Land and Environment Court of New South Wales CITATION : Austcorp No 459 Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 302 APPLICANT PARTIES : Austcorp No 459 Pty Limited RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10463 of 2003 CORAM: Watts C at 1 - Bly C at 1 KEY ISSUES: Development Application :- Privacy - Over-development of site - User safety - Accessibility and Termite protection LEGISLATION CITED: Baulkham Hills Local Environmental Plan 1991, (BHLEP) - Environmental Planning and Assessment Act 1979; (EPA Act) ss 79C, 97 - Disability Discrimination Act 1992 (Cth) CASES CITED: DATES OF HEARING: 18/08/2003, 20/08/2003, 21/08/2003 and 29/08/2003 and 08/12/2003, 09/12/2003 and 10/12/2003 DATE OF JUDGMENT: 06/08/2004 APPLICANT Mr M G Craig, QC, barrister instructed by Mr R Wilcher, solicitor SOLICITORS Baker & McKenzie LEGAL REPRESENTATIVES: RESPONDENT Mr P J McEwen, SC, barrister instructed by Mr D Baird, solicitor SOLICITORS Maddocks JUDGMENT: 17 February 2004 In the Land and Environment Court of New South Wales Appeal No: 10463 of 2003 Austcorp No 459 Pty Limited v Baulkham Hills Shire Council Judgement Introduction 1 Appeal No 10463 of 2003 under s 97 of the Environmental Planning and Assessment Act 1979, is against the deemed refusal by Baulkham Hills Shire Council ("the council") of Development Application No 843/2003/HB to carry out certain works and for the use of the existing building at Lot 1 DP 1035154, being Nos 18-22 Campbell Street, Northmead as an apartment building. 2 The other aspect of this matter involves an application for a building certificate (proceedings No (1)0351 of 2002) which has not been pursued at this time, pending the completion of building works which cannot proceed until development consent has been granted. The Class 4 matter (proceedings No 40237 of 2001) is also in abeyance pending the outcome of this appeal. 3 We inspected the building and its environs in company with the parties on two occasions during the proceedings. 4 The Court has decided that the applicant be given the opportunity to amend the basement ramp so as to improve safety for pedestrians and to improve disabled access to the buildings. The land 5 The land is situated on the southern side of Campbell Street, about 300m east of Windsor Road at Northmead. The land previously comprised Lots 16, 17 and 18 in DP 6436, which were consolidated and are now known as Lot 1 in DP 1035154. The land is irregular in shape with a frontage of 45.73m to Campbell Street, 93.695m along the western boundary and 64.275m along the eastern boundary and an area of 3,698m2. The land, falls from the Campbell street frontage to the rear with a cross fall of about 8m. 6 Erected on the land is a recently constructed part two-storey and part three-storey residential flat building. There is an extensive basement car park with a two-way ramp access off Campbell Street. The surrounding area 7 The land is in an established residential area, which is undergoing change through the redevelopment of the existing single dwellings to medium density residential apartments and town houses. 8 To the west on the Campbell Street frontage at Nos 14-16 Campbell Street is a town house development, and an apartment development on the Windsor Road frontage at Nos 27-35 Windsor Road. 9 To the east at Nos 24-26 Campbell Street is an apartment building currently under construction. 10 To the rear of the land is a smash repairer. 11 Across Campbell Street, there are single-storey dwelling houses and at the eastern end of Campbell Street is Northmead High School, about 80m east of the land with a school population of about 740 mainly teenage students. 12 The dwellings nearby have hipped roofs with eaves. Background 13 On 24-27 May 1999, in proceedings No 10007 of 1999, Senior Commissioner Jensen heard an appeal by Designlink International Pty Limited against a refusal of development application for an apartment building of twenty-six (26) units comprising 16 x 3 bed and 10 x 2 bed units by Baulkham Hills Shire Council at Nos 18-22 Campbell Street, Northmead. These plans showed the vehicular ramp to the basement with a section at the street alignment with a slope of 1:20 or 5% slope. 14 On 27 May 1999, Senior Commissioner Jensen upheld the appeal subject to (in part): 2. A deferred consent is given to a development ... as described in Exhibits 1, N and C. The deferral is to allow: (a) an easement for drainage purposes to be obtained; and (b) Minor corrections to be made to the drawings at the basement car parking level so that appropriate ramp gradients, headroom and staircase access to the ground floor level are shown. 15 On 8 September 1999, the Senior Commissioner's decision was appealed against under s 56A of the Court Act. 16 On 15 September 1999, his Honour Talbot J, found that the Senior Commissioner erred in law in granting deferred commencement and directed the matter be referred back to the Commissioner for determination in accordance with the findings in the s 56A appeal. 17 On 2 November 1999, Senior Commissioner Jensen upheld the appeal and granted development consent subject to conditions. 18 Condition Al of the development consent states: 1. The development is to be carried out substantially in accordance with the plans prepared by Designlink International and numbered 172-DA02 Rev C, 172-DA03 Rev C, 172-DA04 Rev C, 172-DA06 Rev F, 172-DA08 Rev D, and details prepared by McDivitt Gelder numbered SK01, SK02, SK03, SK04, SK05, and SK06 as further amplified by Exhibits E and F. 31. The ramp is to be constructed in accordance with AS2890.1 and the council's code… 19 Condition 1 of the development consent states: The development being carried out substantially in accordance with the approved plans and details submitted to Council, as amended in red, stamped and returned with this consent. 20 On 29 June 2000, Austcorp No 459 Pty Limited purchased the land from the following parties: Folio Identifier 163/6436 from Arthur John Potts; and Folio Identifier 173/6436 and 183/6436 from Gary Leslie West and Maureen Lesley West. 21 The applicant appointed Mr B Cohen of Essential Certifiers Pty Limited as a Principal Certifying Authority, (PCA) or private certifier. Mr Cohen issued a purported Construction Certificate (No 01/4121) dated 12 September 2000 and a Notice of Commencement of Building Work (indicating work to commence in October 2000) was lodged with the council. 22 The applicant lodged a subdivision application with the council on 26 October 2001 after the works were substantially completed. The plans accompanying the subdivision application allegedly depict a development different to that shown in the original plans, the subject of the consent. The plans are by Drummond and Rosen Architects, dated April 2000, and numbered as follows: GA-01 issue A; GA-02 issue B; GA-03 issue A; to GA-13 issue A, inclusive. 23 By letter dated 9 November 2001, the council notified Austcorp No 459 that its subdivision application was refused on the basis that the development 'as built' was not in accordance with the development consent. 24 On 15 November 2001, an on-site visit by the council officers was undertaken in order to identify the inconsistencies with the development approved plans and conditions of consent and revealed significant differences between the buildings as constructed and as approved by the Court. The most significant differences relate to: (a) the extension of an underground car parking level and omission of an entire car parking level; (b) expansion of balconies on each of the two (2) buildings; (c) construction of a substantial aboveground detention tank at the rear of the Site; (d) changes to roof and appearance of the buildings including enlarged windows; (e) rearrangement of the internal layout of apartments; and (f) lack of swimming pool. 25 The council issued letters of demand dated 7 December 2001 to each of Essential Certifiers Pty Limited, Silky Constructions Pty Limited, Austcorp No 459, and Designlink requesting that unauthorised work cease immediately on the site, unauthorised works be rectified within 60 days, a construction certificate be obtained for the plans consistent with the development consent, and cease all activity relating to the marketing or sale of any units. 26 The applicant lodged an application to modify the consent under s 96 of the Environmental Planning and Assessment Act 1979 on 18 December 2001. 27 The council filed class 4 proceedings on 20 December 2001 seeking rectification or demolition orders. 28 Interlocutory Class 4 proceedings were heard before his Honour Bignold J, on 20 December 2001 and the application by the council for an injunction to stop work was refused. 29 On 7 June 2002, his Honour Cowdroy J refused the s 96 application and found: …in the Court's determination such changes are so substantial that the completed building is not the same as that for which consent was granted by Senior Commissioner Jensen. 30 On 2 September 2002, the Court issued a costs order in favour of the council in respect of the s 96 Proceedings No 10007 of 1999. 31 On 16 May 2002, Building Certificate Application No 924/2002/AE was lodged with the council seeking to regularise the unauthorised building works ("the Building Certificate Application"). 32 The council issued a letter to the applicant dated 20 June 2002 requesting additional information in relation to the Building Certificate Application. 33 On 8 July 2002, Class 1 Appeal (No 40237 of 2001) was filed with the Land and Environment Court against deemed refusal of Building Certificate Application No 924/2002/AE. 34 On 30 August 2002, Development Application No 804/2003/HB for certain additional works and use of the property as an apartment building and was lodged with the council ("the Development Application"). 35 By letter dated 13 September 2002 to the applicant the council requested additional information under cl 54 of the Environmental Planning and Assessment Regulation 2000 in respect of the Development Application. 36 By letter dated 18 September 2002 to the applicant the council requested further information in relation to the Building Certificate Application. 37 In relation to the development application, the council received the following responses: · On 30 December 2002, the council received a letter from the applicant dated 24 December 2002 accompanied by town planning consultant's letter dated 17 December 2002 in response to issues relating to car parking provision and car park layout raised in Council's letter dated 13 September 2002; · On 2 January 2003, the council received a letter from the applicant dated 24 December 2002 accompanied by town planning consultant's report dated 18 December 2002 and amended plans in response to issues raised in Council's letter of 13 September 2002. 38 On 30 January 2003, the council wrote to the applicant advising that issues highlighted in the council's letter dated 13 September 2002 remained outstanding and providing additional comments in relation to the amended plans submitted on 2 January 2003. 39 On 13 March 2003, the council received a letter from the applicant dated 12 March 2003, enclosing a number of supporting documents and materials both in relation to the building certificate and development application for additional works and use of the premises. 40 On 24 April 2003, the present Class 1 Appeal No 10463 of 2003 was filed against deemed refusal of Development Application No 804/2003/HB. Relevant planning controls Baulkham Hills Local Environmental Plan 1991, (BHLEP) 41 The subject land is zoned Residential 2(al) under the provisions of the BHLEP and apartment buildings are permissible as 'Advertised' development, with consent. The proposal and its history 42 Development Application No 804/2003/HB was lodged with the respondent council on 30 August 2002 to carry out certain additional works and use of the property as an apartment building. The proposed additional works were shown in the Schedule on Drawing No DA1.01A, as follows: · The stairs within the building are to be amended to provide a minimum clear width of 1000mm, maximum riser height of 190mm and uniform riser heights; · All door handles to egress doors to be to BCA standard; · Obscure glass to be added to the windows as indicated on the plans and elevations to provide screening to adjoining properties and units opposite the central courtyard area; · Mature planting to be added to eastern and western garden beds as indicated on the landscaping plans to provide screening to adjoining properties; · Brick planter boxes to be constructed on the eastern ground floor balconies; · The waste enclosure to be moved to the east to overcome reduced truck access due to the positioning of the new substation; · The main basement entry ramp and waste enclosure driveway to be re-graded to achieve a 3% rise from the street kerb level to the boundary. 43 The original proposal was accompanied by a statement of environmental effects, (SEE), prepared by Project Planning Associates, dated 30 August 2002, and architectural drawings prepared by D+R Architects Drawing Nos DA 1.01A - DA 1.11A inclusive dated 29/8/02, a landscape layout Drawing No. LS02 (Sheet No 2B) and a plan of additional screen planting Drawing No SKLS-01 prepared by Kizana Architecture. This Statement of Environmental Effects provided a comparison between the plans originally approved by the Court and the plans submitted with the Building Certificate Application No 924/2002/AE the subject of related Class 1 proceedings. That comparison noted a number of differences broadly identified as follows: · Deletion of the lower basement level car parking and reconfiguration of the upper level basement car parking; · Reconfiguration of the floor plate and balconies at the, ground, first and second, floor levels; · Reconfiguration of the external openings and architectural detailing; · Modification of the roof form; · Deletion of the swimming pool in the north-eastern corner of the site; and · Inclusion of a storm water detention system in the south-western corner of the site. Amended Proposal 44 By letter dated 12 March 2003, the applicant forwarded documents in support of the applications for both the development application for use, works and the building certificate, supported by architectural drawings by D+R Architects, a landscape plan by PSB, hydraulic engineering plans by ACM, fire sprinkler plans by LPB Fire Services Pty Limited, survey plan showing floor levels, ridge and eave heights by Warren Eldridge, plans showing unit numbers as approved by the Court in 1999 and as now identified, a new statement of environmental effects by Willana Associates containing carparking and traffic report by Traffix, and other documents relating to hydraulic, fire safety, civil and structural engineering certifications, engineer site reports, certification by JDT Design Pty Limited regarding repair work for damage of ground floor beam and concrete soffit slab, certification by Barry Johnson & Associates regarding BCA compliance, and other matters in response to the issues raised in Council's letter dated 30 January 2003. 45 The new statement of environmental effects summarised the proposed rectification works: · Deletion of the lower basement level car parking and reconfiguration of the upper level basement car parking; · Re-configuration of the floor plate and balconies at the ground, first and second floor levels; · Reconfiguration of the external finishes and architectural detailing; · Modification of the roof form; · Deletion of the swimming pool in the north-eastern corner of the site and inclusion of a storm water detention system in the south-western corner of the site; · Embellishment of the site landscaping; and · Minor improvements to the functioning of the car park and driveway. 46 The amended plans submitted in relation to the development application for additional works and use comprise: 47 Drawing Nos DA1.01E, DA1.02D, DA1.03D, DA1.04D, DA1.05B, DA1.06C, DA1.07E, and a typical section showing sight lines (Job No 0019 dated 12/3/03) prepared by D + R Architects, OSD Plan Drawing No 99066 Sheet 1 of 2 Issue C dated 8/2/03 prepared by ACM Civil & Structural Engineers, and Landscape Concept Plan Drawing No SK01B prepared by Pittendrigh Shinkfield Bruce Pty Ltd dated 17 March 2003. 48 The new statement of environmental effects noted that the details of the rectification works are indicated on the site plan Drawing No DA1.01E, in addition to those listed in Drawing DA1.01A submitted with the original proposal. 49 The plans submitted with the development application are different in a number of respects to those plans that accompanied the building certificate application, i.e. in terms of driveway grades, natural ground level, floor levels of units, window sizes and placement, obscure glazing on windows, unit numbering, car park louvers, and garbage compound architectural treatment. The majority of these works are not listed as part of the total works to be carried out with this application for use, which shows the comparison between DA 804/2003/HB and Building Certificate Application 924/2002/AE plans. · The stairs within the building are to be amended to provide a minimum clear width of 1000mm, maximum riser height of 190mm and the uniform riser heights where necessary; · All door handles to egress doors to be to BCA standard; · Obscure glass to be added to the windows as indicated on the plans and elevations to provide screening to adjoining properties and units opposite the central courtyard area; · Mature planting to be added to eastern and western garden beds as indicated on the landscaping plans to provide screening to adjoining properties; · Brick planter boxes to be constructed on the eastern ground floor balconies; · The main basement entry ramp and waste enclosure driveway to be re-graded to achieve a 2% rise from the street kerb level to the boundary; · Substation added to Northwest corner of site; · Caretaker facilities added to basement; · Unit floor levels revised as per as-constructed conditions; · Unit numbering revised as per as-constructed conditions; · Planter box to front balcony, Unit 1; · Concrete to garbage pathway to be re-instated to edge of substation; · Delete shutter to basement between car spaces 16 & 17 (previously marked as spaces 10 & 11 in the original application); · Provide sprinklers to basement car park; · Provision of sprinkler valve room in north-west corner of basement store; · Remove front portion of entrance walls; · Deletion of car spaces 30, 31 and 32 as per the Traffix traffic consultant's recommendation and conversion of these spaces' to bicycle storage and to utilize the aisle width to improve the accessibility of adjoining spaces; · Re-organization of car parking spaces 7, 8 and 9 to improve their use, which involves removal of mesh fencing and rearrangement of doors, etc. 50 The plans are: Court Approved DA Plans DA Plans: Drawing Nos. 172-DA02C, 172-DA03C, 172-DA04C, 172-DA06F, 172-DA08D prepared by Designlink International Pty Limited. Part Plans DA02 (Exhibits E & F showing plan of stair to units 1 & 2, 11 & 12), a drawing showing the section through ramp, and SKO1-SK06 prepared by McDivitt Gelder Architects. Construction Certificate Drawing Nos. GA-O1 Issue A, GA- 02 Issue B, GA-03 to 13 Issue A prepared by Drummond + Rosen dated April 2000. Development Application Plans (as amended) Drawing Nos. DA1.01E, DA1.02D, subject of these proceedings DA1.03D, DA1.04D all dated 7/3/03, DA1.05B dated 19/12/02, DA1.06C and DA1.07E both dated 7/3/03, and a typical section showing sight lines (Job No. 0019 dated 12/3/03) prepared by D + R Architects, OSD Plan Drawing No. 99066 Sheet 1 of 2 Issue C dated 8/2/03 prepared by ACM Civil & Structural Engineers, and Landscape Concept Plan Drawing No. SK01B prepared by Pittendrigh Shinkfield Bruce Pty Ltd dated 17 March 2003 Building Certificate Plans BC1.01 - BC1.02 Issue C, BC1.03 - BC1.05 Issue B all dated 19/12/02, BC1.06 Issue A dated 29/8/02 & BC1.07 Issue C dated 19/12/02. Notification 51 As the proposed additional works are mainly internal and landscaping works, the application was not re-notified or re-advertised. The council's decision 52 When the Class 1 appeal in respect of DA No 843/2003/HB was filed on 30 August 2002 the respondent council had not formally determined the matter, hence this appeal is in respect of a deemed refusal. The hearing 53 At the hearing the court received expert evidence on behalf of the respondent council from: · Mr P Lee, town planner · Mr A Wood, traffic engineer · Ms D Woods, health and building surveyor · Mr N Kokolis, structural engineer · Mr A Lester, architect · Mr C Patag, town planner 54 On behalf of the applicant expert evidence was provided by: · Mr S Harding, town planner · Mr S Pittendrigh, landscape architect · Mr G Pindar, traffic engineer · Mr A Abbas, civil engineer · Mr B Johnson, health and building surveyor · Mr D Grunbaum, engineer · Mr W Headon, acoustic engineer · Mr Eldridge, surveyor The issues 55 On 20 May 2003 the council filed the following Statement of Issues in respect of Appeal No 10463 of 2003: 1. Whether in the event of a grant of consent, there is jurisdiction for any person to issue an occupation certificate in relation to that consent. 2. If the answer to (1) is no, whether there is any utility in the proceedings. 3. Council raises the following issues for determination by the Court:- (i) Whether the application contains sufficient information to enable the Council or Court to determine it, including: (a) A design verification statement pursuant to Baulkham Hills Development Control Plan 23 ("DCP23") Clause 4.1 Design Quality of Residential Flat development. (b) A site plan pursuant to Clause 5.1 DCP 23 - the site plan lodged does not show the location and general description of adjoining developments. (c) A site analysis pursuant to Clause 5.2 DCP 23. (d) The Statement of Environmental Effects (SEE) contains a number of errors and does not: (i) describe or address the impact of all works proposed; (ii) address all applicable DCP 23 requirements; (iii) refer to the correct zone pertaining to the development; (iv) indicate the method of calculation of the landscaped area (DCP 23 clause 5.12); (v) contain a Building Greenhouse Performance Rating and other details as required by Clause 5.13 DCP 23 Energy Efficiency; (vi) contain information required in relation to Stormwater Management at clause 5.19 of DCP 23 - Submission Requirements. (e) The plans do not contain the following information: (i) Natural ground level RLs; (ii) An accurate survey of the car parking area showing grades, spot levels of all car spaces and driveways, and detailing headroom; (iii) The soil depth in the central open space area; (iv) North-south sections through the centre -of the development; (v) Long sections east-west through the centre of the open space; (vi) The landscape plan shows existing trees in the wrong location; and an incorrect north point; (vii) Adequate information to enable a determination as to whether the proposal meets the solar access objectives and requirements including impacts on adjoining properties. 4. Whether the proposed use of the unauthorised development should be approved having regard to the following clauses of the Baulkham Hills Local Environmental Plan 1991 (BHLEP): (a) Aim 2(1)(c) and Objective 2(2)(b). (b) Clause 41 and Clause 42 - Site area. 5. Whether the proposed development meets the objectives and development controls set out in the following clauses of the Baulkham Hills Development Control Plan 23 Multi Unit Housing ("DCP23"): (a) Clause 1.3 Aims and Objectives (iv) and (v). (b) Clause 3.1 - Ecologically Sustainable Development objectives at (v) energy efficiency and (vii) neighbourhood amenity. (c) Clause 4.1 - Design Quality of Residential Flat development. (d) Clause 5.1 - Site Requirements (i) Development Control (a) - in that the required minimum site area of 4000m2 is not met. (e) Clause 5.2 - Site analysis (i) Development Control (a) design to site constraints - drainage. (ii) Development control (c) - in terms of whether screening and landscaping is sufficient on the eastern side. (f) Clause 5.3 - Building setbacks (i) Whether the setbacks meet the objectives of clause 5.3. (ii) Whether the front, side and rear setbacks comply with the development controls at 5.3(b). (g) Clause 5.4 - Building Height (i) Whether the buildings comply with the building envelope requirements at clause 5.4 (b) and diagram 5.7. (h) Clause 5.5 - Building separation (i) Whether the building separation complies with the development control for minimum separation at clause 5.5(a). (ii) Whether the space between the buildings is capable of extensive deep-rooted planting required at development control 5.5(b). (i) Clause 5.6 - Landscaped area (i) Whether the central landscaped area is within one metre of natural ground level, and therefore can be counted as landscaped open space. (ii) Development control (e) - landscaped to a high standard (iii) Development control (f) - whether the application complies with DCP 107. (j) Clause 5.7 - Building Length (i) Whether the building length of both buildings comply with the maximum length of 50m at development control (a). (k) Clause 5.10 - Unit Layout (i) Whether the development meets the objectives (i) and (iii) of the clause having regard to the unit sizes and unit layouts. (1) Clause 5.12 - Open space (i) A. Private open space - Whether the development meets the objectives (i) and (ii) of the clause having regard to the orientation and depth of the balconies. (ii) B. Common open space - Whether the development meets objective (i) of the clause having regard to its location and orientation, the lack of facilities such as a swimming pool, its size, and the location of the stormwater detention basin. (iii) Whether the amenity of the common open space area is adequate having regard to the stormwater detention basin and the location of the raised on site detention tank. (iv) Whether the orientation and location of the open space complies with development control (d) - maximising solar access to the open space during winter. (m) Clause 5.14 - Solar access (i) Objectives 5.14 (i), (ii). (ii) Development controls (a) and (b). (n) Clause 5.19 - Stormwater management (i) Objective (iii). (ii) Development controls (d),(e),(f),(g) (o) Clause 5.20 - Vehicular access (i) Objectives (i) and (ii). (ii) Development control (a), (c) and (d) (p) Clause 5.21 - Car parking (i) Development control (a), (b), (c), (d), (e), (f), (i), (k). (q) - Clause 5.22 - Storage (i) Whether adequate storage areas are provided in accordance with development control (a). (r) Clause 5.23 - Access and Adaptability (i) Objectives (i), (ii), (iii), (iv). (ii) Development controls (a), (c), (d), (h), (i), (l). (iii) Whether the documentation with the application is adequate to demonstrate that the objectives and controls are satisfied. (s) Clause 5.24 - Pedestrian Links (i) Development control (a); (d). (t) Clause 5.25 - Privacy (i) Objective (ii). (ii) Development control (a). (u) Clause 5.27 - Waste management (i) Objective (iii) (ii) Whether the proximity of the waste storage area impacts on the amenity of Unit 13. (iii) Development control (f). 6. Whether the proposed development meets the objectives and development controls set out in the following clauses of the Baulkham Hills Development Control Plan 102 - Car Parking ("DCP102 (a) Clause 4.1 Parking provisions (i) Objective (i). (ii) Development controls 4.1.1 (a) and (i); and Table 1. (b) Clause 4.5 Carwash bays (i) Objective (ii). (ii) Development controls (d), (e). . (c) Clause 4.7 Car park design and layout (i) Objectives (i), (ii). (ii) Development controls 4.7.1 (a), (e); 4.7.2 (a), (d), (f), (g); 4.7.4 (a). (d) Clause 4.10 Access driveways (i) Objectives (i), (iii). (ii) Controls (b), (d), (i) 1. The public interest including orderly development and the objects of the Environmental Planning and Assessment Act 1979. 56 On 8 December 2003 the remaining merit issues (by subject) were: Privacy · central courtyard and pathway; reduced building separation (8.2m-10m vs. required 12m) [issue 5(h)(i)]; · pathways between 2.3m and 4.0m from ground floor units [issue 5(t)]; · landscaping insufficient to screen [issue 5(i)(ii)]; · common open space at rear - overlooking from rear units - balconies of units 10 and 12 within 1 metre of space [issue 5(f)(i)]; · common open space at rear - overlooking from space to adjoining properties [issue 5(l)(ii)]; · acoustical privacy - between wet areas and adjacent living areas. Over-development of site Reduced building separation (see above); Encroachments into setbacks [issue 5(f)(i) and (ii)]; · front setback 7.81m or 9.6m depending on whether measured from structural walls from car park or building wall. Compare with 10m requirement; · western side setbacks from 4.77m-6.2m; compare minimum 6m; 5 units deficient; · eastern side setbacks from 4.77m (or 6.23m measured from wall of building); at least 8 units deficient; · rear setback 4m (from balcony); compare current requirement 8m (old DCP requirement 6m). Sub-standard unit sizes [issue 5(k)(i)] · all 2 and 3 bedroom units less than minimum size requirement. Balconies too shallow to be functional; some at 1.8 m depth - reduction in depth arising directly from compromise with encroachment into side setbacks [issue 5(l)(i)] Lack of storage for all units; less than 10m2 per unit [issue 5(q)(i)] Insufficient number of car spaces [issues 5(p)(i) and 6(a)(ii)] · current standard 52 resident spaces + 11 visitor spaces required; · proposed spaces 49 counting stacked parking; excluding stacked = 44; indicative of 'squeezing in' + 10 visitor spaces; · car parking layout generally below minimum dimensions [issue 6(c)] - (might be useful to colour up a basement plan showing deficiencies); · length of spaces 8, 9, 51 and 52 short by 100mm; · visitor spaces 2, 4, 6, 7 and 8 short/narrow by 20-80mm each (ie 5 of 10 visitor spaces); · aisle width below minimum (6.7m) by 40mm; · lack of blind aisle extension to space 7. Ramp grade too steep [issue 5(o)(i) and (ii)] · if grade were to comply with maximum allowed by Australian Standards, it would extend length of ramp into basement carpark, making cross-grades of adjacent visitor spaces unworkable. User safety · ramp too steep [issue 5(o)(i) and (ii)]; · sight lines inadequate; shallower ramp would avoid problem [issue 6(c)(ii) - dev control (b)]; and · conflict between pedestrian and vehicles in vicinity of driveway/stair [issue 5(s)]. Accessibility · current controls (Council's DCP and Access Code) requires wheelchair accessibility -intended to provide non-discriminatory, choice of housing; not achieved [issue 5(r)(i) and (ii)] · inconsistent with Disability Discrimination Act (or, in the alternative, will result in an offence against DDA). Termite protection · methodology for retro-fitting; how it relates to procedure for installation of waterproofing membrane. 57 These issues can be distilled as being: · Whether the units and common open space will be subject to unreasonable overlooking, whether neighbouring properties will be overlooked and whether acoustic privacy between some units will be satisfactory. · Whether the development comprises an overdevelopment of the site in terms of the separation between buildings and building setbacks. · Whether the units in the development are too small, the balconies are too shallow and whether the units have adequate storage space. · Whether there is an insufficiency of car spaces and whether a number of car spaces and the access thereto are dimensionally deficient. · Whether the main access ramp to the basement car-park is too steep and would be thus unsafe for pedestrians in Campbell Street. · Whether the development should be required to provide wheelchair access to the units. · Whether the building can be satisfactorily protected against termites. The evidence and findings Privacy 58 The privacy issue involves overlooking between units across the central axis courtyard within the development, overlooking from pathways into ground floor units and the overlooking from some units on to the common open space at the rear. Overlooking from the common open space onto adjacent development is also an issue as is acoustical privacy between wet areas and adjacent living areas in some units. 59 In relation to the acoustic privacy issue, conditions are proposed to ensure that units will meet BCA acoustic requirements. We are satisfied that these conditions can be complied with. 60 The privacy issue involving unit to unit overlooking mainly arises because of the non-compliance with the requirement of clause 5.5 of DCP 23 which requires that the two buildings have a minimum separation of 12 metres. As built the actual separation ranges between 10 metres and 8.2 metres. 61 The overlooking across the central courtyard involves bedrooms and kitchens. The central courtyard contains a common pedestrian access path, which provides opportunities for pedestrians using this pathway to look into ground-floor units. Also of concern, the occupants of rear units will be able to overlook the common open space at the rear of the site and for the users of the open space to overlook adjoining properties. 62 In response to these concerns the applicant has agreed to conditions, has changed the design somewhat and provided a landscape plan. These matters will mitigate the impacts of and includes some landscaped screening and obscure glazing. Some unit-to-unit overlooking will remain at the upper levels but even though this includes overlooking from kitchens it will mainly be between bedrooms. 63 Taking into account the extent of separation, proposed landscaping, glazing and the nature of the overlooking we do not accept that, taken together, the privacy impacts are at such as to warrant refusal of the application. Overdevelopment 64 The issue of overdevelopment relates to increased floor area, non-compliance with the setback requirements of DCP 23 and the undisputed non-compliance with the building separation requirement as referred to in the privacy issue above. As constructed, the development has a floor area greater than that approved by the Court. 65 Relative to the approved development changes to the front, side and rear setbacks and floor areas are shown on the plans in Exhibit 22. The areas depicted in blue show floor area increases and the areas depicted in yellow show reductions. The yellow areas somewhat offset the non-compliances. 66 Brick planter boxes are to be constructed on the eastern ground-floor balconies and the landscaping in front of these boxes is to be improved thus softening the visual impact of the building. Landscaping in the central courtyard and elsewhere is also to be improved. 67 Taking all these matters into account we have not been persuaded that the non-compliances represent an over-development of the site sufficient to warrant refusal of the application. Unit sizes and storage 68 In relation to unit sizes it is to be noted that the units as approved are smaller than the minimum size permitted by DCP 23. The units as now built are larger than those approved but are still smaller than the requirement. 69 Similarly the depth of the balconies is very much the same as those shown in the approved design. In these circumstances we would not refuse the application. 70 DCP 23 requires that there be 10m2 metres of storage area per unit, which has not been provided as sought. There is however some general storage provided in the basement in a manner similar to that shown on the approved drawings. Taking into account the sizes of the units and not withstanding that the provision of storage areas is appropriate refusal of the application on this basis is not warranted. Car parking and access 71 The number of car-parking spaces in the basement does not meet the requirements of the council. A number of car spaces are stacked, are too small or do not have sufficient headroom. Council does not normally approve stacked car-parking spaces essentially because of the associated inconvenience. 72 We accept that the pairs of stacked spaces can be allocated to particular units and the associated inconveniences would not be significant. The number of spaces that are dimensionally deficient is relatively few and the spaces are nevertheless useable. In these circumstances we have not been persuaded that the application should be refused because of car parking and manoeuvring deficiencies. 73 Concern was expressed that visibility at one of the intersections in the access way was such that it would be dangerous. We accept that visibility is limited but given the low speed environment this corner would not be so unsafe as to warrant rejection of the application. The access ramp 74 The existing consent for this development requires that the vehicular access ramp to the basement car park should comply with Australian Standard 2490.1 - 1993 - Parking Facilities - Off-street Carparking. The ramp as constructed does not comply with this standard particularly having steeper gradients than are provided for. The applicant proposes to make some modifications to the ramp so as to facilitate appropriate gradients on the adjoining footpath but no attempt has been made to meet the gradient requirements of AS 2890.1. 75 The council seeks to impose on the sought consent a similar condition to that originally imposed together with a number of other requirements including line marking, signage, striker bars etc. To the extent that the condition requires compliance with the ramp requirements of AS 2890.1 the applicant objects to this condition. 76 In his evidence in this regard Mr Pindar made a number of points, which in essence are: · The standard does not take into account prevailing conditions and, given the scale of this development need not be strictly applied. A number of other metropolitan councils allow discretion in such circumstances and permit steeper gradients. · The standard permits steeper driveways where they serve domestic properties in residential areas even where pedestrian activity including schoolchildren is a common occurrence. · The provision of generous visual splays - in excess of AS 2890.1 -will enable drivers to have sufficient lateral clearances to view pedestrians and stop if necessary. Also pedestrians will have a clear view of exiting vehicles. · The Baulkham Hills Council has approved numerous ramps for similar developments with steeper grades. · Some weight should be given to the fact that the building has already been constructed. 77 In response Mr Wood, in essence, explained that: · Council rarely allows variations to AS 2890.1 and only does so on a merits basis and where there are site constraints warranting an exception. This is a large and relatively unconstrained site and there is no justification for non-compliance. · In relation to the examples of steeper grades said by Mr Pindar to have been approved by the council the approvals either required compliance with the standard or site constraints justified an exception. · The splays do not entirely comply with AS 2890.1 because they do not extend the required distance into the property to allow for passive viewing of the streetscape. · The existence of the building cannot justify non-compliance. 78 In addition to the evidence provided in relation to this aspect of the proposal, including long sections of the existing ramp we also took into account when dealing with this issue the observations made by the Court at the site inspection on 11th December 2003. 79 Whilst we do not accept Mr Wood's evidence, which in part was to the effect that any ramp, which did not meet AS 2890.1, would not be safe, we otherwise prefer his evidence. Generally speaking we agree that the existence of the building cannot be determinative of this issue. Although the gradient of the ramp would not be seriously problematical in terms of vehicular ingress and egress the matter of pedestrian safety is critical. 80 We have carefully considered the sight line long sections of the existing ramp and note that as vehicles approach the street the ability of a driver, in this critical location, to observe a small child on the footpath would not be as good as would be the case for a complying ramp. Despite being satisfied that the extended splays would provide adequate lateral viewing of the footpath and the provision of a speed hump which would ensure that vehicles arrive at the property boundary travelling relatively slowly, the reduced vertical visibility is such, we have concluded, as to warrant requiring the development's partial compliance with AS 2890.1. 81 We have not been persuaded that strict compliance is required for the entire ramp. However essential compliance with AS2890.1 will be necessary in the vicinity of the property boundary so that vertical visibility for exiting vehicles (85th percentile) will be very much the time the same as would be achieved by such compliance. 82 We have reached this conclusion recognising the extensive works which will be involved and which will probably include modifications to car-parking spaces, access to and through service areas and fire exits. Also involved will be modifications to the concrete beam which supports the northern wall of Unit 13 at the opening to the basement. In this particular context we considered the structural engineering evidence and have been persuaded that this beam could be converted from its present down turned configuration to an up turned beam so as to provide the minimum 2.2 metres clearance. Disabled access 83 Whilst disabled persons can access the central pedestrian pathway within the site, access to the relatively elevated entry foyers such access is effectively denied by stairways. Access into the ground floor units is probably also denied at the threshold. Access into the upper floor units is only available via stairways, no lift being available. This arrangement is very much the same as was provided for in the originally approved development. 84 It was submitted on behalf of the council that the Disability Discrimination Act 1992 has the effect of requiring that the existing buildings must be modified to ensure that persons with a disability are not denied access. 85 In all of the circumstances we have decided that it would be unreasonable to require that the existing multi-level development be required to be modified so that persons in wheelchairs can access all of the existing units. However we do not accept that it would be unreasonable to require that the central pedestrian pathway could not be elevated and connecting ramps provided such that wheelchair access would be available to each of the ground floor foyers. Termite protection 86 Council was concerned that the constructed building had not been provided with adequate termite protection. This has effectively been attended to in the revised drawings, specifications and conditions of consent. We accept that although difficult appropriate protection can be retrieved fitted possibly in conjunction with the installation of waterproofing membranes. Conclusions 87 In all of the circumstances we have decided that, the applicant should be invited to amend the basement vehicular access ramp and to provide disabled access. 88 In particular, the applicant might amend the basement ramp, in the vicinity of the property boundary, in accordance with AS2890.1 to facilitate easier vehicle control and to achieve a superior level of safety for pedestrians, especially children, when compared to that provided presently. For drivers of exiting vehicles, this would achieve the vertical sight lines of the Australian Standard. 89 Disabled access to the building might be provided to the ground floor foyer areas of the proposal, so that persons in wheelchairs can gain access to and from the footpath in Campbell Street, in compliance with the Disability Discrimination Act 1992 (Cth). 90 The Court also invites the applicant to amend the architectural, landscape, drainage etc plans to reflect these conclusions and the Council might also prepare a revised set of conditions. S J Watts T A Bly Commissioner of the Court Commissioner of the Court THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts and Bly C 8 June 2004 10463 of 2003 Austcorp No. 459 Pty Ltd v Baulkham Hills Shire Council JUDGMENT 1 To the extent that it is necessary to confirm the document which is dated 17 February 2004 and which is titled "Judgment" but which does not contain any orders, instead containing conclusions, we confirm that judgment. 2 We are now satisfied that the matters that were of concern to us at that time have now been resolved to our satisfaction and we now propose to uphold the appeal and grant conditional development consent. 3 The conditions in exhibit 32 we note are, with the exception of condition 47, agreed and we should say that despite the delays we recognise that it has been a difficult task in getting to this point. We are pleased that the parties have worked so hard to get to this point where there is only one remaining matter for us to resolve and that matter, of course, is condition 47.Having heard the submissions in this regard we have decided that the condition should be retained. 4 This is because the history of this development is such that we are inclined to accept council's concerns as expressed in the respondent's submissions and we accept that the regime indicated by the condition would be appropriate. We do not believe that it would result in any unreasonable delays and we do not accept that the preparation of work as executed drawings would unreasonably delay the obtaining of a construction certificate. 5 The orders of the Court will therefore be: (1) The appeal No 10463 of 2003 under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. (2) Development application No 843/2003/HB lodged with the respondent council on 30 August 2002, for certain additional work and use of the property as a residential flat building on Lot 1, DP 1035154, being Nos 18-22 Campbell Street, Northmead, is approved subject to conditions 1 to 48 in Annexure A. (3) The exhibits with the exception of Exhibits Q, R, S, U, DD, EE, FF, GG, HH, JJ, KK, 10, 11, 21, 23, 25, 26 and 30 are returned. _________________________ _____________________ S J Watts T A Bly Commissioner of the Court Commissioner of the Court 8 June 2004 In the Land and Environment Court of New South Wales Appeal Nos 10463 of 2003 Conditions of development consent Annexure A Austcorp No 459 Pty Limited v Baulkham Hills Shire Council Nos 18-22 Campbell Street, Northmead DA 804/03/HB - Use Of Building and Certain Additional Works A. Surrender of Consent Development consent No 1194/1999 is to be surrendered to Council, prior to the commencement of works in accordance with this consent. GENERAL MATTERS 1. Development in accordance with submitted plans and application documentation The development is to be carried out substantially in accordance with all application documentation as follows: a. Architectural plans prepared by D+R Architects as follows: Drawing Nos. DA1.01i, DA1.02G, DA1.03H, DA1.04G, DA1.05D, DA1.06E, DA1.07J, as amended by SK10C and SK13A; b. Landscape Plans prepared by Pittendrigh Shinkfield Bruce Pty Ltd Drawing Nos. SK02C, SK01I, (excluding sections AA and BB) and landscape scope of works; c. Basement sprinkler plan prepared by LPB Fire Services Pty Ltd Project No. 103/1 Drawing No. 0001A; d. Engineering Drainage Plans 99066 prepared by ACM Civil & Structural Engineers Issue G dated 14 October 2003; e. Ground floor plan prepared by JDT Design Plan S40051 location of existing repairs; f. Garage entrance beam design drawings prepared by JDT Design Drawing Nos 0051/SK1 and SK2 and construction sequence dated 25 March 2004; and g. Schedule of Works dated 4 May 2004 (and documents attached to the Schedule attached hereto). 2. Construction Certificate Applicant must submit a construction certificate to Council or an Accredited Certifier for approval prior to commencing work in accordance with this consent. Plans submitted with the construction certificate are to be amended to incorporate the conditions of the Development Consent. A pre-lodgement meeting is required for medium density/ Class 2-9 developments if lodging the Construction Certificate Application with Council. Please contact Council's Building Control Section on 9843-0431. 3. BCA Deemed to Satisfy Provisions The building is to comply with the Provisions of the BCA. 4. Provision of Car Parking Spaces a. The provision and maintenance thereafter of 58 off-street car parking spaces (i.e. 50 resident spaces and 8 visitor spaces) for the 26 residential units. b. Visitor car parking spaces are not to be used for resident parking. 5. Supervision of Works A suitably qualified and experienced Civil Engineer, Registered Surveyor or Civil Engineering Foreman shall supervise all work in the road reserve. The supervisor's name, address and contact phone number shall be submitted to Council prior to the commencement of construction in the road reserve. In this regard a construction programme and anticipated duration of construction for all work in the road reserve shall be submitted in writing to Council prior to the commencement of any works in the road reserve. 6. Engineering Construction Certificate - OSD In order to certify that engineering plans and specifications for on-site detention works are in accordance with the Conditions of the Development Consent and Council's Design Guidelines and/or Works Specification, an Engineering Construction Certificate is to be obtained prior to the commencement of any works. If you choose to obtain an Engineering Construction Certificate (ECC) using Council's services, the following must be submitted: • A completed application form • Four (4) copies of the design plans and specifications. Such plans and specifications are to be prepared by a suitably qualified person or company. The engineering design shall be based on plans of survey showing existing contours and levels prepared by a registered surveyor to Australian Height Datum (AHD). • Payment of the appropriate Construction Certificate fee • Payment of the appropriate Inspection of Works fee • Payment or lodgement of any required security bonds • Payment of a Long Service Levy (if appropriate) 7. Gutter & Footpath Crossing Application The submission to Council of an application for gutter and footpath crossings, accompanied by the current fee as prescribed in Council's Schedule of Fees and Charges. 8. Minor Engineering Works In order to provide satisfactory servicing of the development, engineering design and construction works are to be undertaken by the applicant in accordance with; • Council's "Design Guidelines - Subdivisions/Developments" (June 1997). • Council's "Works Specifications - Subdivisions/Developments" (November 2001). Such works shall include: i) Heavy Duty Crossings – Medium Density/Commercial Development Heavy-duty gutter and footpath crossing at all points of vehicular access to the site. In this regard, the footpath crossing shall be minimum 6.0 metres wide at the boundary splayed to a 7metres wide at the kerb. ii) Sealed Driveway Access Approval is granted subject to providing a sealed or concrete driveway from the rear of the footpath crossing to the proposed car parking area. In this regard, the driveway shall be minimum 6.0 metres wide for the first 6.0 metres behind the boundary. 9. Car parking & Access All internal car parking spaces and access roads shall be prominently and permanently line marked, signposted and maintained to ensure entry and exit is in a forward direction at all times and that parking and traffic circulation is appropriately controlled. All access roads and car parking areas are to be separated from landscaped areas by means of a kerb or concrete dwarf wall. 10. Public Liability Insurance All contractors working in the public road shall take out public liability insurance for a minimum amount of $10 million. The policy shall specifically indemnify Council from all claims arising from the execution of the works. Written evidence of this insurance shall be submitted to Council prior to the commencement of construction in the road reserve. 11. Protection of Public Infrastructure Council must be notified of any damage to the public infrastructure such as road pavement, kerb and gutter, concrete footpaths, drainage structures, utilities and landscaping fronting the development. Adequate protection must be provided for public infrastructure prior to work commencing and during building operations. Any damage to public infrastructure caused during construction shall be made good prior to the issue of an occupation or subdivision certificate. 12. Strata Title Application A formal subdivision application is to be submitted to Council in respect of any proposal to strata title subdivide the approved development. 13. Vehicle Washing a. In regards to private vehicle washing by future occupants, no vehicle washing is to be carried out except in the vehicle wash bay provided. b. All wastewater from the vehicle wash bay is to be disposed of to Sydney Water's sewerage system. The developer shall contact the Trade Waste Office of Sydney Water so as to ensure that the sewerage pre-treatment system installed is appropriate for the proposed use of the car wash area. 14. Commencement of domestic waste services All bins are to be ordered by the property owner or agent acting for the owner by calling Council's Domestic Waste Line on 1300 134 897. Bulk Garbage Service - The owner is required to notify Council one week prior to occupancy that the garbage service is to be commenced. The required recycling bins can also be ordered at that time. 15. Design and construction of bin storage facility The bin storage facility is to be constructed/completed: 1) with a 5cm radius sanitary coving at the junction of the floor slab and walls; 2) with a water supply and tap to facilitate bin washing onto turfed or garden areas (if tap is located inside the bin storage facility it is not to protrude into the space indicated for the placement of bins); 3) with a wooden bump rail, fixed to the interior wall of the bin storage facility, at the height of the upper and outer most point of the 1.5m3 bulk garbage bin; 4) with a door (hinged or sliding gates of painted wood or metal, or panel-lift/roller/tilta door) in the wall opening which, when fully opened, is flush with the outside wall and/or not blocking the driveway or footway, and which allows most direct access to the bins for servicing by the collection vehicle; 5) with a suitable resident access door (allowing wheelchair access for adaptable sites); 6) with signage provided by Council to be mounted in a visible location on an internal wall in the bin storage facility and is to be maintained by the Body Corporate (signage is to indicate the correct use of the garbage and recycling service); 7) with permanent signage, which is to be maintained by the Body Corporate and mounted in a visible location on the front of the bin compound, indicating "No Parking in front of Bin Compound - 24 hours", where the bin storage facility opening and access path have frontage to the street or internal driveway; 8) for use only by the residents of the completed development and no builders or contractors waste is to remain in the bin storage facility; 9) details to be submitted with the Construction Certificate. 16. Numbering In order to provide a consistent and accurate system of street numbering throughout the Shire, house numbering has been provided as a condition of this consent. The responsibility for house/unit/tenancy numbering is vested solely in Council and as such, the street numbers as issued are to be displayed on all buildings resulting from this approval. 17. Enter and Leave in Forward Direction All vehicles are to enter and leave the site in a forward direction and prominent and permanent signposting to this effect is to be provided and maintained. 18. Additional Landscaping/Screening The following additional works shall be undertaken prior to the occupation of the building: · Additional landscape screen planting along the eastern property boundary to fill in for a continuous landscaping along this boundary to protect the amenity of the future residents of the adjoining development. · Privacy screens of lattice (or other fabric specified b y the landscape architect) shall be provided at the ramp edge t a height of 1.5mabove the finished ramp level at the following locations, adjacent to: o bedroom 3 of unit 18; o bedroom 2 of unit 22, width 2.0m. o bedroom of unit 1, width 2.0m; o bedroom 1 of unit 9, width 1.5m 19. Footpath Access to Garbage Enclosure Area The applicant shall provide a footpath within the subject site providing access to the garbage enclosure area. Details to be submitted prior to the issue of Construction Certificate. 20. Works in Schedule of Works 20.1 Item 2(iii) Schedule of Works Prior to construction of new brickwork wall identified in item 2(iii) of the Schedule of Works a suitably qualified engineer is to confirm that the existing wall to be demolished may be demolished. Following construction of new brickwork wall identified in item 2(iii) of the Schedule of Works, a suitably qualified engineer is to certify the brickwork wall has been built in accordance with instructions. 20.2 Item 4(iii) Schedule of Works Works in item 4(iii) of the Schedule of Works are to be supervised by a suitably qualified engineer and the reinforcement is to be inspected prior to the concrete placement. The engineer is to certify that the works when completed have been carried out in accordance with the instructions. 20.3 Item 31 in Schedule of Works The membrane referred to in Item 31 of the Schedule of Works shall cover the entire exposed central corridor of the ground floor transfer slab. All waterproofing works shall be undertaken by an approved Tremco applicator and warranties submitted to the Principal Certifying Authority before issue of any occupation certificate, and after installing the membrane, to both materials and installation of the membrane system by Tremco and the applicator respectively. Flood testing of the waterproofing are shall be undertaken prior to reinstatement of landscaping and other relevant courtyard elements. The work in item 31 is to be carried out in accordance with the Tremco letters dated 20 and 21 August 2003 save that in item 1(c) of the 21 August letter Tremproof XJ5000 shall be used instead of Polyflash butil tape; and Tremproof XJ5000 is to be installed in strict accordance with Tremco's specifications. PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE 21. Retaining Walls-Construction Certificate Prior to the issue of a construction certificate that Applicant is to submit to the Certifying Authority an engineering certificate from a suitably qualified engineer certifying the structural adequacy of all existing retaining walls exceeding 600mm in height. 22. Submit Waste Management Plan – Construction/Design of Facilities/On-going Use Prior to the issue of the construction certificate a "Waste Management Plan" must be submitted to Council for approval in accordance with the waste minimisation requirements in the relevant Development Control Plan. The plan shall address: the type of material, the estimated volume (m3) or area (m2) of material, the proposed reuse or recycling methods, contractor information, recycling outlet and land fill site. Reuse and recycling of materials must be maximised. The location and size of the waste storage areas must also be shown on the site plan. Dockets/Receipts verifying recycling/disposal must be kept to be checked by Council if required. 23. Engineering Works and Design - OSD In order to provide satisfactory servicing of the development, engineering design and construction works are to be undertaken by the applicant in accordance with; • Council's "Design Guidelines - Subdivisions/Developments" (June 1997). • Council's "Works Specifications - Subdivisions/Developments" (November 2001). Such works require an Engineering Construction Certificate to be obtained and are to include:- i. OSD Upper Parramatta River Catchment Onsite stormwater detention is to be provided in accordance with Council's adopted policy for the Upper Parramatta River Catchment and Council's "Design Guidelines – Subdivisions/Developments" (June 1997). ii. Stormwater Quality Control Device Provision of a stormwater quality control interception pit to treat and control stormwater discharge prior to entering the existing downstream stormwater drainage system. iii. Stormwater Drainage The stormwater drainage design shall be carried out generally in accordance with the Concept Stormwater Drainage plan prepared by ACM Civil & Structural Engineers, Drawing No. 99066 sheets 1 and 2 dated 14 October 2003. iv. Detention Basin The western and southern walls of the above ground detention basin (Basin II) are to be relocated within 2 metres of the western and southern boundaries respectively. Remove eastern and northern walls of the basin, re-grade the eastern and northern sides of the basin to provide a continuous landfall; delete fence shown on architectural plans. 24. Storage That the applicant submits a plan showing the method for allocation of storage spaces for individual units in the storage area identified in the plans. 25. Security Bond - Pavement & Public Asset Protection The provision of a Security Bond to the value of $30,000 to guarantee the protection of the adjacent road pavement and public assets during construction works is required. The amount of the security bond is calculated at the rate of $30.00 per m2 based on the public road frontage of the subject site plus 50m either side and the road width from back of kerb to back of kerb or $10,000.00 (whichever is greater). The bond shall be lodged with Council prior to the issue of a Construction. The value of this bond shall be confirmed with Council prior to submission and may be in the form of cash or an unconditional bank guarantee. The bond is refundable upon written application, payment of the applicable bond release fee and subject to all work being restored to the satisfaction of Council's Engineer. Should the restoration cost exceed the value of the bond, Council will undertake the works and issue an invoice for the recovery of these costs. 26. Section 94 Contribution A contribution (Currently $64,542.02) being paid to Council prior to the issue of a construction certificate in accordance with Section 94 of the Environmental Planning and Assessment Act 1979 , to provide for the increased demand for public amenities and services resulting from the development. The applicant is advised that the above contribution amount consists of $2,013.43 for each of the two (2) bedroom units and $3,020.17 for each of the three (3) bedroom units less $3,915.00 for each of the existing allotments. Payments comprise of the following:- 10 x 2 BR Units 16 x 3BR Units Total Road & Traffic - capital $452.60 $1,086.08 $1,538.68 Open Space – Land $17,528.90 $42,069.44 $59,598.34 Open Space - Embellishment $1,211.90 $2,908.80 $4,120.70 Community Facilities - land $88.00 $211.20 $299.20 Community Facilities - capital $852.90 $2,047.20 $2,900.10 Sub Total $20,134.30 $48,322.72 $68,457.02 Less one (1) existing lot @ $3,915.00 each lot $3,915.00 Total $64,542.02 The figures mentioned above are based on the current rates and applicants should be aware that the contribution will be based on the rates at the time of payment which will not necessarily be those mentioned above. (N.B: Rates are adjusted on a quarterly basis). This condition has been imposed in accordance with Contributions Plan No 7. A copy of this plan may be inspected at the Customer Service Centre, of Council's Administration Complex, corner of Carrington and Showground Roads, Castle Hill between the hours of 8.30 am and 4.30 pm weekdays. Prior to payment of the above s 94 contribution, the applicant is advised to contact the Section 94 Officer on 9843 0268, for the current s 94 rates. 27. External Works Security Bond The provision of a security bond to the value of $10,000.00 to guarantee the construction, completion and performance of all works external to the site is required. The amount of the security bond is based on 150% of the value of providing all such works or $10,000.00 (whichever is greater) and shall be lodged with Council prior to the issue of an Engineering Construction Certificate. The value of the External Works Security Bond shall be confirmed with Council prior to submission and may be in the form of cash or an unconditional bank guarantee. The bond is refundable upon written application, payment of the applicable bond release fee and subject to all work being completed to the satisfaction of Council's Engineer. Note: A maintenance bond to the value of 5% of the value of all external works with a minimum of $5,000 shall be retained for a 12-month defect liability period. The release of the maintenance bond shall be subject to a satisfactory final performance inspection 12 months after certified completion of the works. 28. $1000 Security Bond & Draft Request Document - O.S.D The submission to Council of a Draft Request document, together with a $1,000 cash bond for the creation of a Positive Covenant and Restriction As to User in respect of: i. Restriction - O.S.D. Modification A Restriction-As-To-User restricting development over and/or the varying of the finished levels of the on-site detention structures and associated components. ii. Positive Covenant - O.S.D Maintenance A Positive Covenant to ensure the on-going maintenance of the on-site detention structure. Note: Council will refund the $1,000 cash bond upon written application and evidence being submitted demonstrating that registration of the Request Document at Land and Property Information New South Wales (LPI) has occurred. 29. Bank Guarantees Should a Bank Guarantee be the method of submitting a Security Bond, the guarantee is to:- i) Have no expiry date. ii) Be forwarded direct from the issuing bank to Council under cover of a suitable letter that refers to the consent and details Council's Development Application Number 804/03/HB. iii) Should it become necessary for Council to uplift the Bank guarantee, a notice in writing will be forwarded to the applicant fourteen (14) days prior to such action being taken. NO GUARANTEE WILL BE ACCEPTED DIRECT FROM THE APPLICANT. PRIOR TO ANY WORK COMMENCING ON SITE 30. Pre-Construction Public Infrastructure Inventory Report Prior to work commencing, you are required to submit to council a Public Infrastructure Inventory Report recording the condition of all assets such as kerb & gutter, road pavements, drainage structures, concrete footpaths, verges, landscaping, utilities etc. The report shall include : • Designated access and delivery routes. • Photographic evidence of the pre construction condition of all public assets along all road frontages of the site and the designated access and delivery routes. The report shall clearly indicate the date of recording DURING CONSTRUCTION 31. Hours of Work Work on the project to be limited to the following hours: - Monday to Saturday - 7.00am to 5.00pm; No work to be carried out on Sunday or Public Holidays. The builder/contractor shall be responsible to instruct and control sub-contractors regarding the hours of work. Council will exercise its powers under the Protection of the Environment Operations Act, in the event that the building operations cause noise to emanate from the property on Sunday or Public Holidays or otherwise than between the hours detailed above. 32. Builders Rubbish Compound A trade waste bin or a builder's rubbish compound shall be provided on the site within the property boundaries during construction of the building. The compound shall be a minimum of 2 metres x 2 metres squared and shall be constructed of sediment fencing or shade cloth firmly staked into the ground. During construction of the building, all building waste shall be disposed of into either the trade waste bin or the rubbish compound. 33. Erosion and Sedimentation Controls – Major Works Erosion and sedimentation control devices are to be provided in accordance with Council's "Works Specification - Subdivisions/Developments" (August 1997). All devices are to be established prior to the commencement of engineering works and maintained for a minimum period of six (6) months after the completion of all works. Periodic maintenance of the erosion and sedimentation control devices is to be undertaken to ensure their effectiveness. 34. Stabilised Access Point A stabilised all weather access point is to be provided prior to commencement of site works, and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the requirements of the Department of Land and Water Conservation. 35. Building Inspection Notification The following inspections are required to be carried out during the construction of the building: a) Pier holes prior to the placing of concrete; b) Steel reinforcement in position for footings or slabs prior to the placing of concrete; c) Wet area flashing; d) Building complete prior to occupation. You are advised that Council provides the service of carrying out the above inspections at the rate of $60.50 each (GST inclusive). Council may also issue a Compliance Certificate. Each Certificate for the above shall be at a charge of $71.50 (GST inclusive). 48 hours notice must be given, either in writing, or by telephone prior to Council carrying out the inspection. Should you, however, wish to obtain the services of a private accredited certifier to carry out the required inspections, you are required to notify Council of the Principal Certifying Authority within a minimum of 2 days prior to commencement of work. It is the responsibility of the builder and/or owner builder to obtain from or the Principal Certifying Authority relevant Compliance Certificates or inspection results prior to proceeding with any further work. NOTE: No building shall be occupied or used prior to a satisfactory final inspection being carried out. 36. Standard of Works - Engineering Works All work shall be completed in accordance with the development consent, Council's Engineering Works Specification for Subdivisions/Developments and include any necessary works to make the construction effective. All works and public utility relocation shall incur no cost to Council PRIOR TO THE ISSUE OF OCCUPATION OR SUBDIVISION CERTIFICATE 37. Compliance with Requirements of Development Consent Compliance with all conditions of approval of the Development Consent on the subject property. 38. Compliance with Requirements of Construction Certificate Compliance with all conditions of approval of the Construction Certificate on the subject property. 39. Fire Safety Certificates Submission of all required fire safety certificates and a copy of the Fire Safety Schedule is to be displayed in a prominent position in the building. 40. Certificate from a Practicing Structural Engineer A certificate from a practising structural engineer certifying that the works as constructed, pursuant to this consent, are structurally adequate. 41. Certificate of Termite Installation Upon installation of the termite barrier a certificate from a suitably qualified person is to be furnished certifying that the termite installation is in accordance with AS 3660.1. A notice of the termite measures installed in the building is to be provided in the meter box area. 42. Sound Transmission and Insulation Certificate A certificate from a suitably qualified person is to be furnished certifying that the building as built meets the requirements under Section F5 of the BCA- SOUND TRANSMISSION AND INSULATION. 43. Rectification Measures to External Walls Adjacent to Unit 22 Submit a certificate from a suitably qualified person that the external brick wall adjacent to unit no.22 has been adequately waterproofed in accordance with Section F1 of the BCA. 44. Certificates All certificates for structural mechanical & OSD system are to be submitted together with final fire safety certificates for all fire safety measures. 44.1 Post-Construction Public Infrastructure Inventory Report Prior to the issue of an Occupation or Subdivision Certificate, you are required to submit to Council an updated Public Infrastructure Inventory Report identifying any damage to public infrastructure and means of rectification for the approval of Council. 44.2 Creation of Restrictions/Positive Covenants The submission to Council for endorsement of a Request Document and Plan (if applicable), together with payment of the relevant fee as prescribed in Council's schedule of fees and charges for the creation of a Positive Covenant and/or Restriction-As-to-User in accordance with Section 88E of the Conveyancing Act, 1919. Please Note: All Restrictions and Positive Covenants created as part of this consent are to contain a provision that they cannot be released, varied or modified except with the written consent of Baulkham Hills Shire Council The Request Document shall establish the following over the title of the property:- i. Restriction - O.S.D. Modification A Restriction-As-To-User restricting development over and/or the varying of the finished levels of the on-site detention structures and associated components. ii. Positive Covenant - O.S.D Maintenance A Positive Covenant to ensure the on-going maintenance of the on-site detention structure. 45. Certification of OSD Completion The on-site stormwater detention system shall be completed to the satisfaction of the Principal Certifying Authority prior to occupation of the dwelling. On completion of all works associated with the on-site stormwater detention system, the Principal Certifying Authority will require: • The submission of works as executed drawings prior to a final inspection. The drawings are to be prepared by a suitably qualified engineer or registered surveyor. • The submission of a certificate of hydraulic/hydrological compliance prior to a final inspection. This certificate is to be prepared by a suitably qualified engineer or registered surveyor and is to include details of any non-compliance with approved plans and specifications. • The submission of a certificate of structural adequacy from a structural engineer for the on-site stormwater detention system structures. Note: Where the Principal Certifying Authority (PCA) is not Council, a copy of all of the above is required to be lodged with Council. 46. Fire Safety Schedule The fire safety schedule is to be displayed within the building. Building Certificate An occupation certificate must not be issued until a building certificate is issued. 48. Fire Safety Certificate A final fire safety certificate is to be issued upon completion of all works. S J Watts T A Bly Commissioner of the Court 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.