session: one & two d1 to d7 - municipality of woollahra · 2013-09-11 · woollahra municipal...

$: Session: One & Two D1 to D7 - Municipality of Woollahra · 2013-09-11 · Woollahra Municipal Council Development Control Committee 16 September 2013 H:\Development Control Committee\AGENDAS\2013\Working$
Agenda: Development Control Committee

Date: Monday 16 September 2013

Time: 6.00 & 8.00 pm

Session: One & Two

Item: D1 to D7

H:\Development Control Committee\AGENDAS\2013\Working Agenda\sept16-13dccage.docx

Outline of Meeting Protocol & Procedure:

The Chairperson will call the Meeting to order and ask the Committee/Staff to present apologies

or late correspondence.

The Chairperson will commence the Order of Business as shown in the Index to the Agenda.

At the beginning of each item the Chairperson will ask whether a member(s) of the public wish

to address the Committee.

If person(s) wish to address the Committee, they are allowed four (4) minutes in which to do so.

Please direct comments to the issues at hand.

If there are persons representing both sides of a matter (eg applicant/objector), the objector

speaks first.

At the conclusion of the allotted four (4) minutes, the speaker resumes his/her seat and takes no

further part in the debate unless specifically called to do so by the Chairperson.

If there is more than one (1) person wishing to address the Committee from the same side of the

debate, the Chairperson will request that where possible a spokesperson be nominated to

represent the parties.

The Chairperson has the discretion whether to continue to accept speakers from the floor.

After considering any submissions the Committee will debate the matter (if necessary), and

arrive at a recommendation (R items which proceed to Full Council) or a resolution (D items for

which the Committee has delegated authority).

Recommendation only to the Full Council or to the Strategic and Corporate Committee

(“R” Items)

Specified developments, as may be determined and listed by the Council by resolution

taken from time to time.

Matters which involve broad strategic or policy initiatives within responsibilities of

Committee.

Matters requiring the expenditure of moneys and in respect of which no Council vote

has been made.

Matters not within the specified functions of the Committee.

Matters reserved by individual Councillors in accordance with any Council policy on

"safeguards" and substantive changes.

Delegated Authority (“D” Items)

To determine all development applications and related applications, which are not required to

be determined by the Council under Council’s adopted procedures for the call up of

applications except:

a) Applications for review of a determination under section 82A of the Environmental

Planning and Assessment Act 1979 (“the Act”) where the DCC determined the original

application.

b) Development applications for development on community land which may not be

delegated for determination under section 47E of the LG Act.

Committee Membership: 7 Councillors

Quorum: The quorum for a committee meeting is 4

Councillors.


WOOLLAHRA MUNICIPAL COUNCIL

Notice of Meeting

9 September 2013

To: His Worship the Mayor, Councillor Andrew Petrie ex-officio

Councillors Anthony Boskovitz (Chair)

Luise Elsing

Elena Kirillova

Greg Levenston

Anthony Marano (Deputy Chair)

Matthew Robertson

Toni Zeltzer

Dear Councillors

Development Control Committee Meeting – 16 September 2013

In accordance with the provisions of the Local Government Act 1993, I request your

attendance at a Meeting of the Council’s Development Control Committee to be held in the

Thornton Room (Committee Room), ground floor level, 536 New South Head, Double

Bay, on Monday 16 September 2013 at 6.00pm.

Gary James

General Manager


Additional Information Relating to

Committee Matters

Site Inspection

Other Matters

Woollahra Municipal Council

Development Control Committee 16 September 2013


Meeting Agenda

Session One – Commencing 6.00pm

Part One of Two Parts

Item

Subject

Pages

1

2

3

Leave of Absence and Apologies

Late Correspondence Note Council resolution of 27 June 2011 to read late correspondence in conjunction

with the relevant Agenda Item Declarations of Interest

Items to be Decided by this Committee using its Delegated Authority

D1 Confirmation of Minutes of Meeting held on 2 September 2013 1

Site Inspection Items

D2 DA14/2013 – 40 Fitzwilliam Road, Vaucluse – Substantial alterations

& additions to the existing dwelling, including the demolition of the

1950’s extension & construction of a new wing, new basement levels,

roof terrace & swimming pool – 17/1/2013

*See Recommendation Page 3

2-98

Other Delegated Items

D3 DA446/2011 part 4 – 81 Ocean Avenue, Double Bay – Section 96

Application Proposed modification new frosted glass window to the

ground floor level northern elevation – 25/7/2013


99-110

D4 DA54/2012 - 24-26 Bay Street, Double Bay (Pelicano Restaurant) –

Section 96 Application – Proposed Modifications deletion of

Condition No. A.6 (12 month trial period) & Condition No. I.1 (to

extend outdoor seating hours from 12 midday-10pm (7 days) to

12 midday – 12 midnight (Mon-Sat) & 12 midday-10pm (Sun) –

10/7/2013


111-148




Meeting Agenda

Session Two - Commencing at 8.00pm

Part Two of Two Parts

Item

Subject

Pages

D5 DA201/2013 - 62 Edgecliff Road, Woollahra (Reddam House

School) – Change of use to administration associated with existing

educational establishment – 16/5/2013


149-203

D6 Register of Current Land and Environment Court Matters and

Register of Court Proceedings for Building Control, Environmental

Control & Health Control


204-233

D7 Register of SEPP 1 Objections


234-235




Item No: D1 Delegated to Committee

Subject: Confirmation of Minutes of Meeting held on 2 September 2013

Author: Les Windle, Manager - Governance

File No: See Council Minutes

Reason for Report: The Minutes of the Meeting of Monday 2 September 2013 were

previously circulated. In accordance with the guidelines for

Committees’ operations it is now necessary for those Minutes be

formally taken as read and confirmed.

Recommendation:

That the Minutes of the Development Control Committee Meeting of 2 September 2013 be

taken as read and confirmed.

Les Windle

Manager - Governance



H:\Development Control Committee\AGENDAS\2013\Working Agenda\D2 site.docx 1

DEVELOPMENT CONTROL COMMITTEE SITE INSPECTION REPORT

ITEM No. D2

FILE No. DA 14/2013

ADDRESS:

40 Fitzwilliam Road VAUCLUSE 2030

PROPOSAL:

Substantial alterations & additions to existing dwelling, including

the demolition of the 1950's extension and construction of a new

wing, new basement levels, roof terrace & swimming pool

TYPE OF CONSENT:

Local

APPLICANT:

David White Architects Pty Ltd

OWNER:

Prof G A Murrell & Prof D F Murrell

DATE LODGED:

17/01/2013

AUTHOR:

Ms L Samuels

Site Inspection

A site inspection in relation to this Development Application was conducted on Wednesday 4

September 2013, with the following Councillors and staff present:

Present: His Worship the Mayor, Councillor Andrew Petrie ex-officio (in part)

Councillors Luise Elsing

Greg Levenston

Anthony Marano (Chair)

Toni Zeltzer

Staff: Lauren Samuels (Assessment Officer)

Nick Economou (Team Leader – Team North East)

Sue O’Connor (Team Leader - Governance)

Apologies: Councillors Anthony Boskovitz

Matthew Robertson

Note: Councillor Elsing declared a Non-Significant, Non-Pecuniary Interest in this, as

Graham Brooks who is representing the applicant in respect of this item is also

advising for 119 - 121 Queen Street a neighbouring property of which she has

objected to. Councillor Elsing does not believe it would affect her vote.



H:\Development Control Committee\AGENDAS\2013\Working Agenda\D2 site.docx 2

Note: Late correspondence was tabled by Mr Matsoukas, Doug Greensalls & Prof

Murrell.

The following people addressed the Councillors:

Mr Matsoukas, an objector

Doug Greensalls On behalf of Dinah Goddard, an objector

Tony Moody Consultant Planner on behalf of the Applicant

Prof Murrell the Owner

Councillors at the site inspection submit the following recommendation for consideration by

the Development Control Committee:

(Zeltzer/Levenston)

Resolved:

THAT Development Application No. 14/2013 for substantial alterations and additions to

existing dwelling, including the demolition of the 1950's extension and construction of a new

wing, new basement levels, roof terrace and swimming pool on land at 40 Fitzwilliam Road

Vaucluse, be deferred to enable the applicant to consider and submit revised plans to address

the following:

- Amend the design of the rear southern corner addition to allow for the retention of the

iconic views from the kitchen, adjacent courtyard and living areas of 38 Fitzwilliam

Road

- Amend the design of the proposed cupola/belvedere to comply with Council's 9.5m

height control

Annexure: Development Assessment Report submitted to the Development Control

Committee at its meeting on Monday 19 August 2013.

40 Fitzwilliam Road VAUCLUSE Woollahra Council Development Control Committee

DA 14/2013/1 2 September 2013

H:\Development Control Committee\AGENDAS\2013\Working Agenda\D2.docx 1

DEVELOPMENT APPLICATION ASSESSMENT REPORT

ITEM No. D2

FILE No. DA 14/2013

ADDRESS 40 Fitzwilliam Road VAUCLUSE

SITE AREA 1135m2

ZONING Residential 2(a)

PROPOSAL Substantial alterations & additions to the existing dwelling, including

the demolition of the 1950's extension and construction of a new

wing, new basement levels, roof terrace & swimming pool

TYPE OF CONSENT Local development

COST OF WORKS $3,229,085

DATE LODGED 17/01/2013 (original proposal)

20/06/2013 (first amended proposal)

02/07/2013 (second amended proposal)

APPLICANT David White Architects Pty Ltd

OWNER Prof G A Murrell & Prof D F Murrell

AUTHOR

TEAM LEADER

Ms L Samuels

Mr N Economou

PREAMBLE

On 19 August 2013, Council’s Development Control Committee resolved as follows:

“That the matter be referred to a Site Inspection Meeting to be held on Wednesday 21 August

2013.”

The site inspection was cancelled on Tuesday 20 August 2013 as height poles were not erected,

which were considered essential for Council’s Site Inspection Committee to undertake a full and

proper assessment of the proposal.

As a result, the application is referred back to the Development Control Committee meeting on 2

September 2013.


DA 14/2013/1 2 September 2013


EXECUTIVE SUMMARY

1. LOCALITY PLAN

2. DELEGATIONS SUMMARY

Level of Delegation Recommendation of Report

The application is to be determined by the Development Control Committee as

the cost of works are over $3 million.

Approval, subject to conditions.

3. PROPOSAL SUMMARY

The proposal involves the following works:

Substantial alterations & additions to the existing dwelling, including the demolition of the

1950's extension and construction of a new wing along the south-western part of the site.

New basement levels comprising garage, storage, lift and entertainment room.

New roof terrace.

New swimming pool.

Landscaping and site works.

The proposal was amended on 20/06/2013 in the following manner:

The roof height above Bedroom 2 has been reduced from 7.4m to 6.7m (a reduction of 0.7m)

to allow for retention of views from 38 Fitzwilliam Road.

The south-western setback of the dwelling (from 97 Wentworth Road) has been increased

from 1.15m to 2m – 2.25m at ground and first floor levels (kitchen, living room, WIR, ensuite

and master bedroom).

The south-western setback of the roof terrace has been increased from 1.1m to 2.1m.

Reduction in excavated volume from 983.38m³ to 570.44m³ (a reduction of 412.9m³). This

was achieved by deleting the entertainment room, garden store and bathroom at lower ground

floor level and reducing the size of the garage at basement level.

Subject site

Objectors

North


DA 14/2013/1 2 September 2013


The proposal was further amended on 02/07/2013 in the following manner:

Modification to roof profile above Bedroom 2.

Plans depicted further information relating to the 9.5m height line plane.

PROPERTY DETAILS AND REFERRALS

4. SITE AND LOCALITY

Physical features

The site is located on the south-western side of Fitzwilliam Road and is generally rectangular in shape. The site is a

battle-axe property and is currently accessed by stairs from Fitzwilliam Road. DA 437/2011 approved a driveway

providing vehicular access to the site from Fitzwilliam Road. The site has a north-eastern boundary of approximately

34m, a south-western boundary of approximately 40m, a south-eastern boundary of 30.9m and a north-western

boundary of 47.9m. The subject site has an area of 1135m².

Topography

The site rises approximately 10m between the north-eastern (front boundary) and the south-western (rear boundary).

Existing buildings and structures

The site comprises a two storey dwelling-house.

Environment

The site is located within the Vaucluse east precinct under the WRDCP 2003. The following properties adjoin the

subject site:

To the north-east is 40A Fitzwilliam Road which is occupied by a two storey dwelling-house.

To the south-east is 38 Fitzwilliam Road which is occupied by a five storey dwelling-house.

To the south-west is 97 Wentworth Road which is occupied by two storey dwelling-house.

To the south-west is 95 Wentworth Road which is occupied by a five storey residential flat building.

To the north-west is 42 Fitzwilliam Road which is occupied by a two storey dwelling house and 99 Wentworth

Road which is occupied by a three storey dwelling house.

The locality is predominantly characterised by a mix of one, two and three storey dwelling houses of various

architectural styles.

5. RELEVANT PROPERTY HISTORY

Current use

Single dwelling-house

Previous Relevant Applications

DA 437/2011 approved parking for two vehicles, a turning area and driveway access from Fitzwilliam Road.

Pre-DA

N/A

Amended Plans/Replacement Application

The proposal was amended on 20/06/2013 in the following manner:

The roof height above Bedroom 2 has been reduced from 7.4m to 6.7m (a reduction of 0.7m) to allow for

retention of views from 38 Fitzwilliam Road.

The south-western setback of the dwelling (from 97 Wentworth Road) has been increased from 1.15m to 2m –

2.25m at ground and first floor levels (kitchen, living room, WIR, ensuite and master bedroom).

The south-western setback of the roof terrace has been increased from 1.1m to 2.1m.

Reduction in excavated volume from 983.38m³ to 570.44m³ (a reduction of 412.9m³). This was achieved by

deleting the entertainment room, garden store and bathroom at lower ground floor level and reducing the size of

the garage at basement level.

The proposal was further amended on 02/07/2013 in the following manner:

Modification to roof profile above Bedroom 2.

Plans depicted further information relating to the 9.5m height line plane.


DA 14/2013/1 2 September 2013


6. REFERRALS

Referral Summary of Comment Annexure

Development Engineer Council’s Development Engineer has determined that the proposal is

acceptable subject to conditions. 2

Landscaping Officer Council’s Landscaping Officer has determined that the proposal is


Heritage Officer Council’s Heritage Officer has determined that the proposal is


ENVIRONMENTAL ASSESSMENT UNDER SECTION 79C

The relevant matters for consideration under Section 79C of the Environmental Planning and

Assessment Act 1979 include the following:

1. The provisions of any environmental planning instrument

2. The provisions of any proposed instrument that is/has been the subject of public consultation

3. The provisions of any development control plan

4. Any planning agreement that has been entered into

5. Any draft planning agreement that a developer has offered to enter into

6. The regulations

7. Any coastal zone management plan

8. The likely impacts of that development:

i) Environmental impacts on the natural and built environments

ii) Social and economic impacts

9. The suitability of the site

10. Any submissions

11. The public interest

7. ADVERTISING AND NOTIFICATION

7.1 Submissions

In accordance with Parts 3 and 4 of the Woollahra Advertising and Notification DCP, the

application was notified and advertised from 30/01/13 to 13/02/13. Submissions were received

from:

1. Dinah Goddard, 97 Wentworth Road, Vaucluse

2. Willana Associates on behalf of Mr and Mrs Matsoukas, 38 Fitzwilliam Road, Vaucluse

3. Peter Bakaric, 3/95 Wentworth Road, Vaucluse

The submissions raised the following issues:

Insufficient south-western setback

Amended plans were prepared which involved increasing the south-western setback of the

dwelling from 1.15m to 2m – 2.25m at ground and first floor levels (kitchen, living room,

WIR, ensuite and master bedroom). This is considered to provide adequate separation from

the neighbouring dwelling at 97 Wentworth Road.

It is also noted that the second floor level adjacent to the south-western boundary comprises a

pitched roof which slopes away from the neighbouring property, thereby minimising any

sense of enclosure. This issue is further discussed under Section 14.4 of the report.


DA 14/2013/1 2 September 2013


Excessive height

The proposal attains a maximum height of 10.4m. The height non-compliance relates to the

cupola only, which is located approximately within the centre of the site and would not have

an adverse impact on the neighbouring properties. The remainder of the dwelling attains a

maximum height of 8m which complies with the height control. This is further addressed

under Section 8.1 of the report.

Excessive excavation

The amended plans involve reducing the excavated volume from 983.38m³ to 570.44m³ (a

reduction of 412.9m³). This was achieved by deleting the entertainment room, garden store

and bathroom at lower ground floor level and reducing the size of the garage at basement

level. This is further discussed under Sections 11.3 and 15.4 of the report.

Privacy

This is addressed under Section 15.10 of the report.

Overshadowing


View loss


Stormwater

Council’s Development Engineer has determined that the proposal is acceptable subject to

conditions, as discussed under Section 12.5 of the report.

Pruning of the Red Flowering Gum Tree (Corymbia ficifolia)

The survey plan indicates that the Gum Tree straddles the boundary between the subject site

and 97 Wentworth Road. The proposed south-western addition requires pruning of the Gum

Tree. In accordance with Council’s Tree Preservation Order, Condition A.5 requires that the

owner of 97 Wentworth Road provides consent for the pruning of the Red Flowering Gum

Tree.

Height of landscaping

Subject to Condition C.1(h), the proposed landscaping within the southern corner of the site

shall be of a species that attains a maximum height of 4m at maturity, to preserve the views

from 38 Wentworth Road.

7.2 Statutory Declaration

In accordance with Clause 4.5 of the Woollahra Advertising and Notification DCP, the applicant

has completed the statutory declaration dated 21/02/2013 declaring that the site notice for DA

14/2013/1 was erected and maintained during the notification period in accordance with the

requirements of the DCP.

7.3 Renotification

Amended plans were lodged on 20/06/2013 and 02/07/2013. They were not renotified under Clause

5.1 of the Advertising and Notification DCP because, having considered Clause 9 of the DCP, the

amended plans were considered to have no greater environmental impact upon neighbours.


DA 14/2013/1 2 September 2013


8. STATE ENVIRONMENTAL PLANNING POLICY 55: REMEDIATION OF LAND

An assessment of the Initial Site Evaluation provided by the applicant indicates the land does not

require further consideration under Clause 7 (1) (b) and (c) of SEPP 55. The proposal is therefore

acceptable with regard to SEPP 55: Remediation of Land.

9. STATE ENVIRONMENTAL PLANNING POLICY (BUILDING SUSTAINABILITY

INDEX: BASIX) 2004

SEPP (Building Sustainability Index: BASIX) 2004 ("BASIX") applies to the proposed

development and relates to commitments within the proposed development in relation to thermal

comfort, water conservation and energy efficiency sustainability measures.

The development application was accompanied by BASIX Certificate No. A146935, which

commits to environmental sustainability measures relating to thermal comfort, water savings and

energy efficiency.

As prescribed by Clause 97A of the Environmental Planning and Assessment Regulation 2000,

these requirements have been imposed in Conditions C.3, H.1 and I.1.

10. SYDNEY REGIONAL ENVIRONMENTAL PLAN (SYDNEY HARBOUR

CATCHMENT) 2005

The land is within the Sydney Harbour catchment but is outside the Foreshores and Waterways

Area and therefore there are no specific matters for consideration.

11. WOOLLAHRA LOCAL ENVIRONMENTAL PLAN 1995

11.1 Clause 8(5): Aims and Objectives of the Zone

The proposal is permissible and is consistent with the aims and objectives of the Residential 2(a)

zone, subject to conditions.

11.2 Clause 12: Height of Buildings

Under the provisions of Clause 12 of WLEP 1995, the maximum permissible height for the

development on the subject site is 9.5m. The proposal attains a maximum height of 10.4m, which

exceeds the height control by a maximum of 0.9m. The area of non-compliance relates to the cupola

which rises above the height of the dwelling.

Existing Proposed Control Complies

Overall Height 8.3m 6.7m - 10.4m 9.5m NO

Note: The SEPP 1 Objection submitted by the applicant only relates to the cupola and not to the

proposed chimney above the master bedroom. As such, Condition C.1(i) requires the chimney to

be reduced to a maximum height of 9.5m

The applicant has submitted an objection pursuant to State Environmental Planning Policy No. 1 –

Development Standards in relation to the non-compliance with Clause 12, which is attached in full

as Annexure 2 and is summarised as follows:

http://www.austlii.edu.au/au/legis/nsw/consol_reg/srephc2005587


DA 14/2013/1 2 September 2013


“Strict compliance with the development standard for the Height of Buildings, contained within

Clause 12(1) of WLEP 1995 is considered to be unnecessary and unreasonable in the

circumstances as the proposal complies with the following objectives stated in Clause 12AA of LEP

1995:-

a) to minimise impact of new development on existing views of Sydney Harbour, ridgelines,

public and private open spaces and views of the Sydney City skyline,

The proposal will satisfy objective a) for the following reasons;

There is little or no impact on existing views of Sydney Harbour, ridgelines, public and

private open spaces and views of the Sydney City skyline.

The subject site is not in the vicinity of any significant view corridors as defined by the

Woollahra Residential Development Control Plan.

The design of the belvedere and cupola is in character with the existing Federation Queen

Anne style of the property.

The environmental stack effect principle is utilized in the design of the belvedere and cupola.

b) to provide compatibility with the adjoining residential neighbourhood

The proposal will satisfy objective b) for the following reasons;

The proposed works are compatible with the character and appearance of the locality.

The proposed building height is in keeping with adjoining neighbouring dwellings and

surrounding dwellings and is of a conservative bulk and scale compared to numerous existing

adjoining developments.

The location of the site as a battle axe allotment significantly reduces the impact of the

proposed building has in terms of height.

c) to safeguard visual privacy of interior and exterior living areas of neighbouring dwellings,

The minimal encroachment of the cupola on the development standard does not affect any

neighbours visual interior or exterior privacy.

d) to minimise detrimental impacts on existing sunlight access to interior living rooms and

exterior open space areas and minimise overshadowing,

The proposal will satisfy objective d) as the proposed shadows of the cupola fall onto the

proposed and existing roof of the subject dwelling. The breaching portion does not contribute

to the overshadowing of any adjoining properties. The adjoining dwellings and their

associated private open areas will receive alevel of sunlight well in excess of the requirement

of Woollahra Residential Development Control Plan 2003.

e) to maintain the amenity of the public domain by preserving public views of the harbour and

surrounding areas and the special qualities of streetscapes.

The proposal satisfies objective e) for the following reasons;

As stated previously, there are no significant view corridors nearby, as outlined in the

Woollahra Development Control Plan.

The battle axe allotment is set well back from the street and will not affect any view corridors

or special streetscape qualities.

There will be no unreasonable loss of views from any adjoining or nearby private property.


DA 14/2013/1 2 September 2013


Based on these circumstances, the applicant is of the opinion that strict adherence to the height

standard is unreasonable and unnecessary.”

The following assessment of the SEPP 1 objection applies the questions established in Winten

Property Group Limited v North Sydney Council. These questions remain the principal tests to

establish whether or not a SEPP 1 Objection is well founded, however, the more recent principles

arising from Wehbe v Pittwater Council are applied to inform the assessment.

1. Is the planning control in question a development standard?

The planning control in question is the maximum 9.5 m building height standard set by Clause 12 of

Woollahra LEP 1995. As such, any variation of the standard requires a SEPP 1 objection, as has

been prepared in this case.

2. What is the underlying purpose of the standard?

The objectives of the minimum site area standard in Clause 12AA are:

a) To minimise impact of new development on existing views of Sydney Harbour, ridgelines,

public and private open spaces and views of the Sydney City skyline

b) To provide compatibility with the adjoining residential neighbourhood

c) To safeguard visual privacy of interior and exterior living areas of neighbouring dwellings

d) To minimise detrimental impacts on existing sunlight access to interior living rooms and

exterior open space areas and minimise overshadowing

e) To maintain the amenity of the public domain by preserving public views of the harbour and

surrounding areas and the special qualities of the streetscapes.

3. Is compliance with the development standard consistent with the aims of the Policy, and in

particular, does the development standard tend to hinder the attainment of the objects

specified in s.5(a)(i) and (ii) of the EPA Act?

The aim of the Policy is set out at Clause 3 and seeks to ―provide flexibility in the application of

planning controls operating by virtue of development standards in circumstances where strict

compliance with those standards would be unreasonable or unnecessary or tend to hinder the

attainment of the objects specified in Section 5(a)(i) and (ii) of the Environmental Planning and

Assessment Act 1979.

In Wehbe v Pittwater Council, Preston CJ stated:

“An objection under SEPP 1 may be well founded and be consistent with the aims set out in

clause 3 of the Policy in a variety of ways. The most commonly invoked way is to establish

that compliance with the development standard is unreasonable or unnecessary because the

objectives of the development standard are achieved not withstanding non-compliance with

the standard.”

Accordingly, the following assessment considers the objection made by the applicant against the

provisions of Clause 12 of Woollahra LEP 1995 and whether or not it is established that the

objectives of the development standard are achieved irrespective of the non-compliance. The

proposed height is considered to be acceptable with regard to the objectives for the following

reasons:


DA 14/2013/1 2 September 2013


Objective (a):

The height non-compliance relates to the cupola only. Given the siting of the belvedere and

cupola within the south-western part of the site, the height non-compliance does not result in

any adverse impact on existing views of Sydney Harbour, ridgelines, public and private open

spaces and views of the Sydney City skyline.

While the southern corner of the dwelling results in some view loss from 38 Fitzwilliam

Road, this part of the dwelling attains a height of 6.7m and does not exceed the height control.

Similarly, the south-western addition results in some view loss from 95 Wentworth Road.

Nevertheless, this part of the dwelling attains a height of 8m and does not exceed the height

control. The view loss is considered further under Section 15.7 of the report.

As discussed, the area of non-compliance with the height control relates to the cupola only,

which does not directly result in view loss from the neighbouring properties.

Objective (b):

The belvedere and cupola are compatible with the federation style of the existing dwelling.

Similarly, the proposed alterations and additions are compatible with the character of the

existing dwelling and development within the locality.

The subject site is a battle axe property and the therefore the dwelling (including the

belvedere and cupola) is not highly visible from the streetscape. As such, the proposal will not

adversely affect the visual amenity of the streetscape, the harbour or surrounding residential

properties.

Objective (c):

The cupola does not have an impact on the privacy of the neighbouring properties as it

contains high level windows which let in light, but do not allow overlooking of the

neighbouring properties.

The viewing platform within the belvedere is below the 9.5m height limit. Nevertheless, the

windows to the viewing platform are separated from the neighbouring properties by more than

9m and do not allow for direct overlooking of the neighbouring properties.

Objective (d):

The area of height non-compliance relating to the cupola does not result in any adverse

overshadowing of the neighbouring properties.

The proposal complies with the solar access requirement and maintains sunlight to the north

facing habitable room windows of the neighbouring properties for more than 3 hours and

sunlight to at least 50% of the main ground level private open space of adjacent properties for

a minimum of 2 hours.

Accordingly, it is considered that the proposed height allows for an adequate level of solar

access to be maintained to the adjoining properties.

Objective (e):

The proposed cupola would not be highly visible from the public domain and therefore would

not result in any adverse impacts on public views.

Given the subject site is a battle-axe property and the dwelling is not highly visible from the

streetscape, the proposal will not have an impact on the special quality of the streetscape.

Nevertheless, the height, bulk and scale of the proposal is considered to be consistent with the

built form of the neighbouring dwellings.


DA 14/2013/1 2 September 2013


4. Is compliance with the standard unreasonable and unnecessary in the circumstances of the

case?

The abovementioned analysis has found that notwithstanding the non-compliance with the

maximum building height standard, the proposed non-compliance with the height control achieves

the underlying objectives of that standard. Consequently it is considered that the SEPP 1 objection

has established that compliance with the development standard in relation to the proposed attic level

is unreasonable and unnecessary in the circumstances of the case.

5. Is the objection well founded?

The objection advanced by the applicant that compliance with the development standard is

unreasonable and unnecessary is well founded, as the areas of non-compliance would not have

detrimental impacts on the amenity of the public domain and adjoining properties and therefore

would be consistent with the aims and objectives set out in Clause 3 of SEPP 1.

11.3 Clause 18: Excavation of Land

Clause 18 Excavation: The provisions of Clause 18 require Council, when considering a

development application involving excavation, to have regard to how that excavation may

temporarily or permanently affect:

(a) the amenity of the neighbourhood by way of noise, vibration, dust or other similar

circumstances related to the excavation process

(b) public safety

(c) vehicle and pedestrian movements

(d) the heritage significance of any heritage item that may be affected by the proposed excavation

and its setting

(e) natural landforms and vegetation and

(f) natural water run-off patterns

The extent of excavation associated with the proposal includes the following areas:

Bulk excavation for the proposed lower ground floor level with a depth of 4.7m over an area

of 55m². Bulk excavation for the proposed basement level with a depth of 3.1m over an area of 185m².

Excavation for the lower ground floor and basement levels comprises a total volume of

780.44m³. The DA 437/2011/1 for the approved driveway access to the site comprised an

excavated volume of 209.82m³. As such, the proposed new additional excavation comprises a

volume of 570.44m³.

Bulk excavation for the proposed swimming pool to a depth of 1.4m, over an area of 50m²; a

volume of 70m³.

Excavation associated with footings for the proposed dwelling-house and landscaping works.

C5.2.16 of WRDCP 2003 stipulates that excavation is required to be setback a minimum of 1.5m

from all boundaries. The proposed bulk excavation associated with the proposed basement level,

swimming pool and all other excavation works generally accord with the above criteria, with the

only exception being the garage entrance which is setback 1m – 1.5m (a 0.5m non-compliance for a

distance of 1.9).


DA 14/2013/1 2 September 2013


Having regard to the above-mentioned heads of consideration, the following comments are made in

relation to the impact of the proposed excavation upon the local environment:

(a) the amenity of the neighbourhood by way of noise, vibration, dust or other similar

circumstances related to the excavation process

The maintenance of the amenity of the neighbourhood in terms of minimising noise, vibration and

dust is addressed by Conditions C.4, C.5, C.6, C.7, D.2, D.3, D.4, E.2, E.8, E.9, E.10, E.11, E.12

and E.14 requiring compliance with the recommendations of the geotechnical and hydrogeological

reports, dilapidation surveys, maintenance of erosion and sediment, dust and noise controls,

compliance with the geotechnical monitoring program, support for neighbouring buildings and

vibration monitoring. Subject to the above-mentioned conditions, the amenity of the adjoining

residential properties will be maintained.

(b) public safety

(c) vehicle and pedestrian movements

Issues relating to public safety and pedestrian movements during the excavation phase are inter-

related and are addressed by conditions requiring site fencing, footpath levels to be maintained,

safety precautions and structural support of public places during excavation.

(d) the heritage significance of any heritage item that may be affected by the proposed excavation

and its setting

Any heritage items in the vicinity of the site are located beyond the zone of influence associated

with the proposed excavation and will not be adversely affected in this instance.

(e) natural landforms and vegetation

The bulk of the proposed excavation is within the building footprint of the proposed dwelling.

Excavation for the garage is partly outside the building footprint. Nevertheless, the proposal

involves terraced and landscaped gardens above the garage which aim to reinstate the topography of

the site. Subject to conditions, the proposed excavation will not have an adverse impact on the

amenity or stability of adjoining properties. Accordingly, no objection is raised to altering the

natural landform in this instance.

The proposal does not involve the removal of any significant trees on site. Council’s Tree Officer

has determined a number of significant trees to be retained and replacement trees to be planted,

subject to Conditions A.5, B.2, B.3, C.13 and E.16. This will maintain the landscape character of

the subject site.

(f) natural water run-off patterns

Council's Development Engineer has assessed the proposal and considers the stormwater and runoff

management to be satisfactory, subject to conditions.

Subject to conditions, the excavation associated with the proposal is considered to be satisfactory

with regard to the provisions of Clause 18 of WLEP 1995.


DA 14/2013/1 2 September 2013


11.4 Clause 19: Harbour Foreshore Scenic Protection Area

Clause 19 requires Council to consider the likely impact of any proposed development upon the

Harbour Foreshore Scenic Protection Area (HFSPA). The proposal is considered to be acceptable in

this regard.

11.5 Clause 25: Water, Wastewater and Stormwater

Clause 25 requires Council to take into consideration the provision of adequate stormwater drainage

and the provision of adequate water and sewerage services. Council’s Development Engineer has

provided the following comment:

“In general, there are no objections to Stormwater disposal concept plan prepared by Partridge

Structural P/L, dated 18/02/2013, Dwgs No. H1 to H4. However, there is only to be a single point

of discharge from the site to the kerb & gutter (from the proposed dual discharge pipes)

This concept plan is subject to the submission and approval of Stormwater Management Plan for

the site prior to release of the Construction Certificate. Details are to be in accordance with

Council‟s Draft Stormwater Development Control Plan and Local Approvals Policy. This is to

ensure that site stormwater is disposed in a controlled and sustainable manner - Conditions

applied.

Council‟s Technical Services Division is satisfied that adequate provision has been made for the

disposal of stormwater from the land it is proposed to develop and complies with the provisions of

Clause 25 (2) of WLEP 1995”.

Subject to conditions, the proposal is considered to be acceptable with regard to Clause 25 of

WLEP 1995.

11.6 Clause 25D: Acid Sulphate Soils

Clause 25D requires Council to consider any potential acid sulphate soil affectation where

excavation is proposed within the site.

The subject site is within a Class 5 Acid Sulphate Soils Area as identified in the Planning NSW

Acid Sulphate Soils Risk Map. However, the subject works are not likely to lower the water table

below 1.0m AHD on any land within 500m of a Class 1, 2 and 3 land classifications. Accordingly,

preliminary testing is would not be required. Therefore, there is no issue of acid sulphate affectation

in this case.

11.7 Clause 26 - 33: Heritage Items

Council’s Heritage Officer has provided the following comment with regard to heritage

significance:

“SIGNIFICANCE OF SUBJECT PROPERTY

Sunny Brae, the residence at No. 40 Fitzwilliam Road, Vaucluse is an Edwardian house, designed

in the Queen Anne style by North Sydney architect W. Friederich for John Taylor Cooke, Assistant

Under-Secretary in the N.S.W. Department of Lands. The original brick cottage was constructed

circa 1909, comprising eight principal rooms, and two rooms within the roof space.

Council records indicate that the house was the subject of a Building Application in 1951.


DA 14/2013/1 2 September 2013


By virtue of earlier subdivisions of the allotments purchased by Cooke, the subject site has a 4.42

metre-long frontage to Fitzwilliam Road and a 3.23 metre-long frontage to Wentworth Road. The

landlocked house makes no contribution to either streetscape; it may well be that the distinctive

house‟s “invisibility” has resulted in its failure to be considered for listing as a heritage item.

SIGNIFICANCE OF ITEMS IN THE VICINITY

The Wentworth Memorial Church is the most architecturally distinguished church of the later 20th

century in NSW. The church and grounds (being all land in the boundaries of Lot 1 DP 871485)

have strong historic associations with William Charles Wentworth and the Wentworth Family. The

church is the last built work on their Vaucluse House Estate. The church and its grounds are

strongly associated with the Wentworth Mausoleum, burial site of William Charles Wentworth and

family, on the adjacent site, to which they are historically joined, and share a position on a unique

rocky outcrop. The two sites were originally one when bequeathed to the Anglican Church by the

Wentworth family. The church is strongly associated with the architect, Don Gazzard, who is an

important Australian architect of the mid and late 20th century. The church and grounds have

social significance for their association with historic and local families, church-going members and

war veterans of the Vaucluse area. The church and grounds have social significance and

community esteem for their value as a gift of land from an important family; the status of the church

as a war memorial to the fallen soldiers of World War Two; and for the construction of both church

and church hall with community-donated funds. The church is of aesthetic and architectural

significance to groups who appreciate Australian architectural history, as evidenced by its

inclusion on the RAIA Register of 20th

Century Buildings of Significance, and the wide range of

publications which feature the building.

The Forest Red Gum at 57A Fitzwilliam Road is part of the Municipality‟s only remaining Forest

Red Gum-dominated forest. Remnant indigenous trees are located in a random layout within the

Parsley Bay/Vaucluse Bay/ Nielsen Park precinct. Together with the indigenous street trees of this

area, they form significantly the largest single component of the Municipality‟s remaining native

trees outside the major parks.

The War Memorial is an unusual monument: a white timber flagstaff, 15 metres-high, together with

two small cannon on timber mounts set on a crenellated sandstone oval base (3 metres long x 2

metres wide x 0.7 metres high), and a bronze plaque to the “gallant men who fought for us in the

Great War”. Behind the War Memorial is a 1930s cement grotto bus shelter set below a sandstone

rocky cutting, with some native vegetation.

The proposal will not affect any significant view to or from the heritage items and will not

overshadow the items. The proposal will not have any effect on the heritage significance of the

items or their settings.

DESCRIPTION OF PROPOSAL

The following works are proposed:

On a new (excavated) basement floor accessed by a driveway from Fitzwilliam Road:

construct a four-car garage, bin store, store room, hallway, passenger lift and lift motor

room, and a staircase to provide access up to the lower ground floor.

On a new (excavated) lower ground floor: construct an entertainment room with windows in

the ceiling that are set into the floor of the proposed external swimming pool, a bathroom, a

garden store, a bag store, hallway, passenger lift, a staircase up to the ground floor, and,

within part of the (approximate) 4.4 metre-high lower ground floor space, construct a

mezzanine that comprises a store and an air-conditioning plant room


DA 14/2013/1 2 September 2013


On the (existing)ground floor: demolish the 1950s extension, together with the south-western

wall of the original breakfast room, that part of the north-western wall between the original

breakfast room and the original larder, and the ceiling to the original breakfast room;

construct an extension to the south-west of the existing house, comprising a bedroom with

bathroom en suite, a music room, an octagonal void space over the rooms to the south-west of

the original dining room with an open-well staircase to the (new) first floor on five of the

eight walls of the octagonal space, each flight terminating in an eighth-landing with flights

set at 45º to each other, a laundry and a store; and a wing extending to the north-west,

comprising a passenger lift, kitchen, and a family living/dining space.

On the (existing) first floor: demolish the 1950s extension, together with walls within the

existing roof space to the extent shown on the drawings; construct new sections of wall within

the existing roof space to the extent shown on the drawings; reposition and extend the existing

north-east-facing dormer; construct an extension to the south-west of the existing house,

comprising a bedroom with a walk-in robe and bathroom en suite, a library, an octagonal

void space with an open-well staircase to the (new) belvedere floor on four of the eight walls

of the octagonal space, each flight terminating in an eighth-landing with flights set at 45º to

each other; and a wing extending to the north-west, comprising a passenger lift and a main

bedroom suite with two walk-in robes and bathroom en suite, a gallery and a north-east-

facing balcony.

On the (new) belvedere floor: construct an enclosed and roofed octagonal belvedere with a

central, raised lantern; and construct an open, balustraded roof terrace.

Externally: construct a (previously-approved) driveway from Fitzwilliam Road; construct new

stairs and retaining walls; construct a new lawn and terraced garden beds, partially set over

the underground garage; construct new steps up to a covered outdoor entertaining area

outside the new ground floor family living/dining room; construct a new swimming pool and

spa partially set over the underground entertainment room on the lower ground floor;

construct a pool terrace outside the new ground floor kitchen; and, off the (internal) kitchen

and family living/dining room, construct an outdoor kitchen.

ASSESSMENT OF HERITAGE IMPACT

Compliance with the relevant planning controls

The assessment is made using the following statutory and policy heritage conservation provisions:

Woollahra Local Environmental Plan 1995, the LEP

Clause 27: The development will have no impact upon the heritage items within its vicinity.

Woollahra Residential Development Control Plan 2003, the DCP

Consideration

12. 4.13 Vaucluse West precinct

The subject site is located within the DCP‟s Vaucluse West character precinct. There are no

heritage-related Desired Future Character Objectives or Desired Future Character

Performance Criteria in this Clause of the DCP.

13. 5.11 Harbour Foreshore Development

The subject site is located within the DCP‟s Harbour Foreshore Scenic Protection Area.

There are no heritage-related Objectives or Performance Criteria in this Clause of the DCP.


DA 14/2013/1 2 September 2013


RECOMMENDATION

Consent. No heritage conservation conditions are required.”

The subject building is not listed as a heritage item in the WLEP, is not listed on the State Heritage

Register and is not within a heritage conservation area. The proposed works will not have an

adverse impact on the heritage items in the vicinity of the site. Accordingly, the proposal is

considered to be acceptable with regard to Clauses 26-33 of WLEP 1995.

14. WOOLLAHRA RESIDENTIAL DEVELOPMENT CONTROL PLAN 2003

14.1 Part 3.0: Site Analysis

Part 3 requires adequate site analysis documentation for development applications. The application

is considered to be satisfactory in this regard.

14.2 Section 4.13: Desired Future Precinct Character

Site Area:1,146.71m2 Existing Proposed Control Complies

Location of Garages and Car Parking

Structures -

Behind front

setback

Behind Front

Setback YES

Garage Frontage Width - N/A 30% N/A

Height of Garage or Car Parking Structure

on High Side of the Street - N/A 2.5m N/A

Maximum Number of Storeys – Dwelling 2 Part 2, part 3 2 Storeys NO

Number of Storeys

C 4.13.5.3 stipulates that development is to have a maximum height of 2 storeys. The proposed

development is part 2, part 3 storeys. The proposal is considered to be acceptable for the following

reasons:

The proposed dwelling will predominantly present as two storeys when viewed from the

neighbouring properties. The belvedere/viewing deck (which has an area of 28m²) is the only

area that presents as a third storey when viewed from the neighbouring properties.

The lower ground floor and basement levels are predominantly below existing ground level

and do not contribute any additional bulk to the dwelling.

The basement garage level is a response to the topography of the site and allows for the

provision of vehicular access from Fitzwilliam Road.

Given the site is a battle-axe, the dwelling is not highly visible from the streetscape.

The proposal involves a 0.9m non-compliance with Council’s 9.5m height control. The non-

compliance relates to the cupola above the viewing platform only and the remainder of the

dwelling complies with the height control.

The proposed number of storeys does not have a significant impact on views, privacy and

sunlight access to the adjoining properties.

Conclusion

The proposal is therefore acceptable with regard to Section 4.13 of the Woollahra RDCP 2003.


DA 14/2013/1 2 September 2013


14.3 Section 5.1: Streetscape performance criteria

The proposal is considered to be satisfactory with regard to the relevant objectives and performance

criteria stipulated under Part 5.1 of WRDCP 2003.

14.4 Section 5.2: Building Size and Location


Setback from Significant Mature Trees - >3m 3.0m YES

Front Setback - N/A (battle-axe site) N/A N/A (battle-

axe site)

Rear Setback - N/A (battle-axe site) N/A N/A (battle-

axe site)

Side Boundary Setbacks (north-west)

Basement level

Lower level

Ground Floor

First Floor

Second Floor- Belevedere

-

-

21.8m

25.5m

-

1m – 4.3m

1m – 3.2m

3.1m – 4.6m

3.2m – 5.4m

23m

1.5m

1.5m

2m – 2.7m

3.1m - 3.75m

5.15m

NO (partial)

NO (partial)

YES

NO (partial)

YES

Side Boundary Setbacks (south-west)

Basement level

Lower level

Ground Floor

First Floor

Second Floor - Belevedere

-

-

0.5m – 7.9m

0.5m - 9.7m

-

>1.5m

>1.5m

1.1m – 3.1m

2m – 4.2m

4.9m – 7.4m

1.5m

1.5m

1.7m – 2.1m

3.35m – 4.5m

5.15m

YES

YES

NO (partial)

NO

YES

Side Boundary Setbacks (south-east)

Basement level

Lower level

Ground Floor

First Floor


-

-

0.9m

2.1m – 3.7m

-

>1.5m

>1.5m

0.9m

0.9m – 3.7m

9.4m

1.5m

1.5m

1.5m

2.7m

5.15m

YES

YES

NO

NO (partial)

YES

Side Boundary Setbacks (north-east)

Basement level

Lower level

Ground Floor

First Floor


-

-

3.2m – 5.1m

5.7m – 10.6m

-

>1.5m

>1.5m

3.2m – 5.1m

5.7m – 10.3m

15.9m

1.5m

1.5m

2.2m -2.3m

3.25m – 4m

5.15m

YES

YES

YES

YES

YES

Ancillary Development (swimming pool)

Maximum Height - 1.8m – 2.7m 3.6m YES

Ancillary Development (swimming pool)

North-west setback

South-west setback

South-east setback

-

-

-

>1.5m

>1.5m

>1.5m

1.5m

1.5m

1.5m

YES

YES

YES

Building Footprint –

Dwelling

26%

(299.3 m²) 39%

(444 m²) 30%

(344m²) NO

Floor Space Ratio –

Dwelling

0.31:1

(354.6m²) 0.73:1

(832m²) 0.55:1

(630.7m²) NO

Floor to Ceiling Height – Habitable

Rooms 3m 2.55m 2.7m NO

Solar Access to Open Space of Adjacent

Properties >50% for 2

hours >50% for 2 hours

50% for 2 hours

on 21 June YES

Solar Access to Nth Facing Living Areas

of Adjacent Properties >3 hours >3 hours

3 hours on 21

June YES

Excavation, Piling and Subsurface Wall

Setback - 1.1m – 6.7m 1.5m NO

Maximum Volume of Excavation - 570m³ 280m2 NO


DA 14/2013/1 2 September 2013


Front and rear setbacks

The subject site is a battle-axe property with approved vehicular access via an 18m long driveway

from Fitzwilliam Road. The site does not have a direct frontage to Fitzwilliam Road or Wentworth

Road and therefore there is no defined front or rear boundary. As such, the setbacks have been

assessed with regard to the side boundary setback controls.

Setback from Significant Mature Trees

C 5.2.1 stipulates that development is to be setback a minimum of 3.0m from the base of trees to

minimise root damage. Council’s Trees and Landscaping Officer has provided the following

comment with regard to trees on the subject site:

“Located on the south western boundary is a Red Flowering Gum. The survey plan shows the Red

Flowering Gum as straddling the boundary between the subject property and 97 Wentworth Road

Vaucluse. In accordance with Council‟s Tree Preservation Order consent from the owner of the

property in which the tree stands is required prior to carrying out Arboricultural works. The

submitted Arboricultural Impact Assessment Report recommends the tree be pruned for clearance

of the proposed building. The applicant should be made aware that consent from the neighbouring

property owner at 97 Wentworth Road Vaucluse will be required.

As identified in the submitted Arboricultural Impact Assessment Report the tree protection zones

are notional. Accordingly I have indicated where tree protection zone fencing should be placed

instead of nominating a radial distance from the centre of the trunks of trees to be retained.”

Subject to Condition A.5, the applicant is required to obtain consent from the owner of 97

Wentworth Road before carrying out any pruning of the Red Flowering Gum. Accordingly, the

proposal is considered to be acceptable with regard to tree protection.

Side Setbacks

C 5.2.5 requires development to be setback from the side boundaries by 1.5m, increased on a pro

rata basis by 0.5m for each metre or part thereof that the building height adjacent to the boundary

exceeds 3.0m. Given the subject site is a battle-axe site (with no defined front or rear boundary) the

boundaries have all been assessed as side boundaries in this instance. The proposal involves the

following non-compliances with the side setback control:

North-western side setback

The basement level will have a setback of 1m – 4.3m from the north-western side boundary, a

minor non-compliance of 0.1m – 0.5m for a distance of 1.9m (northern corner of garage

entrance).

The lower ground floor level has a setback of 1m – 3.2m from the north-western side

boundary, a minor non-compliance of 0.1m – 0.5m for a distance of 1.6m (northern corner of

plant room).

The ground floor level complies with the north-western side setback control.

The first floor level attains a setback of 3.2m – 5.4m, a non-compliance of 0.7m – 1.3m for a

distance of 2.7m (northern corner of master bedroom).

The second floor level (belvedere) complies with the north-western side setback control.


DA 14/2013/1 2 September 2013


South-western side setback

The lower ground floor and basement levels comply with the side setback control.

The ground floor level attains a south-western side setback of 1.1m – 3.1m, which is a non-

compliance of 0.1m – 1.1m. The non-compliance is minor as it relates to the corner of

Bedroom 3, the laundry and the living room. The bulk of the ground floor level complies with

the south-western setback control.

The proposed first floor level will attain a south-western side setback of 2m – 4.2m, which is

a non-compliance of 0.1m – 2m for a distance of 7.7m (WIR and corner of ensuite).

The second floor level (belvedere) complies with the south-western side setback control.

South-eastern side setback

The lower ground floor and basement levels comply with the side setback control.

The proposed ground floor level will attain a south-eastern side setback of 0.9m, which is a

non-compliance of 0.6m for a distance of 7.3m (Bedroom 3 and ensuite).

The proposed first floor level will attain a south-eastern side setback of 0.9m – 3.7m, which is

a non-compliance of 1.9m for a distance of 3.9m (ensuite to bedroom 2).

The second floor level (belvedere) complies with the south-eastern side setback control.

North-eastern side setback

The proposal complies with the north-eastern side setback control.

The non-compliances with the side setback requirements are considered to be acceptable for the

following reasons:

Setbacks to 97 Wentworth Road

The amended plans involved increasing the south-western side setback of the dwelling from

1.15m to 2m – 2.25m at ground and first floor levels (kitchen, living room, WIR, ensuite and

master bedroom).

The increased setback will reduce the sense and enclosure and minimise the bulk of the

dwelling when viewed from the habitable rooms and private open space at 97 Wentworth

Road.

Setbacks to 38 Fitzwilliam Road

The proposal involves the retention of part of the existing dwelling which is setback 0.9m

from the south-eastern boundary at ground floor level. The proposed ground floor addition

(Bedroom 3 and ensuite) is consistent with the setback of the existing dwelling. This is

considered to be acceptable as the finished floor level of Bedroom 3 is 2.4m lower than the

finished floor level at 38 Fitzwilliam Road and the wall height of Bedroom 3 is predominantly

lower than the height of the boundary fence and therefore will not be highly visible from 38

Fitzwilliam Road.

The proposed first floor addition is predominantly accommodated within the pitched roof,

which slopes away from 38 Fitzwilliam Road. Subject to Condition C.1(d), the dormer

window (accommodating the ensuite) shall be setback 1.5m from the side boundary to

provide adequate separation from the neighbouring property. The dormer is integrated into the

pitched roof form and is considered to achieve an acceptable level of visual amenity.

The submitted photomontage indicates that a development complying with the side setback

controls would still result in the loss of the Harbour Bridge view from the ground floor

kitchen. As such, the proposed side setback is considered to be acceptable. This is discussed

further under Section 15.7 of the report.


DA 14/2013/1 2 September 2013


Setbacks for the whole of the development (general assessment)

The proposal predominantly complies with the side setback controls at lower ground floor and

basement level. The area of non-compliance is considered to be minor and would not

contribute any adverse bulk to the proposed dwelling nor adversely impact upon the amenity

of adjoining properties.

The proposal predominantly complies with the side setback controls at ground floor level. The

areas of non-compliance relate to a small portion of the corners of Bedroom 3, laundry and

living room.

The side boundary setback non-compliances would not result in any unreasonable impacts to

the amenity of the neighbouring properties.

The non-compliances would not result in any unreasonable bulk or visual impact when

viewed from the public domain or the neighbouring properties.

The design of the dwelling includes articulation in the form of varied setbacks and materials.

This ensures that the proposal would not have any unreasonable visual impacts.

The setbacks of the development will satisfy Council’s view sharing objectives as discussed

further under Section 14.7.

The proposal maintains sunlight to the north facing windows of the neighbouring properties

for more than 3 hours and to more than 50% of the open space of the adjoining properties for

more than 2 hours.

The proposed side setbacks would not appear out of character with the existing side setback

pattern within the locality.

Building Footprint

C 5.2.8 specifies a maximum building footprint of 30% (344m²). The proposal has a building

footprint of 39% (444m²) which is a non-compliance of 100m². The proposal is considered to be

acceptable with regard to the objectives for the following reasons:

The proposed dwelling-house is compatible with the bulk and scale of the surrounding

dwelling-houses.

The proposed site coverage is consistent with other development within the locality.

The proposed deep soil landscaping and advanced replacement trees will adequately maintain

the existing landscape character of the area.

The proposed level of deep soil landscaping will ensure adequate on-site filtration and

maintain subterranean water flows.

Floor Space Ratio

C 5.2.9 specifies a maximum floor space ratio of 0.55:1 (630.7m2) for the subject site. The proposal

has an FSR of 0.73:1 (832m²), a non-compliance of 201.3m², which is considered to be acceptable

for the following reasons:

123m² of the gross floor area is located within the basement garage and lower ground floor

levels, which are predominantly below existing ground level. As such, the proposal has an

above-ground FSR of 0.62:1 (710m²), which is a non-compliance of 80m².

When viewed from the neighbouring properties, the proposal would not result in any

unreasonable amenity impacts.

The proposed dwelling is compatible with the scale and bulk of other development in the

locality.

The proposed dwelling is well articulated through the inclusion of varied setbacks and varied

materials.


DA 14/2013/1 2 September 2013


The proposal provides 320m² of deep soil landscaping on the site and would not result in an

unacceptable loss of significant vegetation, subject to conditions.

Floor to Ceiling Height

C 5.2.10 requires that habitable rooms must have a minimum floor to ceiling height of 2.7m. A

lower height is permissible where it is located within a roof space, it does not affect the internal

amenity and where there are measurable benefits for neighbouring amenity.

The habitable rooms have a floor to ceiling height of 2.55m – 3m, a non-compliance of 0.15m. The

BCA stipulates a ceiling height of 2.4m for habitable rooms. The proposal complies with this

requirement and therefore no objection is raised to the non-compliance in this instance.

Solar Access

C5.2.12 requires that building bulk is distributed to minimise over-shadowing on neighbours, streets

and public open space. C 5.2.13 stipulates that sunlight is provided to at least 50% of the main

ground level private open space to adjoining properties for a minimum of two hours between 9am

and 3pm on June 21. C 5.2.14 also states that north facing windows to habitable rooms of

neighbouring dwellings do not have sunlight reduced to less than 3 hours during the same period.

97 Wentworth Road

The proposal involves additional overshadowing to the area of primary open space at 97 Wentworth

Road between 9am – 12pm. Notwithstanding, the proposal maintains sunlight to at least 50% of the

main private open space for 2 hours and complies with the solar access control. Elevational shadow

diagrams have been submitted which indicate that sunlight is maintained to the north facing living

room window between 12pm – 3pm in accordance with the above control.

38 Fitzwilliam Road

The proposal does not involve any overshadowing of the primary private open space and swimming

pool at 38 Fitzwilliam Road. The proposal maintains sunlight to the north-west facing habitable

room windows for more than 3 hours between 9am and 3pm and complies with the control.

Site Excavation

The relevant objective relating to site excavation is:

To limit site excavation and minimise cut and fill to ensure that building form relates to the

topography, to satisfy the principles of ecologically sustainable development (including the

energy expended in excavation and transport of material and the relative energy intensity of

using subterranean areas in dwellings) and to protect the amenity of adjoining properties

both during and after construction.

The relevant performance criteria relating to site excavation are:

C 5.2.15 The building footprint is designed to minimise excavation, including cut and fill. The

footprint shall adhere to the setback controls and no substantial excavation shall occur

outside this footprint.

C 5.2.16 The outer edge of excavation required to construct the development including all

excavation for piling and all sub-surface walls shall not be less than 1.5m from a front, side

or rear boundary.


DA 14/2013/1 2 September 2013


C 5.2.17 To minimise excavation, including cut and fill, on sloping sites and to encourage

good quality internal environments, any habitable room of a dwelling must have at least one

external wall fully above existing ground level (see diagram 5.2.11).

C 5.2.17A The volume of material, measured in situ, to be excavated from below existing

ground level in connection with a site used as a single dwelling or dual occupancy is not to

exceed the volume shown on the sliding scale in figure 5.2.11A.

C.5.2.17C An allowance may be made in respect to the volumes shown in figures 5.2.11A and

5.2.11B for sites sloping up from the street access point (i.e. where the difference in levels

between the point of vehicular entry to the site and any part of the land represents a gradient

of greater than 1:8), where the development satisfies all other excavation controls.

The original proposal involved an excavated area (bulk) of 983.38m³ to accommodate the basement

garage and lower ground floor levels. In response to concerns raised by Council Officers, the

volume of excavation has been reduced to 570.44m³, a reduction of 412.9m³. This was achieved by

deleting the entertainment room, garden store and bathroom at lower ground floor level and

reducing the size of the garage at basement level.

The amended proposal involves a non-compliance of 290.44m³ with the excavation control. Subject

to Conditions C.1(a) & (b) requiring further reduction of the excavated volume, the proposal will

attain a non-compliance of 131.44m³ with the excavation control, which is considered to be

acceptable for the following reasons:

The proposed lower ground floor level has a floor to ceiling height of 4.4m. Given this area is

used as a plant room and provides internal access to the dwelling, the proposed floor to ceiling

height is considered to be excessive. Subject to Condition C.1(a), the lower ground floor

level shall have a maximum floor to ceiling height of 3m. Accordingly, the depth of

excavation shall be reduced by 1.4m. This results in a 77m³ reduction in the excavated

volume.

The proposed basement level provides parking for two vehicles plus a turning area. Council’s

Development Engineer has advised that a garage width of 6.4m is required to allow for a

sufficient turning area. Accordingly, Condition C.1(b) requires that the western part of the

turning area (for a distance of 5m) shall be deleted. This results in a 137m³ reduction in

excavated volume.

The subject site has a gradient greater than 1:8 when measured from the point of vehicular

entry and therefore an allowance may be made with regard to the permissible excavation

volume. The extent of excavation is a response to the topography of the site and is necessary

to allow for vehicular access from Fitzwilliam Road. As such, the excavation is considered to

be acceptable in this instance.

Subject to Condition C.1(b), the proposed basement garage level provides parking for two

cars, sufficient turning area, bin storage and internal access to the lift and stair. The lower

ground floor level provides internal access, lift and plant room. Any areas of excessive and

unnecessary excavation within the lower ground and basement levels have been deleted. The

proposed excavation has been designed to minimise cut and fill and is therefore in accordance

with the principles of ecologically sustainable development.

The non-compliance with the excavation control can be partly attributed to the walkway

which provides internal access between the garage and the lift/stair. This is considered to be

acceptable, as the location of the lift/stair relates to the siting of the dwelling in the south-

western part of the site.


DA 14/2013/1 2 September 2013


While the proposed excavation is outside the existing building footprint (contrary to C5.2.15),

additional excavation would be required to locate the garage level entirely below the footprint

of the dwelling (as the dwelling is setback approximately 15m from driveway entrance to the

site). Extending the excavation below the building footprint would require more excavation

than is currently proposed, which is an undesirable outcome. It is under these circumstances

only, that Council staff supports the excavation that occurs outside the building footprint.

The excavation calculation submitted by the architect indicates that 290m³ of excavated

material will be reused as fill within the front lawn. Condition C.1(c) has been imposed to

ensure the reuse of the excavated material on site.

Subject to Condition D.2 requiring a Dilapidation Report, the proposal will protect the

amenity of the neighbouring properties both during and after construction.

Accordingly, given the site has a gradient of greater than 1:8 and the extent of excavation is a

response to the slope of the site, the proposed excavation is considered to be acceptable.

14.5 Section 5.3: Open space and landscaping


Deep Soil Landscaping –

Dwelling >401.4m² 40%

(320m²)

50%

(401.4m²) NO

Location of Swimming Pool - Centre of the site Rear Setback NO

Swimming Pool Excavation, Piling and

Subsurface Wall Setback - >1.5m 1.5m YES

Height of swimming pool within HFSPA - 1.8m – 2.7m 0.3m NO

Deep Soil Landscaping

C 5.3.2 requires a deep soil landscaped area of 50% (401.4m²) of the unbuilt upon area. The

proposal has a deep soil landscaped area of 40% (320m²), which is a non-compliance of 81.4m².

The non-compliance is considered to be acceptable for the following reasons:

The deep soil landscaping calculation does not include the large grassed area above the

garage, which has an area of 75m². While this area does not fall within the definition of deep

soil landscaping, the landscaping provided in this area maintains the landscape character of

the site.

The Landscape Plan indicates the planting of a number of mature trees and shrubs within the

subject site, which will maintain the landscape character of the area.

The proposal allows for adequate on-site filtration and is considered to be acceptable with

regard to stormwater management.

Location of Swimming Pools

C 5.3.16 stipulates that swimming pools are to be located at the rear of properties. Given the subject

site is a battle-axe property, there is no defined rear setback area. The swimming pool is located

approximately in the centre of the site and is considered to be acceptable for the following reasons:

The proposed swimming pool is not visible from the streetscape and therefore will not have

an impact on the amenity of the streetscape.

The swimming pool is setback more than 1.5m from the side boundaries and therefore would

not have an adverse impact on the neighbouring properties.


DA 14/2013/1 2 September 2013


Height of Swimming Pool

C5.3.21 stipulates that the undercroft and sides of swimming pools with a finished level greater than

300mm above existing ground level are screened by landscaping or other treatment where structures

can be seen from a public place or adjoining properties. The proposal is considered to be acceptable

for the following reasons:

The north-eastern elevation of the pool comprises a wet edge which screens the undercroft of

the pool.

Given it is a battle axe property and that the swimming pool is sited within the centre of the

site, the proposed swimming pool will not be visible from the public domain or the

neighbouring properties.

Conclusion


14.6 Section 5.4: Fences and Walls

The plans do not indicate any new fences and walls and therefore is considered to be acceptable

with regard to Section 5.4 of the WRDCP 2003.

14.7 Section 5.5: Views

The provisions of Part 5.5 of WRDCP 2003 require the protection and enhancement of public views

and to encourage view sharing as a means of ensuring equitable access to views from private

dwellings. The proposal will not impact upon public views.

The owners of the following properties have raised concerns in relation to loss of views:

38 Fitzwilliam Road, Vaucluse

3/95 Wentworth Road, Vaucluse

Height poles were erected in the southern corner of the subject site in March 2013. The purpose of

this was to determine the degree of view loss from 38 Fitzwilliam Road. Further to this, certified

photomontages have been prepared to indicate the extent of views being retained from 38

Fitzwilliam Road.

In consultation with Council staff, the applicant submitted amended plans on 20 June 2013 and 2

August 2013, in order to reduce the view loss impacts to 38 Fitzwilliam Road. The amendments

involved the following:

The lowering of the height of the roof above Bedroom 2 from 7.4m to 6.7m (a reduction of

0.7m) to maintain the Harbour Bridge view from the first and second floor levels at 38

Fitzwilliam Road.

A photo montage was submitted to indicate the impact of a complying development on views

from the ground floor kitchen.

A photomontage was submitted to indicate the extent of views being retained from the first

floor master bedroom and ensuite and second bedroom.


DA 14/2013/1 2 September 2013


Private Views

Objective O5.5.2 encourages „view sharing as a means of ensuring equitable access to views from

dwellings‟ and C5.5.6 requires that new „building forms enable a sharing of views with surrounding

residences, particularly from the main habitable rooms of surrounding residences.‟

The principles of view sharing set out by the Land and Environment Court in Tenacity Consulting v

Warringah Council [2004] NSWLEC 140 pars 23-33. The court adopted a four step assessment

view sharing.

The steps are as follows:

1. The assessment of the views affected

2. Consideration from what part of the property views are obtained

3. The extent of the impact; and

4. The reasonableness of the proposal that is causing the impact

1. What is the value of the view?

The Court said: "The first step is the assessment of views to be affected. Water views are valued

more highly than land views. Iconic views (eg. of the Opera House, the Harbour Bridge or North

Head) are valued more highly than views without icons. Whole views are valued more highly

than partial views, eg. a water view in which the interface between land and water is visible is

more valuable than one in which it is obscured."


The proposal will have an impact on views of the Harbour Bridge, city skyline and Vaucluse Bay

which are obtained from the rear of the dwelling. The proposal will not have an impact on

panoramic water views of Sydney Harbour obtained from the front of the dwelling.

3/95 Wentworth Road

The proposal will have an impact on a partial water view (towards Manly) which is obtained

through a corridor between trees and the existing dwelling at 40 Fitzwilliam Road. The proposal

will not have an impact on the unobstructed water views of Vaucluse Bay, the Harbour Bridge, city

skyline and North Sydney skyline.

2. From what part of the property are views obtained?

The Court said: "The second step is to consider from what part of the property the views are

obtained. For example, the protection of views across side boundaries is more difficult than the

protection of views from front and rear boundaries. In addition, whether the view is enjoyed from

a standing or sitting position may also be relevant. Sitting views are more difficult to protect than

standing views. The expectation to retain side views and sitting views is often unrealistic."


Ground floor level

A view of the Harbour Bridge and part of the city skyline is obtained from the ground floor kitchen

and adjacent courtyard, which is at the rear of the dwelling. This view is obtained across the side

(north-eastern) boundary through a narrow corridor between the rear boundary wall and the

neighbouring dwelling at 40 Fitzwilliam Road.


DA 14/2013/1 2 September 2013


Unobstructed water and harbour views are obtained from the dining and living room at the front of

the property.

Harbour bridge view from ground floor kitchen. View is obtained across the side boundary.

First floor level

Views of the Harbour Bridge, city skyline and Vaucluse Bay are obtained from the first floor master

bedroom and ensuite and second bedroom and associated balcony. The view is partly obscured by

trees and the roof of the neighbouring dwelling at 40 Fitzwilliam Road.

Unobstructed water and harbour views are obtained from the first floor bedrooms at the front of the

property.


DA 14/2013/1 2 September 2013


Harbour bridge view from first floor ensuite and master bedroom.

Second floor level

Unobstructed panoramic views of the Harbour Bridge, city skyline and Sydney Harbour are

obtained from the second floor rumpus room and balcony.

View of city skyline, Harbour Bridge and Vaucluse Bay retained from second floor rumpus room.


DA 14/2013/1 2 September 2013


3/95 Wentworth Road, Vaucluse

A water view is obtained from the balcony at 3/95 Wentworth Road, looking towards the north over

40 Fitzwilliam Road. Views of Vaucluse Bay, the Harbour Bridge and city skyline are obtained

looking towards the south-west from the balcony and living areas.

Water view obtained from the balcony looking north over 40 Fitzwilliam Road.

Harbour Bridge, city skyline and Vaucluse Bay views obtained from the balcony and living room will not be affected

by the proposal.

3. What is the extent of the impact?

The Court said: "The third step is to assess the extent of the impact. This should be done for the

whole of the property, not just for the view that is affected. The impact on views from living areas

is more significant than from bedrooms or service areas (though views from kitchens are highly

valued because people spend so much time in them). The impact may be assessed quantitatively,

but in many cases this can be meaningless. For example, it is unhelpful to say that the view loss

is 20% if it includes one of the sails of the Opera House. It is usually more useful to assess the

view loss qualitatively as negligible, minor, moderate, severe or devastating."


DA 14/2013/1 2 September 2013


38 Fitzwilliam Road

Ground floor level

The proposal will result in the loss of the Harbour Bridge view from the kitchen and rear courtyard.

Council Officers requested that the applicant prepare a photomontage indicating the view impact of

a complying development (shown below).

The montage indicates that a development that complies with the side setback and height controls

would still result in the loss of the Harbour Bridge view from the kitchen. Given that the view of the

Harbour Bridge is obtained at ground floor level, through a narrow corridor and across a side

boundary, the extent of view loss is not considered to be unreasonable in this instance.

The panoramic water and harbour views obtained from the ground floor living and dining rooms at

the front of the property will be retained in full.


DA 14/2013/1 2 September 2013


Water and harbour views retained from the living room, bedrooms and balconies at the front of the site.

First floor level

The amended plans involved reducing the height of the roof above Bedroom 2 from 7.4m to 6.7m (a

reduction of 0.7m) to allow for the retention of the Harbour Bridge views from the first floor

bedrooms. The submitted photomontages indicate that the reduced height of the roof allows for the

retention of the Harbour Bridge view (shown below).

The proposal does not have any impact on the panoramic water and harbour views obtained from

the first floor bedrooms at the front of the property.

Photomontage indicating proposed view from master bedroom and ensuite


DA 14/2013/1 2 September 2013


Photomontage indicating proposed view from second bedroom

Second floor level

There is no impact on the panoramic views of the Harbour Bridge, city skyline and Sydney Harbour

obtained from the second floor rumpus room and balcony.

When assessed for the whole of the property the view loss is considered to be moderate for the

following reasons:

The proposal results in the loss of the Harbour Bridge view from the ground floor kitchen.

This is an oblique view that is obtained across a side boundary and through a narrow corridor

between the rear boundary wall and the neighbouring dwelling at 40 Fitzwilliam Road.

The Harbour Bridge view is retained from the first floor master bedroom, ensuite, second

bedroom and second floor rumpus room.

The panoramic water and harbour views (towards Manly) which are obtained from the ground

floor living room, first floor bedrooms and second floor rumpus room are retained in full.

3/95 Wentworth Road

The proposal will result in the loss of the water view (towards Manly) which is obtained between

the trees and the existing dwelling at 40 Fitzwilliam Road. The proposal will not have an impact the

on the unobstructed water views of Vaucluse Bay, the Harbour Bridge, city skyline and North

Sydney skyline. The proposal does not have any impact on iconic views and therefore when

assessed for the whole of the property, the view loss is considered to be minor.


DA 14/2013/1 2 September 2013


4. What is the reasonableness of the proposal that is causing the impact?

The Court said: "The fourth step is to assess the reasonableness of the proposal that is causing

the impact. A development that complies with all planning controls would be considered more

reasonable than one that breaches them. Where an impact on views arises as a result of non-

compliance with one or more planning controls, even a moderate impact may be considered

unreasonable. With a complying proposal, the question should be asked whether a more skilful

design could provide the applicant with the same development potential and amenity and reduce

the impact on the views of neighbours. If the answer to that question is no, then the view impact

of a complying development would probably be considered acceptable and the view sharing

reasonable."

The Court poses two questions in Tenacity Consulting v Warringah (2004) NSWLEC 140

(paragraphs 23-33). The first question relates to whether a non-compliance with one or more

planning controls results in view loss. The second question posed by the Court relates to whether a

more skilful design could provide the same development potential whilst reducing the impact on

views.

The following comments are made with regard to the reasonableness of the proposal:

View impact to 38 Fitzwilliam Road

While the proposal results in the loss of the Harbour Bridge view from the ground floor

kitchen at 38 Fitzwilliam Road, the development is considered to be reasonable for the

following reasons:

- The view loss occurs as a result of the side setback and height of the proposed additions

in the southern corner of the site.

- The portion of the development causing the view loss attains a height of 6.7m, which is

2.8m below the maximum height control.

- The applicant has submitted a photomontage which indicates that a development that

complies with the side setback control would still result in the loss of the Harbour

Bridge view from the kitchen. Given the existing view of the Harbour Bridge is

obtained at ground floor level, through a narrow corridor and across a side boundary,

the extent of view loss is not considered to be unreasonable in this instance.

The roof height above Bedroom 2 has been lowered to maintain the Harbour Bridge view

from the first floor level bedrooms. The roof attains a height of 6.7m, which is 2.8m below the

height control and is therefore considered to be reasonable.

The proposed non-compliance with the height control relates to the cupola only, which does

not contribute to the extent of view loss from 38 Fitzwilliam Road.

Requiring the applicant to increase the side setbacks and reduce the height is considered to be

unreasonable as this would unreasonably restrict the development of the first floor level which

has been specifically designed to allow for the retention of the existing 1900’s dwelling.

The proposed development does not have an impact on the panoramic water and harbour

views obtained from the front of the dwelling and the second floor rumpus room and will

maintain the Harbour Bridge view from the first floor bedrooms.

As a whole, the level of view affectation is moderate given the extent of views enjoyed and

retained from this property.


DA 14/2013/1 2 September 2013


View impact to 3/95 Wentworth Road

While the proposal results in the loss of a partial water view, the proposal does not have any

impact on the iconic Harbour bridge and city skyline views which are obtained from the

balcony and living areas.

The loss of the water view is caused by the two storey addition along the south-western

boundary, which attains a height of 8m and is therefore considered to be reasonable.

The loss of the existing water view is not caused by the cupola and therefore a development

that fully complies with the height control would still result in the loss of this water view.

Accordingly, the amended proposal is considered to be satisfactory with regard to the relevant

objectives and performance criteria stipulated under Part 5.5 of WRDCP 2003.

14.8 Section 5.6: Energy Efficiency

The development application was accompanied by BASIX Certificate No. A146935 committing to

thermal comfort, water conservation and energy efficiency sustainability measures.


14.9 Section 5.7: Stormwater management

Council’s Development Engineer has provided the following comment with regard to Stormwater

management on the subject site:

“In general, there are no objections to Stormwater disposal concept plan prepared by Partridge

Structural P/L, dated 18/02/2013, Dwgs No. H1 to H4. However, there is only to be a single point

of discharge from the site to the kerb & gutter (from the proposed dual discharge pipes)

This concept plan is subject to the submission and approval of Stormwater Management Plan for

the site prior to release of the Construction Certificate. Details are to be in accordance with

Council‟s Draft Stormwater Development Control Plan and Local Approvals Policy. This is to

ensure that site stormwater is disposed in a controlled and sustainable manner - Conditions

applied.

Council‟s Technical Services Division is satisfied that adequate provision has been made for the

disposal of stormwater from the land it is proposed to develop and complies with the provisions of

Clause 25 (2) of WLEP 1995.”

Subject to conditions, the proposal is considered to be acceptable with regard to Stormwater

management.

14.10 Section 5.8: Acoustic and Visual Privacy

C5.8.5 states that windows in habitable rooms with a direct sightline to habitable room windows in

an adjacent dwelling within 9.0m are to be screened by (a) being offset, (b) incorporating planter

boxes, louvres or other devices, (c) translucent glazing to 1.5m above floor level, (d) using fixed

translucent glazing or (e) sill heights above 1.5m in height.

C 5.8.6 requires balconies, terraces, decks, roof terraces and other like areas within a development

are suitably screened to prevent direct views into habitable rooms or private open space of adjoining

and adjacent dwellings.


DA 14/2013/1 2 September 2013


C 5.8.9 requires the trafficable area of the roof terrace to be setback so that there is no direct line of

sight to neighbouring open space or windows of the habitable rooms of adjoining dwellings within a

distance of 12m.

The owner of 38 Fitzwilliam Road, 3/95 Wentworth Road and 97 Wentworth Road have raised

concerns with regard to visual privacy. The proposal is considered to be acceptable with regard to

visual and acoustic privacy for the following reasons:

38 Wentworth Road

The proposal involves alterations to an existing dormer window and the addition of a new

dormer window (within the south-eastern elevation) which would overlook the kitchen and

first floor bedrooms at 38 Wentworth Road. Accordingly, Condition C.1(e) and C.1(f)

require fixed obscure glazing to any part of the ensuite and study windows below 1.5m above

floor level.

The belvedere does not contain any windows along the south-eastern elevation and therefore

would not affect the privacy of 38 Fitzwilliam Road.

3/95 Wentworth Road and 97 Wentworth Road

Subject to Condition C.1(g), the trafficable area of the roof terrace shall be setback 1m from

the south-western and north-western edge of the roof terrace. This will ensure that the roof

terrace does not result in any overlooking of 97 and 3/95 Wentworth Road within a 12m

radius, which accords with Council’s control.

The south-western elevation windows within the belvedere adjoin the stairwell and therefore

would not have an adverse impact on the privacy of 3/95 and 97 Wentworth Road.

Nevertheless, the applicant has provided obscure glazing to W28 within the belvedere in

response to the neighbour’s concerns.

The proposed habitable room windows are separated from the balcony and habitable room

window at 3/95 Wentworth Road by more than 9m.

Given that 97 Wentworth Road is approximately 4m lower than the existing ground floor

level of the subject site, the proposed windows would not result in any direct overlooking of

the habitable room windows and private open space of the neighbouring property.

Overall assessment

Overall, it is considered that the siting and location of the proposed habitable room windows,

balconies, decks and roof terrace would ensure that the proposal would maintain a reasonable

level of visual privacy to the neighbouring properties.

The north-eastern elevation windows to the belvedere overlook the subject site and do not

allow for any overlooking of the neighbouring properties within 1m.

Subject to Conditions F.2 and I.2, the proposed swimming pool equipment would be

acoustically housed and would not exceed the ambient background noise level.

Conclusion


14.11 Section 5.9: Car Parking and Driveways

Existing Proposed Control Complies

Maximum No of Car Parking Spaces – Dwelling 2 2 2 spaces YES


DA 14/2013/1 2 September 2013


The proposal complies with the car parking and driveways controls and is therefore acceptable with

regard to Section 5.9 of the Woollahra RDCP 2003

15. WASTE NOT DEVELOPMENT CONTROL PLAN 2010

The Waste Not DCP is applicable to all development and seeks to establish waste minimisation and

sustainable waste management during demolition and construction phases and throughout the on-

going use of the building.

16. SECTION 94 CONTRIBUTION PLANS

16.1 Section 94A Contributions Plan 2011

In accordance with Schedule 1, a 1% levy applies with the monies being used for a variety of works

as outlined in Schedule 2 of the Section 94A Contributions Plan 2011.

Cost of Works Rate Contribution Payable

$3,229,085 1% $32,290

Refer to Condition C.2.

17. APPLICABLE ACTS/REGULATIONS

17.1 Demolition of Structures

Clause 92 of the Environmental Planning and Assessment Regulation 2000 requires Council to

consider Australian Standard AS 2601-2004: The demolition of structures. This is required in

Condition E.2.

17.2 Swimming Pools Act 1992

A swimming pool is at all times to be surrounded by a child-resistant barrier that separates

the swimming pool from any residential building and that is designed, constructed, installed and

maintained in accordance with the standards prescribed by the regulations. Certain exemptions do

apply.

18. THE LIKELY IMPACTS OF THE PROPOSAL

All likely impacts have been addressed elsewhere in the report, or are considered to be satisfactory

and not warrant further consideration.

19. THE SUITABILITY OF THE SITE

The site is considered to be suitable for the proposed development.

20. THE PUBLIC INTEREST

The proposal is in the public interest.

21. CONCLUSION

The proposal is acceptable against the relevant considerations under Section 79C.

http://www.austlii.edu.au/au/legis/nsw/consol_act/spa1992192/s3.html#swimming_pool

http://www.austlii.edu.au/au/legis/nsw/consol_act/spa1992192/s3.html#swimming_pool

http://www.austlii.edu.au/au/legis/nsw/consol_act/spa1992192/s3.html#residential_building


DA 14/2013/1 2 September 2013


22. DISCLOSURE STATEMENTS

Under Section 147 of the Environmental Planning and Assessment Act, 1979 there have been no

disclosure statements regarding political donations or gifts made to any Councillor or gifts made to

any council employee submitted with this development application by either the applicant or any

person who made a submission.

23. RECOMMENDATION: Pursuant to Section 80(1) of the Environmental Planning and

Assessment Act 1979

THAT the Council, as the consent authority, is of the opinion that the objection under State

Environmental Planning Policy No. 1 – Development Standards to the Height development standard

under Clause 12 of Woollahra LEP 1995 is well founded. The Council is also of the opinion that

strict compliance with the development standard is unreasonable and unnecessary in the

circumstances of this case.

AND

THAT the Council, as the consent authority, being satisfied that the objection under SEPP No. 1 is

well founded and also being of the opinion that it is consistent with the aims of the Policy, grant

development consent to Development Application No. 14/2013 for substantial alterations and

additions to existing dwelling, including the demolition of the 1950's extension and construction of

a new wing, new basement levels, roof terrace and swimming pool on land at 40 Fitzwilliam Road

Vaucluse, subject to the following conditions:

A. General Conditions

A.1 Conditions

Consent is granted subject to the following conditions imposed pursuant to section 80 of the

Environmental Planning & Assessment Act 1979 (―the Act‖) and the provisions of the

Environmental Planning and Assessment Regulation 2000 (―the Regulation‖) such conditions

being reasonable and relevant to the development as assessed pursuant to section 79C of the

Act. Standard Condition: A1

A.2 Definitions

Unless specified otherwise words have the same meaning as defined by the Act, the

Regulation and the Interpretation Act 1987 as in force at the date of consent.

Applicant means the applicant for this Consent.

Approved Plans mean the plans endorsed by Council referenced by this consent as amended

by conditions of this consent.

AS or AS/NZS means Australian Standard® or Australian/New Zealand Standard®,

respectively, published by Standards Australia International Limited.

BCA means the Building Code of Australia as published by the Australian Building Codes

Board as in force at the date of issue of any Construction Certificate.


DA 14/2013/1 2 September 2013


Council means Woollahra Municipal Council

Court means the Land and Environment Court

Local native plants means species of native plant endemic to Sydney’s eastern suburbs (see

the brochure titled ―Local Native Plants for Sydney’s Eastern Suburbs published by the

Southern Sydney Regional Organisation of Councils).

Stormwater Drainage System means all works, facilities and documentation relating to:

The collection of stormwater,

The retention of stormwater,

The reuse of stormwater,

The detention of stormwater,

The controlled release of stormwater; and

Connections to easements and public stormwater systems.

Owner means the owner of the site and successors in title to the site.

Owner Builder has the same meaning as in the Home Building Act 1989.

PCA means the Principal Certifying Authority under the Act.

Principal Contractor has the same meaning as in the Act or where a principal contractor has

not been appointed by the owner of the land being developed Principal Contractor means the

owner of the land being developed.

Professional Engineer has the same meaning as in the BCA.

Public Place has the same meaning as in the Local Government Act 1993.

Road has the same mean as in the Roads Act 1993.

SEE means the final version of the Statement of Environmental Effects lodged by the

Applicant.

Site means the land being developed subject to this consent.

WLEP 1995 means Woollahra Local Environmental Plan 1995

Work for the purposes of this consent means:

the use of land in connection with development,

the subdivision of land,

the erection of a building,

the carrying out of any work,

the use of any site crane, machine, article, material, or thing,

the storage of waste, materials, site crane, machine, article, material, or thing,

the demolition of a building,

the piling, piering, cutting, boring, drilling, rock breaking, rock sawing or excavation of

land,

the delivery to or removal from the site of any machine, article, material, or thing, or

the occupation of the site by any person unless authorised by an occupation certificate.


DA 14/2013/1 2 September 2013


Note: Interpretation of Conditions - Where there is any need to obtain an interpretation of the intent of any

condition this must be done in writing to Council and confirmed in writing by Council. Standard Condition: A2

A.3 Approved Plans and supporting documents

Those with the benefit of this consent must carry out all work and maintain the use and works

in accordance with the plans and supporting documents listed below as submitted by the

Applicant and to which is affixed a Council stamp ―Approved DA Plans‖ unless modified by

any following condition. Where the plans relate to alterations or additions only those works

shown in colour or highlighted are approved.

Reference Description Author/Drawn Date(s)

Dwgs No. H1 to H4 Stormwater disposal concept plan Partridge Structural P/L 18/02/2013

Geotechnical Report TGE 12/12/2012

Drawing No’s:

A1001 (Rev B)

A1002 (Rev F)

A2001 (Rev O)

A2002 (Rev M)

A2003 (Rev M)

A2004 (Rev L)

A2005 (Rev K)

A3001 (Rev J)

A3002 (Rev J)

A3003 (Rev J)

A3101 (Rev H)

A3102 (Rev G)

A3103 (Rev G)

Architectural Plans David White Architect 20/07/2012

A146935 BASIX Certificate NSW Department of Planning

and Infrastructure

Plan No. s LP01/B Landscape Plan Selena Hannan Landscape

Design

04/12/2012

Urban Forestry

Australia

Arboricultural Impact

Assessment Report

Catriona Mackenzie Dec 2012

Note: Warning to Accredited Certifiers – You should always insist on sighting the original Council stamped

approved plans. You should not rely solely upon the plan reference numbers in this condition. Should

the applicant not be able to provide you with the original copy Council will provide you with access to its

files so you may review our original copy of the approved plan.

Note: These plans and supporting documentation may be subject to conditions imposed under section 80A(1)(g)

of the Act modifying or amending the development (refer to conditions which must be satisfied prior to

the issue of any Construction Certificate.) Standard Condition: A5

A.4 Ancillary Aspect of the Development (s80A(2) of the Act)

The owner must procure the repair, replacement or rebuilding of all road pavement, kerb,

gutter, footway, footpaths adjoining the site or damaged as a result of work under this consent

or as a consequence of work under this consent. Such work must be undertaken to Council's

satisfaction in accordance with Council’s ―Specification for Roadworks, Drainage and

Miscellaneous Works‖ dated February 2012 unless expressly provided otherwise by these

conditions at the owner‟s expense.

Note: This condition does not affect the principal contractor's or any sub-contractors obligations to protect and

preserve public infrastructure from damage or affect their liability for any damage that occurs. Standard Condition: A8


DA 14/2013/1 2 September 2013


A.5 Tree Preservation & Approved Landscaping Works

All landscape works shall be undertaken in accordance with the approved landscape plan,

arborist report, tree management plan and transplant method statement as applicable.

a) The following trees shall be retained

Trees on Private Land

Council

Ref No

Species Location Dimension

(metres)

7 Phoenix canariensis Canary Island Date Palm Centre of property 10 x 6

b) The following trees may be removed:

Council

Ref No

Species Location Dimension

(metres)

6 Citharexylum spinosum Fiddlewood Tree North western boundary 7 x 7

10 Callistemon sp. Bottle Brush North western boundary 4 x 3

Note: Tree/s to be removed shall appear coloured red on the construction certificate plans.

c) The following trees shall be pruned in accordance with Australian Standard Pruning of

Amenity Trees (AS 4373) and Workcover NSW Code of Practice Amenity Tree Industry,

to the minimum extent necessary to provide clearance to the new development:

Council

Ref No

Species Location Approved pruning (extent of pruning)

5 Corymbia ficifolia

Red Flowering Gum

South western

boundary

In accordance with Arboricultural Impact

Assessment Report, written by Catriona

Mackenzie - Urban Forestry Australia, dated

December 2012.

Pruning requires consent from the owner of 97

Wentworth Road.

Note: The tree/s required to be pruned should appear coloured blue on the construction certificate plans.

In accordance with Council’s Tree Preservation Order, owners consent from the property in

which the tree stands is required prior to the commencement of works. Standard Condition: E9

B. Conditions which must be satisfied prior to the demolition of any building or

construction

B.1 Construction Certificate required prior to any demolition

Where demolition is associated with an altered portion of, or an extension to an existing

building the demolition of any part of a building is "commencement of erection of building"

pursuant to section 81A(2) of the Act. In such circumstance all conditions in Part C and Part

D of this consent must be satisfied prior to any demolition work. This includes, but is not

limited to, the issue of a Construction Certificate, appointment of a PCA and Notice of

Commencement under the Act.


DA 14/2013/1 2 September 2013


Note: See Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125. Standard Condition: B1

B.2 Establishment of Tree Protection Zones (TPZ)

Tree Protection Zones shall be established around all trees to be retained and in accordance

with Section 4 of the Australian Standard Protection of Trees on Development Sites (AS

4970- 2009). Tree protection zones must also comply with the following requirements;

a) Tree Protection Zone areas

Council

Ref No

Species Location Radius from Centre of Trunk

(Metres)*

5 Corymbia ficifolia Red

Flowering Gum

South western

boundary

western boundary 4 metres

north and south of the tree

7 Phoenix canariensis Canary

Island Date Palm

Centre of property 2

7a Plumeria acutifolia

Frangipani

Adjacent Tree No.7 2

8 Glochidion ferdinandii

Cheese Tree

Eastern boundary 2 metres out from the western

side of the Cheese Tree

9 Gordonia axillaris Fried

Egg Plant

South eastern

corner

2

Note: Where this condition relates to street trees and the fence cannot be placed at the specified radius,

the fencing shall be positioned so that the entire verge (nature strip) area in front of the subject

property, excluding existing driveways, footpaths and bus stops is protected.

b) Tree Protection Zones shall be fenced with a 1.8 metre high chainmesh or weldmesh

fence and secured to restrict access. The fence shall be established prior to any materials

being bought onto the site and before the commencement of works including

demolition. The area within the fence shall be mulched and maintained to a depth of

75mm. The soil within the TPZ shall be kept in a moist condition for the duration of the

construction works. Unless approved by the site arborist there shall be no access within

the TPZ.

c) Trunk protection shall be installed around the trunks of the following trees:

Council Ref No Species

7 Phoenix canariensis Canary Island Date Palm

Trunk protection shall consist of a padding material such as hessian or thick carpet

underlay wrapped around the trunk. Hardwood planks (50mm x100mm or similar) shall

be placed over the padding and around the trunk of the tree at 150mm centres. The

planks shall be secured with 8 gauge wire at 300mm spacing. Trunk protection shall

extend a minimum height of 2 metres or to the maximum possible length permitted by

the first branches.

d) A sign identifying the Tree Protection Zone shall be erected on each side of the

protection fence indicating the existence of a TPZ. Signage must be visible from within

the development site.


DA 14/2013/1 2 September 2013


e) No excavation, construction activity, grade changes, storage of materials, stockpiling,

siting of works sheds, preparation of mixes or cleaning of tools is permitted within Tree

Protection Zones, unless specified in Condition B.2 of this consent.

f) Establishment of Ground protection

Temporary access within the TPZ for pedestrian and machinery movements shall only

be permitted with the approval of the site arborist or unless specified in Condition B.2

of this consent. Appropriate ground protection shall be installed under the supervision

of the site arborist.

g) All site personnel and contractors must be made aware of all tree protection

requirements associated with these conditions of consent.

h) The project arborist shall provide written certification of compliance with the above

condition. Standard Condition: B5

B.3 Permissible work within Tree Protection Zones

The following works are permissible within the Tree Protection Zone:

Council

Ref No: Species Radius from

Trunk (metres)

Approved works

7 Phoenix canariensis Canary Island

Date Palm

1 Approved landscaping

7a Plumeria acutifolia Frangipani 2 Approved landscaping

8 Glochidion ferdinandii Cheese Tree 5 Approved retaining wall and

landscaping

9 Gordonia axillaris Fried Egg Plant 2 Approved landscaping

The project arborist shall provide written certification of compliance with the above

condition.

B.4 Arborists Documentation and Compliance Checklist

The site arborist shall provide written certification that all tree protection measures and

construction techniques relevant to this consent have been complied with. Documentation for

each site visit shall include:

a record of the condition of trees to be retained prior to and throughout development

recommended actions to improve site conditions and rectification of non-compliance

recommendations for future works which may impact the trees

All compliance certification documents shall be kept on site by the Site Foreman.

As a minimum the following intervals of site inspections must be made:


DA 14/2013/1 2 September 2013


Stage of arboricultural inspection Compliance documentation including photos

shall be included

Installation of tree protection fencing Compliance with tree protection measures

Demolition of structures adjacent trees to

be retained

Condition of exposed roots

Inspection of pier holes Piers positioned to avoid the severance of and

damage to roots greater than 30mmᴓ

Installation of approved landscaping Condition of roots and soil

Prior to the issue of a Final Occupation

Certificate

Supervise the dismantling of tree protection

measures

Inspections and compliance documentation shall be made by an arborist with AQF Level 5

qualifications.

Additional site visits shall be made when required by site arborist and/or site foreman for

ongoing monitoring/supervisory work.

C. Conditions which must be satisfied prior to the issue of any construction certificate

C.1 Modification of details of the development (s80A(1)(g) of the Act)

The approved plans and the Construction Certificate plans and specification, required to be

submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the

following amendments:

a) The lower ground floor level shall have a maximum floor to ceiling height of 3m.

Accordingly, the overall depth of excavation shall be reduced by 1.4m. The excavation

for the basement garage shall attain a maximum depth of RL 18.99.

b) The turning area in the western part of the garage (with dimensions of 5m x 4.8m) shall

be deleted.

c) The excavated sandstone material shall be recycled and reused on site.

d) The dormer window (to the first floor ensuite) shall be setback a minimum of 1.5m from

the south-eastern side boundary.

e) The windows to the first floor ensuite (south-eastern elevation), shall contain fixed

obscure glazing for any part of the window below 1.5m above floor level or shall have a

sill height of 1.5m above floor level.

f) The windows to the first floor study (south-eastern elevation), shall contain fixed

obscure glazing for any part of the window below 1.5m above floor level or shall have a

sill height of 1.5m above floor level.

g) With regard to the roof terrace, the balustrade shall be setback an additional 1m from

the south-western and north-western edges of the roof terrace. The location of the north-

eastern balustrade shall remain as proposed.

h) The proposed trees in the south-western corner of the site (adjacent to Bedroom 3) shall

be of a species that attains a maximum height of 4m at maturity.

i) The chimney above the master bedroom shall be reduced to a maximum height of 9.5m.

j) The unexcavated volume above the basement and lower ground floor level shall be

retained in situ. Geotechnical advice shall be provided at Construction Certificate stage

to support this.


DA 14/2013/1 2 September 2013


Note: The effect of this condition is that it requires design changes and/or further information to be provided

with the Construction Certificate drawings and specifications to address specific issues identified during

assessment under section 79C of the Act.

Note: Clause 146 of the Regulation prohibits the issue of any Construction Certificate subject to this condition

unless the Certifying Authority is satisfied that the condition has been complied with.

Note: Clause 145 of the Regulation prohibits the issue of any Construction Certificate that is inconsistent with

this consent. Standard Condition: C4

C.2 Payment of Long Service Levy, Security, Contributions and Fees

The certifying authority must not issue any Part 4A Certificate until provided with the

original receipt(s) for the payment of all of the following levy, security, contributions, and

fees prior to the issue of a construction certificate, subdivision certificate or occupation

certificate, as will apply.

Description Amount Indexed Council

Fee Code

LONG SERVICE LEVY

under Building and Construction Industry Long Service Payments Act 1986 Long Service Levy

http://www.lspc.nsw.gov.au/levy_information/

?levy_information/levy_calculator.stm

Contact LSL

Corporation or use online

calculator

No

SECURITY

under section 80A(6) of the Environmental Planning and Assessment Act 1979

Property Damage Security Deposit -making

good any damage caused to any property of

the Council

$69,850 No T115

DEVELOPMENT LEVY

under Woollahra Section 94A Development Contributions Plan 2011

This plan may be inspected at Woollahra Council or downloaded at www.woollahra.nsw.gov.au .

Development Levy (Section 94A) $32,290 + Index Amount

Yes,

quarterly T96

INSPECTION FEES

under Section 608 of the Local Government Act 1993

Security Administration Fee $185 No T16

TOTAL SECURITY, CONTRIBUTIONS,

LEVIES AND FEES

$102,325 plus any relevant indexed amounts and long

service levy

Building and Construction Industry Long Service Payment

The Long Service Levy under Section 34 of the Building and Construction Industry Long Service Payment Act,

1986, must be paid and proof of payment provided to the Certifying Authority prior to the issue of any

Construction Certificate. The Levy can be paid directly to the Long Services Payments Corporation or to

Council. Further information can be obtained from the Long Service Payments Corporation’s website

http://www.lspc.nsw.gov.au/ or the Long Service Payments Corporation on 13 14 41.

How must the payments be made?

Payments must be made by:

Cash deposit with Council,

Credit card payment with Council, or

Bank cheque made payable to Woollahra Municipal Council.

The payment of a security may be made by a bank guarantee where:

The guarantee is by an Australian bank for the amount of the total outstanding contribution;

The bank unconditionally agrees to pay the guaranteed sum to the Council on written request by Council

on completion of the development or no earlier than 12 months from the provision of the guarantee

whichever occurs first [NOTE: a time limited bank guarantee or a bank guarantee with an expiry date is

not acceptable];

http://www.lspc.nsw.gov.au/levy_information/?levy_information/levy_calculator.stm


http://www.woollahra.nsw.gov.au/

http://www.lspc.nsw.gov.au/


DA 14/2013/1 2 September 2013


The bank agrees to pay the guaranteed sum without reference to the applicant or landowner or other

person who provided the guarantee and without regard to any dispute, controversy, issue or other matter

relating to the development consent or the carrying out of development in accordance with the

development consent;

The bank guarantee is lodged with the Council prior to the issue of the construction certificate; and

The bank’s obligations are discharged when payment to the Council is made in accordance with the

guarantee or when Council notifies the bank in writing that the guarantee is no longer required.

How will the section 94A levy be indexed?

To ensure that the value the development levy is not eroded over time by increases in costs, the proposed cost of

carrying out development (from which the development levy is calculated) will be indexed either annually or

quarterly (see table above). Clause 3.13 of the Woollahra Section 94A Development Contributions Plan 2011

sets out the formula and index to be used in adjusting the s.94A levy.

Do you need HELP indexing the levy?

Please contact our customer service officers. Failure to correctly calculate the adjusted development levy will

delay the issue of any Part 4A Certificate and could void any Part 4A Certificate (construction certificate,

subdivision certificate, or occupation certificate).

Deferred or periodic payment of section 94A levy under the Woollahra Section 94A Development

Contributions Plan 2011

Where the applicant makes a written request supported by reasons for payment of the section

94A levy other than as required by clause 3.9, the Council may accept deferred or periodic payment. The

decision to accept a deferred or periodic payment is at the sole discretion of the Council, which will consider:

The reasons given;

Whether any prejudice will be caused to the community deriving benefit from the public facilities;

Whether any prejudice will be caused to the efficacy and operation of the plan; and

Whether the provision of public facilities in accordance with the adopted works schedule will be

adversely affected.

Council may, as a condition of accepting deferred or periodic payment, require the provision of a bank guarantee

where:





not acceptable];






The bank’s obligations are discharged when payment to the Council is made in accordance with the

guarantee or when Council notifies the bank in writing that the guarantee is no longer required.

Any deferred or periodic payment of the section 94A levy will be adjusted in accordance with clause 3.13 of the

plan. The applicant will be required to pay any charges associated with establishing or operating the bank

guarantee. Council will not cancel the bank guarantee until the outstanding contribution as indexed and any

accrued charges are paid. Standard Condition: C5

C.3 BASIX commitments

The applicant must submit to the Certifying Authority BASIX Certificate No.A146935 with

any application for a Construction Certificate.


DA 14/2013/1 2 September 2013


Note: Where there is any proposed change in the BASIX commitments the applicant must submit of a new

BASIX Certificate to the Certifying Authority and Council. If any proposed change in the BASIX

commitments are inconsistent with development consent (See: Clauses 145 and 146 of the Regulation)

the applicant will be required to submit an amended development application to Council pursuant to

section 96 of the Act.

All commitments in the BASIX Certificate must be shown on the Construction Certificate

plans and specifications prior to the issue of any Construction Certificate.

Note: Clause 145(1)(a1) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying

authority must not issue a construction certificate for building work unless it is satisfied of the following

matters: (a1) that the plans and specifications for the building include such matters as each relevant

BASIX certificate requires," Standard Condition: C7

C.4 Soil and Water Management Plan – Submission & Approval

The principal contractor or owner builder must submit to the Certifying Authority a soil and

water management plan complying with:

a) ―Do it Right On Site, Soil and Water Management for the Construction Industry‖

published by the Southern Sydney Regional Organisation of Councils, 2001; and

b) ―Managing Urban Stormwater - Soils and Construction‖ published by the NSW

Department of Housing 4th Edition‖ ('The Blue Book').

Where there is any conflict The Blue Book takes precedence. The Certifying Authority must

be satisfied that the soil and water management plan complies with the publications above

prior to issuing any Construction Certificate.

Note: This condition has been imposed to eliminate potential water pollution and dust nuisance.

Note: The International Erosion Control Association – Australasia http://www.austieca.com.au/ lists consultant

experts who can assist in ensuring compliance with this condition. Where erosion and sedimentation

plans are required for larger projects it is recommended that expert consultants produce these plans.

Note: The ―Do it Right On Site, Soil and Water Management for the Construction Industry‖ publications can be

down loaded free of charge from http://www.woollahra.nsw.gov.au/ .

Note: Pursuant to clause 161(1)(a)(5) of the Regulation an Accredited Certifier may satisfied as to this matter. Standard Condition: C25

C.5 Structural Adequacy of Existing Supporting Structures

A certificate from a professional engineer (Structural Engineer), certifying the adequacy of

the existing supporting structure to support the additional loads proposed to be imposed by the

development, must be submitted with the Construction Certificate application.

Note: This condition is imposed to ensure that the existing structure is able to support the additional loads

proposed. Standard Condition: C35

C.6 Professional Engineering Details

The Construction Certificate plans and specifications, required by clause 139 of the

Regulation, must include detailed professional engineering plans and/or specifications for all

structural, electrical, hydraulic, hydro-geological, geotechnical, mechanical and civil work

complying with this consent, approved plans, the statement of environmental effects and

supporting documentation.

http://www.austieca.com.au/



DA 14/2013/1 2 September 2013


Detailed professional engineering plans and/or specifications must be submitted to the

Certifying Authority with the application for any Construction Certificate.

Note: This does not affect the right of the developer to seek staged Construction Certificates.

Standard Condition: C36

C.7 Geotechnical and Hydrogeological Design, Certification & Monitoring

The Construction Certificate plans and specification required to be submitted to the Certifying

Authority pursuant to clause 139 of the Regulation must be accompanied by a Geotechnical /

Hydrogeological Monitoring Program together with civil and structural engineering details

for foundation retaining walls, footings, basement tanking, and subsoil drainage systems, as

applicable, prepared by a professional engineer, who is suitably qualified and experienced in

geotechnical and hydrogeological engineering. These details must be certified by the

professional engineer to:

a) Provide appropriate support and retention to ensure there will be no ground settlement

or movement, during excavation or after construction, sufficient to cause an adverse

impact on adjoining property or public infrastructure.

b) Provide appropriate support and retention to ensure there will be no adverse impact on

surrounding property or infrastructure as a result of changes in local hydrogeology

(behaviour of groundwater).

c) Provide foundation tanking prior to excavation such that any temporary changes to the

groundwater level, during construction, will be kept within the historical range of

natural groundwater fluctuations. Where the historical range of natural groundwater

fluctuations is unknown, the design must demonstrate that changes in the level of the

natural water table, due to construction, will not exceed 0.3m at any time.

d) Provide tanking of all below ground structures to prevent the entry of all ground water

such that they are fully tanked and no on-going dewatering of the site is required.

e) Provide a Geotechnical and Hydrogeological Monitoring Program that:

Will detect any settlement associated with temporary and permanent works and

structures;

Will detect deflection or movement of temporary and permanent retaining

structures (foundation walls, shoring bracing or the like);

Will detect vibration in accordance with AS 2187.2-1993 Appendix J including

acceptable velocity of vibration (peak particle velocity);

Will detect groundwater changes calibrated against natural groundwater

variations;

Details the location and type of monitoring systems to be utilised;

Details the preset acceptable limits for peak particle velocity and ground water

fluctuations;

Details recommended hold points to allow for the inspection and certification of

geotechnical and hydro-geological measures by the professional engineer; and;

Details a contingency plan. Standard Condition: C40


DA 14/2013/1 2 September 2013


C.8 Parking Facilities

The Construction Certificate plans and specifications required by clause 139 of the

Regulation, must include detailed plans and specifications for any bicycle, car and

commercial vehicle parking demonstrating compliance with AS2890.3:1993 Parking

Facilities - Bicycle Parking Facilities, AS/NZS 2890.1:2004 : Parking Facilities - Off-Street

Car Parking and AS 2890.2:2002 – Off-Street Parking: Commercial Vehicle Facilities

respectively.

Access levels and grades must comply with access levels and grade required by Council under

the Roads Act 1993.

The Certifying Authority has no discretion to reduce or increase the number or area of car

parking or commercial parking spaces required to be provided and maintained by this consent. Standard Condition: C45

C.9 Stormwater discharge to existing Stormwater Drainage System (Clause 25(2) WLEP

1995)


Regulation, must detail:

a) The location of the existing Stormwater Drainage System including all pipes, inspection

openings, surface drains, pits and their discharge location,

b) The state of repair of the existing Stormwater Drainage System,

c) Any remedial works required to upgrade the existing Stormwater Drainage System to

comply with the BCA,

d) Any remedial works required to upgrade the existing Stormwater Drainage System

crossing the footpath and any new kerb outlets,

e) Any new Stormwater Drainage System complying with the BCA,

f) Interceptor drain(s) at the site boundary to prevent stormwater flows from the site

crossing the footpath,

g) Any rainwater tank (See Note Below) required by BASIX commitments including their

overflow connection to the Stormwater Drainage System, and

h) General compliance with the Council’s draft Development Control Plan Stormwater

Drainage Management (Draft Version 1.1, Public Exhibition Copy dated 14 December

2006)

Where any new Stormwater Drainage System crosses the footpath area within any road,

separate approval under section 138 of the Roads Act 1993 must be obtained from Council for

those works prior to the issue of any Construction Certificate.

All Stormwater Drainage System work within any road or public place must comply with

Woollahra Municipal Council’s Specification for Roadworks, Drainage and Miscellaneous

Works dated February 2012.

Note: Clause F1.1 of Volume 1 and Part 3.1.2 of Volume 2 of the BCA provide that stormwater drainage

complying with AS/NZS 3500.3 Plumbing and drainage - Part 3: Stormwater drainage is deemed-to-

satisfy the BCA. Council’s specifications apply in relation to any works with any road or public place.

Note: The collection, storage and use of rainwater is to be in accordance with Standards Australia HB230-2008

“Rainwater Tank Design and Installation Handbook”.


DA 14/2013/1 2 September 2013


Note: Stormwater Drainage Systems must not discharge to any Sewer System. It is illegal to connect

stormwater pipes and drains to the sewerage system as this can overload the system and cause sewage

overflows. See:

http://www.sydneywater.com.au/Publications/Factsheets/SewerfixLookingAfterYourSewerPipes

Note: Woollahra Municipal Council’s Specification for Roadworks, Drainage and Miscellaneous Works dated

January 2003 and Council’s draft Development Control Plan Stormwater Drainage Management (Draft

Version 1.1, Public Exhibition Copy dated 14/12/2006) can be downloaded from Council’s website:

www.woollahra.nsw.gov.au Standard Condition: C49

C.10 Stormwater management plan (Site greater than 500m2)(Clause 25(2) WLEP 1995)


Regulation, must include a Stormwater Management Plan for the site.

The Stormwater Management Plan must detail:

a) general design in accordance with Partridge Structural P/L, dated 18/02/2013, Dwgs No.

H1 to H4 other than amended by this and other conditions;

b) the discharge of stormwater, by direct connection, to the kerb & gutter on Fitzwilliam

Road;

c) There is only to be a single point of discharge from the site to the kerb & gutter (from

the proposed dual discharge pipes);

d) compliance the objectives and performance requirements of the BCA;

e) any rainwater tank (see Note below) required by BASIX commitments including their

overflow connection to the Stormwater Drainage System, and

f) general compliance with the Council’s draft Development Control Plan Stormwater

Drainage Management (Draft Version 1.1, Public Exhibition Copy dated 14 December

2006), and

g) on-site stormwater detention (―OSD’).

OSD Requirements

The minimum (OSD) Site Storage Requirements (―SSR‖) and the Peak Site Discharge

(―PSD‖) from the site must be in accordance with the following minimum storage/discharge

relationships based upon a 1000m2 site area:

Average Recurrence Interval PSD (L/s) Minimum Site Storage Requirement (SSR)

m³

2 year 23.5 L/s 4m³

100 year 34 L/s 25m³ – Dwelling House

27m³ – Residential Flat Building

29m³ – Other Development

Note: All values based on per 1000m² site area (interpolate to site area).

Where a rainwater tank is proposed in conjunction with OSD, the volume of the rainwater

tank may contribute to the SSR as follows:

a) Where the rainwater tank is used for external uses only, 40% of the rainwater tank

volume to a maximum of 4m³ , or

b) Where the rainwater tank is used for external and internal uses, 75% of the rainwater

tank volume to a maximum of 7.5m³.



DA 14/2013/1 2 September 2013


Example: The Site Storage Requirements may be 25,000 litres and a 10,000 litre rainwater tank is to be used

for garden irrigation. Therefore, the rainwater tank contributes 4,000 litres toward SSR.

Therefore, the OSD tank needs to be 21,000 litres (25,000 litres less the 4,000 litres allowance).

Note: 1m³ = 1,000 litres.

The Stormwater Management Plan must include the following specific requirements:

Layout plan

A detailed drainage plan at a scale of 1:100 based on drainage calculations prepared in

accordance with the Institute of Engineers Australia publication, Australian Rainfall and Run-

off, 1987 edition or most current version thereof.

It must include:

All pipe layouts, dimensions, grades, lengths and material specification,

Location of On-Site Detention,

All invert levels reduced to Australian Height Datum (AHD),

Location and dimensions of all drainage pits,

Point and method of connection to Councils drainage infrastructure, and

Overland flow paths over impervious areas.

On-site Detention (OSD) details:

Any potential conflict between existing and proposed trees and vegetation,

Internal dimensions and volume of the proposed detention storage,

Diameter of the outlet to the proposed detention storage basin,

Plans, elevations and sections showing the detention storage basin invert level, centre-

line level of outlet, top water level, finished surface level and adjacent structures,

Details of access and maintenance facilities,

Construction and structural details of all tanks and pits and/or manufacturer’s

specifications for proprietary products,

Details of the emergency overland flow-path (to an approved Council drainage point) in

the event of a blockage to the on-site detention system,

Non-removable fixing details for orifice plates where used,

Copies of certificates of title, showing the creation of private easements to drain water by

gravity, if required.

Subsoil Drainage - Subsoil drainage details, clean out points, discharge point.

Note: This Condition is imposed to ensure that site stormwater is disposed of in a controlled and sustainable

manner.

Note: The collection, storage and use of rainwater is to be in accordance with Standards Australia HB230-2008

“Rainwater Tank Design and Installation Handbook”. Standard Condition: C51

C.11 Swimming and Spa Pools – Child Resistant Barriers

The Construction Certificate plans and specifications required by Clause 139 of the

Regulation must demonstrate compliance (by showing the proposed location of all child-

resistant barriers and the resuscitation sign) with the provisions of the Swimming Pools Act

1992.


DA 14/2013/1 2 September 2013


Note: A statement to the effect that isolation swimming pool fencing complying with AS1926 will be installed

does not satisfy this condition. The location of the required barriers and the sign must be detailed upon

the Construction Certificate plans. Standard Condition: C55

C.12 Swimming and Spa Pools – Backwash

The Construction Certificate plans and specification required to be submitted pursuant to

clause 139 of the Regulation must detail the connection of backwash to Sydney Waters sewer

in compliance with clause 10.9 (Figure 10.2) of AS/NZS 3500.2.2:1996.

Note: The plans must show the location of Sydney Waters sewer, the yard gully or any new connection to the

sewer system including a detailed cross section of the connection complying with clause 10.9 (Figure

10.2) of AS/NZS 3500.2.2:1996.

Note: The discharge of backwash water to any stormwater system is water pollution and an offence under the

Protection of the Environment Operations Act 1997. The connection of any backwash pipe to any

stormwater system is an offence under the Protection of the Environment Operations Act 1997. Standard Condition: C56

C.13 Tree Management Plan


Regulation must show the following information:

a) Trees to be numbered in accordance with these conditions:

shaded green where required to be retained and protected

shaded red where authorised to be removed

shaded yellow where required to be transplanted

shaded blue where required to be pruned

b) References to applicable tree management plan, arborists report, transplant method

statement or bush regeneration management plan.

This plan shall be kept on site until the issue of the final occupation certificate. Standard Condition: C30

D. Conditions which must be satisfied prior to the commencement of any development

work

D.1 Compliance with Building Code of Australia and insurance requirements under the

Home Building Act 1989

For the purposes of section 80A (11) of the Act, the following conditions are prescribed in

relation to a development consent for development that involves any building work:

a) that the work must be carried out in accordance with the requirements of the Building

Code of Australia,

b) in the case of residential building work for which the Home Building Act 1989 requires

there to be a contract of insurance in force in accordance with Part 6 of that Act, that

such a contract of insurance is in force before any building work authorised to be

carried out by the consent commences.

http://www.legislation.nsw.gov.au/summarize/inforce/s/1/?xref=RecordType%3DACTTOC%20AND%20Year%3D1989%20AND%20Actno%3D147&nohits=y



DA 14/2013/1 2 September 2013


This condition does not apply:

a) to the extent to which an exemption is in force under the Home Building Regulation

2004,

b) to the erection of a temporary building.

In this condition, a reference to the BCA is a reference to that code as in force on the date the

application for the relevant construction certificate is made.

Note: This condition must be satisfied prior to commencement of any work in relation to the contract of

insurance under the Home Building Act 1989. This condition also has effect during the carrying out of all

building work with respect to compliance with the Building Code of Australia.

Note: All new guttering is to comply with the provisions of Part 3.5.2 of the Building Code of Australia. Standard Condition: D1

D.2 Dilapidation Reports for existing buildings

Dilapidation surveys must be conducted and dilapidation reports prepared by a professional

engineer (structural) of all buildings on land whose title boundary abuts the site and of such

further buildings located within the likely ―zone of influence‖ of any excavation, dewatering

and/or construction induced vibration.

These properties must include (but is not limited to):

(A) 40A Fitzwilliam Road,

(B) 42 Fitzwilliam Road,

(C) 97 Wentworth Road,

(D) 99 Wentworth Road

The dilapidation reports must be completed and submitted to Council with the Notice of

Commencement prior to the commencement of any development work.

Where excavation of the site will extend below the level of any immediately adjoining

building the principal contractor or owner builder must give the adjoining building owner(s)

a copy of the dilapidation report for their building(s) and a copy of the notice of

commencement required by s81A(2) of the Act not less than two (2) days prior to the

commencement of any work.

Note: The reasons for this condition are:

To provide a record of the condition of buildings prior to development being carried out

To encourage developers and its contractors to use construction techniques that will minimise the

risk of damage to buildings on neighbouring land

Also refer to the Dilapidation Report Advising for more information regarding this condition Standard Condition: D4

D.3 Construction Management Plan

As a result of the site constraints, limited space and access a Construction Management Plan

is to be submitted to Council. Also, due to the lack of on-street parking a Work Zone may be

required during construction.

A construction management plan must be submitted and approved by Council’s Development

Engineer. The plan must:-


DA 14/2013/1 2 September 2013


a) Describe the anticipated impact of the demolition, excavation and construction works

on:

Local traffic routes

Pedestrian circulation adjacent to the building site

On-street parking in the local area

b) Describe the means proposed to:

Manage construction works to minimise such impacts,

Provide for the standing of vehicles during construction,

Provide for the movement of trucks to and from the site, and deliveries to the site

c) Show the location of:

Any site sheds and any anticipated use of cranes and concrete pumps,

Any areas of Council property on which it is proposed to install a Works Zone

(Construction Zone)

Structures to be erected such as hoardings, scaffolding or shoring

Any excavation

d) Describe the excavation impact on the area including

Number and types of trucks to be used

Time frame

Streets to be used

Routes to be taken

Directions of travel

Truck storage areas

It is recommended that vehicle routes be shared

Excavation is to only be carried out outside peak and school hours between

9.30am to 2.30pm week days

e) Protect Trees, Bushland and Public Open Space:

Show the location of all Tree Protection (Exclusion) Zones as required within the

conditions of this development consent.

The storage of building materials in or access through the Reserve will not be

permitted without prior approval by Council.

The Plan must make provision for all materials, plant, etc. to be stored within the

development site at all times during construction. Structures or works on Council property

such as hoardings, scaffolding, shoring or excavation need separate approval from Council.

Standing of cranes and concrete pumps on Council property will need approval on each

occasion.

Note: A minimum of eight weeks will be required for assessment. Work must not commence until the

Construction Management Plan is approved. Failure to comply with this condition may result in fines and

proceedings to stop work. Standard Condition: D9

D.4 Erosion and Sediment Controls – Installation

The principal contractor or owner builder must install and maintain water pollution, erosion

and sedimentation controls in accordance with:


DA 14/2013/1 2 September 2013


a) The Soil and Water Management Plan if required under this consent;

b) ―Do it Right On Site, Soil and Water Management for the Construction Industry‖


c) ―Managing Urban Stormwater - Soils and Construction‖ published by the NSW

Department of Housing 4th Edition‖ ('The Blue Book').

Where there is any conflict The Blue Book takes precedence.

Note: The International Erosion Control Association – Australasia (http://www.austieca.com.au/) lists

consultant experts who can assist in ensuring compliance with this condition. Where Soil and Water

Management Plan is required for larger projects it is recommended that this be produced by a member of

the International Erosion Control Association – Australasia.

Note: The ―Do it Right On Site, Soil and Water Management for the Construction Industry‖ publications can be

down loaded free of charge from www.woollahra.nsw.gov.au.

Note: A failure to comply with this condition may result in penalty infringement notices, prosecution, notices

and orders under the Act and/or the Protection of the Environment Operations Act 1997 without any

further warning. It is a criminal offence to cause, permit or allow pollution.

Note: Section 257 of the Protection of the Environment Operations Act 1997 provides inter alia that ―the

occupier of premises at or from which any pollution occurs is taken to have caused the pollution‖

Warning: Irrespective of this condition any person occupying the site may be subject to proceedings

under the Protection of the Environment Operations Act 1997 where pollution is caused, permitted or

allowed as the result of their occupation of the land being developed. Standard Condition: D14

D.5 Security Fencing, Hoarding and Overhead Protection

Security fencing must be provided around the perimeter of the development site, including

any additional precautionary measures taken to prevent unauthorised entry to the site at all

times during the demolition, excavation and construction period. Security fencing must be the

equivalent 1.8m high chain wire as specified in AS 1725.

Where the development site adjoins a public thoroughfare, the common boundary between

them must be fenced for its full length with a hoarding, unless the least horizontal distance

between the common boundary and the nearest parts of the structure is greater than twice the

height of the structure. The hoarding must be constructed of solid materials (chain wire or the

like is not acceptable) to a height of not less than 1.8 m adjacent to the thoroughfare.

http://www.austieca.com.au/



DA 14/2013/1 2 September 2013


Where a development site adjoins a public thoroughfare with a footpath alongside the

common boundary then, in addition to the hoarding required above, the footpath must be

covered by an overhead protective structure and the facing facade protected by heavy-duty

scaffolding, unless either:

a) The vertical height above footpath level of the structure being demolished is less than

4.0 m; or

b) The least horizontal distance between footpath and the nearest part of the structure is

greater than half the height of the structure.

The overhead structure must consist of a horizontal platform of solid construction and vertical

supports, and the platform must:

a) Extend from the common boundary to 200mm from the edge of the carriageway for the

full length of the boundary;

b) Have a clear height above the footpath of not less than 2.1 m;

c) Terminate 200mm from the edge of the carriageway (clearance to be left to prevent

impact from passing vehicles) with a continuous solid upstand projecting not less than

0.5 m above the platform surface; and

d) Together with its supports, be designed for a uniformly distributed live load of not less

than 7 kPa.

The principal contractor or owner builder must pay all fees associated with the application

and occupation and use of the road (footway) for required hoarding or overhead protection.

The principal contractor or owner builder must ensure that Overhead Protective Structures

are installed and maintained in accordance with WorkCover NSW Code of Practice -

Overhead Protective Structures, gazetted 16 December 1994, as commenced 20 March 1995.

This can be downloaded from:

http://www.workcover.nsw.gov.au/Publications/LawAndPolicy/CodesofPractice/oheadprotstr

ucts.htm.

Security fencing, hoarding and overhead protective structure must not obstruct access to

utilities services including but not limited to man holes, pits, stop valves, fire hydrants or the

like.

Note: The principal contractor or owner must allow not less than two (2) weeks from the date of making a

hoarding application for determination. Any approval for a hoarding or overhead protection under the

Roads Act 1993 will be subject to its own conditions and fees. Standard Condition: D11

http://www.workcover.nsw.gov.au/Publications/LawAndPolicy/CodesofPractice/oheadprotstructs.htm



DA 14/2013/1 2 September 2013


D.6 Site Signs

The Principal Contractor or owner builder must ensure that the sign/s required by clauses

98A and 227A of the Regulation is/are erected and maintained at all times.

Clause 98A of the Regulation provides:

Erection of signs

For the purposes of section 80A (11) of the Act, the requirements of subclauses (2) and (3) are prescribed

as conditions of a development consent for development that involves any building work, subdivision

work or demolition work.

A sign must be erected in a prominent position on any site on which building work, subdivision `work or

demolition work is being carried out:

a. showing the name, address and telephone number of the principal certifying authority for the

work, and

b. showing the name of the principal contractor (if any) for any building work and a telephone

number on which that person may be contacted outside working hours, and

c. stating that unauthorised entry to the work site is prohibited.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being

carried out, but must be removed when the work has been completed.

This clause does not apply in relation to building work, subdivision work or demolition work that is

carried out inside an existing building that does not affect the external walls of the building.

This clause does not apply in relation to Crown building work that is certified, in accordance with section

116G of the Act, to comply with the technical provisions of the State’s building laws.‖


Signs on development sites

If there is a person who is the PCA or the principal contractor for any building work, subdivision work or

demolition work authorised to be carried out on a site by a development consent or complying development

certificate:

Each such person MUST ensure that a rigid and durable sign showing the person’s identifying particulars

so that they can be read easily by anyone in any public road or other public place adjacent to the site is

erected in a prominent position on the site before the commencement of work, and is maintained on the

site at all times while this clause applies until the work has been carried out.

Note: Clause 227A imposes a penalty exceeding $1,000 if these requirements are not complied with.

Note: If Council is appointed as the PCA it will provide the sign to the principal contractor or owner builder

who must ensure that the sign is erected and maintained as required by Clause 98A and Clause 227A of

the Regulation. Standard Condition: D12

D.7 Notification of Home Building Act 1989 requirements

a) For the purposes of section 80A (11) of the Act, the requirements of this condition are

prescribed as conditions of a development consent for development that involves any

residential building work within the meaning of the Home Building Act 1989.

b) Residential building work within the meaning of the Home Building Act 1989 must not

be carried out unless the principal certifying authority for the development to which the

work relates (not being the council) has given the council written notice of the following

information:





DA 14/2013/1 2 September 2013


In the case of work for which a principal contractor is required to be appointed:

- the name and licence number of the principal contractor, and

- the name of the insurer by which the work is insured under Part 6 of that

Act,

In the case of work to be done by an owner-builder:

- the name of the owner-builder, and

- if the owner-builder is required to hold an owner-builder permit under that

Act, the number of the owner-builder permit.

c) If arrangements for doing the residential building work are changed while the work is in

progress so that the information notified under subclause (2) becomes out of date,

further work must not be carried out unless the principal certifying authority for the

development to which the work relates (not being the council) has given the council

written notice of the updated information.

d) This clause does not apply in relation to Crown building work that is certified, in

accordance with section 116G of the Act, to comply with the technical provisions of the

State’s building laws. Standard Condition: D17

D.8 Establishment of boundary location, building location and datum

Prior to the commencement of any work the principal contractor or owner builder must ensure

that a surveyor registered under the Surveying Act 2002 sets out:

a) the boundaries of the site by permanent marks (including permanent recovery points);

b) the location and level of foundation excavations, footings, walls and slabs by permanent

marks, pegs or profiles relative to the boundaries of the land and relative to Australian

Height Datum (―AHD‖) in compliance with the approved plans;

c) establishes a permanent datum point (bench mark) within the boundaries of the site

relative to AHD; and

d) provides a copy of a survey report by the registered surveyor detailing, the title

boundaries, pegs/profiles, recovery points and bench mark locations as established

pursuant to this condition to the PCA.

Note: Where the principal contractor or owner builder notes any discrepancy between the approved

development consent and the Construction Certificate, especially in relation to the height, location or

external configuration of the building (but not limited to these issues) the principal contractor or owner

builder should not proceed until satisfied that the variations as shown are consistent with the consent.

Failure to do so may result in a breach of development consent.

Note: On larger developments, or where boundary redefinition is required, the placement of new State Survey

Marks as permanent marks should be considered by the registered surveyor. Standard Condition: D18

E. Conditions which must be satisfied during any development work

E.1 Compliance with Building Code of Australia and insurance requirements under the

Home Building Act 1989

For the purposes of section 80A (11) of the Act, the following condition is prescribed in


a) That the work must be carried out in accordance with the requirements of the Building

Code of Australia,


DA 14/2013/1 2 September 2013


b) In the case of residential building work for which the Home Building Act 1989 requires





a) To the extent to which an exemption is in force under clause 187 or 188, subject to the

terms of any condition or requirement referred to in clause 187 (6) or 188 (4) of the

Regulation, or

b) To the erection of a temporary building.

In this clause, a reference to the BCA is a reference to that Code as in force on the date the


Note: All new guttering is to comply with the provisions of Part 3.5.2 of the Building Code of Australia.

Standard Condition: E1

E.2 Compliance with Australian Standard for Demolition

Demolition of buildings and structures must comply with Australian Standard AS 2601—

2001: The Demolition of Structures, published by Standards Australia, and as in force at 13

September 2001. Standard Condition: E2

E.3 Compliance with Construction Management Plan

All development activities and traffic movements must be carried out in accordance with the

approved construction management plan. All controls in the Plan must be maintained at all

times. A copy of the Plan must be kept on-site at all times and made available to the PCA or

Council on request.

Note: Irrespective of the provisions of the Construction Management Plan the provisions of traffic and parking

legislation prevails. Standard Condition: E3

E.4 Requirement to notify about new evidence

Any new information which comes to light during remediation, demolition or construction

works which has the potential to alter previous conclusions about site contamination, heritage

significance, threatened species or other relevant matters must be immediately notified to

Council and the Principal Certifying Authority.. Standard Condition: E4

E.5 Critical Stage Inspections

Critical stage inspections must be called for by the principal contractor or owner builder as

required by the PCA, any PCA service agreement, the Act and the Regulation.

Work must not proceed beyond each critical stage until the PCA is satisfied that work is

proceeding in accordance with this consent, the Construction Certificate(s) and the Act.

critical stage inspections means the inspections prescribed by the Regulations for the

purposes of section 109E(3)(d) of the Act or as required by the PCA and any PCA Service

Agreement.



DA 14/2013/1 2 September 2013


Note: The PCA may require inspections beyond mandatory critical stage inspections in order that the PCA be

satisfied that work is proceeding in accordance with this consent.

Note: The PCA may, in addition to inspections, require the submission of Compliance Certificates, survey

reports or evidence of suitability in accordance with Part A2.2 of the BCA in relation to any matter

relevant to the development. Standard Condition: E5

E.6 Hours of Work –Amenity of the neighbourhood

a) No work must take place on any Sunday or public holiday,

b) No work must take place before 7am or after 5pm any weekday,

c) No work must take place before 7am or after 1pm any Saturday,

d) The following work must not take place before 9am or after 4pm any weekday, or

before 9am or after 1pm any Saturday or at any time on a Sunday or public holiday;

i) Piling;

ii) Piering;

iii) Rock or concrete cutting, boring or drilling;

iv) Rock breaking;

v) Rock sawing;

vi) Jack hammering; or

vii) Machine excavation,

e) No loading or unloading of material or equipment associated with the activities listed in

part d) above must take place before 9am or after 4pm any weekday, or before 9am or

after 1pm any Saturday or at any time on a Sunday or public holiday.

f) No operation of any equipment associated with the activities listed in part d) above must

take place before 9am or after 4pm any weekday, or before 9am or after 1pm any

Saturday or at any time on a Sunday or public holiday

g) No rock excavation being cutting, boring, drilling, breaking, sawing , jack hammering

or bulk excavation of rock, must occur without a 15 minute break every hour.

This condition has been imposed to mitigate the impact of work upon the amenity of the

neighbourhood. Impact of work includes, but is not limited to, noise, vibration, dust, odour,

traffic and parking impacts.

Note: The use of noise and vibration generating plant and equipment and vehicular traffic, including trucks in

particular, significantly degrade the amenity of neighbourhoods and more onerous restrictions apply to

these activities. This more invasive work generally occurs during the foundation and bulk excavation

stages of development. If you are in doubt as to whether or not a particular activity is considered to be

subject to the more onerous requirement (9am to 4pm weekdays and 9am to 1pm Saturdays) please

consult with Council.

Note: Each and every breach of this condition by any person may be subject to separate penalty infringement

notice or prosecution.

Note: The delivery and removal of plant, equipment and machinery associated with wide loads subject to RTA

and Police restrictions on their movement out side the approved hours of work will be considered on a

case by case basis.

Note: Compliance with these hours of work does not affect the rights of any person to seek a remedy to

offensive noise as defined by the Protection of the Environment Operations Act 1997, the Protection of

the Environment Operations (Noise Control) Regulation 2000.

Note: EPA Guidelines can be down loaded from http://www.epa.nsw.gov.au/noise/nglg.htm .

Note: see http://www.epa.nsw.gov.au/resources/ci_build_sheet7.pdf Standard Condition: E6

http://www.epa.nsw.gov.au/noise/nglg.htm

http://www.epa.nsw.gov.au/resources/ci_build_sheet7.pdf


DA 14/2013/1 2 September 2013


E.7 Public Footpaths – Safety, Access and Maintenance

The principal contractor or owner builder and any other person acting with the benefit of this

consent must:

a) Not erect or maintain any gate or fence swing out or encroaching upon the road or the

footway.

b) Not use the road or footway for the storage of any article, material, matter, waste or

thing.

c) Not use the road or footway for any work.

d) Keep the road and footway in good repair free of any trip hazard or obstruction.

e) Not stand any plant and equipment upon the road or footway.

f) Provide a clear safe pedestrian route a minimum of 1.5m wide.

g) Protect street name inlays in the footpath which are not to be removed or damaged

during development.

This condition does not apply to the extent that a permit or approval exists under the section

73 of the Road Transport (Safety and Traffic Management) Act 1999, section 138 of the

Roads Act 1993 or section 94 of the Local Government Act 1993 except that at all time

compliance is required with:

a) Australian Standard AS 1742 (Set) Manual of uniform traffic control devices and all

relevant parts of this set of standards.

b) Australian Road Rules to the extent they are adopted under the Road Transport (Safety

and Traffic Management) (Road Rules) Regulation 1999.

Note: Section 73 of the Road Transport (Safety and Traffic Management) Act 1999 allows the Police to close

any road or road related area to traffic during any temporary obstruction or danger to traffic or for any

temporary purpose. Any road closure requires Police approval.

Note: Section 138 of the Roads Act 1993 provides that a person must not:

erect a structure or carry out a work in, on or over a public road, or

dig up or disturb the surface of a public road, or

remove or interfere with a structure, work or tree on a public road, or

pump water into a public road from any land adjoining the road, or

connect a road (whether public or private) to a classified road,

otherwise than with the consent of the appropriate roads authority.

Note: Section 68 of the Local Government Act 1993 provides that a person may carry out certain activities only

with the prior approval of the council including:

Part C Management of Waste:

a. For fee or reward, transport waste over or under a public place

b. Place waste in a public place

c. Place a waste storage container in a public place.‖

Part E Public roads:

a. Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle

projecting over the footway

b. Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to

overhang any part of the road or outside a shop window or doorway abutting the road, or hang

an article beneath an awning over the road.‖

c. Any work in, on or over the Road or Footway requires Council Approval and in the case of

classified roads the NSW Roads and Traffic Authority. Road includes that portion of the road

uses as a footway. Standard Condition: E7


DA 14/2013/1 2 September 2013


E.8 Maintenance of Environmental Controls

The principal contractor or owner builder must ensure that the following monitoring,

measures and controls are maintained:

a) Erosion and sediment controls,

b) Dust controls,

c) Dewatering discharges,

d) Noise controls;

e) Vibration monitoring and controls;

f) Ablutions;

Note: See http://www.epa.nsw.gov.au/small_business/builders.htm for additional information.


E.9 Support of adjoining land and buildings

A person must not to do anything on or in relation to the site (the supporting land) that

removes the support provided by the supporting land to any other land (the supported land) or

building (the supported building).

For the purposes of this condition, supporting land includes the natural surface of the site, the

subsoil of the site, any water beneath the site, and any part of the site that has been reclaimed.

Note: This condition does not authorise any trespass or encroachment upon any adjoining or supported land or

building whether private or public. Where any underpinning, shoring, soil anchoring (temporary or

permanent) or the like is considered necessary upon any adjoining or supported land by any person the

principal contractor or owner builder must obtain:

a. the consent of the owners of such adjoining or supported land to trespass or encroach, or

b. an access order under the Access to Neighbouring Land Act 2000, or

c. an easement under section 88K of the Conveyancing Act 1919, or

d. an easement under section 40 of the Land & Environment Court Act 1979 as appropriate. Note: Section 177 of the Conveyancing Act 1919 creates a statutory duty of care in relation to support of land.

Accordingly, a person has a duty of care not to do anything on or in relation to land being developed (the

supporting land) that removes the support provided by the supporting land to any other adjoining land

(the supported land).

Note: Clause 20 of the Roads (General) Regulation 2000 prohibits excavation in the vicinity of roads as

follows: ―Excavations adjacent to road - A person must not excavate land in the vicinity of a road if the

excavation is capable of causing damage to the road (such as by way of subsidence) or to any work or

structure on the road.‖ Separate approval is required under the Roads Act 1993 for any underpinning,

shoring, soil anchoring (temporary)) or the like within or under any road. Council will not give approval

to permanent underpinning, shoring, soil anchoring within or under any road.

Note: The encroachment of work or the like is a civil matter of trespass or encroachment and Council does not

adjudicate or regulate such trespasses or encroachments except in relation to encroachments upon any

road, public place, crown land under Council’s care control or management, or any community or

operational land as defined by the Local Government Act 1993. Standard Condition: E13

E.10 Vibration Monitoring

Vibration monitoring equipment must be installed and maintained, under the supervision of a

professional engineer with expertise and experience in geotechnical engineering, between any

potential source of vibration and any building identified by the professional engineer as being

potentially at risk of movement or damage from settlement and/or vibration during the

excavation and during the removal of any excavated material from the land being developed.

http://www.epa.nsw.gov.au/small_business/builders.htm


DA 14/2013/1 2 September 2013


If vibration monitoring equipment detects any vibration at the level of the footings of any

adjacent building exceeding the peak particle velocity adopted by the professional engineer as

the maximum acceptable peak particle velocity an audible alarm must activate such that the

principal contractor and any sub-contractor are easily alerted to the event.

Where any such alarm triggers all excavation works must cease immediately.

Prior to the vibration monitoring equipment being reset by the professional engineer and any

further work recommencing the event must be recorded and the cause of the event identified

and documented by the professional engineer.

Where the event requires, in the opinion of the professional engineer, any change in work

practices to ensure that vibration at the level of the footings of any adjacent building does not

exceed the peak particle velocity adopted by the professional engineer as the maximum

acceptable peak particle velocity these changes in work practices must be documented and a

written direction given by the professional engineer to the principal contractor and any sub-

contractor clearly setting out required work practice.

The principal contractor and any sub-contractor must comply with all work directions, verbal

or written, given by the professional engineer.

A copy of any written direction required by this condition must be provided to the Principal

Certifying Authority within 24 hours of any event.

Where there is any movement in foundations such that damaged is occasioned to any

adjoining building or such that there is any removal of support to supported land the

professional engineer, principal contractor and any sub-contractor responsible for such work

must immediately cease all work, inform the owner of that supported land and take immediate

action under the direction of the professional engineer to prevent any further damage and

restore support to the supported land.

Note: Professional engineer has the same mean as in Clause A1.1 of the BCA.

Note: Building has the same meaning as in section 4 of the Act i.e. ―building includes part of a building and any

structure or part of a structure‖.

Note: Supported land has the same meaning as in section 88K of the Conveyancing Act 1919. Standard Condition: E14

E.11 Erosion and Sediment Controls – Maintenance

The principal contractor or owner builder must maintain water pollution, erosion and

sedimentation controls in accordance with:

a) The Soil and Water Management Plan required under this consent;




Department of Housing 4th Edition (―The Blue Book‖).


DA 14/2013/1 2 September 2013






Note: Section 257 of the Protection of the Environment Operations Act 1997 provides that ―the occupier of

premises at or from which any pollution occurs is taken to have caused the pollution‖.

Warning: Irrespective of this condition any person occupying the site may be subject to proceedings under the

Protection of the Environment Operations Act 1997 where pollution is caused, permitted or allowed as the result

of the occupation of the land being developed whether or not they actually cause the pollution. Standard Condition: E15

E.12 Disposal of site water during construction

The principal contractor or owner builder must ensure:

a) Prior to pumping any water into the road or public stormwater system that approval is

obtained from Council under section 138(1)(d) of the Roads Act 1993;

b) That water pollution, as defined by the Protection of the Environment Operations Act

1997, does not occur as the result of the discharge to the road, public stormwater system

or other place or any site water;

c) That stormwater from any roof or other impervious areas is linked, via temporary

downpipes and stormwater pipes, to a Council approved stormwater disposal system

immediately upon completion of the roof installation or work creating other impervious

areas.

Note: This condition has been imposed to ensure that adjoining and neighbouring land is not adversely affected

by unreasonable overland flows of stormwater and that site water does not concentrate water such that

they cause erosion and water pollution. Standard Condition: E17

E.13 Placement and use of Skip Bins

The principal contractor or owner builder must ensure that all waste storage containers,

including but not limited to skip bins, must be stored within the site unless:

a) Activity Approval has been issued by Council under section 94 of the Local

Government Act 1993 to place the waste storage container in a public place, and

b) Where located on the road it is located only in a positions where a vehicle may lawfully

park in accordance with the Australian Road Rules to the extent they are adopted under

the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999.


DA 14/2013/1 2 September 2013


Note: Waste storage containers must not be located on the footpath without a site specific activity approval.

Where such site specific activity approval is granted a 1.5m wide clear path of travel is maintained free of

any trip hazards. Standard Condition: E21

E.14 Dust Mitigation

Dust mitigation must be implemented in accordance with ―Dust Control - Do it right on site‖

published by the Southern Sydney Regional Organisation of Councils.

This generally requires:

a) Dust screens to all hoardings and site fences.

b) All stockpiles or loose materials to be covered when not being used.

c) All equipment, where capable, being fitted with dust catchers.

d) All loose materials being placed bags before placing into waste or skip bins.

e) All waste and skip bins being kept covered when not being filled or emptied.

f) The surface of excavation work being kept wet to minimise dust.

g) Landscaping incorporating trees, dense shrubs and grass being implemented as soon as

practically possible to minimise dust.

Note: ―Dust Control - Do it right on site‖ can be down loaded free of charge from Council’s web site

www.woollahra.nsw.gov.au or obtained from Council’s office.

Note: Special precautions must be taken when removing asbestos or lead materials from development sites.

Additional information can be obtained from www.workcover.nsw.gov.au and www.epa.nsw.gov.au .

Other specific condition and advice may apply.

Note: Demolition and construction activities may affect local air quality and contribute to urban air pollution.

The causes are dust, smoke and fumes coming from equipment or activities, and airborne chemicals when

spraying for pest management. Precautions must be taken to prevent air pollution. Standard Condition: E23

E.15 Swimming and Spa Pools – Temporary Child Resistant Barriers and other matters

Temporary child-resistant barriers must be installed in compliance with the Swimming Pools

Act 1992 where any swimming pool or spa pool as defined by the Swimming Pools Act 1992

contains more than 300mm in depth of water at any time. Permanent child-resistant barriers

must be installed in compliance with the Swimming Pools Act 1992 as soon as practical.

Backwash and any temporary dewatering from any swimming pool or spa pool as defined by

the Swimming Pools Act 1992 must be discharged to the sewer in compliance with clause 10.9

(Figure 10.2) of AS/NZS 3500.2.2:1996.

Note: This condition does not prevent Council from issuing an order pursuant to section 23 of the Swimming

Pool Act 1992 or taking such further action as necessary for a breach of this condition or the Swimming

Pools Act 1992. Standard Condition: E26

E.16 Tree Preservation

All persons must comply with Council’s Tree Preservation Order (TPO) other than where

varied by this consent. The order applies to any tree with a height greater than 5 metres or a

diameter spread of branches greater than 3 metres.


http://www.workcover.nsw.gov.au/

http://www.epa.nsw.gov.au/


DA 14/2013/1 2 September 2013


General Protection Requirements

a) There shall be no excavation or work within a TPZ. The TPZ must be maintained during

all development work unless otherwise specified within these conditions of consent.

b) Excavation must cease where tree roots with a diameter exceeding 30mm are exposed.

The principal contractor must procure an inspection of the exposed tree roots by an

arborist with a minimum AQF Level 5 qualification. Excavation must only recommence

with the implementation of the recommendations of the arborist.

c) Where there is damage to any part of a tree the principal contractor must procure an

inspection of the tree by a qualified arborist immediately. The principal contractor must

immediately implement treatment as directed by the arborist. The arborist is to supply a

detailed report to the appointed certifier.

Note: Trees must be pruned in accordance with Australian Standard AS 4373 “Pruning of Amenity

Trees” and WorkCover NSW Code of Practice Amenity Tree Industry. Standard Condition: E8

d) Replacement/Supplementary trees which must be planted

Any replacement or supplementary tree shall be grown in accordance with NATSPEC

Specifying Trees. The replacement tree shall be maintained in a healthy and vigorous

condition. If the replacement tree is found to be faulty, damaged, dying or dead before it

attains a size whereby it is protected by Council’s Tree Preservation Order, it must be

replaced with another of the same species which complies with the criteria outlined

below.

Species/Type Planting Location Container

Size/Size of Tree

(when planting)

Minimum

Dimensions

at Maturity

1 x Magnolia sp. Magnolia,

Lagerstroemia indica Crepe Myrtle,

Syzygium sp. Lillypilly, Tibouchina

granulosa Purple Glory bush or

Lasiandra or simillar

Within the vicinity ot

Tree No.6 Citharexylum

spinosum Fiddlewood

Tree

75 litre Natural

The project arborist shall document compliance with the above condition.

e) Hand excavation within tree root zones

Excavation undertaken within the specified radius from the trunks of the following trees

shall be hand dug.

Council Ref No: Species Radius from Trunk (metres)

7 Phoenix canariensis Canary Island Date Palm 2

7a Plumeria acutifolia Frangipani 2

8 Glochidion ferdinandii Cheese Tree 5

9 Gordonia axillaris Fried Egg Plant 2

Small hand tools such as mattocks or using compressed air or water jetting only shall be

used. Roots with a diameter equal to or in excess of 30mm shall not be severed or

damaged unless approved in writing by the project arborist.


DA 14/2013/1 2 September 2013


Mechanical excavation is permitted beyond this radius when root pruning by hand along

the perimeter line is completed. Exposed roots to be retained shall be covered with

mulch or a geotextile fabric and kept in a moist condition and prevented from drying out.

All root pruning must be undertaken in accordance with the Australian Standard 4373

―Pruning of Amenity Trees‖ and carried out by a qualified Arborist (minimum

qualification of Australian Qualification Framework Level 4 or recognised equivalent).


f) Footings in the vicinity of trees

Footings for any structure within the specified radius from the trunks of the following

trees shall be supported using an isolated pier and beam system.

Council Ref No: Species Radius from centre of trunk (metres)

8 Glochidion ferdinandii Cheese Tree 5

9 Gordonia axillaris Fried Egg Plant 2

Excavations for installation of piers shall be located so that no tree root with a diameter

equal to or in excess of 30mm is severed or damaged. The smallest possible area shall be

excavated which allows construction of the pier. The beam is to be placed a minimum of

100mm above ground level and is to be designed to bridge all tree roots with a diameter

equal to or in excess of 30mm.


F. Conditions which must be satisfied prior to any occupation or use of the building (Part

4A of the Act and Part 8 Division 3 of the Regulation)

F.1 Occupation Certificate (section 109M of the Act)

A person must not commence occupation or use of the whole or any part of a new building

(within the meaning of section 109H (4) of the Act) unless an occupation certificate has been

issued in relation to the building or part.

Note: New building includes an altered portion of, or an extension to, an existing building.

Standard Condition: F1

F.2 Swimming and Spa Pools – Permanent Child Resistant Barriers and other matters

Prior to any occupation or use of the development and prior to filling any swimming pool as

defined by the Swimming Pool Act 1992:

a) Permanent child-resistant barriers must be installed in compliance with the Swimming

Pools Act 1992.

b) The Principal Contractor or owner must apply for and obtain a Compliance Certificate

under section 24 of the Swimming Pools Act 1992.

c) Public Pools must comply with the NSW Health Public Swimming Pool and Spa Pool

Guidelines in force at that time and private pools are encouraged to comply with the

same standards as applicable.


DA 14/2013/1 2 September 2013


d) Water recirculation and filtration systems must be installed in compliance with AS

1926.3-2003:Swimming pool safety - Water recirculation and filtration systems.

Backwash must be discharged to the sewer in compliance with clause 10.9 (Figure 10.2) of

AS/NZS 3500.2.2:1996:

a) Water recirculation and filtration systems must be connected to the electricity supply by

a timer that limits the systems operation such that it does not operate:

b) Before 8 am or after 8 pm on any Sunday or public holiday or before 7 am or after 8 pm

on any other day.

Note: The NSW Health Public Swimming Pool and Spa Pool Guidelines can be down loaded free from:

http://www.health.nsw.gov.au/public-health/ehb/general/pools/poolguidelines.pdf Standard Condition: F13

F.3 Commissioning and Certification of Systems and Works

The principal contractor or owner builder must submit to the satisfaction of the PCA works-

as-executed (―WAE‖) plans, Compliance Certificates and evidence of suitability in

accordance with Part A2.2 of the BCA confirming that the works, as executed and as detailed,

comply with the requirement of this consent, the Act, the Regulations, any relevant

construction certificate, the BCA and relevant Australian Standards.

Works-as-executed (―WAE‖) plans, Compliance Certificates and evidence of suitability in

accordance with Part A2.2 of the BCA must include but may not be limited to:

a) Certification from the supervising professional engineer that the requirement of the

Geotechnical / Hydrogeological conditions and report recommendations were

implemented and satisfied during development work.

b) All flood protection measures.

c) All garage/car park/basement car park, driveways and access ramps comply with

Australian Standard AS 2890.1 – ―Off-Street car parking.‖

d) All stormwater drainage and storage systems.

e) All mechanical ventilation systems.

f) All hydraulic systems.

g) All structural work.

h) All acoustic attenuation work.

i) All waterproofing.

j) Such further matters as the Principal Certifying Authority may require.

Note: This condition has been imposed to ensure that systems and works as completed meet development

standards as defined by the Act, comply with the BCA, comply with this consent and so that a public

record of works as execute is maintained.

Note: The PCA may require any number of WAE plans, certificates, or other evidence of suitability as

necessary to confirm compliance with the Act, Regulation, Development Standards, BCA, and relevant

Australia Standards. As a minimum WAE plans and certification is required for stormwater drainage and

detention, mechanical ventilation work, hydraulic services (including but not limited to fire services).

Note: The PCA must submit to Council, with any Occupation Certificate, copies of works-as-executed

(―WAE‖) plans, Compliance Certificates and evidence of suitability in accordance with Part A2.2 of the

BCA upon which the PCA has relied in issuing any Occupation Certificate. Standard Condition: F7

G. Conditions which must be satisfied prior to the issue of any Subdivision Certificate

No applicable conditions.

http://www.health.nsw.gov.au/public-health/ehb/general/pools/poolguidelines.pdf


DA 14/2013/1 2 September 2013


H. Conditions which must be satisfied prior to the issue of a Final Occupation Certificate

(s109C(1)(c))

H.1 Fulfillment of BASIX commitments – Clause 154B of the Regulation

All BASIX commitments must be effected in accordance with the BASIX Certificate No.

A146935.

Note: Clause 154B(2) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying

authority must not issue a final occupation certificate for a BASIX affected building to which this clause

applies unless it is satisfied that each of the commitments whose fulfilment it is required to monitor has

been fulfilled." Standard Condition: H7

H.2 Removal of Ancillary Works and Structures

The principal contractor or owner must remove from the land and any adjoining public place:

a) The site sign;

b) Ablutions;

c) Hoarding;

d) Scaffolding; and

e) Waste materials, matter, article or thing.

Note: This condition has been imposed to ensure that all ancillary matter is removed prior to the issue of the

Final Occupation Certificate. Standard Condition: H12

H.3 Landscaping

The principal contractor or owner must provide to PCA a works-as-executed landscape plan

and certification from a qualified landscape architect/designer, horticulturist and/or arborist as

applicable to the effect that the works comply with this consent.

Note: This condition has been imposed to ensure that all Landscaping work is completed prior to the issue of

the Final Occupation Certificate. Standard Condition: H9

H.4 Positive Covenant & Works-As-Executed certification of stormwater systems

On completion of construction work, stormwater drainage works are to be certified by a

professional engineer with Works-As-Executed drawings supplied to the PCA detailing:

a) Compliance with conditions of development consent relating to stormwater;

b) The structural adequacy of the On-Site Detention system (OSD);

c) That the works have been constructed in accordance with the approved design and will

provide the detention storage volume and attenuation in accordance with the submitted

calculations;

d) Pipe invert levels and surface levels to Australian Height Datum;

e) Contours indicating the direction in which water will flow over land should the capacity

of the pit be exceeded in a storm event exceeding design limits.


DA 14/2013/1 2 September 2013


f) A positive covenant pursuant to Section 88E of the Conveyancing Act 1919 must be

created on the title of the subject property, providing for the indemnification of Council

from any claims or actions and for the on-going maintenance of the on-site-detention

system and/or absorption trenches, including any pumps and sumps incorporated in the

development. The wording of the Instrument must be in accordance with Council’s

standard format and the Instrument must be registered at the Land Titles Office.

Note: The required wording of the Instrument can be downloaded from Council’s web site

www.woollahra.nsw.gov.au . The PCA must supply a copy of the WAE Plans to Council together with

the Final Occupation Certificate. The Final Occupation Certificate must not be issued until this

condition has been satisfied. Standard Condition: H20

I. Conditions which must be satisfied during the ongoing use of the development

I.1 Maintenance of BASIX commitments

All BASIX commitments must be maintained in accordance with the BASIX Certificate No.

A146935.

Note: This condition affects successors in title with the intent that environmental sustainability measures must be

maintained for the life of development under this consent. Standard Condition: I7

I.2 Swimming and Spa Pools – Maintenance

Swimming and Spa Pools must be maintained:

a) In compliance with the Swimming Pools Act 1992 with regard to the provision of child-

resistant barriers and resuscitation signs;

b) In compliance with the NSW Health ―Public Swimming Pool and Spa Pool Guidelines‖

in force at that time. Private pools are encouraged to comply with the same standards as

applicable;

c) In compliance with AS 1926.3-2003:Swimming pool safety - Water recirculation and

filtration systems ;

d) With backwash being discharged to the sewer in compliance with clause 10.9 (Figure

10.2) of AS/NZS 3500.2.2:1996, and

e) With a timer that limits the recirculation and filtration systems operation such that it

does not emit noise that can be heard within a habitable room in any other residential

premises (regardless of whether any door or window to that room is open):

Before 8 am or after 8 pm on any Sunday or public holiday, or

Before 7 am or after 8 pm on any other day.

Note: Child-resistant barriers, resuscitation signs, recirculation and filtration systems and controls systems

require regular maintenance to ensure that life safety, health and amenity standards are maintained.

Note: The NSW Health Public Swimming Pool and Spa Pool Guidelines can be down loaded free from:

http://www.health.nsw.gov.au/public-health/ehb/general/pools/poolguidelines.pdf Standard Condition: I13

I.3 On-going maintenance of the on-site-detention system

The Owner(s) must in accordance with this condition and any positive covenant:


http://www.health.nsw.gov.au/public-health/ehb/general/pools/poolguidelines.pdf


DA 14/2013/1 2 September 2013


a) Permit stormwater to be temporarily detained by the system;

b) Keep the system clean and free of silt rubbish and debris;

c) If the car park is used as a detention basin, a weather resistant sign must be maintained

in a prominent position in the car park warning residents that periodic inundation of the

car park may occur during heavy rain;

d) Maintain renew and repair as reasonably required from time to time the whole or part of

the system so that it functions in a safe and efficient manner and in doing so complete

the same within the time and in the manner reasonably specified in written notice issued

by the Council;

e) Carry out the matters referred to in paragraphs (b) and (c) at the Owners expense;

f) Not make any alterations to the system or elements thereof without prior consent in

writing of the Council and not interfere with the system or by its act or omission cause it

to be interfered with so that it does not function or operate properly;

g) Permit the Council or its authorised agents from time to time upon giving reasonable

notice (but at anytime and without notice in the case of an emergency) to enter and

inspect the land with regard to compliance with the requirements of this covenant;

h) Comply with the terms of any written notice issued by Council in respect to the

requirements of this clause within the time reasonably stated in the notice;

i) Where the Owner fails to comply with the Owner’s obligations under this covenant,

permit the Council or its agents at all times and on reasonable notice at the Owner’s cost

to enter the land with equipment, machinery or otherwise to carry out the works

required by those obligations;

j) Indemnify the Council against all claims or actions and costs arising from those claims

or actions which Council may suffer or incur in respect of the system and caused by an

act or omission by the Owners in respect of the Owner’s obligations under this

condition.

This condition has been imposed to ensure that owners are aware of require maintenance

requirements for their stormwater systems.

Note: This condition is supplementary to the owner(s) obligations and Council’s rights under any positive

covenant. Standard Condition: I12

J. Miscellaneous Conditions

No applicable conditions.

K. Advisings

K.1 Criminal Offences – Breach of Development Consent & Environmental laws

Failure to comply with this development consent and any condition of this consent is a

criminal offence. Failure to comply with other environmental laws is also a criminal offence.

Where there is any breach Council may without any further warning:

a) Issue Penalty Infringement Notices (On-the-spot fines);

b) Issue notices and orders;

c) Prosecute any person breaching this consent; and/or

d) Seek injunctions/orders before the courts to restrain and remedy any breach.


DA 14/2013/1 2 September 2013


Warnings as to potential maximum penalties

Maximum Penalties under NSW Environmental Laws include fines up to $1.1 Million and/or

custodial sentences for serious offences.

Warning as to enforcement and legal costs

Should Council have to take any action to enforced compliance with this consent or other

environmental laws Council’s policy is to seek from the Court appropriate orders requiring

the payments of its costs beyond any penalty or remedy the Court may order.

This consent and this specific advice will be tendered to the Court when seeking costs orders

from the Court where Council is successful in any necessary enforcement action.

Note: The payment of environmental penalty infringement notices does not result in any criminal offence being

recorded. If a penalty infringement notice is challenged in Court and the person is found guilty of the

offence by the Court, subject to section 10 of the Crimes (Sentencing Procedure) Act 1999, a criminal

conviction is recorded. The effect of a criminal conviction beyond any fine is serious. You can obtain

further information from the following web sites:

http://www.theshopfront.org/documents/ConvictionsCriminalRecords.pdf and the Attorney General’s

www.agd.nsw.gov.au. Standard Advising: K1

K.2 Dial before you dig

The principal contractor, owner builder or any person digging may be held financially

responsible by the asset owner should they damage underground pipe or cable networks.

Minimise your risk and Dial 1100 Before You Dig or visit www.dialbeforeyoudig.com.au.

When you contact Dial Before You Dig, you will be sent details of all Dial Before You Dig

members who have underground assets in the vicinity of your proposed excavation. Standard Advising: K2

K.3 Commonwealth Disability Discrimination Act 1992 (“DDA”)

The Disability Discrimination Act 1992 (DDA) makes it against the law for public places to

be inaccessible to people with a disability. Compliance with this development consent,

Council’s Access DCP and the BCA does not necessarily satisfy compliance with the DDA.

The DDA applies to existing places as well as places under construction. Existing places must

be modified and be accessible (except where this would involve "unjustifiable hardship‖).

Further detailed advice can be obtained from the Human Rights and Equal Opportunity

Commission (―HEROC‖):

a) http://www.hreoc.gov.au/index.html

b) http://www.hreoc.gov.au/disability_rights/dda_guide/ins/ins.html

If you have any further questions relating to the application of the DDA you can send and

email to HEROC at [email protected]. Standard Advising: K3

http://www.theshopfront.org/documents/ConvictionsCriminalRecords.pdf

http://www.agd.nsw.gov.au/

http://www.dialbeforeyoudig.com.au/

http://www.hreoc.gov.au/index.html

http://www.hreoc.gov.au/disability_rights/dda_guide/ins/ins.html

mailto:[email protected]


DA 14/2013/1 2 September 2013


K.4 Builders Licences and Owner Builders Permits

Section 81A of the Act requires among other matters that the person having the benefit of the

development consent, if not carrying out the work as an owner-builder, must appointed a

principal contractor for residential building work who must be the holder of a contractor

licence.

Further information can be obtained from the NSW Office of Fair Trading website about how

you obtain an owner builders permit or find a principal contractor (builder):

http://www.dft.nsw.gov.au/building.html .

The Owner(s) must appoint the PCA. The PCA must check that Home Building Act

insurance is in place before the commencement of building work. The Principal Contractor

(Builder) must provide the Owners with a certificate of insurance evidencing the contract of

insurance under the Home Building Act 1989 for the residential building work. Standard Condition: K5

K.5 Workcover requirements

The Occupational Health and Safety Act 2000 No 40 and subordinate regulations, codes of

practice and guidelines control and regulate the development industry.

Note: Further information can be obtained from Workcover NSW’s website:

http://www.workcover.nsw.gov.au/Industry/Construction/default.htm or through their head office:

Location: Workcover NSW, 92-100 Donnison Street, GOSFORD 2250 Postal address: WorkCover

NSW, Locked Bag 2906, LISAROW 2252, Phone (02) 4321 5000, Fax (02) 4325 4145. Standard Condition: K7

K.6 Asbestos Removal, Repair or Disturbance

Anyone who removes, repairs or disturbs bonded or a friable asbestos material must hold a

current removal licence from Workcover NSW.

Before starting work, a work site-specific permit approving each asbestos project must be

obtained from Workcover NSW. A permit will not be granted without a current Workcover

licence.

All removal, repair or disturbance of or to asbestos material must comply with:

a) The Occupational Health and Safety Act 2000;

b) The Occupational Health and Safety Regulation 2001;

c) The Code of Practice for the Safe Removal of Asbestos [NOHSC: 2002 (1998)];

d) The Guide to the Control of Asbestos Hazards in Buildings and Structures [NOHSC:

3002 (1998)] http://www.nohsc.gov.au/ ];

e) The Workcover NSW Guidelines for Licensed Asbestos Removal Contractors.

Note: The Code of Practice and Guide referred to above are known collectively as the Worksafe Code of

Practice and Guidance Notes on Asbestos. They are specifically referenced in the Occupational Health

and Safety Regulation 2001 under Clause 259. Under the Occupational Health and Safety Regulation

2001, the Worksafe Code of Practice and Guidance Notes on Asbestos are the minimum standards for

asbestos removal work. Council does not control or regulate the Worksafe Code of Practice and

Guidance Notes on Asbestos. You should make yourself aware of the requirements by visiting

www.workcover.nsw.gov.au or one of Workcover NSW’s offices for further advice. Standard Advising: K8

http://www.dft.nsw.gov.au/building.html

http://www.legislation.nsw.gov.au/summarize/inforce/s/1/?TITLE=%22Occupational%20Health%20and%20Safety%20Act%202000%20No%2040%22&nohits=y

http://www.workcover.nsw.gov.au/Industry/Construction/default.htm



DA 14/2013/1 2 September 2013


K.7 Lead Paint

It is beyond the scope of this consent to provide detailed information about dealing with lead

paint. Painters working in an area containing lead-based paint should refer to Australian

Standard AS 4361.1–1995, Guide to Lead Paint Management—Industrial Applications, or AS

4361.2–1998, Guide to Lead Paint Management—Residential and Commercial Buildings.

Industrial paints, may contain lead. Lead is used in some specialised sign-writing and artist

paints, and road marking paints, and anti-corrosive paints. Lead was a major ingredient in

commercial and residential paints from the late 1800s to 1970. Most Australian commercial

buildings and residential homes built before 1970 contain lead paint. These paints were used

both inside and outside buildings.

Lead hazards - Lead particles are released when old lead paint flakes and peels and collects as

dust in ceiling, wall and floor voids. If dust is generated it must be contained. If runoff

contains lead particles it must be contained. Lead is extremely hazardous, and stripping of

lead-based paint and the disposal of contaminated waste must be carried out with all care.

Lead is a cumulative poison and even small levels in the body can have severe effects. Standard Advising: K9

K.8 Dividing Fences

The erection of dividing fences under this consent does not affect the provisions of the

Dividing Fences Act 1991. Council does not adjudicate civil disputes relating to the provision

of, or payment for, the erection of dividing fences.

Note: Further information can be obtained from the NSW Department of Lands -

http://www.lands.nsw.gov.au/LandManagement/Dividing+Fences.htm. Community Justice Centres

provide a free mediation service to the community to help people resolve a wide range of disputes,

including dividing fences matters. Their service is free, confidential, voluntary, timely and easy to use.

Mediation sessions are conducted by two impartial, trained mediators who help people work together to

reach an agreement. Over 85% of mediations result in an agreement being reached. Mediation sessions

can be arranged at convenient times during the day, evening or weekends. Contact the Community Justice

Centre either by phone on 1800 671 964 or at http://www.cjc.nsw.gov.au/. Standard Advising: K10

K.9 Release of Security

An application must be made to Council by the person who paid the security for release of the

securities held under section 80A of the Act.

The securities will not be released until a Final Occupation Certificate has lodged with

Council, Council has inspected the site and Council is satisfied that the public works have

been carried out to Council’s requirements. Council may use part or all of the security to

complete the works to its satisfaction if the works do not meet Council’s requirements.

Council will only release the security upon being satisfied that all damage or all works, the

purpose for which the security has been held have been remedied or completed to Council’s

satisfaction as the case may be.

Council may retain a portion of the security to remedy any defects in any such public work

that arise within 6 months after the work is completed.

http://www.lands.nsw.gov.au/LandManagement/Dividing+Fences.htm

http://www.cjc.nsw.gov.au/


DA 14/2013/1 2 September 2013


Upon completion of each section of road, drainage and landscape work to Council's

satisfaction, 90% of the Bond monies held by Council for these works will be released upon

application. 10% may be retained by Council for a further 6 month period and may be used by

Council to repair or rectify any defects or temporary works during the 6 month period.

Note: The Application for Refund of Security form can be downloaded from

http://www.woollahra.nsw.gov.au/pdf/Forms/Planning/RefundofSecurity.pdf Standard Condition: K15

K.10 Pruning or Removing a Tree Growing on Private Property

Woollahra Municipal Council's Tree Preservation Order 2006 (TPO) may require that an

application be made to Council prior to pruning or removing any tree. The aim is to secure the

amenity of trees and preserve the existing landscape within our urban environment.

Before you prune or remove a tree, make sure you read all relevant conditions. You can

obtain a copy of the TPO from Council's website www.woollahra.nsw.gov.au or you may

contact Council on 9391-7000 for further advice. Standard Condition: K19

K.11 Dilapidation Report Condition

Please note the following in relation to the condition for a dilapidation report:

a) The dilapidation report will be made available to affected property owners on requested

and may be used by them in the event of a dispute relating to damage allegedly due to

the carrying out of the development.

b) This condition cannot prevent neighbouring buildings being damaged by the carrying

out of the development.

c) Council will not be held responsible for any damage which may be caused to adjoining

buildings as a consequence of the development being carried out.

d) Council will not become directly involved in disputes between the Developer, its

contractors and the owners of neighbouring buildings.

e) In the event that access for undertaking the dilapidation survey is denied the applicant is

to demonstrate in writing to the satisfaction of the Council that all reasonable steps were

taken to obtain access to the adjoining property. The dilapidation report will need to be

based on a survey of what can be observed externally. Standard Advising: K23

K.12 Appeal

Council is always prepared to discuss its decisions and, in this regard, please do not hesitate to

contact Lauren Samuels, Assessment Officer, on (02) 9391 7075.

However, if you wish to pursue your rights of appeal in the Land & Environment Court you

are advised that Council generally seeks resolution of such appeals through a Section 34

Conference, site hearings and the use of Court Appointed Experts, instead of a full Court

hearing.

http://www.woollahra.nsw.gov.au/pdf/Forms/Planning/RefundofSecurity.pdf



DA 14/2013/1 2 September 2013


This approach is less adversarial, it achieves a quicker decision than would be the case

through a full Court hearing and it can give rise to considerable cost and time savings for all

parties involved. The use of the Section 34 Conference approach requires the appellant to

agree, in writing, to the Court appointed commissioner having the full authority to completely

determine the matter at the conference. Standard Condition: K14

Ms L Samuels Mr N Economou

ASSESSMENT OFFICER TEAM LEADER

ANNEXURES

1. Plans and Elevations

2. Technical Services Referral

3. Trees and Landscaping Referral

4. Heritage Referral

H:\Development Control Committee\AGENDAS\2013\Working Agenda\D3 called memo.docx

DEVELOPMENT CONTROL COMMITTEE Meeting held on 16 September 2013

Item No. D3

MEMO TO ALL COUNCILLORS

File No. DA 446/2011/4

Address 81 Ocean Avenue DOUBLE BAY 2028

Proposal New frosted glass window from the ground floor level northern

elevation

Date lodged 25/07/2013

Author MR S TAYLOR – ASSESSMENT OFFICER

Please note that Item D3 was called at the Application Assessment Panel meeting held on 10 September

2013 by Councillor Cavanagh.

Reason for calling item:

- That the DCC should be given the opportunity examine the necessity of the window given the

concerns raised by the neighbouring property holder

Referred to you for action.

Les Windle

Manager - Governance

Annexure: Application Assessment Report Dated: 10 September 2013

81 Ocean Avenue DOUBLE BAY Woollahra Council Application Assessment Panel

DA 446/2011/4 10 September 2013


SECTION 96 APPLICATION ASSESSMENT REPORT

ITEM No. D3

FILE No. DA 446/2011/4

ADDRESS 81 Ocean Avenue, Double Bay

SITE AREA 182.3m2

ZONING Residential 2(b)


EXISTING CONSENT Alterations and additions to existing two storey terrace to the rear

of the property

DATE OF CONSENT 16 December 2011

CONSENT AUTHORITY Woollahra Council (DA)/Land and Environment Court (S96)

PROPOSED

MODIFICATION

New frosted glass window to the ground floor level northern

elevation

DATE S96 LODGED 25 July 2013

APPLICANT Moody and Doyle

OWNER Mr M and Mrs G Newman

AUTHOR

TEAM LEADER

Mr Simon Taylor

Mr David Waghorn

EXECUTIVE SUMMARY

LOCALITY PLAN 1.

Subject site

Objectors

North


DA 446/2011/4 10 September 2013


DELEGATIONS SUMMARY 2.


The application is to be determined by the Application Assessment Panel as

there are seven unresolved objections.

Approval.

SUMMARY OF APPROVED DEVELOPMENT 3.

The approved development involved the following works:

Enclosure of internal courtyard on the northern side of the ground floor

Addition to the rear of the ground floor comprising an enlarged family room and new deck

Removal of three palm trees along the northern boundary of the rear yard to facilitate the

extension to the rear

Addition to the rear of the first floor comprising a new bedroom, WIR and ensuite and rear

balcony

It was approved, subject to the following modifying condition:


The approved plans and the Construction Certificate plans and specification, required

to be submitted to the Certifying Authority pursuant to clause 139 of the Regulation,

must detail the following amendments:

a) The deck at the rear of the ground floor is to be limited to a depth of 2m, as

measured from the rear elevation.

b) The rear setback (and roof) of the first floor is to be increased by 2.5m

c) The privacy screening to the balcony at the rear of the first floor is limited to a

maximum height of 1.8m

d) The three Kentia palms in the rear yard are to be transplanted elsewhere within

the rear yard (refer to Condition E7)

e) A minimum of 18m2 of deep soil landscaping is to be provided within the subject

site. This can be achieved via the provision of a semi porous area within the rear

courtyard/car space although the Kentia palms are to be located within the deep

soil landscaped area

SUMMARY OF PREVIOUS SECTION 96 MODIFICATIONS 4.

DA 446/2011/2 involved the deletion of Condition C1(b) in its entirety. It was refused by the

Development Control Committee in accordance with staff recommendation on 5 November 2012

but later approved, in an amended form, by the Land and Environment Court via consent orders, on

6 February 2013.

DA 446/2011/3 involves a 0.9m addition to the rear first floor balcony, increasing the depth from

0.9m to 1.8m. It is being assessed concurrently and is recommended for approval, subject to

conditions.

SUMMARY OF PROPOSED MODIFICATION 5.

The Section 96 application involves the installation of a fire rated, obscure, horizontally

proportioned kitchen window to the northern elevation of the building.


DA 446/2011/4 10 September 2013


ISSUES SUMMARY 6.

6.1 Primary Issues

Issue Conclusion Section

Light overspill The amount of light penetrating the window and through to the yard of 83 Ocean

Avenue is considered to be minimal and is acceptable on amenity grounds.

20

6.2 Submissions


Loss of privacy With a sill height of 1.8m and unopenable obscure windows, the proposal

does not present any issues with respect to privacy.

17.3

Light and glare The amount of light penetrating the window and through to the yard of 83

Ocean Avenue is considered to be minimal and is acceptable on amenity

grounds.

20

Arises from poor design Given parts 1, 2 and 3 have been granted approval/is recommended for

approval, it is not considered that the proposed application is arising out of

previous poor building design.

12.1

Poor documentation The documentation advanced by the applicant is acceptable for a proper

planning assessment.

Sets a precedent Each application is assessed on its merits.

Affects the usability of

the rear yard of No. 83

The proposal is considered to be acceptable on amenity grounds. 20


SITE AND LOCALITY 7.


DA 446/2011/4 10 September 2013


Physical features

The site is generally rectangular in nature with an irregular frontage to the laneway at the rear.

Topography

The site is relatively flat.


Located on the site is an existing two storey terrace house and a garage at the rear. There are several mature trees in

the rear yard.

Environment

The area comprises a variety of two-storey dwellings, including several terrace houses. Steyne Park is located

opposite the subject site.

RELEVANT PROPERTY HISTORY 8.

Land and Environment Court Appeal

DA446/2011/2 was approved by the Court and involved the deletion of Condition C1 (b) relating to the rear addition.

The issue centred around enclosure and solar access to adjoining properties, both of which are discussed in this

assessment report.

REFERRALS 9.

None.

ASSESSMENT UNDER SECTION 96

The application is assessed under Section 96 of the Environmental Planning and Assessment Act

1979.

SECTION 96AA: MODIFICATION OF A CONSENT GRANTED BY THE COURT 10.

Section 96AA relates to the modification of a development consent granted by the Court. Consent

was granted for DA446/2011/2 by the Land and Environment Court on 6 February 2013.

The considerations in Section 96AA require Council to consider the following:

a) It is satisfied that the development to which the consent as proposed to be modified is

substantially the same development as the development for which the consent was originally

granted and before the consent as originally granted was modified (if at all)

The installation of a window results in a development that is substantially the same development.

b) It has notified the application in accordance with the regulations and Council's DCP for

Advertising and Notification of Development Applications and Applications to Modify

Development Consent

c) It has notified any person who made a submission in respect of the original development

application

Notification occurred to all relevant parties.

d) It has considered any submissions made concerning the proposed modifications

Refer to Section 12.1.


DA 446/2011/4 10 September 2013










6. The regulations






10. Any submissions


ADVERTISING AND NOTIFICATION 11.

11.1 Submissions

In accordance with Parts 3 and 4 of the Woollahra Advertising and Notification DCP, the Section

96 application was notified and advertised from 7 to 21 August 2013. Submissions were received

from:

1. Alex and Lyndall Mueller of 73 Ocean Avenue, Double Bay

2. Georgina Wilson Architects (on behalf of Margaret and Richard Smith of 75 Ocean Avenue,

Double Bay)

3. Richard Smith of 75 Ocean Avenue, Double Bay

4. CC and D Batcock of 77 Ocean Avenue, Double Bay

5. Fred and Anita Wastie of 79 Ocean Avenue, Double Bay

6. Alex Porebski of Porebski Architects (on behalf of the owners of 83 Ocean Avenue, Double

Bay)

7. Joy and Samantha Gleeson of 85 Ocean Avenue, Double Bay


Loss of visual and acoustic privacy

The window has a sill height of 1.8m and is obscure and unopenable. It is not seen to present any

acoustic or visual privacy issues.

Light and glare

Refer to Section 20.


DA 446/2011/4 10 September 2013


Arises due to poor planning with the rear balcony within the first floor level and should not be

allowed

The issue revolves around the addition of the balcony reducing the amount of light to the family

room, which then necessitated the installation of the window. Council does not share this view and

the proposal is assessed on its merits.

Will interrupt the sculpture being established on the northern external face of the wall

The installation of any (exempt) sculpture on the northern external face of the wall facing 83 Ocean

Avenue is a civil matter.

Sets a precedent

The proposal does not represent a precedent. Each application is assessed on its merits based on the

likely impact upon the amenity of surrounding residents.

Will lead to further disruption

The window represents a minor change to the approved plans and it would be possible to install the

window without entering the rear yard of 83 Ocean Avenue.

Will ruin the ambience of the rear yard of 83 Ocean Avenue

The proposal will not have a detrimental impact upon the amenity of the rear yard of 83 Ocean

Avenue.

Poor quality of documentation

No dimensions shown of the sill

The submitted plans are satisfactory for the assessment of the development application. This

includes the sill height of 1.8m.

Will disrupt the consistency of the blank wall

The window is obtrusive and insensitive

The window is not seen to be obtrusive. Rather, it provides an element of articulation.

The window will be overshadowed by landscaping within 83 Ocean Avenue rendering it

unnecessary

This is an irrelevant issue.



has completed the statutory declaration dated 23 August 2013 declaring that the site notice for DA




DA 446/2011/4 10 September 2013


STATE ENVIRONMENTAL PLANNING POLICY (BUILDING SUSTAINABILITY 12.

INDEX: BASIX) 2004

A revised BASIX certificate was not submitted and the addition of one new window has the

potential to alter the outcomes of BASIX. It is highly unlikely, however, that this would affect

compliance with BASIX due to the fact that it is introducing additional light to the living room, it

comprises obscure glazing and is unopenable.

Conditions C3, H1 and II reflect this.

SYDNEY REGIONAL ENVIRONMENTAL PLAN (SYDNEY HARBOUR 13.

CATCHMENT) 2005

The provisions of Clauses 13, 25 and 26 of this instrument and the accompanying DCP for SREP

(Sydney Harbour Catchment) 2005 require Council to consider the visual impact that the Section 96

application will have upon Sydney Harbour and adjoining foreshore areas and the likely impact

upon available views to and from Sydney Harbour.

The Section 96 application is considered to be satisfactory with regard to the provisions of Clauses

13, 25 and 26 of SREP (Sydney Harbour Catchment) 2005 and Clause 5.6 of the DCP for SREP

(Sydney Harbour Catchment) 2005.

WOOLLAHRA LOCAL ENVIRONMENTAL PLAN 1995 14.

14.1 Clause 1.1(2): Aims and Objectives of Woollahra LEP 1995

The proposed modifications remain consistent with the aims and objectives of the Woollahra LEP

1995.

14.2 Clause 8(5): Aims and Objectives of the Zone

The proposed modifications are permissible and remain consistent with the aims and objectives of

the Residential 2(b) zone.

14.3 Clause 12: Height of Buildings

Clause 12 limits development to a maximum height of 9.5m.

Approved Modification Control Complies

Overall Height 9.1m Works to 2.9m 9.5m YES

The proposal remains compliant with the maximum building height prescribed by Clause 12 of

Woollahra LEP 1995.

14.4 Clause 19: Harbour Foreshore Scenic Protection Area

Clause 19 requires Council to consider the likely impact of any proposed modifications upon the

Harbour Foreshore Scenic Protection Area (HFSPA). The works are located to the rear of the site

and will not be visible from Sydney Harbour. The proposal is therefore acceptable with respect to

Clause 24.



DA 446/2011/4 10 September 2013


14.5 Clause 24 Land Adjoining Public Open Space

Clause 24 requires Council to consider any impact of the proposed modifications upon the amenity

of any adjoining public open space and any plan of management applicable to the public open

space. The subject site adjoins Steyne Park but the works are located to the rear of the site and will

not be visible from the park. The proposal is therefore acceptable with respect to Clause 24.

DRAFT AMENDMENTS TO STATUTORY CONTROLS 15.

15.1 Draft Woollahra Local Environmental Plan 2013

Draft Woollahra LEP 2013 is currently on exhibition and has been considered in the assessment of

this application.

WOOLLAHRA RESIDENTIAL DEVELOPMENT CONTROL PLAN 2003 16.

16.1 Section 4.1: Desired Future Precinct Character

The proposal remains acceptable with regard to Section 4.1 of the Woollahra RDCP 2003.

16.2 Section 5.6: Energy Efficiency

The Section 96 application is acceptable with regard to Section 5.6 of the Woollahra RDCP 2003.

16.3 Section 5.8: Acoustic and Visual Privacy

Acoustic Privacy

The proposed window is unopenable and fire rated. It will not pose any unreasonable implications

with respect to additional noise to the adjoining property to the north.

Visual Privacy

C5.8.5 states that windows in habitable rooms with a

direct sightline to habitable room windows in an

adjacent dwelling within 9.0m are to be screened by

(a) being offset, (b) incorporating planter boxes,

louvres or other devices, (c) translucent glazing to

1.5m above floor level, (d) using fixed translucent

glazing or (e) sill heights above 1.5m in height.

The window comprises a sill height of 1.8m as

measured to the ground floor level and obscure

glazing. It is also unopenable. It presents no issues

with respect to overlooking.

Conclusion

The Section 96 application is acceptable with regard

to Section 5.8 of the Woollahra RDCP 2003.


DA 446/2011/4 10 September 2013


16.4 Section 5.11: Harbour Foreshore Development

The proposal is acceptable with regard to Section 5.11 of the Woollahra RDCP 2003.

SECTION 94 CONTRIBUTION PLANS 17.

None applicable.

APPLICABLE ACTS/REGULATIONS 18.

None applicable.

THE LIKELY IMPACTS OF THE MODIFIED PROPOSAL 19.

19.1 Impact upon the rear yard of 83 Ocean Avenue

The proposed window is 3.0m x 0.6m. It will be located adjacent to the rear yard of 83 Ocean

Avenue. Given the obscure (or frosted or translucent) nature, the level of light penetrating through

the window from the living room of the subject site is minimal. It will not adversely impact upon

the amenity of the rear yard of 83 Ocean Avenue.

The northern elevation of the wall is required to be „rendered and painted consistent with the

existing wall‟ in accordance with the resolution of the proceedings in the Land and Environment

Court. The installation of a window within the wall does not affect this condition.

The neighbour at 83 Ocean Avenue has also stated that they have sought to install planting on the

northern wall of 81 Ocean Avenue. Given the wall is within the subject site, the impact of any

vegetation upon the window is seen to be civil matter between the two parties.

All other likely impacts have been addressed elsewhere in the report, or are considered to be

satisfactory and not warrant further consideration.

THE PUBLIC INTEREST 20.


CONCLUSION 21.


DISCLOSURE STATEMENTS 22.






DA 446/2011/4 10 September 2013


RECOMMENDATION: Pursuant to Section 96 of the Environmental Planning and 23.

Assessment Act, 1979

THAT the Council, as the consent authority, modify development consent to Development

Application No. 446/2011/4 for alterations and additions to the existing two storey terrace to the

rear of the property on land at 81 Ocean Avenue, Double Bay, subject to the following:

The addition of Condition A.4 (b):

A.4b)Approved Amended (Section 96) Plans and supporting documents

Those acting upon or under this amended consent must carry out all work and maintain the

use and works in accordance with the approved plans and supporting documents listed in the

original consent, as amended by the amended approved plans and supporting documents as

submitted by the Applicant and to which is affixed a Council stamp “Approved Section 96

Plans” listed below otherwise than modified by further condition(s). Where the plans relate to

amendments, alterations or additions only those works shown in colour or highlighted are

approved.


P1 Architectural Plan Fliphouse Designs 18 July 2013

Note: These plans and supporting documentation may be subject to conditions modifying the development

imposed under section 80A(1)(g) of the Act (refer to conditions which must be satisfied prior to the issue

of any Construction Certificate.) Standard Condition: A6

The modification of Conditions C.3, H.1 and I.1:

C.3 BASIX commitments

The applicant must submit to the Certifying Authority an updated BASIX Certificate in

accordance with the original approved BASIX Certificate No. A123023 with any application

for a Construction Certificate.

Note: Where there is any proposed change in the BASIX commitments the applicant must submit of a new

BASIX Certificate to the Certifying Authority and Council. If any proposed change in the BASIX

commitments are inconsistent with development consent (See: Clauses 145 and 146 of the Regulation)

the applicant will be required to submit an amended development application to Council pursuant to

section 96 of the Act.

All commitments in the BASIX Certificate, including the living room north facing window,

must be shown on the Construction Certificate plans and specifications prior to the issue of

any Construction Certificate.

Note: Clause 145(1)(a1) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying

authority must not issue a construction certificate for building work unless it is satisfied of the following

matters: (a1) that the plans and specifications for the building include such matters as each relevant

BASIX certificate requires," Standard Condition: C7


DA 446/2011/4 10 September 2013


H.1 Fulfillment of BASIX commitments – Clause 154B of the Regulation

All BASIX commitments must be effected in accordance with the relevant BASIX Certificate

as amended.

Note: Clause 154B(2) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying

authority must not issue a final occupation certificate for a BASIX affected building to which this clause

applies unless it is satisfied that each of the commitments whose fulfilment it is required to monitor has

been fulfilled." Standard Condition: H7

I.1 Maintenance of BASIX commitments

All BASIX commitments must be maintained in accordance with the relevant BASIX

Certificate as amended.

Note: This condition affects successors in title with the intent that environmental sustainability measures must be

maintained for the life of development under this consent. Standard Condition: I7

Mr Simon Taylor Mr David Waghorn


ANNEXURES

1. Plans and elevations

24-26 Bay Street DOUBLE BAY Woollahra Council Development Control Committee

DA 54/2012/2 16 September 2013


SECTION 96 APPLICATION ASSESSMENT REPORT

ITEM No. D4

FILE No. DA 54/2012/2

ADDRESS 24-26 Bay Street, Double Bay (Pelicano Restaurant)

SITE AREA 376.8m2

ZONING General Business 3(a)


EXISTING CONSENT To use the footpath for outdoor seating for 8 tables and 9 bench

seats on Bay Street with hours of 12pm-10pm Monday-Sunday.

DATE OF CONSENT 13 August 2012

CONSENT AUTHORITY Woollahra Council

PROPOSED

MODIFICATION

Deletion of Condition A.6 (12 month trial period) and

modification of Condition I.1 to extend outdoor seating hours from

12 midday-10pm (7 days) to 12 midday-12 midnight (Mon-Sat)

and 12 midday-10pm (Sun)

DATE S96 LODGED 10 July 2013

APPLICANT Downstairs Double Bay Pty Ltd

OWNER Ms R Porteous

AUTHOR

TEAM LEADER

Mr D Reynolds

Mr D Waghorn


DA 54/2012/2 16 September 2013


EXECUTIVE SUMMARY

LOCALITY PLAN 1.

DELEGATIONS SUMMARY 2.


The application is to be determined by the Development Control

Committee because it is for a modification of consent under Section

96(2) of the Environmental Planning and Assessment Act, 1979,

which relates to a condition imposed by the Development Control

Committee to address objector concerns.

Approval, subject to the deletion of

Condition A.6 (Trial Period) and no

extension of hours for the outdoor seating

(Condition I.1 retained).

SUMMARY OF APPROVED DEVELOPMENT 3.

The approved development involves the following works:

Use the footpath in the Bay Street road reserve for outdoor seating in conjunction with the

existing restaurant use at 24-26 Bay Street, Double Bay with hours of between 12pm and

10pm, Monday to Sunday.

DA 54/2012 was approved by Council’s Development Control Committee on 13 August 2012. Of

note the consent contained the following conditions:

Condition I.1 permitted the following hours for the outdoor seating:

a) Monday to Sunday and Public Holidays: 12pm to 10pm.

Subject site

Objectors

North


DA 54/2012/2 16 September 2013


Condition A.6 permitted a twelve (12) month trial period for the outdoor seating until 13 August

2013. The 12 month trial period has now lapsed and the footpath seating has been removed.

Conditions D.6, D.7 & D.8 required the modification of development consent DA 762/2006 and

the surrender of development consent DA 181/1990. These consents permitted outdoor seating on

the footpath which differed from that approved by DA 54/2012. In order to remove confusion DA

762/2006 and DA 181/1990 were required to be modified or surrendered by the above conditions.

The applicant has since satisfied the requirements of Conditions D.6, D.7 & D.8 which are now

considered to be redundant and have been deleted in Part 28 of this report.

SUMMARY OF PREVIOUS SECTION 96 MODIFICATIONS 4.

There have been no other previous applications made to Council to modify development consent

DA 54/2012 under Section 96 of the Environmental Planning and Assessment Act, 1979.

SUMMARY OF PROPOSED MODIFICATION 5.

The current application involves the following:

Deletion of Condition A.6 to remove the twelve (12) month trial period and make the

development consent for the outdoor footpath seating area permanent; and

Modify Condition I.1 to extend the hours of use by 2 hours in the evening from 12pm to

10pm (Monday to Sunday) to 12pm to 12 midnight (Monday to Saturday) and 12pm to 10pm

(Sunday). The applicant has requested a further trial period of twelve (12) months for the

extended hours

It is also noted that a Plan of Management has been submitted with the current application. Given

that it has not been changed from that approved with development consent DA 54/2012, except in

relation to the proposed hours of use for the outdoor footpath seating area, the submitted Plan of

Management with the current application has not been recommended for approval.

ISSUES SUMMARY 6.

6.1 Primary Issues


Hours of use Satisfactory, subject to the retention of Condition I.1. 9.1, 16.9 Acoustic privacy Satisfactory, subject to retention of Conditions A.5, I.3, I.4, I.5 and I.6. 16.9 Public interest Satisfactory. 25

6.2 Submissions


Anti-social behaviour Refer to discussion relating to the retention of Conditions A.3, D.5, I.7

and I.9.

12.1, 25

Noise Refer to discussion relating to the retention of Conditions A.5, I.3, I.4,

I.5 and I.6. 12.1, 16.9

Police report required Satisfactory, police referral received by Council. Refer to discussion

relating to the retention of Condition I.1. 9, 12.1, 25

Council not monitoring /

enforcing compliance Refer to discussion relating to Council monitoring and enforcement of

compliance with conditions of development consent. 12.1, 25

Precinct plan required Satisfactory, formulation of a precinct plan lies beyond the scope of the

current application. 12.1

Excessive patron numbers Approval for outdoor footpath seating area calculated on an area basis,

no conditions of consent relating to patron numbers 12.1


DA 54/2012/2 16 September 2013



Lack of security Refer to discussion relating to the retention of Conditions A.3, D.5 and

I.9 which require additional security personnel and monitoring of the

outdoor footpath seating area.

12.1

No food service with

alcohol

Refer to discussion relating to the retention of Condition I.10. 12.1

Trading past 10pm Refer to discussion relating to Council monitoring and enforcement of

compliance with conditions of development consent.

12.1

Waste generation / bottle

disposal

Refer to discussion relating to the retention of Conditions I.3 and I.7. 12.1,

16.10,


SITE AND LOCALITY 7.

Physical features

The site is located on the south-west corner of the junction of Cooper Street and Bay Streets, with Brooklyn Lane to

its rear. It is generally rectangular in shape and has an area of approximately 376.8m2. The site has an eastern

frontage of approximately 12.4 metres to Bay Street, a northern side boundary to Cooper Street measuring

approximately 29.8 metres, a rear western boundary to Brooklyn Lane of approximately 11 metres and a southern

side boundary measuring approximately 29.9 metres.

Topography

The site is relatively flat.


The building on the site is a three storey commercial and retail building with a basement level, which occupies the

entire site. The application relates to the existing use on the basement level which has been approved as a restaurant

tenancy since 1969, and is presently trading under the name ‘Pelicano’.

Subject site

Objector’s property





DA 54/2012/2 16 September 2013


Environment

The site is located within the Double Bay Centre, which forms a part of the mixed retail, commercial and residential

precinct in the locality. There is a mix of residential properties to the south-west, west and north-west of the site,

along Brooklyn Lane, Henrietta Lane, Cooper Street and South Avenue and the Cosmopolitan Apartments to the east

along Knox Street. There are a range of commercial and retail uses along Bay Street. There are several licensed

premises within the immediate vicinity of the site, including the Royal Oak Hotel which is located opposite the site,

on the north-western corner of Bay Street and Cooper Street, Peron’s Cafe to the south at 15/16-22 Bay Street

Double Bay, and Mrs Sippy to the east at 37 Bay Street, Double Bay.

RELEVANT PROPERTY HISTORY 8.

Current use

Restaurant.


The relevant development applications applicable to the site are as follows:

DA 69/58 approved a restaurant use on the premises on 14 July 1969.

DA 77/283 approved an extension of the dining area of the lower ground floor restaurant on 14 February 1978.

DA 90/181 approved restaurant footpath seating consisting of 3 tables and 12 chairs in a 12m2 area, with hours of

operation between 12pm to 3pm and 5:30pm to 11pm, 7 days per week on 13 November 1990. This consent has been

surrendered by the owner of the property.

DA 95/69 approved a change in use of the existing restaurant to incorporate musical entertainment, with hours of

operation between 12pm and 12am Monday to Saturday, and 12pm and 10pm Sunday.

DA 96/178 approved increased trading hours to the existing restaurant to the following: Monday to Thursday 12pm

to 12am, Friday to Saturday 12pm to 2am, and Sunday 12pm to 10pm on 18 November 1996.

DA 98/37 approved an extension of trading hours for the restaurant on 24 March 1998, with the following hours of

operation: Monday and Tuesday 12pm to 12am, Thursday 12pm to 1am, Wednesday, Friday and Saturday 12pm to

2am, and Sunday 12pm to 1.30am.

IDA 378/98 approved an extension of trading hours for the restaurant on 13 November 1998 for a 6 month trial

period, with the following hours of operation: Monday and Tuesday 12pm to 12am, Wednesday 12pm to 2am,

Thursday, Friday and Saturday 12pm to 3am, and Sunday 12pm to 1.30am.

DA 762/2006/1 approved a change of use of Shop 2-3/24-26 Bay Street, Double Bay, to a homewares shop with cafe

and outdoor seating on 15 January 2007. Section 96 modification DA 762/2006/2 approved a modification for

additional tables, chairs and new planter boxes and umbrellas to the footpath on 30 April 2007 consisting of 4 tables

and 12 chairs in a 20m2 area, with the following trading hours: Monday to Wednesday 9am to 5.30pm, Thursday 9am

to 6.30pm, Friday to Saturday 9am to 9pm, and Sunday 12pm to 4pm. Section 96 modifications DA 762/2006/3 and

DA 762/2006/4 approved deletion of conditions and plan references relating to outdoor seating on 16 November

2012.

DA 578/2011/1 for a change of use to a hotel (within the basement level) accommodating live music and functions

for up to 200 people and trading until 12 midnight (Sun-Tue) and 2am (Wed-Sat) was submitted to Council on 14

December 2011 and withdrawn on 8 February 2012.

DA 58/2013/1 approved a change of use of shops 4 and 5 at 24-26 Bay Street from clothing retailer to hairdressing

salon with hours of 7am-10pm (Mon-Sat) and 7am-8pm (Sunday) on 11 April 2013.

DA 208/2013/1 for a change of use of shops 4 and 5 at 24-26 Bay Street from shops to a restaurant used in

conjunction with Pelicano Restaurant to be open from 12 noon to 12 Monday to Saturday and 12 noon to 10pm

Sunday was submitted to Council on 20 May 2013. This application is currently under assessment.

In conclusion, the subject site currently has an approved restaurant use with musical entertainment with the following

hours of operation:


DA 54/2012/2 16 September 2013


Monday and Tuesday 12pm to 12am;

Thursday 12pm to 1am;

Wednesday, Friday and Saturday 12pm to 2am; and

Sunday 12pm to 1.30am.

Pre-Development Application

Not applicable.

Requests for Additional Information

Not applicable.


Not applicable.


Not applicable.

REFERRALS 9.


Environmental Health Officer Satisfactory, subject to the retention of Conditions I.4 and I.7. 1

Property Officer Satisfactory, subject to the deletion of Condition A.6 and

modification of Condition I.1 to permit a twelve (12) month trial

period for hours of use Sunday –Thursday, 12pm-10pm, and Friday-

Saturday, 12pm-11pm.

2

Compliance Officer Satisfactory, subject to the retention of Condition I.1. 3

NSW Police Satisfactory, subject to the deletion of Condition A.6 and the

retention of Condition I.1.

4

9.1 Planning Commentary

Council’s Property Officer has recommended a 12 month trial extension of trading on Friday and

Saturday nights from 10pm to 11pm as opposed to the 12midnight applied for by the applicant for

the outdoor footpath seating area (refer to Annexure 2 of this report). The Property Officer made

this consideration based upon the following:

These two nights are of high commercial value to the viability of the business; and

That neighbouring Double Bay residents are also more likely to be sociably active on Friday

and Saturday nights, and thus tolerant of a proposed 1 hour extension of trading hours.

The recommendation of the Property Officer is not concurred with from a planning perspective.

Based upon advice received from the NSW Licensing Police (Annexure 4) the following is noted:

The social and good order of the neighbourhood would be adversely affected by the extension

of the approved hours of use of the outdoor footpath seating area, causing tension between the

late-night trading licensed premises, local residents and day trading businesses in the locality;

NSW Police observations of patrons being turned away from the basement level premises

based on intoxication and dress codes;

The extension of the hours of use of the outdoor footpath seating area would compromise the

intent of the area for dining with alcohol service ancillary to food service and its

transformation into an outdoor bar area;

That NSW Police have been tasked on numerous occasions to provide pedestrian safety and

crowd control measures as a direct result of patron traffic to and from the premises;

The extension of hours of use of the footpath seating area will result in increased footpath and

road congestion, increase noise generation and increased alcohol-related anti-social

behaviour; and


DA 54/2012/2 16 September 2013


The view of police that the Bay and Cooper Street Precinct is currently at a manageable level

for emergency services and the proposed increase in hours of use would place an additional

strain on police and Council resources.

This advice is generally concurred with and coupled with the reasons discussed in the body of the

report, Condition I.1 is recommended to be retained which no further extension of hours permitted.

ASSESSMENT UNDER SECTION 96

The application is assessed under Section 96 of the Environmental Planning and Assessment Act,

1979.

SECTION 96(2): OTHER MODIFICATIONS 10.

Section 96(2) relates to the modification of a development consent for all other modification types.

The application involves a series of such modifications to the proposed development, as detailed in

Part 5 of this report.

The considerations in Section 96(2) require Council to consider the following:

a) It is satisfied that the development to which the consent as modified relates is substantially the

same development as the development for which consent was originally granted and before

that consent as originally granted was modified (if at all).

Case law (Vacik Pty Ltd v Penrith City Council [Stein J, 24 February 1992, unreported]) guides a

consent authority in assessing whether the consent as modified will be substantially the same

development one needs to compare the before and after situations, and ‘the way in which the

development is to be carried out.”

The proposed development as modified is considered by Council to be substantially the same as to

which consent was originally granted, and that the way in which the development is being carried

out as that approved under development consent DA 54/2012.

It is considered that the proposal satisfies the threshold requirements of Section 96(2)(a) of the

Environmental Planning and Assessment Act, 1979, in that it represents substantially the same

development.

b) It has consulted with the relevant Minister, public authority or approval body (within the

meaning of Division 5) in respect of a condition imposed as a requirement of a concurrence

to the consent or in accordance with the general terms of an approval proposed to be granted

by the approval body and that Minister, authority or body has not, within 21 days after being

consulted, objected to the modification of that consent.

No consultation with any Minister, public authority or approval body was required with regard to

the assessment of the application.

c) It has notified the application in accordance with:

i) The regulations, if the regulations so require, or

ii) A development control plan, if the consent authority is a council that has made

a development control plan that requires the notification or advertising of applications

for modification of a development consent.


DA 54/2012/2 16 September 2013


The application has been notified in accordance with the provisions of Council’s Advertising and

Notification Development Control Plan.

d) It has considered any submissions made concerning the proposed modification within the

period prescribed by the regulations or provided by the development control plan, as the case

may be

Council received four (4) submissions in opposition to the proposed modifications. The content of

these submissions has been addressed in detail in Part 12.1 of this report.

SECTION 96(5): THREATENED SPECIES 11.

Development consent of the kind referred to in Section 79B(3) of the Environmental Planning and

Assessment Act, 1979, or in respect of which a biobanking statement has been issued under Part 7A

of the Threatened Species Conservation Act, 1995, is not to be modified unless:

a) In the case of development referred to in Section 79B (3)-the requirements of Section 79B (3)-

(7) have been complied with in relation to the proposed modification as if the application for

the proposed modification were an application for development consent, or

b) In the case of development in respect of which a biobanking statement has been issued under

Part 7A of the Threatened Species Conservation Act, 1995, the applicant has made an

application for modification of the biobanking statement in relation to the proposal and a new

biobanking statement has been issued or the consent authority is satisfied that the

modification will have no impact on biodiversity values (within the meaning of that Act).

The development consent originally granted did not impact upon a critical habitat or threatened

species and therefore required no concurrence under Section 79B(3) of the Environmental Planning

and Assessment Act, 1979.



Assessment Act, 1979, include the following:

1. The provisions of any environmental planning instrument;

2. The provisions of any proposed instrument that is/has been the subject of public consultation;

3. The provisions of any development control plan;

4. Any planning agreement that has been entered into;

5. Any draft planning agreement that a developer has offered to enter into;

6. The regulations;

7. Any coastal zone management plan;


i) Environmental impacts on the natural and built environments; and

ii) Social and economic impacts;

9. The suitability of the site;

10. Any submissions; and

11. The public interest.


DA 54/2012/2 16 September 2013


ADVERTISING AND NOTIFICATION 12.

12.1 Submissions

In accordance with Parts 3 and 4 of the Woollahra Advertising and Notification Development

Control Plan, the current application was notified and advertised from 24 July 2013 to 7 August

2013. Submissions were received from:

1. Mr J Kimpton, of 1 Henrietta Street, Double Bay.

2. Ms A Oliver, of 3 Henrietta Street, Double Bay.

3. Ms L James, of 3/14 Cooper Street, Double Bay.

4. Ms A McKenzie, of 12 Henrietta Street, Double Bay.


Rubbish generation

Condition I.7 was included in the original development consent in order to ensure waste generated

by the outdoor footpath seating area is managed in an appropriate manner. Subject to the retention

of this condition in the development consent, the proposed modifications are considered to be

satisfactory in this regard.

Excessive noise generation and anti-social behaviour of patrons, particularly on Friday and

Saturday nights

Conditions I.1, I.4, I.5 and I.7 were included in the original development consent in order to

ensure that noise emanating from the use of the proposed footway seating area is properly managed,

that the operation of the footpath seating concludes at 10pm each day and the behaviour of patrons

is monitored and controlled where required to ensure that no nuisance arises as a result of the use of

the footpath.

Furthermore, the approved Plan of Management is considered to satisfactorily address the

management of complaints about the operation of the outdoor footpath seating area, management of

alcohol service and patron behaviour, security, surveillance and management of the premises.

Condition I.9 was included in the development consent in order to ensure the use of the outdoor

footpath seating area achieves compliance with the Plan of Management.

Subject to the retention of these conditions in the development consent, the proposed modifications

are considered to be satisfactory in this regard.

Police report required, anecdotal evidence that drugs are available in the premises

Council received written referral advice from the NSW Licensing Police on 16 August 2013. The

advice therein made no reference to the availability of illicit substances at the premises.

Lack of Council monitoring and enforcement of compliance with conditions

Council’s Compliance section has conducted monitoring of the outdoor footpath seating area during

its operation over the approved twelve (12) month trial period. No notices or orders relating to

breaches of conditions of consent have been issued to the business operator or owner of the

premises in this regard.


DA 54/2012/2 16 September 2013


Precinct plan required for the Bay and Cooper Street licensed premises

The preparation of this type of plan is beyond the scope of the current Section 96 modification

application.

Increased compliance required, costs of monitoring and enforcement levied on licensed

premises

The monitoring of the outdoor footpath seating area by Council and NSW Licensing Police over the

course of the approved twelve (12) month trial period is deemed to be satisfactory in this regard.

Transparency of applicant identity required

The Environmental Planning and Assessment Act, 1979, and the accompanying Environmental

Planning and Assessment Regulation, 2000, do not require identification of business owners, where

an applicant is a corporation or company, beyond requiring the signature of the authorised person of

the particular organisation. The application is considered satisfactory in this regard.

Premises in breach of conditions requiring seating limits, from 32 seats to 40 seats

The plans approved under development consent DA 54/2012/1 were for 8 tables and 9 bench seats,

approved on an area basis and not for either 32 or 40 seats. There are no conditions of development

consent which govern patron numbers in this regard.

Further to the above, Condition I.8 states the following (in part):

Occupation of areas outside the licence area or installation of more than the approved

number of seats and tables may result in fines and or termination of the licence.

The application is considered satisfactory in this regard. Any evidence of instances of breaches of

this condition of consent should be referred to Council’s Compliance section for appropriate action.

No security in place on weekend nights

The approved plan of management and Conditions A.3, D.5 and I.9 requires security personnel to

monitor the operation of the outdoor footpath seating area, including weekend nights. Any evidence

of instances of breaches of these conditions of consent should be referred to Council’s Compliance

section for appropriate action.

Premises in breach of condition requiring food service with alcohol

Condition 1.10 requiring the use of the outdoor seating area to be limited to persons dining and

consuming alcohol with food only was included in the original development consent by the

Development Control Committee at its meeting held on 13 August 2012, with the agreement of the

applicant. It is the opinion of Council’s Assessment Officer that this type of condition is difficult to

enforce, particularly given that the definition of a restaurant in the Woollahra Local Environmental

Plan 1995 places no such restraint on trade on the business operator as follows:

Restaurant means a building or place the principal purpose of which is the provision of food or

beverages (or both) to people for consumption on the premises and that may also provide takeaway

meals and beverages (Emphasis in bold added).


DA 54/2012/2 16 September 2013


Irrespective of the ease (or lack thereof) of enforcing the condition, any evidence of instances of

such breaches of the conditions of consent should be referred to Council’s Compliance section for

appropriate action.

Premises in breach of hours of use of outdoor footpath seating area

Condition I.1 requiring the hours of use of the outdoor footpath seating area has been

recommended to be retained unaltered in the development consent. Any evidence of instances of

breaches of this condition of consent should be referred to Council’s Compliance section for

appropriate action.

Late night bottle disposal

Condition I.3 was included in the original development consent specifically to address this matter.

The condition states the following (in part):

The presentation for collection of glass bottles and similar waste must be undertaken during

daylight hours and must not give rise to the transmission of offensive noise as defined in Condition

I.4 of this development consent.

Any evidence of instances of breaches of this condition of consent should be referred to Council’s

Compliance section for appropriate action.


In accordance with Clause 4.5 of the Woollahra Advertising and Notification Development Control

Plan, the applicant has completed the statutory declaration dated 22 August 2013 declaring that the

site notice for DA 54/2012/2 was erected and maintained during the notification period in

accordance with the requirements of the Development Control Plan.

SYDNEY REGIONAL ENVIRONMENTAL PLAN (SYDNEY HARBOUR 13.

CATCHMENT) 2005



WOOLLAHRA LOCAL ENVIRONMENTAL PLAN 1995 14.

14.1 Clause 1.1(2): Aims and Objectives of the Woollahra Local Environmental Plan 1995

The proposed modifications are considered to be generally consistent with the aims and objectives

of the Local Environmental Plan.

14.2 Clause 16: Development of land uncoloured on the land use map

The proposed modifications are located on land shown as uncoloured on the land use map and

directly adjacent to the general business 3(a) zone. Clause 16(2) of the Local Environmental Plan

states the following:



DA 54/2012/2 16 September 2013


(2) The development of any land referred to in subclause (1) [land shown as uncoloured on the

land use map] may be carried out, but only with the consent of the Council and only if the

Council is of the opinion that the development:

(a) is compatible with the nature of development permissible on neighbouring land and the

development standards applicable to development on neighbouring land, and

(b) is consistent with the objectives of this plan and the objectives of the zoning applying to

neighbouring land.

The proposed modifications are considered to be generally compatible with development

permissible in the general business 3(a) zone and with the applicable development standards for the

adjoining land and, as discussed above, is generally consistent with the objectives of the Local

Environmental Plan and objectives of the general business 3(a) zone outlined below, subject to the

recommendation of this report.

The relevant objectives of the general business 3(a) zone are as follows:

a) To define the main commercial areas within the Council's area which provide for a wide

range of retail and commercial uses, ancillary light industrial uses, entertainment, social and

recreational uses, tourist accommodation and residential development mixed with non-

residential uses,

b) To encourage employment generating uses in accessible localities,

c) To allow for residential development in the form of mixed development so as to encourage

urban consolidation and promote the vitality of business centres, and

d) To control the physical and functional characteristics of business centres in order to minimise

their impact on neighbouring residential lands.

The proposed modifications are acceptable and are consistent with the above-mentioned objectives

of the general business 3(a) zone, subject to the recommendation of this report which serves to

satisfy objective d) outlined above.

14.3 Clause 25: Water, Wastewater and Stormwater

Clause 25 of the Local Environmental Plan requires Council to take into consideration the provision

of adequate stormwater drainage and the provision of adequate water and sewerage services.

The proposed modifications are acceptable in terms of Clause 25(2) of the Local Environmental

Plan.

DRAFT AMENDMENTS TO STATUTORY CONTROLS 15.

The Draft Woollahra Local Environmental Plan 2013 (DWLEP 2013) is currently on exhibition and

has been considered in the assessment of the application. In light of the DWLEP 2013 being

currently subject to public consultation, the certainty that it will be adopted is low, it is not

imminent and has therefore been assigned negligible weight in the assessment of the current

application.

DOUBLE BAY CENTRE DEVELOPMENT CONTROL PLAN 2002 16.

16.1 Part 1.5: Objectives of the Development Control Plan

The objectives of the Double Bay Centre Development Control Plan 2002 are as follows:


DA 54/2012/2 16 September 2013


i To provide appropriate development control for the future development of Double Bay

Centre.

ii To retain and enhance through block connections which allow pedestrians to move freely

within the Double Bay Centre.

iii To develop the particular qualities of different parts of the Double Bay Centre.

iv To encourage a diverse mix of uses in the Double Bay Centre and maintain retail uses at

ground level.

v To conserve and enhance the visual and environmental amenity of all buildings and places of

heritage significance in the Double Bay Centre.

vi To ensure a high standard of architectural and landscape design in any new developments

within the Double Bay Centre.

vii To preserve and enhance the diversity of uses in the Double Bay Centre.

viii To ensure that new development is compatible with the existing built form, and streetscape

and village character.

ix To encourage view sharing and individual privacy.

x To ensure new development is designed to be compatible with the heritage significance of

listed heritage items.

xi To consider the needs of people with access difficulties.

The proposed modifications are considered to be satisfactory with respect to the above objectives,

subject to the recommendation of this report.

16.2 Part 3.1: Structure of Double Bay

The proposed modifications are satisfactory with regard to the structure of Double Bay, including

built form, layout and urban structure.

16.3 Part 3.2: Objectives and Strategies

The proposed modifications are acceptable with regard to the key objectives and strategies for the

Double Bay Centre.

16.4 Section 4.4: Street Character (Bay Street (South))

The key strategies for Bay Street (South) are:

a) Retain the existing modest, lot-related building widths and retail frontages.

b) Provide setback areas at ground level that can be used for outdoor eating or public

circulation.

c) Retain the contributory buildings along Bay Street.

Development should note the following:

a) Provide a variety of roof forms

b) Balconies and rooms should overlook the street

c) Adjustable screening is to be used to protect rooms from low angle summer sun

d) Be partially build to the street alignment with shop fronts, projecting rooms and balconies

e) Outdoor dining at street level is encouraged

The proposed modifications are acceptable with regard to the key strategies for street character of

Bay Street (South), particularly with regard to note e) above, which specifically encourages outdoor

dining at street level.


DA 54/2012/2 16 September 2013


16.5 Section 6.2: Use

The relevant Principle P8 in Part 6.2 of the Development Control Plan states that development

should:

Aim to encourage activities with appropriate levels of noise or other environmental impacts.

The proposed modifications are satisfactory with regard to the above principle, subject to the

retention of Conditions I.1, I.4, I.5, I.7 and I.8 in the development consent. This should ensure that

noise emanating from the use of the proposed footway seating area is properly managed, the

submitted plan of management is complied with, and that the operation of the footpath seating

concludes at 10pm each day.

As discussed in detail in Part 25 of this report with regard to the public interest, the proposed

amendment of Condition I.1 a) in order to increase the hours of use for a twelve (12) month trial

period is not supported, as it is not considered to be consistent with the above principle.

16.6 Part 6.3.8: Heritage + contributory character

The building at 24-26 Bay Street has been identified in the Development Control Plan as a

contributory building with high streetscape value, because of its strong architectural character and

the way in which it addresses the street.

The proposed modifications are considered to be acceptable with regard to the relevant principles

and controls of Part 6.3.8 of the Development Control Plan relating to heritage and contributory

character, as they will not result in any significant adverse effects on the architectural significance

of the subject building.

16.7 Part 6.4.4: Outdoor Eating

The relevant Principle P1 in Part 6.4.4 of the Development Control Plan states that development

should:

Aim to encourage outdoor eating establishments where they provide a pleasant outdoor eating

environment with minimal disturbance to pedestrian circulation.

The proposed modifications are considered satisfactory in relation to this principle, subject to the

retention of Conditions I.1, I.4, I.5, I.7 and I.8 in the development consent. This should ensure that

noise emanating from the use of the proposed footway seating area is properly managed, the

submitted plan of management is complied with, and that the operation of the outdoor seating area

concludes at 10pm each day.

As discussed in detail in Part 25 of this report with regard to the public interest, the proposed

amendment of Condition I.1 a) in order to increase the hours of use for a twelve (12) month trial

period is not supported, as it is not considered to be consistent with the above principle.

The relevant Control C1 states that:

The requirements for footpath restaurants are contained in Council's “Footpath Restaurant

Code” adopted on 19 February 2001.


DA 54/2012/2 16 September 2013


The proposed modifications maintain compliance with Council's Policy and Procedures for

Footway Restaurants and Display of Goods, as discussed in detail in Part 20 of this report. The

application is therefore acceptable with regard to the relevant principles and controls of Part 6.4.4 of

the Development Control Plan relating to outdoor eating.

16.8 Part 6.5.1: Visual Privacy

The proposed modifications raise no significant implications in terms of visual privacy and

therefore the application is acceptable with regard to the relevant principles and controls of Part

6.5.1 Development Control Plan relating to visual privacy.

16.9 Section 6.5.2: Acoustic Privacy

The relevant Principles P1 and P2 in Part 6.5.2 of the Development Control Plan state that

development should:

Ensure adequate acoustic privacy to residential apartments and private open spaces in the centre.

Protect the acoustic privacy of residential neighbours adjacent to the centre.

The relevant Controls C4 and C5 state that:

Restaurants and cafes should be designed to minimise the impact of noise associated with late night

operation, on nearby residents.

Council may require a noise impact assessment report to accompany a development application.

The current application proposes the permanent use of approximately 34 square metres of Council’s

footpath in the Bay Street road reserve for 8 tables and 9 bench seats, and with hours of use for a

trial period of twelve (12) months from between 12pm and 12 midnight, Monday to Saturday and

between 12pm and 10pm Sunday.

No noise impact assessment report was submitted with the current application, nor was one

requested from the applicant.

A number of objectors (as detailed in Part 12.1 of this report) have raised concerns with regard to

adverse impacts on residential amenity, as a result of the concentration of licensed premises in the

locality, their proximity to nearby residential properties in terms of noise disturbance stemming

from the use of the premises, outdoor seating areas, ineffective patron management, crime and anti-

social behaviour, and the potential for exacerbation of these impacts as a result of proposed

modifications.

The site is located among other commercial and non-residential uses in the Double Bay Centre.

Irrespective of this, there are many nearby residential properties located within the vicinity of the

site that may be adversely affected by noise generated by the proposed footpath seating area, in

addition to that generated by other nearby late-trading licensed premises in the locality.


DA 54/2012/2 16 September 2013


The site has an existing development consent to operate as a restaurant contained within the

basement of the building at 24-26 Bay Street for late night trading and musical entertainment (as

detailed in Part 8 of this report). Given the size and capacity of the proposed footpath seating area

and in light of advice received from Council’s Compliance Officer and the NSW Licensing Police,

it is considered that operating from 12pm until to 12am, Monday to Saturday, even on a trial basis,

in such close proximity to residential properties would be excessive and would result in

unacceptably adverse amenity impacts to residents in the area.

By way of comparison, the current hours of operation for the Royal Oak Hotel at 28 Bay Street,

Double Bay are as follows:

Monday to Thursday: 8am to 12am

Friday to Saturday: 8am to 1am

Sunday: 8am to 11pm

The hours of operation for the outdoor areas at the Royal Oak Hotel are as follows:

Uncovered courtyard – Monday to Sunday: 10am to 4pm

Covered outdoor structure – Monday to Sunday: 10am to 10pm

Outdoor seating – Monday to Sunday: 10am to 10pm

The hours of operation for a twelve month trial of extended trading hours (from 8 November 2011)

for Mrs Sippy at 35-39 Bay Street, Double Bay, which has now lapsed and reverted to the

previously approved hours as follows:

Monday to Saturday: 6.30am to 12am

Sunday: 6.30am to 10pm

For the reasons outlined in the assessment made above and for consistency with the operating hours

of the other licensed premises in the locality, it is considered that maintaining the hours of use in

Condition I.1 would be appropriate in the circumstances of the case, which are as follows:

a) Monday to Sunday: 12pm to 10pm

These hours are considered to be relatively consistent with the hours of operation of other premises

within the vicinity of the site.

As mentioned above, advice received from the NSW Licensing Police raises no objections to the

deletion of Condition A.6 but does not support any extension of the hours of use of the seating area

(refer to Annexure 4 of this report).

It is imperative that Conditions I.1, I.4, I.5, I.7 and I.8 are retained in the development consent in

order to ensure that noise emanating from the use of the proposed footway seating area is properly

managed, that the submitted Plan of Management is complied with, and that the operation of the

outdoor seating area concludes at 10pm each day.

Accordingly, for the above reasons the proposed development is considered to be satisfactory in

terms of acoustic privacy and acceptable with regard to the relevant principles and controls of Part

6.5.2 of the Development Control Plan relating to acoustic privacy.


DA 54/2012/2 16 September 2013


16.10 Part 6.6.7: Waste Minimisation

The relevant Principles P1, P2 and P3 in Part 6.6.7 of the Development Control Plan state that

development should:

Avoid, or minimise, the creation of waste.

Separate different waste streams at source.

Encourage reuse and recycling of materials.

The proposed modifications are satisfactory in this respect, subject to the retention of Conditions

D.1, D.4, I.3 and I.7 in the development consent which relate to waste management and

minimisation.

The application is therefore acceptable with regard to the relevant principles and controls of Part

6.6.7 of the Development Control Plan relating to waste minimisation.

16.11 Section 6.7.1: Pedestrian Access and Mobility

The relevant Principle P1 in Part 6.7.1 of the Development Control Plan states that new

development should:

Provide for the needs of people with access difficulties.

The application maintains compliance with the requirements set out in Council’s Policy and

Procedures for Footway Restaurants and Display of Goods by maintaining an approximately 2.8

metre unobstructed area to the Bay Street road reserve and an approximately 6.9 metre unobstructed

area to the Cooper Street road reserve. The unobstructed area allows sufficient space for pedestrian

traffic and sufficient line of sight distance for pedestrians crossing Bay Street and Cooper Street.

Furthermore, the retention of Condition I.8 in the development consent will serve to satisfactorily

reinforce the maintenance of these unobstructed areas, so as to avoid the potential for conflict

between pedestrian traffic and employees and patrons of the restaurant.

Accordingly, for the above reasons the proposed development is considered to be acceptable with

regard to the relevant principles and controls of Part 6.7.1 of the Development Control Plan relating

to pedestrian access and mobility.

PARKING DEVELOPMENT CONTROL PLAN 2011 17.

Part 4.4 of the Parking Development Control Plan 2011 states the following:

Restaurants in the Double Bay Commercial Centre

Council will not require additional off-street car parking or require a contribution under Council’s

Section 94 Contributions Plan for proposed outdoor eating areas on public footpaths subject to

compliance with the requirements of Council’s Footpath Restaurant Code.

Council cannot require the provision of any additional off-street car parking or require any Section

94 contributions in lieu of the provision of parking for the proposed outdoor eating area, as the

proposed modifications comply with the requirements of Council’s Policy and Procedures for

Footway Restaurants and Display of Goods, as detailed below in Part 20 of this report.


DA 54/2012/2 16 September 2013


WASTE NOT DEVELOPMENT CONTROL PLAN 2010 18.

The Waste Not Development Control Plan is applicable to all development and seeks to establish

waste minimisation and sustainable waste management during demolition and construction phases

and throughout the on-going use of the building.

The proposal remains acceptable with regard to the relevant provisions of the Waste Not

Development Control, subject to the retention of the conditions relating to waste management in the

development consent.

ACCESS DEVELOPMENT CONTROL PLAN 2004 19.

The objectives of the Woollahra Access Development Control Plan are:

a) To provide information to increase awareness and understanding of access and mobility

issues

b) To ensure that housing options exist for people with a disability as prescribed by the BCA

through the provision of accessible and adaptable housing

c) To encourage new buildings and associated spaces to be accessible and useable by all people

in the community, including people with a disability

d) To create appropriate levels of access and mobility when alterations and additions are

proposed to existing buildings, including existing commercial and industrial buildings

e) To promote sustainable development by extending the use of new and existing buildings

through the provision of accessible and adaptable housing requirements and by increasing

the number of accessible and adaptable houses in the local government area

f) To provide adequate access for people with a disability to disabled car parking, footpaths,

bus stops, bus shelters, public toilets, parks and other infrastructure and outdoor areas

g) To provide adequate access for people with a disability, including staff, visitors and those

doing business with Council at Council-owned or occupied buildings

For Class 6 buildings, the Access Development Control Plan requires full accessibility. This is

maintained by the proposed modifications and the current application therefore satisfies the intent

of the Woollahra Access Development Control Plan.

POLICY AND PROCEDURES FOR FOOTWAY RESTAURANTS AND DISPLAY OF 20.

GOODS

The application involves approving an outdoor seating for a total area of approximately 34 square

metres on a permanent basis, via deletion of Condition A.6 which imposed a twelve (12) month

trial period. The Policy and Procedures for Footway Restaurants and Display of Goods is therefore

applicable.

The aims of the Policy, as outlined in Section 2, to ensure outdoor activities are:

a) Contribute positively to the streetscape and the social activity of the business centre

Footpath seating areas are generally seen as a positive contribution to the streetscape as it represents

activation of the street. The issues that arise from placing these tables on the footpath should have

minimal negative contributions to the business centre, subject to the retention of the conditions

included in the development consent, particularly in relation to hours of use, noise and the approved

plan of management.


DA 54/2012/2 16 September 2013


b) In the case of a footway restaurant, provides attractive and safe surroundings in which people

may enjoy food and refreshments

Bay Street is a reasonably heavily trafficked pedestrian thoroughfare at various times throughout

the week at night and during the day. Sufficient width is provided in accordance with Council’s

Policy for the Bay Street and Cooper Street footpaths. Subject to the retention of Condition I.8 in

the development consent which serves to ensure that there is no encroachment of tables, chairs and

patrons beyond the proposed outdoor seating area, the application is considered satisfactory in this

regard. As a consequence, it considered that there is a reduced possibility of conflict between

pedestrians and patrons as a result.

c) Does not adversely affect surrounding properties

The use of Council’s footpath in conjunction with the existing restaurant use is perceived by

objectors to adversely affect surrounding properties, as detailed in Part 12.1 of this report.

Consequently, the conditions included in the development consent should be retained in order to

minimise any potential for on-going impacts relating to hours of use of the footpath area, noise,

service of alcohol, rubbish generation, security and patron management. The proposed

modifications are deemed to be satisfactory, subject to the retention of these conditions.

d) Does not obstruct pedestrian traffic

The proposed modifications maintain compliance with the requirements set out in Council’s Policy

and Procedures for Footway Restaurants and Display of Goods, with a 2.8 metre unobstructed area

to the Bay Street road reserve and a 6.9 metre unobstructed area to the Cooper Street road reserve.

This unobstructed area allows sufficient space for pedestrian traffic and sufficient line of sight

distance for pedestrians crossing Bay Street and Cooper Street. Furthermore, the retention of

Condition I.8 in the development consent will serve to satisfactorily reinforce the maintenance of

these unobstructed areas, so as to avoid the potential for conflict between pedestrian traffic and

employees and patrons of the restaurant.

In assessing a development application, the following heads of consideration are outlined in Section

4 of the Policy:

Visual Quality

a) Attractive when viewed in conjunction with the streetscape and make use of good quality and

uniform pattern structures or furniture

The approved tables and bench seats are uniform, rectangular in nature, sit well in relation to the

façade of the building at 24-26 Bay Street and are considered to be satisfactory with regard to the

above control. Condition I.8 (iv) should be retained in the development consent as it requires that

the tables and chairs must be of a high quality and maintained to a high standard on an on-going

basis.

Location and Access

a) Footway restaurants and display of shop goods must not impact adversely on adjacent

commercial or residential premises


DA 54/2012/2 16 September 2013


The seating is located immediately in front of the subject site and there are several other

commercial premises in close proximity to the subject tenancy and the proposed footpath seating

area. Provided that the existing conditions of consent are complied with, it is considered that there

will be minimal impacts on the nearby commercial premises.

There are a number issues with regard to the amenity of residential properties, as outlined elsewhere

in the report but these are addressed by the retention of Conditions I.1, I.4, I.5, I.7 and I.8 relating

to hours of use, noise control, the use of Council’s footpath and maintenance of the approved

footpath seating area.

b) The total available footway width is to be at least 3.6m with a minimum width of 1.8m for

pedestrians. Trees, signs and light poles and other existing or proposed obstructions must to

be taken into account

The total width of the footpath on Bay Street is approximately 6.9 metres.

There is one street sign pole, three steel bollards, two street trees and a light pole within the outdoor

footpath seating area. None of these items conflict with the clear width of the footpath however,

which is maintained at approximately 2.8 metres.

c) Footway restaurants should occupy the inner footpath area adjoining the associated premises

and that the outer area towards the roadway, is reserved for pedestrian circulation.

In exceptional cases, approval may be given to a footway restaurant area on the outer

footpath, adjacent to the kerb, with the inner area reserved for pedestrian circulation. In

such cases, the footway restaurant area will be required to be set back from the kerb a

minimum of 600mm and this boundary will have to be demarcated by railings, planters or

similar barriers.

Council’s Property Officer noted in his original referral advice that:

The Council Footway policy calls for all outdoor dining area to be adjoining the shop windows and

frontage, however because of the footpath shape outside No 24 Bay St it is acceptable for the

proposed seating to be adjacent and setback minimum 0.6m from Bay St kerb.

The approved footpath seating area is setback from the kerb to Bay Street by 600mm and the area is

demarcated by the existing steel bollards, street sign and proposed planters. The current application

is considered satisfactory with regard to the use of the footpath on an on-going basis.

The remaining provisions of the Policy relate to obtaining Roads Act approval, Local Government

Act approval, rental, licence agreements, seating and displays, health and safety requirements and

conduct of business. These provisions will be satisfied post-consent, subject to the deletion of

Condition A.6.

SECTION 94 AND SECTION 94A CONTRIBUTION PLANS 21.

The proposed modifications do not generate any requirement for Section 94 or 94A contributions.


DA 54/2012/2 16 September 2013


APPLICABLE ACTS/REGULATIONS 22.

The proposed modifications have been assessed against the relevant clauses of the Environmental

Planning and Assessment Regulation, 2000. They are considered compliant with the Environmental

Planning and Assessment Regulation, 2000.

The proposed modifications have been assessed against clauses 50 and 51 of the Local Government

(General) Regulation 2005 relating to the approval of applications relating to public roads. The

application is also considered compliant with these clauses.

THE LIKELY IMPACTS OF THE MODIFIED PROPOSAL 23.



THE SUITABILITY OF THE SITE 24.

The site is suitable for the proposed footpath seating, subject to the recommendation made in this

report.

THE PUBLIC INTEREST 25.

In determining whether or not the outdoor footpath seating area and proposed modifications to the

approved hours of use associated with the footpath seating is in the public interest, both the wider

public interest (in this instance the facilities provided to patrons) and the sectionalised public

interest (protecting residential amenity of surrounding residential properties) must be taken into

consideration. In the event that the wider public interest outweighs the sectionalised public interest,

the proposal can be determined to be in the public interest.

In Randall Pty Ltd vs Leichhardt Council (2004) NSWLEC 277, the Commissioner considered the

principles to be applied when assessing an application for an extension or intensification of a use

which may have an adverse impact on residential amenity.

25.1 Is the impact of the operation of the existing use on residential amenity acceptable?

If the answer is no, then an extension or intensification, would be unacceptable unless there is no

overall increase in impact or there are measures proposed which would mitigate the existing

impact.

If the answer is yes, is the impact of the proposed extension or intensification still acceptable?

In answering the first question, it is not sufficient to assume that a use operating in compliance with

its approval has an acceptable impact.

A review of Council’s CRM records reveals no complaints specifically relating to the operation of

the outdoor footpath seating area since the current tenant commenced trading in the premises.

Council’s Compliance Officer has however detailed a number of matters of concern in relation to

the operation of the footpath seating in her referral advice which do not appear in Council’s CRM

records as follows:


DA 54/2012/2 16 September 2013


On 2 April 2013 a letter was received from a resident in Henrietta St concerning frequent and

serious breaches of development conditions by three venues in Bay Street, including Pelicano.

The letter described considerable problems caused by the concentration of late night licensed

venues on one corner at the edge of the residential zone. Apart from the general disturbances

from the huge number of drinkers, particularly on weekend nights, the following breaches of

consent in relation to DA 54/2012 were observed by the resident:

- Pelicano has breached its outdoor seating condition by expanding its seating from the

permitted 32 seats to 40, every night.

- Pelicano continually breaches its obligation to move outdoor patrons off the street at

10.00 pm and remove all furniture by 10.30. When questioned about this, the manager

on duty generally responds “I thought we only had to do it by 11 pm”. - All the establishments are playing amplified music which can be heard a hundred

metres away.

- [my family] have been woken or kept awake by drunken shouting, excessive loud music

or bad behaviour on my street. There is a constant trail of alcohol detritus on the

weekend, with bottles left on doorsteps and in gardens and discarded take-away

containers. Aside from the litter problem, they simply evidence the fact that drinkers are

hanging around neighbouring streets after they’ve been ejected from the pub, and are

frequently loud, foul-mouthed and badly behaved;

On 3 April 2013 an email was received describing the observations of the writer when they

dined at an outdoor table at Pelicano in early February 2013. They were offered a very limited

menu and were advised that the restaurant did not serve tea or coffee but offered a liqueur

with coffee essence or concentrate instead. They noted that after their group left, the table was

assigned to a group of young people who had been waiting nearby for some time. They also

observed that the adjoining table had been occupied by another group of young people and for

the whole duration of the writer’s dinner, they did not see a single meal served at the next

table, only a constant supply of alcohol. Condition 1.10 of development consent DA

54/2012/1 limits the use of the outdoor seating area to persons dining and consuming alcohol

with food only; and

On 20 June 2013, during a telephone conversation with a resident of Cooper Street, the

resident mentioned that Pelicano often has seating on the footpath after 10.00pm and he has

observed on a number of occasions patrons drinking at the tables without a meal or not being

seated. The resident also alleged that the tables and chairs are stored in a removalist-type

truck that is always parked either in Cooper Street or Brooklyn Lane, under a defaced ‘no

parking’ sign.

In light of the above matters, it is considered that operating from 12pm until to 12am, Monday to

Saturday, even on a trial basis, in such close proximity to residential properties would be excessive

and would result in unacceptably adverse amenity impacts to residents in the area. Condition I.1

has therefore been recommended to be retained on the development consent, unaltered in this

regard.

Council’s Compliance Officer has also noted that an on-premises licence for a restaurant was

originally granted in July 1987. The following information is highlighted with regard to the service

of liquor on the premises:


DA 54/2012/2 16 September 2013


This type of licence is subject to a number of requirements under the liquor laws, including

that it must operate as a restaurant preparing and serving meals to the public at all times. As

an additional trading entitlement, a primary service authorisation has been granted by the

Authority to allow liquor to be sold without meals in the restaurant. A primary service

authorisation does not allow a venue with an on-premises licence to operate as a bar. All

restaurants, including those with a primary service authorisation, must operate under the

primary purpose of serving meals at all times. This means that meals must be available at all

times and the restaurant’s kitchen must be operational and have the capacity for the

preparation of meals to patrons. A condition of the primary service authorisation requires the

licensee to maintain monthly records of total liquor sales and total sales of the meals

available on the premises. Those records must be available to police and liquor inspectors on

request.

It is noted that conditions imposed on the liquor licence granted for the premises in November 2012

include the following matters relating to the outdoor footpath seating area:

1. Liquor served in the outdoor seating area on Bay Street may only be served with or ancillary

to food served by the restaurant.

2. Patrons consuming liquor in the outdoor seating area must be directed (by signage and/or

oral instruction) to remain seated while consuming liquor.

3. The service of liquor in the outdoor seating area is to be limited to between 12:00pm and

10:00pm Monday to Sunday.

4. The outdoor seating area is to be cleared of all furniture by 10:30pm.

5. The footpath seating area is to be cleared of any rubbish, glass or debris by 10:45pm on each

day of trading.

With regard to Condition 4, it is noted that while the licence states that furniture must be removed

from Council’s footpath by 10.30pm each night, Condition I.7 of development consent DA 54/2012

requires that all furniture is required to be removed by 10pm each night. The operator of the

premises is obliged to comply with both the consent conditions and the licence in this regard.

The NSW Licensing Police have not detailed any specific instances of in their referral advice (refer

to Annexure 4 of this report), only raising generalised anecdotal evidence which cannot be tested

against records held by the business operator. Furthermore, it must be noted that the Police support

the deletion of Condition A.6 relating to the trial period condition, subject to the retention of

Condition I.1 which relates to limiting the hours of use to 12pm to 10pm, Monday to Sunday. The

impact of the operation of the previously approved seating area on the amenity of the nearby

residential properties is therefore considered to be acceptable in this regard.

On this basis then, the answer to the first question posed is yes.

The impact of the outdoor footpath seating area, subject to compliance with the conditions included

in the recommendation of this report, is unlikely to have any significant impact on the amenity of

the residents of the above-mentioned properties.

In Vinson vs Randwick Council (2005) NSWLEC 142, the following matters were also discussed:

Departing patrons and residential amenity;

Parking; and

Noise from the use of the footpath seating area.

These issues have been included in relation to the planning principle.


DA 54/2012/2 16 September 2013


25.2 What are the adverse impacts of the present trading hours, permitted number of

patrons and permitted activities?

Evidence of anti-social behaviour at or linked to the premises taken from records such as the police

COPS system and/or other police records and/or diaries kept by local residents is preferable to

generalised anecdotal evidence that cannot be tested by the applicant against any records kept by

the operator of the premises.

A similar position applies to complaints about other amenity impacting behaviour such as noise

from people on the premises or its plant and equipment; noise from entertainment provided on the

premises or the noise necessarily arising from patrons such as car doors, engines starting or late-

night conversations in residential streets in the vicinity. Demand for on-street parking may also be

relevant.

In assessing the likely adverse impact of increased trading hours, permitted number of patrons or

permitted activities for licensed premises, the objectors’ fears of adverse impacts, no matter how

genuinely felt, are relevant only to the extent that there is a reasonable probability that impacts will

occur.

With a number of nearby licenced premises operating with late night trading hours and no parking

within any of the existing premises, issues have been raised in submissions to Council in relation to

departing patrons, anti-social behaviour, crime, parking and noise arising from the operations of the

licenced premises in the locality.

The site is currently operating as a restaurant and a review of Council’s CRM records reveals that

no complaints have been received in relation to the operation of the premises trading as ‘Pelicano’

to date. Council’s Compliance Officer has detailed several matters of concern as outlined above but

raises no objection to the deletion of Condition A.6 relating to the originally approved twelve (12)

month trial period, subject to the retention of the previously approved hours of use of the outdoor

seating area to 12pm to 10pm, Monday to Sunday. The NSW Licensing Police have concurred with

this stance.

It is considered that there will be no significant adverse impacts as a result of the proposal to nearby

residential properties, subject to compliance with the conditions included in the recommendation of

this report.

25.3 What measures are in place to address those impacts?

Measures include the number and times of engagement of security personnel, designated duties

performed by them together with patrolling patterns. Identification of and responses to specific

trouble spots should be considered. The method and timing of street litter collection are also

relevant. For premises that provide entertainment, noise control measures that do not require

intervention by an operator may also be relevant.

The approved Plan of Management is considered to satisfactorily address these issues. Conditions

D.5, I.7 and I.8 were included in the development consent in order to ensure that the approved Plan

of Management is implemented, complied with and supplemented by the additional requirements

relating to the provision of additional security personnel and patron monitoring. These were

originally recommended by Council’s Environmental Health Officer and the Licensing Police of

New South Wales.


DA 54/2012/2 16 September 2013


There is no requirement for a Plan of Management for the operation of the premises as a licensed

restaurant under any of the previous consents issued by Council.

There are a number of on-going conditions of consent for the approved restaurant use relating to

waste management and noise control which serve to satisfactorily address the potential for impacts

upon the amenity of the locality relating to noise and litter.

25.4 How are those measures documented?

A well-documented management plan for the premises and its availability to local residents is a

positive factor. The measures that are currently in place to record and respond to complaints made

by residents are also relevant.

The approved Plan of Management for the operation of the outdoor footpath seating area

incorporates a complaints policy and procedure. Furthermore, Condition I.9 in the development

consent requires compliance with the approved Plan of Management.

25.5 Have those measures been successful?

The period during which the control measures (for the current trading hours, permitted number of

patrons and permitted activities) have been operating is relevant to enable assessment of the likely

success of their being applied to extended hours.

If the present management regime has been in operation for a relatively short period, or has been

unsuccessful or not fully implemented, less weight can be given to it than to a management regime

which has succeeded in reducing antisocial behaviour.

The success of the approved Plan of Management can be measured with regard to its operation

during the originally approved twelve (12) month trial period

As discussed above in Part 9.1, the NSW Licensing Police have indicated that, during the present

management regime for the existing restaurant on the site during 2012 and 2013, the following

matters are noted:

NSW Police have been tasked on numerous occasions to provide pedestrian safety and crowd

control measures as a direct result of patron traffic to and from the premises; and

The Bay and Cooper Street Precinct is currently at a manageable level for emergency

services.

Further, the Police have indicated that they raise no objection to the application to delete the trial

period condition, provided that the premises retains the hours of operation of the outdoor footpath

seating area from 12pm to 10pm, Monday to Sunday. Council’s Compliance Officer has effectively

concurred with this stance, stating that complaints have been reduced in number recently.

These matters are addressed by Conditions D.5, I.1 and I.9 which were included in the

development consent and the application is therefore considered to be satisfactory in this regard.


DA 54/2012/2 16 September 2013


25.6 What additional measures are proposed by the applicant or might otherwise be

required?

If any extension of hours, numbers or activities is likely to be acceptable but only subject to

additional measures to reduce noise or anti-social behaviour, a trial period may be appropriate to

test those measures.

The approved Plan of Management outlines a strategy for the outdoor footpath seating area in the

following manner:

Cooperation with the New South Wales Police Force and local community;

Establishment of a complaints policy and procedure;

Establishment of a patron management policy, including behaviour, loitering and responsible

service of alcohol;

Establishment of security personnel protocol and procedures, including ensuring guard

visibility, street patrols and rubbish management;

Surveillance of the premises via CCTV; and

Establishment of management procedures for the premises.

Condition D.5 included in the development consent served to modify the Plan of Management to

limit hours of use specified in Condition I.1, to ensure that additional security are employed to

monitor patrons consuming alcohol at the outdoor seating area and that the outdoor seating area is

specifically monitored by restaurant staff via CCTV. The application is considered to be satisfactory

in this regard.

25.7 Conclusion

As has been demonstrated in the assessment made throughout the body of this report, there is scope

for the outdoor footpath seating area to result in adverse amenity impacts to the nearby residential

properties. The on-going use of Council’s footpath for the restaurant use is supported, subject only

to the conditions specified in the recommendation of this report. In terms of the footpath seating in

this regard, the localised public interest is outweighed by the right of the restaurant to continue the

previously approved use.

In terms of the proposed hours of use, Condition I.1 requires the footpath seating to conclude by

10pm. Many of the issues raised in the submissions made to Council pertain to impacts associated

with late-night trading across the existing licensed premises in the locality. The use of the outdoor

footpath seating area will cease (subject to Condition I.1) well before the late trading licensed

premises cease trading each night in the broader locality. The wider public interest is appropriate in

this regard.

25.8 Further Discussion - Sevenex Pty Ltd v Sydney City Council (2011) NSWLEC 1241

The findings of Commissioner Morris in Sevenex Pty Ltd v Sydney City Council (2011) NSWLEC

1241 in relation to a proposed micro-brewery and restaurant in Surry Hills are noted. In this

instance, the appeal was dismissed on the basis of noise impacts arising from patrons leaving the

premises and when smoking.

With regard to the current application, it is viewed that the above findings are not applicable for the

following reasons:


DA 54/2012/2 16 September 2013


The proposed micro-brewery was a new development, whereas the existing restaurant has had

approval since the late 1960s and outdoor footpath seating areas have previously been

approved by Council to the street frontage of the site for associated café and restaurant uses in

1990, 2006 and 2012;

The proposed micro-brewery was a large, late-night trading establishment, whereas the

operation of the proposed footpath seating area, subject to the retention of Condition I.1 , is

to conclude at 10pm on a daily basis; and

The proposed micro-brewery is located in the ‘transitional zone’ of a mixed uses-zoned

residential area, whereas the subject site is located within the general business 3(a) zone,

which is located within the Double Bay commercial and retail precinct.

CONCLUSION 26.

The proposal is acceptable against the relevant considerations under Section 79C and Section 96 of

the Environmental Planning and Assessment Act, 1979.

DISCLOSURE STATEMENTS 27.

Under Section 147 of the Environmental Planning and Assessment Act, 1979, there have been no




RECOMMENDATION: Pursuant to Section 96 of the Environmental Planning and 28.

Assessment Act, 1979

THAT the Council, as the consent authority, modify development consent to Development

Application No. 54/2012 for outdoor seating for 8 tables and 9 bench seats on Bay Street with

hours of 12pm to 10pm, Monday to Sunday on land at 24-26 Bay Street, Double Bay, in the

following manner:

Delete Condition Nos. A.6, D.6, D.7 and D.8.

Mr D Reynolds Mr D Waghorn


ANNEXURES

1. Environmental health officer referral

2. Property officer referral

3. Compliance officer referral

4. NSW Police referral

62 Edgecliff Road WOOLLAHRA Woollahra Council Development Control Committee

DA 201/2013/1 16 September 2013


DEVELOPMENT APPLICATION ASSESSMENT REPORT

ITEM No. D5

FILE No. DA 201/2013

ADDRESS 62 Edgecliff Road, Woollahra (Reddam House School)

SITE AREA 211m2

ZONING Residential 2(b)

PROPOSAL Change of use to administration associated with existing educational

establishment


DATE LODGED 16/05/2013

APPLICANT Empire Place Investments Pty Ltd

OWNER Empire Place Investments Pty Ltd

AUTHOR

TEAM LEADER

Ms S Richards

Mr D Waghorn

EXECUTIVE SUMMARY

1. LOCALITY PLAN

Subject site

Objectors

North

Submission in

support


DA 201/2013/1 16 September 2013


2. DELEGATIONS SUMMARY


The application is to be determined by the Development Control Committee

because the proposal involves a change of use to a school.

Approval, subject to Conditions.

3. PROPOSAL SUMMARY

The proposal involves a change of use of the subject dwelling house to an administration facility in

association with the existing educational establishment at 70-80 Edgecliff Road (Reddam House

School).

The proposal involves the following works:

Removal of the gable roof and dormer window to the front eastern elevation of the dwelling

and reinstatement of the roof line

New concrete slab, waterproofing and tiling to the laundry floor

Upgrade of the existing stair and handrail to meet BCA requirements

Internal alterations at ground floor level to provide a meeting room, two offices and an office

administration area. Alterations involve removal of a timber wall, removal of the existing

kitchen, existing hand rail and stair to be upgraded, existing front door to swing outwards,

removal of a door between meeting room A and Office 2 and a new opening to the wall

between meeting room A and Office 2

Internal alterations at first floor level to provide two meeting rooms and an office. Works

involve a new opening between meeting room B and meeting room C and relocation of an

existing door

The facility is proposed to provide additional administration space to improve services provided by

the school and there will be no increase in staff or student numbers as a result of the proposal.

Access is to be from Convent Lane at the rear of the site, not via the front door to Edgecliff Road,

which will be used for emergency access only.

Details of the proposal are provided on plans A-01 Rev D and A-02 Rev B dated 10/4/2013 by

Fortey and Grant Architecture.

4. ISSUES SUMMARY

Primary Issues: 4.1

Permissibility

SEPP (Infrastructure) 2007 applies specific development controls to certain types of development.

Division 3 of the SEPP specifically applies to educational establishments.

Clause 28 (2) states as follows:

(2) Development for any of the following purposes may be carried out by any person with

consent on any of the following land:

(b) development for the purpose of the expansion of existing educational

establishments—on land adjacent to the existing educational establishment.


DA 201/2013/1 16 September 2013


Clause 28(2)(b) of the SEPP permits expansion of existing educational establishments on land

adjacent to the existing educational establishment.

Objectors have raised concerns that the proposal is not permissible as the subject site is not adjacent

to the school and therefore SEPP (Infrastructure) 2007 does not apply to the site. Objectors have

also argued that each matter is to be considered on its own merits as to whether it can be considered

to be adjacent.

The applicant has provided legal advice by Conomos Legal dated 8 December 2011 in relation to

the meaning of ―adjacent‖. The advice concludes that the site is adequately proximate to the

existing educational establishment such that there will be no unacceptable planning impacts to

adjoining properties, while providing for adequate integration between the existing and proposed

schools.

Council received its own legal advice from Lindsay Taylor Lawyers dated 25 January 2012 as to

whether the site at 62 Edgecliff Road. Based on the advice received, it is our opinion that ―adjacent‖

has a broader meaning than ―adjoining‖ and the site, in the circumstances of the case, can be

considered to be adjacent.

Legal advice has been provided by the applicant by Conomos Legal dated 13 June 2013 in relation

to whether SEPP (Infrastructure) 2007 is triggered by this application by virtue of the fact that the

administration/office rooms may be viewed as ancillary uses and that the building will not

incorporate ―teaching‖. In summary, the advice concludes that activities that occur in a school are

not limited to ―teaching‖ and the proposal can be considered as an ancillary and essential

component of the school use.

Based on the legal advice provided, it is Council‘s opinion that:

The existing school can be considered to be an ―educational establishment‖ within the

Education Act 1990

The proposed development is permissible if it can be considered to be an expansion of an

educational establishment on adjacent land

The proposed use of 62 Edgecliff Road as administration facilities is considered to be an

ancillary and essential part of the school

In considering the meaning of the word ―adjacent‖ the case of Mayor of Wellington v Mayor

of Lower Hutt (1904) A.C. 773 is referred to where it was stated that adjacent is not confined

to places adjoining and it includes places ―close to‖ or ―near to‖

It is concluded that:

An educational establishment operates at Reddam School at 70-80 Edgecliff Road

The proposal involves an extension of the existing educational establishment site at 62

Edgecliff Road

The site at 62 Edgecliff Road is considered to be adjacent to 70-80 Edgecliff Road, being

located 1 property removed from the existing educational establishment site or approximately

8m

The administration use is considered to be an ancillary and essential part of the school use.

Therefore, the proposal is deemed to be permissible under Clause 28(2)(b) of SEPP (Infrastructure)

2007.


DA 201/2013/1 16 September 2013


Student numbers

Concern has been raised by objectors that the proposal, if approved, will free up more space for

more students within the 70-80 Edgecliff Road site. The representatives acting on behalf of the

school have stated that there will be no increase in numbers of students or teachers at the school

above the cap already imposed.

The school previously provided a statutory declaration dated 17/10/12 stating that the number of

students is 756 and the number of staff is 101. These figures comply with Condition A.5 of DA

514/2010 which limits student numbers to 770 and staff numbers to 104. Compliance was verified

at the time with The Association of Independent Schools NSW. Condition I.5 confirms that no

approval is given for any increase in staff or student numbers under this application.

Traffic, Parking and Access

The following concerns have been raised by residents:

Increased traffic in Convent Lane, Fern Place, Tindale Lane, Icasia Lane and Edgecliff Road

Access is often blocked for residents in Convent Lane

Buses are left parked in Convent Lane blocking emergency access for residents

A proper traffic management plan should be put in place with access to be from Edgecliff

Road

It is necessary to consider the proposal on its merits and in this instance, the application relates to

the provision of new administration facilities for the school and will not result in increased student

or staff numbers above the cap previously imposed. As such, no nexus has been established that

would trigger the requirement to provide additional parking or a student pick-up and drop-off

facility.

Appropriate pick-up and drop-off provision has been provided at 70-80 Edgecliff Road under

DA514/2010 which approved excavation & construction of a multi-purpose hall & drama

classrooms with an additional 7 on-site car parking spaces; landscaping and siteworks on 2 July

2012. The same site provides 9 car parking spaces on the site under a previous Development

Consent (DA 238/2009/1). Works have not yet commenced under this DA.

Given that there will not be an increase in student numbers above the existing cap and the proposal

is for new administration facilities for the existing educational establishment, it is unlikely that the

proposal would result in additional traffic in the rear lane or nearby lanes.

In terms of emergency access, this would be from Edgecliff Road, as per the existing arrangement.

With regard to concerns about traffic within Convent Lane, Clauses 5 and 6 of the Roads Act 1993

permits public and land owner access and movement within a public road. Accordingly, Council

cannot prohibit or restrict such access. If cars or vans are parked illegally in Convent Lane, the

matter may be addressed by Council‘s parking inspectors and Council‘s Compliance Department.

Given that the proposal will not change the existing student numbers or staff above the cap, it is

considered that the proposal is satisfactory in terms of parking, traffic and access. Further,

Council‘s Traffic Engineer has reviewed the proposal and has raised no concern with regard to

traffic and does not require a traffic management plan for this proposal.


DA 201/2013/1 16 September 2013


Submissions 4.2


Definition of ―adjacent‖ The term ―adjacent‖ is considered within this report with reference to

information and legal advice provided by the applicant and Council‘s

lawyers. It is concluded from the advice received that the development

is adjacent to the existing educational establishment.

4.1

Parking and traffic Objectors‘ have raised concern about lack of parking and increased

traffic. The proposal provides additional administration facilities and

will not result in an increase in the number of staff and students above

the existing cap imposed. Accordingly, it is considered that there will be

no change to the parking requirements and no increase in the amount of

traffic as a result of the proposal.

4.1

Security and land values

will be affected if the

proposal is approved

The proposal will not result in additional vehicular traffic and pedestrian

traffic would consist only of administration staff therefore it is unlikely

that there would be any significant increased security risk as a result of

the proposal. Land values are not a relevant consideration under the

Development Application.

8.1

The site may be used as

classrooms

Condition I.6 restricts the use of the building so as not to allow it to be

used as classrooms.

8.1

The proposal will free up

space for additional

students

The applicant has submitted a statement that there will be no increase in

the number of students. Condition I.5 states that no approval is given to

any increase in the number of staff or students under this DA.

8.1

Control over operation and

development of schools

Council planning controls and state legislation control development of

schools. The day to day operation of schools is controlled by state

legislation.

8.1

Works have commenced

without DA approval

Illegal works were carried out previously to the property and these were

required to be removed under Order 280/2004 issued on 18 October

2004 and 16 November 2006. Works under the current proposal have

not commenced.

8.1

Hours of use Hours of use are addressed by Condition I.1. 8.1 and 17

Loss of privacy The proposal is considered to be acceptable with regard to acoustic and

visual privacy, subject to Condition C.1.

13.17

Businesses should not

encroach on the

community feel of the area

The proposed use of the premises as an administration facility ancillary

to the existing educational establishment at 70-80 Edgecliff Road

(Reddam House School) is permissible under SEPP (Infrastructure) 2007

and would not have a significant adverse impact on residents‘ amenity or

the community feel of the area.

8.1

The previous reasons for

refusal should remain

Each application is assessed on its own merits. It is considered that the

current proposal is acceptable and does not warrant amendment or

refusal.

8.1

Noise from existing music

facilities

Noise issues from the existing school buildings is a separate issue and

should be taken up with the school directly and Council‘s Compliance

Department.

8.1

Illegal structures at the

school have not been

removed

This is a separate issue from the current proposal and should be taken up

with the school and Council‘s Compliance Department.

8.1

Music students should be

relocated to the grounds of

the principal‘s residence

The proposal does not involve any relocation of students or change to the

existing cap on the number of students and staff at the school.

8.1


5. SITE AND LOCALITY

Physical features

The subject site is rectangular in shape with an angled frontage to Edgecliff Road and rear boundary to the south to

Convent Lane. The northern frontage to Edgecliff Road measures 6.6m in length, the rear southern boundary to

Convent Lane has a length of 5.6m, the eastern side boundary has a length of 34.9m and the western side boundary

has a length of 36.2m. The site has an area of 211m2.


DA 201/2013/1 16 September 2013


Topography

The site has a slight fall of approximately 1.75m from RL 73 to RL 71.75 from the rear (south) to the front of the site

(north).


A semi-detached dwelling house exists on the site.

Environment

The site is located within the Grafton precinct under the Woollahra HCA DCP 2003. Dwelling houses adjoin the

subject site to the east and west. Convent Lane adjoins the site to the rear (south).

The area is characterised by single and two storey terrace dwellings with a mixture of schools and churches in the

vicinity of the site.

6. RELEVANT PROPERTY HISTORY

Current use

Vacant. Previously residential.


BA652/1996 was issued on 19 November 1996 and involved:

Internal modifications to the ground floor

Enlargement to the rear of the ground floor

A new attic level with a bedroom and bathroom, concentrated behind the principal building form and a gable roof

form to the eastern side elevation.

Following this approval, unauthorised works occurred to the attic level and the premises were subsequently used as

two separate dwellings.

DA652/1996/2 sought to legalise the unauthorised works within the attic level but was subsequently withdrawn as it

did not relate to substantially the same development to that which was approved.

There are several applications that have sought to formally approve the dual occupancy development or rectify

unauthorised works within the first floor level:


DA 201/2013/1 16 September 2013


DA104/2003 was refused on 30 May 2003. It sought strata subdivision of the dwelling but was refused for the

following reason:

The proposed sub-division seeks to approve existing building works which have resulted in two separate residential

units on the subject property and which have not been previously approved by Council. Council is unable to

retrospectively approve these works.

DA223/2005/1 proposed the following works, most of which sought retrospective consent:

The extension of the attic level to match the rear ground floor building area;

The conversion of a dwelling into a residential flat building containing two dwellings each containing 2

bedrooms and 2 bathrooms;

The erection of a new timber deck on the south side of the building

The lowering the height of the roof gables by 450mm; and

One additional off street car parking space at the rear of the site with access from Convent Lane.

It was refused by Development Control Committee on 3 April 2006 for the following reasons:

1. Insufficient information has been lodged to assess the proposal against the provisions of the Woollahra Local

Environmental Plan 1995.

2. Insufficient information (including the lack of a heritage impact statement) has been lodged to assess the

proposal against the provisions of the Woollahra Heritage Conservation Area Development Control Plan.

3. The frontage of the subject site does not meet the minimum requirements for a site to be developed for the

purpose of a residential flat building and a SEPP No. 1 Objection to the development standard in Clause 10B of

the Woollahra Local Environmental Plan 1995 has not been lodged.

4. The FSR of the proposal exceeds the FSR standard of 0.625:1 and a SEPP No. 1 Objection to the development

standard in Clause 11 of the Woollahra Local Environmental Plan 1995 has not been lodged.

5. The proposal has not addressed the provisions of Clauses 93 and 94 of the Environmental Planning and

Assessment Regulations.

6. The proposal is not in the public interest.

Council‘s Compliance Section issued an Order (280/2004) on 18 October 2004 and 16 November 2006 stating the

following:

1. Cease using the premises for any purpose other than as a single dwelling-house as defined by the Woollahra

Local Environmental Plan 1995.

2. Demolish or remove those portions of the building, both internal and external, that were erected without prior

approval of council, in a case where prior approval was required under the Local Government Act 1993 when the

unauthorised building works were commenced, so the building complies fully with building approval BA

692/1996 and development consent DA 96/1525.

3. Do such things as are necessary to restore the premises to the condition in which they were before work was

unlawfully carried out, both internal and external, so the building complies fully with building approval BA

692/1996 and development consent DA 96/1525.

4. Comply fully with development consent DA 96/1525 and building approval BA 652/1996.

Reasons for the Order

1. The premises are currently being used for the purpose of two separate dwellings within the one building (attached

dual occupancy) for which development consent DA 223/2005 was refused on 3 April 2006.

2. Council is satisfied that the former dwelling-house has been unlawfully converted into a dual occupancy, which

is defined in the Woollahra Local Environmental Plan 1995 as:

“2 dwellings on a single allotment of land in the form of either:

(a) one building containing 2 dwellings (known as an attached dual occupancy) or

(b) two separate buildings comprising of an ancillary dwelling and a principle dwelling, (collectively known

as a detached dual occupancy).”

3. The premises have been unlawfully subdivided into two separate occupancies, without development consent,

where prior development consent is required.

4. The use of the premises was recognised as a single dwelling house under building approval BA 652/1996 and

development consent DA 96/1525.

5. The frontage of the subject site does not meet the minimum requirements of Clause 10B of Woollahra Local

Environmental Plan 1995 for the site to be developed for the purpose of a residential flat building, containing

three (3) or fewer dwellings.


DA 201/2013/1 16 September 2013


6. The unlawful change of use from a single dwelling-house to two separate dwellings within the one building

(attached dual occupancy) occurred without addressing or having regard to the fire safety provisions of Clauses

93 and 94 of the Environmental Planning and Assessment Regulations 2000.

7. Development application DA104/2003, for the strata subdivision of two units was refused by Council on 30 May

2003 as the works had been carried out and Council was unable to grant retrospective approval.

8. Portions of the building have been altered without prior approval of Council where prior approval was required

under the Local Government Act 1993 when alteration of those portions of the building commenced.

9. Works have been carried out internally and externally resulting in the unlawful alteration of the building. The

altered building does not comply with the last approvals for the site, building approval BA 652/1996 and

development consent DA 96/1525, which were approved on 19 November 1996.

These approvals included the alteration of two skillion roof additions at the rear of the property to make one large

skillion and the addition of a roof gable, to a maximum height of the existing ridge line, in order to accommodate

a second floor within the roof space of the building. The skillion consisted of corrugated iron so that it would

match the material of the existing skillions in the area. The new room created at ground level accommodated a

kitchen and living and included French doors on the rear elevation that access the rear yard. The attic rooms

accommodated two bedrooms and a bathroom. Overall the approval resulted in a 4 bedroom dwelling (with 1

bedroom being contained within the attic) with formal living area and a combined kitchen, dining and living area

at the rear.

10. The use of the building:

a) Is not consistent with its classification under this Act, the Local Government Act 1993 or the Local Government

Act 1919, and

b) Constitutes or is likely to constitute a life threatening hazard or a threat to public health or public safety, and

c) Is not regulated or controlled under any other Act by a public authority.

DA158/2008/1 for use of the premises as a dual occupancy/residential flat building was withdrawn by the applicant

on 28 March 2008 due to its imminent refusal for the following reasons:

1. Non-compliance with Part 1 of Schedule 1 of the Environmental Planning & Assessment Regulation 2000 as it

relates to the following :

i) Description of the proposal being sought for approval as noted on the Development Application form is

different from that described in the Statement of Environmental Effects; and

ii) Provision of fully dimensioned and detailed development plans;

2. Non-compliance with the development standards for site area and floor space ratio for dual occupancies under

State Environmental Planning Policy No.53 – Metropolitan Residential Development;

3. The proposal seeks use of works which, have been undertaken without development consent, have

effectively/physically created a dual occupancy, whereas these works have no building certification to ensure

they have been correctly and safely carried out;

4. The proposal does not comply with the provisions of Woollahra Heritage Conservation Area DCP 2003 relating

to the following standards :

i) adequate provision of deep soil landscaping;

ii) adequate provisions of private open space for each dwelling;

iii) adequate provision of carparking for each dwelling; and

iv) adequate solar access to the living areas of each dwelling.

BC143/2008 sought to formalise the unauthorised works but was refused on 28 November 2008 for the following

reasons:

1. Matters exist that would entitle the Council under the Act to order the building to be restored to the condition it

was in before the work was unlawfully carried out;

2. Matters exist that would entitle the Council under the Act to take proceedings for an order or injunction requiring

the building to be altered;

3. Matters exist that would entitle the Council under the Act to take proceedings in relation to any encroachment by

the building onto land vested in or under the control of Council

DA160/2009 sought to revert the use of the building to a single dwelling via the establishment of two doors.

However, the doors were proposed to be located in an area of the building that is unauthorised and was refused on 28

September 2009.


DA 201/2013/1 16 September 2013


1. Unauthorised works

The proposed door on the first floor is occurring to an area of the building that is unauthorised and has not been nor

likely to be approved by Council.

2. Future use

The establishment of the doors on the ground and first floor levels does not adequately resolve the issue of use of the

building as a dual occupancy. The dwelling lacks any hallways and access to bedrooms and communal spaces is

required through other bedrooms, which is an undesirable outcome.

A further Notice of Intention (378/2008) was issued in 16 September 2008 relating to other issues within the

building, including smoke alarms and a satellite dish.

DA40/2011 for alterations and additions was approved on 9 May 2011 by the Development Control Committee.

The proposal involved the following works:

Removal of an internal wall within the ground floor to establish a common dining room

Removal of a door and the addition of a wall to establish a hallway within the first floor

Removal of dormer window to the front of the building

New laundry facilities at the rear of the ground floor

DA603/2011 for change of use to educational establishment associated with Reddam House School and alterations to

facilitate use as classrooms was refused by the Development Control Committee on 11 March 2013 for the following

reasons:

Inadequate access to 62 Edgecliff Road, from the existing Reddam House School via Convent Lane

The Committee are not satisfied the subject site is adjacent to the existing Reddam House School

The proposal will have an adverse impact on the amenity of the neighbouring properties

Not in the public‘s interest

The premises is currently vacant and works have commenced to rectify the unauthorised works.

Relevant applications at 70-80 Edgecliff Road:

DA238/2009/1 for construction of an addition to the existing classroom block with roof terrace, excavation to

forecourt for a new multi-purpose hall was approved on 6 October 2009 by the Application Assessment Panel.

DA238/2009/2 for internal and external modifications including new plant room on the roof and solar photovoltaic

collectors on the roof was approved on 13 September 2011 by the Application Assessment Panel.

DA238/2009/3 for deletion of Part A. A.4 b), Part B ii) and Part C in relation to removal of the unauthorised plant

room located on top of the lift overrun was refused on 6 January 2012 under delegated authority. Action is currently

being taken by Council‘s Compliance Department.

DA514/2010/1 for excavation & construction of school multi-purpose hall & drama classrooms with additional 7 on-

site car parking spaces; landscaping and siteworks was approved on 2 July 2012 by the Development Control

Committee.

Pre-DA

N/A.

Requests for Additional Information

A traffic report was requested on 22/5/2013. Technical Services decided on 24/6/2013 that this was no longer

required given that there will be no change to the number of students and staff. No further issues were raised.


N/A


An appeal has been lodged in the Land and Environment Court against the refusal of DA603/2011.


DA 201/2013/1 16 September 2013


7. REFERRALS


Fire Safety Officer Council‘s Fire Safety Officer is satisfied with the proposal, subject to conditions

Refer to conditions.

2

Heritage Officer Council‘s Heritage Officer is satisfied with the proposal. No conditions

required.

3









6. The regulations






10. Any submissions


8. ADVERTISING AND NOTIFICATION

Submissions 8.1

In accordance with Parts 3 and 4 of the Woollahra Advertising and Notification DCP, the

application was notified and advertised from 29/05/2013 to 12/06/2013. Seven submissions were

received from:

In support:

1. Ms W Gray of 64 Edgecliff Road, Woollahra

Objecting:

2. Mr S Dunlop of 2 Fern Place, Woollahra

3. Mr B Haddock of 19 Adelaide Street, Woollahra

4. Ms J Smyth of 40 Edgecliff Road, Woollahra

5. Mr R Weiss of 60 Edgecliff Road, Woollahra

6. Mr R Flitcroft of 9 Fern Place, Woollahra

7. Ms G Vascotto of 10 Fern Place, Woollahra


The subject site is not adjacent to the school and therefore SEPP (Infrastructure) 2007 does

not apply to the site


DA 201/2013/1 16 September 2013


Comment: The issue of whether the site is ―adjacent‖ has been considered in some depth in Section

4.1. Legal advice has been provided by the applicant and Council has sought its own legal advice

on the issue. Based on the advice provided it is Council‘s opinion that the site is ―adjacent‖ to the

existing educational establishment and the proposal is permissible under SEPP (Infrastructure)

2007.

Increase in traffic, parking and pedestrian traffic in Convent Lane, Fern Place, Tindale Lane,

Icasia Lane and Edgecliff Road. Access blocked for residents in Convent Lane

Comment: Issues of traffic and parking have been considered under Sections 4.1, 13.16 and 14.

Given that there will be no increase in the number of staff or students above the cap, it is considered

that there would be no increase in traffic or parking requirements. In terms of illegal parking and

blocking access, this is a matter for the Compliance Department and Council‘s Rangers.

A proper traffic management plan should be put in place with access to be from Edgecliff

Road. The earlier plan under previous approvals has not been developed

Comment: Council‘s Technical Services Engineer does not require a traffic management plan as it

is considered that there would be no increased traffic as a result of the proposal.

It is not in the public interest as the status of all property in the area is questionable if the

proposal is allowed which will affect the security and land values in the area

Comment: The proposal does not alter the status of property in the area. Given that there will be no

additional staff or students above the cap as a result of the proposal, it is considered that security

will not be affected in the area. Land values are not a relevant consideration under Section 79C.

There is no guarantee that the site will not be used as a classroom if it is approved,

particularly as Reddam has a demonstrable history of disregarding conditions of approval. A

condition should be provided prohibiting use of the offices as classrooms

Comment: Condition I.6 requires that the site is to be used for ancillary administration purposes

and classrooms are not permitted. If the school breaches this condition of consent then it will be

open for Council‘s Compliance Department to take appropriate action.

The proposal will free up more space for more students which will result in adverse impact on

the environment including noise traffic and pollution

Comment: The proposal does not involve any increase in student numbers or staff above the cap

imposed under DA514/2010. Condition I.5 confirms that no increase in student or teacher number

is approved under this DA.

The question is raised as to what criteria are being used and by whom, to control schools

development/over-development, the orderly operation of schools and when and how do you

consider enough is enough?

Comment: Council planning controls and state legislation control development of schools. The day

to day operation of schools is controlled by state legislation.


DA 201/2013/1 16 September 2013


Work appears to have already started on the property without DA approval

Comment: Illegal works were carried out previously to the property and these were required to be

removed under Order 280/2004 issued on 18 October 2004 and 16 November 2006. The works

under this Development Application have not been carried out.

The main entrance should be on Edgecliff Road as Convent Lane is already stretched to the

limit with pedestrian and vehicular traffic

Comment: Entrances exist to Edgecliff Road and Convent Lane however, it is proposed that the

Convent Lane entrance will be the main entrance and the Edgecliff Road entrance will be used for

emergencies. The proposal will not increase the number of staff and students at the school and

therefore there will be no increase in vehicular traffic and only a minor increase in pedestrian traffic

as a result of staff walking to the site.

Office hours should be restricted to 8.30am to 5.30pm Monday to Friday

Comment: Condition I.1 permits hours of use to be from 8am to 6pm Monday to Friday. It is

considered that these hours are appropriate for school office use and an unreasonable loss of privacy

would not occur as a result of these hours.

Loss of privacy to 60 Edgecliff Road as a result of meeting rooms B and C. This should be

addressed by some kind of visual privacy screening to the two window. Noise from the school

including early morning deliveries and evening functions

Comment: Condition C.1 addresses visual privacy to 60 Edgecliff Road.

Business use should not encroach on the community feel of the area

Comment: The proposed use of the premises as an administration facility ancillary to the existing

educational establishment at 70-80 Edgecliff Road (Reddam House School) is permissible under

SEPP (Infrastructure) 2007 and would not have a significant adverse impact on residents‘ amenity

or the community feel of the area.

The earlier reasons for refusal of DA603/2011 should remain:

Inadequate access to 62 Edgecliff Road from the existing Reddam House School via

Convent Lane

Lack of satisfaction that the subject site is adjacent to the existing Reddam House

School

The proposal will have an adverse impact on the amenity of the neighbouring properties

Not in the public interest

Comment: Each application is assessed on its own merits. It is considered that the current proposal

is acceptable and does not warrant amendment or refusal.

The school will not apply acoustic measures to its current music facilities

Comment: Noise from the existing school is a separate issue and should be taken up with the school

and Council‘s Compliance Department.


DA 201/2013/1 16 September 2013


The school has been asked to remove an illegal structure on the refurbished classroom block

and this has still not occurred

Comment: This is a separate issue from the current proposal and should be taken up with the school

and Council‘s Compliance Department.

In order to accommodate increasing student numbers, all the music students should be

relocated to the grounds of the principal’s Vaucluse residence provided his neighbours do not

object

Comment: The proposal does not involve any relocation of students or change to the existing cap on

the number of students and staff at the school.

Statutory Declaration 8.2


has completed the statutory declaration dated 14/06/2013 declaring that the site notice for DA



9. STATE ENVIRONMENTAL PLANNING POLICY (INFRASTRUCTURE) 2007

Refer to assessment under Section 4.1 above.

10. SYDNEY REGIONAL ENVIRONMENTAL PLAN (SYDNEY HARBOUR

CATCHMENT) 2005



11. WOOLLAHRA LOCAL ENVIRONMENTAL PLAN 1995

Clause 1.1(2): Aims and Objectives of Woollahra LEP 1995 11.1

The subject site is zoned Residential 2(b). The objectives of the Residential 2(b) zone are as

follows:

(a) To provide for areas of medium and high density residential development in appropriate

locations,

(b) To encourage a diversity of dwelling types and tenure,

(c) To allow non-residential development of low intensity which is compatible with the residential

character and amenity of the locality,

(d) To improve access to and along the Sydney Harbour foreshore where opportunities arise, and

(e) To protect the environmental attributes of the foreshore lands.

The proposed school use is not permissible in the zone. Notwithstanding this, the proposal is

considered to satisfy the requirements of SEPP (Infrastructure) 2007 and therefore is permissible

under this SEPP, as discussed above. Further, Clause 8(1) of SEPP Infrastructure 2007 states that if

there is an inconsistency between this Policy and any other environmental planning instrument,

whether made before or after the commencement of this Policy, this Policy prevails to the extent of

the inconsistency. Accordingly, the provisions of SEPP (Infrastructure) 2007 prevail over the

WLEP 1995 zoning in this instance.



DA 201/2013/1 16 September 2013


Further, the proposed change of use is considered to be an appropriate non-residential development

of low intensity and is compatible with the residential character and amenity of the locality subject

to appropriate management by the school and subject to conditions.

Clause 25: Water, Wastewater and Stormwater 11.2

Clause 25(1) and (2) of WLEP 1995 requires council to consider the provisions of adequate

stormwater drainage and the provisions of adequate water and sewage services.

The proposal has been assessed against the provisions of Clause 25 and is considered to be

satisfactory, subject to conditions.

Clause 27: Development in the Vicinity of a Heritage Item 11.3

Clause 27 requires Council to consider the likely impact of a proposed development upon

surrounding heritage items in the vicinity of the subject site. The subject site is located in the

vicinity of Reddam College formerly Holy Cross Convent and Holy Cross College, at 70 – 80

Edgecliff Road which is listed as a heritage item under Schedule 3 of the Woollahra LEP 1995.

The proposed works are located an adequate distance from the Heritage item so as not to

detrimentally impact on the item. Council‘s Heritage Officer has raised no concern with the

proposal in terms of heritage impact. Accordingly, the proposal is considered to be satisfactory in

this regard.

Clause 28: Heritage Conservation Areas 11.4

Clause 28 requires Council to consider the likely impact of a proposed development upon a heritage

conservation area. The subject site is located within the Woollahra heritage conservation area.

The subject building is a Federation semi-detached house, it is a contributory item and 1 of 2 in a

group. The site is located in the Grafton precinct. The proposed works towards the front of the

building involve removal of a dormer and reinstatement of the existing roof line. These works will

provide a positive contribution to the significance of the heritage conservation area.

No concerns have been raised by Council‘s Heritage Officer. Accordingly, the proposal is

considered to be satisfactory in this regard.

12. DRAFT AMENDMENTS TO STATUTORY CONTROLS

Draft Woollahra Local Environmental Plan 2013 is being exhibited and has been considered in the

assessment of the application.

13. WOOLLAHRA HERITAGE CONSERVATION AREA DEVELOPMENT CONTROL

PLAN 2003

Part 3.1.7: Grafton Precinct Controls 13.1

The building is a Federation semi-detached house, it is a contributory item and it is 1 in a group of 2

located in the Grafton Precinct.


DA 201/2013/1 16 September 2013


The Grafton Precinct includes a combination of uses in buildings originally designed for residential

use. The proposal which involves ancillary administration facilities for the existing school is

considered to be compatible with the mixture of uses in the Grafton Precinct. There are no relevant

Precinct Controls. Accordingly, the proposal is acceptable in terms of Section 3.1.7.

Part 3.2.1: Conservation of Significant Items/Group Significant Items 13.2

Significant Items:

Objectives O1 – O4 aim to ensure that significant buildings, their curtilage and settings are retained,

that alterations and additions do not adversely impact on significant buildings or groups of buildings

and that the works are done in a manner that retains their heritage significance.

C1 requires that significant items are to be retained and conserved.

The proposal retains the existing original external building fabric including front, side and rear

elevations. The proposal involves removal of a dormer window and reinstatement of the existing

roof line, consistent with C1.

C2 states that partial demolition of cross walls to the principal building form will only be permitted

where the original room layout can be interpreted, the main rear wall of the building form remains,

the structural integrity of the building and adjoining building are not compromised and there is no

increase in light levels in the front windows.

The proposal involves internal works including removal of an internal wall and new internal

openings. These works will not detrimentally impact on the subject building given that substantial

internal works have been undertaken previously. The proposal will retain nib walls which will

allow interpretation of the rooms.

C3 states that original forms and materials are to be restored or reconstructed and inappropriate

forms are to be removed.

As discussed above under C1, the proposal retains the existing original external building fabric

including front, side and rear elevations and involves removal of a dormer window and

reinstatement of the existing roof line.

C4 requires that remnant elements of the settings of significant items, including but not limited to

gardens, mature trees, original front fences and contributory landscape elements are to be retained.

No works are proposed to any remnant elements of the setting.

Group significant items:

Controls C5 – C8 aim require distinctive original shared characteristics of a significant group of

buildings to be retained, works are not to dominate or compromise the group, side elevations are to

be retained and details are to be restored or reconstructed.

The proposal involves no works or additions to the front or side elevations, other than removal of a

dormer window and reinstatement of the existing roof line. The proposed works are considered to

be satisfactory with regard to these controls.


DA 201/2013/1 16 September 2013


Accordingly, the proposed works are considered to be acceptable in terms of the above controls and

objectives.

Part 3.2.2: Original Materials, Finishes and Colours 13.3

Original materials and finishes will be retained. Accordingly, the proposal is considered to be

satisfactory in this regard.

Part 3.2.3: Alterations and Additions to Significant Items 13.4

O1 aims to retain the original built form characteristics of significant items.

The proposal retains the original built form characteristics of the dwelling. The proposed removal of

a dormer and reinstatement of the roof on the eastern side to the front of the dwelling will provide a

positive impact.

Accordingly, the proposal is considered to be acceptable with regard to these controls.

Part 3.2.4: Traditional Building Elements 13.5

O1 and O2 aim to retain the original building elements and ensure that alterations and additions

incorporate elements that are compatible.

As discussed above, the original building elements will be retained. The proposal is considered to

be acceptable in terms of Part 3.2.4.

Part 3.2.5: Significant Landscape Elements 13.6

O1 and O2 aims to retain significant landscape elements and to encourage landscaping appropriate

to building type.

C1 states that significant cultural plantings are to be retained in place and incorporated into any

proposed landscape treatment.

C2 states that original and early built landscape elements of gardens including terraces, steps,

pathways and fences are to be retained in place.

C6 Contributory and characteristic street front gardens are to be retained.

The proposal retains the existing front garden and landscape elements in accordance with the above

controls and objectives.

Part 3.2.6: Original Fences, Gates and Retaining Walls 13.7

There will be no alterations to original fences, gates or retaining walls. The proposal is therefore

acceptable with regard to Section 3.2.6 of the Woollahra HCA DCP 2003.

Part 3.3.3: Semi-Detached House Controls 13.8

The subject property is identified as a federation semi-detached house under Part 3.3.3.


DA 201/2013/1 16 September 2013


Semi-detached houses (3.3.3):

O1 aims to ensure that the original symmetrical characteristics of pairs of semi-detached houses are

retained and enhanced.

C1, C4 and C5 state that alterations and additions to one house must not compromise the uniformity

and geometry of the principal or street front elevation, additions to the rear of multi-storey semi-

detached houses are to be limited in height to the gutter line of the principal building line and

additions must not dominate the original principal building form of the building.

The proposal involves removal of a dormer window to the front of the building and reinstatement of

the roof line to match the existing form and materials, consistent with the above controls and

objective.

Part 3.4.1: Buildings and Elements Adjoining Heritage Items 13.9

As discussed above, the subject site is located in the vicinity of Reddam College formerly Holy

Cross Convent and Holy Cross College, at 70 – 80 Edgecliff Road which is listed as a heritage item

under Schedule 3 of the Woollahra LEP 1995.

The proposed works are in excess of 30m away from the heritage item at 70 - 80 Edgecliff Road,

and would not have any significant adverse impact.

Accordingly, the proposal is satisfactory in terms of Part 3.4.1.

Part 3.4.3: Building Location 13.10

The proposal involves no change to building location, site cover or height. There will be no

additional bulk, scale, overshadowing or view loss as a result of the proposal. Accordingly, the

proposal is acceptable in terms of the above controls and objectives.

Part 3.4.4: Building Height, Form, Bulk, Scale and Character 13.11

C1 requires that the height, bulk and scale and dominant ridge forms must be consistent with other

significant items in the streetscape.

The proposal to remove the gable roof and dormer window and reinstatement of the existing roof to

the front of the dwelling is consistent with C1.

C8 requires that sunlight is preserved to the main ground level of private open space of adjacent

properties.

The proposal will not have a detrimental impact on sunlight to neighbouring properties.

C9 and C10 require the retention of views.

There will be no adverse impact on views as a result of the proposal.

Part 3.4.5: Materials, Finishes and Colours 13.12

O1 aims to achieve external materials, finishes and colour schemes appropriate to the context.


DA 201/2013/1 16 September 2013


C1 states that materials, finishes and textures must be appropriate to the building type and should

not copy the characteristics and materials of significant buildings.

The materials and finishes will be retained. Accordingly, the proposal is satisfactory with regard to

the above control and objective.

Part 3.4.6: Open Space and Landscaping 13.13

The proposal does not decrease deep soil landscaping within the site.

Part 3.4.7: Fences, Gates and Retaining Walls 13.14

No change is proposed to any fences or gates. Accordingly, the proposal is acceptable with regard

to Section 3.4.7 of the Woollahra HCA DCP 2003.

Part 3.4.8: Roofs and Skylights 13.15

O1 aims to ensure that roofs fit with the character, physical context and historical background of the

streetscape and the HCA.

C1 requires roofs to be consistent with an adjoining significant building.

C2 requires that roof planes do not incorporate more than 25% transparent material including

skylights or dormers.

The proposal involves removal of the front gable roof form and dormer and reinstatement of the

existing roof line which is consistent with the above controls and objective.

Part 3.4.9: Parking and Garages 13.16

The site provides one car parking space to the rear of the site. No change is proposed to the space

which is accessed from Convent Lane. Accordingly, the proposal is considered to be acceptable

with regard to Part 3.4.9.

Part 3.4.12: Acoustic and Visual Privacy 13.17

O1 requires that adequate acoustic and visual privacy is maintained in the building design.

O2 requires that the impact of new development on the acoustic and visual privacy of existing

development on neighbouring land is minimised.

Concern has been raised by local residents with regard to existing noise levels from the school, loss

of visual privacy and the hours of use.

The proposed use as an administration facility is not likely to give rise to significant noise levels to

the adjoining properties. Objectors have requested that hours of use are to be from 8.30am to 5pm

Monday to Friday, however it is considered that 8am to 6pm would be acceptable given the type of

use proposed, refer to Condition I.1. Further, a condition is recommended with regard to

controlling transmission of offensive noise to any place of different occupancy, refer to Condition

I.3.


DA 201/2013/1 16 September 2013


In terms of visual privacy, Condition C.1 requires windows to meeting rooms B and C to be

provided with fixed obscure glazing to a height of 1.7m from finished floor level in order to

minimise loss of visual privacy to the neighbouring property to the east.

Part 3.4.13: Stormwater Management 13.18

The proposal is considered to be satisfactory with regard to the relevant objectives and performance

criteria stipulated under Section 3.4.13 of WHCADCP 2003.

Part 3.4.16: Access and Mobility 13.19

C1 requires compliance with the requirements of the Woollahra Access DCP. Refer to assessment

under Section 16 below.

14. PARKING DEVELOPMENT CONTROL PLAN 2011

The site provides one existing car parking space to the rear of the site which is accessed from

Convent Lane. There will be no change to this car parking space. The site will be used by existing

staff at Reddam School and therefore it is considered that there will be no additional demand for car

parking or additional traffic as a result of the proposal. Council‘s Technical Services Engineers

have raised no concern with the proposal. Accordingly, the proposal is considered to be satisfactory

with regard to the Parking DCP 2011.

15. WASTE NOT DEVELOPMENT CONTROL PLAN 2010

The Waste Not DCP is applicable to all development and seeks to establish waste minimisation and

sustainable waste management during demolition and construction phases and throughout the on-

going use of the building. This is addressed by conditions of consent.

Site Waste Minimisation and Management Plan (SWMMP) 15.1

Site waste management is addressed by conditions, refer to Conditions E.14, E.15 and I.2.

Controls for All Development 15.2

The proposal is acceptable with regard to the demolition and construction provisions in Sections

3.1.4 and 3.2.4 of the Waste Not DCP 2010.

16. ACCESS DEVELOPMENT CONTROL PLAN 2004

The objectives of the Woollahra Access DCP are:

a) To provide information to increase awareness and understanding of access and mobility issues

b) To ensure that housing options exist for people with a disability as prescribed by the BCA

through the provision of accessible and adaptable housing

c) To encourage new buildings and associated spaces to be accessible and useable by all people

in the community, including people with a disability

d) To create appropriate levels of access and mobility when alterations and additions are

proposed to existing buildings, including existing commercial and industrial buildings

e) To promote sustainable development by extending the use of new and existing buildings

through the provision of accessible and adaptable housing requirements and by increasing the

number of accessible and adaptable houses in the local government area


DA 201/2013/1 16 September 2013


f) To provide adequate access for people with a disability to disabled car parking, footpaths, bus

stops, bus shelters, public toilets, parks and other infrastructure and outdoor areas

g) To provide adequate access for people with a disability, including staff, visitors and those

doing business with Council at Council-owned or occupied buildings

Council has an obligation under the EP&A Act 1979 to consider the provision of accessibility for

people with a disability when assessing development applications. The Building Code of Australia

(BCA) contains provisions related to access for people with a disability. The BCA does not require

access for people with a disability to all buildings, nor to all parts of a building.

The subject proposal (school) falls under Class 9b under the BCA. Table 1 states that alterations or

additions should provide full accessibility subject to the provisions of Clause 94 of the EP&A

Regulation 2000.

Clause 94 (1)(a) and (2) of the EP&A Regulation 2000 applies to development applications for

alterations and additions where the proposed building work, together with any other building work

completed or authorised within the previous three years, represents more than half the total volume

of the building, as it was before any such work was commenced, measured over its roof and

external walls.

In determining a development application to which this clause applies, Council must consider

whether it would be appropriate to require the existing building to be brought into total or partial

conformity with the BCA which may include access requirements.

In this instance, the proposal does not provide equitable access. However, given that the extent of

works is less than half the total volume of the building, the requirement for access is not mandatory

under the above clause.

Whilst the lack of equitable access would result in exclusion of some persons, this has to be

weighed against the impact and cost of providing such access. Given the minor extent of works

being undertaken it is considered to be unreasonable to expect the applicant to provide such access

in the circumstances of the case. Further, the building is existing and the alterations to provide

access, which would include widening of the main entrance, may be impractical. The likely

substantial cost would have to be accommodated by the applicant which may not make the business

viable.

Accordingly, the proposal is considered to be acceptable in this instance with regard to this

requirement.

17. SCHOOL AND COLLEGE DEVELOPMENT CONTROL PLAN 1995

The School and College Development DCP 1995 relates to development (or extensions) involving

private and public schools and colleges.

The aims and objectives of the School and College Development DCP 1995 are:

a) To encourage schools and colleges to prepare strategies (such as a masterplan) for any future

growth and development of their sites and facilities, having regard to the location and size of

buildings, enrolment numbers, the location and size of playground areas and sporting

facilities, parking, traffic and servicing generation and to recognise any limitations to new

development imposed by site characteristics, surrounding development patterns, and the

possible impact on neighbouring land and community resources


DA 201/2013/1 16 September 2013


b) To encourage orderly planning of any proposed changes to the intensity of use of school or

college sites, having regard to the provision of adequate facilities for students and the

amenity of surrounding residents

c) To specify certain matters that will be taken into consideration by the Council when it is

assessing development applications for school or college development

d) To discourage piecemeal growth and development of schools and colleges by expansion of

floor areas or land acquisition without regard to the amenity of adjoining land or adequate

forward planning

e) To encourage the improvement of existing school facilities

The heads of consideration, as outlined in Part 3 of the DCP, are as follows:

Section 7.0: Heritage Conservation

Respond sympathetically to the heritage significance in terms of architectural style and

design, colours, materials, proportions and scale

Preserve existing views and vistas to and from any heritage items

'Open up' new views to a heritage item, especially from public places

Heritage matters related to this proposal have been discussed in detail under Clause 26 -28 of

WLEP 1995 of this report (above). Accordingly, the proposal is considered to be satisfactory with

the relevant objectives and requirements of Heritage Conservation.

Section 8.0: Building and Urban Design

Location of windows, building orientation and scale takes account of the privacy, views, the

character of neighbouring development, access to sunlight and the general amenity enjoyed by the

subject and neighbouring lands

There are no proposed changes to existing windows (except for the removal of a dormer window to

the front) and there is no change to building orientation. Condition C.1 addresses loss of visual

privacy as a result of the existing windows.

Accordingly, the proposal is considered to be acceptable in terms of building and urban design.

Section 9.0: Siting of Development

The development should comply with the minimum setback requirements.

There is no change to the setbacks or siting of the existing development.

Section 10.0 Recreation Areas

Provide the maximum useable recreation area within a site

The site is to be used for administration purposes and will not provide any additional recreation

space for students. Given that there is no proposed increase to the existing number of students and

staff above the cap, no additional recreation area is required to be provided and the proposal is

considered to be acceptable in this regard.


DA 201/2013/1 16 September 2013


Section 11.0: Parking and Servicing

The proposal is considered to be satisfactory. Refer to assessment under Section 4.1 above.

Section 12.0: Traffic and Pedestrians

The proposal is considered to be satisfactory. Refer to assessment under Section 13.16 above.

Section 13.0: Student Numbers

This is addressed under Section 4.1 above.

Section 14.0: Noise Generation

Building siting, orientation, materials, use of screening and landscaping, to minimise noise

transmission to neighbouring lands

The objective in relation to noise generation aims to protect the aural privacy of neighbouring lands.

This has been considered above under Section 13.17.

Section 15.0: Landscaping

The retention of all significant trees located on-site

No damage to any significant trees located on land adjoining the school or college site

Full justification for the removal the removal of a tree

Where appropriate, a landscape buffer should be provided around the periphery of the site to

protect the privacy of neighbours and the retention of children within the site

All existing vegetation on the site will be retained.

Section 16.0: Community or Commercial Use of School or Facilities

The Council will have regard to the nature of the proposed use, the nature of surrounding

development and the constraints of the site and surrounds

The proposed works will provide additional administration facilities to the existing school.

Accordingly, the proposal is considered to be satisfactory with the relevant objectives and

requirements of Community or Commercial use of School or College Facilities.

Section 17.0: Fencing

Existing fences identified as having heritage significance are to be preserved

New development in the vicinity of heritage fences should respond to the design and finish

No change is proposed to any fences on the site.

Section 18.0: Servicing and Utility Installations

Co-ordination in the installation of utility services to minimise disturbances to roads and

footpaths

Disposal of stormwater drainage from the site


DA 201/2013/1 16 September 2013


Control over the amount of hard surfaces

The type and location of garbage receptacle facilities and the waste generating characteristics

Garbage provision is addressed by Condition I.2. The proposal is considered to be satisfactory in

terms of stormwater.

Accordingly, the proposal is considered to be satisfactory with the relevant objectives and

requirements of Servicing and Utility Installations.

Section 19.0: Energy Efficiency

Energy efficient measures, including design and orientation; the use of building materials that

have good insulation characteristics, thermal efficient for heating and/or cooling in lieu of

normal air conditioning equipment and the use of solar systems for heating

The existing building provides adequate natural ventilation and lighting.

The proposal is considered to be acceptable with regard to the objectives and controls of the DCP

for School and College Development.

18. SEPP INFRASTRUCTURE POLICIES

NSW Government Schools Facilities Standards for Landscape, Design and Specification standards.

Clause 32 of the SEPP requires Council to take into consideration the following:

(a) School Facilities Standards—Landscape Standard

(b) Schools Facilities Standards—Design Standard

(c) Schools Facilities Standards—Specification Standard

Landscape Standard:

The proposal complies with relevant principles in the following manner:

The school building and landscape contributes to the street character

The proposal will not alter the existing landscaping on the site and will therefore continue to

have the building read as part of the community

The proposal is considered to be acceptable in terms of the Landscape Standard.

Design Standard:

The proposal addresses the standard as follows:

The internal configuration will allow for cross ventilation to assist with naturally ventilating the

office areas

The proposal involves minor changes to the existing building. The proposal is considered to be

acceptable in terms of the Design Standard.


DA 201/2013/1 16 September 2013


Specification Standard:

The standard details specifications for the tendering and construction of developments. The

proposal is capable of achieving compliance with the standard. Additional specification details will

be provided at Construction Certificate stage.

The proposal is considered to be satisfactory with regard to the standards applicable to the proposal

thereby satisfying the provisions of Clause 32 of the SEPP.

19. SECTION 94 CONTRIBUTION PLANS

Section 94A Contributions Plan 2011

In accordance with Schedule 1, no levy applies given the cost of works.

20. APPLICABLE ACTS/REGULATIONS

Demolition of Structures 20.1

Clause 92 of the Environmental Planning and Assessment Regulation 2000 requires Council to

consider Australian Standard AS 2601-2004: The demolition of structures. This is required in

Condition E.2.

Fire Safety 20.2

An annual fire safety schedule is required to be submitted. This is detailed in Condition I.4.

21. THE LIKELY IMPACTS OF THE PROPOSAL



22. THE SUITABILITY OF THE SITE

The site is suitable for the proposed development.

23. THE PUBLIC INTEREST


24. CONCLUSION


25. DISCLOSURE STATEMENTS






DA 201/2013/1 16 September 2013


26. RECOMMENDATION: Pursuant to Section 80(1) of the Environmental Planning and

Assessment Act 1979

THAT the Council, as the consent authority, grant development consent to Development

Application No. 201/2013 for change of use to administration associated with the existing

educational establishment on land at 62 Edgecliff Road, Woollahra, subject to the following

conditions:

A. General Conditions

A.1 Conditions

Consent is granted subject to the following conditions imposed pursuant to section 80 of the

Environmental Planning & Assessment Act 1979 (―the Act‖) and the provisions of the

Environmental Planning and Assessment Regulation 2000 (―the Regulation‖) such conditions

being reasonable and relevant to the development as assessed pursuant to section 79C of the

Act. Standard Condition: A1

A.2 Definitions

Unless specified otherwise words have the same meaning as defined by the Act, the

Regulation and the Interpretation Act 1987 as in force at the date of consent.

Applicant means the applicant for this Consent.

Approved Plans mean the plans endorsed by Council referenced by this consent as amended

by conditions of this consent.

AS or AS/NZS means Australian Standard® or Australian/New Zealand Standard®,

respectively, published by Standards Australia International Limited.

BCA means the Building Code of Australia as published by the Australian Building Codes

Board as in force at the date of issue of any Construction Certificate.

Council means Woollahra Municipal Council

Court means the Land and Environment Court

Local native plants means species of native plant endemic to Sydney‘s eastern suburbs (see

the brochure titled ―Local Native Plants for Sydney‘s Eastern Suburbs published by the

Southern Sydney Regional Organisation of Councils).

Stormwater Drainage System means all works, facilities and documentation relating to:

The collection of stormwater,

The retention of stormwater,

The reuse of stormwater,

The detention of stormwater,

The controlled release of stormwater; and

Connections to easements and public stormwater systems.

Owner means the owner of the site and successors in title to the site.


DA 201/2013/1 16 September 2013


Owner Builder has the same meaning as in the Home Building Act 1989.

PCA means the Principal Certifying Authority under the Act.

Principal Contractor has the same meaning as in the Act or where a principal contractor has

not been appointed by the owner of the land being developed Principal Contractor means the

owner of the land being developed.

Professional Engineer has the same meaning as in the BCA.

Public Place has the same meaning as in the Local Government Act 1993.

Road has the same mean as in the Roads Act 1993.

SEE means the final version of the Statement of Environmental Effects lodged by the

Applicant.

Site means the land being developed subject to this consent.

WLEP 1995 means Woollahra Local Environmental Plan 1995

Work for the purposes of this consent means:

the use of land in connection with development,

the subdivision of land,

the erection of a building,

the carrying out of any work,

the use of any site crane, machine, article, material, or thing,

the storage of waste, materials, site crane, machine, article, material, or thing,

the demolition of a building,

the piling, piering, cutting, boring, drilling, rock breaking, rock sawing or excavation of

land,

the delivery to or removal from the site of any machine, article, material, or thing, or

the occupation of the site by any person unless authorised by an occupation certificate.

Note: Interpretation of Conditions - Where there is any need to obtain an interpretation of the intent of any

condition this must be done in writing to Council and confirmed in writing by Council. Standard Condition: A2

A.3 Approved Plans and supporting documents

Those with the benefit of this consent must carry out all work and maintain the use and works

in accordance with the plans and supporting documents listed below as submitted by the

Applicant and to which is affixed a Council stamp ―Approved DA Plans‖ unless modified by

any following condition. Where the plans relate to alterations or additions only those works

shown in colour or highlighted are approved.


A-01 Rev D and A-02 Rev B Plans and elevations Fortey & Grant Architecture 10/04/13


DA 201/2013/1 16 September 2013


Note: Warning to Accredited Certifiers – You should always insist on sighting the original Council stamped

approved plans. You should not rely solely upon the plan reference numbers in this condition. Should

the applicant not be able to provide you with the original copy Council will provide you with access to its

files so you may review our original copy of the approved plan.

Note: These plans and supporting documentation may be subject to conditions imposed under section 80A(1)(g)

of the Act modifying or amending the development (refer to conditions which must be satisfied prior to

the issue of any Construction Certificate.) Standard Condition: A5

A.4 Ancillary Aspect of the Development (s80A(2) of the Act)

The owner must procure the repair, replacement or rebuilding of all road pavement, kerb,

gutter, footway, footpaths adjoining the site or damaged as a result of work under this consent

or as a consequence of work under this consent. Such work must be undertaken to Council's

satisfaction in accordance with Council‘s ―Specification for Roadworks, Drainage and

Miscellaneous Works‖ dated February 2012 unless expressly provided otherwise by these

conditions at the owner’s expense.

Note: This condition does not affect the principal contractor's or any sub-contractors obligations to protect and

preserve public infrastructure from damage or affect their liability for any damage that occurs. Standard Condition: A8

B. Conditions which must be satisfied prior to the demolition of any building or

construction

B.1 Construction Certificate required prior to any demolition

Where demolition is associated with an altered portion of, or an extension to an existing

building the demolition of any part of a building is "commencement of erection of building"

pursuant to section 81A(2) of the Act. In such circumstance all conditions in Part C and Part

D of this consent must be satisfied prior to any demolition work. This includes, but is not

limited to, the issue of a Construction Certificate, appointment of a PCA and Notice of

Commencement under the Act.

Note: See Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC 125.

Standard Condition: B1

C. Conditions which must be satisfied prior to the issue of any construction certificate


The approved plans and the Construction Certificate plans and specification, required to be

submitted to the Certifying Authority pursuant to clause 139 of the Regulation, must detail the

following amendments:

a) The windows to meeting rooms B and C at first floor level are to be provided with fixed

obscure glazing to a height of 1.7m from finished floor level in order to minimise loss

of visual privacy to the neighbouring property to the east (60 Edgecliff Road).

Note: The effect of this condition is that it requires design changes and/or further information to be provided

with the Construction Certificate drawings and specifications to address specific issues identified during

assessment under section 79C of the Act.

Note: Clause 146 of the Regulation prohibits the issue of any Construction Certificate subject to this condition

unless the Certifying Authority is satisfied that the condition has been complied with.


DA 201/2013/1 16 September 2013


Note: Clause 145 of the Regulation prohibits the issue of any Construction Certificate that is inconsistent with

this consent. Standard Condition: C4

C.2 Payment of Long Service Levy, Security, Contributions and Fees

The certifying authority must not issue any Part 4A Certificate until provided with the

original receipt(s) for the payment of all of the following levy, security, contributions, and

fees prior to the issue of a construction certificate, subdivision certificate or occupation

certificate, as will apply.

Description Amount Indexed Council

Fee Code

LONG SERVICE LEVY

under Building and Construction Industry Long Service Payments Act 1986 Long Service Levy

http://www.lspc.nsw.gov.au/levy_information/

?levy_information/levy_calculator.stm

Contact LSL

Corporation or use online

calculator

No

SECURITY

under section 80A(6) of the Environmental Planning and Assessment Act 1979

Property Damage Security Deposit -making

good any damage caused to any property of

the Council

$2,000 No T115

Security Administration Fee $185 No T16

TOTAL SECURITY, CONTRIBUTIONS,

LEVIES AND FEES

$2,185 plus any relevant indexed amounts and long service

levy

Building and Construction Industry Long Service Payment

The Long Service Levy under Section 34 of the Building and Construction Industry Long Service Payment Act,

1986, must be paid and proof of payment provided to the Certifying Authority prior to the issue of any

Construction Certificate. The Levy can be paid directly to the Long Services Payments Corporation or to

Council. Further information can be obtained from the Long Service Payments Corporation‘s website

http://www.lspc.nsw.gov.au/ or the Long Service Payments Corporation on 13 14 41.

How must the payments be made?

Payments must be made by:

Cash deposit with Council,

Credit card payment with Council, or

Bank cheque made payable to Woollahra Municipal Council.

The payment of a security may be made by a bank guarantee where:





not acceptable];






The bank‘s obligations are discharged when payment to the Council is made in accordance with the

guarantee or when Council notifies the bank in writing that the guarantee is no longer required. Standard Condition: C5



http://www.lspc.nsw.gov.au/


DA 201/2013/1 16 September 2013


C.3 Professional Engineering Details


Regulation, must include detailed professional engineering plans and/or specifications for all

structural, electrical, hydraulic, hydro-geological, geotechnical, mechanical and civil work

complying with this consent, approved plans, the statement of environmental effects and

supporting documentation.

Detailed professional engineering plans and/or specifications must be submitted to the

Certifying Authority with the application for any Construction Certificate.

Note: This does not affect the right of the developer to seek staged Construction Certificates.

Standard Condition: C36

C.4 Submission of a Site Waste Minimisation and Management Plan (SWMMP)

A SWMMP, prepared in accordance with Council‘s Site Waste Minimisation and

Management Development Control Plan 2010, is to be submitted to Council for approval

prior to a Construction Certificate being issued. Standard Condition: C68

C.5 Building upgrade (Clause 94 of the Regulation)

Council considers pursuant to clause 94 of the Regulation that it is appropriate to require the

existing building to be brought into total or partial conformity with the BCA.

The Construction Certificate plans and specification required to be submitted to the Certifying

Authority pursuant to clause 139 of the Regulation must detail building upgrade works

required by this condition.

The Certifying Authority must be satisfied that such work, to be implemented as part of the

development, will upgrade the building to bring it into compliance with the following

provisions of the BCA as in force at the date of the Construction Certificate application:

a) That a suitable balustrade shall be provided to all exit stairs in accordance with the

requirements of D2.16 of the BCA

b) That all treads and landings of the existing stairways shall be provided with a non-slip

finish or an adequate non-skid strip near the edge of the nosings/landing;

c) That exit signs shall be installed above all required exit doors. Signs shall be

illuminated at all times and generally be of sufficient number that direction of travel to

all exits is clearly visible from any part of the major egress routes. Exit signs shall be

installed to the standard expressed in Clauses E4.5, E4.6 and E4.8 of the BCA;

Note: The Certifying Authority issuing the Construction Certificate has no power to remove the requirement to

upgrade the existing building as required by this condition. Where this conditions specifies compliance

with performance requirements of the BCA the Certifying Authority, subject to their level of accreditation,

may be satisfied as to such matters. Where this condition specifies compliance with prescriptive (deemed

to satisfied) provisions of the BCA these prescriptive requirements must be satisfied and cannot be varied

unless this condition is reviewed under section 82A or amended under section 96 of the Act.

Note: This condition does not set aside the Certifying Authorities responsibility to ensure compliance with

clause 143 of the Regulation in relation to Fire Protection and Structural Adequacy.

Note: AS 4655 Guidelines for fire safety audits for buildings (or any succeeding AS) should form the basis of

any fire upgrade report. Standard Condition: C10


DA 201/2013/1 16 September 2013


C.6 Structural Adequacy of Existing Supporting Structures

A certificate from a professional engineer (Structural Engineer), certifying the adequacy of

the existing supporting structure to support the additional loads proposed to be imposed by the

development, must be submitted with the Construction Certificate application.

Note: This condition is imposed to ensure that the existing structure is able to support the additional loads

proposed. Standard Condition: C35

D. Conditions which must be satisfied prior to the commencement of any development

work

D.1 Compliance with Building Code of Australia

For the purposes of section 80A (11) of the Act, the following conditions are prescribed in


a) that the work must be carried out in accordance with the requirements of the Building

Code of Australia,

b) in the case of residential building work for which the Home Building Act 1989 requires





a) to the extent to which an exemption is in force under the Home Building Regulation

2004,

b) to the erection of a temporary building.

In this condition, a reference to the BCA is a reference to that code as in force on the date the


Note: This condition must be satisfied prior to commencement of any work in relation to the contract of

insurance under the Home Building Act 1989. This condition also has effect during the carrying out of all

building work with respect to compliance with the Building Code of Australia.

Note: All new guttering is to comply with the provisions of Part 3.5.2 of the Building Code of Australia. Standard Condition: D1

D.2 Site Signs

The Principal Contractor or owner builder must ensure that the sign/s required by clauses

98A and 227A of the Regulation is/are erected and maintained at all times. Clause 98A of the Regulation provides:

Erection of signs

For the purposes of section 80A (11) of the Act, the requirements of subclauses (2) and (3) are prescribed

as conditions of a development consent for development that involves any building work, subdivision

work or demolition work.



DA 201/2013/1 16 September 2013


A sign must be erected in a prominent position on any site on which building work, subdivision `work or

demolition work is being carried out:

a. showing the name, address and telephone number of the principal certifying authority for the

work, and

b. showing the name of the principal contractor (if any) for any building work and a telephone

number on which that person may be contacted outside working hours, and

c. stating that unauthorised entry to the work site is prohibited.

Any such sign is to be maintained while the building work, subdivision work or demolition work is being

carried out, but must be removed when the work has been completed.

This clause does not apply in relation to building work, subdivision work or demolition work that is

carried out inside an existing building that does not affect the external walls of the building.

This clause does not apply in relation to Crown building work that is certified, in accordance with section

116G of the Act, to comply with the technical provisions of the State‘s building laws.‖


Signs on development sites

If there is a person who is the PCA or the principal contractor for any building work, subdivision work or

demolition work authorised to be carried out on a site by a development consent or complying development

certificate:

Each such person MUST ensure that a rigid and durable sign showing the person‘s identifying particulars

so that they can be read easily by anyone in any public road or other public place adjacent to the site is

erected in a prominent position on the site before the commencement of work, and is maintained on the

site at all times while this clause applies until the work has been carried out.

Note: Clause 227A imposes a penalty exceeding $1,000 if these requirements are not complied with.

Note: If Council is appointed as the PCA it will provide the sign to the principal contractor or owner builder

who must ensure that the sign is erected and maintained as required by Clause 98A and Clause 227A of

the Regulation. Standard Condition: D12

D.3 Building - Construction Certificate, Appointment of Principal Certifying Authority,

Appointment of Principal Contractor and Notice of Commencement (s81A(2) of the Act)

The erection of the building in accordance with this development consent must not be

commenced until:

a) A construction certificate for the building work has been issued by the consent

authority, the council (if the council is not the consent authority) or an accredited

Certifier, and

b) The person having the benefit of the development consent has:

Appointed a principal certifying authority for the building work, and

Notified the principal certifying authority that the person will carry out the

building work as an owner-builder, if that is the case, and

c) the principal certifying authority has, no later than 2 days before the building work

commences:

Notified the consent authority and the council (if the council is not the consent

authority) of his or her appointment, and

Notified the person having the benefit of the development consent of any critical

stage inspections and other inspections that are to be carried out in respect of the

building work, and


DA 201/2013/1 16 September 2013


d) The person having the benefit of the development consent, if not carrying out the work

as an owner-builder, has:

Appointed a principal contractor for the building work who must be the holder of

a contractor licence if any residential building work is involved, and

Notified the principal certifying authority of any such appointment, and

Unless that person is the principal contractor, notified the principal contractor of

any critical stage inspections and other inspections that are to be carried out in

respect of the building work, and

Given at least 2 days‘ notice to the council of the person‘s intention to commence

the erection of the building.

Note: building has the same meaning as in section 4 of the Act and includes part of a building and any structure

or part of a structure.

Note: new building has the same meaning as in section 109H of the Act and includes an altered portion of, or an

extension to, an existing building.

Note: The commencement of demolition works associated with an altered portion of, or an extension to, an

existing building is considered to be the commencement of building work requiring compliance with

section 82A(2) of the Act (including the need for a Construction Certificate) prior to any demolition

work. See: Over our Dead Body Society Inc v Byron Bay Community Association Inc [2001] NSWLEC

125.

Note: Construction Certificate Application, PCA Service Agreement and Notice of Commencement forms can

be downloaded from Council‘s website www.woollahra.nsw.gov.au .

Note: It is an offence for any person to carry out the erection of a building in breach of this condition and in

breach of section 81A(2) of the Act. Standard Condition: D15

D.4 Notification of Home Building Act 1989 requirements

a) For the purposes of section 80A (11) of the Act, the requirements of this condition are

prescribed as conditions of a development consent for development that involves any

residential building work within the meaning of the Home Building Act 1989.

b) Residential building work within the meaning of the Home Building Act 1989 must not

be carried out unless the principal certifying authority for the development to which the

work relates (not being the council) has given the council written notice of the following

information:

In the case of work for which a principal contractor is required to be appointed:

- the name and licence number of the principal contractor, and

- the name of the insurer by which the work is insured under Part 6 of that

Act,

In the case of work to be done by an owner-builder:

- the name of the owner-builder, and

- if the owner-builder is required to hold an owner-builder permit under that

Act, the number of the owner-builder permit.

c) If arrangements for doing the residential building work are changed while the work is in

progress so that the information notified under subclause (2) becomes out of date,

further work must not be carried out unless the principal certifying authority for the

development to which the work relates (not being the council) has given the council

written notice of the updated information.

d) This clause does not apply in relation to Crown building work that is certified, in

accordance with section 116G of the Act, to comply with the technical provisions of the

State‘s building laws. Standard Condition: D17






DA 201/2013/1 16 September 2013


D.5 Security Fencing, Hoarding and Overhead Protection

Security fencing must be provided around the perimeter of the development site, including

any additional precautionary measures taken to prevent unauthorised entry to the site at all

times during the demolition, excavation and construction period. Security fencing must be the

equivalent 1.8m high chain wire as specified in AS 1725.

Where the development site adjoins a public thoroughfare, the common boundary between

them must be fenced for its full length with a hoarding, unless the least horizontal distance

between the common boundary and the nearest parts of the structure is greater than twice the

height of the structure. The hoarding must be constructed of solid materials (chain wire or the

like is not acceptable) to a height of not less than 1.8 m adjacent to the thoroughfare.

Where a development site adjoins a public thoroughfare with a footpath alongside the

common boundary then, in addition to the hoarding required above, the footpath must be

covered by an overhead protective structure and the facing facade protected by heavy-duty

scaffolding, unless either:

a) The vertical height above footpath level of the structure being demolished is less than

4.0 m; or

b) The least horizontal distance between footpath and the nearest part of the structure is

greater than half the height of the structure.

The overhead structure must consist of a horizontal platform of solid construction and vertical

supports, and the platform must:

a) Extend from the common boundary to 200mm from the edge of the carriageway for the

full length of the boundary;

b) Have a clear height above the footpath of not less than 2.1 m;

c) Terminate 200mm from the edge of the carriageway (clearance to be left to prevent

impact from passing vehicles) with a continuous solid upstand projecting not less than

0.5 m above the platform surface; and

d) Together with its supports, be designed for a uniformly distributed live load of not less

than 7 kPa.


DA 201/2013/1 16 September 2013


The principal contractor or owner builder must pay all fees associated with the application

and occupation and use of the road (footway) for required hoarding or overhead protection.

The principal contractor or owner builder must ensure that Overhead Protective Structures

are installed and maintained in accordance with WorkCover NSW Code of Practice -

Overhead Protective Structures, gazetted 16 December 1994, as commenced 20 March 1995.

This can be downloaded from:

http://www.workcover.nsw.gov.au/Publications/LawAndPolicy/CodesofPractice/oheadprotstr

ucts.htm.

Security fencing, hoarding and overhead protective structure must not obstruct access to

utilities services including but not limited to man holes, pits, stop valves, fire hydrants or the

like.

Note: The principal contractor or owner must allow not less than two (2) weeks from the date of making a

hoarding application for determination. Any approval for a hoarding or overhead protection under the

Roads Act 1993 will be subject to its own conditions and fees.

Standard Condition: D11

E. Conditions which must be satisfied during any development work

E.1 Compliance with Building Code of Australia

For the purposes of section 80A (11) of the Act, the following condition is prescribed in


a) That the work must be carried out in accordance with the requirements of the Building

Code of Australia,

b) In the case of residential building work for which the Home Building Act 1989 requires





a) To the extent to which an exemption is in force under clause 187 or 188, subject to the

terms of any condition or requirement referred to in clause 187 (6) or 188 (4) of the

Regulation, or

b) To the erection of a temporary building.

In this clause, a reference to the BCA is a reference to that Code as in force on the date the


Note: All new guttering is to comply with the provisions of Part 3.5.2 of the Building Code of Australia.






DA 201/2013/1 16 September 2013


E.2 Compliance with Australian Standard for Demolition

Demolition of buildings and structures must comply with Australian Standard AS 2601—

2001: The Demolition of Structures, published by Standards Australia, and as in force at 13

September 2001. Standard Condition: E2

E.3 Requirement to notify about new evidence

Any new information which comes to light during remediation, demolition or construction

works which has the potential to alter previous conclusions about site contamination, heritage

significance, threatened species or other relevant matters must be immediately notified to

Council and the Principal Certifying Authority.. Standard Condition: E4

E.4 Critical Stage Inspections

Critical stage inspections must be called for by the principal contractor or owner builder as

required by the PCA, any PCA service agreement, the Act and the Regulation.

Work must not proceed beyond each critical stage until the PCA is satisfied that work is

proceeding in accordance with this consent, the Construction Certificate(s) and the Act.

critical stage inspections means the inspections prescribed by the Regulations for the

purposes of section 109E(3)(d) of the Act or as required by the PCA and any PCA Service

Agreement.

Note: The PCA may require inspections beyond mandatory critical stage inspections in order that the PCA be

satisfied that work is proceeding in accordance with this consent.

Note: The PCA may, in addition to inspections, require the submission of Compliance Certificates, survey

reports or evidence of suitability in accordance with Part A2.2 of the BCA in relation to any matter

relevant to the development. Standard Condition: E5

E.5 Hours of Work –Amenity of the neighbourhood

a) No work must take place on any Sunday or public holiday,

b) No work must take place before 7am or after 5pm any weekday,

c) No work must take place before 7am or after 1pm any Saturday,

d) The following work must not take place before 9am or after 4pm any weekday, or

before 9am or after 1pm any Saturday or at any time on a Sunday or public holiday;

i) Piling;

ii) Piering;

iii) Rock or concrete cutting, boring or drilling;

iv) Rock breaking;

v) Rock sawing;

vi) Jack hammering; or

vii) Machine excavation,

e) No loading or unloading of material or equipment associated with the activities listed in

part d) above must take place before 9am or after 4pm any weekday, or before 9am or

after 1pm any Saturday or at any time on a Sunday or public holiday.

f) No operation of any equipment associated with the activities listed in part d) above must

take place before 9am or after 4pm any weekday, or before 9am or after 1pm any

Saturday or at any time on a Sunday or public holiday


DA 201/2013/1 16 September 2013


g) No rock excavation being cutting, boring, drilling, breaking, sawing , jack hammering

or bulk excavation of rock, must occur without a 15 minute break every hour.

This condition has been imposed to mitigate the impact of work upon the amenity of the

neighbourhood. Impact of work includes, but is not limited to, noise, vibration, dust, odour,

traffic and parking impacts.

Note: The use of noise and vibration generating plant and equipment and vehicular traffic, including trucks in

particular, significantly degrade the amenity of neighbourhoods and more onerous restrictions apply to

these activities. This more invasive work generally occurs during the foundation and bulk excavation

stages of development. If you are in doubt as to whether or not a particular activity is considered to be

subject to the more onerous requirement (9am to 4pm weekdays and 9am to 1pm Saturdays) please

consult with Council.

Note: Each and every breach of this condition by any person may be subject to separate penalty infringement

notice or prosecution.

Note: The delivery and removal of plant, equipment and machinery associated with wide loads subject to RTA

and Police restrictions on their movement out side the approved hours of work will be considered on a

case by case basis.

Note: Compliance with these hours of work does not affect the rights of any person to seek a remedy to

offensive noise as defined by the Protection of the Environment Operations Act 1997, the Protection of

the Environment Operations (Noise Control) Regulation 2000.

Note: EPA Guidelines can be down loaded from http://www.epa.nsw.gov.au/noise/nglg.htm .

Note: see http://www.epa.nsw.gov.au/resources/ci_build_sheet7.pdf Standard Condition: E6

E.6 Public Footpaths – Safety, Access and Maintenance

The principal contractor or owner builder and any other person acting with the benefit of this

consent must:

a) Not erect or maintain any gate or fence swing out or encroaching upon the road or the

footway.

b) Not use the road or footway for the storage of any article, material, matter, waste or

thing.

c) Not use the road or footway for any work.

d) Keep the road and footway in good repair free of any trip hazard or obstruction.

e) Not stand any plant and equipment upon the road or footway.

f) Provide a clear safe pedestrian route a minimum of 1.5m wide.

g) Protect street name inlays in the footpath which are not to be removed or damaged

during development.

This condition does not apply to the extent that a permit or approval exists under the section

73 of the Road Transport (Safety and Traffic Management) Act 1999, section 138 of the

Roads Act 1993 or section 94 of the Local Government Act 1993 except that at all time

compliance is required with:

a) Australian Standard AS 1742 (Set) Manual of uniform traffic control devices and all

relevant parts of this set of standards.

b) Australian Road Rules to the extent they are adopted under the Road Transport (Safety

and Traffic Management) (Road Rules) Regulation 1999.

Note: Section 73 of the Road Transport (Safety and Traffic Management) Act 1999 allows the Police to close

any road or road related area to traffic during any temporary obstruction or danger to traffic or for any

temporary purpose. Any road closure requires Police approval.

http://www.epa.nsw.gov.au/noise/nglg.htm

http://www.epa.nsw.gov.au/resources/ci_build_sheet7.pdf


DA 201/2013/1 16 September 2013


Note: Section 138 of the Roads Act 1993 provides that a person must not:

erect a structure or carry out a work in, on or over a public road, or

dig up or disturb the surface of a public road, or

remove or interfere with a structure, work or tree on a public road, or

pump water into a public road from any land adjoining the road, or

connect a road (whether public or private) to a classified road,

otherwise than with the consent of the appropriate roads authority.

Note: Section 68 of the Local Government Act 1993 provides that a person may carry out certain activities only

with the prior approval of the council including:

Part C Management of Waste:

a. For fee or reward, transport waste over or under a public place

b. Place waste in a public place

c. Place a waste storage container in a public place.‖

Part E Public roads:

a. Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle

projecting over the footway

b. Expose or allow to be exposed (whether for sale or otherwise) any article in or on or so as to

overhang any part of the road or outside a shop window or doorway abutting the road, or hang

an article beneath an awning over the road.‖

c. Any work in, on or over the Road or Footway requires Council Approval and in the case of

classified roads the NSW Roads and Traffic Authority. Road includes that portion of the road

uses as a footway. Standard Condition: E7

E.7 Maintenance of Environmental Controls

The principal contractor or owner builder must ensure that the following monitoring,

measures and controls are maintained:

a) Erosion and sediment controls,

b) Dust controls,

c) Dewatering discharges,

d) Noise controls;

e) Vibration monitoring and controls;

f) Ablutions;

Note: See http://www.epa.nsw.gov.au/small_business/builders.htm for additional information.


E.8 Erosion and Sediment Controls – Maintenance

The principal contractor or owner builder must maintain water pollution, erosion and

sedimentation controls in accordance with:

a) The Soil and Water Management Plan required under this consent;




Department of Housing 4th Edition (―The Blue Book‖).

http://www.epa.nsw.gov.au/small_business/builders.htm


DA 201/2013/1 16 September 2013






Note: Section 257 of the Protection of the Environment Operations Act 1997 provides that ―the occupier of

premises at or from which any pollution occurs is taken to have caused the pollution‖.

Warning: Irrespective of this condition any person occupying the site may be subject to proceedings under the

Protection of the Environment Operations Act 1997 where pollution is caused, permitted or allowed as the result

of the occupation of the land being developed whether or not they actually cause the pollution. Standard Condition: E15

E.9 Disposal of site water during construction

The principal contractor or owner builder must ensure:

a) Prior to pumping any water into the road or public stormwater system that approval is

obtained from Council under section 138(1)(d) of the Roads Act 1993;

b) That water pollution, as defined by the Protection of the Environment Operations Act

1997, does not occur as the result of the discharge to the road, public stormwater system

or other place or any site water;

c) That stormwater from any roof or other impervious areas is linked, via temporary

downpipes and stormwater pipes, to a Council approved stormwater disposal system

immediately upon completion of the roof installation or work creating other impervious

areas.

Note: This condition has been imposed to ensure that adjoining and neighbouring land is not adversely affected

by unreasonable overland flows of stormwater and that site water does not concentrate water such that

they cause erosion and water pollution. Standard Condition: E17

E.10 Placement and use of Skip Bins

The principal contractor or owner builder must ensure that all waste storage containers,

including but not limited to skip bins, must be stored within the site unless:

a) Activity Approval has been issued by Council under section 94 of the Local

Government Act 1993 to place the waste storage container in a public place, and

b) Where located on the road it is located only in a positions where a vehicle may lawfully

park in accordance with the Australian Road Rules to the extent they are adopted under

the Road Transport (Safety and Traffic Management) (Road Rules) Regulation 1999.


DA 201/2013/1 16 September 2013


Note: Waste storage containers must not be located on the footpath without a site specific activity approval.

Where such site specific activity approval is granted a 1.5m wide clear path of travel is maintained free of

any trip hazards. Standard Condition: E21

E.11 Prohibition of burning

There must be no burning of any waste or other materials. The burning of CCA (copper

chrome arsenate) or PCP (pentachlorophenol) treated timber is prohibited in all parts of NSW.

All burning is prohibited in the Woollahra local government area.

Note: Pursuant to the Protection of the Environment Operations (Control of Burning) Regulation 2000 all

burning (including burning of vegetation and domestic waste) is prohibited except with approval. No

approval is granted under this consent for any burning. Standard Condition: E22

E.12 Dust Mitigation

Dust mitigation must be implemented in accordance with ―Dust Control - Do it right on site‖

published by the Southern Sydney Regional Organisation of Councils.

This generally requires:

a) Dust screens to all hoardings and site fences.

b) All stockpiles or loose materials to be covered when not being used.

c) All equipment, where capable, being fitted with dust catchers.

d) All loose materials being placed bags before placing into waste or skip bins.

e) All waste and skip bins being kept covered when not being filled or emptied.

f) The surface of excavation work being kept wet to minimise dust.

g) Landscaping incorporating trees, dense shrubs and grass being implemented as soon as

practically possible to minimise dust.

Note: ―Dust Control - Do it right on site‖ can be down loaded free of charge from Council‘s web site

www.woollahra.nsw.gov.au or obtained from Council‘s office.

Note: Special precautions must be taken when removing asbestos or lead materials from development sites.

Additional information can be obtained from www.workcover.nsw.gov.au and www.epa.nsw.gov.au .

Other specific condition and advice may apply.

Note: Demolition and construction activities may affect local air quality and contribute to urban air pollution.

The causes are dust, smoke and fumes coming from equipment or activities, and airborne chemicals when

spraying for pest management. Precautions must be taken to prevent air pollution. Standard Condition: E23

E.13 Compliance with Council’s Specification for Roadworks, Drainage and Miscellaneous

Works Road works and work within the Road and Footway

All work carried out on assets which are under Council ownership or will revert to the

ownership, care, control or management of Council in connection with the development to

which this consent relates must comply with Council‘s Specification for Roadworks,

Drainage and Miscellaneous Works dated February 2012.

The owner, principal contractor or owner builder must meet all costs associated with such

works.

This condition does not set aside the need to obtain relevant approvals under the Roads Act

1993 or Local Government Act 1993 for works within Roads and other public places.



http://www.epa.nsw.gov.au/


DA 201/2013/1 16 September 2013


Note: A copy of Council‘s ―Specification for Roadworks, Drainage and Miscellaneous Works‖ can be down

loaded free of charge from Council‘s website www.woollahra.nsw.gov.au Standard Condition: E24

E.14 Site waste minimisation and management – Demolition

In order to maximise resource recovery and minimise residual waste from demolition

activities:

a) The provisions of the Site Waste Minimisation and Management Plan (SWMMP) are to

be implemented at all times during the course of the work

b) An area is to be allocated for the storage of materials for use, recycling and disposal

(giving consideration to slope, drainage, location of waterways, stormwater outlets,

vegetation and access and handling requirements)

c) Provide separate collection bins and/or areas for the storage of residual waste

d) Clearly ‗signpost‘ the purpose and content of the bins and/or storage areas

e) Implement measures to prevent damage by the elements, odour, health risks and

windborne litter

f) Minimise site disturbance, limiting unnecessary excavation

When implementing the SWMMP the applicant must ensure:

a) Footpaths, public reserves and street gutters are not used as places to store demolition

waste or materials of any kind without Council approval

b) Any material moved offsite is transported in accordance with the requirements of the

Protection of the Environment Operations Act (1997)

c) Waste is only transported to a place that can lawfully be used as a waste facility

d) Generation, storage, treatment and disposal of hazardous waste and special waste

(including asbestos) is conducted in accordance with relevant waste legislation

administered by the EPA and relevant Occupational Health and Safety legislation

administered by Workcover NSW

e) Evidence such as weighbridge dockets and invoices for waste disposal or recycling

services are retained

Note: Materials that have an existing reuse or recycling market should not be disposed of in a

landfill. Reuse and recycling opportunities are decreased when asbestos is not carefully removed and

segregated from other waste streams. Standard Condition: E31

E.15 Site waste minimisation and management – Construction

In order to maximise resource recovery and minimise residual waste from construction

activities:

a) The provisions of the Site Waste Minimisation and Management Plan (SWMMP) are to

be implemented at all times during the course of the work

b) Arrange for the delivery of materials so that materials are delivered ‗as needed‘ to

prevent the degradation of materials through weathering and moisture damage

c) Consider organising to return excess materials to the supplier or manufacturer

d) Allocate an area for the storage of materials for use, recycling and disposal (considering

slope, drainage, location of waterways, stormwater outlets and vegetation)

e) Clearly ‗signpost‘ the purpose and content of the storage areas



DA 201/2013/1 16 September 2013


f) Arrange contractors for the transport, processing and disposal of waste and recycling.

Ensure that all contractors are aware of the legal requirements for disposing of waste.

g) Promote separate collection bins or areas for the storage of residual waste

h) implement measures to prevent damage by the elements, odour and health risks, and

windborne litter

i) Minimise site disturbance and limit unnecessary excavation

j) Ensure that all waste is transported to a place that can lawfully be used as a waste

facility

k) Retain all records demonstrating lawful disposal of waste and keep them readily

accessible for inspection by regulatory authorities such as council, Department of

Environment and Climate Change (DECC) or WorkCover NSW Standard Condition: E32

F. Conditions which must be satisfied prior to any occupation or use of the building (Part

4A of the Act and Part 8 Division 3 of the Regulation)

F.1 Occupation Certificate (section 109M of the Act)

A person must not commence occupation or use of the whole or any part of a new building

(within the meaning of section 109H (4) of the Act) unless an occupation certificate has been

issued in relation to the building or part.

Note: New building includes an altered portion of, or an extension to, an existing building.

Standard Condition: F1

F.2 Fire Safety Certificates

In the case of a final occupation certificate to authorise a person:

a) to commence occupation or use of a new building, or

b) to commence a change of building use for an existing building,

a certifying authority must be satisfied that a final fire safety certificate has been issued for

the building.

In the case of an interim occupation certificate to authorise a person:

a) to commence occupation or use of a partially completed new building, or

b) to commence a change of building use for part of an existing building,

a certifying authority must be satisfied that a final fire safety certificate or an interim fire

safety certificate has been issued for the relevant part of the building.

Note: This condition does not apply to a class 1a or class 10 building within the meaning of clause 167 of the

Regulation.

Note: In this condition:

interim fire safety certificate has the same meaning as it has in Part 9 of the Regulation.

final fire safety certificate has the same meaning as it has in Part 9 of the Regulation.

new building has the same meaning as it has in section 109H of the Act. Standard Condition: F4

G. Conditions which must be satisfied prior to the issue of any Subdivision Certificate

No Conditions.


DA 201/2013/1 16 September 2013


H. Conditions which must be satisfied prior to the issue of a Final Occupation Certificate

(s109C(1)(c))

H.1 Removal of Ancillary Works and Structures

The principal contractor or owner must remove from the land and any adjoining public place:

a) The site sign;

b) Ablutions;

c) Hoarding;

d) Scaffolding; and

e) Waste materials, matter, article or thing.

Note: This condition has been imposed to ensure that all ancillary matter is removed prior to the issue of the

Final Occupation Certificate. Standard Condition: H12

I. Conditions which must be satisfied during the ongoing use of the development

I.1 Hours of use

The hours of use are limited to the following:

a) Monday to Friday: 8am to 6pm

There are to be no bells or loud speakers located within the building or outside at the

site.

This condition has been imposed to mitigate amenity impacts upon the neighbourhood.

Note: Deliveries to or dispatches from the site must not be made outside these hours. Trading Hours may be

more onerous than these general hours of use. This condition does not apply to activities such as cleaning

which takes place wholly within the building and which are not audible within any adjoining residential

dwelling. If internal activities are audible within any adjoining residential dwelling such that they cause a

nuisance to the occupiers of such dwelling than such internal activities must not occur outside these hours

of use. This condition does not restrict the operation of noise pollution laws. Standard Condition: I1

I.2 Commercial Waste Management

The owner and any occupier must comply with the approved Waste Management Plan. All

waste must be presented for collection in a receptacle. Waste receptacles must be presented no

earlier then close of business on day before collection and removed from collection point an

hour after open of business on day of collection. Receptacles are not to be stored in any

public place at anytime. Waste and recycling receptacles must be stored at all times within

the boundaries of the site.

Note: No waste will be collected by Council that isn‘t presented properly. The waste must be presented with lid

closed to reduce littering. Standard Condition: I46

I.3 Noise Control

The use of the premises must not give rise to the transmission of offensive noise to any place

of different occupancy. Offensive noise is defined in the Protection of the Environment

Operations Act 1997.


DA 201/2013/1 16 September 2013


This condition has been imposed to protect the amenity of the neighbourhood.

Note: Council will generally enforce this condition in accordance with the Noise Guide for Local Government

(http://www.environment.nsw.gov.au/noise/nglg.htm) and the Industrial Noise Guidelines

(http://www.environment.nsw.gov.au/noise/industrial.htm) publish by the Department of Environment

and Conservation. Other state government authorities also regulate the Protection of the Environment

Operations Act 1997.

Useful links:

Community Justice Centres—free mediation service provided by the NSW Government

(www.cjc.nsw.gov.au).

Department of Environment and Conservation NSW, Noise Policy Section web page

(www.environment.nsw.gov.au/noise).

New South Wales Government Legislation home page for access to all NSW legislation, including the

Protection of the Environment Operations Act 1997 and the Protection of the Environment Noise Control

Regulation 2000 (www.legislation.nsw.gov.au).

Australian Acoustical Society—professional society of noise-related professionals (www.acoustics.asn.au

/index.php).

Association of Australian Acoustical Consultants—professional society of noise related professionals

(www.aaac.org.au).

Department of Gaming and Racing - (www.dgr.nsw.gov.au). Standard Condition: I50

I.4 Annual Fire Safety Statements (Class 1b to 9c buildings inclusive)

Each year, the owner of a building to which an essential fire safety measure is applicable must

provide an annual fire safety statement to Council and the Commissioner of the NSW Fire

Brigades. The annual fire safety statement must be prominently displayed in the building.

Note: Essential fire safety measure has the same meaning as in clause 165 of the Regulation. Annual fire safety

statement has the same meaning as in clause 175 of the Regulation. Part 9 Division 5 of the Regulation

applies in addition to this condition at the date of this consent. Visit Council‘s web site for additional

information in relation to fire safety www.woollahra.nsw.gov.au. Standard Condition: I22

I.5 Student and staff numbers

No approval is given for any increase to student numbers or staff numbers under this

application.

I.6 Use of the site

The subject site is only to be used for administration facilities that are ancillary to the

educational establishment at 70-80 Edgecliff Road (Reddam House School). No classrooms

or teaching are approved at the subject site.

J. Miscellaneous Conditions

No Conditions.

K. Advisings

K.1 Criminal Offences – Breach of Development Consent & Environmental laws

Failure to comply with this development consent and any condition of this consent is a

criminal offence. Failure to comply with other environmental laws is also a criminal offence.

http://www.environment.nsw.gov.au/noise/nglg.htm

http://www.environment.nsw.gov.au/noise/industrial.htm


http://www.environment.nsw.gov.au/noise

http://www.legislation.nsw.gov.au/

http://www.aaac.org.au/

http://www.dgr.nsw.gov.au/


DA 201/2013/1 16 September 2013


Where there is any breach Council may without any further warning:

a) Issue Penalty Infringement Notices (On-the-spot fines);

b) Issue notices and orders;

c) Prosecute any person breaching this consent; and/or

d) Seek injunctions/orders before the courts to restrain and remedy any breach.

Warnings as to potential maximum penalties

Maximum Penalties under NSW Environmental Laws include fines up to $1.1 Million and/or

custodial sentences for serious offences.

Warning as to enforcement and legal costs

Should Council have to take any action to enforced compliance with this consent or other

environmental laws Council‘s policy is to seek from the Court appropriate orders requiring

the payments of its costs beyond any penalty or remedy the Court may order.

This consent and this specific advice will be tendered to the Court when seeking costs orders

from the Court where Council is successful in any necessary enforcement action.

Note: The payment of environmental penalty infringement notices does not result in any criminal offence being

recorded. If a penalty infringement notice is challenged in Court and the person is found guilty of the

offence by the Court, subject to section 10 of the Crimes (Sentencing Procedure) Act 1999, a criminal

conviction is recorded. The effect of a criminal conviction beyond any fine is serious. You can obtain

further information from the following web sites:

http://www.theshopfront.org/documents/ConvictionsCriminalRecords.pdf and the Attorney General‘s

www.agd.nsw.gov.au. Standard Advising: K1

K.2 Commonwealth Disability Discrimination Act 1992 (“DDA”)

The Disability Discrimination Act 1992 (DDA) makes it against the law for public places to

be inaccessible to people with a disability. Compliance with this development consent,

Council‘s Access DCP and the BCA does not necessarily satisfy compliance with the DDA.

The DDA applies to existing places as well as places under construction. Existing places must

be modified and be accessible (except where this would involve "unjustifiable hardship‖).

Further detailed advice can be obtained from the Human Rights and Equal Opportunity

Commission (―HEROC‖):

a) http://www.hreoc.gov.au/index.html

b) http://www.hreoc.gov.au/disability_rights/dda_guide/ins/ins.html

If you have any further questions relating to the application of the DDA you can send and

email to HEROC at [email protected]. Standard Advising: K3

http://www.theshopfront.org/documents/ConvictionsCriminalRecords.pdf

http://www.agd.nsw.gov.au/

http://www.hreoc.gov.au/index.html

http://www.hreoc.gov.au/disability_rights/dda_guide/ins/ins.html

mailto:[email protected]


DA 201/2013/1 16 September 2013


K.3 Building Standards - Guide to Standards and Tolerances

The PCA does not undertake detailed quality control inspections and the role of the PCA is

primarily to ensure that the development proceeds in accordance with this consent,

Construction Certificates and that the development is fit for occupation in accordance with its

classification under the Building Code of Australia. Critical Stage Inspections do not provide

the level of supervision required to ensure that the minimum standards and tolerances

specified by the ―Guide to Standards and Tolerances©‖ ISBN 0 7347 6010 8 are achieved.

The quality of any development is a function of the quality of the principal contractor’s or

owner builder’s supervision of individual contractors and trades on a daily basis during the

development. The PCA does not undertake this role.

The NSW Office of Fair Trading have published a ―Guide to Standards and Tolerances©‖

ISBN 0 7347 6010 8. The guide can be obtained from the Office of Fair Trading by calling

13 32 20 or by Fax: 9619 8618 or by post to: Marketing Branch, PO Box 972, Parramatta

NSW 2124.

The Guide can be down loaded from:

http://www.fairtrading.nsw.gov.au/pdfs/corporate/publications/dft242.pdf

Council, as the PCA or otherwise, does not adjudicate building contract disputes between the

principal contractor, contractors and the owner. Standard Condition: K6

K.4 Workcover requirements

The Occupational Health and Safety Act 2000 No 40 and subordinate regulations, codes of

practice and guidelines control and regulate the development industry.

Note: Further information can be obtained from Workcover NSW‘s website:

http://www.workcover.nsw.gov.au/Industry/Construction/default.htm or through their head office:

Location: Workcover NSW, 92-100 Donnison Street, GOSFORD 2250 Postal address: WorkCover

NSW, Locked Bag 2906, LISAROW 2252, Phone (02) 4321 5000, Fax (02) 4325 4145. Standard Condition: K7

K.5 Asbestos Removal, Repair or Disturbance

Anyone who removes, repairs or disturbs bonded or a friable asbestos material must hold a

current removal licence from Workcover NSW.

Before starting work, a work site-specific permit approving each asbestos project must be

obtained from Workcover NSW. A permit will not be granted without a current Workcover

licence.

All removal, repair or disturbance of or to asbestos material must comply with:

a) The Occupational Health and Safety Act 2000;

b) The Occupational Health and Safety Regulation 2001;

c) The Code of Practice for the Safe Removal of Asbestos [NOHSC: 2002 (1998)];

d) The Guide to the Control of Asbestos Hazards in Buildings and Structures [NOHSC:

3002 (1998)] http://www.nohsc.gov.au/ ];

e) The Workcover NSW Guidelines for Licensed Asbestos Removal Contractors.

http://www.fairtrading.nsw.gov.au/pdfs/corporate/publications/dft242.pdf

http://www.legislation.nsw.gov.au/summarize/inforce/s/1/?TITLE=%22Occupational%20Health%20and%20Safety%20Act%202000%20No%2040%22&nohits=y

http://www.workcover.nsw.gov.au/Industry/Construction/default.htm


DA 201/2013/1 16 September 2013


Note: The Code of Practice and Guide referred to above are known collectively as the Worksafe Code of

Practice and Guidance Notes on Asbestos. They are specifically referenced in the Occupational Health

and Safety Regulation 2001 under Clause 259. Under the Occupational Health and Safety Regulation

2001, the Worksafe Code of Practice and Guidance Notes on Asbestos are the minimum standards for

asbestos removal work. Council does not control or regulate the Worksafe Code of Practice and

Guidance Notes on Asbestos. You should make yourself aware of the requirements by visiting

www.workcover.nsw.gov.au or one of Workcover NSW‘s offices for further advice. Standard Advising: K8

K.6 Lead Paint

It is beyond the scope of this consent to provide detailed information about dealing with lead

paint. Painters working in an area containing lead-based paint should refer to Australian

Standard AS 4361.1–1995, Guide to Lead Paint Management—Industrial Applications, or AS

4361.2–1998, Guide to Lead Paint Management—Residential and Commercial Buildings.

Industrial paints, may contain lead. Lead is used in some specialised sign-writing and artist

paints, and road marking paints, and anti-corrosive paints. Lead was a major ingredient in

commercial and residential paints from the late 1800s to 1970. Most Australian commercial

buildings and residential homes built before 1970 contain lead paint. These paints were used

both inside and outside buildings.

Lead hazards - Lead particles are released when old lead paint flakes and peels and collects as

dust in ceiling, wall and floor voids. If dust is generated it must be contained. If runoff

contains lead particles it must be contained. Lead is extremely hazardous, and stripping of

lead-based paint and the disposal of contaminated waste must be carried out with all care.

Lead is a cumulative poison and even small levels in the body can have severe effects. Standard Advising: K9

K.7 Dividing Fences

The erection of dividing fences under this consent does not affect the provisions of the

Dividing Fences Act 1991. Council does not adjudicate civil disputes relating to the provision

of, or payment for, the erection of dividing fences.

Note: Further information can be obtained from the NSW Department of Lands -

http://www.lands.nsw.gov.au/LandManagement/Dividing+Fences.htm. Community Justice Centres

provide a free mediation service to the community to help people resolve a wide range of disputes,

including dividing fences matters. Their service is free, confidential, voluntary, timely and easy to use.

Mediation sessions are conducted by two impartial, trained mediators who help people work together to

reach an agreement. Over 85% of mediations result in an agreement being reached. Mediation sessions

can be arranged at convenient times during the day, evening or weekends. Contact the Community Justice

Centre either by phone on 1800 671 964 or at http://www.cjc.nsw.gov.au/. Standard Advising: K10

K.8 Appeal

Council is always prepared to discuss its decisions and, in this regard, please do not hesitate to

contact Ms S Richards, Senior Assessment Officer, on (02) 9391 7064.

However, if you wish to pursue your rights of appeal in the Land & Environment Court you

are advised that Council generally seeks resolution of such appeals through a Section 34

Conference, site hearings and the use of Court Appointed Experts, instead of a full Court

hearing.


http://www.lands.nsw.gov.au/LandManagement/Dividing+Fences.htm



DA 201/2013/1 16 September 2013


This approach is less adversarial, it achieves a quicker decision than would be the case

through a full Court hearing and it can give rise to considerable cost and time savings for all

parties involved. The use of the Section 34 Conference approach requires the appellant to

agree, in writing, to the Court appointed commissioner having the full authority to completely

determine the matter at the conference. Standard Condition: K14

K.9 Release of Security

An application must be made to Council by the person who paid the security for release of the

securities held under section 80A of the Act.

The securities will not be released until a Final Occupation Certificate has lodged with

Council, Council has inspected the site and Council is satisfied that the public works have

been carried out to Council‘s requirements. Council may use part or all of the security to

complete the works to its satisfaction if the works do not meet Council‘s requirements.

Council will only release the security upon being satisfied that all damage or all works, the

purpose for which the security has been held have been remedied or completed to Council‘s

satisfaction as the case may be.

Council may retain a portion of the security to remedy any defects in any such public work

that arise within 6 months after the work is completed.

Upon completion of each section of road, drainage and landscape work to Council's

satisfaction, 90% of the Bond monies held by Council for these works will be released upon

application. 10% may be retained by Council for a further 6 month period and may be used by

Council to repair or rectify any defects or temporary works during the 6 month period.

Note: The Application for Refund of Security form can be downloaded from

http://www.woollahra.nsw.gov.au/pdf/Forms/Planning/RefundofSecurity.pdf Standard Condition: K15

K.10 Recycling of Demolition and Building Material

It is estimated that building waste, including disposable materials, resulting from demolition,

excavation, construction and renovation, accounts for almost 70% of landfill. Such waste is

also a problem in the generation of dust and the pollution of stormwater. Council encourages

the recycling of demolition and building materials. Standard Condition: K17

Ms S Richards Mr D Waghorn

SENIOR ASSESSMENT OFFICER TEAM LEADER

ANNEXURES

1. Plans and Elevations

2. Fire Safety Officer‘s comments

3. Heritage Officer‘s comments

http://www.woollahra.nsw.gov.au/pdf/Forms/Planning/RefundofSecurity.pdf





Subject: Register of Current Land and Environment Court Matters and

Register of Court Proceedings for Building Control,

Environmental Control & Health Control

Author: Patrick Robinson, Manager – Development Control

Timothy Tuxford, Manager – Compliance

Council, at its meeting of 17 August 1994 resolved in the following terms:

THAT the Register of current Land and Environment Court Matters for Development

Applications presented in the Development Applications Summary be transferred to the

Development Control Committee to be considered at each meeting.

Further, the Development Control Committee at its meeting of 29 March 2010 resolved in the

following terms:

THAT a 'Register of Court Proceedings for Building Control, Environmental Control and

Health Control' be presented to the Development Control Committee at least once a month to

highlight the prosecution activities being undertaken by Council's Compliance section.

Please find attached a copy of the current registers.

Recommendation:

A. THAT the attached register of current Land and Environment Court Matters for

Development Applications be received and noted.

B. THAT the attached register of Court Proceedings for Building Control, Environmental

Control and Health Control be received and noted.

Patrick Robinson

Manager Development Control

Timothy Tuxford

Manager Compliance





Subject: Register of SEPP 1 Objections

Author: Patrick Robinson, Manager Development Control

Council, at its meeting of 13 October 2008 resolved that Councillors be furnished with a

monthly report of all development applications granted consent with a SEPP 1 objection.

The attached register is produced in accordance with that resolution.

Recommendation:

THAT the attached register of SEPP 1 Objections be received and noted.

Patrick Robinson

Manager Development Control




Political Donations – matters to be considered by Councillors at Meetings

Action Declare a significant non-pecuniary conflict of

interest, absent yourself from the meeting and take no further part in the debate or vote on the matter

(Code of Conduct Cl 4.16b)

Action

Consider appropriate action required. This could include limiting involvement by:

1. participating in discussion but not in decision making (vote), 2. participating in decision making (vote) but not in the discussion

3. not participating in the discussion or decision making (vote) 4. removing the source of the conflict

Do you believe the political contribution creates a significant non-pecuniary conflict of interest

for you?

(Code of Conduct Cl 4.23)

Action Declare a significant non-

pecuniary conflict of interest, absent yourself from the meeting

and take no further part in the debate or vote on the matter

(Code of Conduct Cl 4.16(5)

Staff to record decision process (motions/amendments) and Division of votes for the determinative resolution or recommendation in the

meeting minutes.

Matter before Committee or

Council Meeting

Did the applicant, owner (if not the applicant) or someone close

to the applicant make a donation in excess of $1,000 that directly benefited your

election campaign? (Code of Conduct Cl 4.21)

Is the matter before the meeting

a Planning Matter?

Action

Participate in debate and vote on the matter

Did the applicant or someone close to the applicant make a donation less than $1,000 that directly benefited your election

campaign?

(Code of Conduct Cl 4.2)

Staff to record decision process (motions/amendments) and Division of votes for the determinative resolution or recommendation in the

meeting minutes.

No

No No

No

Yes

Yes Yes

Yes

Yes

session: one & two d1 to d7 - municipality of woollahra · 2013-09-11 · woollahra municipal...

Documents