Land and Environment Court of New South Wales CITATION : Shields v Waverley Council [2010] NSWLEC 1239 APPLICANT Andrea Shields PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10317 of 2010 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to an existing dwelling - side setback - floor space ratio - privacy - overlooking Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006(Amendment 4) DATES OF HEARING: 28 July 2010 EX TEMPORE JUDGMENT DATE : 28 July 2010 APPLICANT Ms S Duggan, barrister SOLICITORS Conomos Legal LEGAL REPRESENTATIVES: RESPONDENT Mr S Patterson, solicitor SOLICITORS Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 28 July 2010 10317 of 2010 Andrea Shields v Waverley Council JUDGMENT 1 COMMISSIONER: This is an appeal against the deemed refusal of DA104/210 by Waverley Council (the council) for alterations and additions to an existing dwelling at 84 Queens Park Road, Queens Park (the site). 2 The council's Statement of Facts and Contentions identify issues relating to unacceptable impacts on the streetscape, heritage impacts, the size and bulk of the additions, inadequate setbacks, loss of privacy, inadequate landscaping and inadequate information although the council accepts that a number of these issues could be resolved by way of conditions of consent, if the application was to be approved. 3 Two local residents provided evidence on site and supported the contentions raised by the council. The residents also raised additional concerns relating to overshadowing, loss of privacy from windows and the proposed roof garden and non-compliance with the setback requirements for the proposed swimming pool. The site 4 The site has a southern frontage of 12.19 m to Queens Park Road and a similar frontage to Arnold Street to the north. The side boundaries are each 54.685 m, giving a total site area of 668.7 square metres. 5 The site contains a freestanding single storey late Federation bungalow at the Queens Park Road frontage and a double garage off Arnold Street. The area is predominantly residential in character with Queens Park located on the opposite side of Queens Park Road. The proposal 6 The proposal provides for alterations and additions to the existing dwelling including a new roof to allow the use of the roof space for a master bedroom. A new two-storey structure is to be located behind the existing dwelling and provides three new bedrooms at the upper level and a kitchen, breakfast room, family room and dining room on the ground floor. A pool equipment room is located in a basement area. A new swimming pool and double garage with access from Arnold Street are also proposed. Relevant planning controls 7 The site is within Zone 2(a)-Low Density under Waverley Local Environmental Plan 1996 (LEP 1996). The proposal is permissible with consent in this zone. The site is not listed as a heritage item or within a heritage conservation area but is within the vicinity of a State and local heritage item, being Queens Park. 8 Waverley Development Control Plan 2006(Amendment 4) (DCP 2006) applies. The site is located within the Queens Park Residential Character Study area with specific provisions provided at s 3.00. Section 3.2.6 provides a description of the existing character elements and s 3.3.3 provides objectives for the character area. 9 For streetscape, the relevant design future character objectives are: 2 .1 To reinforce the existing street categories through appropriate building façade, building setback, fence and landscape gestures. 2.2 To encourage dwelling styles that integrates with the established front, rear and side streetscapes. 2.3 To maintain streetscape character through consistent building setback, particularly where a building is part of a row of identical buildings. 10 The relevant performance criteria are: 2.1 New development and alterations and additions to existing dwellings should be compatible and consistent with development both in the immediate vicinity and in the overall context of the street. 2.2, Where properties have side street or rear lane frontages, alterations and additions reinforce the desirable side or rear setbacks. 2.3 Building setbacks, terraces, balconies and rooflines are consistent within the defined street corridor and provide uniformity to a group of terraces or mirror an attached semi. The evidence 11 Expert town planning evidence was provided by Mr Kerry Nash for the council and Mr Lewis Adey for the applicant. Expert heritage evidence was provided by Mr Robert Moore for the council and Mr Stephen Davies for the applicant. The experts provided joint reports for their respective fields of expertise and remained in dispute over a number of specific areas. These can be generally grouped into: 1 the bulk and scale of the proposal when viewed from Queens Park Road and, 2 the design of the dormer windows in the new roof of the existing dwelling. The amended design 12 Following the site view, the parties were requested by the Court to undertake a review of the height of the proposed second storey additions at the rear and also the design of the proposed dormer windows. Following a short adjournment to consider the Court's request, the experts agreed that with a reduced overall height of 890 mm for the second storey addition and an amended dormer design, their concerns over the proposed development would be satisfactorily addressed. 13 The amended proposal was put to the two residents who gave evidence on site, with one resident not wishing to make any further comment. The second resident maintained that the amended proposal did not fully address her concerns previously raised on site. Her remaining concerns related to: 1. the inadequate side setback of 900 mm; 2. the breach of the floor space ratio (FSR) and landscaping requirements in DCP 2006. 3. the likely use and impacts on privacy of a side door that adjoins the resident's property, and 4. the potential overlooking from the proposed roof garden. Side setback/ landscaping 14 Based on the assessment report of the council's staff, the proposed minimum side setback of 900 mm satisfies the requirement in DCP 2006. Similarly, the landscaping requirements in DCP 2006 are satisfied according to the council's staff report. On this basis, these matters would not be a reason to refuse the application. Floor space ratio 15 There was agreement that the FSR of 0.59:1 exceeds the DCP 2006 requirement of 0.5:1. Mr Nash and Mr Adey acknowledged the exceedence and do not consider it a reason to refuse or amend the application. The assessment report of the council's staff states that the proposal even in its unamended form "is consistent with the size and shape of the allotment and in character with the type of development envisaged by council's DCP." The proposal is also said to "comply with the objectives for size and bulk." 16 With the benefit of the site view, an understanding of the proposed application and the requirements in s 3.00 of DCP 2006, I concur with the unchallenged expert evidence that the exceedence of the FSR can be supported. Side door 17 A new door provides access to the side setback area off a corridor near the new living room however I am satisfied that the regular use of this door is highly unlikely given its location and the more convenient access to the dwelling from the revised location of the front door. Consequently, no amendment to the design is warranted. Roof garden 18 I am satisfied that the area identified as a roof garden adjoining Bedroom 3 will not be a source of overlooking given the council's condition requiring it to be a non-trafficable area as well as the inconvenient means of gaining access to this area. Consequently, no amendment to the design is warranted. Orders 19 With an understanding of the agreed amendments and the relevant planning controls, including s 3.00 of DCP 2006, I am satisfied there is no reason why consent should not be granted. 20 I accept the applicant's submission that the proposed amendments should be incorporated into new drawings and Final Orders left until the parties have reviewed the new drawings. If acceptable, Final Orders can be made in chambers. 21 The agreed amendments and conditions were filed on 13 August 2010 so the Orders of the Court are: 1. The appeal is upheld. 2. Development Application No 104/2010 for alterations and additions to an existing dwelling at 84 Queens Park Road, Queens Park is approved subject to the conditions in Annexure A. 3. The exhibits are returned. ___________________ G T Brown Commissioner of the Court ANNEXURE "A" Conditions of Consent ANDREA SHIELDS v WAVERLEY COUNCIL 84 Queens Park Road, Queens Park A. Approved Development 1. Approved Development The development must be in accordance with: (a) Architectural Plan Nos. DA1001/02 (revised 5 August 2010), DA2000/0302 (revised 5 August 2010), DA3000/02 (revision date 5 August 2010), DA3001/02 (revision date 5 August 2010) and DA3100/02 (revision date 5 August 2010), DA2001/01 (revision date 4 August 2010), prepared by Jorge Hrdina Architects Pty Ltd, dated 4 August 2010,11 March 2010, and 18 June 2010. (b) Landscape Drawing No. 0410 prepared by Fiona Cole Landscape Architect, dated February 2010 and last amended 9 March 2010, and received by Council on 16 March 2010; (c) BASIX Certificate; (d) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006. Except where amended by the following conditions of consent. 2. general modifications The proposal shall be amended as follows: (a) The front door entry to the premises is to be off the front verandah and the secondary side entry off Queens Park Road is to be used as a drying area for the adjoining laundry only. (b) The proposed windows/glazing to the ground floor laundry and first floor bathroom areas and the stairwell are to be obscured glass or highlight windows with a minimum sill height of 1700mm above the finished floor level. (c) Fixed downward sloping external louvers shall be installed at the top of the the proposed study window for a minimum depth of 600mm down from the window lintel. (d) Existing side masonry fencing is to be retained. Where on the east side, a portion of the existing wall on the side boundary is to demolished and rebuilt as a boundary fence, in accordance with the levels indicated on the East Elevation on Drawing DA3000/02 (e) The fence on the western boundary shall be a minimum of 1.8 metres, measured from the finished ground level of the subject site at any point. (f) The side setback to the west at the ground floor level is not to be less than 900mm and the side to the eastern side is not to be less than the eastern wall of the existing dwelling (g) The proposed east and west (side) skillion dormer windows are to be amended to present as having four (4) equal sash windows, of similar proportions to the sashes of the south (front) facing dormer window. The four sash arrangement is to amend the present design of two centrally placed sashes with shingled wall areas either side. The dormer cheeks (side walls) are to remain shingled. The amendments shall be submitted for the approval of Council prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. 3. amended landscape plan The Landscape Plan is to be amended by the following changes: (a) Delete proposed plantings on the eastern and western sides of the dwelling. Species proposed will not grow well in conditions of low light. Replace with more suitable species; (b) The proposed fencing on the western boundary needs to remain as a timber paling fence; (c) Indicative Plant Schedule to show a two (2) 100-litre container size tree to be planted within the front setback of the site. (d) The Prunus species (Flowering Cherry) tree located at the front western boundary of 86 Queens Park Road has to be shown on the plan; and (e) All landscaping on the site (trees, shrubs and groundcovers) are to be representative of a minimum 50% local native species. (f) Garden bed along the rear western side of the property be increased to a minimum of 2.0 metres wide and proposed replacement species of Acmena smithii 'Compact' be planted no closer than 1.0 metres from the boundary fence. The amended landscape plan is to be submitted to Waverley Council's Tree Management Officer with the plans for the Construction Certificate. 4. USE OF DWELLING and roof garden area The premises are to be used only as a single unit dwelling house and the roof gardens are to be non-trafficable areas (access is to be for maintenance only). 5. swimming pool level The proposed swimming pool is to be constructed to the ground floor level B containing RL 66.420. 6. Swimming pools The following requirements apply to the use and operation of the approved pool: (a) The pool water being treated by an approved water treatment and filtration unit. (b) The pool is to be fitted with a cover, that shall be fitted when the pool is not in use to minimise evaporation and conserve water. (c) To prevent noise nuisance to surrounding properties, the pool filtration motor and pump unit is to be housed within a ventilated soundproof enclosure. 7. INSTALLATION OF AIR CONDITIONING Air conditioning unit(s) installed within the building shall: (a) Be located a minimum of 1.5 metres from a boundary. (b) Be located behind the front building line and if visible suitable screened and located in an appropriate location. (c) Not be adjacent to neighbouring bedroom windows. (d) Not reduce the structural integrity of the building. (e) Not emit noise that is audible within a habitable room in any other residential property (regardless of whether any door or window to that room is open): (i) before 8.00am and after 10.00pm on any Saturday, Sunday or public holiday; or (ii) before 7.00am and after 10.00pm on any other day. (f) Not provide noise emissions that exceed 5dBA above the ambient background noise level measured at the property boundary at any other time outside of (e). B. Compliance Prior to Issue of Construction Certificate 8. SECTION 94A CONTRIBUTION A cash contribution is payable to Waverley Council pursuant to section 94A of the Environmental Planning and Assessment Act 1979 and Waverley Council Development Contributions Plan 2006 in accordance with the following: (a) A cost report indicating the itemised cost of the development shall be completed and submitted to council: (1) Where the total development cost is less than $500,000: "Waverley Council Cost Summary Report"; or, (2) Where the total development cost is $500,000 or more: "Waverley Council Registered Quantity Surveyor's Detailed Cost Report". A copy of the required format for the cost reports may be obtained from Waverley Council Customer Service Centre or downloaded from: www.waverley.nsw.gov.au/publications/ (b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000. (c) Should a section 96 modification result in any change to the total cost of the work, the Section 94A contribution is to be revised and amended. Prior to the issue of the Construction Certificate, evidence must be provided that the revised levy has been paid to Council in accordance with this condition. Waverley Council Development Contributions Plans 2006 may be inspected at Waverley Council Customer Service Centre. Advisory Note - A development valued at $100,000 or less will be exempt from the levy. - A development valued at $100,001 - $200,000 will attract a levy of 0.5%. - A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development. 9. security deposit A deposit or guarantee satisfactory to Council for the amount of $10,000.00 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work. This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work to the person who paid the deposit. 10. long service levy A long service levy, as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, is to be paid in respect to this building work. In this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate. Note: Council acts as an agent for the Long Service Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.35% of building work costing $25,000 or more. 11. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE The building work, including demolition, must not be commenced until: (a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and (b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81(A)(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and (c) Council is given at least two days Notice in writing of the intention to commence the building works. The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority. 12. SITE WASTE AND RECYCLING MANAGEMENT PLAN A Site Waste and Recycling Management Plan (SWRMP) Checklist 2 shall be submitted to the Principal Certifying Authority for approval in accordance with Part G1, Waverley DCP 2006 prior to the issue of the Construction Certificate. In this regard, Council expects demolition and excavated material to be reused and/or recycled wherever possible. The builder and all subcontractors shall comply with the approved SWRMP Part 1 and 2 at all times during construction. At least one copy of the SWRMP is to be available on site at all times during construction. Copies of demolition and construction waste dockets that verify the facility that received the material for recycling or disposal and the quantity of waste received, must be retained on site at all times during construction. 13. EROSION, SEDIMENT AND POLLUTION CONTROL Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate. 14. STORMWATER MANAGEMENT Certification is to be provided from a suitably qualified professional, that the stormwater system has been designed in accordance with the Water Management Technical Guidelines. Stormwater system details are to be submitted in accordance with the Waverley Development Control Plan 2006 (Amendment No. 4) - Part G4 prior to the issue of a Construction Certificate. 15. ENGINEERING DETAILS Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with all structural components prior to the issue of a Construction Certificate. 16. ENGINEERING DETAILS - CERTIFICATE OF ADEQUACY A Certificate of Adequacy prepared by a practicing Structural Engineer, certifying the adequacy of the existing building structure to carry the extra load of the proposed additions is to be provided to Council or the Accredited Certifier prior to the issue of a Construction Certificate. 17. MAking good existing side FENCEs NOT TO ENCROACH BEYOND BOUNDARIES No portion of the proposed making-good of the existing side fences, including the footings, is to encroach beyond the boundaries of the subject property. The demolition of the existing masonry wall on the eastern boundary shall be undertaken expeditiously, a temporary and privacy security fence with a minimum height of 1800mm be erected in its place and the construction of a replacement wall as soon as possible as a priority. 18. hoarding required A standard A-Class hoarding designed and constructed in accordance with the requirements of the Work Cover Authority being erected on the street alignments of the property, prior to the commencement of building operations, and such hoardings to be maintained during the course of building operations. Details of the hoarding are to be provided to Council prior to issue of the Construction Certificate. Where the hoarding is to be erected over the footpath or any public place, the approval of Council must be obtained prior to the erection of the hoarding. 19. BRICK FENCES The proposed brick fence being designed and constructed in accordance with the requirements of Council's Standard for Brick Fences. In this regard, details are to be provided prior to the issue of the Construction Certificate. Alternatively, a Certificate prepared by a practising Structural Engineer is to be submitted certifying that the footings are designed to withstand a maximum wind force of 0.8Kpa. 20. VEHICULAR ACCESS Vehicular access and gradients of vehicle access driveway(s) within the site are to be in accordance with Australian Standard 2890.1 Parking Facilities - Off Street Car Parking with details provided on the plans prior to the issue of the Construction Certificate. 21. LONG SECTION OF DRIVEWAY A long section of the driveway shall be submitted with the Construction Certificate. The long section is to be drawn at a scale of 1:25 and shall include Reduced Levels (RLs) of the road centreline, kerb, road reserve, and pavement within the property and garage floor. The RLs shall include the existing levels and the design levels. 22. BASIX The undertakings provided in the BASIX Certificate shall be provided for in the Construction Certificate plans and documentation prior to the issue of the Construction Certificate. If required, a modified BASIX Certificate shall be provided that reflects the development as approved (eg addressing any modification required via conditions of consent). Any significant works (ie any works not able to be considered as Exempt and Complying Development) that result from changes to the BASIX Certificate or conflict with conditions of consent require Council's consent. The Principal Certifying Authority shall be responsible for ensuring that all the undertakings are satisfied prior to the issue of an Occupation Certificate. The above condition is a prescribed condition under the Environmental Planning and Assessment Act Regulations clause 97A and the above BASIX commitments are mandatory and can not be modified under Section 96 of the Environmental Planning and Assessment Act 1979. 23. USE OF RENEWABLE TIMBERS Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings so as to help protect the existing areas of rainforest. In this regard, a schedule of proposed timber products to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used. 24. TREE PLAN Only trees with the approval of Council for removal may be removed from the site. Species Location Action 2 x Olea species (African Olive) Front setback Removal and Replacement x 2 4 x Tristaniopsis laurina (Watergum) Rear setback Removal and Replacement x 4 1 x Yucca elephantipes (Yucca) Front setback Removal The replacement tree(s) must be local native tree species of a minimum container size of 45 litres and shall be maintained until they attain a mature height of at least four (4) metres, whereby they will be protected by Council's Tree Preservation Order. Two (2) 100-litre container size tree of local native species to be planted within the front setback of the site. Trees shall not be tied to stakes unless support is essential. All advanced trees are to be planted in holes containing good quality soil and humus. In lawn areas, grass is too kept back for a radius of at least 450mm from stems and trunks, a depression should be formed for the collection of water and the area mulched. Woodchip mulch is to be installed to a depth of 75-90mm to all mass planted garden areas and around the base of trees in lawn areas. The mulch should be kept at least 50mm away from plant stems to reduce the risk of collar rot. If the replacement trees are found to be faulty, damaged, dying or dead before being protected by Council's Tree Preservation Order the tree/s shall be replaced with the same species at no cost to Council. 25. TREE PROTECTION Precautions shall be taken when working near trees to ensure their retention, including the following: (a) Do not store harmful or bulk materials or spoil under or near trees; (b) Prevent damage to bark and root system; (c) Do not use mechanical methods to excavate within root zones; (d) Do not add or remove topsoil from under the drip line; (e) Do not compact ground under the drip line; (f) Do not mix or dispose of liquids within the drip line of the tree; and (g) All trees marked for retention must have a protective fence/guard placed around a nominated perimeter. All trees and shrubs identified for retention and within 7.5m of the building work are to be provided with a tree guard and a notice on each guard indicating "This tree is the subject of a Tree Preservation Order by Waverley Council." This notice is to be in place prior to commencement of any building or demolition work. Trees to be retained and protected Species Location Action 1 x Eucalyptus sideroxylon (Red Ironbark) Council Street tree Protect & Retain TPZ of 2.0 m as per conditions below 1 x Grevillea robusta (Silky Oak) Rear eastern boundary of 82 Queens Park Road Protect & Retain TPZ of 3.0 m as per conditions below 1 x Prunus species (Flowering Cherry) Front western boundary of 86 Queens Park Road Protect & Retain as per conditions below *TPZ- Tree Protection Zone TPZ – A 1.8m chain link wire fence or the like shall be erected around the above trees to be retained to protect them from damage during construction. Fencing is not to be removed until all building work has been completed. Fencing to be installed to the dimensions outlined in the table above. Established boundary fences or site boundary fences are to remain in place at all times to physically protect any existing trees and vegetation on neighbouring sites. Soil levels are not to be changed around any trees. No mechanical excavation shall be undertaken within the tree canopy spread (within the dripline) of any tree, shrub or vegetation. If any tree roots are exposed during any approved works then roots smaller than 30mm are to be pruned as per the specifications below. Any roots greater than 30mm are to be assessed by a qualified arborist before any pruning is undertaken. If tree roots are required to be removed for the purposes of constructing the approved works they shall be cut cleanly by hand, by an experienced Arborist/Horticulturist (with a minimum of the Horticulture Certificate or Tree Surgery Certificate). It is the arborist's responsibility to determine if such root pruning is suitable. If there are any concerns regarding this process then Waverley Council's Tree Management Officer is to be contacted to make final determination. If major tree roots from the Grevillea robusta on the neighbouring property are uncovered during the construction of the proposed terrace, the shape of the terrace is to be adjusted to avoid any damage to these roots. If any trees on neighbouring properties require pruning then permission must be gained from the owner of the tree(s) and an Application to Prune or Remove Trees on Private Property is then to be presented to Council for processing. To ensure the preservation of the trees NO APPROVAL is granted for severing of significant tree roots. Footings for any structures constructed within the area, defined by the canopy driplines of the following trees, should be constructed using an isolated pier and beam construction method, to bridge any existing roots exceeding 30mm, where excavation identifies roots exceeding this diameter. The piers shall be located such that no roots of a diameter greater than 30mm shall be severed. All roots severed must be treated with a root hormone to encourage the development of new roots. Species Location Radius from Trunk (Metres) 1 x Prunus species (Flowering Cherry) Front western boundary of 86 Queens Park Road 2.0 m 26. DILAPIDATION REPORT A dilapidation report prepared by a practising Structural Engineer shall be submitted to the Principal Certifying Authority, Council and the owners of the adjoining properties prior to the commencement of demolition, bulk excavation or building works, detailing the current condition and the status of all buildings (both internal and external), including ancillary structures located upon the adjoining properties. C. Compliance Prior to and During Construction 27. PRIOR TO SITE WORKS The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of: (a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or (b) the name and permit number of the owner/builder who intends to do the work; and (c) any change to these arrangements for doing of the work. 28. home building act The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences. 29. CONSTRUCTION SIGNS Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works. 30. EXCAVATION AND BACKFILLING All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property. 31. excavation below footings If an excavation associated with the erection or demolition of a building extends below the level of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made, at their own expense, must: (a) preserve and protect the building from damage; and (b) if necessary, must underpin and support the building in an approved manner; and (c) must, at least seven 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. 32. obstruction to public areas If a public place or pedestrian vehicular traffic may be obstructed because of the carrying out of work involved in the erection or demolition of a building; or a public place is required to be enclosed in connection with the erection or demolition of a building; then: a hoarding fence must be erected between the building site and the public place of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from, or in connection with, the work falling into the public place, is also to be erected; (a) the work is to be kept lit during the time between sunset and sunrise if the work may be of a sort of danger to persons using the public place; and (b) a hoarding, fence or awning is to be removed when it is no longer required for the purpose it was provided. 33. NO USE OF ORGANOCHLORIN PESTICIDES The use of organochlorin pesticides as termite barriers in new development is prohibited pursuant to Council Policy. Only physical barriers are to be used for termite control. The building shall comply with Australian Standard 3660: Protection of building from subterranean termites - prevention, detection and treatment of infestation. 34. DEMOLITION OR ALTERATION OF PRE 1987 BUILDINGS At least five (5) days prior to the demolition, renovation work or alterations and additions to any building constructed before 1987, the person acting on the consent shall submit a Work Plan prepared in accordance with Australian Standard AS260-2001, Demolition of Structure and a Hazardous Materials Assessment by a person with suitable expertise and experience. The Work Plan and Hazardous Materials Assessment shall: (a) outline the identification of any hazardous materials, including surfaces coated with lead paint; (b) confirm that no asbestos products are present on the subject land; or (c) particularise a method of safely disposing of the asbestos in accordance with the Code of Practice for the Safe Removal of Asbestos NOHSC 2002 (1998); (d) describe the method of demolition; (e) describe the precautions to be employed to minimise any dust nuisance; and (f) describe the disposal methods for hazardous materials. 35. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS All site works complying with the occupational health and safety requirements of WorkCover NSW. 36. SOIL AND WATER MANAGEMENT PLAN A Soil and Water Management Plan (also known as an Erosion and Sediment Control Plan) shall be prepared according to SSROC's Soil and Water Management Brochure and the DECC's Managing Urban Stormwater: Construction Activities. This Plan shall be implemented prior to commencement of any works or activities. All controls in the Plan shall be maintained at all time. A copy of the Soil and Water Management Plan must be kept on site at all times and made available to Council officers on request. 37. STOCKPILES Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls. 38. LOCATION OF BUILDING OPERATIONS Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system. 39. ALL BUILDING MATERIALS STORED ON SITE All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval. 40. CONSTRUCTION HOURS Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on: (a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends; (b) Sundays and public holidays; and (c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW. Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000. 41. CONSTRUCTION NOISE - PERIODS OF 4 WEEKS OR UNDER The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 20dB(A) when assessed at any sensitive noise receiver. 42. CONSTRUCTION NOISE - PERIODS GREATER THAN 4 WEEKS The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver. 43. BUILDING CODE OF AUSTRALIA All building work must be carried out in accordance with the requirements of the Building Code of Australia. 44. quality of construction act - inspections (dwelling houses class 1 AND 10 The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certificate. MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate. The specified MANDATORY inspections are: In the case of a Class 1 and 10 building: (a) at the commencement of building work; (b) after excavation for, and prior to the placement of, any footings; (c) prior to pouring any in-situ reinforced concrete building element; (d) prior to covering of the framework for any floor, roof or other building element; (e) prior to covering any waterproofing in any wet areas; (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. The following additional inspections are required to be undertaken by the PCA: (a) sediment control measures prior to the commencement of building work; (b) foundation material prior to undertaking building work; (c) shoring of excavation works, retaining walls, piers, piling or underpinning works; (d) steel reinforcement, prior to pouring concrete; (e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns; (f) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls); and (g) swimming pool fencing prior to filling the pool. Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction. 45. CERTIFICATE OF SURVEY - LEVELS All construction works shall be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans. Certification from a Registered Surveyor certifying ground, upper floor/s and finished ridge levels is to be submitted to the Principal Certifying Authority during construction and prior to continuing to a higher level of the building. 46. ROOFING MATERIAL TO MATCH EXISTING The proposed new slat tiled roof is to have a uniform appearance and finish to match the roof covering over the existing dwelling house. 47. IN-SINK WASTE DISPOSAL SYSTEMS The installation of in-sink waste disposal systems is prohibited. 48. ENCROACH BEYOND THE BOUNDARIES No portion of the proposed alterations and addition including the footings and roof eaves, to encroach beyond the boundaries of the subject property. 49. WATER PROOFING The floor and wall surfaces of the proposed wet areas are to be protected against water in accordance with the Building Code of Australia. The wet areas are to be examined and certified by an Accredited Certifier. Note: Water proofing is to be in accordance with AS 3740 - Water Proofing of Wet Areas within residential buildings. 50. SMOKE ALARM SYSTEM A smoke alarm system is to be installed within the building in accordance with the requirements of the Building Code of Australia. 51. SERVICE PIPES All plumbing and drainage, including sewerage drainage stacks, ventilation stacks and water service pipes shall be concealed within the building. Plumbing other than stormwater downpipes shall not be attached to the external surfaces of the building. 52. work outside property boundary All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council at the applicant's expense. 53. construction of swimming pools The following applies to the construction of swimming pools: (a) Reinforcement is to be inspected by an Accredited Officer or other suitably qualified person prior to the pouring of concrete; (b) The electrical wiring system for any proposed underwater artificial lighting installation to the pool being installed in accordance with the requirements of Australian Standard 3000, Part 1 - Wiring Rules; (c) The finished level of the proposed pool is not to exceed a maximum height of [state] mm above the existing natural ground level; (d) To minimise the likelihood of accidental drowning, the swimming pool is to be provided with a child resistant safety fence, designed and constructed in accordance with the requirements of Australian Standard 1926-1993 "Fencing for Private Swimming Pools". This fencing is to be erected and inspected by the Principal Certifying Authority prior to the pool being filled with water; and (e) A final inspection of the completed pool is to be carried out by the Principal Certifying Authority prior to the pool being filled with water. 54. POOL DRAINAGE Waste waters from the proposed pool being discharged into Sydney Water's sewerage system and in this regard, approved plans MUST be submitted to Sydney Water at least fourteen (14) days prior to commencement of building operations. 55. FRONT FENCE HEIGHT The proposed fence abutting the front boundary of the site is not to exceed a height of 1200mm above the level of Council's footpath. D. Compliance Prior to Occupation or During Occupation 56. FINAL OCCUPATION CERTIFICATE The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied. 57. POOL MANUFACTURER'S CERTIFICATION The proposed fibreglass pool is to be constructed in accordance with the Consulting Engineer's design as shown on the approved plans and in this regard, the pool is not to be filled with water until a Certificate has been submitted by the pool construction manufacturer to the Principal Certifying Authority. 58. POOL SIGN An approved sign outlining details of resuscitation techniques for adults, children and infants must be placed in a prominent position, close to the pool prior to filling the pool with water. Signs are available from Council's Planning & Environmental Services Department. 59. INSPECTION OF POOL A final inspection of the completed pool is to be carried out by the Principal Certifying Authority prior to the pool being filled with water. 60. LIGHTING Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 Control of the Obtrusive Effects of Outdoor Lighting. 61. STREET NUMBER The street number for the property shall be a minimum of 75mm high and shall be positioned 600mm-1500mm above ground level on the site boundary that fronts the street. Should the number be fixed to an awning then it shall be a minimum 150mm high. ____________ G T Brown 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.