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Young & Anor v Leichhardt Municipal Council [2009] NSWLEC 1117 (4 February 2009)

New South Wales Land and Environment Court

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Young & Anor v Leichhardt Municipal Council [2009] NSWLEC 1117 (4 February 2009)

Last Updated: 1 May 2009

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
Young & Anor v Leichhardt Municipal Council [2009] NSWLEC 1117
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Paul Young & Anor

RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S):
10914 of 2008

CATCHWORDS:
Development Application :- Alterations and additions to add three storey extension and double garage, impact on solar access on adjoining property to south, impact on heritage conservation area, impact on views

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Sydney Region Environmental Plan Harbour Catchment 2005
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000

CASES CITED:
Tenacity Consulting v Warringah Council NSWLEC 140
Parsonage v Ku-ring-gai NSWLEC 347

CORAM:
Murrell C

DATES OF HEARING:
02/02/2009, 03/02/2009 and 04/02/2009

EX TEMPORE DATE:
4 February 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr A. Pickles, barrister
Instructed by Hickson Lawyers

RESPONDENT
Ms J. Walsh, solicitor
of Pikes Lawyers

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

Murrell C

4 February 2009

10914 of 2008 Paul Young & Anor v Leichhardt Municipal Council

This determination was given extemporaneously

and it has been edited prior to publication

JUDGMENT

This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979 against Leichhardt Council’s refusal of a development application for alterations and additions to the property known as No 5 Longview Street, Balmain. A s 82A review under the Act was also submitted to the council but was not determined at the time of this hearing. The proposed is to provide a three storey extension and double garage on the southern boundary.
The Court met on site and heard from the objectors. By way of background council granted consent to major alterations and additions to a cottage on the subject site and there have also been further modifications to the original approval in 1998.
The Court heard from a number of objectors on site in terms: of the view loss; solar access; and the impact on the streetscape and for the record I will briefly summarise the objections. Ms Howlin of 7 Longview, the property immediately adjacent to the subject property to the south, gave evidence. Her property is a dual occupancy with a unit or a dwelling on the top floor and a unit or a dwelling on the lower floor. Also constructed on No. 7 are two single garages with gabled ends to Longview Street. The dual occupancy application was approved under a previous planning regime and has a setback of 1.7 metres from the northern boundary with a floor space ratio (not that this is determinative or an issue in these proceedings) greater than what is currently allowed on the subject site.
Ms Howlin and her partner are concerned about the overshadowing impact of the proposed development because of the limited sunshine/solar access to in particular the lower level unit of the development in which they reside. While the upper floor level was previously been rented out, it is currently being used for the purpose of a photo/arts studio. The owners are concerned that the proposed development has not had regard to their solar access, in particular on the lower level, and this is in respect of the study and kitchen windows in particular. Also, the concern about a hedge or a row of Lili Pillis that have been planted along the boundary that has the effect of reducing solar access further to their property. They are also concerned about the proposed setback from the boundary. They also shared the views of other residents about the heritage conservation area and the proposal not being in keeping, in particular the purple colour of the dwelling is inconsistent or not compatible with the conservation area.
They also expressed concern about the impact of the double garage on the streetscape and the fact that the garage is currently not used and that the double garage would result in a lack of one on street parking space.
Ms Waterford of 14 Bridge Street, expressed concern about the view loss and the bulk of the proposed development and concern about the roof of the proposal.
Ms Lindsay of 10 Longview Street, was concerned that her views, mainly from the living room, would be impacted by the proposed development. She is also concerned about the expanse of the roof and the impact on the streetscape of the conservation area.
Ms Rand of 12 Longview Street has lived in the area for some 26 years and she considers the bulk of the proposal is not in keeping with the streetscape and that the colours are unsympathetic to the conservation area. She expressed concern about the cumulative view loss from the subject site in terms of development over the years and also expressed concern about public view loss. The window above the garage overlooking her property and the reduction in the car parking with the double garage resulting in the loss of a space on the street were also raised.
Mr Watson from No 15 Bridge Street, is concerned about the over-development of the site and the overflow of parking. The view on what is known as the Bay Run would be diminished when people come down the stairs at the end of Bridge Street in his opinion.
The Court has had regard to the concerns of the residents in the assessment of the application and also the evidence of the experts to the proceedings. Mr Burrell gave evidence on behalf of the applicant, a consultant town planner, and Mr McDonald architect, planner and heritage consultant gave evidence for the respondent.
The area can be described as relatively steep sloping. The houses on the opposite side of the road, that is on the western side of the street, are significantly higher than the houses on the foreshore. The street is relatively narrow with parking on one side and a number of garages that front the street have vehicular access from the street.
The current dwelling on the subject waterfront site at No. 5 has a single garage. The dwelling at No 7, as I stated, has two single gabled-roofed car-ports. There are also double garages on the western side of the street at the end and further along the street cutting into the rock face and there are double garages on the eastern side of the street at the end.
The issues that have been contested by the council are that the proposed development should not be approved on the basis that the solar impact or the overshadowing impact on No 7 should warrant refusal of the development application and that the view loss from a number of properties is unacceptable and therefore the application should also be refused. Council is also of the opinion that in the streetscape the double garage is not sympathetic or not complementary to the conservation area being a double garage that council deters along with garaging on the street boundary.
The Court must assess the development application in the context of the relevant controls and the Sydney Region Environmental Plan Harbour Catchment 2005 is a relevant document to have regard to in particular the number of matters for consideration in the assessment of development applications as identified in clause 20.
The SREPP also identifies the foreshores and waterways scenic quality in clause 25 and the matters to be considered include: protection and enhancement of the scenic quality of foreshores and waterways; the scale; form; design and siting of any building based on an analysis of the land and likely future character of the locality; and development should maintain, protect and enhance the unique qualities of Sydney Harbour.
Clause 26 of the SREPP has the refers to maintenance, protection and enhancement of views matters to be taken into consideration:

(a) development should maintain, protect and enhance views including night views to and from Sydney Harbour.

(b) development should minimise any adverse impacts on views and vistas to and from public places, landmarks and heritage items.

The council’s local planning regime is the Leichhardt Town Plan as updated of August 2008, that is, the Local Environmental Plan 2000 for Leichhardt and the Development Control Plan 2000 for Leichhardt.
The LEP contains a number of heritage conservation provisions. The objectives of the plan include for heritage conservation:

(a) to protect and serve and enhance the cultural heritage townscapes and provide measures for their conservation and,

(b) protect, conserve, enhance the character and identify of the suburbs, places and landscapes of Leichhardt including natural scenic and cultural attributes, and

(c) to prevent undesirable incremental change including demolition which reduces the heritage significance of places, conservation areas or heritage items.

Under the LEP there is no dispute the subject site is within the conservation area and consent should not be granted to development within the conservation area without regard to the compatibility of the proposed development with the conservation area including the size, form, scale, orientation, siting materials, landscaping and details of the proposed development.
The provisions of the Development Control Plan include: character areas; character statements for neighbourhoods. The subject site is within the ‘Birchgrove Elkington Park’ distinctive neighbourhood and it is noted that there is a description of the area and it is shown on the plan. The subject site is within this. The existing character is described in section 3 of the plan.

In particular for the urban form: “development should follow the topography of the area and conserve and promote the consistent rhythm within the streetscape created by regular lot sizes, subdivision pattern and predominance of detached and semi-detached dwellings, preserve and where practicable enhance the public and private views over Snails Bay and Parramatta River and promote a balance of landscape to built form.”

In terms of the building elements the DCP states: “maintain the diverse character of the area by ensuring new development is complementary in terms of its architectural style, built form and materials and that view lines around the foreshore should be preserved by maintaining the existing height and side setbacks on each site. Building envelopes include a maximum building wall height of 6 metres applies to the neighbourhood and that changes to the front facades of existing dwellings shall be kept to a minimum with additions to the rear of dwellings preferred, new and expanded driveway crossings discouraged, driveway crossings will only be supported where they are servicing single width garages and do not involve excavation. New development shall maintain the use of hipped, pitched and gabled roofs and designed complementary to the existing unadorned built form. Building material shall be consistent with the existing character including rendered and painted surfaces and roof materials such as corrugated iron as well as timber windows.

The DCP Part B for residential development also contains number of provisions. In summary, I have had regard to the controls and the guidelines contained within the DCP. Side setbacks are a key component of the streetscape with a sliding scale from side boundaries. The proposed development would require a setback of the upper level of some 4 metres.
The DCP contains provisions with respect to solar access, that is, design element 17, and the principles are:

“to design to optimise solar access to habitable rooms and private open space of new housing; to improve amenity and energy efficiency; and to minimise overshadowing of the habitable rooms and private open space of existing housing.”

The controls include:

“where an existing adjacent building has an east-west orientation to maintain solar access to the habitable side rooms for a minimum period of two hours between 9 and 3 at the winter solstice; where less than two hours solar access is currently available to the habitable side rooms of existing dwellings no additional overshadowing shall be permitted.”

Another control is to ensure is “to ensure solar access for a minimum of three hours between 9 and 3 to the living areas of new dwellings and shadow diagrams must be prepared in plan and elevation for development applications.” Suffice to say there has been a comprehensive assessment in terms of solar access by the experts and the shadow diagrams have also been provided to the Court.
The design element on access to views: The principles include: “to ensure existing views and vistas are protected and enhanced where possible.” Guidelines include: “where views are currently enjoyed from existing buildings or public places new development should minimise obstruction to those views and where a proposed development is likely to obstruct views measures must be introduced to promote the sharing of those views.” This includes a number of measures such as “reducing the height and bulk, incorporating more generous setbacks for buildings.” The controls include: “where views are currently enjoyed from existing buildings or public places new development is to be designed such that any obstruction of these views is minimised. Development should maximise access to views both from and within the development and from existing buildings and public places in the area, thus sharing the benefits.”
In terms of alterations and additions to existing dwelling houses the principles include: “alterations and additions should be complementary to the scale, form and appearance of the existing and adjacent buildings and the density and character of the local area to maintain existing residential amenity.” The guidelines include extensions should be subordinate to the existing roof.
As I stated, the proposed development is for alterations and additions to a development dwelling that the council previously granted approval for major alterations and additions some years ago. The experts to the proceedings provided statements of evidence and they also provided a joint report to the Court.
For the contention that the proposed double garage is inappropriate om the streetscape Mr McDonald is of the view that the streetscape is one where the garages, that is, the gabled garages, single garages currently in the street at No 7, the two garages plus the single garage on the subject site, provide a rhythm in the street of garages. He is opposed to a double garage on the street saying in his opinion from a heritage point of view it is not consistent and that the double garage should not be allowed. That is, the large gable generated by the double garage to contain accommodation. He is concerned about the fact that the setback/slot does not allow views to the water from the street. It could be seen on site that the existing slot view is in fact very minimal and limited and it does not feature as a view corridor when viewing a waterway or a bay from the street.
Mr Burrell acknowledges that the precinct aim to discourage double garages but in the context of the streetscape it is not inconsistent where the streetscape is characterised by high front walls and garages, both single and double, on both sides of the street. He considers that the style of the existing garage relates more to No 7 and that the proposed development provides a garage which integrates with the architectural style of the house, the pitch form and materials.
There was discussion about the number of car parking spaces currently available within the driveway of the subject site and the house to the north. It is agreed at the end of the day that four vehicles can fit within the current kerbside area. The proposal for a double garage would reduce that by one and therefore it would provide for three on-street parking vehicles. The double garage provides for two off-street parking spaces. There was concern expressed by the residents that the garage would not be used. The Court must assume that the development application is for the use as shown on the plans. If in fact there are concerns about manoeuvrability and the size of garages then this is a relevant matter as clearly this would discourage their use as garages.
In terms of the double garage I am of the opinion that with a minor amendment to the garage this would ensure that it provides for easy access and usability of the garage. I am satisfied the garage can be extended within the footprint without consequential impacts to the floor plan and that in lengthening the garage one must have regard to not only to the Australian Standard but also the ease of using off-street parking facilities. The application runs with the land and as such future occupants of the dwelling may have cars that require the additional length, therefore the plan should be amended to provide for the additional length.
In terms of the streetscape, in a conservation area this is an unusual circumstance. The eclectic nature of the street is such not only in terms of the dwellings, and they all contribute in one way or another to the heritage conservation area, but there are significant garage openings along the street, significant high walls and it is not a traditional streetscape as one would understand of a conservation area.
In the circumstances I am satisfied that the provision of a double garage is appropriate and will not be detrimental to this conservation area. I say this having regard to the total width of the site which is a double frontage and it is clear from the site view that one would not put a garage on the other side because of the gable of the dwelling as it would interfere with the built form itself and there would not be the capacity or space to provide for a garage between the dwelling and northern boundary. The subject site is a large site in comparison to other sites in the vicinity. On the one hand this is an advantage but that does not mean the owners of the subject site should be penalised because it is a large site. At the same time the development should be commensurate with the size and scale of development that is permitted on the land within the area. It is noted that the subject site is currently in two titles and as such two dwelling houses could be erected although clearly it would require the demolition of what is a house that has some contribution to the conservation area despite its alterations and additions to date.
Therefore, in my overall assessment the proposed garaging would not warrant refusal of the development application having regard to the context of the area and having regard to the streetscape.
For the issue of on-street parking, the loss of one on-street parking space provides for a double garage to the dwelling on the subject site and this is reasonable in my assessment. One can say, there are a large number of bedrooms proposed for the subject house but the number of bedrooms is not the test for the Court but whether in fact a proposal is an over development of the site. The control requires a 0.7:1 FSR and the proposed development complies with the 0.7:1 FSR and whether that be in one or two dwellings the built form is satisfactory in the streetscape. Many of the dwellings within this street are clearly in excess of the 0.7:1 and the proposed development is not seeking to overdevelop the site in terms of the proposed FSR.
The issue of private and public views must be assessed in the context of the council’s controls and the SREPP. The parties also provided a number of judgments in this Court where planning principles have been established for view loss the planning principle established is that of Tenacity Consulting v Warringah Council NSWLEC 140 and the Senior Commissioner sets out a number of steps as a guide to be taken into consideration. I make it clear that the planning principles are not part of the statutory planning framework or council’s guidelines in terms of its DCP, nonetheless, they can provide assistance when assessing development applications on view loss.
There are views obtained from the properties on the opposite side of the street to the subject site and there was a great deal of time in assessing the views. I heard from the resident objectors and I had the opportunity of viewing from their properties. At the end of the day Mr McDonald still considers that the view loss would warrant refusal of the application and he is of the opinion that there could be a more skilful design or that the floor space could be located in an alternative location which would not impact on views.
The Court must have regard to the extent of views from each of the properties. It was agreed between the experts that the public views and the views from No 12 Longview and the views from No 15 Bridge Street, are not impacted to any significant degree and in places it is agreed to be a negligible impact.
Public view are very important to maintain including view corridors. However, my assessment of this development application the impact is minimal in terms of the public views to the water. In terms of the public view from the Bridge Street closed road and the steps, it will change the view in that the Shores development will not be as visible but in terms of an adverse impact it is not a matter that would warrant refusal of the application. The test is not whether there is a change in the view but whether in fact the view is diminished or impacted to a point that would warrant refusal of the application and in this instance in terms of public view loss the proposal does not adversely impact.
In terms of the private views one must have regard to the extent of the impact from the whole of the property, not just the view that is affected. It could be seen that the dwelling houses opposite the subject site have a number of levels on which the views are obtained over the water. In this regard there were photographs provided by Mr McDonald in terms of view loss and the Court also, as I stated, had the opportunity of understanding the view loss from the on site inspection. I note that the height poles were on site and that there had previously been tape that provided extensions to the poles to understand the view loss. I do note that the tape as such had in fact become very slack but nonetheless I have been able to understand clearly what the view loss would be from the properties and this is also greatly assisted by the photographs in Mr McDonald’s report. Mr McDonald considered that the view loss in terms of the marina was unreasonable. It could be seen from the photographs the proposal will obscure part of the marina. In particular from No 14 Bridge Street there is part of the marina that is obscured by the proposed development, that is, the roof of the new extension area.
The Court must have regard to the context of the view loss, that is, in terms of whether there are the more essential elements of the view. Whether these are iconic or not, the essential components of the view or elements of the view. In this instance it is the bridge and the further foreshore in the distance and the closer foreshore and the marina and boats. The Court must have regard to the opportunities for views across the subject site from the different viewing opportunities of the dwellings opposite. While views from living rooms are generally more valuable than from bedrooms, at the same time the views from the upper level should not be disregarded and it could be seen that the views from the upper level bedrooms are ones that are only impacted in a very minor way.
Mr McDonald was asked to assess the views in terms of the totality of the view. Another way of looking at it is to assess the overall impact on the view. Mr McDonald however was concerned to dissect the separate views, that is, look at each of the views from each of the rooms and in his opinion the impact was not reasonable. I have had regard to the totality or what the overall impact is in terms of the opportunities of viewing from the various levels and I am satisfied the proposed development is not one that would warrant refusal. There are impacts on the lower levels of the dwellings but then there are views afforded from the middle and upper levels of the same dwellings that provide for significant substantial views that are only impacted in a minor way. From the upper levels it is negligible in terms of the view loss.
I am satisfied the proposed development is one that should not be refused in terms of the view impact. It is noted that the controls speak about preserve views and enhance views and view loss should be minimised. Most waterfront development will result in some view loss, and not only the waterfront blocks but blocks developed up slope of the waterway. The test must be to have an overall perspective in terms of the views obtained from dwellings that rely on views over properties and the totality of views, whether the development is a compliant development or not and whether in fact it is an unreasonable expectation.
I am satisfied it is not an unreasonable expectation for the development of this site to increase the FSR to 0.7:1. The side setback can be increased for the upper level which will provide the opportunity of a slightly greater view of the marina but in terms of the overall impact it is not one that would warrant refusal of the development application and could not be considered to be unreasonable. It would be generally expected that with development of the subject property that there would be some view loss. In my opinion the spirit and intent of the controls and guidelines which require view loss to be minimised are satisfied. In terms of view sharing this is a concept that is embraced by the Court and at the same time embracing the concept does not mean that views will remain unaffected.
The principles in Tenacity do provide overall guidelines in terms of what can be taken into consideration and it is not a matter of purely dissecting each and every room’s view. One must take a commonsense approach to the assessment of view loss and also have regard to the potential and reasonable expectation of properties.
This now takes me to the issue of solar access. This matter has been exhaustively looked at in terms of the experts and in terms of additional shadow diagrams being provided by the architect. The Court must have regard to what is reasonable and once again on balance the Court must have regard to the amount of solar access that is received by the adjoining dwelling. It is not just the amount of solar access received by one particular window but one must have regard to the amenity of a dwelling not one window. As a guideline in terms of Parsonage v Ku-ring-gai NSWLEC 347 there is a planning principle articulated on the impact of solar access on neighbours and I cite the Senior Commissioner:

“Taking away sunlight from 9 am to noon would satisfy most guidelines yet the occupants of such a dwelling are likely to perceive it as devastating. The other side of the coin is that the impact on the neighbours’ sunlight must be assessed in the context of the reasonable development expectations of the proposal and the constraints imposed by the topography and the subdivision pattern. Preserving three hours of sunlight on a neighbouring site may require an unreasonable reduction in the development potential of the proposal.”

In that particular case the Senior Commissioner noted that there were other areas that received of solar access.
In this regard I have considered the amenity of the adjoining occupants at No. 7. It is agreed between the experts that the lower ground floor, that is what I will call level 1 of the dual occupancy that there would be no difference between a complying development and the proposal. In terms of the upper level, this has been looked at in terms of the total amount of solar access received the room referred to as the study, which is known as Window No 1, with the proposed development this receives some two hours twenty minutes and with a complying development, that is, a four metre setback for the upper level of the proposal, it is three hours. With the proposed development it is in the order of two hours and twenty minutes.
For what is known as Window 2, the kitchen window over the sink, there is a two and a quarter hours in terms of a four metre setback and for the proposed development there would be one hour plus. For ‘Window No 3’, the other kitchen window, there is three hours and ten minutes plus partial sun between the hours of 11 am through to 1 pm and the proposal would

provide for three and a quarter hours access without the partial areas that I have just mentioned.

In terms of the dining room window there is five hours retained with the proposed development and there would be five hours with a complying development. I note that this particular level also has the advantage of an eastern window for the study upstairs which would provide an additional half hour of sun to be received in both windows at certain times of the day. I also note that the property has a western waterfrontage and there would be uninterrupted solar access in terms of the western frontage.
I have concluded in my assessment that there should be an amendment made to provide for some additional sunlight access to the kitchen window and this can be done by a complying development with a four metre setback at the upper level. In this regard I consider that an amendment to the plan to provide for a four metre setback at the upper level will provide some additional sunlight which people value greatly into the side windows.
With the amendment above I am satisfied that the impact on solar access would not warrant refusal of the development application. I must balance not only what a complying development would provide for but I also look at what in fact is the solar access gained to the property at No 7. I am now satisfied with the required amendment that the amenity of No. 7 would not be so significantly diminished to warrant refusal of the development application.
The applicant has also agreed to replace the Lili Pilli plantings along the side boundary to with Murraya Paniculata which would be pruned to a level of some two metres or in line with the exiting fence that we see on the property at No 7.
The applicant has also agreed to paint the roof structure, that is, the new and the old roof of the proposal, and also to provide for a different colour scheme to that originally provide for. The council still contends that the whole of the dwelling should be repainted. However, in my assessment there is not sufficient nexus in terms of this development application to call for a total repainting of the building. Council did have the opportunity when the proposal was originally approved to seek a schedule of materials, finishes and colours, which is the common practice in a conservation area, and also had the opportunity at that point in time to impose any conditions that it considered appropriate. No such conditions were imposed.
In this development application I must have regard to whether the development application provides the necessary nexus to require a total repainting of the building. I am not satisfied that this development application would warrant such a requirement, although clearly in a conservation area it would be more appropriate to be in different colours and of a different palette.
The applicant, however, has now agreed to a repainting of the roof which in my assessment will be a benefit in terms of not only the streetscape but in terms of the neighbours on the western side of the road because of the glare from the current roof. It is proposed that the roof be painted in a mid grey colour and this would be less reflective and less dominant in the streetscape. The current roof is a dominant reflective element. I am satisfied that the new roof will be no more dominant and in fact will be more recessive with the painting of the roof or a different Colorbond.
The issue of the garages has also been discussed in terms of the appropriateness of colours, and there has been a schedule provided for the garage door components and the other masonry elements of the dwelling to be painted in more neutral colours. In terms of the purple, the

dominant colour of the dwelling house, the purple is to be retained for the dwelling as such, the barge boards and trim is to be changed and these are shown in the colour schedule that has been submitted as Exhibit S.

The issue of the colour of the dwelling has created a great deal of concern among residents as well. And clearly where people have the advantage of living in a conservation area and they take the benefits of living in a conservation area they should also make some commensurate contribution to ensuring that dwelling houses ‘fit’ within the context of a conservation area.
By way of comment it is unfortunate that the council did not impose a condition for the colour scheme for the previous approval but at the same time I do not consider it is within my scope to require a total repainting of the dwelling house.
The new schedule is to provide for a development that is less intrusive in terms of the conservation area and it may be the beginning of the opportunity to eventually provide for a palette that is more in keeping with the conservation area. The colour of the new elements of this development application, including: the roof; the garage; and the front fence should clearly be colours that are more compatible with the conservation area.
The formal orders of the Court will be issued on the receipt of a plan that shows: compliance with setback of four metres to the southern boundary for the upper level of the proposal; a lengthening of the garage by a reconfiguration within the space provided; details of the fence; and the details of the Murraya Paniculata as opposed to the current Lilli Pilli plantings on the subject site.
On the receipt of the above I will issue Orders as follows:

(1) The appeal in respect of the property known as 5 Longview Street, Balmain is upheld.

(2) The development application submitted to Leichhardt Council and as amended, is approved subject to the conditions contained in Annexure ‘A’.

(3) The exhibits are returned to the parties except for Exhibit A, Q, S and 17.

___________________

J S Murrell

Commissioner of the Court

ljr

Following the above judgment the applicant submitted a full schedule of colours to include the southern elevation. Consistent with my findings above I have made a determination on the disputed condition No.3 so that the southern lower portion of the development is be either ‘windspray’ or ‘tranquil retreat’. The applicants choice of the colour ‘licorice’ is to be limited in accordance with condition No.3 of Annexure’A’.

Annexure ‘A’

Conditions of Consent

Young & Anor v Leichhardt Council

Development application D/2007/350 for alterations and additions to the existing dwelling including a double garage for Lot 48 DP 867514, Lot 49 DP 867514 known as 5 Longview Street, Birchgrove NSW 2041 is approved subject to the following conditions:

GENERAL CONDITIONS

1 Development must be carried out strictly in accordance with Development Application No. DA07/350 and the following plans and supplementary documentation, except where amended by the conditions of this consent.

Plan Reference	Drawn By	Dated
Site Plan A002b	Keith Pike Associates Pty Ltd	November 2008 (Amended February 2009)
Proposed Level 1 Floor Plan A015	Keith Pike Associates Pty Ltd	November 2008
Proposed Ground Floor Plan A016a	Keith Pike Associates Pty Ltd	November 2008 (Amended February 2009)
Proposed First Floor Plan A017a	Keith Pike Associates Pty Ltd	November 2008 (Amended February 2009)
Proposed Roof Plan A018b	Keith Pike Associates Pty Ltd	November 2008 (Amended February 2009)
Proposed Section AA, A019b	Keith Pike Associates Pty Ltd	November 2008 (Amended February 2009)
Proposed Section BB, A020	Keith Pike Associates Pty Ltd	November 2008
Proposed Elevation South A021b	Keith Pike Associates Pty Ltd	November 2008 (Amended February 2009)
Proposed Elevation North A022	Keith Pike Associates Pty Ltd	November 2008
Proposed Elevation East A023b	Keith Pike Associates Pty Ltd	November 2008 (Amended February 2009)
Proposed Elevations West A024a	Keith Pike Associates Pty Ltd	November 2008 (Amended February 2009)
Proposed Garage Plans/Section A050	Keith Pike Associates Pty Ltd	November 2008
Front Fence – detail A051	Keith Pike Associates Pty Ltd	February 2009
Document Title	Prepared By	Dated
Survey Plan A001a	Rygate & Company	28.3.07
Description of Revised Overland Flow Path Scheme (and Additional Garage Documentation)	Bewsher Consulting	24.12.08
BASIX Report A13482	NSW Department of Planning	10.08.07
Colour Scheme A00 and A00a	Keith Pike Associates Pty Ltd	February 2009

In the event of any inconsistency between the approved plans and supplementary documentation, the plans will prevail.

PRIOR TO ANY WORKS ON SITE

Consent is granted for partial demolition of the existing dwelling for the purpose of constructing the proposed alterations and additions, subject to strict compliance with the following conditions:
1. The developer is to notify adjoining residents seven (7) working days prior to demolition. Such notification is to be clearly written on A4 size paper giving the date demolition will commence and be placed in the letterbox of every premises (including every residential flat or unit, if any) either side, immediately at the rear of and directly opposite the demolition site.
2. Written notice is to be given to Council / Certifying Authority for inspection prior to demolition. Such written notice is to include the date when demolition will commence and details of the name, address, business hours and contact telephone number and licence number of the demolisher. The following building inspections must be undertaken by Council / Certifying Authority:
  1. A pre commencement inspection when all the site works are installed on the site and prior to demolition commencing.

ii A final inspection when the demolition works have been completed.

NOTE: Council requires 24 hours notice to carry out inspections. Arrangement for inspections can be made by phoning 9367 9222.

Prior to demolition, the applicant must erect a sign at the front of the property with the demolisher’s name, licence number, contact phone number and site address.

Prior to demolition, the applicant must erect a 2.4m high temporary fence, hoarding between the work site and any public property (footpaths, roads, reserves etc). Access to the site must be restricted to authorised persons only and the site must be secured against unauthorised entry when work is not in progress or the site is otherwise unoccupied.
The demolition plans must be submitted to the appropriate Sydney Water Office, to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water’s requirements, the plans will be stamped indicating that no further requirements are necessary.
Demolition is to be carried out in accordance with the relevant provisions of Australian Standard 2601:2001: Demolition of structures.
The hours of demolition work are limited to between 7:00am and 5.30pm on weekdays. No demolition work is to be carried out on Saturdays, Sundays and public holidays.
Hazardous or intractable wastes arising from the demolition process must be removed and disposed of in accordance with the requirements of WorkCover New South Wales and the Department of Environment and Climate Change NSW.
Demolition procedures must maximise the reuse and recycling of demolished materials in order to reduce the environmental impacts of waste disposal.
During demolition, public property (footpaths, roads, reserves etc) must be clear at all times and must not be obstructed by any demolished material or vehicles. The footpaths and roads must be swept (not hosed) clean of any material, including clay, soil and sand. On the spot fines may be levied by Council against the demolisher and/or owner for failure to comply with this condition.
All vehicles leaving the site with demolition materials must have their loads covered and vehicles must not track soil and other materials onto public property (footpaths, roads, reserves etc) and the footpaths must be suitably protected against damage when plant and vehicles access the site.

The burning of any demolished material on site is not permitted and offenders will be prosecuted.

Care must be taken during demolition to ensure that existing services on the site (ie, sewer, electricity, gas, phone) are not damaged. Any damage caused to existing services must be repaired by the relevant authority at the applicant’s expense.
Suitable erosion and sediment control measures in accordance with the Soil and Water Management Plan must be erected prior to the commencement of demolition works and must be maintained at all times.
Prior to demolition, a Work Plan must be prepared and submitted to Council / Certifying Authority in accordance with the relevant provisions of Australian Standard 2601:2001 Demolition of structures by a person with suitable expertise and experience. The Work Plan must identify hazardous materials including surfaces coated with lead paint, method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials.
If the property was built prior to 1987 an asbestos survey prepared by a qualified occupational hygienist is to be undertaken. If asbestos is present then:
1. A WorkCover licensed contractor must undertake removal of all asbestos.
2. During the asbestos removal a sign “DANGER ASBESTOS REMOVAL IN PROGRESS” measuring not less than 400 mm x 300 mm is to be erected in a visible position on the site to the satisfaction of Council.
3. Waste disposal receipts must be provided to Council / Certifying Authority as proof of correct disposal of asbestos laden waste.
4. All removal of asbestos must comply with the requirements of WorkCover and Leichhardt Council.
5. An asbestos clearance certificate prepared by a qualified occupation hygienist must be provided at the completion of the demolition works.

Colours and finishes of the alterations and additions and the street frontage are to be in accordance with the schedule of finishes and materials (‘Colour Scheme Plans’ A00 and A00a) prepared by Keith Pike Associates Pty Ltd dated February 2009 with the following variations:
1. The ‘Licorice’ paint colour shown for the lower walls on the southern elevation marked with the No. 3 shall be replaced with either colour No. 1 ‘windspray’ or colour No. 2 ‘tranquil retreat’.
2. Those new works to the northern and western elevations shall be finished in paint colours that co-ordinate with the submitted Colour Scheme plans and the above variation (ie, Colourbond ‘windspray’ to the roof and gutters, Dulux colour ‘Tranquil retreat’ to timber/weatherboard elements and Porters Paint ‘Licorice’ is to be limited to window frames and trim only.
A handrail shall be erected on the southern side boundary in the location of the stairs adjacent to the proposed hedge. Details of such shall be submitted to Council/ the Certifying Authority prior to the commencement of works. The purpose of the handrail is to mitigate shadows impacts to the adjoining dwelling and the said handrail shall not be replaced with any other type of fence.
All trees on site other than those proposed to be removed under this consent, shall be retained and protected prior to and during works.
A dilapidation report including a colour photographic survey of the following adjoining properties must be provided to Council and to the property owner prior any works on site. The dilapidation report must detail the physical condition of those properties, both internally and externally, including walls, ceilings, roof, structural members and other similar items.
1. 7 Longview Street, Balmain

The dilapidation report is to be prepared by a practising Structural Engineer. All costs incurred in achieving compliance with this condition shall be borne by the applicant.

In the event that access for undertaking the dilapidation report is denied by an adjoining owner, the applicant must demonstrate, in writing that all reasonable steps have been taken to obtain access and advise the affected property owner of the reason for the survey and that these steps have failed. Written concurrence must be obtained from the Certifying Authority in such circumstances.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

The building must comply with the performance provisions of the BCA by compliance with either:
1. the deem-to-satisfy provisions; or
2. an alternative solution; or
1. a combination of (a) & (b) above.

Amended plans are to be submitted to the certifying authority if required prior to the issue of a construction certificate.

In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979 construction works approved by this consent must not commence until:
1. A Construction Certificate has been issued by Council or an Accredited Certifier. Either Council or an Accredited Certifier can act as the “Certifying Authority.”
2. A Principal Certifying Authority has been appointed and Council has been notified in writing of the appointment.
1. At least two days notice, in writing has been given to Council of the intention to commence work.

The documentation required under this condition must show that the proposal complies with all Development Consent conditions, the Building Code of Australia and the relevant Australian Standards.

In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986, the applicant must pay a long service levy at the prescribed rate of 0.0035 of the total cost of the work to either the Long Service Payments Corporation or Council for any work costing $25,000 or more. The Long Service Levy is payable prior to the issue of a Construction Certificate.
Any air conditioning unit on the site must be installed and operated at all times so as not to cause “Offensive Noise” as defined by the Protection of the Environment (Operations) Act 1997. Domestic air conditioners must not be audible in nearby dwellings between 10:00pm to 7:00am on Monday to Saturday and 10:00pm to 8:00am on Sundays and Public Holidays.

Details of the acoustic measures to be employed to achieve compliance with this condition must be provided prior to the issue of a Construction Certificate.

A Waste Management Plan is to be provided prior to the issue of a Construction Certificate. The Waste Management Plan is to be prepared in accordance with Council’s Development Control Plan No 38 – Avoid, Reuse, Recycle. The plan must address all issues identified in Development Control Plan No 38 including but not limited to:
1. Estimated quantities of materials that are reused, recycled, removed from site.
2. On site material storage areas during construction.
1. Materials and methods used during construction to minimise waste.
1. Nomination of end location of all waste generated.

All requirements of the approved Waste Management Plan must be implemented during the construction of the development.

A Soil and Water Management Plan must be provided prior to the issue of a Construction Certificate. The Soil and Water Management plan must be compatible with the Construction Management and Traffic Management Plan referred to in condition 18 of this Development Consent and must address, but is not limited to the following issues:
1. Minimise the area of soils exposed at any one time.
2. Conservation of top soil.
1. Identify and protect proposed stockpile locations.
1. Preserve existing vegetation. Identify revegetation technique and materials.
2. Prevent soil, sand, sediments leaving the site in an uncontrolled manner.
3. Control surface water flows through the site in a manner that:
  1. Diverts clean run-off around disturbed areas;
  2. Minimises slope gradient and flow distance within disturbed areas;
  3. Ensures surface run-off occurs at non erodable velocities;
  4. Ensures disturbed areas are promptly rehabilitated.
4. Sediment and erosion control measures in place before work commences.
5. Materials are not tracked onto the road by vehicles entering or leaving the site.
6. Details of drainage to protect and drain the site during works.
7. A durable sign, available from Council must be erected during the works in a prominent location on site, warning of penalties should appropriate measures required by the Soil and Water Management Plan not be maintained.
Prior to the issue of a Construction Certificate, the applicant must prepare a Construction Management and Traffic Management Plan. The following matters should be addressed in the plan:
1. A plan view of the entire site and frontage roadways indicating:
1. Dedicated construction site entrances and exits, controlled by a certified traffic controller, to safely manage pedestrians and construction related vehicles in the frontage roadways. All access for the site must be from Darling Street.
2. Turning areas within the site for construction and spoil removal vehicles, allowing a forward egress for all construction vehicles on the site.
3. The locations of proposed work zones in the frontage roadways.
4. Location of any proposed crane and concrete pump and truck standing areas on and off the site.
5. A dedicated unloading and loading point within the site for all construction vehicles, plant and deliveries.
6. Material, plant and spoil bin storage areas within the site, where all materials are to be dropped off and collected.
7. An on-site parking area for employees, tradespersons and construction vehicles as far as possible.
8. The proposed areas within the site to be used for the storage of excavated material, construction materials and waste and recycling containers during the construction period.
9. How it is proposed to ensure that soil/excavated material is not transported onto surrounding footpaths and roadways.
10. The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be designed by a Chartered Civil Engineer, with National Professional Engineering Registration (NPER) in the construction of civil works or a survey company of Registered Surveyors with “preliminary accreditation” from the Institution of Surveyors New South Wales Inc or an accredited certifier.
If any excavation extends below the level of the base of the footings of a building on an adjoining property, the person causing the excavation:
1. Must preserve and protect the adjoining building from damage.
2. Must obtain the consent of the owner of the affected land if underpinning of structures on adjoining land is required and support the building in an approved manner. Details of method of underpinning and supporting the building must be provided prior to the issue of a Construction Certificate.
1. Must, at least seven (7) 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.
1. The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this condition, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

In this condition, the allotment of land includes public property.

The vehicular access and off street parking facilities must comply with the relevant provisions of Australian Standard AS/NZS 2890.1-2004 Parking Facilities - Off-Street Car Parking in particular the following specific issues:
1. The floor level of the parking space must be at least 150mm above the adjacent road gutter level across the full width of the vehicle crossing.
2. The floor/finished levels within the property at the boundary are to be 180mm above the adjacent road gutter invert level. The longitudinal profile must comply with the Ground Clearance requirements of AS/NZS 2890.1-2004.
1. A minimum of 2200mm headroom must be provided throughout the access and parking facilities. Note that Headroom must be measured to the lowest projection from the ceiling, such as lighting fixtures, and to open garage doors.
1. Longitudinal sections along each outer edge of the access and parking facilities, extending to the centreline of the road carriageway must be provided, demonstrating compliance with the above requirements.

The design must be certified by a suitably qualified Civil Engineer with NPER registration with the Institution of Engineers Australia and be provided prior to the issue of a Construction Certificate.

A flood risk management plan, prepared by a qualified practicing Civil Engineer must be provided prior to the issue of a Construction Certificate. The Plan must be prepared/ amended to make provision for the following:
1. The Plan must be generally in accordance with the recommendations of the Flood Report prepared by Bewsher Consulting Pty Ltd and dated 24 December 2008.
2. The proposed leaf mesh at the base of the boundary fence must have minimum clear openings/spacing of 70mm.
1. Recommendations on all precautions to minimise risk to personal safety of occupants and the risk of property damage for the total development. The flood impacts on the site shall be assessed for the 100 year ARI and Probable Maximum Flood (PMF) storm events. The precautions shall include but not be limited to the following:
  1. Types of materials to be used to ensure the structural integrity of the building to immersion and impact of velocity and debris.
  2. Waterproofing methods, including electrical equipment, wiring, fuel lines or any other service pipes or connections.
  3. Flood warning signs/depth indicators for areas that may be inundated.
  4. A flood evacuation strategy.
  5. On site response plan to minimise flood damage, demonstrating that adequate storage areas are available for hazardous materials and valuable goods above the flood level.
  6. Specify the architectural and structural plans upon which the above recommendations have been incorporated.
Architectural plans, amended to address all relevant recommendations of the flood risk management plan prepared under Condition No 16 must be provided prior to the issue of a Construction Certificate. The design must be prepared/ amended to make provision for the following:
1. Specification of materials.
2. Waterproofing works, where applicable.

Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must ensure that all aspects of the flood risk management plan have been implemented in accordance with the approved design and relevant Australian Standards.

NOTE: The plans shall also indicate whether the existing tree adjacent to the balcony off the dining room is to be removed as a result of excavation works.

The applicant must bear the cost of construction of a vehicular crossing(s) and, where applicable, closure of all redundant crossings on each street frontage of the site. An application must be made to Council for a Roadworks Permit under Section 138 of the Roads Act 1993 and Section 68 of the Local Government Act 1993 for approval to construct these works.

The Roadworks Permit must be provided prior to the issue of a Construction Certificate.

These works must be constructed in accordance with the conditions of the Roadworks Permit and be completed prior to the issue of an Occupation Certificate.Note: The cost of adjustment or relocation of any public utility service shall be borne by the owner/applicant. Where the finished levels of the new works will result in changes to the existing surface levels, the cost of all necessary adjustments or transitions beyond the above scope of works shall be borne by the owner/applicant.

Prior to the commencement of demolition works on the subject site or a Construction Certificate being issued for works approved by this development consent (whichever occurs first), a security deposit to the value of $2,800 must be paid to Council to cover the costs associated with the road, footpath and drainage works required by this consent.

Payment will be accepted in the form of cash, bank cheque, EFTPOS/credit card (to a maximum of $10,000) or bank guarantee.

A request for release of the security may be made to the Council after all construction work has been completed.

The amount nominated is only current for the financial year in which the consent was issued and is revised each financial year. The amount payable must be consistent with Council’s Fees and Charges in force at the date of payment.

PRIOR TO THE COMMENCEMENT OF WORKS

At least forty-eight (48) hours prior to the commencement of works, a notice of commencement form and details of the appointed Principal Certifying Authority shall be submitted to Council.
Prior to the commencement of works, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder intending to carry out the approved works.
Prior to the commencement of works, a sign must be erected in a prominent position on the site on which the erection or demolition of a building is being carried out. The sign must state:
1. Unauthorised entry to the work site is prohibited.
2. The name of the principal contractor (or person in charge of the site) and a telephone number at which that person may be contacted at any time for business purposes and outside working hours.
1. The name, address and telephone number of the Certifying Authority for the work.

Any such sign must be maintained while the work is being carried out, but must be removed when the work has been completed.

The Home building Act 1989 requires that insurance must be obtained from an insurance company approved by the department of Fair Trading prior to the commencement of works approved by this development consent.

If Council is nominated as the Principal Certifying authority then a copy of the certificate of insurance must be submitted to Council prior to the works commencing.

If the work is to be undertaken by an owner-builder, written notice of their name and owner-builder permit number must be submitted to Council.

The site must be secured and fenced prior to works commencing. If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling onto public property. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons on public property.

If the work involves the erection or demolition of a building and is likely to cause pedestrian or vehicular traffic on public property to be obstructed or rendered inconvenient, or building involves the enclosure of public property, a hoarding or fence must be erected between the work site and the public property.

Separate approval is required to erect a hoarding or temporary fence on public property prior to the commencement of works. Approvals for hoardings, scaffolding on public land must be obtained and clearly displayed on site for the duration of the works.

Any hoarding, fence or awning is to be removed when the work is completed.

An application for any of the following on public property (footpaths, roads, reserves) shall be submitted and approved by Council prior to the commencement of works.
1. Construction zone.
2. A pumping permit.
1. Mobile crane.
1. Skip bins other than those authorised by Leichhardt Council.
Site cranes and hoists may be erected within the boundaries of the site subject to compliance with the relevant provisions of Australian Standard AS 1418:2005 Crane, hoists and winches, Australian Standard AS 2549:1996 Cranes (including hoists and winches) and Australian Standard AS 2550:2002 Cranes, hoists and winches.

Cranes must not swing or hoist over any public property unless the relevant approval under Local Government Act 1993, Crown Lands Act 1989, or the Roads Act 1993 has been obtained prior to the commencement of works.

The use of the cranes and hoists must comply with the approved hours of construction. The cranes must not be illuminated outside approved working hours other than safety beacons required by the Civil Aviation Safety Authority. No illuminated signs are to be erected upon or displayed upon any crane.

Prior to the commencement of works, a Noise and Vibration Management Plan is to be prepared by a suitably qualified expert addressing the likely noise and vibration from demolition, excavation and construction of the proposed development and provided to the Principal Certifying Authority.

The Plan is to identify amelioration measures to ensure the noise and vibration levels will be compliant with the relevant Australian Standards. The report shall be prepared in consultation with any geotechnical report that itemises equipment to be used for excavation works. The Plan shall address, but not be limited to, the following matters:

Identification of activities carried out and associated noise sources.
Identification of potentially affected sensitive receivers, including residences, churches, commercial premises, schools and properties containing noise sensitive equipment.

Determination of appropriate noise and vibration objectives for each identified sensitive receiver.

Noise and vibration monitoring, reporting and response procedures.
Assessment of potential noise and vibration from the proposed demolition, excavation and construction activities, including noise from construction vehicles.
Description of specific mitigation treatments, management methods and procedures to be implemented to control noise and vibration during construction.
Construction timetabling to minimise noise impacts including time and duration restrictions, respite periods and frequency.
Procedures for notifying residents of construction activities likely to affect their amenity through noise and vibration.
Contingency plans to be implemented in the event of non- compliances and/or noise complaints.

The proposed structure(s) to be erected must stand wholly within the boundaries of the allotment. No portion of the proposed structure, including gates and doors during opening and closing operations, shall encroach onto adjoining properties or upon public property.

To ensure that the location of the building satisfies the provision of the approval, the footings and walls adjacent to the boundaries must be set out by a registered surveyor prior to the commencement of works.

To ensure that the location of the building satisfies the provision of the approval, a check survey certificate shall be submitted to the Principal Certifying Authority either prior to the pouring of the ground floor slab or at dampcourse level, whichever is applicable or occurs first, indicating the:

location of the building with respect to the boundaries of the site;
level of the floor in relation to the levels on the site (all levels are to be shown relative to Australian Height Datum);

site coverage of the buildings on the site.

Any person or contractor undertaking works on public property must take out Public Risk Insurance with a minimum cover of ten (10) million dollars in relation to the occupation of, and approved works within public property. The Policy is to note, and provide protection for Leichhardt Council, as an interested party and a copy of the Policy must be submitted to Council prior to commencement of the works. The Policy must be valid for the entire period that the works are being undertaken on public property.

DURING WORKS

Excavation, building or subdivision work must be restricted to the hours of 7:00am to 5:30pm Monday to Friday inclusive, 7:00am to 1:00pm Saturday. Work is not be carried out on Sunday or Public Holidays.
A copy of the approved plans must be kept on site for the duration of site works and be made available upon request.
The development site must be inspected at the following stages during construction:
1. At the commencement of the building work, and
2. Prior to covering waterproofing in any wet areas, and
1. Prior to covering any stormwater drainage connections, and
1. After the building work has been completed and prior to any occupation certificate being issued in relation to the building.
Noise arising from the works must be controlled in accordance with the requirements of the Protection of the Environment Operations Act 1997 and guidelines contained in the New South Wales Environment Protection Authority Environmental Noise Control Manual.
All excavations and backfilling associated with the development must be executed safely, properly guarded and protected to prevent them from being dangerous to life or property and in accordance with the design of a structural engineer.

If an excavation extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must:

Preserve and protect the building from damage.
If necessary, underpin and support the building in an approved manner.

Give at least seven (7) days notice to the adjoining owner before excavating, of the intention to excavate.

The requirements of the Soil and Water Management Plan must be maintained at all times during the works and any measures required by the Soil and Water Management Plan shall not be removed until the site has been stabilised to the Principal Certifying Authority’s satisfaction.
Of those trees to be retained there should be no severing of significant tree roots that are greater than 100mm to any of these trees. There must be no dumping of materials, parking of vehicles, excavation or fill within the drip line of the canopy of those trees to be retained.
No trees on public property (footpaths, roads, reserves etc) are to be removed or damaged during construction including for the erection of any fences, hoardings or other temporary works unless specifically approved in this consent.
The rubber tree on the northern side of the site is to be removed as it is a noxious weed under the Noxious Weeds Act.
Where any works are proposed in the public road reservation, the following applications must be made to Council, as applicable:
1. For installation or replacement of private stormwater drainage lines or utility services, including water supply, sewerage, gas, electricity, etc. an application must be made for a Road Opening Permit.
2. For construction/reconstruction of Council infrastructure, including vehicular crossings, footpath, kerb and gutter, stormwater drainage, an application must be made for a Roadworks Permit.

Note: Private stormwater drainage is the pipeline(s) that provide the direct connection between the development site and Council’s stormwater drainage system, or street kerb and gutter.

PRIOR TO THE ISSUE OF AN OCCUPATION CERITFICATE

An Occupation Certificate must be obtained prior to any use or occupation of the development or part thereof. The Principal Certifying Authority must ensure that all works are completed in compliance with the approved Construction Certificate plans and all conditions of this Development Consent.
The Lilly Pilly trees in planter beds along the southern boundary are to be removed and replaced with a hedge of Murraya Paniculata to a height of no more than 2m above existing adjacent ground levels of No. 5 Longview Street as indicated on plan A021b.
A second Dilapidation Report including a photographic survey must be submitted after the completion of works. A copy of this Dilapidation Report together with the accompanying photographs must be given to the property owners referred to in condition 10. A copy must be lodged with Council and the Principal Certifying Authority prior to the issue of an Occupation Certificate.
A street / shop number must be clearly displayed at the ground level frontage of the building prior to the issue of an Occupation Certificate. A separate application must be made to Council if new street numbers or a change to street numbers is required.
Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must ensure that all works have been completed in accordance with the approved Waste Management Plan referred to in condition 11 of this development consent.

Proof of actual destination of demolition and construction waste shall be provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate.

Certification by a qualified practicing Civil Engineer that all aspects of the flood risk management plan have been implemented and constructed in accordance with the development consent and with relevant Australian Standards must be provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate.
A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and plumbing section on the web site www.sydneywater.com.au then refer to “Water Servicing Coordinator” under “Developing Your Land” or telephone 132092 for assistance.

Following application a “Notice of Requirements” will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design.

The Section 73 Certificate must be submitted to the Certifying Authority prior to the issue of an Occupation Certificate.

All commitments listed in each relevant BASIX Certificate for the development must be fulfilled prior to the issue of an Occupation Certificate. If any condition of this Development Consent affect the commitments specified in the BASIX Certificate, a revised Certificate is to be prepared and complied with.

48 Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must ensure that all approved road, footpath and/or drainage works, including vehicle crossings, have been completed in the road reserve in accordance with Council Roadworks Permit approval.

Written notification from Council that the works approved under the Roadworks Permit have been completed to its satisfaction and in accordance with the conditions of the Permit, must be provided to the Principle Certifying Authority prior to the issue of an Occupation Certificate.

DURING OCCUPATION

The hedge of Murraya Paniculata planted on the southern boundary pursuant to condition 41 shall be pruned annually, or as required, to no more than 2m above the existing adjacent ground levels of No.5 Longview Street as indicated on plan A021b.

NOTES

This Determination Notice operates or becomes effective from the endorsed date of consent.
Prior to the issue of the Construction Certificate, the applicant must make contact with all relevant utility providers (such as Sydney Water, Energy Australia etc) whose services will be impacted upon by the development. A written copy of the requirements of each provider, as determined necessary by the Certifying Authority, must be obtained.

Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act 1979 and/or the conditions of this consent may result in the serving of penalty notices or legal action.

Works or activities other than those approved by this Development Consent will require the submission of a new development application or an application to modify the consent under Section 96 of the Environmental Planning and Assessment Act 1979.
This development consent does not remove the need to obtain any other statutory consent or approval necessary under any other Act, such as (if necessary):
1. Application for Approval under Section 68 of the Local Government Act 1993 for any activity under that Act, including any erection of a hoarding.
2. Application for Approval under Section 68 of the Local Government Act 1993 for a Place of Public Entertainment. Further building work may be required for this use in order to comply with the Building Code of Australia.
1. Application for a Construction Certificate under Section 109(1)(B) of the Environmental Planning and Assessment Act 1979.
1. Application for an Occupation Certificate under Section 109(C)(2) of the Environmental Planning and Assessment Act 1979.
2. Application for Strata Title Subdivision under the Strata Schemes (Freehold Development) Act 1973, if strata title subdivision of the development is proposed.
3. Development application for demolition if demolition is not approved by this consent.
4. Development application for subdivision if consent for subdivision is not granted by this consent.
5. An application under the Roads Act 1993 for any footpath / public road occupation. A lease fee is payable for all occupations.
In accordance with section 81A of the Environmental Planning and Assessment Act 1979, the person benefiting from this consent is notified that if Council is engaged as the Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading “Critical Stage Inspections” in this consent. If additional inspections are required, further notice will be provided.

________________________

J S Murrell

Commissioner of the Court
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AMENDMENTS:

29/04/2009 - Incorrect applicant name - Paragraph(s) Case title on coversheet and judgment

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