Warringah Properties Pty Ltd v Warringah Council [2]
[2004] NSWLEC 443
•08/13/2004
Land and Environment Court
of New South Wales
CITATION: Warringah Properties Pty Ltd v Warringah Council [2] [2004] NSWLEC 443 PARTIES: APPLICANT
RESPONDENT
Warringah Properties Pty Ltd
Warringah CouncilFILE NUMBER(S): 10137[2] of 2004 CORAM: Hoffman C KEY ISSUES: Development Application :- Annexure A conditions attached to consent of 30/06/2004 LEGISLATION CITED: CASES CITED: DATES OF HEARING: 28/06/2004 DATE OF JUDGMENT: 08/13/2004 LEGAL REPRESENTATIVES:
APPLICANT
Mr J Doyle, solicitorRESPONDENT
Mr J Johnson, barrister
SOLICITORS
P J Donellan & Company
JUDGMENT:
THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALESHoffman C
10137[2] of 2004 Warringah Properties Pty Ltd v13 August 2004
Warringah Council [2]
JUDGMENT
Introduction
1 At the conclusion of the judgment handed down on this matter on 30 June 2004, the Court gave leave to the parties to give written submissions on draft Condition 69 in regard to a dispute over the amount of contribution required by the council’s s 94 Plan. The parties have provided a copy of the s 94 Plan and their written submissions and included material in regard to other disputed draft conditions more or less in confirmation of oral submissions given at the hearing on-site dated 28 June 2004.
2 The following is the Court’s finding on the draft conditions:
Condition 69
3 The s 94 Plan calculates contributions on a per person basis for open space acquisition and/or enhancement and community facility. But roads and traffic improvements are calculated on a per dwelling basis. Whilst there is probably a relationship between the two that creates a total contribution rate it is not apparent from a reading of the s 94 Plan. So without other information the Court is left with accepting both parties agreement that the table that applies is on p 9 for Contribution Rates of Medium Density Development outside a Medium Density area. The latter description suits the proposal and the table has a category for “Older Persons” developments and gives $1,536 per dwelling.
4 The purpose of the Plan is best described on p 14 as:
- To provide increased or expanded facilities to meet the needs of incoming population. The monies levied are required to increase recreational, social, safety and/or commercial opportunities for the incoming population or business that would otherwise not exist”.
5 It states on p 13 that:
- Section 94 permits council to require developers to provide or assist in providing new facilities required as a consequence of new development”
and
- The plan does not apply to re-development where the population accommodated on the site has not increased”.
6 The respondent says:
- The monetary contribution is calculated by expressing as a proportion, the projected contribution by older persons to the projected increase in population in “Medium Density outside Medium Density” area as part of the general increase of 5,321.
- The proposed cost of the facility, to be borne by that proportion of the increase in population is the basis for the calculation of the contribution as the rate of 1.9 persons per dwelling.
- Given that the present notional occupancy of 2.87 persons per dwelling is already factored into the existing population of 125,073, if there were to be a deduction from the contribution to the population this development will make to the projected increase of 5,321, the applicant would be “double dipping” in relation to the obligation to make contributions.
7 This concept that the existing population is already “factored in” the s 94 Plan in a way that eliminates credit for existing houses is not borne out by an examination of the tables of calculations in Appendix E. The tables only refer to the increased population or increased number of car trips per dwelling due to additional population. There is a subtraction from the cost of facilities of amounts previously collected by council under s 94 prior to the Warringah Section 94 Plan 2001. But those amounts were also presumably for increased demand due to earlier population increases.
8 If part of the respondent’s argument is correct that the existing population is factored into the s 94 Plan, there would be a result opposite to the respondent’s claim. It would be “double dipping” on the part of the council to not allow a credit for the “existing occupants” of the existing houses on the site because council should have already allocated an amount for their existing demand for community facilities and services from general rate revenue.
9 It may be that the council adds a s 94 contribution to an amount set aside in its rates income from the existing population to build a new facility larger so the new facility can cope with the demands of both existing and increased population. But that is a separate exercise to the s 94 Plan.
10 The Court accepts that the figure derived from the table on p 9 of $18,432 for 12 units in 2001 corrected by the formula on pp 15 and 16 to the current date is $19,920.00. But there should be a credit for the theoretical existing population of the three existing dwellings on the site of $6,975.00. Giving an amount payable of $12,955.00 and the figures to be adjusted until paid in accordance with the formula on pp 15 and 16 of the s 94 Plan. Condition 69 is amended accordingly.
Draft condition 72
11 In regard to Condition 72 the Court does not accept the widening of the services lane on the Pittwater Road frontage of the proposal is justifiable on the basis of this development. It would have a very low utilisation rate for the purposes stated in the respondent’s submissions and the laneway has a very low utilisation rate now. The council’s approval of the new development to the north of the site with vehicle access onto that site does justify widening there but not further south. Condition 72 is therefore deleted.
Other conditions
12 The Court notes the parties agreement on deletion of the deferred commencement conditions and amendments in the applicant’s submissions to Condition Nos. 35, 43, 50, 51, 77, 82, 83, 102, 103 and 104. The plans in Exhibits A, B and D are later revisions of those in Condition 1 and it needs updating too.
13 As noted in the Court’s judgment of 30 June 2004, additions to Conditions 12 and 18(c) and 90 are added in regard to excavation and construction and demolition and deliveries or removals and Conditions 104 and 105 are added or amended in regard to completion of landscaping works and the hedging of screen trees between the northern boundary of No. 601 Pittwater Road and the proposed buildings on the subject site.
14 The order of the Court is:
- Annexure A to the judgment in Appeal No. 10137 of 2004 handed down on 30 June 2004 is as attached hereto.
K G Hoffman
Commissioner of the Court
rjs
Annexure “A”
Conditions of Development Consent
Warringah Properties Pty Ltd v Warringah Council
1. Development being generally in accordance with plans numbered DA03(F), DA04(F), DA05(F), DA06(F), updated to 18/3/2004, submitted 23/3/2004, plan numbered DA08(I), updated to 8/6/2004, submitted 8/4/2004, plan numbered DA09(C), updated to 25/05/2004, submitted 23/03/2004, plan numbered DA01(G) updated to 10/05/2004 & DA02(H), updated 25/05/2004, plan numbered DA07(H), updated to 8/6/2004, DA09(C) updated to 25/05/2004, SA01(E) updated to 08/06/2004 all by Chenchow Little Architects and landscape plans 4803DAL01C as modified by plan 4803DAL 01D and 02C by Gilling & Associates, all plans as modified by any conditions of this consent/approval. (C1) 2. At least 2 days prior to work commencing on site Council must be informed, by the submission of Form 7 of the Environmental Planning and Assessment Regulation 1998 of the name and details of the Principal Certifying Authority and the date construction work is proposed to commence. (C168) 3. Compliance with Building Code of Australia
a. All building work must be carried out in accordance with the provisions of the Building Code of Australia.
b. This clause does not apply to the extent to which an exemption is in force under Clause 80H or 80I, subject to the terms of any condition or requirement referred to in Clause 80H (6) or 80I (4). (C375)4. Compliance with Clause 68 AConservation of energy and water of Warringah Local Environmental Plan 2000 with respect to hot water systems and clothes dryer appliances. 5. Residential Building Work
NOTE. The amount referred to in paragraph (ii) B is prescribed by regulations under the Home Building Act 1989. As at the date on which this Regulation was Gazetted, that amount was $3,000. As those regulations are amended from time to time, so that amount may vary.
a. Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the principal certifying authority for the development to which the work relates:
(i) in the case of work to be done by a licensee under that Act:
A. has been informed in writing of the licensees name and contractor licence number, and
B. is satisfied that the licensee has complied with the requirements of Part 6 of that Act, OR
(ii) in the case of work to be done by any other person:
A. has been informed in writing of the person’s name and owner-builder permit number, or
B. has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the definition of owner-builder work in section 29 of that Act, and is given appropriate information and declarations under paragraphs (i) and (ii) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs.
b. A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part. (C377)6. All design and construction of road drainage works within any road or public reserve shall comply with the Standard Specifications of Council. (C95) 7. Plant and demolition materials shall not be placed or stored within the public road reserve and shall be stored within the boundaries of the site during demolition works. Failure to comply with this condition may result in Council taking action to remove the offending items from the public reserve, and all costs incurred by Council will be deducted from any deposit moneys held in relation to the subject property. (C522) 8. Prior to the commencement of any excavation of Council’s roadway or reserve, the builder, or his contractor, shall obtain a Road Opening Permit and pay all associated restoration charges to Council. A copy of such permit shall be kept on-site during the works.
Failure to comply with this requirement will result in Council taking action to recover all of its costs in accordance with the provisions under Section 94 of the Roads Act 1993. (C523)9. All demolition work shall be carried out in a safe and responsible manner, with minimal harm to the surrounding natural environment under the supervision of a licensed contractor, and within the boundaries of the private property. (C524) 10. All demolitions are to be carried out in accordance with the guidelines contained in the Australian Standard AS2601-1991, The Demolition of Structures. (C525) 11. Access to the demolition site shall be protected with the use of suitable fences or hoardings being to the satisfaction of the Principal Certifying Authority and located on the private property. (C526) 12. Hours of construction or demolition being limited to Monday to Friday 7.00am - 5.00pm, Saturday 7.00am - 1pm. No work or deliveries or removals to take place on Sundays or Public Holidays. (C528) Noise from construction or demolition activities must comply with guidelines in NSWEPA Environmental Noise Control Manual Chapter 171 and the Protection of the Environment Operations Act 1997. 13. A person taking down, demolishing or causing to be taken down or demolished any building or part thereof shall, upon identifying or suspecting that asbestos is present in the building, immediately notify the Work Cover Authority. The Authority is the controlling body for the safe removal, handling and disposal of asbestos. The Authority supervises and monitors contractors engaged in asbestos removal. The requirements and standards imposed by the Authority, its consultants or contractors shall be complied with. (C530) 14. Silt and sediment erosion control measures shall be provided to the demolition site to prevent the siltation of all downstream properties and/or other public areas. (C531) 15. Soil on vacant sites is to be stabilised as soon as practical to prevent erosion, and sites generally are to be kept clear of excess vegetation. (C532) 16. The lighting of fires for building or rubbish and demolition materials is prohibited. (C533) 17. Dust control measures shall be undertaken on all demolition sites so as to avoid a nuisance to adjoining properties and harm to the environment. (C529) 18. Excavations and Backfilling
a. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.
b. All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property. (C378)i. Machine excavation and operations
c. Excavation or removal of any materials involving the use of machinery of any kind, including compressors and jack hammers, must be limited to between 9.00 am and 4.00 pm Mondays to Fridays, with regular breaks of 15 minutes each hour. This condition is imposed to ensure reasonable standards of amenity for occupants of neighbouring properties.19. Retaining Walls and Drainage if the soil conditions require it:
a. retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and
b. adequate provision must be made for drainage. (C379)20. Support for Neighbouring Buildings
a. If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:
(i) must preserve and protect the building from damage, and
(ii) if necessary, must underpin and support the building in an approved manner; and
(iii) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.
b. 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.
c. In this clause, allotment of land includes a public road and any other public place. (C380)21. Your attention is directed to the need to seek advice of your obligations from the Work Cover Authority. (C331) 22. Protection of Public Places
a. If the work involved in the erection or demolition of a building:
(i) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or
(ii) involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place.
b. If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.
c. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.
d. Any such hoarding, fence or awning is to be removed when the work has been completed. (C381)23. Signs to be Erected on Building and Demolition Sites. (C382)
a. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:
(i) stating that unauthorised entry to the work site is prohibited, and
(ii) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.
b. Any such sign is to be removed when the work has been completed.
c. This clause does not apply to:
(i) building work carried out inside an existing building, or
(ii) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.24. Toilet Facilities
a. 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.
b. Each toilet provided:
(i) must be a standard flushing toilet, and
(ii) must be connected:
A. to a public sewer, or
B. if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the council, or
C. if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by Council.
c. The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced.
d. In this clause:
(i) accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in Clause 95B of the Regulation.
(ii) approved by the council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993.
(iii) public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993.
(iv) sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993. (C383)25. Submission at the Construction Certificate stage of the anticipated schedule of current and proposed fire safety measures to be implemented in the building, and such fire safety schedule shall specify the minimum standard of performance for each fire safety measure. (C371) 26. To ensure the safety of occupants of the building a AFire Safety Certificate which identifies the schedule of Fire Safety Measures that have been completed to satisfactory standard shall be provided to Council prior to the issue of an Occupation Certificate as required in Part 7B of the Environmental Planning and Assessment Amendment Act 1997. (C387) 27. In accordance with Part 7B of the EPA Act the owner of a building is to provide Council with an Annual Fire Safety Statement for the building (Form 15A). (C394) 28. Trade materials, product and plant to be kept within the confines of the building at all times. (C30) 29. The Construction Certificate not to be issued until approval is provided from the Trade Waste Branch of Sydney Water for connection to the sewer. (C154) 30. Mechanical ventilation systems shall comply with the requirements as set out in AS53666 and the "Code of Practice for the Control of Legionnaire's Disease" - where applicable. (C249) 31. Provision of an on-site stormwater detention facility to control the rate of stormwater runoff from the site to be in accordance with the current version of Warringah Council’s publication On-Site Stormwater Detention - Technical Specification. (C68) 32. The on-site detention system and associated drainage works are to be strictly in accordance with the drainage plan submitted by T J Taylor consultants ( Drawing No 3050-1/D, 2/B). On completion of works a Compliance Certificate is to be issued by an accredited certifier in civil works withe the institute of engineers, stating that the works are in accordance with the above approved plans and Council’s On site detention technical specification, the compliance certificate is to be submitted to the Principal Certifying Authority prior to occupation. (C510) 33. Stormwater being piped to Warringah Council's street drainage system. (C300) 34. Restoration and maintenance to approved levels and safe condition of the footway reserve/s adjoining the site to Warringah Council’s standard specification for engineering works. (C85) 35. Prior to occupation of the development:
(a) a sealed footpath 1.2 metres wide to Warringah Council’s standard specifications is to be constructed at the applicant’s expense at the sites Moorilla Street frontages within the road reserve;
If Council provides its written approval, the design for the footpath can be amended from that shown in Exhibit D.
(b) a sealed footpath 1.2 metres wide shall be constructed on the Western Side of the Pittwater Road service road from May Road to the Northern boundary of the site, as required by the conditions of consent of the consent 2002/996 issued for 605-611 Pittwater Road;
(c) a sealed footpath 1.2 metres wide is to be constructed across the Pittwater Road frontage to Warringah Council’s standard specifications at the applicant’s expense. That footpath is to accord generally with Exhibit D (landscape drawing no. 4803DAL 01D dated May 04 amended front setback. The footpath is to be constructed so as to be as close to the tree in the north eastern corner of the site as practicable without endangering the health of that tree, and is to connect with the footpath referred to in (b) above. The applicant is to construct the footpath according to Council’s requirements, and the applicant shall agree to minor realignment of the boundary of its property if Council requests so that the footpath is entirely clear of the property, if any minor part of the applicant’s land is required to be transferred, it will be transferred at no cost to the Council.36. All vehicle access for the construction period shall be confined to a stabilised entry/exit/crossing and driveway 5.5 metres wide installed and maintained to the reasonable satisfaction of Council or the principal certifying authority to prevent damage to the Council road. (C107) 37. The footpath is to be protected from surface water by the construction of a grated drain across the driveway within the boundary connected to the drainage system. (C102) 38. All construction and restoration work on Council’s road and footpath area are to be carried out in accordance with the approved drawings and Council’s Standard Specifications. (C110) 39. All disturbed areas adjacent to the works on Council’s road and footpath are to be restored to the satisfaction of the Principal Certifying Authority. (C111) 40. The total cost of all construction and restoration works on Council’s road and footpath shall be borne by the developer/applicant. (C112) 41. No excavation or construction work to commence on site until all silt/sediment control measures are in place. (C317) 42. Creation of a Positive Covenant on the title of the land requiring the proprietor of the land to maintain any water quality control and/or stormwater detention structures required by this Consent, in accordance with the standard requirements of Council. The Positive Covenant is to be prepared by the applicant using terms acceptable to, and which are available from Warringah Council. The positive covenant is to be endorsed by Council prior to its lodgement with the Department of Information Technology and Management.(C51) 43. No alteration of levels, further construction or other development of the site which might interfere with the efficient operation of the on-site detention system shall take place without the prior consent of the Council. 44. Reinstatement of redundant crossings and laybacks prior to issue of the final Compliance Certificate. (C91) 45. Footpath and roadway being kept free of obstruction by building materials and plant. All concrete trucks, pumps and/or agitators being kept wholly within the building site. No concrete or slurry being discharged onto Council's street surfaces, nature strips, drains/gutters, reserves parks etc. (C321) 46. Temporary safety balustrading to be provided to all excavations adjoining or in close proximity to the boundaries of the allotment in accordance with Work Cover Authority requirements. (C316) 47. Kerb, footpath and landscaping to yard and road reserve area being reinstated to the redundant driveway location. (C294) 48. The public footways and roadways adjacent to the site shall be maintained at all times during the course of the work in a safe condition. (C88) 49. Construction of approved kerb laybacks in accordance with the details shown on Warringah Council Plan A4-2276. (C90) 50. Each unit is to be occupied by at least one older person (55 years and older) or person with a disability (S91(3B) of the Environmental Planning and Assessment Act) but may at the same time be occupied by other persons in addition. (C600)
551. Deleted. 52. Letterboxes:
a. must be lockable, and
b. must be located together in a central location adjacent to the street entry, and
c. must be situated on a hard standing area and have wheelchair access by a continuous path of travel (within the meaning of AS 1428). (C602)53. Private car accommodation
a. each car parking space must be not less than 6 metres x 3.2 metres or the design of the development must be such as to enable the size of the car parking space to be increased to an area of not less than 6 metres x 3.2 metres, and
b. any garage or carport must have an internal clearance of at least 2.5 metres as measured from the finished floor level of the garage or carport, and
c. any garage must have a power-operated roller door, or there must be a power point and an area for motor or control rods to enable a power-operated door to be installed at a later date. (C603)54. Accessible entry
Every entry (whether a front entry or not):
a. must not have a slope that exceeds 1:40, and
b. must comply with clauses 4.3.1 and 4.3.2 of AS 4299, and
c. must have an entry door handle and other hardware that complies with AS 1428. (C604)55. All external doors to any one dwelling must be keyed alike. (C605) 56. Internal doors must have a clearance of at least 820 millimetres.
Internal corridors must have a width of at least 1,000 millimetres.
The width at internal door approaches must be at least 1,200 millimetres. (C606)56. Living room and dining room
A living room in a self-contained dwelling must have:
a. a circulation space:
(i) of at least 2,250 millimetres in diameter, and
(ii) as set out in clause 4.7 of AS 4299, and
b. a telephone adjacent to a general power outlet.
A living room and dining room must have a potential illumination level of at least 300 lux. (C607)57. Kitchen
A kitchen in a self-contained dwelling must have:
a. a width of at least 2.7 metres and a clear space between benches of at least 1,450 millimetres, and
b. a width at door approaches of at least 1,200 millimetres, and
c. benches that include at least one work surface:
(i) that is at least 800 millimetres in length, and
(ii) the height of which can be adjusted from 750 millimetres to 850 millimetres, and
d. a tap set:
(i) that is located within 300 millimetres of the front of the sink, and
(ii) that is a capstan tap set or that comprises lever handles or a lever mixer, and
e. a thermostatic mixing valve for the hot water outlet, and
f. cook tops:
(i) with either front or side controls, and
(ii) with controls that have raised cross bars for ease of grip, and
(iii) that include an isolating switch, and
g. a worksurface adjacent to the cook top and at the same height and that is at least 800 millimetres in length, and
h. an oven that is located adjacent to a worksurface the height of which can be adjusted, and
i. AD pull cupboard handles that are located towards the top of below-bench cupboards and towards the bottom of overhead cupboards, and
j. general power outlets:
(i) at least one of which is a double general power outlet within 300 millimetres of the front of a worksurface, and
(ii) one of which is provided for a refrigerator in such a position as to be easily accessible after the refrigerator is installed. (C608)59. Main bedroom
At least one bedroom within a self-contained dwelling must have:
a. an area sufficient to accommodate a wardrobe and a queen-size bed with a clear area at least 1,200 millimetres wide at the foot of the bed, and
b. 2 double general power outlets on the wall where the head of the bed is likely to be, and
c. at least one general power outlet on the wall opposite the wall where the head of the bed is likely to be, and
d. a telephone outlet next to the bed on the side closest to the door and a general power outlet beside the telephone outlet, and
e. a potential illumination level of at least 300 lux. (C609)60. Bathroom
A bathroom must have:
a. an area that complies with AS 1428, and
b. a slip-resistant floor surface, and
c. a shower:
(i) the recess of which is at least 1,160 millimetres x 1,100 millimetres, or that complies with AS 1428, or that complies with clause 4.4.4 and Figures 4.6 and 4.7 of AS 4299, and
(ii) the recess of which does not have a hob, and
(iii) that is waterproofed in accordance with AS 3740, and
(iv) the floor of which falls to a floor waste, and
(v) that can accommodate a grab rail that complies with Figure 4.6 of AS 4299 and AS 1428, and
(vi) that has a tap set that is a capstan tap set or that comprises lever handles and that has a single outlet, and
(vii) that has the tap set positioned so as to be easily reached from the entry to the shower, and
(viii) that can accommodate an adjustable, detachable hand-held shower rose mounted on a slider grab rail or a fixed hook, and
(ix) that can accommodate a folding seat that complies with Figure 4.6 of AS 4299, and
d. thermostatic mixing valves for all hot water outlets, and
e. a washbasin with clearances that comply with Figure 4.4 of AS 4299, and
f. a wall cabinet that is sufficiently illuminated to be able to read the labels of items stored in it, and
g. a mirror, and
h. a double general power outlet beside the mirror. (C610)61. Toilet
Each residence must have a toilet:
a. that is a visitable toilet within the meaning of clause 1.4.12 of AS 4299, and
b. that is installed in compliance with AS 1428, and
c. that has a slip-resistant floor surface, and
d. the WC pan of which is located from fixed walls in accordance with AS 1428, and
e. that can accommodate a grab rail that complies with Figure 4.5 of AS 4299 and AS 1428. (C611)62. Laundry
A self-contained dwelling must have a laundry:
a. that has provision for the installation of an automatic washing machine, and
b. that has provision for the installation of a clothes dryer, and
c. that has a clear space in front of appliances of at least 1,300 millimetres, and
d. that has thermostatic mixing valves for all hot water outlets, and
e. that has a slip-resistant floor surface, and
f. that has an accessible path of travel to any clothes line provided in relation to the dwelling. (C612)63. Storage
A self-contained dwelling must be provided with a linen cupboard:
a. that is at least 600 millimetres wide, and
b. that has adjustable shelving. (C613)64. Doors
Door hardware provided as the means for opening doors must be:
a. able to be operated with one hand, and
b. located between 900 millimetres and 1,100 millimetres above floor level. (C614)65. Surface finishes
Balconies and external paved areas must have slip-resistant surfaces. (C615)66. Ancillary items
Switches must be located between 900 millimetres and 1,100 millimetres above floor level.
General purpose outlets must be located at least 600 millimetres above floor level. (C616)67. The land is subject to a Tree Preservation Order and no trees other than those expressly granted permission as a result of this development consent, may be removed or pruned without the prior consent of Council. (C560)
PRIOR TO RELEASE OF THE CONSTRUCTION CERTIFICATE68 The fee(s) required for a Council Compliance Certificate is $440 and it is to be paid prior to Council issuing the Construction Certificate. NOTE: Each Compliance Certificate fee is $110. Where external accredited certifiers issue construction certificates and compliance certificates the above fee is not required. (C397) 69. The payment of the following developer contributions prior to release of construction certificate. The proposal contains 12 units (Medium Density Areas (Older Persons)).
$204 Open Space Links & Cycleways (6901)
$ - Children’s Facilities (6902)
$ 3636 Libraries (6903)
$ 3768 Sport Field Establishment (6904)
$ 4368 Administration and Studies (6922)
$ 4008 Community Facilities (6906)
$ 3936 Open Space Embellishment (6912)
$19,920 Subtotal
$6,975 credit for existing 3 houses to be demolished
$12,955 Amount payable and current at the date of this consent.But that amount is to be adjusted until paid for increases in the consumer price index according to the following formula (also in the S. 94 Plan):
The contributions will be adjusted until paid quarterly on the basis of the relative change in the Consumer Price Index using the formula C x CP2/CP1 where:
C = the original contribution amount shown on the consent
CP2 = the latest Consumer Price Index: All Group Index Number for
Sydney available from the Australian Bureau of Statistics.
CP1 = the Consumer Price Index: All Group Index Number for
Sydney which was available from the Australian Bureau of
Statistics at the date of S. 94 Plan (1 June 2001)70. The car park layout to be designed in accordance with AS 2890.1-1993. Details to be provided to the Principal Certifying Authority prior to the issue of the Construction Certificate. 71. The applicant shall provide to Council a detailed dilapidation report of structures including walls, and including a photographic survey of all adjacent properties prior to release of the Construction Certificate. 72. Deleted. 73. Prior to finalising detailed designs of the proposed development, the applicant should check all existing public service utilities adjacent to the site and ensure that where necessary appropriate arrangements are made for the relocation and/or adjustment of any services at the applicant’s expense. (C96) 74. All fences, letter boxes and any other structures erected on the street alignment to conform to the approved back of footpath levels. The certifier to ensure that this is provided prior to issue of the Construction Certificate. (C101) 75. Building waste containers or “skips” and the like are not to be placed within the public road reserve unless approval from Warringah Council has been obtained prior to issue of the Construction Certificate and appropriate fees paid. (C105) 76. All materials excavated from the site shall be disposed of to a site suitable for the receival of such materials. Prior to issue of the Construction Certificate the accredited certifier to verify that appropriate arrangements have been put in place to ensure that such materials are disposed of in an environmentally suitable location and manner. (C109). 77. Deleted. 78. Access to vehicles except at the constructed entrance is to be denied by a physical barrier erected adjoining the road alignment. The certifier to ensure that this is provided prior to issue of the Construction Certificate. (C103) 79. The payment of an on-site detention checking fee of $300 to Account WCP 20340 U351, prior to issue of the Construction Certificate. (C512) 80. Provision of 1 vehicle crossing, 4 metres wide in accordance with Warringah Council Drawing No.A4-3330 to approved levels and specifications. An application for street levels is to be made prior to issue of the Construction Certificate. (C89) 81. All works on the site shall be undertaken to prevent erosion and transport of soil and sediment off the site and onto adjoining properties. Measures shall be taken in accordance with the requirements of Warringah Council's Specification for Erosion and Sediment Control. A plan shall be submitted to the council or certifier prior to issue of the Construction Certificate. (C41) 82. Payment to Warringah Council of a $10,000.00 bond (in cash or by bank guarantee) as security against damage to Council’s roads caused by the transport and disposal of materials and equipment to and from the site. This amount to be paid prior to the issue of the Construction Certificate and to be verified by the accredited certifier. (C108) 83 The payment of $5,000.00 (in cash or by bank guarantee) to account Reg 009 - *TF 036 prior to issue of a construction certificate as security to ensure that:
a. all silt and sediment control measures are installed and maintained;
b. there is no transmission of material, soil etc off the site and onto the public road and/or drainage systems; and
c. maintenance of all facilities in accordance with Council’s Specification for Erosion Control and Sediment Control. (C42)84. Adequate shoring to be provided to support the road reserve or other property during construction. Engineering drawings of this work are to be provided and approved by Council prior to commencement of any excavations, likely to affect the stability of such road, reserve or property. (C94)
PRIOR TO THE COMMENCEMENT OF WORKSA Construction Certificate is required to be approved by either Council or an Accredited Certifier, prior to the commencement of any works on the site. (C165) 86. The sediment and erosion control facilities are to be installed, and approved by the Principal Certifying Authority, prior to the commencement of any other works on the site. These facilities are to be maintained in working order during the construction works and up to the completion of the Maintenance Period. All sediment traps are to be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority, with all silt being removed from the site, or to an approved location within the site. (C116) 87. The developer/applicant is to obtain a Road Opening Permit from Council and pay all appropriate charges prior to commencement of any work on Council property.
The developer/applicant shall be responsible for all public utilities and services in the area of the work, and as such shall notify all relevant Authorities, and bear all costs associated with any repairs and/or adjustments as those Authorities may deem necessary. (C113)88 Hoardings shall be installed before any work is commenced on site including construction/demolition, and shall remain in place for the duration of the work. A separate application to be made to Council for this purpose and appropriate fee paid. No construction access is permitted other than at the approved vehicle crossing/s. All loading, unloading and storage of materials for works within the site shall take place within the hoarding enclosure. (C87) 89. Excavation work is to ensure the stability of the soil material of adjoining properties, the protection of adjoining buildings, services, structures and / or public infrastructure from damage using underpinning, shoring, retaining walls and support where required.
All retaining walls are to be structurally adequate for the intended purpose, designed and certified by a structural engineer, except where site conditions permit the following:
a. maximum height of 900mm above or below ground level and at least 900mm from any property boundary, and
b. comply with AS3700, AS3600 and AS1170 and timber walls with AS1720 and AS1170.
Hours of demolition, excavation and construction, deliveries or removals, shall be as set out in Conditions 12 and 18 herein. 91.. Lighting, fencing, traffic control and advanced warning signs shall be provided for the protection of the works and for the safety and convenience of the public and others, to the satisfaction of the Principal Certifying Authority, and in accordance with Council’s Standard specifications for engineering works. Traffic movement in both directions on public roads, and vehicular access to private properties is to be maintained at all times during the works. (C117) 92. Adequate protection measures are to be employed to retain excavated areas during the construction process. (C37) 93. Provision shall be made throughout the period of construction to prevent transmission of soil to the public road and drainage system by vehicles leaving the site. (C44)
PRIOR TO OCCUPATION94. Construction of footpath paving consisting of concrete pavers for the full width of the footpath in accordance with Council’s standard specifications for engineering works. (C84) Street number being affixed to building prior to occupation. (C322) 96. The building shall not be occupied until an Occupation Certificate has been issued. (C162) 97. Dedication as a public road of suitable sites for electricity sub-stations, if required by the relevant electricity supply authority. (C55) 98. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator; for details see the Sydney Water web site or telephone 13 20 92.
Following application, a Notice of Requirements will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.
The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the linen plan/occupation of the development. (C58)99. The following component certificates are required to be submitted to Council where Council is the nominated principal certifying authority prior to occupation/use of the building, to ensure compliance with the Building Code of Australia and relevant Australia Standards:(C399)
a. Structural Engineer/Accredited Certifiers certificate which states the piers/ footings/slabs/columns/beams/retaining walls are adequate and in accordance with the structural details and relevant Australian Standards.
b. Structural Engineer/Accredited Certifiers certificate which states structural steel/timber frame and connections have been completed in accordance with relevant Australian Standards.
c. Structural Engineer/Accredited Certifiers certificate covering the supervision of all structural work and adequacy of the building.
d. Accredited Certifiers certificate which states the structural components of the building have a fire resistance level in accordance with the requirements of Part C of the Building Code of Australia for a Type B construction /and / the approved plan.
e. Accredited Certifiers certificate stating the fire wall between all Units complies with the requirements of Part C of the Building Code of Australia./ and / the approved plans.
f. Electrical contractors certificate stating the smoke alarm system has been installed in accordance with AS 3786-1993 Smoke Alarms.
g. Plumbing and Drainage contractors certificate indicating that sewer/waste water system has been installed and completed in accordance with the Sydney Water requirements.
h. Accredited waterproof installers certificate which certifies the waterproofing system has been applied in accordance with the manufactures recommendations and AS 3740-1994 Waterproofing of Wet Areas in Residential Buildings.
i. Mechanical Engineers certificate which certifies the air handling system has been designed, installed and is operational in accordance with the requirements of AS 1668-1991 The use of mechanical ventilation and air-conditioning in buildings, Part 1: Fire and smoke control / Part 2: Mechanical ventilation for acceptance indoor-air quality.
j. Registered pest contractors certificate which states termite control measures have been installed in accordance with AS 3660.1-1995 Termite Management: New Building Work.
k. Registered Surveyors identification report indicating the finished ridge levels in relation to a nominated fixed datum point / are in accordance with the levels indicating plans.
l. Glazing installation contractor certificate stating all glazing has been selected and installed in accordance with AS 1288-1994 and the appropriate terrain category classification.
m. Drainage contractors Certificate certifying that the stormwater drainage system has been satisfactorily installed and completed.
n. Acoustic Engineer/Accredited Certifiers certificate stating the Sound Transmission Class of the Divisional Wall between occupancies complies with the requirements of Part 3.8.6 Sound Insulation of the Building Code of Australia.100. Where any conditions of this Consent require dedication, consolidation, easement or covenant, the number allocated by Land & Property Information (Land Titles Office) to the documents and/or plans referred to shall be advised in writing to Warringah Council, together with a letter of intent to proceed with the Positive Covenant and Restriction as to User, prior to Occupation. A certified copy of the documents shall be provided to Warringah Council after final approval and registration has been effected by Land & Property Information (Land Titles Office). (C57) Compliance Certificates are required at the following stages of construction:-
f. Other - On site detention system prior to occupation (C396)101.1111.. The requirements of condition(s) ending in code(s) C68 shall be designed and supervised during the works by an Engineer with qualifications and expertise recognised by the Institute of Engineers Australia as being adequate for the purpose. The Engineer shall certify prior to occupation or release of Linen Plan of Subdivision that the works have been completed strictly in accordance with the approved design and to appropriate standards of workmanship. (C98) 102. All doors are to comply with the circulation requirements of AS1428.1 with an 850mm clear opening. 103. A kerb ramp is to be provided on both the eastern and western side of Pittwater Road at the Sturdee Parade signalised intersection. 104. (a) The landscape plan is to be amended as per exhibit D (the amended detail drawn by Gilling & Associates dated May 2004 being drawing no. 4803DAL01D) to incorporate hedge screening between the access ramp at the boundary with Pittwater Road and also incorporate Condition 105(b) below.
(b) All landscaping works to be completed to council’s satisfaction prior to occupation of the development.
(i) During occupation into the future105.
(a) All applicable conditions shall continue to be complied with for the life of the building.
(b) Screen trees to be planted between the north boundary of No. 601 Pittwater Road and the proposed building shall be of a type suitable to be pruned annually to be the same height as the part of the proposed building adjacent each tree. Pruning shall be carried out annually in autumn and before winter to maintain solar access to No. 601 Pittwater Road.
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K G Hoffman
Commissioner of the Court
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