Waverley Crescent Pty Limited v Waverley Council - [2010] NSWLEC 1195

Land and Environment Court

of New South Wales

CITATION: Waverley Crescent Pty Limited v Waverley Council [2010] NSWLEC 1195

PARTIES: APPLICANT
Waverley Crescent Pty Limited
RESPONDENT
Waverley Council

FILE NUMBER(S): 10950 of 2009

CORAM: Dixon C

KEY ISSUES: CONSENT ORDERS - DEVELOPMENT CONSENT :- residential flat building

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Waverley Local Environmental Plan 1996
Waverley Development Control Plan 2006
Waverley Local Environmental Plan [Bondi Junction] 2010
Waverley Development Control Plan 2008

CASES CITED: Segal&Anor V Waverley Council [2005] NSWCA 310

DATES OF HEARING: 15 June 2010

EX TEMPORE JUDGMENT DATE: 15 June 2010

LEGAL REPRESENTATIVES:
Mr I Hemmings (barrister)
instructed by
Ms S Hill
Mr M Staunton (barrister)
instructed by
Mr S Patterson

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Dixon C

15 June 1010
10950 of 2009 Waverley Crescent Pty Limited v Waverley Council

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

JUDGMENT
Background

1 The applicant seeks consent to erect a 9 storey residential flat building consisting of 9 apartments and 2 levels of basement car parking on a site at 5-7 Waverley Crescent, Bondi Junction.

2 The appeal was first listed before me on 11 March 2010, for a s34 conciliation conference when the conference was adjourned to allow the applicant an opportunity to amend the development to address the issues detailed in the council’s statement of facts and contentions filed with the Court on 10 December 2009.

3 At the request of the parties the s34 conference was terminated and the matter was re-listed today for the making of consent orders to approve the development based on amended plans; described as revision D and shadow diagram revision E in Exhibit 3. The consent orders hearing commenced onsite and this provided me with an opportunity to hear the objectors’ evidence in respect of the amended plans and the hearing was completed in Court.

4 At the hearing the Court received oral and written evidence from the applicant’s consultant planner Mr Moody and the Council’s consultant planner Ms Gordon in respect of the amended plans and the agreed conditions. The amended plans and conditions were notified to the objectors under council’s notification policy.

5 The original proposal was for the development of 16 apartments in a building with a podium element and tower. The amended design deletes the podium and tower and instead proposes a 9-storey development with greater side and rear setbacks and nearly half the number of apartments.

6 The parties’ experts explained the amended plans to the objectors and the Court at the commencement of the hearing onsite. I understand the evidence of the planners Ms Gordon and Mr Moody (as noted in their most recent statements of evidence; exhibits 2 and C) is that the amended plans are acceptable on a merit assessment under s 79C of the Environmental Planning and Assessment Act 1979.

7 According to the evidence (apart from a minor non-compliance in one area) the reconfigured development achieves a 6-metre setback from its side boundaries and a 4-metre setback from the rear laneway. Both planners agree that this modification of the original design is an improvement because it reduces the overshadowing to the adjoining units to the south. Furthermore, the evidence is that the amended proposal has a smaller building envelope and a reduced FSR of 2.03:1, which better achieves the objectives of the Zone No 2(c1)- Residential –Medium of the WLEP 1996 and Zone R4 –High Density Residential under the WLEP2010. Furthermore, the amended development increases the area of deep soil landscaping to allow the planting of additional mature trees within the front setback of Waverley Crescent.

8 According to the applicant’s traffic consultant, the amended proposal overcomes the traffic issues raised by the original design. I was referred to the traffic survey and the comments at p 10 of exhibit E wherein the traffic consultant concludes “…the development will improve the existing traffic issues in the local vicinity of the development”. I accept the planning evidence that the 2 level of basement parking for fourteen cars adequately addresses the parking needs of this 9-apartment development. I also note that the planners consider the relocation of the driveway access to the western side of the site off the rear laneway is also acceptable.

9 Based on a view of the site and the evidence, it is the parties’ joint submission that the amended development, subject to the agreed conditions in exhibit 3, should be approved. It is the parties’ further submission that all of the contentions raised by the council in its statement of facts and contentions, apart from the residents’ objections, have been satisfactorily addressed by the amended development.

10 I have read and considered the written objections in council’s bundle and the further documents that were tendered by the residents who attended the hearing today. Furthermore, I have considered the oral evidence given on site today by the 6 residents who addressed me about their objections to this application. I have inspected the site and had particular regard to the impacts of the development from Waverley Crescent, the park opposite the site, the rear laneway, and from the courtyard of unit three, which adjoins the site.

11 I have read the notes of the evidence taken onsite, which record the residents’ objections, and understand their evidence and their concerns. Generally, as described in the facts and contentions and the further supplementary report prepared by council’s planner Ms Gordon the objectors’ concerns relate to: the height; setback; shadow effect; traffic and parking. Each of the residents who addressed me understood that the proposal now before the Court does not contain a podium and has a greater side setback in a development of nine units rather than the original 16 proposed. Furthermore, they appreciate that, (although it does not comply at the south-east corner) the rear lane setback is 4 metres generally. Ms Gordon on a merit assessment finds this setback acceptable in the circumstances of this case.

12 Despite the changes, not all of the residents are satisfied that with the deletion of the podium and the amended shadow impact of the development on their particular properties. Of particular concern to the owners of unit three on the eastern boundary of the site, is the shadow cast from 11am in midwinter to their courtyard. According to the shadow diagrams after 11am, their courtyard would be affected for most of the afternoon. I was able to appreciate the objectors existing amenity because the Court stood in their courtyard at about 11am in mid June at the hearing. The objectors at unit three also understood that even a four storey building or a two storey dwelling house built on the site with a 900 setback would result in the overshadowing of their courtyard in winter after 11am.

13 The objectors understood that other buildings within the area currently cause overshadowing to their courtyards and that the shadow of the proposed development would fall within the existing shadow of those other buildings.

14 The objectors at unit 3 appreciated however, that the new design did increase the side boundary setback to some 6 metres from their courtyard and generally (apart from the small area of non-compliance) 4 metres from their laneway frontage at the rear. They also understood that the building was, from their perspective, shorter in length and, therefore, the shadow on their property was less with the proposed amended application. They understood that these changes were an improvement to their amenity, although they were still very concerned about the overshadowing of their courtyard and the loss of afternoon sun.

15 The application was lodged on 21 November 2008 and the relevant statutory controls at the time of lodgement were: the Waverley Local Environmental Plan 1996 that zoned the site Residential 2(c1)-Medium and High Density; and the Waverley Development Control Plan 2006. At the time of lodgement there was however, a set of draft planning controls, which had been placed on public exhibition and have since been gazetted. They are Waverley Local Environmental Plan [Bondi Junction] 2010 (WLEP 2010) and Waverley Development Control Plan 2008. Both the council and the applicant jointly submit that the WELP 2010 should be given weight in my consideration of this application.

16 It is to be noted that the development in its amended form, according to the evidence, meets the objective 1A of the zone 2(c)(1) Residential Medium and High-Density zoning under WLEP 1996 and the proposal is also permissible under cl 2 of the WELP 2010. I have read and accept the conclusions of Ms Gordon in Exhibit 2 that the FSR which is now 2.03:1 is while a breach of the numerical control in the WLEP 1996 has on her assessment little impact in planning terms. I accept her assessment that the FSR control no longer results in any unacceptable impact and would not be discernible to anyone viewing the completed development, and that as such the variation can now be supported on its merits. Based on her evidence, the objectives of the planning controls are achieved by this amended development.

17 According to the evidence, the relevant DCP requires two hours solar access to be maintained to adjoining properties in relation to both the living room of the dwelling and its private open space. Having regard to the orientation of adjacent units and the difficulty of maintaining the level of solar access under the development controls for the site, I accept her evidence that it is extremely difficult, if not impossible, to retain two hours of solar access to all adjoining units without unreasonably removing the development rights of the subject site for a residential flat building of a height permitted under the controls. Based on her assessment that the overshadowing caused by the amended proposal has been minimised by the generally complying setbacks and height, I accept her assessment that the impact on unit three is reasonable in the circumstances because a four storey development and even a two storey house at 900mm off the common side boundary would impact the courtyard. The extent of overshadowing, I accept, is not on the evidence a ground for refusal of this application.

18 The deep soil planting and landscaping is acceptable on the evidence of Ms Gordon and will provide an attractive outlook for the residents of the development and from the street and adjoining heritage items, which I understand are on the park and the open space. I accept the evidence that the canopy trees which have now been included in the amended landscaping plan will also improve the streetscape of this particular development and in some way will soften the view of what no doubt is a permissible but tall residential development in the street.

19 Communal open space is now no longer an issue in the appeal. The redesign of the layout of the units provides adequate private open space orientated to the north at the front of the site and excellent solar access according to Ms Gordon. The communal open space with its barbeque area is useable and considered appropriate by Ms Gordon.

20 No precedent effect is set by the determination in this particular appeal. Each case must be determined on its own facts and circumstances for the reasons set out in the decision of Segal & Anor v Waverley Council [2005] NSWCA 310 [51], [93], [94].

21 I have considered at great length the public interest under section 79C of the Act and the other relevant considerations. The development was notified and I have considered the objections and oral evidence of the residents who addressed me today. I have read and considered their written objections and the further email and other letters that have been received by the court today.

22 Parking for 14 cars is adequate on the basis of the evidence and the proposal accommodates, according to the traffic study in exhibit E, all of the traffic concerns as raised by the residents, noting that the council did not raise any particular issue about traffic. I accept the applicant’s evidence based on a survey that this development would improve traffic issues in the locality.

23 If there is any damage to the adjoining property in the construction of this development a condition has been imposed to deal with any such damage. Furthermore, the agreed conditions require the preparation of a dilapidation report prior to construction to record the state of repair in the event of damage. The basement car park entry has been relocated and changed by the amended design to avoid damage to neighbouring property.

24 All of the units in the development now face Waverley Crescent. I am satisfied on the evidence that the adjoining properties will have appropriate levels of privacy because of the amended orientation of the units to the street. The future character of the area has been determined by the gazettal of Waverley Local Environmental Plan 2010 that permits a nine-storey development on this site. The development on the evidence is consistent with the desired future character of the area and according to the evidence is acceptable on its merits.

25 Based on the evidence above, and the submission of the parties I am satisfied on a merit assessment under s 79C of the Environmental Planning and Assessment Act 1979 that this amended development is acceptable. Accordingly, I have decided to make the consent orders proposed by the parties.

26 I make the following Orders by consent:

Environmental Planning and Assessment Act

5. I return the exhibits except the plans exhibit A, B, and 3.

___________________

Annexure ‘A’

Conditions of Consent

WAVERLEY CRESCENT PTY LTD VS WAVERLEY COUNCIL

A. Approved Development

1. Approved Development

The development must be in accordance with:

(a) Architectural Plan Nos DA-03, Rev D, DA-04 – DA-11, Rev E, all dated 18.05.10, prepared by BMA and the Statement of Environmental Effects (appendices inclusive) prepared by Robinson Urban Planning Pty Ltd dated November 2008 (as amended by the approved plans).

(b) Landscape Plan No. 8045-02, Issue A and documentation prepared by Peter Glass & Associates, dated 26 March 2010;

(d) Schedule of external finishes and colours received by Council on 21 November 2008; and

(e) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006.

Except where amended by the following conditions of consent.

2. general modifications

The approved landscape plan shall be amended as follows:

(a) The trees identified as canopy trees on the plan are to be trees that will achieve a 15-20 metres maturity height except for the canopy trees on the north eastern boundary adjacent to the adjoining townhouse development (11 Waverley Crescent) which shall have a maximum maturity height of 3 metres.

(b) Landscaping provided in the common open space area forward of the building line are to comprise a dense planting of shrubs and ground covers.

(d) Landscaping provided between the rear lane and the access stairs to the car park is to screen the stairs from view.

(e) Species of Bambusa textillis ‘Gracillis’ is only to be planted into designated planter boxes and not into the ground.

(f) Planter boxes are to be a minimum of 1m deep.

The approved architectural and stormwater management plans shall be amended as follows:

(a) Storage areas are to be provided for seven waste MGBs and four recycling MGBs, two for paper/cardboard and two for other recycling.

(b) All MGBs are to be stored in a designated waster storage area on the upper basement level, with lockable doors and adequate lighting.

(c) An authorised sewerage connection and bunding are to be shown to the waster storage area to allow for washing of MGBs.

The amendments shall be submitted for the approval of Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.

3. APPROVED DESIGN - RESIDENTIAL FLAT DEVELOPMENT

The approved design (including an element or detail of that design) or materials, finish or colours of the building must not be changed so as to affect the internal layout or external appearance of the building, without the approval of Council.

4. architect to supervise design

The preparation of the Construction Certificate plans shall be supervised and to the satisfaction of Brian Meyerson (the 'architect' ) in accordance with the requirements of State Environmental Planning Policy No. 65 - Design Quality of Residential Flats.

5. NOISE - MECHANICAL PLANT

Noise associated with mechanical plant shall not give rise to any one or more of the following:

(a) Transmission of "offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy.

(b) A sound pressure level at any affected property that exceeds the background (LA90, 15 minute) noise level by more than 5dB(A). The background noise level must be measured in the absence of noise emitted from the licensed premises. The source noise level must be assessed as a LAeq, 15 minute.

(c) Notwithstanding compliance with (a) and (b) above, the noise from mechanical plant associated with the premises must not be audible in any habitable room in any residential premises between the hours of 12.00 midnight and 7.00am.

(d) A Certificate is to be submitted at the completion of all work and prior to the issue of an Occupation Certificate, from a suitably qualified Acoustic Engineer. The Certificate is to certify all plant and equipment complies with the terms of approval in relation to noise.

6. EMISSIONS

No injury being caused to the amenity of the neighbourhood by the emission of noise, smoke, smell, vibration, gases, vapours, odours, dust, particulate matter, or other impurities which are a nuisance or injurious or dangerous or prejudicial to health, the exposure to view of any unsightly matter or otherwise.

7. NOISE EMISSIONS

The use of the premises shall not give rise to:

(a) Transmission of "Offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy;

(b) A sound pressure level at any affected premises that exceeds the background (LA90) noise level in the absence of the noise under consideration by more than 5dB(A). The source noise level shall be assessed as an LA10, 15min and adjusted in accordance with the Department of Environment and Climate Changes's (DECC) guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content.

(c) A sound pressure level at any affected premises that exceeds the DECC recommended planning levels outlined in the DECC Environmental Noise Control Manual; or

(d) A sound pressure level at any affected premises that exceeds the DECC recommended maximum noise level as modified to account for the existing level of stationary noise at the receiver premises.

8. USE OF COMMON PROPERTY

No exclusive use of common property (other than for approved storage) shall occur without the prior consent of Council. In this regard the applicant is to register a restriction as to user that prohibits the separate occupation, use or disposition of the land by way of agreement, instrument or dealing including and agreement, instrument or dealing evidenced by a company's constitution or articles of association. The restriction as to user is to be registered prior to the issue of the Occupation Certificate.

9. TELECOMMUNICATION FACILITIES ON MULTI-UNIT DWELLINGS

Telecommunication facilities on new multi-unit dwellings are opposed. The Owners' Corporation is prohibited from entering into leasing agreements with telecommunication companies to erect or install any commercial telecommunication device (other than for the explicit use of the occupants) on the building.

10. EXCAVATION TO BE LIMITED

Excavation shall be limited to that shown in the approved plans. Excavation, proposed or undertaken in the certification or construction of the development, that results in additional habitable or non-habitable floor space (including storage) shall require the submission of a new development application or Section 96 application to modify the approved development. During consideration of this application construction work on site shall cease without prior agreement of Council. Failure to comply with this condition may lead to Council prosecuting or taking a compliance action against the development for breach of its consent.

B. Compliance Prior to Issue of Construction Certificate

11. SECTION 94A CONTRIBUTION

A cash contribution is payable to Waverley Council pursuant to section 94A of the Environmental Planning and Assessment Act 1979 and Waverley Council Development Contributions Plan 2006 in accordance with the following:

(a) A cost report indicating the itemised cost of the development shall be completed and submitted to council:

(1) Where the total development cost is less than $500,000:
"Waverley Council Cost Summary Report"; or,
(2) Where the total development cost is $500,000 or more:

"Waverley Council Registered Quantity Surveyor's Detailed Cost Report".

A copy of the required format for the cost reports may be obtained from Waverley Council Customer Service Centre or downloaded from:

(b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000.

(c) Should a section 96 modification result in any change to the total cost of the work, the Section 94A contribution is to be revised and amended. Prior to the issue of the Construction Certificate, evidence must be provided that the revised levy has been paid to Council in accordance with this condition.

Waverley Council Development Contributions Plans 2006 may be inspected at Waverley Council Customer Service Centre.

A development valued at $100,000 or less will be exempt from the levy.

A development valued at $100,001 - $200,000 will attract a levy of 0.5%.

A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development

12. bond required

A deposit of guarantee satisfactory to Council for the amount of $ 30,000 must be provided as security for the payment of the cost of any one or more of the following:

(a) making good any damage caused to any property of Council as a consequence of the doing of anything which the consent relates;

(b) completing any public works (such as roadwork, kerbing and guttering, footway construction, stormwater drainage and environmental controls) required in connection with the consent; and/or

The bond shall be lodged with Council prior to issue of the Construction Certificate. The bond shall be released on application no earlier than 6 months from the issue of the final occupation certificate and following remediation of any defects in public works that have arisen from construction of the approved development.

13. LANDSCAPING

The approved landscaping is to be maintained for the life of the development.

14. long service levy

A long service levy, as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, is to be paid in respect to this building work. In this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate.

Note: Council acts as an agent for the Long Service Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.35% of building work costing $25,000 or more.

15. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE

The building work, including demolition, must not be commenced until:

(a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and

(b) a Principal Certifying Authority has been appointed and Council has been notified of appointment in accordance with Section 81(A)(2)(b) of the Environmental Planning & the Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and

The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority.

16. BUILDING CODE OF AUSTRALIA

All building work must be carried out in accordance with the requirements of the Building Code of Australia.

17. noise attenuation in residential flat buildings

Noise attenuation is to be achieved in all residential units within the building by a minimum of the following standards:

(a) A wall shall have a Field Sound Transmission Class (FSTC) of not less than 50 if it separates sole occupancy units or a sole occupancy unit from a stairway, public corridor, hallway or the like;

(b) A wall separating a bathroom, sanitary compartment, laundry or kitchen in one sole occupancy unit from a habitable room (other than a kitchen) in an adjoining unit shall have a FSTC of not less than 55;

(d) A floor separating sole occupancy units must not have a FSTC of less than 50; and

(e) A floor separating a bathroom, sanitary compartment, laundry or kitchen in one sole occupancy unit from a habitable room (other than a kitchen) in an adjoining unit shall have an Impact Isolation Class of not less than 55.

Details are to be provided on the plans to the satisfaction of the Principal Certifying Authority prior to the issue of the Construction Certificate.

18. hoarding required

A standard B-Class hoarding designed and constructed in accordance with the requirements of the Work Cover Authority being erected on the street alignments of the property, prior to the commencement of building operations, and such hoardings to be maintained during the course of building operations. Details of the hoarding are to be provided to Council prior to issue of the Construction Certificate.

Where the hoarding is to be erected over the footpath or any public place, the approval of Council must be obtained prior to the erection of the hoarding.

19. GEOTECHNICAL ENGINEERS REPORT

A geotechnical report, regarding the stability of the subject site and stating that damage should not occur to any adjoining premises as a result of the proposed bulk excavation, driven type piles and shoring works, is to be submitted to the Principal Certifying Authority, Council and the owners of adjoining premises. The report is to be submitted prior to the issue of a Construction Certificate and commencement of any such works on the site.

20. DETAILS OF BULK EXCAVATION, SHORING OR PILE CONSTRUCTION

A report shall be prepared by a suitably qualified and practising Structural Engineer detailing the proposed methods of bulk excavation, shoring or pile construction, including details of vibration emissions and any possible damage which may occur to adjoining or nearby properties as a result of the proposed building and excavation works. The Report shall be submitted to the Principal Certifying Authority, Council and the owners of adjoining properties prior to the issue of a Construction Certificate.

Any practices or procedures specified in the Structural Engineer's report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into the plans and specifications together with the Construction Certificate.

21. essential services - new building

Details of the proposed essential fire safety measures/services shall be submitted to Council with the application for a Construction Certificate or be attached to the Construction Certificate, including a certificate, prepared by a person competent to do so, setting out the:

(a) basis of design;

(b) standard to which the system is to be installed; and

(c) all relevant documentation, including all drawings such as wiring diagrams, duct layouts, hydraulic schematics etc and calculations shall be submitted for Council's records.

At the completion of the installation, certification containing the following information shall be attached to the application for an Occupation Certificate or to the Occupation Certificate:

(a) inspection, testing and commissioning details;

(b) date of inspection, testing and commissioning;

(d) a statement that the service has been designed, installed and is capable of operating to the above standard.

22. SITE WASTE AND RECYCLING MANAGEMENT PLAN

A Site Waste and Recycling Management Plan (SWRMP) Checklist 2 shall be submitted to the Principal Certifying Authority for approval in accordance with Part G1, Waverley DCP 2006 prior to the issue of the Construction Certificate. In this regard, Council expects demolition and excavated material to be reused and/or recycled wherever possible.

The builder and all subcontractors shall comply with the approved SWRMP Part 1 and 2 at all times during construction. At least one copy of the SWRMP is to be available on site at all times during construction. Copies of demolition and construction waste dockets that verify the facility that received the material for recycling or disposal and the quantity of waste received, must be retained on site at all times during construction.

23. EROSION, SEDIMENT AND POLLUTION CONTROL

Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Storm water Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate.

24. Construction Vehicle Plan of Management

Submission of a "Demolition and Construction Vehicle Plan of Management" for the routing and control of construction vehicles accessing and exiting the site. Such plan to address the hours of operation, the employees' vehicles, holding areas for vehicles wanting to access the site and truck works and provide a means of ensuring vehicular and pedestrian access to adjoining resident's properties for the duration of the works. The Plan is to take into consideration any other developments currently under construction in the vicinity of the site at the time of the preparation of the plan. The "Demolition and Construction Vehicle Plan of Management" is to be approved by Council prior to the issue of a Construction Certificate and the undertaking of any demolition, remediation or construction on the site.

25. STORM WATER MANAGEMENT

Certification is to be provided from a suitably qualified professional, that the storm water system has been designed in accordance with the Water Management Technical Guidelines. Storm water system details are to be submitted in accordance with the Waverley Development Control Plan 2006 (Amendment No. 4) - Part G4 prior to the issue of a Construction Certificate. In this regard the storm water management drawings by Northern Beaches Consulting Engineers Pty Ltd Job 080914 dated November 2008 are considered to satisfy the requirements of this condition.

26. ENGINEERING DETAILS

Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with all major structural components of the development, prior to the issue of a Construction Certificate.

27. VEHICULAR ACCESS

Vehicular access and gradients of vehicle access driveway(s) within the site are to be in accordance with Australian Standard 2890.1 Parking Facilities - Off Street Car Parking with details provided on the plans prior to the issue of the Construction Certificate.

28. ACCESSIBLE CAR SPACE

A minimum of one car space for the vehicles of people with disabilities in all new or refurbished buildings which provide between 10 and 50 car parking spaces, and 2 for those which provide between 50 and 100 car spaces.

The car spaces shall be identified and reserved at all times and be in the vicinity of a lift or as close as possible to public areas and facilities. The car spaces shall have minimum dimensions of 3.2m x 5.5m and minimum headroom clearance of 2.5m for vehicles fitted with a roof mounted wheelchair rack.

A notice shall be displayed at the entrance to the car park and at each change in direction indicating the location of car spaces and the maximum headroom for vehicles.

Details are to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.

29. BICYCLE PARKING

A total of 4 bicycle parking spaces are to be provided. Such spaces are to be provided by way of a secure lockable area, individual lockers or suitable bicycle racks and are to be located within the ground floor foyer or adjacent within any forecourt or within the car parking area. Details are to be indicated on the plans prior to the issue of the Construction Certificate.

30. ACCESS

The development shall be provided with access and facilities for people with disabilities in accordance with AS1428.1 Design for Access and Mobility. Details are to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.

31. ACCESS TO MAIN ENTRY

Access in accordance with AS1428.1 shall be provided to and within the main entrance and exit points of the development. Details are to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.

32. ADAPTABLE HOUSING

Access in accordance with AS4299 - Adaptable Housing shall be provided to at least one (1) unit in the development. Details are to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.

33. DELETED

34. BASIX

The undertakings provided in the BASIX Certificate shall be provided for in the Construction Certificate plans and documentation prior to the issue of the Construction Certificate. If required, a modified BASIX Certificate shall be provided that reflects the development as approved (eg addressing any modification required via conditions of consent). Any significant works (i.e. any works not able to be considered as Exempt and Complying Development) that result from changes to the BASIX Certificate or conflict with conditions of consent require Council's consent.

The Principal Certifying Authority shall be responsible for ensuring that all the undertakings are satisfied prior to the issue of an Occupation Certificate.

The above condition is a prescribed condition under the Environmental Planning and Assessment Act Regulations clause 97A and the above BASIX commitments are mandatory and can not be modified under Section 96 of the Environmental Planning and Assessment Act 1979.

35. USE OF RENEWABLE TIMBERS

Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings so as to help protect the existing areas of rainforest. In this regard, a schedule of proposed timber products to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used.

36. ENERGY AUSTRALIA

The applicant to confer with Energy Australia to obtain that authority's needs for the provision and location of a kiosk type distribution centre on the subject land, and if deemed necessary, the applicant to make available land to that Authority for the siting of such kiosk/sub-station. Documentary evidence of compliance is to be provided to the satisfaction of the Principle Certifying Authority prior to the issue of the Construction Certificate.

37. landscaped slabs

Details shall be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate indicating the proposed method of water-proofing and drainage of the concrete slabs over which landscaping is proposed.

38. NEW KERB AND GUTTER

Kerb and gutter is to be constructed along the rear lane frontage matching the existing kerb and gutter at the eastern end of the lane. A detailed design prepared by a suitably qualified civil engineer showing details of works is to be submitted to Council’s Technical Services Division for approval prior to the commencement of works. These works are to be constructed as part of the development, at the applicant’s expense and prior to the issue of any Occupation Certificate for the development.

39. NEW VEHICLE CROSSING

A new vehicle crossing is to be provided to access the proposed basement car park. A separate application is required for the modified vehicle crossing, with all work to be carried out with the approval of and in accordance with the requirements of Council. All new vehicle crossings to be Wheel Strips instead of full width concrete driveway wherever feasible.

40. CRANES

If any materials are to be lifted over Council’s or adjoining land, a permit is to be obtained from Council’s technical Services Division, prior to the placement of any crane.

41. CONSTRUCTION ZONE REQUIRED

Prior to the issue of any construction Certificate, approval is to be obtained from Council’s Manager, Technical Services for a Truck Zone for construction purposes adjoining the site.

42. ALL BUILDING MATERIALS STORED ON SITE

All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval.

43. TREE PLAN

A landscape plan is to be submitted with the Construction Certificate showing the location of all trees on the land in relation to the proposed development, including trees to be removed. All trees and shrubs identified for retention and within 7.5m of the building work are to be provided with a tree guard and a notice on each guard indicating "This tree is the subject of a Tree Preservation Order by Waverley Council." This notice is to be in place prior to commencement of any building or demolition work. Only trees with the approval of Council for removal may be removed from the site including trees approved pursuant to this consent.

44. DILAPIDATION REPORT

A dilapidation report prepared by a practising Structural Engineer shall be submitted to the Principal Certifying Authority, Council and the owners of the adjoining properties prior to the commencement of demolition, bulk excavation or building works, detailing the current condition and the status of all buildings (both internal and external), including ancillary structures located upon the adjoining properties.

45. consultation railCorp

The applicant must consult with RailCorp as the proposed development involves significant excavation just outside the zone of influence of its rail corridor. The requirements of RailCorp, if any, must be reflected in the Construction Certificate plans for the development prior to its release under the Environmental Planning and Assessment Act 1979.

C. Compliance Prior to and During Construction

46. PRIOR TO SITE WORKS

The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of:

(a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or

(b) the name and permit number of the owner/builder who intends to do the work; and

47. home building act

The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences.

48. CONSTRUCTION SIGNS

Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works.

49. EXCAVATION AND BACKFILLING

All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property.

50. excavation below footings

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

(a) preserve and protect the building from damage; and

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

(c) must, at least seven days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

51. EXCAVATION TO BE MANAGED BY STRUCTURAL ENGINEER

Bulk excavation is to be managed by a practising structural engineer, in accordance with the specification for shoring and support, as detailed in the approved Construction Certificate.

52. obstruction to public areas

If a public place or pedestrian vehicular traffic may be obstructed because of the carrying out of work involved in the erection or demolition of a building; or a public place is required to be enclosed in connection with the erection or demolition of a building; then:

(a) a hoarding fence must be erected between the building site and the public place of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from, or in connection with, the work falling into the public place, is also to be erected;

(b) the work is to be kept lit during the time between sunset and sunrise if the work may be of a sort of danger to persons using the public place; and

53. TOILET FACILITIES

Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water.

54. NO USE OF ORGANOCHLORIN PESTICIDES

The use of organochlorin pesticides as termite barriers in new development is prohibited pursuant to Council Policy. Only physical barriers are to be used for termite control. The building shall comply with Australian Standard 3660: Protection of building from subterranean termites - prevention, detection and treatment of infestation.

55. USE OF FILL ON SITE

All fill imported on to the site shall be validated to ensure the imported fill is suitable for the proposed land use from a contamination perspective. Fill imported onto the site shall also be compatible with the existing soil characteristics for site drainage purposes.

Council may require details of appropriate validation of imported fill material to be submitted with any application for future development of the site. Hence all fill imported on to the site should be validated by either one or both of the following methods during remediation works;

(a) Imported fill should be accompanied by documentation from the supplier which certifies that the material is not contaminated based upon analyses of the material for the known past history of the site where the material is obtained; and/or

(b) Sampling and analysis of the fill material should be conducted in accordance with the DECC Sampling Design Guidelines (1995) to ensure that the material is not contaminated.

The only waste derived fill material that may be received at the development site is:

(a) virgin excavated natural material (within the meaning of the Protection of the Environment Operations Act 1997), or

(b) any other waste derived material the subject of a resource recovery exemption under cl. 51A of the Protection of the Environmental Operations (Waste) Regulations 2005 that is permitted to be used as fill material.

Any waste derived material the subject of resource exemption received at the development site must be accompanied by documentation as to the materials compliance with the exemption conditions and must be provided to the Principal Certifying authority on request.

56. contaminating material required to be removed

The following requirements apply to demolition and construction works on site:

(a) Hazardous dust is not to be allowed to escape from the site. The use of fine mesh dust proof screens or other measures are recommended. Any existing accumulations of dust (eg: ceiling voids and wall cavities) must be removed by the use of an industrial vacuum fitted with a high efficiency particle air (HEPA) filter. All dusty surfaces and dust created from work are to be suppressed by a fine water spray. Water must not be allowed to enter the street and storm water systems. Demolition is not to be performed during adverse winds, which may cause dust to spread beyond the site boundaries.

(b) All contractors and employees directly involved in the removal of hazardous dusts and substances are to wear protective equipment conforming to Australian Standard AS1716 Respiratory Protective Devices. They shall also adopt work practices in accordance with the requirements of WorkSafe's Control of Inorganic Lead at Work (NOHSC: 102(1994) and NOHSC: 2015(1994)).

(c) All lead-contaminated materials being disposed of in accordance with the DECC's Environmental Guidelines; Assessment, Classification and Management of Liquid and Non Liquid Wastes (1999) and The Protection of the Environment Operations Act 1997 (NSW).

57. DEMOLITION OR ALTERATION OF PRE 1987 BUILDINGS

At least five (5) days prior to the demolition, renovation work or alterations and additions to any building constructed before 1987, the person acting on the consent shall submit a Work Plan prepared in accordance with Australian Standard AS260-2001, Demolition of Structure and a Hazardous Materials Assessment by a person with suitable expertise and experience. The Work Plan and Hazardous Materials Assessment shall:

(a) outline the identification of any hazardous materials, including surfaces coated with lead paint;

(b) confirm that no asbestos products are present on the subject land; or

(c) particularise a method of safely disposing of the asbestos in accordance with the Code of Practice for the Safe Removal of Asbestos NOHSC 2002 (1998);

(d) describe the method of demolition;

(e) describe the precautions to be employed to minimise any dust nuisance; and

(f) describe the disposal methods for hazardous materials.

58. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS

All site works complying with the occupational health and safety requirements of WorkCover NSW.

59. CONSTRUCTION HOURS

Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on:

(a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends;

(b) Sundays and public holidays; and

(c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW.

Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000.

60. USE OF HEAVY EARTH MOVEMENT EQUIPMENT

Excavation works involving the use of heavy earth movement equipment including rock breakers and the like must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays with no such work to be carried out on Saturday, Sunday or a public holiday.

61. CONSTRUCTION NOISE - PERIODS GREATER THAN 4 WEEKS

The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver.

62. BUILDING CODE OF AUSTRALIA

All building work must be carried out in accordance with the requirements of the Building Code of Australia.

63. QUALITY OF CONSTRUCTION ACT - INSPECTIONS (RESIDENTIAL FLAT DEVELOPMENT AND OTHER RESIDENTIAL CLASS 2, 3 AND 4)

The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certification.

MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate.

The specified MANDATORY inspections are:

In the case of a Class 2, 3 and 4 building:

(a) at the commencement of the building work;

(b) prior to covering of waterproofing in any wet area for a minimum of 10% of rooms with wet area within a building;

(d) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building.

The following additional inspections are required to be undertaken by the PCA:

(a) sediment control measures prior to the commencement of building work;

(b) foundation material prior to undertaking building work;

(d) steel reinforcement, prior to pouring concrete;

(e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns; and

(f) prior to installation of fire resisting construction systems (i.e. fire rated ceilings and walls).

Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction.

64. work outside property boundary

All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council at the applicant's expense.

65. CERTIFICATE OF SURVEY - LEVELS

All construction works shall be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans. Certification from a Registered Surveyor certifying ground, upper floor/s and finished ridge levels is to be submitted to the Principal Certifying Authority during construction and prior to continuing to a higher level of the building.

66. CERTIFICATE OF SURVEY - BOUNDARIES AND LOCATION OF BUILDING

A Certificate of Survey prepared by a Registered Surveyor setting out the boundaries of the site and the actual situation of the building on the site is to be submitted to the Principal Certifying Authority to certify the building is located in accordance with the development consent plans. The Certificate is to be submitted prior to the construction of the external walls above the ground floor level of the building.

67. ENCROACH BEYOND THE BOUNDARIES

No portion of the proposed building including the foundations and basement car park is to encroach beyond the boundaries of the subject property.

68. MECHANICAL VENTILATION SYSTEMS

(a) The premises are to be ventilated in accordance with the requirements of the Building Code of Australia & relevant Australia Standards.

(b) Any proposed mechanical ventilation system shall comply with the Australian Standard AS 1668 - 1991 (Parts 1 and 2). Prior to installation, the design is to be certified by a person competent to do so. At completion of the installation of the system and prior to the issue of the Occupation Certificate, the work shall be certified by a person competent to do so. The certification shall include:

(i) inspection, testing and commissioning details;
(ii) date of inspection, testing and commissioning details;
(iii) the name and address of the individual who carried out the test; and
(iv) a statement that the service has been designed, installed and is capable of operating to the above standard.

69. SMOKE ALARM SYSTEM

Smoke alarm systems are to be installed within the building in accordance with the requirements of the Building Code of Australia.

70. STREETSCAPE WORKS - BONDI JUNCTION

The footpaths immediately adjoining the site are to be upgraded in accordance with Council's Bondi Junction Technical Manual. In this regard, the applicant is to confer with Council prior to commencement of the works.

71. STREET TREES

No existing street trees shall be removed without Council approval. A 1.8m high chain link wire fence or the like shall be erected around the existing street trees to protect them from damage during construction. Where approval is granted for the removal of a street tree the applicant is to pay for its replacement with a super advanced tree of a species nominated by Council.

72. TREE PROTECTION

Precautions shall be taken when working near trees to ensure their retention, including the following:

(a) Do not store harmful or bulk materials or spoil under or near trees;

(b) Prevent damage to bark and root system;

(d) Do not add or remove topsoil from under the drip line;

(e) Do not compact ground under the drip line;

(f) Do not mix or dispose of liquids within the drip line of the tree; and

(g) All trees marked for retention must have a protective fence/guard placed around a nominated perimeter.

73. RETAINED TREES

The following trees on neighbouring sites are to be retained and protected:

Species Location Action

Mango sp Rear, southern corner boundary, on 11 Waverley Crescent Retain and protect as per conditions listed below

Brushbox Front, northern corner boundary, on 3 Waverley Crescent Retain and protect as per conditions listed below

Soil levels are not to be changed around any trees.

No mechanical excavation shall be undertaken within the tree canopy spread (within the dripline).

Boundary fence, or another form of temporary fencing is to remain in place for the duration of this project to prevent physical damage to either of the above trees. Any temporary fencing shall be no less than a 1.8m chain link wire fence.

The converter pit located in the northern corner of the subject site and discharging to Waverley Crescent shall be located no closer than 4m from the trunk of the existing Brushbox in 3 Waverley Crescent.

If any tree roots are exposed during nay approved works then roots smaller than 30mm are to be pruned as per the specifications below. Any roots greater than 30mm are to be assessed by a qualified arborist before any pruning is undertaken.

If tree roots are required to be removed for the purposes of constructing the approved works they shall be cut cleanly by hand, by an experienced Arborist/Horticulturist (with a minimum of the Horticulture Certificate or Tree Surgery Certificate).

It is the arborist’s responsibility to determine if such root pruning is suitable. If there are any concerns regarding this process then Waverley Council’s Tree Management Officer is to be contacted to make the final determination.

If any trees on neighbouring properties required pruning then permission must be gained from the owner of the tree(s) and an Application to Prune or Remove Trees on Private Property is to be presented to Council for processing.

D. Compliance Prior to Occupation or During Occupation

74. SYDNEY WATER

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 website 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.

75. noise attenuation certificate

On completion of any building containing residential units and prior to the issue of the Occupation Certificate the applicant shall:

(a) Engage and an Australian Association Acoustic Consultant to conduct a test for noise attenuation to classify the buildings performance on the National Star Rating Table and to confirm compliance with Condition 16; and

(b) Lodge with Council for public record, the noise attenuation star rating results.

76. FINAL OCCUPATION CERTIFICATE

The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied.

77. LIGHTING

Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 Control of the Obtrusive Effects of Outdoor Lighting.

78. LANDSCAPE PLAN

The site is to be landscaped and turfed in accordance with the approved landscaped plan with the landscape works completed prior to the issue of the Occupation Certificate.

79. TACTILE NUMBER IN LIFT

The applicant is advised that with regard to the provision of the lift in the building, it will be necessary for tactile numbers to be placed on each level of the building and within the lift to assist visually impaired people.

80. COMPOSTING

The development shall accommodate the provision of a composting service for residents and the scheme shall be under the responsibility of the Body Corporate and provided prior to issuing of the Occupation Certificate.

81. STREET NUMBER/S

The street number for the property shall be a minimum of 75mm high and shall be positioned 600mm-1500mm above ground level on the site boundary that fronts the street. Should the number be fixed to an awning then it shall be a minimum 150mm high.

82. LIGHTS

All external area lights and car parks to multi-unit dwellings shall be on sensor switches to save energy and reduce light spill to the sky; low voltage solar powered lights to front entry footpaths are acceptable for continuously illuminated lighting.

83. PARKING PERMITS

In accordance with Council's Policy, Residents Preferred Parking permits will not be issued for this development when completed.

84. MAINTENANCE OF TREES

The replacement local native trees to be planted shall be maintained in a healthy and vigorous condition until they attain a height of 4m whereby they will be protected by Council’s Tree Preservation Order. Any of the trees found faulty, damaged, dying or dead shall be replaced with the same species at no cost to Council.

0501

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CITATION:	Waverley Crescent Pty Limited v Waverley Council [2010] NSWLEC 1195
PARTIES:	APPLICANT Waverley Crescent Pty Limited RESPONDENT Waverley Council
FILE NUMBER(S):	10950 of 2009
CORAM:	Dixon C
KEY ISSUES:	CONSENT ORDERS - DEVELOPMENT CONSENT :- residential flat building
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 Waverley Local Environmental Plan [Bondi Junction] 2010 Waverley Development Control Plan 2008
CASES CITED:	Segal&Anor V Waverley Council [2005] NSWCA 310
DATES OF HEARING:	15 June 2010
EX TEMPORE JUDGMENT DATE:	15 June 2010
LEGAL REPRESENTATIVES:	Mr I Hemmings (barrister) instructed by Ms S Hill Mr M Staunton (barrister) instructed by Mr S Patterson

Species	Location	Action
Mango sp	Rear, southern corner boundary, on 11 Waverley Crescent	Retain and protect as per conditions listed below
Brushbox	Front, northern corner boundary, on 3 Waverley Crescent	Retain and protect as per conditions listed below