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Independent Hearing and Assessment Panel Meeting

2 May 2017, 5:00pm


Independent Hearing and Assessment Panel 2 May 2017





PRESENT:                 Hon David Lloyd (Chairman), Mr Kevin Hoffman, Planning Expert, Mr Steve Fermio, Environmental Expert and Ms Susan Robinson, Community Representative


ALSO PRESENT:      Mr Michael Mason, Executive Manager, Environmental Services, Mr Rajiv Shankar, Manager Development Assessment, Ms May Li, Senior Town Planner, Mr Michael Stephens, Town Planner and Angela Panich, Panel Secretariat






The Chairperson advised those present that the Meeting was being webcast.


Independent Hearing and Assessment Panel Reports


35 Vista Street, Greenwich




That pursuant to Section 80(1)(b) of the Environmental Planning and Assessment Act, 1979, as amended, the Independent Hearing and Assessment Panel at its meeting of 2 May 2017 refuses development consent to Development Application DA 31/2017 for the demolition of the existing dwelling house and the construction of a three storey dwelling house and a swimming pool at the front of the property on Lot 22, DP 3907 and known as 35 Vista Street, Greenwich for the following reasons:


1.         The proposed development does not comply with the floor space ratio (FSR) for the site in accordance with Clause 4.4 of the Lane Cove Local Environmental Plan 2009.




(a)        The maximum permitted FSR for buildings on the proposed lot is 0.5:1 in accordance with the Floor Space Ratio (FSR) Map of Lane Cove Local Environmental Plan 2009.


(b)        The FSR of the proposed building on the site is 0.73:1 which exceeds the LEP standard. 


2.         The applicant has not adequately addressed the provisions of Clause 4.6 - exceptions to development standards of the Lane Cove Local Environmental Plan 2009.




(a)        Clause 4.6(3) of Lane Cove Local Environmental Plan 2009 states development consent must not be granted for development that contravenes a development standard unless the consent authority has considered a written request from the applicant that seeks to justify the contravention of the development standard by demonstrating:


(i)         that compliance with the development standard is unreasonable or unnecessary in the circumstances of the case, and


(ii)        that there are sufficient environmental planning grounds to justify contravening the development standard.


(b)        Clause 4.6(4) of the Lane Cove LEP 2009 states development consent must not be granted for development that contravenes a development standard unless Council is satisfied that:


(i)         the applicant’s written request has adequately addressed the matters required to be demonstrated by subclause (3), and


(ii)        the proposed development will be in the public interest because it is consistent with the objectives of the particular standard and the objectives for development within the zone in which the development is proposed to be carried out, and


(c)        Council has considered that the proposed development would not be in the public interest because it is inconsistent with the objectives of Clause 4.9 of the Lane Cove LEP and the varation to the Floor Space Ratio standard under Clause 4.6 is not supported.


3.         The proposed development would reduce the amenity of the adjoining neighbouring properties. 




(a)        The proposed building design would be inconsistent with the development patterns of the adjoining dwelling houses by locating the main entrance to Vista Lane. 


(b)        The proposed swimming pool located at the front setback area would create acoustic and amenity impacts to the adjoining house to the south and the street generally and possibly the foreshore.


(c)        The proposed roof terrace would overlook to the adjoining properties.


4.         The proposal does not meet the building design provisions in Part C.1 of Lane Cove Development Control Plan.




(a)        The proposal does not meet the objectives of Clause 1.7 Building Design of Part C.1 of the DCP which requires to minimise impact in terms of overshadowing, loss of privacy, light spillage to adjoining properties, loss of views and amenity.


(a)        The proposed development would not retain the natural ground levels of the site and its existing landforms particularly in relation to the street or adjacent private open space of the adjoining properties.


(b)        The proposed excavation is excessive. 


(c)        The proposed building is incompatible with the building character of the surrounding developments in a low density residential area.


(d)        The existing streetscape and adjoining bushland and foreshore would be adversely affected by the presence of a swimming pool in this position.  


5.         The design of the proposed swimming pool does not meet the objectives of Clause 1.10 for ancillary developments of Lane Cove Development Control Plan. 




(a)        The proposed swimming pool is too close to the adjoining dwelling house at 37 Vista Street.  The proposed swimming pool would compromise the amenity of adjoining dwelling.


(b)        It would not achieve to minimise acoustic impacts.



(c)        The proposed swimming pool is approximately 2.5m to the adjoining dwelling house at 37 Vista Street. 


(d)        The location of the pool pump/filter is not shown on the proposed plans.  The applicant has not provided detailed information to demonstrate the proposed development complying with the DCP provisions.


6.   The proposal is not in the public interest.




(a)        The proposed development is an over development to the site.

(b)        Valid objections were raised by adjoining and nearby neighbours.

(c)        The proposed development would set unacceptable precedents.



The decision of the Panel was unanimous



19 Bay Street, Greenwich




Part A


That pursuant to section 80(3) and of the Environmental Planning and Assessment Act 1979, the Independent Hearing and Assessment Panel at it’s meeting of 2 May 2017  grants deferred development consent to Development Application DA9/2017 for alterations and additions to a dwelling house subject to the following conditions.


The consent will not operate until Council’s Executive Manger of Environmental Services Division is satisfied the following matters have been addressed:


1.    The design of the basement garage shown on “Basement Plan DA06-A” dated May 2017 is to be adopted so as to enable the retention of all on street parking and enable off street parking for residents in order to best serve the public interest.


2.    A vehicular turntable is to be provided within the basement garage in order to allow entry and egress from the site in a forward direction.


3.    The applicant is to bear the responsibility of landscaping and installing safety features in the verge area between the roadway and the boundary, including the stone wall to the site, to the satisfaction of Council’s Manager of Traffic and Transport.


4.    A Construction and Traffic Management Plan for the site is to be prepared to the satisfaction of Council’s Manager of Traffic and Transport including but not limited to traffic wardens to control traffic flow and construction vehicles to ensure public  and emergency access at all times along Bay Street.


Documentation including revised plans and elevations incorporating Drawing DA06-A and the above requirements must be provided to Council within 12 months of this determination.  


Pursuant to Clause 95(5) of the Regulations under the Act, Council will notify the applicant in writing as to if Part A of this consent has been satisfied and the date from which the consent shall operate.  


Part B


1.         (20) That the development be strictly in accordance with:


Details of the amended plans are to be inserted by Council once Part A of this consent is satisfied.


except as amended by the following conditions.


2.         (1) The submission of a Construction Certificate and its issue by Council or Private Certifier PRIOR TO CONSTRUCTION WORK commencing.


3.         (2) All building works are required to be carried out in accordance with the provisions of the Building Code of Australia.


4.         (11)  Council approved plans must be submitted to Sydney Water online approval portal “Sydney Water Tap In”, please refer to web site www.sydneywater.com.au. This is to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. An approval receipt with conditions shall be issued by Sydney Water (if determined to be satisfactory) and is to be submitted to the accredited certifier prior to the issue of a Construction Certificate.


5.         (12) Approval is subject to the condition that the builder or person who does the residential building work complies with the applicable requirements of Part 6 of the Home Building Act 1989 whereby a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work.  It is the responsibility of the builder or person who is to do the work to satisfy Council or the PCA that they have complied with the applicable requirements of Part 6.  Council as the PCA will not release the Construction Certificate until evidence of Home Owners Warranty Insurance or an owner builder permit is submitted. THE ABOVE CONDITION DOES NOT APPLY TO COMMERCIAL/INDUSTRIAL CONSTRUCTION, OWNER BUILDER WORKS LESS THAN $5000 OR CONSTRUCTION WORKS LESS THAN $20,000.


6.         (17)  An Occupation Certificate being obtained from the Principal Certifying Authority before the occupation of the building.



7.         (35)  All demolition, building construction work, including earthworks, deliveries of building materials to and from the site to be restricted to the following hours:-



Monday to Friday (inclusive)                    7.00am to 5.30pm

Saturday                                                   7.00am to 4.00pm

No work to be carried out on Sundays or any public holidays.


A Notice/Sign showing permitted working hours and types of work permitted during those hours, including the applicant’s phone number, project manager or site foreman, shall be displayed at the front of the site.


8.         (36) Stockpiles of topsoil, sand, aggregate, spoil or other material capable of being moved by water to be stored clear of any drainage line, easement, natural watercourse, footpath, kerb or roadside.


9.         (37) The development shall be conducted in such a manner so as not to interfere with the amenity of the neighbourhood in respect of noise, vibration, smell, dust, waste water, waste products or otherwise.


10.       (48) Depositing or storage of builder's materials on the footpath or roadways within the Municipality without first obtaining approval of Council is PROHIBITED.


Separate approval must be obtained from Council's Works and Urban Services Department PRIOR TO THE PLACEMENT of any building waste container ("Skip") in a public place.


11.       (49) Prior to the commencement of any construction work associated with the development, the Applicant shall erect a sign(s) at the construction site and in a prominent position at the site boundary where the sign can be viewed from the nearest public place.  The sign(s) shall indicate:

a)      the name, address and telephone number of the Principal Certifying Authority;

b)      the name of the person in charge of the construction site and telephone number at which that person may be contacted outside working hours; and

c)      a statement that unauthorised entry to the construction site is prohibited.


The signs shall be maintained for the duration of construction works.


12.       (50) The cleaning out of ready-mix concrete trucks, wheelbarrows and the like into Council's gutter is PROHIBITED.


13.       Standard Condition (56) Where Lane Cove Council is appointed as the Principal Certifying Authority, it will be necessary to book an inspection for each of the following stages during the construction process.  Forty eight (48) hours notice must be given prior to the inspection being required:-


a)      The pier holes/pads before filling with concrete.

b)      All reinforcement prior to filling with concrete.

c)      The dampcourse level, ant capping, anchorage and floor framing before the floor material is laid.

d)      Framework including roof and floor members when completed and prior to covering.

e)      Installation of steel beams and columns prior to covering.

f)       Waterproofing of wet areas.

i)        Stormwater drainage lines prior to backfilling.

k)      Completion.


14.       Standard Condition (57) Structural Engineer's details being submitted PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE for the following:-

a)         underpinning;

b)         retaining walls;

c)         footings;

d)         reinforced concrete work;

e)         structural steelwork;

f)          upper level floor framing;


15.       (58) Structural Engineer's Certificate being submitted certifying that existing building is capable of carrying the additional loads.  Such Certificate being submitted PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE.


16.       (63) All metal deck roofs being of a ribbed metal profile, in a mid to dark colour range with an anti glare finish. The intent of the condition is to reduce sun reflection and glare to protect the amenity of the surrounding resident.


17.       Standard Condition (64) A check survey certificate is to be submitted at the completion of:-

a          Dampcourse level;

b          The establishment of the first floor level;

c          The roof framing; and

d          The completion of works.


Note:   All levels are to relate to the reduced levels as noted on the approved architectural plans and should be cross-referenced to Australian Height Datum.


18.       (66) The removal, handling and disposal of asbestos from building sites being carried out in accordance with the requirements of the Occupational Health and Safety Act and the Regulations.  Details of the method of removal to be submitted PRIOR TO COMMENCING ANY DEMOLITION WORKS.


19.       (72) The demolition works being confined within the boundaries of the site.


20.       (77) All spillage deposited on the footpaths or roadways to be removed at the completion of each day’s work.


21.       (78) The site being properly fenced to prevent access of unauthorised persons outside of working hours.


22.       (79) Compliance with Australian Standard 2601 - The Demolition of Structures.



23.       (130)  Compliance with the Waste Management Plan submitted along with the application.


24.       (132)  It should be understood that this consent in no way relieves the owners or applicant from any obligation to obtain any other approval which may be required under any covenant affecting the land or otherwise nor relieve a person from the legal civil consequences of not complying with any such covenant.


25.       (141) Long Service Levy  Compliance with Section 109F of the Environmental Planning and Assessment Act 1979; payment of the Long Service Levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) – All building works in excess of $25,000 are subject to the payment of a Long Service Levy at the rate of 0.35%.




26.       (142) BASIX - Compliance with all the conditions of the BASIX Certificate lodged with Council as part of this application.


Tree Preservation Conditions


27.     (300)  Lane Cove Council regulates the Preservation of Trees and Vegetation in the Lane Cove local government area. Clause 5.9(3) of Lane Cove Local Environmental Plan 2009 [the "LEP"], states that a person must not ringbark, cut down, top, lop, remove, injure or wilfully destroy any tree or other vegetation to which any such development control plan applies without the authority conferred by development consent or a permit granted by the Council. Removal and/or pruning of trees or vegetation protected by the regulation is an offence against the Environmental Planning and Assessment Act 1979 (NSW). The maximum penalty that may be imposed in respect to any such offence is $1,100,000. The co-operation of all residents is sought in the preservation of trees in the urban environment and protection of the bushland character of the Municipality. All enquiries concerning the Preservation of Trees and Vegetation must be made at the Council Chambers, Lane Cove.


28.     (302)  The applicant must obtain a Tree Preservation Order Work Authority prior to removal of any trees. A permit must also be obtained prior to pruning of any tree including the cutting of tree roots greater than 40mm in diameter. Trees approved for removal on the stamped plans are exempt from this condition of consent.


29.     (354)  Bulk excavation or excavation for strip footings, service lines including storm water lines or sewer lines is NOT PERMITTED within 4 metres of any tree greater than 4m in height; including neighbouring trees. If approved excavation work is required within 3m of the trunk of trees, this work must be carried out using hand held tools only with no tree roots greater than 40mm diameter to be severed or damaged.


30.     (303)  There must be no stockpiling of topsoil, sand, aggregate, spoil or any other construction material or building rubbish on any nature strip, footpath, road or public open space park or reserve.


31.     (317) The Argyle apple tree standing in the northeast corner of the allotment must be retained and protected. A 1.8m high chain mesh fence shall be erected a radial distance not less than 4 metres measured from the trunk. The tree protection zone shall not be used for the storage of building materials, machinery, site sheds, or for advertising and soil levels within the tree protection zone shall remain undisturbed.


32.     A waterproof sign must be placed on the tree protection zone stating ‘NO ENTRY TREE PROTECTION ZONE – this fence and sign are not to be removed or relocated for the work duration.’  Minimum size of the sign is to be A3 portrait with NO ENTRY TREE PROTECTION ZONE in capital Arial Font size 100, and the rest of the text in Arial font size 65.


33.     (new) All tree protection measures and signage must be erected PRIOR TO COMMENCEMENT OF WORK. This includes demolition or site preparation work and, tree protection measures must remain in place for the duration of the development including construction of the driveway crossing.


General Engineering Conditions


34.     (A1) Design and Construction Standards:  All engineering plans and work shall be carried out in accordance with Council’s standards and relevant development control plans except as amended by other conditions.


35.     (A2) Materials on Roads and Footpaths: Where the applicant requires the use of Council land for placement of building waste, skips or storing materials a “Building waste containers or materials in a public place” application form is to be lodged. Council land is not to be occupied or used for storage until such application is approved. 


36.     (A3) Works on Council Property: Separate application shall be made to Council's Urban Services Division for approval to complete, any associated works on Council property.  This shall include hoarding applications, vehicular crossings, footpaths, drainage works, kerb and guttering, brick paving, restorations and any miscellaneous works. Applications shall be submitted prior to the start of any works on Council property.


37.     (A4) Permit to Stand Plant: Where the applicant requires the use of construction plant on the public road reservation, an “Application for Standing Plant Permit” shall be made to Council. Applications shall be submitted and approved prior to the start of any related works. Note: allow 2 working days for approval.


38.     (A5) Restoration: Public areas must be maintained in a safe condition at all times. Restoration of disturbed Council land is the responsibility of the applicant. All costs associated with restoration of public land will be borne by the applicant.


39.     (A6) Public Utility Relocation: If any public services are to be adjusted, as a result of the development, the applicant is to arrange with the relevant public utility authority the alteration or removal of those affected services. All costs associated with the relocation or removal of services shall be borne by the applicant.


40.     (A7) Pedestrian Access Maintained: Pedestrian access, including disabled and pram access, is to be maintained throughout the course of the construction as per AS-1742.3, ’Part 3 - Traffic control devices for works on roads’.


41.     (A8) Council Drainage Infrastructure: The proposed construction shall not encroach onto any existing Council stormwater line or drainage easement. If a Council stormwater line is located on the property during construction, Council is to be immediately notified. Where necessary the stormwater line is to be relocated to be clear of the proposed building works. All costs associated with the relocation of the stormwater line are to be borne by the applicant.


42.     (V8) Car Parking: All parking and associated facilities are to be designed and constructed in accordance with the relevant Australian Standards.


Engineering conditions to be complied with prior to Construction Certificate


43.     (S2) Stormwater Requirement: The stormwater runoff from the new and altered impervious areas within the development shall be connected to the existing drainage system in accordance with the requirements of Lane Cove Council’s DCP-Stormwater Management.


The existing stormwater system is to be certified that it is in good working order and meets the requirements set out in Part O, Council’s DCP-Stormwater Management. The certification is to be carried out by a fully licensed and insured plumber or a suitably qualified engineer prior to the issue of the Construction Certificate.


Where an existing element does not comply with current standards the subject element is to be replaced.


Where the existing system does not comply with Part O, Councils DCP-Stormwater Management a drainage design is required. The stormwater drainage plan is to be prepared and certified by a suitably qualified engineer and submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate. The design is to be certified that it fully complies with, AS-3500 and Part O, Council's DCP-Stormwater Management.


44.     (A10) Boundary Levels: The levels of the street alignment shall be obtained from Council. These levels are to be incorporated into the design of the internal pavements, car parking, landscaping and stormwater drainage plans and shall be obtained prior to the issue of the Construction Certificate.


45.     (V1) Proposed Vehicular Crossing: The proposed pedestrian crossing shall be constructed to the specifications and levels issued by Council. A ‘Construction of Residential Vehicular Footpath Crossing’ application shall be submitted to Council prior to the issue of the Construction Certificate. All works associated with the construction of the crossing shall be completed prior to the issue of the Occupation Certificate.


46.     (B1) Council infrastructure damage bond: The applicant shall lodge with Council a $3000 bond or bank guarantee. The bond is to cover the repair of damage to Council's roads, footpaths, kerb and gutter, drainage or other assets as a result of the development. The bond will be released upon issuing of the Occupation Certificate. If Council determines that damage has occurred as a result of the development, the applicant will be required to repair the damage. Repairs are to be carried out within 14 days from the notice. All repairs are to be carried in accordance with Council’s requirements. The full bond will be retained if Council’s requirements are not satisfied. Lodgement of this bond is required prior to the issue of the Construction Certificate.


47.     (D1) Excavation Greater Than 1m: Where there are structures on adjoining properties including all Council infrastructures, located within 5 meters of the proposed excavation.

The applicant shall:-

(a)  seek independent advice from a suitably qualified engineer on the impact of the proposed excavations on the adjoining properties

(b)  detail what measures are to be taken to protect those properties from undermining  during construction

(c)  provide Council with a certificate from the engineer on the necessity and adequacy of  support for the adjoining properties

The above matters are to be completed and documentation submitted to principal certifying authority prior to the issue of the Construction Certificate.


(d)  Provide a dilapidation report of the adjoining properties and Council infrastructure. The dilapidation survey must be conducted prior to the issue of the Construction Certificate. The extent of the survey must cover the likely “zone of influence” that may arise due to excavation works, including dewatering and/or construction induced vibration. The dilapidation report must be prepared by a suitably qualified engineer.

A second dilapidation report, recording structural conditions of all structures originally assessed shall be submitted to the principle certifying authority prior to the issue of the Occupation Certificate.

All recommendations of the suitably qualified engineer are to be carried out during the course of excavation. The applicant must give at least seven (7) days notice to the owner and occupiers of the adjoining allotments before the excavation works commence.

Engineering condition to be complied with prior to commencement of construction


48.     (C2) Erosion and Sediment Control: The applicant shall install appropriate sediment control devices prior to the start of any works on the site. The devices shall be maintained during the construction period and replaced when necessary.


Engineering condition to be complied with prior to Occupation Certificate


49.     (M2) Certificate of Satisfactory Completion:  Certificates from a registered and licensed Plumber or a suitably qualified Engineer must be obtained for the following matters. The plumber is to provide a copy of their registration papers with the certificate. The relevant Certificates are to be submitted to the Principal Certifying Authority prior to issue of any Occupation Certificate.

·         Confirming that the site drainage system has been constructed in accordance with the relevant Australian Standards and Council’s DCP-Stormwater Management. 


50.     (E8) Positive Covenant - Removal of Structures:  Documents giving effect to the creation of a Positive Covenant for the removal of all structures located on Council land in favour of the new pedestrian access and driveway shall be registered on the title of the property. The creation of a Positive Covenant under Section 88E of the Conveyancing Act 1919, burdening the property with the requirement to remove all structures should Council or any authority need to gain access to the land. The wording of the terms of the Positive Covenant shall be in accordance with those issued by Council. The documents prepared shall be submitted to Council prior to registration with the Land and Property Information and prior to the issue of the Occupation Certificate.




The decision of the Panel was unanimous


The meeting closed at 6.30pm