Yaragonda v Auburn City Council - [2009] NSWLEC 1436

Land and Environment Court

of New South Wales

CITATION: Yaragonda & Anor v Auburn City Council [2009] NSWLEC 1436
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Jyothirmayi Yaragonda & Chaitanya Ambati
RESPONDENT
Auburn City Council

FILE NUMBER(S): 10786 of 2009

CORAM: Fakes C

KEY ISSUES: DEVELOPMENT APPLICATION :- Contruction of new dwelling - conditions of approval - streetscape - garage door width

LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 82(A), s 97(1)
Land and Environment Court Act 1979 s 34, s 34(4)(b)

DATES OF HEARING: 23/12/09

EX TEMPORE JUDGMENT DATE: 24 December 2009

LEGAL REPRESENTATIVES: APPLICANT
In person
RESPONDENT
Mr A Hudson, solicitor
SOLICITORS
Wiltshire Webb Staunton Beattie Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Fakes C

24 December 2009

10786 of 2009 Jyothirmayi Yaragonda & Amabata Chaitanya v Auburn City Council
JUDGMENT

1 COMMISSIONER: This is an application pursuant to s 97(1) of the Environmental Planning and Assessment Act 1979 (the Act) against conditions of consent imposed by Auburn City Council (the council). The conditions were imposed as part of an approval of a s 82(A) review of determination for the demolition of existing structures and the construction of a two storey dwelling with attached single garage. The development application is DA-454/2008/A for lot 41 Sec 1 DP 12474, 46 Bombay Street, Lidcombe. Consent was granted on 24 November 2009.

2 The applicants represented themselves, with assistance provided by their architect Mr Kan Chandra. The respondent was represented by Mr Anthony Hudson, Solicitor, Wiltshire Webb Staunton Beattie Lawyers. Representing council were Mr Karl Okorn, Town Planner and Team Leader – Development Assessment, Mr Michael Lawani, Town Planner and Mr Siva Sivakumar, Drainage Engineer.

3 The conditions contested by the applicant are summarised as:

4 In summary, the council imposed the conditions to ensure compliance with the relevant sections of the Auburn Development Control Plan 2000– Detached Dwellings and Dual Occupancy DCP (ADCP) – effective from 25 October 2005 and Part H of the ADCP – Car Parking and Loading.

5 This matter commenced as a conciliation conference pursuant to s34 of the Land and Environment Court Act 1979 (the Court Act). The conciliation conference started with an on-site conference. During this process the council decided that they would not press the condition relating to privacy. However, as no agreement satisfactory to both parties was reached with respect to the width of the garage door and the driveway, the conciliation conference was terminated. The parties then agreed to me hearing and disposing of the matter pursuant to s 34(4)(b) of the Court Act.

6 The on-site hearing commenced with a walk around surrounding streets to view recent approvals of residential development similar to that proposed by the applicant. Partly at issue were the applicants’ perception of an inconsistency in council’s decision making and the application of the planning instruments.

7 The area is dominated by single storey detached dwellings, of brick or fibro construction, dating mostly from the 1930s to the 1960s. The majority have provision for off-street parking, many with detached garages located at the rear of the properties. Recent developments are two storey brick dwellings with attached single or double garages located at the front of the building.

8 It was considered by both parties that this is an area in transition and that two storey dwellings would become more common.

9 The site inspection showed that some properties of a similar width to the applicants’ had double garages and no set-back behind the building line. Others had single garages. Some had extensive areas of paving that extended from the driveway to cover significant areas of the front garden. According to Mr Okorn, the apparent inconsistency in approved garages was mostly due to changes in the relevant sections of the ADCP with more stringent modifications coming into effect in October 2006. He considered that the extensive paving on a number of properties would be non-compliant and not something approved by council.

The issues

10 The plans submitted by the applicants to council as part of their s 82(A) appeal show a painted roller door to the garage of 5.0 m. The applicants contend that this is a single garage that complies with ADCP. The council’s condition reduces the width of the garage door to 3.5 m on the basis that the reduced width protects the visual appearance of the streetscape and meets the requirements of the ADCP.

11 The applicants accept that the width of the driveway at street level should be 3.5 m as council requires, however, they contend that the paving should fan out to the width of the garage door. This is somewhat inconsistent with the plans submitted by the applicant that show a paved area in front of the garage 5.5 m wide adjoining a paved pathway of 1.5 m wide.

12 The council marked its required changes on the approved plans. The marked changes show the paved driveway limited to 3.5 m in front of the garage door separated from the pathway by a deep soil zone 2 m wide and 5 m long. At the eastern end of the deep soil zone is a paved area connecting the driveway with the pathway to the front entrance. The council made the changes to protect the visual appearance of the streetscape.

The assessment framework

13 The relevant sections of the Auburn Development Control Plan 2000– Detached Dwellings and Dual Occupancy DCP (ADCP) are mostly found in section 4.0 Access and Car Parking. The objectives of this section are:

a. To provide convenient and safe access and parking that meets the needs of all residents and visitors.
b. To encourage the integrated design of access and parking facilities to minimise visual and environmental impacts.

A specific performance criteria is that:

Garages should not dominate the appearance of buildings or the streetscape.

The relevant development standards that apply are:

D4.1 On sites less than 15 m width car parking is to be stacked or located at the rear

D4.3 Parking arrangements must comply with the provisions of Part H – Parking and Loading of Auburn DCP. [The relevant objective in this part is 3.0 (e) To encourage the integrated design of access and parking facilities to minimise visual and environmental impacts. The relevant development standards are: accessways and driveways are to comply with AS 2890 – 1993 (Parts 1-5) Parking Facilities); and, unless elsewhere specified, shall have a minimum driveway access of 3.5 m].

D4.9 Garages must not be wider than 6m or 50% of the dwelling frontage (whichever is the lesser).

D4.16 Driveways are to be a maximum of 3.5 m in width at the property boundary.

The evidence

14 As stated in para 10, the applicants contend that the proposed garage door of 5m wide complies with council’s DCP clause D4.9 as the dwelling frontage is 10.4 m. They contend that there is no other quantifiable development standard in the DCP that can be applied and that the council’s decision of 3.5 m has no objective basis.

15 Mr Hudson questioned Mr Okorn’s rationale behind the council’s decision to limit the applicants’ garage door to 3.5 m. Mr Okorn stated that the DCP must be considered in its entirety. He stated that there was a clear intent in the 2006 amendments of the sections of the DCP relating to garages to reduce the cumulative impact of garages and paving on the streetscape particularly in areas undergoing transition. On the site inspection, Mr Okorn pointed out examples of developments approved before the amendments to the DCP to illustrate why the changes had been made. He also stated that the council was mindful not to exacerbate the current situation.

16 With respect to the applicants’ proposal, it was considered by council that their property has a frontage of less than 15 m and is thus limited to a single garage with stacked parking. The proposed width of 5 m would visually dominate the building and therefore not comply with the performance criteria that “Garages should not dominate the appearance of buildings or the streetscape”. Mr Okorn stated that the proposal was too close to the dimensions of a double garage but would not quite meet the requirements of a double garage under the Australian Standards. He considered that, based on the merits and the objectives of the DCP, that a 3.5 m door was a reasonable compromise between the standard single garage of 2.4 m and that proposed by the applicants. He considered that this would discourage its use as a double garage by successors in title and would provide additional space for storage.

17 Mr Okorn stated that as a team leader, the issue of consistency was regularly considered and that he met with other team leaders to ensure this. On the site inspection, Mr Okorn pointed out recent developments where 3.5 m had been applied.

18 The council’s markings on the plans show the reduced roller door at the southern edge of the garage and the section to the north, that was previously roller door, to be a wall with a window. In Mr Okorn’s opinion, the additional glazing at the front of the dwelling improved its presentation to the street and reduced the visual impact of the garage.

19 With respect to the width of the driveway, Mr Okorn stated that restricting the paved area to that shown on the marked plans would increase the area available for deep soil planting and thus improve environmental outcomes. This would comply with development standard D3.11 “Front gardens are to be deep soil and planted where there is no driveway and pathway”.

20 The applicants restated their contention that their amended plans comply with the DCP and stated that if 3.5 m was a council standard it should be clearly stated in the DCP otherwise it is just council’s opinion. Mr Chandra stated that with respect to the street character and the objectives of the DCP that he has sought to integrate the design of the access and parking facilities to minimise the visual impacts by incorporating architectural elements into the façade and an overhang. In the view of the applicants and Mr Chandra, the streetscape will be improved by the development.

Findings

21 After hearing the evidence and viewing the plans and the surrounding streets, the main issue is the visual impact of garages and associated driveways on the streetscape. I conclude that the council has taken a consistent approach to its interpretation of the DCP and has taken a considered approach to minimise the cumulative future impact of garages on the streetscape. I find that the council’s determination of the width of the garage door and therefore the driveway of 3.5 m to be an acceptable compromise based on the merits of the development.

22 The council’s draft conditions of consent will need to be amended to reflect the findings in this judgement and the conditions not pressed by the council. Directions will be given for the filing of the conditions after discussions between the parties. Final Orders will be made in Chambers and will take the following form:

_________________________

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Yaragonda & Anor v Auburn City Council

Development Application DA-454/2008/A

Land to be developed

Lot 41 Sec 1 DP 12474, 46 Bombay Street, LIDCOMBE

Proposed development Demolition of existing structures and construction of two storey dwelling with attached single garage

The consent is granted subject to the following conditions:

1. Approved Plans

The development is to be carried out in accordance with the approved stamped plans as numbered below:

Plan Number

Prepared By

Revision No.

Dated

DA/01 – Site Plan Puma Design Architects B 31/08/2009

DA/02 – Ground Floor Plan (as amended in red) Puma Design Architects B 31/08/2009

DA/03 – First Floor Plan Puma Design Architects B 31/08/2009

DA/04 – Landscape Plan Puma Design Architects B 31/08/2009

DA/05 – Section & Elevations Puma Design Architects B 31/08/2009

DA/06 – Elevations Puma Design Architects B 31/08/2009

DA/07 – Fence Details Puma Design Architects B 31/08/2009

Basix Certificate No. 223945S_02 Department of Planning - 24/08/2009

2211 S1 - Stormwater Plan (as amended in red) Consulting Design & Inspection Engineers B 15/09/2009

Schedule of Finishes - - -

except as otherwise provided by the conditions of this determination (Note:- modifications to the approved plans will require the lodgement and consideration by Council of a modification pursuant to Section 96 of the Environmental Planning and Assessment Act).

Reason :- to confirm and clarify the terms of Council’s approval.

2. Time period of consent

This consent shall lapse five (5) years from the date of determination unless the approved building, engineering or construction work has been physically commenced in accordance with this consent.

Development consent for the use of land does not lapse if the approved use of any land, building or work is actually commenced prior to the date on which the consent would otherwise lapse.
Reason :- to satisfy the requirements of Section 95 of the Environmental Planning and Assessment Act.

3. Width of Garage Roller Door

The width of the garage roller door shall be reduced to a width of 3500mm. in this regard, a window shall be provided within the garage facade as marked in red on the approved plans. Amended details shall be submitted to the Principal Certifying Authority for approval prior to the issue of the Construction Certificate.
Reason :- to protect the visual appearance of the streetscape and to ensure single garage is provided in accordance with Council’s Development Control Plan requirements.

4. Width of Internal Driveway

The width of the internal driveway shall be 3.5m and shall be aligned to the garage door as marked in red on the approved plans.

Details shall be submitted to the Principal Certifying Authority for approval prior to the issue of the Construction Certificate.
Reason :- to protect the visual appearance of the streetscape.

5. Deleted.

6. Privacy – Rear Patio

The north-east and south-west elevations of the rear patio/bbq area shall be screened to a height of 1.8m with lattice or similar material, having a minimum density of 85%.

Details shall be submitted to the Principal Certifying Authority for approval prior to the issue of the Construction Certificate.
Reason :- to maintain reasonable levels of amenity to adjoining residential development.

7. Stormwater Disposal

Stormwater generated from the proposed roof area of the subject development shall be directed towards Bombay Street via a charged stormwater system. In addition to this an absorption trench shall be provided for the driveway and any paved areas.

Reason

8. Submission of Full Stormwater Disposal Details

Reason

9. Auburn DCP 2007: Section 94 Development Contributions

Development Contributions are payable in accordance with Auburn Council Council’s Section 94 Development Contribution Plan 2007, which has been prepared under Section 94 of the Environmental Planning and Assessment Act 1979, as amended.

The amounts payable will be adjusted in accordance with the section titled Review of Contribution rates and are generally indexed on a quarterly basis by the Consumer Price Index CPI (all Groups Sydney) unless otherwise stated in the plan.

Contributions will be adjusted at the payment date in accordance with the plan and payment is to be made prior to the issue of a Construction Certificate.

Council’s Development Contribution Plan 2007 is available for inspection at Council’s Customer Services Centre, Civic Place, 1 Susan Street, Auburn or on line at
Reason : To ensure that the development complies with the Auburn DCP 2007: Section 94 Development Contributions.

10. Auburn DCP 2007 - LGA Wide

A sum of $ 1619.65 is to be paid to Council for the purpose of LGA Wide plans being the provision of open space and recreation facilities, community facilities, accessibility and traffic works, town centre upgrades, car parking and Council's administration of the development contributions framework.

The above sum is broken down to the following items:

Item

Amount

Community Facilities

$399.63

Public Domain

$883.83

Accessibility and Traffic

$243.16

Administration

$93.03

TOTAL

$1619.65

Reason : to provide open space and recreation facilities, community facilities, accessibility and traffic works, town centre upgrades, car parking and Council's administration of the development contributions framework.

11. Submission of Construction Certificate

Site works are not to commence until such time that a construction certificate for the proposed works has been issued by Council or an Accredited Certifier.

NOTES:

Where an Accredited Certifier issues a construction certificate, a copy of the following documents must be forwarded to Council within 7 days of issue, together with payment of the Council’s adopted registration fee: determination; application to which it relates; construction certificate issued; plans and specifications; any fire safety schedule; and any other documents lodged with the certificate.

Any modification involving building works to the approved development made under Section 96 of the Environmental Planning and Assessment Act 1979 requires the submission of an amended construction certificate.

Reason

12. No alteration without prior Council approval

The completed building is not to be altered externally in character or colour without the prior consent of Council.
Reason :- to ensure the external appearance of the development is not obtrusive or offensive and does not degrade the visual quality of the surrounding area.

13. Appointment of Principal Certifying Authority/Notice of Commencement of Work

Site works are not to commence until:-

a) a construction certificate for the building work has been issued by the consent authority, and
b) the person having the benefit of the development consent has:-

i) appointed a principal certifying authority for the building work, and
ii) notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and

b1) the principal certifying authority has, no later than 2 days before the building work commences:-

i) notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and
ii) notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

b2) the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:-

i) appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and
ii) notified the principal certifying authority of any such appointment, and
iii) unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

c) the person having the benefit of the development consent has given at least 2 days’ notice to the council of the person’s intention to commence the erection of the building.
Reason :- to comply with the requirements of Section 81A of the Environmental Planning and Assessment Act

14. Principal Certifying Authority

1) The person having the benefit of a development consent or complying development certificate for development involving building work or subdivision work may appoint the consent authority, the council or an accredited certifier as the principal certifying authority for the development.

1A) Despite subsection (1), such an appointment may not be made by any contractor or other person who will carry out the building work or subdivision work unless the contractor or other person is the owner of the land on which the work is to be carried out.

2) Despite subsection (1), an accredited certifier must not be appointed as the principal certifying authority for development involving subdivision work unless the subdivision to which the work relates is of a kind identified by an environmental planning instrument as one in respect of which an accredited certifier may be a certifying authority.
3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied:-

a) that a construction certificate or complying development certificate has been issued for such of the building work or subdivision work as requires development consent and over which the principal certifying authority has control, before the work commences on the site, and
b) that the principal contractor for the work is the holder of the appropriate licence and is covered by the appropriate insurance, in each case if required by the Home Building Act 1989 , before any residential building work over which the principal certifying authority has control commences on the site, unless the work is to be carried out by an owner-builder, and
c) that the owner-builder is the holder of any owner-builder permit required under the Home Building Act 1989 , before an owner-builder commences on the site any residential building work over which the principal certifying authority has control, and
d) that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions (if any) as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority, before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work, and
e) that any preconditions required by a development consent or complying development certificate to be met for the work before the issue of an occupation certificate or subdivision certificate have been met, before the principal certifying authority issues the occupation certificate or subdivision certificate.

4) A principal certifying authority must also comply with such other requirements of a like or different nature as may be imposed on principal certifying authorities by the regulations.

Note. Section 81A prohibits the commencement of building work or subdivision work unless the consent authority has been notified of the appointment of a principal certifying authority for the work. Section 109D (2) prohibits the issue of an occupation certificate authorising the occupation and use of a new building except by the principal certifying authority appointed for the erection of the building. Section 109D (3) prohibits the issue of a subdivision certificate for a subdivision involving subdivision work except by the principal certifying authority appointed for the carrying out of the subdivision.
Reason :- to comply with the requirements of Section 109E of the Environmental Planning and Assessment Act.

15. Provision of Street Numbers

A street number is to be displayed in a prominent position at the entrance to the premises. Numbers are to be of a colour contrasting with the wall to which they are affixed.
Reason :- to clearly identify the street number of the property.

16. Compliance with the Building Code of Australia

All building work must be carried out in accordance with the requirements of the Building Code of Australia.
Reason :- to ensure compliance with the requirements of the Building Code of Australia and to comply with Clause 98 of the Environmental Planning and Assessment Regulation 2000.

17. Insurance requirements under the Home Building Act 1989

A contract of insurance for residential building work must be in force before any building works commence, where the works are being undertaken by a builder and tradesperson and the works have a market value of greater than $12,000 (or as varied from time to time by the Home Building Act 1989) .

If the work is to be carried out as an owner-builder, an Owner-builder Permit must be obtained if the market value of the labour AND materials needed to complete the work is greater than $5,000 (or as varied from time to time by the Home Building Act 1989).

NOTE: Evidence of the contract of insurance or owner builder permit, if required, must be submitted with the application for construction certificate. The construction certificate will not be released by Council unless this evidence is provided.
Reason :- to comply with Clause 98 of the Environmental Planning and Assessment Regulation 2000.

18. Replacement of Principal Certifying Authorities

Unless the relevant authority so approves in writing, a person may not be appointed to replace another person as the principal certifying authority for development.

A principal certifying authority appointed to replace another principal certifying authority must ensure that notice of the appointment and of the approval of that appointment is given to the consent authority (and, if the consent authority is not the council, to the council) within 2 days of the appointment.
Reason :- to comply with the requirements of Section 109EA of the Environmental Planning and Assessment Act and clause 162 of the Environmental Planning and Assessment Regulation.

19. Notice to Allow Inspections

To allow a principal certifying authority or another certifying authority time to carry out critical stage inspections or any other inspections required by the principal certifying authority, the principal contractor for a building site, or the owner-builder, must notify the principal certifying authority at least 48 hours before building work is commenced at the site if a critical stage inspection is required before the commencement of the work.
Reason :- to comply with the requirements of Clause 163 of the Environmental Planning and Assessment Regulation.

20. Erection of Signs

A rigid and durable sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:-

a) showing the name, address and telephone number of the principal certifying authority for the work, and
b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and
c) stating that unauthorised entry to the work site is prohibited.

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

Note: Principal certifying authorities and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which currently imposes a maximum penalty of $1,100.

Reason :- to comply with the requirements of Clause 98A and 136B of the Environmental Planning and Assessment Regulations.

21. BASIX Requirements

Under Clause 97A(3) of the Environmental Planning & Assessment Regulation 2000, it is a condition of this development consent that all the commitments listed in each relevant BASIX Certificate for the development are fulfilled. In this condition:-

a) Relevant BASIX Certification means:-

i) A BASIX Certificate that was applicable to the development when this development consent was granted (or, if the development consent is modified under Section 96 of the Act, a BASIX Certificate that is applicable to the development when this development consent is modified) or;
ii) If a replacement BASIX Certificate accompanies any subsequent application for a construction certificate, the replacement BASIX Certificate; and

b) BASIX Certificate has the meaning given to that term in the Environmental Planning & Assessment Regulation 2000.

22. Construction/Demolition Hours

Site works, building works and demolition works, including the delivery of materials or equipment to and from the property are to be carried out between the hours of 7.00 am and 6.00 p.m. only from Mondays to Fridays and between 8.00 am and 4.00 p.m. only on Saturdays. No construction works or deliveries for the construction are to take place on Sundays or public holidays.

Prior to commencement of any demolition or construction work the applicant is to erect signs on the site, which are clearly visible from the footpaths adjoining the site boundaries, which state the permitted construction/demolition hours. These signs must also state “Any instances of site works, building works, demolition works or deliveries outside the permitted hours can be reported to Auburn Council on 9735-1222 during office hours or 0417-287-113 outside office hours”.
Reason :- to reduce nuisance to the surrounding properties during the construction period.

23. Information required prior to the issue of Construction Certificate

The following documentation (where applicable) is to be submitted to Council or the accredited certifier, prior to the granting of the construction certificate :

a) Detailed building plans and specifications containing sufficient information to verify that the completed building will comply with the Building Code of Australia.

Reason :- to ensure that adequate information is submitted to enable assessment or that the development can proceed with the concurrence of others.

24. Infrastructure Fee

An infrastructure inspection fee in accordance with Council’s Fees and Charges Schedule shall be paid prior to the issue of the Construction Certificate. The amount may be obtained by calling Council’s Customer Services unit.
Reason :- to contribute to the cost of inspection and identification of any damage to Council’s infrastructure as a result of the development.

25. Maintain plans on-site

A copy of the construction certificate, the approved plans & specifications and development consent conditions must be kept on the site at all times and be available to the Council officers upon request.
Reason :- to ensure a record of the approved plans are readily available.

26. PCA – Inspection of works – general & site management

The building works are to be inspected by the principal certifying authority (or other suitably qualified person on behalf of the applicant if permitted by the PCA) to monitor compliance with Council’s approval and the relevant standards of construction.

Documentary evidence of compliance with Council’s approval and relevant standards of construction is to be maintained by the principal certifying authority.
Upon inspection of each stage of construction, the principal certifying authority (or other suitably qualified person on behalf of the applicant) is also required to ensure that adequate provisions are made for the following measures ( as applicable ), to ensure compliance with the terms of Council's approval:

Sediment control measures

Provision of perimeter fences or hoardings for public safety and restricted access to building sites.

Maintenance of the public place free from unauthorised materials, waste containers or other obstructions.

Reason :- to ensure the development is adequately monitored during the construction phase.

27. Items not to be placed on roadway

The following items must not be placed on the footpath, roadway or nature strip at any time:-
a) Building materials, sand, waste materials or construction equipment;
b) Bulk bins/waste skips/containers; or
c) Other items that may cause a hazard to pedestrians.

Reason :- to ensure the public is not inconvenienced, placed in danger and to prevent harm to the environment occurring.

28. Sign to be erected concerning unauthorised entry to the site

A sign must be erected in a prominent position stating that unauthorised entry to the site is not permitted. The sign must also name the builder or other person responsible for the site and a telephone number at which the builder or other person can be contacted outside working hours. Where Council is not the Principal Certifying Authority, the sign shall also display the name and contact details of the nominated Principal Certifying Authority. The sign is to be removed when the building works have been completed.
Reason :- to restrict public access to the site and to provide suitable contact details in a clear and conspicuous position.

29. Toilet accommodation for people working at the site

Suitable toilet accommodation is to be provided at the work site at all times. If temporary toilet accommodation is proposed, it must:-

Have a hinged door capable of being fastened from both inside and outside,

Be constructed of weatherproof material,

Have a rigid and impervious floor; and

Have a receptacle for, and supply of, deodorising fluid.

Reason :- to ensure suitable toilet accommodation is provided for workers.

30. Survey Report

A Registered Surveyors check survey certificate is to be forwarded to the Principal Certifying Authority (and a copy is to be forwarded to the Council, if the Council is not the principal certifying authority), detailing compliance with Council’s approval at the following stage/s of construction :
(Setbacks and levels at commencement – new dwellings)
a) Prior to construction of the first completed floor/floor slab (prior to pouring of concrete), showing the area of land, building and boundary setbacks and verifying that the building is being constructed at the approved levels.

(Setbacks and levels at completion – new dwellings)
b) On completion of the erection of the building showing the area of the land, the position of the building and boundary setbacks and verifying that the building has been constructed at the approved levels.
Reason :- to ensure each stage of the development complies with the approved plans.

31. Fencing of Demolition and Construction Sites – Rental details to be provided to the PCA

Public access to the site and building works, materials and equipment on the site is to be restricted, when work is not in progress or the site is unoccupied.

A temporary hoarding or fence is to be provided to protect the public, located to the perimeter of the site (unless the site is separated from the adjoining land by an existing structurally adequate fence, having a minimum height of 1.5 metres). Hoardings or fences are to have a minimum height of 1.8 metres and be constructed of solid plywood sheeting (painted white) or of cyclone wire fencing with geotextile fabric attached to the inside of the fence, to provide dust control.

Hoardings or fences are to be structurally adequate and be constructed in a good and workmanlike manner and the use of poor quality materials or steel reinforcement mesh as fencing is not permissible.

The public safety provisions and temporary fences must be in place prior to the commencement of any demolition, excavation or building works and be maintained throughout construction.
NOTE: Should ANY part of the fence or hoarding encroach beyond the boundaries of the site, it will be necessary to:-

Make payment to Council for the rental of the road reserve area in accordance with Council’s adopted charges (per metre per month – minimum 3 months) BEFORE the fence/hoarding is erected.

Supply evidence that the road reserve rental fee has been paid to the PCA and to any authorised Council officer.

Comply with Council’s specifications for the erection of Class A Hoardings.

Reason :- to provide protection to public places and to prevent unauthorised access to the site.

32. Sedimentation Control

Prior to the commencement of site works, the following measures are to be implemented on the site to assist with sedimentation control during the construction phase of the project:-

a) A dish shaped diversion drain or similar structure will be constructed above the proposed building works to divert run-off to a stable discharge area such as dense ground cover. This diversion drain is to be lined with turf or otherwise stabilised.
b) A sediment-trapping fence using a geotechnical fabric specifically designed for such purpose and installed to manufacturer’s specifications is to be placed below the construction area.
c) Vegetation and/or existing building structures will be cleared from the construction site only, other areas to remain undisturbed.
d) Restricting vehicle access to one designated point and having these driveways adequately covered at all times with blue metal or the like.
e) A vehicle wheel wash, cattle grid, wheel shaker or other appropriate device, shall be installed prior to commencement of any site works or activities, to prevent mud and dirt leaving the site and being deposited on the street.
f) Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footways or in any other locations which could lead to the discharge of materials into the stormwater drainage system.
g) Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls.
h) The installation of gutters, downpipes, and the connection of downpipes to the stormwater disposal system prior to the fixing of the roof cladding.

Such measures are to be maintained at all times to the satisfaction of Council and the PCA. Failure to do so may result in the issue of penalty infringement notices.
Reason :- to minimise soil erosion and control sediment leaving the site during construction and to prevent water pollution from occurring.

33. Display of a warning sign for soil and water management

Throughout the construction/remediation/demolition period, a warning sign for soil and water management must be displayed on the most prominent point of the building site, visible to both the street and site works.
Reason :- to ensure all building workers are aware of the need to maintain the sediment and erosion control devices.

34. Excavations extending below the base of footings of adjoining development

Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must preserve and protect the building from damage and, if necessary, underpin and support the adjoining building in an approved manner. The person causing the excavation must give the owner of the adjoining property at least seven (7) days written notice of its intention to excavate below the level of the base of the footing. The person must also furnish the adjoining property owner with particulars of the proposed work.
Reason :- to ensure the support for neighbouring buildings.

35. Noise from construction activities

Noise from construction activities associated with the development shall comply with the NSW Environment Protection Authority’s Environmental Noise Manual – Chapter 171 and the Protection of the Environment Operations Act 1997 .

a) Level Restrictions:-

i) Construction period of 4 weeks and under:-

1) the L ₁₀ sound pressure level measured over a period of not less than 15 minutes when the construction site is in operating must not exceed the background level by more than 20 dB(A).

ii) Construction period greater than 4 weeks and not exceeding 26 weeks:-

1) the L ₁₀ sound pressure level measured over a period of not less than 15 minutes when the construction site is in operating must not exceed the background level by more than 10 dB(A).

iii) All possible steps should be taken to silence construction site equipment.

Reason :- to ensure noise arising from construction activities is in accordance with relevant legislation and EPA requirements.

36. Dial before you dig

Dial Before You Dig is a free national community service designed to prevent damage and disruption to the vast pipe and cable networks which provides Australia with the essential services we use everyday – electricity, gas, communications and water.
Before you dig call “Dial before you dig” on 1100 (listen to the prompts) or facsimile 1300 652 077 (with your street no./name, side of street and the distance to the nearest cross street) or register on line at for underground utility services information for any excavation areas.
The Dial Before You Dig service is also designed to protect Australia’s excavators. Whether you are a back yard renovator, an individual tradesman or a professional excavator the potential for injury, personal liability and even death exists every day. Obtaining accurate information about your work site significantly minimises these risks.
Reason: To ensure that essential services such as electricity, gas, communications and water are not affected by excavation or construction.

37. Off-site soil disposal

Any soil disposed of offsite shall be classified in accordance with the procedures in the NSW EPA Environmental Guidelines: Assessment, Classification & Management of Liquid & Non-Liquid Wastes (1999).
Reason :- to ensure soil disposed off-site is classified in accordance with relevant EPA requirements.

38. Driveway surface treatment

Driveway surface treatments must finish at the property boundary.
Reason :- to ensure compliance with Council’s Development Control Plan requirements.

39. Driveway Crossover Width – Residential

Driveway crossovers are to be a maximum of 3.5 metres in width at the front property boundary.
Reason: - to ensure the width of driveway crossovers to residential dwellings is consistent with the requirements of the Detached Dwellings and Dual Occupancy Development Control Plan.

40. Demolition of buildings

The building/s shall only be demolished in accordance with the requirements of AS 2601-2001 "The Demolition of Structures".
Amongst others, precautions to be taken shall include compliance with the requirements of the WorkCover Authority of New South Wales, including but not limited to:-

a) Protection of site workers and the general public.
b) Erection of hoardings where appropriate.
c) Asbestos handling and disposal where applicable.
d) Any disused service connections shall be capped off to Council's requirements.
e) The disposal of refuse is to be to an approved waste disposal depot.

Reason :- to ensure protection of the public, environment and to uphold public health standards. This also complies with the requirements of clause 92 of the Environmental Planning and Assessment Regulation 2000.

41. Demolition – Lead Paint Disposal

The demolition and disposal of materials incorporating lead such as lead paint and dustpaint shall be conducted in accordance with AS2601-2001 Demolition of Structures . Removal, cleaning and disposal of lead-based paint shall conform with relevant EPA guidelines including the Lead Safe A renovator’s guide to the dangers of lead , NSW EPA, 1998. Hazardous dust shall not be allowed to escape from the site. Any existing accumulations of dust (eg; ceiling voids and wall cavities) shall be removed by the use of an industrial vacuum fitted with a high efficiency particulate air (HEPA) filter. All dusty surfaces and dust created from work shall be suppressed by a fine water spray. Water shall not be allowed to enter the street and stormwater systems. Demolition shall not be performed during high winds, which may cause dust to spread beyond the site boundaries. Please note that Council may require testing to verify that the soil lead levels are below acceptable health criteria.
Reason :- to ensure the disposal and demolition of materials incorporating lead is carried out in a safe manner in accordance with relevant regulations.

42. Demolition – common sewerage system

If the land to which the application relates is served by a common sewerage system that is also used by others, then measures must be placed in effect and prior to the commencement of work to ensure the operation of the sewerage system is without disruption to other joint users.
Reason :- to ensure demolition activities do not disrupt the operation of the sewerage system for other users of the system.

43. Demolisher Details

The demolisher/owner/applicant shall:-

a) Lodge with Council, and at least forty-eight (48) hours prior to the commencement of work (due to the potential impact on Council’s infrastructure):-

i) Written notice, indicating the date when demolition of the building is to commence.
Ii) The demolisher’s full name and address.
iii) Details of Public Liability Insurance.

b) Comply with Australian Standard 2601 – 2001 " Demolition of Structures" ; and,

c) Have a current public liability/risk insurance, and policy details of such shall be submitted to Council for its records.
d) Ensure that all possible/practicable steps are taken to prevent nuisance to the inhabitants of the surrounding neighbourhood from wind-blown dust, debris, noise and the like arising from the demolition works

This Consent shall not preclude the demolisher from giving notice to other statutory authorities, such as Sydney Water Corporation, WorkCover, etc.
Reason :- to ensure details of the demolisher are provided to Council and relevant safety requirements are met.

44. Demolition Works – noise and vibration

The following shall be compiled with:-

a) Vibration levels induced by the demolition activities shall not exceed 1mm/sec peak particle velocity (ppv) when measured at the footing of any occupied building.
b) Vibration levels induced by the demolition activities shall not exceed 3mmsec peak particle velocity (ppv) when measured at the footing of any unoccupied building.
c) The upper noise level from the demolition operations measured over a period of 10 minutes must not exceed the background noise level by more than 10dB(A).
Reason :- to ensure noise and vibration arising from the demolition works does not impact on the amenity of the surrounding area.

45. Asbestos

a) In the event that asbestos is on a site or building under demolition or construction, WorkCover NSW is to be contacted to ascertain the appropriate response, to ensure the safety and protection of existing and future workers and residents. An Asbestos Removal Contractor licensed by WorkCover NSW is to handle/remove/transport and dispose of any products containing asbestos in a manner approved of by the Department of Environment and Conservation (DEC). Copies of tipping dockets are to be retained and able for viewing by Council officers on request.

b) Asbestos material can only be disposed of at a landfill site nominated by Waste Services NSW for that purpose. An appointment must be made with Waste Services NSW to dispose of asbestos materials at the nominated landfill.
c) Anyone who removes, repairs or disturbs bonded or a friable asbestos material must hold a current removal licence from Workcover NSW. Before starting work, a work site-specific permit approving each asbestos project must be obtained from Workcover NSW. A permit will not be granted without a current Workcover licence. All removal, repair or disturbance of or to asbestos material must comply with:-

i) The Occupational Health and Safety Act 2000;
ii) The Occupational Health and Safety Regulation 2001;
iii) Protection of the Environment Operations Act 1997
iv) Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes, NSW EPA, May 1999
v) Waste Avoidance and Resource Recovery Act 2001.
vi) The Code of Practice for the Safe Removal of Asbestos [NOHSC: 2002 (1998)];
vii) The Guide to the Control of Asbestos Hazards in Buildings and Structures [NOHSC: 3002 (1998)] ; and
viii) The Workcover NSW Guidelines for Licensed Asbestos Removal Contractors.

Note: The Code of Practice and Guide referred to above are known collectively as the Worksafe Code of Practice and Guidance Notes on Asbestos. They are specifically referenced in the Occupational Health and Safety Regulation 2001 under Clause 259.

Under the Occupational Health and Safety Regulation 2001, the Worksafe Code of Practice and Guidance Notes on Asbestos are the minimum standards for asbestos removal work.

Council does not control or regulate the Worksafe Code of Practice and Guidance Notes on Asbestos. You should make yourself aware of the requirements by visiting < > or one of Workcover NSW’s offices for further advice.

d) In order to ensure safe handling of asbestos materials, the re-use or sale of asbestos building materials is strictly prohibited.
Reason: - to ensure the safe handling, treatment and disposal of asbestos materials arising from the demolition/construction works.

46. Services to be capped

Prior to the commencement of demolition works, the applicant must ensure that utility services to the land upon which the building to be demolished stands, as well as the building itself, are terminated and capped in accordance with the requirements of supply authority, eg. Electricity-Supplier of Electricity to the subject premises, Gas-Supplier of Gas to the subject premises.
Reason :- to ensure all services are capped adequately.

47. Site to be kept in a clean condition

Upon completion of demolition works and if no new building works are commenced on site, the site shall be kept in a clean manner with landscaping and fencing to the satisfaction of Council.
Reason : to control soil erosion, and not have any unsightly views.

48. Neighbour 24 notification of commencement of demolition

Prior to the commencement of work the applicant shall provide 24 hours notice in writing to the neighbours adjoining and opposite the site of the intended time and date of the start of the demolition work.
Reason :- to ensure details of the demolisher are provided to neighbours.

49. Reinstatement of footpath and footpath crossing

The footpath and footpath crossing/s adjacent to the property shall be reinstated by Council at the completion of works with all costs being borne by the developer. Alternatives to the pre-payment for this work will be considered if written request is made to Council.
Reason :- to ensure the footpath and the footpath crossings are repaired from any damage caused during the construction phase.

50. Vehicle Driveway Crossings and Gutter Laybacks

Arrangements shall be made with Council for the prepaid construction of vehicular crossings and gutter laybacks at all property entrances and exits, and for the removal of all disused driveway crossings and gutter laybacks. Alternatives to the pre-payment for this work will be considered if written request is made to Council. The gutter crossing and/or the removal of any redundant crossings must be constructed to the satisfaction of Council (and to the Council’s specifications including payment of any required bonds) or the prepayment made to Council for Council to carry out the work, prior to the issue of any occupation certificate.

Removal of obstructions, such as power poles, trees, drainage pits and the like shall be carried out at the applicant’s expense.
Reason : - to ensure that works are carried out in accordance with Council’s standard.

51. Street boundary levels

Street boundary levels for vehicle access and drainage purposes are to be obtained at the applicant’s cost from Council's Service Planning Department. These levels are to be incorporated in all drainage submissions required under this determination.
Reason :- to ensure the correct levels are obtained and used for the development.

52. Road opening permit

Prior to commencement of any work on Council roads and footpaths, a road-opening permit shall be obtained from Council’s Service Planning Department.
Reason :- to safeguard Council property against damage.

53. Restoration works

Prior to commencement of any excavation work on Council roads or footpaths, the applicant shall pay for all restoration costs. The area of restoration shall be determined on site between the applicant or its contractor and Council’s Contracts & Maintenance Engineer.
Reason :- to ensure that Council’s infrastructure is maintained in a safe and trafficable manner.

54. Turf on Council's Verge

All turf on Council's verge directly adjacent to the lot shall be removed and replaced with Kikuyu turf prior to the issue of an Occupation Certificate. Levels on the verge must remain unchanged.
Reason :- to improve streetscape appearance.

55. Tree Retention

All reasonable measures shall be undertaken to ensure that the existing trees including Council street tree on the front verge of the site are not damaged during the approved demolition and construction works.
Reason : to protect trees in accordance with Council’s Tree Preservation Order.

56. Air conditioning units – location and acoustics

a) Air conditioning units are to be located to the ground level of rear yards or within basement garages and not within the side setbacks or frontages of the property. Air conditioning units are not to be visible from the street or public place and are not to obscure windows/window frames or architectural features of the building.
b) The operation of air conditioning units shall be so:

(i) as not to cause “offensive noise” as defined under the Protection of the Environment Operations Act 1997;
(ii) as to be inaudible at the nearest affected residence between the hours of 10.00pm and 7.00am on weekdays and 10.00pm and 8.00am on weekends and public holidays;
(iii) as not to discharge a condensate or moisture onto the ground surface of the premises or into a stormwater drainage system in contravention of the requirements of the Protection of the Environment Operations Act 1997.

c) Should Council receive noise complaints from neighbouring residents in relation to the air conditioning units, Council may issue a Noise Notice. Such notice may require you to engage the services of a competent and appropriately qualified Acoustic Consultant to undertake a noise level assessment of the air conditioning unit. If the unit is assessed as exceeding the permitted noise criteria, you may be directed to provide noise attenuation measures such as an acoustic enclosure and/or relocation of the unit.
Reason :- to ensure that air conditioning units associated with the development are appropriately located and do not detract from the appearance of the buildings and to ensure the operation of air conditioning units does not adversely impact on the acoustic amenity of the locality.

57. Intruder Alarms

Any intruder alarm at the premises shall be fitted with a timing device in accordance with the requirements of Section 53 of the Protection of the Environment Operations (Noise Control) Regulation 2000.
Reason: - to prevent ongoing noise arising from intruder alarms and ensure compliance with relevant legislation.

58. Occupation Certificate

A person must not commence occupation or use of the whole or part of a new building unless an occupation certificate has been issued in relation to the building or part.

The application for an Occupation Certificate must be made to the Principal Certifying Authority (Council or an accredited certifier) using the approved form.
Reason :- to comply with the requirements of Section 109M/N of the Environmental Planning and Assessment Act.

59. Stamping of development application plans by Sydney Water

The approved development application plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements and if further requirements need to be met. Plans will be appropriately stamped.

Please refer to the web site for:

Quick Check agents details – see Building Developing and Plumbing then Quick Check; and
Guidelines for Building Over/Adjacent to Sydney Water Assets – see Building Developing and Plumbing then Building and Renovating or telephone 13 20 92.

Note:
The consent authority or accredited certifier must either:
ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate; or
if there is a combined Development/Construction Certificate application, ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans prior to works commencing on site.

Reason :- to ensure the development does not damage or interfere with Sydney Water assets.

60. Television Aerial/Satellite Dish

A single common television aerial, and/or satellite dish (having a maximum diameter of 700mm and not located on the front or street elevation of the building) is to be installed to serve the development.
Reason :- to ensure the provision of these services does not impact on the finished appearance of the development.

61. Mail Box Structure

An Australia Post approved lockable mail box structure(s) shall be centrally located to the primary street entry of the site.
Reason :- to ensure compliance with Council’s Development Control Plan requirements.

62. Front Fencing

The front and side dividing fences (where located within the front yard area) shall not exceed a height of 1.2 metres as measured above existing ground level and shall be a minimum of 50% transparent. Front and side dividing fences (where located within the front yard area) shall not be constructed of solid pre-coated metal type materials (ie Colourbond or similar).
Reason :- to maintain reasonable levels of amenity to adjoining residential development and the streetscape and to comply with Council’s Development Control Plan provisions.

63. Side/Rear Boundary Fencing

Fences located on the side or rear boundaries of the premises, behind the main building setback (not within the front yard), shall not exceed a maximum height of 1.8 metres.
Reason :- to maintain reasonable levels of amenity to the adjoining premises.

64. Fencing/gates and adjoining land

There must be no encroachment of any part of the structure/s onto the adjoining premises or onto Council’s road reserve, footway or public place. Any gate openings shall be constructed so that the gates, when hung, will be fitted in such a manner that they will not open over the footway or public place.
Reason :- to ensure the fence/gates do not restrict access and that encroachments do not occur.

65. Suitable arrangements to be made for garbage and recycling services

Suitable arrangements for garbage and recycling services are to be made with Council prior to occupation of the building.

Reason :- to ensure adequate garbage and recycling services are provided for the development.

66. Rainwater tanks

Rainwater tanks shall comply with the following:-

a) A 1500 litre rainwater tank should be provided in accordance with the BASIX requirements and the following Australian Standards:
b) AS/NZ 2179-1994 “Specifications for Rainwater Goods, Accessories and Fasteners”; and
c) AS 2180-1986 “Metal Rainwater Goods – Selection and Installation”.
d) Overflow from the tank must be connected to the stormwater system
e) The tank is to be constructed, treated or finished in a non reflective material that blends in with the overall tones and colours of the dwelling and the tank shall be located in the rear yard
Reason :- to ensure compliance with BASIX, Council’s Development Control Plan requirements and Australian Standards.

Consent to operate from: 24 November 2009

Consent to lapse on: 24 November 2014
_______________________

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18/01/2010 - typographical error - Paragraph(s) Order 1

CITATION:	Yaragonda & Anor v Auburn City Council [2009] NSWLEC 1436 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Jyothirmayi Yaragonda & Chaitanya Ambati RESPONDENT Auburn City Council
FILE NUMBER(S):	10786 of 2009
CORAM:	Fakes C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Contruction of new dwelling - conditions of approval - streetscape - garage door width
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 82(A), s 97(1) Land and Environment Court Act 1979 s 34, s 34(4)(b)
DATES OF HEARING:	23/12/09
EX TEMPORE JUDGMENT DATE:	24 December 2009
LEGAL REPRESENTATIVES:	APPLICANT In person RESPONDENT Mr A Hudson, solicitor SOLICITORS Wiltshire Webb Staunton Beattie Lawyers

*Plan Number*	*Prepared By*	*Revision No.*	*Dated*
DA/01 – Site Plan	Puma Design Architects	B	31/08/2009
DA/02 – Ground Floor Plan (as amended in red)	Puma Design Architects	B	31/08/2009
DA/03 – First Floor Plan	Puma Design Architects	B	31/08/2009
DA/04 – Landscape Plan	Puma Design Architects	B	31/08/2009
DA/05 – Section & Elevations	Puma Design Architects	B	31/08/2009
DA/06 – Elevations	Puma Design Architects	B	31/08/2009
DA/07 – Fence Details	Puma Design Architects	B	31/08/2009
Basix Certificate No. 223945S_02	Department of Planning	-	24/08/2009
2211 S1 - Stormwater Plan (as amended in red)	Consulting Design & Inspection Engineers	B	15/09/2009
Schedule of Finishes	-	-	-

Item	Amount
Community Facilities	$399.63
Public Domain	$883.83
Accessibility and Traffic	$243.16
Administration	$93.03
TOTAL	$1619.65