Land and Environment Court of New South Wales CITATION : Willis v Ku-ring-gai Council [2009] NSWLEC 1378 APPLICANT Greg Willis PARTIES : RESPONDENT Ku-ring-gai Council FILE NUMBER(S) : 10511 of 2009 CORAM: Hussey C KEY ISSUES: DEVELOPMENT CONSENT :- Setback, Condition unreasonable LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Ku-ring-gai Planning Scheme Ordinance DATES OF HEARING: 17 November 2009 EX TEMPORE JUDGMENT DATE : 17 November 2009 APPLICANT Mr A Hudson (solicitor) SOLICITOR Wilshire Webb Staunton Beattie Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr S Kondilios (solicitor) SOLICITOR Maddocks Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hussey C 17 November 2009 10511 of 2009 Greg Willis v Ku-ring-gai Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT Background 1 This appeal relates to the setback of a garage for 2 cars + boat space at 83 Merrivale road, Pymble. The garage is to be used in conjunction with a recently developed dwelling house and the garage is located on the eastern side of the lot. It is forward of the dwelling and intrudes into the designated building setback. 2 Council conditionally approved the development application for the garage. Condition 1 required the garage to be set back a further 1.5m from the road boundary. The proposal is for the garage to have an 11.38m setback, whereby the controls stipulate a minimum setback of at least 12m, or compliance with the averaging of neighbouring property setbacks. 3 Consequently, the appeal is against this setback condition, which the applicant considers unreasonable in the circumstances because it restricts access to the garage due to the proximity to the dwelling and also reduces the amenity of the adjacent internal courtyard. Insofar as other contentions were raised about retaining walls adjacent to the northern boundary and protection of trees, these matters were addressed by way of minor amendments, which are acceptable to council. 4 The design features of the garage include its side wall (6.7m wide) facing the street and the orientation of the ridge-line transverse to the street alignment so that the entry doors face the western boundary. This limits to some extent the amount of visibility of the structure. 5 However council maintains that the proposal results in unsatisfactory streetscape impacts. Planning controls 6 The following controls are relevant: o Ku-ring-gai PSO; under which the land is in the Residential A zone and the proposal is permissible with consent. The relevant aims and objectives are contained within Schedule 9 and no challenge was made as to the non-compliance with these provisions. o DCP No 38 – Ku-ring-gai Residential Design Manual; which contains the relevant development controls. 7 Part 4 of the DCP contains the design elements. Relevantly, s4.1 deals with streetscape on the basis of the following objectives: a) To ensure the development is sensitive to the landscape setting. b) To ensure that the appearance of new development is of high visual quality, enhances the streetscape and complements good quality surrounding development… 8 Section 4.1.3 contains the building setback assessment criteria, so that developments are located to: o maintain streetscape character; o ensure the amenity of neighbouring properties is maintained or enhanced; o allow for the provision of landscaping and provide room for additional tree plantings to grow to maturity. o facilitate efficient use of the site. 9 The associated design requirements include: o the minimum and average setback for single storey development on the high side is 12m; o development must be approximately located on the site having regard to the existing setback of adjoining properties, the setback pattern of the street block and council's minimum and average setback requirements. 10 Section 4.5.3 contains the controls for the design of carports and garages. It basically requires the design of garages to be sympathetic existing development on the site, so as not to dominate the site or streetscape. The evidence 11 The merits of the proposal were assessed in a joint statement by Ms R Pearson (council town planner) and Mr I Glendinning (applicant's consulting town planner ). 12 Mr Glendinning says that the proposal is satisfactory because it achieves an average setback of 14m and is consistent with other nearby garage setbacks. He supports the proposal, providing a high level of screening landscaping is introduced into the front setback area, which can be in accordance with detailed landscaping plans approved by council. 13 Against this, Ms Pearson says that the reduced setback is unsatisfactory and will result in excessive visibility of the garage, resulting in adverse impacts on the streetscape and adjoining property. It is also likely to set a precedent for reduced setbacks for other properties. 14 Insofar as she is dissatisfied with the streetscape impacts, she agreed that appropriate landscaping, which was properly maintained could mitigate adverse impacts on the streetscape to a reasonable extent. The design objective for such landscaping being: o to screen the structure. o to minimise bulk and scale. o to add to the streetscape character. 15 Following the view, I am satisfied that the character of this immediate neighbourhood comprises a number of elements, of which the mature trees and shrub landscaping in the front setback area is prominent. However, other structures such as dwellings and garages are also visible. 16 Having viewed the proposed location of the garage from a number of points, I do not consider the increased setback of 1.5m will be discernible in the general streetscape. This is because the proposed garage will be read, from limited viewing positions, within the backdrop of the dwelling and adjoining dwelling. 17 Considering then the context of the site, which includes mature vegetation along the eastern boundary that is to be maintained, I think satisfactory screening exists from any easterly view points. On the western side, there is a relatively high hedge adjacent to No 81, which provide significant screening of the proposal, except when viewed from front on. 18 In the circumstances of this case, I have taken into account that the approved and recently completed dwelling is of single storey and it comfortably complies with the building setback requirements. The garage then has been integrated with this dwelling design and of some importance in my opinion, has its longitudinal axis (ridge-line) perpendicular to the street. This results in the predominant streetscape presentation of the single storey front wall of the garage, with a width of 6.7m. This elevation equates more to the presentation of a single garage frontage, as compared to the more common double garage doors opening directly to the street. 19 Consequently, in my assessment this narrower presentation allows room for comprehensive landscaping to effectively screen the garage, including a larger canopy tree, together with appropriate hedging/screening adjacent to the curved driveway to effectively screen the other western elevation. 20 From the discussion by the planners, I am satisfied that appropriate local species can identified and planted, which effectively screen the garage, complimenting the new dwelling and positively contributing to the streetscape. This would address the specific concerns of Ms Pearson. 21 I am therefore satisfied that the objectives of the DCP would be achieved by the provision of a high standard of landscaping, so as to allow the discretion in the DCP for the setback requirements to be relaxed in this case. As noted, I give significant weight to the overall setback of the single storey dwelling and the integration of transverse main axis of the garage to minimise streetscape impacts. Therefore this application merits conditional consent. Court orders 22 The Court orders: 1. The appeal is upheld. 2. Development consent is granted to DA0303/09 for the demolition of an existing garage and construction of new double garage + boat space, retaining wall and landscaping at 83 Merrivale Road, Pymble NSW subject to the conditions in Annexure A. 3. The exhibits be returned except for A and 2. ___________________ R Hussey Commissioner of the Court ljr Annexure 'A' Conditions of Consent WILLIS v KU-RING-GAI COUNCIL Evidence required to satisfy the following condition must be submitted to Council within twelve (12) months of the date of this consent. This consent does not operate until the following deferred commencement condition has been satisfied. 1. A landscape plan prepared by a landscape architect is to be submitted and approved by the Council. Such landscape plan to:- a. provide for substantial screening of the garage, b. use and location of species to reduce visual bulk, and c. include species generally in accordance with appendix D of DCP 38; be suitable for the site conditions and location on site, capable of obtaining a height of 3.0 - 4.0 metres and be maintained at a height of no greater than 4.0 metres, and d. be consistent with the requirements of condition 2(a) of Schedule B of this Consent. Upon receipt of written notification from Council that the abovementioned condition has been satisfied, the following conditions will apply: SCHEDULE B 1. Approved architectural plans and documentation (new development) The development must be carried out in accordance with the following plans listed below and endorsed with Council's stamp, Plan numbers Drawn by Dated 0985-09-DAO1 Waldmann + Parker Revision A dated 8/10/09 (as approved by the Land & Environment Court in appeal No. 10511 of 2009) Sheets 1, 2 and 3 Reason: To ensure that the development is in accordance with the determination. 2. Rural Fire Services The Service provides the following recommended conditions: Asset Protection Zones The intent of measures is to provide sufficient space and maintain reduced fuel loads so as to ensure radiant heat levels of buildings are below critical limits and to prevent direct flame contact with a building. 1. At the commencement of building works and in perpetuity the entire property shall be managed as an inner protection area (IPA) as outlined within section 4.1.3 and Appendix 5 of 'Planning for Bush Fire Protection 2006' and the NSW Rural Fire Service's document 'Standards for asset protection zones'. Design and Construction The intent of measures is that buildings are designed and constructed to withstand the potential impacts of bush fire attack. New construction shall comply with Australian Standard AS3959-1999 'Construction of buildings in bush fire-prone areas' Level 1. Landscaping 2. (a) Landscaping to the site is to comply with the principles of Appendix 5 of 'Planning for Bush Fire Protection 2006'. In this regard the following landscaping principles are to be incorporated into the development: - Suitable impervious areas being provided immediately surrounding the building such as courtyards, paths and driveways; - Grassed areas/mowed lawns/ or ground cover plantings being provided in close proximity to the building; - Restrict planting in the immediate vicinity of the building which may over time and if not properly maintained come in contact with the building; - Maximum tree cover should be less than 30%, and maximum shrub c over less than 20%; - Planting should not provide a continuous canopy to the building (i.e. trees or shrubs should be isolated or located in small clusters); - When considering landscape species consideration needs to be given to estimated size of the plant at maturity; - Avoid species with rough fibrous bark, or which retain/shed bark in long strips or retain dead material in their canopies; - Use smooth bark species of trees species which generally do not carry a fire up the bark into the crown; - Avoid planting of deciduous species that may increase fuel at surface/ ground level (i.e. leaf litter); - Avoid climbing species to walls and pergolas; - Locate combustible materials such as woodchips/mulch, flammable fuel stores away from the building; - Locate combustible structures such as garden sheds, pergolas and materials such timber garden furniture way from the building; and - Use of low flammability vegetation species. (b) The approved landscaping implemented in accordance with the approved plan from the deferred commencement condition and condition 44 must be maintained at all times for the life of this consent. Reason: Bushfire safety and maintenance of landscaping 3. Inconsistency between documents In the event of any inconsistency between conditions of this consent and the drawings/documents referred to above, the conditions of this consent prevail. Reason: To ensure that the development is in accordance with the determination. Conditions to be satisfied prior to demolition, excavation or construction: 4. Road opening permit The opening of any footway, roadway, road shoulder or any part of the road reserve shall not be carried out without a road opening permit being obtained from Council (upon payment of the required fee) beforehand. Reason: Statutory requirement (Roads Act 1993 Section 138) and to maintain the integrity of Council's infrastructure. 5. Notice of commencement At least 48 hours prior to the commencement of any development (including demolition, excavation, shoring or underpinning works), a notice of commencement of building or subdivision work form and appointment of the principal certifying authority form shall be submitted to Council. Reason: Statutory requirement. 6. Notification of builder's details Prior to the commencement of any development or excavation works, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder intending to carry out the approved works. Reason: Statutory requirement. 7. Sediment controls Prior to any work commencing on site, sediment and erosion control measures shall be installed along the contour immediately downslope of any future disturbed areas. The form of the sediment controls to be installed on the site shall be determined by reference to the 'NSW Department of Housing manual 'Managing Urban Stormwater: Soils and Construction'. The erosion controls shall be maintained in an operational condition until the development activities have been completed and the site fully stabilised. Sediment shall be removed from the sediment controls following each heavy or prolonged rainfall period. Reason: To preserve and enhance the natural environment. 8. Tree protection fencing To preserve the following tree/s, no work shall commence until the area beneath their canopy is fenced off at the specified radius from the trunk/s to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site. Schedule Tree/locationRadius in metres Eucalyptus saligna (Sydney Bluegum) Merrivale Rd nature strip Cuppressus sempervirens (Monterey Cypress) Adjacent to northwest site corner in neighbouring property8.0m 5.0m Reason: To protect existing trees during the construction phase. 9. Tree protective fencing type galvanised mesh The tree protection fencing shall be constructed of galvanised pipe at 2.4 metre spacings and connected by securely attached chain mesh fencing to a minimum of 1.8 metres in height prior to work commencing. Reason: To protect existing trees during construction phase. 10. Tree protection signage Prior to works commencing, tree protection signage is to be attached to each tree protection zone, displayed in a prominent position and the sign repeated at 10 metres intervals or closer where the fence changes direction. Each sign shall contain in a clearly legible form, the following information: - tree protection zone - this fence has been installed to prevent damage to the trees and their growing environment both above and below ground and access is restricted - any encroachment not previously approved within the tree protection zone shall be the subject of an arborist's report - the arborist's report shall provide proof that no other alternative is available - the arborist's report shall be submitted to the Principal Certifying Authority for further consultation with Council - The name, address, and telephone number of the developer. Reason: To protect existing trees during the construction phase. 11. Trunk protection To preserve the following tree/s, no work shall commence until the trunk/s are protected by the placement of 2.0 metres lengths of 50 x 100mm hardwood timbers spaced at 150mm centres and secured by 2mm wire at 300mm wide spacing over suitable protective padding material. The trunk protection shall be maintained intact until the completion of all work on site. Any damage to the tree/s shall be treated immediately by an experienced horticulturist/arborist, with minimum qualification of horticulture certificate or tree surgery certificate and a report detailing the works carried out shall be submitted to the Principal Certifying Authority: Schedule Tree/Location Archontophoenix cunninghamiana (Bangalow Palm) x 2 Adjacent to northern side boundary Reason: To protect existing trees. 12. Tree fencing inspection Upon installation of the required tree protection measures, an inspection of the site by the Principal Certifying Authority is required to verify that tree protection measures comply with all relevant conditions. Reason: To protect existing trees during the construction phase. Conditions to be satisfied prior to the issue of the construction certificate: 13. Amendments to engineering plans Prior to the issue of a Construction Certificate, the Certifying Authority shall be satisfied that the engineering plan(s), listed below have been amended in accordance with the requirements of this condition as well as other conditions of this consent: Plan no. Drawn by Dated 392294 ACOR Appleyard 5/2009 The above engineering plan(s) shall be amended as follows: The plans updated in accordance with the plans approved by Council (no alterations and additions to the existing dwelling). The above amendments are required to ensure compliance with the approved plans. Reason: To ensure that the development is in accordance with the determination. 14. Long service levy In accordance with Section 109F(i) of the Environmental Planning and Assessment Act a Construction Certificate shall not be issued until any long service levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or where such levy is payable by instalments, the first instalment of the levy) has been paid. Council is authorised to accept payment. Where payment has been made elsewhere, proof of payment is to be provided to Council. Reason: Statutory requirement. 15. Builder's indemnity insurance The applicant, builder, developer or person who does the work on this development, must arrange builder's indemnity insurance and submit the certificate of insurance in accordance with the requirements of Part 6 of the Home Building Act 1989 to the Certifying Authority for endorsement of the plans accompanying the Construction Certificate. It is the responsibility of the applicant, builder or developer to arrange the builder's indemnity insurance for residential building work over the value of $12,000. The builder's indemnity insurance does not apply to commercial or industrial building work or to residential work valued at less than $12,000, nor to work undertaken by persons holding an owner/builder's permit issued by the Department of Fair Trading (unless the owner/builder's property is sold within 7 years of the commencement of the work). Reason: Statutory requirement. 16. External finishes and materials (new building) Prior to the issue of the Construction Certificate, the Certifying Authority shall be satisfied that the external finishes of the building are consistent with the character of the streetscape. The materials are to be complimentary to the approved architectural appearance of the development. Nothing in this condition is to be construed as permitting the replacement of previously submitted materials with inferior or inadequate materials or finishes. Note: Details of the colour, finish and substance of all external materials, including schedules and a sample board of materials and colours, are to be submitted. Reason: To protect the streetscape and the integrity of the approved development. 17. Stormwater details (alts and additions where rainwater tanks required) Prior to issue of the Construction Certificate, the applicant must submit, for approval by the Principal Certifying Authority, details in relation to stormwater management and disposal for the approved development. The following must be included: (i) Schedule of new drainage system components required to comply with AS3500.3 – (2003) Plumbing Code. This would typically nominate guttering and downpipe sizes and specifications, pipe and pit sizes for new drainage lines and show the location of these by way of sketch on the architectural plans issued for construction purposes. (ii) A plan showing the location(s) of the required rainwater storage tank(s) (of minimum volume 2m 3 ) with manufacturer details and specifications provided for proprietary products. The design and siting of rainwater tanks shall be in accordance with Ku-ring-gai Water Management Development Control Plan No. 47, Appendix 6. For every 5000 litres of tank storage provided, at least 100m 2 of roof area must drain to the rainwater tank system so that it has an adequate rainwater supply. (iii) The specifications for any pumping facilities so that retained water may be used for household purposes as required. (iv) A sketch plan showing the location of any new connection points to the public drainage system where proposed (e.g. at kerb, table drain, in ground pits or pipes) for Council records. The details may be prepared by either a licensed plumber with experience in the installation of domestic stormwater systems or a qualified civil/hydraulic engineer. The scope of detail required shall be at the discretion of the Principal Certifying Authority having regard to ensuring that the new stormwater disposal and management systems are installed in accordance with the relevant plumbing codes, guidelines and the Building Code of Australia. Reason: To ensure that stormwater disposal and management systems are installed in accordance with the relevant plumbing codes, guidelines and the Building Code of Australia. 18. Stormwater retention Prior to the issue of a Construction Certificate, the Principal Certifying Authority is to be satisfied that a mandatory rainwater retention and re-use system, comprising storage tanks and ancillary plumbing is provided. The minimum total storage volume of the rainwater tank system, and the prescribed re-use of the water on site must satisfy all relevant BASIX commitments and the requirements specified in Chapter 6 of Ku-ring-gai Water Management Development Control Plan 47. Reason: To protect the environment. 19. Deleted 20. Deleted 21. Driveway crossing levels Prior to issue of the Construction Certificate, driveway and associated footpath levels for any new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Ku-ring-gai Council. Such levels are only able to be issued by Council under the Roads Act 1993. All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings". Specifications are issued with alignment levels after completing the necessary application form at Customer Services and payment of the assessment fee. When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant development application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment. This development consent is for works wholly within the property. Development consent does not imply approval of footpath or driveway levels, materials or location within the road reserve, regardless of whether this information is shown on the development application plans. The grading of such footpaths or driveways outside the property shall comply with Council's standard requirements. The suitability of the grade of such paths or driveways inside the property is the sole responsibility of the applicant and the required alignment levels fixed by Council may impact upon these levels. The construction of footpaths and driveways outside the property in materials other than those approved by Council is not permitted. Reason: To provide suitable vehicular access without disruption to pedestrian and vehicular traffic. 22. Drainage of paved areas All new exposed impervious areas graded towards adjacent property and/or habitable areas are to be drained via the main drainage system. This may require the installation of suitable inlets pits, cut-off structures (e.g. kerb), and/or barriers that direct such runoff to the formal drainage system. Details of such measures shall be shown on the Construction Certificate drawings, to the satisfaction of the Certifying Authority. Reason: To control surface run off and protect the environment. 23. Vehicular access and garaging Driveways and vehicular access ramps must be designed not to scrape the underside of cars. In all respects, the proposed vehicle access and accommodation arrangements must be designed and constructed to comply with Australian Standard 2890.1 – 2004 "Off-Street car parking". Details are to be provided to and approved by the Certifying Authority prior to the issue of the Construction Certificate. Reason: To ensure that parking spaces are in accordance with the approved development. 24. Utility provider requirements Prior to issue of the Construction Certificate, the applicant must make contact with all relevant utility providers whose services will be impacted upon by the development. A written copy of the requirements of each provider, as determined necessary by the Certifying Authority, must be obtained. All utility services or appropriate conduits for the same must be provided by the developer in accordance with the specifications of the utility providers. Reason: To ensure compliance with the requirements of relevant utility providers. Conditions to be satisfied prior to the issue of the construction certificate or prior to demolition, excavation or construction (whichever comes first): 25. Infrastructure restorations fee To ensure that damage to Council Property as a result of construction activity is rectified in a timely matter: a) All work or activity taken in furtherance of the development the subject of this approval must be undertaken in a manner to avoid damage to Council Property and must not jeopardise the safety of any person using or occupying the adjacent public areas. b) The applicant, builder, developer or any person acting in reliance on this approval shall be responsible for making good any damage to Council Property, and for the removal from Council Property of any waste bin, building materials, sediment, silt, or any other material or article. c) The Infrastructure Restoration Fee must be paid to the Council by the applicant prior to both the issue of the Construction Certificate and the commencement of any earthworks or construction. d) In consideration of payment of the Infrastructure Restorations Fee, Council will undertake such inspections of Council Property as Council considers necessary and also undertake, on behalf of the applicant, such restoration work to Council Property, if any, that Council considers necessary as a consequence of the development. The provision of such restoration work by the Council does not absolve any person of the responsibilities contained in (a) to (b) above. Restoration work to be undertaken by the Council referred to in this condition is limited to work that can be undertaken by Council at a cost of not more than the Infrastructure Restorations Fee payable pursuant to this condition. e) In this condition: "Council Property" includes any road, footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, letter bins, trees, shrubs, lawns, mounds, bushland, and similar structures or features on any road or public road within the meaning of the Local Government Act 1993 (NSW) or any public place; and "Infrastructure Restoration Fee" means the Infrastructure Restorations Fee calculated in accordance with the Schedule of Fees & Charges adopted by Council as at the date of payment and the cost of any inspections required by the Council of Council Property associated with this condition. Reason : To maintain public infrastructure. Conditions to be satisfied during the demolition, excavation and construction phases: 26. Approved plans to be on site A copy of all approved and certified plans, specifications and documents incorporating conditions of consent and certification (including the Construction Certificate if required for the work) shall be kept on site at all times during the demolition, excavation and construction phases and must be readily available to any officer of Council or the Principal Certifying Authority. Reason: To ensure that the development is in accordance with the determination. 27. Statement of compliance with Australian Standards The demolition work shall comply with the provisions of Australian Standard AS2601: 2001 The Demolition of Structures . The work plans required by AS2601: 2001 shall be accompanied by a written statement from a suitably qualified person that the proposal contained in the work plan comply with the safety requirements of the Standard. The work plan and the statement of compliance shall be submitted to the satisfaction of the Principal Certifying Authority prior to the commencement of any works. Reason: To ensure compliance with the Australian Standards. 28. Demolition, excavation and construction work hours Demolition, excavation, construction work and deliveries of building material and equipment must not take place outside the hours of 7.00am to 5.00pm Monday to Friday and 8.00am to 12.00pm Saturday. No work and no deliveries are to take place on Sundays and public holidays. Excavation or removal of any materials using machinery of any kind, including compressors a nd jack hammers, must be limited to between 7.30am and 5.00pm Monday to Friday, with a respite break of 45 minutes between 12 noon and 1.00pm. Where it is necessary for works to occur outside of these hours (i.e. concrete pours and standing of plant), approval for such will be subject to the issue of an "outside of hours works permit" from Council as well as notification of the surrounding properties likely to be affected by the proposed works. Note: Failure to obtain a permit for work outside of the approved hours will result in on the spot fines being issued. Reason: To ensure reasonable standards of amenity for occupants of neighbouring properties. 29. Site notice A site notice shall be erected on the site prior to any work commencing and shall be displayed throughout the works period. The site notice must: be prominently displayed at the boundaries of the site for the purposes of informing the public that unauthorised entry to the site is not permitted display project details including, but not limited to the details of the builder, Principal Certifying Authority and structural engineer be durable and weatherproof display the approved hours of work, the name of the site/project manager, the responsible managing company (if any), its address and 24 hour contact phone number for any inquiries, including construction/noise complaint are to be displayed on the site notice be mounted at eye level on the perimeter hoardings/fencing and is to state that unauthorised entry to the site is not permitted Reason: To ensure public safety and public information. 30. Dust control During excavation, demolition and construction, adequate measures shall be taken to prevent dust from affecting the amenity of the neighbourhood. The following measures must be adopted: physical barriers shall be erected at right angles to the prevailing wind direction or shall be placed around or over dust sources to prevent wind or activity from generating dust earthworks and scheduling activities shall be managed to coincide with the next stage of development to minimise the amount of time the site is left cut or exposed all materials shall be stored or stockpiled at the best locations the ground surface should be dampened slightly to prevent dust from becoming airborne but should not be wet to the extent that run-off occurs all vehicles carrying spoil or rubble to or from the site shall at all times be covered to prevent the escape of dust all equipment wheels shall be washed before exiting the site using manual or automated sprayers and drive-through washing bays gates shall be closed between vehicle movements and shall be fitted with shade cloth cleaning of footpaths and roadways shall be carried out daily Reason: To protect the environment and amenity of surrounding properties. 31. Toilet facilities During excavation, demolition and construction phases, toilet facilities are to be provided, on the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Reason: Statutory requirement. 32. Road reserve safety All public footways and roadways fronting and adjacent to the site must be maintained in a safe condition at all times during the course of the development works. Construction materials must not be stored in the road reserve. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to any public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where pedestrian circulation is diverted on to the roadway or verge areas, clear directional signage and protective barricades must be installed in accordance with AS1742-3 (2002) "Traffic Control Devices for Work on Roads". If pedestrian circulation is not satisfactorily maintained across the site frontage, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work. Reason: To ensure safe public footways and roadways during construction. 33. Services Where required, the adjustment or inclusion of any new utility service facilities must be carried out by the applicant and in accordance with the requirements of the relevant utility authority. These works shall be at no cost to Council. It is the applicants full responsibility to make contact with the relevant utility authorities to ascertain the impacts of the proposal upon utility services (including water, phone, gas and the like). Council accepts no responsibility for any matter arising from its approval to this application involving any influence upon utility services provided by another authority. Reason: Provision of utility services. 34. Temporary disposal of stormwater runoff During construction, stormwater runoff must be disposed of in a controlled manner that is compatible with the erosion and sediment controls on the site. Immediately upon completion of any impervious areas on the site (including roofs, driveways, paving) and where the final drainage system is incomplete, the necessary temporary drainage systems must be installed to manage and control runoff as far as the approved point of stormwater discharge. Such measures shall be to the satisfaction of the Principal Certifying Authority. Reason: To preserve and enhance the natural environment. 35. Erosion control Temporary sediment and erosion control and measures are to be installed prior to the commencement of any works on the site. These measures must be maintained in working order during construction works up to completion. All sediment traps must be cleared on a regular basis and after each major storm and/or as directed by the Principal Certifying Authority and Council officers. Reason: To protect the environment from erosion and sedimentation. 36. Drainage to street Stormwater runoff from all new impervious areas and subsoil drainage systems shall be piped to the street drainage system and generally in accordance (with required amendments) with the submitted concept stormwater drainage plans by ACOR Appleyard (refer Job No. 392294, Drawing No. C2, Issue 4, dated 5/2009). New drainage line connections to the street drainage system shall conform and comply with the requirements of Sections 5.3 and 5.4 of Ku-ring-gai Water Management Development Control Plan No. 47. Reason: To protect the environment. 37. Grated drain at garage A 200mm wide grated channel/trench drain, with a heavy-duty removable galvanised grate is to be provided in front of the garage door to collect driveway runoff. The channel drain shall be connected to the main drainage system and must have an outlet of minimum diameter 150mm to prevent blockage by silt and debris. Reason: Stormwater control. 38. Treatment of tree roots If tree roots are required to be severed for the purposes of constructing the approved works, they shall be cut cleanly by hand, by an experienced arborist/horticulturist with a minimum qualification of horticulture certificate or tree surgery certificate Reason: To protect existing trees. 39. Cutting of tree roots No tree roots of 30mm or greater in diameter located within the specified radius of the trunk(s) of the following, tree(s) shall be severed or injured in the process of any works during the construction period. Schedule Tree/locationRadius from trunk Eucalyptus saligna (Sydney Bluegum) Merrivale Rd nature strip Cuppressus sempervirens (Monterey Cypress) Adjacent to north-west site corner in neighbouring property8.0m 5.0m Reason: To protect existing trees. 40. Hand excavation All excavation within the specified radius of the trunk(s) of the following tree(s) shall be hand dug: Schedule Tree/locationRadius from trunk Eucalyptu s saligna (Sydney Bluegum) Merrivale Rd nature strip Cuppressus sempervirens (Monterey Cypress) Adjacent to northwest site corner in neighbouring property Archontophoenix cunninghamiana (Bangalow Palm) x 2 Adjacent to northern side boundary8.0m 5.0m 2.0m Reason: To protect existing trees. 41. No storage of materials beneath trees No activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order at any time. Reason: To protect existing trees. 42. Removal of refuse All builders' refuse, spoil and/or material unsuitable for use in landscape areas shall be removed from the site on completion of the building works. Reason: To protect the environment. 43. Prescribed conditions The applicant shall comply with any relevant prescribed conditions of development consent under clause 98 of the Environmental Planning and Assessment Regulation. For the purposes of section 80A (11) of the Environmental Planning and Assessment Act, the following conditions are prescribed in relation to a development consent for development that involves any building work: The work must be carried out in accordance with the requirements of the Building Code of Australia. 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, that such a contract of insurance is in force before any works commence. Reason: Statutory requirement. Conditions to be satisfied prior to the issue of an Occupation Certificate: 44. Completion of landscape works Prior to the release of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that all landscape works, including the removal of all noxious and/or environmental weed species, have been undertaken in accordance with the approved plan(s) and conditions of consent. Reason: To ensure that the landscape works are consistent with the development consent. 45. Certification of drainage works (alts/adds) Prior to issue of the Occupation Certificate, the Principal Certifying Authority is to be satisfied that: the components of the new drainage system have been installed by a licensed contractor in accordance with the National Plumbing and Drainage Code AS3500.3 (2003) and the Building Code of Australia the stormwater drainage works have been completed in accordance with the approved Construction Certificate drainage plans and Ku-ring-gai Water Management DCP 47 Note: Evidence from the plumbing contractor or a qualified civil/hydraulic engineer confirming compliance with this control is to be provided to Council prior to the issue of an Occupation Certificate. Reason: To protect the environment. 46. Reinstatement of redundant crossings and completion of infrastructure works Prior to issue of the Occupation Certificate, the Principal Certifying Authority must be satisfied that the following works in the road reserve have been completed: new concrete driveway crossing in accordance with levels and specifications issued by Council removal of all redundant driveway crossings and kerb laybacks (or sections thereof) and reinstatement of these areas to footpath, turfed verge and upright kerb and gutter (reinstatement works to match surrounding adjacent infrastructure with respect to integration of levels and materials) full repair and resealing of any road surface damaged during construction full replacement of damaged sections of grass verge with native variety to match existing All works must be completed in accordance with the General Specification for the Construction of Road and Drainage Works in Ku-ring-gai Council, dated November 2004. The Occupation Certificate must not be issued until all damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) is fully repaired to the satisfaction of Council. Repair works shall be at no cost to Council. Reason: To protect the streetscape. _______________________ R. Hussey 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.