Land and Environment Court of New South Wales CITATION : O'Keefe & Ors v Leichhardt Municipal Council [2010] NSWLEC 1370 APPLICANT Kel O'Keefe and Edna Koritschoner PARTIES : RESPONDENT Leichhardt Municipal Council FILE NUMBER(S) : 10808 of 2010 CORAM: Dixon C KEY ISSUES: APPEAL :- Modification of conditions of a development consent to allow the construction of a hardstand car park at the rear of the site; the widening of an elevated deck; and modified landscaping Environmental Planning and Assessment Act 1979 State Environmental Planning Policy no1-Development Standards LEGISLATION CITED: State Environmental Planning Policy no55 - Contaminated Land State Environmental Planning Policy (BASIX) 2004 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 Leichhardt Local Environmental Plan 2000 DATES OF HEARING: 13 December 2010 EX TEMPORE JUDGMENT DATE : 13 December 2010 APPLICANT J Walsh Lawyer LEGAL REPRESENTATIVES: Pikes Lawyers RESPONDENT M L Taylor Lawyer Bartier Perry Lawyers JUDGMENT: 1 The council has issued development consent (DA 2010/26), subject to conditions, for the construction of a new dwelling at 2A Ellen Street, Rozelle. This is a appeal pursuant to s 96 of the Environmental Planning and Assessment Act 1979, (the Act) to modify particular conditions of that consent, specifically: (a) Amendment of condition 2(a) to reinstate the originally proposed car parking space without a turntable (as amended by exhibit C), and proposed in the amended plans (exhibit 1); (b) Deletion of condition 2(b) – and the fixed eastern boundary fence; (c) Amendment of condition 2(d) –to allow an increase in the depth of the first floor deck from 1500 mm to 2200mm; (d) Amendment of condition 5 - in respect of the kerb and gutter and footpath to Ellen Street and the Laneway. The Site and Environs 2 The site at 2A Ellen Street, Rozelle is in a cul de sac and is accessed from Victoria Road. It has an area of 113m2 and a frontage of 6.095m. It is vacant, apart from evidence of a previous garage structure toward the rear of the site. 3 Parallel to Ellen Street at the rear of the site is a narrow laneway. At the view I observed that it is used by a number of properties backing onto the laneway -for access to their garages and hardstand parking areas. Because of its narrow width, vehicles can only enter from the western end of the laneway -where it is 3.2 m wide – because it is too narrow at its eastern end for a vehicle to pass. 4 The width of the laneway at the rear of the site is 3m and, according to the traffic evidence, is wide enough for a B35 vehicle to manoeuvre into the hardstand parking space proposed by this application. 5 To the north of the site is 2 Ellen Street, a single storey, timber-clad residence with its outdoor open space and living area at the front of the site towards Ellen Street. To the south of the site is 4 Ellen Street. It contains a two storey timber-clad residence with its outdoor open space and living area at the rear facing the laneway. 6 The modification application was notified but council did receive any submission in respect of this application. The Planning Framework 7 The planning instruments which apply to the site include: Leichhardt Local Environmental Plan 2000 State Environmental Planning Policy No1 –Development Standards State Environmental Planning Policy no55 – Contaminated Land Sydney Regional Environmental Plan (Sydney Harbour Catchment 2005 State Environmental Planning Policy (BASIX) 2004 8 The site is zoned residential and the development is permissible with consent under Leichhardt Local Environmental Plan 2000 (LEP). It is also within a heritage area and subject to cl15 and cl16 (8) of the LEP. The objectives in relation to the heritage conservation area apply to the site. 9 The floor space ratio (FSR) for this site under cl19 (2) of the LEP is 0.7:1. However, council upheld the applicant's State Environmental Planning Policy No. 1 (SEPP1) objection to facilitate the approval of this development with a FSR of 0.95:1. Council submits that it allowed the increased FSR subject to the deletion of the proposed hardstand car space (condition 2(a)). Therefore, it submits the Court should not reinstate the car space in this modification appeal. 10 Furthermore, council submits that the construction of the car space at the rear of the property would have adverse implications for landscaping on the site. While council accepts that it is not possible, on this small site, to numerically comply with the 40% minimum landscape requirement in cl 19(3) of the LEP, it contends it should achieve the housing objectives in cl 17 of the LEP which includes landscaping to take account of the controls in the DCP 2000 to achieve the desired future character. 11 This can be achieved, according to Council's expert, by the planting of mature plants including one tree with the capacity to grow to a mature height of 4m. The applicant accepts a condition to that effect. In that way the development will comply with the DCP controls for the site so as to ensure sympathetic development for the desired future character of the neighbourhood as detailed in Part A, 10.5.1 in particular; "…to conserve and complement the established streetscape with regard to setback, street trees and driveway crossings" and "…to maintain the prevalence of nature trees in both private and public spaces". 12 By the time of the hearing, the contentions in the appeal were reduced from those detailed in the facts and contentions. Condition 5 is now agreed and detailed in the further draft amended conditions that have been filed in court, and the applicant is accepting of condition 5 as currently proposed. The turntable that had been proposed in the original design has now been removed and on-site parking is to be achieved according to Mr Logan and Mr Pinder, the traffic experts, who agreed in their written evidence (exhibit 7) and, further confirmed in oral evidence, that the amended design will accommodate at B35 vehicle such as a Corolla. 13 However, without a turntable, to enable the vehicle to be manoeuvred onto the hardstand area but the traffic experts agree that it is necessary to have a buffer of 300mm clearance. I note that exhibit C was marked up to depict the clearance that both experts agreed would be necessary. Furthermore, they agree that a B35 vehicle can be parked on the hard stand area behind a closed roller door, and I understand now that a condition has been proposed which is acceptable to the applicant, and I believe it is condition 44, that would require that there be a roller door shut at all times with the vehicle enclosed on the hard paved area if the consent is approved, which is the case at hand. 14 Ms Laidlaw, who gave planning evidence for the council, also agreed that the consent could be conditioned to ensure that the vehicle parked on site was within the site behind a closed roller door, and I appreciate she may have had some input into the condition that has been formally agreed to by the applicant. 15 The applicant has offered to have a covenant placed on the title to dictate the size of the vehicle, a B35. According to the evidence however, Leichhardt Council has never before required such a covenant on title. Having regard to the evidence and the facts of the particular site, I do not think it is appropriate or necessary to require such a covenant. I accept the traffic expert evidence that the size of the paved hard stand will dictate the size of the vehicle to a B35 vehicle, and the imposition of a condition requiring the roller door to be closed at all times whilst the vehicle is parked will ensure that no larger vehicle will ever be able to overhang the space into the laneway. Therefore, I accept the proposed conditions in respect of that issue. Based on the evidence and mindful of the need for parking in the locality and the fact that there is access via the laneway from Victoria Road, I am satisfied after an assessment under s 79C of the Act that the applicant should be allowed to park on site as proposed in the amended application subject to the agreed conditions. 16 The objectives of the LEP and the DCP in respect of landscaping are on the evidence achieved, having regard to the peculiar constraints of this site. There can be no precedent flowing from the Court's approval of this paved hard stand area because it is very much a case where the particular site and its context supports the approval of this particular car space. The deck 17 The deck, which sits at the rear of the property, is approved at a depth of 1,500mm. Based on the evidence, it is an extension of an internal open living area. The deck is roofed and, according to the evidence of Mr Harding, confirmed by Ms Laidlaw in concurrent evidence, the roof meets the balustrade at the southern end of the deck. I accept Mr Harding's evidence that it would be difficult for a person, and Ms Laidlaw I recollect agreed, to stand at that point to overlook the property to the south. However, Ms Laidlaw suggested that a return to the balcony balustrade at the corner would further reduce the potential for overlooking and provide, in her view, an acoustic buffer. I understand that a condition has been proposed by the council to reflect that return on the balcony and the applicant is accepting of that condition. I accept the need to enclose the southern end to ensure that no one will overlook the adjoining property, and if it offers some acoustic treatment that will also assist the amenity of the neighbours when the deck is in use. 18 Based on the evidence of Mr Harding and Ms Laidlaw, the fact is that an extension of the deck to a depth as proposed will not in my opinion result in any unacceptable amenity issues to the neighbours opposite, or adjoining the property. The view confirmed the fact that the site is in a built up locality and there is already mutual overlooking between properties. The council has approved a dwelling that exceeds the floor space ratio, and; an extension of the deck, as proposed, in the context of this street and locality is on the evidence, acceptable. 19 Based on the evidence before me, the approval of these s 96 modifications to the deck will not result in any unacceptable bulk or amenity impacts to the neighbours adjoining the property. I do not accept that the approval of the s 96 modification is contrary to the objectives of the LEP, particularly cl 17(a) and cl 17(b), because the design proposed by the applicant is compatible with the pattern of surrounding buildings and is consistent with the desired future character identified in the LEP objective 17(a), and consistent with the consent of the recent approval at property 139 which we inspected on the view at the end of the laneway. 20 The requirement for a mature tree in the rear landscaped area will satisfy cl 17(b) of the LEP and the conditions have been amended to require such a tree to be on site subject to a further detailed landscape plan, and the applicant is agreeable to that. 21 Based on the evidence, the conditions proposed will ensure that the privacy of the adjoining properties as required by cl B3.3 of the DCP 2000 is in my view, achieved. 22 Accordingly, after an assessment under s 79C, including a view of the site and the locality, the Court makes the following orders: 1. The appeal is upheld. 2. Consent is granted to modification application M/2010/148 subject to the conditions annexed hereto. 3. The exhibits are returned. _________________ Susan Dixon Commissioner of the Court Annexure "A" Conditions of Consent for the property known as 2a Ellen St Rozelle 1. Development must be carried out in accordance with Development Application No. D/2010/26 and the following plans and supplementary documentation, except where amended by the conditions of this consent. Plan Reference Drawn By Dated A01a Linda Lesslie Architect 22 March 2010 A02a Linda Lesslie Architect 22 March 2010 A03a Linda Lesslie Architect 22 March 2010 A04a Linda Lesslie Architect 22 March 2010 A05a Linda Lesslie Architect 22 March 2010 A06a Linda Lesslie Architect 22 March 2010 A07a Linda Lesslie Architect 22 March 2010 A08a Linda Lesslie Architect 22 March 2010 A09a Linda Lesslie Architect 22 March 2010 A10a Linda Lesslie Architect 7 May 2010 V002 – Dwg 001 Willana Associates 3 December 2010 Site Landscape Plan Document Title Prepared By Dated BASIX Certificate no. 281965S NSW Dept. of Planning 2 Feb 2010 In the event of any inconsistency between the approved plans and supplementary documentation, the plans will prevail. PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE 2. Amended plans are to be submitted incorporating the following amendments: a) The level of that part of the rear yard on which the car parking area is located shall be RL 32.3.. b) The proposed ground floor Bedroom 2 and associated 'robe' shall be replaced with a 'Rumpus/living Room' with 'cupboard'. c) A 1600m high, solid privacy screen must be erected along both the northern and southern elevations of the first/'upper' floor rear deck to ensure reasonable privacy for the adjoining properties. The privacy screen must be permanently fixed and made of durable materials. Details must be provided prior to the issue of a Construction Certificate to the satisfaction of the Certifying Authority. d) The privacy screen along the southern side of the first/'upper' floor deck must extend northwards for a distance of 1 metre along the eastern side of the deck. This part only of the screen may be either solid or a minimum of 75% obscure. e) The car turntable shown on Drawing A02a is not approved. The approved car parking area shall be paved on ground instead, and the extent of paving shall be limited exactly to that shown on V002 – Dwg 001 Site Landscape Plan, prepared by Willana Associates and dated 03 December 2010. f) The finished ground level shall be maintained at RL 32.3 for a minimum distance of 300mm around all edges of the approved and paved driveway/car parking area. g) The ground floor deck is to be redesigned so as to be consistent with that shown on Drawing V002 – Dwg 001 Site Landscape Plan, prepared by Willana Associates and dated 03 December 2010 with all elevations and sections are to be amended accordingly. h) An 'eastern elevation as viewed from Laneway' drawing shall be included in the Construction Certificate drawings, showing the eastern boundary treatment as a roller shutter door permitting a clearance height of 2.2m above the finished level at the boundary and threshold to the driveway. The overall height of the framing structure shall be not greater than is necessary to provide this minimum clearance. Details must be provided prior to the issue of a Construction Certificate to the satisfaction of the Certifying Authority. The amendments are to be provided prior to the issue of a Construction Certificate. 3. A contribution pursuant to the provisions of Section 94 of the Environmental Planning and Assessment Act 1979 for the services detailed in column A and for the amount detailed in column B must be made to Council prior to the issue of a Construction Certificate: Column A Column B Open space and recreation $19,283.00 Community facilities and services $2,947.00 In lieu of adequate parking $0 Local area traffic management $134.95 Access to Balmain peninsula $693.80 Light rail access works $0 Leichhardt town centre improvements $0 Bicycle works $25.35 The total contribution is: $23,084.10 Payment will only be accepted in the form of cash, bank cheque or EFTPOS / Credit Card (to a maximum of $10,000). It should be noted that personal cheques or bank guarantees cannot be accepted for Section 94 Contributions. Contribution Plans may be inspected on Council's website www.leichhardt.nsw.gov.au or a copy purchased at the Citizen Service in Council's Administration Centre, 7-15 Wetherill Street, Leichhardt, during business hours. 4. A stormwater drainage design, incorporating on site stormwater detention facilities (OSD), prepared by a qualified practicing Civil Engineer must be provided prior to the issue of a Construction Certificate. The design must be prepared/ amended to make provision for the following: a) The design must be generally in accordance with the stormwater drainage concept plan on Sheet No 1, 2 and 3 Issue C prepared by Thomas Lau dated March 2010. b) Comply with Council's Stormwater Drainage Code. c) Charged stormwater drainage systems are not permitted. The stormwater system must drain via gravity. d) All plumbing within the site must be carried out in accordance with relevant provisions of Australian Standard AS/NZS 3500.3-2003 Plumbing and Drainage – Stormwater Drainage. e) An inspection opening or stormwater pit must be installed inside the property, adjacent to the boundary, for all stormwater outlets. f) New pipelines within the footpath area that are to discharge to the kerb and gutter must be hot dipped galvanised steel hollow section with a minimum wall thickness of 4.0mm and a section height of 100mm. 5. The applicant must bear the cost of construction of the following works: § Construction of concrete kerb and gutter at the Ellen Street frontage and rear laneway of the site. Development Consent does NOT give approval to undertake any works on Council property. An application must be made to Council for a Roadworks Permit under Section 138 of the Roads Act 1993 and Section 68 of the Local Government Act 1993 for approval to construct these works. The Roadworks Permit must be provided prior to the issue of a Construction Certificate. These works must be constructed in accordance with the conditions of the Roadworks Permit and be completed prior to the issue of an Occupation Certificate. Note: The cost of adjustment or relocation of any public utility service shall be borne by the owner/applicant. Where the finished levels of the new works will result in changes to the existing surface levels, the cost of all necessary adjustments or transitions beyond the above scope of works shall be borne by 6. Prior to the commencement of demolition works on the subject site or a Construction Certificate being issued for works approved by this development consent (whichever occurs first), a security deposit to the value of $5,500.00 must be paid to Council to cover the costs associated with the road, footpath and drainage works required by this consent. Payment will be accepted in the form of cash, bank cheque, EFTPOS/credit card (to a maximum of $10,000) or bank guarantee. A request for release of the security may be made to the Council after all construction work has been completed. The amount nominated is only current for the financial year in which the consent was issued and is revised each financial year. The amount payable must be consistent with Council's Fees and Charges in force at the date of payment. 7. Condition Deleted – 11 May 2010 8. Any air conditioning unit on the site must be installed and operated at all times so as not to cause "Offensive Noise" as defined by the Protection of the Environment (Operations) Act 1997. Domestic air conditioners must not be audible in nearby dwellings between 10:00pm to 7:00am on Monday to Saturday and 10:00pm to 8:00am on Sundays and Public Holidays. Details of the acoustic measures to be employed to achieve compliance with this condition must be provided prior to the issue of a Construction Certificate. 9. In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979 construction works approved by this consent must not commence until: a) A Construction Certificate has been issued by Council or an Accredited Certifier. Either Council or an Accredited Certifier can act as the "Certifying Authority." b) A Principal Certifying Authority has been appointed and Council has been notified in writing of the appointment. c) At least two days notice, in writing has been given to Council of the intention to commence work. The documentation required under this condition must show that the proposal complies with all Development Consent conditions, the Building Code of Australia and the relevant Australian Standards. 10. Prior to the commencement of demolition works on the subject site or a Construction Certificate being issued for works approved by this development consent (whichever occurs first), a security deposit to the value of $1655 must be paid to Council to cover the cost of making good any damage caused to any Council property or the physical environment as a consequence of carrying out the works. Payment will be accepted in the form of cash, bank cheque or EFTPOS/credit card (to a maximum of $10,000). Should any of Council's property and/or the physical environment sustain damage during the course of the demolition or construction works, or if the works put Council's assets or the environment at risk, Council may carry out any works necessary to repair the damage and/or remove the risk. The cost of these works will be deducted from the security. An inspection fee of $193 to determine the condition of the adjacent road reserve is also required to be paid to Council prior to the commencement of demolition works on the site or a Construction Certificate being issued for works approved by this development consent (whichever occurs first). A request for release of the security may be made to the Council after all construction work has been completed and an Occupation Certificate issued. The amount nominated is only current for the financial year in which the consent was issued and is revised each financial year. The amount payable must be consistent with Council's Fees and Charges in force at the date of payment. 11. A landscape plan prepared by a qualified Landscape Architect or Landscape Consultant must be provided prior to the issue of a Construction Certificate. The plan must be generally consistent with V0025-Dwg 001 Site Landscape Plan, prepared by Willana Associates and dated 3 December 2010 and include: a) Location of all proposed and existing planting delineating existing trees to be retained, removed or transplanted. b) A detailed planting schedule including species by botanical and common names, quantities, pot sizes and estimated size at maturity, such plantings to be compliant with Basix Certificate 281965S. c) At least 85% of the plantings must be native species from the Sydney locale. d) At least one tree capable of reaching a minimum mature height of four (4) metres. e) Details of planting procedure. f) Details of earthworks including mounding, retaining walls, and planter boxes. g) Details of drainage and watering systems. 12. In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986, the applicant must pay a long service levy at the prescribed rate of 0.0035 of the total cost of the work to either the Long Service Payments Corporation or Council for any work costing $25,000 or more. The Long Service Levy is payable prior to the issue of a Construction Certificate. 13. Materials and finishes must be complementary to the character and streetscape of the area. Highly reflective roofing materials must not be used. Details of finished external surface materials, including colours and texture must be provided prior to the issue of a Construction Certificate to the satisfaction of the Certifying Authority. 14. A Soil and Water Management Plan must be provided prior to the issue of a Construction Certificate. The Soil and Water Management plan must be compatible with the Construction Management and Traffic Management Plan referred to in condition 16 of this Development Consent and must address, but is not limited to the following issues: a) Minimise the area of soils exposed at any one time. b) Conservation of top soil. c) Identify and protect proposed stockpile locations. d) Preserve existing vegetation. Identify revegetation technique and materials. e) Prevent soil, sand, sediments leaving the site in an uncontrolled manner. f) Control surface water flows through the site in a manner that: i) Diverts clean run-off around disturbed areas; ii) Minimises slope gradient and flow distance within disturbed areas; iii) Ensures surface run-off occurs at non erodable velocities; iv) Ensures disturbed areas are promptly rehabilitated. g) Sediment and erosion control measures in place before work commences. h) Materials are not tracked onto the road by vehicles entering or leaving the site. i) Details of drainage to protect and drain the site during works. j) A durable sign, available from Council must be erected during the works in a prominent location on site, warning of penalties should appropriate measures required by the Soil and Water Management Plan not be maintained. 15. The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Service Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. For Quick Check agent details please refer to the web site www.sydneywater.com.au see Building Developing and Plumbing then Quick Check or telephone 132092. The Certifying Authority must ensure the Quick Check agent/Sydney Water has appropriately stamped the plans prior to the issue of a Construction Certificate. 16. Prior to the issue of a Construction Certificate, the applicant must prepare a Construction Management and Traffic Management Plan. The following matters should be addressed in the plan: a) A plan view of the entire site and frontage roadways indicating: i) Dedicated construction site entrances and exits, controlled by a certified traffic controller, to safely manage pedestrians and construction related vehicles in the frontage roadways. ii) The locations of proposed work zones in the frontage roadways. iii) Location of any proposed crane and concrete pump and truck standing areas on and off the site. iv) A dedicated unloading and loading point within the site for all plant and deliveries. v) Material, plant and spoil bin storage areas within the site, where all materials are to be dropped off and collected. vi) The proposed areas within the site to be used for the storage of excavated material, construction materials and waste and recycling containers during the construction period. vii) How it is proposed to ensure that soil/excavated material is not transported onto surrounding footpaths and roadways. viii) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be designed by a Chartered Civil Engineer, with National Professional Engineering Registration (NPER) in the construction of civil works or a survey company of Registered Surveyors with "preliminary accreditation" from the Institution of Surveyors New South Wales Inc. or an accredited certifier. b) Construction Noise During excavation, demolition and construction phases, noise generated from the site must be controlled. c) Occupational Health and Safety All site works must comply with the occupational health and safety requirements of the New South Wales Work Cover Authority. d) Toilet Facilities During excavation, demolition and construction phases, toilet facilities are to be provided on the site, at the rate of one toilet for every twenty (20) persons or part of twenty (20) persons employed at the site. e) Traffic control plan(s) for the site All traffic control plans must be in accordance with the Roads and Traffic Authority publication "Traffic Control Worksite Manual" and prepared by a suitably qualified person (minimum 'red card' qualification). The main stages of the development requiring specific construction management measures are to be identified and specific traffic control measures identified for each stage. Approval is to be obtained from Council for any temporary road closures or crane use from public property. Applications to Council shall be made a minimum of 4 weeks prior to the activity proposed being undertaken. 17. A Waste Management Plan is to be provided prior to the issue of a Construction Certificate. The Waste Management Plan is to be prepared in accordance with Council's Development Control Plan No 38 – Avoid, Reuse, Recycle. The plan must address all issues identified in Development Control Plan No 38 including but not limited to: a) Estimated quantities of materials that are reused, recycled, removed from site. b) On site material storage areas during construction. c) Materials and methods used during construction to minimise waste. d) Nomination of end location of all waste generated. All requirements of the approved Waste Management Plan must be implemented during the construction of the development. PRIOR TO THE COMMENCEMENT OF WORKS 18. The site must be secured and fenced prior to works commencing. If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling onto public property. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons on public property. If the work involves the erection or demolition of a building and is likely to cause pedestrian or vehicular traffic on public property to be obstructed or rendered inconvenient, or building involves the enclosure of public property, a hoarding or fence must be erected between the work site and the public property. Separate approval is required to erect a hoarding or temporary fence on public property. Approvals for hoardings, scaffolding on public land must be obtained and clearly displayed on site for the duration of the works. Any hoarding, fence or awning is to be removed when the work is completed. 19. The Home Building Act 1989 requires that insurance must be obtained from an insurance company approved by the Department of Fair Trading prior to the commencement of works approved by this Development Consent. If Council is nominated as the Principal Certifying Authority then a copy of the certificate of insurance must be submitted to Council prior to the works commencing. If the work is to be undertaken by an owner-builder, written notice of their name and owner-builder permit number must be submitted to Council. In all other cases, written notice must be given to Council of: a) the name and licence number of the principal contractor and b) the name of the insurer by which the work is insured under Part 6 of the Home Building Act 1989. If arrangements for doing the residential work are changed while the work is in progress, further work must not be carried out unless the Certifying Authority has given Council written notice of the updated information. This condition does not apply in relation to Crown building work that is certified, in accordance with Section 116G of the Environmental Planning and Assessment Act 1979, to comply with the technical provisions of the State's building laws. 20. Prior to the commencement of works, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder intending to carry out the approved works. 21. At least forty-eight (48) hours prior to the commencement of works, a notice of commencement form and details of the appointed Principal Certifying Authority shall be submitted to Council. 22. Prior to the commencement of works, a sign must be erected in a prominent position on the site on which the proposal is being carried out. The sign must state: a) Unauthorised entry to the work site is prohibited. b) The name of the principal contractor (or person in charge of the site) and a telephone number at which that person may be contacted at any time for business purposes and outside working hours. c) The name, address and telephone number of the Certifying Authority for the work. Any such sign must be maintained while the work is being carried out, but must be removed when the work has been completed. DURING WORKS 23. Where any works are proposed in the public road reservation, the following applications must be made to Council, as applicable: a) For installation or replacement of private stormwater drainage lines or utility services, including water supply, sewerage, gas, electricity, etc. an application must be made for a Road Opening Permit. b) For construction/reconstruction of Council infrastructure, including vehicular crossings, footpath, kerb and gutter, stormwater drainage, an application must be made for a Roadworks Permit. Note: Private stormwater drainage is the pipeline(s) that provide the direct connection between the development site and Council's stormwater drainage system, or street kerb and gutter. 24. Building materials and machinery are to be located wholly on site. 25. All excavations and backfilling associated with the development must be executed safely, properly guarded and protected to prevent them from being dangerous to life or property and in accordance with the design of a structural engineer. If an excavation extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must: a) Preserve and protect the building from damage. b) If necessary, underpin and support the building in an approved manner. c) Give at least seven (7) days notice to the adjoining owner before excavating, of the intention to excavate. 26. Any soil proposed to be disposed off site must be classified, removed and disposed of in accordance with the EPA Environmental Guidelines; Assessment, Classification and Management of Liquid and Non-Liquid Wastes 1999 and the Protection of the Environmental Operations Act 1997. Any soil, which fails to meet the criteria, is not to be disposed of off-site unless agreed to in writing by the Department of Environment and Conservation. Results of the testing are to be forwarded to Leichhardt Council and the Department of Environment and Conservation for acknowledgement before any off-site disposal and before proceeding with any construction works. 27. The site must be appropriately secured and fenced at all times during works. 28. Excavation, building or subdivision work must be restricted to the hours of 7:00am to 5:30pm Monday to Friday inclusive, 7:00am to 1:00pm Saturday. Work is not be carried out on Sunday or Public Holidays. 29. The development must be inspected at the following stages by the Principal Certifying Authority during construction: a) At the commencement of the building work, and b) After excavation for, and prior to the placement of, any footings, and c) Prior to pouring any in-situ reinforced concrete building element, and d) Prior to covering of the framework for any floor, wall, roof or other building element, and e) Prior to covering waterproofing in any wet areas, and f) Prior to covering any stormwater drainage connections, and g) After the building work has been completed and prior to any occupation certificate being issued in relation to the building by the Principal Certifying Authority. 30. Noise arising from the works must be controlled in accordance with the requirements of the Protection of the Environment Operations Act 1997 and guidelines contained in the New South Wales Environment Protection Authority Environmental Noise Control Manual. 31. A copy of the approved plans must be kept on site for the duration of site works and be made available upon request. 32. Construction material and vehicles shall not block or impede public use of footpaths or roadways. 33. Where any works are proposed in the public road reservation, the following applications must be made to Council, as applicable: a) For installation or replacement of private stormwater drainage lines or utility services, including water supply, sewerage, gas, electricity, etc. an application must be made for a Road Opening Permit. b) For construction/reconstruction of Council infrastructure, including vehicular crossings, footpath, kerb and gutter, stormwater drainage, an application must be made for a Roadworks Permit. Note: Private stormwater drainage is the pipeline(s) that provide the direct connection between the development site and Council's stormwater drainage system, or street kerb and gutter. 34. The requirements of the Soil and Water Management Plan must be maintained at all times during the works and any measures required by the Soil and Water Management Plan shall not be removed until the site has been stabilised to the Principal Certifying Authority's satisfaction. Material from the site is not be tracked into the road by vehicles entering or leaving the site. At the end of each working day any dust/dirt or other sediment shall be swept off the road and contained on the site and not washed down any stormwater pit or gutter. The sediment and erosion control measures are to be inspected daily and defects or system failures are to be repaired as soon as they are detected. PRIOR TO THE ISSUE OF AN OCCUPATION CERITFICATE 35. Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must ensure that the stormwater drainage system has been constructed in accordance with the approved design and relevant Australian Standards. Works-as-executed plans of the stormwater drainage system, certified by a Registered Surveyor, together with certification by a qualified practicing Civil Engineer to verify that the drainage system has been constructed in accordance with the approved design and relevant Australian Standards, must be provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate. The works-as-executed plan(s) must show the as built details in comparison to those shown on the drainage plans approved with the Construction Certificate. All relevant levels and details indicated must be marked in red on a copy of the Principal Certifying Authority stamped Construction Certificate plans. 36. Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must ensure that all approved road, footpath and/or drainage works, including vehicle crossings, have been completed in the road reserve in accordance with Council Roadworks Permit approval. Written notification from Council, that the works approved under the Roadworks Permit have been completed to its satisfaction and in accordance with the conditions of the Permit, must be provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate. 37. Prior to the issue of an Occupation Certificate, the Principal Certifying Authority is to be satisfied that all landscape works, including the removal of all noxious weed species, have been undertaken in accordance with the approved landscape plan and conditions of Development Consent. 38. All letter boxes must be constructed and located in accordance with the relevant provisions of Australian Standard AS/NZS 4253:1994 Mailboxes and to Australia Post's satisfaction. Work is to be completed prior to the issue of an Occupation Certificate. 39. A street number must be clearly displayed at the ground level frontage of the building prior to the issue of an Occupation Certificate. A separate application must be made to Council if new street numbers or a change to street numbers is required. 40. An Occupation Certificate must be obtained prior to any use or occupation of the development or part thereof. The Principal Certifying Authority must ensure that all works are completed in compliance with the approved Construction Certificate plans and all conditions of this Development Consent. 41. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation. Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and plumbing section on the web site www.sydneywater.com.au then refer to "Water Servicing Coordinator" under "Developing Your Land" or telephone 132092 for assistance. Following application a "Notice of Requirements" will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Certifying Authority prior to the issue of an Occupation Certificate. 42. Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must ensure that all works have been completed in accordance with the approved Waste Management Plan referred to in this development consent. Proof of actual destination of demolition and construction waste shall be provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate. ONGOING CONDITIONS OF CONSENT 43. The premises shall not be used for any purpose other than that stated in the Development Application, i.e. dwelling without the prior consent of the Council unless the change to another use is permitted as exempt development under Leichhardt Development Control Plan 35 – Exempt and Complying Development. The use of the premises as a dwelling, is defined under the Leichhardt Local Environmental Plan 2000 as follows: Dwelling means a room or suite of rooms occupied or used or so constructed or adapted as to be capable of being occupied or used as a separate domicile. 44. The roller door shall be shut at all times other than for the duration of vehicle ingress/egress including all such times as a vehicle is parked on the site. At no time shall any part of a parked vehicle be permitted to extend outside of the site's boundaries. NOTES A. This Determination Notice operates or becomes effective from the endorsed date of consent. B. Section 82A of the Environmental Planning and Assessment Act 1979 provides for an applicant to request Council to review its determination. This does not apply to applications made on behalf of the Crown, designated development, integrated development or a complying development certificate. The request for review must be made within twelve (12) months of the date of determination or prior to an appeal being heard by the Land and Environment Court. A decision on a review may not be further reviewed under Section 82A. C. If you are unsatisfied with this determination, Section 97 of the Environmental Planning and Assessment Act 1979 gives you the right of appeal to the Land and Environment Court within twelve (12) months of the determination date. D. Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act 1979 and/or the conditions of this consent may result in the serving of penalty notices or legal action. E. Works or activities other than those approved by this Development Consent will require the submission of a new development application or an application to modify the consent under Section 96 of the Environmental Planning and Assessment Act 1979. F. This decision does not ensure compliance with the Disability Discrimination Act 1992. Applicants should investigate their potential for liability under that Act. G. This development consent does not remove the need to obtain any other statutory consent or approval necessary under any other Act, such as (if necessary): a) Application for any activity under that Act, including any erection of a hoarding. a) Application for a Construction Certificate under the Environmental Planning and Assessment Act 1979. b) Application for an Occupation Certificate under the Environmental Planning and Assessment Act 1979. c) An application under the Roads Act 1993 for any footpath / public road occupation. A lease fee is payable for all occupations. H. Prior to the issue of the Construction Certificate, the applicant must make contact with all relevant utility providers (such as Sydney Water, Energy Australia etc) whose services will be impacted upon by the development. A written copy of the requirements of each provider, as determined necessary by the Certifying Authority, must be obtained. ______________________ S Dixon 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.