Land and Environment Court of New South Wales CITATION : Bokor v Pittwater Council [2010] NSWLEC 1108 APPLICANT Des and Sandy Bokor PARTIES : RESPONDENT Pittwater Council FILE NUMBER(S) : 10972 of 2009 CORAM: Murrell C KEY ISSUES: DEVELOPMENT APPLICATION :- Construction of a three-storey dwelling house and demolition of existing stone dwelling and large shed. Land and Environment Court Act 1979 LEGISLATION CITED: Pittwater Local Environmental Plan Pittwater Development Control Plan CASES CITED: Zhang v Canterbury City Council [2001] NSWCA 167 DATES OF HEARING: 24 February 2010, 1 April 2010 and 9 April 2010 EX TEMPORE JUDGMENT DATE : 9 April 2010 APPLICANT Mr G Green (solicitor) SOLICITOR Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Ms M Astridge (solicitor) SOLICITOR Mallesons Stephen Jaques JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 9 April 2010 10972 of 2009 Des and Sandy Bokor v Pittwater Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 The applicant in these proceedings is seeking to erect a three-storey dwelling house on the property known as No. 37 Bynya Road, Palm Beach. The proposal involves the demolition of the existing stone dwelling on the property and large shed. 2 By way of background, this matter commenced, as a s 34 Conciliation Conference, and the Court met on site with the parties and a number of issues were resolved. However, the parties did not reach agreement and they consented to the Court adjudicating the matter under s 34(4) of the Land and Environment Court Act. The Court had the opportunity of an extensive site inspection at the time of the conciliation conference and also viewing the subject property from Whale Beach, which is one of the areas that council contends the proposed development would impact. 3 The adjoining neighbour at No. 39 gave evidence to the Court on site and an inspection of his premises was also carried out on the day of the site view. The property at No. 39 is a heritage listed dwelling under the Pittwater Local Environmental Plan. It is on a large site equivalent to approximately two sites and it has extensive gardens and landscaping and lawn areas. The property on the southern side at No. 35 is a two-storey 1960s brick dwelling. 4 The council contends that the proposed development that should not be approved because it contravenes not only the numeric standards but the objectives contained in council's planning regime. 5 The contentions as provided for in the Statement of Facts and Contentions are that the proposed development will have excessive bulk and scale: In this regard the council contends that the site coverage is excessive and the side setbacks, in particular the side setback to the north, is inadequate for the achievement of the council's objectives. The second contention is adverse environmental effects on neighbouring properties. The issue of overshadowing was resolved by an amendment to the plan. The council contends that the 'locality statement' would not be achieved in that the proposed development does not comply with the site coverage and because of the reduction in the northern setback. 6 The Court heard evidence at the s 34 Conciliation Conference and also heard evidence from the planners in Court. I will say at this point there was an amended plan following the s 34 Conciliation Conference. However, the amended plan did not resolve all of the council's contentions. 7 For the applicant, Mr Warren Long, a consultant town planner, gave evidence, and for the respondent, Ms Gina Hay, a senior planner with Pittwater Council, gave evidence to the Court. There are a number of matters that were agreed. In particular it was agreed that the height of the building and the building height plane are acceptable with only a minor breach of the height plane, with no consequence in terms of visual bulk on neighbours' amenity. It was also agreed that the figure of 53% landscaped area are for the site would be achieved. 8 The side setback to the north is non-compliant in that the area on the northern side that adjoins the heritage dwelling, for a distance of some 6 metres, that is the media room, is at 1.5 metres as opposed to the council's control of 2.5 metres. Council's Development Control Plan provides for that one side boundary be 2.5 metres and the other can be one metre. The southern boundary of the subject site, the proposed development is one metre or a little bit less in places, but it was agreed that this had no adverse impacts. The issue between the planners was whether the 1.5 reduced setback for the media room area was sufficient or adequate in terms of achieving the objectives of council's controls. 9 I note at this point that the lower bedrooms are some 2.5 metres from the northern boundary and the main bedroom is set back some 6.5 metres. 10 As an ex tempore judgment so suffice to say that I have had regard to the controls within council's bundle, exhibit 2, and the LEP of 1993. The subject site is zoned Residential A and the proposed development is permissible with consent. The other controls of the council are in the Pittwater Development Control Plan and the Geotechnical Risk Management Policy for Pittwater of 2009. 11 In terms of the LEP, the heritage dwelling at No. 39 is listed as an item. The Development Control Plan in terms of the Palm Beach locality provides a context for development and a history of the area. The desired character for Palm Beach is that: "the Palm Beach locality will remain primarily a low density residential area with dwelling houses to a maximum of two storeys… in a landscape setting integrated with the landform and landscape, and secondary dwellings can be established. Future development is to be located so as to be supported by adequate infrastructure including roads, water, et cetera. Future development will maintain a height limit below the tree canopy and minimise bulk and scale whilst ensuring future development respects the horizontal massing of the existing built form. Existing and new native vegetation including canopy trees will be integrated with the development. The design, scale and treatment of future development is to reflect the seaside village character where in commercial areas. A balance will be achieved between maintaining landforms, landscapes and other features in the natural environment and the development of land. As far as possible, the local native tree canopy and vegetation will be retained and enhanced to assist buildings blending into the natural environment, and to provide feed trees for native fauna, and to enhance wildlife corridors and heritage in conservation areas are also to be respected." 12 In terms of the natural environment, the 'Palm Beach Locality' includes areas of native vegetation, threatened species and natural environmental significance, and the area is also mapped. The locality can be described as a generally low density residential area with dwelling houses. The subject site is towards the ridge. The actual road runs along the ridge, so the dwelling houses on the eastern side of Bynya Road include the high points along the ridge. A photo montage was provided to the Court to show the before and after exercise of the dwelling house amongst the other dwelling houses on the ridge line and also to have regard to the trees within the area. 13 As I stated, amended plans were provided to the Court and there has been an amended landscape plan as a result of further concurrent evidence. 14 As I stated the Court heard from the adjoining owner, Mr Ashley Bonthorne. He gave evidence as the owner of the adjoining heritage property. The Court notes he is an architect, but his evidence to the Court is not on that basis and the Court has had regard to his concerns. He is concerned about the proximity of the proposed dwelling to his heritage item and the reduction in the side setback. He is of the opinion that there should be compliance with the side setback and it should not be varied and that it should be 2.5 metres. 15 The Court notes that the heritage retaining wall that would appear to be part of the adjoining heritage property next door, that the applicant has agreed that this remain 'in situ' despite the fact that it is in places erected on the subject site. The plans before the Court accommodate the retention of that wall. 16 Mr Bonthorne is concerned that the setback will not provide for sufficient landscaping adjoining his property and therefore he is concerned about privacy and the proximity of the dwelling house. He also expressed concern about the amount of material to be excavated. The Court had regard to the extent of excavation, and the applicant was required to provide plans to show the excavation and the proximity of the excavation. Mr Bonthorne referred to the contextual relationship or the contextual heritage of his dwelling house and in this regard he considers the proposed development is not appropriate having regard to or the juxtaposition with his dwelling house to the north. He is concerned about the bulk and scale of the development, in particular the envelope that is produced by the development including the setbacks. He also expressed concern about the depiction of the natural ground levels on the plans and in his opinion they did not reflect the accurate situation. 17 The Court notes that the subject site, as for many of the properties in this area on relatively steep terrain, have been excavated. In many respects, it is always difficult to precisely ascertain what would have been the natural ground level. The council's planner agrees with Mr Long and there is no disagreement as to the depiction of the natural ground level as shown on the architectural plans. 18 The Court also has the benefit of the survey plan, which was provided on the 1st occasion to understand the relationship of the subject development proposal with the adjoining properties in terms of relative levels and also in terms of the ground levels shown on the survey plan. 19 Mr Bonthorne was provided a marked-up exhibit of what his concerns are and what he considered to be inconsistencies in the plans. The Court then heard evidence from the architect for the proposal in addressing what Mr Bonthorne considered were a lack of indicators for the setbacks and some inconsistencies within the plans. 20 Mr Long is of the opinion that the proposal will sit comfortably within the area and is not inconsistent with the provisions of the DCP in terms of the desired future character, and that the numerical non-compliances are justified. On the other hand, Ms Hay is of the opinion that the reduced landscaping area and the reduced side setback are not satisfactory the development would be more appropriate if it complied with the DCP controls. I note that the site coverage of the proposed development is some 48% and the Development Control Plan has a provision or a guideline of 40% site coverage. 21 On behalf of the applicant it was submitted that the comparison of the existing situation and the existing excessive site coverage of the current dwelling and hard paved areas compared to the proposal should be taken into consideration. I do not accept this submission and I have assessed the development application as a new dwelling on its merits under s 79C including council's planning regime. The comparison with the existing situation in my assessment is not relevant. 22 Having said that, however, I am satisfied that the proposed development is one that will not contravene, be in conflict or antipathetic, and in fact it will be compatible with the existing desired future character as proposed in the council's planning regime. For this reason I consider that the non-compliances in the circumstances of this case are justified in terms of the final outcome or built form of the proposed development. I he concluded it is satisfactory on the basis of the concept as shown in the amended architectural drawings and the amended landscape plan, and with the benefit of materials and finishes. 23 I am satisfied that the proposed development will sit comfortably on the site and in the locality. Admittedly it is on the ridge, but in terms of its height, in my assessment it is not excessive. I say that having regard to the fact that even if the natural ground lines and the envelope as depicted on the architectural plans are not accurately shown. I am still satisfied the proposal that will not be out of character with the area and will provide for an appropriate dwelling house within a landscape setting. 24 The amended landscape plan has been changed to provide be a canopy tree, an angophora costata, Sydney Red Gum, planted within the front yard area. When I say front yard, that is the Bynya Road frontage of the subject property, and such a canopy tree will then grow up higher than the dwelling house itself. Trees on ridge-lines are preferable to seeing the built elements on ridge lines. I am satisfied the amended landscape plan it will provide for an appropriate landscape setting, a requirement of the council's guidelines and Development Control Plan. 25 With respect to the relationship with the heritage building to the north, the reduced setback of the media room area of 1.5 metres for a length of six metres along this boundary, I am satisfied with the proposed landscaping, that the development will not impact on the heritage building or impact on the significance of the heritage building in terms of the relevant provisions of council's Local Environmental Plan. The proposed dwelling has variable setbacks and this must be appreciated in terms of its relationship with the heritage item to the north. The non-compliance for one portion in my assessment, and having regard to when viewed from Whale Beach, also a concern to the council, I am satisfied that the dwelling house will sit within a landscape setting. Clearly trees are a most important and valuable amenity aspect of this locality and the landscape plan provides for the eventual replacement of canopy trees as well as providing for an appropriate landscape setting for the dwelling itself. 26 The dwelling house or built form should not necessarily have to be completely screened as such, but rather I am satisfied that the landscaping will appropriately punctuate the built form. The placement of two angophora costatas on the eastern side of the dwelling, so when viewed from Whale Beach together with the tuckeroos will provide for different levels of canopy trees, which is appropriate. It is not necessary, as I stated, to completely screen trees and clearly the longevity of trees would be significantly reduced if this was the case. Views to and from dwellings is clearly the desirable aspect of this locality and one that is emphasised through the provisions of the Development Control Plan. 27 In my assessment, under the Development Control Plan in terms of Zhang v Canterbury Council, the Court of Appeal judgment, it is clear that I must give focus and central consideration to the DCP provisions. At the same time, Zhang v Canterbury guides us in that strict adherence to the numeric provisions is not necessarily required and one must importantly have regard to the objectives that are contained within the DCP such that if a development satisfies the objectives, despite numeric non-compliance, in the circumstances of the case and on the individual merits, it may be appropriate for a variation to the DCP. Council maintains that it has consistently applied the DCP provisions and clearly, any variation to such provisions must be justified. However, in my assessment of the development application, having regard to adjoining development, having regard to views to and from the property from Whale Beach from Bynya Road itself, I am satisfied that the dwelling, whilst three-storeys on the eastern elevation, is significantly set down, and there is currently an excavated area which will be extended to provide for the media room and other facilities within the dwelling house. 28 I am satisfied that the design of the dwelling has taken into consideration amenity impacts and the adjoining properties in terms of ensuring privacy and ensuring that the amenity of those dwellings is also maintained, as well as the principles of the locality itself. In y overall assessment the proposal has merit and is worthy of approval. 29 There was one condition that required determination. That is the masonry wall which adjoins the property to the north at No. 39. At the end of the day, council's planner agreed that a 1.2 metre balustrade of masonry construction would be appropriate. In the circumstances, I also agree 1.2 metres would be appropriate and provide for the necessary separation between No. 39 and the subject property. The potential for overlooking is reduced, bearing in mind, the views are clearly to the east and I do not consider that overlooking is of such a concern to warrant a larger screen wall than that now proposed. 30 I note that in terms of the concerns of the adjoining property owner that there is a requirement for the excavation to be in accordance with the Geotechnical report. There are also conditions in terms of the risk assessment attached in the conditions and the civil engineering excavation landfill conditions also imposed at 6, and the requirement at No. 7 for a dilapidation report in relation to dwellings and associated structures on 35 and 39, and that report is to be prepared by a suitable structural engineer. The other conditions, as I stated, are as agreed to and as amended on the last occasion to reflect the current plans. 31 The Court has now received the disk of conditions so the conditions can be available with the orders when requested. A transcript of this judgment will be ordered and it will then be published. 32 Accordingly based on my assessment above the formal orders of the Court are: 1. The appeal in respect of the property known as No. 37 Bynya Road, Palm Beach, is upheld. 2. The development application submitted to Pittwater Council and as amended is approved subject to the conditions contained in Annexure 'A', 3. The exhibits may be returned to the parties with the exception of exhibits 1, 7, H, J, K, L and M. ___________________ J S Murrell Commissioner of the Court ljr Annexure 'A' Conditions of Consent Bokor v Pittwater Council DA No. 150/09 37 Bynya Road, Palm Beach This consent is not an approval to commence building work. The works associated with this consent can only commence following the issue of a Construction Certificate. Note: Persons having the benefit of development consent may appoint either a council or an accredited certifier as the principal certifying authority for the development or for the purpose of issuing certificates under Part 4A of the Environmental Planning and Assessment Act. When considering engaging an accredited certifier a person should contact the relevant accreditation body to ensure that the person is appropriately certified and authorised to act in respect of the development. A. Prescribed Conditions: 1A The development shall be completed in accordance with the information provided by the applicant in support of the application, including the Statement of Environmental Effects, and in accordance with: Plans A00F, A01F, A02F, A03F, A04F, A05F, A06E, A07E, A08E, A09F, A10C, A11A all dated 03.03.10 and drawn by MacCormick Simonian Architects, Drawing Nos. LP01 Revision J 'Landscape Concept Plan' and LP02 'Landscape Sections' both dated 06.04.10 and drawn by Spirit Level Designs, the Geotechnical Report prepared by Jeffrey and Katauskas dated 17 April 2009, BASIX Certificate dated 1 April 2010 and the Colour and Materials Scheme prepared by MacCormick Simonian Architects, as modified by any conditions of this consent. 1 All works are to be carried out in accordance with the requirements of the Building Code of Australia. 2 In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, there is to be such a contract in force. 3 Critical stage inspections are to be carried out in accordance with clause 162A of the Environmental Planning & Assessment Regulation 2000. To allow a Principal Certifying Authority or another certifying authority time to carry out critical stage inspections required by the Principal Certifying Authority, the principal contractor for the building site, or the owner-builder must notify the Principal Certifying Authority at least 48 hours before building work is commenced and prior to further work being undertaken. 4 A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: a showing the name, address and telephone number of the Principal Certifying Authority for the work; b showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working house; and c stating that unauthorised entry to the work site is prohibited. Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed. 5 Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the following information: a in the case of work for which a principal contractor is required to be appointed: i the name and licence number of the principal contractor; and ii the name of the insurer by which the work is insured under Part 6 of that Act; and b in the case of work to be done by an owner-builder: i the name of the owner-builder; and ii if the owner-builder is required to hold an owner-builder permit under the Home Building Act , the number of the owner-builder permit. 6 If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under Condition 5 becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the updated information. 7 The hours of construction are restricted to between the hours of 7.00am and 5.00pm Monday - Friday and 7.00am to 1.00pm on Saturdays. No works are to be carried out on Sundays or Public Holidays. Internal building work may be carried out at any time outside these hours, subject to noise emissions from the building or works not being audible at any adjoining boundary. B. Matters to be incorporated into the development and maintained over the life of the development: 1 The recommendation of the risk assessment required to manage the hazards identified in the Geotechnical Report prepared by Jeffrey and Katauskas dated 17 April 2009 are to be incorporated into the construction plans. 2 Canopy tree species are to be as per the approved Landscape Plan or selected from the list pertaining to the vegetation community growing in the locality as per the vegetation mapping in the 'Native Plants for Your Garden' link on Council's website: www.pittwater.nsw.gov.au/environment/plants_and_animals/native_plants. All native trees are to be retained for the life of the development, or for their safe natural life. Trees that die or are removed must be replaced with another locally native canopy tree. The existing landscaping required to be retained together with any additional landscaping required by this Development Consent as depicted on Drawing Nos. LP01 Revision J 'Landscape Concept Plan' and LP02 'Landscape Sections' both dated 06.04.10 and drawn by Spirit Level Designs, is to be maintained for the life of the development. 3 For the life of the development, domestic pet animals are to be kept from entering wildlife habitat areas at all times. Dogs and cats are to be kept in an enclosed area or on a leash such that they cannot enter areas of bushland, unrestrained, on the site or on surrounding properties or reserves. Ferrets and rabbits are to be kept in a locked hutch/run at all times. 4 Any vegetation planted outside approved landscape zones is to be consistent with locally native species growing onsite and/or selected from the list pertaining to the vegetation community growing in the locality as per the vegetation mapping and Native Plants for Your Garden link available from Council's website www.pittwater.nsw.gov.au. The road reserve at the front of the site shall be fully planted with species selected from the above. 5 Over the life of the development all declared noxious weeds are to be removed/controlled in accordance with the Noxious Weeds Act 1993. Environmental weeds are to be removed and controlled. Refer to Pittwater Council website (www.pittwater.nsw.gov.au) for noxious/environmental weed lists. 6 No environmental weeds are to be planted on the site. Refer to Pittwater Council website (www.pittwater.nsw.gov.au) for environmental weed lists. 7 For the life of the development no bush rock is to be removed from site or destroyed without prior approval from the NSW Department of Environment and Climate Change and Pittwater Council. The removal or destruction of bush rock has been listed as a Key Threatening Process by the Threatened Species Conservation Act, 1995. Bush rock located within an approved development footprint must be relocated and reused onsite. 8 Any new fencing is to be made passable to native wildlife. As a guideline, hole dimensions should be 150mm wide x 100mm long at ground level spaced at 6 metre intervals. 9 All natural landscape features, including natural rock outcrops, natural vegetation, soil and watercourses, are to remain undisturbed except where affected by necessary works detailed on approved plans. 10 This approval/consent relates only to the new work nominated on the approved consent plans and does not approve or regularise any existing buildings or structures within the property boundaries or within Council's road reserve. 11 Any solid fuel or wood burning appliances shall comply with Australian Standard AS 4013-1992 or any subsequent amending standard. 12 All plumbing and drainage fixtures are to be concealed and not exposed to public view on buildings over one storey in height. 13 All external glazing is to have a maximum reflectivity index of 25%. 14 The commitments identified in the BASIX Certificate and on the plans or specifications are to be fulfilled and maintained for the life of the development. 15 The sandstone wall which forms part of the boundary between 37 & 39 Bynya Road, and which forms part of the curtilege of 39 Bynya Rd, as listed in Council's Heritage Inventory (Schedule 9, Pittwater LEP 1993) shall be retained in its entirety. Any additional boundary fencing between the two properties shall be erected so that it sits clear of the sandstone wall and is not attached to the sandstone wall at any point or by any means. 16 A privacy screen to a maximum height of 1.2 metres shall be installed along the western face of the balcony accessed via Bedroom 1 on the upper floor. This screen may be constructed of opaque glass or other materials having openings of not greater than 25%. C. Matters to be satisfied prior to the issue of the Construction Certificate: Note : All outstanding matters referred to in this section are to be submitted to the accredited certifier together. Incomplete Construction Certificate applications / details cannot be accepted. 1 Prior to issue of the Construction Certificate, Form 2 of the Geotechnical Risk Management Policy for Pittwater (Appendix 5 of P21 DCP) is to be completed and submitted to the Principal Certifying Authority. 2 Drainage plans including specifications and details showing the site stormwater management are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Such details are to be accompanied by a certificate from (as appropriate) either a Licensed plumber or qualified practising Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a Corporate member and has appropriate experience and competence in the related field, that the stormwater management system complies with the requirements of section 3.1.2 Drainage of the Building Code of Australia Housing Provision and AS/NZS 3500.3.2 - Stormwater Drainage. The details shall include disposal of site stormwater (if the site is in a known slip area the stormwater disposal system must comply with the recommendations of a Civil (Geotechnical) Engineers report). Note: Where Council is the Principal Certifying Authority 3 sets of plans/specifications are to be submitted. 3 The applicant will be required to obtain prior to the issue of a Construction Certificate, a Section 139 Consent for Works on a Public Road Reserve issued by the Council under the provisions of Section 138 of the Roads Act 1993 for the design and construction of any works located on the road reserve. 4 The Access Driveway profile is to be designed and constructed as specified in the Section 139 Consent for Works on the Public Road Reserve. 5 Plans and street Levels provided by Council and a certificate submitted by a chartered Professional Engineer, Architect or Surveyor, confirming to the satisfaction of the Accredited Certifier or Council that the access driveway and internal driveway complies with the requirements of Pittwater 21 DCP Control B6.1 and the Council street levels are to be submitted with the Construction Certificate application. 6 Civil engineering details of the proposed excavation/landfill are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Each plan/sheet is to be signed by a qualified practising Civil Engineer who has corporate membership of the Institute of Engineers Australia (M.I.E) or who is eligible to become a corporate member and has appropriate experience and competence in the related field. 7 A Dilapidation Report is required in relation to the dwellings and associated structures on the adjoining properties 35 Bynya Road and 39 Bynya Road. The report is to be prepared by a structural engineer with corporate membership of the Institute of Engineers Australia (M.I.E) or who is eligible to become a corporate member and has appropriate experience and competence in the related field. 8 Submission of construction plans and specifications and documentation which are consistent with the approved Development Consent plans, the requirements of Building Code of Australia and satisfy all conditions shown in Part B above are to be submitted to the Principal Certifying Authority. Any proposed demolition works shall be carried out in accordance with the requirements of AS2601-1991 The Demolition of Structures . Amongst others, precautions to be taken shall include compliance with the requirements of the WorkCover Authority of New South Wales, including but not limited to: a Protection of site workers and the general public. b Erection of hoardings where appropriate. c Asbestos handling and disposal where applicable. d Any disused service connections shall be capped off. Council is to be given 48 hours written notice of the destination/s of any excavation or demolition material. The disposal of refuse is to be to an approved waste disposal depot. 9 Materials and colour schemes are to be in accordance with the Colour and Materials Scheme prepared by MacCormick Simonian Architects submitted to Council with the application, with the exception of the proposed rendered wall colour, which is too light and should be replaced with a darker tone in accordance with Council's approved colour palette. No white or light coloured roofs are permitted. 10 Plans and details demonstrating that the commitments identified in the BASIX Certificate that apply to the construction certificate or complying development plans and specifications are fulfilled. 11 A black and white photographic survey, in accordance with the guidelines of the Heritage Council, is to be submitted with the Construction Certificate and prior to the demolition of the subject building. The photographic survey is to be submitted in an unbound report format, which is to contain: a A front cover marked with: * the name/location of the property; * the date of the survey; the name of the Company or persons responsible for the survey. b A layout plan of the existing building; identifying rooms and features shown in the photographs. c Photographs of the interior, exterior, and streetscape view of the building, labelled to indicate their location in relation to the layout plan and elevations of the building; and a set of negatives. All photographs are to be mounted in acid-free photographic corner mountings and photographs are to be fixed into acid-free corner mounting. d Where colour is a feature of the building (for example, the building features stained glass, leadlight or polychrome brickwork), additional colour photographs (with negatives) are to be included in the photographic survey report. This record will be lodged in the Local Studies collection of Council's Library. D. Matters to be satisfied prior to the commencement of works and maintained during the works: Note : It is an offence to commence works prior to issue of a Construction Certificate. 1 All excavated material is to be removed from the site. 2 All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. 3 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. 4 Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must preserve and protect the adjoining building from damage and, if necessary, underpin and support the adjoining building in an approved manner. 5 Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site. 6 Adequate measures shall be undertaken to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition. 7 No works are to be carried out in Council's Road Reserve without the written approval of the Council. 8 A Road Opening Permit, issued by Council, must be obtained for any road openings, or excavation within Councils Road Reserve associated with the development on the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site. 9 No skip bins or materials are to be stored on Councils Road Reserve. 10 A clearly legible Site Management Sign is to be erected and maintained throughout the course of the works. The sign is to be centrally located on the main street frontage of the site and is to clearly state in legible lettering the following: - a The builder's name, builder's telephone contact number both during work hours and after hours. b That no works are to be carried out in Council's Road Reserve without the written approval of the Council. c That a Road Opening Permit issued by Council must be obtained for any road openings or excavation within Councils Road Reserve associated with development of the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site. d That no skip bins or materials are to be stored on Councils Road Reserve. e That the contact number for Pittwater Council for permits is 9970 1111. 11 All construction in the public road reserve must be undertaken by a Council authorised contractor. 12 During site excavation, topsoil which is to be used in later landscape works is to be stockpiled on site and stabilised during construction works. Stockpiles are to be stored outside of hazard areas and not located within the dripline of existing trees which are to be retained. 13 A stamped copy of the approved plans is to be kept on the site at all times, during construction. 14 Toilet facilities are to be provided in a location which will not detrimentally affect the amenity of any adjoining residents at or in the vicinity of the work site during the duration of the development. 15 Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must give the owner of the adjoining property at lease seven (7) days written notice of their intention to excavate below the level of the base of the footing and furnish the adjoining property owner with particulars of the proposed work. 16 Demolition works must be carried out in compliance with WorkCovers Short Guide to Working with Asbestos Cement and Australian Standard AS 2601 1991 The Demolition of Structures. The site must be provided with a sign containing the words DANGER ASBESTOS REMOVAL IN PROGRESS measuring not less than 400mm x 300mm and be erected in a prominent visible position on the site. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos cement has been removed from the site and disposed to a lawful waste disposal facility. All asbestos laden waste, including flat, corrugated or profiled asbestos cement sheets must be disposed of at a lawful waste disposal facility. Upon completion of tipping operations the applicant must lodge to the Principal Certifying Authority, all receipts issued by the receiving tip as evidence of proper disposal. E. Matters to be satisfied prior to the issue of Occupation Certificate: Note : Prior to the issue of an Occupation Certificate the principal certifying authority is to ensure that Council's assets, including road, kerb and gutter and drainage facilities adjacent or near to the site have not been damaged as a result of the works. Where such damage has occurred, it is to be repaired to Council's written satisfaction prior to the issue of an Occupation Certificate or suitable arrangements put in place to effect those repairs at a future date to Council's written satisfaction. Should this process not be followed, Council will pursue action against the principal accredited certifier in relation to the recovery of costs to effect such works. Note : It is an offence to occupy the building or part thereof to which this consent relates prior to the issue of an Occupation Certificate. 1 Prior to issue of the Occupation Certificate, Form 3 of the Geotechnical Risk Management Policy (Appendix 5 of P21 DCP) is to be completed and submitted to the Principal Certifying Authority. 2 To ensure that the development achieves the acceptable level of risk over the life of the development, a positive covenant/ restriction on the use of land is to be created prior to the issue of the Occupation Certificate, the terms of which shall be as follows: a. All existing and proposed surface (including roof) and subsurface drains must be subject to ongoing and regular maintenance by the property owners. In addition, such maintenance must also be carried out by a plumber at no more than five yearly intervals; including provision of a written report confirming scope of work completed (with reference to the 'as-built' drawing) and identifying any required remedial measures. b. The existing retaining walls on site must be inspected by a structural engineer at no more than five yearly intervals; including the provision of a written report confirming scope of work completed and identifying any required remedial measures. c. No cut or fill in excess of 0.5m (eg. for landscaping, buried pipes, retaining walls, etc), is to be carried out on site without prior consent from Pittwater Council. d. Where the structural engineer has indicated a design life of less than 100 years then the structure and/or structural elements must be inspected by a structural engineer at the end of their design life; including a written report confirming scope of work completed and identifying the required remedial measures to extend the design life over the remaining 100 year period. 3 Certification is to be provided to the Principal Certifying Authority by a qualified experienced practising Civil Engineer, with corporate membership of the Institute of Engineers Australia (M.I.E.), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, that the drainage/stormwater management system has been installed to the manufacturer's specification (where applicable) and completed in accordance with the engineering plans and specifications required under this consent. 4 A certificate submitted by a Chartered Professional Engineer confirming to the satisfaction of the Principal Certifying Authority that the works in the public road reserve comply with Council requirements is to be provided with the Occupation Certificate application. 5 Prior to issue of an Occupation Certificate photographic evidence of the condition of the street trees and road reserve and area adjoining the site after the completion of all construction, must be submitted to the Principal Certifying Authority showing that no damage has been done and if damage has been done that it has been fully remediated. The photographs shall be accompanied by a statement that no damage has been done (or where damage has been remediated that Council has approved that work). In this regard Council's written agreement that all restorations have been completed satisfactorily must be obtained prior to the issue of any Occupation Certificate. 6 Restoration of all damaged public infrastructure caused as a result of the development to Councils satisfaction. Councils written approval that all restorations have been completed satisfactorily must be obtained must be provided to the Private Certifying Authority with the Occupation Certificate application. 7 A landscape practical completion report is to be prepared by the consultant landscape architect/designer and submitted to the Principal Certifying Authority with the Occupation Certificate application. This report is to certify that all landscape works have been completed in accordance with the landscape working drawings and specifications. 8 An Occupation Certificate application stating that the development complies with the Development Consent, the requirements of the Building Code of Australia and that a Construction Certificate has been issued must be obtained before the building is occupied or on completion of the construction work approved by this Development Consent. 9 The dwelling shall have approved hard-wired smoke alarms installed and maintained over the life of the development. All hard-wired smoke alarms are to be Australian Standard compliant and must be installed and certified by any appropriately qualified electrician prior to the issue of any Occupation Certificate. 10 Certification is to be provided that the commitments identified in the BASIX Certificate have been fulfilled. F. Advice 1 The reasons for the imposition of the conditions is to minimise any adverse impact the development may have and to give effect to the objectives of the Environmental Planning and Assessment Act, 1979. 2 The Rural Fire Service endorses in its entirety the bushfire hazard assessment report conducted by 'Building Code & Bushfire Hazard Solutions" dated November 2008 reference 90185 for the subject development proposal. 3 Electrical insect killing light devices should not be used outside and not installed anywhere that they can attract and kill micro-bats. 4 Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act, 1979 (as amended) and/or the conditions of this Development Consent may result in the serving of penalty notices (on-the-spot fines) under the summary offences provisions of the above legislation or legal action through the Land and Environment Court, again pursuant to the above legislation. 5 It is the Project Managers responsibility to ensure that all of the Component Certificates/certification issued during the course of the project are lodged with the Principal Certifying Authority. Failure to comply with the conditions of approval or lodge the Component Certificates/certification will prevent the Principal Certifying Authority issuing an Occupation Certificate. 6 In accordance with Section 95(2) of the Act, this consent will lapse if the development, the subject of this consent, is not commenced within 5 years after the date from which this consent operates. 7 To ascertain the date upon which the determination becomes effective, refer to Section 83 of the Environmental Planning and Assessment Act, 1979 (as amended). 8 The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Waters sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to the web site at www.sydneywater.com.au then see Building Developing and Plumbing then Quick Check, or telephone 13 20 92. __________________________ J S Murrell Commissioner of the Court ljr DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.