Land and Environment Court of New South Wales CITATION: Architectural Property Services Pty Ltd - V - Rockdale City Council [1999] NSWLEC 83 PARTIES APPLICANT: Architectural Property Services Pty Ltd RESPONDENT: Rockdale City Council NUMBER: 10826 of 1998 CORAM: Lloyd J KEY ISSUES: :- appeal Merit considerations LEGISLATION CITED: appeal Merit considerations DATES OF HEARING: 03/30/1999; 03/31/1999 DATE OF JUDGMENT DELIVERY: 04/15/1999 Applicant: T S Hale Solicitors: Freidman Reeves LEGAL REPRESENTATIVES: Respondent: J A Cole (S) Solicitors: Abbott Tout JUDGMENT: Contents Paragraph Isolation of adjoining allotment 6 Non-compliance with the development control plans 15 Overdevelopment, overshadowing and overlooking 26 Other issues 27 Conclusions and orders 28 _______________ INTHE LAND AND Matter No: 10826 of 1998 ENVIRONMENT COURT Coram: Lloyd J OF NEW SOUTH WALES Decision date:15/04/99 ARCHITECTURAL PROPERTY SERVICES PTY LTD Applicant v ROCKDALE CITY COUNCIL Respondent JUDGMENT HIS HONOUR: 1. This is an appeal under the Environmental Planning & Assessment Act 1979 ("the Act"), s 97, against the deemed refusal of the respondent to approve a development application for the erection of a residential flat building at 139 Clareville Avenue, Sandringham. 2. The plans for the proposed development have undergone two amendments. The second set of amended plans were tendered on the first day of the hearing. Although the tender of the second set of amended plans was opposed by Mr J A Cole, appearing for the respondent, I admitted them pursuant to the Court's powers under the Land & Environment Court A ct 1979, s 39(2) & (3) on the ground that the amendments are not so significant as to convert the original concept into something substantially different from that described in the development application. That is to say, the amended plans tendered and admitted into evidence are not such as to make the application a new application ( Willoughby Municipal Council v Local Government Appeals Tribunal & Manchil Pty Ltd (1974) 2 NSWLR 415; Cambridge Credit Corporation Limited v Parkes Developments Pty Ltd (1974) 2 NSWLR 590). The effect of the amendments is to overcome some of the criticisms of and shortcomings demonstrated by the development application as originally submitted. 3. Following the filing of this appeal the respondent purported to determine the development application. It resolved to refuse the development application for four reasons: (1) The proposed development does not comply with the requirements of Development Control Plan No 20 - residential flat buildings. (2) Approval of the application would isolate an adjoining parcel of land which on its own could not be redeveloped in accordance with Council's residential flat building development control plan and result in uneconomic use of land and poor planning. (3) The design is considered unsatisfactory and will result in adverse affects [sic] on adjacent properties and their residents. (4) Having regard to the number and content of public submissions, approval of the application would not be in the public interest. 4. A Statement of Issues was filed in this appeal by the respondent and which greatly expands the grounds upon which it opposes the development application. The plans as now amended effectively resolve some of those issues. For example, the amended car parking layout removes the criticisms of the car parking layout in the original proposal. Moreover, the reconfiguration of the car parking level has also improved the capacity for substantial landscaping on the northern and southern sides of the building. 5. The various issues as argued by the parties may be reformulated into the following three main issues: (1) Approval of the development would isolate an adjoining allotment, No 141 Clareville Avenue which is at present occupied by a single dwelling house. (2) The proposal does not comply with the requirements of Development Control Plan No 35, which commenced on 15 October 1998, neither does it comply with the requirements of the provisions of Development Control Plan No 20 which was repealed by Development Control Plan No 35. This issue includes a consideration of the design of the proposed building. (3) Overdevelopment of the site, as evidenced by issue (2) above and by overshadowing and overlooking of the adjoining property No 141 Clareville Avenue. Isolation of the adjoining allotment 6. The land is within zone No 2 (c2) (Residential C2) under the relevant environmental planning instrument, the Rockdale Planning Scheme Ordinance. Residential flat buildings are a permissible use with development consent in such zone. The whole of the street block within which the subject land is situated is already developed with residential flat buildings, except for the subject site and the adjoining land, No 141 Clareville Avenue. 7. The respondent engaged planning consultants, Rhodes Thompson Associates, to prepare a report for its consideration on the development application. It did so because, it seems, the respondent was understaffed at the time. The consultants recommended that the respondent contact the owner of No 141 Clareville Avenue to ensure that an adequate opportunity had been made for that land to be consolidated with the development site. The consultants recommended that the respondent write to the owner of No 141 Clareville Avenue to confirm that the applicant has offered to purchase No 141 and if the offer was declined to inquire what the owner would consider to be an acceptable price for the property. The consultant's report also states: Should the owner of No 141 not wish to sell his property for a reasonable price, it would be considered unreasonable to refuse the subject application on that basis. 8. I am satisfied by the evidence that the applicant has made a reasonable offer to the owner of No 141 Clareville Avenue, Mr J L Ward, for the purchase of his property and that the offer has not been accepted. The applicant obtained a valuation of No 141 Clareville Avenue, which was valued at $435,000. On 27 February 1998 Mr C Turner, on behalf of the applicant, telephoned Mr and Mrs Ward with an offer based upon the same yield as offered to the owner of the subject property. Mr Ward, according to Mr Turner, said that he was not interested. On 6 March 1998 the applicant offered in writing to purchase No 141 Clareville Avenue for the sum of $785,000. The offer was both posted and placed under the front door of No 141. On 10 November 1998 the applicant reconfirmed the offer in writing. On 19 November 1998 the applicant further advised Mr Ward that in the event of him changing his position and deciding to sell this property then the applicant would be willing to purchase his property and amalgamate it with the property on the other side of No 141. It appears that that property, No 143 Clareville Avenue, has an older style residential flat building upon it which could be redeveloped in an amalgamated site with No 141 Clareville Avenue. On 24 November 1998 Mr Ward acknowledged the applicant's offer of 19 November 1998 and said that at the present time his plans are uncertain, that the applicant's comments had been noted and thanking the applicant for its interest. Mr Turner said in evidence that although it is now too late for there to be an amalgamation of No 141 with the subject site, he is prepared to offer $800,000 for No 141 for its amalgamation with No 143 to enable a joint development of both properties. 9. Both Mr Ward and Mrs V Ward denied receiving the applicant's written offer of 6 March 1998. Mrs Ward acknowledged, however, that a telephone call may have been made in February 1998 when her husband was not in. Mr Ward denies having received a telephone call in February 1998. The applicant, however, tendered records of its telephone account which shows that two telephone calls were made to Mr and Mrs Ward's telephone number on 27 February 1998, the first lasting 6 minutes 13 seconds and the second lasting 5 minutes 12 seconds. I find the evidence of the applicant on this question more convincing than the evidence of Mr and Mrs Ward. The applicant's evidence is confirmed by the telephone records to which I have referred and to copies of the correspondence which I have described in paragraph 8 above. The evidence of Mr and Mrs Ward was, on the other hand, vague and uncertain. Mr Turner distinctly recalls speaking first to Mrs Ward and later to Mr Ward in February 1998. In short, I am satisfied that the applicant has made a reasonable offer to purchase No 141 Clareville Avenue. 10. It would, therefore, to be unreasonable to refuse the development application on the ground that it would isolate the adjacent property in circumstances where the applicant has made a reasonable offer to purchase that property and such offer has not been accepted. Moreover, there is no evidence to suggest that No 141 Clareville Avenue could not be developed for either a residential flat building or for medium density housing. It could be so developed, either alone or jointly with the adjoining property on its opposite side, No 143 Clareville Avenue. As noted above, the applicant is prepared to offer to purchase No 141 Clareville Avenue with a view to amalgamating it with No 143 Clareville Avenue. 11. Mr T S Hale, who appears for the applicant, submits that in these circumstances the commercial opportunity of the owner of No 141 to develop his land, either alone or with other land, is unaffected. I agree. Mr Hale further submits that private economic considerations and economic impacts upon individuals are not town planning considerations. (He referred to J Murphy & Sons Ltd v Secretary of State for the Environment (1973) 1 WLR 560 at 565; Wilcox, The Law of Land Development (1967) Sydney, The Law Book Co Ltd, at 37-42; and Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675.) 12. Apart from the limited extent to which economic impacts in the locality may be relevant, described in Kentucky Fried Chicken Pty Ltd v Gantidis (at 687), I agree with Mr Hale's submission that economic considerations are not generally relevant under s 79C of the Act. The position is explained by Ackner J (as his Lordship then was) in J Murphy & Sons Ltd v Secretary of State for the Environment , at 565: In considering such an application, there is no provision in the Act requiring the authority who considers the application for planning permission to look beyond the effect of the land use or change of use proposed and to inquire into matters of cost and cost benefits. I have never heard it suggested before that a planning application involves a valuation exercise of a kind which one would associate more with the activities of the Lands Tribunal; nor is there any reported decision to this effect. What the planning authority is concerned with is, how the land is to be used, and not whether the development proposed is going to be a wise commercial venture. The planning authority exercises no paternalistic or avuncular jurisdiction over would-be developers to safeguard them from their financial follies. If it had such jurisdiction, planning inquiries would last even longer than they do now, and the problems of establishing whether or not a particular development was or was not economically justifiable would be countless. 13. This is not to say that economic considerations can never be a town planning consideration. If the economic considerations have a wider impact in the locality in the sense described in Kentucky Fried Chicken then it may be a relevant consideration. Although, in the present case, the private economic interests of the owner of the adjoining property is not a relevant consideration, the fact that an allotment of land may become isolated and thus sterilised may relevantly be a town planning consideration. If, for example, one of the objectives of the planning of an area is that the area should be redeveloped with medium density housing, then the isolation or sterilisation of an individual allotment which would thereby frustrate such an objective may be a relevant consideration. 14. It follows from what I have set out above that this issue must be resolved in favour of the applicant. Non-compliance with the development control plans 15. Development Control Plan No 35 sets out detailed controls which apply to residential flat buildings. This development control plan commenced on 15 October 1998, which was after the development application was made to the respondent. The Development Control Plan repeals Development Control Plan No 20 which previously controlled residential flat buildings permissible under the Rockdale Planning Scheme Ordinance . 16. The consent authority must take into consideration the provisions of any development control plan (s 79C(1)(a)(iii)). Since an appeal to the Court is by way of rehearing, the appeal must be determined by reference to the facts as they exist when the appeal is heard ( Land & Environment Court Act , s 38(3); Sofi v Wollondilly Shire Council (1975) 31 LGRA 416, per Waddell J; Janlz Constructions Pty Ltd v Randwick Municipal Council (1976) 35 LGRA 70, at 72-73 per Glass JA; Woollahra Municipal Council v TAJJ Investments Pty Ltd (1982) 49 LGRA 123 at 130 per Mahoney JA). In the circumstances of the present case, however, where the relevant development control plan commenced after the development application had been made, it should not be given determinative weight. That is not to say that the standards and controls in Development Control Plan No 35 should be ignored. They should be taken into consideration. A failure to comply therewith, however, will not necessarily be fatal to the application provided that it is otherwise satisfactory. Although the previous development control plan ( Development Control Plan No 20 ) is now repealed, its controls may also be taken into consideration as indicative of standards and controls which applied when the development application was made. 17. There is a number of departures from the standards and controls under both development control plans. Most of the departures are relatively minor and not of themselves sufficient to justify a refusal of the application. I shall mention only the more important controls and which arise under Development Control Plan No 35 .. 18. As noted above, some of the criticisms of the proposal have been overcome in the amended plans now relied upon by the applicant, particularly those related to the configuration of the car parking level and to the capacity of the site to sustain deeply rooted planting in the landscaping along the northern and southern side boundaries of the site. It is said that the area of landscaping falls short of the minimum landscaped area of 52% of the site required by clause 14.1 of Development Control Plan No 35. The respondent calculates the landscaped area as being 45% of the area of the site, whereas the applicant calculates the landscaped area as being 58% of the site. The difference is explained by what is included and what is excluded from the landscaped area. Since the development control plan should not be given determinative weight, I do not regard the shortfall in landscaped area (if any) as a sufficient ground on which to refuse the development application. 20. The proposed building is to be set back 6.7 metres from the rear property boundary, which boundary adjoins a lane. Development Control Plan No 35 (clause 13.3) requires a minimum rear set back of 12 metres, but it allows a lesser setback where circumstances warrant, such as properties backing onto a lane and provided no overshadowing or overlooking of adjoining properties will occur. 21. In the report to the respondent on the development application, the respondent's consultants recommended that the rear setback variations under the Development Control Plan be considered. The consultants reported that the adjoining property, No 141 Clareville Avenue, was already significantly overshadowed by the existing building on No 139 and by the residential flat building on No 137 and that the additional overshadowing impacts of the proposed development are negligible. The consultants also reported that any privacy impact on No 141 could be met by appropriate conditions. These comments suggest to me that the reduction in the setback to the rear property boundary is acceptable. 22 . Clauses 12 and 15.1 of Development Control Plan No 35 refer to overshadowing and visual privacy. Notwithstanding the comments of the respondent's consultants to which I have referred in paragraph 21 above, the shadow diagrams tendered in evidence demonstrate that there will be an additional impact by way of overshadowing upon No 141 Clareville Avenue. In the present case, however, I have found the owner of No 141 Clareville Avenue was made a reasonable offer for the sale of that property to the applicant. The owners of No 141 realise that this is a home unit area and that the development of residential flat buildings is to be expected within the Residential C2 zone. In these circumstances the impact of the proposal upon No 141 is acceptable. Similarly, the rear setback proposed from the lane is also acceptable. If, however, the owners of No 141 had not been made a reasonable offer for the purchase of their property, then I would have been less inclined to disregard this impact upon their property. Moreover, as noted above, there is still the opportunity for the owner of No 141 to redevelop his property either in isolation or jointly with No 143 and I have referred to the offer made to them by the present applicant for the latter proposal. 23. Clause 12 of Development Control Plan No 35 requires solar access to all proposed dwelling windows for a minimum period of three hours between 9 am and 3 pm in mid-winter. One of the proposed flats will not meet this standard and one other will only meet the standard between the hours of 9am and 4 pm in mid-winter. The subject site is located close to extensive areas of public parkland and beaches. According to Mr L M Fletcher, a consultant planner who gave evidence for the applicant, residents would happily trade off solar amenity within their dwellings during winter months for the convenience of access to the high level of facilities available in the Sandringham locality. In my view, since only one of the nine proposed units would not have satisfactory solar access, the opinions expressed by Mr Fletcher on this issue may be accepted. 24. There is a number of provisions in Development Control Plan No 35 which relate to the design of buildings. Clause 3(g) refers to maintaining the streetscape. Clause 9(e) requires the building design and use of materials, roof pitch and architectural features and styles to be similar to those of surrounding buildings to ensure continuity of the built form that exists in the streetscape. Clause 10.1 requires the building bulk, height, scale, massing, roof form and materials to be sympathetic to existing built forms and to complement rather than detract from existing development. The respondent submits that the proposed development does not meet these criteria. This is said to be largely because the proposed development is of a contemporary design with a flat roof, whereas the prevailing design in the area is a traditional design with pitched roofs. 25. On this issue I find the evidence of Mr J C Haskell, who gave evidence for the applicant, to be persuasive. Mr Haskell was Professor of Architecture at the University of New South Wales from 1975 to 1993. Mr Haskell states that it is not evident that the area has a prevailing pitched roof character and there is a wide diversity of architectural designs in the area, particularly opposite the subject site. In his opinion the building will sit well with its neighbours, be less dominating and overshadowing because of its overall flat roof and yet make a positive contribution to the streetscape. I accept the opinion of Mr Haskell, which is confirmed by my own inspection of the site and the surrounding area in the presence of representatives of the parties. Overdevelopment, overshadowing and overlooking 26. These issues have been discussed under the second issue above, particularly as regards the adjoining property No 141 Clareville Avenue (paragraphs 21 and 22 above). Other issues 27. There were other issues of a minor nature which are able to be met by the imposition of appropriate conditions of consent. One of those issues was the nature of the landscaping which is proposed and its adequacy. As previously noted, the amended plans now relied upon by the applicant will enable substantial deep rooted planting to take place along the northern and southern side boundaries of the site and thus assist in screening the development from the adjoining properties. Mr Cole drew particular attention to the proximity of the main entrance of the proposed building to the side boundary and to the adjoining house at No 141 Clareville Avenue. The amended landscaping plan, however, shows substantial planting in the space between the main entry and the adjacent side boundary. Although the development will involve the removal of some existing small trees for the driveway ramp at the rear, this will be somewhat offset by the additional landscaping along the southern boundary adjacent to No 141 Clareville Avenue. The overall impact, however, with additional landscaping along the front and sides of the property seems to me, although not perfect, a reasonably acceptable compromise. Conclusions and orders 28. The proposed development as shown in the amended plans tendered during the hearing, together with the conditions which will be imposed, should be approved. The formal orders are: 1. Appeal allowed. 2. Development consent is granted for the erection of a residential flat building at 139 Clareville Avenue, Sandringham, subject to the conditions annexed hereto. CONDITIONS OF CONSENT NO 139 CLAREVILLE ROAD, SANDRINGHAM CONSENT PERIOD The following condition limits the period for which this consent is valid. 1. The term of this consent is limited to a period of two (2) years from the date of approval. The consent will lapse if the development does not commence within this time. GENERAL CONDITIONS The following conditions restrict the work to only those matters which formed part of the Development Application and to ensure that the work is maintained in good order and condition. 2. The development being carried out substantially in accordance with Drawing Numbers 01B, 02B, O3A, 04A, 05A, 06A, 07A and 08B dated July 1998 except where amended by the conditions of consent. 3. The building is not to be occupied until all work is completed in accordance with the conditioning of this approval. 4. A copy of the construction certificate and the approved plans and specifications must be kept on the site at all times and be available to the Council officers upon request. 5. The building works are to be inspected during construction, by the principal certifying authority (or other suitably qualified person on behalf of the principal certifying authority) to monitor compliance with Council's approval and the relevant standards of constructions, encompassing the following stages of construction: a) shoring of excavation works b) Contiguous piers or piling c) Underpinning d) Foundations-footings e) Damp-proof course f) Steel reinforcement g) Retaining walls h) Floor, wall and roof timbers i) Steel beams, columns or framing j) Waterproofing of wet areas k) Fire resisting constructions systems l) Installation of smoke detection and alary systems m) Mechanical Ventilation n) Stormwater drainage o) Swimming pool fencing p) Finalisation of works Documentary evidence of compliance with Council's approval and relevant standards of construction is to be obtained prior to proceeding to the subsequent stages of constructions and copies of the documentary evidence are to be maintained by the principal certifying authority and be made available to Council officers upon request. 7. Upon inspection of each stage of construction, the principal certifying authority (or other suitably qualified person on behalf of the principal certifying authority) 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. 8. No building works are to be commenced on site prior to the issue of the Construction Certificate. 9. The applicant and owner are advised that this approval is not to be construed as permission to erect any structure on or near a boundary contrary to the provisions of the Dividing Fences Act. PRESCRIBED CONDITIONS The following conditions are applied to ensure that the development satisfies the provisions of the Environmental Planning and Assessment Act 1979 and Regulations. 10. All new building work must be carried out in accordance with the provisions of the Building Code of Australia (BCA) in accordance with Clauses 78A-78I of the Environmental Planning &Assessment Regulation 1998. 11. Building work that involves residential building work (within the meaning of the Home Building Act, 1989) must not be carried out unless the principal certifying authority: a) in the case of work to be done by a licensed contractor: · has been informed in writing of the licensee's name and contractor number; and · is satisfied that the licensee has complied with the requirements of Part 6 of that Act (in relation to insurance policies), or b) in the case of work to be done by any other person; · has been informed of the person's name and owner/builder permit number, or · has been given a declaration, signed by the owner of the land that states that the market cost of the labour and materials involved in the work does not exceed $3,000. Details of the builder and compliance with the provisions of the Home Building Act 1989 are to be submitted to Council at least 2 days prior to the commencement of works, on the standard from 7 notice, a blank copy of which is available from Council. 12. All excavation and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. 13. All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property. 14. If the soil conditions require it: a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and b) adequate provision must be made for drainage. 15. If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made: a) must 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 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished. Note: The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. 16. In this condition, allotment of land includes a public road and any other public place. 17. If the work involved in the erection or demolition of a building: a) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or b) building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place. If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place. Any such hoarding, fence or awning is to be removed when the work has been completed. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place. 18. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: a) stating that unauthorised entry to the work site is prohibited, and b) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. Any such sign is to be removed when the work has been completed. This condition does not apply to: a) building work carried out inside an existing building or b) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out. 19. Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Each toilet provided: a) must be a standard flushing toilet, and b) must be connected: i) to a public sewer, or ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or iii) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council. The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced. In this condition: accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government 9Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in clause 95B of the Regulation. approved by the council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993 . public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993 . sewage management facility has the same meaning as it has in the Local government (Approvals) Regulation 1993 . FIRE SAFETY MEASURES The following conditions are essential fire safety measures that have a vital function in protecting life and preventing injury and have been applied in accordance with Clause 80C of the Environmental Planning & Assessment Act Regulation 1994 . 20. The applicant is to ensure that the following essential measures are to be provided to the building and maintained at all times: (a) Emergency Lighting - In accordance with AS 2293.1 (Emergency evacuation lighting in buildings) (b) Exit Signs - In accordance with AS2293.1 (Emergency evacuation lighting in buildings) (c) Fire Doors - In accordance with Specification C3.4 of the Building Code of Australia and AS 1905.1 (Fire resistant door sets) (d) Fire Hydrant Systems - In accordance with E1.3 of the Building Code of Australia and AS2419.1 (Fire hydrant installations) (e) Hose Reel Systems - In accordance with E1.4 of the Building Code of Australia and AS 2441 (Installation of fire hose reels) SECTION 94 CONTRIBUTION The following condition is applied to satisfy the likely increased demand for public amenities and public services: 21. A contribution of $42,758.20 being paid to Council, such contributions being used only for or towards the cost of acquiring or improving parkland and community facilities within the Council area. The amount to be paid is to be adjusted at the time of actual cash payment, in accordance with the contribution rates under the current Section 94 Contribution Plan. The contribution is to be paid prior to the release of any approved building plans. The contribution is calculated from Council's adopted Section 94 plan in the following manner: Open Space: $32,083.00 Child Care $ 256.00 General Community Facilities $ 8,320.00 Libraries $ 2,099.20 IMPACTS OF THE DEVELOPMENT The following conditions are applied: · To minimise any likely adverse environmental impact of the proposed development. · To ensure the protection of the amenity and character of land adjoining the site and in the locality. · To ensure the development does not conflict with the public interest. CONTEXT AND SETTING 22. The roof material being non-reflective. 23. All external glazing having a maximum reflectivity of 20%. ACCESS, TRAFFIC 24. The parking spaces are to be allocated to dwellings in the development in the following manner and this is to be reflected in any strata subdivision of the development: - Dwellings 1 to 9 one (1) space each. - Common Property three (3) spaces. 25. The basement carparking layout is to be redesigned if necessary to ensure all vehicles can enter and leave the site in a forward direction with manoeuvrability in accordance with the 85th percentile vehicle seep path. 26. The roof of the basement carpark is to be below natural ground level where it extends beyond the footprint of the building. 27. The following works will be required to be undertaken at the applicant's expense: (a) construction of a concrete footpath along the frontage of the development site; (b) construction of a new fully constructed concrete vehicular entrance/s; (c) removal of the existing concrete vehicular entrance/s, and/or kerb laybacks which will no longer be required; (d) reconstruction of selected areas of the existing concrete Footpath/vehicular entrances and/or kerb and gutter; relocate the gully pit in Waldron Lane from the proposed driveway; (e) construction of paving between the boundary and the kerb; (f) removal of redundant paving; (g) construction of kerb and gutter. This work is to be carried out in accordance with Council's detailed specification. Contractor's details and proof of $5 million current public liability insurance is to be submitted to Council prior to commencement of work. All work is to be complete prior to the issuing of an Occupation Certificate or occupation. Note: An estimate of the cost to have these works constructed by council may be obtained by contacting Council on 9562 1666. The cost of undertaking these works will be deducted from the Footpath Reserve Restoration Deposit, or if this is insufficient the balance of the cost will be due for payment to Council on completion of the work. Alternatively, the applicant may arrange to have the works constructed by a private contractor subject to Council approval, and payment of inspection fees by the applicant. 28. A convex mirror is to be installed at the south-eastern corner of driveway ramp to provide increased sight distance for vehicles. 29. The maximum driveway gradient to the basement parking area to be 16.7% with adequate transitions, top and bottom of the ramp to prevent vehicles from scraping (Maximum change of grade 11% with a minimum transition length of 1.5m). 30. The garage floor to be redesigned if necessary to comply with Australian Standard AS2809.1-1993 with a maximum grade on the garage floor of 5%. WATER MANAGEMENT 31. Pollutants such as concrete slurry, clay and soil shall not be washed from vehicles onto roadways, footways or into the stormwater system. Note: The Applicant may be liable to prosecution under the Local Government Act 1993 for a breach of an approval condition, or under the Clean Waters Act 1970, if its employees, agents or sub-contractors allow sediment, including soil, excavated material, building materials, or other materials to be pumped, drained or allowed to flow to the street, stormwater pipes or waterways. The Applicant shall ensure that its employees, agents or sub-contractors understand and maintain sediment control measures. 32. Soil erosion and sedimentation control devices are to be designed and installed in accordance with the Soil and Water Management for Urban Development Guidelines produced by Southern Sydney Region Organisation of Councils. Copies of the guidelines are available from Council. 33. Council's warning sign for soil and water management must be displayed on the most prominent point on the building site, visible to both the street and site workers. The sign must be displayed throughout construction. 34. The capacity and effectiveness of erosion and sediment control devices must be maintained at all times. 35. A copy of the Soil and Water Management Plan must be kept on-site at all times and made available on request. 36. Stockpiles are not permitted to be stored on Council property (including nature strip) unless prior approval has been granted. 37. Stockpiles of topsoil, sand, aggregate, spoil or other material shall be stored clear of any drainage line or easement, natural watercourse, kerb or road surface. 38. Drains, gutters, roadways and access ways shall be maintained free of sediment. Where required, gutters and roadways shall be swept regularly to maintain them free from sediment. 39. Building operations such as brickcutting, washing tools or paint brushes, and mixing mortar not be performed n the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system. 40. All disturbed areas shall be stabilised against erosion within 14 days of completion, and prior to removal of sediment controls. 41. All vehicular access points are to be provided with a metal shaker ramp. A hose is to be located in close proximity and vehicles washed down prior to leaving the site. 42. Soil and sedimentation controls are to be put in place prior to commencement of any work on site. The controls are to be designed and installed in accordance with the Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Regional Organisation of Council's. The controls are to be maintained in effective working order during construction. Note: Copies of the guidelines are available from Council. 43. A plan is to be prepared for the discharge of stormwater by a suitably qualified Engineer. The plan is to be strictly in accordance with Council's Stormwater Design Code. A copy of this plan is to be deposited with Council prior to commencement of any work on site. The drainage is then to be constructed in accordance with this plan. 44. A geotechnic engineer to determine the soil absorption rate and satisfy the other requirements of the Stormwater Design Code relating to the water table, impact on footings, etc prior to design of the drainage system. 45. The existing and future owners of the property will be responsible for the operation and maintenance of the retention system , and will:- a) permit stormwater to be permanently retained by the system; b) keep the system clean and free of silt, rubbish and debris; c) maintain, renew and repair the whole or parts of the system so that it functions in a safe and efficient manner; d) not make alterations to the system without prior consent in writing of the Council; e) permit the Council or its authorised agents from time to time upon giving reasonable notice (but at any time and without notice in the case of emergency) to enter and inspect the land for compliance with the requirements of this clause; f) comply with the terms of any written notice issued by the Council in respect to the requirements of this condition within the time stated in the notice. WASTE 46. A Waste Management Plan is to be prepared in accordance with Draft Development Control Plan No 53. The requirements of the Waste Management Plan are to be followed at all times. NOISE AND VIBRATION 47. The walls dividing bathrooms, laundries and kitchens in one flat from habitable rooms in adjoining flat have a sound transmission class of not less than 50 and being constructed in accordance with the provisions of Part F5 of the Building Code of Australia. DESIGN 48. No excavation, filling of the site, or retaining wall are to be constructed except those shown on the approved plans and authorised by a subsequent construction certificate. 49. The means of egress from the entire building complying with the requirements of Part D1 of the Building Code of Australia. 50. A protective balustrade not less than 1000mm high being provided to the stairs/landing and all external balconies. The balustrade is to be constructed to conform to an adequate structural standard specified in SAA1170, Part 1. 51. Provision of a smoke alarm system to the dwelling(s) in accordance with the requirements of Part 3.7.2 of the Building Code of Australia - Housing Provision. 52. External paths and ground surface adjoining the walls of the building being graded and drained away from the dwelling in such a manner as to not cause a nuisance to adjoining properties. 53. The building shall be protected in accordance with the provisions of AS3600.1-1995 "Protection of buildings from subterranean termites", as required by Part B1.3(j) of the Building Code of Australia. Details of the proposed method of treatment shall be provided prior to commencement of construction. Certification is required to be submitted to Council prior to occupation to ensure that the selected method of treatment is in compliance with the relevant provisions of the standard. Such certification is to be prepared by a suitably qualified person. 54. Submission of structural engineer's details prior to the issue of the Construction Certificate, such structural drawings to be certified by the Structural Engineer that the design complies with the relevant SAA Codes for the following: (a) the footings of the proposed structure; (b) all reinforced concrete floor slabs; (c) all reinforced concrete stairs; (d) all structural steel work; (e) fire rated ceilings/fire protective ceilings. 55. Timber framing members complying with the relevant provisions of the National Timber Framing Code AS1684-1992. Details of the roof truss, truss layout, proposed method of bracing being submitted to Council prior to the issue of the Construction Certificate. 56. All glazing material installed complying with the relevant provisions of Australian Standard 1288. INTERNAL DESIGN 57. Where natural ventilation fails to comply with the provisions of the Building Code of Australia, mechanical ventilation being provided to the basement garage area in accordance with Australian Standard, 1668, Part 2. CONSTRUCTION 58. A sign must be erected at the from boundary of the property clearly indicating the Development Approval Number, description of work, builder's name, licence number and house number before commencement of work. If owner/builder, the Owner/Builder Permit Number must be displayed. 59. Hours of construction being confined to between 7.00 am and 8.00 pm Mondays to Fridays, inclusive, and between 8.00 am and 6.00 pm Saturdays with no work being carried out on Sundays and Public Holidays. 60. The existing dwelling to be demolished and removed from the site prior to works commencing, in accordance with Council's Demolition & Erection of Buildings Code. 61. Waste containers are to be located within the development site. Where this is not feasible, Council may approve the location of a skip on a roadway subject to appropriate safety precautions being in place. A separate application must be made and approved by Council prior to installation. 62. The delivery/pick-up of any large equipment/materials/containers transported by an 'Over-Size' vehicle t/from the site is not to occur between 11.00 pm and 5.00 am in order to protect the amenity of local residents. 63. Provision of a footpath protection pad over Council's footpath at the point of entry onto building site. (See attached detail). 64. A single access point shall be provided to the site which shall be constructed using a minimum of 100mm coarse crushed rock or similar material or timber planking. The footpath, kerb, road, nature strip and any other element of public infrastructure is to be protected from damage during construction. To ensure this, Council will require a bond to be paid to cover the cost of any repairing any infrastructure damage during construction. A bond of $………… is to be paid prior to the issue of a Construction Certificate. The bond will not be released until all work is completed in accordance with the Development Consent and any damage has been repaired. 65. Builders and demolishers are required to confine access to buildings and demolition sites to two 3m driveways, with suitable protection of the footpaths at these points, and to also erect a 1.5m high fence along the whole of the street alignment other than at the two openings; such protection work, including fences, to be constructed, positioned and maintained in a safe condition to the satisfaction of the Building Surveyor, prior to demolition of existing structures and commencement of building operations. 66. A Registered Surveyors check survey certificate or compliance certificate is to be forwarded to the certifying authority (and a copy is to be forwarded to the Council, if the Council is not the certifying authority) detailing compliance with Council's approval at the following stage/s of construction: (a) At damp course level showing the area of the land, building and boundary setbacks. (b) Prior to construction of each floor level showing the area of the land, building and boundary setbacks and verifying that the building is being constructed at the approved level. (c) On completion 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. LANDSCAPE DESIGN 67. the landscaping of the site being carried out in accordance with the approved landscape plan, such landscaping being maintained at all times. 68. The existing Norfolk Island Pine near the front of the site is to be retained and protected during construction. Prior to the issue of the Construction Certificate an Arborist's report is to be submitted to the Principle Certifying Authority which demonstrates that the long term health of the tree can be maintained and identifying necessary protective measures, the location and installation methods for any services or works, and ongoing work or maintenance to the tree during construction. All recommendations of the Arborists are to be adhered to at all times. 69. The payment to Council of a Footpath Reserve Restoration Deposit of $6,400 by the building contractor prior to construction commencing. This is to cover repair of any damages, or other works to be done by Council. This includes construction, removal, or repair as required to: kerb and guttering, existing or new driveways; paved areas and concrete footpaths. Where the Deposit is in the form of a Bank Guarantee, this is to be provided on Council's Bank Guarantee Form. If payment is to be made after 30 June 1999, this amount is to be adjusted in accordance with Council's adopted fees and charges. 70. Road Opening Permits must be obtained from the Engineering Services Department prior to any excavation in the road or footpath. 71. Boundary levels are to be obtained from Council prior to the issue of a Construction Certificate. All boundary works eg. Driveways, footpaths are to comply with this level. NATURAL HORIZON 72. The basement garage to be protected to a level of RL2.5 metres AHD to prevent food inundation in the 1% AEP floods. PUBLIC INTEREST The following conditions are applied in the public interest: 73. The applicant is to confer with Australia Post to determine their requirements for the location of mail boxes delivery points in connection with the development prior to submission of a building application. 74. The submission of a Certificate under Section 73 of the Water Board (Corporatisation) Act 1994. You should make immediate application to Sydney Water for this Certificate to avoid problems in servicing your development. An application form is enclosed. 75. The applicant is to confer with Energy Australia to determine if an electricity distribution substation is required. If so, it will be necessary for the final film survey plan to be endorsed with an area having dimensions 5m x 4m over the location of the proposed electricity distribution substation to be dedicated to Council as public roadway, or as otherwise agreed with Energy Australia. the requirements of Energy Australia are to be met prior to the issue of a Construction Certificate. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.