Land and Environment Court of New South Wales CITATION : Nelson v Ku-ring-gai [2004] NSWLEC 131 APPLICANT M & N Nelson PARTIES : RESPONDENT Ku-ring-gai Municipal Council FILE NUMBER(S) : 11279 of 2003 CORAM: Hoffman C Development Application :- Detached Dual Occupancy Development two street frontages KEY ISSUES: solar access location of private open space disable persons access preservation of existing trees LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Ku-Ring-Gai Planning Scheme Ordinance CASES CITED: State Environmental Planning Policy No. 53 DATES OF HEARING: 1/03/04 EX TEMPORE 03/01/2004 JUDGMENT DATE : APPLICANT Mr S Kondiliois, solicitor SOLICITOR Maddocks Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr D Thomas, solicitor SOLICITOR Wilshire Webb JUDGMENT: 7 IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11279 of 2003 Hoffman C 1 March 2004 M & N Nelson Applicant v Ku-Ring-Gai Municipal Council Respondent Judgment 1 . This was a class 1 appeal number 11279 of 2003, between Mr and Mrs Nelson and Ku-Ring-Gai Council, in regard to the refusal of a detached dual occupancy development at No. 5 Dunoon Avenue, West Pymble. 2 . The site was a corner lot with a 23 m frontage to Dunoon, and 40 m frontage to Bandalong Avenue. There was a uniform cross fall from No 3 Dunoon across the site down to Bandalong of about 3 m. There were mature trees around the perimeter of the site, nearly all of them were to be kept. Only a mulberry tree and a camellia on the site were to be removed, and a small street tree was to be removed that was almost beneath the canopy of another large street tree. The council did not object to any of these due to the considerable number of remaining trees. 3 . House A fronted Dunoon, and house B fronted Bandalong, each with a separate drive entry and front porch, such that they would appear as two separate houses. 4 . One of the issues that arose was disabled access. House A had an almost level walkway from Dunoon to the front porch. House B, since it was uphill of Bandalong, had a rise of about two metres along the proposed pathway, and this necessitated steps that would prevent disabled access. The applicant's experts said the reason for this was partly to retain good solar access to house B and its private open space. To retain the solar access it was necessary to align the floor level with the uphill end of the site, to prevent overshadowing. Thus on the street front the floor level was about one metre above natural ground level. A disabled person's ramp from the excavated driveway to the front door would mean excavation around the roots of a significant angophora costata, and then fill over the roots to rise up to the entry level. The tree would die. 5 . Also the statute, State Environmental Planning Policy No 53 , only required disabled access where it was feasible and appropriate. There was some evidence about this on site and back in the courtroom. 6 . There was evidence about the adequacy of private open space for a terrace in the street front set back of house A, and also solar access to the rear courtyard of house A, and solar access to the northern windows of house B, and its rear private open space. 7 . The amended issues were: 1. Whether the two storey design of the proposed development satisfactorily responds to the characteristics of the site and surrounding development, having regard to cl 3(1)(d) of SEPP 53. 2. Whether the submitted site analysis is satisfactory having regard to cl 31 of SEPP 53. 3. Whether the proposed development will contribute to an attractive residential environment with clear character and identity, use building form and siting that relates to the site's landform, and adopt building height and street frontages that are compatible in scale with the adjacent development, having regard to cls (32)(a)(i) and (32)(h)(b) of SEPP 53, and aims (1)(a) and (b), and objective (2)(e) in schedule 9 of Ku-ring-gai Planning Scheme Ordinance. 4. Whether the development will result in adequate sunlight to the private open space areas of houses A and B pursuant to cl (32)(c)(i) of SEPP 53. 5. Whether the proposed development should have convenient, obvious and safe bicycle lanes on the site, that provide access to public transport services and local facilities and involve site layout and design, that enables people with a disability to access on one continuous and accessible path of travel of street frontage, car parking in all buildings, facilities and open spaces within the site, having regard to cl (32)(f) of SEPP 53. 6. Whether the proposed development should be provided with waste facilities and maximise recycling by the provision of appropriate facilities having regard to cl (32)(g) of SEPP 53. 7. Whether the proposed development is satisfactory in relation to s 79(C)(1)(e) of the EP&A Act 1979, having regard to the issues raised by objectors, and whether the proposal would be in the public interest. 8. Whether the proposed development meets the requirements of council's Dual Occupancy Development Control Code, and will have an acceptable impact upon adjoining properties, future residents of the proposal, and the environment in regard to streetscape design for climate, accessibility, waste storage facilities, building set backs, building form, height, cut and fill landscaping and open space provisions. 9. Whether the architectural plans accompanying the development application ought to be amended to include relative levels consistent with the requirements of AS1100.301 - 1985, Australian Standard Technical Drawing Part 301, Architectural Drawing 3. 8 . By the time of the hearing the issues had been resolved largely down to those already mentioned, and those that the court will discuss in the judgment. The expert planners had met and provided an expert report in ex 4. They agreed that the predominant statute applicable was State Environmental Planning Policy No 53 , rather than the Ku-ring-gai Planning Scheme Ordinance , or its dual occupancy development control code. 9 . The Court had the respondent's evidence from: · Mr G Goodyear, Town Planner. 10 . Quite a number of local residents were notified of the proposal, but only one had objected, the owner of No 3 Dunoon, next door, and uphill and to the west of the proposal. The objector had been advised of the hearing, but declined to give oral evidence, but the written objection was tendered. 11 . The applicant's evidence was heard from: · Mr R Minto, Town Planner. 12 . In the end the applicant did not object to any of the council's draft conditions, and added two more. One of these enabled disabled person's access to the house B via a curved pathway from the Bandalong footpath rather than the excavated driveway. It would be more or less along the contours of the slightly skewed cross-fall of the site. This would avoid any excavation for the pathway where the path was beneath the drip line of the angophora costata. It would be supported on piers instead of fill to avoid damage to the tree. 13 . The path would end up at the front porch of the house with no steps. Persons using the driveway would walk up its slope, and then steps to the porch level, but it was not intended that disabled persons would use that alternative. This showed that providing reasonable access for disabled persons could be achieved and could be provided. House A did have easy disabled access, and the provisions of the statute therefore were reasonably complied with. 14 . The other condition extended the proposed street front hedge vegetation on Dunoon in the landscape plan up to the driveway of house A. This would prevent people on the street seeing across to the terrace outside the living room of house A within the street setback. From other positions in the street, existing trees on the boundary had canopy almost to ground level, and combined with the proposed street front hedge persons on the street would not see the terrace. This ensured adequate privacy for the occupants of house A. 15 . The applicant put that this additional landscaping was not necessary as the level of privacy was acceptable. In looking at other houses in the street, most had front verandahs or balconies with tables and chairs facing the street, and their occupants appeared to consider that it constituted adequate privacy. The Court considered this and concluded that the streetscape had pleasant lawns and street trees that made it a pleasant aspect for nearly all the houses nearby, but they also had substantial backyards that got excellent sun and substantial privacy if the occupants wanted it. 16 . In dual occupancy proposals the outdoor private open space was limited in area due to the higher density of development, and so the choices of the occupants were more limited. House A's rear private open space would not get a lot of sun in mid winter, but the north facing front terrace would. So the front terrace was likely to receive considerable use in winter, whilst the rear courtyard would probably be favoured in summer. The occupants would not have the choice of finding good solar access in a large backyard such as had the single houses in the locality. As a result the extra landscaping to Dunoon and house A should be required, and would satisfy the intention of SEPP 53 in providing the more dense development with good design outcomes. 17 . In regard to the objector the Court notes the principal concerns were: (a) He purchased in West Pymble to escape medium density development; (b) Most houses in the area are single storey, and two storey is inappropriate; (c) The local street should not have increased traffic; (d) Significant native trees are to be removed; (e) The slope of the land will affect the drainage of the area; (f) His main bedroom, dining room and deck will be shadowed; (g) The noise and lights of the rear courtyards of both houses A and B will affect his main bedroom; (h) His views to distant Chatswood from his deck would be interrupted. 18 . The Court has concluded as follows, the applicable statute is SEPP 53, and it provides for suitable medium density development on suitable allotments. As a State Government objective of urban consolidation development applications that prove acceptable should not be refused. The character of the proposed development is detached houses, and that is the character of the area. Having separate entries on two different streets retains that character. 19 . Two storey development is possible in the locality under even the Ku-Ring-Gai Planning Scheme Ordinance, and provided the design is acceptable, being two storeys should not be an automatic reason for refusal. Also the Court noted the second storey of each house in the proposal stepped back to be smaller than the ground floor footprint, this reduced visual scale. Due to this and other design features, there was considerable articulation in the facades and roofs that made the two houses compatible with the adjoining and adjacent houses. 20 . It was noted the objector's house was single storey above a high foundation adjacent to proposed house A. There was about seven metres separation between buildings, and due to the slope, house A's ground floor was about three metres below the floor level of No 3 Dunoon. As a result it would present little bulk above the fence line adjoining No 3. The second storey section of house A was at the Bandalong Avenue end of house A. House B was single storey adjacent No 3's backyard, and downhill of it. 21 . The visual impact of both on No 3 was reasonable and acceptable. 22 . The juxtaposition and design also meant, according to the shadow diagrams, that even at midwinter there would be very little shadow impact, and then on the driveway only of No 3, and the shadow would be completely off No 3 by about 11am. There would be no shadowing of bedroom, dining room, or deck of No 3. 23 . The profile of the second storey of both houses A and B was below the canopy of the existing trees on the eastern side, which was the direction of the Chatswood high rises, so one is hesitant to accept that the proposal would block such distant views glimpsed only through existing tree canopies. 24 . As mentioned before, native trees on site were to be kept, not removed. The respondent council was happy that drainage of the site could be done downhill to Bandalong Avenue which would not affect No 3 at all. Detention tanks would reduce runoff to no greater than existing levels, so that concern over impacts on local drainage were not valid. 25 . Also the respondent's traffic engineers had no objection to the proposal and considered its two separate driveway accesses were safe, and that the local streets were well able to cope with the extra traffic of one additional household. 26 . The only remaining concern of the objector was lights and noise from the rear courtyards of both houses A and B. It seemed to the Court that even the existing suburban houses would have parties or activities from time to time. The one extra household would not generate sufficient extra activity to cause unacceptable impacts to occur above normal suburban expectations. 27 . In any case house A may well choose to use its street front terrace and garden that had direct access from the living room French doors, and that was at the opposite side of the site to No 3, and would cause little disturbance. 28 . In regard to house B the amended plan also moved the fence between house A and house B to increase solar access to house B's northern windows to its family and dining room, and private open space. Eastern windows to its living room and north-west windows to its meals and kitchen area would give good sunlight morning and evening. 29 . Overall the Court has concluded there were no issues sufficient for refusal of the proposal, and the provisions of State Environmental Planning Policy 53 had been satisfied sufficiently with the amendments now proposed, and the development would constitute good design and fit well into the streetscape. 30 . Therefore the orders of the court are: 1. The appeal is upheld. 2. Consent is granted to a detached dual occupancy development at No. 5, Dunoon Avenue, West Pymble as shown on the drawings in Exhibits A and B, being drawings 1719/01, 02, 03, all as amended to 3 February 2004, by Rob Crump Design, and landscape plan drawing 0346, issued as amended to 6 February 2004, by Jocelyn Ramsay and Associates Pty Ltd all as further amended by and in accordance with the conditions in Annexure A hereto. 3. Annexure A shall comprise the conditions in Exhibit 6 and E of the appeal. 4. The Exhibits are returned to the parties except Exhibits A, B, C, E and 1, 4 and 6. K G Hoffman Commissioner of the Court nm/mp Appeal No: 11279 of 2003 Annexure A Conditions of Consent PREMISES: 5 DUNOON AVENUE, WEST PYMBLE DEVELOPMENT APPLICATION NO: 845/03 PROPOSAL: DEMOLITION OF EXISTING DWELLING AND CONSTRUCTION OF NEW DETACHED DUAL OCCUPANCY SCHEDULE A CONDITIONS GENERAL CONDITIONS 1. The development to be in accordance with Development Application No 845/03 and Development Application plans prepared by Rob Crump, reference number 1719/01, 1719/02, and 1719/03 dated as amended 3 February 2004. 2. All building works shall comply with the Building Code of Australia. 3. The submission of the approved plans to Sydney Water, before any work is commenced. 4. The works set forth in the plans and specifications and approved under this consent, once commenced, shall be completed within two (2) years from the date of commencement. 5. The approved building shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plans and an Occupation Certificate has been issued. 6. For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plan and this Consent and Construction Certificate shall be kept on site at all times. 7. For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the road or footpath without the written approval being obtained from the Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be. 8. HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant. Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment. 9. For the purpose of public safety, a sign shall be erected on the site prior to any work commencing which is clearly visible from a public place stating that unauthorised entry to the site is not permitted and showing the name of the builder or another person responsible for the site and a telephone number for contact outside working hours. The sign may only be removed on satisfactory completion of the works. 10. A sign shall be erected in a prominent position on the site which states the name and contact details of the Principal Certifying Authority. 11. No rock breaking or other machinery for the excavation, drilling or removal of rock shall be used on the site without the prior approval of the Principal Certifying Authority. Should rock breaking or associated machinery be required, the following details are to be submitted to the Principal Certifying Authority for consideration: a. The type and size of machinery proposed. b. The routes of all trucks to convey material to and from the site. c. A report by a Geotechnical Engineer detailing the measures recommended in undertaking the work so as to prevent any damage to any adjoining or nearby buildings. 12. 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. 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. In this clause, allotment of land includes a public road and any other public place. 13. Toilet facilities are to be provided, within 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. 14. The burning of undergrowth, foliage, building refuse and like matter on the site is prohibited. 15. To reduce or eliminate the transport of sediment from the construction site onto public roads, a temporary construction exit, together with necessary associated temporary fencing, shall be established prior to commencement of any work on the site and shall be maintained throughout the duration and progress of construction. 15A. The demolition is to be carried out in accordance with the guidelines contained in Australian Standard 2601-1991: The Demolition of Structures. 15B. Demolition work, including removal of material or debris from the site, on any building in a residential area shall only be carried out during the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. 16. A person taking down or demolishing or causing to be taken down or demolished any building or part thereof shall, upon identifying or suspecting that asbestos is present in the building, immediately notify the Workcover Authority. The Authority is the controlling body for the safe removal, handling and disposal of asbestos. The Authority supervises and monitors contractors engaged in asbestos removal. The requirements and standards imposed by the Authority, its consultants or contractors shall be complied with. 17. Erosion control measures shall be provided on demolition sites to prevent the siltation of watercourses and drainage systems. 18. Dust control measures shall be taken on all demolition sites so as to avoid a nuisance to adjoining properties and harm to the environment. a. A person taking down or demolishing or causing to be taken down or demolished any building or portion of any building shall: i. cause the windows or other openings in the external walls to be close boarded or otherwise covered; ii. cause screens of canvas, hessian, boards, mats or other suitable material to be fitted in appropriate locations; iii. cause areas, components and debris to be wetted down; in such a manner as to minimise, as far as practicable, the nuisance arising from the escape of dust during such taking down or demolition. b. Such person shall not chute, throw or let fall or cause to chute, throw or let fall from the floor to floor or into any basement of such building any building materials or any other matter so as to cause dust to escape from the building or cause any such material to fall or cast upon a public way to the annoyance, inconvenience, or danger of persons using such public way. 19. Existing stormwater lines on the site are to be blocked and made inoperable after buildings are demolished so as to prevent the conveyance of silt or sediments into the gutter or street drainage system. 20. Trees and vegetation on a site shall not be disturbed except with the approval of the Council. 21. Deleted. 22. 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 clause 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. 22A. All demolition material of value for re-use either on-site or elsewhere, shall be separated and made available for re-cycling. 23. Deleted. 24. The landscape works shall be completed prior to issue of the occupation certificate and maintained in a satisfactory condition at all times. 25. Subject to condition 50, landscape works shall be carried out in accordance with Landscape Drawing No 346 dated July 2003 issue D amended 6 February 2004. 26. Tree planting to satisfy tree retention/replenishment requirements shall be completed prior to the issue of the final Certificate of Compliance Canopy and/or root pruning of the following tree/s which is necessary to accommodate the approved building works shall be undertaken by an experienced Arborist/Horticulturist, with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate: Tree/Location Cupressus sp / southern boundary adjacent dwelling B Angophora costata / Banadalong Ave frontage Eucalyptus sp ./ adjacent proposed driveway Dunoon Ave 27. Tree roots between 10mm and 50mm diameter, severed during excavation, shall be cut cleanly by hand and the tree subsequently treated with a root growth hormone and wetting agent, by an experienced Arborist/Horticulturist with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate. 28. No tree roots of 50mm or greater in diameter located within the specified radius of the trunk/s of the following, tree/s shall be severed or injured in the process of any site works during the construction period. Tree/Location Radius From Trunk Cupressus sp / southern boundary adjacent dwelling B 4 metres Angophora costata / Banadalong Ave frontage 5 metres 29. No mechanical excavation of the proposed structure shall be undertaken within the specified radius of the trunk/s of the following tree/s until root pruning by hand along the perimeter line of such works is completed: Tree/Location Radius From Trunk Cupressus sp / southern boundary adjacent dwelling B 4 metres Angophora costata / Banadalong Ave frontage 5 metres 30. All excavation carried out within the specified radius of the trunk/s of the following tree/s shall be hand dug: Tree/Location Radius From Trunk Cupressus sp / southern boundary adjacent dwelling B 3 metres Angophora costata / Banadalong Ave frontage 4 metres 31. The applicant shall ensure that at all times during the construction period no activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order. 32. On completion of the LANDSCAPE WORKS a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to issue of the Occupation Certificate. 33. All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works. 34. For stormwater control the access way directly in front of the garages shall be graded away from the door and towards an escape route. The design is to be configured so that overland flow, off the access way does not flow towards the garage door. If the driveway must grade toward the garage, then for stormwater control a 200mm wide grated channel/trench drain with heavy duty removable galvanised grates is to be provided in front of the garage door and connected to the stormwater drainage system. 35. For stormwater control all paved areas are to be drained to the main drainage system. 36. The stormwater line in the footway area, from the boundary pit to the kerb and gutter, shall be by way of a Steel Hot Dipped Galvanised Rectangular Hollow Section, of the appropriate size. This condition shall overide any other condition or reference to UPVC pipe connections. Footway crossings in UPVC pipe will only be permitted from the point where the obvert of the subject pipe, has more than 300mm of cover to the finished ground level. The sections of the pipe laid deeper than 300mm as described in the previous sentence, can be laid in UPVC sewer grade pipe. In the drainage line across the footway, where (1) a bend is placed, or (2) where the pipe changes from a UPVC pipe to a RHS), a cleaning eye shall be provided directly upstream of the subject location. 37. Stormwater runoff from all hard surfaces, or landscaped areas, which are not at natural ground level, shall be piped to the street drainage system. To ensure compliance with this condition, a Certificate from a suitably qualified person is to be submitted to the Principal Certifying Authority. 38. For stormwater control, an On-site Stormwater Detention System is to be provided in accordance with Council's Stormwater Management Manual. OSD systems are to be provided for both new residences. Separate detention systems are to be provided for each residence, unless the OSD is cited in a common area and an appropriate legal instrument is set up to ensure the various parties equitably share the ongoing maintenance of the facility. An overflow is to be incorporated that will direct any excess flow to the downstream drainage system and subsoil drainage is to be provided from the underside of the sediment control sump to the outlet line or other approved location. The system is to be cleaned regularly and maintained in working order. 39. During construction of the vehicle crossings the contractor is to make provision for safety of pedestrians and passing vehicles. As a minimum traffic control measures must be provided in accordance with Figure 1 "Closing a footpath", (being on Page 20 & 21), of SAA HB81.1 – 1996 – Field Guide for Traffic Control at Works on Roads – Part 1. The traffic management measures shall be implemented prior to the commencement of any works on-site including excavation. 40. Minimum doorway width for double garage to be 4.8 meters in accordance with AS 2890.1 - 1993. 41. The provision of temporary sediment and erosion control facilities and measures are to be installed, prior to the commencement of any works on the site to minimise and/or eliminate unnecessary erosion and loss of sediment. These facilities are to be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps are to be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority, with all silt being removed from the site, or to an approved location within the site. 42. The relocation or adjustment of any utility service facilities are to be carried out by the Applicant in accordance with the requirements of the utility authority at no cost to Council. 43. The public footways and roadways adjacent to the site are to be maintained in a safe condition, at all times, during the course of the works. 44. For the purpose of Council inspections, the appropriate fees set out in Councils adopted Schedule of Fees and Charges are payable to Council, prior to the release of the approved plans. A re-inspection fee per visit may be charged where remedial work is unprepared at the requested time of inspection or where remedial work is unsatisfactory and a further inspection is requested. Engineering fees must be paid prior to the final approval of the works. 44A. The location of the storage of waste bins and recycling bins is to be shown on the plans submitted with the Construction Certificate. Such are to be located behind the building line and screened from view from the street. CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE 45. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate. Note: Required if cost of works exceed $25,000.00. 46. It is a condition of consent that the applicant, builder or developer or person who does the work on this residential building project arrange the Builders Indemnity Insurance and submit the Certificate of Insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Council or other Principal Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the Builder's Indemnity Insurance for residential building work over the value of $12,000 and to satisfy the Council or other Principal Certifying Authority by the presentation of the necessary Certificate of Insurance so as to comply with the applicable requirements of Part 6 of the Home Building Act 1989. The requirements for the Builder's Indemnity Insurance does not apply to commercial or industrial building work or for residential work less than $12,000, nor to work undertaken by persons holding an Owner/Builder's Permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work). 47. The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project. 48. Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act, 1979 (the 'Act') are to be complied with: a. A Construction Certificate is to be obtained in accordance with Section 81A(2)(a) of the Act. b. A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A(2)(b) of the Act. c. Council is to be notified in writing, at least two (2) days prior to the intention of commencing buildings works, in accordance with Section 81A(2)(c) of the Act. d. Should the development be certified by a Principal Certifying Authority other than Council, a fee for each Part 4A Certificate is to be paid to Council on lodgement of those Certificates with Council. 49. Deleted. 50. The property shall support a minimum number of (5) trees that will attain 13.0 metres in height on the site, to preserve the tree canopy of Ku-ring-gai, in accordance with Council's policy of Tree Retention/Replenishment on Residential Allotments adopted 26 April 1988. The existing tree/s, and additional tree/s to be planted, shall be shown on the Landscape Plan/Site Plan. The plan shall be submitted to Council prior to release of Construction Certificate and approved by Council's Landscape Development Officer, prior to commence of work. 51. Deleted. 52. A cash bond/bank guarantee of $ 4000.00 shall be lodged with Council as a Landscape Establishment Bond prior to the release of the Construction Certificate to ensure that the landscape works are installed and maintained in accordance with the approved landscape plan or other landscape conditions. Fifty percent (50%) of the this bond will be refunded upon issue of the final Certificate of Compliance, where landscape works as approved have been satisfactorily installed. The balance of the bond will be refunded 3 years after issue of the building certificate, where landscape works has been satisfactorily established and maintained. It is the responsibility of the applicant to notify Council in relation to the refunding of the bond at the end of the 3 year period. Where a change of ownership occurs during this period it is the responsibility of the applicant to make all arrangements regarding transference of the bond and to notify Council of such. 53. A cash bond/bank guarantee of $2 000.00 shall be lodged with Council prior to the release of the Construction Certificate to ensure that the following trees are maintained in the same condition as found prior to commencement site development work. The bond will be returned following issue of the final Certificate of Compliance, provided the trees are undamaged. In the event that any specified trees are found damaged, dying or dead as a result of any negligence by the applicant or its agent, or as a result of the construction works at any time during the construction period, Council will have the option to demand the whole or part therefore of the bond. Tree/Location Cupressus sp / southern boundary adjacent dwelling B Angophora costata / Banadalong Ave frontage 54. The applicant shall ensure that no underground services (ie water, sewerage, drainage and gas) shall be laid beneath the canopy of any tree protected under Council's Tree Preservation Order, located on the subject allotment and adjoining allotments. A plan detailing the routes of these services shall be submitted to the Principal Certifying Authority for approval prior to the release of the Construction Certificate. 55. The design of engineering works is to be undertaken prior to the issue of the Construction Certificate. The Construction Certificate is to include, but is not limited to, details addressing the following issues:- i) For both systems provide a grate entry at the blind end of the Buffa tank. ii) The roof gutter, down pipe and drainage system of the dwelling is to be sized to catch and convey the 50 year ARI storm event to the OSD system. An engineer is to provide certification the Construction Certificate plans, that this has been achieved. iii) Suitable kerbs or other approved "cut off" systems are to be provided in the OSD design to ensure a maximum possible amount of overland flow is directed to the OSD system. These kerbs etc, are to be sized for all storms up to the 50 year ARI storm event. An engineer is to provide certification the Construction Certificate plans, that this has been achieved. iv) For both new dwellings a boundary pit is to be provided where the stormwater line crosses the front boundary. v) The stormwater outlet to the street from the boundary pit to be by way of hot dipped galvanised steel section, of appropriate dimensions, except for that part of the line where the obvert of the pipe is deeper than 300mm. vi) In regard to existing public services in the footway or road, the applicant is required to undertake any or all of the following items in order to make the work effective. (a) adjustment of any services (b) repositioning of any services, or (c) raising or lowering of the lids of any services. vii) Where OSD storage is by way of underground storage, A) Inflow pipes to the storage chamber are to be located below inspection grates. B) If soil and turf are to cover the tank, then a minimum depth of soil to be 350mm. viii) Drainage design details are to be compatible with the landscaping plans. ix) Councils landscape officer is to consider the final location of all drainage infrastructure including (a) drainage lines, and (b) OSD tanks. Only after the Council Landscape Officer's approval, can the Construction Certificate be issued. x) The access grate above the control chamber is to be a grate of 600mm x 900mm or greater. Apart from the grate above the control chamber, other grates to have the following minimum sizes, depending on the pit depth as follows:- Depth of Chamber below grate Min grate and Pit size Less than 300mm 300square Less than 450mm 450square Equal to or Less than 600mm 600square Greater than 600mm 600 x 900 56. For stormwater retention and quality control, provision of a five (5) metre long first-flush absorption trench for each dwelling , designed to capture and retain the first-flush stormwater runoff from the subject property after which runoff bypasses the trench and reverts to the main drainage system. Design drawings shall be submitted and approved by the Principal Certifying Authority with the Construction Certificate. OR For stormwater retention, provision of a 2000 litre rainwater tank for each dwelling , designed to capture and retain runoff from at least one roof downpipe after which runoff bypasses the tank and reverts to the main drainage system. Design drawings shall be submitted and approved by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate. 57. To prevent surface stormwater from entering the building, the finished habitable ground floor level(s) of the building shall be a minimum of 150mm above adjacent finished ground level(s). The entire outside perimeter of the building must have overland flow escape routes which will protect all finished floor levels from flooding during times of complete subsurface drainage blockage. This requirement is to be demonstrated on submitted Construction Certificate drawings. 58. The property drainage system shall be designed and based upon a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) for impervious surfaces and in accordance with Council's Stormwater Management Manual. Design drawings and calculations are to be prepared by a suitably qualified and experienced hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate. 59. Full design drawings of the proposed method of achieving the requirements for on-site stormwater detention and supporting calculations are to be prepared by a suitably qualified and experienced hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate. 60. For the two new crossings, and any works adjacent to the boundary, the following will apply. WORKS ON THE FOOTWAY ADJACENT TO THE EXISTING REDUNDANT CROSSING: The applicant is to undertake filling, compacting, regrading and turfing of the footway, in the vicinity of the existing, redundant crossing, so that the crossfall is consistent with the adjoining grassed footways. DRIVEWAYS AND FOOTPATHS: Approval of this Development Application is for works wholly within the property and does not imply approval of footpath or driveway levels, materials or location regardless of whether this information is shown on the Application. Footpath and driveway levels at the property boundary/road alignment are to be obtained from Council's Technical Services Department prior to release of the Construction Certificate. All footpaths and driveways are to be constructed strictly in accordance with Council's specifications, "Construction of Gutter Crossings and Footpath Crossings" which is issued with alignment levels after payment of the appropriate fee. The grading of such footpaths or driveways outside the property is to comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant, and this may be affected by the alignment levels fixed by Council. Note: The construction of footpaths and driveways outside the property, in materials other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations. 61. Submission for approval with the Construction Certificate of a Soil and Erosion Control Plan prepared in accordance with the NSW Department of Housing document "Managing Urban Stormwater – Soils and Construction" (1998) by a suitably qualified and experienced engineer or surveyor. Such controls should include but not be limited to appropriately sized sediment basins, diversion systems, appropriate controls for each stage of works identified and barrier fencing which maximises and protects areas, which are not to be disturbed. The plan must also specify inspection and maintenance regimes and responsibilities and rehabilitation measures. 61A. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area. TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF ONE (1) ADDITIONAL DWELLING IS CURRENTLY $12,459.72. The amount of the payment shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council's Section 94 Contributions Plan to reflect changes in land values, construction costs and the consumer price index. This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council's adopted Section 94 Contributions Plan for Residential Development, effective from 20 December 2000, calculated for additional person as follows: 1. Preparation of New Residents Kit $10.98 2. New Resident Survey $9.87 3. New child care centre (including land acquisition and construction of facility) $252.13 4. Additions/alterations to Acron Rd child care centre for additional 20 places $2.41 5. New Library bookstock $17.95 6. New Public Art $2.93 7. Acquisition of Open Space - Roseville $3,931.00 - Lindfield $7,851.00 - Killara $7,851.00 - Gordon $7,851.00 - St Ives $7,851.00 - Pymble $1,966.00 - Turramurra/Warrawee $1,966.00 - Wahroonga $7,851.00 8. Koola Park upgrade and reconfiguration $143.09 9. North Turramurra Sportsfield development $986.80 10. Section 94 2000-2003 Study and Interim Plan preparation cost $49.34 11. Section 94 Officer for period of Plan 2000-2003 $118.42 To obtain the total contribution figure the following table of occupancy rates is to be used: OCCUPANCY RATES FOR DIFFERENT DWELLING SIZES Small dwelling (under 75 sqm) 1.25 persons Medium dwelling (75 - under 110 sqm) 1.75 persons Large dwelling (110 – under 150sqm) 2.75 persons Very Large dwelling (150sqm or more) 3.5 persons New Lot 3.5 persons CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING 62. Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works. 63. To preserve the existing trees on the site and Council's verge, no work shall commence until the area beneath the canopy of the following tree/s is fenced off as indicated on the approved landscape plan by Jocelyn Ramsay & Associates, to prevent , storage or the disposal of materials within the fenced area. Note the fences are to be modified such that all fences area to return as a full enclosure so that the vegetation is fully enclosed and that there is no access into theses zones. The fence/s shall be maintained intact until the completion of all demolition/building work on site. 64. The tree protection fence shall be constructed of galvanised pipe at 2.4 metre spacings and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres prior to work commencing. 65. Deleted. CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION 66. Prior to the release of any occupation certificate, a compliance certificate must be obtained from an accredited certifier, certifying that the building works for the building to be occupied comply with the plans and specifications approved by this development consent; and any construction certificate associated with this consent for the buildings to be occupied. If the PCA is not the Council, then this compliance certificate must be submitted to the Council at the same time as the occupation certificate is submitted to the Council in accordance with Clause 151(2) of the E P & A Act regulations. 67. Construction of the property stormwater drainage works is to be supervised and upon completion certified by a suitably qualified and experienced hydraulic engineer or surveyor, prior to Occupation, that: a. The works were carried out and completed in accordance with the approved plans. b. All enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices. A Works-as-Executed drawing of the property stormwater drainage system is also to be furnished to Council and the PCA prior to Occupation. 68. Construction of the On-site Stormwater Detention System is to be supervised and upon completion a Certificate and Works-as-Executed drawing issued by a suitably qualified and experienced engineer or surveyor is to be submitted to the Principal Certifying Authority prior to occupation or issue of an Occupation Certificate. 69. In order to maintain Council's database of as-constructed on-site stormwater detention systems, if the Principal Certifying Authority is not Council then a copy of the approved stormwater detention design, the works-as-executed drawings and the Engineer's certification of the as-constructed system is to be provided to Council, attention Development Engineer, prior to occupation, the issue of the Occupation Certificate or the issue of a subdivision certificate. 70. Any infrastructure within the road reserve along the frontage of the subject site or within close proximity which has been damaged as a result of construction works on the subject site is to be repaired to the satisfaction of Council's Development Engineer. 71. The creation of a Positive Covenant and Restriction on the Use of Land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the on-site stormwater detention facilities on the property prior to occupation or the issue of an occupation or subdivision certificate. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site detention facilities" and to the satisfaction of Council. For existing Titles, the Positive Covenant and the Restriction on the use of Land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. Where the provided OSD is not a separate system for each Dwelling, the 88B instrument is to be created so that it clearly defines; both lots, each have 50% responsibility for the OSD system. The responsibility includes (a) maintenance, (b) upkeep and (c) replacement of the OSD system if it deteriorates to be unserviceable after a time. 72. For any of the legal instruments created as a requirement of this determination, Ku-Ring-Gai Council is to be named as the only authority empowered to release, vary or modify such instruments. 73. Prior to occupation, the issue of an Occupation Certificate or the issue of any Subdivision Certificate, all disused driveway crossings, pipe crossing and/or kerb laybacks are to be reinstated as footway and kerb and/or gutter to the satisfaction of Council's Development Engineer. Any infrastructure within the road reserve along the frontage of the subject site or within close proximity which has been damaged as a result of construction works on the subject site is to be repaired to the satisfaction of Council's Development Engineer. Unless the Council Crossing inspector directs otherwise, the redundant sections of layback shall be reinstated in the following manner. A The pavement is to be saw cut parallel to the lip of kerb. B The existing concrete gutter is to be removed. C The existing layback is to be removed. D New "cast in situ" integral K&G is to be poured and connected to the adjoining sections of upright kerb with suitable bitumen jointing. 74. The dual occupancy development approved under this determination is to be completed to "lock-up" stage (being that stage where the building has the following components: external walls, cladding roofing, and all doors and windows with locks, installed, erected or constructed in their approved completed form) prior to a Subdivision Certificate being released by Council under any separate subdivision application. 75. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to "Your Business" section of Sydney Water's web site at www.sydneywater.com.au then the "e-developer" icon or telephone 13 20 92. Following application a "Notice of Requirements" will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to occupation of the development/ release of the plan of subdivision. Prior to issue of a Construction Certificate, the applicants should satisfy themselves, that any relevant Sydney water matters are in order. This is so that the applicant will be able to expeditiously obtain a Section 73 Certificate at the completion. BUILDING CONDITIONS 76. The following are required details and must be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify. a. Details prepared by a practicing structural engineer for all or any reinforced concrete, structural steel or timber framing. b. Wind bracing details complying with AS 1684-1992 National Timber Framing Code, AS 1170.2-1989 Wind Load Code or AS 4055-1992 Wind Loads for Housing Code. c. Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code. 77. The building works are to be inspected during construction by the Council, an accredited certifier or other suitably qualified person/s (as applicable) and a Compliance Certificate shall be issued prior to proceeding to the subsequent stages of construction, encompassing not less than the following stages: a. All sediment and erosion control and tree protection measures and installations in place on the site prior to the commencement of any earthworks, excavations or other work. b. Any pier holes and/or foundation material. c. Any steel reinforcement prior to placement of concrete. This includes all reinforcement of floors, slabs, trenches, columns, beams and stairs (if components of this structure). d. Any structural components (i.e. timber framework, structural steelwork or the like) before fixing any lining or covering. e. Any stormwater drainage works prior to covering. f. The completed landscape works in accordance with the approved plans. g. The completed structure prior to occupation. The required inspection fees (which also covers the issue of the Compliance Certificate) are to be paid to the Council before the issue of a Construction Certificate for this development. If inspections are to be carried out by Council, 24 hours notice is required by Council's Department of Environmental and Regulatory Services, by telephoning Customer Service on 9424 0888 during business hours (8.30am to 4.30pm) or by facsimile on 9418 1117. Note: Inspections of work which is found to be defective or not ready will attract a reinspection fee. Please cancel bookings which will not be ready for inspection. 78. For the purpose of safety and convenience a balustrade of 1.0 metre minimum height shall be provided to any landing, verandah, balcony or stairway of a height exceeding 1.0 metre above finished ground level. The design may consist of vertical or horizontal bars but shall not have any opening exceeding 125mm. For floors more than 4.0 metres above the ground, any horizontal elements within the balustrade or other barrier between 150mm and 760mm above the floor must not facilitate climbing. 79. For the purpose of safe ingress and egress the stairs are to be constructed within the following dimensions: Risers: Maximum 190mm Minimum 115mm Going (Treads): Maximum 355mm Minimum 240mm Note: Dimensions must also comply with limitations of two (2) Risers and one (1) going equalling a maximum 700mm or minimum 550mm. The Risers and Goings shall be uniform throughout the length of the stairway. 80. For fire safety an automatic fire detection and alarm system shall be installed throughout the dwelling in accordance with the following requirements: a. A smoke alarm system complying with Part 3.7.2 of the Building Code of Australia Housing Provisions; or b. Smoke alarms which: i. comply with Australian Standard 3786 or listed in the Scientific Services Laboratory Register of Accredited Products (all accredited products should have scribed on them the appropriate accreditation notation); and ii. are connected to the mains and have a standby power supply; and iii. are installed in suitable locations on or near the ceiling and as prescribed under Part 3.7.2 of the Building Code of Australia Housing Provisions. To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority. 81. Termite protection which will provide whole of building protection in accordance with Australian Standard 3660 - "Protection of Buildings from Subterranean Termites" is to be provided . Council has a non chemical policy for termite control but will consider proposals involving physical barriers in combination with approved chemical systems. Handspraying is prohibited. Where a monolithic slab is used as part of a termite barrier system, the slab shall be constructed in accordance with Australian Standard 2870.1 or as designed by a structural engineer but in either case shall be vibrated to achieve maximum compaction. To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate. 82. So as to provide access suitable for disable persons a ramp is to be provided between the front boundary and the front landing of dwelling B. The ramp is to be designed in accordance with AS 1428.1 and is not to impact upon the existing angophora costata. In this regard the design of the ramp is to be approved by an aborist, who is also to supervise the construction of the ramp. The aborist is to certify prior to the issue of an occupation certificate that the ramp has been installed in accordance with their design. 83. Details of the ramp are to be submitted with the application for a construction certificate. 84. So as to ensure privacy to the future residents of dwelling A, the landscaping along the northern boundary is to be extended to the eastern edge of the proposed driveway so as to provide a continuous screen. 85. A revised landscape plan is to be submitted to Council prior to the issue of the construction certificate and approved by Council's Landscape Development Officer, prior to commencement of work. __________________ K G Hoffman Commissioner of the Court nm 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.