Land and Environment Court of New South Wales CITATION : Saliba v Hornsby SC [2005] NSWLEC 199 APPLICANT Anthony Saliba PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 11387 of 2004 CORAM: Nott C Appeal :- Consent Orders granting development consent for alterations to a dwelling and for subdivision of the land into two lots. KEY ISSUES: LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s97 DATES OF HEARING: 12/04/2005 EX TEMPORE JUDGMENT DATE : 04/12/2005 APPLICANT Mr J. Hones, solicitor of Hones Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr T. Pickup, solicitor of Storey & Gough JUDGMENT: In THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Nott C 12 April 2005 11387 of 2004 Anthony Saliba v Hornsby Shire Council JUDGMENT 1 In this matter the parties seek an order from the Court (by consent) granting development consent for alterations to a dwelling at Pomona Street, Pennant Hills, to enable a subdivision of that property into two lots. 2 I have considered the documents that have been filed in support of the application and have taken into account the objection under State Environmental Planning Policy No.1 – Development Standards.. 3 There is a small departure from the development standard relating to lot size for a lot created by subdivision, and the parties have agreed that the objection under SEPP 1 is well founded. 4 In the circumstances, I endorse the requests of the parties. 5 The Court orders by consent that: 1 The appeal is upheld. 2. Development Application No. 0983/04 for alterations and additions to an existing dwelling and subdivision of one lot into two at 10 Pomona Street, Pennant Hills, is determined by the granting of consent subject to the conditions set out in Annexure A. 3. Exhibits A, B, C, D and E are to be retained. __________ A J Nott Commissioner of the Court _________________________________________________________________________________________________________________ Annexure "A" Conditions of Development Consent Anthony Saliba v Hornsby Shire Council 10 Pomona Street, Pennant Hills Development Application No. 0983/04 for alterations and additions to existing dwelling and subdivision of one (1) lot into two (2), is approved in accordance with the plans listed in Schedule A and subject to, and except as modified by, the following conditions:- Development Engineer Construction Certificate – Subdivision/Engineering Works 1. A construction certificate must be obtained from either Council or an Accredited Certifier. Engineering design plans and specifications are to be prepared by a chartered professional engineer for any proposed works. The plans and specifications are to be in accordance with the development consent conditions, appropriate Australian Standards, and applicable Council standards, in particular "Hornsby Shire Council Civil Works - Design and Construction Specification". The information that is required to be submitted with a construction certificate is as follows: (a) Copies of any compliance certificates to be relied upon (b) Four (4) copies of the detailed engineering plans in accordance with Hornsby Shire Council's Civil Works - Design Specification 1999. The detailed plans may include but are not limited to the earthworks, roadworks, road pavements, road furnishings, stormwater drainage, landscaping and erosion control works. (c) Hornsby Shire Council's approval for the proposed works in the existing road and public drainage is required before the issuing of a construction certificate for these works. Principal Certifying Authority 2. Before any construction works commence, you are required to appoint a Principal Certifying Authority as required by section 81A of the Environmental Planning & Assessment Act, 1979. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications. Notifying Council of Commencement of Works 3. It is a requirement of the Environmental Planning and Assessment Act (Section 81A(2)(c)) that you notify Hornsby Council at least two (2) days prior to the intention to commence works. Where works are to be undertaken in a public place, such notice must be accompanied by evidence of the contractor's Public Liability and Workers' Compensation Insurances. The public risk policy shall be such an amount as determined by Council (not being less than $10,000,000.00) and shall cover the owner and the Council against any injury, loss or damage sustained by any person, firm or company. Access Way/Driveway 4. A separate application under the Local Government Act 1993 and Roads Act 1993 shall be submitted to Council for approval for the following: (a) The installation of a vehicular footway crossing servicing the development, and the removal of any redundant crossings. (b) The undertaking of any work within a public road (this includes Laneways, Public Pathways, Footways). 5. The vehicular crossing shall be designed and constructed in accordance with Council's Civil Works - Design and Construction Specification 1999. 6. The internal driveway and parking areas are to be designed and constructed in accordance with Australian Standard 2890.1:2004. 7. The headroom clearance for the garage entry to Lot 2 is to be in accordance with Australian Standard AS 2890.1 – 2004. 8. Prior to construction of the driveway crossing, a clearance must be obtained from the relevant utility providers. All costs associated with relocation/alteration of services are to be borne by the applicant. 9. A Traffic Control Plan (TCP), prepared by a qualified work site traffic controller, is to be submitted with the construction certificate for any construction works within the road reserve, demonstrating compliance with the Road & Traffic Authority's Traffic Control At Worksites Manual, 1998, and detailing: - (a) Public notification of proposed works. (b) Long term signage arrangement. (c) Short term (during actual works) signage. (d) Vehicle Movement Plans, where applicable. (e) Traffic Management Plans. (f) Pedestrian and cyclist access/safety. Drainage 10. Stormwater drainage from the site shall be designed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years. The design shall: - (a) Be in accordance with Hornsby Shire Council Civil Works – Design Specification 1999. (b) Provide for drainage discharge to the existing drainage system. (c) Ensure that the development, either during construction or upon completion, does not impede or divert natural surface water runoff so as to cause a nuisance to adjoining properties. ENGINEERING WORKS 11. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, together with associated stormwater drainage measures, are to be designed and constructed by a chartered professional civil engineer or other appropriately qualified person. All elements of the retaining walls such as footings and subsoil drainage are to be located wholly within the property boundaries. Details are to be included with plans and specifications to accompany any construction certificate. 12. The excavation in the nature strip required for the construction of the proposed driveway crossing is to be battered at a maximum grade of 1 in 4. The embankment shall be reinstated to good order as soon as practical after the completion of the excavation including, where necessary, the establishment of new landscaping. 13. All public utility services adjustments required shall be carried out at the applicant's expense. Inspections - Engineering 14. All engineering work required by this consent must be inspected and compliance certificates shall be issued prior to occupancy or issue of the subdivision certificate, whichever occurs first, certifying that the works comply with development consent, construction certificate and Hornsby Shire Council Civil Works – Design and Construction Specification for the following nominated stages: o Implementation of erosion control o Implementation of traffic control o Boxing Out o Footpath turfing o Re-vegetation o Final erosion control inspection o Driveways and access ways o Retaining walls o Final inspection Subdivision Certificate 15. Lodgement and approval of a subdivision certificate is required to authorise the Plan of Subdivision. 16. All conditions of the development consent are to be completed prior to the issue of the subdivision certificate. 17. House numbering can only be authorised by Hornsby Shire Council. Before proceeding to number each lot/occupancy in the development, the allocation of numbers must be obtained from Council's Planning Division. 18. The following documentary evidence is to be obtained and forwarded to the Principal Certifying Authority prior to the release of the subdivision certificate:- a. The submission of a surveyor's certificate stating that no services, drainage lines or access way encroach over the proposed boundary other than as provided for by easements created by the final plan of subdivision. b. Submission of a surveyor's certificate stating that all structures within the subject land comply with the development consent in regard to clearance from proposed new boundaries. c. A Section 73 compliance certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. For details see Customer Service, Urban Development, at the Sydney Water website www.sydneywater.com.au or telephone 13 2092. Following application, a "Notice of Requirements" will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design. The Notice must be submitted to the Principal Certifying Authority prior to the Construction Certificate being issued. The Section 73 certificate must be submitted to the Principal Certifying Authority prior to the release of the linen plan/occupation of the development. Works As Executed 19. A works-as-executed plan prepared by a chartered professional engineer or a registered surveyor must be lodged with Hornsby Shire Council when the engineering works are complete, before the release of the Subdivision Certificate. Easements & Restrictions on Title 20. All Section 88B restrictions and covenants created as part of this consent are to contain a provision that they cannot be extinguished or altered except with the consent of Hornsby Shire Council. 21. The creation of a "Positive Covenant" over the proposed Lot 1 requiring that any future development is to provide an on-site detention system. The on-site detention system is to have a storage capacity of 5 cubic metres and a maximum discharge of 8 litres per second into Council's drainage system in accordance with Council's standard wording. Environmental Health and Building Surveyor Site Works 22. No site works, including the removal of vegetation or any demolition works, shall be commenced prior to: (1) A construction certificate being issued. (2) Sediment and erosion control measures in accordance with condition No. 26 have been implemented; Building Code of Australia 23. All building work must be carried out in accordance with the requirements of the Building Code of Australia. Should there be any alternative solutions listed as Category 2 Fire Safety Provisions and outlined in the Environmental Planning and Assessment Regulation 2000, a fire engineering report should be forwarded to the Brigades for comment under Clause 144 of the Environmental Planning and Assessment Regulation 2000. Council Property 24. The land and adjoining areas are to be kept in a clean and tidy condition at all times. Litter and rubbish shall be placed in containers and removed from the site. A waste storage container is to be provided at the commencement of the building work. 25 The cost of repairing any damage caused to Council's assets as a result of construction works associated with the approved development is to be met in full by the applicant/developer prior to the issue of a subdivision certificate. Sediment & Erosion Control 26. Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site. The controls are to be designed and installed in accordance with the requirements of Landcom's "Managing Urban Stormwater: Soils and Construction", Volume 1, 4th Edition, March 2004, (the Blue Book), and Hornsby Shire Council's "Sustainable Water Best Practices" manual and shall:- * be effectively maintained at all times during the course of works and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority's satisfaction. * include adequate measures to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition. * ensure disturbed areas are rehabilitated with indigenous plant species, landscaped and treated by approved methods of erosion mitigation such as, mulching, and revegetation with native grasses or other suitable stabilising processes within fifteen days of the completion of works. Hours of Demolition Works 27. In order to maintain the amenity of adjoining properties, demolition works shall be restricted to between 7.00 am and 6.00 pm. No demolition works are to be undertaken on Saturdays, Sundays or Public Holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless written Council gives consent. Demolition 28. All demolition work is to be carried out in accordance with the applicable provisions of Australian Standard 2601-2001 'The Demolition of Structures'. Note : Applicants are reminded that WorkCover NSW requires all plant and equipment used in demolition work must comply with the relevant Australian Standards and manufacturer specifications. Dust Control 29. Measures to prevent the emission of dust or other impurities into the surrounding environment are to be implemented during demolition works. Disconnection of Utilities 30. All utilities shall be disconnected in a satisfactory manner so as not to pose any risk or nuisance to the public. Asbestos Removal 31. Prior to commencement of any work involving the demolition, alteration or addition to any building on the development site, a survey is to be conducted by a competent person to ascertain whether any asbestos materials exist thereon. Asbestos material means any material that contains asbestos. 32. Where asbestos material is found to exist on the development site and that asbestos material is to be removed or disturbed as a result of any proposed demolition, alteration or addition, then all work involving removal and disposal of asbestos material must be undertaken by persons who hold the appropriate licence issued by WorkCover NSW under Chapter 10 of the Occupational Health and Safety Regulation 2001. 33. The collection, storage, transportation or disposal of any type of asbestos waste is to comply with the requirements of clause 29 of the Protection of the Environment Operations (Waste) Regulation 1996. 34. Upon completion of disposal operations, the applicant must lodge with the principal certifying authority, within seven (7) days, all receipts (or certified photocopies) issued by the receiving landfill site as evidence of proper disposal. Note : The person responsible for disposing of the asbestos material shall consult with the Environment Protection Authority to determine the location of an approved landfill site to receive asbestos material. Signs for Demolition Sites 35. On construction sites where buildings contain asbestos material, a standard commercially manufactured sign containing the words 'DANGER ASBESTOS REMOVAL IN PROGRESS' measuring not less than 400mm x 300mm is to be erected on the site in a prominent position visible from the street. The sign is to be erected prior to any work commencing and is to remain in place until such time as all asbestos material has been removed from the site to an approved waste facility. This condition is imposed for the purpose of worker and public safety and to ensure compliance with Clause 259(2)(c) of the Occupational Health and Safety Regulation 2001. 36. A sign must be erected in a prominent position on the premises, on which the demolition of a building is being carried out, stating that unauthorised entry to the premises is prohibited and showing the name of the builder or other person in control of the premises and a telephone number at which the builder or other person may be contacted during and outside work hours. The sign is to be removed when the demolition of the building has been completed. Signs for Construction Sites 37. On-site signage is required to clearly identify the PCA and the principal contractor (the coordinator of the building work) pursuant to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003, s157(1)(c1), Cl 98A, 136C & 227A. Hours of Construction 38. In order to maintain the amenity of adjoining properties, site works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. No work shall be undertaken on Sundays or public holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless otherwise approved by Council. Engineers Certifications -Building 39. A qualified practising chartered Structural Engineer shall inspect the slab steel reinforcement prior to the pouring of any concrete and supply the Principal Certifying Authority and a copy to Hornsby Shire Council with a certification of structural adequacy. 40. A chartered professional structural engineer's "Certificate of Adequacy" certifying the ability of the existing walls and footings to take the proposed additions is to be submitted with the construction certificate application and a copy provided to Hornsby Council. 41. All reinforced concrete slabs and footings shall be designed and constructed in accordance with Australian Standard 2870-1 - 1988 "Residential Slabs and Footings" or be designed by a qualified chartered professional structural engineer. Inspections – Building 42. The building works must be inspected by the Principal Certifying Authority at the following stages certifying that the works comply with the development consent and the approved plans and specifications for the following nominated stages:- * The reinforcing steelwork (i.e. strip footings and each floor slab) when in position and before concrete is placed. * Retaining walls / underpinning when in position and before concrete is placed. * The framework including roof members when completed and prior to the fixing of any internal sheets. * Stormwater drainage lines prior to backfilling of trenches. * The building or structure when completed and before occupation or use is commenced. 43. It is the responsibility of the builder/applicant to organise the required inspections. Should Council be nominated as the certifier of works, inspections can be arranged by contacting Council on 9847 6760 during normal business hours. Toilet Facilities 44. Closet accommodation is to be provided at the work site at all times and be located wholly within the boundaries of the property. Smoke Alarms 45. Smoke alarms shall be installed in the existing building in accordance with the Building Code of Australia. A certificate from a licensed electrician certifying that the smoke alarms have been connected to the consumer mains power is to be submitted to Hornsby Council with the occupation certificate. Subterranean Termites 46. The building shall be treated against subterranean termites in accordance with AS 3660 Part 1, "Protection of Buildings from Subterranean Termites ". 47. Certificates of treatment shall be submitted to the Principal Certifying Authority and Hornsby Council and a notice of treatment, in accordance with the standard shall be affixed to the building. (Building Code of Australia Clause B1.1, B1.3.) Sydney Water 48. The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to "Your Business" section of Sydney Water's web site at www.sydneywater.com.au then see Building & Renovating under the heading Building & Renovating, or telephone 13 20 92. The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate. Home Building Act 1989 49. The builder or person who does the residential building work must comply with the applicable requirements of Part 6 of the Home Building Act 1989 and must not contract to do any residential building work unless a contract of insurance that complies with that Act is in force in relation to the proposed work. A copy of the contract of insurance shall be submitted to Hornsby Council before any works commence. Long Service Levy 50. Under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 any work costing $25,000 or more is subject to a Long Service Levy. The levy rate is 0.2% of the total cost of the work and shall be paid to either the Long Service Payments Corporation or Hornsby Shire Council. Under section 109F (1) of the Environmental Planning & Assessment Act, 1979 this payment must be made prior to a construction certificate being issued. Retaining Walls 51. Retaining walls or other approved methods necessary to prevent the movement of excavated or filled ground, are to be constructed together with associated stormwater drainage measures prior to occupation of the development or before where site conditions require. Noise 52. The use of amplified equipment, such as radios and the like during construction stage shall not be used where the noise is audible on any neighbouring property. Landscaping 53. All natural landscape features, including natural rock outcrops, natural vegetation, soil and watercourses, are to remain undisturbed except where affected by necessary works detailed on approved plans. 54. The area surrounding the building shall be reinstated to good order as soon as practical after the completion of site works including, where necessary, the establishment of new landscaping. 55. The natural ground levels of private open space areas are not to be altered unless otherwise indicated on the approved plans. 56. Landscaping is to be carried out in accordance with the landscape plan (Drawing No. LP.01/A) dated 21 February, 2005 and prepared by Botanica. Occupation 57. The building or part thereof shall not be occupied until an occupation certificate has been issued in accordance with Sections 109C and 109H of the Environmental Planning & Assessment Act, 1979. Parks and Landscape Team 58. The removal of tree/s numbered 1, 2 and 3 on the landscape plan (exhibit C) and all trees protected under Council's Tree Preservation Order is prohibited unless written consent from Council has been obtained. 59. Prior to work commencing, tree protection fencing must be erected around the trees nominated to be retained at a four (4) metre setback. The tree fencing must be constructed of either 'star pickets at 2.0 metre spacing connected by highly visual barrier/hazard mesh or 1.8 metre cyclone chainmesh fence'. The tree protection fencing must be maintained in good working order until the completion of all building or development works. Penalties apply for non-compliance. 60. A Tree Preservation Order exists within the Hornsby Shire whereby the cutting down, topping, lopping, removing or wilful destruction of any tree exceeding 3.0 metres in height (except where exempt as defined under Council's Tree Preservation Order) without prior written consent of Council is prohibited. 61. Release of the Construction Certificate gives automatic approval to the removal only of those trees located on the subject property within 3 metres of the foundation footprint of an approved residential, commercial or community building, garage or inground swimming pool. Other trees shall not be removed or damaged without an application being made under Council's Tree Preservation Order. Penalties apply for non-compliance. 62. Excavation (for services and other works), change of soil level, parking, or placement of building materials within the specified tree setbacks of trees 1, 2 and 3 and all other trees to be retained onsite is strictly forbidden. General Contributions 63. The payment of a contribution towards the cost of transport and traffic management, open space and recreation facilities, library and community facilities, bushland and environmental works, stormwater drainage, bushfire protection and Section 94 administration in accordance with Sections 94, 94B and 94C of the Environmental Planning and Assessment Act, 1979, and Hornsby Shire Council's Development Contributions Plan 2004-2010. The total contribution shall be $12,858.80 if paid prior to the end of the financial quarter of the date of consent. Following this date, contributions will be adjusted in accordance with the underlying consumer price index for the subsequent financial years, it being noted that there are:- * One (1) additional allotment @ $12,858.80 per allotment This amount is to be paid to Council prior to issue of the construction certificate or the subdivision certificate, whichever occurs first . The contribution rate will be adjusted on an annual basis in accordance with the underlying consumer price index movements if not paid prior to the end of the quarter of the date of consent. Note : A copy of Council's Contributions Plan may be inspected during business hours at the first floor of Hornsby Shire Council's Administration Building located at No. 296 Pacific Highway, Hornsby. Fences 64. All boundaries behind the building line and courtyard areas shall be enclosed with 1.8m fences/screens/walls to protect the privacy of future occupants as well as adjoining owners. Provided that where an adjoining owner agrees to the provision of an alternate fence/screen/wall that fence/screen/wall shall be erected in lieu of the fence required by this condition. The fence/screen/wall is to be erected prior to the occupation of the dwellings. Use of Materials 65. The finished surface materials, including colours and texture of any building and/or hard paved areas, shall blend with the surrounding environment and shall be non-glare. 66. The fascias, roofing sheeting, roller doors and external wall cladding are to be painted, factory pre-coloured or treated to prevent glare nuisance, in a tone that blends with the environment. SCHEDULE A 1. Site Plan (Drawing No. Detail Survey) prepared by B & G Surveying Pty Ltd and dated 4 February, 2003 (Exhibit D). 2. Preliminary Sketch Plan dated 21 February, 2005 (Exhibit A). 3. Engineering Plan (Drawing No. W4111-D1 – Issue D) drawn by Webcon Engineering Group and dated 14 February, 2005 (Exhibit B). 4. Landscape Plan (Drawing No. LP.01/A – Issue A) drawn by Botanica and dated 21 February, 2005 (Exhibit C). _____________ A J Nott Commissioner of the Court rjs 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.