Land and Environment Court of New South Wales CITATION : La Coste & Stevenson v Mosman Municipal Council [2004] NSWLEC 257 APPLICANT PARTIES : La Coste & Stevenson RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10258 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- Visual impact of the garage in the streetscape · State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries, (SEPP56)· Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours, (SREP23) LEGISLATION CITED: Mosman Local Environmental Plan 1998, (MLEP) Mosman Residential Development Control Plan, (RDCP)· Notifications Development Control Plan, (NDCP)· Environmental Planning and Assessment Act 1979, ss79C and 97 CASES CITED: Super Studio v Waverley [2004] NSWLEC 91 DATES OF HEARING: 21/05/2004 EX TEMPORE 05/21/2004 JUDGMENT DATE : APPLICANT Mr P Hallen, SC, instructed by Ms V Evans SOLICITOR Uther Webster & Evans LEGAL REPRESENTATIVES: RESPONDENT Ms J A Walsh, solicitor SOLICITOR Pike Pike and Fenwick JUDGMENT: Appeal No: 10258 of 2004 10 La Coste & Stevenson v Mosman Municipal Council Judgment 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Mosman Municipal Council (the council) of a development application to alter and add to an existing dwelling at Lot 12, DP 4311, being No 30 Euryalus Street, Mosman. The application included a new double garage in front of the existing double garage. Recently, the council approved the plans with the double garage deleted. The applicant would like to keep the proposed new garage and seeks approval for it. 2 I visited the land in company with the parties on the day of the hearing. 3 I have concluded that the application to include the double garage would fail when considered under 79C of the Environmental Planning and Assessment Act 1979 and it would not be either reasonable or necessary. The land 4 The land is situated on the western side of Euryalus Street. The land is largely rectangular in shape has a frontage of 15.1m and has a southern (side) boundary of 46.90m, a northern (side) boundary of 46.90m, a western (rear) boundary of 14.80m, and an area of some 703.5m2. 5 The land has a maximum fall of about 9.43m from the road down to the west over a length of 46m. 6 The survey plan identifies trees, shrubbery and minor vegetation on the land and one (1) street tree. 7 Erected on the land is a detached elevated part two-storey and part three-storey, rendered dwelling house with double garage and swimming pool. The double garage is setback around 6m from the street frontage at the southern side of the land. 8 Adjacent development comprises a two-storey rendered brick dwelling to the north at No 28 Euryalus Street, with a flat roofed garage built to the front boundary and in ground swimming pool. 9 To the south at No 32 Euryalus Street, is a three-storey brick dwelling. 10 The surrounding development predominately consists of three-storey and two-storey dwellings. Relevant planning controls State Environmental Planning Policy No 56 - Sydney Harbour Foreshores and Tributaries, (SEPP56) 11 Clause 6 of SEPP56: requires principles under Clause 7 to be taken into consideration in assessing development applications. 12 Clause 7 of SEPP56: provides relevant guiding principles applicable to the development are those listed under subsections (g), (j) and (k) which relate to the visual qualities of the Harbour, the scale and character of the development and the character of the development viewed from the harbour. Sydney Regional Environmental Plan No 23 - Sydney and Middle Harbours, (SREP23) 13 Clause 2 of SREP23: provides general aims applicable to the development are those listed under subsections (a), (b), (e) and (h) which relate to the establishment of existing framework to encourage a consistent and co-ordinated approach to planning, development and management of the harbours, establish an efficient and effective development control system, to protect and enhance natural and scenic qualities in future planning and development control and ensuring consistent guidelines are applied to assessment of development. 14 Clause 18 of SREP23: nominates matters for consideration. Of relevance is subclause (a) appearance. Mosman Local Environmental Plan 1998, (MLEP) 15 Under cl 11 of the MLEP the land is zoned Residential 2(a1) and garages/ additions and alterations are permissible with development consent, as they are considered ancillary to a dwelling house use. 16 Clause 2 of the MLEP provides objectives. Of particular relevance are subcll (b) and (f), to maintain and enhance and improve the existing residential amenity and to enhance and protect the scenic amenity of Sydney and Middle Harbours. 17 Clause 5 of the MLEP provides definitions for the plan by reference to Sch 1. The proposed use is ancillary to a "Dwelling house". Definitions for matters referred to under cll 13, 14 and 15 are also relevant. 18 Clause 11 of the MLEP identifies residential zone objectives. Of particular relevance are subcl (1), ensuring that development is to be of a height and scale, which complements existing buildings and streetscapes. 19 Clause 13 of the MLEP provides objectives and development standards relating to building height, wall height and the number of storeys permitted. The planning officer of the council was satisfied the development standards in this respect were met. 20 Clause 14 of the MLEP provides objectives and a development standard for floorspace ratio. The maximum floorspace ratio is 0.4:1 for sites over 700m2 as in this case. The development satisfies this development standard with a FSR of around 0.35:1 without the new double garage. 21 Clause 15 of the MLEP provides objectives and numerical requirements as opposed to a development standard, for landscaped area. The development would not comply in this regard. However, with the deletion of the garage there would be no change to the extent of landscaped area on the land. 22 Clause 27 of the MLEP indicated that the land is located within the foreshore scenic protection area, (FSPA) and this clause requires an assessment against the objectives of SREP23 and a consideration of the impact of the development on the natural environment, the visual environment and the environmental heritage of Mosman. Mosman Residential Development Control Plan, (RDCP) 23 Section 1.4 of the RDCP provides plan objectives. Of relevance is subs (b), to sensitively manage the desired future character of Mosman. 24 Section 4.2 of the RDCP provides height, setback and building bulk objectives and controls. Of particular relevance is objective (O6), consistency with desired future character of the area. 25 Section 4.4 of the RDCP provides landscaping controls. 26 Section 5.1 of the RDCP provides streetscape and building design objectives and controls relating to the fit of development into the streetscape. Of particular relevance are objectives (O1) and (O3), scale and appearance in keeping with the street and neighbourhood character and compatibility with the desired future character of the townscape areas, and to preserve the presentation of the dwellings to the street. 27 Section 5.2 of the RDCP provides objectives and controls for car parking and access. Of particular relevance and objectives (O1) and (O2), (P1), (P4), (P5), (P6), (P7) and (P9), respecting the character of the streetscape; development in sympathy with the existing residence without becoming dominant; minimum parking requirements of spaces per dwelling; design to be appropriately integrated with the existing residence; where a garage cannot be appropriately provided, a hardstand area is preferred; no garages permitted in front of building alignment; consideration of a carport in front of building alignment and a garage in front of building is acceptable if the land is steep. 28 Section 6.4 of the RDCP contains an analysis of existing character elements for the local townscape as well as desired future characteristics. Of particular relevance is the Middle Harbour/Pearl Bay townscape. Notifications Development Control Plan, (NDCP) 29 The application was notified in accordance with requirements of the NDCP. The proposal and its history 30 Development application No 8.2003.454.1 was lodged with the respondent council on 18 December 2003, to alter and add to the existing dwelling on the land. 31 The proposal is described in plans prepared by La Coste & Stevenson architects involves: · Addition of new retractable fabric awning/ shade with a steel structure. The shade structure has a height of 3.1m to existing ground floor terrace; · Addition of double garage, built to the front boundary (deleted in red on approved plans dated 27 March 2004). The existing double garage is to remain as a garage; · Addition of a balcony adjacent to living room with associated pivoting roof, louvre screen and steel balcony structure; and · Extension of living room into an adjacent roof space, to create a piano room of approximately 6.7m2. 32 The compliance table: Control Standard / Proposed Height Building 8.5m (maximum)7m Wall 7.2m (maximum)N/A Number of storeys 2 maximum2-3 storeys (existing) Gross Floor Area Existing N/A256m2 (34.2m2 as double garage- 32m2 allowable as free floorspace) 288m2 with existing double garage Net additional N/A41.9m2 (Proposal with new double garage) 6.7m2 (Proposal without new double garage) Total 367m2 maximum295.7m2 (Proposal with new double garage) 260.5m2 (Proposal without new double garage) Floorspace ratio 0.5:1 up to 700m20.40:1 (Proposal with (350m2)new double garage) 0.4:1 above 700m20.35:1 (Proposal without (17m2)new double garage) Landscaped area 273.7m2 (minimum)235m2 Notification 33 The application was notified to nearby owners and occupants and the council received no objections. 34 The applicant tendered a letter from the neighbour at No 32 Euryalus Street, in support of the application, [Note: Exhibit D]. The council's decision 35 When the appeal was filed the council had not finally determined the application. 36 On 25 March 2004, the application was approved by the council under delegated authority subject to conditions, one of which required the deletion of the proposed double garage. The hearing 37 The appeal was filed on 5 March 2004. 38 At the hearing the court heard evidence on behalf of the respondent council from: · Mr G Samardzic, Assessment Officer, Planning, Mosman Municipal Council. 39 On behalf of the applicant evidence was given by: · Mr W Long, consultant town planner. The issues 40 On 15 April 2004 the council filed a statement of issues. GARAGE AND STREETSCAPE 1. Whether the garage forward of the building line has an unsatisfactory streetscape impact and is a form of development encouraged by the applicable planning controls. Further, whether approval of the garage will set a precedent. Particulars Mosman Local Environmental Plan 1998 ("the LEP"). (a) Zone Objectives - clause 11 (objectives (2) and (7)). Mosman Residential Development Control Plans ("the DCP"). General (a) Non-compliance with Part 1, Clause 1.4(b) of the DCP. The proposed development, in particular the proposed garage does not sensitively manage the desired future character of Mosman and the individual townscape areas of Mosman. Siting and Scale (b) Non-compliance with Part 4, Clause 4.2(06) of the DCP. The proposed garage is not consistent with the desired future character of the area, due to its location and being in front of the building line and the underlying intentions of the DCP, in the attempts to improve the future character of the locality. Streetscape and Building Design (c) Non-compliance with Part 5, Clause 5.1(01) of the DCP. The proposed garage is not of a scale and appearance in keeping with the street and neighbourhood character. (d) Non-compliance with Part 5, Clause 5.1(03) of the DCP. The proposed garage is not compatible with the desired future character objectives of the townscape area, which is to preserve the presentation of the dwellings to the street. A garage in front of the building line does not adequately achieve this. Car-Parking and Access (e) Non-compliance with Part 5, Clause 5.2(01) of the DCP. The proposed garage does not respect the character of the streetscape. There is a current acceptable double garage in use and to move it forward to extract more floor space is unacceptable on planning grounds. (f) Non-compliance with Part 5, Clause 5.2(02) of the DCP. The proposed garage is not designed to be sympathy with the existing residence and will be a dominating component in Euryalus Street. (g) Non-compliance with Part 5, Clause 5.2(P1) of the DCP. There is already an existing double garage that houses 2 cars, which adequately achieves what would be the car parking requirements for this dwelling. (h) Non-compliance with Part 5, Clause 5.2(P4) of the DCP. The proposed garage, is not appropriately designed to be integrated into the design of the current residence, and will add to the predominance of the garage to the street. (i) Non-compliance with Part 5, Clause 5.2(P6) of the DCP. The proposed garage is in front of the building alignment. An acceptable form of development in front of the building line is a hardstand area, a carport or on a steep block as per Part 5, Clause (P5, 7 and 9). Middle Harbour/Pearl Bay Townscape Area (j) Non-compliance with Part 6, Clause 6.12 of the DCP, as follows: · Gabled roofs are particularly characteristic. The proposed garage is a flat roof. Even though the adjoining residence (28 Euryalus Street) has a flat roof, the proposed garage could have achieved more in terms of its roofing, to improve the streetscape presentation of the development. · A poorly designed double garage in front of the building line does not achieve "street presence". · The proposal is not a "well designed garage located behind the building line". LANDSCAPING 2. Whether the proposal should be approved notwithstanding failure to comply with the landscaped area requirements of clause 15 of the LEP. Area provided is 235 square metres and area required is 263 square metres. Whether the objectives of this clause are met notwithstanding the numerical non-compliance. 41 The following emerged as the salient issues: · Garage design; and · Landscaping. The evidence and findings Garage design 42 Mr Hallen for the applicant submitted that after an assessment of the impacts of the proposal for a new double garage are made a subjective assessment should then be made of the reasonableness of the application. He submitted that the applicant considered the impacts of the application to be reasonable and necessary in order to provide car parking for three cars and for storage. He pointed to other garages in the street were erected on the front alignment. 43 Ms Walsh for the respondent pointed out that other garages in the street had been approved by the council under previous planning regimes and submitted that the test on the acceptability of impact, on both counts, should be objective. 44 I accept the submission of Ms Walsh that the test for acceptability of impact depends not only on the impact itself but on whether it would be reasonable or necessary as outlined in Super Studio v Waverley [2004] NSWLEC 91 by Dr Roseth SC. It is an objective test, and hardship of the applicant is not a matter that should weigh heavily on the decision-maker in the planning context. 45 Although I accept the evidence of Mr Long that the modified design suggested by the applicant with a gable pitched roof [Note: Exhibit C] would better integrate with the existing dwelling, I am satisfied that it would project too far forward and as a result would adversely impact on the streetscape. 46 As indicated in the Council's Code [Note: Exhibit 1 Tabs 3 and 4 Code pp 34-6] and the RDCP, the council seeks to discourage garages in front of the building line. The proposal would contravene this objective. 47 When viewed from the south the proposed garage would slightly obscure view of the landscaping in the courtyard at the front of the existing dwelling and would be likely to interrupt, with its building mass, the openness of the front gardens along the street. The likely impact can be gauged by viewing the garage at No 28 Euryalus Street abutting to the north which projects forward to the front alignment. This cannot be seen as a precedent as it was approved in 1989 and prior to the coming into operation of the MLEP and RDCP. 48 Double garages are permitted, without FSR penalty, for dwellings of the size of the subject. In that context the existing two-car garage should be seen as reasonable. The proposed four-car garage could be seen as being unreasonable in that context as well. 49 I have carefully weighed up the visual impact of the proposal in the streetscape and I accept the evidence of Mr Samardzic in that regard and refuse that part of the application. Landscaping 50 With the garage deleted from the application there would be no change in the landscaped setting of the existing dwelling and the lack of landscaped area when compared with that required under the RDCP, would not be a reason to refuse it. 51 For the above reasons, the appeal is upheld in part. Conditions 52 The conditions are those in Exhibit 2. Orders 53 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld in part. 2. Development application No 8.2003.454.1 lodged with the respondent council on 18 December 2003, to alter and add to the existing dwelling at Lot 12, DP 4311, being No 30 Euryalus Street, Mosman approved subject to Conditions 1 to 30 in Annexure A. 3. The exhibits are retained. S J Watts Commissioner of the Court sw Appeal No 10258 of 2004 Conditions of development consent Annexure A La Coste & Stevenson v Mosman Municipal Council Premises: No 30 Euryalus Street, Mosman Approved Plans and Documentation 1. The development must be carried out in accordance with the following stamped approved plans and documentation, except where amended by later conditions of consent: Plan Nos. Date of plan Prepared by 0314, DA 100 01, DA 002-009, DA 1 Undated La Coste & Stevenson P/L 01966 (Survey) 11.2 99 Bee & Lethbridge P/L Document title Date of document Prepared by Statement of Environmental Effects December 2003 La Coste & Stevenson P/L 2. In order to improve the streetscape, the double garage (marked in red) must be deleted from this consent. Amended plans, without the double garage, with Waste Management Plan (WMP) are to be submitted with the Construction Certificate. Prior to the release of the construction certificate The following conditions must be satisfied prior to the release of the Construction Certificate. Conditions may require the submission of additional information with the Construction Certificate application. Applicants should also familiarise themselves with conditions in subsequent sections and provide plans in accordance with any design requirements contained therein. Construction Certificate Application Plans 3. Two copies of architectural and Structural Engineer's plans must be submitted with the Construction Certificate application. The structural engineering plans must be signed by a qualified practicing Structural Engineer with corporate membership of the Institute of Engineers Australia or who is eligible to become a corporate member and has appropriate experience and competence in the related field. The plans are to incorporate and note any changes from the approved development application plans as required by conditions of this consent. For applications involving alterations and additions, one set of plans should be coloured which indicate the extent of new works. Dilapidation Report – Council Assets 4. To assist with an assessment for the refund of the security deposit over Council's property, a dilapidation report must be submitted prior to the release of the Construction Certificate. The report must document and provide photographs that clearly depict any existing damage to the road, kerb, gutter, footpath, driveways, street trees, street signs or any other Council assets in the vicinity of the development. Any damage not shown in this manner will be assumed to have been caused as a result of the site works undertaken and must either be rectified at the applicant's expense or compensated by deduction from the security deposit. Dilapidation Report – Private Assets 5. The applicant shall supply Council with a dilapidation report for the adjoining premises, which documents and photographs the condition of buildings and improvements on that property. The report will be held by Council and will be made available in any private dispute between the neighbours regarding damage arising from site and construction works. Sydney Water 6. The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to "Your Business" section of Sydney Water's web site at www.sydneywater.com.au then see Building & Renovating under the heading Building & Renovating, or telephone 13 20 92. The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate. Long Service Levy 7. In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986 , the applicant shall pay a long service levy at the prescribed rate of 0.2% of the total cost of the work to either the Long Service Payments Corporation or Mosman Municipal Council for any work costing $25,000 or more. Security Deposit 8. A cash deposit or bank guarantee to the value of $1,000 in favour of Council shall be provided for the making good any damage caused to Council property. A request for a refund of unused funds may be made following the completion of works and an inspection of the property by Council. Prior to the Commencement of Site Works The following measures must be satisfied prior to the commencement of site works, including any works relating to demolition, excavation or vegetation removal. Notice of Intent to Commence Site Works 9. In accordance with Section 81A(2) of the Environmental Planning and Assessment Act 1979 , no site works (including building works, demolition, excavation or the removal of vegetation) are to commence until: o the Construction Certificate has been issued; o the person benefiting from the consent has appointed a Principal Certifying Authority (PCA) by way of completing Form 7A (attached at the end of the consent); o in instances where Council is not the PCA, the PCA has, no later than 2 days before the building work commences, notified Council of his or her appointment by way of forwarding a completed copy of Form 7A and notified the person benefiting from the consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work by way of completing Form 7B (attached at the end of this consent). In instances where Council is the PCA, Council has completed Form 7B if necessary and forwarded it to the person benefiting from the consent. o the person benefiting from the consent, if not carrying out the work as an owner-builder, has (by way of completing Form 7C): o appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved; and o notified the PCA of any such appointment; and o unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work. o person benefiting from the consent has given Council at least 2 days' notice of the person's intention to commence the erection of the building by way of completing Form 7D. Home Building Act 10. In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, there shall be such a contract in force. Evidence in the form of a copy of the contract must be provided to the Principal Certifying Authority. If the work is to be undertaken by an owner-builder, a copy of the owner-builder permit issued under the Home Building Act 1989 must be provided to the Principal Certifying Authority. Protection of Adjoining Areas 11. If site or building works will: o cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe; or o involve the enclosure of a public place; or o have the potential to damage adjoining private land by way of falling objects then a temporary hoarding, fence or awning must be erected between the work site and the adjoining area. Any such hoarding, fence or awning must be removed when the work has been completed. The fence must be constructed prior to the commencement of works and where adjoining public land shall be covered in cyclone wire mesh to discourage the fixing of posters or graffiti. Lapsing of Consent if Site Works Not Commenced 12. In accordance with Section 95(1) of the Act, this consent shall lapse unless work has physically commenced on the land within 5 years from the date of the consent or in instances where no work is required, the use has commenced within 5 years from the date of the consent. Public Liability Insurance 13. Public liability insurance to the value of $5,000,000 must be taken out by the builder or owner to protect any person, firm or company from injury, loss or damage sustained as a consequence of the carrying out of site works, including all excavation, demolition and construction works. A copy of the policy must be provided to Council or the Accredited Certifier. During Site Works / Construction The following conditions must be satisfied during site and construction works. Compliance with the Building Code of Australia 14. All works are to be carried out in accordance with the requirements of the Building Code of Australia. Signs for Building and Demolition Sites 15. For safety reasons, a sign shall be erected in a prominent position on the premises during demolition or building works stating that unauthorised entry to the work site is prohibited and showing the name of the builder or other person in control of the premises and a telephone number at which that person may be contacted during and outside work hours. The sign must be removed when the demolition or building work has been completed. This condition does not apply to building work carried out inside an existing building or building work carried out on premises that will be occupied continuously (both during and outside working hours) while the work is being carried out. Site Work Hours 16. In order to maintain the amenity of adjoining properties, audible site works shall be restricted to between 7.00am and 6.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. Inaudible site works may also take place between 7.00am and 8.00am on Saturdays. No site works shall be undertaken on Sundays or public holidays. Unless otherwise approved within a Construction Traffic Management Plan, construction vehicles, machinery, goods or materials shall not be delivered to the site outside the approved hours of site works. Dust Control 17. Appropriate measures (e.g. fine water spray) shall be employed during demolition, excavation and construction works to prevent the emission of dust and other impurities into the surrounding environment. All such measures shall be co-ordinated with site sedimentation controls to ensure polluted waters do not leave the site. Council Property 18. The land and adjoining areas shall be kept in a clean and tidy condition at all times. No construction vehicles, building materials, waste, machinery or related matter shall be stored on the road or footpath for the duration of works unless separate approval has been obtained from Council's Traffic Committee for the establishment of a Construction Zone. Under no circumstances will any person be allowed to mix or dispose of concrete, mortar or slurry within Council property. Driveway 19. The levels at the boundary alignment of the property along the Euryalus Street frontage shall be defined by the existing levels. Protection of Landscape Features 20. All natural landscape features including trees and other vegetation, natural rock outcrops, soil and watercourses shall remain undisturbed except where affected by necessary works detailed on approved plans. Tree Preservation 21. All street trees and trees on private property that are protected under Mosman Council's Tree Preservation Order 2003, shall be retained except where Council's prior written consent has been obtained, or where after approval of the relevant Construction Certificate, trees stand within the envelope of approved buildings or within the alignment of approved permanent paved vehicular access roads and parking areas. Local Government Act 1993 22. This consent does not authorise the carrying out of any of the following activities which require the separate approval of Council under Section 68 of the Local Government Act 1993 : · Place a waste storage container in a public place · Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway Note: A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence under Sections 626 and 627 of the Local Government Act 1993 . Approved Plans 23. A copy of the stamped approved plans must be kept on site for the duration of site works and be made available upon request to either the Principal Certifying Authority or an officer of the Council. Critical Stage Inspections 24. To ensure building works are carried out properly and in accordance with the conditions of this consent, with the Building Code of Australia and or with relevant Australian Standards, the following critical stage inspections are to be carried out: [For application – Class 1 and 10 buildings] • at the commencement of the building work; • after excavation for, and prior to the placement of, any footings; • prior to pouring any in-situ reinforced concrete building element; • prior to covering of the framework for any floor, wall, roof or other building element; • prior to covering waterproofing in any wet areas; • prior to covering any stormwater drainage connections; • fire separation if the building is within 900mm of the property boundary prior to any occupation certificate being issued in relation to the building; • smoke alarms prior to any occupation certificate being issued in relation to the building; and • final inspection after the building work has been completed and prior to any occupation certificate being issued in relation to the building. The critical stage inspections must be carried out by the Principal Certifying Authority PCA, or if the PCA agrees, by another certifying authority excepting the final inspection which must be carried out by the PCA. Notes: Records of the above critical stage inspections will be required to be submitted prior to the release of the Occupation Certificate – see later conditions of consent. If you intend engaging Council to undertake the inspections, please telephone the area Building Surveyor or Council's Case Officer on 9978 4044 to arrange a suitable time. Record of Inspections Carried Out 25. In accordance with clause 162B of the Environmental Planning and Assessment Regulation 2000 , the certifying authority responsible for critical stage inspections must make a record of each inspection as soon as practicable after it has been carried out. Where Council is not the PCA, the PCA is to forward a copy of all records to Council. The record must include details of: · the development application and construction certificate number; · the address of the property at which the inspection was carried out; · the type of inspection; · the date on which it was carried out; · the name and accreditation number of the certifying authority by whom the inspection was carried out; and · whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out. Materials & Finishes 26. The finished external surface materials, including colours and texture of any building, shall match the detail and materials of the existing building. Landscape Completion 27. A minimum of two canopy trees capable of attaining a height greater than ten metres and planted at an advanced pot size, must be located in the front area on the property. Prior To Occupation The following condition must be satisfied prior to occupation of the development. Compliance Certificates and Inspection Records 28. Where Council is not the Principal Certifying Authority, a copy of any compliance certificates and or records of inspections received by the PCA shall be forwarded to Council prior to occupation or commencement of the use. Occupation Certificate 29. Occupation or use, either in part or full, shall not take place until an Occupation Certificate has been issued. The Occupation Certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with. Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council. During Occupation The following conditions must be satisfied during occupation or use of the development. Noxious Weeds 30. To prevent the spread of undesirable and invasive species and to ensure the preservation of urban bushland, all noxious weeds shall be removed and continually suppressed. A list of noxious weeds may be obtained from Council or viewed on its web site at http://www.mosman.nsw.gov.au and then under "Environment" and "Trees and Weeds". S J Watts Commissioner of the Court Advice / Notes The following points are issued as advice to the applicant. They do not form conditions of the Notice of Determination. · Headings such as "Prior To The Release Of The Construction Certificate" together with bolded notes that immediately follow, form part of this Notice of Determination. Conditions under the respective headings shall be read in the context of the heading and note. · Section 82A of the Act provides for an applicant to request Council to review its determination excepting applications made on behalf of the Crown or applications in respect of designated development, integrated development or a complying development certificate. The request for review must be made within 12 months of the date of determination or prior to appeal being heard by the Land and Environment Court. A decision on a review may not be further reviewed under section 82A. · If you are unsatisfied with this determination, Section 97 of the Act gives you the right of appeal to the Land and Environment Court within 12 months of the determination date. · A public inquiry by a Commission of Inquiry was not held under Section 119 of the Act. · Other public authorities may have separate requirements and should be consulted in the following respects: · Australia Post for the positioning and dimensions of mail boxes in new commercial and residential developments; · AGL Sydney Limited for any change or alteration to gas line infrastructure; · Energy Australia for any change or alteration to electricity infrastructure or encroachment within transmission line easements; · Telstra, Optus or other telecommunication carriers for access to their telecommunications infrastructure. vi. This decision does not ensure compliance with the Commonwealth Disability Discrimination Act 1992 . Applicants may wish to investigate their potential for liability under that Act. vii. Failure to comply with the relevant provisions of the Act and/or the conditions of this consent may result in the serving of penalty notices or legal action through the Land and Environment Court. viii. In accordance with section 81A of the Act, the person benefiting from this consent is notified that if Council is engaged as the Principal Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading "Critical Stage Inspections" in this consent. If additional inspections are required, further notice will be provided. 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.