Land and Environment Court of New South Wales CITATION : Burkhart Enterprises Pty Limited v Woollahra Council [2004] NSWLEC 46 APPLICANT Burkhart Enterprises Pty Limited PARTIES : RESPONDENT Woollahra Council FILE NUMBER(S) : 11204 of 2003 CORAM: Watts C Development Application :- Paddington Heritage Conservation Area implications The proposed bulk and scale of the development KEY ISSUES: The potential for adverse overshadowing as a result of the proposed development and the potentially adverse visual and acoustic privacy impacts upon the adjacent properties and Provision of private open space and soft landscaping Woollahra Local Environmental Plan 1995, (WLEP) LEGISLATION CITED: Paddington Development Control Plan, (PDCP) Environmental Planning and Assessment Act 1979, ss 79C and 97 CASES CITED: DATES OF HEARING: 10/02/2004 DATE OF JUDGMENT: 02/18/2004 APPLICANT Ms L Byrne, barrister, instructed by Ms R Burkhart LEGAL REPRESENTATIVES: RESPONDENT Mr P Rigg, solicitor instructed by Deacons JUDGMENT: In the Land and Environment Court of New South Wales Burkhart Enterprises Pty Limited v Woollahra Council Judgment 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the (the council) to refuse a development application to alter and add to the rear of an existing single-storey weatherboard cottage at Lot B DP 436837, being No 1 Paddington Lane, Paddington, NSW. 2 The on-site hearing was held on 10 February 2004 and residents were present. 3 I have concluded that the proposal would be a well-mannered response to its context within the Paddington Heritage Conservation Area, would retain the form of the existing single-storey building when viewed from Paddington Lane, and should be approved with conditions. The land 4 The land is situated on the northeastern side of Paddington Lane about 50m south of Cascade Street. It has a frontage of 6.095m to Paddington Lane, a depth of between 11.105m on the eastern boundary and 12.685m on the western boundary, a rear boundary with several segments of 3.465m, 1.25m and 1.42m, giving an area of 69.6m2. The land falls slightly from Paddington Lane to the rear. 5 Erected on the land is a single-storey weatherboard cottage with a gabled corrugated iron roof with the ridge parallel to the lane. To the rear of the cottage is a single-storey laundry annex with a flat roof. In the northern corner of the land is a small courtyard. 6 Abutting on the northwest is No 19 Windsor Street, a two-storey terrace, and to the southeast is a single-storey garage at the rear of No 23 Windsor Street. To the north is the rear courtyard of No 21 Windsor Street. Relevant planning controls Woollahra Local Environmental Plan 1995, (WLEP) 7 The land is zoned Residential 2(a) under the WLEP, and the proposal is permissible with consent. The land is within the Paddington Heritage Conservation Area. 8 Under the provisions of the WLEP the maximum height limit is 9.5m. 9 Other special clauses and development standards apply under the WLEP including: Clause 18 Excavation; Clause 25 Water, wastewater and stormwater and Clauses 26-33 Heritage and conservation area provisions. Paddington Development Control Plan, (PDCP) 10 The PDCP applies to the land. Relevant are: - Part 5.1.3 of the PDCP, Street frontage; - Part 5.1.3 of the PDCP, Rear elevations and yards; - Part 5.1.4 of the PDCP, Roofs; - Part 5.1.7 of the PDCP, Building height bulk and scale; - Part 5.1.8 of the PDCP, Visual privacy; and - Part 5.3.1 of the PDCP, Single-storey buildings. The proposal and its history 11 On 19 August 2002, the council refused a development application No 277/ 2002 to add a first floor above the existing cottage on the land. 12 Development application No 373/2003/1 was lodged with the respondent council on 12 May 2003, to alter and add to the rear of an existing weatherboard cottage on the land. 13 The changes to the 1870s cottage would provide two bedrooms, one and half bathrooms and an existing small courtyard. 14 The 6m-proposal would comply with the 9.5m maximum height limit set under the WLEP and the council officers considered this height appropriate. Notification 15 The application was notified to nearby owners and occupants and four objections received from: Mr and Mrs P & A Andrews, of No 23 Windsor Street, Paddington, 2021; Ms L Mellos, of No 1 Gibson Street, Bronte, 2024 (owner of No 50 Paddington Street, Paddington); Mr and Mrs L N and O J Smith, No 19 Windsor Street, Paddington, 2021; and Mr Stuart and Mrs Suzanne Clough, No 21 Windsor Street, Paddington, 2021. 16 The objections raised the following issues: - Size and bulk of the proposed addition is excessive, the eastern wall will adversely impact upon the amenity of the adjacent property; - Proposed overshadowing as a result of the development is not acceptable; - The existing cottage is an anomaly in a space where it would be usual for garaging requirements to be located. The proposed development will result in a larger structure that is usual for this location with minimal space separating it from the laneway; - Concerned that in the future there will be proposals to increase the second storey area of the proposed addition; - The approval of an additional floor in an area originally intended for vehicles will set a dangerous precedent; - The two-storey structure without a frontage will unduly impact upon the nature of Paddington Lane; - There is no geotechnical report; - The proposed excavation may undermine the footings for the wall built up to the eastern boundary on No 19 Windsor Street, Paddington; - The plans do not indicate how the new roof is to be flashed on the eastern side; it should not encroach into the adjoining property. The proposed courtyard will be at a much lower ground level than surrounding properties, there is no indication as to how stormwater will be removed from this area; - The proposed first floor addition will have a detrimental impact on the acoustic privacy off adjacent properties. - The proposed development will have an adverse visual privacy impact on the first floor bedroom of No 21 Windsor Street; - The courtyard is proposed to be grassed. The courtyard does not receive sufficient sunlight for grass to grow; - The proposed rear wall between Nos 21 Windsor Street and No 1 Paddington Lane is proposed to be demolished, the owners of No 21 Windsor Street seek further clarification on this issue; - The proposed level of the AG lines next to the footings is 750mm below the existing ground level. No provision is shown of how to remove the water collected on the Stormwater Concept Plan. The termination point of the gas flue pipe is within 1 metre of a wall vent in the wall built up the eastern boundary and on No 19 Windsor Street, gas may enter this vent; - The proposed development does not comply with Clause 2(2)(g) of the Woollahra LEP; - The proposed development does not comply with Clause 8(5) of the Woollahra LEP; - The proposed development does not comply with Part 5.1.3 of the Paddington DCP, Street frontage; - The proposal does not comply with Part 5.1.3 of the Paddington DCP, Rear Elevations and Yards; - The proposed development does not comply with Part 5.1.4 of the Paddington DCP, Roofs; - The proposed development does not comply with Part 5.1.7 of the Paddington DCP, Building Height Bulk and Scale; - The proposed development does not comply with Part 5.1.8 of the Paddington DCP, Visual Privacy; - The proposed development does not comply with Part 5.3.1 of the Paddington DCP, Single Storey Buildings; and - The proposal would have a detrimental impact on the amenity of the neighbouring residential properties and the character of the Heritage Conservation Area and is not in the public interest. 17 The council's planning officers who assessed these objections, considered the proposal would not have a detrimental impact on the amenity of neighbouring residential properties or on the character of the Paddington Heritage Conservation Area, and recommended approval of the application. They considered the application would not be other than in the public interest. 18 As the proposal is within the Paddington Heritage Conservation Area the council's Heritage Officer, Mr I Kirk, made an assessment and concluded: Description of Buildings The existing building is a 1-storey Victorian weatherboard cottage that has been altered but the original form is intact. Significance of Property to the Conservation Area The existing building dates from the key period of significance for the conservation area and is contributory in the streetscape. Assessment of Heritage Impact The proposal was the subject of a pre DA meeting. The proposal will have little impact on the significance of the conservation area as it will not be visibly prominent and the new work is confined to the rear, which still allows the original and significant building form to still be interpreted. Recommendation APPROVAL subject to the following conditions of consent: 1. The front of the building including the timber cladding, doors and windows shall be retained and conserved. 2. The new roofing shall be corrugated in profile and grey in colour. 3. The proposed obscure white glass to the front windows be deleted. 19 The council officers recommended that Conditions No 2, 3 and 4 be applied to any consent. 20 The council officers had recommended approval of the application as they considered it: 1. Complies with the relevant planning standards contained within the Woollahra LEP; 2. Accords with the objectives of the Paddington DCP; 3. Will not adversely impact on the character of the Heritage Conservation Area; and 4. Will not have an adverse impact on the amenity of the neighbouring residential properties. The council's decision 21 Despite the recommendation for approval by its officers, the council by notice dated 4 September 2003, refused the application for the following reasons: 1. The development would have an adverse impact on the amenity of the neighbouring properties (Nos 21 and 23 Windsor Street) with respect to aural and visual privacy, solar access and ventilation. 2. The development is considered an overdevelopment of the site. 3. The proposed excavation is considered to be contrary [to] clause 18 of the Woollahra Local Environmental Plan 1995. 4. The siting of the development in relation to the property boundaries is considered to contravene the Paddington Development Control Plan, Part 5.1.5. 5. The proposal is considered to contravene the provisions of the Paddington Development Control Plan relating to single-storey buildings, Part 5.3.1. The hearing 22 The appeal was filed on 2 October 2003. 23 At the hearing the court heard evidence on behalf of the respondent council from: - Mr P Andrews, resident of No 23 Windsor Street, Paddington, [Note: Exhibit 4 p 66]; - Ms S G Clough, resident of No 21 Windsor Street, Paddington, [Note: Exhibit 4 p 70]: - Mr L N Smith, resident of No 19 Windsor Street, Paddington, [Note: Exhibit 4 p 67-8 - Mr A J Rowan, town planner. 24 On behalf of the applicant Mr Garcia, architect gave evidence. The issues 25 On 4 November 2003 the council filed a statement of issues. 1. Whether the proposed development would be acceptable having regard to Clauses 2(2)(g)(ii) and 8(5) of the Woollahra Local Environment Plan 1995 ("the LEP"), in that it would have an adverse impact on the heritage significance of the heritage conservation area in which 1 Paddington Lane, Paddington is located. 2. Whether the proposed development is acceptable having regard to its non-compliance with Clause 18 of the LEP, in that the amount of excavation is excessive in the context of the close proximity of the neighbouring residential structures. 3. Whether the proposed development is acceptable having regard to its non-compliance with Part 5.1.5 of the Paddington Development Control Plan ("the [P]DCP"), in that it would be an overdevelopment of the site. In particular: 5.1.5 Site coverage, setbacks and levels - Objectives 02, 03 and 04, and Guidelines G2, G3 and G5. 4. Whether the proposed development is acceptable having regard to its non-compliance with Part 5.1.7 of the [P]DCP, in that compliance with Part 5.1.7 of the [P]DCP, in that it would be excessively high and bulky in the historic context of the neighbouring buildings and impact on the solar access to the private open space areas of 23 Windsor Street. In particular: 5.1.7 Building height, Bulk and scale - Objective 05, and Guidelines G3 and G4. 5. Whether the proposed development is acceptable having regard to its non-compliance with Part 5.1.8 of the [P]DCP, in that it would have an adverse impact on the aural and visual privacy of the habitable room windows and private open space areas at 21 and 23 Windsor Street. In particular: 5.1.8 Acoustic and Visual Privacy Objectives 01 and 02, and Guidelines G5 and G6. 6. Whether the proposed development is acceptable having regard to its non-compliance with Part 5.3.1 of the [P]DCP, in that it would adversely impact on the integrity and setting of the existing single storey building. In particular: 5.3.1 Single storey buildings - Objective 03 and Guideline G4. 7. Whether the proposed development is in the public interest. 8. Issues raised by objectors. 26 The following emerged as the salient issues: - Paddington Heritage Conservation Area implications; - Proposed bulk and scale of the development; - Potential for adverse overshadowing as a result of the proposed development and the potentially adverse visual and acoustic privacy impacts upon the adjacent properties; and - Provision of private open space and soft landscaping. The evidence and findings Paddington Heritage Conservation Area implications 27 Clause 8(5) of the WLEP requires that: Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with such objectives of this plan and of the zone within which the development is proposed to be carried out as apply to that development. 28 The provisions of Clause 2(2)(g)(ii) of the WLEP states; 2(g)(ii) The objectives of the plan are: ...in relation to heritage conservation: ...to ensure that new development is undertaken in a manner that is sympathetic to and does not detract from the heritage significance of ... heritage conservation areas. 29 Mr Rowan, a heritage consultant, sought to retain a degree of integrity in the existing timber cottage and suggested in the event the Court were minded to grant consent, "…the applicant provide a 'detailed methodology' statement, prepared by a consultant qualified in heritage conservation and with experience in construction management" to explain how the building would be retained. Proposed Condition 4 is accepted by the applicant, and would address these concerns. 30 Mr Smith for the applicant stated: 8.4 It is relevant to note that the subject site is not listed as a heritage item under the provisions of the WLEP, but is located in a Conservation Area. Accordingly, the assessment criteria is whether the proposal is likely to detract from the heritage significance of the area, and therefore be inconsistent with the relevant objective, thus triggering Clause 8(5). 8.5 In determining whether or not a development is "inconsistent" with LEP objectives, it is not necessary for the applicant to show that the development promotes or is ancillary to the objectives, but rather that the proposal will not be anti-pathetic to those objectives. 8.6 Overall, the application demonstrates a well-mannered and considered response to the heritage context of the neighbourhood and the siting and orientation of adjoining development by keeping the height, bulk and scale of the proposal as low as possible, locating the maximum height of the addition well back from the street front alignment (ie Paddington Lane) behind the existing single-storey cottage and maintaining the existing pattern and footprint of development already on the subject site. In this regard, the proposal is to be constructed boundary to boundary west to east across the front portion of the site (as exists currently), with the rear extension constructed on the eastern (side) boundary and part northern (rear) boundary (also as exists currently). A courtyard area is maintained at the north western (rear) corner of the site in the same location as the current private outdoor space. 8.7 Accordingly, it is concluded that the proposal is not anti-pathetic to the objective', to not detract from the heritage significance of the conservation area. 31 From the viewpoint of persons standing in Paddington Lane the proposal would be low in scale and the new roof of the rear extension would not be visible. The applicant is willing to maintain the existing clear glass windows either side of the entrance door on Paddington Lane and to maintain the form and appearance of the existing single-storey weatherboard building. The plans in Exhibit A were amended to reflect this and I accept the evidence of Mr Smith that the proposal would not detract from the heritage significance of the conservation area when viewed from Paddington Lane. 32 From Windsor Street the proposed new roof and louvre screen would be visible at a distance of some 23m from the southern footpath and would be seen through a break between Nos 19 and 21 Windsor Street. In my opinion the impact on the streetscape of Windsor Street or on the conservation area from this viewpoint would be so slight as to not warrant refusal of the application. The photographs supplied by Mr Andrews confirms the impact, which would result in the foliage of trees to the south being lost to view. 33 Mr Rowan gave evidence that the proposal would reduce the open area between the rear of the Windsor Street properties and their outbuildings such as rear lane garages. This open area stretches the length of a street block and was estimated to be of the order of 200m. The open area is blocked at the western end by the sidewall of No 19 Windsor Street which is a terraced house that is out of alignment with others in Windsor Street. The proposal would partially block the open area some 6m short of the sidewall of the neighbouring terraced house (No 19). Mr Rowan considered some blocking of the open area acceptable. He found acceptable a rear extension on the land, built as a lean-to structure, against the sidewall of No 19 Windsor Street. The proposal would partially block that open area around 3.5m short of the extension that Mr Rowan would condone. In the circumstances, I would not refuse the application for reason of it partially blocking the rear area of the Windsor Street properties and that it would detract from the heritage significance of the conservation area when viewed from the rear of those Windsor Street properties and from Paddington Lane. Proposed bulk and scale of the development 34 The proposal when viewed from the rear of No 21 Windsor Street and the courtyard of No 23 Windsor Street would be of a similar bulk and scale to the rear extension of Nos 19 and 23 Windsor Street. This was confirmed on site by means of a calibrated telescopic pole and by reference to the survey plan in relation to the levels of No 19 Windsor Street. The pole may be seen in the photographs taken by Mr Andrew some taken in the rear courtyard of No 21 Windsor Street. The enclosing effect when viewed from No 23 Windsor Street would be ameliorated, in part, by the stepped in plan party wall between the land and No 21 Windsor Street. Some sky would be lost from viewpoints within the rear yard of No 21 Windsor Street and from the rear courtyard of No 23 Windsor Street; however, the proposed rear extension would largely fall within the profile of the sidewall of No 19 Windsor Street. I would not refuse the application for reason of its bulk and scale. 35 Issue 6 was whether the proposed development would be acceptable having regard to its non-compliance with Part 5.3.1 of the PDCP, in that it would adversely impact on the integrity and setting of the existing single-storey building. 36 Clause 5.3.1 of the PDCP relates to single-storey buildings. Objective O3 and Guideline/control G4 is: O3 To conserve the settings of single storey buildings: G4 Single storey additions of an appropriate form and scale are permitted to the rear of existing buildings. 37 Under the Environmental Planning and Assessment Act 1979 s 79C the Court is required to give "real, genuine and proper" , consideration to the provisions of the development control plan and these provisions should be a focal point of the planning consideration. Zhang v Canterbury (2001) 115 LGERA 373 per Spigelman CJ. 38 The proposed rear extension would not be visible within the context of Paddington Lane above the ridge of the existing cottage. From the rear, in the courtyards of Nos 21 and 23 Windsor Street and from the footpath in Windsor Street, the proposal would be visible, however, the bulk and scale would be no greater than found in those neighbouring properties. 39 The proposal is not of a design form anticipated in the design suggestions under Section 5.3.1 of the PDCP, [Note Exhibit 4 p 94], where a pavilion structure "... involves constructing a separate block element which repeats the general form of the original house." 40 However, despite such pavilions being restricted in most cases to single-storey, a two-storey pavilion would be acceptable "...when it is not visible from the street and when it has negligible impact on the amenity of neighbouring properties in terms of loss of sun, light and ventilation, and when it does not adversely affect the setting of the building or dominate the existing building in terms of bulk, height and scale." 41 In Section 5.3 of the PDCP [Note: Exhibit 4 Fig 4 p 95] an extension to a cottage is shown as 'intrusive development' if it does not respect the existing scale and form. 42 Mr Rowan's evidence was that [Note: Exhibit 5 p 17]: The extension will dominate the rear elevation and presentation of the cottage within its site, and diminish any understanding of its original context from surrounding properties. 43 The proposal would conserve the setting of single-storey buildings when viewed from Paddington Lane and would be a rear two-storey addition of an appropriate form and scale and different to that shown in Figure 4 as it would not be visible above the roof of the existing. In this regard I prefer the evidence of Mr Smith that the proposal makes a "well-mannered response to that context". Potential for adverse overshadowing as a result of the proposed development and the potentially adverse visual and acoustic privacy impacts upon the adjacent properties 44 There would be some overshadowing of the courtyard of No 23 Windsor Street in the afternoon from the equinox to midsummer, as shown in Exhibit A Drawing No DA03. As was confirmed by the shadow diagrams there would no additional overshadowing in the winter months of No 23 Windsor Street courtyard. The orientation is such that this impact during this [summer] period would be slight. I am satisfied that the level of overshadowing would not be a reason to refuse the application. 45 The proposed fixed and canted louvres covering the northern windows would ameliorate visual privacy impacts on No 21 Windsor Street. There are no other visual privacy impacts identified. 46 Acoustic privacy would be limited by the fact that the upper floor would be used as a sleeping area. The ground level courtyard would be excavated slightly and together with new masonry walls noise from the lower habitable level might be ameliorated. The same or slightly lower noise levels as presently exist might be expected from the normal domestic use of the ground floor of the proposal. Provision of private open space and soft landscaping 47 The provision of private open space and soft landscaping on the land would be less than presently provided. Mr Rowan's concern in this regard seemed to relate to the lack of sunlight to the courtyard in midwinter due to the height of the enclosing wall, the level of the proposed courtyard and the shading effect of other buildings nearby. However, the proposed open space would be on the northern side of the proposed extensions and around midday in midwinter the rooms that open onto the courtyard would receive sunlight despite the ground of the courtyard being mostly in shade at that time. 48 North facing living rooms are desirable and overall, I consider the limited solar access would not be a reason to refuse the application. 49 For the above reasons, the appeal is upheld. Conditions 50 The conditions are those in Exhibit 6 as amended during the hearing. Orders 51 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 373/2003/1 lodged with the respondent council on 12 May 2003, to alter and add to the rear of an existing weatherboard cottage on Lot B DP 436837, being No 1 Paddington Lane, Paddington, is approved subject to conditions 1 to 52 in Annexure A. 3. The exhibits with the exception of Exhibits A, B, C, 1 and 6 are returned. S J Watts Commissioner of the Court sw Conditions of development consent Annexure A Burkhart Enterprises Pty Limited v Woollahra Council 1. Alterations and additions: This consent relates to the work, shown in colour, on drawing number 01C Version C dated 6 February 2004, drawing number 02B Version B dated 22 January 04 and drawing No DA03C Version C dated 6 February 2004, drawn by Garcia Negrette Architecture and Design, except where amended by the following conditions. 2. Retention of the original front façade: The front of the building including the timber cladding, doors and windows shall be retained and conserved. This condition is imposed in order to protect the heritage significance of this building within the context of the Paddington Heritage Conservation Area. 3. New roofing materials: The new roofing shall be corrugated in profile and grey in colour. This condition is imposed in order to protect the heritage significance of this building within the context of the Paddington Heritage Conservation Area. Details are required to be shown on plans submitted to Council or the Accredited Certifier with the Construction Certificate application. 4. Obscured white glass in front windows: The proposed obscure white glass to the front windows shall be deleted. This condition is imposed in order to protect the heritage significance of this building within the context of the Paddington Heritage Conservation Area. Details are required to be shown on plans submitted to Council or the Accredited Certifier with the Construction Certificate application. 4A. Construction – Methodology: The applicant shall provide a detailed methodology statement, prepared by a consultant qualified in heritage conservation and with experience in construction management. The statement shall include recommendations to be implemented by the applicant to ensure retention of the existing cottage during the period of excavation and construction. The methodology statement shall address the impact of construction upon the cottage and identify measures to ensure there is no impact to the fabric of the cottage, in terms of: - Access for loading and unloading of materials, machinery; - Storage of materials; - Provision of services (including below ground services); - Support of the existing structure; - Protection of the structure; and - Identification of elements that detract from the remaining fabric and/or reconstruction of elements damaged and/or requiring replacement due to damage or deteriorated condition. The statement shall be presented to the Council and to the PCA prior to the commencement of works, with the applicant to implement those measures and remain responsible for the protecting of the remaining components of the cottage during construction. 5. Water conservation: Low-flow water regulators must be fitted to all new kitchen and bathroom taps, water saving showerheads must be fitted to all new showers and dual flushing toilet systems fitted to all new toilets within the development to reduce water consumption and promote energy efficiency. 6. Stormwater Management Plan: Prior to the issue of the Construction Certificate, a Stormwater Management Plan for the development site must be submitted to the Accredited Certifier. This Condition is imposed to ensure site stormwater is disposed in a controlled and sustainable manner. The Stormwater Management Plan must be in accordance with Council's Draft Stormwater Development Control Plan and Local Approval Policy (DCP-LAP), and generally in accordance with the drainage plans and documentation prepared by Henry & Hymas Consulting Structural Engineers (Refer to Dwg No. 03089-C01 dated 3rd June 2003). Any new kerb connections must be made using galvanised Rectangular Hollow Sections (RHS) (125 x 75 mm), or suitable kerb adaptors, to prevent ongoing damage to the kerb. A maximum of two kerb connections per nominal 15 metres of site frontage is allowed. Conduits must be separated by a minimum of 3 metres where more than one is required. The Stormwater Management Plan, prepared by a suitably qualified civil or hydraulic engineer, must include the following specific requirements (as appropriate for the site and determined by the Hydraulic Consultant): (a) Layout plan: A detailed drainage plan at a scale of 1:100 based on drainage calculations prepared in accordance with the Institute of Engineers Australia publication, Australian Rainfall and Run-off, 1987 edition or most current version thereof. It must include: - All pipe layouts, dimensions, grades, lengths and material specifications; - All invert levels reduced to Australian Height Datum (AHD); - Location and dimensions and of all drainage pits: - Point of connection to Councils drainage infrastructure; - Overland flow paths over impervious areas. (b) Subsoil drainage details (layout, grades, material), clean out points and discharge point. (c) Pump/Sump: - Type of pumps, sump details, discharge rate, pump curves for pump rates versus head, operational head with head-losses, pump arrangements and switches. - Details of buffer storage and stilling pits. - Details of buffer storage/pump timer so that subsoil discharge occurs at night and infrequently. - Details of storage location for pump failure, and location of inundation warning signage if required. 8. Pump/Sump: Details of any pump/sump drainage systems must be included in the Stormwater Management Plan and must be approved by the Accredited Certifier prior to the issue of the Construction Certificate. A hydraulic engineer must design the pump out system. Any pumps and sumps incorporated in the site drainage system must satisfy the following design criteria: - All pump and sump systems for stormwater disposal must incorporate adequate buffer storage as recommended by the pump manufacturer. As a minimum, the pump out system must consist of a duty and stand-by pump. - The total discharge from the site, including pumped and gravity discharge, shall not exceed the specified Peak Site Discharge (PSD) of 34 Litres per second per 1000m2 of site area, in the 1 in 100 Yr ARI Storm Event. Where pump rates, lower than the recommended PSD are utilised, additional On-Site Detention must be provided. An independent calculation must be submitted with the Stormwater Management Plan. - The pump rising main must be installed in accordance with AS3500 national Plumbing and Drainage Code, other relevant codes for pressure pipe systems and the manufacturer's specification. Discharge from the system must pass through a stilling pit located within the site boundary prior to discharging to Council's system. - Discharge from the site to Council's in-ground drainage system must be protected by a non-return valve or flap located within the property. - The pump-out sum and associated storage must be located in an accessible and easily maintainable location. In the event of the failure of both the duty and stand-by; - The areas used for emergency storage must be sited with a view to minimising the cost of damage to occupiers of the property. A weather resistant sign must be placed in the emergency storage area warning residents that inundation of the area may occur in the event of a pump failure. - Pump units selected should be suitable for stormwater containing silt and grit as a minimum with appropriate screening for large solids. Screening details must be similar to the requirements for On-site Detention (OSD) Systems. All electrical fittings and supply must be located to have 150mm freeboard above the OSD or buffer storage top water level and/or any overland flow paths. 8. Positive Covenant - Drainage system: Positive Covenant, pursuant to Section 88E of the Conveyancing Act , must be created on the title of the subject property. The Covenant must provide for the indemnification of Council from any claims or actions and the on-going maintenance of the on-site detention and/or pump and sump system in the development. This includes all ancillary gutters, pipes, drains, walls, kerbs, pits, pumps, grates, tanks, chambers, basins and surfaces designed to temporarily detain stormwater. The wording of the Instrument must be in accordance with Council's standard format and the Instrument must be registered at the Land Titles Office prior to the Final Building Inspection and issuance of the Certificate of Occupation. 9. Stormwater Certification and Work-As-Executed (WAE) Plans: Prior to the release of the Final Building Certificate, Certification and Work-As-Executed (WAE) plans must be submitted and approved by the Accredited Certifier demonstrating that the site drainage system has been provided according to the submitted calculations and/or approved plans. Certifications must be provided by a suitably qualified engineer. WAE plans must be prepared and certified by a Registered Surveyor. The following must be provided: (a) Certification that: - The drainage system has been installed in accordance with the drainage Conditions of Development Consent. - That all drainage components are structurally adequate and have been installed in accordance with the relevant Codes and Standards and/or specifications. (b) Work-As-Executed (WAE) plans showing: - Pipe and drainage system layout, including all pits, pipe diameters, grades, materials, invert levels and surface levels. - Details (exact point and method) of connection to Council system - The sump location with finished surface levels and dimensions. - Rising main grades, materials and invert levels and surface levels. - Stilling pit and back-flow prevention. - Pump details (make and model), rating curves and switch levels (on/off points). 10. Display of Council's warning sign for soil and water management: Throughout the excavation and construction period, Council's warning sign for soil and water management must be displayed on the most prominent point of the building site, visible both from the street and site. A copy of the sign is available from Council. 11. Stockpiles: Stockpiles of topsoil, sand, aggregate, soil or other material must not be located on any drainage line or easement, natural watercourse, footpath or roadway, or within the dripline of any Street Tree. Stockpiles within the construction site must be protected with adequate sediment controls, in accordance with Council's Code for Sediment Control. 12. Location of building operations: Building operations such as brick cutting, washing tools or brushes and mixing mortar must not take place on public roadways or footways or in any other location which could lead to the discharge of materials into the stormwater drainage system. Footpaths, gutters and roadways must be swept regularly to keep them free from sediment. 13. Temporary disposal of roof water: Stormwater from any roof areas must be linked, via a temporary downpipe, to a Council approved stormwater disposal system immediately upon completion of the roof installation. 14. Disposal of site water during construction: The disposal of site water (includes groundwater, seepage, dewatering and stormwater trapped in excavations) must be in accordance with the requirements contained within Council's "Stormwater "draft" Development Control Plan and Local Approvals Policy". Disposal of site water to Council's stormwater system is not permitted unless an appropriate treatment method, approved by Councils Drainage Engineer, is implemented. In the event of contaminated water, the applicant is advised to liase with Sydney Water regarding a Trade Waste Agreement. 15. Damage security deposit: A security deposit of $4,400 (Four thousand, four hundred Dollars) for the cost of making good any damage to Council property caused as a consequence of the construction work, plus an administration fee of $150.00, must be paid to Council prior to the issue of the Construction Certificate. The security deposit, which may be in the form of a bank guarantee, has been calculated in accordance with the following schedule. Estimated cost of work Deposit Works up to $50,000 $2,000 Works in excess of $50,000 & up to $100,000 $4,000 Works in excess of $100,000 $4,000+$200/$10,000 estimated cost>$100,000 Council may use all or part of the Damage Security Deposit to complete damage restoration works if they do not meet Council's requirements. 16. Footpath levels: The existing footpath level and grade at the street alignment of the property must be maintained. 17. Protection of services: Prior to any excavation works, the location and depth of all services (telephone, cable TV, electricity, gas, water, sewer, drainage, etc.) must be ascertained. The developer must meet all costs of any adjustment, relocation or reinstatement of any services. 18. Road Opening Permit: Prior to the commencement of any excavation in Council controlled roadways or footpath areas, the developer must obtain a road opening permit from Council's Customer Services Counter. Restoration of roads, footpaths, retaining walls, kerbs and gutters must be carried out in accordance with the relevant clauses of the current edition of AUS-SPEC. 19. Storage of materials and plant on Council's footpath: Building, excavation or demolition materials and plant must not be stored on Council's footpath and/or roadway unless prior written approval has been obtained from Council's Development Engineer. 20. Public footpaths: A safe pedestrian circulation route a minimum of 1.5m wide and with a pavement free of trip hazards must be maintained at all times on or adjacent to the public footpaths fronting the construction site. Where the footpath is damaged, repair works must be carried when directed by Council officers and in accordance with the relevant clauses of the current edition of AUS-SPEC. Where circulation is diverted on to the roadway clear directional signage and protective barricades must be installed in accordance with Aust AS1742-3 1996 "Traffic Control Devices for Work on Roads". If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may carry out remedial works and deduct the cost from the Damage Security Deposit. 21. Repair of Damaged Infrastructure: If Council's infrastructure is damaged during the course of works, Council's Development Engineer must be notified and necessary repairs must be undertaken within the time stipulated by Council, to Council's specifications, and at no cost to Council. Works generally must be in accordance with the relevant clauses of the current edition of AUS-SPEC. If work is not undertaken to the satisfaction of the Development Engineer with regard to time or quality, Council may carry out remedial works and deduct the cost from the Damage Security Deposit. 22. Requirement for a Construction Certificate: In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979 , the erection of the building must not be commenced until: (a) detailed plans and specifications of the building have been endorsed with a Construction Certificate by: - Council; or - an accredited certifier; and (b) a principal certifying authority (PCA) has been appointed and the Council has been notified in writing of the appointment, and (c) at least two days notice, in writing, has been given to Council of the intention to commence work. 23. Materials: Details of the colour, texture and substance of all external materials must be submitted to Council or the accredited certifier prior to the issue of a Construction Certificate and are to be to the satisfaction of an authorised Council assessment officer or the accredited certifier. For properties that are located in a Conservation Area or that are Heritage Items, the proposed materials must be to the satisfaction of Council's Heritage Officer. 24. Drawings to show levels and heights: The reduced levels of the ground floor, first floor and the overall height of the roof in relation to Australian Height Datum must be shown on the drawings submitted with the Construction Certificate Application to ensure that building construction complies with the development consent. 25. Structural adequacy: A statement from a qualified practising Structural Engineer, certifying to the adequacy of the existing structural members, walls and footings to support the additional loads imposed by the proposed development, must be submitted with the Construction Certificate application. This condition is imposed to ensure the structural integrity of the proposed building work. 26. Structural details: Structural engineering details and design calculations, prepared and certified by a qualified practising Structural Engineer, must be submitted with Construction Certificate application, for all reinforced concrete work, structural steel work, retaining walls, brick fences, shoring and underpinning, isolated piers, chimneys, parapets and other structural members. This condition is imposed to ensure the structural integrity of the proposed building work. 27. Layout of buildings: The layout of all external walls, including retaining walls and contiguous piling must be checked and verified by survey prior to the commencement of construction to ensure that building construction complies with the development consent and does not encroach beyond the boundaries of the site. 28. Demolition, excavation and construction hours: Demolition, excavation and construction work must not take place outside the hours of 7.00am to 5.30pm Monday to Friday and 7.00am to 1.00pm Saturday. No work and no deliveries are to take place on Sundays and public holidays. Noise from construction activities associated with the development must comply with the guidelines contained in the NSW EPA Environmental Noise Control Manual Chapter 171. 29. Machine excavation: Excavation or removal of any materials involving the use of machinery of any kind, including compressors and jack hammers, must be limited to between 9.00am and 4.00 pm Mondays to Fridays, with regular breaks of 15 minutes each hour. This condition is imposed to ensure reasonable standards of amenity for occupants of neighbouring properties. 30. Levels: For the purpose of indicating relative levels in terms of Australian Height Datum and boundary clearances, and to ensure that building construction complies with the development consent, survey certificates must be provided to the PCA in respect of the building/s layout and ground floor level/s prior to pouring of concrete or laying of timber floor boards. 31. Building Inspections: The Applicant, Owner and Builder, jointly and severally, must ensure that they call their Principal Certifying Authority ("the PCA") to carry out such critical phase building inspections required by the PCA, the PCA Service Agreement and that the PCA is satisfied with the level of compliance achieved before the Builder proceeds to the next phase of construction. Ample notice of required inspections must be given to the PCA in accordance with the PCA Service Agreement. The Applicant, Owner and Builder must comply with the PCA Service Agreement (Service Contract) and any lawful direction given by the Principal Certifying Authority. Note: It is the responsibility of the PCA to ensure that critical phase building inspections are undertaken in accordance with a PCA Service Agreement and issue to the Applicant, Owner and Builder appropriate Notice under Section 109L of the Environmental Planning & Assessment Act 1979 ("the Act") where any breach of this consent occurs. Failure of the PCA to issue such notice may result in Council taking action under Section 109V of the Act. Failure of the Applicant, Owner and Builder to comply with a PCA Service Agreement and comply with lawful directions of the PCA under this condition may result in Council issuing fines, notices, orders and commencing legal proceedings. Council will only enter into PCA Agreements with the Owner of the land being developed. Council, if appointed as the PCA, will report to the owner of the land being developed. 32. Requirement for a Compliance Certificate: A Compliance Certificate must be issued prior to the issue of an Occupation Certificate certifying that the development has been built and completed in accordance with the development consent and that all the conditions of development consent have been satisfied. 33. Wet areas: All floors of wet areas are to be constructed and finished so as to be impervious to water and graded to a sufficient number of floor drains. 34. Details of external structures: Details of any external vents or structures on the roof or above the eaves must be submitted to Council for approval with or before the application for a Construction Certificate. 35. Downpipes: Downpipes must not project or discharge from the property boundary onto the footway. 36. Long Service Levy Payment: A Long Service Levy under Section 34 of the Building & Construction Industry Long Service Payment Act , 1986, must be paid and proof of payment provided prior to the issue of a Construction Certificate. The Levy can be paid directly to the Long Services Payments Corporation or to Council. 37. Standard for demolition: All demolition work must be undertaken in accordance with the provisions of Australian Standard AS2601-2001: The Demolition of Structures. 38. Dilapidation reports: A dilapidation report on the current structural condition of the existing buildings at Nos 19, 21 and 23 Windsor Street, Paddington must be prepared by a practicing structural engineer. The Report must be completed and submitted to Council prior to the commencement of any demolition, excavation or construction works. A second dilapidation report recording structural condition must be carried out on Nos. 19, 21 and 23 Windsor Street, Paddington, at the completion of the works and be submitted to Council. 39. Deleted. 40. Compliance with Building Code of Australia : All building work must be carried out in accordance with the provisions of the Building Code of Australia. This condition does not apply to the extent to which an exemption is in force under Clause 187 or 188, of the Environmental Planning and Assessment Regulation 2000 , subject to the terms of any condition or requirement referred to in Clause 187 (6) or 188 (4) of the Regulation. 41. Residential building work: 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 (PCA) for the development to which the work relates: (a) in the case of work to be done by a licensee under that Act: * has been informed in writing of the licensee's name and contractor license number; and * is satisfied that the licensee has complied with the requirements of Part 6 of that Act; or (b) in the case of work to be done by any other person: * has been informed in writing 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 reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in Section 29 of that Act, * and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs. Note : The amount referred to in paragraph (a) (iv) above is prescribed by regulations under the Home Building Act 1989 . As at the date on which this Regulation was Gazetted, that amount was $5,000. As those regulations are amended from time to time, so that amount may vary. A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part. 42. Excavations and backfilling: All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. 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. 43. Retaining walls and drainage: If the soil conditions require it: retaining walls associated with the erection or demolition of a building or other approved methods of preventing soil movement must be provided; and adequate provision must be made for drainage. 44. Support for neighbouring buildings: 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: must preserve and protect the building from damage; and if necessary, must underpin and support the building in an approved manner; and 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. 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 condition, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. In this condition, allotment of land includes a public road and any other public place. 45. Protection of public places: If the work involved in the erection or demolition of a building: is likely to cause pedestrian or vehicular traffic on a public place to be obstructed or rendered inconvenient, or 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 must be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place. Any such hoarding, fence or awning must be removed when the work has been completed. Note : Prior to the erection of any hoarding, fence or the like on any footpath or other property owned or controlled by Council, permission must be sought and obtained from Council and the prescribed rental fee paid. 46. Signs to be erected on building and demolition sites: 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: stating that unauthorised entry to the work site is prohibited; and 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 must be removed when the work has been completed. This clause does not apply to: building work carried out inside an existing building; or building work carried out on premises that must be occupied continuously (both during and outside working hours) while the work is being carried out. 47. Toilet facilities: Toilet facilities must 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: must be a standard flushing toilet; and must be connected: to a public sewer; or if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council; or 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 (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in Clause 95B of the Regulation. 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. 48. Residential building work over $12,000 in value: Council must be provided with the following information prior to the commencement of any works: the proposed builder's details (in writing); and proof of payment of the required insurance premium pursuant to Part 6 of the Home Building Act 1989 . 49. No external services or the like shall protrude through the front roof slope or front southern elevation of the existing cottage. 50. North facing louvres to the first floor bedroom shall be fixed at an angle to the horizontal of 60 degrees, as shown on the plans. 51. Flashing: The flashing over the roof of the new building shall be designed to avoid trespass on adjoining properties. 52. Flue: The flue to the gas fireplace shall be repositioned so that it does not discharge near the air vents of No 19 Windsor Street. S J Watts Commissioner of the Court 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.