Land and Environment Court of New South Wales CITATION : Brian and Debbie Curren v Mosman Council [2004] NSWLEC 246 APPLICANT Brian and Debbie Curren PARTIES : RESPONDENT Mosman Council FILE NUMBER(S) : 11496 of 2003 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Alterations and additions to existing two-storey dwelling - The non-compliance with the FSR - Design of the proposed rear balcony - the setback of the proposed stairs from the southern boundary - the proposed double garage on the street and access to the roof of the garage for recreation purposes. Mosman Local Environmental Plan 1998 LEGISLATION CITED: Mosman Residential Development Control Plan 1999 Environmental Planning and Assessment Act 1979 ss79C and 97 CASES CITED: DATES OF HEARING: 19/04/04, 19/05/04 DATE OF JUDGMENT: 05/19/2004 APPLICANT Mr S Flannigan, barrister, instructed by Ms Z Baker, solicitor SOLICITOR Deacons LEGAL REPRESENTATIVES: RESPONDENT Ms J A Walsh, solicitor SOLICITOR Pike Pike and Fenwick JUDGMENT: Appeal No: 10496 of 2003 4 Brian and Debbie Curren v Mosman Council Judgment 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the (the council) to refuse a development application to demolish the existing garage, erect double garage with roof deck, and alter and add to the front and rear of an existing two-storey dwelling at Lot 3, DP 11540, being No 10 Cobbittee Street, Mosman. 2 An on-site hearing was held on 19 April 2004 and the land was inspected in company with the parties. 3 I have concluded that the application should succeed after being carefully considered under the heads of consideration of s 79C of the Environmental Planning and Assessment Act 1979 . The land 4 The land is situated western side of Cobbittee Street between Dayrell Avenue and Middle Head Road. It is rectangular in shape having frontage to Cobbittee Street of 12.19m and side boundaries of 51.815m and an area of 631.62m2. 5 The land slopes steeply down from Cobbittee Street (east) to the rear boundary (off Pretoria Avenue) with an overall fall of about 13m. The fall to the rear of the existing dwelling is in the order of 5.5m and there is a minor cross-fall from south to north of 1.2m. 6 The land is on the eastern extremity of the Mosman residential precinct adjoining HMAS Penguin and the Sydney Harbour National Park at Middle Head. The surrounding area largely comprises large two-storey detached dwellings on steeply sloping land with views of Middle Harbour. Relevant planning controls Mosman Local Environment Plan 1998, (MLEP) 7 The land is zoned 2(a1) Residential under the provisions of the MLEP and dwelling houses are permissible with consent. 8 Clause 2(b) sets out the relevant objectives of the MLEP: 2. What are the objectives of this plan? (b) to provide housing opportunities appropriate to environmental constraints while maintaining the existing residential amenity. 9 Under cl 11 of the MLEP the objectives of the 2(a1) zone are to: · Retain the single dwelling character of the environmentally sensitive residential areas of Mosman. · Maintain the general dominance of landscape over built form, particularly on harbour foreshores. · Maintain the existing subdivision pattern. · Ensure that sites are of sufficient size to provide for buildings, vehicular and pedestrian access, landscaping and retention of natural topographical features. · Ensure that development is of a height and scale, which complements existing buildings and streetscapes. · Allow for some non-residential uses that would not adversely affect the living environment of the area. · Encourage residential development, which has regard to local amenity and, in particular, public and private views. 10 Clause 14 of MLEP sets out the objectives and standards for floor space ratio, (FSR). The objectives of the standard at cl 14(1) are: 14. Floorspace ratios in residential zones: (1) The objectives of this clause are: (a) to control the scale of development so that it is compatible with housing characteristics of the locality, and (b) to limit excavation of sites and retain natural ground levels for the purpose of landscaping and containing urban run-off, and (c) to minimise the effects of bulk and scale of new development (Amendment 20 to MLEP gazetted on 5 March 2004). 11 The maximum FSR for a site under 700m2 in the 2(al) Residential zone under the MLEP is 0.5:1 or 315.81m2 of GFA. Mosman Residential Development Control Plan 1999, (RDCP) 12 The RDCP as amended came into force on 3 July 2003, and applies to the land. 13 The relevant objectives of s 4.2-Siting and Scale of the RDCP are: 01. To have buildings, which address the street. 02. To have front and rear setbacks complementing existing setbacks in the street. 03. To have adequate side setbacks to provide spatial relief between buildings, maintain public and private views and to minimise disturbance to remaining or remnant natural watercourses and bushland. 04. To have building which are of a height and scale which preserve privacy for neighbouring residents and allow the sharing of public and private views, and provide access to sunlight. 06. To have a scale of development which is not excessive and is consistent with the existing or desired future character of the area. 14 The relevant planning guideline for setbacks is P7, which states: P7. Development must have a minimum side boundary setback of: · For basement excavation for up to two storey developments (or up to 7.2 metre wall height) - 2000mm (unless a greater setback applies); · For basement excavation for three or more storey development (or over 7.2 metre wall height) - the setback must be equal to the side building setback requirement (unless a greater setback applies); · Excavation is not permitted within the minimum setback area except for shallow excavation (less than 1 metre depth) required for the provision of utility services. This will require all footings, drainage works, structural support etc. to be located beyond the minimum setback; · For single storey (or less than 3.6 metre wall height) - 900mm; · For two storey developments (or up to 7.2 metre wall height) - 1500mm; · For three storey developments (or over 7.2 metre wall height) - 3000mm; · For four storeys (or up to 11 metre wall height) - 4000mm. For specific setback requirements for some areas, refer to Section 6 Townscape Areas. In certain circumstances Council may allow a nil setback where there will be minimal adverse affects on adjoining properties and where walls do not contain windows. Such development may include garages and carports. Note: Setbacks are measured from the face of external wall, deck, balcony, terrace or verandah. 15 Section 5.2 of the RDCP relates to Car Parking and Access and the relevant objectives are: 01. To have the siting of car parking structures respect the character of the streetscape and retain public views where they exist over the site. 02. To have carports and garages designed to be in sympathy with the residential building without becoming the dominant feature on the site. 03. To have the width of street vehicular crossings and driveways limited (depending on the site frontage) to minimise visual impact, to maximise on street parking space and allow opportunities for street planting. 05. To have parking provided by the development that relates to the environmental and built constraints of the site. 16 Relevant planning guidelines are P6, P10 and P16: P6. No garages will be permitted forward of the front building alignment. P10. Garages, carports (excluding Conservation Areas) and driveways must not exceed 40% of the block frontage or up to 6 metres, whichever is the lesser, depending on frontage size. Vehicular crossings should not be more than 3m in width to minimise the loss of on street parking. P16. Structures such as decks and patios etc. are not permitted on the roof of the garage or carport. 17 Section 5.6 of the MRDCP relates to Privacy and Security and a relevant objective is: 01. To have adequate visual and acoustic privacy levels for residents and neighbours. 18 Relevant planning guidelines are P4 and P5: P4. Above ground balconies, terraces, decks, verandahs and outdoor spaces must not directly overlook rooms and private landscaped areas of adjoining properties unless screening can mitigate overlooking. P5. Due to their potential to affect privacy and views, roof top terraces are not permitted unless it can be demonstrated that there is no loss of privacy or view impact. 19 Section 5.1 of the RDCP relates to Streetscape and Building Design and the relevant objectives are: 01. To have development of a scale and appearance which is in keeping with the street and neighbourhood character. 02. To have variety within development, where consistent with the neighbourhood character. 03. To have streetscapes which are compatible with and support the desired future character objectives of the townscape areas. 05. To promote open style fencing as a means of reducing the visual impact of solid fencing styles and encouraging safety through passive surveillance of streets and private property. 20 Relevant planning guidelines for alterations and additions are P4 to P7: Alterations and additions P4. The design of additions and alterations should demonstrate architectural unity with the existing building. The extension or replication of roof pitches and the matching of external finishes is encouraged. P5. First floor additions should be well integrated into the design of the development to avoid a bulk/scale relationship that would dominate the street, neighbouring building or the existing building. P6. Contemporary alterations and additions, where appropriate, are to be limited to the rear of the building. P7. Development should respect the defined desired future character of the townscape area as outlined in Section 6. The proposal and its history 21 Development application No 8.2002.287.1 was lodged with the respondent council on 16 August 2002 to demolish the existing garage, erect a new double garage with roof deck, and alter and add to the front and rear of the existing two-storey dwelling. 22 The proposal is described in plans prepared by Red Rock Design Drawing Nos 1A to 5A dated June 2002 and comprises: (i) alterations and additions to the ground and lower ground floors; (ii) minor alterations to windows on the northern and southern elevations; (iii) the replacement and extension of an existing rear deck off the rear of the ground floor level; and (iv) the demolition of an existing garage for one vehicle with a two-car garage with deck over involving alterations to the first floor facade to achieve access to the deck. 23 The proposal would add about 11.25m2 to the floor area of the existing dwelling. Mr Nash calculated that the existing dwelling has a gross floor area of 333m2, and the gross floor area, (GFA) after the new works are carried out would be 344.25m2 or a FSR of 0.55:1. Further amendments have been made and the GFA has been recalculated and found to conform to the allowable GFA of 315.81m2 or 0.5:1. 24 Landscaped area would be of the order of 350m2 and would satisfy the council's requirement in this regard, despite it being on steeply sloping land and of little use as private open space. Notification 25 The application was notified to nearby owners and occupants and there were no objections received by the council. The council's decision 26 By notice dated 12 February 2003 the council refused the application for the following reasons: 1. The proposal does not comply with Clause 14 of the Mosman Local Environmental Plan 1998 with respect to floorspace. 2. The proposed additions to the northern and southern sides of the dwelling do not comply with Section 4.2 of the Mosman Residential Development Control Plan, which requires a minimum setback of 900mm for a single storey structure. In addition, these works do not comply with the minimum requirements of the Building Code of Australia. 3. The proposed double garage at the front of the building is contrary to the aims and objectives of Section 5.2 Carparking and Access of the Mosman Residential Development Control Plan. 4. The proposed terrace on top of the garage on nil setback from the street is not acceptable as it is out of character with the streetscape and is too close to the street. 5. The addition to the rear balcony will increase the bulk of the building and raise the potential for privacy issues. 6. The proposal is not in the public interest. The hearing 27 The appeal was filed on 8 December 2003. 28 At the on-site hearing the court heard evidence on behalf of the respondent council from: · Mr K R Nash, consultant town planner; 29 On behalf of the applicant evidence was given by: · Mr G A Shiels, consultant town planner; The issues 30 On 19 January 2004, the council filed a statement of issues: Bulk, Scale and Streetscape 1. Whether the proposal achieves the general objectives contained in Clause 2 of the Mosman Local Environmental Plan 1998 ("MLEP"), particularly objective (b). 2. Whether the proposal achieves the objectives for the Residential 2(a1) zone, particularly in relation to: · Ensuring development is of a height and scale, which complements existing buildings and streetscapes. 3. Whether the proposal achieves the objectives contained in Clause 14 of the MLEP, which deals with floorspace ratio. 4. Whether the proposal complies with Section 4.2 of the Mosman Residential Development Control Plan ("RDCP"). Particulars · Non-compliance with Objective 03; · Non-compliance with Planning Guideline P7. · Non-compliance with the Building Code of Australia. 5. Whether the proposal complies with Section 5.2 of the RDCP. Particulars · Non-compliance with Objective 01, 02, 03 and 05; · Non-compliance with Planning Guidelines P6, P10 and P16. 6. Whether the proposal complies with Section 5.6 of the RDCP. Particulars · Non-compliance with Objective 01; · Non-compliance with Planning Guidelines P44 and P5. 7. Whether the proposal complies with Section 5.1 of the RDCP. Particulars · Non-compliance with Objective 01; 8. Whether the proposal will create a precedent. 9. Whether the proposal is in the public interest. 31 The following emerged as the salient issues: · The non-compliance with the FSR; · The design of the proposed rear balcony; · The setback of the proposed stairs from the southern boundary; · The proposed double garage on the street and access to the roof of the garage for recreation purposes. Expert witness conference 32 An expert witness conference was held on 6 April 2004 and agreement was reached in respect of: 315.81m2 or 0.5:1 1. The rear balcony: It was agreed that the concerns of the council would dissipate were the heavy balustrade structures replaced with lightweight framing; 2. Floor space ratio: Subsequent calculations reveal that the total floor area or GFA would be 315.43m2 or a FSR slightly under 0.5:1 and this would comply with the allowable FSR of 0.5:1; 3. The side boundary setback: This was incorrectly dimensioned on the plans and the existing setback of 900mm would be maintained to the proposed stairs; and 4. Proposed garage and roof access: It was agreed that if the proposal were amended to delete the roof access and a carport provided in lieu of the second garage with the fence integrated into this design, the proposal would be acceptable. Amended plans 33 Following the expert witness conference the applicant prepared amended garage plans that would address the council's concerns. The evidence and findings 34 Mr Nash was of the opinion that the proposal would not meet the objectives of the 2(al) zone since it would detrimentally impact on the height, scale and streetscape by reason of the erection of a two car garage on the Cobbittee Street alignment and the first floor balcony/ deck over would have detrimental impact on the privacy and amenity of adjoining dwellings at Nos 8 and 12 Cobbittee Street and on the existing streetscape. 35 The design has since been amended to remove the deck over the garage replace it with a 1.0m wide balcony and to turn the proposed garage into a carport, [Note: Exhibit E]. 36 Having considered the further amended plans Mr Nash sought to increase the size of the planter bed to the south of the carport and to cut back the carport roof over that planter. 37 For the applicant, on 19 May 2004, Mr Shiels told the Court that although Mr Nash's proposal would increase the amount of landscaping at the front there would be disbenefits including: · demolition of some of the existing works would be likely to result in an unfortunate conjunction with the existing building on the streetscape; · narrow the entry lobby from the carport to the secondary entrance reducing accessibility; and · there would be no material gain in the streetscape. 38 He added that the applicant would prefer the design as proposed in the further amended plans but if the Court thought otherwise, would accept Mr Nash's alternative. 39 I am persuaded by the evidence of Mr Shiels that the design shown in the further amended plans is satisfactory and would have the advantage of better maintaining the streetscape in keeping with the existing dwelling. Also the proposal would provide all-weather cover between the carport and the secondary entrance. 40 I am also satisfied that the proposed works at the rear would not unreasonably reduce light and ventilation to the adjoining property to the south. 41 I am satisfied on the evidence that there would be no breach of the FSR controls. 42 For the above reasons, the appeal is upheld. Conditions The conditions are those in Exhibit 4 as amended. Orders 43 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 8.2002.287.1 lodged with the respondent council on 16 August 2002 to demolish the existing garage, erect a new double garage with roof deck, and alter and add to the front and rear of the existing two-storey dwelling at Lot 3, DP 11540, being No 10 Cobbittee Street, Mosman, is approved subject to Conditions 1 to 39 in Annexure A. 3. The exhibits with the exception of Exhibits E, F and 4 are returned. S J Watts Commissioner of the Court sw In the Land and Environment Court of New South Wales No. 11496 of 2003 Brian and Debbie Curren Applicant Mosman Council Respondent Order The Court orders that: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 8.2002.287.1 lodged with the respondent council on 16 August 2002 to demolish the existing garage, erect a new double garage with roof deck, and alter and add to the front and rear of the existing two-storey dwelling at Lot 3, DP 11540, being No 10 Cobbittee Street, Mosman, is approved subject to Conditions 1 to 39 in Annexure A. 3. The exhibits with the exception of Exhibits E, F and 4 are returned. Ordered: 19 May 2004 By the Court Susan Dixon Registrar sw Conditions of development consent Annexure A Brian and Debbie Curren v Mosman Council Premises: No 10 Cobbittee Street, Mosman Approved Plans and Documentation 1A The development must be carried out in accordance with the following stamped approved plans and documentation, except where amended by later conditions of consent: Appeal No: 10496 of 2003 Plan Numbers Date of Plan Prepared By 04E and 05E April 2004 Red Rock Design LP01B and LP04B April 2004 Liz Leuchars Garden Design Prior to the release of the construction certificate The following conditions must be satisfied prior to the release of the Construction Certificate. Conditions may require the submission of additional information with the Construction Certificate application. Applicants should also familiarise themselves with conditions in subsequent sections and provide plans in accordance with any design requirements contained therein. Construction Certificate Application Plans 1. Two copies of architectural and Structural Engineer's plans must be submitted with the Construction Certificate application. The structural engineering plans must be signed by a qualified practicing Structural Engineer with corporate membership of the Institute of Engineers Australia or who is eligible to become a corporate member and has appropriate experience and competence in the related field. The plans are to incorporate and note any changes from the approved development application plans as required by conditions of this consent. For applications involving alterations and additions, one set of plans should be coloured which indicate the extent of new works. Dilapidation Report – Council Assets 2. To assist with an assessment of claims for the refund of the security deposit over Council's property, a dilapidation report must be submitted. The report must document and provide photographs that clearly depict any existing damage to the road, kerb, gutter, footpath, driveways, street trees, street signs or any other Council assets in the vicinity of the development. Any damage not shown in this manner will be assumed to have been caused as a result of the site works undertaken and must either be rectified at the applicant's expense or compensated by deduction from the security deposit. Excavation, Backfilling and Support for Neighbouring Buildings 3. Excavation works shall not commence prior to the issue of the Construction Certificate or the issue of any relevant notices to adjoining owners, the Principal Certifying Authority or Council as required by other conditions of this consent. Retaining Walls 4. If soil conditions require it, retaining walls or other approved methods necessary to prevent the movement of soil, together with associated stormwater drainage measures, shall be designed and by a civil engineer or other appropriately qualified person. Details of any retaining walls shall accompany plans and specifications submitted with the Construction Certificate application. Sydney Water 5. The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to "Your Business" section of Sydney Water's web site at www.sydneywater.com.au then see Building & Renovating under the heading Building & Renovating, or telephone 13 20 92. The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate. Long Service Levy 6. In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986 , the applicant shall pay a long service levy at the prescribed rate of 0.2% of the total cost of the work to either the Long Service Payments Corporation or Mosman Municipal Council for any work costing $25,000 or more. Security Deposit 7. A cash deposit or bank guarantee to the value of $2,500.00 in favour of Council shall be provided for the making good any damage caused to Council property. A request for a refund of unused funds may be made following the completion of works and an inspection of the property by Council.] Materials & Finishes 8. Materials and finishes shall be complimentary to the character and streetscape of the area. Details of finished external surface materials, including colours and texture, must be submitted to the satisfaction of the Accredited Certifier prior to the issue of the Construction Certificate. Driveway 9. 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. [AS5] 10. 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.[AS9] 11. Longitudinal sections are required in order to ensure that vehicles will not scrape their undercarriage. The sections must be designed for levels on both sides of the vehicular crossing and driveway, and must be in accordance with the ground clearance requirements specified in Australian Standard 2890.1-1993, as well as the grades and dimensions for vehicular crossings outlined in Council's standard specification for the ?Construction of Vehicular Crossing by Contract". The horizontal and vertical scale used to plot the longitudinal section should be 1:25. The longitudinal sections should commence at the centre line of the carriageway of the road pavement and extend to the carport. A certificate to this effect shall be submitted from a qualified engineer or architect to the Accredited Certifier prior to issue of a construction certificate. [AS11] 12. The applicant will be required to submit an "Application to Connect to Council's Stormwater System" prior to connecting to Council's drainage system. Application forms are available from the Customer Support Team. The application must be made prior to the issue of the construction certificate. Prior to the Commencement of Site Works The following measures must be satisfied prior to the commencement of site works, including any works relating to demolition, excavation or vegetation removal. Notice of intent to commence site works 13. In accordance with Section 81A(2) of the Environmental Planning and Assessment Act 1979 , no site works (including building works, demolition, excavation or the removal of vegetation) are to commence until: the Construction Certificate has been issued; the person benefiting from the consent has appointed a Principal Certifying Authority (PCA) by way of completing Form 7A (attached at the end of the consent); in instances where Council is not the PCA, the PCA has, no later than 2 days before the building work commences, notified Council of his or her appointment by way of forwarding a completed copy of Form 7A and notified the person benefiting from the consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work by way of completing Form 7B (attached at the end of this consent). In instances where Council is the PCA, Council has completed Form 7B if necessary and forwarded it to the person benefiting from the consent. the person benefiting from the consent, if not carrying out the work as an owner-builder, has (by way of completing Form 7C): Ø appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved; and Ø notified the PCA of any such appointment; and Ø unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work; and Ø the person benefiting from the consent has given Council at least 2 days' notice of the person's intention to commence the erection of the building by way of completing Form 7D. Home Building Act 14. In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, there shall be such a contract in force. Evidence in the form of a copy of the contract must be provided to the Principal Certifying Authority. If the work is to be undertaken by an owner-builder, a copy of the owner-builder permit issued under the Home Building Act 1989 must be provided to the Principal Certifying Authority. Protection of adjoining areas 15. If site or building works will: cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe; or involve the enclosure of a public place; or have the potential to damage adjoining private land by way of falling objects then a temporary hoarding, fence or awning must be erected between the work site and the adjoining area. Any such hoarding, fence or awning must be removed when the work has been completed. The fence must be constructed prior to the commencement of works and where adjoining public land shall be covered in cyclone wire mesh to discourage the fixing of posters or graffiti. Sediment & erosion controls 16. Temporary sedimentation and erosion controls shall be constructed prior to commencement of any site works in order to prevent the discharge of sediment from the site. The controls shall be designed and installed in accordance with the requirements of the NSW Department of Conservation and Land Management's " Urban Erosion and Sediment Control " manual. Note: this document is now available from the Department of Infrastructure, Planning and Natural Resources. Lapsing of consent if site works not commenced 17. In accordance with Section 95(1) of the Act, this consent shall lapse unless work has physically commenced on the land within 5 years from the date of the consent or in instances where no work is required, the use has commenced within 5 years from the date of the consent. Public liability insurance 18. Public liability insurance to the value of $5,000,000 must be taken out by the builder or owner to protect any person, firm or company from injury, loss or damage sustained as a consequence of the carrying out of site works, including all excavation, demolition and construction works. A copy of the policy must be provided to Council or the Accredited Certifier. During Site Works / Construction The following conditions must be satisfied during site and construction works. Compliance with the Building Code of Australia 19. All works are to be carried out in accordance with the requirements of the Building Code of Australia. Demolition 20. All demolition work must be carried out in accordance with the provisions of Australian Standard 2601-2001: The Demolition of Structures . 21. Where asbestos material shall be removed or disturbed as a result of any proposed demolition, alteration or addition, all work must be carried out by a person licensed under Chapter 10 of the Occupational Health and Safety Regulation 2001 and undertaken in accordance with the requirements of clause 29 of the Protection of the Environment Operations (Waste) Regulation 1996 . All asbestos to be removed must be disposed of at a tip recommended by the NSW Environment Protection Authority and under no circumstances shall be re-used or sold. Signs for Building and Demolition Sites 22. A sign must be erected in a prominent position on any work site on which building work or demolition work is being carried out: a. Showing the name, address and telephone number of the principal certifying authority for the work; b. Showing the name of the person in charge of the work and a telephone number at which that person may be contacted outside work hours; and c. Stating that unauthorised entry to the work sire is prohibited. Any such sign shall be maintained whilst the building work or demolition work is being carried out, but must be removed when the work has been completed. This condition does not apply in relation to building work or demolition work that is carried out inside, and does not affect the external walls of, an existing building. Site Work Hours 23. In order to maintain the amenity of adjoining properties, audible site works shall be restricted to between 7.00am and 6.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. Inaudible site works may also take place between 7.00am and 8.00am on Saturdays. No site works shall be undertaken on Sundays or public holidays. Unless otherwise approved within a Construction Traffic Management Plan, construction vehicles, machinery, goods or materials shall not be delivered to the site outside the approved hours of site works. Excavation, Backfilling and Support for Neighbouring Buildings 24. All excavations and backfilling must be executed safely and if necessary properly guarded in accordance with appropriate professional standards to prevent them from being dangerous to life or property. 25. Sedimentation and erosion controls must be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority's satisfaction. Council Property 26. The land and adjoining areas shall be kept in a clean and tidy condition at all times. No construction vehicles, building materials, waste, machinery or related matter shall be stored on the road or footpath for the duration of works unless separate approval has been obtained from Council's Traffic Committee for the establishment of a Construction Zone. Under no circumstances will any person be allowed to mix or dispose of concrete, mortar or slurry within Council property. 27. The levels at the boundary alignment of the property along the Cobbittee Street frontage shall be defined by the existing levels. 28. The existing vehicular crossing will become redundant and the crossing must be removed, and kerb and gutter and concrete paving constructed in accordance with Council's standard specification, at the applicant's expense. [AS16] Protection of Landscape Features 29. All natural landscape features including trees and other vegetation, natural rock outcrops, soil and watercourses shall remain undisturbed except where affected by necessary works detailed on approved plans. Water Conservation 30. To minimise domestic water consumption, water conservation devices with an AAA rating must be used, including low flow tap and shower head roses, dual flush toilets and six litre/minute flow regulators in all bathroom basins, kitchen and laundry sinks. Local Government Act 1993 31. This consent does not authorise the carrying out of any of the following activities which require the separate approval of Council under Section 68 of the Local Government Act 1993 : Place a waste storage container in a public place swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway Note: A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence under Sections 626 and 627 of the Local Government Act 1993 . Approved Plans 32. A copy of the stamped approved plans must be kept on site for the duration of site works and be made available upon request to either the Principal Certifying Authority or an officer of the Council. Critical Stage Inspections 33. To ensure building works are carried out properly and in accordance with the conditions of this consent, with the Building Code of Australia and or with relevant Australian Standards, the following critical stage inspections are to be carried out: • at the commencement of the building work; • after excavation for, and prior to the placement of, any footings; • prior to pouring any in-situ reinforced concrete building element; • prior to covering of the framework for any floor, wall, roof or other building element; • prior to covering waterproofing in any wet areas; • prior to covering any stormwater drainage connections; • fire separation if the building is within 900mm of the property boundary prior to any occupation certificate being issued in relation to the building; • smoke alarms prior to any occupation certificate being issued in relation to the building; and • final inspection after the building work has been completed and prior to any occupation certificate being issued in relation to the building. The critical stage inspections must be carried out by the Principal Certifying Authority PCA, or if the PCA agrees, by another certifying authority excepting the final inspection which must be carried out by the PCA. Notes: Records of the above critical stage inspections will be required to be submitted prior to the release of the Occupation Certificate – see later conditions of consent. If you intend engaging Council to undertake the inspections, please telephone the area Building Surveyor or Council's Case Officer on 9978 4044 to arrange a suitable time. Record of Inspections Carried Out 34. 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: · the development application and construction certificate number; · the address of the property at which the inspection was carried out; · the type of inspection; · the date on which it was carried out; · the name and accreditation number of the certifying authority by whom the inspection was carried out; and · whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out. Prior To Occupation The following condition must be satisfied prior to occupation of the development. Compliance Certificates and Inspection Records 35. 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. Occupation Certificate 36. Occupation or use, either in part or full, shall not take place until an Occupation Certificate has been issued. The Occupation Certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with. Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council. During Occupation The following conditions must be satisfied during occupation or use of the development. Noxious Weeds 37. To prevent the spread of undesirable and invasive species and to ensure the preservation of urban bushland, all noxious weeds shall be removed and continually suppressed. A list of noxious weeds may be obtained from Council or viewed on its web site at http://www.mosman.nsw.gov.au and then under "Environment" and "Trees and Weeds". Storage Area 38. The sub floor storage area must not be converted to habitable space without the consent of Council. 39. No door or side panel is to be added to the carport. S J Watts Commissioner of the Court sw Advice / Notes The following points are issued as advice to the applicant. They do not form conditions of the Notice of Determination. Headings such as "Prior To The Release Of The Construction Certificate" together with bolded notes that immediately follow, form part of this Notice of Determination. Conditions under the respective headings shall be read in the context of the heading and note. If you are unsatisfied with this determination, Section 97 of the Act gives you the right of appeal to the Land and Environment Court within 12 months of the determination date. Other public authorities may have separate requirements and should be consulted in the following respects: Australia Post for the positioning and dimensions of mail boxes in new commercial and residential developments; AGL Sydney Limited for any change or alteration to gas line infrastructure; Energy Australia for any change or alteration to electricity infrastructure or encroachment within transmission line easements; Telstra, Optus or other telecommunication carriers for access to their telecommunications infrastructure. This decision does not ensure compliance with the Commonwealth Disability Discrimination Act 1992 . Applicants may wish to investigate their potential for liability under that Act. Failure to comply with the relevant provisions of the Act and/or the conditions of this consent may result in the serving of penalty notices or legal action through the Land and Environment Court. In accordance with section 81A of the Act, the person benefiting from this consent is notified that if Council is engaged as the Principal Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading "Critical Stage Inspections" in this consent. If additional inspections are required, further notice will be provided. (iv) All references to "the Act" under this consent relate to the Environmental Planning and Assessment Act 1979. 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.