Land and Environment Court of New South Wales CITATION : Krivanek v Blue Mountains City Council [2004] NSWLEC 462 APPLICANT Dr J F and Mrs P A Krivanek PARTIES : RESPONDENT Blue Mountains City Council FILE NUMBER(S) : 10343 of 2004 CORAM: Brown C Development Application :- consolidation of five lots into one relocation of an existing dwelling demolition of existing structurs KEY ISSUES: erection of 15 new dwellings strata subdivision of 16 dwellings heritage impact of dwelling relocation State Environmental Planning Policy No. 5 LEGISLATION CITED: Blue Mountains Local Environemtnal Plan No. 4 Draft Blue Mountains Local Environmental Plan 2000 CASES CITED: DATES OF HEARING: 3/08/04 DATE OF JUDGMENT: 08/04/2004 APPLICANT Mr C Drury, solicitor SOLICITOR Phillips Fox LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITOR Marsdens Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Commissioner Brown 4 August 2004 10343 of 2004 Dr J F and Mrs P A Krivanek –v- Blue Mountains City Council JUDGMENT 1 This is an appeal against a refusal by the Blue Mountains City Council (the council) Development Application No XO2/1888 involving the consolidation of five lots into one lot, the relocation of an existing dwelling, the demolition of all other existing structures, the erection of fifteen new dwellings and the strata subdivision of the sixteen dwellings. The proposal development is designed for older people or people with a disability. 2 The location of the proposed development is 15 Hope Street and 8-10 View Street, Blaxland consisting of Lots 1 and 2 in DP537820, Lot 1 in DP326429 and Lots 3 and 4 in DP23271 (the subject site). The subject site has an area of 5523 sq m. 3 The subject site is zoned part Residential 2(c1) and part Residential 2(a1) under the provisions of Blue Mountains Local Environment Plan No 4 (LEP 4). The subject site is also subject to the provisions of Draft Blue Mountains Local Environmental Plan 2002 (the draft LEP) however the principal planning instrument for the assessment of the development application is State Environmental Planning Policy No 5 - Housing for Older People or People with a Disability (SEPP 5). Although SEPP 5 has been repealed by State Environmental Planning Police - Seniors Living, the application is captured by the savings provision of the new policy. 4 The two issues in the Statement of Issues address only the heritage impacts associated with the relocation of the existing dwelling. In this regard the parties agreed to the appointment of Mr Robert Staas as the Court-appointed heritage expert to address the issue of the building relocation. His evidence indicated that the proposal to relocate the dwelling is reasonable and acceptable in the circumstances subject to appropriate conditions of consent. The issues in the proceedings did not raise any issues associated with SEPP5. 5 In considering the relocation, the dwelling in question is a single weatherboard cottage built around 1914 and containing three bedrooms, two living rooms, bathroom and kitchen and includes more recent additions to the rear of the dwelling. It has significance as it forms part of a group of dwellings previously associated with the Reverend Joshua Hargrave and the evolution of the Blaxland Village. The details of this association are set out in some detail in the documents presented to the Court. There was no dispute over these details, only the significance that should be attributed to the dwelling. 6 The dwelling has been the subject of numerous heritage evaluations including the council's own heritage inventory, reports by the applicant's heritage consultants, independent reports commissioned by the council, the New South Wales Heritage Office, and also Mr Staas. The general thrust of these documents was that the dwelling was of local significance and while it would be preferable to keep the dwelling at its existing location the relocation of the dwelling elsewhere on the subject site was an acceptable solution. 7 This was a conclusion not accepted by a number of residents of the local area. They considered that the dwelling had a greater than local significance and that the relocation should not be contemplated, as it would greatly diminish the significance of the dwelling. They argued that the applicant had not shown why it was not viable to amend the development application to accommodate the dwelling in its existing location. 8 In terms of the Courts assessment, the dwelling is not an identified heritage item or located within a conservation area. It is identified in the council's 2002 Heritage Study as being part of a group of dwellings and having local significance. 9 In considering the competing approaches, I prefer the evidence of Mr Staas. Even putting aside the fact that the dwelling or group of dwellings has no current statutory listing, I accept that the dwellings have local significance. I am not convinced that the relocation of the dwelling to the north-east will impact significantly on the heritage values to the point where the development application should be refused. 10 In my view Mr Staas correctly points out that the greater level of significance rests with the association with the Hargraves-Culver family rather than the cottage itself. He states that this heritage relationship will be unaffected by the relocation. I also accept Mr Staas' evidence that the relocation has some benefits in terms of restoring the dwelling to its original form and an increased prominence from the street. 11 It was argued by the residents that the proposal to relocate the dwelling was in conflict with Article 9 of the Burra Charter where it states, that "relocation is generally unacceptable unless this is the sole practical means of ensuring its survival". I accept Mr Staas' evidence that the Burra Charter provides principles for conservation and is not a statutory document. I note that Article 9 also provides that if a building is moved it should be moved to an appropriate location and given an appropriate use. In this case, it is to remain at the same site and it is to be used for domestic purposes. In my view, Article 9 of the Burra Charter should not be read as a prohibition but as a guideline and a matter to be considered in the assessment process. Because of the particular circumstances of this application it does not justify the refusal of the application. 12 Even if the proposed dwelling was an identified heritage item, the consideration required by cl. 58 of LEP 4 or cl. 70 of the draft LEP would not, in my opinion, warrant the refusal of the development application. In relation to the argument that the applicant did not show why the retention of the dwelling in its existing location was not viable, it is important to remember that the role of the Court is to consider the application as presented to it, not whether there are other or more suitable alternatives. 13 It was also argued that the view of the New South Wales Heritage Office changed from their initial assessment to the time the official written reply was formulated. While this may have been the case, the Court should rely on the formal (and final) correspondence that ultimately supported the relocation. In any event the advice of the New South Wales Heritage Office was consistent with the other expert heritage advice provided to the Court. 14 Of the Council's draft conditions, two conditions were in dispute. The first condition, No 3(b), relates to the positioning of new dwellings around the relocated dwelling. The applicant prefers a design shown in Exhibit B that provides for two dwelling in View Street and one dwelling in Hope Street. The council, through its conditions, prefers a layout that provides for two dwellings in Hope Street and one dwelling in View Street. In balancing these alternate designs I prefer the applicant's design as it provides a greater curtilage around the relocated dwelling and only a marginally different appearance in the View Street streetscape. 15 The second condition, No 25, requires the construction of a 325 mm pipe along View Street to the southern boundary of No 18 View Street. The applicant opposes this condition, as it does not directly relate to the proposed development. Based on the explanation provided to the Court on the proposed drainage, including the post-development flow being no greater than the pre-development flows, I agree to the amendment of this condition to delete a reference to the drainage in View Street. 16 While the issue in the proceedings deal only with the heritage impacts of the relocation of the dwelling the Court is required to consider the particular requirements of SEPP 5. In this regard the Court was provided with a report of the council officers. Having reviewed the contents of this report, I agree that the proposed development satisfactorily addresses the requirements in SEPP 5. 17 For the foregoing reasons the orders of the Court are: 1. The appeal is upheld. 2. Development Application XO2/1888 is approved subject to the agreement conditions and the amendments contained in this judgment. 3. The exhibits are returned with the exception of exhibits 6A, B, C, D, E and A1. _________________________ G T Brown Commissioner of the Court ljr Annexure "A" Conditions of Development Consent Dr J F and Mrs P A Krivanek v Blue Mountains City Council Confirmation of relevant plans 1. To confirm and clarify the terms of consent, the development shall be carried out in accordance with the following plans: a. prepared by Peter Reed and Associates, numbered 0204/DA/01 – 03, dated 1 May 2003; b. prepared by Peter Reed and Associates, numbered 0204/DD/04 - 11, dated October 2002 c. and accompanying supportive documentation, except as otherwise modified by the conditions of this consent. To confirm and clarify the terms of consent, the development shall be carried out in accordance with the following plans: Confirmation of relevant plans 1. a. prepared by Peter Reed and Associates, numbered 0204/DA/01 – 03, dated 1 May 2003; a. prepared by Peter Reed and Associates, numbered 0204/DD/04 - 11, dated October 2002 and accompanying supportive documentation, except as otherwise modified by the conditions of this consent. Period of development consent 2. The period referred to in Section 95(1)(a) of the Environmental Planning and Assessment Act, 1979 is reduced so that this development consent will lapse two (2) years after the date from which it operates unless the requirements of Section 95(4) of the said Act have been met by that time. Relocation of dwelling at 1 Hope Street Blaxland 3. To ensure the ongoing significance of the dwelling at 1 Hope Street Blaxland, it shall be relocated to the location identified as Option 1 in the Heritage Analysis Report (with addendum) prepared by Integrated Design and dated May 2003. The relocated dwelling shall be positioned as follows: a. The western (side) elevation shall run parallel to the View Street road alignment and shall be setback approximately 4m from it. b. The northern (front) elevation shall be set back a minimum of 4m from the Hope Street road alignment. c. A 4m landscaped area shall be maintained to the southern (rear) and eastern (side) elevations of the relocated dwelling. d. Dwelling identified as "7A3" shall be repositioned to be east of the relocated dwelling and shall be converted to a type "B" dwelling. Dwelling identified as "8D" shall be repositioned to the south of the relocated dwelling and shall be converted to a type "B" dwelling. Dwelling "9B" shall be rotated so that, with dwelling 8B, both have a frontage to the central access road. e. Repositioned dwelling "7A3" shall be setback a minimum 4m from the Hope Street road alignment and 2m from the driveway access handle. Construction certificate (building) 4. A construction certificate is required prior to the commencement of any site or building works. This certificate can be issued either by Council as the consent authority or by an accredited certifier. Access and mobility statement 5. To ensure appropriate access and facilities for Older People or People with a Disability, a statement is required from a suitably qualified Access and Mobility Specialist, certifying that the development complies with all relevant provisions of the following: a) State Environmental Planning Policy No.5, Clause 13A (4)-(21) b) Australian Standard AS1428, and c) Australian Standard AS4299-1995 Adaptable Housing Class C . This statement is to form part of the Construction Certificate documentation. National Housing Energy Rating Scheme. 6. A final set of plans shall be submitted to Council, prior to release of the Construction Certificate, showing how each dwelling shall achieve a minimum 3.5 star rating under the NatHERS system. The final set of plans shall include all finished external and internal material, including insulation levels, cladding etc, used to attain the respective rating for each dwelling. The material submitted for the Construction Certificate shall include the detail included in the final set of plans to show that all material used for the rating has been incorporated into the Construction Certificate plans. Compliance with State Environmental Planning Policy 5 (SEPP 5) 7. a. A plan of consolidation must be lodged with the Land and Property Information Office and a copy of the consolidation submitted to Council prior to release of the Occupation Certificate. b. An instrument is to be created, pursuant to Section 88B of the Conveyancing Act 1919, and submitted in a form acceptable to Council, prior to occupation of the units, indicating that the only permitted occupants or owners of units within the development are the following: i) older people (aged 55 years or over) or people who have a disability, ii) people who live with older people or people who have a disability, iii) staff employed to assist in the administration of and provision of services to housing provided under State Environmental Planning Policy 5 (SEPP 5). Council is to be the only body with authority to vary any of the above provisions. Bush Fire Safety Authority 8. The Rural Fire Service is prepared to grant a Bush Fire Safety Authority, under Section 100B of the Rural Fire Act 1997, subject to the following conditions: a. A reticulated water system, which conforms with AS 2419, shall be provided if a mains water supply is available. Alternatively a static water supply of at least 10,000 litres per dwelling shall be provided. This shall be fitted with a 65mm Stortz outlet and a ball or gate valve. This static water supply may be consolidated into a single central storage tank with a capacity of 85,000 litres reserved for fire suppression activities. b. There should be a minimum of 80m setback from the hazard, on land to the south of the development, to the proposed dwellings as outlined within table A2.3 in Planning for Bushfire Protection 2001. c. The property around the dwellings shall be maintained as an inner protection area (IPA) as outlined within the Planing for Bushfire Protection 2001 policy. Trees within the IPA shall not overhang the roofline (ie 5m between canopy and roof). d. All residential buildings shall comply with AS 3959 –1999, Level 1,2,3 construction. e. All access to be constructed to comply with Planning for Bushfire Protection policy 2001. Internal road access (including roundabout) must be a minimum of 4m wide with an additional 1m cleared reserve on each side. f. A Bush Fire Evacuation Plan is to be submitted to the NSW Rural Fire Service – Planning and Environment Services for approval. The evacuation plan is to detail the following: a. Under what circumstances will the complex be evacuated. - Where will all persons be evacuated to. - Roles and responsibilities of persons co-ordinating the evacuation. - Roles and responsibilities of persons remaining with the complex after evacuation. A procedure to contact the NSW Rural Fire Service District Office/NSW Fire Brigade and inform them of the evacuation and where they will be evacuated to. Building Code of Australia 9. All building work must be carried out in accordance with the provisions of the Building Code of Australia. Builders details 10. Prior to any works commencing on the site, written advice as to the builder's details (name, address and licence number) is required for Council records. Signage 11. To ensure that the site is easily identifiable for deliveries and provides information on the person responsible for the site, a sign displaying the following information is to be erected: o The statement "Unauthorised access to the site is not permitted". o The names of the builder or another person responsible for the site along with an out of hours contact number. o Lot or Street number. Heritage Conservation and Management Plan 12. Prior to the commencement of any demolition or site works, a Heritage Conservation and Management Plan, prepared by a suitably qualified and experienced practitioner, shall be provided for the approval of Blue Mountains City Council. The Plan shall cover the entire site and detail how all identified works shall proceed. This Plan shall include detail of the following: o method for relocation of the existing dwelling at No. 1 Hope Street, o extent of archaeological investigation/monitoring over the entire site, o details of appropriate procedures for the recording of any additional archaeological evidence or relics that may be revealed during development. o whether archaeological approvals are required from the Heritage Council. These shall be attached to the Plan submitted for approval. o An interpretation strategy, prepared by a suitably qualified practitioner, will be provided for the site. The strategy must, amongst other things, address the dwelling at 1 Hope Street in the context of the Hargraves – Calver properties. o The above strategy shall be submitted to Council for approval prior to the commencement of any site works. The Heritage Conservation and Management Plan shall indicate a suitably qualified person who shall be responsible for supervision of the above work. Relocation of dwelling and demolition management 13. Relocation of the dwelling at 1 Hope Street shall be executed by a competent person, with due regard for the integrity of the structure, safe working practices and in accordance with the requirements of the Workcover Authority. The demolition of all other existing structures shall be directly supervised by a competent person. It is the responsibility of the person to ensure that: a) The structure to be demolished and all its components shall be maintained in a stable and safe condition at all stages of the demolition work. Temporary bracing, guys, shoring or any combination of these, shall be added for stability where necessary. b) Precautions are taken to ensure that the stability of all parts of the structure and the safety of persons on and outside the site are maintained particularly in the event of sudden and severe weather changes. Severe weather changes refer primarily to the localised high winds. In these circumstances loose debris can become airborne, particularly if it is in sheet form. c) The site shall be secured at all times against the unauthorised entry of persons or vehicles. d) Utility services within the structure not required to be maintained during the demolition work shall be properly disconnected and sealed off before any stripping or demolition commences. e) Appropriate Workcover Australia safety measures to be utilised during relocation of the dwelling Removal of hazardous waste 14. Removal of dangerous or hazardous materials shall be carried out in accordance with the provisions of all applicable State legislation and with any relevant recommendations published by the National Occupational Health and Safety Commission (Worksafe Australia). v Only competent and registered persons shall carry out removal. v Removal of asbestos or materials containing asbestos fibres, shall be in accordance with the NOHSC code of practice. v Precautions to be observed and procedures to be adopted during the removal of dangerous or hazardous materials other than asbestos, shall be in accordance with the relevant State regulations pertaining to those materials. Site management 15. To safeguard the local amenity, reduce noise nuisance and to prevent environmental pollution during all relocation, demolition and construction work: a. Site and building works (including the delivery or removal of materials to and from the property) shall be carried out Monday to Friday between 7am-6pm and on Saturdays between 8am-3pm. Alteration to these hours may be possible for safety reasons but only on the approval of Council. b. Stockpiles of topsoil, sand, aggregate, spoil or other material shall be stored clear of any drainage path or easement, natural watercourse, footpath, kerb or road surface and shall have measures in place to prevent the movement of such material off site. c. Building operations such as brickcutting, washing tools, concreting and bricklaying shall be undertaken on the building block. The pollutants from these building operations shall be contained on site. d. Builders waste must not be burnt or buried on site. All waste (including felled trees) must be contained and removed to a Waste Disposal Depot. Erosion & sediment controls 16. To preserve the surrounding environment, a soil and water management plan in accordance with Council's Erosion & Sediment Control policy is to be submitted to and approved by the Principal Certifying Authority, prior to clearing of any site vegetation and the commencement of site works. This plan is to include scaled drawings and detailed specifications that can be readily understood and applied on site by supervisory staff. Items to be shown on the plan are to include: a. locality; b. contours (existing and final); c. existing vegetation; d. existing site drainage; e. limit of clearing, grading and filling (location of all earthworks including roads, areas of cut and fill and regrading); f. locations and design criteria of erosion and sediment control structures; g. site access; h. proposed vegetative buffer strips; i. location of critical areas (drainage lines, water bodies etc.); j. proposed techniques for stabilisation of disturbed ground; k. procedures for maintenance of erosion controls; l. details for staging works; m. techniques for dust control. Workers amenities 17. Before work starts, toilet facilities must be provided for construction personnel on the site on the basis of 1 toilet for every 20 workers. Amenities are to be installed and operated in an environmentally responsible and sanitary manner. Toilets cannot remain on site for any longer than 12 months, without the further approval of Council. Plans on site 18. A copy of the stamped and approved plans, development consent and the construction certificate are to be held on site at all times during relocation, demolition and construction work. External finishes 19. To ensure that the development is compatible with the surrounding environment, colours and finishes are to be as indicated in the submitted Schedule of Finishes. The driveway is to be finished in muted non reflective tones. Modification of the submitted colours and finishes is only possible upon the written approval of Blue Mountains City Council. Landscaping 20. A detailed landscape plan shall be submitted to Blue Mountains City Council for approval prior to release of the Construction Certificate. The Landscaping Plan shall include the following: a. An overall landscape concept for the site showing the species, number and sizes of plants to be used. be plan shall show how a visual corridor is to be retained from the Hope Street frontage to the Hargraves Calver gardens along View Street. b. All front setbacks, the landscape strips along the driveway and areas between the site and adjoining properties. c. Any trees that require removal due to the construction process, but have been identified in the Tree Assessment Report as being retainable, shall be replaced with an appropriate mature species. d. The proposed method(s) of protection of vegetation to be retained on the site. e. All plants and landscaping on the site are to be maintained at all times. Any plants that die or are removed must be replaced with plants of the same species and of a similar stage of growth. f. All disturbed areas are to be revegetated or re-grassed. Kikuyu grass is not to be used for this purpose. g. Units 10 – 13 shall be provided with formal footpath and gate to the internal driveway. h. Details of internal fencing and fencing to property boundaries. Protection of vegetation 21. To limit disturbance of significant trees on and in the vicinity of the site, the Landscape Plan shall identify any significant trees that are at risk of substantial damage, including to their root system, during the construction phase. The Landscape Plan shall outline the nature of the risk and how these trees are to be protected to ensure continuation of their viability. Fences 22. To avoid potential adverse impact on the amenity of residents, fencing shall be provided along all property boundaries. All internal boundaries shall consist of soft landscaped fencing, except where these are inadequate or inappropriate for privacy or safety reasons. A design for appropriate heritage style fencing to the relocated cottage and for the remainder of the site shall be provided to the satisfaction of Council's heritage adviser prior to the issue of a construction certificate. Details of fencing shall be included on the submitted Landscape Plan with all costs associated with fencing to be borne by the developer. Lighting 23. To protect the amenity of the local area, all external lighting is to be positioned, directed and shielded so that it does not interfere with traffic safety or cause nuisance to adjoining and nearby properties. Strata Subdivision certificate (linen release) 24. An application for a Strata Subdivision Certificate is required on satisfaction of all the conditions of development consent. The application is to be lodged with and approved by Blue Mountains City Council as the consent authority. The application shall include the original plan of subdivision plus 5 copies. The location of all buildings, common areas, unit entitlement and / or other permanent improvements must be shown. Engineering Conditions Internal 25. a. All vehicles along the Hope Street frontage shall enter and leave site in a forward direction. b. The driveway to Units 11B and 12B shall be double driveway width from the garage to the proposed kerb and gutter in View Street. c. The size of vehicles visiting the site shall be restricted to the B85 design car as per AS 2890.1/1993, except for emergency vehicles. d. Internal footpaths are to provide suitable access from all proposed units to the Hope Street frontage. e. The grade of the access driveways from the invert of kerb and gutter in Hope Street to the road boundary is to be no steeper than 5% (1:20) as per AS 2890.1/1993. For the driveways in View Street, the grades are to conform to Council's Standard Gutter Crossing Application and Specification. f. All car parking areas and driveways are to conform to AS 2890. The recommendations in the McLaren Traffic Engineering Report dated June 2003 are to be implemented. g. Kerbs and formation paving and sealing of access driveways and car parking areas in the development site, together with any necessary drainage, retaining walls and works are to be provided to make the construction effective. All driveways and sealed areas are to have a featured surface. h. All roof surfaces, car parking access and paved areas shall be drained by pits and pipes. All drainage is to be subject to engineering design in accordance with ARR 1987. Provision is to be made for the collection of oils and grease. i. Discharge from the site is to be restricted to pre-development flows for a range of storms up to ARI 1:100yrs. Accordingly, on site detention (OSD) is to be provided in accordance with ARR 1987. All site drainage is to be piped through OSD systems. j. The piping and provision of the OSD system is to be generally in accordance with the J Wyndham Prince Concept Stormwater Management Strategy dated 17 October 2002 subject to the following: A. Roof drainage for the Units 16C and 17C must possess the capacity to drain a 1:100 year storm event. B. The piping in respect of the 1:100 year storm event along the southern boundaries of Lot 1 DP 326429 and Lot 4 DP 23271 shall be sized to cater for 80% blockages. A surcharge path is to be created over the pipe along the eastern and southern boundary of Lot 4. C. The detention tank is to be located entirely on site, and not within Council's footpath reserve. D. The discharge from the site shall be piped down View Street to the south to the southern boundary of No. 18 View Street and discharged into the public reserve to the south of No. 18 View Street unless it can be demonstrated by design prepared by a chartered civil engineer that an earlier discharge point in View Street will not cause scouring in View Street and will otherwise satisfy the Council's requirements for stormwater management. E. The discharge design shall address: · Velocity dissipation · Scour protection · public access F. Where piping is required in View Street pursuant to condition 25jD above the minimum pipe size is to be 375 millimetres diameter reinforced concrete pipe with rubber ring joints, with the final dimension to be ascertained by hydraulic design in accordance with ARR 1987. G. Discharge from the detention system is to provide for the 1:1 year storm event. Engineering Conditions External 26. View Street a. The construction shall include a roll-top kerb & gutter, and adjacent sealed shoulder pavement works over the full frontage of the development site to View Street. The construction is to include any necessary drainage and works to make the construction effective. In this regard the kerb return into Hope Street is to be provided together with drainage adjustments. The roll-top kerb & gutter alignment is to provide a 6.0 metre wide carriage way in View Street and is to be generally located 0.5 metres off the edge of bitumen. Before the submission of the design, the applicant is invited to consult with Council's Development Engineer. b. Concrete Footpath Construction A concrete footpath 1.2 metres wide shall be constructed from the existing Hope Street footpath along the full View Street frontage of the development site. The remainder of the footpath is to be topsoiled and turfed. A safety aris hand railing is to be constructed on top of the embankment over the full frontage of Lot 1 DP 537820 between the footpath and the road pavement. The embankment is to be landscaped in accordance with an approved landscaping plan. c. Sight Distance Improvements The footpath area north of the driveway to Units 11B and 12B is to be reshaped/lowered to provide sight distance requirements in accordance with AS 2890-1/1993. d. For the driveways across View Street footpath, new heavy duty concrete layback and apron crossings are to be constructed. The surface is to be a featured surface. This construction is to include transition of the footpath and internal driveway, the adjustment of public utilities and regrading the driveway across the footpath to facilitate quick entry/exit movements and prevent scraping of vehicles. In this regard the pipe crossings are to be replaced by standard concrete and apron crossings. The grades of the driveways over the footpath are to meet Council Standards in Condition 25(e) above and the internal driveways and levels are to be adjusted accordingly. Hope Street Frontage e. For the driveway across Hope Street footpath, new heavy duty concrete layback and apron crossings are to be constructed. The surface is to be a featured surface. This construction is to include transition of the footpath and internal driveway, the adjustment of public utilities and regrading the driveway across the footpath to facilitate quick entry/exit movements and prevent scraping of vehicles. f. The minimum driveway width at the road boundary and kerb and gutter alignment shall be 5.5 metres and 7.5 metres respectively. g. The footpath area is to be top soiled and turfed where required. h. Existing unused laybacks to be replaced with 150mm kerb and gutter, concrete path paving and turfing. Traffic and Pedestrian Provision The development shall include the provision of pedestrian refuges and "No Stopping' Signs as recommended in the McLaren Traffic Engineering Report dated June 2003. The design and construction is to be in accordance with AS 1742-10-1990 Manual of Uniform Traffic Control Devices Part 10 Pedestrian Control and Protection and Traffic Authority of NSW Guidelines for Traffic Facilities Pedestrian Refuges Part 4.2 First Edition April 1986 as amended. The design is to be subject to the approval of Council's Development Traffic Committee. This approval is to be obtained prior to any approval required under the Roads Act. Engineering Conditions General 27. a. All internal and external engineering works required by this development are to be in accordance with Council's Specification for Engineering Works for Subdivisions and Developments Part 1 Design and Part 2 Construction (Development Control Plan No. 31). b. A qualified Civil/Structural Engineer shall supervise the work. c. A certified and approved "Works as Executed" Plan of all the engineering works is to be submitted to Council at the completion of works. d. The design of all engineering structures shall be certified by a chartered engineer (NPER-3 Structural registered) as conforming to the relevant standards and load capacities. e. The construction of these structures is to be supervised and certified by a chartered engineer (NPER-3 Structural registered) as conforming to the approved design and load capacities. f. Before work is commenced on site, a Traffic Management Plan Report prepared by a suitably qualified person is to be submitted to and approved by Council. g. The Management Plan is to address, among other things, loss of on-street parking during construction, safety of public, materials storage and handling deliveries and construction traffic and parking. h. Safety devices such as signs, barricades, barriers, warning lights, etc. shall be placed where works affect Council roads and shall be in accordance with Australian Standard 1742 – "Manual of Uniform Traffic Control Devices" and RTA Manual – "Traffic Control at Work Sites 1998". Details prepared by a qualified person shall be submitted to Council for approval with the Traffic Management Plan Report. i. The contractor shall submit to Council the names of proposed traffic controllers with a signed declaration stating that they are appropriately trained in the duties of traffic controllers and are RTA accredited. j. All damage caused by construction traffic is to be remediated by the applicant. k. Any relocation or alteration of public utilities or any existing services made necessary as a result of this development is to be carried out at no cost to Council, with satisfactory arrangements being made with the authority concerned, and a certificate of clearance obtained from each relevant authority. l. An on-site meeting is to be arranged with Council's Supervising Engineer prior to commencement of any work in Hope Street or View Street, for the purpose of pre-construction meeting. The appropriate inspection fee is to be paid prior the meeting. m. All contractors working in the road reserve shall be covered for worker's compensation insurance and public liability insurance to the amount of $10million. 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 Supervising Engineer at the pre-construction meeting referred to in Condition 27(1) above. n. A performance and maintenance bond, to the value of five (5) percent of the engineering construction or a minimum of $10,000, whichever is the greater is to be paid to Council, and held by Council, for a period of six (6) months after the issue of an occupation certificate. The bond is to be paid prior to the issue of a construction certificate. o. Before any work is undertaken on Council Roads, plans and specifications are to be submitted to and approved by Council under the Roads Act 1993. p. Approval of the engineering designs by Council is subject to the payment of the prescribed Engineering Development Fees at the time of lodgement. q. All works on Council Roads to be at no cost to Council. r. Scour protection and sediment control measures are to be implemented by the Applicant. s. All disturbed earthworks and/or batters are to be restored, stabilised, topsoiled and turfed / revegetated. ______________________ G T Brown Commissioner of the Court rjs/ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.