issue of a Construction Certificate. The PCA shall ensure that the statement prepared by the qualified designer provides the following:-

(ii) That the qualified designer has designed or directed the design of the subject development;

(iii) That the plans and specifications lodged with the Construction Certificate achieve or improve the design quality of the development for which the subject development consent was granted, having regard to the design principles set out in Part 2 SEPP 65.

N.B. The design verification statement must provide an explanation of the design in terms of the design quality principles set out in Part 2 of SEPP 65.

Residential Flat Development Residential Waste Storage Area

33. The waste storage area shall be roofed, screened from public view and provided with:-

Openings, 5% of the floor area and recessed into the walls, positioned to provide cross floor ventilation OR mechanical ventilation to Council’s satisfaction;
An adequate water supply provided by a hose cock and hose (hot water for commercial premises)
The floor shall be made of an impervious surface, drained to sewer in accordance with Sydney Water requirements and include a dry arrestor pit with a removable basket.
The driveway ramp is to have a maximum grade of 1:8.

Plans and specifications for the storage room shall be submitted with the application for the Construction Certificate.

34. Each unit shall be provided with a waste cupboard or other suitable storage area to facilitate the holding of a bin containing a single days domestic waste. Details must be submitted with the application for the construction certificate.

Water Conservation - Residential

35. AAA rated water conservation devices including showerheads, water tap flow regulators and dual flush toilet & cisterns shall be provided for each new dwelling. Details shall be submitted to Council with the construction certificate.

PRIOR TO WORKS COMMENCING

The following conditions are to be complied with prior to any works commencing on the site:

Appointment of Principal Certifying Authority and Notification of Commencement of Work

36. Prior to any works commencing on the site, the person having the benefit of the development consent, not the principal contractor (builder), must: -

b) Have the Principal Certifying Authority complete the ‘Accredited Certifier Details’ on the approved form provided by Council for this purpose.

c) Notify Council of the appointment of the Principal Certifying Authority and of the intention to commence building work, such notification is to be given to Council at least two (2) working days prior to the proposed commencement date, and be on the approved form provided by Council for this purpose.

If nominated, Council can provide this service for you and act as the Principal Certifying Authority.

N.B. The Principal Certifying Authority must also notify the person having the benefit of the Development Consent of any mandatory critical stage inspections and other inspections that are to be carried out in respect of the building work such notification must comply with Clause 103A of the Regulations.

Notification of Principal Contractor (Builder)/Owner-Builder

37. Prior to any works commencing on the site the person having the benefit of the Development Consent must:-

(c) notify the Principal Certifying Authority of any such appointment.

Where Council is the Principal Certifying Authority, such notification is to be on the approved form provided by Council for this purpose.

Required Submissions to Council or the Principal Certifying Authority

38. To facilitate a complete assessment and enable the Certifying Authority to check compliance on site, truss validation and design, details certified by a qualified practicing structural engineer shall be submitted to Council or the Principal Certifying Authority for examination and approval prior to any works commencing on the site. Details shall include:

b) design wind velocity

c) terrain category

d) truss spacing

e) roof pitch

f) material of roof

g) roof batten/purlin spacing

h) material of ceiling

i) job number

Fencing of Sites

39. Fencing of sites is required to prevent public access when the site is unoccupied and building works are not in progress. In this regard the MINIMUM acceptable standard of fencing to the site is properly constructed chain wire fencing 1.8m high, clad internally with Hessian or Geotextile fabric. All openings are to be provided with gates, such gates are not at any time to swing out from the site or obstruct the footpath or roadway. Fencing is to be constructed prior to any works commencing on the site.

Signs to be Erected on Sites

40. Prior to any works commencing on the site, a sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

(b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours and at any time for business purposes, and

(c) stating that unauthorised entry to the work site is prohibited.

The sign must be rigid and durable and be read easily by anyone in any public road or other public place adjacent to the site.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

This condition does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building.

Note: Principal Certifying Authorities and Principal Contractors must also ensure that signs required by this clause are erected and maintained (clause 227A of the Regulations currently imposes a maximum penalty of $1,100).

Prohibited Signage

41. Advertising, Real Estate Agents, Architects, Designers, site suppliers and any other signage not mentioned in the conditions, is not to be placed or displayed on the site, such that the signage is visible from any public place. Offenders may be prosecuted.

Protection of Public Places

42. Prior to any works commencing on the site a hoarding or fence must be erected between the work site and any public place, if the work involved in the erection or demolition of the building; is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or involves the enclosure of a 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.

Site Control Measures

43. Suitable erosion and sediment control measures shall be provided at all vehicular entry/exit points and all other measures required with and/or shown on plans accompanying the Construction Certificate, to control soil erosion and sedimentation, are to be in place prior to the commencement of construction works. Such controls are to be provided in accordance with Holroyd City Council’s “Erosion & Sediment Control Policy.”

Note:

Tree Protection Conditions

44. An Arborist qualified to at least Australian Qualifications Framework (AQF) Certificate Level 4 shall be retained throughout all demolition/construction work to ensure the proper protection and management of the tree/s required to be retained/transplanted and that any necessary pruning work within 1m of the building/s approved, is carried out in accordance with Australian Standard 4373-1996 “Pruning of Amenity Trees”. This includes on site supervision of the erection of tree protection measures and, where necessary, any works that are required within tree protection zones.

45. The tree/s identified on the plans approved pursuant to this consent as being retained/transplanted shall be protected prior to and throughout the demolition/construction process in accordance with the Guidelines for the Protection of Trees On and Adjacent To Demolition/Building sites, and relevant conditions of this Consent. All trees not authorised to be removed by this Consent must be retained. Prior to any work commencing, certification of the installation and inspection of the required tree protection works is to be provided to the Principal Certifying Authority by a suitably qualified person or the Arborist (as appropriate) engaged to ensure the proper protection and management of the tree/s required to be retained/transplanted. A copy of the Certificate is to be issued to Council within seven (7) days of the inspection and prior to any works commencing. Additionally, trees identified for removal are to be retained until immediately prior to works commencing, to assist with soil management and erosion control.

46. Prior to any works commencing on the site protective fencing is to be installed around the tree/s to be retained/transplanted in line with the outer edge of the canopy which overhangs the site. This fencing is to be constructed of chainwire mesh 1.8m high, which is supported by steel stakes or piping and braced to resist impacts. Where appropriate the trunk/s of the tree/s on the site and any street tree/s (which are not to be fenced other than as mentioned above), shall also be protected by vertical timber boards, installed by or under the supervision of a suitably qualified person or the arborist (as appropriate) engaged to ensure the proper protection and management of the trees required to be retained/transplanted to accepted horticultural and TAFE standards.

Note:

47. Prior to any works commencing on the site the fenced zone/s surrounding the trees to be retained shall be mulched with 100mm of composted leaf mulch.

Footpaving, Kerbing and Guttering

48. Prior to any works commencing on the site protection must be provided for Council footpaving, kerbing and guttering. Wooden mats must also be provided at all entrances where the site fronts paved footpaths.

49. Finished street levels shall not be assumed. The owner or builder must make application to Council’s Engineering Services Department for street levels.

Support for Neighbouring Buildings

50. 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 (including a public road and any other public place), the person causing the excavation to be made:-

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

c) must, at least seven (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 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).

51. A dilapidation report of adjoining properties/allotments and details of the proposed excavation works in excess of 2m or within the zone of influence of neighbouring building foundations and required underpinning and supportive measures shall be submitted to the Principal Certifying Authority prior to any works commencing on the site.

Toilet Facilities

52. Prior to any works commencing on the site toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

a) Must be a standard flushing toilet, and

b) Must be connected:

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

iii) If connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council.

iv) The position of the toilet on the site shall be determined by Council’s Building Surveyor and/or Sydney Water.

Residential Building Work - Insurance

53. Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (where not Holroyd City Council) has given Holroyd City Council written notice of the following information:-

(ii) the name of the insurer by which the work is insured under Part 6 of that Act,

(ii) if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

The notification is to be on the approved form provided by Council for this purpose.

Roadworks

54. Prior to any works commencing on the site the applicant to arrange with the relevant public utility authority the alteration or removal of any affected services in connection with the development. Any such work being carried out at the applicant’s cost.

Works Within Council’s Reserve

55. All works within the Council reserve shall be completed within three (3) weeks of the date of commencement. Council’s Development Engineer shall be advised prior to the commencement of works.

56. Submission to Council of a Certificate of Currency of the contractor’s Workers’ Compensation Policy must be made prior to the commencement of works.

57. All construction works shall be in accordance with the WorkCover safety requirements. Submission of insurance documentation demonstrating a minimum Public Liability cover of $10,000,000 is to be submitted prior to commencement of works. Holroyd City Council shall be named on the Certificate of Currency as an interested party.

Sydney Water

58. Prior to any works commencing on the site the approved plans must be submitted to Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. (For Quick Check agent details please refer to the web site see Your Business then Building & Development then Building & Renovating or telephone 13 2092.)

DURING CONSTRUCTION

The following conditions are applicable during construction:-

Endorsed Plans & Specifications

59. A copy of the endorsed stamped plans and specifications, together with a copy of the Development Consent, Construction Certificate and approved Traffic Management Plan are to be retained on site at all times.

Hours of Work & Display of Council Supplied Sign

60. For the purpose of preserving the amenity of neighbouring occupations building work including the delivery of materials to and from the site is to be restricted to the hours of 7.00am to 6.00pm Mondays to Fridays and 8.00am to 4.00pm Saturdays. Work on the site on Sundays and Public Holidays is prohibited. Note: Demolition work is not permitted on weekends or Public Holidays - refer to specific demolition condition for approved hours.

Site Control

61. All soil erosion measures required in accordance with the approved sediment and erosion control plan and any other relevant conditions of this Consent are to be put in place prior to commencement of construction works are to be maintained during the entire construction period until disturbed areas are restored by turfing, paving or revegetation. This includes the provision of turf laid on the nature strip adjacent to the kerb.

62. Builder’s refuse disposal and storage facilities are to be provided on the development site for the duration of construction works and all rubbish shall be removed from the site upon completion of the project.

63. Stockpiles of sand, soil and other material shall be stored clear of any drainage line or easement, tree protection zone, water bodies, footpath, kerb or road surface and shall have erosion and sediment control measures in place to prevent the movement of such materials onto the aforementioned areas and adjoining land.

Waste Management Plan

64. The approved Waste Management Plan must be implemented and complied with during all stages of works on site.

65. Within seven (7) days of completion of construction/building works, the applicant shall submit a signed statement to Council or the Principal Certifying Authority verifying that demolition work and recycling of materials was undertaken in compliance with the Waste Management Plan. The Principal Certifying Authority shall submit a copy of the statement to Council.

In reviewing such documentation Council will require the provision of actual weighbridge receipts for the recycling/disposal of all materials.

Compliance with Critical Stage Inspections and other Inspections nominated by the Principal Certifying Authority

66. Section 109E(d) of the Act requires certain specific inspections (prescribed by clause 162A of the Regulations) and known as ‘Critical Stage Inspections’ to be carried out for building work. Prior to permitting commencement of the work your Principal Certifying Authority is required to give notice of these inspections pursuant to clause 103A of the Regulations.

N.B.

Where Council is nominated as Principal Certifying Authority, notification of all inspections required is provided with the Construction Certificate approval.

Construction

67. The building and external walls are not to proceed past ground floor formwork/reinforcing steel level until such time as the Principal Certifying Authority has been supplied with a check survey report prepared by a registered surveyor certifying that the floor levels and external wall locations to be constructed, comply with the approved plans, finished floor levels (FFL)s and setbacks to boundary/ies. The slab shall not be poured, nor works continue, until the Principal Certifying Authority has advised the builder/developer that the floor level and external wall setback details shown on the submitted survey are satisfactory.

On placement of the concrete, works again shall not continue until the Principal Certifying Authority has issued a Certificate stating that all Conditions of approval have been complied with and that the slab has been poured at the approved levels.

Landscaping/Site Works

68. All turfed areas shall be finished level with adjoining surfaces and also fall evenly to approved points of drainage discharge.

69. New 1.8m high lapped and capped timber paling or colourbond fences (colour to be sympathetic with the development) determined in consultation with adjoining property owner(s), are to be erected along and within all side and rear boundaries and between courtyards at full cost to the developer, such fencing to be constructed on or within the property boundary. However, the fencing along the northern boundary shall be palisade type fencing as shown on the northern elevation plan to enhance natural surveillance over the adjoining car park area. A Statutory Declaration or other documentary evidence of such consultation is to be submitted to the Principal Certifying Authority.

70. The front fence along the Lane Street boundary is to be constructed in accordance with the approved fence detail.

71. The side fences within the front building line are to be the same design as the front fence.

72. Fences are to taper from the front building line to be not more than 1200mm high at the front boundary.

73. A single master T.V. antenna is to be installed to service each building and provision made for connection to each dwelling within that building.

Tree Protection

74. The tree/s identified on the endorsed plans as being retained/transplanted shall be protected against damage throughout the demolition/construction process in accordance with Council’s Guidelines for the Protection of Trees On and Adjacent to Demolition/Building Sites and relevant conditions of this Consent.

75. A report is to be prepared and submitted to Council by the Arborist engaged to ensure the proper protection and management of the tree/s required to be retained/transplanted that:

ii) Assesses the health and condition of the tree/s required to be retained/transplanted and protected.

The report should also provide documentary evidence that the tree protection conditions are being complied with in the form of site notes and photographs and be provided at three monthly intervals during construction works that are within 5m of any tree.

76. The applicant shall accept all responsibility for the accuracy of the information provided to Council for assessment. If any tree/s are not shown on the endorsed plan or are required to be retained/transplanted and protected but are threatened by demolition/construction work through unforeseen construction requirements or plan inaccuracy, all site and building works so affected are to cease until the matter is resolved to the satisfaction of Council. Council’s Environmental and Planning Services Department is to be notified immediately upon such a problem being encountered.

77. Branches of trees to be retained/transplanted within 1m of the approved building, may be pruned by an Arborist qualified to at least Australian Qualification Framework (AQF) Certificate Level 3 in accordance with Australian Standard AS4373-1996 ‘Pruning of Amenity Trees’ to enable demolition/construction works to occur.

Note:

78. No works are to occur within the fenced tree protection zone. All authorised works/activities within the fenced tree protection zone/s are to be undertaken by hand held equipment under the supervision of the consulting Arborist. No roots over 50mm in diameter are to be cut within the tree protection zone without prior consultation with Council officers or the consulting Arborist.

All roots over 50mm in diameter which are encountered outside the fenced tree protection zone/s are to be cleanly cut and not ripped.

79. The stormwater drainage works shall be inspected during construction, by the Council or by a suitably qualified Civil Engineer. Documentary evidence of compliance with Council’s specifications shall be obtained prior to proceeding to the subsequent stages of construction, encompassing not less than the following key stages:

Road Works and Footpaving

80. Pedestrian access, including disabled and pram access, is to be maintained as per Australian Standard AS1742.3 “Part 3 – Traffic Control Devices for Works on Roads”.

81. All advisory and regulatory sign posting (for example parking restriction signage, pedestrian crossing signs, warning signs) are to remain in place during construction.

Underground Cabling

82. All communications cabling shall be installed underground as per relevant authority requirements (including broadband and Category 5).

Underground Power Connection

83. Where electricity reticulation cannot be obtained directly from the street, power connection is to be underground. No intermediate power pole is permitted.

Alarms

84. The developer/builder shall not install any audible intruder alarms within the units. If the building is to be provided with a burglar alarm system, this shall incorporate back to base monitoring such that residents can connect thereto from each individual unit.

85. With regard to the basement level pump out system, a suitable audible alarm with flashing light system shall be positioned at the first floor level of each common property stairwell within the building and a flashing light only shall be positioned at each common property entrance to the car parking area to provide a flood warning in the case of pump failure. The alarm system shall be to the satisfaction of Council’s Engineer.

Basement Parking

86. A convex mirror is to be provided so that drivers can see up the driveway from within the basement.

87. An intercom device is to be located:

ii) within the basement foyer so that disabled persons can contact any unit if the lift is not working.

Rainwater Tank

88. One or more rainwater tank(s), with a total capacity of at least 40,000 litres, is to be provided and maintained in accordance with the approved plans and as per the BASIX Certificate and the submitted specifications, except where amended by conditions of this consent.

89. The rainwater tank supply shall not be connected to drinking and bathing water tap outlets.

90. The rainwater tank(s) shall be in accordance with the following:

(a) be fitted with a first flush diversion;

(b) be fitted with a small motorised or electric pump;

(d) be fitted with an overflow outlet connected to the street drainage system;

(e) be fully enclosed and all openings sealed to prevent access by mosquitos;

(f) have a finish of a non-reflective material;

(g) have a label affixed to warning that the water is not to be consumed;

(h) be built on a self supporting base;

(i) be installed by a licensed plumber in compliance with Sydney Water guidelines and the “NSW Code of Practice: Plumbing and Drainage”;

(j) be designed to draw water from above the anaerobic zone;

(k) be structurally sound be and constructed in accordance with Australian Standard AS/NZ 3500.1.2 – 1998: National Plumbing and Drainage – Water Supply – Acceptable Solutions; and

(l) be provided with an air gap.

91. A back flow prevention device shall be provided at the water meter in accordance with Sydney Water requirements.

92. A back-up supply of mains water (in the event of power failure) shall be provided via either a “by-pass” of the pump or “dual feed” to at least one toilet in the dwelling.

93. The roof(s) from which tank rainwater is being collected shall not contain lead-based, tar-based or asbestos materials.

94. The rainwater tank shall be cleaned and maintained in accordance with the manufacturers and Sydney Water requirements.

95. The design of the rainwater tank(s) should allow a horizontal clearance of at least 650mm for pedestrian movement. This tank must not exceed 2.4 metres in height above ground level, including any stand for the tank.

Vehicle Cleansing

96. Concrete trucks and trucks used for the transportation of building materials shall not traffic soil, cement or similar materials onto the road. Hosing down of vehicle tyres shall be conducted in a suitable off-street area where wash water is prevented from entering the stormwater system or adjoining property.

Importation of Fill

97. All imported fill shall be validated in accordance with Council’s Contaminated Land Policy to ensure that it is suitable for the proposed land use from a contamination perspective.

Additional Information during Remediation/Demolition/Construction

98. Any new information which comes to light during remediation, demolition or construction works which has the potential to alter previous conclusions about site contamination, shall be notified to Council immediately.

Line Marking

99. Directional arrows for internal circulation shall be prominently displayed on the pavement on approaches to, and within, the carpark area.

NSW Police Service

100. The requirements comments (provided by the NSW Police Services) must be complied with: -

The garage facilities should be constructed out of concrete from floor to ceiling.
Garage roller, tilt and panel-lift doors must be secured with an ADI Blocklok or Multifunction lock.
Residential basement parking roller shutters require a key, swipe card or number pad entry for access.
A roller shutter door must section off residential parking from commercial car parking spaces.
The commercial parking area is to be secured off by a roller shutter door once commercial tenancies have closed.
Access doors to the commercial area after hours must also be secured.

The following conditions are to be complied with prior to the issue of an occupation certificate:-

Certificates/Documentary Evidence

101. Prior to the issue of an occupation certificate a final clearance is to be obtained from Integral Energy if such clearance has not previously been issued.

102. A Section 73 Certificate (Sydney Water) must be submitted to the Principal Certifying Authority prior to occupation of the development.

103. Prior to the issue of an occupation certificate, a Structural Engineer’s certificate from the supervising structural engineer responsible for the design shall be submitted to the Principal Certifying Authority which must state that all foundation works/reinforced concrete/structural members have been carried out/erected in accordance with the Engineer’s requirements and the relevant SAA Codes.

Note:

Landscaping/Tree Protection

104. Certification is to be provided to the Principal Certifying Authority (PCA), from a suitably qualified person or the designer of the landscape proposal (as appropriate), that all tree planting/landscape works have been carried out in accordance with the endorsed plan. If Council is the PCA, the certification is to be submitted to Council prior to or at the final landscape inspection. If Council is not the PCA, a copy of the certification is to be provided to Council with the Occupation Certificate.

105. Prior to the issue of an occupation certificate certification is to be provided to the Principal Certifying Authority (PCA) from a suitably qualified and licensed contractor that the specified planter boxes have been waterproofed and drained in accordance with the requirements of the current relevant Australian Standards, any relevant authority regulations and current best work practices. If Council is not the PCA a copy of the certification is to be provided to Council with the Occupation Certificate.

106. Prior to the issue of an occupation certificate the Arborist engaged to ensure the proper protection and management of the trees required to be retained/transplanted is to provide a report to Council concerning the health and condition of the tree/s and if necessary any remedial works required. The report should also provide documentary evidence that the tree protection conditions were complied with throughout the demolition/construction phases, in the form of site notes and photographs. Should the trees require remedial works which are not exempt under Council’s Tree Management Order, an application for General Tree Works will be required to be submitted and approved before the works are carried out and certified by the Arborist. Remedial works which are exempt under Council’s Tree Management Order will also be required to be completed and certified.

107. Prior to the issue of an occupation certificate certification is to be provided to the Principal Certifying Authority from a suitably qualified and licensed contractor that the specified fully automated commercial grade irrigation system has been designed and installed to all common planted areas in accordance with the requirements of the current relevant Australian Standards, any relevant authority regulations and current best work practices. If Council is not the PCA, a copy of the certification is to be provided to Council with the Occupation Certificate.

108. Prior to the issue of an occupation certificate boundary and courtyard fences must be erected and finished in a professional manner.

Parking/Driveway

109. Prior to the issue of an occupation certificate all dwellings/units and associated car parking spaces shall be numbered on site in accordance with numbering on the endorsed plans. These numbers shall also be consistent with any strata plan for the completed development.

110. Prior to the issue of an occupation certificate the driveway shall be signposted indicating availability of visitor off-street parking. Spaces reserved for this purpose shall be marked as such.

111. Prior to the issue of an occupation certificate the vehicle crossing between the street and front boundary shall be constructed of plain concrete with no colour or stencilling.

Fire Safety

112. Prior to the issue of an occupation certificate a Final Fire Safety Certificate pursuant to Clause 170 of the Environmental Planning and Assessment Regulation 2000 in respect of each essential fire or other safety measure listed on the Fire Safety Schedule attached to the Construction Certificate must be submitted to Council.

NOTE

1. Such Certificate shall state, pursuant to Clause 80E in relation to each essential fire safety measure mentioned in the certificate:–

that the service has been assessed by a properly qualified person (chosen by the owner of the building); and
that the service was found to be, when assessed, capable of performing to at least the standard required by the current fire safety schedule for the building for which the certificate is issued.

3. The assessment must have been carried out within the three (3) months prior to the date on which the final fire safety certificate is issued.

113. A copy of the Fire Safety Certificate, together with a copy of the current Fire Safety Schedule, is to be given to the Commissioner of New South Wales Fire Brigades, and a further copy of the Certificate and Schedule is to be prominently displayed in the building.

114. At least once in each period of twelve (12) months after a Fire Safety Certificate is required to have been furnished to the Council, the owner of the building shall, pursuant to Clause 177 of the Regulation, submit to the Council and the Commissioner of the New South Wales Fire Brigades, an Annual Fire Safety Statement, in respect of each essential fire or other safety measure listed on the current Fire Safety Schedule. A copy of the Certificate and Schedule is to be prominently displayed in the building.

On-site Stormwater Detention, Certification and Covenant

115. Prior to the issue of an occupation certificate a copy of the as approved stormwater drainage and On Site Detention Compensatory plan showing work as executed details shall be submitted to Council. The work as executed plan shall be in accordance with Council’s standards and specifications for stormwater drainage and on-site stormwater detention.

116. Prior to the issue of an occupation certificate a certificate of compliance in accordance with Council’s standards and specifications for stormwater drainage and On Site Detention shall be issued to the Principal Certifying Authority by a suitably qualified Civil Engineer.

117. Prior to the issue of an occupation certificate a certificate of compliance for the pump out drainage system of the basement level shall be issued to the Principal Certifying Authority by the pump installers stating that the pump out system has been installed to operate in accordance with the Council requirements and approved drawings.

118. Prior to the issue of an occupation certificate documents giving effect to the creation of a Positive Covenant and Restriction on Use over the as constructed On Site Detention shall be submitted to the authority benefited for approval prior to lodging with the Land and Property Information NSW. The wording of the terms of the Positive Covenant and Restriction On Use shall be in accordance with Council’s standards and specifications for stormwater drainage and on-site stormwater detention. The documents shall be approved by the benefiting authority for registration with Land and Property Information NSW.

Note

The Positive Covenant and Restriction on Use documents shall be registered with the Land and Property Information NSW within six (6) months from the date of release by the benefiting authority.

119. Prior to the issue of an occupation certificate a maintenance schedule for the stormwater and On-Site Detention system including a sketch plan of the components forming the sites stormwater and On-Site Detention system shall be submitted. The maintenance schedule shall be prepared by a qualified hydraulic engineer and shall be in accordance with the Upper Parramatta River Catchment Trust requirements.

Road Works

120. Any works requiring levels within the road reserve will require the submission of Council’s Vehicle Crossing application form.

121. Prior to the issue of an occupation certificate a full width heavy duty vehicular crossing shall be provided opposite the vehicular entrance to the site, with a maximum width of 6 metres and a minimum width of 6 metres at the boundary line. These works shall be carried out by a licensed construction contractor at the applicant’s expense and shall be in accordance with Council’s issued drawings and level sheets.

122. Prior to the issue of an occupation certificate the construction or reconstruction of kerb and gutter and associated works along all areas of the site fronting Lane Street must be completed. These works shall be carried out by a licensed construction contractor at the applicant’s expense and shall be in accordance with Council’s standard drawing SD-8100 and issued level sheets.

123. Prior to the issue of an occupation certificate the reconstruction of cracked or damaged concrete footpath paving and associated works along all areas of the site fronting Lane Street must be completed. These works shall be carried out by a licensed construction contractor at the applicant’s expense and shall be in accordance with Council’s standard drawing SD 8100 and issued level sheets.

124. Prior to the issue of an occupation certificate the removal of all redundant vehicular crossings and laybacks along the full road frontage and replacement with kerb and gutter must be completed. These works shall be carried out by a licensed construction contractor at the applicant’s expense and shall be in accordance with Council’s standard drawing number SD-8100.

125. A certificate of compliance for the construction of vehicular crossings, footpath paving, kerb and guttering and roadworks shall be obtained from Council and be submitted to the Principal Certifying Authority prior to the issue of an occupation certificate.

Lot Consolidation

126. Lots 27 & 28 are to be consolidated into one lot on title and all works shall be completed in accordance with this Development Consent, prior to the issue of the Occupation Certificate.

House/Street Number

127. Prior to the issue of an occupation certificate a house/street number must be displayed on all newly developed properties in accordance with Council's "Policy on the Display of House Numbers" available from the Customer Services Counter or Council's website,

Design Verification Statement

128. In accordance with Environmental Planning and Assessment Regulation 2000 and State Environmental Planning Policy (SEPP) 65 “Design Quality of Residential Flat Development”, the subject development must be undertaken or directed by a “qualified designer” (i.e., a “registered architect” under the Architects Act). In this regard, a design verification statement shall be submitted to the Principal Certifying Authority (PCA) assessing the development, upon completion of all works subject of this consent and its accompanying construction certificate. The PCA shall ensure that the statement prepared by the qualified designer provides the following:-

(ii) That the completed development achieves the design quality of the development as shown in the plans and specifications submitted and approved with the Construction Certificate, having regard to the design quality principles set out in Part 2 SEPP 65.

The following requirements shall be incorporated into the overall development, prior to the issue of the Occupation Certificate:-

129. Surveillance:

· Installation of surveillance mirrors in all blind spots, e.g., foyer, stairwells and car parking facilities.

130. Lighting/Technical Supervision:

Security lighting is required to be installed in private open space areas.
Security lighting is required to be of a high standard and be installed in driveway ramp areas and within the residential and commercial parking facilities.
Adequate lighting is required in stairwells.
Vandal resistance lighting to be used.
High quality lighting is to be installed along pathways, private space, public open space, and the new vehicle lane.
High quality lighting is to be installed around the perimeter of the property especially at the rear of the premises and on the northern perimeter of the building nearest the Council car park.
Additional lighting is to be installed over the entry and exit points/driveway.

The lobby/access method for residents shall be secure, for example swipe card or keypad entry device.
Electronic communications system to be installed at entries.
Controlled access to loading docks, dumpster bays and storage areas.
The installation of Australian Standard Security Screen doors to be fitted to all balconies.
Door and window hardware locks to be considered.

132. Sign Posting:

The car park, walkways and stairwells need to be well sign posted. Way finding signs are strongly recommended.
Foot crossings, way finding signage and other positive pedestrian movement indicators assist to channel the movement of pedestrians through the complex.
Signage stating private property is important.
Signage stating that on kerb parking is prohibited.

133. Street Numbering/Letter Box and Power Boards:

The street number must be displayed prominently at the front of the premises to comply with Local Government Act, 1973 Section 124, Order 8.
The street number system should be visible at night
The letterbox system should be vandal resistant and secure.
The power board should be housed within a cabinet to restrict tampering with the power supply.
Power boards are to be secured with lock set approved by electricity authority.

134. Warning Signs:

Warning signs should be displayed around the perimeter of the premises to warn intruders of what security treatments are in place.

135. Landscaping :

Landscaping in accordance with the approved design must be maintained at all times.
The application of vegetation needs to be clear of obstruction, areas of concealment or entrapment.
Garden beds are to be designed to minimise concealment and not restrict natural surveillance.

General

136. Documentary evidence and/or certificate of compliance must be submitted to Council to show that all works have been completed in accordance with this Development Consent and its accompanying Construction Certificate.

CONDITIONS RELATING TO USE

The following conditions are applicable to the use of the development:-

Safety & Amenity

137. No signs or goods are to be displayed or trading of any description is to be carried out on the public road, public footpath, utility service land, customer and/or employee parking area, the driveways or pedestrian walkways outside or in the immediate vicinity of the premises.

138. Where an intruder alarm is installed on the premises it shall be fitted with a timing device in accordance with the requirements of the Protection of the Environment Operations Act 1997.

Mechanical Ventilation System – Car Park

139. Noise and vibration from the use of the (mechanical exhaust ventilation) system shall not exceed the background level by more than 5dB(A) and shall not be audible in any premises of a different occupancy between 10.00pm and 7.00am on weekdays and 10.00pm and 8.00am on weekends and public holidays.

Rainwater Tank Pump

140. The operation of the pump from the rainwater tank shall not give rise to an equivalent continuous (LAeq) sound pressure level at any point on any residential property greater than 5dB(A) above the existing background LA90 level (in the absence of the noise under consideration). Council may require an Acoustic Report to be submitted, prepared by a suitably qualified person, to ensure this requirement is met in the event of Council receiving complaints.

Parking

141. The car parking spaces, driveways and manoeuvring areas are to be used for employees and visitors vehicles only and not for the storage of new or used materials, finished goods or commercial vehicles.

Refuse & Trade Waste

142. Waste storage bins must be covered at all times to prevent entry of stormwater or dispersal by wind and must be sealed to prevent leakage.

Maintenance of Waste Storage Area – Residential

143. All waste and recycling containers shall be stored in the designated waste storage area. The body corporate shall be responsible for movement of the waste and recycling containers to the footpath for weekly collections, and the return of waste and recycling containers to the waste storage area. The Body Corporate shall clean the waste storage area, dry arrestor pit and waste collection containers.

Alarms

144. Where audible intruder alarms are installed in the units by residents, they shall be fitted with a timing device in accordance with the requirements of the Protection of the Environment Operations Act 1997. (Note: Condition 84 above, prevents the developer/builder from installing audible alarms).

General

145. No retail sales or advertising of retail sales is to be undertaken from the subject site at any time.

146. Identification number/s is/are to be clearly displayed at the front of the premises.

Privacy Measures

147. The privacy screens/louvres shall be kept in good condition and maintained and shall not be removed at any time.

Air Emissions

148. The use of the premises shall not give rise to air impurities in contravention of the Protection of the Environment Operations Act 1997 and shall be controlled in accordance with the requirements of such Act.

149. In the event of Council receiving complaints regarding air pollution or odour from the premises, the person(s) in control of the premises shall at their own cost arrange for an environmental investigation to be carried out (by a suitably qualified person) and submit a report to Council specifying the proposed methods for the control of odour exiting the premises.

150. Any discharge to the atmosphere must not result in any odour or other air impurity detectable outside the boundaries of the property.

151. In the event of Council receiving complaints regarding excessive odour from the garbage bay area, the person(s) in control of the premises shall at their own cost arrange for an environmental investigation to be carried out (by a suitably qualified person) and submit a report to Council specifying the proposed methods for the control of odour emanating from the garbage bay area.

General Noise Condition

152. The operation of all plant and equipment shall not give rise to an equivalent continuous (LAeq) sound pressure level at any point on any residential property greater than 5dB(A) above the existing background LA90 level (in the absence of the noise under consideration).

153. In the event of Council receiving complaints regarding excessive noise, the person(s) in control of the premises shall at their own cost arrange for an acoustic investigation to be carried out (by a suitably qualified person) and submit a report to Council specifying the proposed methods for the control of noise emanating from the premises.

154. Noise and vibration from the use of the air conditioning system (if any installed) shall not exceed the background level by more than 5dB(A) and shall not be audible in any premises of a different occupancy between 10:00pm and 7:00am on weekdays and 10:00pm and 8:00am on weekends and public holidays.

Clean Water Discharge

155. The operation of the premises shall be conducted in a manner, which does not pollute waters as defined by the Protection of the Environment Operations Act 1997.

Signage on Stormwater Drains

156. Signs shall be displayed adjacent to all stormwater drains on the premises indicating that only clean water is allowed to enter these drains. Examples of possible signage include: ‘Clean Rainwater Only’, ‘Clean water only - NO waste’ or ‘H2O only’.

Maintenance of Stormwater Treatment Devices

157. All wastewater and stormwater treatment devices (including drainage systems, sumps and traps) shall be regularly maintained in order to remain effective. All solid and liquid wastes collected from the devices shall be disposed of in a manner that does not pollute waters.

Car Wash – Residential/Commercial

158. Washing of vehicles shall be conducted in the car washbays, which are roofed and bunded to exclude rainwater. The carwash bays shall be regularly cleaned and maintained. Alternative water management and disposal options may be appropriate where water is recycled, minimised or re-used on the site.

159. The car wash bays shall be managed and maintained so that the following requirements are met:

- Have clearly visible sign(s) indicating that no degreasing, engine washing or mechanical work is to be undertaken in the car wash bays, informs car wash bay users of how to use and maintain the system, and encourages users to minimise the use of detergents and water.

Lighting

160. 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 AS4282-1997 Control of the obtrusive effects of outdoor lighting.

Mechanical Ventilation

161. Any discharge to the atmosphere from the subject development shall not result in any odour or other air impurity being detected outside the boundaries of the property.

Restriction of Use of Tenancies

162. No approval is granted or implied for the use of the tenancies. Separate Development Consent is required PRIOR to occupation for all tenancies.

163. The proposed ground and upper ground floor tenancies are to be leased for commercial purposes only (subject to separate Development Consent). Uses for the purposes of retail premises, shops or refreshment rooms are not permitted.

ADVISORY NOTES

Other Necessary Approvals

A. The applicant’s attention is drawn to the need to obtain Council’s separate approval for any ancillary activity not approved by this consent, including:

(b) Any fencing located forward of the proposed building and exceeding the limitations specified in Schedule 1 of Development Control Plan 2007, Part I “Exempt and Complying Development”.

(c) The erection of any advertising sign, not being exempt from the need to obtain approval.

(d) The installation of any furnace, kilns, steam boiler, chemical plant, sand blast, spray painting booth or the like.

NOTE: * If you carry out building work as an owner builder and sell your home within seven (7) years from the date of completion (date of final occupation certificate), then a Certificate of Insurance must be attached to your Contract of Sale.

B. The applicant and Owner are advised that the Commonwealth Disability Discrimination Act 1992 may apply to this particular proposal. Approval of this application does not imply or confer compliance with this Act. Applicants and owners should satisfy themselves as to compliance and make their own enquiries to the Human Rights and Equal Opportunity Commission. Attention is also drawn to the provisions of Parts 2, 3 and 4 of Australian Standard 1428 - Design for Access and Mobility.

C. Information regarding the location of underground services may be obtained from Sydney One Call Service (NSW Dial Before You Dig), telephone 1100, Fax 1300 652 077. Inquirers should provide SOCS with the street/road name and number, side of street/road and the nearest cross street/road.

D. A Construction Certificate shall be obtained in accordance with Section 81A (2)(a)of the Act, prior to the commencement of any work on site. Council can provide this service for you.

E. An Occupation Certificate is to be issued by the Principal Certifying Authority prior to the occupation of the building.

F. DEMOLITION

(b) All sediment/soil is to be prevented from entering Council's stormwater drainage system.

(c) The public footpath and roadway is to be protected against damage as a result of demolition activities and is to be kept clean and free of all soil and other materials.

(d) On completion of demolition the site is to be left in a clean and tidy condition.

(e) Holroyd City Council has a Tree Management Order which applies to the entire City of Holroyd. No ring-barking, cutting down, topping, lopping, removing, injuring or wilful destruction of any tree or trees exceeding 3.5m in height and 3m in branch spread shall take place without the prior written consent of Holroyd City Council.

(f) There shall be no burning of any waste, as this is prohibited within the City of Holroyd.

(g) Demolition material can be recycled saving the environment and also tipping costs. For more information, contact the Environment Protection Authority’s Recycling hotline on 9325 5555.

(h) Public roads shall be kept clean and free of any materials which may fall from vehicles or plant to ensure safety and amenity of the area.

G. BANK GUARANTEES

To enable the bank guarantee to be enforceable during an entire project with consideration for delays, the guarantee must not contain a facility expiry date.

To get to Standard and Poors then from Ratings Action choose Ratings Lists. Then click on Financial Institutions followed by clicking on Financial Institutions Counterparty Ratings List. Go to “Banks” and download to Australian Banks.

To get to Moodys then look up Ratings and then Banking and then Bank Ratings list. It will take you to Bank Credit Research page. Look at the table of contents and choose Global Bank Ratings by Country. Look up Australian Banks.

H. SMOKE DETECTORS

AS3786-1993, Smoke Alarms

Scientific Services Laboratory Register of Accredited Products

I. TERMITE PROTECTION

AS3660.1-2000 Protection of building from subterranean termites

J. WET AREAS

Waterproofing of wet areas within residential buildings.

Where Council is the Principal Certifying Authority for the works, the submission of evidence of suitability for the waterproofing product used will be required at the wet area inspection stage. The evidence of suitability is to be in the form of:-

1. A current Certificate of Accreditation for the product.

AND

2. A certificate from the person responsible for the installation of the product advising that the product was applied in accordance with the relevant manufacturers specifications.

Note: Any copy of documentary evidence submitted, must be a complete copy of the original report or document.

K. LANDINGS

A landing having a minimum length of 750mm and a grade no steeper than 1.50, must be provided where the sill of a threshold of a doorway opens onto a stair that provides a change in floor level or floor to ground level greater than 3 risers or 570mm in accordance with Clause 3.9.1.3 (Stair Construction) of the Building Code of Australia.

L. SARKING

To reduce the risk of injury during works to the roof, sarking with fall arresting ability is to be provided to the underside of the roof. Manufacturers specifications for the sarking is to be submitted to Council prior to its installation.

M. MINIMISING WATER USE

Examples of ways water use can be minimised in the car wash facility are:

- the use of a gun type nozzle on the hose that closes when released and

- filter and recycle wash water where possible.

N. CONSTRUCTION/OCCUPATION CERTIFICATE FEES

An administration fee of $30.00 per certificate is payable to Council on lodgement of Construction and Occupation Certificates from Principal Certifying Authorities.

O. GLAZING CERTIFICATION

_________________________
J S Murrell
Commissioner of the Court
ljr

CITATION:	Walsh and Anor v Holroyd City Council [2009] NSWLEC 1271
PARTIES:	APPLICANT William Walsh and Lyn Walsh RESPONDENT Holroyd City Council
FILE NUMBER(S):	11123 of 2008
CORAM:	Murrell C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Mixed use development containing commercial and residential and basement car park; overshadowing and impact on adjoining properties.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
DATES OF HEARING:	26 May 2009
EX TEMPORE JUDGMENT DATE:	26 May 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr D Collett (Agent) Mr W Walsh (Litigant in person) RESPONDENT Ms P Hudson (solicitor) SOLICITOR Marsdens Solicitors