Land and Environment Court of New South Wales CITATION : Michael Suttor Pty Limited v Woollahra Municipal Council [2009] NSWLEC 1402 APPLICANT Michael Suttor Pty Limited trading as Michael Suttor Architects PARTIES : RESPONDENT Woollahra Municipal Council FILE NUMBER(S) : 10290 of 2009 CORAM: Brown C KEY ISSUES: CONSENT ORDERS :- alterations and additions involving a second storey level to an existing residential dwelling - view loss Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Woollahra Local Environmental Plan 1995 Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 CASES CITED: Tenacity Consulting v Warringah Council [2004] NSWLEC 140 DATES OF HEARING: 24 August 2009, 30 November 2009 EX TEMPORE JUDGMENT DATE : 30 November 2009 APPLICANT Ms H Irish, barrister SOLICITORS McLachlan Thorpe Partners LEGAL REPRESENTATIVES: RESPONDENT Mr N Howie, solicitor Ms K Thomas, solicitor SOLICITORS Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 30 November 2009 10290 of 2009 Michael Suttor Pty Limited trading as Michael Suttor Architects v Woollahra Municipal Council JUDGMENT 1 This matter comes before the Court for Consent Orders following reconsideration by the council of an earlier decision by Woollahra Municipal Council (the council) to refuse DA 542/2008 for alterations and additions involving a second storey level to an existing residential dwelling at 18 Wentworth Place (also 18 Wyuna Road), Point Piper. 2 In the consideration of the Consent Orders, "the consent authority is to demonstrate that relevant statutory provisions have been complied with and that any objections by any person has been properly taken into account" (Practice Note - Class 1 Development Appeals ,cll 35 and 36). 3 In this regard, a number of objectors sought to be heard in the Court's consideration of the Consent Orders. Mr Tony Moody, a town planner, provided evidence on behalf of Mr and Mrs Mowszowski, the owners of 2/23 Wentworth Street. Ms Gail Rivkin of 7/23 Wentworth Street also provided evidence. Both properties were inspected on the site view, and an understanding of the proposed location of the alterations and additions were made through the erection of height poles. The property at 25 Wentworth Street was also inspected, however the council received no objections from the owners of this property to the proposed development. The principle issue raised by the objectors related to view loss to Sydney Harbour and particularly of Shark Island. 4 The alterations and additions, as originally submitted to the council, were amended to improve the views from adjoining properties prior to the hearing. The original pitched roof was replaced with a flat roof and the floor-to-ceiling heights were reduced to provide an overall height of around 8.9 m. This compares favourably with the council's requirements for an overall maximum height of 9.5 m in cl 12 of Woollahra Local Environmental Plan 1995 (LEP 1995). The proposed development also satisfies the other requirements in LEP 1995 and the Woollahra Residential Development Control Plan (the DCP) with the exception of part of the building where the two-storey height limit is exceeded and the side setbacks however there was agreement that these breaches did not impact on the view loss issue. 5 The Court heard a range of evidence on the view loss issue. Supporting the proposed development were the applicant's town planner Mr Bruce Goldsmith, the council's town planner Ms Chambers, and Mr Neil Kennan, a town planner who provided an independent assessment for the council. In opposition was Mr Moody. All the experts addressed the view loss in the manner set out in Tenacity Consulting v Warringah Council [2004] NSWLEC 140, where the assessment of view impacts involves four tests. These are: 1. the assessment of views to be affected; 2. the part of the property where views are achieved; 3. the extent of the impact; and 4. the reasonableness of the proposal that is causing the impact. 6 With the benefit of the site view, I am satisfied that any view loss issues relate only to the property at 2/23 Wentworth Street. The property at 7/23 Wentworth Street will have the narrow view of Shark Island from the lower level deck reduced, but will retain water and headland views. Views from the upper level to Sydney Harbour and Shark Island are largely unchanged by the proposed development. 7 Mr Moody's position on the impact on 2/23 Wentworth Street was that the new additional level that contained two bedrooms, ensuites and gallery should be reduced in size to allow for the existing views to be retained of Shark Island. He suggests an increased site setback of 3.9 m. He states that Shark Island is an identified heritage item under Sydney Regional Environmental Plan (Sydney Harbour Catchment) 2005 (SREP 2005) and this adds supports for the retention of the views to Shark Island. 8 Mr Moody offered further suggestions to allow for the retention of the views to Shark Island however I have not given any consideration to these more radical suggestions, such as greater excavation of the site with a corresponding reduction in height. These suggestions are not matters that are appropriately considered as part of this application, notwithstanding that the test in Tenacity that asks whether a more skilled design would provide the same development potential but with reduced impacts. The test, in my view, should not be seen as an opportunity for revisiting the overall design philosophy of the proposal. 9 The site view, in my opinion, supports a finding that the views from 2/23 Wentworth Street will be unacceptably affected by the proposed development. The site at 2/23 Wentworth Street has panoramic views of Sydney Harbour and some 35% to 40% of the lower views will be lost. Views of Shark Island will be lost except from the northern edge of the outdoor recreation area. The views of Shark Island from the sitting position inside the unit will also be lost. The assessment by Ms Chambers in the council officer's report outlines the extent of view loss in some detail. 10 The loss of views to Shark Island, are in my view more problematic than the general views of the harbour and the distant foreshores. In terms used in Tenacity, the views to Shark Island are very valuable given the proximity and visibility of the island to Point Piper and the heritage status under REP 2005. The view loss is also from an important area of 2/23 Wentworth Street, that is, the rear patio and grassed courtyard area. The loss of view from inside the unit is not a matter that would, by itself support Mr Moody's position of a reduced area for the new upper level. The extent of the impact from inside the dwelling is not insignificant but not a matter that would support the refusal of the application given the wide views still available and compliance with the relevant council planning controls. 11 The fourth test in Tenacity relevantly asks, "with a complying proposal, the question should be asked whether a more skilful design could provide the applicant with the same development potential and amenity and reduce the impact on the views of neighbours". This is a valid question in this case as I am not satisfied that some further amendment could not be made to the proposed alterations and additions that may provide some partial views of Shark Island from the central patio area of 2/23 Wentworth Street. This may involve a relocation of some of the floor area or the removal of some floor area. In my view, the further potential modification falls squarely within the more skilful design suggested in Tenacity, even though I would acknowledge the earlier positive modifications to the original design. I accept that there is a warrant for at least some views of Shark Island to be retained because of the significance of this island. 12 These preliminary findings were provided to the parties in Court on 24 August 2009 after the site view. The proceedings were adjourned and directions given for the preparation, filing and consideration of amended plans. 13 The amended plans provide for a reduction in the width of the first floor additions by the reallocation of the bathroom and dressing room for Bedroom 1 from the south to the west of the first-floor additions. This has the effect of opening up the view corridor from the central patio area of 2/23 Wentworth Street towards Shark Island so that approximately 50% of the island would now be visible. The area previously used for the dressing room and bathroom is now proposed as a terrace for Bedroom 1. 14 The reconvened proceedings were listed for an On Site Hearing on 30 November 2009 to consider the amended plans. In response to the amended plans, Mr and Mrs Mowszowski of 2/23 Wentworth Street and Mr Eric Wohl of 16 Wyuna Road (directly to the south of the site) provided objections. Mr Wohl raised concerns over privacy from the proposed terrace however with further amendments to the proposed privacy screen adjoining his property, Mr Wohl did not pursue his objection. 15 Mr Moody provided further comments on behalf of Mr and Mrs Mowszowski. Mr Mowszowski provided oral evidence at the On Site Hearing and raised concern over the potential for the newly created view corridor to be restricted by structures and activities on the proposed terrace. Mr Mowszowski also reiterated his concerns over the loss of views to Shark Island. 16 Mr Goldsmith and Mr Kennan provided a joint report that supported the amendments. Additional conditions were provided to limit structures on the terrace so to maintain the view corridor (conditions I.3, I.4, I.5 and I.6). 17 In considering the matters raised by Mr Moody and Mr Mowszowski, I am satisfied the additional conditions imposed on the development consent to protect the view corridor from 2/23 Wentworth Street to Shark Island are reasonable, in that they provide clear requirements for the use of the terrace and the size and location of any furniture or structures on the terrace and at the same time provide reasonable access to views from Mr Mowszowski's property. 18 With the imposition of these conditions, there are no reasons why the Consent Orders should not be endorsed. Orders 19 The Orders of the court, by consent, are: 1. The appeal is upheld. 2. Development consent is granted to Development Application No. The 542/2008 for alterations and additions to the dwelling house at 18 Wentworth Place, Point Piper (also known as 18 Wyuna Road) subject to the conditions as set out in Annexure A. 3. The exhibits are returned with the exception of exhibits 4 and L. ___________________ G T Brown Commissioner of the Court Annexure 'A' Conditions of Consent MICHAEL SUTTOR PTY LIMITED t/as MICHAEL SUTTOR ARCHITECTS –v- WOOLLAHRA MUNICIPAL COUNCIL The Respondent consents to the granting of consent to development application no. 542/2008 on the basis that the following conditions are imposed: A. General Conditions A.1 Conditions Consent is granted subject to the following conditions imposed pursuant to section 80 of the Environmental Planning & Assessment Act 1979 ("the Act ") and the provisions of the Environmental Planning and Assessment Regulation 2000 ("the Regulation ") such conditions being reasonable and relevant to the development as assessed pursuant to section 79C of the Act. Standard Condition: A1 A.2 Definitions Unless specified otherwise words have the same meaning as defined by the Act , the Regulation and the Interpretation Act 1987 as in force at the date of consent. Applicant means the applicant for this Consent. Approved Plans mean the plans endorsed by Council referenced by this consent as amended by conditions of this consent. AS or AS/NZS means Australian Standard ® or Australian/New Zealand Standard ®, respectively, published by Standards Australia International Limited. BCA means the Building Code of Australia as published by the Australian Building Codes Board as in force at the date of issue of any Construction Certificate . Council means Woollahra Municipal Council Court means the Land and Environment Court Local native plants means species of native plant endemic to Sydney's eastern suburbs (see the brochure titled "Local Native Plants for Sydney's Eastern Suburbs published by the Southern Sydney Regional Organisation of Councils). Stormwater Drainage System means all works, facilities and documentation relating to: a. The collection of stormwater, b. The retention of stormwater, c. The reuse of stormwater, d. The detention of stormwater, e. The controlled release of stormwater; and f. Connections to easements and public stormwater systems. Owner means the owner of the site and successors in title to the site . Owner Builder has the same meaning as in the Home Building Act 1989. PCA means the Principal Certifying Authority under the Act . Principal Contractor has the same meaning as in the Act or where a principal contractor has not been appointed by the owner of the land being developed Principal Contractor means the owner of the land being developed. Professional Engineer has the same meaning as in the BCA. Public Place has the same meaning as in the Local Government Act 1993. Road has the same mean as in the Roads Act 1993. SEE means the final version of the Statement of Environmental Effects lodged by the Applicant. Site means the land being developed subject to this consent. WLEP 1995 means Woollahra Local Environmental Plan 1995 Work for the purposes of this consent means: a. the use of land in connection with development, b. the subdivision of land, c. the erection of a building, d. the carrying out of any work, e. the use of any site crane, machine, article, material, or thing, f. the storage of waste, materials, site crane, machine, article, material, or thing, g. the demolition of a building, h. the piling, piering, cutting, boring, drilling, rock breaking, rock sawing or excavation of land, i. the delivery to or removal from the site of any machine, article, material, or thing, or j. the occupation of the site by any person unless authorised by an occupation certificate . Note : Interpretation of Conditions - Where there is any need to obtain an interpretation of the intent of any condition this must be done in writing to Council and confirmed in writing by Council. Standard Condition: A2 A.3 Approved Plans and supporting documents Those with the benefit of this consent must carry out all work and maintain the use and works in accordance with the plans and supporting documents listed below as submitted by the Applicant unless modified by any following condition . Where the plans relate to alterations or additions only those works shown in colour or highlighted are approved. Reference Description Author/Drawn Date(s) DA.9 issue B Plans Michael Suttor Pty Ltd 29/9/09 DA.10 issue B Roof and Site Analysis and Location Plans Michael Suttor Pty Ltd 29/9/09 DA.11 issue B West Elevation and South Elevation Michael Suttor Pty Ltd 23/9/09 DA 12 issue B East Elevation and North Elevation Michael Suttor Pty Ltd 23/9/09 DA 13 issue B Section and Street Elevation Michael Suttor Pty Ltd 23/9/09 Note: Warning to Accredited Certifiers – You should always insist on sighting the original Council stamped approved plans. You should not rely solely upon the plan reference numbers in this condition. Should the applicant not be able to provide you with the original copy Council will provide you with access to its files so you may review our original copy of the approved plan. Note: These plans and supporting documentation may be subject to conditions imposed under section 80A(1)(g) of the Act modifying or amending the development (refer to conditions which must be satisfied prior to the issue of any Construction Certificate .) A.4 Amendments to approved plans The approved plans listed in condition A.3 are to be amended to be consistent with the following plans prior to the issue of a Construction Certificate: Reference Description Author/Drawn Date(s) DA.4 issue B Basement Plan Michael Suttor Pty Ltd 2/11/09 DA.5 issue B Ground Floor Plan Michael Suttor Pty Ltd 2/11/09 DA.6 issue B First Floor Plan Michael Suttor Pty Ltd 2/11/09 DA 7 issue B Sight Line- 2/23 Wentworth Ave Michael Suttor Pty Ltd 2/11/09 DA 8 issue B Sight Line- 16 Wentworth Pl Michael Suttor Pty Ltd 2/11/09 DA 9-S Section Michael Suttor Pty Ltd 2/11/09 B. Conditions which must be satisfied prior to the demolition of any building or construction B.1 Construction Certificate required prior to any demolition Where demolition is associated with an altered portion of, or an extension to an existing building the demolition of any part of a building is "commencement of erection of building" pursuant to section 81A(2) of the Act. In such circumstance all conditions in Part C and Part D of this consent must be satisfied prior to any demolition work. This includes, but is not limited to, the issue of a Construction Certificate, appointment of a PCA and Notice of Commencement under the Act. Note: See Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125. Standard Condition: B1 C. Conditions which must be satisfied prior to the issue of any construction certificate C.1 Modification of details of the development (s80A(1)(g) of the Act) The approved plans must be amended and the Construction Certificate plans and specification, required to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation , must detail: a. The development is to comply with the splay requirement set out in Section 4.4(d) of the WMC Development Control Plan for Off-Street Car Parking Provision to the south. Compliance with Section 4.4(d) of the WMC Development Control Plan for Off-Street Car Parking Provisions on the northern boundary is not required because it is not achievable b. Deleted Note : The effect of this condition is that it requires design changes and/or further information to be provided with the Construction Certificate drawings and specifications to address specific issues identified during assessment under section 79C of the Act . Note : Clause 146 of the Regulation prohibits the issue of any Construction Certificate subject to this condition unless the Certifying Authority is satisfied that the condition has been complied with. Note : Clause 145 of the Regulation prohibits the issue of any Construction Certificate that is inconsistent with this consent. Standard Condition: C4 C.2 Payment of Security, Levies and Fees (S80A(6) & S94 of the Act, Section 608 of the Local Government Act 1993) The person(s) with the benefit of this consent must pay the following long service levy, security, development levy, and fees prior to the issue of any construction certificate, subdivision certificate or occupation certificate , as will apply. The certifying authority must not issue any Part 4A Certificate until provided with the original receipt(s) for the payment of all of the following levy, security, contributions, and fees. Specifically a. prior to the issue of a construction certificate , where a construction certificate is required; or b. prior to the issue of a subdivision certificate , where only a subdivision certificate is required; or c. prior to the issue of an occupation certificate in any other instance. Description Amount Indexed Council Fee Code LONG SERVICE LEVY under Building and Construction Industry Long Service Payments Act 1986 Long Service Levy Contact LSL No Use Calculator: http://www.lspc.nsw.gov.au/levy_information/?levy_information/levy_calculator.stm Corporation or use their online calculator SECURITY under section 80A(6) of the Environmental Planning and Assessment Act 1979 Property Damage Security Deposit - Making good any damage caused to any property of the Council as a consequence of the doing of anything to which the consent relates. $32,000 No T115 DEVELOPMENT LEVY under Woollahra Section 94A Development Contributions Plan 2005 This plan may be inspected at Woollahra Council or downloaded from our website www.woollahra.nsw.gov.au . Development Levy (S94A) $15,000 + Index Amount Yes, quarterly T96 INSPECTION FEES under section 608 of the Local Government Act 1993 Security Administration Fee $175 No T16 TOTAL SECURITY, CONTRIBUTIONS, LEVIES AND FEES $47,175 Plus any relevant indexed amounts and long service levy Building & Construction Industry Long Service Payment The Long Service Levy under Section 34 of the Building & Construction Industry Long Service Payment Act , 1986, must be paid and proof of payment provided to the Certifying Authority prior to the issue of any Construction Certificate . Note : The Levy can be paid directly to the Long Services Payments Corporation or to Council. Further information can be obtained from the Long Service Payments Corporation's website http://www.lspc.nsw.gov.au/ or by telephoning the Long Service Payments Corporation on 13 14 41. How must the payments be made? Payments must be made by: a. Cash deposit with Council, b. Credit card payment with Council, or c. Bank cheque made payable to Woollahra Municipal Council. The payment of a security may be made by a bank guarantee where: a. the guarantee is by an Australian bank for the amount of the total outstanding contribution; b. the bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first; c. the bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent; and d. the bank's obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required. How will the section 94A levy be indexed? To ensure that the value the development levy is not eroded over time by increases in costs, the proposed cost of carrying out development (from which the development levy is calculated) will be indexed either annually or quarterly (see table above). Clause 3.13 of the Woollahra Section 94A Development Contributions Plan 2005 sets out the formula and index to be used in adjusting the s.94A levy. Do you need HELP indexing the levy? Please contact our customer service officers. Failure to correctly calculate the adjusted the development levy will delay the issue of any Part 4A Certificate and could void any Part 4A Certificate (construction certificate, subdivision certificate, or occupation certificate). Deferred periodic payment of section 94A levy under the Woollahra Section 94A Development Contributions Plan 2005 Where the applicant makes a written request supported by reasons for payment of the section 94A levy other than as required by clause 3.9, the Council may accept deferred or periodic payment. The decision to accept a deferred or periodic payment is at the sole discretion of the Council, which will consider: a. the reasons given; b. whether any prejudice will be caused to the community deriving benefit from the public facilities; c. whether any prejudice will be caused to the efficacy and operation of this plan; and d. whether the provision of public facilities in accordance with the adopted works schedule will be adversely affected. Council may, as a condition of accepting deferred or periodic payment, require the provision of a bank guarantee where: a. the guarantee is by an Australian bank for the amount of the total outstanding contribution; b. the bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council on completion of the development or no earlier than 12 months from the provision of the guarantee whichever occurs first; c. the bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other person who provided the guarantee and without regard to any dispute, controversy, issue or other matter relating to the development consent or the carrying out of development in accordance with the development consent; and d. the bank's obligations are discharged when payment to the Council is made in accordance with the guarantee or when Council notifies the bank in writing that the guarantee is no longer required. Any deferred or outstanding component of the section 94A levy will be adjusted in accordance with clause 3.13 of the plan. The applicant will be required to pay any charges associated with establishing or operating the bank guarantee. Council will not cancel the bank guarantee until the outstanding contribution as indexed and any accrued charges are paid. Standard Condition: C5 C.3 BASIX commitments The applicant must submit to the Certifying Authority BASIX Certificate No.A37196 with any application for a Construction Certificate . Note : Where there is any proposed change in the BASIX commitments the applicant must submit of a new BASIX Certificate to the Certifying Authority and Council. If any proposed change in the BASIX commitments are inconsistent with development consent (See: Clauses 145 and 146 of the Regulation ) the applicant will be required to submit an amended development application to Council pursuant to section 96 of the Act. All commitments in the BASIX Certificate must be shown on the Construction Certificate plans and specifications prior to the issue of any Construction Certificate . Note : Clause 145(1)(a1) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: (a1) that the plans and specifications for the building include such matters as each relevant BASIX certificate requires," Standard Condition: C7 C.4 Structural Adequacy of Existing Supporting Structures A certificate from a professional engineer (Structural Engineer), certifying the adequacy of the existing supporting structure to support the additional loads proposed to be imposed by the development, must be submitted with the Construction Certificate application. Note : This condition is imposed to ensure that the existing structure structural is able to support the additional loads proposed. Standard Condition: C35 C.5 Professional Engineering Details The Construction Certificate plans and specifications, required by clause 139 of the Regulation, must include detailed professional engineering plans and/or specifications for all structural, electrical, hydraulic, hydro-geological, geotechnical, mechanical and civil work complying with this consent, approved plans, the statement of environmental effects and supporting documentation. Detailed professional engineering plans and/or specifications must be submitted to the Certifying Authority with the application for any Construction Certificate . Note: This does not affect the right of the developer to seek staged Construction Certificates Standard Condition: C36 C.6 Stormwater discharge to existing Stormwater Drainage System (Clause 25(2) WLEP 1995) The Construction Certificate plans and specifications required by clause 139 of the Regulation , must detail : a. the location of the existing Stormwater Drainage System including all pipes, inspection openings, surface drains, pits and their discharge location, b. the state of repair of the existing Stormwater Drainage System , c. any remedial works required to upgrade the existing Stormwater Drainage System to comply with the BCA, d. any remedial works required to upgrade the existing Stormwater Drainage System crossing the footpath and any new kerb outlets, e. any new Stormwater Drainage System complying with the BCA, f. interceptor drain(s) at the site boundary to prevent stormwater flows from the site crossing the footpath, g. any rainwater tank required by BASIX commitments including their overflow connection to the Stormwater Drainage System , and h. general compliance with the Council's draft Development Control Plan Stormwater Drainage Management (draft version 1, public exhibition copy dated 14 December 2006) Where any new Stormwater Drainage System crosses the footpath area within any road, separate approval under section 138 of the Roads Act 1993 must be obtained from Council for those works prior to the issue of any Construction Certificate . All Stormwater Drainage System work within any road or public place must comply with Woollahra Municipal Council's Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003. Note: Clause F1.1 of Volume 1 and Part 3.1.2 of Volume 2 of the BCA provide that stormwater drainage complying with AS/NZS 3500.3 Plumbing and drainage - Part 3: Stormwater drainage is deemed-to-satisfy the BCA. Council's specifications apply in relation to any works with any road or public place. Note : Stormwater Drainage Systems must not discharge to any Sewer System. It is illegal to connect stormwater pipes and drains to the sewerage system as this can overload the system and cause sewage overflows. See: http://www.sydneywater.com.au/Publications/Factsheets/SewerfixLookingAfterYourSewerPipes.pdf Note : Woollahra Municipal Council's Specification for Roadworks, Drainage and Miscellaneous Works dated January 2003 and Council's draft Development Control Plan Stormwater Drainage Management (draft version 1.1, public exhibition copy dated 14 December 2006) can be downloaded from Council's website: www.woollahra.nsw.gov.au Standard Condition: C49 D. Conditions which must be satisfied prior to the commencement of any development work D.1 Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989 For the purposes of section 80A (11) of the Act, the following conditions are prescribed in relation to a development consent for development that involves any building work: a. that the work must be carried out in accordance with the requirements of the Building Code of Australia, b. 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 building work authorised to be carried out by the consent commences. This condition does not apply: a. to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4), or b. to the erection of a temporary building. In this condition, a reference to the BCA is a reference to that code as in force on the date the application for the relevant construction certificate is made. Note : This condition must be satisfied prior to commencement of any work in relation to the contract of insurance under the Home Building Act 1989. This condition also has effect during the carrying out of all building work with respect to compliance with the Building Code of Australia. Standard Condition: D1 D.2 Security Fencing, Hoarding and Overhead Protection Security fencing must be provided around the perimeter of the development site, including any additional precautionary measures taken to prevent unauthorised entry to the site at all times during the demolition, excavation and construction period. Security fencing must be the equivalent 1.8m high chain wire as specified in AS 1725. Where the development site adjoins a public thoroughfare, the common boundary between them must be fenced for its full length with a hoarding, unless the least horizontal distance between the common boundary and the nearest parts of the structure is greater than twice the height of the structure. The hoarding must be constructed of solid materials (chain wire or the like is not acceptable) to a height of not less than 1.8 m adjacent to the thoroughfare. Where a development site adjoins a public thoroughfare with a footpath alongside the common boundary then, in addition to the hoarding required above, the footpath must be covered by an overhead protective structure and the facing facade protected by heavy-duty scaffolding, unless either a. the vertical height above footpath level of the structure being demolished is less than 4.0 m; or b. the least horizontal distance between footpath and the nearest part of the structure is greater than half the height of the structure. The overhead structure must consist of a horizontal platform of solid construction and vertical supports, and the platform must a. extend from the common boundary to 200mm from the edge of the carriageway for the full length of the boundary; b. have a clear height above the footpath of not less than 2.1 m; terminate 200mm from the edge of the carriageway (clearance to be left to prevent impact from passing vehicles) with a continuous solid upstand projecting not less than 0.5 m above the platform surface; and c. together with its supports, be designed for a uniformly distributed live load of not less than 7 kPa. The principal contractor or owner builder must pay all fees associated with the application and occupation and use of the road (footway) for required hoarding or overhead protection. The principal contractor or owner builder must ensure that Overhead Protective Structures are installed and maintained in accordance with WorkCover NSW Code of Practice - Overhead Protective Structures, gazetted 16 December 1994, as commenced 20 March 1995. This can be downloaded from: http://www.workcover.nsw.gov.au/Publications/LawAndPolicy/CodesofPractice/oheadprotstructs.htm . Security fencing, hoarding and overhead protective structure must not obstruct access to utilities services including but not limited to man holes, pits, stop valves, fire hydrants or the like. Note : The principal contractor or owner must allow not less than two (2) weeks from the date of making a hoarding application for determination. Any approval for a hoarding or overhead protection under the Roads Act 1993 will be subject to its own conditions and fees. Standard Condition: D11 D.3 Site Signs The Principal Contractor or owner builder must ensure that the sign required by clauses 98A and 227A of the Regulation is erected and maintained at all times. "Erection of signs 1. For the purposes of section 80A (11) of the Act , the requirements of subclauses (2) and (3) are prescribed as conditions of a development consent for development that involves any building work, subdivision work or demolition work. 2. 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, and 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 hours, and c. stating that unauthorised entry to the work site is prohibited. 3. 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. 4. This clause does not apply in relation to building work, subdivision work or demolition work that is carried out inside an existing building that does not affect the external walls of the building. 5. This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State's building laws." Note : PCA and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which imposes a penalty exceeding $1,000). Note : If Council is appointed as the PCA it will provide the sign to the principal contractor or owner builder who must ensure that the sign is erected and maintained as required by Clause 98A of the Regulation . Standard Condition: D12 D.4 Building - Construction Certificate, Appointment of Principal Certifying Authority, Appointment of Principal Contractor and Notice of Commencement (s81A(2) of the Act) The erection of the building in accordance with this development consent must not be commenced until: a. a construction certificate for the building work has been issued by the consent authority, the council (if the council is not the consent authority) or an accredited Certifier, and b. the person having the benefit of the development consent has: i. appointed a principal certifying authority for the building work, and ii. notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case, and b1. the principal certifying authority has, no later than 2 days before the building work commences: i. notified the consent authority and the council (if the council is not the consent authority) of his or her appointment, and ii. notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and b2. the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has: i. appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and ii. notified the principal certifying authority of any such appointment, and iii. unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and iv. given at least 2 days' notice to the council of the person's intention to commence the erection of the building. Note: building has the same meaning as in section 4 of the Act and includes part of a building and any structure or part of a structure. Note : new building has the same meaning as in section 109H of the Act and includes an altered portion of, or an extension to, an existing building. Note : The commencement of demolition works associated with an altered portion of, or an extension to, an existing building is considered to be the commencement of building work requiring compliance with section 82A(2) of the Act (including the need for a Construction Certificate ) prior to any demolition work. See: Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125. Note : Construction Certificate Application, PCA Service Agreement and Notice of Commencement forms can be downloaded from Council's website www.woollahra.nsw.gov.au . Note : It is an offence for any person to carry out the erection of a building in breach of this condition and in breach of section 81A(2) of the Act. Standard Condition: D15 D.5 Notification of Home Building Act 1989 requirements a. For the purposes of section 80A (11) of the Act, the requirements of this condition are prescribed as conditions of a development consent for development that involves any residential building work within the meaning of the Home Building Act 1989 . b. 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: i. in the case of work for which a principal contractor is required to be appointed: o the name and licence number of the principal contractor, and o the name of the insurer by which the work is insured under Part 6 of that Act, ii. in the case of work to be done by an owner-builder: the name of the owner-builder, and if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit. c. If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) 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. d. This clause does not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State's building laws. Standard Condition: D17 D.6 Establishment of boundary location, building location and datum Prior to the commencement of any work the principal contractor or owner builder must ensure that a surveyor registered under the Surveying Act 2002 sets out: a. the boundaries of the site by permanent marks (including permanent recovery points); b. the location and level of foundation excavations, footings, walls and slabs by permanent marks, pegs or profiles relative to the boundaries of the land and relative to Australian Height Datum ("AHD") in compliance with the approved plans; c. establishes a permanent datum point (bench mark) within the boundaries of the site relative to AHD; and d. provides a copy of a survey report by the registered surveyor detailing, the title boundaries, pegs/profiles, recovery points and bench mark locations as established pursuant to this condition to the PCA. Note : Where the principal contractor or owner builder notes any discrepancy between the approved development consent and the Construction Certificate , especially in relation to the height, location or external configuration of the building (but not limited to these issues) the principal contractor or owner builder should not proceed until satisfied that the variations as shown are consistent with the consent. Failure to do so may result in a breach of development consent. Note : On larger developments, or where boundary redefinition is required, the placement of new State Survey Marks as permanent marks should be considered by the registered surveyor. Standard Condition: D18 E. Conditions which must be satisfied during any development work E.1 Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989 For the purposes of section 80A (11) of the Act, the following condition is prescribed in relation to a development consent for development that involves any building work: a. that the work must be carried out in accordance with the requirements of the Building Code of Australia, b. 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 building work authorised to be carried out by the consent commences. This condition does not apply: a. to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4) of the Regulation, or b. to the erection of a temporary building. In this clause, a reference to the BCA is a reference to that Code as in force on the date the application for the relevant construction certificate is made. Standard Condition: E1 E.2 Compliance with Australian Standard for Demolition Demolition of buildings and structures must comply with Australian Standard AS 2601—1991: The Demolition of Structures, published by Standards Australia, and as in force at 1 July 1993. Standard Condition: E2 E.3 Critical Stage Inspections Critical stage inspections must be called for by the principal contractor or owner builder as required by the PCA, any PCA service agreement, the Act and the Regulation . Work must not proceed beyond each critical stage until the PCA is satisfied that work is proceeding in accordance with this consent, the Construction Certificate(s) and the Act . critical stage inspections means the inspections prescribed by the Regulations for the purposes of section 109E(3)(d) of the Act or as required by the PCA and any PCA Service Agreement. Note : The PCA may require inspections beyond mandatory critical stage inspections in order that the PCA be satisfied that work is proceeding in accordance with this consent. Note : The PCA may, in addition to inspections, require the submission of Com pliance Certificates , survey reports or evidence of suitability in accordance with Part A2.2 of the BCA in relation to any matter relevant to the development. Standard Condition: E5 E.4 Hours of Work –Amenity of the neighbourhood a. No work must take place on any Sunday or public holiday, b. No work must take place before 7am or after 5pm any weekday, c. No work must take place before 7am or after 1pm any Saturday, and d. No piling, piering, cutting, boring, drilling, rock breaking, rock sawing, jack hammering or bulk excavation of land or loading of material to or from trucks must take place before 9am or after 4pm any weekday, or before 9am or after 1pm any Saturday. e. No rock excavation being cutting, boring, drilling, breaking, sawing, jack hammering or bulk excavation of rock, must occur without a 15 minute break every hour. This condition has been imposed to mitigate the impact of work upon the amenity of the neighbourhood. Impact of work includes, but is not limited to, noise, vibration, dust, odour, traffic and parking impacts. Note : The use of noise and vibration generating plant and equipment and vehicular traffic, including trucks in particular, significantly degrade the amenity of neighbourhoods and more onerous restrictions apply to these activities. This more invasive work generally occurs during the foundation and bulk excavation stages of development. If you are in doubt as to whether or not a particular activity is considered to be subject to the more onerous requirement (9am to 4pm weekdays and 9am to 1pm Saturdays) please consult with Council. Note : Each and every breach of this condition by any person may be subject to separate penalty infringement notice or prosecution. Note : The delivery and removal of plant, equipment and machinery associated with wide loads subject to RTA and Police restrictions on their movement out side the approved hours of work will be considered on a case by case basis. Note : Compliance with these hours of work does not affect the rights of any person to seek a remedy to offensive noise as defined by the Protection of the Environment Operations Act 1997, the Protection of the Environment Operations (Noise Control) Regulation 2000. Note : EPA Guidelines can be down loaded from http://www.epa.nsw.gov.au/noise/nglg.htm . Note : see http://www.epa.nsw.gov.au/resources/ci_build_sheet7.pdf Standard Condition: E6 E.5 Maintenance of Vehicular and Pedestrian Safety and Access The principal contractor or owner builder and any other person acting with the benefit of this consent must: a. Not erect or maintain any gate or fence swing out or encroaching upon the road or the footway. b. Not use the road or footway for the storage of any article, material, matter, waste or thing. c. Not use the road or footway for any work . d. Keep the road and footway free of any obstruction and rectify any damage, including any trip hazard sustained to road and/or footway as a result of the work. e. Not stand any plant and equipment upon the road or footway. This condition does not apply to the extent that a permit or approval exists under the section 73 of the Road Transport (Safety and Traffic Management) Act 1999, section 138 of the Roads Act 1993 or section 94 of the Local Government Act 1993 except that at all time compliance is required with: a. Australian Standard AS 1742 (Set) Manual of uniform traffic control devices and all relevant parts of this set of standards. b. Australian Road Rules to the extent they are adopted under the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999. Note : Section 73 of the Road Transport (Safety and Traffic Management) Act 1999 allows the Police to close any road or road related area to traffic during any temporary obstruction or danger to traffic or for any temporary purpose. Any road closure requires Police approval. Note : Section 138 of the Roads Act 1993 provides that a person must not: (a) erect a structure or carry out a work in, on or over a public road, or (b) dig up or disturb the surface of a public road, or (c) remove or interfere with a structure, work or tree on a public road, or (d) pump water into a public road from any land adjoining the road, or (e) connect a road (whether public or private) to a classified road, otherwise than with the consent of the appropriate roads authority. Note : Section 68 of the Local Government Act 1993 provides that a person may carry out certain activities only with the prior approval of the council including: Part C Management of Waste: "1. For fee or reward, transport waste over or under a public place 2. Place waste in a public place 3. Place a waste storage container in a public place." Part E Public roads: "1. Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway 2. Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to overhang any part of the road or outside a shop window or doorway abutting the road, or hang an article beneath an awning over the road." Any work in, on or over the Road or Footway requires Council Approval and in the case of classified roads the NSW Roads and Traffic Authority. Road includes that portion of the road uses as a footway. Standard Condition: E7 E.6 Tree Preservation All persons must comply with Council's Tree Preservation Order ("the TPO"), other than where varied by this consent. The order applies to any tree, with a height greater than 5 metres or a diameter spread of branches greater than 3 metres, is subject to Council's Tree Preservation Order unless, exempted by specific provisions. Works to be carried out within a 5 metre radius of any tree, subject to the Tree Preservation Order, require the prior written consent of Council. General Protection Requirements: a. Where excavation encounters tree roots with a diameter exceeding 40mm excavation must cease. The principal contractor must procure an inspection of the tree roots exposed by a qualified arborist. Excavation must only recommence with the implementation of the recommendations of the qualified arborist or where specific instructions are given by Council's Tree Management Officer in strict accordance with such Council instructions. b. Where there is damage to any part of a tree the principal contractor must procure an inspection of the tree by a qualified arborist immediately. The principal contractor must immediately implement treatment as directed by the qualified arborist or where specific instructions are given by Council's Tree Management Officer in strict accordance with such Council instructions. Note : Trees must be pruned in accordance with Australian Standard AS 4373 – 2007 "Pruning of Amenity Trees" and Workcover NSW Code of Practice Amenity Tree Industry 1998. Standard Condition: E8 E.7 Support of adjoining land and buildings A person must not to do anything on or in relation to the site (the supporting land) that removes the support provided by the supporting land to any other land (the supported land) or building (the supported building). For the purposes of this condition, supporting land includes the natural surface of the site, the subsoil of the site, any water beneath the site, and any part of the site that has been reclaimed. Note : This condition does not authorise any trespass or encroachment upon any adjoining or supported land or building whether private or public. Where any underpinning, shoring, soil anchoring (temporary or permanent) or the like is considered necessary upon any adjoining or supported land by any person the principal contractor or owner builder must obtain: a) the consent of the owners of such adjoining or supported land to trespass or encroach, or b) an access order under the Access to Neighbouring Land Act 2000, or c) an easement under section 88K of the Conveyancing Act 1919, or d) an easement under section 40 of the Land & Environment Court Act 1979 as appropriate. Note : Section 177 of the Conveyancing Act 1919 creates a statutory duty of care in relation to support of land. Accordingly, a person has a duty of care not to do anything on or in relation to land being developed (the supporting land) that removes the support provided by the supporting land to any other adjoining land (the supported land). Note : Clause 20 of the Roads (General) Regulation 2000 prohibits excavation in the vicinity of roads as follows: " Excavations adjacent to road - A person must not excavate land in the vicinity of a road if the excavation is capable of causing damage to the road (such as by way of subsidence) or to any work or structure on the road." Separate approval is required under the Roads Act 1993 for any underpinning, shoring, soil anchoring (temporary)) or the like within or under any road. Council will not give approval to permanent underpinning, shoring, soil anchoring within or under any road. Note : The encroachment of work or the like is a civil matter of trespass or encroachment and Council does not adjudicate or regulate such trespasses or encroachments except in relation to encroachments upon any road, public place, crown land under Council's care control or management, or any community or operational land as defined by the Local Government Act 1993. Standard Condition: E13 E.8 Check Surveys - boundary location, building location, building height, stormwater drainage system and flood protection measures relative to Australian Height Datum The Principal Contractor or Owner Builder must ensure that a surveyor registered under the Surveying Act 2002 carries out check surveys and provides survey certificates confirming the location of the building(s) and the stormwater drainage system relative to the boundaries of the site and that the height of buildings and the stormwater drainage system relative to Australian Height Datum complies with this consent at the following critical stages. The Principal Contractor or Owner Builder must ensure that work must not proceed beyond each of the following critical stages until compliance has been demonstrated to the PCA's satisfaction: a) Upon the completion of foundation walls prior to the laying of any floor or the pouring of any floor slab and generally at damp proof course level; b) Upon the completion of formwork for floor slabs prior to the laying of any floor or the pouring of any concrete and generally at each storey; c) Upon the completion of formwork or framework for the roof(s) prior to the laying of any roofing or the pouring of any concrete roof; d) Upon the completion of formwork and steel fixing prior to pouring of any concrete for any ancillary structures, swimming pool or spa pool or the like; e) Driveway transitions and crest thresholds prior to pavement of driveways; f) Stormwater Drainage Systems prior to or post construction confirming location, height and capacity of works. g) Flood protection measures are in place confirming location, height and capacity. Note : This condition has been imposed to ensure that development occurs in the location and at the height approved under this consent. Standard Condition: E20 E.9 Placement and use of Skip Bins The principal contractor or owner builder must ensure that all waste storage containers, including but not limited to skip bins, must be stored within the site unless: a) Activity Approval has been issued by Council under section 94 of the Local Government Act 1993 to place the waste storage container in a public place, and b) Where located on the road it is located only in a positions where a vehicle may lawfully park in accordance with the Australian Road Rules to the extent they are adopted under the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999. Note : Waste storage containers must not be located on the footpath without a site specific activity approval. Where such site specific activity approval is granted a 1.5m wide clear path of travel is maintained free of any trip hazards. Standard Condition: E21 E.10 Dust Mitigation Dust mitigation must be implemented in accordance with " Dust Control - Do it right on site " published by the Southern Sydney Regional Organisation of Councils. This generally requires: a) Dust screens to all hoardings and site fences. b) All stockpiles or loose materials to be covered when not being used. c) All equipment, where capable, being fitted with dust catchers. d) All loose materials being placed bags before placing into waste or skip bins. e) All waste and skip bins being kept covered when not being filled or emptied. f) The surface of excavation work being kept wet to minimise dust. g) Landscaping incorporating trees, dense shrubs and grass being implemented as soon as practically possible to minimise dust. Note 1 : " Dust Control - Do it right on site " can be down loaded free of charge from Council's web site www.woollahra.nsw.gov.au or obtained from Council's office. Note 2: Special precautions must be taken when removing asbestos or lead materials from development sites. Additional information can be obtained from www.workcover.nsw.gov.au and www.epa.nsw.gov.au . Other specific condition and advice may apply. Note 3: Demolition and construction activities may affect local air quality and contribute to urban air pollution. The causes are dust, smoke and fumes coming from equipment or activities, and airborne chemicals when spraying for pest management. Precautions must be taken to prevent air pollution. Standard Condition: E23 F. Conditions which must be satisfied prior to any occupation or use of the building (Part 4A of the Act and Part 8 Division 3 of the Regulation) F.1 Occupation Certificate (section 109M of the Act) A person must not commence occupation or use of the whole or any part of a new building (within the meaning of section 109H (4) of the Act ) unless an occupation certificate has been issued in relation to the building or part. Note : New building includes an altered portion of, or an extension to, an existing building. Standard Condition: F1 F.2 Commissioning and Certification of Systems and Works The principal contractor or owner builder must submit to the satisfaction of the PCA works-as-executed ("WAE") plans, Compliance Certificates and evidence of suitability in accordance with Part A2.2 of the BCA confirming that the works , as executed and as detailed, comply with the requirement of this consent, the Act , the Regulations , any relevant construction certificate , the BCA and relevant Australian Standards . Works-as-executed ("WAE") plans, Compliance Certificates and evidence of suitability in accordance with Part A2.2 of the BCA must including but may not be limited to: a. Certification from the supervising professional engineer that the requirement of the Geotechnical / Hydrogeological conditions and report recommendations were implemented and satisfied during development work. b. All flood protection measures. c. All garage/car park/basement car park, driveways and access ramps comply with Australian Standard AS 2890.1 – "Off-Street car parking." d. All stormwater drainage systems. e. All mechanical ventilation systems. f. All hydraulic systems. g. All structural work. h. All acoustic attenuation work. i. All waterproofing. j. Such further matters as the Principal Certifying Authority may require. Note : This condition has been imposed to ensure that systems and works as completed meet development standards as defined by the Act , comply with the BCA, comply with this consent and so that a public record of works as execute is maintained. Note : The PCA may require any number of WAE plans, certificates, or other evidence of suitability as necessary to confirm compliance with the Act , Regulation , Development Standards, BCA , and relevant Australia Standards . As a minimum WAE plans and certification is required for stormwater drainage and detention, mechanical ventilation work, hydraulic services (including but not limited to fire services). Note : The PCA must submit to Council, with any Occupation Certificate , copies of works-as-executed ("WAE") plans, Compliance Certificates and evidence of suitability in accordance with Part A2.2 of the BCA upon which the PCA has relied in issuing any Occupation Certificate . Standard Condition: F7 G. Conditions which must be satisfied prior to the issue of any Subdivision Certificate N/A H. Conditions which must be satisfied prior to the issue of a Final Occupation Certificate (s109C(1)(c)) H.1 Fulfillment of BASIX commitments – Clause 154B of the Regulation All BASIX commitments must be effected in accordance with the BASIX Certificate No.A37196. Note : Clause 154B(2) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying authority must not issue a final occupation certificate for a BASIX affected building to which this clause applies unless it is satisfied that each of the commitments whose fulfilment it is required to monitor has been fulfilled." Standard Condition: H7 I. Conditions which must be satisfied during the ongoing use of the development I.1 Maintenance of BASIX commitments All BASIX commitments must be maintained in accordance with the BASIX Certificate No.A37196. Note: This condition affects successors in title with the intent that environmental sustainability measures must be maintained for the life of development under this consent. Standard Condition: I7 I.2 Noise from mechanical plant and equipment Noise from the operation of mechanical plant and equipment must not exceed background noise when measured at the nearest lot boundary of the site. Where noise sensitive receivers are located within the site, noise from the operation of mechanical plant and equipment must not exceed background noise when measured at the nearest strata, stratum or community title boundary. Reason : This condition has been imposed to protect the amenity of the neighbourhood. Note : Words in this condition have the same meaning as in the: NSW Industrial Noise Policy ( http://www.environment.nsw.gov.au/resources/ind_noise.pdf ) ISBN 0 7313 2715 2, dated January 2000, and Noise Guide for Local Government ( http://www.environment.nsw.gov.au/noise/nglg.htm ) ISBN 1741370671, dated December 2004. Standard Condition: I53 I.3 Retention of Views In order to retain views to Shark Island from the terrace area of Unit 2/23 Wentworth Street, a restriction in accordance with condition I.4 is imposed over the whole of the proposed terrace located off the north-east of Bedroom 1, as shown cross-hatched on the plan marked "Annexure A" being an extract of drawing DA.6 dated 2 November 2009 prepared by Michael Suttor Architects Pty Ltd. Reason: To provide view sharing of Shark Island from 2/23 Wentworth Street I.4 Retention of Views No structures, other than the clear glass balustrade located on the northern edge of the proposed terrace shall be placed or erected or landscaping installed or permitted to be grown or temporary devices such as umbrellas and other shade structures are to be used on the terrace referred to in condition I.3 unless they do not exceed the height of the dotted black line shown on the attached plan marked "Annexure B" being an extract of drawing DA.9-S prepared by Michael Suttor Architects Pty Ltd. Reason: To provide view sharing of Shark Island from 2/23 Wentworth Street I.5 Roof Structures No structure or device (including without limitation plant, equipment, air conditioning, ventilation, satellite dish, antenna) is to be placed on any part of the approved roof or extending beyond the limits of the approved walls of the dwellings except where: a) it is required to comply with the BCA and does not otherwise require development consent, unreasonably affect water views or views of Shark Island from 2/23 Wentworth Street or represent an unnecessary design solution b) it is shown on the approved plans c) it is required by a condition of development consent Reason: To provide view sharing of Shark Island from 2/23 Wentworth Street I.6 Eaves.projections and awnings No eaves, projections, awnings or any other device or structureis to be erected on any part of the roof or extending beyond the limit of the approved walls of the dwelling including the first floor terrace except where: a) required to comply with the BCA and does not otherwise require development consent, unreasonably affect water views or views of Shark Island from 2/23 Wentworth Street or represent an unnecessary design solution b) it is shown on the approved plans c) it is required by a condition of development consent Reason: To provide view sharing of Shark Island from 2/23 Wentworth Street J. Miscellaneous Conditions N/A. K. Advisings K.1 Criminal Offences – Breach of Development Consent & Environmental laws Failure to comply with this development consent and any condition of this consent is a criminal offence . Failure to comply with other environmental laws are also a criminal offence. Where there is any breach Council may without any further warning: - Issue Penalty Infringement Notices (On-the-spot fines); - Issue notices and orders; - Prosecute any person breaching this consent; and/or - Seek injunctions/orders before the courts to restrain and remedy any breach. Warnings as to potential maximum penalties Maximum Penalties under NSW Environmental Laws include fines up to $1.1 Million and/or custodial sentences for serious offences. Warning as to enforcement and legal costs Should Council have to take any action to enforced compliance with this consent or other environmental laws Council's policy is to seek from the Court appropriate orders requiring the payments of its costs beyond any penalty or remedy the Court may order. This consent and this specific advice will be tendered to the Court when seeking costs orders from the Court where Council is successful in any necessary enforcement action. Note : The payment of environmental penalty infringement notices does not result in any criminal offence being recorded. If a penalty infringement notice is challenged in Court and the person is found guilty of the offence by the Court, subject to section 10 of the Crimes (Sentencing Procedure) Act 1999, a criminal conviction is recorded. The effect of a criminal conviction beyond any fine is serious. You can obtain further information from the following web sites: http://www.theshopfront.org/documents/ConvictionsCriminalRecords.pdf and the Attorney General's www.agd.nsw.gov.au . Standard Advising: K1 K.2 Dial before you dig The principal contractor , owner builder or any person digging may be held financially responsible by the asset owner should they damage underground pipe or cable networks. Minimise your risk and Dial 1100 Before You Dig or visit www.dialbeforeyoudig.com.au . When you contact Dial Before You Dig, you will be sent details of all Dial Before You Dig members who have underground assets in the vicinity of your proposed excavation. Standard Advising: K2 K.3 Builders Licences and Owner Builders Permits Section 81A of the Act requires among other matters that the person having the benefit of the development consent, if not carrying out the work as an owner-builder , must appointed a principal contractor for residential building work who must be the holder of a contractor licence. Further information can be obtained from the NSW Office of Fair Trading website about how you obtain an owner builders permit or find a principal contractor (builder): http://www.dft.nsw.gov.au/building.html . The Owner(s) must appoint the PCA . The PCA must check that Home Building Act insurance is in place before the commencement of building work. The Principal Contractor (Builder) must provide the Owners with a certificate of insurance evidencing the contract of insurance under the Home Building Act 1989 for the residential building work. Standard Condition: K5 K.4 Building Standards - Guide to Standards and Tolerances The PCA does not undertake detailed quality control inspections and the role of the PCA is primarily to ensure that the development proceeds in accordance with this consent, Construction Certificates and that the development is fit for occupation in accordance with its classification under the Building Code of Australia. Critical Stage Inspections do not provide the level of supervision required to ensure that the minimum standards and tolerances specified by the "Guide to Standards and Tolerances©" ISBN 0 7347 6010 8 are achieved. The quality of any development is a function of the quality of the principal contractor's or owner builder's supervision of individual contractors and trades on a daily basis during the development. The PCA does not undertake this role. The NSW Office of Fair Trading have published a "Guide to Standards and Tolerances©" ISBN 0 7347 6010 8. The guide can be obtained from the Office of Fair Trading by calling 13 32 20 or by Fax: 9619 8618 or by post to: Marketing Branch, PO Box 972, Parramatta NSW 2124. The Guide can be down loaded from: http://www.fairtrading.nsw.gov.au/pdfs/corporate/publications/dft242.pdf Council, as the PCA or otherwise, does not adjudicate building contract disputes between the principal contractor , contractors and the owner. Standard Condition: K6 K.5 Workcover requirements The Occupational Health and Safety Act 2000 No 40 and subordinate regulations, codes of practice and guidelines control and regulate the development industry. Note : Further information can be obtained from Workcover NSW's website: http://www.workcover.nsw.gov.au/Industry/Construction/default.htm or through their head office: Location: Workcover NSW, 92-100 Donnison Street, GOSFORD 2250 Postal address: WorkCover NSW, Locked Bag 2906, LISAROW 2252, Phone (02) 4321 5000, Fax (02) 4325 4145. Standard Condition: K7 K.6 Appeal Council is always prepared to discuss its decisions and, in this regard, please do not hesitate to contact: Sarah Chambers, Senior Assessment Officer on (02) 9391 7064 However, if you wish to pursue your rights of appeal in the Land & Environment Court you are advised that Council generally seeks resolution of such appeals through a Section 34 Conference, site hearings and the use of Court Appointed Experts, instead of a full Court hearing. This approach is less adversarial, it achieves a quicker decision than would be the case through a full Court hearing and it can give rise to considerable cost and time savings for all parties involved. The use of the Section 34 Conference approach requires the appellant to agree, in writing, to the Court appointed commissioner having the full authority to completely determine the matter at the conference. Standard Condition: K14 K.7 Release of Security An application must be made to Council by the person who paid the security for release of the securities held under section 80A of the Act . The securities will not be released until a Final Occupation Certificate has lodged with Council, Council has inspected the site and Council is satisfied that the public works have been carried out to Council's requirements. Council may use part or all of the security to complete the works to its satisfaction if the works do not meet Council's requirements. Council will only release the security upon being satisfied that all damage or all works, the purpose for which the security has been held have been remedied or completed to Council's satisfaction as the case may be. Council may retain a portion of the security to remedy any defects in any such public work that arise within 6 months after the work is completed. Upon completion of each section of road, drainage and landscape work to Council's satisfaction, 90% of the Bond monies held by Council for these works will be released upon application. 10% may be retained by Council for a further 6 month period and may be used by Council to repair or rectify any defects or temporary works during the 6 month period. Note: The Application for Refund of Security form can be downloaded from http://www.woollahra.nsw.gov.au/pdf/Forms/Planning/RefundofSecurity.pdf Standard Condition: K15 K.8 Pruning or Removing a Tree Growing on Private Property Woollahra Municipal Council's Tree Preservation Order 2006 (TPO) may require that an application be made to Council prior to pruning or removing any tree. The aim is to secure the amenity of trees and preserve the existing landscape within our urban environment. Before you prune or remove a tree, make sure you read all relevant conditions. You can obtain a copy of the TPO from Council's website www.woollahra.nsw.gov.au or you may contact Council on 9391-7000 for further advice. Standard Condition: K19 ________________________ G T Brown 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.