Land and Environment Court of New South Wales CITATION : Aksa Property Developments Pty Limited v Ku-ring-gai Council [2004] NSWLEC 585 APPLICANT: PARTIES : Aksa Property Developments Pty Limited RESPONDENT: Ku-ring-gai Council FILE NUMBER(S) : 10823 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Good design particularly streetscape under SEPP53 - Visual privacy - Visual bulk - Solar access - Tree loss - and - Resident submissions. LEGISLATION CITED: State Environmental Planning Policy No 53 - Metropolitan Residential Development, (SEPP53) - Ku-ring-gai Planning Scheme Ordinance, (KPSO) - Development Control Plan 43, (DCP43) - Development Control Plan 40, (DCP40) - Development Control Plan 47, (DCP47) - Council's Dual Occupancy Control Code, (Code) - Environmental Plannign and Assessment Act 1979, ss 79C and 97 CASES CITED: DATES OF HEARING: 21/10/2004 EX TEMPORE 10/21/2004 JUDGMENT DATE : APPLICANT: Mr S Kondilios, solicitor SOLICITORS: Maddocks LEGAL REPRESENTATIVES: RESPONDENT: Mr P Rigg, solicitor SOLICITORS: Deacons JUDGMENT: 12 THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 21 October 2004 10823 of 2004 - Aksa Property Developments Pty Limited v Ku-ring-gai Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application to demolish the existing dwelling and to construct two x two-storey dwellings as a detached dual occupancy development at Lot A in DP 376664 being No 39 Bannockburn Road, Turramurra. 2 I visited the land in company with the parties on the morning of the on-site hearing. 3 I have concluded that the application may be approved when considered under s 79C of the Environmental Planning and Assessment Act 1979. The land 4 The land is situated on the eastern side of Bannockburn Road, and is a rectangular shaped parcel of land having a total area of 1,103m2, and a frontage to Bannockburn Road of 28.955m with a dual frontage. The land is generally level, with a slight cross-fall of 2m from south east to north-west. 5 Erected on the land is a single-storey brick and tile dwelling setback 12m to 15m from the front boundary. There is a detached garage located in the far southeastern corner of the property onto Reservoir Road. The front fence comprises a low timber post and rail fence about 400mm in height. 6 Mature and semi-mature trees grace the front and rear of the land. Two mature Quercus robur (English Oak) trees are located on the front boundary. The most significant of these is Tree 2, which is centrally located along the Bannockburn Road frontage. It is 13m in height with a 30m spread and a trunk diameter at breast height, (DBH) of 800mm. The other Oak (Tree 1) is located in the northwestern corner of the front boundary and is 13m high with a 13m-canopy spread and a DBH of 450mm. Both trees are significant elements in the streetscape. 7 The locality is typically low-density residential. The dwellings situated on either side of the subject land are single-storey in well-established gardens. Reservoir Road at the rear on its western side presents as a back lane of paling fences and garages, however, on the eastern side it has more the character of front gardens. 8 The Visual Character Study of 1995 categorises the area as one of single dwellings on single lots, with the majority of construction being within the period of 1920 to 1945. A mix of architectural styles and periods are evident within the wider streetscape. 9 The area presents average lot sizes and fencing arrangements, vehicle accommodation and garden styles so that new buildings and renovations should be designed to address the streetscape character. Relevant planning controls State Environmental Planning Policy No 53 - Metropolitan Residential Development, (SEPP53) 10 Under s 3(1) of SEPP53 the aims are to encourage the provision of housing in metropolitan areas that will: (a) broaden the choice of building types and locations available in the housing market, and (b) make more efficient use of existing infrastructure and services, and (c) reduce the consumption of land for housing and associated urban development on the urban fringe, and (d) be of good design. (2) These aims are to be achieved: (a) by establishing planning controls that will provide opportunities for a variety of housing types, such as multi unit housing or multi unit housing combined with development for any other purpose to be developed in areas the councils of which have not adopted residential development strategies approved by the Minister, and (b) by setting out design principles that, if followed, will achieve built form that responds to the characteristics of its site and location, and (c) by encouraging councils to prepare and adopt residential development strategies and supporting local environmental plans and policies that will achieve those aims, and by allowing local government areas to be exempted from the whole or parts of this policy when those strategies and plans are in place. (3) In addition, this Policy aims to simplify and streamline certain aspects of the planning system relating to residential development: (a) by revising the provisions in a number of State environmental planning instruments to improve their operation, and (b) by restating the revised provisions of those environmental planning instruments in a single policy written in a manner that is easy to understand. 11 Part 3 of SEPP53 applies to dual occupancy development and cl 15 sets out the objectives of this Part: (a) to create opportunities for two dwellings to be developed on a single allotment of land, and (b) through the other provisions of this Policy, to ensure that dual occupancy development is: i. designed and assessed with a full understanding of the opportunities and constraints of each site, and ii. designed and assessed having adequate regard for the design principles contained in Part 5. 12 The proposed detached dual occupancy development is permissible under cll 16 & 17 of SEPP53. 13 Clause 16(1) of SEPP53, states: This part applies to all land to which this Policy applies that is within a residential zone under another environmental planning instrument. 14 Part 3 of SEPP53 applies to land zoned Residential 2(c) in Ku-ring-gai. 15 Clause 17 of SEPP53, states: This part allows development that results in two dwellings being located on the one allotment of land if the land is within a zone, which, under another environmental planning instrument, permits the erection of dwelling houses. Ku-ring-gai Planning Scheme Ordinance, (KPSO) 16 The land is zoned 2(c) Residential under the KPSO and under the land use table to cl 23, dwelling houses are permissible as Column 1 uses, 'with consent'. All forms of multi-dwelling development are prohibited. The Environmental Planning and Assessment Act 1979 was amended in 1998 to require consent for all forms of residential development. 17 Although not relevant to the present application under SEPP53, the general aims for residential zones as set out in Sch 9 of the KPSO are: To maintain and where appropriate, improve the existing amenity and environmental character of Residential zones; and To permit new residential development where it is compatible with the existing environmental character of the locality and has a sympathetic and harmonious relationship with adjoining development. 18 Clause 46(2) of the KPSO provides a maximum height for residential development of 8m. 19 Clause 58A of the KPSO requires consent to be obtained for subdivision. Clause 58B(5) of the KPSO stipulates that the subdivision standards do not apply to approved dual occupancies. 20 Clause 60C of the KPSO provides that the maximum built upon area of land is 60%. Development Control Plan 40, (DCP40) 21 DCP40 relates to waste management. A waste management plan was submitted and there was no issue between the parties. Development Control Plan 43, (DCP43) 22 DCP43 relates to car parking. DCP43 would be overridden by SEPP53 and the proposal meets those requirements. Development Control Plan 47, (DCP47) 23 DCP47 addresses water management. The proposal meets those requirements. Council's Dual Occupancy Control Code, (Code) 24 The Code was adopted in April 2003 and contains sections relating to stormwater management (Section 4.5), privacy (Section 4.3), car parking and accessibility (Section 4.7). In relation to stormwater, the Code reflects Council's Stormwater Management Manual that states: The construction of any permanent structure (such as dwellings, garages, impervious fences, pools) or the placement of fill over a watercourse, drainage depression, piped drainage system or within the path of the 100 year flood is generally not permitted. A natural bushland and riparian zone of a minimum width of either 10 metres (or as otherwise specified by Council) on either side of the top of the bank of a non perennial watercourse or the 100 year flood zone as calculated by a consulting engineer, whichever is the greater, is not to be subject to development without consent of the council. 25 There was no issue between the parties in respect of water management and the proposal satisfies the council's requirements in this regard. The proposal and its history 26 Development application No 874/03 was lodged with the respondent council on 15 July 2003 to demolish the existing dwelling and to construct two x two-storey dwellings as a detached dual occupancy development on the land. 27 The proposal is described in plans by Douglas Sanger Pty Limited, architect referenced 2130 DA.001, 002A, 003A, 004A, 005A, 006A and 007A as amended 17 August 2004. 28 The proposal would result in: Floor Space Ratio Floor Space Ratio Dwellings A and B: 0.45:1 Built Upon Area Built Upon Area Dwellings A and B: 534.9m2 48.0% Height of the Buildings Height to roof ridge - Dwelling A: 8.4m Height to roof ridge - Dwelling B: 8.5m Height to eaves line - Dwelling A: 6.0m Height to eaves line - Dwelling B: 6.0m 29 The setback of Dwelling A would be 9m from garage entry to the front western boundary, 12m from the powder room to the front western boundary, 2m from the northern side boundary and 9.1m to 10.7m from the rear eastern boundary. To the first floor level at the northwestern corner Dwelling A is setback 13.585m. 30 The setback of Dwelling B would be 9.2m from the garage to the front western boundary, 17m from the living room to the front western boundary, 2.07m from the southern side boundary and 5.1m to 8.1m to the eastern rear boundary. To the first floor the setback from the western boundary is 16.827m 31 Mr I Glendenning, consultant town planner, prepared the statement of environmental effects dated July 2003. Notification 32 The application was notified between 17 July 2003 to 7 August 2003 (for 14 working days) to nearby owners and occupants and the council received three submissions: · R.J and K.W Moran - 29 Reservoir Road, Pymble; · A and B Lawless - 27 Reservoir Road, Pymble; · O.C.W Brown - 32 Bannockburn Road, Pymble. 33 The landscape development officer commented that the Landscape Section cannot support the application for several reasons including the dual driveways that were originally proposed. Subsequently, that officer withdrew her objection on the basis that the proposal was amended to include only the one driveway. The council's decision 34 When the appeal was filed on 13 July 2004, the council had not determined the application and hence it is a deemed refusal. 35 However, by notice dated 23 August 2004 the council refused the application. The hearing 36 The parties agreed Mr L Fletcher, town planner, should be the Court-appointed expert in this matter. The issues 37 On 24 August 2004 the council filed a statement of issues. 1. Whether the proposed development is consistent with Clause (3)(1)(d) of State Environmental Planning Policy No. 53 ('SEPP 53'). Particulars: (a) the proposed development fails to be of good design by being inconsistent with Clauses 32(a) (b) (c) and (h) of SEPP 53. 2. Whether the proposed development is consistent with the aims set out in Clause 3(2)(b) of SEPP 53, in that it will not achieve a built form that responds to the characteristics of its site and location. Particulars: (a) the proposed setback of Dwelling B from the western, eastern and northern boundaries will result in the dominance of built form and is uncharacteristic of surrounding development. 3. Whether the proposed development is consistent with Clause 32(a) and (h) of SEPP 53. Particulars: (a) the proposed building setback of Dwelling B from the northern boundary will result in the undue imposition of built form on the street and thereby, an adverse impact on streetscape amenity. Visual and acoustic privacy 4. Whether the proposed development is consistent with Clause 32(b) of SEPP 53. Particulars: (a) Dwelling B is insufficiently set back from the northern and eastern boundary to ensure an appropriate level of visual and acoustic privacy for residents of 2.9 Reservoir Road. (b) Dwelling A and B are insufficiently set apart to ensure an appropriate level of visual and acoustic privacy can be maintained for future residents of the respective dwellings, particularly given the close proximity of Dwelling B to the rear private open space of Dwelling A. (c) The location of private open space for Dwelling B in the rear yard will provide insufficient visual and acoustic privacy for future residents of Dwelling B. Visual bulk 5. Whether the proposed development is consistent with Clause 32(h) of SEPP53. Particulars: (a) the proposed development will result in significant visual bulk impacts to the western and eastern adjoining properties due to the close proximity of Dwelling A and B to the common boundary. (b) The setback of Dwelling B in relation to the northern boundary is insufficient to avoid the undue imposition of building bulk upon the streetscape. Solar access 6. Whether the proposed development is consistent with the objectives of Clause 32(c) of SEPP 53. Particulars: Dwelling A will unduly shade northern elevation and private open space of Dwelling B, particularly during the winter months, given the separation distance between the dwellings. Landscape 7. Whether the proposed development is consistent with the objectives of Clause 32(b) of SEPP 53 and Clause 2(c) of Schedule 9 of the Ku-ring-gai Planning Scheme Ordinance (`KPSO'). Particulars: Consistency with the above clauses cannot be achieved given impact on the two English Oak trees adjacent to the Bannockburn Road and insufficient depth for screen planting along the northern & southern internal boundary. Ku-ring-gai Planning Scheme Ordinance 8. Whether the proposed development is contrary to the aims and objectives stated in Clause 1(a), 1(b), and 2(a)(b) and (e) of Schedule 9 of the KPSO. Particulars: (a) Dwelling A and Dwelling B are inappropriately set back in relation to the western, eastern and northern boundaries and will result in undue imposition of built form over the street and adjoining sites. (b) The proposed building line setbacks are inconsistent with the prevailing setbacks in evidence in the surrounding area and will adversely impact streetscape amenity and the existing character of the surrounding residential zone. (c) Appropriate levels of visual and acoustic privacy cannot be maintained for adjoining sites to the east, given the proximity of the proposed additions and Dwelling B to the common boundaries. (d) The notional lot size associated with Dwelling B will result in the dominance of built form and an adverse impact on the existing character of the surrounding residential zone, given the likely lot dimensions resultant from potential subdivision. Council's Dual Occupancy Development Control Code 9. Whether the proposed development is consistent with Clause 4.9.1 of the Ku-ring-gai Dual Occupancy Development Control Code 2/2003. Particulars: (a) The setback of Dwelling A and Dwelling B will result in undue dominance and outlook over both dwellings. (b) The prevailing building line setback between residential developments in the surrounding locality will not be maintained. (c) The separation distance between Dwelling A and B is insufficient to ensure an appropriate level of amenity for future residents. (d) The setback of Dwelling A & B from the northern boundary will not maintain streetscape amenity. (e) Garaging for dwelling B is not integrated into the front facade and located forward the front building line. Resident objectors 10. Whether the proposal should be approved having regard to the concerns raised by the resident objectors. Particulars: (a) R.J and K.W Moran (29 Reservoir Road, Pymble); (b) A and B Lawless (27 Reservoir Road, Pymble); (c) O.C.W Brown (32 Bannockburn Road, Pymble). 38 The following emerged as the salient issues: · Good design particularly streetscape under SEPP53; · Visual and acoustic privacy; · Visual bulk; · Solar access; · Tree loss; and · Resident submissions. The evidence and findings Good design particularly streetscape under SEPP 53 39 This aspect of the design was addressed by the applicant by the reorientation of the garage for Dwelling A, so the garage door do not face the street and the retention of the two mature Oak trees to screen the dwelling in views from the street. The council sought at least a 12m setback from Bannockburn Road in accordance with the Code, however, given the retention of the Oak trees it was agreed that the proposal could accommodate a reduced setback. At one stage, the council officers suggested an even greater setback of 15m. However, Mr Fletcher, the Court-appointed town planner, who being aware of setbacks in the vicinity, in the same street block, and given the retention of the Oak trees was satisfied that the proposed would be acceptable in this case. I am also satisfied that this issue would not cause the refusal of the application. Visual privacy 40 There were privacy concerns for people in the new dwellings looking out of the first floor bedroom and study windows. However, Mr Fletcher examined this and concluded that the separation between buildings and the nature of the use of those rooms did not warrant any further amendment of the plans. I accept that evidence. I consider this would not be a reason to refuse the application. Visual bulk 41 The proposal complies with the site coverage, FSR, height controls of the council's Code and I have concluded that this issue would not be a reason to refuse the application. Solar access 42 Mr Fletcher has assessed the shadow diagrams in Exhibit D in his town planning report at pp 8 and 9 in Exhibit 3 and considered the proposal to comply with the council's Code in this regard. The key issue was the overshadowing of the property to the south at No 37 Bannockburn Road and Dwelling B by Dwelling A. The buildings have been staggered in plan to improve solar access. I am satisfied that this issue would not be a reason to refuse the application. Tree loss 43 The applicant is willing to retain both the mature Oak trees, and despite the need to remove a lower branch of Tree No 2, the council is now content that this issues has been resolved. I have examined those trees and with their retention I am also satisfied with the proposed design and landscaping. Resident submissions 44 One key submission related to the need to avoid obstruction to public access along Reservoir Road. This has been addressed by Condition 31 requiring the preparation of a site management plan to indicate the planned phases of the construction work, erosion and drainage management, tree protection measures, areas nominated for storing materials, site access and where vehicle parking is proposed during construction. 45 For the above reasons, the appeal is upheld by consent. Conditions 46 The conditions are those in Exhibit 4. Consent orders 47 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 874/03 lodged with the respondent council on 15 July 2003 to demolish the existing dwelling and to construct two x two-storey dwellings as a detached dual occupancy development at Lot A in DP 376664 being No 39 Bannockburn Road, Turramurra, is approved subject to Conditions 1 to 65 in Annexure A. 3. The exhibits are retained. S J Watts Commissioner of the Court sw Conditions of development consent Annexure A Aksa Property Developments Pty Limited, ABN 11087356349 v Ku-ring-gai Council No 39 Bannockburn Road, Turramurra Development Application No: 874/03 GENERAL CONDITIONS 1. The development must be carried out in accordance with plans labelled Job No 2130 DA.002a, DA.003a, DA.004a, DA.005a, DA.006 and DA.007a, all drawn by Douglas Sanger Pty Ltd, with the ridge height of both buildings not to exceed RL 158.0m AHD; revised hydraulic design including OSD calculations prepared by Nasseri Associates dated 17 August 2004; and Landscape Plan L01, revision B, prepared by Patio Landscape Architecture & Design (Job No 03007) dated October 2004, except where amended by the following conditions: 2. All building works shall comply with the Building Code of Australia. 3. The submission of the approved plans to Sydney Water, before any work is commenced to ensure that the proposed structure meets that Authority's By-Laws. Failure to submit these plans before commencing work will render the owner liable to a penalty and may result in the demolition of work. 4. The approved buildings shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plans and an Occupation Certificate has been issued. 5. For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plan and this Consent and Construction Certificate shall be kept on site at all times. 6. For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the road or footpath without the written approval being obtained from the Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be. 7. HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant. Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment. 8. For the purpose of public safety, a sign shall be erected on the site prior to any work commencing which is clearly visible from a public place stating that unauthorised entry to the site is not permitted and showing the name of the builder or another person responsible for the site and a telephone number for contact outside working hours. The sign may only be removed on satisfactory completion of the works. 9. The applicant is advised that the Construction Certificate plans and specifications must comply with the provisions of the Building Code of Australia. 10. Toilet facilities are to be provided, within the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. 11. The demolition is to be carried out in accordance with the guidelines contained in Australian Standard 2601-1991: The Demolition of Structures. 12. Demolition work, including removal of material or debris from the site, on any building in a residential area shall only be carried out during the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. 13. A person taking down or demolishing or causing to be taken down or demolished any building or part thereof shall, upon identifying or suspecting that asbestos is present in the building, immediately notify the Workcover Authority. The Authority is the controlling body for the safe removal, handling and disposal of asbestos. The Authority supervises and monitors contractors engaged in asbestos removal. The requirements and standards imposed by the Authority, its consultants or contractors shall be complied with. 14. All combustible material shall be removed from the site on a daily basis. Material shall not be burnt on the site. 15. Materials salvaged from a demolition may be stored on site provided they are non combustible, neatly and safety stockpiled and not likely to become a harbourage for vermin. 16. Trees and vegetation on a site shall not be disturbed except with the approval of the Council. 17. Waste storage facilities for Dwelling A and Dwelling B shall be provided in accordance with Council's Waste Management Development Policy. 18. The provision of temporary sediment and erosion control facilities and measures are to be installed, prior to the commencement of any works on the site to minimise and/or eliminate unnecessary erosion and loss of sediment. These facilities are to be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps are to be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority, with all silt being removed from the site, or to an approved location within the site. 19. The relocation or adjustment of any utility service facilities are to be carried out by the Applicant in accordance with the requirements of the utility authority at no cost to Council. 20. Stormwater runoff from new hard surfaces generating runoff or landscaped areas that are not at natural ground level shall be piped to the street drainage system. If a direct connection to the gutter is not possible, note that the requirements of Section 5.4 of Council's Water Management DCP 47 in relation to hydraulic grade line will apply, as well as the requirement to construct a new access pit at the point of connection and the arborist's advice regarding pipelaying in relation to trees to be retained. 21. For stormwater control, an On-site Stormwater Detention System is to be provided in accordance with Council's Stormwater Management Manual. Separate detention systems are to be provided for each residence, unless the system is sited in a common area. An overflow is to be incorporated that will direct any excess flow to the downstream drainage system and subsoil drainage is to be provided from the underside of the sediment control sump to the outlet line or other approved location. The system is to be cleaned regularly and maintained to the satisfaction of Council. NOTE 1: The on-site stormwater detention system and property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist's certification that such excavation will not affect the longevity of the subject tree(s). NOTE 2: If the applicant wishes to vary the prescribed storage and outflow volumes contained in Council's Stormwater Management Manual, a detailed analysis must be provided following the guidelines set out in Council's requirements for on-site detention with full computations accompanying the submission including a flood routing analysis. NOTE 3: All roof, driveway and other hard-surface runoff water is to be intercepted and directed to the on-site stormwater detention system. If some areas of hard-surface are unable to be directed to the detention system an adjustment to the rate of discharge is to be made to attain the required site discharge. NOTE 4: If a landscaped surface type detention system is used the storage volume required is to be increased by 20%. NOTE 5: The standard Council On-site Stormwater Detention Calculation Sheet is to be completed and included on design drawings. OR A rainwater re-use tank system, together with the additional on-site stormwater detention/retention requirements described in chapter 6 of Councils Water Management Development Control Plan 47 (DCP47), shall be provided for the development. DCP47 is available in hard copy at Council and on the Council website. 22. All public footways and roadways fronting and adjacent to the site are to be maintained in a safe condition at all times during the course of the development works. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to the public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where circulation is diverted on to the roadway, clear directional signage and protective barricades must be installed in accordance with AS1742-3 1996 "Traffic Control Devices for Work on Roads" . If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work. 23. The provision of temporary sediment and erosion control facilities and measures are to be installed, prior to the commencement of any works on the site to eliminate unnecessary erosion and loss of sediment. These facilities must be maintained in working order during construction works and up to the completion of the maintenance period. All sediment traps must be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority and Council officers. 24. Driveways and access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard 2890.1 – 2004 "Off-Street car parking". 25. A Tree Preservation Order exists within the Ku-ring-gai Council area whereby the removal, lopping or destruction of any tree exceeding 5.0 metres in height or 4.0 metres in canopy spread (except where exempt as defined under Council's Tree Preservation Order) without prior written consent of Council is prohibited. Release of the Construction Certificate gives automatic approval to the removal ONLY of those trees located on the subject property within the footprint of a proposed new building/structure or within 3.0 metres of a proposed new dwelling. Where this application is for a building/structure other than a dwelling then ONLY trees within the area to be occupied by this building/structure may be removed. Other trees SHALL NOT be REMOVED or DAMAGED without an application being made under Council's Tree Preservation Order. 26. The applicant shall ensure that at all times during the construction period no activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order. 27. Removal of the following tree/s from Council's nature strip to permit vehicular access shall be undertaken at no cost to Council by an experienced Tree Removal Contractor/Arborist holding Public Liability Insurance amounting to a minimum cover of $10,000,000. Tree/Location Grevillea robusta (Silky Oak) / Bannockburn Road nature strip 28. Following removal of the Grevillea robusta (Silky Oak) from Council's nature strip, the nature strip shall be rehabilitated to the satisfaction of Council's Director Open Space at no cost to Council. 29. No tree roots of 50mm or greater in diameter located within the specified radius of the trunk/s of the following, tree/s shall be severed or injured in the process of any site works during the construction period. Tree/Location Radius From Trunk 2 x Quercus robur (English Oak) 5m / Bannockburn Road frontage 30. Approval is given under this development consent for the following tree works to be undertaken to trees within the subject property. Canopy pruning of the following tree which is necessary to accommodate the approved building works shall be undertaken by an experienced Arborist/Horticulturist, with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate: Tree/Location Tree Work Tree 2 - Quercus robur (English Oak) 2 to 3 limbs identified for removal / Centrally located on Bannockburn rd frontage on eastern side of the tree. Note: The canopy pruning shall be undertaken in consultation with the applicants arborist Melanie Howden of Footprint Green Pty Ltd. CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE 31. The Construction Certificate shall not be released until a Site Management Plan is submitted to the Principal Certifying Authority and approved by a suitably qualified professional. The plan shall indicate the planned phases of the construction work, erosion and drainage management, tree protection measures, areas nominated for storing materials, site access and where vehicle parking is proposed, during construction. 32. Details of external finishes as required by conditions of this consent shall be submitted to the Principle Certifying Authority prior to the issue of a Construction Certificate. 33. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate. Note: Required if cost of works exceed $25,000.00. 34. It is a condition of consent that the applicant, builder or developer or person who does the work on this residential building project arrange the Builders Indemnity Insurance and submit the Certificate of Insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Council or other Principal Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the Builder's Indemnity Insurance for residential building work over the value of $12,000 and to satisfy the Council or other Principal Certifying Authority by the presentation of the necessary Certificate of Insurance so as to comply with the applicable requirements of Part 6 of the Home Building Act 1989. The requirements for the Builder's Indemnity Insurance does not apply to commercial or industrial building work or for residential work less than $12,000, nor to work undertaken by persons holding an Owner/Builder's Permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work). 35. The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardize the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project. 36. A contribution is to be paid for the provision, extension or augmentation of community facilities, recreation facilities, open space and administration that will, or are likely to be, required as a consequence of development in the area. TOTAL CONTRIBUTION FOR THIS DEVELOPMENT OF ONE (1) ADDITIONAL DWELLING IS CURRENTLY $12,459.72 . The amount of the payment shall be in accordance with the Section 94 charges as at the date of payment. The charges may vary at the time of payment in accordance with Council's Section 94 Contributions Plan to reflect changes in land values, construction costs and the consumer price index. This contribution shall be paid to Council prior to the release of the Construction Certificate and the amount payable shall be in accordance with the Council's adopted Section 94 Contributions Plan for Residential Development, effective from 20 December 2000, calculated for additional persons as follows: 1. Preparation of New Residents Kit $38.43 2. New Resident Survey $34.55 3. New child care centre (including land acquisition and construction of facility) $882.46 4. Additions/alterations to Acron Rd child care centre for additional 20 places $8.44 5. New Library bookstock $62.83 6. New Public Art $10.26 7. Acquisition of Open Space - Turramurra $27,478.50 8. Koola Park upgrade and reconfiguration $500.82 9. North Turramurra Sportsfield development $3.453.80 10. Section 94 2000-2003 Study and Interim Plan preparation cost $172.69 11. Section 94 Officer for period of Plan 2000-2003 $414.47 To obtain the total contribution figure the following table of occupancy rates is to be used: OCCUPANCY RATES FOR DIFFERENT DWELLING SIZES Small dwelling (under 75 sqm) 1.25 persons Medium dwelling (75 - under 110 sqm) 1.75 persons Large dwelling (110 - under 150sqm) 2.75 persons Very Large dwelling (150sqm or more) 3.5 persons New Lot 3.5 persons 37. Submission, for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate, of a Soil and Erosion Control Plan prepared in accordance with the NSW Department of Housing document "Managing Urban Stormwater – Soils and Construction" (1998) by a suitably qualified and experienced engineer or surveyor. Such controls should include but not be limited to appropriately sized sediment basins, diversion systems, and appropriate controls for each stage of works identified and barrier fencing which maximizes and protects areas which are not to be disturbed. The plan must also specify inspection and maintenance regimes and responsibilities and rehabilitation measures. 38. The Applicant must obtain a Section 73 Compliance Certificate under the Sydney Water Act 1994 . An application must be made through an authorised Water Servicing Coordinator. Please refer to "Your Business" section of Sydney Water's web site at 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 Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design. 39. Prior to issue of the Construction Certificate footpath and driveway levels for any fully new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Council. Such levels are only able to be issued by Council under the Roads Act 1993 . All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings" or as specified by Council. These are issued with alignment levels after completing the necessary application form at Customer Services and payment of the adopted fee. The grading of such footpaths or driveways outside the property shall comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant and the alignment levels fixed by Council may affect these. Approval of this Development Application is for works wholly within the property. DA consent does not imply approval of footpath or driveway levels, materials or location within the road reserve regardless of whether this information is shown on the application documents. Note 1: The construction of footpaths and driveways outside the property, in materials other than those approved by Council, is not permitted and Council may require immediate removal of unauthorised installations. Note 2: When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant Development Application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment. Failure to submit this information may delay processing. 40. To prevent surface stormwater from entering the building, the finished habitable ground floor level(s) of the building shall be a minimum of 150mm above adjacent finished ground level(s). The entire outside perimeter of the building must have overland flow escape routes which will protect all finished floor levels from flooding during times of complete subsurface drainage blockage. This requirement is to be demonstrated on submitted Construction Certificate drawings. 41. The property drainage system shall be designed and based upon a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) for impervious surfaces and in accordance with Council's Stormwater Management Manual. Design drawings and calculations are to be prepared by a suitably qualified and experienced hydraulic engineer and submitted for approval by the Principal Certifying Authority (PCA) prior to issue of the Construction Certificate. NOTE 1: The property drainage system is not to require excavation or fill underneath the canopy areas of any trees to be retained unless as approved by a qualified arborist's certification that such excavation will not affect the longevity of the subject tree(s). NOTE 2: If the proposed drainage system involves piping underneath or within the building then the designer is to certify that the design is in accordance with AS3500.3.2:1998 and the BCA. NOTE 3: All enclosed floor areas, including habitable and garage floor levels, are to be safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices. OR Prior to issue of the Construction Certificate the applicant shall submit, for approval by the Principal Certifying Authority (PCA), full construction drawings for the proposed method of achieving Council storage volume requirements for an on-site stormwater detention/retention system. The design shall be generally based on the concept plan D1326 by Nasseri Associates, and shall be advanced for construction issue purposes. The storage volumes and design shall comply with Councils Water Management DCP 47 (available on the Council website and at Council customer services), the manufacturers' specifications and the relevant plumbing codes. Rainwater tank(s) shall be designed to capture and retain runoff from a minimum 100m 2 roof area for each 5000 litres of storage. Overflow shall revert to the main drainage system. The design and construction plans, with all supporting documentation, are to be prepared by a qualified and experienced civil/hydraulic engineer and may be incorporated on the overall site drainage plan. 42. The stormwater drainage design submitted, Nasseri Associates Report No. D1326, Sheets 1 to 9, dated 19 August 2004, requires amendment in that Pit 8 is to be relocated to the southern side of the driveway and line 7-8 is to be laid under the driveway. These amendments are required to reduce impacts on trees. 43. To preserve the following tree the driveway shall be constructed as per the specifications outlined in the tree report by Footprint Green Pty Ltd, dated 31 May 2004. Plans of the driveway construction shall be submitted to the Principal Certifying Authority for approval prior to the release of the Construction Certificate. Tree/Location Tree 2 - Quercus robur (English Oak) / Centrally located on Bannockburn Road frontage 44. The landscape works must be installed and maintained in accordance with the approved landscape plan or other landscape conditions. The final Certificate of Compliance shall be issued only where landscape works as approved have been satisfactorily installed. 45. The following trees must be maintained in the same condition as found prior to commencement site development work. The final Certificate of Compliance may only be issued if the trees are undamaged. Tree/Location 2 x Quercus robur (English Oak) / Bannockburn Road frontage 46. The applicant shall ensure that no underground services (ie water, sewerage, drainage and gas) shall be laid beneath the canopy of any tree protected under Council's Tree Preservation Order, located on the subject allotment and adjoining allotments. A plan detailing the routes of these services shall be submitted to the Principal Certifying Authority for approval prior to the release of the Construction Certificate. CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING 47. Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works. 48. Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act, 1979 (the 'Act') are to be complied with: a. A Construction Certificate is to be obtained in accordance with Section 81A(2)(a) of the Act. b. A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A(2)(b) of the Act. c. Council is to be notified in writing, at least two (2) days prior to the intention of commencing buildings works, in accordance with Section 81A(2)(c) of the Act. d. Should the development be certified by a Principal Certifying Authority other than Council, a fee for each Part 4A Certificate is to be paid to Council on lodgment of those Certificates with Council. 49. To preserve the following tree/s, no work shall commence until temporary measures to avoid soil compaction (eg rumble boards, gravel beds) beneath the canopy of the following tree/s is/are installed: Tree/Location Tree 2 - Quercus robur (English Oak) / Centrally located on Bannockburn Road frontage 50. To preserve the following tree/s, no work shall commence until the area beneath the canopy of the following tree/s is fenced off at the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site. Tree/Location Radius in Metres 2 x Quercus robur (English Oak) 5m / Bannockburn Road frontage Liquidambar styraciflua (Jacaranda) 3m / Reservoir Road boundary, north-eastern corner 2 x Jacaranda mimosifolia (Jacaranda) 3m / Reservoir Road boundary, north-eastern corner 51. The tree protection fence shall be constructed of galvanised pipe at 2.4 metre spacings and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres prior to work commencing. 52. Upon completion of the installation of the required tree protection measures you are required to contact Council on telephone 9424 0888 or facsimile 9418 1117 to arrange an inspection of the site, in this regard a minimum of 24 hours notice is required. Following the carrying out of a satisfactory inspection and subject to the payment of all relevant monies and compliance with any other conditions of approval, work may commence. CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION 53. A copy of the Section 73 Sydney Water compliance certificate must be submitted to the Principal Certifying Authority prior to issue of the Final Compliance Certificate. 54. Prior to issue of an Occupation Certificate, the applicant shall create a Positive Covenant and Restriction on the Use of Land under Section 88B of the Conveyancing Act 1919, burdening the property with the requirement to maintain the on-site stormwater detention and/or retention facilities on the property. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instrument for protection of on-site detention facilities" (available from Council on request) and to the satisfaction of Council. Registered title documents showing the covenants and restrictions must be submitted and approved by the Principal Certifying Authority (PCA) prior to occupation, issue of an Occupation Certificate. For existing Titles, the Positive Covenant and the Restriction on the use of Land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the On-Site Detention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms. 55. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, the following must be provided to Council (attention Development Engineer): a. A copy of the approved Construction Certificate stormwater detention/retention design for the site, and b .A copy of the works-as-executed drawing of the as-built on-site detention/retention system, and c. The Engineer's certification of the as-built system. This condition is required so Council may maintain its database of as-constructed on-site stormwater detention systems, and also applies if the Principal Certifying Authority (PCA) is not the Council. 56. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, any damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) must be fully repaired to the satisfaction of Council Engineers at no cost to Council. 57. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate, the Section 73 Sydney Water compliance certificate must be obtained and submitted to the Principal Certifying Authority (PCA). 58. Prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate (and at the completion of works), the applicant shall submit certification from a consulting civil/hydraulic engineer to the Principal Certifying Authority (PCA), that: a. Construction of the stormwater drainage system (including but not limited to gutters, downpipes, pits, joints, flushing facilities and all ancillary plumbing) has been carried out by a licensed plumbing contractor, and b. The works have been completed in accordance with the approved Construction Certificate drainage plans and the Plumbing and Drainage Code AS3500,.3.2, and c. All enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices. A Works-as-Executed (WAE) drawing of the property stormwater drainage system is to be prepared by a registered surveyor and submitted to the Principal Certifying Authority (PCA) prior to occupation, issue of an Occupation Certificate or issue of the Final Compliance Certificate. The WAE plan shall show the following as built details, marked in red on the approved construction certificate stormwater drawings: a. As built reduced surface and invert levels for all drainage pits and connection points. b. As built reduced level(s) at the approved point of discharge to the public drainage system. c. Gradients of drainage lines, materials and dimensions. 59. Landscape works shall be carried out in accordance with Landscape Drawing No LO1, Revision B prepared by Patio and dated October 2004 submitted with the Development Application. The landscape works shall be completed prior to the release of the Certificate of Occupation and be maintained in a satisfactory condition at all times. 60. On completion of the landscape works/tree planting or screen planting, a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to issue of the Occupation Certificate. BUILDING CONDITIONS 61. Any mechanical ventilation installed in a dwelling shall comply with the requirements of Part 3.8.5.0 of the Building Code of Australia Housing Provisions. Documentary evidence of compliance is to be obtained from a suitably qualified person and submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate. 62. All structural timber members subject to weather exposure shall have a durability class rating of 2 or better in accordance with Australian Standard 1684.2-1999 (National Timber Framing Code), or be preservative treated in accordance with Australian Standard 1604-1980 (Preservative Treatment for Sawn Timbers, Veneers and Plywood). 63. For fire safety an automatic fire detection and alarm system shall be installed throughout the dwelling in accordance with the following requirements: a. A smoke alarm system complying with Part 3.7.2 of the Building Code of Australia Housing Provisions; or b. Smoke alarms which: i. comply with Australian Standard 3786 or listed in the Scientific Services Laboratory Register of Accredited Products (all accredited products should have scribed on them the appropriate accreditation notation); and ii. are connected to the mains and have a standby power supply; and iii. are installed in suitable locations on or near the ceiling and as prescribed under Part 3.7.2 of the Building Code of Australia Housing Provisions. To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority. 64. Termite protection which will provide whole of building protection in accordance with Australian Standard 3660 - "Protection of Buildings from Subterranean Termites" is to be provided. Council has a non chemical policy for termite control but will consider proposals involving physical barriers in combination with approved chemical systems. Handspraying is prohibited. Where a monolithic slab is used as part of a termite barrier system, the slab shall be constructed in accordance with Australian Standard 2870.1 or as designed by a structural engineer but in either case shall be vibrated to achieve maximum compaction. To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate. 65. The following are required details and must be submitted to the Council on completion of the works. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify. a. Wet area waterproofing details complying with the Building Code of Australia. b. Mechanical ventilation details complying with Australian Standard 1684 Mechanical Ventilation & Airconditioning. c. Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code. d. Stormwater disposal details complying with Council's Stormwater Management Manual and/or other conditions of this consent. e. A Compliance Certificate from a suitably qualified person that the dwelling and additions and alterations comply with the relevant deemed to satisfy provisions of the Building Code of Australia. f. Waterproofing of walls/floors below ground level to prevent the entry of water into the building. END S J Watts Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.