Land and Environment Court of New South Wales CITATION : Quinn v Mosman Municipal Council [2009] NSWLEC 1392 APPLICANT Vivian Jennifer Quinn PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10563 of 2009 and 10564 of 2009 CORAM: Dixon C KEY ISSUES: DEVELOPMENT CONSENT :- carport roof and the front fence, Environmental Planning and Assessment Act 1979 Local Government Act 1993 LEGISLATION CITED: Land and Environment Court Act 1979 Mosman Local Environmental Plan 1998 Mosman Residential Development Control Plan CASES CITED: Zang V Canterbury City Council (2001) 115 LGRA375 Stockland V Manly Council [2004] NSWLEC472. DATES OF HEARING: 12 October 2009 EX TEMPORE JUDGMENT DATE : 13 October 2009 APPLICANT Ms V Quinn (solicitor) LEGAL REPRESENTATIVES: RESPONDENT Ms J Hewitt (solicitor) SOLICITOR HWL Ebsworth Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Dixon C 13 October 2009 10563 of 2009 Quinn v Mosman Municipal Council 10564 of 2009 Quinn v Mosman Municipal Council This determination was given extemporaneously and has been edited prior to publication 1 The applicant has two appeals and both relate to the carport roof and the front fence of a family home at 106 Belmont Road, Mosman. 2 Proceedings number 09/10564 appeals the order issued by Mosman Council requiring the demolition of the carport roof, which is built in contravention of condition 1.6 of the development consent. Proceedings number 09/10563 seeks deletion of conditions 1.6 and 1.7 of the development consent which concern the carport roof and the front fence respectively. 3 Following a consideration of the evidence, submissions and the relevant matters under s 79C in the Environmental Planning and Assessment Act 1979 and the Local Government Act 1993 I determine that both appeals be upheld and condition 1.6 deleted from the consent and condition 1.7 be amended as agreed by the parties. Background 4 The proceedings are listed today for an onsite s 34 conciliation conference. At the outset the parties agreed that the resolution of the s 96 proceedings would determine the order proceedings. 5 The s 34 conference resolved the issue about the front fence and it was agreed that condition 1.7 could be amended to reflect that agreement. However, the parties could not reach agreement about the roof on the carport or the deletion of condition 1.6. Accordingly, I terminated the s 34 conciliation conference and at the request of the parties proceeded to dispose of the appeals with a further hearing pursuant to s 34(4)(b) of the Land and Environment Court Act 1979. 6 The parties agreed that the evidence tabled during the conciliation phase of the s 34 conference was evidence in the hearing. Remaining Issue 7 The only issue remaining for my determination is whether the built gable end to the roof should be demolished and rebuilt in accord with condition 1.6 or whether that condition should be deleted from the consent and the existing roof remain. History of the application 8 On 7 June 2009, Mosman Council issued development consent to the applicant to make alterations and additions to her family home at 106 Belmont Road, Mosman. Part of the works included the erection of a large double carport at the street frontage, DA8.2001.436.1. The applicant sought modification of the design of the carport and council under delegation approved a s 96 application, 8.2001.436.3, on 12 November 2008 subject to the following conditions: 1.6 the carport roof shall be redesigned from a gable roof into a hipped roof with a Dutch gable to match the previously approved carport roof (8.2001.436.3). Details should be provided with the construction certificate; 1.7 no iron pikes shall be added to the sandstone fence and the approved timber gate shall not be replaced by an iron gate. Details shall be provided with the construction certificate. 9 Despite the explicit conditions of the consent, the applicant built a carport roof with a flat gable contrary to condition 1.6 of the development consent. Because of the applicant's illegal work, council quite reasonably issued an order pursuant to s 121 B of The Local Government Act 1993 requiring the demolition of the carport roof. That order was modified in the hearing to require the demolition of that part of the roof necessary for the construction of the hipped roof and Dutch gable as required by the condition 1.6. 10 The court had the benefit of the evidence of the oral evidence and a the position paper filed by the applicant's consultant planner Mr Peter Fryer, the oral evidence of the councils' internal planner Ms Winnacott. The planning controls 11 The site is zoned 2(a3) Residential as defined in Regulation 11 of the Mosman Local Environmental Plan 1998. The constructions works, both completed and proposed are ancillary to the use of the site for a dwelling house and are permissible with consent. The site is within the Belmont, Cabramatta, Cowles and Bardwell Roads Heritage conservation area. It has the following ranking: Ranking 1 "a building with a high intactness and /or which contributes substantially to the stated character of the area in the terms given in the definition of a Conservation Area. 12 Ms Winnicott advised me at the hearing that council would shortly exhibit a new LEP, which would further refine the controls for the subject site, including apparently heritage and conservation controls. This draft LEP, it was agreed however, is not a document, which I am required to consider under s 79C of the EPA Act and was not tendered into evidence. 13 The planning controls for the site include: SEPP Sydney Regional Environmental Plan, Sydney Harbour Catchment 2005, SEPP 55, Remediation of Land, Mosman LEP 1998, part 1, cl 2, objectives of the plan: part 2, cl 11 (residential zones), Mosman Residential Development Control Plan s 5.1 streetscape and building design, s 5.2 car parking and access, and s 6.10 Belmont townscape, Notification Development Control Plan and Mosman Transport Development Control Plan. 14 The site is in the Belmont Townscape under Mosman Residential DCP. 15 Both experts defined the streetscape for the purposes of the hearing from Military Road to the first roundabout in Belmont Road. The applicant and respondent accompanied me on a view of the site and the relevant part of the street. The applicant also asked that I consider the property at 24 Belmont Road and a collection of photographs of various properties within the street and beyond marked exhibit C. The council's evidence was that the appropriate properties to have regard to for the purpose of streetscape were those as indicated between Military Road and Belmont Road. 16 At the view I observed that the development around the site is varied and consists of detached dwelling houses, semi-detached dwellings and townhouses. The adjoining properties, like many others in the street have carports. The applicant's carport is certainly larger than its neighbours because council has approved a double carport and most carports in the street offer a single car space. 17 Belmont Road is a busy local road with a couple of round about and traffic lights before entry onto Military Road. There are commercial properties facing Military Road at the western end of Belmont Road a few hundred metres from the site. 18 Council's town planner, Ms Winnicott, evidence is that the flat gable roof on the applicant's double carport does not achieve "consistency with council objectives and guidelines". Her evidence is that it adds additional bulk to the carport and this has a negative impact on Belmont Road. The flat gable design according to Ms Winnacott is inconsistent, with the zone objectives in cl 11 of the Mosman Local Environmental Plan. Specifically, it does not present at a height and scale, which complements the existing buildings and streetscape. 19 Ms Winnacott's evidence is that the existing roof does not observe objective 01 of s 5.1 of Mosman Residential Development Control Plan, as it is not development of a scale and appearance, which is in keeping with the street and neighbourhood character. In her opinion it also breaches the objective in 02 of s 5.2 of Mosman Residential Development Control Plan because it is not designed in sympathy with the residential building without becoming the dominant feature of the site. 20 Council's submits that the carport fails to observe planning guideline P7 of s 5.2 of the Mosman DCP which requires a roof of an appropriate pitch, forward of the front building alignment, or a flat roof. 21 Council referred me to paragraph 3.9 in the City Plan Heritage study dated December 2004, entitled Belmont and Cabramatta Roads, Mosman Conservation Area Study, in respect of Belmont Road. They study acknowledged the fact that Belmont Road "suffers to differing degrees from the impacts of intrusive built elements such as ....the addition of garages and carports ..." The report states that "with pro active conservation works it is possible to remediate these changes and enhance the character of the area. " 22 The issue is whether the removal of this gable will as council submits remediate the imposing but approved large carport, which dominates the site? . 23 Mr Fryer's evidence on behalf of the applicant is that the bulk of the approved carport would not be significantly improved if the roof were allowed as built. In his opinion a hipped roof and Dutch gable will not lessen the impact of this approved double carport. Mr Fryer's evidence is that the flat gable is a sympathetic addition to the existing development and the existing dwelling house and the existing controls do not preclude a flat gable roof feature. In Mr Fryer's opinion, the dwellings along Belmont Road, which make up the streetscape for the site, include freestanding carports at the front, of the site of a similar design to the proposed modified carport, that is, a pitched roof with a flat gable at the front facade. 24 Referring to guideline number 9, Mr Fryer submits that the proposed pitched roof and flat gable at the front of the facade is consistent with the built form of a number of existing carports within the streetscape and therefore consistent with the predominant roof form within the neighbourhood. It is Mr Fryer's evidence that the modification does not result in an increase to the height, bulk, scale of the original approval and therefore is consistent with the objective in cl 11 of the Mosman Local Environmental Plan 1998. 25 Additionally, Mr Fryer on behalf of the applicant submits that the design is sympathetic with the dwelling house and thereby observes objective 02 of s 5.2 of Mosman Residential Development Control Plan. Guideline P5, s 5.1 of Mosman Residential Development Control Plan requires architectural unity with the existing building, and matching of roof pitch and external finishes is encouraged by that control. Furthermore, the roof pitch of the carport and the existing dwelling are consistent, which in Mr Fryer's opinion results in an appropriate and compliant roof in accord with guideline P7 s 5.2 of Mosman Residential Development Control Plan. Notification 26 The application was notified and no objections were received in respect of the application. Findings 27 The fact is that council has approved a substantial double carport forward of the existing dwelling on this site and in this particular streetscape. I agree with both experts that the carport is an imposing and dominant feature on the site and in the streetscape. 28 Despite that approval the applicant and council, through the s 96 process, has attempted to better relate the carport to the dwelling and streetscape by reducing its overall height by approximately 500 millimetres and separating the roof from the existing dwelling house. 29 It would appear based on the evidence that all efforts have been exhausted, short of total demolition of the carport, of reducing the dominance of this carport on the existing dwelling and the streetscape. I accept the applicant 's evidence that the gable as built does not increase the bulk of this carport and removal will do little to improve is dominance on the site and streetscape. It is true that applicant has illegally built a gable end on the roof contrary to the council's consent. However, the evidence is that the removal of that gable will mean demolition of a substantial portion of the roof and result in little improvement to the streetscape. What is also clear on the evidence, is that the rebuilding of the roof as required by the condition will have little impact in further reducing the dominance of this carport on the dwelling on the site. 30 I accept the expert opinion of Mr Fryer that the imposition of condition 1.6 requiring a modification to the roof and gable on the street facade of the carport will have no material effect in further reducing the height and scale of the carport in the streetscape. 31 I accept the applicant's submission and the existing gable is consistent with the current objectives contained within cl 11 of Mosman Local Environmental Plan 1998, that is, the modification does not result in an increase to the height, bulk and scale of the original approval. 32 At the hearing on site I observed (consistent with the applicant's evidence) that a number of dwellings along Belmont Road, including the adjoining properties, have freestanding carports at the front of the properties of similar design to this development as erected, although they are single carports. Objective 01 of s 5.1 of Mosman Residential DCP requires development to have "a scale and appearance which is in keeping with the street and neighbourhood character". I accept the applicant's expert evidence that the carport as built is closer to achieving this objective then compliance with condition 1.6. 33 I accept the evidence of the applicant that the proposed pitch and roof form is consistent with the predominant roof form in the neighbourhood. Therefore, guideline P95 s 5.1 of Mosman Residential Development Control Plan is achieved. 34 It appears that council will (if the soon to be exhibited draft LEP is adopted) have specific design controls for this site and locality in the future. However, that is not currently the case, there is no control which dictates that a flat gable is an unacceptable design feature for this site. The evidence is that the current controls are silent on specific architectural style and character. I am required to rely upon the expert evidence brought forward by the parties. Expert opinion on architectural character tends to be subjective. I prefer the evidence of the applicant in the particular circumstances of this case that the appropriate pitch and design of the flat gable is the appropriate architectural detail. 35 Both experts accept that a sympathetic paint finish to the carport, picking up the colour scheme of the house and the fence, would further reduce the dominance of the structure. I also accept the applicant's evidence that the proposed fencing will balance the dominant carport approved by council when viewed from the street. 36 Council raises a concern that this decision will be a precedent. However, there will be no opportunity for precedent if council adopts the new controls and a conservation area with more stringent controls, which will achieve articulation of architectural styles for this locality. At the moment, as I said, there is no such control and this large structure is approved. I appreciate that the current DCP is a focal point of my consideration of this application and I have given meaning consideration to those controls: Zang V Canterbury City Council (2001) 115 LGRA375. I accept that applicant's evidence that the objectives of the DCP are achieved given the particular constraints of this site. The expert town planners have articulated two entirely different opinions as to the impact of the roof design on the streetscape. In the circumstances of this case I prefer the applicant's expert opinion. In relation to the order appeal, I note that the applicant has carried out unauthorised works contrary to council's consent. I do not think it was unreasonable in the circumstances of this case for council to issue the order because development should be built in accordance with a consent so that certainty in the planning process can be maintained. Stockland V Manly Council [2004] NSWLEC472. 37 However, on the merits of the assessment of the s 96 application, I have determined the following and make the following orders in respect of each appeal. 1. The appeal in matter number 09/10563 is upheld. 2. Development consent 8201.436.3 is modified to delete conditions 1.6 is deleted and condition is 1.7 and the amended as agreed and recorded in the amended conditions which are annexure A hereto. 3. The appeal in matter number 10564 is allowed. 4. I reserve the costs and note that it is open to the council to make any application that it chooses to do in relation to that. _______________________ Susan Dixon Commissioner of the Court ljr Annexure 'A' Conditions of Consent Quinn v Mosman Municipal Council 1. The development consent relates to the following plans and documentation: 1.1 This approval relates to the following plan numbers (except where amended by the following conditions): Plan Nos. Date of Plan Prepared by DA01 and part plan PO2 and PO3 November 1, 2001 Architectural interior Designs. December 12, 2001 [BC1] As modified by: Plan Nos. Date of Plan Prepared by Sheet 1of 2 and Sheet 2 of 2 August 2008 Michael Blakeney Unreferenced October 2009 Michael Blakeney Document title Date of Document Prepared by Statement prepared by Michael Blakeney Not dated Michael Blakeney 1.2 In order to achieve compliance with Clause 15 – Landscaped Area Requirements in Residential Zones of the Mosman Local Environmental Plan No.1998, the amount of hard paved area on the site must be decreased by 47 square metres. Details must be shown on amended plans which are to be submitted with the Construction Certificate. 1.3 In order to maintain privacy for the adjoining property on the eastern side and achieve compliance with Planning Guideline P7 of Section 4.2 – Siting and Scale of the Mosman Residential DCP, the rear facing balcony must be setback from the eastern side boundary by a minimum of 1.5 metres and a permanently fixed privacy screen must be provided on the eastern side of the balcony. Details must be shown on amended plans which are to be submitted with the Construction Certificate. 1.4 In order to achieve compliance with Planning Guideline P7 of Section 5.2 – Carparking of the Mosman Residential DCP, the lattice infills panels on the carport are to be deleted. Details must be shown on amended plans which are to be submitted with the Construction Certificate. 1.5 In order to achieve compliance with Planning Guideline P7 and P8 of Section 7.4 – Swimming Pools of the Mosman Residential DCP, the edge of the pool coping is to be setback from the rear property boundary by 2 metres and the level of the pool coping is to be lowered to be closer to natural ground level. In this regard, the level of the pool coping is not to exceed RL 81.35. Details must be shown on amended plans which are to be submitted with the Construction Certificate. 1.6 Deleted. 1.7 The timber framed pickets on top of the sandstone retaining wall / front fence and the pedestrian gate shall be spaced greater than 25% of the width of the pickets. 2 The following conditions are to be satisfied upon lodgement and prior to release of the Construction Certificate 2.1 If Council is the certifying authority for the issue of a Construction Certificate the applicable fee in accordance with Council's adopted pricing policy is required. 2.2 Adequate public liability insurance must be taken out by the builder or owner for the protection of adjacent property owners. The liability insurance shall provide for a minimum protection cover of $5,000,000 and shall be increased in cover where deemed necessary by the Director Environment and Planning. Evidence of the public liability insurance policy in the form of a copy of the policy is to be submitted to Council for approval. The policy is to have adequate cover for damage occasioned by excavation, demolition works or other building or related activities in the particular case. The copy of the policy is to be submitted to Council prior to any excavation work being carried out and prior to issue of the Construction Certificate. [BC15] 2.3 A bank guarantee, cheque or cash deposit for an amount of at least $2,500.00, to cover the required trust fund deposit against damage to Council property or installations, is to be lodged with Council prior to issue of the Construction Certificate. [BC13] 2.4 If Council is nominated as the Principal Certifying Authority, the applicant must pay the applicable inspection fees in accordance with Council's adopted pricing policy prior to issue of the Construction Certificate. [BC16A] 2.5 The applicant must pay the applicable Long Service Leave levy prior to issue of the Construction Certificate. [BC16B] 2.6 The applicant is required to prepare a dilapidation report on the condition of all Council assets adjacent to the proposed development and lodge it with Council prior to the issue of a construction certificate. The report must include photographs of the road, kerb and gutter, footpath, driveways, street trees, street signs and any other Council assets in the vicinity of the development. The photographs must be of suitable quality and taken from an appropriate location to allow easy identification of any damage that exists. Generally, wide angle photographs taken some distance from the subject will not be suitable. A written description of the nature and extent of any damage that exist prior to commencement of the work must also be provided with the photographs. It should be noted that any damage not documented prior to works commencing will be assumed to be caused during construction and the repair costs will be taken out of the deposit against damage to Council property. [AS96] 2.7 Prior to the issue of a construction certificate a separate application shall be made to Council's Environment and Planning Department for approval to construct the proposed vehicular crossing. In this regard, the applicant shall meet all costs associated with the construction of the vehicular crossing. [AS5] 2.8 Prior to the issue of a Construction Certificate the applicant shall consult with the relevant Public Authorities and meet all costs involved in any alterations required to mains and services that result from the construction of the vehicular crossing. 2.9 Duplicate copies of Structural Engineer's details of all pier holes, footings, beams, slabs, stairs, ramps, balustrades, parapets, balcony walls, retaining walls, structural members, brickwork, underpinning and shoring, which are to be in accordance with the requirements of the relevant design codes are to be submitted to the Principal Certifying Authority prior to construction commencing. 2.10 The levels at the boundary alignment of the property along the Belmont Road frontage shall be defined by the existing levels. [AS2] 2.11 The layback wings on the western side of the proposed vehicular crossing is to be no more than 5.2 metres from the eastern boundary of the property measured along the kerb line. 2.12 Longitudinal sections are required in order to ensure that vehicles will not scrape their undercarriage. The sections must be designed for levels on both sides of the vehicular crossing and driveway, and must be in accordance with the ground clearance requirements specified in Australian Standard 2890.1-1993, as well as the grades and dimensions for vehicular crossings outlined in Council's standard specification for the Construction of Vehicular Crossing by Contract". The horizontal and vertical scale used to plot the longitudinal section should be 1:25. The longitudinal sections should commence at the centre line of the carriageway of the road pavement and extend to the carport. A certificate to this effect shall be submitted from a qualified engineer or architect prior to issue of a construction certificate. 2.13 Drainage from the site shall include on-site detention. A construction certificate will only be issued upon submission of a design in accordance with Council's current "Policy for On-Site Detention". The purpose of the on-site detention system is to ensure that the proposed development does not result in run off above the permissible site discharge as calculated in accordance with the policy. The detention system, once constructed for this purpose, must be maintained in an operable condition and must not be removed without the prior consent of Council. In this regard, a positive covenant is to be placed on the title of the property to the effect that the detention system is to be maintained in an operable condition. A positive covenant to the satisfaction of Council's solicitor must be registered on the property title, prior to the issue of a construction certificate. A qualified engineer must submit a certificate to Council certifying that the design has been prepared in accordance with Council's "Policy for On-Site Detention", prior to the issue of a construction certificate. 2.14 The pool and water feature equipment shall: (a) be housed in a noise attenuated enclosure (eg masonry) to ensure that the equipment is inaudible at the property boundaries during operation; and (b) not be operated between 10pm and 7am daily, with an appropriate timing device fitted accordingly. 2.15 The swimming pool including fencing must comply with the Swimming Pools Act 1992. Details are to be provided to the Principal Certifying Authority prior to the issue of the Construction Certificate. 2.16 Prior to the swimming pool being filled with water, the pool fencing must be installed and is to be to the satisfaction of the Principal Certifying Authority. 2.16 The site is to be landscaped to the satisfaction of the Principal Certifying Authority and the applicant is to submit fully detailed, professionally prepared site landscaping plans prior to the issue of a Construction Certificate, with particular attention being given to: + Protection measures for the existing trees to be retained and transplanted; + Provision of appropriate landscaping in the front setback area to replace the paving/fountain; + Provision of appropriate landscaping along the eastern side boundary to soften the visual impact of the new addition; and + Provision of appropriate landscaping along the rear boundary to maintain privacy for the adjoining properties. 3 The following conditions are to be satisfied prior to the commencement of any works (including demolition related to the work) 3.1 A Construction Certificate for the proposed work must have been issued. 3.2 The approved plans must be submitted to the appropriate Sydney Water office to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water's requirements, the approved plans will be appropriately stamped. 3.3 A Form 7 must be submitted to Council a minimum of 2 days prior to construction commencing, which must include Builder's details. 3.4 Documentary evidence of Home Warranty Insurance in accordance with Part 6 of the Home Building Act 1989 must be submitted with the Form 7. 4 The following conditions are to be satisfied during the construction period 4.1 Owners, builders and/or demolishers are not to occupy and/or obstruct any portion of the footpath, verge or roadway with building or demolition material, waste containers, portable toilets or building sheds. Approval to occupy the footpath/roadway will only be considered where circumstances prevent on-site storage. Application to occupy the footpath/roadway is to be made on the prescribed form and lodged, together with payment of Council's scheduled fees, for the consideration of the Manager Ranger Services. Street gutters are to be kept clear of any building materials at all times. Unauthorised waste containers are not permitted to occupy any portion of the footpath or roadway. 4.2 All works, including ancillary works, relating to this proposal are to be substantially commenced within 5 years from the date on which the consent operates. Signs to be Erected on Building and Demolition Sites 4.3 A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: 4.3.1 stating that unauthorised entry to the work site is prohibited, and 4.3.2 showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. Any such sign is to be removed when the work has been completed This clause does not apply to: (i) building work carried out inside an existing building, or (ii) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out. Change of Building Use 4.4 A building in respect of which there is a change of building use must comply with the Category 1 fire safety provisions applicable to the proposed new use. Note: The obligation under this subclause to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in the relevant development consent. Excavations and Backfilling 4.5 All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. 4.6 All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property. Retaining Walls and Drainage 4.7 If the soil conditions require it: 4.7.1 retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided, and 4.7.2 adequate provision must be made for drainage. Support for Neighbouring Buildings 4.8 If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made: 4.8.1 must preserve and protect the building from damage, and 4.8.2 if necessary, must underpin and support the building in an approved manner, and 4.8.3 must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished. The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. In this clause, allotment of land includes a public road and any other public place. Protection of Public Places 4.9 If the work involved in the erection or demolition of a building: and (a) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed, rendered inconvenient or allow pedestrian access into a construction site from the public way; or (b) involves the enclosure of a public place, then a hoarding or fence must be erected between the work site and the public place. If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place. Any such hoarding, fence or awning is to be solid, safe and not easily dislodged. Appropriate materials should be used and shall not involve sharp edges/surfaces (eg reinforcing for concrete) that is exposed to the public way. The hoarding, fence or awning is to removed when the work has been completed. Toilet Facilities 4.10 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 persons or part of 20 persons employed at the site. Each toilet provided: (i) must be a standard flushing toilet; and (ii) must be connected to the sewer. 4.11 No plant is to be operated on or across a public road or footpath involving the use of a crane, hoist, lift or concrete pump or the placement of any article including, but not limited to, pipes across or above any part of a road or footpath/verge, unless written approval has first been obtained from Council. Application for a permit must be made at least 24 hours prior to operating such plant and permits will not be issued on the proposed day of operation. Any person operating plant in contravention of this condition is liable for an on-the-spot fine exceeding $300. [BC6A] 4.12 Under no circumstances is any person permitted to mix concrete or mortar or carry out any building works or activity on Council property. 4.13 Before any road, footpath, public reserve or public place is opened for any lawful purpose by a plumber, drainer, builder or any other person, a permit is to be obtained from the Council. The charge for restoration of the road, footpath, public reserve or public place to be opened (calculated in accordance with the schedule of charges for restoration of roads, footpaths, public reserves and public places fixed by Council) is to be paid to Council prior to the commencement of the opening. 4.14 The construction of footpath and vehicular crossings and laybacks in the kerb is to be undertaken by either the applicant's contractor or by a Council Authorised Contractor. The applicant is to make application on the form available at the Environment and Planning Department and pay any deposits required prior to the commencement of the work. 4.15 No person shall use or occupy the building or portion which is the subject of this consent until it is completed in accordance with the approved plans and the conditions of this consent. 4.16 In order to prevent objectionable noises or operations on any land or premises, the following construction hours shall apply: 4.16.1 Work or the demolition of any building is restricted to the hours of 7:00 a.m. to 6:00 p.m. on Mondays to Fridays, inclusive, and 7:00 a.m. to 1:00 p.m. on Saturdays if inaudible on adjoining residential premises, otherwise 8:00 a.m. to 1:00 p.m. Construction work or demolition work is prohibited on Sundays and Public Holidays. 4.16.2 The burning of demolition material on the site is prohibited at all times. 4.17 Construction works associated with this approval shall not cause pollution of any waters. 4.18 Stages of building construction shall be appropriately inspected to ensure the safety and health of the building. 4.19 If Council is not the Principal Certifying Authority, a Compliance Certificate is to be obtained from an accredited certifier after every inspection and submitted to Council with any other relevant certification. 4.20 Appropriate measures (e.g. fine water spray) shall be implemented during demolition, excavation and/or any stone cutting to ensure that dust and silica emissions do not leave the site. However, such measures shall be coordinated with site sedimentation control measures to ensure polluted waters do not leave the site. 5 The following conditions are to be satisfied prior to use or occupation 5.1 An Occupation Certificate must be issued, and provided to Council (with the applicable registration fee) if Council is not the Principal Certifying Authority, confirming that the building is suitable for use or occupation in accordance with its classification under the Building Code of Australia. 5.2 Prior to occupation of the premises the following shall be submitted:- a. Works as executed drawings of the detention storage shall be furnished to Council upon completion of the works. b. A certificate from a qualified engineer shall be supplied to Council in respect of:- i. the soundness of the storage structure; ii. the capacity of the detention storage; iii. the works being constructed in accordance with the approved design. [AS57] 6 Prescribed Conditions (EPA Act Regulations 2000) 6.1 All building work must be carried out in accordance with the provisions of the Building Code of Australia. 6.2 Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless there is a contract of insurance, in accordance with Part 6 of the Home Building Act, 1989, and that such a contract of insurance is in force. 6.3 All conditions of approval must be complied with before land use (including occupancy) takes place. Any consent given shall be void if the development to which it refers is not substantially commenced within five years after the date of approval. Advice / Notes The following points are issued as advice to the applicant. They do not form conditions of the Notice of Determination. (i) If a Construction Certificate has been issued for the original development application, an amending Construction Certificate will be required for the modifications approved under the Section 96 application. If a Construction Certificate application has been lodged but not finalised, amended plans must be provided to Council or the Accredited Certifier reflecting changes approved under the Section 96 amendment. 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.