Land and Environment Court of New South Wales CITATION : Lord v Manly Council [2010] NSWLEC 1223 APPLICANT Gary Lord PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 10068 of 2010 CORAM: Tuor C DEVELOPMENT APPLICATION :- new dwelling house KEY ISSUES: Compliance with floor space ratio, building wall height , number of storeys and setback controls in development control plan Impact on residential amenity, particularly view loss LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Manly Local Environmental Plan 1988 DATES OF HEARING: 8 -10 June 2010 DATE OF JUDGMENT: 19 August 2010 APPLICANT Mr A Galasso, SC Instructed by Mr Sattler LEGAL REPRESENTATIVES: of Sattler & Associated Pty Ltd RESPONDENT Ms C Schofield, solicitor of Pikes Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 19 August 2010 10068 of 2010 Lord v Manly Council JUDGMENT 1 Commissioner: This is an appeal against the refusal by Manly Council (the council) of a development application (103/09) to demolish an existing dwelling, swimming pool and garage and construct a new dwelling, double garage, swimming pool and landscaping works at 71 Bower Street, Manly (the site). 2 Council contends that the proposal has unacceptable visual bulk, view loss, privacy and overshadowing impacts due to its non compliance with the number of storeys, wall height, floor space ratio (FSR) and setback controls in Manly Development Control Plan for the Residential Zone 2007 Amendment 1 (the DCP). The site and its locality 3 The site is located on the southern, upper side of Bower Street. It is trapezoid in shape and has a frontage of 16.365m to Bower Street and Montpelier Place, a depth of about 45.8m and a site area of 699sqm. 4 The site slopes down approximately 5.5m from Montpelier Place to Bower Street and has a moderate fall from east to west. 5 The site is developed with a two storey brick dwelling with a pitched tile roof. There is a swimming pool at the northern part of the site and two single garages that are accessed off a right of way from Montpelier Place. 6 Adjoining development to the east is a three storey house (69 Bower Street) and to the west is a two storey house (73 Bower Street). To the south, on the opposite side of Montpelier Place are recently completed houses that are two stories above basement car parking and storage. 7 The locality is a mixture of older residential flat buildings and detached houses. Planning controls 8 The site is within Zone 2 Residential under Manly Local Environmental Plan 1988 (LEP1988). The proposal is permissible with consent. 9 The site is within a Foreshore Scenic Protection Area. Clause 17 of LEP 1988 requires that the development not have a detrimental effect on the amenity of the Foreshore Scenic Protection Area. 10 The site is within Density and Height subzone 5 in the DCP. The DCP includes controls for FSR (cl 3.4), Building Height (cl 3.5), Setbacks (cl 3.6), Swimming pools and Spas (3.8), Sunlight and Overshadowing (cl 4.1), Privacy and Security (cl 4.2) and Maintenance of Views (cl 4.3). The evidence 11 The Court visited the site and heard evidence from residents of Montpelier Place whose principal concerns were the impact of the height of proposal, particularly the three storey element, on their views and the precedent that approval of the development may set for the redevelopment or alterations to other dwellings in Bower Street. The residents stated that their understanding when purchasing their properties was that a two storey height limit applied. The adjoining resident at 69 Bower Street was also concerned about the visual bulk of the proposal and its impact on their views, privacy and overshadowing. The adjoining resident at 73 Bower Street was concerned about the decreased setback and the increased height of the proposal in comparison to the existing house, which he considered would result in unacceptable bulk and no opportunity for landscaping. 12 The Court heard expert planning evidence from Mr S Layman, for the council and Mr R Fleming, for the applicant. They disagreed on the proposal's compliance with the FSR, wall height and side set back controls in the DCP. This disagreement centred on different interpretations of these controls. They agreed that the proposal did not comply with the two storey height control but held different opinions about the impact of this non compliance, particularly in relation to view loss and overshadowing. 13 Part 3 of the DCP requires that variation from the numerical controls will need to meet the objectives of the control and also demonstrate that a more desirable outcome is achieved. The experts disagreed on whether the objectives of the controls would be met and also on whether a more desirable outcome would be achieved by the proposal. Floor Space Ratio 14 Mr Layman estimated the FSR of the proposal to be about 0.64:1 (446sqm), which is 131sqm over the FSR permitted under the DCP of 0.45:1 (314.55sqm). Mr Fleming estimated the FSR to be about 0.5:1 (353sqm), which is 38.45sqm over the control. 15 The difference principally arises from whether the stairs and part of the car park and plant room used for storage should be included as gross floor area (GFA). 16 The DCP includes a definition of GFA which excludes items including: d) any area for common vertical circulation, such as lifts and stairs, and e) any basement: (i) storage, and (ii) vehicular access, loading areas, garbage and services, and f) plant rooms, lift towers and other areas used exclusively for mechanical services or ducting, and g) car parking to meet any requirements of the consent authority (including access to that car parking), and … Note: For the purpose of calculating gross floor area, any proposed car parking which is greater than the required DCP rate of parking provision and standard dimensions (30sqm in area) will be included as gross floor area. While Council recognises that in some circumstances additional parking may be justified, the additional parking will be counted as gross floor area and FSR. 17 In Mr Layman's opinion, the stairs should be included as GFA, as they do not provide "common" vertical circulation, which would be the case in a residential flat building. Mr Fleming states that "common" does not refer to residential flat buildings but to any vertical circulation space that links common areas. 18 The experts disagreed whether the whole of the plant room should be excluded from GFA. Mr Layman referred to cl 5.7 of the DCP which provides that: Plant and machinery rooms shall have floor area no larger than the actual area the plant and/or machinery occupies plus the equivalent of a 500mm access/maintenance area surrounding the plant/machinery item. 19 In Mr Layman's opinion, the plant and access occupy about 15.5sqm of the 65sqm plant room and that the remainder is storage, which should be included as GFA as it is not within a basement. Mr Fleming considered that the majority of the area should be excluded as it is either plant or within a basement. The difference of opinion relating to whether the area was a basement resulted from whether the excavation for the existing building or the unexcavated ground level adjoining the existing building was considered to be "existing natural ground level". 20 The experts also disagreed on the area that should be excluded for parking. Mr Layman stated that 30sqm was required to meet the requirement for two car spaces in the DCP and that there were no particular characteristics of the site which require greater manoeuvring requirements for access. 21 Mr Fleming accepted that the storage area in the garage should be included as GFA but considered the swept path area for vehicles accessing the car parking spaces (Exhibit F) should be excluded. Findings 22 There was agreement that the proposal exceeds the numerical FSR control. In adjudicating on what items should be included within GFA, other than for the stairs, I accept Mr Layman's opinion that the plant room, not used for plant and access, the non basement storage areas and some of the manoeuvring area for vehicles should be included as GFA. 23 The exclusion of "common vertical circulation" in the DCP does not refer only to residential flat buildings, while I accept that the use of the word "common" is confusing, a practical interpretation would be to exclude the stairs from GFA. 24 There is no definition of basement within the DCP, however generally a structure, which extends more than one metre above natural ground is considered to be a storey and not a basement. The DCP defines "existing natural ground level" to be: Existing natural ground level means the level, at Australian Height Datum, of the ground at 28 May 2001. 25 Based on this definition, the excavated area of the existing dwelling would be the existing natural ground level. Therefore those parts of the plant room that are more than one metre above this level and that are storage rather than plant would be GFA. 26 The swept path diagram is based on a 99% vehicle. No expert evidence was called about manoeuvring and access requirements. Even based on the diagram, the extent of manoeuvring area is excessive given that the car parking could be located further forward in the garage. 27 From the information it is not possible to accurately estimate the amount of area that would be included or excluded as GFA. However, the exceedance of the control would be greater than that estimated by Mr Fleming and less than that estimated by Mr Layman. 28 The key question is whether the proposal meets the objectives of the FSR control given that there is an agreement that it exceeds the numerical control. In answering this question, the appropriate approach is to look not only at those areas where there was a dispute about whether they should or should not be included as GFA and therefore in the calculation of FSR, but rather at the development as a whole. There is no reason to limit the assessment of bulk to the garage or plant room that exceeds the FSR control. Those parts of the building, which do not comply with other controls in the DCP, would attract particular attention. 29 The objectives of the FSR control in cl 3.4 of the DCP are: a) To assist in controlling the bulk of buildings; b) To ensure the scale of development does not obscure important landscape features; c) To ensure the scale of development is consistent with the existing and desired character of the residential areas; d) To minimise disruption to views and loss of privacy to adjacent and nearby development; and e) To provide sunlight access to private open spaces within the development and maintain adequate sunlight access to private open spaces and to habitable rooms of adjacent dwellings. 30 The experts held different opinions on whether the proposal met the objectives of the FSR control. These different opinions focus on whether the proposal meets the objectives of the height control and the setback control. In particular, whether the proposal achieves appropriate view sharing. These matters are discussed further in the Judgment. In considering these objectives, I find that the proposal, other than the height and side setback of the building from the western boundary, meets the objective of the FSR control. Height Wall height 31 Clause 3.5.2 of the DCP specifies the maximum wall height for a sloping site. Based on Exhibit G, the experts agree that the permissible wall height is 7.85m. They disagree on whether the proposal includes a parapet and is eligible for the extra 600mm parapet concession under cl 3.5.6 of the DCP. They therefore disagree on the extent of non compliance with the maximum wall height control. The experts agree that due to the topography and excavation of the site, the greatest non compliance is in the north west corner, which Mr Layman estimates has a wall height of 9m. In other areas the wall height is significantly below the maximum wall height control. 32 In Mr Layman's opinion the proposal does not include a parapet, which he stated is a wall that rises above the edge of a roof. Even if there is a parapet he considers it is not appropriate to the design of the development and that the proposal is not eligible for the extra 600mm parapet concession under cl 3.5.6 of the DCP. 33 Mr Fleming considers that the parapet concession applies to the site and that there is therefore only a minor non compliance with the maximum wall height. He stated that the western elevation of the top floor provides eaves as sun shade devices and that a 550mm parapet extends above as shown in Exhibit F. Further, he considers that a proposal with a pitched roof would have a greater height and impact than the proposed flat roof with a parapet. Number of Storeys 34 In their joint report, Mr Layman and Mr Fleming generally agreed on the extent of the three storey part of the proposal. Mr Layman provided a diagram (Exhibit 8), which illustrates that the north east corner of the building is three storeys. However, Mr Fleming subsequently stated that part of this area was over rooms, which would not be included as a storey. Both experts acknowledged that part of the top floor is two storey and complies with the storey control in cl 3.5.4 of the DCP. 35 Mr Layman and Mr Fleming held different opinions about the number of storeys of the houses in Montpelier Place. Mr Layman stated that these houses have two habitable floors over a partly excavated garage and storage level. The dwellings were recently approved under different controls. There are no houses to the rear and therefore impacts such as view loss and overshadowing did not arise. 36 Mr Fleming considers the dwellings in Montpelier Place and other dwellings fronting Bower Street, including 69 Bower Street, are three storeys and provide the context in which the proposal must be considered. Further, he states that the proposal provides an appropriate transition in height between 69 and 73 Bower Street. 37 Findings 38 The DCP defines maximum wall height as: Maximum wall height is the greatest vertical distance from the existing natural ground level to the underside of the eaves the top most floor. 39 Clause 3.5.5 of the DCP permits roof structures to extend up to 3m above the maximum wall height. Under cl 3.5.7, if the maximum roof pitch of 35 degrees is exceeded, it is part of the maximum wall height. Clause 3.5.6 of the DCP states: Parapets may extend 600mm above the proposed external wall height where it is considered by the Council to be appropriate to the design of development… 40 "Parapet" is not defined in the DCP and while the controls are clear in measuring maximum wall height in a building with eaves and a pitched roof, it is unclear how the maximum wall height is to be measured where there are no eaves and in what situations a parapet may be appropriate. 41 The characteristics of the site, given its topography and the previous excavation, also make a sensible interpretation of the numerical control difficult. Whether a parapet concession is included or not, the proposal exceeds the maximum wall height in the north west corner and part of the top level is three storeys. 42 I accept Mr Layman's evidence that the parapet above the wall height is not appropriate to the design of the development in this location, given that there are no other parapet roof forms in the area and that it increases the wall height of the building which results in greater bulk, view loss, overshadowing and non compliance with the maximum wall height control. 43 The key question before the Court is whether the height of the building; both the wall height and the number of storeys meets the objectives of the height control in cl 3.5 of the DCP. These objectives are to be met by both complying and non complying parts of the building. 44 The objectives for building height in cl 3.5 of the DCP are: a) To regulate the height of buildings by specifying maximum wall and roof heights; b) To assist in controlling the bulk of buildings; c) To provide for building heights that are consistent with the prevailing building heights in the locality; d) To minimise disruption to views from adjacent and nearby residential development and from public spaces; e) To allow sunlight to penetrate private open spaces within the development site; and f) To allow adequate sunlight penetration to private open spaces and windows to the living spaces of adjacent residential development. 45 As with FSR, the experts held different opinions on whether the proposal meets the objectives of the height control. The main disagreement being whether the proposal minimises disruption to views. Mr Galasso, for the applicant, submits that the breaches in the wall height and number of storeys would result in no greater impact than from those parts of the building, which comply with the controls. Further, he submits that a pitched roof would have a greater impact than the proposed flat roof with a parapet. 46 While this may be the case, there are clearly opportunities in the current design to further minimise the disruption on views without reducing the amenity and views available for the proposal. The height of proposal (RL 37.53) could be reduced by 600mm to generally the ridge height of the existing building (RL36.69) by a combination of measures including reducing the floor structure (now 470mm), the "parapet" (now 550mm), the floor to ceiling of the top level (now 2.7m) or a minimal increase in excavation of the lower level. With this change, the proposal would meet the objectives of the control. This change is reasonable to impose as a condition and does not result in a different proposal. I have therefore included a deferred commencement condition to limit the maximum height of the proposal to RL36.93. Setback 47 The experts agree that the eastern side setback complies but that the western side setback does not comply with the setback control in cl 3.6.4 of the DCP. This requires a setback of not less than one third of the wall height. In applying this clause Mr Layman estimated the setback of 2.1m to 2.3m north of gridline D and 1.4m to 2.1m south of gridline D. The proposal has a minimum setback of 1.2m, which increases to a maximum setback of 7.7m on the midlevel. Mr Layman considered that the full height louvered wall adjoining the roofed mid level terrace should be included as a wall as it creates the same visual and other impacts. 48 Mr Fleming stated that cl 3.6.5(a) applies, as part of the building is closer to the boundary but part is setback further to provide windows. Therefore, in his opinion, the proposal complies with the side setback requirements of the DCP. Mr Layman stated that cl 3.6.5(a) must be read as a whole and is aimed at permitting a wall closer than otherwise "to permit windows at 90 degrees to the boundary". In his opinion, the reduced setback was not required for windows. Findings 49 Clause 3.6.4 of the DCP states that: Side setbacks shall provide sufficient access to the side of properties to allow for property maintenance, planting of vegetation and sufficient separation from neighbouring properties (as illustrated in Figures 9, 10 and Table 4). a) In all residential sub-zones, the setback between any part of a building and the side boundary must not be less than 1/3 the height of the adjacent external wall of the proposed building; 50 Clause 3.6.5(a) provides: a) Walls facing side boundaries shall be partially setback, where possible, to permit windows at 90 degrees to the boundary. In these circumstances, the Council will consider permitting part of a building to be constructed closer to the side boundary than one third of the wall height, provided another part of the building equal in area to the area protruding beyond the setback line, is setback horizontally an equivalent amount further than the one third setback requirement. 51 The proposal provides a varied setback along the western side, with parts of the mid level that are greater than the required side setback and parts that are less. No windows are provided along the mid level facing the boundary and a small window is provided at 90 degrees to the boundary in the living area facing north, as well as glass doors to the roofed courtyard facing south. However, I do not accept that the increased setbacks are necessary to provide windows at 90 degrees to the boundary and therefore the variation in cl 3.6.5(a) does not apply. 52 I accept Mr Layman's opinion that the louvred wall adjoining the courtyard should be included in calculating the setback as it will have similar impacts to a wall of other materials. The setback to the south of gridline E provides a courtyard to the development. The benefits of the greater setback do not outweigh the impacts of the reduced setback on 73 Bower Street, particularly the north west corner of the building and the lack of landscaping. The setback of the proposal does not provide sufficient space for planting and separation from the 73 Bower Street, which are a stated purpose of the side setback control. 53 The impact can be addressed by increasing the setback along the western boundary to be minimum of 1.8m on the lower and mid level. This will provide sufficient space along the boundary for a path as well as screen planting and adequate separation between the proposal and 73 Bower Street and therefore meet the objectives of the control. This will also reduce the GFA of the proposal to achieve greater compliance with the FSR control. I note that the increased setback will require minor internal redesign of the lower and mid level but will not materially impact on the accommodation provided. A deferred commencement condition to this effect has been included. View loss 54 Both Mr Layman and Mr Fleming agreed that the proposal would not have an unacceptable impact on views from 69 and 73 Bower Street. The main concern of Mr Layman is the impact that the proposal has on the views from the properties in Montpelier Place. 55 Clause 4.3.2 of the DCP requires that a) The design of any development is to minimise the loss of views from neighbouring and nearby dwellings and from public spaces. b) Views between and over buildings are to be maximised and variations to side boundary setbacks, including zero setback will not be considered if they contribute to loss of primary views from living areas. 56 The note to cl 4.3.2 requires that view loss be assessed from a standing position (eye height of 1.6m) and refers to the principles in Tenacity v Consulting v Warringah Council [2004] NSWLEC 140. Both Mr Layman and Mr Fleming assessed each of the properties against the principles in Tenacity and drew conclusions as to the extent of the view loss and its reasonableness. 57 The experts concluded that the properties most affected were 7 and 8 Montpelier Place but held different opinions on the extent of the impact and its reasonableness. Mr Layman concluded that the impact on 7 Montpelier Place was severe and 8 Montpelier Place was moderate to severe and was unreasonable as it resulted from a non complying third floor. Mr Fleming, on the other hand, considered the impact on both properties to be moderate to minor and that the key elements of the view, including the land water interface and the headlands would be retained. For the reasons discussed above, Mr Fleming did not consider that the view loss resulted from non complying parts of the building. Findings 58 The objectives for maintenance of views in cl 4.3 of the DCP are: a) To maintain continued access to existing views to the city, harbour, ocean, bushland, open space and recognised landmarks or buildings from both private property and public places (including roads and footpaths); b) To minimise loss of views from adjoining or nearby properties and public places, whilst recognising development may take place in accordance with the other provisions of this Plan; and c) To maintain and share views with existing and future Manly residents. 59 The proposal will impact on the views to the properties in Montpelier Place, particularly Nos 7 an 8. The view loss results from the upper level, where part of this level is three storeys and therefore does not comply with the DCP. However, part of the level is two storeys and it is difficult to ascertain whether the view loss results from the non complying or the complying part. However, the test in cl 4.3(a) and in the objectives for maintenance of views, FSR and height is to minimise loss of views, while recognising that development may occur. As discussed above, a more skilful design would reduce the extent of view loss while enabling a reasonable level of development to occur on the site and achieve appropriate view sharing. 60 With a reduction in the overall height of 600mm that will generally maintain the ridge height of the existing building, I am satisfied that reasonable view sharing is achieved. Part of the view currently lost by the pitch of the existing roof will be gained and part of the view currently available from the existing roof will be lost. However, on balance, I find that with this change the proposal will meet the objectives of the control and minimise view loss to an acceptable level Other issues 61 The lowering of the wall height will reduce overshadowing of 69 and 73 Bower Street. The privacy issues are addressed through privacy screens and are reasonable in the context of the site. The swimming pool replaces an existing pool and no material amenity issues were raised with its height. The experts agreed that the proposal would not adversely impact on the scenic quality of the Foreshore Scenic Protection Area. 62 With the benefit of a site view and understanding the proposed development, the issues raised by council in relation to overshadowing, privacy, the swimming pool and the Foreshore Scenic Protection Area would not be reasons to refuse the application. Orders 63 The orders of the Court are therefore: 1. The appeal is upheld. 2. The development application (103/09) to demolish an existing dwelling, swimming pool and garage and construct a new dwelling, double garage, swimming pool and landscaping works at 71 Bower Street, Manly, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits 2, A, B and L, may be returned. ___________________ Annelise Tuor Commissioner of the Court ANNEXURE A Conditions of Consent DA: 103/09 Property: 71 Bower Street Manly Proposal: Demolition of existing dwelling, swimming pool and Garage and construction of a three (3) storey dwelling with double garage, swimming pool and landscaping works PART A - DEFERRED COMMENCEMENT CONDITION This consent shall not operate until the following deferred commencement condition has been satisfied. Evidence required to satisfy this condition must be submitted to Council within twelve (12) months of the date of this consent, or the consent will lapse in accordance with Section 95 of the Environmental Planning and Assessment Regulation 2000. Condition A1 – Design changes Plans are to be provided that: i. reduce the wall height of the building by 600mm with a maximum height not to exceed RL 36.93. ii. increase the setback of the building to be a minimum of 1.8m from the western boundary. iii. provide a minimum 1000mm wide landscape strip along the western boundary with screen planting. The date upon which the consent is activated is the date upon which the plans in condition A1 is satisfied. Upon satisfaction of the deferred commencement condition, the following conditions apply: PART B - GENERAL CONDITIONS RELATING TO APPROVAL 1 Documents relating to consent. The development, except where modified by Deferred Commencement Condition A1 and the conditions of this consent, is to be carried out in accordance with the following plans and documentation. Plans relating to Development Consent No. 103/09 Drawing No. Title Issue Issue Date DA 01 Site + Roof Plan Locality Analysis B 16.11.09 DA 02 Floor plans D 16.04.10 DA 03 Elevations B 16.11.09 DA 04 Sections C 16.04.10 DA 06 Site Analysis and Existing Elevations B 16.11.09 DA 07 Untitled (Montpelier Place elevations showing architectonic relationship of existing building, proposal and amended proposal to adjoining buildings) --- November 09 DA08 Upper Level Sections May 2010 CC16 Services Diagram lower level (where CC16 is inconsistent with drawing DA 02D, drawing DA 02D shall prevail) Feb 2010 SW1 Stormwater Drainage Concept Plan A June 2008 0811/DA-L01 Landscape Plan (prepared by Trish Dobson, Landscape Architect) DA 31.03.09 In the event of any inconsistency between the approved plans and supplementary documentation, the plans will prevail. Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council 2 The depth of the proposed pond is not to exceed 300mm unless made child-safe to the satisfaction of the selected Certifying Authority. Reason. To reduce safety risk to occupants of the building. 3 The existing street trees are to be retained and protected at all times Reason. To maintain the landscaped character of the locality. 4 No building materials may be stored on the Road Reserve without separate approval from Council. Reason. To allow for orderly development and reduce safety risk in the public domain. 5 All materials onsite or being delivered to the site shall generally be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 shall be complies with when placing/stockpiling loose material, disposing of concrete waste, or other activities likely to pollute drains or water courses. Reason. To maintain the existing quality of the environment. 6 All excavated material should be removed from the site in an approved manner and be disposed of lawfully to a tip or other authorised disposal area. Reason. To maintain the existing quality of the environment. 7 All demolition and excess construction materials are to be recycled wherever practicable. Reason. To maintain the existing quality of the environment. 8 A site Construction Management Plan (CMP) is to be prepared and is to include a section for Environmental Management. This section, as a minimum, is to outline all measures for the protection of Long-nosed Bandicoots during the construction phase (including, but not necessarily limited to, those requirements of the conditions of this consent and those measures identified in the ecological report submitted as part of the Development Application). The CMP is to be approved by the Council's environment staff prior to issue of Construction Certificate. Reason: To ensure that all measures for the protection of Long-nosed Bandicoots at the development site are incorporated into one document that is for the overall management of the construction to ensure no one measure is overlooked. 9 Construction is to be undertaken in accordance with the Construction Management Plan (CMP). All workers on the site are to be made aware of the content of the CMP. Reason: All measures for the protection of Long-nosed Bandicoots at the development site are incorporated into the CMP. 10 Bandicoots are to be excluded from man-made waterbody areas (eg: pools, ponds, spas or water features), while maintaining access to the surrounding soft landscaping. For example pool fencing could be constructed with a surrounding barrier 300mm in height or greater, or a base gap of less than 120mm, so as to exclude Bandicoots from entering the pool areas but not the garden or grassed areas. Alternatively pools or ponds could contain ramped edges or a ramp at one end to enable escape should a Bandicoot enter the water. Reason: While Bandicoots can swim short distances, they are not strong swimmers and as such pools and ponds, which present a fairly unnatural water body edge, can become a drowning hazard for Bandicoots. 11 All "access gaps", fencing and landscaping requirements outlined in these conditions of consent are to be maintained post-construction. Reason: Imposed so that "access gaps" are not covered up or landscaping elements changed, which would be significantly contrary to this consent. 12 External retaining walls or stairs should be a maximum of 20cm in height (or lower in accordance with BCA standards). Where this cannot be avoided a slope or ramp is to be provided/constructed to accompany the stairs/retaining walls to permit Long-nosed Bandicoot access. Reason: While Long-nosed Bandicoots have been known to climb steps they do not appear to be good climbers and therefore stairs/retaining walls of greater height present an access barrier preventing them from accessing other foraging, sheltering or nesting areas on or adjacent to the site. This condition is to ensure no further fragmentation of remaining Long-nosed Bandicoot habitat. 13 All workers on the work site are to be made aware of the potential presence of Long-nosed Bandicoots through the site induction. All workers on the site are to be made aware of the content of the CMP. All workers are to be inducted prior to commencement of works. The site induction is to include information about; the conservation significance of this endangered population, their potential activities on-site, identification and the measures in place on-site to be implemented for their protection. Evidence of the site induction is to be documented. Visitors to the works site (eg: site inspectors, sub-contractors and the like) are to be similarly inducted upon arrival at the site. Reason: To the untrained eye a Long-nosed Bandicoot may be mistaken for a rodent. To avoid direct physical harm to Long-nosed Bandicoots, it is important that workers on the site are aware of their presence and their conservation significance and the steps to take to protect them. 14 Temporary chain wire fencing is to be installed around all work areas (including; demolition, storage and construction areas) prior to the commencement of works. Fencing is to be maintained throughout the duration of the works. The fencing is to be designed to minimise the possibility for Long-nosed Bandicoot access to the works areas and sheltering in cavities or voids e.g.: fencing could be constructed with a surrounding barrier 300mm in height or greater, or a base gap of less than 120mm, to exclude Long-nosed Bandicoots from this area. Reason: To minimise the possibility of Long-nosed Bandicoots accessing the construction site, which poses significant threats to bandicoot individuals who may attempt to shelter in cavities, voids, stockpiles or under machinery. 15 All holes (eg: created for footings or installations etc.), machinery and construction material stockpiles are to be inspected daily prior to commencing operation to ensure that no Long-nosed Bandicoots are sheltering in these areas. In the case that a Long-nosed Bandicoot is encountered within one of these work areas, no work shall proceed until the Bandicoot has safely vacated the works area. These inspections should be documented, for example in the daily site checklists. Reason: While temporary fencing around the construction area is usually a standard requirement, even purpose built fencing has been known to be ineffective in excluding Bandicoots from construction sites. It is therefore essential that daily checks be undertaken to ensure the construction/works areas are free of Bandicoot occupation including sheltering sites. 16 Prior to the removal of any vegetation/debris/grass piles on-site, a pre-clearance survey for Long-nosed Bandicoot activity and presence is required. The pre-clearance survey is to be undertaken by a practicing ecologist experienced with the identification and behaviour of the Long Nosed Bandicoote. Clearing may only proceed if this survey concludes that no Long-nosed Bandicoots are present within the clearing area or its vicinity. All clearing must be done using hand tools to check for likely shelter sites (at the base of vegetation and under deep litter) in the first instance to encourage any Bandicoots that may be sheltering in the clearing area and not identified in the pre-clearance survey, to move on, only then may machinery be used. Ideally all clearing is to be completed at dusk and within one day so that Long-nosed Bandicoots do not reoccupy partially cleared areas overnight. Reason: While temporary fencing around the construction area is usually a standard requirement, even purpose built fencing has been known to be ineffective in excluding Bandicoots from construction sites. In the case that Bandicoots gain access to the construction site, they may be sheltering in such vegetation/debris piles. Therefore care is required to check that there are no Long-nosed Bandicoots in the vicinity before any clearing, which may result in physical harm. 17 Normal construction hours are to be adhered to, with no machinery to be used outside the hours of 7:30am and 4:30pm. Reason: Noise and vibration discourages Long-nosed bandicoot occupation. While it is the intention of this consent to exclude bandicoots from the construction/works area, the use of noisy machinery may discourage their use of adjoining areas. 18 No bright lighting or motion detectors are to be installed to illuminate the lawn or garden areas. A low luminance lighting for safety purposes only is acceptable. Reason: Bright lighting discourages Long-nosed bandicoot occupation. 19 Any injured or dead Long-nosed Bandicoots should be reported by phoning the Department of Environment and Climate Change (DECC) on 9977 6732 or Manly Council on 9976 1500. Reason: It is essential that injured Bandicoots are given expert care in order that they can be rehabilitated and returned to the population, where possible. It is also important that any deceased Bandicoots are reported, so that appropriate investigations can be undertaken to understand the cause of death to inform the future management and recovery of the endangered Long-nosed Bandicoot population. Note: The applicant is further advised of the following:- Long-nosed Bandicoots – Best Practices for Residents Residents are encouraged to follow a number of "Best Practices" to assist with the protection and management of the endangered population of Long-nosed Bandicoots: Long-nosed Bandicoots and other native animals should never be fed as it may cause them nutritional problems, hardship if supplementary feeding is stopped, and it may increase predation. Feral cats or foxes should never be fed or food left out where they can access it, such as rubbish bins without lids or pet food bowls, as these animals present a significant threat to Long-nosed Bandicoots and other wildlife. The use of insecticides, fertilisers, or snail baits should be avoided on the property. Garden insects will be kept in low numbers if Long-nosed Bandicoots are present. When the North Head Long-nosed Bandicoot Recovery Plan is released it should be implemented where relevant. Dead Long-nosed Bandicoots should be reported by phoning Manly Council on 9976 1500 or Department of Environment and Conservation on 9977 6732. Please drive carefully as vehicle related injuries and deaths of Long-nosed Bandicoots have occurred in the area. Cat/s and or dog/s that currently live on the property should be kept indoors at night to avoid disturbance/death of native animals. Ideally, when the current cat/s and/or dog/s that live on the property no longer reside on the property it is recommended that they not be replaced by new dogs or cats. Report all sightings of feral rabbits, feral or stray cats and/or foxes to Manly Council. CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE 20 The landscape plan is to be amended to provide for tree planting to be of a species which will reach a maximum of 3.5m at maturity. 21 The privacy panels and louvred privacy screens shown on the approved plans shall be fixed at an angle which prevents overlooking of adjoining properties. Plans showing the fixed louvred privacy screens and privacy panels shall be provided to Council prior to the issue of the construction certificate and shall be to Council's satisfaction. 22 Four (4) copies of architectural drawings consistent with the development consent and associated conditions are to be submitted to the Council/Accredited Certifier prior to the issue of the Construction Certificate. Reason: To comply with the Environmental Planning and Assessment Act 1979. 23 Consent given to build in close proximity to the allotment boundary is in no way to be construed as permission to build on or encroach over the allotment boundary. Your attention is directed to the provisions of the Dividing Fences Act 1991 which gives certain rights to adjoining owners, including use of the common boundary. In the absence of the structure standing well clear of the common boundary, it is recommended you make yourself aware of your legal position which may involve a survey to identify the allotment boundary. Reason: To advise developers of their responsibilities and to protect the interests of adjoining owners. 24 Pursuant to Section 97 of the Local Government Act, 1993, Council requires prior to the issue of Construction Certificate, or commencement of any excavation and demolition works, payment of a Trust Fund Deposit of $10,500. The Deposit is required as security against damage to Council property during works on the site. The applicant must bear the cost of all restoration works to Council's property damaged during the course of this development. All building work must be carried out in accordance with the provisions of the Building Code of Australia. Note: Should Council property adjoining the site be defective e.g. cracked footpath, broken kerb etc., this should be reported in writing, or by photographic record, submitted to Council at least seven (7) days prior to the commencement of any work on site. This documentation will be used to resolve any dispute over damage to infrastructure. It is in the applicants interest for it to be as full and detailed as possible. Where by Council is not the Principal Certifying Authority, refund of the trust fund deposit will also be dependent upon receipt of a final Occupation Certificate by the Principal Certifying Authority and infrastructure inspection by Council. Reason: To ensure security against possible damage to Council property. 25 Four (4) certified copies of the structural engineer's details for the proposed development; including but not limited to all reinforced concrete, structural steel support construction and any proposed retaining walls; must be submitted to the Council/Accredited Certifier prior to the issue of the Construction Certificate. Reason: To ensure construction of the new development is in accordance with the structural engineers design. 26 All plumbing and drainage, including sewerage drainage stacks, ventilation stacks and water service pipes are to be concealed within the building. Plumbing other than stormwater downpipes must not be attached to the external surfaces of the building. Reason: To ensure the visual quality of the development. 27 A detailed stormwater management plan is to be prepared to fully comply with Council's Specification for On-site Stormwater Management 2003 and Specification for Stormwater Drainage 2003 and must be submitted to Council for approval prior to issue of the Construction Certificate. The stormwater management plan and designs are to be prepared by a suitably qualified engineer. Reason: To ensure appropriate provision is made for the disposal and management of stormwater generated by the development, and to ensure that infrastructure reverting to Council's care and control is of an acceptable standard. 28 A system of Onsite Stormwater Detention (OSD) or Onsite Stormwater Retention (OSR) is to be provided within the property in accordance with Council's Specification for On-site Stormwater Management 2003. The design and details must be submitted with the Construction Certificate Application and be approved by Council prior to the issue of the Construction Certificate. The stormwater management plan and designs must be prepared by a suitably qualified engineer. Reason: To ensure appropriate provision is made for the disposal and management of stormwater generated by the development, and to ensure public infrastructure in Council's care and control is not overloaded. 29 Any proposed fence between the building line and the street alignment is to be no more than 1.5m in height with 30% transparency above 1m. The fence and/or wall height may be averaged if the fence or wall is regularly stepped on sloping sites. Reason: To reduce the impact of the fence on the street. 30 No portion of the proposed building or works, as approved within the subject site, are to encroach upon any road reserve or other public land except as may be permitted by the Local Government Act 1993. This includes the opening and closing of gates and doors which must open and close within the subject site. Reason: To ensure structures are contained within the site. 31 Where construction or excavation activity requires the disturbance of the soil surface and existing vegetation, details including drawings and specifications must be submitted to Council accompanying the Construction Certificate, which provide adequate measures for erosion and sediment control. As a minimum, control techniques are to be in accordance with Manly Council Guidelines on Erosion and Sediment Control, or a suitable and effective alternative method. The Sediment Control Plan must incorporate and disclose: 1) all details of drainage to protect and drain the site during the construction processes, 2) all sediment control devices, barriers and the like, 3) sedimentation tanks, ponds or the like, 4) covering materials and methods, and 5) a schedule and programme of the sequence of the sediment and erosion control works or devices to be installed and maintained. Details from an appropriately qualified person showing these design requirements have been met must be submitted with the Construction Certificate and approved by the Council/Accredited Certifier prior to issuing of the Construction Certificate. Reason: To protect the environment from the effects of sedimentation and erosion from development sites. Internal Note: This condition is be imposed in conjunction with 4MS04. 32 The driveway/access ramp grades, access and car parking facilities must comply with the Australian/New Zealand Standard AS/NZS 2890.1:2004 - Parking facilities - Off-street car parking. Reason: To ensure compliance with Australian Standards relating to manoeuvring, access and parking of vehicles. 33 All of the following are to be satisfied in relation to the proposed swimming pool: 1) The swimming pool is to be surrounded by a child-resistant barrier in accordance with the Swimming Pools Act and Regulations 1992 which: - separates the swimming pool from any residential building situated on the property and from any place adjoining the property, and - is designed, constructed, installed and maintained in accordance with the standards prescribed by the Regulations and appropriate Australian Standards. 2) All surface waters from areas surrounding the swimming pool must be collected and disposed of to the stormwater system. 3) Any doors providing access to the pool must be made child safe and comply with the following: - Doors providing access to the pool are not to have openings below a height of 1.5m above the floor that a round bar 105mm in diametercan be passed through, and - the door must be kept closed at all times when not in use and kept child-safe by means of a lock, latch, bolt or other child-resistant device located at least 1.5m above finished floor level; and - the door or door frame must not be provided with any footholds wider than 10mm between the release mechanism of the door and any point 100mm above finished floor level, and - the Regulations do not specify the use of self-closing devices on doors. However, Council recommends their use as an additional safety measure which will also ensure the door will remain closed when not in use; and - where the latching device release, or the latch itself, on a pool gate is located at a height less than 1500mm above the finished ground level, the latch and its release must be shielded in accordance with Australian Standard AS 1926. Windows giving access to the pool areas must be made child safe and comply with the following: - the bottom of the lowest opening panel of the window must (when measured in the close position) be at least 1.2m above finished floor level, and - have no footholds wider than 10mm between the bottom of the lowest opening panel of the window and any point within 1.1m below the bottom of that panel; or - be key locked or fixed by other approved means allowing no opening through which a round bar 105mm in diameter can be passed. However, if such windows are required for the ventilation of the room in accordance with the Building Code of Australia, they must be protected by way of a child safe grille only unless satisfactory alternative provision is made for ventilation. The proposed pool gates are to be mounted so that: - they are clear of any obstruction that could hold the gate open, and - when lifted upward or pulled downward, movement of the gate does not release the latching device, unhinge the gate or provide a ground clearance greater than 100mm; and - they open outwards from the pool. Reason: To comply with Australian Standard AS 1926 and provide a reasonable level of child safety. 34 A railing or other safety measures or devices are to be erected around the sides of the pool surround structure where height above natural ground level exceeds 900mm. All details of the necessary device are to be submitted to and approved by the Council/Accredited Certifier prior to issue of the Construction Certificate. Reason: To ensure the safety of persons using those walkways. 35 The Construction Certificate drawings and specification required to be submitted pursuant to Clause 139 of the Environmental Planning & Assessment Regulation 2000, must detail the connection of backwash to Sydney Waters sewer in compliance with Australian/New Zealand Standard AS/NZS 3500. Note: The drawings must show the location of Sydney Water's sewer, the yard gully or any new connection to the sewer system including a detailed cross section of the connection complying with Australian/New Zealand Standard AS/NZS 3500. The discharge of backwash water to any stormwater system is water pollution and an offence under the Protection of the Environment Operations Act 1997. The connection of any backwash pipe to any stormwater system is an offence under the Protection of the Environment Operations Act 1997. Reason: To ensure compliance with legislation and Australian Standards and to protect public health and amenity. 36 Details of the method of termite protection which will provide whole of building protection, inclusive of structural and non-structural elements must be submitted to the Council / Accredited Certifier prior to issue of the Construction Certificate. Attention is drawn to the provisions of Australian Standard AS 3660.1 - 2000 Termite management – New building work, and to the Manly Code for the Protection of Buildings Against Termite Attack 1996. Reason: To protect the building from possible termite damage. 37 A Waste Management Plan is to be submitted with the application prior to a Construction Certificate being issued in accordance with the Manly Development Control Plan for Waste Minimisation and Management 2000. The plan should detail the type and estimate the amount of demolition and construction waste and nominate how these materials will be sorted and dealt with. All demolition and excess construction materials are to be recycled where ever practicable. It should include consideration of the facilities required for the ongoing operation of the premises' recycling and waste management services after occupation. A template is available from the Manly Council website. Reason: To plan for waste minimisation, recycling of building waste and on-going waste management. Internal Note: The requirement for a Waste Management Plan is included in the Department of Environment and Climate change (DECC) Waste Service Performance Improvement Payment Criteria (WSPIP). 38 Roof and framing including provision for tie downs, bracing and fixings are to be designed by a practising structural engineer. The Engineer is to specify appropriate wind category relating to the site terrain, house design and height of the structure, with details being submitted to the Principal Certifying Authority prior to the commencement of framework. Reason: To ensure structural adequacy. CONDITIONS TO BE SATISFIED PRIOR TO ANY COMMENCEMENT 39 An adequate security fence is to be erected around the perimeter of the site prior to commencement of any excavation or construction works, and this fence is to be maintained in a state of good repair and condition until completion of the building project. Reason: To protect the public interest and safety. CONDITIONS TO BE COMPLIED WITH DURING DEMOLITION AND BUILDING WORK 40 A copy of all stamped approved drawings, specifications and documents (including the Construction Certificate if required for the work incorporating certification of conditions of approval) must be kept on site at all times so as to be readily available for perusal by any officer of Council or the Principal Certifying Authority. Reason: To ensure the form of the development undertaken is in accordance with the determination of Council, public information and to ensure ongoing compliance. 41 All of the following are to be satisfied/complied with during demolition, construction and any other site works: 1) All demolition is to be carried out in accordance with Australian Standard AS 2601-2001. 2) Demolition must be carried out by a registered demolition contractor. 3) A single entrance is permitted to service the site for demolition and construction. The footway and nature strip at the service entrance must be planked out. 4) No blasting is to be carried out at any time during construction of the building. 5) Care must be taken during demolition/ excavation/ building/ construction to prevent any damage to adjoining buildings. 6) Adjoining owner property rights and the need for owner's permission must be observed at all times, including the entering onto land for the purpose of undertaking works. 7) Any demolition and excess construction materials are to be recycled wherever practicable. 8) The disposal of construction and demolition waste must be in accordance with the requirements of the Protection of the Environment Operations Act 1997. 9) All waste on the site is to be stored, handled and disposed of in such a manner as to not create air pollution (including odour), offensive noise or pollution of land and/or water as defined by the Protection of the Environment Operations Act 1997. All excavated material should be removed from the site in an approved manner and be disposed of lawfully to a tip or other authorised disposal area. 10) Section 143 of the Protection of the Environment Operations Act 1997 requires waste to be transported to a place which can lawfully accept it. All non-recyclable demolition materials are to be disposed of at an approved waste disposal depot in accordance with legislation. 11) All materials on site or being delivered to the site are to generally be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 must be complied with when placing/stockpiling loose material, disposing of concrete waste, or other activities likely to pollute drains or water courses. 12) Details as to the method and location of disposal of demolition materials (weight dockets, receipts, etc.) should be kept on site as evidence of approved methods of disposal or recycling. 13) Any materials stored on site must be stored out of view or in such a manner so as not to cause unsightliness when viewed from nearby lands or roadways. 14) Public footways and roadways adjacent to the site must be maintained and cleared of obstructions during construction. No building materials, waste containers or skips may be stored on the road reserve or footpath without prior separate approval from Council, including payment of relevant fees. 15) Building operations such as brickcutting, washing tools or paint brushes, and mixing mortar not be performed on the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system. 16) All site waters during excavation and construction must be contained on site in an approved manner to avoid pollutants entering into waterways or Council's stormwater drainage system. 17) Any work must not prohibit or divert any natural overland flow of water. Reason: To ensure that demolition, building and any other site works are undertaken in accordance with relevant legislation and policy and in a manner which will be non-disruptive to the local area. 42 In order to maintain the amenity of adjoining properties, audible site works must be restricted to between 7.00am and 6.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. No site works can be undertaken on Sundays or public holidays. Unless otherwise approved within a Construction Traffic Management Plan, construction vehicles, machinery, goods or materials must not be delivered to the site outside the approved hours of site works. Reason: To prevent disturbance to the surrounding community. 43 Toilet facilities are to be provided at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 person or part of 20 persons employed at the site, by effecting either a permanent or temporary connection to the Sydney Water's sewerage system or by approved closets. Reason: To maintain sanitary conditions on building sites. 44 All construction works must be strictly in accordance with the Reduced Levels (RLs) as shown on the approved drawings. Certification is to be submitted to the Principal Certifying Authority during construction by a registered surveyor certifying complying and finished ridge levels. Reason: To ensure compliance with the consent. 45 Anyone who removes, repairs or disturbs bonded or a friable asbestos material must hold a current removal licence from Workcover NSW. Before starting work, a work site-specific permit approving each asbestos project must be obtained from Workcover NSW. A permit will not be granted without a current Workcover licence. All removal, repair or disturbance of or to asbestos material must comply with the following: - The Occupational Health and Safety Act 2000, - The Occupational Health and Safety Regulation 2001, - The Code of Practice for the Safe Removal of Asbestos [NOHSC: 2002 (1998)], - The Guide to the Control of Asbestos Hazards in Buildings and Structures [NOHSC: 3002 (1998)] http://www.nohsc.gov.au/ ], and - The Workcover NSW Guidelines for Licensed Asbestos Removal Contractors. Note: The Code of Practice and Guide referred to above are known collectively as the Worksafe Code of Practice and Guidance Notes on Asbestos. They are specifically referenced in the Occupational Health and Safety Regulation 2001 under Clause 259. Under the Occupational Health and Safety Regulation 2001, the Worksafe Code of Practice and Guidance Notes on Asbestos are the minimum standards for asbestos removal work. Council does not control or regulate the Worksafe Code of Practice and Guidance Notes on Asbestos. Those involved with work to asbestos should be made aware of the requirements by visiting ww.workcover.nsw.gov.au or one of Workcover NSW's offices for further advice. Reason: To ensure the health of site workers and the public. 46 A suitable sub-surface drainage system is to be provided adjacent to all excavated areas and such drains being connected to an approved disposal system. Reason: To prevent uncontrolled seepage entering excavated areas. 47 Any de-watering from the excavation or construction site must comply with the Protection of the Environment Operations Act 1997 and the following: 1) Ground water or other water to be pumped from the site into Council's stormwater system must be sampled and analysed by a NATA accredited laboratory or Manly Council for compliance with ANZECC Water Quality Guidelines, and 2) if tested by NATA accredited laboratory, the certificate of analysis issued by the laboratory must be forwarded to Manly Council as the appropriate regulatory authority under the Protection of the Environment Operations Act 1997, prior to the commencement of de-watering activities; and 3) Council will grant approval to commence site de-watering to the stormwater based on the water quality results received, and 4) It is the responsibility of the applicant to ensure during de-watering activities, the capacity of the stormwater system is not exceeded, there are no issues associated with erosion or scouring due to the volume of water pumped; and turbidity readings must not at any time exceed the ANZECC recommended 50ppm (parts per million) for receiving waters. Reason: To ensure compliance with legislation and to protect the surrounding natural environment. 48 Rainwater tanks must be installed on residential properties by a suitably qualified and licensed plumber and in accordance with the following: - Australian/New Zealand Standard AS/NZS 3500:2003, - NSW Code of Practice Plumbing and Drainage, 2006 produced by Committee on Uniformity of Plumbing and Drainage Regulations in NSW (CUPDR). Reason: To protect public health and amenity. 49 The existing footpath level and grade at the street alignment of the property must be maintained. Reason: To ensure appropriate access and infrastructure protection. 50 The felling, lopping, topping, ringbarking, wilful destruction or removal of any tree/s unless in conformity with this approval or subsequent approval is prohibited. Reason: To prohibit the unnecessary damage or removal of trees without permission from Council during any construction. 51 The following precautions must be taken when working near trees to be retained: - harmful or bulk materials or spoil must not be stored under or near trees, - prevent damage to bark and root system, - mechanical methods must not be used to excavate within root zones, - topsoil from under the drip line must not be added and or removed, - ground under the drip line must not be compacted, and - trees must be watered in dry conditions. Reason: This is to ensure no damage is caused to trees from various methods of possible damage. 52 In order to ensure compliance with approved drawings, a Survey Certificate, to Australian Height Datum, must be prepared by a registered surveyor as follows: 1) at the completion of the first structural floor level indicating the level of that floor and the relationship of the building to the boundaries, and 2) at the completed height of the building, prior to the placement of concrete inform work, or the laying of roofing materials, and 3) at completion, the relationship of the building, and any projections thereto, to the boundaries. Progress certifications in response to points (a) through (c) must be provided to the Principal Certifying Authority at the time of carrying out relevant progress inspections. Under no circumstances will work be allowed to proceed should such survey information be unavailable or reveal discrepancies between the approved drawings and the proposed works. Reason: To ensure compliance with the development consent. 53 The Sediment Control Plan is to be implemented from the commencement of works and maintained until completion of the development. Reason: To protect the environment from the effects of sedimentation and erosion from development sites. CONDITIONS TO BE SATISFIED PRIOR TO THE ISSUE OF THE OCCUPATION CERTIFICATE 54 The floor surfaces of bathrooms, shower rooms, laundries and WC compartments are to be of an approved impervious material properly graded and drained and waterproofed in accordance with Australian Standard AS 3740. Certification is to be provided to the Principal Certifying Authority from a licensed applicator prior to the fixing of any wall or floor tiles. Reason: To prevent the penetration of dampness through walls and floors. 55 A copy of the approved Onsite Stormwater Detention (OSD) or Onsite Stormwater Retention (OSR) drawing showing Works as Executed (WAE) details must be submitted to Council for approval prior to the issue of the Occupation Certificate. The WAE drawing is to be in accordance with Council's standards and Specification for Stormwater Drainage 2003 and Specification for On-site Stormwater Management 2003. Reason: Compliance with the consent and Council standards and specifications. 56 A positive covenant in respect of the installation and maintenance of onsite detention works is required to be imposed over the area of the site affected by onsite detention and/or pump system prior to the issue of the Occupation Certificate for the building and prior to the release of the trust fund deposit. Reason: To ensure the on-site detention and/or pump system is maintained to an appropriate operational standard. 57 An automatic fire detection and alarm system must be installed in the proposed dwelling in accordance with the requirements of the Building Code of Australia. Reason: To comply with the Environmental Planning and Assessment Act 1979. 58 A qualified Landscape Consultant is to submit a Certificate of Practical Completion to the Principal Certifying Authority prior to the issue of the Occupation Certificate, stating the work has been carried out in accordance with the approved Landscape Drawing and a maintenance program has been established. Reason: This is to ensure the landscaping is planted in accordance with the drawing and maintained appropriately 59 All protective fencing and gates are to be in accordance with Australian Standard AS 1926 prior to the pool being filled with water. The fence is to be a minimum of 1200mm in height and posts and/or supports are to be firmly fixed or encased in such a way that the posts/support are unable to be removed easily. The fence is not to be removed or altered at any time without the prior approval of Council. No water can be in the swimming pool until the required protective fencing has been inspected and approved by Council. Reason: To comply with Australian Standard AS1926 and provide a reasonable level of child safety. 60 Prior to issue of the Occupation Certificate, a durable termite protection notice must be permanently fixed to the building in a prominent location detailing the form of termite protection which has been used in accordance with the Manly Code for the protection of Buildings against Termite Attack. Reason: To inform owners and future owners of the type of termite protection installed and of the need for regular inspections. 61 Any adjustment to a public utility service is to be carried out in compliance with its standards; where consent is required, with its concurrence; and with the full cost being borne by the applicant. Reason: To ensure compliance with the terms of this consent. ONGOING CONDITIONS RELATING TO THE OPERATION OF THE PREMISES OR DEVELOPMENT 62 The ongoing use and operation of the rainwater tank(s) must be maintained in accordance with: - Sydney Water Guidelines for Rainwater Tanks on Residential Properties, 2003. - Australian Government EnHealth Council publication Guidance on the use of Rainwater Tanks, 2004. Reason: To protect public health and amenity. 63 The erection of dividing fences under this consent does not affect the provisions of the Dividing Fences Act 1991. Council does not adjudicate civil disputes relating to the provision of, or payment for, the erection of dividing fences. Note: Further information can be obtained from the NSW Department of Lands. Community Justice Centres provide a free mediation service to the community to help people resolve a wide range of disputes, including dividing fences matters. Their service is free, confidential, voluntary, timely and easy to use. Mediation sessions are conducted by two impartial, trained mediators who help people work together to reach an agreement. Over 85% of mediations result in an agreement being reached. Mediation sessions can be arranged at convenient times during the day, evening or weekends. Contact the Community Justice Centre either by phone on 1800 671964 or at http://www.cjc.nsw.gov.au/ . Reason: To ensure the applicant is aware the Dividing Fences Act 1991 may be used to resolve disputes about dividing fences. 64 No tree other than on land identified for the construction of buildings and works as shown on the building drawing can be felled, lopped, topped, ringbarked or otherwise wilfully destroyed or removed without the approval of Council. Reason: To prevent the destruction of trees on other properties adjoining the development site. 65 Landscaping is to be maintained in accordance with the approved Landscaping Drawing. Reason: This is to ensure that landscaping is maintained appropriately. 66 No person shall use or occupy the building or alteration which is the subject of this approval without the prior issue of an Occupation Certificate. Reason: Statutory requirement, Environmental Planning and Assessment Act 1979. 67 The ongoing use of the premises/property must not give rise to 'offensive noise' as defined under the provisions of the Protection of the Environment Operations Act 1997. Reason: To ensure compliance with legislation and to protect public health and amenity. ______________________ Annelise Tuor Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.