> Land and Environment Court of New South Wales CITATION : Rothwell v Mosman Municipal Council [2003] NSWLEC 348 APPLICANT Susan Rothwell PARTIES : RESPONDENT Mosman Muncipal Council FILE NUMBER(S) : 10074 of 2003 CORAM: Nott C Development Application :- Proposed house KEY ISSUES: replacing existing house – foreshore scenic protection – height and appearance – landscaped area LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s97(1) CASES CITED: Bennett Pty Ltd v North Sydney Municipal Council [1988] NSWLEC 77 DATES OF HEARING: 29 & 30 September 2003, 10 October 2003 EX TEMPORE JUDGMENT DATE : 10/10/2003 APPLICANT Mr J Bingham (solicitor) SOLICITORS Deacons LEGAL REPRESENTATIVES: RESONDENT Ms C Schofield (solicitor) SOLICITORS Pike Pike & Fenwick JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 10074 of 2003 Nott C 10 October 2003 Susan Rothwell Architects Applicant v Mosman Municipal Council Respondent Judgment 1 This is an appeal against the Council's deemed refusal of a development application for demolition of the existing dwelling house and the erection of a new two-storey and partly three-storey dwelling house, garage and swimming pool at 40 Iluka Road, Clifton Gardens. 2 At the hearing, the issues were as set out as in an amended statement of issues dated 12 September 2003. The issues may be considered under five headings: (1) the height and a related objection under State Environmental Planni g Policy No 1 –Development Standards ; (2) visual bulk, siting and scale; (3) whether the pool should be deleted; (4) the landscaped area; and (5) the public interest. 3 Evidence for the applicant was given by consultant town planner, Ms M D Laidlaw. For the Council, evidence was given by an adjoining neighbour, Mrs M Coote of 43 Iluka Road, and by consultant town planner, Mr W Long. In considering their evidence and the other evidence in the appeal, I have been aided by a view of the site and locality. 4 For the reasons which I will now elaborate on, I am of the opinion that it is appropriate to grant development consent and in so doing allow the objection under SEPP 1 subject to conditions. 5 The subject land is zoned Residential 2(a2) under the Mosman Local Environmental Plan 1998 and is in the Clifton Gardens locality referred to in the Council's Residential Development Control Plan. Under the LEP the subject land is also in a Foreshore Scenic Protection Area, and among the clauses referred to by the parties were clauses 2, 11, 13, 14, 15 and 27 of the LEP. Relevant provisions of the DCP include clauses 4.2, 4.4, 6.9 and 7.4. 6 The subject land is also affected by State Environmental Planning Policy 56 – Sydney Harbour Foreshores and Tributaries, and Sydney Regional Environmental Plan 2 – Sydney and Middle Harbours and the related development control plan for that SREP. 7 It was common ground that the proposed development would be acceptable under the State and regional plans, if it was otherwise acceptable having regard to the local planning controls. 8 The area of the subject site is 777.6 sq m. Its southern boundary adjoins the Sydney Harbour National Park beyond which is Taylors Bay. The site drops down from Iluka Road in the north to its southern boundary. There is an existing house on the site with its ground level at RL 0.37 m, and this house is partly three storeys and generally two storeys in height and has a high-pitched roof. The third storey is created by a flatette at the lower ground-floor level. The maximum height of the present house's pitched roof is up to RL 29.3. 9 The proposed development can be seen in the plans, exhibit A. The proposed house will generally be of two storeys. However, access is provided from the ground floor level to what might otherwise be described as a sub-floor area through a staircase and corridor that leads out into the open yard area facing towards the Harbour. 10 On the northern side of the house, between the house and the road, at a low level on the subject land relative to the higher levels closer to the street, it is proposed to construct a pool. The existing garage on the site, as I mentioned, will be demolished, and a new driveway constructed leading down to an underground garage and an underground manoeuvring area, which will enable cars to leave the site in a forward direction. 11 When I say that this garage and manoeuvring area will be underground, in effect, most of the structures will be above the existing ground levels but, because of the steep slope of the site, it will be possible to provide a flat landscaped area above the roof of the garage and above a roof proposed over part of the driveway and over the manoeuvring area, so that this landscaped area will be at about the same level as the nature strip on the footpath. 12 The objectives of the height limits in the LEP are set out in clause 13(1) thereof: (a) to protect public and private views, and (b) to minimise the visual impact of buildings when viewed from the Harbour and surrounding foreshores, and (c) to ensure buildings resulting from new development are compatible with existing buildings in terms of height and pitched roof form, and (d) to minimise the effects of bulk and scale of buildings arising from new developments in existing residential areas. 13 Clause 13(2) of the LEP contains two development standards. One is that the maximum building height should not be greater than 8.5 m and the other is that the maximum wall height should not be greater than 7.2 m. Clause 13(3) contains an additional height development standard, insofar as it provides that there should be a maximum of two storeys. 14 A ' storey' is defined by the LEP to mean: (a) the space between two floors, (b) the space between any floor and its ceiling or roof above, and (c) building foundation areas, garages, workshops, storerooms and the like, where the height between the existing ground level and the top of the floor above is 1.5 m or more. … 15 The existing house on the site in its sub-floor area and in the area of the lower-ground-floor flatette is a storey insofar as part of that area comes within paragraph (c) of the definition of ' storey '. Likewise, part of the sub-floor area and the access to the external area is a storey insofar as it falls within the same paragraph (c). 16 The proposed building has a maximum building height of 9.2 m to its smaller ridge and 8.9 m to its main ridge. It is an important circumstance in the case that these ridges are respectively 2.8 m and 2.5 m lower than the existing ridge. 17 As regards the external wall heights, on the east the proposal is 7.8 m for a small triangular part of the building and 7.4 m on the west. In relation to each of the development standards affecting height, an objection under SEPP 1 was lodged and is contained in exhibit G. 18 It was submitted on behalf of the Council that the objection was not adequate. It seems to me that the objection could probably be regarded as adequate. In any event, that written objection was supplemented by further written evidence and also oral evidence presented by Ms Laidlaw. It has been held that it is open to an applicant to supplement by way of further evidence at the hearing an objection previously lodged with the Council under SEPP 1. 19 When considering the development standards, there is an overlapping of consideration with the general matters to be considered in s 79C of the Environmental Planning and Assessment Act 1979 in this case, as was the case in North Sydney Municipal Council v Parlby (10617/85, 13 November 1986, unreported) referred to in Bennett Pty Ltd v North Sydney Municipal Council [1988] NSWLEC 77. 20 Looking at the objectives of the height standards, I am of the opinion on the evidence that the proposal will improve both public and private views, even though the proposed building is wider. Reference could be made to the view of the existing building in the context of other buildings on the foreshore as seen in exhibit D. Exhibit D also contains a photo montage of the proposed building, and it can be seen that it sits comfortably within the context of other buildings on the foreshore. Reference could also be made to the composite southern elevation plan, exhibit B. 21 The proposed building is, as I mentioned, considerably lower in height than the existing building. It is also lower in height than the two adjoining buildings to the west and it relates satisfactorily to the lower building to the east. 22 The proposed building will not be any closer to the foreshore than the existing building. As regards views from Mrs Coote's property, her views will not be materially affected by the proposal. This is partly due to an amendment which was made to an earlier plan. This amendment truncated or splayed the south-western corner of the building. 23 Generally in relation to the question of views, I accept the evidence in support of the proposal by Ms Laidlaw. I have already referred to the visual impact of the building as viewed from the Harbour and the foreshores as being satisfactory. I also consider that the new development will be compatible with existing buildings in terms of height and pitched roof form, and that it has minimised the effects of bulk and scale by reason of its lower pitched roof, its lower maximum building height and its lower wall height, compared with the existing building on the subject site. 24 It was submitted on behalf of the Council that it was not relevant to have regard to the existing house on the subject site. I cannot agree. It is a relevant circumstance in my opinion that the existing building has a certain form and height and that, if this consent were not granted, it could well be that the existing house, which is in reasonable condition, would be renovated and its existing form maintained or possibly even increased in size. 25 As I mentioned, there is a certain overlapping of the considerations relating to the SEPP 1 objection and the merits of the matter generally. However, as regards the SEPP 1 objection, on the evidence I find that it is unreasonably or unnecessary to comply with the development standards, having regard to what I have previously referred to and in particular the existing house on the subject site. 26 The proposed development complies with each of the objectives in clause 13(1) of the LEP. 27 There is a public benefit in the approval of the proposed development insofar as there will be better views for the public from the footpath at the lower level of Iluka Road and certainly better views for the public at the higher level, and also improved views for those residents in houses on the higher level of Iluka Road. 28 In relation specifically to the siting of the building and its width, I first take into account that the existing building is set back about 2.4 m from its western side boundary for most of its length, although a bay window comes a little closer to the side boundary and a front portion of the existing building is set back a little further. 29 Generally, the proposed building will be 0.9 m closer to the side boundary than the existing building but will still be 1.5 m from the boundary. The setback requirement which the Council relies upon is not a development standard but is contained in the DCP. It should of course be taken into account that it has been held that a DCP should be a focal point of attention when granting a consent. 30 In this particular case, because there will be a truncation of the south-western corner of the proposed building, views will not be materially affected, notwithstanding that the wall will be generally 0.9 m closer to the common boundary. It is also relevant to note that the very front projection of the proposed building is in fact only two storeys in height because there is a veranda at the upper level and not a wall. 31 For a two-storey building, the setback may be 1.5 m from the common boundary. As one proceeds up the sides of the proposed building from the southern elevation towards the road, the land levels increase in height and the proposed building has a sub-floor area which decreases to below 1.5 m from the ground up to the floor level above, so that it ceases to be a storey. Where the sub-floor area is less than this 1.5 m, the setback may be 1.5 m from the common boundary. 32 On the western side of the proposed building, as well as the stepping back of the upper level by reason of the terrace, there is an area cut out at the south-eastern corner, as it were, so that the south-eastern corner is set well back behind the front projection of the house at No. 38. There is no objection from the owner of the house at No. 38. 33 The proximity of the side wall of the proposed development to No. 42 does not, according to the more detailed oral evidence and plans that were submitted at the hearing, increase the overshadowing of No. 42 compared with the present overshadowing. As regards the minor increased overshadowing of the adjoining property, No. 38, I consider that that is acceptable. 34 There is also an advantage for the owner of No. 42 in relation to the design of the proposed side wall. The present situation is that there is a large bay window on the western side which will be eliminated by the proposal. 35 As regards other structures further up the subject land, they are generally of a one-storey nature or less, insofar as they will be below a recreated ground level, and there will be no unacceptable overshadowing of No. 42 from those new structures that are outside the footprint of the existing house. 36 If the subject land had always remained vacant or if, for example, there was a one-storey house erected on it and a new application was being made, I think there would be justification probably for a redesigned development different from what is now proposed. But, as I have said, it is relevant to take into account the existing building on the subject land. I therefore hold that it would be inappropriate in this particular case to impose upon the applicant a requirement that the building and each of its floors be lowered by 500 mm. The present building has been designed so that the floor level of the ground floor at its northern side is at about the existing ground level, and this ground level, as I previously mentioned, is quite low at that northern elevation because the land then slopes up towards the street. Because of the slope towards the water, however, the building will be raised at its southern elevation but the floor level of the ground floor of the proposal will still be below the floor level of the existing building. 37 It would be appropriate that perhaps some supplementary landscaping, which need not be particularly tall, be provided along the southern boundary of the site. This landscaping will, probably to a large extent, obscure a view from the water towards the sub-floor or lower-ground-floor area of the proposal. I should add, however, that sub-floor areas along this part of the foreshore are not unusual, and it is not unusual to see buildings of two storeys with a large sub-floor area or three storeys. And, as I have previously said, the proposed development fits comfortably in the context of surrounding development. 38 The location of the pool is close to the northern elevation in the lower level of the subject land and the pool will generally not be seen from the street because of the proposed finished levels of the lawn area above the concrete slabs over the garage and driveway. The pool will be a considerable distance moreover from the front boundary. In the circumstances, I consider it appropriate, notwithstanding the provisions of the Council's DCP, that the pool be located at the front and I do not consider, for reasons I will elaborate on further, that the pool be deleted and replaced with landscaping. 39 Generally I agree with the views in this regard set out in Ms Laidlaw's statement. The advantage of having the pool at the front will be that, although there will still be some overshadowing from the wall on the northern side of the pool, it will receive northern sunlight in summer, whereas it would be likely that the pool would be substantially overshadowed if it were on the southern side of the proposed house. 40 In relation to the landscaped area, the provisions of the LEP are set out at clause 15. Clause 15(1) contains objectives of the clause. Clause 15(2) sets out how the minimum landscaped area is to be calculated. In accordance with clause 15(2) the required landscaped area is 369 sq m. 41 On one calculation by Ms Laidlaw, which included the lawn area above the garage, the proposed development would have a landscaped area of 418 sq m. However, Mr Long calculated that the landscaped area would only be 250.66 sq m if the definition of 'landscaped area' in the LEP was strictly applied. Officers of the Council had calculated the landscaped area to be 271.5 sq m. 42 At the present time, about half of the front yard of the subject site is hard paving consisting of concrete paths, a wide stone or concrete stair leading down to the front of the house, and includes the covered area of the existing garage and a concrete area for the clothesline, as well as a paved area in the location of the pool. Looking strictly at the landscaped area definition, it could well be that the lawn areas to be provided with low shrubs above the slabs of the garage and driveway is not a landscaped area. The definition in the LEP is as follows: Landscaped area means any open or vacant area within a site, being an area designed, constructed or adapted for outdoor living or outdoor recreation that is suitable for vegetation and able to sustain vegetation growth but does not include driveways, parking areas, drying yards or other service areas, swimming pools, tennis courts, undercroft areas, balconies, rooftop gardens, terraces, decks, verandahs and the like. 43 As regards the proposed fairly large lawn area above the slabs, this area being at about the street level, I am of the opinion that it is certainly an open area within the site and that it would be quite suitable for outdoor recreation. However, it could be excluded perhaps from being 'landscaped area' if it falls within the description of the 'like' development such as rooftop gardens, terraces, decks and verandas. 44 Nevertheless, I am of the opinion that the practical effect of providing the lawn areas is to provide a very pleasant landscaped area on the site which is suitable for recreation and there will also be a certain degree of absorption of stormwater because of the depth of the soil. I also note that, immediately adjoining the boundary of the site, excluding the actual entrance area for the driveway which then descends into the site, there will be areas available for deep landscaping planting. 45 In the circumstances therefore, taking into account the provisions of the LEP as well as the objectives and provisions of the DCP, it is appropriate to grant development consent and not refuse it on account of the design of the landscaped area. 46 Of particular importance is the southern elevation, which will not change unless it changes for the better under the present proposal. The southern area does not contain any trees that will be removed at all for the proposed development, and supplementary landscaping can be provided along the southern boundary. 47 Mrs Coote also was concerned about drainage affecting her property, and conditions of consent will require that no water should be piped or should drain from the subject land across to her property. In addition, the location of a pit which presently exists near the south-western corner will be eliminated and an appropriate engineered stormwater design system will be provided to the satisfaction of the Council. Although I do not have the precise details of the stormwater system, the land is suitable for draining towards the south. The approval of the Harbour Foreshores Authority will be needed to drain across the reserve which intervenes between the subject land and the water. It is therefore appropriate that a deferred commencement consent be imposed in relation to stormwater disposal. 48 As I mentioned, there would be certain public benefits arising from the proposed development, particularly through improved views. 49 In relation to the conditions of consent, I propose to adopt the applicant's deferred commencement condition. 50 Conditions relating to the finishes will not be the subject of a deferred commencement consent but will be included in the conditions which will apply once the consent commences to operate. As regards landscaping, the landscaping is to be generally in accordance with plan 108A, part of exhibit A, and is to be supplemented with planting to include native species to the satisfaction of the Council and as further detailed in a condition of consent that will apply once the consent commences to operate. 51 In the order granting the deferred commencement consent, it is not necessary in my opinion to expressly refer to SEPP 1. 52 For those reasons, the orders of the Court are: 1) The appeal be allowed. 2) A deferred commencement consent is granted for the demolition of the house and garage at 40 Iluka Road, Clifton Gardens, and for the erection of a new house, garage and pool, subject to the conditions in annexure A, initialled by me, a copy of which I make available to the parties. 3) The exhibits, other than exhibits 9A, B, D, F and M maybe returned. A J Nott Commissioner of the Court Annexure A MOSMAN MUNICIPAL COUNCIL ATS ROTHWELL 40 ILUKA ROAD, CLIFTON GARDENS DEFERRED COMMENCEMENT CONDITION 1. The Applicant must obtain the written approval of the National Parks and Wildlife Service to discharge stormwater over land vested in that service. The Applicant must submit to Council a detailed design for stormwater drainage that satisfies the necessary criteria outlined in Council's current "Guidelines for Stormwater Drainage Systems". A certificate to this effect must be supplied by a qualified engineer. As part of the detailed design for stormwater, the Applicant is to address the matters raised in the "Guidelines for Development Adjoining National Parks and Wildlife Land" to the written satisfaction of the National Parks and Wildlife Service and the Department of Land and Water Conservation. Written documentation to this effect is to be submitted to Council prior to any approval being issued by Council. The above information must be submitted for consideration and written approval of the Director of Environment and Planning within 12 months of the date of this Notice of Deferred Commencement. Commencement of approval cannot occur until written approval of the submitted information has been given by the Director of Environment and Planning. Once condition 1 above is satisfied, the development consent is to commence to operate subject to the following conditions (and any conditions arising from the above approval): CONDITIONS THAT APPLY WHEN CONSENT COMMENCES TO OPERATE The development consent relates to the following plans and documentation: 1.1 This approval relates to the following Plan Nos, (except where amended by the following conditions): Plan Nos. Date of Plan Prepared by SRJP2 -101 D September 2003 Susan Rothwell and Associates SRJP2 – 102E August 2003 Susan Rothwell and Associates SRJP2 – 103D-104D October 2002 Susan Rothwell and Associates SRJP2- 008A August 2003 Susan Rothwell and Associates SRJP2 - 105 E August 2002 Susan Rothwell and Associates SRJP2 – 106E -107E October 2002 Susan Rothwell and Associates SRJP2 - 108 A August 2002 Susan Rothwell and Associates SRJP2 - 110 A December 2001 Susan Rothwell and Associates SRJP2 - 111 A October 2002 Susan Rothwell and Associates SRJP2 – 401A-402A September 2003 Susan Rothwell and Associates SRJP2 – 200A September 2003 Susan Rothwell and Associates SRJP2 – 403A September 2003 Susan Rothwell and Associates The two last-mentioned plans amend the driveway gradients shown on the above plan 102E. The driveway is to have a grooved or non-smooth surface to improve vehicular traction. 1.2 The levels at the boundary alignment of the property along the Iluka Road frontage shall be defined by the existing levels. 1.3 The applicant shall meet all costs associated with the construction of the proposed vehicular crossing. Prior to the issue of a construction certificate a separate application shall be made to Council's Environment and Planning Department for approval to construct the proposed vehicular crossing. 1.4 Prior to the issue of a Construction Certificate the applicant shall consult with the relevant Public Authorities and meet all costs involved in any alterations required to mains and services that result from the construction of the vehicular crossing. 1.5 The swimming pool, if approved, and any associated fencing, must comply with the Swimming Pools Act, 1992. The pool equipment shall: (a) be housed in a noise attenuated enclosure (e.g. masonry) to ensure that the equipment is inaudible at the property boundary during operation; (b) not be operated between 10:00pm and 7:00am daily, with an appropriate timing device fitted accordingly. The pool plant shall be located within the subfloor area without creating additional floor area or a room, unless the council otherwise consents. 1.6 In order to enable Mosman Council to acquire land and embellish open space, the applicant must pay a contribution to offset the demand for additional public amenities and services as a result of this development. In accordance with Mosman Section 94 Contribution Plan- Open Space (in force from 22 March 2001), the applicant must contribute $1917. The contribution must be paid by cash or bank cheque payable to Mosman Council prior to the issue of the Construction Certificate. 1.7 A dilapidation report prepared by a professional engineer or suitably qualified and experienced building surveyor must be submitted to the certifying authority prior to the commencement of demolition, excavation and building works detailing the current condition and status of all buildings, including ancillary structures (i.e. dwellings, garages, carports, verandahs, decks/patios, fences stone and retaining walls, swimming pools, driveways, stone garden beds and private footpaths), located at 38 and 42 Iluka Road. The report is to be supported with photographic evidence of the status of the buildings and a copy of the report must also be forwarded to the Council and the owners of 38 and 42 Iluka Road prior to the commencement of any works. 1.8 A Certificate of Adequacy, prepared by a practising Structural Engineer, is to be submitted to Council (or the Accredited Certifier) verifying the structural adequacy of the existing construction to accommodate the live and dead loads imposed by the proposed additions. Should additional structural support or bracing be required to accommodate the new loads, full structural engineering details must be submitted to accompany the Certificate of Adequacy. 1.9 Duplicate copies of Structural Engineer's details of all pier holes, footings, beams, slabs, stairs, ramps, balustrades, parapets, balcony walls, retaining walls, structural members, brickwork, underpinning and shoring, which are to be in accordance with the requirements of the relevant design codes are to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate. 1.10 To maintain public views across the property and to minimise the visual impact of the new front fence to the existing Iluka Road streetscape, the applicant must clearly show on the Construction Certificate plans the fence along the front boundary of the site as being no higher than 1.2m above the existing footpath level. 1.11 There is to be no surface or piped stormwater discharged over neighbouring properties without the written consent of those owners. 1.12 There is to be no stormwater pit located adjoining the boundary to 42 Iluka Road. 1.13 To be sympathetic with the existing streetscape and to reduce the visual impact of the dwelling house when viewed from the waters of Sydney Harbour, the applicant must submit for the approval of Director Environment and Planning a detailed material, finish and colour schedule for the building. The finishes of the new dwelling house, including the rendered and painted finish, must not increase reflectivity or glare when viewed from the water, street or surrounding properties. The finished colours are to be chosen from the natural colour palette and are to be selected from the mid-recessive colour range so as not to dominate the locality. 1.14 Details of landscaping, generally in accordance with the above plan SRJP2 - 108A, including a planting schedule, must be submitted for approval of the council. The detailed landscape plan must show the two Jacaranda mimisifolia trees as not being established, to maintain existing private views, and that the proposed Magnolia soulangiana to be planted at a minimum rootball size of 75L and grown to NATSPEC conditions/requirements. Supplementary planting is to include native species where possible to the satisfaction of Council. The approved landscaping is to be established and maintained. 2. The following conditions are to be satisfied upon lodgement and prior to issue of the Construction Certificate 2.1 If Council is the certifying authority for the issue of a Construction Certificate the applicable fee in accordance with Council's adopted pricing policy is required. 2.2 Adequate public liability insurance is to be taken out by the builder or owner for the protection of adjacent property owners. The liability insurance shall provide for a minimum protection cover of $5,000,000 and shall be increased in cover where deemed necessary by the Director Environment and Planning. Evidence of the public liability insurance policy in the form of a copy of the policy is to be submitted to Council for approval. The policy is to have adequate cover for damage occasioned by excavation, demolition works or other building or related activities in the particular case. The copy of the policy is to be submitted to Council prior to any excavation work being carried out and prior to issue of the Construction Certificate. 2.3 A bank guarantee, cheque or cash deposit for an amount of at least $6500, to cover the required trust fund deposit against damage to Council property or installations, is to be lodged with Council prior to issue of the Construction Certificate. 2.4 If Council is nominated as the Principal Certifying Authority, the applicant is to pay the applicable inspection fees in accordance with Council's adopted pricing policy prior to issue of the Construction Certificate. 2.5 The applicant must pay the applicable Long Service Leave levy prior to issue of the Construction Certificate. 2.6 Deleted. Duplicate of 1.10. 2.7 The applicant is required to prepare a dilapidation report on the condition of all Council assets adjacent to the proposed development and lodge it with Council prior to the issue of a Construction Certificate. The report must include photographs of the road, kerb and gutter, footpath, driveways, street trees, street signs and any other Council assets in the vicinity of the development. The photographs must be of suitable quality and taken from an appropriate location to allow easy identification of any damage that exists. Generally, wide angle photographs taken some distance from the subject will not be suitable. A written description of the nature and extent of any damage that exist prior to commencement of the work must also be provided with the photographs. It should be noted that any damage not documented prior to works commencing will be assumed to be caused during construction and the repair costs will be taken out of the deposit against damage to Council property. 3. The following conditions are to be satisfied prior to the commencement of any works 3.1 A Construction Certificate for the proposed work must have been issued. 3.2 The approved plans must be submitted to the appropriate Sydney Water office to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water's requirements, the approved plans will be appropriately stamped. 3.3 A Form 7 must be submitted to Council a minimum of 2 days prior to construction commencing, which must include Builder's details. 3.4 Documentary evidence of Home Warranty Insurance in accordance with Part 6 of the Home Building Act 1989 must be submitted with the Form 7. 4. The following conditions are to be satisfied during the construction period 4.1 All works, including ancillary works, relating to this proposal are to be substantially commenced within 5 years from the date on which the consent operates. Signs to be erected on Building and Demolition Sites 4.2 A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: 4.2.1 stating that unauthorised entry to the work site is prohibited, and 4.2.2 showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. Any such sign is to be removed when the work has been completed. This clause does not apply to: (i) building work carried out inside an existing building; or (ii) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out. Change of Building Use 4.3 A building in respect of which there is a change of building use must comply with the Category 1 fire safety provisions applicable to the proposed new use. Note: The obligation under this sub-clause to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in the relevant development consent. Excavations and Backfilling 4.4 All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. 4.5 All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property. Retaining Walls and Drainage 4.6 If the soil conditions require it: 4.6.1 retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and 4.6.2 adequate provision must be made for drainage. Support for Buildings 4.7 If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made: 4.7.1 must preserve and protect the building from damage; 4.7.2 if necessary, must underpin and support the building in an approved manner; and 4.7.3 must, at least 7 days before excavating below the level of the base of the footings of a building on the adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished. The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. In this clause, allotment of land includes a public road and any other public place. Protection of Public Places 4.8 If the work involved in the erection or demolition of a building: 4.8.1 is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient; or 4.8.2 building involves the enclosure of a public place, 4.8.3 a hoarding or fence must be erected between the work site and the public place. If necessary, an awning is to be erected sufficient to prevent any substance from, or in connection with, the work falling into the public place. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place. Any such hoarding, fence or awning is to be removed when the work has been completed. Protection of Waterways 4.8.4 The proposed works are carried out so that: (i) no materials are eroded, or likely to be eroded, are deposited, or likely to be deposited, on the bed or shore or into the waters of Sydney Harbour, and (ii) no materials are likely to be carried by natural forces to the bed, shore or waters of Sydney Harbour. 4.8.5 Any material that enters Sydney Harbour is to be removed immediately. 4.8.6 Best practice methods shall be adopted for the on-site control of runoff, sediment and other pollutants during, and post, construction. Methods shall be in accordance with the relevant specifications and standards contained in the manual Managing Urban Stormwater – Soils & Construction issued by the NSW Department of Housing in 1998 and any other relevant Council requirements. 4.8.7 The erosion, sediment and pollution controls shall be installed and stabilised before commencement of site works. This does not include the works associated with the construction of the appropriate controls. 4.8.8 The erosion, sediment and pollution control system is to be effectively maintained at or above design capacity for the duration of the works and until such time as all ground distributed by the works has been stabilised and rehabilitated so that it no longer acts as a source of sediment. 4.8.9 Any material that is to be stockpiled is to be stabilised to prevent erosion or dispersal of the material. 4.8.10 Any native tree species present on site, other than those specifically approved for removal by Council, are to be retained and protected for the duration of the works. In particular, earthworks and filling activities, as well as stockpiling of materials are to be undertaken in a manner that protects the root zone of trees. Toilet Facilities 4.9 Toilet facilities are to be provided at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Each toilet provided: (i) must be a standard flushing toilet; and (ii) must be connected to the sewer. 4.10 No plant is to be operated on or across a public road or footpath involving the use of a crane, hoist, lift or concrete pump or the placement of any article including, but not limited to, pipes across or above any part of a road or footpath/verge, unless written approval has first been obtained from Council. Application for a permit must be made at least 24 hours prior to operating such plant and permits will not be issued on the proposed day of operation. Any person operating plant in contravention of this condition is liable for an on-the-spot fine exceeding $300.00. 4.11 Owners, builders and/or demolishers are not to occupy and/or obstruct any portion of the footpath or roadway with building or demolition material, waste containers, portable toilets or building sheds. Approval to occupy the footpath/roadway will only be considered where circumstances prevent on-site storage. Application to occupy the footpath/roadway is to be made on the prescribed form and lodged, together with payment of Council's scheduled fees, for the consideration of the Director Environment and Planning. Street gutters are to be kept clear of any building materials at all times. Unauthorised waste containers are not permitted to occupy any portion of the footpath or roadway. 4.12 Under no circumstances is any person permitted to mix concrete or mortar or carry out any building works or activity on Council property. 4.13 Before any road, footpath, public reserve or public place is opened for any lawful purpose by a plumber, drainer, builder or any other person, a permit is to be obtained from the Council. The charge for restoration of the road, footpath, public reserve or public place to be opened (calculated in accordance with the schedule of charges for restoration of roads, footpaths, public reserves and public places fixed by Council) is to be paid to Council prior to the commencement of the opening. 4.14 The construction of footpath and vehicular crossings and laybacks in the kerb is to be undertaken by either the applicant's contractor or by a Council Authorised Contractor. The applicant is to make application on the form available at the Environment and Planning Department and pay any deposits required prior to the commencement of the work. 4.15 No person shall use or occupy the building or portion which is the subject of this consent until it is completed in accordance with the approved plans and the conditions of this consent. 4.16 In order to prevent objectionable noises or operations on any land or premises, the following construction hours shall apply: 4.16.1 Work or the demolition of any building is restricted to the hours of 7:00 a.m. to 6:00 p.m. on Mondays to Fridays, inclusive, and 7:00 a.m. to 1:00 p.m. on Saturdays if inaudible on adjoining residential premises, otherwise 8:00 a.m. to 1:00 p.m. Construction work or demolition work is prohibited on Sundays and Public Holidays. 4.16.2 The burning of demolition material on the site is prohibited at all times. 4.17 Construction works associated with this approval shall not cause pollution of any waters. 4.18 Stages of building construction shall be appropriately inspected to ensure the safety and health of the building. 4.19 If Council is not the Principal Certifying Authority, a Compliance Certificate is to be obtained from an accredited certifier after every inspection and submitted to Council with any other relevant certification. 4.20 If works involve demolition, excavation or any stone cutting, appropriate measures (e.g. fine water spray) shall be implemented to ensure that dust and silica emissions do not leave the site. However, such measures shall be coordinated with site sedimentation control measures to ensure polluted waters do not leave the site. 5. The following conditions are to be satisfied prior to use or occupation 5.1 An Occupation Certificate must be issued and provided to Council (with the applicable registration fee), if Council is not the Principal Certifying Authority, confirming that the building is suitable for use or occupation in accordance with its classification under the Building Code of Australia. 6. The following conditions are to apply post-construction/other general conditions 6.1 All conditions of approval must be complied with before land use (including occupancy) takes place. Any consent given shall be void if the development to which it refers is not substantially commenced within five years after the date of approval. 7. Prescribed Conditions (EPA Act Regulations 2000) 7.1 All building work must be carried out in accordance with the provisions of the Building Code of Australia. 7.2 Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless there is a contract for insurance in accordance with Part 6 of the Home Building Act, 1989, and such a contract of insurance is in force. ********** 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.