Land and Environment Court of New South Wales CITATION : Alafaci v Hurstville City Council [2004] NSWLEC 415 APPLICANT Anthony Alafaci PARTIES : RESPONDENT Hurstville City Council FILE NUMBER(S) : 10323 of 2004 CORAM: Hoffman C Development Application :- Swimming pool KEY ISSUES: location partly in an escarpment area s.88(b) instrument on title limiting structures near escarpment obstruction f views. Environmental Planning and Assessment Act 1979 Conveyancing Act 1919 LEGISLATION CITED: Hurstville Local Environmental Plan 1994 Swimming Pool Act 1992 Swimming Pool Regulations 1992 CASES CITED: DATES OF HEARING: 18/06/2004 EX TEMPORE 06/18/2004 JUDGMENT DATE : APPLICANT Mr C McEwen, barrister SOLICITOR Gilbert & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr S Griffiths, solicitor SOLICITORS Pike, Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 18 June 2004 10323 of 2004 Anthony Alafaci v Hurstville City Council JUDGMENT 1 This was a class 1 appeal 10323 of 2004 between Anthony Alafaci and Hurstville City Council in regard to refusal of consent upon review pursuant of s 82A of the Environmental Planning and Assessment Act 1979 of a swimming pool and ancillary works at lot 37/44 Woodlands Avenue, Lugarno, also known as 3 Coachwood Place, Lugarno. 2 There had been an approval for a new dwelling on the site and it had been constructed but the conditions excluded the swimming pool and necessitated a further application to be made. That application was made and was the subject of this appeal and when the parties came to Court consent orders were sought. It seemed that the objectors to the pool, a Mr and Mrs Neil of 47 Woodlands Avenue, had withdrawn their objection as per Exhibit 3. They had been concerned that the pool fencing might obstruct their views of the natural escarpment and been a blot on their aspect. Also there was a s 88B Instrument on title as in Exhibit 4. That restricted any structure under cl 11(i) of that instrument within the escarpment area. The pool would penetrate into the escarpment area, including the fence on the boundary beside it. 3 The negotiations between the parties had revealed that the pool would still remain substantially below ground and be excavated into the rock except for its southern end, which would be about 800 mm above the rock surface due to the land sloping down to a cliff face in the escarpment. The parties had concluded that the impact of the structure on the escarpment was minor and acceptable and therefore the application for consent orders was forthcoming in Exhibit 1. 4 An examination of Exhibit 1 required annotations to the draft conditions and the changes to the 88B Instrument and the consent were annotated accordingly. Also the plans were annotated to indicate the need for a geotechnical engineer to advise on methods of excavation to avoid penetration of the cliff face at the southern end of the pool. And where the pool projected above ground about 800 mm, there was to be a 750 mm toughened glassed end in the pool at the water level. 5 Having considered the submissions and the documents before the Court there appears to be no reason why the consent orders should not be granted. 6 Therefore, the orders of the Court by consent are: 1. The appeal is upheld. 2. Development application No. 2001/0371 for the erection of a swimming pool and ancillary works at Lot 4, 37-45 Woodlands Avenue, Lugarno, also known as 3 Coachwood Place, Lugarno, being Lot 4 in Deposited Plan 1012655 be approved subject to the conditions in Annexure "A". 3. That the restriction of use in cl 11 of the s 88 B Instrument of DP 1012655 be varied in accordance with Annexure "B" hereto. 4. The exhibits are returned with the exception of Exhibits 1, 3 and A. 5. Each party pay their own costs. K G Hoffman Commissioner of the Court Nmc/rjs Appeal No: 10323 of 2004 Annexure A Conditions of Development Consent Anthony Alafaci v Hurstville City Council 37-45 Woodlands Avenue, Lugarno (also known as 3 Coachwood Place, Lugarno) Lot 4, DP 1012655 1. Act, Regulations and Environmental Planning Instruments Prevail - The current requirements of the Environmental Planning and Assessment Act 1979 as amended ("the Act"), the Environmental Planning & Assessment Regulation 2000 as amended ("the Regulation"), the Building Code of Australia ("the BCA"), Hurstville City Council's ("the Council") Local Environmental Plan, relevant development control plans and adopted codes prevail and shall be complied with in full otherwise than expressly varied by this consent. 2. Approved plans - The development shall be implemented in accordance with the details set out on the application form, supporting information received with the application and the schedule of plans and details below except as amended by the conditions of this consent and annotated in Exhibit A of this appeal. Schedule of plans and details Drawing No. Drawing Date Description Prepared by: PO-1 June 2004 Lower Ground Floor Plan Bleu Design Pty Ltd – DHM PO-2 June 2004 Elevations Bleu Design Pty Ltd – DHM PO-3 June 2004 Elevation & Detail Bleu Design Pty Ltd – DHM 3. The proposal must comply with the provisions of the Building Code of Australia. However, if this requires any changes to the external portion of the building it may require a Section 96 Modification to be lodged and approved with Council, prior to the issue of the Construction Certificate. CONDITIONS WHICH MUST BE SATISFIED PRIOR TO THE ISSUE OF ANY CONSTRUCTION CERTIFICATE PAYMENT OF SECURITY BONDS - The following security bonds have been applied to this development to ensure that the public's interest, environmental standards and this consent are complied with. 4. Council property and environmental damage security - Before the issue of a Construction Certificate the applicant shall pay: (a) A builders damage deposit of $400.00 for the cost of making good any damage caused to any Council property as a consequence of the implementation of the consent, with such amount being refunded on completion of work where no damage occurs, and (b) A fee of $82.50 for inspection and re-inspection of works to assess any damage and if necessary arrange for repairs for same. A photographic record of the condition of the Council nature strip and driveway crossing is to be submitted with the damage deposit, to allow assessment when the deposit is requested for refund. 5. Sydney Water - The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. For Quick Check agent details please refer the web site www.sydneywater.com.au, see "Your Business" then see Building & Developing then Building & Renovating, or telephone 13 20 92. 6. Details of swimming pool fencing complying with the Swimming Pools Act 1992 are to be submitted to and approved by Council prior to release of Construction Certificate. The child proof barrier must be configured to prevent direct access from the house to the pool and shall provide for separation of the pool from the rear yard and from neighbouring premises. Alternative proposals may be considered upon application under Section 22 of the Swimming Pools Act 1992 being made to Council. 7. Prior to the issue of a Construction Certificate detailed structural plans of the pool shell, retaining walls and deck structure shall be prepared indicating reduced levels of adjoining ground surfaces and house floor. The swimming pool is to incorporate a concrete coping 1m wide in lieu of the timber deck giving access to the cliff edge. 8. Prior to the issue of a Construction Certificate, the submission to the Principal Certifying Authority of a report prepared by a qualified Geotechnical Engineer practising in the field of geotechnical investigation, certifying the stability of the site in the area of the swimming pool and specifying design constraints to be placed on the excavation, earthworks or retaining walls required for the pool. Work in association with the pool is to be in accordance with any recommendation contained in the geotechnical report. CONDITIONS WHICH MUST BE SATISFIED PRIOR TO COMMENCEMENT OF ANY WORK 9. NOTICE OF COMMENCEMENT - The applicant shall submit a notice of commencement (form attached) as required by the Act giving Council: (a) not less than two (2) days notice of the date on which it is proposed to commence work associated with this Development Consent; (b) details of the appointment of a principal Certifying Authority (i.e., the Council or an accredited certifier) (c) the name, address and licence details of the builder. 10. Home Building Insurance for Residential Building Work - Consent is subject to the condition that the builder or person who does any residential building work complies with the applicable requirements of Part 6 of the Home Building Act 1989 whereby a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the approved work. The builder or person shall obtain and have in force Home Building Insurance and supply to Council a copy of the Certificate in respect of insurance complying with the Home Building Act 1989 prior to the commencement of any residential building work together with the notice of commencement required by the Act. 11. Appointment of Builder - No works in connection with this Development Consent are to be commenced until the applicant: (i) has appointed a builder; and (ii) has notified the Council of the appointment upon the notice of commencement. The builder must also acknowledge their appointment by signing the Notice of Commencement. 12. A joint Council/Owner site inspection to discuss construction procedures is to be carried out prior to works commencing. CONDITIONS WHICH MUST BE SATISFIED DURING DEVELOPMENT WORK INSPECTIONS WHICH MUST BE CARRIED OUT BY THE PRINCIPAL CERTIFYING AUTHORITY - The following conditions have been imposed to ensure regular inspections of building works to ensure that construction is proceeding in accordance with Development Consent. 13. The Principal Certifying Authority must carry out the following inspections or otherwise be satisfied by compliance certificates issued by suitably qualified professional persons (at the Principal Certifying Authority's discretion) that the following work has been carried out in compliance with Development Consent, Construction Certificates and approved details. Work must not proceed beyond each inspection unless the Principal Certifying Authority is satisfied that all work complies with the Development Consent, the Act, and the Regulations. Where Council has been appointed as the Principal Certifying Authority, an inspection fee will be paid in accordance with the Schedule of Fees and Charges. Inspection fees are payable for each and every inspection, whether an initial inspection or a follow-up inspection where remedial work has been necessary. Forty-eight (48) hours' notice in writing, or alternatively twenty-four (24) hours' notice by facsimile or telephone, must be given to Council when the specified work requiring inspection has been completed. Schedule of required inspections : * Placement of piers or foundations prior to placing footings. * Steel reinforcing prior to pouring concrete. * Fencing before filling of the pool with water. * Final completion of all building works and other works covered by this Approval. Fee required: $170.00 NOISE POLLUTION - These conditions have been imposed to ensure that the amenity of the occupants using the building and that of surrounding areas is not affected by the emission of offensive noise . 14. Building and demolition work - Work in connection with the proposed development or building that involves the demolition of any existing buildings, any excavation or earthworks, the depositing of materials on the site, the removal of spoil and materials from the site or the erection of the building that requires the use of any tools (including hand tools) or any power operated plant or machinery that creates noise on or adjacent to the site SHALL NOT BE PERFORMED, or permitted to be performed, except between the hours of 7.00 am and 5.00 pm, Monday to Saturday inclusive other than Good Friday, Christmas Day, and any Public Holiday. 15. Erosion and sedimentation controls - The builder / demolition contractor will be held responsible for ensuring that erosion controls are installed and procedures are put in place prior to the commencement of any demolition, excavation or work to the satisfaction of Council's District Health & Building Surveyors or Law Enforcement Officers so as to ensure: (a) Removal or disturbance of vegetation and topsoil is confined to within 3.0 metres of the approved building area (no trees to be removed without approval). (b) All uncontaminated runoff is diverted around cleared or disturbed areas. (c) Silt fences or other devices are installed to prevent sediment and other debris escaping from the cleared or disturbed areas into drainage systems or waterways and such silt fences or devices are fully maintained for the duration of the activity. (d) Controls are put into place to prevent tracking of sediment by vehicles onto adjoining roadways. (e) All disturbed areas are rendered erosion resistant by turfing, mulching, paving or other methods approved by Council and erosion controls are continuously maintained to Council's satisfaction throughout construction. (f) All water pumped or otherwise removed from excavations or basement areas is filtered to remove all sediment prior to discharge. (g) Pumped or overland flows of water are discharged so as not to cause, permit or allow erosion. FAILURE TO INSTALL AND MAINTAIN RUNOFF AND EROSION CONTROLS WILL RESULT IN THE BUILDER or DEMOLITION CONTRACTOR BEING SUBJECT TO ONE (1) or MORE OF THE FOLLOWING : (a) Injunction proceedings in the Land & Environment Court. (b) Prosecution under The Protection of the Environment Operations Act, 1997. (c) On-the-spot fines to the person responsible. 16. The swimming pool must be fenced to comply with the requirements of the Swimming Pools Act, 1992 regarding restriction of access to the pool area. Construction of the fencing shall comply with Australian Standard 1926. 17. A hydrostatic pressure relief valve must be installed in the base of the pool. 18. The noise level from the pool filter must not exceed the background noise level (L10) as measured at the boundaries of the site by more than 5dB(A) or 3dB(A) if the noise has a strong tonal characteristic. 19. All pool waste water must be discharged to the sewer to the satisfaction of Council and Sydney Water. 20. A warning notice prepared on expired air resuscitation and complying with Section 17 of the Swimming Pools Act, 1992 must be exhibited in a prominent position adjacent to the pool. 21. Any external pool lighting must be positioned or shielded to prevent a glare nuisance to adjoining owners. 22. Any gates in the pool fence must OPEN OUTWARDS AWAY FROM THE POOL AREA and be self closing and fitted with a latch that cannot be easily manipulated by small children. Latches must be on the inside of the fence and as near as possible to the top. 23. The depth of the pool must be shown at each end of the pool with permanently fixed markers above the water line of the pool. CONDITIONS WHICH MUST BE SATISFIED PRIOR TO OCCUPATION OR USE 24. No water must be placed in the pool until the safety fences have been completed in accordance with the approved plans and specifications and inspected by Council. 25. All rubbish and waste materials on-site must be removed prior to the occupation of the premises. CONDITIONS WHICH MUST BE SATISFIED IN RELATION TO THE ONGOING USE OF THE DEVELOPMENT 26. The noise from the swimming pool pump shall not be audible within a room of any adjoining residence during the hours: Monday to Friday (other than a Public Holiday) - 8.00 pm to 7.00am Saturday, Sunday and Public Holiday - 8.00pm to 8.00am 27. The swimming pool must not be used for commercial or professional purposes. 28. Pool water quality must be maintained to Council's satisfaction. 29. The pool pump/filter equipment is to be located on the eastern side of the dwelling house, next to the existing air conditioning equipment. Details to be provided to the Principal Certifying Authority prior to the issue of a Construction Certificate. ADVICE TO APPLICANT GENERAL - The following advice is given by Council and does not constitute a condition under this approval. This advice is given to assist the applicant in compliance with the requirements of Acts, Regulations and other authorities. Council does not administer these matters, does not give any guarantee or accept any liability for advice given and does not offer any further advice with respect to these matters. The applicant, owner and builder must seek proper advice from each authority as required. 30. BEFORE YOU DIG - Applicants and builders should telephone or fax Sydney One Call Service to ascertain which utility services are underground in the proposed excavation area. Enquires will be assisted by you providing details of:- * street/house number and street name * which side of the street; * name of nearest cross street; and * distance from nearest cross street Confirmation of enquiries will be faxed by Sydney One Call Service to you and to the individual utilities. You can contact Sydney One Call Service by phone on 1100 or by Fax on 1300 652 077. Where you need to establish the location of Council drainage pipes, please contact Council's Engineering Division. 31. SYDNEY WATER - Refer to your conditions of Consent about the need for submission of evidence of plans approved by a Quick Check agent or Sydney Water with your application for a Construction Certificate. 32. TREE PRESERVATION - Compliance with Council's Tree Preservation Order which prohibits the ringbarking, cutting down, lopping, removing, injuring, or the wilful destruction of any tree or trees, that is 3 metres or more in height, having a girth of 30cm or more when measured 45cm above the ground, has a branch spread of 3 metres or more, except with the specific consent of the Hurstville City Council. See Annexure B following: Annexure B Memorandum of variation of restriction of use of Lot 4 DP 1012655 The Land and Environment Court of New South Wales, pursuant to section 39(6) of the Land and Environment Court Act exercises the power of the Hurstville City Council to vary the restriction of use of Lot 4 DP 1012655 which restriction of use was created by Part 1 Clause 11 and Part 2 Clause 11(1) of the s88B instrument attaching to DP 1012655. Part 2 Clause 11(1) of the said s88B instrument is hereby varied by the addition, after the word "plan", of the words: except for the construction on Lot 4 of a swimming pool and ancillary works pursuant to the conditions of consent approved by the Land and Environment Court in its determination of appeal numbered 10323 of 2004 made on 18 June 2004. _______________________ K G Hoffman Commissioner of the Court mp 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.