Land and Environment Court of New South Wales CITATION : Gabb v Ku-ring-gai Council [2009] NSWLEC 1255 APPLICANT Christine Gabb PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10255 of 2009 CORAM: Murrell C KEY ISSUES: SECTION 96 MODIFICATION :- front setback and turning bay: impact on streetscape and heritage items Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Ku-ring-gai Local Environmental Plan Ku-ring-gai Development Control Plan CASES CITED: Zhang v Canterbury CC [2001] NSWCA 167 DATES OF HEARING: 1 July 2009 and 2 July 2009 EX TEMPORE JUDGMENT DATE : 2 July 2009 APPLICANT Mr S Kondilios (solicitor) SOLICITOR Maddocks Lawyers LEGAL REPRESENTATIVES: RESPONDENT Dr Smith (solicitor) SOLICITOR Deacons JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 2 July 2009 10255 of 2009 Christine Gabb v Ku-ring-gai Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 This is an appeal under a s 96(6) of the Environmental Planning and Assessment Act for a modification application seeking the setback condition to be varied or deleted from the consent issued by the Council 14 February 2008. 2 The Court met onsite with the parties yesterday at No. 20 Grosvenor Street, Wahroonga. The subject site is a large site of some 1492 square metres, rectangular in size and on the western side of Grosvenor Street, between Bareena Avenue and Lochville Street. The adjoining lots are also of a significant size. 3 To put the site in its context, the adjoining property at No. 18 is a local heritage listed dwelling, built in the early 1900s, and on the corner further to the south, at No. 16, is another locally listed heritage item, also on a very large allotment. In Grosvenor Street there has been recent redevelopment of properties and there is an eclectic mix of architecture. Nonetheless, there is a predominance of the vegetated ambience that this area is noted for. The roofs of many of the dwellings and the new dwellings are pitched roofs and from the opposite side of the road these dwellings and their roofs are visible within a landscaped setting. 4 The applicant in the proceedings, is seeking to erect the dwelling that has been approved by the council with a reduced setback from the street. The approved dwelling is a two storey dwelling with a driveway set back some 4 metres from the southern boundary. The driveway allows entrance to the double garage that faces the street and a turning bay area. There was some discussion about the appropriateness of allowing a turning bay or reversing bay from the garages to allow vehicles to enter and exit the site in a forward direction. In my assessment given the size of the site and its width of 24 metres, this can be accommodated the issue is then the impact that such a driveway has on the streetscape and the general setting of the area. 5 There was some discussion about whether the subject site is in a statutory conservation area, and while it is not pressed by the council as such, it is in the Heritage Trust Urban Conservation Area No 28 that has been referred to in council's development control plan. I note that there was discussion about the statutory force or otherwise of this particular urban conservation area. Nonetheless, the subject site is within a streetscape that adjoins two adjoining local heritage items. 6 On the site the Court met and heard from a number of resident objectors, in particular the owners of No. 16 and No. 18 Grosvenor. They are concerned about the importance of protecting the heritage of the area and the streetscape and the greater setback as approved by the council allows for more of a landscaped setting consistent with the area wherever the proposed building or dwelling would not dominate the street as such. The owners of No. 18 consider that they would have their amenity impacted by being able to see the garage forward of the building line. The Court also heard from other persons in the vicinity of the subject site concerned about the streetscape. The applicant also provided a bundle of letters of support for the modification application and a local resident spoke in support of the application. 7 There was some question at the beginning of the proceedings about whether the modification application can be considered as a minor modification and subsequently the applicant moved that it be considered under the provisions whereby it is no longer considered as minor and, indeed, the application has been advertised to allow community consultation as such. Therefore this issue is no longer a matter that the Court needs to address. 8 The Court heard from a number of experts in the proceedings. On behalf of the applicant, Dr Richard Lamb, a visual consultant, and also Mr Gregory Patch, a heritage consultant, and Mr Chris Young, a town planning consultant all gave evidence. On behalf of the respondent council evidence was given to the Court by Mr David Logan, a heritage consultant, and the Court also heard evidence from council's planner, who assessed the development application and provided a statement of evidence. 9 The issues in this appeal are somewhat narrow as they relate to the issue of streetscape and whether in fact the proposed dwelling as approved should be allowed to come forward of the setback conditioned by council, which is some 14.2 metres from the street boundary. The original development application submitted was for a 9.2 metre setback, and the s 96 modification application now before the Court is for a 10.2 setback. 10 Dr Lamb provided an analysis of the various setbacks in the street and it can be seen that the setbacks vary considerably in this streetscape. In terms of the adjoining property at No. 22, this is set back some fourteen metres and the heritage dwelling at No. 18, is set back, 18.5 metres from the street. 11 The Court also heard from the experts onsite and, as such, there was no need for concurrent evidence in Court, but I should, for the record, state their summing up of the proposal. 12 Mr Logan is of the opinion that the proposed two storey dwelling will be most visually prominent in the street and he referred to the two storey element and the two storey nature of the dwelling and its appearance from the street and the fact the modification would bring it some eight and a half metres forward of the adjoining heritage items. He said that the other dwellings in this block, which he considers the most relevant visual catchment in which to view the approved dwelling, are generally of single storey and that the eaves height of the proposed dwelling is inconsistent in terms of the single storey dwellings that are seen within this portion of the streetscape. He considers that a setback should desirably be some fifteen to sixteen metres, as contained in his statement of evidence, and he considers that the setback required by the condition of consent should not be reduced by this modification. 13 Dr Lamb considers the condition related to fencing and the driveway are unnecessary and unreasonable. The fence also became an issue in the proceedings and this I will discuss later. 14 Dr Lamb is of the view that the urban conservation area of the National Trust is not a statutory control. He considers that the proposed setback is within the range one sees in the urban conservation area, although not been adopted by the council. In terms of the setback, he considers the proposed modification to the setback is appropriate, following his analysis of various properties within Grosvenor Street and in the vicinity. He comments the contention on setback is far-fetched, as stated in his statement of evidence, considering that the National Trust UCA does not have a statutory force and that the proposed reduced setbacks are consistent with the very setbacks found within the streetscape: "The proposed reduced setback, in my opinion, does not have any significant effect on the existing views to and from the heritage item, to its setting and to its curtilage". 15 Mr Patch is of the opinion that in the streetscape the proposed reduced setback is not inconsistent and would not impact on the streetscape or the heritage buildings and the reduced setback still allows viewing of the heritage items. He considers that there is variation in the front setback and that the dwelling is well modulated in its presentation to the streetscape. He considers the street to be an agglomeration of front gardens and vegetation, glimpses of roofs, and one does not read the building line as such. In his opinion the proposed setback is appropriate for the streetscape and would not adversely impact and provides the benefit of allowing the dwelling to be built at 10.2 which allows the retention of the outbuilding of the 1920s, which was originally the laundry to the existing house on the subject site when the subject dwelling was built. 16 Mr Youhanna, council's planner, is of the opinion that the reference points for establishing a setback are the dwellings on either side and in the particular block described earlier between Bareena and Lochville Streets the proposed dwelling will be most prominent in the streetscape with a reduced setback. He also considers that it is an unnecessary intrusion into what would be the averaging of the setbacks of adjoining dwellings and it would erode the streetscape and the urban conservation area. He also indicated concern about the approval setting a precedent for the application of the council's DCP. 17 Mr Young, for the applicant, said that one will not perceive the reduced setback easily in the streetscape, there is a small difference in perception and one will still see glimpses of houses between, having regard to the side setbacks, although he said there is no impediment to setting the dwelling back, apart from the retention of the laundry and the fact that the applicant wishes to maximise the rear yard and to keep the outbuilding. 18 There was discussion concerning the outbuilding that is the former laundry, and whether it should be retained. In this regard I will go to the history of the development application and council's assessment of the application for the original approval. 19 I note that the council approved the development application and worded a condition such that the outbuilding/laundry could be rebuilt as such. It appears now, with the benefit of the evidence to the Court, that the council is not concerned whether the outbuilding is retained or not on heritage or other grounds, and this is not a requirement on the development application as such. Although a condition was formulated that allowed it to be re-located and it is now a preference of the applicant. 20 It is noted that initially the council considered the development application and, on the issue of setbacks, the compliance table contains a note to refer to discussion below. This states that "the DCP requires the setbacks to be nine metre to eleven metre average or the predominant setback pattern of the existing streetscape/existing setback of adjoining property". And it is noted that in terms of the design element, the streetscape, the DCP 38 states that "in an urban conservation areas the predominant setback pattern of the existing streetscape shall prevail… development must be appropriately located on the site having regard to the existing setback of adjoining properties". 21 The assessment report then states: a condition will be placed to push the dwelling back to be in line with the existing dwelling, the landscaping and site plan have indicated a large area within the front setback as paved area with a turning bay along the northern end, the extent of hard paved area within the front setback is considered excessive and unnecessary and should be reduced, it is not necessary to have a turning bay. Furthermore, as the site adjoining a heritage item, to reduce the visual impact of the driveway the driveway should be constructed out of pavers …and conditions will be imposed on the application." 22 The assessment report on the original development application was finalised following an email on the front setback from the manager of the Greenfield Development Application Services to the Council in the bundle. This is dated 8 February 2008 and, on the front setback it notes that the owners have agreed to relocate the proposed dwelling to ensure that the front setback of the garage is consistent with the location of the south-eastern corner of the existing dwelling located on the development site: "We are happy to provide survey details to ensure the location of the dwelling is consistent with the existing dwelling and would prefer to not have a numerical value included within the condition, as this may create issues with compliance due to the scaling of plans or an inaccuracy in the survey plan. We would prepare a new survey plan prior to demolition of the dwelling and a survey details the location of the proposed dwelling to ensure consistency". 23 And it then notes other issues that had been discussed, stating: "Happy to work on the wording of conditions of consent to ensure, to limit the need for a s 96 application". 24 As such, a condition was imposed, condition 5, which required a setback and a rebuilding of the laundry as such. 25 The applicant now maintains in the modification application that a reduction in the setback would allow for greater use of the rear yard. It is noted that the rear yard is some 20 to 25 metres from the dwelling to the rear boundary and about 24 metres wide. 26 The role of the Court's in its assessment is to have regard to the approved built form, that is, the height, the architectural style as approved as a matter for consideration in whether the setback should be varied in the circumstances of this case. 27 The Development Control Plan No. 38 contains relevant provisions for setbacks and other built elements and the aims of the DCP are to encourage development that does not dominate but harmonises with and contributes to the treed landscape and is sympathetic to the street and locality in which it is proposed. Objective 3 is to conserve and protect the natural built and cultural heritage significance of Ku-ring-gai, including heritage items, conservation areas, and encourage development that respects that significance. 28 The specific controls of the DCP, also states that "a variation to any standard specified in the DCP may, in some circumstances, be considered inappropriate for various reasons and there is a need for justification as such. For example, it might be submitted that the variation of a building line is warranted to permit retention of a tree behind a new dwelling". The building setbacks are contained within 4.1.3 and this states: "development should be appropriately located onsite to maintain streetscape character…" 29 In terms of building line front setbacks, it is noted that the DCP states: "in urban conservation areas the predominant setback pattern of the existing streetscape shall prevail, development must be appropriately located on the site having regard to the existing setback of adjoining properties, the setback pattern of the street block within which the proposal is situated and council's minimum and average setback requirements. Where the predominant setback pattern of the existing streetscape reflects a setback which exceeds the required minimum, the greater setback suggested by the street character will apply and the required minimum and average setback for the low side of the street on which the subject site is located is nine metres minimum with an average of eleven." 30 The council, in the DCP refers to the urban conservation area of the National Trust area and this is contained in the assessment criteria for heritage items and conservation areas wherein it states that "the proposal should conserve the natural built and cultural heritage significance of the place and that applicants should be aware that, as a result of various heritage studies, council is identifying additional urban conservation areas". In submitting a development application located in the vicinity of heritage items, then consideration of particular documents is required and included in the list in the DCP is the National Trust's identified Ku-ring-gai 'urban conservation areas'(UCA). 31 While I am speaking about the urban conservation area, I note Dr Lamb's statement about it not being statutory. Nothing turns on this, it is not a reason as to why I do not consider that the setback should not be varied, but, nonetheless, if one refers to s 79C of the Act, it refers to development control plans for the assessment of a development application under is 79C(1)(a)(iii). The development control plan clearly refers to the UCA. Even if one might say it is not 'statutory', nonetheless it is called up in terms of s 79C. Even though I note that it is not a 'conservation area', under an LEP, it is specifically called up by the DCP. As I said, I have not given significant weight to whether the site is in or out of a UCA or a conservation area but suffice to say the merits of the application in this case does not rely on whether it is or is not in a conservation area, or numeric compliance. The test here is one of greater need to have regard to the streetscape and, in particular, the streetscape in this block. 32 It is clear that the streetscape in this portion, that is, on the western side of the road, between the two subject streets, and having regard to the setbacks of the adjoining properties, is such that the dwelling house, in the context of the approved built form, is that the two storey element is most prominent and forward, it is not of a passive design. The role of the Court is not to assess the design of the dwelling house as approved that was assessed by council as being appropriate with a setback of some 14.2 metres. 33 In my assessment, I must have regard to the approved design. It is not a matter of just looking at the numerics of the setbacks and it is not a matter of looking at council's control of a minimum and an averaging of setbacks between nine and eleven metres. In my assessment the streetscape and the circumstances of this case are that a setback of 14.2 metres with the driveway and turning bay will provide for the continued importance of the streetscape to be retained. It is reasonable in the circumstances of this site that one should have the right to be able to enter and exit the site in a forward direction. However the opening of the driveway in the vicinity of the double garage and the design of the dwelling house itself in my assessment are more appropriate with the setback as approved by the council at 14.2 metres. 34 In this regard I have been persuaded by the evidence of Mr Logan in his report that is of the opinion that the dwelling house would be most prominent in the streetscape if the approved setback was not complied with. And I will quote from Mr Logan's report: "That the visual impact of this reduced setback would be exacerbated by the two storey nature of the dwelling, in particular the eaves height and appearance of its front elevation. While it is not higher in absolute terms than the ridge height of other nearby single storey dwellings on the side of Grosvenor Street, including the neighbouring heritage item, it will nevertheless read as a two storey dwelling given the appearance of its front elevations and its taller eaves height. Conversely the eaves heights of the other dwellings are lower at their front elevation, the maximum height occurs further back from the street and as part of receding reform, which, by their very nature, have less visual prominence. If the new dwelling was forward of the neighbouring dwelling as proposed it would be visually dominant in the streetscape. For this reason the two storey component of the new dwelling should be set back further than the prevailing building line rather than being forward of it. There is another strong reason for setting back the new dwelling further than is proposed and that is because it will be located next to the heritage item of number 18 Grosvenor Street, which is set back approximately 18.5 metres. The proposal would therefore result in the new dwelling being located some eight metres forward of this heritage item. Given this relationship and the taller eaves height and two storey character of the new dwelling, it is evidence that the latter building would be visually dominant and is likely to read as the most prominent built dwelling on the west side of this part of Grosvenor Street". 35 He also states that: "Even with the partial screening of the landscape the scale and design of the proposed dwelling would be in stark juxtaposition with immediate neighbours, in particular the adjacent heritage items. In my opinion this would have an adverse impact on the setting of the item and the proposed smaller setback from the street would have the effect of magnifying the impact. The most significant of these impacts would be the visual dominance of the new dwelling on its immediate streetscape context, including the adjacent heritage item due to its increased prominence and apparent scale resulting from its proposed siting forward of neighbouring dwellings". 36 While two storey dwelling houses are part of the streetscape, it is the design and the immediate setting of this dwelling house adjoining the local heritage items in this portion of the block the streetscape. Clearly there are great variations in setbacks in this street, but the important test is how this dwelling will sit in its context, and its context is its relationship to the immediate heritage items and also the adjoining dwelling at No. 22 in this portion of the street that is set back some fourteen metres. 37 I note that the dwelling house as proposed has generous setbacks to the side boundaries, some 4 metres to the southern boundary and three and a half and greater to its northern boundary, and this provides for the dwelling house to sit within the context of a vegetated setting, consistent with other dwellings in the immediate vicinity. However, the front setback, having regard to the location of the driveway, the built elements that will be clearly perceived, it is also important for an appropriate front setback to be provided to maintain the visual character of this portion of the street. And provide for a landscaped setting. 38 The issue of the front fence was one that received a great deal of discussion, although it is clearly not the most important matter in these proceedings. The experts agree that the proposed variation for the three brick course base is acceptable on streetscape and heritage grounds. The experts have also now agreed on an acceptable design for the brick piers as follows: "the general piers should be 230 millimetres in width and 120 millimetres in height, including a brick on edge cap without any corbelling and bear a finished height the same as that of the timber pickets. The piers of the gate should be 350 millimetres square and slightly higher than the other piers with an additional brick course, plus a brick on edge cap as per the caps on the other piers". 39 It was agreed by the experts, that is Messrs Logan, Lamb and Patch, as to the detailed design of the fence. While it was later submitted on behalf of the applicant that the fence be changed this is not consistent with the agreement of the experts. As such I have determined the detailed design of the fence is to be conditioned as agreed between the experts. 40 The issue of increasing the setback by 1.8 meters was also canvassed during the proceedings in response to the Court's enquiry. The outbuilding is some 1.8 metres from the rear of the dwelling and, in fact, the applicant offered, as a second option, clearly not a preference but as a second option or fallback position, that the building or the proposed new dwelling could adjoin the outbuilding. 41 For this additional setback of 1.8m I have the benefit of the planners undertaking the task of the necessary turning bays required and the amount of landscaping that could be introduced to the front setback area. I do note that on the landscape plan there are a number of very large trees and in the rear yard there is a large Liquid Amber for example and there are a number of other very large trees, including macadamia and many camellias shrubs, within this significantly vegetated site. It is proposed in the new landscape regime that these trees be retained and there are additional ground covers and seasonal plantings also provided. I am of the opinion that landscaping is to provide for a balance in terms of the built form and to punctuate the built form and not screen development. In this street houses are clearly visible from the street within their landscaped settings. 42 In terms of the driveway, the increased setback is preferable, it provides for more soft areas of landscaping. I do note that there is an additional four metres or thereabouts in terms of the driveway length for entry to the garages, but nonetheless this is more than offset by other additional landscaped or soft areas that can be provided onsite with the greater setback required by the council's approval. 43 The application must be looked at holistically, that is in terms of the presentation of the built form, including: the garages; the two storey proud element; and the gable end to the street frontage. I also note that there are breezeways between the garage and the sitting room and there are, as I stated, most generous setbacks to the side boundary, which is certainly beneficial. For this site given its size, clearly there is great flexibility in the design of a dwelling. However, on balance the need or benefit in retaining the existing brick shed is at a cost to the streetscape that, in the circumstances of this case, is not warranted. 44 The Court, in its assessment, has had regard to the planning regime. This includes the development control plans and in terms of the authority provided in the judgment of Zhang v Canterbury City Council [2001] NSWCA 167, while DCP's are discretionary matters, they guide the assessment of development applications and I am guided by the principles articulated in the DCP in the aims and objectives of the setback. But more particularly in terms of s 79C of the Act, the circumstances of the case and the suitability of the site for the development. The building form is a given in this appeal, and the modification application of a reduced setback for the approved dwelling does not warrant approval. 45 Further to the above reasons for my refusal, I consider that the additional 1.8 metres setback further was not appropriate either when I assessed the turning circle, the amount of soft landscaped area, and clearly the resolution of the abutting existing brick building onto the dining room wall would have to be resolved. In terms of the amenity of that room in my assessment it would diminish the amenity of the dining room area to have the brick outbuilding attached to the new dwelling house. The new dwelling house with the double French doors on either end of the sitting room and the dining room will create a greater amenity for that room than the brick outbuilding, which has no heritage value and is not required to be retained for that reason. 46 Before I turn to the formal orders I need to address the schedule of conditions in dispute, including the driveway. The condition 3 for the driveway is to reflect Exhibit S, that the planners provided for the driveway showing the approved setback with an amended driveway configuration to allow the appropriate manoeuvring to allow turning on-site to enter and exit the site in a forward direction. 47 In terms of the outbuilding, condition 5, this is to be amended such that it would allow for the demolition of same. It would be a matter of choice for the applicants if they wish to construct such an outbuilding, or reconstruct it, but it is not a requirement that it be retained in the scheme of this modification application. 48 For the fence details, condition 7, as I stated this condition will be as agreed to between the experts. In terms of condition 25, this will refer to the new condition 7. The question of the material and colour for the driveway in condition 4, in the applicant's response to the conditions it notes that the respondent has not outlined its position there and the applicant proposes that the condition be modified to allow for the use of porous material. This is consistent with the objective to minimize the extent of impermeable surfaces and the condition is to be reworded to allow the applicants choice of porous material. 49 Condition 19 is to remain as the landscape plan requires an amendment to reflect the setback of the dwelling and the revised turning bay depicted in Exhibit S. 50 The respondent is to forward an electronic version of a consolidated set of conditions. That is, the conditions of the original consent are to be updated to reflect the findings above to provide a consolidated set of conditions incorporating the changes from this s96 modification. 51 Accordingly, the formal orders of the Court are: 1 The section 96 modification appeal for the property known as No. 20 Grosvenor Street, Wahroonga is dismissed in part; 2 The modification application submitted to Ku-ring-gai Council is determined by the refusal of the reduced setback and approval of the turning bay as shown in the consolidated conditions contained in Annexure A; and 3 The exhibits are returned to the parties with the exception of Exhibits 6, N and S. ___________________ J S Murrell Commissioner of the Court ljr Annexure 'A' Conditions of Consent NOTICE OF DETERMINATION OF DEVELOPMENT APPLICATION SECTION 81(1)(A) ENVIRONMENTAL PLANNING & ASSESSMENT ACT 1979 Application No.: DA1183/07 Proposed Development: Construct new two storey dwelling Property: 20 Grosvenor Street WAHROONGA NSW 2076 Pursuant to Section 81 of the Act, notice is given that the above Development Application has been determined by the granting of consent, subject to the conditions specified in this Notice. Date of determination: 11 February 2008 Date from which consent operates: 14 February 2008 Date consent lapses: 15 February 2010 The conditions of consent are as follows: Conditions that identify approved plans: 1. Approved architectural plans and documentation (new development) The development must be carried out in accordance with the following plans and documentation listed below and endorsed with Council's stamp, except where amended by other conditions of this consent: Plan no. Drawn by Dated Site Plan (Scale 1:200) unknown Not dated. Received by Council 5 February 2008. GAB33406 sheets 3 to 8 inclusive Charleston Homes 1 November 2006 Site Management Plan GAB33406 sheet 10 Charleston Homes 1 November 2006 Front fence details Unknown Not dated Reason: To ensure that the development is in accordance with the determination of Council. SPECIAL CONDITIONS 2. Dwelling location The whole dwelling is to be relocated further back from Grosvenor Street, so that the southeast elevation of the proposed garage does not encroach beyond the existing setback of the current dwelling, as marked in red on the approved site plan. The amendment is to be submitted and approved by the Principal Certifying Authority prior to the release of the Construction Certificate. Reason: Reduce visual impacts on the setting of the heritage item at 18 Grosvenor Street and the Urban Conservation Area 28 and to maintain the streetscape character. 3. Driveway Amendment To reduce the extent of hard paved area within the front setback the driveway is to be reduced in size and the turning bay reconfigured, as marked on Exhibit "S" in Land and Environment Court Proceedings No. 10255 of 2009 . Details of the amendments are to be submitted to the Principal Certifying Authority prior to the release of the Construction Certificate. Reason: Maintain landscape character of streetscape. 4. Driveway materials The driveway and turning bay is to be constructed out of pavers,gravel or other porous material and be mid to dark in colour. Details of the material and colour to be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate. Reason: To protect the heritage items and conservation area. 5. Outbuilding The rear outbuilding maybe either demolished or relocated. If the rear outbuilding is to be relocated and reconstructed, the building is to be setback 2m off any boundaries and landscaping to be provided along the side boundary. Reason: Maintain sufficient setback to provide landscaping. 6. Driveway crossing To preserve the existing street trees, the proposed driveway crossing shall be maximum 3.7m in width. Reason: Tree protection 7. Front fence The general piers should be 230mm in width and 1200mm in height including a brick on edge cap without any corbelling and be of a finished height the same as that of the timber pickets. The piers for the gates should be 350mm square and slightly higher than the other piers, with an additional brick course plus a brick on edge cap, as per the caps on the other piers. The base course is to show 2 brick courses plus a brick on edge cap above the finished footpath level. . Reason: Streetscape and maintain visual transparency of the fence. CONDITIONS TO BE SATISFIED PRIOR TO DEMOLITION, EXCAVATION OR CONSTRUCTION: 8. Notice of commencement At least 48 hours prior to the commencement of any development or excavation works, a notice of commencement of building or subdivision work form and appointment of the principal certifying authority form shall be submitted to Council. Reason: Statutory requirement. 9. Notification of builder's details Prior to the commencement of any development or excavation works, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder intending to carry out the approved works. Reason: Statutory requirement. 10. Temporary construction exit A temporary construction exit, together with necessary associated temporary fencing, shall be provided prior to commencement of any work on the site and shall be maintained throughout the duration and progress of construction. Reason: To reduce or eliminate the transport of sediment from the construction site onto public roads. 11. Sediment controls Prior to any work commencing on site, sediment and erosion control measures shall be installed along the contour immediately downslope of any future disturbed areas. The form of the sediment controls to be installed on the site shall be determined by reference to the 'NSW Department of Housing manual 'Managing Urban Stormwater: Soils and Construction'. The erosion controls shall be maintained in an operational condition until the development activities have been completed and the site fully stabilised. Sediment shall be removed from the sediment controls following each heavy or prolonged rainfall period. Reason: To preserve and enhance the natural environment. 12. Tree protection fencing To preserve the following tree/s, no work shall commence until the area beneath their canopy is fenced off at the specified radius from the trunk/s to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site. Schedule Tree/locationRadius from trunk Acer palmatum(Japanese Maple)Tree 43/adj property4m Franklinia axillaris (Gordonia) Tree 2/front setback3m Franklinia axillaris (Gordonia) Tree 4/front setback3m Macadamia integrifolia (Macadamia)Tree 35/rear yard5m The tree protection fencing shall be constructed of galvanised pipe at 2.4 metre spacings and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres in height prior to work commencing. Reason: To protect existing trees during construction phase. 13. Tree protection fencing excluding structure To preserve the following tree/s, no work shall commence until the area beneath their canopy excluding that area of the proposed driveway shall be fenced off for the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site: Schedule Tree/locationRadius from trunk Pistacia chinensis (Pistacia) Tree 1/nature strip4m Pistacia chinensis (Pistacia) Tree 3/nature strip3m Reason: To protect existing trees during the construction phase. 14. Tree protection signage Prior to works commencing, tree protection signage is to be attached to each tree protection zone, displayed in a prominent position and the sign repeated at 10 metres intervals or closer where the fence changes direction. Each sign shall contain in a clearly legible form, the following information: o tree protection zone o this fence has been installed to prevent damage to the trees and their growing environment both above and below ground and access is restricted o any encroachment not previously approved within the tree protection zone shall be the subject of an arborist's report o the arborist's report shall provide proof that no other alternative is available o the arborist's report shall be submitted to the Principal Certifying Authority for further consultation with Council o The name, address, and telephone number of the developer. Reason: To protect existing trees during the construction phase. 15. Tree protection mulching Prior to works commencing and throughout construction, the area of the tree protection zone is to be mulched to a depth of 100mm with composted organic material being 75% Eucalyptus leaf litter and 25% wood. Reason: To protect existing trees during the construction phase. 16. Tree protection – avoiding soil compaction To preserve the following tree/s and avoid soil compaction, no work shall commence until temporary measures to avoid soil compaction (eg rumble boards) beneath the canopy of the following tree/s is/are installed: Schedule Tree/Location Franklinia axillaris (Gordonia) Tree 13/adj property Acer palmatum(Japanese Maple)Tree 26/adj property Reason: To protect existing trees during the construction phase. 17. Tree fencing inspection Upon installation of the required tree protection measures, an inspection of the site by the Principal Certifying Authority is required to verify that tree protection measures comply with all relevant conditions. Reason: To protect existing trees during the construction phase. 18. Tree Replenishment The property shall support a minimum number of 7 canopy trees that will attain 13.0 metres in height on the site, to preserve the tree canopy of Ku-ring-gai, the existing tree/s, and 3, additional tree/s to be planted, shall be shown on the Landscape Plan/Site Plan. The plan shall be submitted to and approved by the Principal Certifying Authority prior to release of Construction Certificate. 2 of the canopy trees to be planted are to be locally occurring native trees. Reason: To Preserve the tree canopy and ensure adequate landscaping of the site. CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE: 19. Amendments to approved landscape plan Prior to the issue of a Construction Certificate, the Certifying Authority shall be satisfied that the approved landscape plan, listed below and endorsed with Council's stamp, have been amended in accordance with the requirements of this condition as well as other conditions of this consent: Plan no. Drawn by Dated NHD/02/C Open Space Partnership 30/01/08 The above landscape plan(s) shall be amended in the following ways: o The plan is to reflect the increased front setback for the dwelling and amended driveway and turn bay location. The reconfiguration of the driveway and turning bay is to be in accordance with Exhibit "S" in Land and Environment Court Proceedings No. 10255 of 2009 o Soft landscape treatment is to be indicated replacing existing paving and structures that are to be removed such as existing driveway and garage. o Plant numbers to be provided to plant schedule o To preserve neighbour amenity, screen planting is to be provided to northern boundary that can attain 5m in height. Existing low shrub planting to northern boundary to be supplemented to achieve this condition. o Proposed landscape treatment to front setback to be consistent with the existing landscape character of the area. Proposed areas of mulch to front setback shall be replaced with areas of turf and planting along front fence and driveway. o Proposed retaining wall to rear terrace to be maximum 1 metre high. o Proposed driveway shall not encroach within 2 metres of trunk of following trees, Schedule Tree/locationRadius from trunk Franklinia axillaris (Gordonia) Tree 2/front setback3m Franklinia axillaris (Gordonia) Tree 4/front setback3m Pistacia chinensis (Pistacia) Tree 1/nature strip4m Pistacia chinensis (Pistacia) Tree 3/nature strip3m Reason: To ensure adequate landscaping of the site 20. Long service levy In accordance with Section 109F(i) of the Environmental Planning and Assessment Act a Construction Certificate shall not be issued until any long service levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or where such levy is payable by instalments, the first instalment of the levy) has been paid. Council is authorised to accept payment. Where payment has been made elsewhere, proof of payment is to be provided to Council. Reason: Statutory requirement. 21. Builder's indemnity insurance The applicant, builder, developer or person who does the work on this development, must arrange builder's indemnity insurance and submit the certificate of insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the builder's indemnity insurance for residential building work over the value of $12,000. The builder's indemnity insurance does not apply to commercial or industrial building work or to residential work valued at less than $12,000, nor to work undertaken by persons holding an owner/builder's permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work). Reason: Statutory requirement. 22. Stormwater management plan (new single dwellings) Prior to issue of the Construction Certificate, the applicant must submit, for approval by the Principal Certifying Authority, scaled construction plans and specifications in relation to the stormwater management and disposal system for the development. The plan(s) must include the following detail: o exact location and reduced level of discharge point to the public drainage system o layout of the property drainage system components, including but not limited to (as required) gutters, downpipes, pits, grated drains, swales, kerbs, flushing facilities, subsoil drainage and all ancillary plumbing - all designed for a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence) o location(s), dimensions and specifications for the required rainwater storage and reuse tank systems and where proprietary products are to be used, manufacturer specifications and details must be provided o specifications for reticulated pumping facilities (including pump type and manufacturer specifications) and ancillary plumbing to fully utilise rainwater in accordance with BASIX commitments The above construction drawings and specifications are to be prepared by a suitably qualified and experienced civil/hydraulic engineer in accordance with Council's Water Management Development Control Plan 47, Australian Standards 3500.2 and 3500.3 - Plumbing and Drainage Code and the BCA. The plans may be generally based upon the Stormwater Management Plan 382016/C1 and C2 prepared by AFCE Environment + Building submitted with the development application, which are to be advanced as necessary for construction certificate issue purposes. Reason: To protect the environment. 23. Stormwater retention Prior to the issue of a Construction Certificate, the Principal Certifying Authority is to be satisfied that a mandatory rainwater retention and re-use system, comprising storage tanks and ancillary plumbing is provided. The minimum total storage volume of the rainwater tank system, and the prescribed re-use of the water on site must satisfy all relevant BASIX commitments and the requirements specified in Chapter 6 of Ku-ring-gai Water Management Development Control Plan 47. Reason: To protect the environment. 24. Excavation for services Prior to the issue of the Construction Certificate, the Principal Certifying shall be satisfied that no proposed underground services (ie. water, sewerage, drainage, gas or other service) unless previously approved by conditions of consent, are located beneath the canopy of any tree protected under Council's Tree Preservation Order, located on the subject allotment and adjoining allotments. Note: A plan detailing the routes of these services and trees protected under the Tree Preservation Order, shall be submitted to the Principal Certifying Authority. Reason: To ensure the protection of trees. 25. Pier & beam footings near trees Prior to the issue of the Construction Certificate, the Principal Certifying shall be satisfied that the footings of the proposed front fence will be isolated pier or pier and beam construction within the specified radius of the trunk(s) of the following tree(s). Schedule Tree/locationRadius from trunk Acer palmatum(Japanese Maple)Tree 43/adj property4m Franklinia axillaris (Gordonia) Tree 2/front setback3m Franklinia axillaris (Gordonia) Tree 4/front setback3m Pistacia chinensis (Pistacia) Tree 1/nature strip4m Pistacia chinensis (Pistacia) Tree 3/nature strip3m The piers shall be located such that no roots of a diameter greater than 30mm will be severed or injured during the construction period. The beam(s) shall be of reinforced concrete or galvanised steel sections and placed in positions with the base of the beam being a minimum of 50mm above existing soil levels. Note: Structural details of the pier or pier and beam construction shall be submitted to the Principal Certifying Authority. Reason: To protect existing trees. 26. Landscape plan Prior to the issue of the Construction Certificate, the Principal Certifying Authority shall be satisfied that a landscape plan has been completed in accordance with Council's DA Guide, relevant development control plans and the conditions of consent by a landscape architect or qualified landscape designer. Note: The landscape plan must be submitted to the Principal Certifying Authority. Reason: To ensure adequate landscaping of the site. 27. Driveway crossing levels Prior to issue of the Construction Certificate, driveway and associated footpath levels for any new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Ku-ring-gai Council. Such levels are only able to be issued by Council under the Roads Act 1993. All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings". Specifications are issued with alignment levels after completing the necessary application form at Customer Services and payment of the assessment fee. When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant development application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment. This development consent is for works wholly within the property. Development consent does not imply approval of footpath or driveway levels, materials or location within the road reserve, regardless of whether this information is shown on the development application plans. The grading of such footpaths or driveways outside the property shall comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant and the required alignment levels fixed by Council may impact upon these levels. The construction of footpaths and driveways outside the property in materials other than those approved by Council is not permitted. Reason: To provide suitable vehicular access without disruption to pedestrian and vehicular traffic. 28. Vehicular access and garaging Driveways and vehicular access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard 2890.1 – 2004 "Off-Street car parking". Details are to be provided to and approved by the Certifying Authority prior to the issue of the Construction Certificate. Reason: To ensure that parking spaces are in accordance with the approved development. CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE OR PRIOR TO DEMOLITION, EXCAVATION OR CONSTRUCTION (WHICHEVER COMES FIRST): 29. Infrastructure restorations fee To ensure that damage to Council Property as a result of construction activity is rectified in a timely matter: a) All work or activity taken in furtherance of the development the subject of this approval must be undertaken in a manner to avoid damage to Council Property and must not jeopardise the safety of any person using or occupying the adjacent public areas. b) The applicant, builder, developer or any person acting in reliance on this approval shall be responsible for making good any damage to Council Property, and for the removal from Council Property of any waste bin, building materials, sediment, silt, or any other material or article. c) The Infrastructure Restoration Fee must be paid to the Council by the applicant prior to both the issue of the Construction Certificate and the commencement of any earthworks or construction. d) In consideration of payment of the Infrastructure Restorations Fee, Council will undertake such inspections of Council Property as Council considers necessary and also undertake, on behalf of the applicant, such restoration work to Council Property, if any, that Council considers necessary as a consequence of the development. The provision of such restoration work by the Council does not absolve any person of the responsibilities contained in (a) to (b) above. Restoration work to be undertaken by the Council referred to in this condition is limited to work that can be undertaken by Council at a cost of not more than the Infrastructure Restorations Fee payable pursuant to this condition. e) In this condition: "Council Property" includes any road, footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, letter bins, trees, shrubs, lawns, mounds, bushland, and similar structures or features on any road or public road within the meaning of the Local Government Act 1993 (NSW) or any public place; and "Infrastructure Restoration Fee" means the Infrastructure Restorations Fee calculated in accordance with the Schedule of Fees & Charges adopted by Council as at the date of payment and the cost of any inspections required by the Council of Council Property associated with this condition. Reason: To maintain public infrastructure CONDITIONS TO BE SATISFIED DURING THE DEMOLITION, EXCAVATION AND CONSTRUCTION PHASES: 30. Approved plans to be on site A copy of all approved and certified plans, specifications and documents incorporating conditions of consent and certification (including the Construction Certificate if required for the work) shall be kept on site at all times during the demolition, excavation and construction phases and must be readily available to any officer of Council or the Principal Certifying Authority. Reason: To ensure that the development is in accordance with the determination of Council. 31. Engineering fees For the purpose of any development related inspections by Ku-ring-gai Council engineers, the corresponding fees set out in Councils adopted Schedule of Fees and Charges are payable to Council. A re-inspection fee per visit may be charged where work is unprepared at the requested time of inspection, or where remedial work is unsatisfactory and a further inspection is required. Engineering fees must be paid in full prior to any final consent from Council. Reason: To protect public infrastructure. 32. Prescribed conditions The applicant shall comply with any relevant prescribed conditions of development consent under clause 98 of the Environmental Planning and Assessment Regulation. For the purposes of section 80A (11) of the Environmental Planning and Assessment Act, the following conditions are prescribed in relation to a development consent for development that involves any building work: - The work must be carried out in accordance with the requirements of the Building Code of Australia - 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, that such a contract of insurance is in force before any works commence. Reason: Statutory requirement. 33. Statement of compliance with Australian Standards The demolition work shall comply with the provisions of Australian Standard AS2601: 2001 The Demolition of Structures. The work plans required by AS2601: 2001 shall be accompanied by a written statement from a suitably qualified person that the proposal contained in the work plan comply with the safety requirements of the Standard. The work plan and the statement of compliance shall be submitted to the satisfaction of the Principal Certifying Authority prior to the commencement of any works. Reason: To ensure compliance with the Australian Standards. 34. Demolition, excavation and construction work hours Demolition, excavation, construction work and deliveries of building material and equipment must not take place outside the hours of 7.00am to 5.00pm Monday to Friday and 8.00am to 12.00pm Saturday. No work and no deliveries are to take place on Sundays and public holidays. Excavation or removal of any materials using machinery of any kind, including compressors and jack hammers, must be limited to between 7.30am and 5.00pm Monday to Friday, with a respite break of 45 minutes between 12 noon and 1.00pm. Where it is necessary for works to occur outside of these hours (i.e. concrete pours and standing of plant), approval for such will be subject to the issue of an "outside of hours works permit" from Council as well as notification of the surrounding properties likely to be affected by the proposed works. Note: Failure to obtain a permit for work outside of the approved hours will result in on the spot fines being issued. Reason: To ensure reasonable standards of amenity for occupants of neighbouring properties. 35. Site notice A site notice shall be erected on the site prior to any work commencing and shall be displayed throughout the works period. The site notice must: - be prominently displayed at the boundaries of the site for the purposes of informing the public that unauthorised entry to the site is not permitted - display project details including, but not limited to the details of the builder, Principal Certifying Authority and structural engineer - be durable and weatherproof - display the approved hours of work, the name of the site/project manager, the responsible managing company (if any), its address and 24 hour contact phone number for any inquiries, including construction/noise complaint are to be displayed on the site notice - be mounted at eye level on the perimeter hoardings/fencing and is to state that unauthorised entry to the site is not permitted Reason: To ensure public safety and public information. 36. Dust control During excavation, demolition and construction, adequate measures shall be taken to prevent dust from affecting the amenity of the neighbourhood. The following measures must be adopted: - physical barriers shall be erected at right angles to the prevailing wind direction or shall be placed around or over dust sources to prevent wind or activity from generating dust - earthworks and scheduling activities shall be managed to coincide with the next stage of development to minimise the amount of time the site is left cut or exposed - all materials shall be stored or stockpiled at the best locations - the ground surface should be dampened slightly to prevent dust from becoming airborne but should not be wet to the extent that run-off occurs - all vehicles carrying spoil or rubble to or from the site shall at all times be covered to prevent the escape of dust - all equipment wheels shall be washed before exiting the site using manual or automated sprayers and drive-through washing bays - gates shall be closed between vehicle movements and shall be fitted with shade cloth - cleaning of footpaths and roadways shall be carried out daily Reason: To protect the environment and amenity of surrounding properties. 37. Use of road or footpath During excavation, demolition and construction phases, no building materials, plant or the like are to be stored on the road or footpath without written approval being obtained from Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be. Reason: To ensure safety and amenity of the area. 38. Guarding excavations All excavation, demolition and construction works shall be properly guarded and protected with hoardings or fencing to prevent them from being dangerous to life and property. Reason: To ensure public safety. 39. Toilet facilities During excavation, demolition and construction phases, toilet facilities are to be provided, on the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Reason: Statutory requirement. 40. Protection of public places If the work involved in the erection, demolition or construction of the development is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place. If necessary, a hoarding is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place. Any hoarding, fence or awning is to be removed when the work has been completed. Reason: To protect public places. 41. Construction signage All construction signs must comply with the following requirements: - are not to cover any mechanical ventilation inlet or outlet vent - are not illuminated, self-illuminated or flashing at any time - are located wholly within a property where construction is being undertaken - refer only to the business(es) undertaking the construction and/or the site at which the construction is being undertaken - are restricted to one such sign per property - do not exceed 2.5m2 - are removed within 14 days of the completion of all construction works Reason: To ensure compliance with Council's controls regarding signage. 42. Road reserve safety All public footways and roadways fronting and adjacent to the site must be maintained in a safe condition at all times during the course of the development works. Construction materials must not be stored in the road reserve. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to any public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where pedestrian circulation is diverted on to the roadway or verge areas, clear directional signage and protective barricades must be installed in accordance with AS1742-3 (1996) "Traffic Control Devices for Work on Roads". If pedestrian circulation is not satisfactorily maintained across the site frontage, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work. Reason: To ensure safe public footways and roadways during construction. 43. Services Where required, the adjustment or inclusion of any new utility service facilities must be carried out by the applicant and in accordance with the requirements of the relevant utility authority. These works shall be at no cost to Council. It is the applicants full responsibility to make contact with the relevant utility authorities to ascertain the impacts of the proposal upon utility services (including water, phone, gas and the like). Council accepts no responsibility for any matter arising from its approval to this application involving any influence upon utility services provided by another authority. Reason: Provision of utility services. 44. Erosion control Temporary sediment and erosion control and measures are to be installed prior to the commencement of any works on the site. These measures must be maintained in working order during construction works up to completion. All sediment traps must be cleared on a regular basis and after each major storm and/or as directed by the Principal Certifying Authority and Council officers. Reason: To protect the environment from erosion and sedimentation. 45. Drainage to absorption trench Stormwater runoff from all new impervious areas and subsoil drainage systems shall be piped to an absorption trench system positioned parallel to the contours of the site at the highest practicable level. The design of the absorption trench shall comply with the requirements of Ku-ring-gai Water Management Development Control Plan No. 47. Reason: To protect the environment. 46. Grated drain at garage A 200mm wide grated channel/trench drain, with a heavy-duty removable galvanised grate is to be provided in front of the garage door/basement parking slab to collect driveway runoff. The channel drain shall be connected to the main drainage system and must have an outlet of minimum diameter 150mm to prevent blockage by silt and debris. Reason: Stormwater control. 47. Canopy/root pruning Canopy and/or root pruning of the following tree(s) which is necessary to accommodate the approved building works shall be undertaken by an experienced arborist/horticulturist, with a minimum qualification of the horticulture certificate or tree surgery certificate: Schedule Tree locationTree works Pistacia chinensis (Pistacia) Tree 1/nature stripMinor crown lifting Pistacia chinensis (Pistacia) Tree 3/nature stripMinor crown lifting Reason: To protect the environment. 48. Treatment of tree roots If tree roots are required to be severed for the purposes of constructing the approved works, they shall be cut cleanly by hand, by an experienced arborist/horticulturist with a minimum qualification of horticulture certificate or tree surgery certificate Reason: To protect existing trees. 49. Cutting of tree roots No tree roots of 30mm or greater in diameter located within the specified radius of the trunk(s) of the following, tree(s) shall be severed or injured in the process of any works during the construction period. Schedule Tree/locationRadius from trunk Franklinia axillaris (Gordonia) Tree 2/front setback3m Franklinia axillaris (Gordonia) Tree 4/front setback3m Pistacia chinensis (Pistacia) Tree 1/nature strip4m Pistacia chinensis (Pistacia) Tree 3/nature strip3m Reason: To protect existing trees. 50. Approved tree works Approval is given for the following works to be undertaken to trees on the site: Schedule Tree locationApproved tree works Pistacia chinensis (Pistacia) Tree 1/nature stripMinor crown lifting Pistacia chinensis (Pistacia) Tree 3/nature stripMinor crown lifting Removal or pruning of any other tree on the site is not approved. Reason: To ensure that the development is in accordance with the determination of Council. 51. Hand excavation All excavation within the specified radius of the trunk(s) of the following tree(s) shall be hand dug: Schedule Tree/locationRadius from trunk Franklinia axillaris (Gordonia) Tree 2/front setback3m Franklinia axillaris (Gordonia) Tree 4/front setback3m Pistacia chinensis (Pistacia) Tree 1/nature strip4m Pistacia chinensis (Pistacia) Tree 3/nature strip3m Reason: To protect existing trees. 52. No storage of materials beneath trees No activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order at any time. Reason: To protect existing trees. 53. Removal of refuse All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works. Reason: To protect the environment. 54. Canopy replenishment trees to be planted The canopy replenishment trees to be planted shall be maintained in a healthy and vigorous condition until they attain a height of 5.0 metres whereby they will be protected by Council's Tree Preservation Order. Any of the trees found faulty, damaged, dying or dead shall be replaced with the same species Reason: To maintain the treed character of the area. 55. Compliance with BASIX Certificate Prior to the issue of an Occupation Certificate, the Principal Certifying Authority shall be satisfied that all commitments listed in BASIX Certificate No. 170811S have been complied with. Reason: Statutory requirement. 56. Completion of landscape works Prior to the release of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that all landscape works, including the removal of all noxious and/or environmental weed species, have been undertaken in accordance with the approved plan(s) and conditions of consent. Reason: To ensure that the landscape works are consistent with the development consent. 57. Retention and re-use positive covenant Prior to issue of the Occupation Certificate, the applicant must create a positive covenant and restriction on the use of land under Section 88E of the Conveyancing Act 1919, burdening the property with the requirement to maintain the site stormwater retention and re-use facilities on the property. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instruments for protection of retention and re-use facilities" and to the satisfaction of Council (refer to appendices of Ku-ring-gai Water Management Development Control Plan No. 47). For existing titles, the positive covenant and the restriction on the use of land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the reuse and retention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms. Registered title documents showing the covenants and restrictions must be submitted to and approved by the Principal Certifying Authority prior to issue of an Occupation Certificate. Reason: To protect the environment. 58. Certification of drainage works (new single dwellings) Prior to issue of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that: - the stormwater drainage works have been satisfactorily completed in accordance with the approved Construction Certificate drainage plans - the minimum retention and on-site detention volume storage requirements of BASIX and Ku-ring-gai Water Management Development Control Plan No. 47, respectively, have been achieved in full - retained water is connected and available for use - the drainage system has been installed by a licensed contractor in accordance with the Plumbing and Drainage Code AS3500.3 (2003) and the Building Code of Australia - all enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices The rainwater certification sheet contained in Appendix 13 of Ku-ring-gai Water Management Development Control Plan No. 47, must be completed and attached to the certification. Where an on-site detention system has been constructed, the on-site detention certification sheet contained at appendix 4 of DCP 47 must also be completed and attached to the certification. Note: Evidence from a qualified and experienced consulting civil/hydraulic engineer documenting compliance with the above is to be provided to Council prior to the issue of an Occupation Certificate. Reason: To protect the environment. 59. Reinstatement of redundant crossings and completion of infrastructure works Prior to issue of the Occupation Certificate, the Principal Certifying Authority must be satisfied that the following works in the road reserve have been completed: - new concrete driveway crossing in accordance with levels and specifications issued by Council - removal of all redundant driveway crossings and kerb laybacks (or sections thereof) and reinstatement of these areas to footpath, turfed verge and upright kerb and gutter (reinstatement works to match surrounding adjacent infrastructure with respect to integration of levels and materials) - full repair and resealing of any road surface damaged during construction - full replacement of damaged sections of grass verge with a non-friable turf of native variety to match existing All works must be completed in accordance with the General Specification for the Construction of Road and Drainage Works in Ku-ring-gai Council, dated November 2004. The Occupation Certificate must not be issued until all damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) is fully repaired to the satisfaction of Council. Repair works shall be at no cost to Council. Reason: To protect the streetscape. 60. Infrastructure repair Prior to issue of the Occupation Certificate, the Principal Certifying Authority must be satisfied that any damaged public infrastructure caused as a result of construction works (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) is fully repaired to the satisfaction of Council Development Engineer and at no cost to Council. Reason: To protect public infrastructure. Reason for conditions To safeguard the amenity of the locality. Other approvals This consent does not include any other approvals granted under Section 78A(5) of the Environmental Planning and Assessment Act 1979. ________________________ J S Murrell Commissioner of the Court 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.