Land and Environment Court of New South Wales CITATION : CSA Architects Pty Limited v Waverley Council [2009] NSWLEC 1221 APPLICANT CSA Architects Pty Limited PARTIES : RESPONDENT Waverley Council FILE NUMBER(S) : 10228 of 2009 CORAM: Tuor C DEVELOPMENT APPLICATION :- Construct 2-storey dwelling, lift/stair tower, double garage and swimming pool. KEY ISSUES: non compliance with height control impact on streetscape and conservation area impact on residential amenity Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Waverley Local Environmental Plan 1996 Waverley Development Control Plan 2006 DATES OF HEARING: 15 June 2009 EX TEMPORE JUDGMENT DATE : 16 June 2009 APPLICANT Mr Conomos (solicitor) of Conomos Legal LEGAL REPRESENTATIVES: RESPONDENT Mr Patterson (solicitor) of Wilshire Webb Staunton Beattie Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Tuor C 16 June 2009 10228 of 2009 CSA Architects Pty Limited v Waverley Council This decision was given extemporaneously. It has been revised and edited prior to publication. JUDGMENT 1 Commissioner: This is an appeal against the refusal by Waverley Council (council) of a development application (303/2008) to demolish an existing dwelling and construct a new two-storey dwelling, lift and stair tower, double garage and swimming pool at 1 View Street, Queens Park (the site). 2 The main issue between the parties is whether the proposed lift and stair tower should be deleted. The site and its locality 3 The site is located on the western side of View Street, one lot north from its intersection with Victoria Street. The site is rhomboid in shape with an average depth of 31.5 metres and a width varying between 17.7 metres and 20.8 metres. It has an area of approximately 622 sqm. The site is some 9 metres below View Street at the bottom of the Queens Park ridge escarpment. 4 The site is accessed off Victoria Street via a council public road, which also provides access to 100 Victoria Street, which is a two-storey house and adjoins the site to the south. 98 Victoria Street also adjoins the rear of the site to the south. 3 View Street adjoins the site to the north, which has a two-storey dwelling built on top of the escarpment fronting View Street; 13 Arnold Street adjoins the site to the rear. 5 View Street contains a mixture of mainly two-storey dwellings dating from the interwar period to the late 1960s. The locality is characterised by a mix of one to two-storey residential premises, mostly single detached dwelling houses. Planning Controls 6 The site is zoned Residential 2(a) under Waverley Local Environmental Plan 1996 (LEP 1996). The proposal is permissible with consent. The site is located within the Blenheim Gully Conservation Area. 7 Waverley Development Control Plan 2006 (DCP 2006) is also relevant. The proposal is within the Queens Park Residential Character Study. The proposal generally complies with the controls in DCP 2006. 8 The key dispute related to the non-compliance of the lift tower with the 7.5 metre height control in cl 5.1 of DCP 2006. The proposed height of the lift tower is 12.2 metres. The evidence 9 The Court heard evidence from objectors on site including the owners of the adjoining properties at 3 View Street, 98 and 100 Victoria Street. The issue of an easement over 13 Arnold Street was resolved between the applicant and the owners of this property. The main concern of the objectors was the appearance of the lift and stair tower from View Street and the surrounding area and the modern appearance of the dwelling and its consistency with the character of Queens Park. The adjoining owners were mainly concerned about the western end of the building, which they considered should be reduced in height to step down the site. The owners of 98 and 100 Victoria Street considered this would reduce the impact on solar access to their properties. The owner of 3 View Street considered this would reduce the bulk of the development and its impact on the outlook from her property. 10 The Court heard expert planning evidence from Mr N Kennan, for council and Mr A Betros, for the applicant. Mr R Staas provided evidence for the applicant on the impacts of the proposal on the conservation area, heritage items in the vicinity and the streetscape. He considered the proposal would be recessive and would not adversely impact on the heritage significance of Queens Park or the Blenheim Gully Conservation Area. While Mr Staas recognised that the lift tower was uncharacteristic in the street he considered it to be acceptable due to its minimum size, height and predominantly glass materials. In his opinion lift would not impact on views or detract from the streetscape or the conservation area. 11 Mr Betros stated that the lift is set back from the street boundary and the side boundaries of the site. The lift is 1.8 metres by 1.55 metres and projects about 1.5 metres above the level of View Street. In his opinion the lift is a minor element in the streetscape. While uncharacteristic, it would not result in adverse amenity impacts such as loss of views or solar access. In Mr Betros' opinion the non-compliance with the height control was justified. Further, he considered the proposed lift met the reasonable needs of the applicant to provide direct pedestrian access to the proposal from View Street rather than along the driveway off Victoria Street, which was steep and did not provide a reasonable street address for the dwelling for deliveries, visitors or services such as garbage collection. 12 In relation to the impacts of the dwelling on the adjoining properties, Mr Betros considered the proposal more than met the requirements for solar access in DCP 2006. There would be no impact on the upper level windows and the deck of 100 Victoria Street, and the impact on its drying area was acceptable given the use of the area and the other areas of open space. The side setback of the first floor of the proposal is 3 metres which more than exceeds the requirements in DCP 2006. Mr Betros also considered the impact on solar access to 98 Victoria Street was acceptable given that all the internal living areas and more than 50% of the rear yard would achieve more than three hours of sunlight. Mr Betros did not consider there was any need to further setback the building towards the east or to decrease the height of the western end as this complied with or was below the height control in DCP 2006, except for an area of about one sqm at the western end. In his opinion the proposal met the objectives of the height control, including the requirement to step buildings on a sloping site. Further changes to the proposal would, in Mr Betros opinion, impact on the amenity and functionality of the dwelling. 13 Mr Kennan's principal concern related to the lift and stairs, which he stated exceeded the height control and would be visible in the street and from 3 View Street. In his opinion, the removal of the lift and stairs would enable the dwelling to be moved towards the east and the cliff edge thereby reducing its impact on the adjoining properties. In particular, Mr Kennan considered solar access to 98 Victoria Street would be improved by this change. In his opinion solar access to 100 Victoria Street was acceptable. Findings 14 The objectives of the building height control in cl 5.1 of DCP 2006 are: (a) to ensure the height and scale of development relates to the topography with minimal cut and fill; (b) to minimise loss of views from other dwellings; (c) to minimise loss of privacy to other dwelling; (d) to maintain acceptable solar access to dwellings and adjoining open space; (e) to minimise bulk-related impacts of dwelling houses and dual occupancy development; (f) to ensure buildings enhance the predominant neighbourhood and street character; and (g) to ensure that visual impacts of the scale of dwelling houses and dual occupancy developments are acceptable. 15 The strategy in 5.1.1(a) provides: dwelling house development is not to be excessive in height and scale and should be compatible with the existing character of the location. 16 The control in 5.1.1 includes a maximum height of 7.5 metres and the requirement that on steep slopes buildings are stepped down to avoid high columns, elevated platforms and large undercroft areas. 17 The proposed lift exceeds the height by about 4.7 metres although it only projects above View Street by about 1.5 metres. However, the lift, stairs, platforms, letterbox wall and 7 metre access way will result in considerable structures which are not characteristic of View Street. All the experts agree that there is no other structure like it in the street or the area. 18 The proposal will cause a minor increase in overshadowing of 98 Victoria Street and will impede views along View Street to a minor extent, but its principal impact will be that, although small, it is an element that does not enhance the predominant neighbourhood and street character and therefore does not meet cl 5.1(f). Nor does it meet the objective of the streetscape control in cl 5.4(c) which provides that development is: To be visually sympathetic to other buildings in its vicinity and to the streetscape it belongs to. 19 The elevated position of View Street provides extensive views over Queens Park and beyond. Its occupants and those who use the street value this outlook. While the lift is only a minor element and will, to some extent, be screened by vegetation it will be seen and it will appear as an element that is not visually sympathetic to the streetscape. 20 I do not accept that the requirements of the applicant for easy and legible pedestrian access and a View Street address provide sufficient justification to vary the height control. Access to the proposal is off Victoria Street and has been the access to the existing dwelling on the site for a number of years. While the access is steep it is not unreasonable. I therefore accept the council's condition that the lift and stair be deleted. 21 In relation to Mr Kennan's evidence that the proposal should be moved closer to the east, I do not consider that this would provide a material benefit that would warrant such a change given the constraints that it would impose on the development and the minor benefit in solar access and outlook that may be achieved. The proposal is set back from its southern boundary 3 metres, which exceeds the requirement in cl 5.3.1 in DCP 2006 of 900 mm or 1200 mm if the height of the dwelling exceeds the height control in cl 5.1. 22 The proposal complies with the solar access controls in cl 3.2 of pt G of DCP 2006 and is acceptable given the extent to solar access that will be retained at 98 and 100 Victoria Street and the amendments to the proposal that have already occurred. 23 The purpose of stepping the building is to minimise high columns, elevated platforms and large undercroft areas. The experts and the report to council did not raise an issue with the extent of undercroft area or the other elements. Generally the stepping of the proposal is acceptable given the topography of the site. 24 The parties disagree whether the requirement for a construction management plan and report on the suitability of the existing driveway for construction works and future use of the site should be a deferred commencement condition. I accept the applicant's submission in this regard. Council owns the access driveway and the conditions, as amended, require the satisfaction of council's Manager of Technical Services prior to the construction certificate being issued. This provides sufficient certainty that the conditions will meet council's requirements prior to works commencing. Orders 25 The Orders of the Court are therefore: 1. The appeal is upheld. 2. The development application (303/2008) to demolish an existing dwelling and construct a new two-storey dwelling with double garage and swimming pool at 1 View Street, Queens Park is approved subject to the conditions in Annexure A. 3. The exhibits except Exhibits 3, A and B may be returned. ___________________ Annelise Tuor Commissioner of the Court ljr Annexure 'A' Conditions of Consent CSA ARCHITECTS PTY LTD v WAVERLEY COUNCIL 1 VIEW STREET, QUEENS PARK A. Approved Development 1. Approved Development The development must be in accordance with: (a) Architectural Plan Nos TESS-01 to 05 inclusive prepared CSA Architects dated 2 June 2009, and received by Council on 10 June 2009, (b) Landscape Plan No. L1 'B', Project No.07:2:8 prepared by Wallman & Partners Pty Ltd dated 19 March 2009, and received by Council on 31 March 2009; (c) The Basix Certificate; (d) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist Part 1 of DCP 19. except where amended by the following conditions of consent; 2. general modifications The proposal shall be amended as follows: (a) The lift and stair tower above first floor level is not approved and shall be deleted. (b) The roof of the proposed development is to be of a suitable non-reflective material. (c) A schedule of colour, material and finishes of the proposed development cohesive to the setting and prominent hill side shall be submitted for Council's consideration and approval prior to the issue of the Construction Certificate. The schedule shall include details of proposed external walls and roofing materials in the form of either trade brochures or building samples. The schedule shall also include window fenestration and window frame colour details, as well as fencing, paving and balustrading details and guttering colour. (d) The BASIX certificate is to be modified to reflect the approved development. The amendments shall be submitted for the approval of Council prior to the issue of a construction certificate under the Environmental Planning and Assessment Act 1979. 3. height of dwelling The maximum height of the dwelling shall be restricted to RL 78.30. b Compliance Prior to Issue of Construction Certificate 4A. DRIVEWAY SUITABILITY Prior to the issue of the Construction Certificate, a practicing Structural Engineer shall prepare a report on the suitability of the existing driveway to the site over Council's land for the purposes of the construction works and future use of the site to the satisfaction of Council's Manager Technical Services. If required, an alternative design for the driveway is to be provided and constructed as part of the development at the expense of the applicant. 4B EASEMENT FOR DRAINAGE The Applicant is to obtain an easement for drainage through 13 Arnold Street Queens Park in accordance with the agreement reached between the applicant and the owners of 13 Arnold Street on 15 June 2009.This easement is to be surveyed by a registered surveyor and the survey plan registered with the Lands Titles Office and should appear on the Certificate of Title of the affected properties. New / amended stormwater plans for 1 View Street, Queens Park are to be submitted to Council showing the details for the on-site detention system draining via gravity to the kerb in Arnold Street through 13 Arnold Street, to the satisfaction of Council's Manager Technical Services. Prior to the issue of a Construction Certificate, the applicant must provide evidence of a copy of the registered easement to Council. 4C. CONSTRUCTION VEHICLE PLAN OF MANAGEMENT Submission of a "Construction Vehicle Plan of Management" to the satisfaction of Council's Manager Technical Services for the routing and control of construction vehicles accessing and exiting the site. This plan is to address the hours of operation, the employees' vehicles, holding areas for vehicles wanting to access the site and truck works and provide a means of ensuring vehicular and pedestrian access to adjoining resident's properties for the duration of the works. The "Construction Vehicle Plan of Management" is to be approved by Council prior to the issue of a Construction Certificate and the undertaking of any demolition, remediation or construction on the site. 4. SECTION 94A CONTRIBUTION A cash contribution is payable to Waverley Council pursuant to section 94A of the Environmental Planning and Assessment Act 1979 and the "Waverley Council Development Contributions Plan 2006" in accordance with the following: (a) A cost report indicating the itemised cost of the development shall be completed and submitted to Council: 1. Where the total development cost is less than $500,000: "Waverley Council Cost Summary Report"; or, 2. Where the total development cost is $500,000 or more: "Waverley Council Registered Quantity Surveyor's Detailed Cost Report". A copy of the required format for the cost reports may be obtained from Waverley Council Chambers (First Floor) or downloaded from: www.waverley.nsw.gov.au/publications/ (b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000. Waverley Council Development Contributions Plan 2006 may be inspected at Waverley Council Chambers, First Floor, Cnr Paul Street and Bondi Road, Bondi Junction. Advisory Note o A development valued at $100,000 or less will be exempt from the levy. o A development valued at $100,001 - $200,000 will attract a levy of 0.5%. o A development valued at $200,001 or more will attract a levy of 1% based on the full cost of the development. 5. Swimming pools The following requirements apply to the use and operation of the approved pool: (a) The pool water being treated by an approved water treatment and filtration unit. (b) The pool is to be fitted with a cover that shall be fitted when the pool is not in use to minimise evaporation and conserve water. (c) To prevent noise nuisance to surrounding properties, the pool filtration motor and pump unit is to be housed within a ventilated soundproof enclosure. 6. security deposit A deposit or guarantee satisfactory to Council for the amount of $10,000 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work. This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work. 7. long service levy A long service levy, as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, is to be paid in respect to this building work. In this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate. Note: Council acts as an agent for the Long Service Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.35% of building work costing $25,000 or more. 8. no building works prior to release of construction certificate The building work, including demolition, must not be commenced until: (a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and (b) Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81A(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and (c) Council is given at least two days Notice in writing of the intention to commence the building works. The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority. 9. hoarding required A standard A-Class hoarding designed and constructed in accordance with the requirements of the Work Cover Authority being erected on the street alignments of the property, prior to the commencement of building operations, and such hoardings to be maintained during the course of building operations. Details of the hoarding are to be provided to Council prior to issue of the Construction Certificate. Where the hoarding is to be erected over the footpath or any public place, the approval of Council must be obtained prior to the erection of the hoarding. 10. EROSION, SEDIMENT AND POLLUTION CONTROL Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate. 11. ENGINEERING DETAILS Structural details prepared and certified by a practicing Structural Engineer being furnished to Council or Accredited Certifier in connection with structural works prior to the issue of a Construction Certificate. 12. FENCE NOT TO ENCROACH BEYOND BOUNDARIES No portion of the proposed fence or wall, including the footings, is to encroach beyond the boundaries of the subject property. Alternatively, documentary evidence that the owner of the adjoining property has no objection to the construction of the party fence wall on the common boundary between these properties is to be submitted to Council prior to the issue of a Construction Certificate. 13. BASIX The undertakings provided in the Basix Certificate shall be provided for in the Construction Certificate plans and documentation prior to the issue of the Construction Certificate plans. The Principal Certifying Authority shall be responsible for ensuring that all the undertakings are satisfied prior to the issue of an Occupation Certificate. The above condition is a prescribed condition under the Environmental Planning and Assessment Act Regulations clause 97A and the above Basix commitments are mandatory and can not be modified under Section 96 of the Environmental Planning and Assessment Act, 1979. 14. USE OF RENEWABLE TIMBERS Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings so as to help protect the existing areas of rainforest. In this regard, a schedule of proposed timber products to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used. 15. amended landscape plan The Landscape Plan is to be amended by the following changes: (a) All new landscaping on the site (trees, shrubs, and groundcovers) are to be 100% representative of a local native species. (b) Screen plantings are to be provided to the north side boundary around the pool area / deck. The amended landscape plan is to be submitted to Waverley Council's Tree Management Officer for approval with the plans for the Construction Certificate. 16. TREE PLAN A landscape plan is to be submitted with the Construction Certificate showing the location of all trees on the land in relation to the proposed development, including trees to be removed. All trees and shrubs on the subject and neighbouring properties identified for retention and within 7.5m of the building work are to be provided with a tree guard and a notice on each guard indicating "This tree is the subject of a Tree Preservation Order by Waverley Council." This notice is to be in place prior to commencement of any building or demolition work. Only trees with the approval of Council for removal may be removed from the site. + Trees to be retained and protected Species Location Action Retain and protect Chinese Elm Southern boundary *TPZ to within 0.5 metres of building envelope and parallel to the southern boundary fence Retain and protect Camellia sp (x3) Southern boundary *TPZ to within 0.5 metres of building envelope and parallel to the southern boundary fence Retain and protect Melia sp Rear (western) boundary *TPZ to 2.5 metres from the middle of the trunk (NB: If root system of this tree is disturbed then root suckering will occur. This is not desirable) Retain and protect Bay tree Northern Boundary *TPZ to 2.0 metres from the middle of the trunk Retain and protect Vegetation on the top of the slope/cliff, all tree specimens Eastern boundary No building works to occur in this area. * TPZ- Tree protection zone TPZ - A 1.8m high chain link wire fence or the like shall be erected around the above trees to be retained to protect them from damage during construction. Soil levels are not to be changed around these trees. No mechanical excavation shall be undertaken within the tree canopy spread (within the dripline). If tree roots greater than 30mm are encountered then post shall be relocated away from that root. Any roots smaller that 30mm diameter is to be pruned as per specifications below. If tree roots are required to be removed for the purposes of constructing the approved works they shall be cut cleanly by hand, by an experienced Arborist/Horticulturist (with a minimum qualification of the Horticulture Certificate or Tree Surgery Certificate). It is the arborist's responsibility to determine if such root pruning is suitable. If there are any concerns regarding this process then Council's Tree Management Officer is to be contacted to make a final determination. Planting holes of 1m square are to be provided at the base of the trees that are impacted on by the decking to allow for water run off from the deck and nutrient exchange at ground level. c Compliance Prior to and During Construction 17. PRIOR TO SITE WORKS The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of: (a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work ; or (b) the name and permit number of the owner/builder who intends to do the work; and (c) any change to these arrangements for doing of the work. 18. home building act The builder or person who does the residential building work shall comply with the applicable requirements of Part 6 of the Home and Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences. 19. CONSTRUCTION SIGNS Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works. 20. EXCAVATION AND BACKFILLING All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property. 21. excavation below footings If an excavation associated with the erection or demolition of a building extends below the level of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made, at their own expense, must: (a) preserve and protect the building from damage; and (b) if necessary, must underpin and support the building in an approved manner; and (c) must, at least seven days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished. 22. obstruction to public areas If a public place or pedestrian vehicular traffic may be obstructed because of the carrying out of work involved in the erection or demolition of a building; or a public place is required to be enclosed in connection with the erection or demolition of a building; then: (a) a hoarding fence must be erected between the building site and the public place of the proposed building and the public place. If necessary, an awning sufficient to prevent any substance from, or in connection with, the work falling into the public place, is also to be erected; (b) the work is to be kept lit during the time between sunset and sunrise if the work may be of a sort of danger to persons using the public place; and (a) a hoarding, fence or awning is to be removed when it is no longer required for the purpose it was provided. 23. TOILET FACILITIES Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water. 24. NO USE OF ORGANOCHLORIN PESTICIDES The use of organochlorin pesticides as termite barriers in new development is prohibited pursuant to Council Policy. Only physical barriers are to be used for termite control. The building shall comply with Australian Standard 3660: Protection of building from subterranean termites - prevention, detection and treatment of infestation. 25. DEMOLITION OR ALTERATION OF PRE 1987 BUILDINGS At least five (5) days prior to the demolition, renovation work or alterations and additions to any building constructed before 1987, the person acting on the consent shall submit a Work Plan prepared in accordance with Australian Standard AS260-2001, Demolition of Structure and a Hazardous Materials Assessment by a person with suitable expertise and experience. The Work Plan and Hazardous Materials Assessment shall: (a) outline the identification of any hazardous materials, including surfaces coated with lead paint; (b) confirm that no asbestos products are present on the subject land; or (c) particularise a method of safely disposing of the asbestos in accordance with the Code of Practice for the Safe Removal of Asbestos NOHSC 2002 (1998); (d) describe the method of demolition; (e) describe the precautions to be employed to minimise any dust nuisance; and (e) describe the disposal methods for hazardous materials. 26. demolition & site PREPARATION Hazardous or intractable wastes arising from the demolition process being removed and disposed of in accordance with the requirements NSW WorkCover Authority and the DEC, and with the provisions of: (a) New South Wales Occupational Health and Safety Act, 2000; (b) The Occupational Health and Safety (Hazardous Substances) Regulation 2001; (c) The Occupational Health and Safety (Asbestos Removal Work) Regulation 2001; (d) Protection of the Environment Operations Act 1997 (NSW) and (e) DEC's Environmental Guidelines; Assessment, Classification and Management of Liquid and Non Liquid Wastes (1999). 27. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS All site works complying with the occupational health and safety requirements of WorkCover NSW. 28. SOIL AND WATER MANAGEMENT SIGN Throughout the construction/remediation/demolition period, Council's warning sign for soil and water management must be displayed on the most prominent point of the building site, visible to both the street and site works. A copy of the sign is available from Council. 29. STOCKPILES Stockpiles of topsoil, sand, aggregate, soil or other material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls. 30. LOCATION OF BUILDING OPERATIONS Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system. 31. ALL BUILDING MATERIALS STORED ON SITE All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval. 32. CONSTRUCTION HOURS Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on: (a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends; (b) Sundays and public holidays; and (c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW. Noise from construction activities shall comply with the Protection of the Environment Operations (Noise Control) Regulation 2000. 33. CONSTRUCTION NOISE - PERIODS GREATER THAN 4 WEEKS AND NOT EXCEEDING 26 WEEKS The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver. 34. BUILDING CODE OF AUSTRALIA All building work must be carried out in accordance with the requirements of the Building Code of Australia. 35. quality of construction act - inspections (dwelling houses class 1 and 10) The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certificate. MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate. The specified MANDATORY inspections are: In the case of a Class 1 and 10 building: (a) at the commencement of building work; (b) after excavation for, and prior to the placement of, any footings; (c) prior to pouring any in-situ reinforced concrete building element; (d) prior to covering of the framework for any floor, roof or other building element; (e) prior to covering any waterproofing in any wet areas; (f) prior to covering any stormwater drainage connections; and (g) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building. The following additional inspections are required to be undertaken by the PCA: (a) sediment control measures prior to the commencement of building work; (b) foundation material prior to undertaking building work; (c) shoring of excavation works, retaining walls, piers, piling or underpinning works; (d) steel reinforcement, prior to pouring concrete; (e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns; (f) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls); and (g) swimming pool fencing prior to filling the pool. Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction. 36. CERTIFICATE OF SURVEY - LEVELS All construction works shall be strictly in accordance with the Reduced Levels (RLs) as shown on the approved plans. Certification from a Registered Surveyor certifying ground, upper floor/s and finished ridge levels is to be submitted to the Principal Certifying Authority during construction and prior to continuing to a higher level of the building. 37. TREE PRESERVATION A tree preservation order exists in Waverley. Before any site can be developed, an application must be made in writing to Council prior to removal of tree/trees. Should permission be granted, the applicant will receive a permit to proceed. 38. TREE PROTECTION Precautions shall be taken when working near trees to ensure their retention, including the following: (a) Do not store harmful or bulk materials or spoil under or near trees; (b) Prevent damage to bark and root system; (c) Do not use mechanical methods to excavate within root zones; (d) Do not add or remove topsoil from under the drip line; (e) Do not compact ground under the drip line; (f) Do not mix or dispose of liquids within the drip line of the tree; and (g) All trees marked for retention must have a protective fence/guard placed around a nominated perimeter. 39. TREES TO BE REMOVED All trees shown for removal on Landscape plan, Drawing No L1 'A' are granted approval for removal. Any other trees not shown on the Landscape plan, Drawing No L1 'A' that are directly impacted upon by the works proposed are granted permission for removal (refers to a clump of Privet and Pittosporum sp at the western extremity of the proposed building) In line with Council's policy to maintain and increase tree cover in the Council area, all trees where consent has been given for removal are to be replaced with a local native tree of minimum container size of 45 litres / height of up to 2 metres. It is therefore required that a minimum of 16 local native tree species are to be planted on the site The replacement local native trees to be planted shall be maintained in a healthy and vigorous condition until they attain a height of 4.0 metres whereby they will be protected by Council's Tree Preservation Order. Any of the trees found faulty, damaged, dying or dead shall be replaced with the same species at no cost to Council. Replacement species are to be submitted to Waverley Council's Tree Management Officer for approval with the plans for the Construction Certificate. 40. construction of swimming pools The following applies to the construction of swimming pools: (a) Reinforcement is to be inspected by an Accredited Officer or other suitably qualified person prior to the pouring of concrete; (b) The electrical wiring system for any proposed underwater artificial lighting installation to the pool being installed in accordance with the requirements of Australian Standard 3000, Part 1 - Wiring Rules; (c) The finished level of the proposed pool is not to exceed a maximum height of RL 70.7. (d) To minimise the likelihood of accidental drowning, the swimming pool is to be provided with a child resistant safety fence, designed and constructed in accordance with the requirements of Australian Standard 1926-1993 "Fencing for Private Swimming Pools". This fencing is to be erected and inspected by the Principal Certifying Authority prior to the pool being filled with water; and (e) A final inspection of the completed pool is to be carried out by the Principal Certifying Authority prior to the pool being filled with water. 41. POOL DRAINAGE Waste waters from the proposed pool being discharged into Sydney Water's sewerage system and in this regard, approved plans MUST be submitted to Sydney Water at least fourteen (14) days prior to commencement of building operations. 42. work outside property boundary All work outside the property boundary is to be carried out with the approval of, and in accordance with, the requirements of Council at the applicant's expense. In particular, any requirements to rebuild the existing driveway for construction purposes and / or to service the proposed house. 45. CERTIFICATE OF SURVEY - BOUNDARIES AND LOCATION OF BUILDING A Certificate of Survey prepared by a Registered Surveyor setting out the boundaries of the site and the actual situation of the building on the site is to be submitted to the Principal Certifying Authority to certify the building is located in accordance with the development consent plans. The Certificate is to be submitted prior to the construction of the external walls above the ground floor level of the building. 46. SMOKE ALARM SYSTEM A smoke alarm system is to be installed within the building in accordance with the requirements of the Building Code of Australia. 47. SERVICE PIPES All plumbing and drainage, including sewerage drainage stacks, ventilation stacks and water service pipes shall be concealed within the building. Plumbing other than stormwater downpipes shall not be attached to the external surfaces of the building. D. Compliance Prior to Occupation or During Occupation 48. FINAL OCCUPATION CERTIFICATE The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied. 49. POOL SIGN An approved sign outlining details of resuscitation techniques for adults, children and infants must be placed in a prominent position, close to the pool prior to filling the pool with water. Signs are available from Council's Planning & Environmental Services Department. 50. INSPECTION OF POOL A final inspection of the completed pool is to be carried out by the Principal Certifying Authority prior to the pool being filled with water. ________________________ Annelise Tuor 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.