Land and Environment Court of New South Wales CITATION : Calibrate Australia v Armidale Dumaresq Council [2008] NSWLEC 1532 APPLICANT Calibrate Australia PARTIES : RESPONDENT Armidale Dumaresq Council FILE NUMBER(S) : 10849-57 of 2008 CORAM: Murrell C KEY ISSUES: Development Application :- for nine dual occupancies. Impact on residential estate and adjoining properites, character of area, wieght to be given to new planning regime, precedent. Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Armidale Local Environmental Plan 1988 Armidale Residential Development Code 1996 Armidale Development Control Plan 2007 CASES CITED: Terrace Tower Holdings Pty Ltd v Sutherland Shire Council [2003] NSWCA 289 Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 DATES OF HEARING: 12 and 24 December 2008 DATE OF JUDGMENT: 24 December 2008 APPLICANT Mr A. Pickles (barrister) SOLICITOR Yates Beaggi Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms M. Hawley (solicitor) SOLICITOR Lindsay Taylor Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 24 December 2008 10849-57 of 2008 Calibrate Australia v Armidale Dumaresq Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against the refusal of development applications for nine dual occupancy developments. 2 For the Court record the different appeal numbers in these proceedings for the various lots are: lot 84 is 10849 of 2008; lot 70 is 10850 of 2008; lot 15 is 10851 of 2008; lot 9 is 10852 of 2008; lot 7 is 10853 of 2008; lot 68 is 10854 of 2008; lot 2 is 10855 of 2008; lot 3 is 10856 of 2008; and lot 1 is 10857 of 2008. 3 It was agreed between the parties before the commencement of the hearing that the evidence to the Court could be considered for all appeals. Therefore the parties agreed that it is more appropriate and efficient to deal with these matters together including the one judgment. Nonetheless they are still separate appeals and separate orders will be issued in respect of each appeal. 4 The subject sites are located within what is known as the Netherton Park Estate, a new residential subdivision on the northern edge of City of Armidale. In the subject estate there are some 85 lots, and approximately 20 dwelling houses have been built or are under construction, with several others approved for the estate. The development to date can be described as the character of a new residential estate and there are very few trees that have had the opportunity to establish on the estate. The subject site is bordered by a rural residential area and a 1(b) rural zone and a 2(c) zone. 5 The controls for the sites are contained within the Armidale 1988 Local Environmental Plan and this LEP has a number of aims and objectives. This is an ex tempore judgment and I will not quote extensively, but I will preface my judgment by saying that I have had regard to the statutory planning framework and the local planning regime as established by the council in my assessment of the applications. 6 The zone objectives within the 1988 LEP must be taken into consideration in assessing development applications. That is, it is to be consistent with one or more of the objectives of the zone where the development is proposed to be carried out. Of importance is that the land is identified in a separate schedule as an area of land that has been subdivided below the minimum subdivision size for land within the 1(b) zone. This is known as schedule 2, "development for certain additional purposes," and on subject estate it provides: "Subdivision of all or part of any parcel into allotments having an average size not greater than 2,000 square metres, development on each lot having an area not greater than 5,000 square metres created by such a subdivision. Such other purposes are permitted on land within zone number 2." 7 As such it was submitted on behalf of the applicant that I should have regard to the objectives in zone 2, residential, including, "to provide the opportunity for a variety of residential activities to meet the needs of the community." 8 The site is however zoned 1(b) Rural Residential, and the zone objectives are: To facilitate development primarily for the purpose of low density residential uses and associated activities on large and semi-rural allotments, and to ensure that the type and intensity of development is appropriate and compatible with the environmental characteristics of the land, the future need for associated public services and amenities, and to ensure that development within the zone does not compromise the efficient and effective development of urban areas of the city, or jeopardises sustainable use of adjacent lands. 9 There was a great deal of discussion during the proceedings between the two experts. Mr Angus Witherby on behalf of the respondent council, a consultant town planner, provided evidence and a joint statement with Mr Gary Chapman, who is the applicant's consultant planner. The experts also participated in joint conferencing and concurrent evidence during the proceedings. 10 It is noted that the Armidale Local Environmental Plan 2008 was gazetted in February 2008, and there is a savings provisions contained within this LEP such that, "For development applications has been made before the commencement of this Plan in relation to land to which this Plan applies, and the application has not been finally determined before that commencement, the application must be determined as if this Plan had been exhibited but not commenced." 11 Mr Witherby considered therefore that significant weight should be given to the existing 1(b) zone objectives as opposed to the provisions under the new LEP. 12 Under the new LEP of 2008 the consent authority must have regard to the objectives of the zone, where subject sites are zoned residential 2(a). Theere is also a zone known as residential low density 2(b). The zone objectives for the 2008 LEP are: To allow for diversity and choice of housing types and locations appropriate to the zone and other essential needs of all households, to encourage the development of predominantly residential areas, and to enable development of land that is appropriate to the surrounding residential area where the scale, height, type, operation and traffic generation characteristics of the development are compatible with the character and amenity of the surrounding area, and with existing or proposed development nearby. 13 For dual occupancy development in this zone, in the case of an attached dual occupancy, the lot is to have an area of at least 400 square metres. In the case of detached dual occupancy, which is what the proposed dual occupancy applications are for in the applications before the Court the lots are to have an area of at least 600 square metres. 14 The definition of dual occupancy in the instrument means two dwellings on a single allotment. The proposal is for detached dual occupancies on each of the nine allotments. The allotments range in size from 935 square metres to 1,177 square metres. I also note that for the subject dual occupancies, each dwelling is to sit on allotments of between 421 square metres for lot 84 and rising to 514 square metres for lot 15. 15 The percentage of site coverage was also calculated by the experts and the site coverage of the dwellings is between some 41% rising to 55% in one instance. The experts also provided calculations of the landscaped area and this ranges between 45% for lot 15 through to 59% for lot 70. 16 The court met on site with the parties and heard from a number of resident objectors who resided in dwelling houses within the estate. Mr Parker of number 3 Netherton Park is of the opinion that the proposed dual occupancies will be concentrated around the main entry to the estate, which will change the character of the area, and he indicated that he moved there because of the open feel to the estate and the open space. He said that he would feel enclosed by the proposed dual occupancies surrounding his dwelling on lot 69. He considered that the council had refused the application twice and he sees the proposed dual occupancies as representing high density in a low density residential area. 17 Mr Weston of No. 12 Mason Crescent is concerned about the narrow nature of roads that were not designed for this density of development with the extra vehicles that would be generated by the development. He expressed concern about reversing out of garages and he said that there would be high traffic created on the roads at the entrance to the estate. He is of the opinion it is too dense, and he would not object to one or two dual occupancies scattered but was opposed to a clustering of the dual occupancies. He also said that the public transport to the area was more remote. 18 Mr Pape of lot 82, No. 8 Mason, considers the streets are too small and that there would be a traffic problem created by the development. 19 Mr Hartman of lot 53 is of the opinion that the estate was promoted as a prestigious estate within the Armidale area and the proposed development would create an undesirable precedent. 20 Generally the residents were concerned about the provision of dual occupancy dwelling houses amongst the larger allotments and the dwellings that have been erected to date. It is noted that the dwellings to date are of single storey construction and these sit on large allotments of approximately 1,000 square metres. 21 The Court heard extensive evidence from the two planners during the court hearing, and I required the planners to subsequently provide an analysis of the different controls. That is the Armidale Residential Development Code 1996, and the new Armidale Development Control Plan 2007. I am of the opinion that significant weight should be given to the new 2008 LEP, and I should also have regard to the controls or the guidelines within DCP 2007. 22 Mr Witherby, on the other hand, considered that the 1998 DCP should be given the significant weight, and the objectives of the 1(b) zone of the former LEP. 23 I am persuaded by the evidence of the applicant that the recent 2008 LEP and 2007 DCP clearly set the contemplated future direction anticipated by the council for development of this estate. The subject sites and the estate are zoned under the new LEP as 2(8). I refer to the Court of Appeal judgment Terrace Towers v Sutherland Council, that states it is appropriate in particular where plans and policies have been made which may have been considered as a draft, but where they have actually been made, it is appropriate that significant weight be give to such instruments. In this case the 2008 LEP and 2007 DCP have clearly been through a public consultation process and there is no reason as to why I should not give them significant weight. 24 At the same time, in my assessment, I have considered the objectives of the 1(b) zone, that is the 1988 provisions of the 1(b) zone, and in my overall assessment I am satisfied that proposed development is not inconsistent with one of those objectives. Clearly the proposed development is consistent with the zone objectives as established under the 2008 LEP, and Exhibit 20 provides for a comparison of the two DCPs. 25 I note that the objectives for detached housing require to ensure that traditional detached housing located on lots greater than 400 squares for the 2007 DCP, under the previous DCP this was 450 square metres. As such, the new LEP and the old LEP in fact allow for the subdivision of land down to a size of respectively 400 and 450 square metres. The future proposal is for to Strata Title the dual occupancy developments, although this is a matter that sould occur following development. 26 The FSR under the Armidale 2007 DCP is 0.5:1 whereas the old DCP provides for 0.66:1. I note that the single dwelling houses proposed for each of these lots equates to a floor space ratio of approximately 0.3:1, and even if the garaging for the second vehicle is included, the FSR still calculates at well below the guideline in the new DCP. I am satisfied and I am persuaded by the evidence of the applicant that the proposed detached dual occupancies will maintain the low density residential character of the area. 27 Mr Witherby's evidence on behalf of the respondent is that the character of the area is what has been built to date and he considers that the proposed grouping of dual occupancies is incompatible with the character that has been established to date. He considers that one should not look at the planning controls to understand the future character. I am persuaded by Mr Chapman's evidence that the future desired character must be considered in the context of what is existing today and what is contemplated in terms of the controls contained within council's recently adopted local planning regime. In my assessment the proposed development is consistent with the contemplated character of the area. 28 Compatible does not mean development must be exactly the same as existing. Compatible has been found in this court to mean harmoniously co-exist, the Macquarie dictionary definition. I am of the opinion that the proposed dwellings are also compatible with the low density nature of the area and that they will fit comfortably within the area in a landscaped setting. 29 The experts agree that if the relevant objectives for the new residential zone are considered then the dual occupancy developments are generally consistent with the objectives. Mr Witherby only took issue with the 1(b) objectives but nonetheless only one objective needs to be satisfied in terms of that zone under the 1988 LEP. 30 The experts also agree that the proposals do not consist of a single contiguous grouping, although they agree that a cluster of proposals occurs around lot 69. Mr Chapman is of the view that the six dual occupancy proposals in the vicinity of lot 69 is not an unreasonable intensity of development. The dwellings around lot 6 have a range of orientations to Link Road, Netherton Way and Mason Crescent, and lots 1, 70 and 84 are corner allotments with each dwelling designed to address the street frontage. Lots 2 and 3 front Link Road, and lot 66 fronts Netherton Park Avenue. Mr Witherby is of the view that the cumulative number of proposals, especially associated with the cluster, would bring about a change of character to the estate which is contrary to the established low density character notwithstanding the orientation to different street frontages. 31 I note that the council provided 2 Statements of Facts and Contentions for nine development proposals. One statement is in respect of the corner allotments, contained in Exhibit 6, and those not on a corner in the second statement Exhibit 7. Council generally considers that corner lots are more appropriate for dual occupancy development in its assessment. 32 The contentions for the corner lots are that: o the proposals are not in keeping with the character and amenity of the locality; o the proposed landscaping does not adequately screen the proposals from Link Road; 33 The contentions for what I will refer to as the non-corner lots are: o that the proposal is not in keeping with the character and amenity of the locality. o the proposed car parking facilities dominate the proposal on the street frontage because of the additional access driveway to the internal dual occupancy; and. o the proposed landscaping does not adequately screen the proposals. 34 In terms of landscaping, council has a well-documented and thorough urban streetscape plan, and it is noted that street tree planting is done on a city-wide basis following the erection of dwelling houses on estates. However, the proposed developments in my assessment require appropriate landscaping of each lot and this should be established on the individual allotments. In my determination the landscape plan provisions and conditions should be amended so that the landscape plan with the appropriate species be shown in a plan as a deferred commencement condition. The reason for this is that the landscaping is not a matter left to the PCA, because landscaping is important to ensure that the character of the area is established and that dwellings sit within a landscaped setting. As a deferred commencement the landscaping plans would be subject to council's approval prior to the consents operating. 35 Similarly with respect to the materials, finish and colours, a deferred commencement condition is required rather than leaving this matter to a PCA to ensure that there is continued variation for materials, finishes and colours, as can be seen on the estate to date. As such a deferred commencement is required as opposed to a condition of consent as such. 36 In terms of the issue of clustering, it can be seen that there are numerous dual occupancies proposed on a number of lots within relatively close proximity to each other, in particular when I look at lot 69. Nonetheless, I am satisfied that with amendments to in particular lot 68 such that this be mirror reversed, that there is appropriate space provided between dwellings and the common boundaries with lot 69. In this regard, a deferred commencement for lot 68 is to provide for an architectural plan to show a mirror image is prior to the consent operating. 37 In my assessment of the clustering issue I am satisfied given the size of the lots that each dwelling can be described as low density residential. I say this having regard to the fact I understand that this is Armidale and not the suburbs of Sydney and by the conclusion is informed by the fact that the floor space ratio of each of the proposed dual occupancy dwellings is in the vicinity of 0.3:1 and these are also single storey dwellings. When I look at the siting of each dwelling there is appropriate areas for soft landscaping, even having regard to the paved areas required for driveways. Even though the council has a requirement that there be a turning area for each dwelling on each lot such that vehicles do not need to reverse onto the street, I am still satisfied that there can be appropriate landscaping provided commensurate with the number of dwellings to allow for greater certainty of a landscape setting landscaping is to be completed prior to the occupation of the dwellings. 38 I recognise that this is a new estate and that the other dwelling houses or constructed to date have not had the opportunity of establishing landscaping for their dwellings. It is often the case that dual occupancy developments, multi-unit dwellings, provide for the desired future character in a more timely manner with the construction of dwelling houses, and that should occur for this subdivision where dual occupancies are proposed. 39 I note the zone permits residential flat buildings with consent to a maximum of two storeys. Clearly the dual occupancies this development could not be classified in this same category of medium density development, but rather it is low density development and it provides for the appropriate choice as required in the zone objective of the new LEP, 2(a), "to allow for diversity in choice of housing types and locations appropriate to the zone." I am also satisfied that the objective of the zone "to enable development that is appropriate for the surrounding residential area in terms of scale, height and type" is complied with. 40 On the question of the objectors' concerns, I appreciate that existing residents may not embrace the new development, but I am also satisfied that on completion these dual occupancy dwellings will sit comfortably within this low density residential area. It appears to me that the concerns of the residents go more to the zoning of the site and the provisions contained within the council's current local planning regime. However, I must assess the development application against the planning controls established by the council, and clearly the future character of this area is one that will be shaped by the current zoning and the local planning framework. 41 The Court was taken to another subdivision known as Martin Street where there are a number of attached dual occupancies. I agree with Mr Chapman that the proposed dual occupancies will not replicate or be similar to the Martin Street dual occupancies may of which are attached dual occupancies. 42 The issue of precedent that was raised by the council, and I am satisfied that with the conditions proposed that the proposals will not represent an undesirable precedent. Dual occupancy development is clearly permissible in the zone and subdivisions are permissible down to a smaller size than the majority of these dual occupancy lots that would be created. The authority of the judgment of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, I have considered and I do not consider that precedent is an issue that would warrant refusal of the applications either in isolation or together. 43 As I stated, I have given significant weight to the gazetted 2008 LEP but nonetheless, as required in terms of the law, I have had regard to the savings provision and the zone at the time the applications were made which was 1(b) under the 1988 LEP. I am still satisfied that one of the objectives of that zone is satisfied and also the residential objectives within that LEP. 44 Concerns were expressed about the placement of the dwellings and the landscaped areas. In my assessment of the plans and the siting of the dwellings, I am satisfied that landscaping with the proposed development will enhance this residential estate, and the condition requiring landscape plans will provide for a commensurate landscape setting. 45 On the receipt of amended sets of conditions to reflect my findings above the separate orders can be issued for each of the dual occupancy proposals as identified in the appeal numbers cited earlier. 46 In general terms the following orders are to be made: 1. The appeals in respect of the lots known as 1, 2, 3, 7, 9, 15, 70, 68 and 84 in the Netherton Park Estate, Armidale, are upheld. 2. The development applications submitted to Armidale Council are determined by the granting of a deferred commencement consent for each lot with the requirement for landscape plans and materials and finishes and colours, and a further deferred commencement condition on lot 68 for the mirror image to provide for appropriate spacing and landscaping to the adjoining lot number 69. The dual occupancy developments are approved subject to the conditions in Annexure A. 3. The exhibits to be returned to the parties are: A; 1; 2; and 5. ___________________ J S Murrell Commissioner of the Court ljr Annexure 'A' Conditions of Consent Calibrate Australia Pty Ltd v Armidale Dumaresq Council PART A - Deferred Commencement Conditions In accordance with s80(3) of the EP &A Act the following conditions must be satisfied prior to the consent operating. 1. An amended detailed landscape plan shall be submitted and approved by the Council to show the proposed tree species to be used (which must be appropriate for the New England climate), height and spread at maturity, and a specification for soil preparation, drainage, weed control, watering, fertilising and general maintenance during establishment ( Landscape Plan ). The Landscape Plan is to include canopy trees within the development to ensure that landscaping is the dominant feature within the streetscape New tree plantings are to be a minimum of 3m horizontal distance from the line of buildings or underground services to reduce risk of future damage by limbs, roots, etc; and 2. A schedule of colours, materials and finishes shall be submitted for the approval of Council. On the above conditions being satisfied the consent will then operate subject to the conditions below in Part B. PART B - Prescribed Conditions 1. The following conditions are prescribed in relation to a development consent for development that involves any building work: · that the work must be carried out in accordance with the requirements of the Building Code of Australia as in force on the date the application for the relevant construction certificate is made; · that 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 building work authorised to be carried out by the consent commences. 2. The following conditions are prescribed as conditions of a development consent for development that involves any building work, subdivision work or demolition work: · A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: o showing the name, address and telephone number of the principal certifying authority for the work, and o showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and o stating that unauthorised entry to the work site is prohibited. · Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed. 3. The following conditions are prescribed as conditions of a development consent for development that involves any residential building work within the meaning of the Home Building Act 1989: · Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the Council) has given the Council written notice of the following information: o in the case of work for which a principal contractor is required to be appointed: § the name and licence number of the principal contractor, and § the name of the insurer by which the work is insured under Part 6 of that Act, o in the case of work to be done by an owner-builder: § the name of the owner-builder, and § if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit. · If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (a) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the Council) has given the council written notice of the updated information. 4. Fulfilment of the commitments listed in each relevant BASIX certificate for the development. General Conditions 5. The development must take place in accordance with the approved plans (bearing the Armidale Dumaresq Council approval stamp) and documents submitted with the application, drawn by Capital Homes, numbered 1151 Page 1 of 8 to Page 6 of 8 inclusive, and Page 8 of 8 and dated 26/10/07, and subject to the conditions below to ensure the development is consistent with Council's consent. 6. All Engineering works to be designed by a competent person, endorsed by a Certified Practicing Engineer, and carried out in accordance with Council's Engineering Code, unless otherwise indicated in this consent, to ensure that these works are of a sustainable and safe standard. 7. All sewer and drainage works associated with the approval are to comply with the requirements of AS 3500 and be completed only by a licensed plumber and drainer. 8. The proposed development is to be landscaped to enhance its appearance and provide shade and environmental benefits before the issue of an Occupation Certificate for the development. Approved landscaping is to be maintained at all times to the satisfaction of the Director Planning and Environmental Services' nominee. Before Release Of Construction Certificate 9. An 'Agreement to Meet Costs' form and monetary security of $1500 to cover the cost of carrying out rectification work in public areas in connection with the proposed new footpath crossings should any defect arise within 12 months of completion of the works. Security shall be in the form of cash or bank guarantee for an amount determined by Council. Application for a 90% refund of the security may be made on documented completion of the works, with full refund of the remaining 10% upon satisfactory completion of the 12 months' defects liability period. 10. Contribution toward public amenities and services for which Council is satisfied that the proposed development is likely to create a demand (as detailed in the attached schedule) is to be made (or secured by bank guarantee) prior to the issue of the Construction Certificate. 11. An all-weather, nuisance-free surface for pedestrians and vehicles is to be provided throughout the site, including parking areas and driveways. The surface shall be provided with effective edge support/drainage control and landscaped areas adjacent to kerbing to be self-draining to the kerb. Details to be provided to Council's Development Engineer or nominee for approval before the issue of a Construction Certificate for the development. ADVISING: Bitumen sealed compacted gravel pavement or reinforced concrete to the standards set out in the Department of Housing Road Manual, 1987, will satisfy the above requirement. Alternatively, segmental paving may be used provided it is installed as part of a pavement design in accordance with the Cement & Concrete Association of Australia's "Guide to Design and Construction" for Interlocking Concrete Road Pavements, July 1986. 12. A stormwater detention system is to be designed to ensure the post-development flow from the detention basin is to be no greater than the pre-development flow from the catchment. Storm events to be provided for are the 1% Annual Exceedence Probability (AEP), 5% AEP and 20% AEP. Details to be provided to Council's Development Engineer or nominee for approval before the issue of a Construction Certificate for the development. 13. The owner is required to enter into an agreement for payment of a contribution towards water and sewer infrastructure provided by Council for the benefit of this site. A draft agreement is enclosed for the owner's signature and return to Council with payment. Upon payment of the required contribution or completion of appropriate arrangements for payment, which must be made before the issue of the Construction Certificate, Council will issue a Certificate of Compliance, pursuant to s.64 of the Local Government Act 1993, and Division 5 of Part 2 of Chapter 6 of the Water Management Act 2000. Before Works Commence 14. Council is to be given written notice of the intention to commence works and the appointment of a Principal Certifying Authority (if the PCA is not Council) at least two days before the proposed date of commencement, in accordance with cl 103 and 104 of the Environmental Planning and Assessment Regulation 2000. Such notice is given using the form enclosed with this consent. 15. A Construction Certificate must be obtained before work commences, in accordance with cl.146 of the Environmental Planning and Assessment Regulation 2000. 16. Before construction commences on the site and throughout the construction phase of the development, erosion control measures are to be installed to prevent soil erosion, water pollution or the discharge of loose sediment on surrounding land, as follows: · divert contaminated run-off away from disturbed areas, · erect silt fencing along the downhill side of the property boundary, · prevent tracking of sediment by vehicles onto roads by limiting access to the site and, where necessary, installing a temporary driveway and · stockpile all topsoil, excavated material and construction debris on the site, erecting silt fencing around the pile where appropriate. Failure to take effective action may render the developer liable to prosecution under the NSW Protection of the Environment Operations Act. 17. The uppermost layer of the soil profile (top soil) is to be retained on site, stockpiled and surrounded at its base with silt fencing to ensure that the topsoil is maintained in a satisfactory and reusable condition. Areas within the development not otherwise built on are to be left with not less than 100mm of topsoil with grass or other landscaping established, to provide an aesthetically pleasing development within the streetscape. 18. A hoarding or fence must be erected between the work site and any public place if the work is likely to cause traffic (pedestrian or vehicular) in a public place to be obstructed or otherwise inconvenient. The erected hoarding is to be 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. The hoarding, fence or awning is to be removed once the work has been completed. 19. Should Council be appointed the Principal Certifying Authority, the Applicant must give at least 2 days' notice to enable the following inspections to be undertaken where appropriate for the class of building: · at the commencement of the building works** · before the pouring of footings** · before covering drainage (under hydrostatic test) · before pouring any reinforced concrete structure, such as a slab-on-ground, suspended slab, or driveway ** · before covering the framework for any wall, roof or other building element ** · before covering waterproofing in any wet area** · before covering any stormwater drainage connections** · when the building work is completed and before the issue of an occupation certificate** ** denotes a critical stage inspection (a mandatory inspection pursuant to Section 109E of the EP&A Act 1979). Please note that an Occupation Certificate cannot be issued for a development where a critical stage or other nominated inspection has not been carried out. 20. No storage of building materials, soil or equipment is to occur on Council's property or roads without the written consent of Council's Development Engineer and Civic and Recreation Services Manager. No unfenced, potentially dangerous activity or material to be located in close proximity to the street boundary or pedestrian walkway adjoining the site. No unsupervised transit of plant, equipment or vehicles across public areas or other obstruction of those areas is permitted. During Construction 21. Toilet facilities are to be provided at, or in the vicinity of the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Each toilet provided must be connected to an accredited sewage management facility approved by the council or some other sewage management facility approved by the council. 22. Effective dust control measures to be maintained during construction to maintain public safety/amenity and construction activities are to be restricted solely to the subject site. ADVISING: Failure to take effective action may render the developer liable to prosecution under the NSW Protection of the Environment Operations Act. 23. Materials must not be burned on-site. All waste generated on site must be disposed of at Council's Waste Disposal Depot or Waste Transfer Station, to protect the amenity of the area and avoid the potential of air pollution. 24. Any building work must be carried out between 7.00am and 6.00pm Mondays to Fridays and 8.00am to 5.00pm Saturdays, excluding public holidays. No audible construction is to take place outside these hours, to maintain the amenity of the locality. 25. Excavations and backfilling must be executed safely and in accordance with appropriate professional standards and be properly guarded and protected to prevent them from being dangerous to life or property. If excavations associated with the erection of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made, must preserve and protect the building from damage, and if necessary, underpin and support the building in an approved manner. Notice of intention to do so must be given to the owner of the adjoining land at least seven days before the commencement of excavation work. The owner of the adjoining allotment of land is not liable for any part of the cost of work, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. If the soil conditions require it, retaining walls associated with the erection of the building or other approved methods for preventing the movement of the soil must be provided, and adequate provision must be made for drainage. 26. Roof and surface stormwater from paved and impervious areas is to be collected and directed via the required on-site detention system to a legal point of discharge, to protect the site and adjoining property from effects of flooding. Relevant work to be carried out immediately once the roof and guttering is installed. 27. Lighting is to be provided to pedestrian ways, dwelling entries, driveways and carparks to ensure a high level of safety and security for residents and visitors at night. Lighting is to be designed to minimise light entering adjacent dwellings, to ensure the amenity of adjoining properties is maintained. 28. The proposed dwellings are to be constructed to ensure that high levels of noise from external sources are restricted to a maximum level of 45dBA, measured within the habitable rooms of the buildings, in accordance with the relevant Australian Standards (including AS3671 – Road Traffic). Before Occupation / When Works Are Completed 29. An Occupation Certificate must be obtained before the approved use commences, in accordance with the EP&A Act and to ensure the health and safety of the building's occupants. ADVISING: Failure to obtain an Occupation Certificate is an offence under the legislation. Penalty advice for buildings (penalties do not apply to uses detailed in 109M and 109N; i.e. crown projects, Class 1a and 10 buildings or as detailed for certain temporary structures). 30. The property number shall be clearly and permanently displayed on or adjacent to the doorway or on the street frontage to identify the premises to the public and to essential/emergency services. Numbers shall be 100mm high x 50mm wide (minimum) and of a colour contrasting with the surface to which they are affixed. 31. Landscaping is to be completed in accordance with the approved Landscape Plan prior to the issue of an Occupation Certificate for the development. New tree plantings are to be a minimum of three (3) metres horizontal distance from the line of the buildings or underground infrastructure to reduce the risk of future damage by tree roots. Landscaping is to be maintained on a continual basis. 32. Construction of two new vehicular crossings, including layback, over the full width of the footpath, to provide effective all-weather access to site and a safe and nuisance-free surface over Council's footpath. The driveway is to extend (as a minimum) from the back of the layback/kerb to the property boundary. All works shall be in accordance with Council's Drawing No's 040-4/issue 2 and 040-3/issue 3, or other design to the approval of Council's Director Engineering or nominee, before the issue of an Occupation Certificate. ADVISING: The driveway is to be 3m wide at the rear of the layback and 3m wide at the property boundary. Segmental paving may be used provided it is installed as part of a pavement design in accordance with the Cement & Concrete Association of Australia's "Guide to Design and Construction" for Interlocking Concrete Road Pavements, July 1986. 33. All civil engineering and utility service works undertaken pursuant to this consent are to be inspected and tested upon completion, and details provided for the approval of the Council's Development Engineer, before the issue of an Occupation Certificate. 34. Approval must be obtained from the Council as the Local Water Supply and Sewer Authority for any potable water supply and sewerage work, pursuant to Chapter 7 of the Local Government Act 1993 with all relevant work completed in accordance with such approval. 35. The creation of a "Positive Covenant" on the title of Lot 84 DP 1116910, requiring that the detention system be maintained on an ongoing basis. The s.88b Instrument is to make provision for Council to conduct maintenance on the subject basin at the owner's expense if the basin is not maintained to an appropriate standard. Details to be provided to Council's Development Engineer or nominee for approval before the issue of an Occupation Certificate for the development. 36. The creation of a "Restriction as to User" on the title of Lot 84 DP 1116910, to prevent any change in shape or alteration in structure of the proposed detention system after the final approval of the required structure has been given. Details to be provided to Council's Development Engineer or nominee for approval before the issue of an Occupation Certificate for the development. Operational Matters 37. The proposed pumps for the alternative water supply are to be located and maintained in a manner such as not to cause offensive noise (defined in the NSW Protection of the Environment Operations Act), in order to maintain the amenity of the locality. Noise levels generated by the pumps must be restricted to a maximum of 5dBA above the background noise levels at any time, measured at the boundaries of the site. 38. Installation and use of proposed rainwater tank to be in accordance with Council's Rainwater Tanks Policy (POL151) (copy available on request). Direct connection between the rainwater tank and reticulated potable water supply will not be permitted, however, the reticulated potable supply may be used to top up the tank via a physical air gap. Maintenance of the tank or tanks should be in accordance with New South Wales Health guidelines for the use and maintenance of rainwater tanks. 39. Any lighting used on site in connection with the development is to comply with AS 4282 – Control of the Obtrusive Effects of Outdoor Lighting. Advice All building work must be carried out in the following manner to ensure compliance with the Building Code of Australia (Housing Provisions): · The timber primary building elements of the building are to be protected from subterranean termites in accordance with AS 3660.1, and a durable notice must be permanently fixed to the building in a prominent position (eg. inside the electricity meter box) indicating: o method of protection, o date of installation of system, o where a chemical barrier is used, its life expectancy as listed on the National Registration Authority label, and o the maintenance requirements of the system. · An approved polythene moisture barrier is to be provided to the underside of the concrete floor slab to prevent external moisture entering the building. · Footings and floor slabs to be constructed in accordance with the requirements of AS 2870 - Residential Slabs and Footings, to ensure the structural integrity of the building. · Timber framing to comply with the requirements of AS 1684 - Timber Framing Code, to ensure structural integrity of the building. The frame is to be adequately braced and 'tied-down' to the footings to prevent movement of the structure by wind forces. · Brickwork to be constructed in accordance with AS 3700 "Masonry Code", to ensure structural integrity of the building. Minimum clearance between the outer edge of the eaves and gutter and side boundary is 675mm, and 900mm between the wall and side boundary. · Wet areas to be finished with an impervious floor surface, and care taken to seal floor/wall junctions adequately, to protect the structure of the building and to maintain the amenity of the occupants. · Smoke alarms to be provided and located in accordance with 3.7.2 of the BCA (copy available on request), to safeguard the occupants of the building in the event of a fire. · The door to a fully enclosed sanitary compartment must open outwards, slide or be readily removable from the outside of the compartment to enable unconscious occupants to be removed from the compartment. · Any use of greywater must be carried out below surface level (ie. using porous piping – not above-ground sprinklers) and must not impact on adjoining properties, all in accordance with a Council approval under s.68 of the Local Government Act 1993. · Any plumbing, drainage and electrical work to be carried out by a licensed tradesperson, with plumbing and drainage work all in accordance with a Council approval under s.68 of the Local Government Act 1993. ________________________ 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.