Land and Environment Court of New South Wales CITATION : Trueclad Pty Limited v Baulkham Hills Shire Council [2004] NSWLEC 252 APPLICANT Trueclad Pty Limited PARTIES : RESPONDENT Baulkham Hills Shire Council FILE NUMBER(S) : 10076 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Consent :- Conditions of consent Baulkham Hills Local Environmental Plan 1991 LEGISLATION CITED: Development Control Plan No 7 Environmental Planning and Assessment Act 1979, ss79C and 97 CASES CITED: DATES OF HEARING: 20/05/04 DATE OF JUDGMENT: 05/20/2004 APPLICANT Mr J Maston, barrister, instructed by Mr M Seymore, solicitor SOLICITOR Ross Selvaggio & Associates LEGAL REPRESENTATIVES: RESPONDENT Mr Hogan-Doran, barrister, instructed by Mr M Saliba, solicitor SOLICITOR Coleman & Greig JUDGMENT: Trueclad Pty Limited v Baulkham Hills Shire Council Judgment 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the Baulkham Hills Shire Council (the council) to impose conditions in approving a development application to erect villa housing comprising eight (8) units at Lot 3, DP 18476 and Lot 21, DP 635130, being Nos 192 - 194 Pennant Hills Road, Oatlands. 2 I have concluded that the application when assessed under s 79C of the Environmental Planning and Assessment Act 1979, and would be satisfactory. The land 3 The land is situated on the southern side of Pennant Hills Road, near Bettington Road at Oatlands. The land has a frontage to Pennant Hills Road of 25.455m and depth of around 68.55m and is subject to road widening across the frontage. Relevant planning controls Baulkham Hills Local Environmental Plan 1991, (BHLEP) 4 Under the BHLEP the land is zoned Residential 2(a3) and villa houses are permissible with consent. Development Control Plan No 7 – Villa Houses, (DCP7) 5 DCP7 states: Each application will be considered on the individual circumstances and merits of the case in terms of the stated objectives of the plan" and variations may be considered "where it may be demonstrated that the objectives of the plan are attained notwithstanding the variation. Setbacks - Facing Building 6 DCP 7 requires facing buildings to be setback an equivalent width of 2H where H = average height of facing building i.e. 10.4 metres. The plans indicate that there is a minimum distance of 6.8 metres between the garages. 7 Ms Johnston considered the application supportable for reason that: - · The variation relates to the separation between opposing garages; · There are no facing windows; · The variation does not compromise the privacy or amenity of units and will not result in overlooking; · The separation between the buildings provides adequate width for manoeuvring within the access driveway. Urban Design 8 Ms Johnston indicated that the application was assessed having regard to the Urban Design Guidelines adopted by the Council on 4 September 2001. The merits of the application in terms of urban design and design quality principles are: · The development responds to the attributes of the site and will contribute to the quality and identity of the area; · The massing of the built form and the proposed roof form is appropriate, both to the surrounding existing and future residential character; · The development satisfies the density requirements prescribed in DCP7 and responds to the availability of infrastructure, services and facilities; · The development provides a high level of amenity to all dwellings including adequate solar access, visual and acoustic privacy and units capable of adaptability. Drainage 9 The proposal being located in the Upper Parramatta River catchment an on-site detention tank is required. A deferred commencement condition is proposed to allow the applicant to apply for an easement over down-hill properties to provide for discharge of stormwater. 10 It is proposed to provide two (2) on-site storage tanks (below ground systems) to satisfy the council's requirements. 11 Ms Johnston was satisfied that the proposal would not result in the capacity of the downstream infrastructure being exceeded. The construction of OSD would result in a lower discharge rate than for pre-development. Traffic 12 After assessing the existing traffic environment, the impact on traffic of the proposal and cumulative traffic impacts, Ms Johnston was satisfied that there would be no need for any new infrastructure. 13 She noted that sight distance would be acceptable and access would be restricted to left in and out only with a central concrete median. 14 The Roads and Traffic Authority advised that a Road Widening Order under Section 25 of the Roads Act 1993 affects the land, and the RTA would not object to the development application based on property acquisition requirements, provided that all new structures are erected clear of the portion required for future road widening, and that all road works associated with the development are designed mindful of the needs of the future widening. This is proposed. The proposal and its history 15 Development application No 1924/03/HB was lodged with the respondent council on 25 November 2002 to erect 1 x 2 bedroom and 7 x 3 bedroom villa houses on the land. 16 Each three-bedroom villa would have a double garage, and the two-bedroom unit would be provided with a single garage and carport. Four visitor spaces are proposed off the central driveway. Vehicular access for Units 1 - 3 and 6 - 8 would be via a central driveway from Pennant Hills Road, and Units 4 and 5 would be accessed via an existing access driveway. 17 The proposal would be set back 10m from the existing front boundary and 6m from the proposed front boundary. The front courtyard fencing would not encroach the road widening area and would be compatible with the height, size and scale of front fencing for adjoining developments along Pennant Hills Road. Notification 18 The application was notified to nearby owners and occupants and the council received four (4) submissions. The issues raised in the submissions are summarised, as follows: Issue Comment Outcome Connection to the existing Assessment of the drainage This issue does not warrant drainage system servicing requirements of the proposed the amendment or refusal of Lots 22, 23 and 24 at the rear development shows that the the application. of Lot 21, is unsatisfactory as current easement is sufficient the volume of stormwater will to cater for the stormwater be in excess of the capacity of from the proposed the current 150mm pipe. development. The private road width of 4 The applicant has provided a This issue does not warrant metres does not allow or passing bay 9 metres in length the amendment or refusal of passing of vehicles and is a to allow for the passing of the application. safety concern. The private vehicles. road should be widened to 7 metres. The two double garages 4 visitor spaces are provided This issue does not warrant facing onto the private road with access from the central the amendment or refusal of have no provision for visitor driveway. DCP requirements the application. parking. are therefore achieved. Vehicle access off Pennant Traffic comments reveal that This issue does not warrant Hills Road will cause traffic left in /left out access only is the amendment or refusal of congestion and safety for to be provided to the the application. pedestrians. development. More existing trees should be Of the twenty-five (25) trees This issue does not warrant retained. on the site, eleven (11) of the amendment or refusal of these are indicated for the application. retention and fourteen (14) for removal. Of the fourteen (14) trees to be removed, three (3) are weed species. Council's Tree Management Co-ordinator raised no objection to the removal of the trees. 19. Addressing the concern for overdevelopment of the area, Ms Johnston stated that the site is zoned Residential 2(a3), which permits villa housing development and the proposal complies with the council's density requirements. As a result she was of the opinion that this issue would not warrant the amendment or refusal of the application. The council's decision 20. By notice dated 14 October 2003 the council granted conditional consent and the appeal was against Conditions A1(1) and (2) and 29. The hearing 21. The appeal was filed on 23 January 2004. 22. At the hearing the court received the written report of Ms R Johnston, Senior Town Planner of Baulkham Hills Shire Council. 23. The council came to Court prepared to enter into consent orders. The evidence and findings 24. The objectors were notified of the hearing and none was present. 25. I am satisfied that the variation to the minimum setback between facing buildings would not result in any overlooking or compromise the privacy of residents. 26. I am satisfied that the issues raised in the submissions do not warrant the amendment of refusal or the application. I consider the application to be satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979. 27. For the above reasons, the appeal is upheld by consent. Conditions 28. The conditions are those in Exhibit 1 as amended. Orders 29. The orders by consent are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 1924/03/HB lodged with the respondent council on 25 November 2002 to erect eight (8) villa houses at Lot 3, DP 18476 and Lot 21, DP 635130, being Nos 192 - 194 Pennant Hills Road, Oatlands, is approved subject to Conditions 1 to 86 in Annexure A. 3. The exhibits are retained. S J Watts Commissioner of the Court sw Appeal No: 10076 of 2004 Conditions of development consent Annexure A Trueclad Pty Limited v Baulkham Hills Shire Council APPLICANT: XQZ Architecture OWNER: Trueclad Pty Ltd PROPERTY: Lot 3, DP 18476 and Lot 21, DP 635130, Nos. 192-194 Pennant Hills Road, Oatlands DEVELOPMENT: Proposed Villa Housing DATE OF DEFERRED COMMENCEMENT NOTICE: 20 May 2004 Part A - Deferred commencement conditions. A1. Pursuant to the provisions of section 80 (3) of the Environmental Planning and Assessment Act 1979, this development consent shall not operate until the applicant provides to the Council the following: 1. Written evidence of the creation of a right of carriageway 0.425m wide adjacent to the western boundary of lot 21, DP 635130 and 62.2m long, measured from the Pennant Hills Road frontage of lot 22, DP 635130 over existing lot 22, DP 635130 for the benefit of lot 21, DP 635130 and lot 2, DP 18476. An order of the Land and Environment Court pursuant to s.40 Land and Environment Court Act 1979 in respect of such easement and/or a copy of the amended Land Titles from Land and Property Information NSW for all affected properties will be considered satisfactory evidence. 2. Written evidence of the creation of an easement to drain water over the site of existing easements to drain water designated "A" on DP 635130, benefiting lot 21, DP 635139 and lot 2, DP 18476 and burdening lots 22 to 24 (inclusive), DP 635130 and lot 13, DP 229301. An order of the Land and Environment Court Act , 1979 in respect of such easement and/or a copy of the amended Land Titles from Land and Property Information NSW for all affected properties will be considered satisfactory evidence. A2. The applicant must provide to the Council evidence sufficient to enable it to be satisfied of the matters in condition A1 within 12 months or such further period as Council may determine is appropriate upon application being made to Council prior to the period expiring. B. Upon compliance with the requirements of Part A1, a full consent will be issued subject to the following conditions: Part B - General Conditions: 1. Development in accordance with submitted plans (as amended) The development being carried out in accordance with the plans as amended prepared by XQZ Architects dated October 2002, Project No. 200: · 01/10 (site/roof plan) · 02/10 (ground floor plan) · 03/10 (first floor plan) · 04/10 (west elevation) · 05/10 (east elevation) · 06/10 (sections) · 07/10 (site analysis plan) · 08/10 (construction/erosion control plan) and the stormwater drainage plans prepared by Jones Nicholson Pty. Limited Consulting Civil Engineers job number 020551, drawing DC1 (B) dated 20 August 2002. · Statement of Environmental Effects prepared by Mr. Doug McIntyre (architect); · Landscape Plan by Zenith Landscape Designs, drawing no. 02-1456 dated September 2002. 2. Construction Certificate Submission to, and approval by, Council or an Accredited Certifier of a construction certificate. Plans submitted with the construction certificate are to be amended to incorporate the conditions of the Development Consent. A pre-lodgement meeting is required for medium density/Class 2-9 developments if lodging the Construction Certificate Application with Council. Please contact Council's Building Control Section on 9843-0431. 3. Engineering Construction Certificate In order to certify that engineering plans and specifications are in accordance with the Conditions of the Development Consent and Council's Design Guidelines and/or Works Specification, an Engineering Construction Certificate is to be obtained prior to the commencement of any works. To obtain an Engineering Construction Certificate, a completed application form and payment of the appropriate fee is required with the submission of the design plans and specifications for approval. Such plans and specifications are to be prepared by a suitably qualified person or company. The engineering design shall be based on plans of survey showing existing contours and levels prepared by a registered surveyor to Australian Height Datum (AHD). Four (4) copies of the plans and specifications are required to be submitted with the Engineering Construction Certificate application. Please Note : All construction work within the road reserve or any other land under Council's control are to be carried out under the provisions of the Roads Act (1993) and as such, may only be certified and approved by Council. 4. Provision of Parking Spaces The provision and maintenance thereafter of 20 off-street car parking spaces. 5. Enter and Leave in Forward Direction All vehicles are to enter and leave the site in a forward direction and prominent and permanent signposting to this effect is to be provided and maintained. 6. Carparking & Access In order to provide satisfactory access and parking arrangements, the formation, paving, sealing and draining of all access roads, car parking and manoeuvring areas is required. The design of the parking area shall be in accordance with: · Australian Standard 2890.1 – 1993 – "Parking facilities – Off-street carparking" · Council's Development Control Plan No. 102 – "Car Parking" · Council's Design Guidelines for Subdivisions and Developments The work shall include the construction of a heavy duty layback and footpath crossing in Pennant Hills Road 6 metres wide at the boundary splayed to 8 metres wide at the kerb. All internal car parking spaces and access roads shall be prominently and permanently linemarked, signposted and maintained to ensure entry and exit is in a forward direction at all times and that parking and traffic circulation is appropriately controlled. All access roads and carparking areas are to be separated from landscaped areas by means of a kerb or concrete dwarf wall. 7. Numbering In order to provide a consistent and accurate system of street numbering throughout the Shire, house numbering has been provided as a condition of this consent. The responsibility for house/unit/tenancy numbering is vested solely in Council and as such, the street numbers as issued are to be displayed on all buildings resulting from this approval. 8. Letter box regulation size The number of letterboxes to be provided is to be equal to the number of flats/units/townhouses/villas etc, plus one (1). Individual letter boxes to have a minimum internal dimension of 230mm wide x 160mm high x 330mm long, and to be provided with an opening 230mm x 30mm for the reception of mail. 9. Remote Control Garage Doors Automatic / remote control garage doors shall be provided for each townhouse. 10. Care of Survey Marks The Developer shall preserve and maintain in their true position all State Survey Marks (SSM) and Permanent Marks (PM) whether or not the marks are to be used for the purpose of setting out, checking or measuring the work. Should any SSM or PM be disturbed or obliterated, the Developer shall arrange for a Registered Surveyor to rectify such disturbance or obliteration. The cost of rectification shall be borne by the Developer. 11. Supervision of Works All engineering works associated with the development are to be carried out under the supervision of a practising Professional Engineer or Registered Surveyor. All work in the road reserve shall be supervised by a suitably qualified and experienced Civil Engineer, Registered Surveyor or Civil Engineering Foreman. The supervisor's name, address and contact phone number shall be submitted to Council prior to the commencement of construction in the road reserve. In this regard a construction programme and anticipated duration of construction shall be submitted in writing to Council prior to the commencement of any works in the road reserve. 12. Strata Title Application A formal subdivision application is to be submitted to Council in respect of any proposal to strata title subdivide the approved development. 13. Demolition of Existing Structure The demolition of all existing structures shall be carried out in accordance with Australian Standard AS 2601-1991: The Demolition of Structures. No demolition materials shall be burnt or buried on site. The person responsible for the demolition works shall ensure that all vehicles leaving the site carrying demolition materials, have their loads covered and do not track soil or waste materials onto the road. Hazardous and/or intractable wastes shall be disposed of to the satisfaction of Council's Manager - Environmental Protection. Should the demolition works obstruct or inconvenience pedestrian or vehicular traffic on an adjoining public road or reserve, separate application shall be made to Council to enclose the public place with a hoarding or fence. 14. Balustrades Required balustrades shall comply with Part 3.9.2 of the Building Code of Australia (Housing Provisions). 15. Stairs All stairs provided in the building shall comply with Part 3.9.1 of the Building Code of Australia (Housing Provisions). 16. Protection from Termites The building shall be protected from attack from subterranean termites in accordance with Australian Standard AS 3660.1-1995: Protection of Building From Subterranean Termites - New Buildings. ( Note : Council does not permit hand spraying as a stand alone method of termite protection.) On completion of the installation of the barrier, the Principal Certifying Authority shall be furnished with a certificate from the person responsible, stating that the barrier complies with AS 3660.1. A durable notice shall be permanently fixed to the building in a prominent location, such as the meter box or the like indicating: i) the method of protection; ii) the date of installation of the system; iii) where a chemical barrier is used, its life expectancy as listed on the National Registration Authority label; and iv) the need to maintain and inspect the system on a regular basis. 17. Wet Areas The wet areas in the building shall be impervious to water as required by P2.4.1 of the Building Code of Australia (Housing Provisions). On completion of the waterproofing of the wet areas, the Principal Certifying Authority shall be furnished with a certificate from the person responsible, stating that the materials used are suitable for the situation, and that the application and/or installation has been carried out in accordance with Australian Standard AS 3740-1994: Waterproofing of Wet Areas in Residential Buildings. 18. Light and Ventilation Light and ventilation shall comply with Part F4 of the Building Code of Australia. 19. Fire Detection and Alarm System An automatic fire detection and alarm system, designed to ensure the occupants are given adequate warning so they can evacuate the building in an emergency, shall be installed in the building in accordance with Part 3.7.2 of the Building Code of Australia (Housing Provisions)/Clause E2.2 of the Building Code of Australia. 20. Safety Glazing Safety Glazing to be selected and installed in accordance with AS 1288. A certificate shall be submitted to the Principal Certifying Authority at the completion of the building works. 21. Walls between Units The walls between sole occupancy units shall extend from the footings to the underside of the roofing material, and have a minimum fire resistance level of 60/60/60. Roof battens up to 75mm x 50mm may cross the separating wall subject to the gaps being fire stopped. At the intersection of the separating wall and an external brick veneer wall, the gap shall not exceed 50mm, and shall be fire stopped and flashed. 22. Noise Transmission Noise transmission to be controlled between sole occupancy units in accordance with Part F5 of the Building Code of Australia. 23. Integral Energy Compliance with the requirements of Integral Energy in regard to the location of the transmission easement. 24. Domestic Waste Management Council will provide each unit with a minimum of one 240 litre garbage bin (emptied weekly) and one 240 litre recycling bin (emptied fortnightly). Allowance is to be made for: § space for all garbage and recycling bins to be placed on the kerb for servicing on collection day (these spaces are to be indicated on the plan); § storage of bins allocated to each unit to be: § within the lot boundary of each unit; § incorporated into the landscape design of each unit; § screened and not visible from the street; § adequate natural or mechanical ventilation where bins are stored in an enclosed cupboard; and § flat or ramped paved pathway (grade not to exceed 7%) to allow manoeuvring of the bins from the lot/unit to the kerb for servicing (and not over steps, landscape edging or gutters or through the unit). 25. Noise – Residential Flat Building/ Town House/ Villa Units The L10 (20 minute) noise level in the dwelling, with windows and external facade doors closed, shall be less than 40 dB(A) The L10 (20 minute) noise level in the dwelling, with windows and external facade doors normally open, shall be less than 50 dB(A). The requirements of (b) may be equally satisfied by the alternative provision of either a mechanical or natural ventilation system or a special acoustic design solution as approved by Council. 26. Car Wash No vehicle washing is to be carried out unless a vehicle wash bay is provided. If a vehicle wash bay is to be provided, all waste water from such an area is to be disposed of to Sydney Water sewerage system. The developer shall contact the Trade Waste Office of Sydney Water so as to ensure that the sewerage pre-treatment system installed is appropriate for the proposed use of the car wash area. 27. Roads & Traffic Authority Requirements (i) Driveways onto Classified Roads For safety reasons, all driveways are to be constructed perpendicular to the adjacent kerb alignment and with a minimum width of 6 metres in accordance with AS 2890.1-1993 for a Type 2 driveway with (1) metres splays each side to the gutter crossing. For both safety and efficiency reasons access to the site from the classified road shall be restricted to Left-in and Left-out only by the construction of a central concrete median across the full frontage. (ii) Two-way driveway width To avoid ingressing vehicles queuing onto the roadway due to conflict with egressing vehicles, the first six (6) metres of the driveway shall not be less than six (6) metres wide. (iii) Exit Gradients For pedestrian safety, the longitudinal gradient of all exits shall not exceed 1 in 20 within six (6) metres inside the property boundary. (iv) Exit Sight Distances For safety reasons, the car park shall be designed such that no obstructions to lines of sight along the footpath and roadway for drivers of egressing vehicles to achieve the required minimum sight distances in accordance with Section 3.2.4 of AS2890.1-1993 and Austroads Guide to Traffic Engineering Practice Part 5 – Intersections at Grade. (v) Redundant Driveways and Footpath Crossovers To avoid driver confusion all existing driveways, footpath crossovers and gutter crossings on classified roads made redundant by the development shall be removed with the kerb and footpath reinstated to match that adjacent or in the case of footpaths as specified by Council. (vi) Car Park Design Standard To ensure minimum impact of the development on the operation of the classified road system, the car park of the proposed development (including all parking bay dimensions, aisle widths, aisle lengths, circulation roads, ramp grades, turning paths and required sight distances) shall be designed in accordance with AS2890.1-1993 and AS2890.2-2002. (vii) Lighting For road safety reasons, all lighting of the development shall be designed and installed such that it does not provide glare or distraction to approaching drivers on any road. (viii) Site Drainage The development shall not discharge water externally to the site at a rate greater than exiting or such that it causes ponding or flooding on any classified roads. (ix) Roadworks Approval All works on classified roads shall be designed in accordance with Australian Standards, Austroads Guide to Traffic Engineering Practice and RTA requirements (02 1884 2144). Detailed design plans are to be submitted to and approved by the RTA before any roadworks commence. A plan checking fee will be payable and a performance bond may need to be lodged before RTA's approval is issued. (x) Construction Vehicle Parking To promote the efficient operation of the classified roads, suitable provision shall be made on-site for the parking of all construction associated vehicles. 28. No Stopping Signs For the efficient operation of the classified road system, full time 'No Stopping' parking restrictions are to be installed across all classified road frontages of the development site prior to the commencement of any works. Council should ensure adequate unrestricted visitor car parking within the development. Before installing the parking restriction the applicant must contact the RTA's Traffic Management Services (02 8814 2992) for a Works Instruction. PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE 29. Tree Bond To ensure the retention of these trees a bond of $11,000.00 is to be held in place for a period of three (3) years following completion of the construction and will only be released depending on the health and viability of the trees. A quarterly report is to be provided to Council advising of the health of the trees and if any remedial works are required, they are to be undertaken by a qualified arborist. Tree No. 1 Cuppressus torulosa (Bhutan Cypress) x 10 @ $1,000.00ea. $10,000.00 Tree No. 2 Lagerstroemia indica (Crepe Myrtle) $1,000.00 TOTAL $11,000.00 30. Landscape Bond A Landscape Bond to the value of $10,000.00 is to be lodged with Council prior to the issue of the construction certificate. It shall be refunded 6 months following final inspection and the submission to Council of certification from a qualified Landscape Architect or an accredited certifier that the works have been carried out in accordance with the approved landscape plan. Fourteen (14) advanced tree replacements are to be incorporated into the landscape plan. 31. Section 94 Contribution - Medium Density A contribution (Currently $13,534.32) being paid to Council prior to the issue of a construction certificate in accordance with Section 94 of the Environmental Planning and Assessment Act, 1979, to provide for the increased demand for public amenities and services resulting from the development. The applicant is advised that the above contribution amount consists of $2,610.19 for each of the three (3) bedroom units; and $2,030.13 for each of the two (2) bedroom units; less $3,383.57 for each of the existing allotments. Payments comprise of the following:- The figures mentioned above are based on the current rates and applicants should be aware that the contribution will be based on the rates at the time of payment which will not necessarily be those mentioned above. Note: Section 94 rates are calculated quarterly This condition has been imposed in accordance with Contributions Plan No. 7 – Southern Precincts North rocks, Carlingford / North Parramatta, Oatlands Precincts A copy of this plan may be inspected at the Customer Service Centre, of Council's Administration Complex, corner of Carrington and Showground Roads, Castle Hill between the hours of 8.30 am and 4.30 pm weekdays. Prior to payment of the above Section 94 contribution, the applicant is advised to contact the Section 94 Officer on 9843 0268, for the current section 94 rates. 32. Carpark Headroom Headroom is to be provided to all undercover carparking spaces in accordance with Australian Standard AS 2890.1 - 1993. 33. Disabled Parking Carparking spaces for the disabled are to be provided in accordance with Australian Standard AS 1428.1. 34. Gradients Gradients of ramps and access driveways are to be provided in accordance with Australian Standard AS 2890.1 - 1993, Council's Development Control Plan 102 - "Car Parking" and Council's "Design Guidelines - Subdivisions/Developments" (June 1997). 35. Engineering Works and Design In order to provide satisfactory servicing of the development, engineering design and construction works are to be provided in accordance with; § Council's Design Guidelines - Subdivisions/Developments" (June 1997). § Council's Works Specifications - Subdivisions/Developments" (August 1997). Such works require an Engineering Construction Certificate to be obtained and are to include:- (i) Footpath Formation Footpath formation to the full frontage of the site, including the adjustment and/or relocation of services, as necessary, to the requirements of the appropriate Service Authorities. (ii) Concrete Footpath – 1.25m wide Concrete footpath paving 1.25 metres wide across the frontage of the development. (iii) Gutter Removal The removal of disused layback and footpath crossings and the replacement with full kerb together with the restoration of the adjoining footpath area. (iv) Medium Duty Crossings Medium duty gutter and footpath crossings at all points of vehicular access to the site. (v) Service Conduits Service conduits to each of the proposed new allotments laid in strict accordance with the service authorities requirements and shown on the engineering drawings. (vi) Inter-allotment Drainage Inter-allotment drainage to an approved constructed public drainage system. (vii) OSD Upper Parramatta River Catchment On site stormwater detention is to be provided in accordance with Council's adopted policy for the Upper Parramatta River Catchment and Council's "Design Guidelines - Subdivisions/Developments" (June 1997). (viii) Stormwater Drainage The stormwater drainage design shall be carried out generally in accordance with the Concept Stormwater Drainage included on the plan prepared by Jones Nicholson Pty Ltd, Drawing No DC1/D (3/5/03) and DC2/C (12/2/03). (ix) Foot Paving Replacement foot paving and restoration of the footpath formation with top soil and grassing to Council's Standard. (x) Boundary Stormwater Provision of a boundary stormwater drainage control wall at the property east and south boundaries. (xi) Driveway Crossfall Provision of driveway crossfalls and a central of off-set depression to control and direct all stormwater to the on-site detention systems. (xii) Finished Floor Level Provision of a 150 mm minimum fall from any garage finished floor level to the adjacent access pavement depression or the provision of a 150 mm clear opening trench & grating for the full length of the garage clear opening. (xiii) Wheel Stops Provision of wheel stops to visitor car parking spaces as necessary to protect any wall or building structures. (ix) Overflow Paths Provision of stormwater overland flow paths between pits and court yards, clear of landscaping and under fencing by formation of a minimum 75 mm x 1500 mm clear opening. (x) Drainage Pits Provision of 450 mm square yard drainage pits in each court yard and common open space area. 36. Carparking & Access In order to provide satisfactory access and parking arrangements, car parking and manoeuvring areas are required. The design of the parking area shall be in accordance with: · Australian Standard 2890.1 – 1993 – "Parking facilities – Off-street carparking" · Council's Development Control Plan No. 102 – "Car Parking" · Council's Design Guidelines for Subdivisions and Developments All entry & exit points, access ramps and off street parking spaces shall be prominently and permanently line marked, signposted and maintained to ensure traffic circulation is appropriately controlled and entry/exit is achieved in a forward direction at all times. Galvanised steel bollards are to be provided to protect the building structure and as necessary to limit parking in un-marked areas. Signs and line marking for one-way and two-way traffic are to be provided to control traffic on the site 37. Headroom Headroom is to be provided to all undercover carparking spaces and access roads/ramps in accordance with Australian Standard AS 2890.1 - 1993. The minimum available clearance to any overhead obstructions, such as overhead fire sprinklers, mechanical ventilation ducts, service conduits etc. shall be signposted at all entrances. Appropriate warning devices such as flexible striker bars shall be provided in conjunction with "Low Clearance" signage where the clearance is less than 2.3 metres. 38. Gutter & Footpath Crossing Application The submission to Council of an application for gutter and footpath crossings, accompanied by the current fee as prescribed in Council's Schedule of Fees and Charges. 39. Traffic Control Plan In order to ensure the safety of the public during construction works within the road reserve, a Traffic Control Plan is required. In this regard, traffic control measures such as advanced warning signs, barricades, warning lights, after hours arrangements etc. are required where works are in progress on Pennant Hills Road and shall be in accordance with: RTA Specification – October 1998 - "Traffic Control at Work Sites Manual"Australian Standard 1742.3 – 1996 - "Manual of Uniform Traffic Control Devices" & accompanying Field Handbooks (SAA HB81). Written and/or sketched details shall be certified by the designer as conforming to the above specifications and shall be submitted with the engineering plans prior to the issue of a construction certificate. 40. Landscaping plan to be submitted A plan (to scale) for the landscaping of the site in accordance with Development Control Plan No.107 (Landscaping) being submitted to, and approved by, Council or a suitably qualified landscape architect or experienced horticulturalist prior to the issue of construction certificate. Details shall include: (a) all existing trees, landscape features and prominent structures; (b) a schedule of proposed planting, including botanic name, common name, expected mature height and staking requirements; (c) details indicating a minimum of 300mm of good quality topsoil to all garden beds; (d) details indicating a minimum of 150mm of good quality topsoil to all park areas; (e) all garden bed areas to be clearly defined by brick, concrete or timber edging with its top edge finishing flush with the surface of adjacent grass areas; (f) all garden beds and mulch must be clear of stormwater drainage overland flow paths, on-site detention structures and drainage pits. 41. Fencing - Private Open Space Areas All private open space areas proposed within building line areas are to be made distinct and private by way of a 1.8 metre high screen. Details are to be submitted prior to the issue of a construction certificate. 42. Fencing – Boundary Full details of boundary fencing shall be provided. Fencing shall provide an effective height of 1.8 metres and be of materials to Council's satisfaction. All fencing shall be provided at the expense of the applicant. 43. Undertaking- (Company)-Internal Works and Consolidation The lodgement of a suitable undertaking, under the common seal of the company, to:- (i) Effect the consolidation of allotments, prior to occupation and/or operation of any part of the approved development. (ii) Complete all required engineering works within the site boundaries. Such works to be completed prior to occupation and/or operation of any part of the approved development. 44. Undertaking- (Private)-Internal Works and Consolidation The lodgement of a suitable undertaking to:- (i) Effect the consolidation of allotments, prior to occupation and/or operation of any part of the approved development. (ii) Complete all required engineering works within the site boundaries. Such works to be completed prior to occupation and/or operation of any part of the approved development. 45. Bond- (Assessed on Engineering Plans) The submission of a cash bond or acceptable bank guarantee in respect of construction works external to the site. The amount of such bond and bond assessment fee will be assessed on the submission of satisfactory engineering construction plans. Please Note : If submitting a Bank Guarantee: (i) The Bank Guarantee will only be accepted direct from the issuing bank. (ii) The Bank Guarantee must have no expiry date. (iii) The Bank must quote Council's reference (1924/03/HB). (iv) Should it be necessary for Council to uplift the guarantee, a notice in writing will be forwarded to the applicant fourteen (14) days prior to such action being taken. NO BANK GUARANTEE WILL BE ACCEPTED DIRECT FROM THE APPLICANT. 46. Draft 88B Instrument - O.S.D. The submission to Council of a Draft 88B Instrument/Request document, together with a $1,000 cash bond for the creation of a Positive Covenant and Restriction As to User in respect of the on-site stormwater detention system. Council will refund the $1,000 cash bond upon registration of the 88B Instrument/Request document at the Land Titles Office. NOTE: A request document must be signed by Council and a fee is payable in accordance with Council's "schedule of fees and charges". 47. External Work Fees Prior to the issue of an Engineering Construction Certificate for works external to the site, Council's inspection fees are to be paid in accordance with Council's current schedule of Fees & Charges. 48. External Works Security Bond The provision of a security bond to guarantee the construction, completion and performance of all works external to the site is required. The amount of the security bond will be based on 150% of the value of providing all such works or $10,000.00 (whichever is greater) and shall be lodged with Council prior to the issue of an Engineering Construction Certificate. The value of the External Works Security Bond shall be confirmed with Council prior to submission and may be in the form of cash or an unconditional bank guarantee. The bond is refundable upon written application, payment of the applicable bond release fee and subject to all work being completed to the satisfaction of Council's Engineer. 49. Bank Guarantees Should a Bank Guarantee be the method of submitting a Security Bond, the guarantee is to: - (i) Have no expiry date. (ii) Be forwarded direct from the issuing bank to Council under cover of a suitable letter that refers to the consent and details Council's Development Application Number (1924/03/HB) (iii) Should it become necessary for Council to uplift the Bank guarantee, a notice in writing will be forwarded to the applicant fourteen (14) days prior to such action being taken. NO BANK GUARANTEE WILL BE ACCEPTED DIRECT FROM THE APPLICANT. 50. Retaining walls A Construction Certificate application being submitted to and approved by the Principal Certifying Authority for retaining walls exceeding 600mm in height prior to commencement of work. Full details of retaining walls being submitted to Council with the Construction Certificate application. PRIOR TO ANY WORK COMMENCING ON SITE 51. Erosion and Sedimentation Controls – Major Works Erosion and sedimentation control devices are to be provided in accordance with Council's "Works Specification - Subdivisions/Developments" (August 1997). All devices are to be established prior to the commencement of engineering works and maintained for a minimum period of six (6) months after the completion of all works. Periodic maintenance of the erosion and sedimentation control devices is to be undertaken to ensure their effectiveness. 52. Stabilised Access Point A stabilised all weather access point is to be provided prior to commencement of site works, and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the requirements of the Department of Land and Water Conservation. 53. Tree Protection In respect of the trees to be retained, the trees are to be protected during the construction period by parawebb fencing, which is to be erected at least three (3) metres from the base of each tree and is to be in place prior to construction commencing to restrict the following occurring: · Stockpiling of materials within the root protection zone, · Placement of fill within the root protection zone, · Parking of vehicles within the root protection zone · Compaction of the soil within the root protection zone · The installation of services within the root protection zone is not to be undertaken unless where necessary and where roots are damaged, a qualified arborist is to repair any roots, which are damaged, · A sign is to be erected indicating the trees are protected. All areas within the root protection zone are to be mulched with composted leaf mulch to a depth of not less than 100mm. 54. Details of Footings/Slabs Details of footings and slabs to indicate compliance with Australian Standard AS 2870-1996 Residential Slabs and Footings Construction, shall be submitted to the Principal Certifying Authority prior to work commencing. The details shall include designation of the site classification in accordance with Section 2 of AS 2870. 55. Roof Trusses Manufacturer's specifications of roof trusses to be submitted to the Principal Certifying Authority prior to work commencing. 56. Details of Wall Bracing Details of wall bracing to indicate compliance with Australian Standard AS 1684-1999:Residential Timber Framed Construction, shall be submitted to the Principal Certifying Authority prior to work commencing. The details shall include the calculation of the maximum design gust wind speed in accordance with Australian Standard AS 4055-1992: Wind Loads for Housing. 57. Management of Building Sites – Builders Details The erection of suitable fencing or other measures to prevent public access to the site and building works, materials or equipment when the building work is not in progress or the site is otherwise unoccupied. The erection of a sign, in a prominent position, stating that unauthorised entry to the site is not permitted and giving an after hours contact name and telephone number. If the development is to be privately certified, the name and contact number of the Principal Certifying Authority shall be provided. 58. Road Inventory Report – Prior to Construction Prior to commencement of construction of medium density and apartment building development, the builder/developer is to submit to Council for approval a road inventory report in accordance with the designated access road identified for construction/excavation of material in the Waste Management Plan submitted to and approved by Council. 59. Pre-Construction Meeting (only when external works are required) The applicant shall contact Council's Supervising Officer 48 hours prior to commencement of work in Council's Road Reserve to arrange an on-site meeting between the superintendent (or applicant's delegate), the contractor and council's representative. 60. Supervision of Works The work shall be supervised by a suitably qualified and experienced Civil Engineer, Registered Surveyor or Civil Engineering Foreman. The supervisor's name, address and contact phone number shall be submitted to Council prior to the commencement of construction. In this regard a construction programme and anticipated duration of construction shall be submitted in writing to Council prior to the commencement of any works in the road reserve. 61. Public Liability Insurance (only when external works are required) All contractors working in Council's road reserve shall take out public liability insurance for a minimum amount of $10 million. The policy shall specifically indemnify Council from all claims arising from the execution of the works. Written evidence of this insurance shall be supplied to Council's representative prior to the commencement of construction in the road reserve. DURING CONSTRUCTION 62. Hours of Work Work on the project to be limited to the following hours: - Monday to Saturday - 7.00am to 5.00pm; No work to be carried out on Sunday or Public Holidays. The builder/contractor shall be responsible to instruct and control sub-contractors regarding the hours of work. Council will exercise its powers under the Protection of the Environment Operations Act, in the event that the building operations cause noise to emanate from the property on Sunday or Public Holidays or otherwise than between the hours detailed above. 63. Trade Waste Compound The reuse and recycling of waste materials must be maximised during construction and demolition. Minimum separation required is into: - (i) masonry products (bricks, concrete/ concrete roof tiles) to be sent for crushing/recycling; and (ii) mixed waste (paper, plastic etc) for landfill. This can be achieved by constructing a minimum of two trade waste compounds on-site. Each waste compound must be adequately sized to enclose the waste (min 1.5m x 2m). Alternatively, mixed waste may be stored in a one or more adequately sized waste compounds (min 2 x 2m) and sent to a waste contractor/waste facility that will sort the waste on their site for recycling. Trade waste compounds shall be constructed with sediment fencing, shade cloth, wood or metal sheets firmly staked into the ground (a trade waste bin is also suitable). The location and size of the waste storage areas must also be shown on the site plan. Waste must be adequately secured and contained within designated waste areas and must not leave the site onto neighbouring public or private properties. Personal waste must not litter the site. Supporting documentation (dockets/receipts) verifying recycling and disposal must be kept, to be checked by Council if required. 64. Surplus excavated material The landfill of surplus excavated material is not permitted without formal approval from Council prior to the commencement of building work. A "Waste Management Plan" outlining the on-site storage methods and places of disposal must be received and approved. Any material deposited without formal approval from Council is in breach of the Protection of the Environment Operations Act 1997 and is subject to substantial penalties. Unless Council approves an alternate site, then all surplus excavated material must be disposed of at a licensed landfill facility. In addition supporting documentation (dockets / receipts /development consent) verifying disposal must be kept to be checked by Council if required. 65. Survey Report Survey Certificate to be submitted to the Principal Certifying Authority at footings and/or form-work, such certificate shall set out the boundaries of the site, the actual situation of the buildings and include certification siting levels comply with the approved plans. 66. Building Inspection Notification The following inspections are required to be carried out during the construction of the building: (a) Pier holes prior to the placing of concrete; (b) Steel reinforcement in position for footings or slabs prior to the placing of concrete; (c) Damp-proof course and ant caps laid. (Including bearers and joists) (d) First floor joists, (first floor additions) (e) Full frame work and brick work complete prior to the fixing of internal linings; (f) Wet area flashing; (g) Stormwater drainage lines and disposal trenches prior to covering; (h) Building complete prior to occupation. You are advised that Council provides the service of carrying out the above inspections at the rate of $60.50 each (GST inclusive). Council may also issue a Compliance Certificate. Each Certificate for the above shall be at a charge of $71.50 (GST inclusive). 48 hours notice must be given, either in writing, or by telephone prior to Council carrying out the inspection. Should you, however, wish to obtain the services of a private accredited certifier to carry out the required inspections, you are required to notify Council of the Principal Certifying Authority within a minimum of 2 days prior to commencement of work. It is the responsibility of the builder and/or owner builder to obtain from or the Principal Certifying Authority relevant Compliance Certificates or inspection results prior to proceeding with any further work. NOTE : No building shall be occupied or used prior to a satisfactory final inspection being carried out. 67. Protection of Public Infrastructure Council must be notified in the event of any existing damage to the road, kerb and gutter, road shoulder, footpath, drainage structures and street trees fronting the development prior to commencement of work. Adequate protection must be provided for Council infrastructure prior to work commencing and during building operations. Any damage to Council's assets shall be made good prior to commencement of use. 68. Construction Access All construction access to the site, shall be from Pennant Hills Road and not the existing right of carriageway, except where works are being undertaken on the boundary of the site, being limited to the passing lane, driveway access and landscaping forward of the dwellings. 69. Standard of Works All work shall be completed in accordance with the development consent, Council's Engineering Works Specification for Subdivisions/Developments and include any necessary works to make the construction effective. All works and public utility relocation shall incur no cost to Council 70. Civil Engineering Compliance Certificates & Inspections (only when external works are required) In order to ensure works are constructed in accordance with Council's Works Specification and the approval, inspections and/or compliance certificates are required at the following stages (where relevant) and subject to payment of the appropriate inspection fee: (a) Completion of installation of erosion and sediment control structures. (b) Final inspection after all works are completed and "Works as Executed" plans have been submitted to Council. PRIOR TO THE ISSUE OF OCCUPATION OR SUBDIVISION CERTIFICATE 71. Landscaping prior to Issue of Occupation Certificate The landscaping of the site being carried out prior to occupation or use of the premises in accordance with the approved plan and being maintained at all times to Council's Landscaping Development Control Plan. 72. Road Inventory Report – Prior to Occupation Prior to the Occupation Certificate being issued, finalisation of the building project and/or strata subdivision, the builder/developer is to provide and updated road inventory report identifying any damage to local roads and means of rectification to these roads for the approval of Council. 73. Section 73 Certificate A section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to "Your Business" section of Sydney Water's web site at 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. The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to the occupation of the development / release of the plan of subdivision. 74. Undergrounding of I.E. and Telstra Services Submission of a compliance certificate confirming satisfactory arrangements have been made fore the undergrounding of Integral Energy services. Submission of a compliance certificate from the telecommunications provider, authorised under the Telecommunications Act confirming arrangements have been made for the provision of underground telephone services. 75. OSD – Satisfactory Completion and Submission of Documents The on-site stormwater detention system shall be completed to the satisfaction of the Principal Certifying Authority prior to occupation of the dwelling. On completion of all works associated with the on-site stormwater detention system, the Principal Certifying Authority will require: The submission of works as executed drawings prior to a final inspection level. The drawings are to be prepared by a suitably qualified engineer or registered surveyor. The submission of a certificate of hydraulic/hydrological compliance prior to a final inspection. This certificate is to be prepared by a suitably qualified engineer or registered surveyor and is to include details of any non-compliance with approved plans and specifications. The submission of a certificate of adequacy from the structural engineer for the on-site stormwater detention system. 76. OSD - Certificate of Structural Adequacy If this system includes provision of an underground storage tank, the submission to Council of a Certificate of Structural Adequacy for the completed on-site stormwater detention structure, prepared by a practising Structural Engineer, qualified for membership of The Institution of Engineers Australia is required. 77. Consolidation of Allotments The consolidation of all allotments in the development into one (1) allotment prior to the issue of an occupation certificate. 78. Works as Executed Plans (WAE Plans) In order to provide an accurate record of the works undertaken, you are required to submit a set of WAE plans for each construction certificate, detailing all completed civil works. The WAE plans shall be certified by a Registered Surveyor indicating that the survey is a true and accurate record of the works that have been constructed. The WAE plans shall be prepared in accordance with Council's Design Guidelines for Subdivisions and Developments for each issued construction certificate. 79. Completion of all Works The completion of all works in accordance with the conditions of this consent. 80. Confirmation that Pipes are Located within Easements Submission of a letter from a Registered Surveyor certifying that all pipes and drainage structures are located within the proposed easements to drain water. 81. Positive Covenant - O.S.D. "Positive Covenant" under Section 88E of the Conveyancing Act, 1919 is to be established over the title of the property to ensure the maintenance of the on-site detention structure. 82. Restricting Development - O.S.D. A suitable "Restriction-As-To-User" is to be created over the on-site stormwater detention structure, that restricts development and/or the varying of the finished levels of the structure. 83. Right of Access Creation of suitable rights of access over the passing bay area 1.075 wide and variable within the consolidated development allotment area to the benefit of existing lots 22 to 24 DP 635130 (inclusive). 84. Compliance with Requirements of Development Consent Compliance with all conditions of approval of the Development Consent on the subject property. 85. Compliance with Requirements of Construction Certificate Compliance with all conditions of approval of the Construction Certificate on the subject property and the Construction Certificate for works external to the property. 86. The driveway access to Pennant Hills Road shall be revised to ensure that the length of the 5% section of ramp at the street frontage is not less than 4m. 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.