Land and Environment Court of New South Wales CITATION : Oenzoan Castle Hill Property Investments Group Pty Limited v Parramatta City Council [2004] NSWLEC 547 APPLICANT Oenzoan Castle Hill Property Investments Group Pty Limited PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 11409 of 2003 CORAM: Bly C KEY ISSUES: Development Application :- demolition of two existing dwellings and subdivision of two lots into three allotments and the erection of six dwellings - overshadowing - impacts on amenity - traffic - on-street parking - privacy - noise impacts - streetscape - stormwater drainage LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Parramatta Local Environmental Plan 2001 CASES CITED: Parsonage v Ku-ring-gai Council (2004) NSWLEC 347 DATES OF HEARING: 06/09/2004-07/09/2004 EX TEMPORE 09/07/2004 JUDGMENT DATE : APPLICANT Mr C McEwen, barrister SOLICITOR Lewarne & Goldsmith LEGAL REPRESENTATIVES: RESPONDENT Mr C Gough, solicitor SOLICITOR Storey & Gough JUDGMENT: - 24 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 7 September 2004 11409 of 2003 Oenzoan Castle Hill Property Investments Group Pty Limited v Parramatta City Council JUDGMENT 1 This appeal relates to a development application, No. 281/02, which seeks consent for the development of the properties at 13 and 15 Honiton Avenue, Carlingford, comprising the demolition of two existing dwelling houses, the subdivision of the two lots into three new allotments and the erection of six dwellings in the form of three detached dual occupancy developments. Subsequent Torrens Title subdivision of the six dwellings is also proposed. 2 The two dwellings proposed to be constructed at the rear of the site are to be single storey plus rooms in a relatively large roof. The four dwellings fronting Honiton Avenue will each have a two storey presentation to the street but will be partly single storey at the rear. 3 The site comprises lots 48 and 49 in DP 8767, has a combined frontage of about 41 m, a depth of about 56 m and an area of about 2,248 sq m. 4 Surrounding development in the locality mainly comprises detached residential dwellings, including single storey dwellings and single storey dwellings with accommodation in roof space on battleaxe blocks and two storey dwellings. 5 The site is situated in the Residential 2(a) zone under Parramatta Local Environmental Plan 2001 ("the LEP"). Pursuant to the LEP and in this zone, subdivision and dual occupancies are permissible with development consent. The relevant zone objectives are: (a) to enhance the amenity and characteristics of the established residential area; (b) to encourage redevelopment of low density housing forms, including dual occupancy development where such development does not compromise the amenity of the surrounding areas or the natural and cultural heritage of the area; (c) to ensure that building form, including alterations and additions, is in character with the surrounding built environment. 6 The LEP requirements applicable to dual occupancy development include a maximum floor space ratio of 0.6:1 and a maximum building height of two storeys. These development standards are complied with. 7 Also applicable to the site and the proposal is the Parramatta Development Control Plan 2001 ("the DCP"). Relevantly applicable DCP requirements include minimum site area, maximum floor space ratio and height, minimum site dimensions and setback requirements, minimum landscaped area, minimum open space and carparking. These requirements are also complied with, with the exception of a 6 m minimum dimension requirement for private open space. 8 In relation to private open space I note that the council town planner who examined this proposal was able to conclude that the private open space would be of sufficient area and dimensions to enable recreational and outdoor use located off living areas. She accepted that there was merit in varying the 6 m standard in this particular case. 9 The application, in varying forms, was advertised on three separate occasions and a number of objections were received from the owners of adjoining and nearby properties. The most recent notification of the application generated some six objections. 10 A number of residents gave evidence when the Court visited the site. They were Mr and Mrs Payne at 11 Honiton Avenue (the adjoining property to the south); Mr and Mrs Clayton of 37A Honiton Avenue; Mr Zahada of 17 Honiton Avenue; Mr R Beattie of 23 Honiton Avenue; Mrs Cary of 10D Honiton Avenue; and Mrs Steethers of 10C Honiton Avenue. 11 Matters of concern raised by the objectors include overshadowing of north facing recreation areas and windows, the inappropriate nature of the two rear dwellings which are effectively two storey, the loss of a number of large trees from the site, Honiton Avenue is already overdeveloped, adverse impacts on the amenity of the locality in terms of increased traffic and demands for on-street carparking, loss of privacy resulting from upper floor overlooking and noise impacts, two storey development is inappropriate and out of character in the street, insufficient setbacks, unresolved stormwater drainage problems and pollution generally. 12 The council has not determined the development application and, as a consequence, the matter is being dealt with by the Court on the basis of a deemed refusal. 13 Prior to the matter coming before the Court a council town planner, Ms S Matthews, reviewed the amended proposal and the residents' objections in the context of the statement of issues and recommended that it be approved subject to a number of conditions. 14 The amended application was also considered by the applicant's town planner, Mr N White, who also concluded that the application be approved. 15 During the hearing the matter of solar access to the adjoining property at No. 11 was the subject of fairly careful examination as a result of the concerns expressed by the affected neighbour at No. 11. Further shadow diagrams were provided and the applicant has now agreed to a condition which has the effect of lowering the single storey element of dwelling 4 by 500 mm overall and lowering the two storey element of this dwelling by 400 mm overall. These changes will result in a reduction of the shadows, which will fall on No. 11 and the apparent bulk of this dwelling when viewed from No. 11. 16 Up to this point the council had agreed that the application should be approved by the Court and had agreed to enter into consent orders. However, with the changes, Mr Gough explained that he had no instructions in relation to these amendments and sought an adjournment to enable the changes to be further considered. In response I rejected the application for an adjournment being of the opinion that the changes could be readily understood by myself and that I could see no disadvantage to the design or to the neighbours, indeed the benefits in terms of solar access would be significant. I shall come back to the matter of impacts on No. 11 shortly. 17 The many issues raised in the initial statement of issues and the matters of concern to the residents have been carefully addressed by Ms Matthews and Mr White. I have read their reports and, taking into account what they have said together with the concerns expressed by the neighbours, I am satisfied, and leaving aside for the moment the direct impacts on No. 11, that none of those matters raises any issue which would indicate that the application should not be approved. 18 During the hearing I expressed some concern in relation to two matters. The first, obviously, was the matter of shadows upon No. 11, which resulted in the changes to dwelling No. 4 which I have already described. I also referred to a concern, which has been satisfied by the evidence of Mr White, in relation to streetscape. That concern was in relation to the similarity of the four dwellings in terms of their presentation to the street and by comparison with the existing dwellings in the vicinity. This similarity will continue to be apparent but it is not of critical concern for a number of reasons. There will be differences between the four dwellings in terms of their roof form presentation, articulation and colour schemes. In addition, they will be positioned in a landscaped setting with each dwelling having a 6 m Chinese tallow tree in the front courtyard. 19 The concerns in relation to the impacts upon 11 Honiton Avenue are less easily resolved, they being matters of privacy, building bulk and overshadowing. 20 Dealing firstly with the privacy issue, I do not find this to be a matter of critical concern taking into account several matters. The only overlooking could potentially come from upper level bedroom windows and these windows have 1.5 m sill heights which restrict overlooking opportunities. In relation to dwelling 6 at the rear I note that there are to be provided, along the dividing boundary of the site, three trees comprising two Waterhousea which grow to a height of 10 m and one Chinese tallow tree which grows to a height of 6 m. 21 As for building bulk I do not accept that dwelling 6 should be a matter of concern at all, being a single storey dwelling despite having a larger than usual roof with rooms in it, and taking also into account the landscaping particularly the trees just referred to. 22 As for the effect of the two storey dwelling 4, whilst this will be seen from the courtyard at No. 11, and indeed from one of the bedrooms in the house at that address, I again do not find the bulk and scale of this proposed dwelling to be unreasonable. It complies with the requirements of the DCP in terms of height and setbacks and is positioned in line with other houses in the street. It will be far less obvious from the rear yard of No. 11. 23 Finally, here I note that it is the single storey element of dwelling 4 which is opposite the north facing courtyard at No. 11 and that this part of the dwelling has been lowered, as I have already indicated, by 500 mm. 24 Dealing next with what I think is Mr and Mrs Payne's greatest concern, overshadowing, I note that even with the reduced height of dwelling 4 there will continue to be considerable midwinter overshadowing of the north facing courtyard between the house at No. 11 an the boundary of the subject site. This courtyard adjoins their large family room. There will also be overshadowing of the rear yard of that property. 25 Relevantly, the DCP requires that, adjoining properties must receive a minimum of three hours sunlight in habitable rooms and in at least 50% of the private open space between 9am and 3pm on 21 June. Despite the fact that the courtyard to which I referred a moment ago will be significantly affected for most of the day at the winter solstice, the rear yard of this property, which is effectively their private open space, meets the 50% solar access requirement. 26 As a consequence of my seeking to understand the extent to which the DCP requirement for three hours of sunlight in habitable rooms is complied with, additional shadow diagrams were provided which reveal that there would be three hours of sunlight on varying parts of the north facing windows and glass doors to this family room. This outcome was tested against the solar access principle referred to in Parsonage v Ku-ring-gai (2004) NSWLEC 347. The minimum requirements referred to in that judgment require that the sun should strike vertical surfaces at a horizontal angle of 22.5O or more and that the glazing should have at least half of its area in sunlight. The proposal meets those requirements. 27 I am, therefore, satisfied that technically speaking there is a compliance with the DCP in terms of solar access for No. 11. 28 Notwithstanding this compliance, I pressed upon the applicant the need to improve solar access to this family room through the north facing windows and glass door, and to achieve some measure of balance against the loss of solar access to the north facing courtyard. This resulted in the lowering of the overall height of dwelling 4 as earlier described. 29 In Parsonage the Senior Commissioner referred to situations where compliance with guidelines may still result in what he described as a devastating impact on the amenity of an affected dwelling. I do not accept that the impact here overall could be described as being devastating, but it is certainly significant and warrants the kind of attention that has resulted in changes to the proposal. Clearly the overshadowing of this courtyard will remain, but as the Senior Commissioner says this must be assessed in the context of the reasonable development expectations and the subdivision pattern. 30 This development, given what I have said about its compliance with standards, must point towards it being deserved of reasonable development expectations. It is certainly not an excessive development and is nowhere near, in my mind, an overdevelopment of the site. 31 The subdivision pattern is an important consideration given that the allotments in this part of Honiton Avenue have an east-west orientation and, as a consequence, any reasonable development of these lots is going to have overshadowing consequences on adjoining properties to the south. 32 The courtyard at No. 11 is quite close to the boundary and in my view avoidance of overshadowing in this particular location, being essentially in the corridor parallel to the street where building development is to be anticipated, is inevitably going to be overshadowed. 33 In all of the circumstances I am, therefore, satisfied that the impacts upon No. 11 are not such as to warrant refusal of the application. 34 There were some other issues associated with adjoining properties to the west and I accept that these have been resolved by the appropriate provision of fencing and taking also into account landscaping. 35 Matters of drainage, traffic and the like were raised by some residents but I cannot, in the absence of any expert evidence in this regard, accept that those concerns should prevent me from granting consent to this development. 36 The orders of the Court will, therefore, be: (1) The appeal is upheld. (2) Development Application 281/02 for the demolition of two existing houses, the subdivision of the exiting two lots into three new allotments, the erection of six dwellings in the form of three attached dual occupancy developments and the subsequent Torrens Title subdivision of the six dwellings at 13 and 15 Honiton Avenue is determined by the granting of development consent subject to the conditions in Exhibits 3 and G. (3) Exhibits 3, G and H, Exhibit H being the reduced scale version of Exhibit A which includes the plan of subdivision and also the landscape plan, are retained. _________________________ T A Bly Commissioner of the Court Ljr/rjs Annexure "A" Conditions of Consent General Matters: 1. The development is to be carried out in compliance with the following plans and documentation listed below and endorsed with Council's stamp, except where amended by other conditions of this consent: Drawing No Dated Site / Roof Plans Houses 1, 2, 3, 4, 5 & 6 Job No. 403 Drawing No. DA01 Issue C3 August 2004 Ground Floor Plans Houses 1, 2, 3, 4, 5 & 6 Job No. 403 Drawing No. DA02 Issue C5 August 2004 First Floor and Roof Attic Plans Houses 1, 2, 3, 4, 5 & 6 Job No. 403 Drawing No. DA03 Issue C3 August 2004 Sections Job No. 403 Drawing No. DA01 Issue C3 August 2004 North and South Elevations Job No. 403 Drawing No. DA05 Issue C3 August 2004 East and West Elevations Job No. 403 Drawing No. DA06 Issue C3 August 2004 Proposed 3 Lot Subdivision Plan and Site Area Calculations Job No. 403 Drawing No. DA08 Issue C2 July 2004 Shadow Diagrams Revision I August 2004 Cover Sheet, Legend, Notes, Details and Catchment Plan Project No. 03020 Drawing No. H-01 Revision C August 2004 Stormwater Drainage Ground level Plan Project No. 03020 Drawing No. H-02 Revision C August 2004 Stormwater Drainage Level 1 Plan Project No. 03020 Drawing No. H-03 Revision C August 2004 Stormwater Drainage Roof Plan Project No. 03020 Drawing No. H-04 Revision C August 2004 Sediment and Erosion Control Plan and Details Project No. 03020 Drawing No. H-05 Revision B August 2004 Landscape Plan Project No. 0212b Drawing No. L01 Revision C August 2004 Survey Plan Job No. 202176-1b April 2002 Document(s) Dated Statement of Environmental Effects prepared by Planning Direction Pty Ltd October 2002 Waste Management Plan 21/11/02 Arboriculture Assessment Report prepared by Urban Tree Management 7/07/2004 Photo montage of 11A and 15 Honiton Avenue No date No construction works (including excavation) shall be undertaken prior to the release to the Construction Certificate. Note: Further information on Construction Certificates can be obtained by contacting Customer Service on 9806 5359. Reason: To ensure the work is carried out in accordance with the approved plans. 2. All building work must be carried out in accordance with the provisions of the Building Code of Australia. Reason: To comply with the Environmental Planning and Assessment Act and Regulations. 3. Prior to construction of the approved development, it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued by Council or an Accredited Certifier. Plans submitted with the Construction Certificate are to be amended to incorporate the conditions of the Development Consent. Reason: To ensure compliance with the Legislative Requirements. 4. As there is a change in the building use (classification), the building must comply with the Category 1 fire safety provision applicable to the proposed new use. Note: The obligation under this subclause to comply with the Category 1 fire safety provision may require building work to be carried out even though none is proposed or required in the relevant development consent. In this clause, Category 1 fire safety provision has the same meaning as it has in Part 7B of the Environmental Planning and Assessment Regulations. Reason: To comply with the Environmental Planning and Assessment Act. 5. Demolition work shall be carried out in accordance with Australian Standards AS 2601-1991 Demolition of Structures and the requirements of the NSW WorkCover Authority. Reason: To ensure appropriate demolition practices occur. Prior to the issue of a Construction Certificate: ( Note : Some conditions contained in other sections of this consent (including prior to occupation/use commencing) may need to be considered when preparing detailed drawings/specifications for the Construction Certificate.) 6. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to "Your Business" section of Sydney Water's web site at http://www.sydneywater.com.au then the "e-developer" icon or telephone 13 20 92. Following application a "Notice of Requirements" will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Co-ordinator, since building of water/sewer extensions can be timed consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to the Construction Certificate being issued. Reason: To ensure the requirements of Sydney Water have been complied with. 7. The submission of documentary evidence from Integral Energy to the Principal Certifying Authority is required confirming that satisfactory arrangements have been made with Integral Energy for the provision of electricity supplies to the development, prior to the release of the Construction Certificate. Reason: To ensure adequate electricity supply to the development. 8. The submission of documentary evidence from an approved telecommunications carrier to the Principal Certifying Authority confirming that telecommunication services are available for this development is required prior to the issue of the Construction Certificate. Reason: To ensure adequate telecommunication facilities are connected to the development. 9. All electricity provision to the site is to be designed in conjunction with Integral Energy Australia so that it can be easily connected underground when the street supply is relocated underground. Certification from Integral Energy addressing their requirements must be submitted with the Construction Certificate. Or All overhead electricity and other lines (existing and proposed) shall be undergrounded from the proposed building on the site to the appropriate power pole(s) or other connection point, in accordance with the requirements of Integral Energy. Details to be shown on plans submitted with the Construction Certificate. Reason: To provide infrastructure that facilitates the future improvement of the streetscape by relocation of overhead lines below ground. 10. Should a proposed Vehicular Crossing be located where it is likely to disturb or impact upon a utility installation (eg power pole, Telstra pit etc) written confirmation from the affected utility provider (eg. Integral Energy / Telstra) that they have agreed to the proposed impacts shall be submitted to the Principal Certifying Authority, prior to the issue of the Construction Certificate. Reason: To ensure the appropriate location of vehicular crossings. 11. The arrangements and costs associated with any adjustment to a public utility service shall be borne by the applicant/developer. Any adjustment, deletion and/or creation of public utility easements associated with the approved works are the responsibility of the applicant/developer. The submission of documentary evidence to the Principal Certifying Authority which confirms that satisfactory arrangements have been put in place regarding any adjustment to such services is required, prior to the release of the Construction Certificate. Reason: To minimise costs to Council. 12. The applicant shall bear the cost of all restoration works to Council's property damaged during the course of this development. The applicant shall advise Council, in writing, of any existing damage to Council property before commencement of the development. A dilapidation survey of Council's assets, including photographs and written record, must be prepared by a suitably qualified person and submitted to Council prior to the issuing of any Construction Certificate. Reason: To ensure Council's assets are maintained and minimise costs to Council. 13. The parking dimensions, internal circulation, aisle widths, kerb splay corners, head clearance heights, ramp widths and grades of the car parking areas are to be in conformity with the current relevant Australian Standard AS2890.1 (1993), except where amended by other conditions of this consent. Details of such compliance are to be reflected on the Construction Certificate plans. Reason: To ensure car parking complies with Australian Standards. 14. The payment of the following monetary contributions in accordance with Council's Comprehensive Section 94 Contributions Plan: Per Lot 6 Lots Traffic and Transport $379.00 $2,274.00 Open Space and Public Space and Recreation $3,637.00 $21,822.00 Community and Cultural $413.00 $2,478.00 Other $6.00 $36.00 Plan Management and Administration $593.00 $3,558.00 SUB TOTAL $5,028.00 $30,168.00 Credits (2) ($10,056.00) This result is a total contribution of $20,112.00 to be paid to Council prior to the issue of the Construction Certificate. The Section 94 Contribution fees are subject to CPI. The applicable indexation will be applied to the base contribution described above at the time of payment. Reason: To comply with the adopted Section 94 Plan. 15. The Construction Certificate is not to be released unless the Certifying Authority is satisfied that the required levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 has been paid. Reason: To ensure that the levy is paid. 16. A Construction Management Program shall be submitted to, and approved in writing by the Council prior to the issue of a Construction Certificate. The program shall detail:- a) The proposed method of access to and egress from the site for construction vehicles, including access routes through the Council area and the location and type of temporary vehicular crossing for the purpose of minimising traffic congestion and noise in the area, with no access across public parks or reserves being allowed. b) The proposed phases of construction works on the site and the expected duration of each construction phase. c) The proposed order in which works on the site will be undertaken, and the method statements on how various stages of construction will be undertaken. d) The proposed manner in which adjoining property owners will be kept advised of the timeframes for completion of each phase of development/construction process. e) The proposed method of loading and unloading excavation and construction machinery, excavation and building materials, formwork and the erection of any part of the structure within the site. Wherever possible mobile cranes should be located wholly within the site. f) The proposed areas within the site to be used for the storage of excavated materials, construction materials and waste containers during the construction period. g) The proposed method/device to remove loose material from all vehicles and/or machinery before entering the road reserve, any run-off from the washing down of vehicles shall be directed to the sediment control system within the site. h) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be designed and certified by an Accredited Certifier (Structural Engineering), or equivalent. i) Proposed protection for Council and adjoining properties. j) The location and operation of any on site crane. k) The location of any Construction Zone (if required) approved by Council's Traffic Committee, including a copy of that approval. l) The proposed method of access to and egress from the site for construction vehicle, including the proposed method of traffic control, access routes through the Council area and the location and type of temporary vehicular crossing for the purpose of minimising traffic congestion and noise in the area. Access across public parks and open space reserves is prohibited. Site access and egress is to be generally obtained from Honiton Avenue; m) The proposed phases of construction works on the site, and the expected duration of each construction phase; n) The proposed order in which works on the site will be undertaken, and the method statements on how various stages of construction will be undertaken; o) The proposed manner in which adjoining property owners will be kept advised of the timeframes for completion of each phase of development/construction process; p) The proposed method of loading and unloading excavation and construction machinery, excavation and building materials, formwork and the erection of any part of the structure within the site. On site cranage is a requirement of this consent. Mobile cranes if used shall be located wholly within the site or only utilised during the demolition and excavation phase, and in association with the establishment and removal of a site crane, removal of excavation equipment and the like; q) The proposed areas within the site to be used for the storage of excavated materials, construction materials and waste containers during the construction period; r) The proposed method/device to remove loose material from all vehicles and/or machinery before entering the road reserve, any run-off from the washing down of vehicles shall be directed to the sediment control system within the site; s) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be designed and certified by an appropriately qualified engineer and shall not involve any permanent or temporary encroachment onto Councils property; t) Proposed protection for Council and adjoining properties. Details are to include site fencing and the provision of "B" class hoardings over footpaths and laneways; u) The location and operation of any on site crane; and v) The location of any Construction Zone (if required) approved by Council's Traffic Committee, including a copy of that approval. Reason: To ensure appropriate measures have been considered for site access, storage and the operation of the site during all phases of the construction process in a manner that respects adjoining owner's property rights and residential amenity in the locality, without unreasonable inconvenience to the community. 17. Service ducts shall be provided within the building to keep external walls free of plumbing or any other utility installations. Such service ducts are to be concealed from view from the street. Details demonstrating compliance are to be provided in the construction certificate. Reason: To ensure the quality built form of the development. 18. In relation to the 3 lot subdivision, the proposed on-site detention system shall be designed in accordance with the Upper Parramatta River Catchment Trust "On-Site Detention Handbook", Council's Drainage Code, and shall be in accordance with the Stormwater Concept Plan approved with the development consent. The design shall achieve a Site Storage requirement of 330m3/ha and a Permissible Site Discharge of 130 l/s/ha. Detailed working plans demonstrating the intended method of compliance with this condition shall be submitted to the Principle Certifying Authority for approval prior to any works commencing on this component of the development. Reason: To provide on-site detention. 19. In relation to the 3 lot subdivision, construction of a concrete accessway for the full length of the proposed right of carriageway in accordance with Parramatta City Council Standard Plan No. 10195. Details shall be submitted with the construction certificate. Reason: To provide appropriate access. 20. In relation to the 3 lot subdivision, a heavy duty vehicular crossing must be constructed in accordance with Council's Standard Plan No. 5426. A bond for the amount of $4,918.00 must be paid to Council prior to the release of the Construction Certificate. Note : Inclusive in the above bond is an inspection fee. Reason: To ensure appropriate vehicular access is provided. 21. In relation to dual occupancies within Lots 1 and 2, the proposed on-site detention system shall be designed in accordance with the Upper Parramatta River Catchment Trust "On-Site Detention Handbook", Council's Drainage Code, and shall be in accordance with the Stormwater Concept Plan approved with the development consent. The design shall achieve a Site Storage requirement of 330m3/ha and a Permissible Site Discharge of 130 l/s/ha. Detailed working plans demonstrating the intended method of compliance with this condition shall be submitted to the Principle Certifying Authority for approval prior to any works commencing on this component of the development. Reason: To provide on-site detention. 22. In relation to Lot 1, a normal duty vehicular crossing must be constructed in accordance with Council's Standard Plan No. 5426. A bond for the amount of $1,680.00 must be paid to Council prior to the release of the Construction Certificate. In relation to Lot 2, a heavy duty vehicular crossing must be constructed in accordance with Council's Standard Plan No. 5426. A bond for the amount of $2,877.00 must be paid to Council prior to the release of the Construction Certificate. Note : Inclusive in the above bond is an inspection fee. Reason: To ensure appropriate vehicular access is provided. 23. The provision of suitably sized glass block windows to the following dwellings and specific rooms within the development site: Dwelling No. 2 – Dining and kitchen Dwelling No. 3 – kitchen. This requirement shall be reflected on the Construction Certificate Plans. Reason : To comply with the requirements of the Building Code of Australia and to protect the privacy of adjoining neighbours. Prior to Work Commencing : 24. Prior to the commencement of demolition work a licensed demolisher who is registered with the WorkCover Authority must prepared a Work Method Statement to the satisfaction of the Principal Certifying Authority (Council or an accredited certifier) and a copy sent to Council (if it is not the PCA). A copy of the Statement must also be submitted to the WorkCover Authority. The statement must be in compliance with AS2601-1991 Demolition of Structures," the requirements of WorkCover Authority and conditions of the Development Approval, and must include provisions for: a) Enclosing and making the site safe, any temporary protective structures must comply with the "Guidelines for Temporary Protective Structures (April 2001)"; b) Induction training for on-site personnel; c) Inspection and removal of asbestos, and contamination and other hazardous materials; d) Dust control – Dust emission must be minimised for the full height of the building. A minimum requirement is that perimeter scaffolding, combined with chain wire and shade cloth must be used, together with continuous water spray during the demolition process. Compressed air must not be used to blow dust from the building site; e) Disconnection of Gas and Electrical Supply; f) Fire Fighting – Fire fighting services on site are to be maintained at all times during demolition work. Access to fire services in the street must not be obstructed; g) Access and Egress – No demolition activity shall cause damage to or adversely affect the safe access and egress of this building; h) Waterproofing of any exposed surfaces of adjoining buildings; i) Control of water pollution and leachate and cleaning of vehicles tyres – Proposals shall be in accordance with the "Protection of the Environmental Operations Act 1997"; j) Working hours, in accordance with this Development Consent; k) Confinement of demolished materials in transit; l) Proposed truck routes, in accordance with this Development Consent; m) Location and method of waste disposal and recycling in accordance with the "Waste Minimisation and Management Act 1995". The demolition by induced collapse, the use of explosives or on-site burning is not permitted. Reason: To ensure demolition works comply with Work Cover and AS2601 – 1991. 25. A pedestrian and Traffic Management Plan must be submitted to and approved by Council prior to commencement of demolition and/or excavation. It must include details of the: a) Proposed ingress and egress of vehicles to and from the construction site b) Proposed protection of pedestrians adjacent to the site c) Proposed pedestrian management whilst vehicles are entering and leaving the site d) Proposed route of construction vehicles to and from the site, and e) The Pedestrian and Traffic Management Plan shall be implemented during the demolition and/or excavation period. Reason: To maintain pedestrian and vehicular safety during construction. 26. A minimum of five (5) working days prior to any demolition work commencing a written notice is to be given to Parramatta City Council and all adjoining occupants. Such written notice is to include the date when demolition will be commenced and details of the principal contractors name, address, business hours contact telephone number, Council's after hours contact number and the appropriate NSW WorkCover Authority licence. Reason: To protect the amenity of the area. 27. Prior to demolition commencing, either the Principal Certifying Authority or Council's building surveyor must inspect the site. Should the building to be demolished be known or suspected by reason of the buildings age or otherwise to be found to be wholly or partly clad with bonded or friable asbestos material, approval to commence demolition will not be given until the PCA or/and Council is satisfied that appropriate measures are in place for the handling, storage, transport and disposal of the bonded or friable asbestos material. Prior to commencement of demolition an inspection fee is to be paid in accordance with Council's current fee schedule. Reason: To ensure proper handling, storage, transport and disposal of asbestos materials. 28. Demolition works involving the removal, repair, disturbance and disposal of a total surface area (not floor area) of 200 square metres or more of bonded asbestos material must only be undertaken by contractors who hold the appropriate NSW WorkCover Authority licence(s) and approvals. Reason: To comply with the requirements of the NSW WorkCover Authority. 29. On demolition sites where buildings are known to contain bonded or friable asbestos material, a standard sign containing the words 'DANGER ASBESTOS REMOVAL IN PROGRESS" measuring not less than 400mm x 300mm is to be erected in a prominent position on site visible from the street kerb. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos material has been removed from the site. Advice on the availability of these signs can be obtained by contacting the NSW WorkCover Authority hotline or the website www.workcover.nsw.gov.au. Reason: To comply with the requirements of the NSW WorkCover Authority. 30. The site must be enclosed with a suitable security fence to prohibit unauthorised access, to be approved by the Principal Certifying Authority. No building work is to commence until the fence is erected. Reason: To ensure public safety. 31. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:- (a) Stating that unauthorised entry to the work site is prohibited; (i) Showing the name of the principal contractor (or person in charge of the work site), and a telephone number at which that person may be contacted at any time for business purposes and outside working hours; and (ii) Showing the name, address and telephone number of the Principal Certifying Authority for the work. (b) Any such sign must be maintained while to building work or demolition work is being carried out, but must be removed when the work has been completed. (c) This condition does not apply to building works being carried out inside an existing building. Reason: Statutory requirement. 32. Prior to commencement of work, the person having the benefit of the Development Consent and a Construction Certificate must: (a) Appoint a Principal Certifying Authority (PCA) and notify Council in writing of the appointment irrespective of whether Council or an accredited private certifier is appointed and (b) Notify Council in writing of their intention to commence the erection of the building (at least two (2) days notice is required). The Principal Certifying Authority must determine when inspections and compliance certificates are required. Reason: To comply with legislative requirements. 33. 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 to the web site www.sydneywater.com.au see Your Business then Building and Developing then Building and Renovating or telephone 13 20 92. The Principal Certifying Authority must ensure the plans are stamped by Sydney Water prior to works commencing on site. Reason: To ensure the requirements of Sydney Water have been complied with. 34. Prior to work commencing, toilet facilities are to be provided, at 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 person employed at the site. Reason: To ensure adequate toilet facilities are provided. 35. The submission to Council of a certificate from the Principal Certifying Authority or an Accredited Certifier, that all erosion and sedimentation control devices have been satisfactorily installed. Reason: To ensure soil and water management controls are in place be site works commence. 36. Erosion and sediment control devices are to be installed prior to the commencement of any demolition, excavation or construction works upon the site. These devices are to be maintained throughout the entire demolition, excavation and construction phases of the development and for a minimum three (3) month period after the completion of the project, where necessary. Reason: To ensure soil and water management controls are in place be site works commence. 37. The vehicular entry/exits to the site must be protected from erosion and laid with a surface material which will not wash into the street drainage system or watercourse. Reason: To ensure soil and water management controls are in place be site works commence. 38. Shaker pads are to be installed at the entry/exit points to the site to prevent soil material leaving the site on the wheels of vehicles and other plant and equipment. Reason: To ensure soil and water management controls are in place be site works commence. 39. A Tree Protection Zone (TPZ) is to be established around those trees that are to be retained not less than the distance shown in the schedule hereunder. No excavation is permitted within the specified zone, ground level changes are to be kept to an absolute minimum, and structural designs of buildings within the zone are to utilise pier and beam or cantilevered slab construction. The area is to be enclosed with protective fencing consisting of 1.8m high fully supported chainmesh. The area enclosed is to be a designated a "No-Go Zone" and is to be kept weed and grass free for the entire duration of works. The enclosed area is to be mulched with 100mm of leaf mulch to minimise disturbance to existing ground conditions for the duration of the construction works. "Tree Protection Zone' signage is to be attached to protective fencing, this must include the name and contact details of the site Arborist. Tree No. 1 Pistachia chinensis (Located on No. 11 Honiton Avenue) Radius from Truck for TPZ 2.5 metres Reason: To protect the trees to be retained on the site during construction works 40. Prior to any site works commencing, the developer must advise the Principal Certifying Authority of the erection of the tree protection measures specified within the conditions contained within this consent. No site works shall commence until the tree protection measures have been inspected and installed to the satisfaction of Council's Landscape Officer or appropriate certification from an Arborist has been submitted to the Principle Certifying Authority. Reason: To ensure the trees protection throughout the construction works. 41. The following trees are to be retained and protected during construction works: Tree No. 1 Eucalyptus species Tree No. 2 Cuppressus species Tree No. 5 Pistachia chinensis (located on the adjoining property No. 11 Honiton Avenue). This tree is required to have a tree protection zone of 2.5 metres. All remaining trees on site are either exempt from the Tree Preservation Order, or are in a fair to poor condition or noxious weeds and may therefore be removed. Reason: To ensure retention of appropriate trees. 42. Approval is granted from the removal of 2 trees as outlined below affected by the proposed development, all remaining trees are exempt from the Tree Preservation Order. Trees greater than three (3) metres from the proposed building are to remain and are to be protected during construction. Tree No. 3 Eucalyptus paniculata (Grey Iron Bark) Tree No. 4 Cedrus deodara (Atlantic cedar) Reason: To ensure tree removal is in accordance with the approved plans. During Work : 43. Building work may only be carried out six (6) days a week, Monday to Friday between the hours of 7.00am to 8.00pm and Saturday 8.00am to 8.00pm. No work is permitted to be carried out on Sundays or Public Holidays. Reason: To protect the amenity of the area. 44. Demolition works involving the removal of asbestos material may only be carried out six (6) days a week, Monday to Saturday between the hours of 7.00 am to 6.00 pm. No work is permitted to be carried out on Sundays or Public Holidays. Reason: To protect the amenity of the area. 45. A copy of this development consent, stamped plans and accompanying documentation is to be retained for reference with the approved plans on-site during the course of any works. Appropriate builders, contractors or sub-contractors are to be furnished with a copy of the notice of determination and accompanying documentation. Reason: To ensure compliance with this consent. 46. The applicant shall record details of all complaints received during the construction period in an up do date complaints register. The register shall record, but not necessarily be limited to: a) The date and time of the complaint; b) The means by which the complaint was made; c) Any personal details of the complainant that was provided, or if no details were provided, a note to that affect; d) Nature of the complaints; e) Any action(s) taken by the applicant in relation to the compliant, including any follow up contact with the complainant; and f) If no action was taken by the applicant in relation to the complaint, the reason(s) why no action was taken. The complaints register shall be made available to Council upon request. Reason: To protect the amenity of the area. 47. Noise from construction and/or demolition activities associated with the development shall comply with the NSW Environment Protection Authority's Environmental Noise Manual and the Protection of the Environment Operations Act 1997. Reason: To protect the amenity of the area. 48. Noise emissions and vibration must be minimised where possible and work is to be carried out in accordance with Environment Protection Authority guidelines for noise emissions from construction/demolition works and must also comply with the provisions of the Protection of the Environment Operations Act 1997. Reason: To ensure residential amenity is maintained in the immediate vicinity. 49. All bonded and friable asbestos waste material on-site shall be handled and disposed off-site at an Department of Environment and Conservation licensed waste facility by an DEC licensed contractor in accordance with the requirements of the Protection of the Environment Operations (Waste) Regulation 1996 and the EPA publication Assessment, Classification and Management of Liquid and Non-Liquid Wastes 1999 and any other regulatory instrument as amended. Reason: To ensure appropriate disposal of asbestos materials. 50. The contractor must submit to Council and the PCA, copies of all receipts issued by the DEC licensed waste facility for bonded or friable asbestos waste as evidence of proof of proper disposal within seven (7) days of the issue of the receipts. Reason: To ensure appropriate disposal of asbestos materials. 51. Waste disposal shall be conducted in accordance with the approved waste management plan. Reason: To ensure appropriate waste disposal. 52. No materials, machinery, signs or vehicles used in or resulting from the construction or demolition relating to the development shall be stored or placed on Council's footpath, nature strip or roadway. Reason: To ensure pedestrian access. 53. No portion of the proposed structure, including gates and doors during opening and closing operations, shall encroach upon Council's footpath area. Reason: To ensure no injury is caused to persons and to the existing and likely future amenity of the area. 54. No work of any description is to occur in or above the Tree Protection Zone except under the supervision of the Consulting Arborist and in accordance with a Work Methodology Statement developed by the Consulting Arborist and approved by Council's Landscape Officer prior to its implementation. This includes, but is not limited to handling, construction hoarding, site sheds, and pedestrian/machinery access. Reason: To ensure the trees protection throughout the construction works. 55. A qualified arborist must supervise all excavation, soil fill, trenching or tunneling works undertaken within the Tree Protection Zone (TPZ) of any retained trees located on or adjoining the site. The construction work must be carried out in accordance with all directions given by the Site Arborist. Where roots over 80mm are located, the arborist must prune the roots and detail all root pruning undertaken in report form to Council within 1 month of the excavation being undertaken. Reason: To ensure the trees protection throughout the construction works. 56. In relation to the 3 lot subdivision, the proposed kerb inlet pit shall be constructed in accordance with Council Standard Plan No. 10680. Reason: To ensure appropriate drainage. Prior to the issue of an Occupation Certificate/Subdivision Certificate/Use Commencing : 60. Any new hot water system is to achieve a minimum 3.5 NatHERS star rating. Certification demonstrating compliance must be submitted to the certifying PCA prior to the release of the occupation certificate. Reason: To ensure energy efficiency and compliance with DCP2001. 61. All water fixtures to be installed are to be rated to AAA standard. Certification demonstrating compliance must be submitted to the certifying PCA prior to the release of the occupation certificate. Reason: To minimise future water consumption and ensure compliance with Parramatta Development Control Plan 2001. 62. An application for street numbering shall be lodged with Council for approval, prior to the issue of an Occupation Certificate. Note: Notification of all relevant authorities of the approved street numbers shall be carried out by Council. Reason: To ensure all properties have clearly identified street numbering, particularly for safety and emergency situations. 63. The initial 3 lot subdivision certificate (linen release) shall not be issued until all subdivision works are completed. 64. An Occupation Certificate shall be obtained prior to occupation or use of the premises. Reason: To comply with the legislative requirements. 65. A separate application must be made for a subdivision certificate. The application is to be accompanied by documentary evidence demonstrating compliance with all conditions of consent. Reason: To comply with the requirements of the Environmental Planning and Assessment Act 1979 (as amended). 66. Submissions of a linen plan and five (5) copies for approval by Council. Reason: For endorsement by the Council. 67. The landscaping of the site being carried out prior to occupation or use of the premises in accordance with the approved plan and being maintained at all times to Council's Landscaping Development Control Plan. Reason: To ensure landscaping complies with the approved plans. 68. In accordance with clause 162B of the Environmental Planning and Assessment Regulation 2000, the certifying authority responsible for critical stage inspections must make a record of each inspection as soon as practicable after it has been carried out. Where Council is not the PCA, the PCA is to forward a copy of all records to Council. The record must include details of: a. the development application and construction certificate number; b. the address of the property at which the inspection was carried out; c. the type of inspection; d. the date on which it was carried out; e. the name and accreditation number of the certifying authority by whom the inspection was carried out; and f. whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out. Reason: To ensure copies of documentation is provided to Council. 69. Where Council is not the Principal Certifying Authority, a copy of any compliance certificates and or records of inspections received by the PCA shall be forwarded to Council prior to occupation or commencement of the use. Reason: To comply with the requirements of the Environmental Planning and Assessment Act 1979. 70. All trees planted within the site are to be grown and planted in accordance with Natspec – Clarke .R, Specifying Trees: A guide to the assessment of tree quality, 2003. All tree must have an adequate root volume to physically and biologically support the tree. No tree within the site is to be staked or supported at the time of planting. Reason: To ensure the trees are planted within the site area able to reach their required potential. 71. That the Certifying Authority shall arrange for a qualified Landscape Architect/Designer to inspect the completed landscape works to certify adherence to the DA conditions and Construction Certificate drawings. All landscape works are to be fully completed prior to the issue of an Occupation Certificate. Reason: To ensure restoration of environmental amenity. 72. The grass verge must be reinstated with a graded uniform cross fall, using clean uniform topsoil and rolled turf. Reason: To ensure restoration of environmental amenity. 73. In relation to the 3 lot subdivision, a Positive Covenant and a Restriction is to be created on the property title (under the provision of the Conveyancing Act) to ensure that the required on-site detention system will be adequately maintained. A copy of the typical covenant may be obtained from the Council's Development Unit. Proof of registration shall be submitted to the Principle Certifying Authority prior to occupation or use of on-site. Reason: To ensure maintenance of on-site detention facilities. 74. In relation to the 3 lot subdivision, works as executed plans certified by a suitably qualified person are to be submitted to the Principal Certifying Authority prior to occupation of the premises certifying that the stormwater drainage system has been constructed in accordance with the appropriate plans. A copy of the works as executed plans is to be submitted to Council's Development Unit to update the on-site detention database for the upper Parramatta River Catchment Trust. Reason: To ensure works comply with approved plans and for data for the Upper Parramatta River Catchment Trust. 75. In relation to the dual occupancy within Lot 3, the disused vehicular crossings shall be removed and the kerb reconstructed in accordance with Council's Standard Plan Number: 5426 prior to the occupation of the premises. Reason: To provide drainage. 76. In relation to the dual occupancies within Lots 1 and 2, a Positive Covenant and a Restriction is to be created on the property title (under the provision of the Conveyancing Act) to ensure that the required on-site detention system will be adequately maintained. A copy of the typical covenant may be obtained from the Council's Development Unit. Proof of registration shall be submitted to the Principle Certifying Authority prior to occupation or use of on-site. Reason: To ensure maintenance of on-site detention facilities. 77. In relation to the dual occupancies within Lots 1 and 2, any disused vehicular crossings shall be removed and the kerb reconstructed in accordance with Council's Standard Plan Number: 5426 prior to the occupation of the premises. Reason: To provide drainage. 78. In relation to the dual occupancies within Lots 1 and 2, works as executed plans certified by a suitably qualified person are to be submitted to the Principal Certifying Authority prior to occupation of the premises certifying that the stormwater drainage system has been constructed in accordance with the appropriate plans. A copy of the works as executed plans is to be submitted to Council's Development Unit to update the on-site detention database for the upper Parramatta River Catchment Trust. Reason: To ensure works comply with approved plans and for data for the Upper Parramatta River Catchment Trust. 79. The applicant shall construct at its cost along the rear boundary of the development site a 1.8 metre high lap and capped timber fence (being 1.5 m of fence and .300mm lattice) prior to the issue of the Occupation Certificate. 80. A subdivision certificate shall not be issued in respect of any proposed dual occupancy until such time as the Occupation Certificate for such dual occupancy is issued. 81. Approval is subject to the applicant submitting prior to the issue of the Construction Certificate plans which show the house number 4 is reduced in height as follows: i) Ground floor of the whole building by 300mm (to RL80.3). ii) Rear single storey element (bedroom, family, ensuite and laundry) from 2700mm to 2500mm in floor to ceiling height. iii) First floor element from 2500mm to 2400mm in floor to ceiling height. ______________________ T A Bly Commissioner of the Court ljr 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.