Land and Environment Court of New South Wales CITATION : Soren Holm & Anor v Hornsby Shire Council [2009] NSWLEC 1074 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Soren Holm & Anor PARTIES : RESPONDENT Hornsby Shire Council FILE NUMBER(S) : 10035 of 2009, 10656 of 2008, 10814 of 2008, 10815 ; of 2008 CORAM: Bly C KEY ISSUES: BUILDING CERTIFICATE - DEVELOPMENT APPLICATION - MODIFICATION APPLICATION :- Demolition Order LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Hornsby Shire Local Environmental Plan DATES OF HEARING: 09/03/2009 and 10/03/2009 DATE OF JUDGMENT: 10 March 2009 APPLICANT Ms S. Duggan, barrister Instructed by: Hones La Hood LEGAL REPRESENTATIVES: RESPONDENT Mr P. Clay, barrister Instructed by Storey and Gough JUDGMENT: - 19 - THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Bly C 10 March 2009 10035 of 2009 Soren Holm & Anor v Hornsby Shire 10656 of 2008 Council 10814 of 2008 10815 of 2008 JUDGMENT 1 These four appeals involve lot 1 DP 556129 being 1431-1433 Old Northern Road, Glenorie. The 2.1 ha property is presently used for residential, agricultural, home industry and associated uses. The appeals are as follows: · 10815 of 2008: development application for a new front fence, internal alterations to certain existing buildings, installation of underground rainwater tanks, installation of solar panels, use of buildings and the demolition/removal of buildings. · 10035 of 2009: modification application to amend existing consent for the conversion of a rural workers dwelling into staff amenities for workers associated with agricultural activities. · 10814 of 2008: application for building certificate for three existing buildings. · 10656 of 2008: demolition order for several existing unauthorised buildings. 2 The site is zoned Rural BA (Small Holdings-Agricultural Landscapes) under the Hornsby Shire Local Environmental Plan and in this zone the existing land uses and the proposed works are either permissible or permissible with development consent. 3 The essential issues in dispute in relation to these matters involve · Whether the design of the proposed front fence and existing gate structure would be appropriate in this rural locality. · Whether size, appearance and character of several of the existing large sheds on the site would be appropriate in this rural locality. · Whether the arrangements for on-site treatment and disposal of effluent are satisfactory. · Whether the industrial use complies with the definition of home industry in the LEP. · Whether there would be unreasonable noise impacts on neighbouring properties. · Whether the arrangements for stormwater through and within the site satisfactory taking into account the existence of a stormwater easement in favour of the council. 4 When the hearing began on-site I had the opportunity of hearing from the parties' experts (waste water, stormwater, geotechnical acoustic and town planning). I also have the opportunity of reading their reports and other materials on the Court's files including the various statement of facts and contentions and statements of environmental effects. 5 I also heard from a neighbour/objector who explained his concerns in relation to stormwater discharges that might affect his property as well as dust and noise emissions. 6 Following the site inspection the applicant made a number of modifications to the development and now agrees to a number of conditions including deferred commencement conditions such that the parties have now entered into consent orders. 7 Taking into account the evidence of the experts and having inspected the site in the company of the advocates, the experts and the concerned neighbour and having inspected the locality with the agreement of the parties and there being no remaining matters in dispute I have decided to make the orders as sought. Orders 8 For matter 10815 of 2008, by consent the Court orders that: 1. The appeal be upheld; 2. Development consent is granted for: a new front fence; internal alterations to buildings 14 and 4; installation of underground rainwater tanks; installation of solar panels; use of buildings; and demolition/removal of buildings. on Lot 1 DP 556129 being Numbers 1431 -1433 Old Northern Road Glenorie subject to the conditions in annexure A hereto. 3. The Applicant is to pay the Council's costs of proceedings 10034 and 10035 of 2009, 10814 and 10815 of 2008 and 10656 of 2008 agreed in the amount $8,000 within 3 months of the date of this order. 4. Exhibit A is retained. 9 For matter 10035 of 2009, by consent the Court orders that: 1. The appeal be upheld; 2. Development consent DA 484/88 be modified in accordance with s.96(1A) of the Environmental Planning and Assessment Act in accordance with the conditions in annexure A hereto. 10 For matter 10656 of 2008 by consent the Court orders that: 1. The Appeal be upheld; 2. The order issued by the Respondent and directed to the Applicant dated 25 June 2008 is hereby revoked. 3. The Court notes that the proceedings were resolved on the basis of the Applicant agreeing to undertake certain work in connection with the subject matter of the order. 11 For matter 10814 of 2008, by consent the Court orders that: 1. The appeal be upheld; 2. The Council is directed to issue a building certificate for the buildings identified on drawing number 942-08-DA01 sheet 1 amendment C March 09 as buildings 4, 7 and 14 subject to completion of the following works within a period of 9 months : a. demolition of building 12 including the slab; b. the internal works to building 1 as identified on drawing number 942-08-DA01 amendment A 4 March 09 sheet 1; c. the demolition of the rear portion of building 14 including the slab and the carrying out of the internal works as shown on drawing number 942-08-DA01 amendment C March 09 sheet 2; d. the internal works to building 4 as identified on drawing number 942-08-DA01 amendment B March 09 sheet 3; e. the completion of the drainage works as identified on drawing number 4638-CATCH_A (sheets 2 and 3); f. the Positive Covenant created pursuant to s88B Conveyancing Act by the registration of Deposited Plan 647739 to be amended at the cost of the Applicant as follows: i. by adding to sub-clause (b) on sheet 3 of 6 sheets the words: It is also imposed because the proprietor of the lot burdened has constructed a pipe within the Easement site without the consent of the Authority benefited ("the Pipe"). ii. by adding sub-clauses (i) and (j): (i) The Owner will at the Owner's cost regularly inspect and to maintain the Pipe in good and sound condition capable of conveying the water flowing into it along the Easement site. Without limiting the generality of the foregoing if the Pipe is damaged the Owner will forthwith repair the damage to the reasonable satisfaction of the Authority benefited. (j) In the event of the Pipe failing for any reason whatsoever the Owner shall indemnify and keep indemnified the Authority burdened against any liability for damage as a result thereof. The parties shall do all things necessary to give effect to this condition. ______________________ T A Bly Commissioner of the Court Annexure A CONDITIONS OF CONSENT Hornsby Shire Council ats Holm Land & Environment Court Proceedings No. 10815 of 2008 Lot 1 DP 556129 (Nos. 1431-1433) Old Northern Road, Glenorie SCHEDULE A A1 Deferred commencement condition Submission of a detailed landscape plan generally in accordance with the plan prepared by Iscape (Drawing number 57.08/132) dated June 2008 (amended March 2009) providing a detailed planting schedule identifying the location of planting and species within the additional screen planting area identified at the front of the property for the approval of the Council. This condition shall be complied with within 12 months at which time the consent shall become operational. Approved Plans 1. The development must be carried out in accordance with the following plans and documentation listed below, except where amended by other conditions of this consent: Plan No. Drawn by Dated Plan Ref: 942-08-DA01 Sheet 1, Site Plan & Gate, Plans & Elevations Waldmann + Parker Building Design Consultants March 2008 (Amendment C, March 09) Plan Ref: 942-08-DA01 Sheet 2, Garage/Storage Plan (Building 14), Elevations & Section Waldmann + Parker Building Design Consultants March 2008 (Amendment C, March 09) Plan Ref: 942-08-DA01 Sheet 3, Metal Shed Plan (Building 4), elevations & section Waldmann + Parker Building Design Consultants March 2008 (Amendment B, March 09 ) Plan Ref: 942-08-DA01 Sheet 4, Metal Shed Plan (Building 7), elevations & section Waldmann + Parker Building Design Consultants March 2008 Landscape Plan iScape Landscape Architecture June 2008 (Amendment A March 09) Plan of Detail & Levels over Lot 1 in DP 556129 Drg No. 4638-DET1 Mepstead & Associates, Surveyors 13 March 2008 Plan Showing Buildings on Lot 1 in DP 556129 Drg No. 4638-BUILD Mepstead & Associates, Surveyors 14 March 2008 Plans on Site 2. A copy of all approved plans, specification and documents (including the construction certificate if required for the work incorporating certification of conditions of approval) shall be kept on site at all times so as to be readily available for perusal by any officer of Council or the Principle Council/Accredited Certifier. Reason: To ensure that the form of the development undertaken is in accordance with the determination of Council, Public Information and to ensure ongoing compliance. Use 3. The use of the designated area within Building 4 identified for use as the Home Industry shall comply with the definition of 'home industry' contained within Hornsby Shire Local Environmental Plan 1994 being: "a light industry carried on in a building where: (a) the industry is undertaken by one or more of the permanent residents of the dwelling; and (b) the industry does not involve the employment of more than 3 persons other than those residents; and (c) the industry does not interfere in any way with the amenity of adjoining properties or the locality in which the dwelling is situated; and (d) the industry does not occupy an area of more than 200 square metres; and (e) the industry does not involve the exhibition of any notice, advertisement or sign (other than a notice or sign which would fit within a rectangular figure 1.2 metres in length and 0.6 metres in height and exhibited on that dwelling or land to indicate the name and occupation of the residents)" 3a No storage of materials associated with the home industry or the undertaking of any work shall occur outside of the 200 square metre area identified on the approved plans for use as the home industry. Hours of use 4. The hours of operation of the Home Industry are to be restricted to those times listed below: Weekdays 7.00am 6.00pm Saturday 7.00am 1.00pm with no noise generation activities outside of these hours. Use of Materials 5. The external walls of Building 14 shall be repainted to a colour which is consistent with the dominant colours of the rural area, such as grey, green or brown or the like. 6. The finished surface materials, including colours and texture of any building and/or hard paved areas, shall blend with the surrounding environment and shall be non-glare. Completion of Landscaping 7. A certificate must be provided by a practicing landscape architect, horticulturalist or person with similar qualifications and experience certifying that all required landscaping works have been satisfactorily completed in accordance with the approved landscape plans. Note: Advice on suitable species for landscaping can be obtained from Council's planting guide 'Indigenous Plants for the Bushland Shire', available at www.hornsby.nsw.gov.au Waste Management 9. All materials associated with the home industry shall be stored within the area identified within building 4 on the approved plans to be occupied by the home industry. Signs 10. No advertisement shall be erected on or in conjunction with the proposed development without prior development consent unless the advertisement complies with part (e) of the definition of "home industry" within Hornsby Shire Local Environmental Plan 1994 contained within Condition 3 above. Site Works 11. No site works, including the removal of vegetation or any demolition works, shall be commenced prior to the issue of a construction certificate. Principal Certifying Authority 12. Before any construction works commence, you are required to appoint a Principal Certifying Authority as required by section 81A of the Environmental Planning & Assessment Act, 1979. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications. Notifying Council of Commencement of Works 13. It is a requirement of the Environmental Planning and Assessment Act, section 81A(2)(c) that you notify Hornsby Council at least two (2) days prior to the intention to commence works. Where works are to be undertaken in a public place, such notice must be accompanied by evidence of the contractor's Public Liability and Workers' Compensation Insurances. The public risk policy shall be such an amount as determined by Council (not being less than $10,000,000.00) and shall cover the owner and the Council against any injury, loss or damage sustained by any person, firm or company. Building Code of Australia 14. All building work must be carried out in accordance with the requirements of the Building Code of Australia. Council Property 15. The land and adjoining areas are to be kept in a clean and tidy condition at all times. Litter and rubbish shall be placed in containers and removed from the site. A waste storage container is to be provided at the commencement of the building work. 16. The cost of repairing any damage caused to Council's assets as a result of construction works associated with the approved development is to be met in full by the applicant/developer prior to the issue of an occupation certificate. Hours of Demolition Works 17. In order to maintain the amenity of adjoining properties, demolition works shall be restricted to between 7.00 am and 6.00 pm. No demolition works are to be undertaken on Saturdays, Sundays or Public Holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless written Council gives consent. Demolition 18. All buildings identified for demolition including concrete slabs and internal works to building 14 shall be undertaken within 9 months of the grant of consent. Written notice shall be provided to Council when the works required under this condition have been completed. 19. All demolition work is to be carried out in accordance with the applicable provisions of Australian Standard 2601-2001 'The Demolition of Structures'. Note: Applicants are reminded that WorkCover NSW requires all plant and equipment used in demolition work must comply with the relevant Australian Standards and manufacturer specifications. Signs for Demolition Sites 20. On construction sites where buildings contain asbestos material, a standard commercially manufactured sign containing the words 'DANGER ASBESTOS REMOVAL IN PROGRESS' measuring not less than 400mm x 300mm is to be erected on the site in a prominent position visible from the street. The sign is to be erected prior to any work commencing and is to remain in place until such time as all asbestos material has been removed from the site to an approved waste facility. This condition is imposed for the purpose of worker and public safety and to ensure compliance with Clause 259(2)(c) of the Occupational Health and Safety Regulation 2001. 21. A sign must be erected in a prominent position on the premises, on which the demolition of a building is being carried out, stating that unauthorised entry to the premises is prohibited and showing the name of the builder or other person in control of the premises and a telephone number at which the builder or other person may be contacted during and outside work hours. The sign is to be removed when the demolition of the building has been completed. Erection of Construction Sign 22. A sign must be erected in a prominent position on any site on which construction 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 demolition or building work and a telephone number on which that person may be contacted outside working hours; and c. stating that unauthorised entry to the work site is prohibited. Note: Any such sign is to be maintained while the building work or demolition work is being carried out, but must be removed when the work has been completed. Erosion and Sediment Control 23. Erosion and sediment control measures must be provided and maintained throughout the construction period in accordance with the manual 'Soils and Construction 2004 (Bluebook)', the approved plans, Council specifications and to the satisfaction of the principal certifying authority. The erosion and sediment control devices must remain in place until the site has been stabilised and revegetated. Note: On the spot penalties up to $1,500 may be issued for any on-compliance with this requirement without any further notification or warning. Signs for Construction Sites 24. On-site signage is required to clearly identify the PCA and the principal contractor (the coordinator of the building work) pursuant to the Environmental Planning and Assessment Amendment (Quality of Construction) Act 2003, s157(1)(c1), Cl 98A, 136C & 227A. Hours of Construction 25. In order to maintain the amenity of adjoining properties, site works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. No work shall be undertaken on Sundays or public holidays. Plant, goods or materials shall not be delivered to the site outside the approved hours of site works unless otherwise approved by Council. Protection of Public Places 26. If the erection or demolition of a building causes pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, a fence must be erected between the building premises and the public place. The fence must be at least 1.8m high of chainwire and galvanised pipe construction. Welded wire reinforcing fabric is not to be used. 27. If the erection or demolition of a building will cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe, or the erection or demolition of a building involves the enclosure of a public place, a hoarding must be erected between the building premises and the public place. The erection of any hoarding and temporary awnings requires separate approval under the Local Government Act, 1993. 28. The work site is to be kept lit between sunset and sunrise if it is likely to be a source of danger to persons using a public place or upon instruction by Council to enhance the safety and security of the area in which the work is located. 29. Any hoarding, fence or awning is to be removed when no longer required. Toilet Facilities 30. Temporary closet accommodation is to be provided at the work site at all times at the rate of one closet for every 20 persons and be located wholly within the boundaries of the property. Permanent facilities are to be provided in accordance with Part F2.1, F2.4 and F 2.5 of the Building Code of Australia. Occupation 31. The approved development must not be occupied or the use must not commence until an occupation certificate has been issued in accordance with Sections 109C and 109H of the Environmental Planning & Assessment Act, 1979. 32. The approved development must be occupied or used solely for the approved use. No separate occupation or use of any part of the approved development shall take place without prior development consent, (other than for exempt or complying development). ENVIRONMENTAL SUSTAINABILITY TEAM 12 Development requirements during construction 33. The following conditions of consent have been imposed to ensure that the administration and amenities relating to the proposed development comply with all relevant requirements. The following conditions shall be complied with during the construction of the development on site: a. Council and the PCA must be notified immediately should the presence of asbestos or soil contamination, not recognised during the original assessment process be identified during demolition or construction works. b. The applicant shall protect overland flow paths, drains, adjoining land and downstream water quality from sedimentation. Accordingly, sediment and erosion control measures must be implemented prior to excavation, and maintained during construction. General conditions 34. All wastewater generated by the proposed development must be treated and disposed of in an approved onsite sewage management system designed and installed in accordance with both AS 1547 – Onsite Domestic Wastewater Management (2000) and Environment & Health Protection Guidelines – Onsite Sewage Management for Single Households (1998). 35. Any imported soils to the subject site must be Virgin Excavated Natural Material (VENM) as defined in Schedule 1 of the Protection of the Environment Operations Act 1997 or a material as approved under the DECC general resource recovery exemption. 36. All excavated material removed from the site must be classified in accordance with NSW EPA (1999) Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-Liquid Wastes prior to disposal. All excavated material must be disposed of to an approved waste management facility. 37. The operation and management of the site shall be undertaken in accordance with the environmental management plan prepared by Toby Fiander and Associates dated 21 July 2008. 38. All Dangerous Goods shall be stored in accordance with: a. AS 1940-2004: The Storage and Handling of Flammable and Combustible Liquids (Standards Australia, 1993); and/or b. The Protection of the Environment Operations Act 1997. 39. All above ground storage's of hazardous materials, oils, chemicals or fertilisers must be bunded. The bund is to be made from an impervious material and must be covered and large enough to hold the contents of the largest container plus 10%. 40. All wastewater and stormwater treatment devices (including drainage systems, sumps and traps) must be regularly maintained in order to remain effective. All solid and liquid wastes collected from the device must be disposed of in accordance with the Protection of the Environment Operations Act 1997. 41. Building No 14 shall not be used at any time as a "dwelling house" as defined under the Hornsby Local Environmental Plan 1994. As such, the premises shall not be used for the accommodation of persons at any time. Traffic Branch 42. The driveway is to be reconstructed to conform to RTA's Guide to Traffic Generating Developments Type 1 driveway (maximum width 6 metres). 43. The driveway surface between the road frontage (concrete dish drain) and the property boundary is to be sealed using asphaltic concrete or similar surface treatment. 44. Deleted. 45. Deleted. 46. Deleted. 47. Vehicles used in delivery or collection of goods shall not wait or queue upon the public roads. 48. All deliveries shall be made within the site. Under no circumstances are delivery vehicles to be loaded or unloaded upon the public road or nature strip. 49. All vehicles shall enter and exit the site in a forward direction. 50. All loading and unloading of goods associated with the Home Industry shall be conducted within the confines of that part of building No 4 identified as the area to be occupied for the Home Industry on the approved plan. In this regard, an area shall be designated within the building for the loading/unloading of goods. Under no circumstances are vehicles to stand outside the building for the purpose of loading/unloading of goods. DEVELOPMENT ENGINEER WORKS WITHIN DRAINAGE EASEMENT Principal Certifying Authority to be appointed 51. Before any works commence, if required, you will appoint a Principal Certifying Authority (PCA) for drainage works as required by section 81A(2)(b1) of the Environmental Planning & Assessment Act, 1979. The Applicant must enter into a service contract with the PCA outlining the responsibilities of each party and inspections points prior to the commencement of any work. Erosion and Sediment Control 52. Erosion and sediment control measures must be provided and maintained throughout the construction period in accordance with the manual 'Soils and Construction 2004 (Bluebook)', the approved plans, Council specifications and to the satisfaction of the principal certifying authority. The erosion and sediment control devices must remain in place until the site has been stabilised and revegetated. Note: On the spot penalties up to $1,500 may be issued for any on-compliance with this requirement without any further notification or warning. 53. Deleted. Excavated Material 54. All excavated material removed from the site must be classified in accordance with the NSW Environment Protection Authority's Environmental Guidelines – Assessment, Classification and Management of Liquid and Non-Liquid Wastes prior to disposal to an approved waste management facility and reported to the principal certifying authority. 55. Earthworks and Channel Rehabilitation 55 The existing piped drainage system between pit 3/1 and the dam on the subject site is to be removed and replaced with the following: a) Between pit 3/1 and pit 5/1 an open channel shall be constructed. The levels, grades and cross-sectional profile shall be in accordance with the plan prepared by Mepstead & Associates Pty Limited reference 4638-CATCH_A dated 09-03-09 sheets 2 and 3. b) A pre-cast concrete headwall shall be constructed at the end of the remaining pipeline formerly being pit 3/1. c) A reinforced concrete pipe or fibre reinforced pipe shall be constructed between pit 5/1 and the dam on the subject site. The minimum pipe size shall 825mm diameter and the pipe shall be capable of draining the 1 in 100 year storm flows. In accordance with Hornsby Council's Design Specification the pipe must be assumed to be 50% blocked for the purposes of determining its capacity to drain the 1 in 100 year storm flow. The hydraulic analysis of this pipeline shall take into account the potential top water surface level in the dam. d) A grated surface inlet pit of minimum internal dimension 900mm x 900mm shall be constructed at pit 5/1. The pit shall be designed to accept overland flows from the open channel referred to in (a) above and also overland flows from the adjacent property to the south (1427-1429 Old Northern Road). e) The ground levels above the 825mm diameter pipe shall be restored generally to that which exists at the date of this consent. f) The open channel and the disturbed area above the pipeline shall be stabilised with native Couch turf and maintained by the applicant. (g) The site dam spillway system shall be designed and constructed generally in accordance with the report Stormwater Analysis by Mepstead and Associates, November 2008; (h) A Works-As-Executed Plan of the completed work shall be submitted to Hornsby Shire Council for information of Council's Assets Register, and to allow planning and maintenance of the asset; 56. Deleted Support of Building 14 57. Excavations or other work within the Easement have a potential impact upon the foundation support of Building 14 and the fill batter. In order to protect Building 14 and the Drainage Easement site, engineering details comprising plans, sections and design are to be provided by a suitably experienced and qualified Chartered Civil or Structural Engineer for an appropriate support system for the building footings and the batter, for both the construction phase, and for the completed works. The engineering design shall have regard for the zone of influence of any excavations in the Easement determined by the design invert level of any future Easement concrete pipe. The engineering design and details shall be submitted to Hornsby Shire Council for consideration and approval, prior to release of the Construction Certificate. A certificate, and (if appropriate) Work-As-Executed details for any variations to the approved design, shall be submitted by the Engineer with a copy to Hornsby Shire Council prior to issue of the Occupation Certificate, verifying completion of the works in accordance with the approved design, and the stability of the building and final batter profile. 61. Deleted. Excavated Material 64. Deleted. Noise 66. Noise emitted from the home industry when assessed at the most affected point on or within a day residential property boundary - or, if that is more than 30 m from the residence, at the most affected point within 30 m of the residence shall not exceed the Rating Background Level by more than 5dB(A) when assessed as a LAeq, 15 minutes in accordance with the DECC's Industrial Noise Policy. (a) For the purpose of this condition the Rating Background Level shall be 45 dB(A) for the properties immediately to the north and south of the Home Industry and 40 dB(A) for the properties east of Building 4. 67. The use of the home industry can only occur in the designated area in Building 4 and incorporate the equipment set out in drawing 942-08-DA01 amendment B dated March 2009.. 68. No additional equipment or plant may be added to the home industry without the provision of an acoustic report identifying noise emission from the additional equipment and its ability to comply with the general noise condition of consent specified for the home industry. 69. All equipment associated with the hobby workshop and machinery storage shall be disconnected from the home industry dust extraction system. 70. All deliveries and transport of material associated with the home industry must be by use of a truck with a GVM not more than 4.5 tonnes or maximum length of 6.5 metres. 71. All loading and unloading operations are to occur in the home industry. 72. The internal face of the northern wall adjacent to the internal air compressor is to be lined with acoustic absorption providing a Noise Reduction Coefficient of not less than 0.8. ADVISORY NOTES The following information is provided for your assistance to ensure compliance with the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000, other relevant Council Policy/s and other relevant requirements. This information does not form part of the conditions of development consent pursuant to Section 80A of the Act. In accordance with section 68 of the Local Government Act 1993, the applicant must seek approval from Council prior to the installation of an onsite sewage management system. ______________________ T A Bly Commissioner of the Court Annexure B CONDITIONS OF CONSENT Hornsby Shire Council ats Holm Land & Environment Court Proceedings No. 10035 of 2009 Lot 1 DP 556129 (Nos. 1431-1433) Old Northern Road, Glenorie 1. Modify the description of development to read:- "The development application has been determined by granting of consent subject to the conditions specified in this notice for the conversion of the dwelling-house (rural workers dwelling) into a staff amenities building for use by workers associated with the agricultural activities conducted on-site generally in accordance with plan No. 942-08-DA01 LAYOUT PLAN dated November 2008 (Amendment A 4 March, 2009)". 2. Delete condition No. 1. 3. Addition of the following conditions: 2. The use of the amenities building approved under this consent shall be by workers associated with the agricultural activities conducted on the site only. Persons associated with the Home Industry conducted from within Building No. 4 are not permitted to use the amenities building. 3. The approved development must be occupied or used solely for the approved use. No separate occupation or use of any part of the approved development shall take place without prior development consent. 4. The amenities building shall not be used at any time as a "dwelling house" as defined under the Hornsby Local Environmental Plan 1994. As such, the premises shall not be used for the accommodation of persons without the prior consent of Council. 5. Council and the PCA must be notified immediately should the presence of asbestos or soil contamination, not recognised during the original assessment process be identified during demolition or construction works. 6. The Applicant shall protect overland flow paths, drains, adjoining land and downstream water quality from sedimentation. Accordingly, sediment and erosion control measures must be implemented prior to excavation, and maintained during construction. 7. All wastewater generated by the proposed development must be treated and disposed of in the approved on-site sewerage management system described in the Feasibility Study for onsite Disposal of Wastewater prepared by HJ Fiander dated 18 November 2008. The Wisconsin mound referred to in that study shall be 165m2 with a reserve area of equal size in the location shown on plan 942-08-DA01 sheet 1 (Amendment C March 09). 8. Any imported soils to the subject site must be Virgin Excavated Natural Material (VENM) as defined in Schedule 1 of the Protection of the Environment Operations Act 1997 or a material as approved under the DECC general resource recovery exemption.. 9. All excavated material removed from the site must be classified in accordance with NSW EPA (1999) Environmental Guidelines: Assessment, Classification and Management of Liquid and Non-liquid Wastes prior to disposal. All excavated material must be disposed of to an approved waste management facility. 10. All noise generated by the proposed development is to be attenuated to prevent levels of noise being emitted to adjacent premises which possess tonal, beating and similar characteristics or which exceeds background noise levels by more than 5dB(A). 11. The approved development must not be occupied or the use must not commence until an occupation certificate has been issued in accordance with Sections 109C and 109H of the Environmental Planning & Assessment Act, 1979. ADVISORY NOTES The following information is provided for your assistance to ensure compliance with the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000, other relevant Council Policy/s and other relevant requirements. This information does not form part of the conditions of development consent pursuant to Section 80A of the Act. In accordance with section 68 of the Local Government Act 1993, the applicant must seek approval from Council prior to the installation of an onsite sewage management system. ______________________ T A Bly Commissioner of the Court Paragraph 1 of Judgment together with 10815 of 2008 Order 2, 10656 of 2008 Orders, 10814 of 2008 Orders, Condition paragraph 1 in Annexure "A" and Condition 8 in Annexure B has been amended pursuant to Rule 36.17 of the Uniform Civil Procedure Rules 2005 ("the Slip Rule") on 9 April 2009. 20/04/2009 - Slip Rule - Paragraph(s) Paragraph 1 Judgment, Paragraph 1 Annexure A, Paragraph 8 Annexure B and Orders for 10815 of 2008, 10656 of 2008 & 10814 of 2008 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.