(Report by General Manager, Mr V G D Lampe)

(Report by Development Assessment Officer, Mr M Raymundo)

(Report by Development Assessment Officer, Mr R Guirguis)

(Report by Team Leader Development Assessment, Ms L Locke)

(Report by Senior Development Assessment Officer, Mr I Karaman)

(Report by Development Assessment Officer, Mr P Nelson)

(Report by Development Assessment Officer, Mr M Raymundo)

(Report by Development Assessment Officer, Mr K Kim)

(Report by Development Assessment Officer, Mr M Raymundo)

(Report by Development Assessment Officer, Mr P Nelson)

(Report by Development Assessment Officer, Mr R Guirguis)

(Report by Senior Development Assessment Officer, Ms P Bizimis)

(Report by Senior Development Assessment Officer, Ms P Bizimis)

(Report by Senior Development Assessment Officer, Mr I Karaman)

(Report by Development Assessment Officer, Mr P Nelson)

(Report by Development Assessment Officer, Mr P Nelson)

(Report by Development Assessment Officer, Mr P Nelson)

(Report by Senior Development Assessment Officer, Ms P Bizimis)

Applicant	Ian Lisle
Proposal	Use of commercial premises for Bridge Club including internal fit out
Zoning	Zone 3(a) - Neighbourhood Business
Planning instruments applicable	Hurstville Local Environmental Plan 1994, State Environmental Planning Policy 55 – Remediation of Land, 2004, Greater Metropolitan Regional Environmental Plan No 2 - Georges River Catchment, Draft State Environmental Planning Policy (Competition) 2010, Development Control Plan No 1 – LGA Wide - Section 2.2 Neighbour Notification, Section 3.1 Car Parking, Section 3.4 Crime Prevention Through Environmental Design, Section 3.5 Energy Efficiency, Section 3.9 Waste Management, Section 5.5 Food Premises
Hurstville Local Environmental Plan 1994 interpretation of use	Recreation facility
Owner/s	Renaldo Plus 3 Pty Ltd
Existing development	Shop
Cost of development	$35,000.00
Reason for referral to Council	Two submissions received
Report author/s	Development Assessment Officer, Mr M Raymundo
File No	11/DA-51
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. The application seeks development consent for use of commercial premises for bridge club including internal fit out.

2. The proposal has been assessed against the applicable statutory requirements and provisions of applicable Controls and generates a technical non compliance regarding car parking.

3. The application was notified in accordance with the provisions within Development Control Plan No 1, in response two (2) submissions were received.

4. The application was deferred at the Development Assessment Committee meeting of 6 July 2011for the applicant to obtain Owner’s Corporation approval to have eight (8) of the unallocated parking spots within the development to this tenancy

5. The applicant provided additional information on 10 August 2011 in justifying why they cannot satisfy the resolution of the Development Assessment Committee.


AUTHOR RECOMMENDATION

THAT the application be approved in accordance with the conditions included in the report and is also subject to a twelve (12) month trial period. A further application would be required to be lodged to continue the approved use before the expiration of the twelve (12) months from Occupation Certificate.


REPORT DETAIL

BACKGROUND

Council gave consideration to a report on this matter at its Development Assessment Committee meeting of 6 July 2011 and resolved as follows: -

“THAT the application be deferred for a redesign to obtain owner’s corporation approval to have eight (8) of the Court approved unallocated parking spots to this development”.

THAT the application be approved subject to the following conditions:

(2) Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, and must be removed when the work has been completed.

(3) This clause does not apply 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.

(4) These signage requirements do not apply to in relation to Crown building work that is certified to comply with the technical provisions of the State's building laws.

To Obtain a Construction Certificate

(a) Fees to be paid to Council:



Fee Type	Paid	Fee Type	Amount	Receipt Date	Receipt No
Development Application Fee	X	DA1	$275.00	25 Feb 11	346548
Imaging Fee	X	AP165	$65.00	25 Feb 11	346548
Long Service Levy			$122.00
Builders Damage Deposit		BON2	$1,500.00
Inspection Fee for Refund of Damage Deposit		DA6	$125.00
The following fees apply where you appoint Council as your Principal Certifying Authority (PCA). (If you appoint a private PCA, separate fees will apply)
PCA Service Fee		DA6	$652.48

Fees and charges above are subject to change and are as set out in the version of Council's Schedule of Fees and Charges or as required by other Government Authorities, applicable at the time of payment.

(a) Payment to Council of a Damage Deposit for the cost of making good any damage caused to any Council property as a result of the development: Refer to Fee Table.

(b) Payment to Council of a non refundable Public Works Inspection Fee to enable assessment of any damage and repairs where required: Refer to Fee Table.

(c) At the completion of work Council will inspect the public works, and the damage deposit will be refunded in full upon completion of work where no damage occurs. Otherwise the amount will be either forfeited or partly refunded according to the amount of damage.

(d) Prior to the commencement of work a photographic record of the condition of the Council nature strip, footpath and driveway crossing, or any area likely to be affected by the proposal, shall be submitted to Council.

(e) Payments pursuant to this condition are required to be made to Council before the issue of the Construction Certificate.

Please refer to the web site www.sydneywater.com.au for:

* Quick Check agents details - see Building Developing and Plumbing then Quick Check; and

* Guidelines for Building Over/Adjacent to Sydney Water Assets - see Building Developing and Plumbing then Building and Renovating.

Before Commencing the Development

(a) A Construction Certificate for the building work has been issued by:

(i) the consent authority; or
(ii) 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

(c) The Principal Certifying Authority has, no later than 2 days before building work commences:

(i) notified Council of his or her appointment;

(d) the person having the benefit of the development consent has:

(i) appointed a principal contractor for the building work who must be the holder of a contractor licence for the residential building work involved;
(ii) notified the principal certifying authority of any such appointment, and

the person having the benefit of the development consent has given at least 2 days notice to the Council of the person's intention to commence the erection of the building.

Note: If the Principal Certifying Authority is the Council, the nomination will be subject to the payment of a fee for the service to cover the cost of undertaking all necessary inspections and the issue of the appropriate certificates.

(a) Obtain a Construction Certificate from either Hurstville City Council or an Accredited Certifier - a fee applies for this service; and

(b) Lodge with Hurstville City Council any Construction Certificate obtained from an Accredited Certifier (together with associated plans and documents) - a fee applies for this service.

(a) Not less than two (2) days notice of the date on which it is proposed to commence work associated with this Development Consent.

(b) Details of the appointment of a Principal Certifying Authority (either Hurstville City Council or an Accredited Certifier).

(c) Details of the name, address and licence details of the Builder.

During the Development

(a) All structural inspections,
(b) All inspections necessary to determine that the appropriate conditions attached to this consent have been complied with, and
(c) All inspections necessary to determine that the requirements of the Building Code of Australia are being met.

Additionally, construction work on all buildings (except that on single dwelling houses and associated structures on the site of a single dwelling house) is prohibited on Saturdays and Sundays on weekends adjacent to a public holiday.

(a) window signs should be on the inside of the glass and must not cover more than one half of the window
(b) if a language other than English is used on the sign, there must be an accurate English translation in lettering of at least the same size
(c) signs should look professional (not handwritten) and must be securely fastened
(d) signs, posters or notices must not be glued to any part of the exterior of the building

Before Occupation

Prior to the issue of the occupation certificate the principal certifying authority for the building work to be carried out on the site must be satisfied that:

(a) any preconditions required by the development consent to be met have been met; and

(b) such building work has been inspected by that principal certifying authority, or, in the case of all inspections other than the last critical stage inspection, by another certifying authority, on such occasions as are prescribed in the Environmental Planning and Assessment Regulation, 2000, and on such other occasions as may be required by the principal certifying authority and the conditions required by this development consent.

(a) has been assessed by a properly qualified person, and
(b) was found, when it was assessed, to be capable of performing to at least a standard required by the current fire safety schedule for the building for which the certificate is issued.

Note: The owner of the building:

(a) must cause a copy of the fire safety certificate (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and

(b) must cause a further copy of the fire safety certificate (together with a copy of the current fire safety schedule) to be prominently displayed in the building.

(a) has been assessed by a properly qualified person, and
(b) was found, when it was assessed, to be capable of performing to at least a standard required by the current fire safety schedule for the building for which the certificate is issued.

The owner of the building:

(a) must cause a copy of the fire safety certificate (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and
(b) must cause a further copy of the fire safety certificate (together with a copy of the current fire safety schedule) to be prominently displayed in the building.

After Occupation/Ongoing Conditions

The annual fire safety statement must be to the effect that:

(a) in respect of each essential fire safety measure, such measure has been assessed by a properly qualified person and was found, when it was assessed, to be capable of performing:

(i) in the case of an essential fire safety measure applicable by virtue of a fire safety schedule, to a standard no less than that specified in the schedule, or
(ii) in the case of an essential fire safety measure applicable otherwise than by virtue of a fire safety schedule, to a standard no less than that to which the measure was originally designed and implemented, and

The owner of the building must also cause a copy of the statement (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner and as well cause a further copy of the statement (together with a copy of the current fire safety schedule) to be prominently displayed in the building.

Other Approvals - Section 78(5), Local Government Act 1993

Nil.

Advices to Applicant

(a) Apply for a Review of a Determination under Section 82A of the Environmental Planning and Assessment Act 1979. A request for review and the decision by Council of that request must be made within six (6) months of the date of this Notice of Determination and be accompanied by the relevant fee. If your development application was lodged with a consent authority prior to 28 February 2011, that request for a review and decision by Council must be made within twelve (12) months of this Notice of Determination. You must ensure that an application for review of determination gives Council a reasonable period in which to review its decision having regard to the relevant issues and complexity of the application.
OR

(b) Appeal to the Land and Environment Court within six (6) months after the date on which you receive this Notice of Determination, under Section 97 of the Environmental Planning and Assessment Act 1979. If your development application was lodged with a consent authority prior to 28 February 2011, an appeal to the Land and Environment Court must be made within twelve (12) months of this Notice of Determination.

(Section 97 of the Environmental Planning and Assessment Act 1979 does not apply to the determination of a development application for State significant development or local designated development that has been the subject of a Commission of Inquiry.)

(a) street/house number and street name
(b) side of the street
(c) name of nearest cross street
(d) distance from nearest cross street

1. The application seeks development consent for use of commercial premises for bridge club including internal fit out.

2. The proposal has been assessed against the applicable statutory requirements and provisions of applicable Controls and generates a technical non compliance regarding car parking.

3. The application was notified in accordance with the provisions within Development Control Plan No 1, in response two (2) submissions were received.

RECOMMENDATION

THAT the application be approved in accordance with the conditions included in the report and is also subject to a twelve (12) month trial period. A further application would be required to be lodged to continue the approved use before the expiration of the twelve (12) months from Occupation Certificate.


DESCRIPTION OF THE PROPOSAL

The application seeks development consent under the definition of ‘development’ (construction and use) under the Environmental Planning and Assessment Act 1979 (as amended) for use of commercial premises for a bridge club to be known as “The Southside Bridge Centre” (affiliated with the NSW Bridge Association and Australian Bridge Federation) including internal fit out. In detail, the proposal comprises of the following:

Use

* Use of premise as a community facility hosting bridge competitions,
* Maximum capacity of up to one hundred (100) persons at any one time, (most times 24-40 people).

Physical works

* New kitchen bench unit (sink and cupboards),
* New bathroom and internal bathroom walls,
* Minor works (carpeting, sealing and painting).

Proposed Hours of Operation

Core Hours:
Monday – Friday: 9.00am – 5.00pm

Saturday - Sunday: 10.00am – 4.00pm
(Evenings) Monday to Thursday: 7.00pm – 10.00pm (applicant agreed to reduce originally proposed hours until 10.30pm).

Number of staff

The proposal seeks two (2) volunteers/employees.


DESCRIPTION OF THE SITE AND LOCALITY

The subject site is legally described as Lot 4 in SP 80288 and is known as shop 4/47-67 Mulga Road, Oatley. The site is located within the Mulga Road, shopping centre with car parking located within the basement. The shop is located on the first floor and currently is vacant. The shop contains one (1) bathroom and two (2) balconies with a floor area of approximately 172sqm. Access to the shop is granted via one (1) entrance. The shop has two (2) allocated car spaces located within the basement.


BACKGROUND

Council’s Senior Environmental Health and Building Surveyor

“In view of the deficiencies in the building design and/or associated problems with the proposed use, it is recommended that prior to the issue of any consent, the following changes/amendments be incorporated in the design or the additional information must be submitted:
The existing unit which appears to have been approved and built to be used as a class 5 office is now proposed to be used as class 9b assembly building (Bridge Club/recreational use). In view of the change in use and classification of the building and that more than 50 persons are proposed to be accommodated, a minimum of two exits must be provided from the building. Because of the design of the building, it appears unlikely that a second exit can be provided. In the circumstances, the applicant must either limit the occupants to a maximum of 50 persons or provide two exits from the unit. Plans must be amended accordingly. Should the applicant claim that, an alternative method of compliance with the deemed to satisfy provisions of the BCA can be achieved, a statement from an accredited fire engineer must be submitted indicating that an alternative method of compliance with the performance provisions of the BCA can be formulated”.

“Spoke to Mr Jamison of Defire last Thursday 19/05. It was agreed, in accordance with the building referral comments that a favourable statement from the accredited fire engineer will be considered acceptable to determine the development application, where the fire engineer states that an alternative solution can be formulated to comply with the performance provisions of the Building Code of Australia. At Construction Certificate stage, it will be a requirement and is conditioned as consent that a fully detailed fire report from the accredited fire engineer must accompany the Construction Certificate application, justifying the non-compliances, to comply with the performance provisions of the Building Code of Australia.”

‘In balancing the requirements of DCP 2 against Mr Pindar’s assessment, I accept that the approach of Mr Pindar has some merit. In my view, it would be inappropriate to apply the general retail car parking rate for the supermarket when the evidence suggests that this use has a lower car parking rate. Additionally, I accept that the customers of the supermarket will use the café, in addition to the local residents who would walk to the site. To a lesser extent the same argument can be used for the proposed offices.

If the DCP requirements are adopted for the commercial offices and café (9 spaces and 20 spaces respectively) 29 spaces are required. With 117 spaces available in the basement car park, 88 spaces are available for the supermarket. As this figure is in excess of the RTA guidelines requirement of 74 spaces, I accept that adequate parking is provided on site.’

The existing uses and allocated car spaces within the complex result in four (4) car spaces designated for the subject site and vacant suite. It must be noted that the car parking for the whole complex adopted by the Land and Environment Court on the basis of patronage between the business uses results in fourteen (14) excess shared car spaces.

The car parking which was adopted by the original proposal 04/DA-454 was considered to be adequate by the Land and Environment Court. Previous development applications within the complex have relied on the excess of the shared fourteen (14) car parking spaces to service the remaining retail/commercial uses.

Should Council remain unsatisfied with regards to parking provisions for the proposed use, it is noted for the purposes of this assessment the proposed use is defined as club (general) under the RTA parking generation guide which is calculated at a rate of one (1) space per 18.5sqm per GFA. In this regard, the proposal would require ten (10) car spaces. The proposal generates a short fall of eight (8) car spaces as only two (2) have been allocated to this suite.

A total of fourteen (14) car parking spaces have been allocated for the shared car parking within the whole complex. If the application would be supported, this would result in eight (8) of the shared car parking spaces to be used by the proposed Bridge Club, in peak times when necessary.

In this regard it is considered that the proposal be approved subject to a trial period of twelve (12) months and conditions as attached.

The proposal is supported on the basis that sufficient car parking is provided during both peak (daytime) and off peak (evenings) through the surplus of fourteen (14) car parking spaces available. In this regard, the proposal is not considered to generate any unacceptable material detrimental impacts.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 3.4 – CRIME PREVENTION THROUGH ENVIRONMENTAL DESIGN

The proposal has been assessed against the applicable requirements within the subsection and is considered to comply with the intent of the applicable controls.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE - SECTION 3.9 WASTE MANAGEMENT

The proposal has provided a waste management plan and is deemed to be adequate in the removal, disposal and recycling of construction waste for the proposed works to be undertaken as part of this development application.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 5.5 – FOOD PREMISES.

The applicant had advised Council that the premise will not involve the sale of food however the provision of coffee and biscuits will be provided.

4. Impacts

Natural Environment

The proposed works are not considered to generate any unacceptable material natural environment impacts.

Built Environment

The proposed works are not considered to generate any unacceptable material built environment impacts.

Social impact

The proposed works are not considered to generate any unacceptable material social impacts.

Economic impact

The proposed works are not considered to generate any unacceptable material economic impacts.


5. REFERRALS, SUBMISSIONS AND THE PUBLIC INTEREST

Resident

Adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit any comments on the proposal. In response two (2) submissions were received however only one (1) raised any issues. These are discussed below.

Impact on trading opportunity

Concerns have been raised regarding that the proposed use could be alternatively accommodated within a conference room of a hotel, RSL Club or the like and that such a proposal may result in the use of an alternative use such as a tutoring centre which could only be set up in a commercial space.

Comment: The proposed works are considered to be a permissible use subject to development consent. In addition, the proposed works adequately satisfy the objectives of the Draft SEPP (Competition) 2010 and is not considered to detract from other permissible commercial activities.

Car parking, traffic and safety

Concerns have been raised regarding the extent of car parking required to accommodate the proposal and that the provision of the car parking spaces may detract from the viability of the two (2) vacant shops and existing businesses.

Comment: The proposed works are considered not to generate any unacceptable car parking, traffic or safety impacts. The proposed use is not considered to generate unacceptable car parking impacts to neighbouring properties as the car parking is provided on site in the form of two (2) allocated car parking spaces and access to fourteen (14) shared car parking within the complex. The car parking required to accommodate the proposed use is considered not to detract from the viability in terms of car parking, of the two (2) vacant shops or existing businesses.

Activities of Club

Concerns have been raised regarding the regulation of activities and clientele of the club and adverse impact to surrounding businesses.

Comment: The proposal seeks development consent for the use of the premise as a bridge club and proposes the hours of operation as earlier addressed within this report which is considered not to generate any adverse impacts to the surrounding area or businesses. The use is permissible subject to development consent. The club is not a licensed premises and will not serve alcohol or partake in the sale of food with the maximum hours of operation until 10.00pm (latest) from Monday to Thursday. A condition restricting the premises to one hundred (100) persons maximum at one time has been imposed to reduce potential fire risk issues.

Note: It is also noted that one (1) of the submissions requested information on the type of business was being proposed. Council contacted the objector via email and informed the objector that the proposed premise was to be used for a bridge (card) club. In response, no further concerns were received.
Site suitability

The proposed works are considered suitable for the subject site.

Public Interest

The proposal is considered to be in the public interest.

Council referrals

Senior Environmental Health and Building Surveyor

The proposal was referred to Council’s Senior Environmental Health and Building Surveyor and is supported subject to conditions of consent.

Senior Traffic Engineer

The proposal was referred to the Traffic Section for comment. In response, Council’s Senior Traffic Engineer has made the following comments.

“The Traffic Section cannot support the application without provision of off street parking for the parking demand that will be generated by the development. On-Street Parking is already in high demand within the vicinity of the development and accordingly this development will increase the demand for on-street parking in the area.”

THAT the application be approved subject to the following conditions:

Plan Number	Plan Date	Description	Prepared By
A02	N/A (received by Council 25 Feb 2011	Master Floor Plan	Ruth Newman Architect

4. The proposal must comply with the provisions of the Building Code of Australia. However, if this requires any changes to the external portion of the building it may require a Section 96 Modification to be lodged and approved with Council, prior to the issue of the Construction Certificate.

(2) Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, and must be removed when the work has been completed.

(3) This clause does not apply 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.

(4) These signage requirements do not apply to in relation to Crown building work that is certified to comply with the technical provisions of the State's building laws.

To Obtain a Construction Certificate

(a) Fees to be paid to Council:

Fee Type	Paid	Fee Type	Amount	Receipt Date	Receipt No
Development Application Fee	X	DA1	$275.00	25 Feb 11	346548
Imaging Fee	X	AP165	$65.00	25 Feb 11	346548
Long Service Levy			$122.00
Builders Damage Deposit		BON2	$1,500.00
Inspection Fee for Refund of Damage Deposit		DA6	$125.00
The following fees apply where you appoint Council as your Principal Certifying Authority (PCA). (If you appoint a private PCA, separate fees will apply)
PCA Service Fee		DA6	$652.48

Fees and charges above are subject to change and are as set out in the version of Council's Schedule of Fees and Charges or as required by other Government Authorities, applicable at the time of payment.

(a) Payment to Council of a Damage Deposit for the cost of making good any damage caused to any Council property as a result of the development: Refer to Fee Table.

(b) Payment to Council of a non refundable Public Works Inspection Fee to enable assessment of any damage and repairs where required: Refer to Fee Table.

(c) At the completion of work Council will inspect the public works, and the damage deposit will be refunded in full upon completion of work where no damage occurs. Otherwise the amount will be either forfeited or partly refunded according to the amount of damage.

(d) Prior to the commencement of work a photographic record of the condition of the Council nature strip, footpath and driveway crossing, or any area likely to be affected by the proposal, shall be submitted to Council.

(e) Payments pursuant to this condition are required to be made to Council before the issue of the Construction Certificate.

* Quick Check agents details - see Building Developing and Plumbing then Quick Check; and
* Guidelines for Building Over/Adjacent to Sydney Water Assets - see Building Developing and Plumbing then Building and Renovating.

Before Commencing the Development

(a) A Construction Certificate for the building work has been issued by:

(i) the consent authority; or
(ii) 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

(c) The Principal Certifying Authority has, no later than 2 days before building work commences:

(i) notified Council of his or her appointment;

(d) the person having the benefit of the development consent has:

(i) appointed a principal contractor for the building work who must be the holder of a contractor licence for the residential building work involved;
(ii) notified the principal certifying authority of any such appointment, and

the person having the benefit of the development consent has given at least 2 days notice to the Council of the person's intention to commence the erection of the building.

Note: If the Principal Certifying Authority is the Council, the nomination will be subject to the payment of a fee for the service to cover the cost of undertaking all necessary inspections and the issue of the appropriate certificates.

(a) Obtain a Construction Certificate from either Hurstville City Council or an Accredited Certifier - a fee applies for this service; and

(b) Lodge with Hurstville City Council any Construction Certificate obtained from an Accredited Certifier (together with associated plans and documents) - a fee applies for this service.

(a) Not less than two (2) days notice of the date on which it is proposed to commence work associated with this Development Consent.

(b) Details of the appointment of a Principal Certifying Authority (either Hurstville City Council or an Accredited Certifier).

(c) Details of the name, address and licence details of the Builder.

During the Development

(a) All structural inspections,
(b) All inspections necessary to determine that the appropriate conditions attached to this consent have been complied with, and
(c) All inspections necessary to determine that the requirements of the Building Code of Australia are being met.

Additionally, construction work on all buildings (except that on single dwelling houses and associated structures on the site of a single dwelling house) is prohibited on Saturdays and Sundays on weekends adjacent to a public holiday.

(a) window signs should be on the inside of the glass and must not cover more than one half of the window
(b) if a language other than English is used on the sign, there must be an accurate English translation in lettering of at least the same size
(c) signs should look professional (not handwritten) and must be securely fastened
(d) signs, posters or notices must not be glued to any part of the exterior of the building

Before Occupation

(a) any preconditions required by the development consent to be met have been met; and
(b) such building work has been inspected by that principal certifying authority, or, in the case of all inspections other than the last critical stage inspection, by another certifying authority, on such occasions as are prescribed in the Environmental Planning and Assessment Regulation, 2000, and on such other occasions as may be required by the principal certifying authority and the conditions required by this development consent.

(a) has been assessed by a properly qualified person, and
(b) was found, when it was assessed, to be capable of performing to at least a standard required by the current fire safety schedule for the building for which the certificate is issued.

Note: The owner of the building:

(a) must cause a copy of the fire safety certificate (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and
(b) must cause a further copy of the fire safety certificate (together with a copy of the current fire safety schedule) to be prominently displayed in the building.

(a) has been assessed by a properly qualified person, and
(b) was found, when it was assessed, to be capable of performing to at least a standard required by the current fire safety schedule for the building for which the certificate is issued.

The owner of the building:

(a) must cause a copy of the fire safety certificate (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and
(b) must cause a further copy of the fire safety certificate (together with a copy of the current fire safety schedule) to be prominently displayed in the building.

After Occupation/Ongoing Conditions

(i) in the case of an essential fire safety measure applicable by virtue of a fire safety schedule, to a standard no less than that specified in the schedule, or
(ii) in the case of an essential fire safety measure applicable otherwise than by virtue of a fire safety schedule, to a standard no less than that to which the measure was originally designed and implemented, and

Other Approvals - Section 78(5), Local Government Act 1993

Nil.

Advices to Applicant

(a) Apply for a Review of a Determination under Section 82A of the Environmental Planning and Assessment Act 1979. A request for review and the decision by Council of that request must be made within six (6) months of the date of this Notice of Determination and be accompanied by the relevant fee. If your development application was lodged with a consent authority prior to 28 February 2011, that request for a review and decision by Council must be made within twelve (12) months of this Notice of Determination. You must ensure that an application for review of determination gives Council a reasonable period in which to review its decision having regard to the relevant issues and complexity of the application.
OR

(b) Appeal to the Land and Environment Court within six (6) months after the date on which you receive this Notice of Determination, under Section 97 of the Environmental Planning and Assessment Act 1979. If your development application was lodged with a consent authority prior to 28 February 2011, an appeal to the Land and Environment Court must be made within twelve (12) months of this Notice of Determination.

(Section 97 of the Environmental Planning and Assessment Act 1979 does not apply to the determination of a development application for State significant development or local designated development that has been the subject of a Commission of Inquiry.)

(a) street/house number and street name
(b) side of the street
(c) name of nearest cross street
(d) distance from nearest cross street

Applicant	Ritz Homes Pty Ltd
Proposal	Demolition of existing dwelling and construction of a new two (2) storey dwelling house with a swimming pool and an elevated deck to the northern side of the property
Zoning	Zone 2 - Residential
Planning instruments applicable	Hurstville Local Environmental Plan 1994, Greater Metropolitan Regional Environmental Plan No 2- Georges River Catchment, State Environmental Planning Policy (Building sustainability Index: BASIX) 2004, State Environmental Planning Policy No 55 - Remediation of Land, Development Control Plan No 1 - LGA Wide - Section 3.1 Car Parking, Section 3.5 Energy Efficiency, Section 4.1 Single Dwelling Houses, Section 5.9 Swimming Pools and Spas
Hurstville Local Environmental Plan 1994 interpretation of use	Dwelling house
Owner/s	Mrs Mladenka Rose Zrno
Existing development	Single storey dwelling with detached garage to the rear
Cost of development	$716,000.00
Reason for referral to Council	Variations to DCP 1
Report author/s	Development Assessment Officer, Mr R Guirguis
File No	11/DA-136
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. The application seeks approval for the demolition of existing dwelling and construction of a new two (2) storey dwelling house with a swimming pool and an elevated deck to the northern side of the property.

2. The proposal satisfies the provisions of Hurstville Local Environmental Plan 1994, however it results in variations to Development Control Plan No 1 in relation to side setbacks and setback of swimming pool from a boundary fence.

3. There were no submissions received in relation to the proposed development.


AUTHOR RECOMMENDATION

THAT the application be approved in accordance with the conditions included in the report.


REPORT DETAIL

DESCRIPTION OF THE PROPOSAL

The application seeks approval for the demolition of existing dwelling and construction of a new two (2) storey dwelling house with a swimming pool and an elevated deck to the northern side of the property

The proposed ground floor level contains all living areas, with provisions for a media room, two (2) bathrooms and double garage to the front. The layout of the ground floor level has been designed with an indentation along the middle of its northern wall for the provision of a semi inground swimming pool connected to wrap around covered deck which is accessed from the family room to the rear of the building.

The proposed first floor level is setback from the ground floor front to the rear and southern side and contains five (5) bedrooms, two (2) bathrooms and a sitting room.

The proposal has a hipped gable roof and the building is considered to be well articulated by means of multi tier roof design, portico entrance a various setbacks from the western (front) façade and the northern (side) façade where it addresses Council’s Public Reserve.


DESCRIPTION OF THE SITE AND LOCALITY

The site is a rectangular shaped site with a frontage of 12.19m to Glen Road and an area of 579.7sqm. The site is located on the eastern side of the street. Existing on the site is a single storey fibro dwelling with an attached carport to the north side and a detached garage to the rear

Adjoining the site to the north is Seaforth Avenue public reserve and two (2) storey dwelling house to the south. Located at the rear of the site is the rear yard of a single storey dwelling house fronting Seaforth Avenue. The area is generally low density residential in character.

The site is located within the Foreshore Scenic Protection Area and has a slope from the rear south eastern corner to the front north western corner in the order of approximately 4m.


COMPLIANCE AND ASSESSMENT

The development has been inspected and assessed under the relevant Section 79C(1) "Matters for Consideration" of the Environmental Planning and Assessment Act 1979.

1. Environmental Planning Instruments

HURSTVILLE LOCAL ENVIRONMENTAL PLAN

The land is zoned 2 – Residential and the proposed use is permissible within the zone. The proposal meets the zone objectives.

Clause 14 - Tree preservation orders

“(5) Where a tree preservation order is in force a person must not ringbark, cut down, top, lop, remove, injure or destroy any tree covered by the order without the consent of the council.

(7) When considering an application for a consent referred to in subclause (5) the council must make an assessment of the importance of the tree or trees in relation to:
(a) soil stability and prevention of land degradation,
(b) scenic or environmental amenity, and
(c) vegetation systems and natural wildlife habitats.”

“(4) (a) the appearance of the proposed development from both the waterway and adjacent foreshore areas;”

“(b) The likely impact of the proposed development on views from adjoining properties and public places to the waterway and adjacent foreshore areas;”

“(c) The likely effect of the proposed development on the natural topography, natural rock formations, canopy vegetation, or any other significant vegetation;”

“(d) The design of the proposed development and selection of materials and their impact on the character of the locality and landscaped open space on the site”

Single Dwelling House Controls	Standard	Proposed	Complies
Site Area		579.7sqm	Yes
4.1.3.1 – Maximum Floor Area	Less than or equal to 630sqm = 0.55:1 (318.8sqm)	311.87sqm or 0.53:1	Yes
4.1.3.2 – Landscaping and Open Space Areas Principal Private Open Space Deep Soil Landscaping	Min. 45% of the total site area = 260.8sqm * Min. 30sqm * Min. 5m in any direction * Ground level/behind building line * Min. 25% of the total site area = 144.9sqm (Min. soil depth = 0.9m and Min. width of 2m ) * Site width >12m, Front yard deep soil area = Min. 15sqm	Landscaped area = 258.84sqm (44%) Principal private open space = 144sqm Dimensions = 12m x 12m excluding the covered alfresco area Deep soil landscaping = 168.6sqm 29% All with min dimension of 2m and 900mm deep Front yard = 18sqm	Yes Yes Yes Yes Yes Yes
4.1.3.3 – Building Height Max. Ridge Height Max. Ceiling Height	9m to ridge level 7.2m above the existing ground level	8.3m 6.9m	Yes Yes
4.1.3.4 – Setbacks Front Setback (Building Line) Side Boundary Setbacks (Basement and Ground Level)/ Eaves Rear Setback	Min. 4.5m to front wall of dwelling Min. 0.9m to boundary Min. 3m for ground floor levels Min 6m for first floor levels	4.9m 900mm from southern side to garage and 1.5m from north and south to first floor level Nil northern boundary setback for deck roof 13m for ground and first floor levels	Yes Yes Yes No (1) Yes
4.1.3.8 – Parking and Access	Min of 2 car spaces for 3 bedrooms or more and 1 space for 1 and 2 bedrooms All required spaces behind the building line for sites equal to and greater than 12m Carports and garages are not permitted forward of the building line in a new building	2 spaces provided Both spaces are behind the building line None proposed	Yes Yes Yes
4.1.3.9 – Visual and Acoustic Privacy	Windows offset by 1m	All windows have been offset, highlight and/ or obscured	Yes
4.1.3.10 – Solar Design and Energy Efficiency	Principal private open space of both subject and adjoining building to receive a min. 3hrs direct solar access between 9am and 3pm in mid-winter	3 Glen Road will experience complete overshadowing to three windows along their respective northern elevation at ground floor level and another 3 widows at the first floor level along the same elevation will partially achieve the minimum required solar access of 3 hours between 9am to 12pm on 21 June Notwithstanding, the southern adjoining private open space will receive the minimum required solar access	No (2) Yes
4.1.3.12 – Stormwater	To comply with relevant: Council policy, BCA and Australian Standard	Discharge is via gravity system	Yes

The roof of the deck is on the northern side extends to the boundary. The roof of the deck is an extension of the ground floor main roof of the dwelling hence making it a part of the dwelling. The actual wall of the dwelling is setback 2.5m from the boundary at this point.

Incorporating the roof of the deck into the main roof is considered to integrate well with the design of the dwelling and generally presents better when viewed from the adjoining reserve.

This variation is considered negligible in nature and therefore is supported.

(2) Solar Design and Energy Efficiency

Although the proposal at lodgement complied with the maximum 9m height, it has been amended in order to minimise the shadow impact.

The overall height of the building has been amended from 9m in height to 8.3m.

Whilst the overshadowing impact is considered inevitable due to the site’s east/west orientation, the reduction in the height of the building by 700mm is considered to have reduced the shadow impact from moderate to minor within reasonable parameters and is supported.

As can be seen, the proposal complies with the provisions of the Single Dwelling controls.

DEVELOPMENT CONTROL PLAN NO 1 – LGA WIDE – SECTION 5.9 SWIMMING POOLS AND SPAS

Swimming Pools and Spas	Standard	Proposal	Complies
Pool Sitting	In ground swimming pool shall be built so that the top of the swimming pool is as close to the existing ground level as possible	Up to 950mm above NGL at the north western corner	No (1)
Side Setbacks	Pool edge must be set back at least 1.5m from any side or rear boundary	1m from the northern boundary	No (2)
Setback from pool fencing	Swimming pool edge must be at least 1m from pool fencing	1.5m	Yes
Filling	Filling of land between pool and property boundary is not permitted	Filling of land surrounding the pool and the northern property boundary is proposed to maximum height of 700mm	No (3)
Noise	The position of the swimming pool and ancillary equipment must be minimised to reduce the impact of noise on adjoining neighbours	Position of filter will be conditioned to be a minimum of 5m away from any adjoining dwelling	To be conditioned
Access to swimming pools	Part 2 of the Swimming Pool Act 1992, AS1926 – Swimming Pool Safety including signage, access and fencing	A child resistant barrier is achieved around the perimeter of the swimming pool. Access is via a single gate on the eastern side of the fence. Standard conditions of consent are included regarding child resistance devices and standards of construction.	Yes
Fencing and Gates	The location of fencing for private swimming pools must comply with one of the following options: - Option A - Option B - Option C	Option A– No direct access to the swimming pool area from the building	Yes
Design and Construction of Fencing	- Fencing shall be no less than 1.2m at any point along the fence, on the outside of the fencing, and - Height of any opening between the bottom of the fence and finished ground level shall not exceed 100mm, and -Horizontal rails (horizontal members) shall not be less than 900mm apart; -The top surface of the highest lower rail shall be at least 1.1m below the top of the fence; -The clear space between any adjacent vertical rails such as palings, rods or wires shall not exceed 100mm at any point	1.2m high swimming pool fence above finished floor level. A standard condition of consent has been imposed to ensure that all these requirements are met during construction.	Yes
Gates	Gates must swing outwards away from the swimming pool area and be fitted with a latching device	A standard condition of consent has been imposed to ensure compliance	Yes
Outside surface	Fences with horizontal members, projections or indentations must not act as a hold for climbing	A standard condition of consent has been imposed to ensure compliance	Yes

(1) Pool sitting, (2) Side Setback and (3) Filling

The proposed design revolves around maximising the dwelling’s outlook to the north where the site adjoins Seaforth Public Reserve.

The positioning of the proposed swimming pool and the associated fill along this side ensures good solar access and utilises the natural slope in the land so as to not to excavate unnecessarily. This has environmental benefits and does not result in an amenity impact in terms of privacy due to the site adjoining a public reserve.

The non compliant setback for the proposed swimming pool is supported as a 1.5m setback from the northern side boundary will not make this area suitable for the intended use. Furthermore, it would result in further excavation to the rear of the property as an alternative location for the swimming pool.

As such, alternative solutions that may achieve numerical compliance in this case are considered to pose more of an impact than the proposed variations.

4. Impacts

Natural Environment

The proposal is not considered to pose any detrimental impacts on the natural environment. Conditions of consent are recommended for replacement vegetation to be replanted for the proposed removal of the trees. Stormwater is designed to discharge to the street via gravity.

Built Environment

Streetscape

The proposal is considered to contribute positively to the existing streetscape by providing a suitable and consistent design resembling other dwellings within the locality yet remaining distinctive in terms of its well articulated façade. The styles and material colours provided in the Schedule of Finishes are also considered to be acceptable and well suited to its surroundings.

Design

The proposed building form is considered to maximise the attributes of the site in terms of solar access and cross ventilation. It offers a symmetrical façade with a multi tiered hipped gable roof design.

Privacy

There are no detrimental privacy impacts that have been identified in the proposed design as the site adjoins a public reserve to the north where most of the windows have been designed to face this direction.

Heritage

The subject property is not a heritage listed item or located within the vicinity of a heritage listed item.

Social Impact

There are no adverse social impacts

Economic Impact

There are no adverse economic impacts

Suitability of the Site

The subject site is considered suitable for the proposed development in terms of its size, shape, and topography. The site is not identified as being bushfire affected, acid sulphate soils affected, flood affected or believed to contain contaminated lands.


5. REFERRALS, SUBMISSIONS AND THE PUBLIC INTEREST

Resident

Adjoining residents were notified by letter and given fourteen (14) days in which to view the plans and submit any comments on the proposal. There was no submission received in relation to the proposed development.

Council Referrals

Tree Management Officer

No objections were raised subject to standard conditions of consent


6. CONCLUSION

The proposal satisfies the provisions of Hurstville Local Environmental Plan 1994.

The proposed numerical variations to Development Control Plan No 1 concerning the setbacks of the swimming pool and the roof of the dwelling along the northern boundary are considered negligible as the subject site adjoins a public reserve and no adverse privacy impact is imposed.

The proposal has been amended through the course of this assessment even though it was initially complying with the maximum height requirements, in an effort to minimise the shadow impact upon the southern adjoining property, predominantly caused by the east to west orientation of the site.

The proposal in its amended form is considered to have reduced the shadow impact caused by the site’s orientation from moderate to minor within reasonable parameters limiting the cut in the land to the southern side of the site.

As such, the proposed design is considered to fit well within its setting and have utilised the site’s attributes to the advantage of the development itself as well as the neighbouring property to the south.


RECOMMENDATION

THAT pursuant to Section 80(1)(a) of the Environmental Planning and Assessment Act, 1979, as amended, the Council, grants development consent to Development Application 11/DA-136 for the demolition of existing dwelling and construction of a new two (2) storey dwelling house with a swimming pool and an elevated deck to the side of the property on Lot 30 DP 3230 and known as 1 Glen Road, Oatley, subject to the attached conditions:

THAT the application be approved subject to the following conditions:

Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989 (relating to building work)

All building work must be carried out in accordance with the provisions of the Building Code of Australia.

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 authorized to be carried out by the consent commences.

(1) A sign must be erected in a prominent position on any work site on which building work, subdivision work or demolition is being carried out:

(a) showing the name, address and telephone number of the principal certifying authority for the work
(b) showing the name of the principal contractor (if any) for any building work and a telephone number at which that person may be contacted outside working hours
(c) stating that unauthorised entry to the work site is prohibited

(2) Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, and must be removed when the work has been completed.

(3) This clause does not apply 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.

(4) These signage requirements do not apply to in relation to Crown building work that is certified to comply with the technical provisions of the State's building laws.

Notification of Home Building Act 1989 Requirements

(a) in the case of work for which a principal contractor is required to be appointed:
(i) the name and licence number of the principal contractor
(ii) the name of the insurer by which the work is insured under Part 6 of that Act

(b) in the case of work to be done by an owner builder:
(i) the name of the owner builder
(ii) if the owner builder is required to hold an owner builder permit under the Act, the number of the owner builder permit

To Obtain a Construction Certificate

(a) Evidence of an Owner Builder Permit (Class 1 & 10 buildings only).

(b) Evidence of Home Building (Private) Insurance Certificate.

(c) Fees to be paid to Council:


Fee Type	Paid	Fee Type	Amount	Receipt Date	Receipt No
Development Application Fee	X	DA1	$1,085.00	2 May 11	349414
Development Application Fee	X	DA1	$556.00	12 May 11	349986
Plan First Fee	X	AP35	$192.00	2 May 11	349414
Plan First Fee	X	AP35	$266.24	12 May 11	349986
Notification Fee	X	AP12	$131.00	2 May 11	349414
Imaging Fee	X	AP165	$97.00	2 May 11	349414
Long Service Levy		AP34	$2,506.00
Builders Damage Deposit		BON2	$1,500.00
Inspection Fee for Refund of Damage Deposit		DA6	$125.00
The following fees apply where you appoint Council as your Principal Certifying Authority (PCA). (If you appoint a private PCA, separate fees will apply)
PCA Services Fee		DA6	$2,769.66
Construction Certificate Application Fee		CC1	$1,977.22
Construction Certificate Imaging Fee		AP165	$165.83

Fees and charges above are subject to change and are as set out in the version of Council's Schedule of Fees and Charges or as required by other Government Authorities, applicable at the time of payment.

(a) Payment to Council of a Damage Deposit for the cost of making good any damage caused to any Council property as a result of the development: $1,500.00

(b) Payment to Council of a non refundable Inspection Fee to enable assessment of any damage and repairs where required: $125.00

(c) At the completion of work Council will inspect the public works, and the damage deposit will be refunded in full upon completion of work where no damage occurs. Otherwise the amount will be either forfeited or partly refunded according to the amount of damage.

(d) Prior to the commencement of work a photographic record of the condition of the Council nature strip, footpath and driveway crossing, or any area likely to be affected by the proposal, shall be submitted to Council.

Please refer to the web site www.sydneywater.com.au for:

* Quick Check agents details - see Building Developing and Plumbing then Quick Check; and

* Guidelines for Building Over/Adjacent to Sydney Water Assets - see Building Developing and Plumbing then Building and Renovating.

Before Commencing the Development

(a) A Construction Certificate for the building work has been issued by:

(ii) An accredited certifier; and

(b) The person having the benefit of the development consent has:

(b1) The Principal Certifying Authority has, no later than 2 days before the building work commences:
(i) Notified the Council of his or her appointment, and

(b2) The person having the person having the benefit of the development consent, if not carrying out the work as an owner-builder, has:

(c) The person having the person having the benefit of the development consent has given at least 2 days notice to the Council of the person's intention to commence the erection of the building.

(a) Obtain a Construction Certificate from Hurstville City Council - a fee applies for this service; or

(b) Lodge with Hurstville City Council any Construction Certificate obtained from an Accredited Certifier (together with associated plans and documents) - a fee applies for this service.

(a) Not less than two (2) days notice of the date on which it is proposed to commence work associated with this Development Consent.

(b) Details of the appointment of a Principal Certifying Authority (either Hurstville City Council or an Accredited Certifier).

(c) Details of the name, address and licence details of the Builder.

Note: This condition applies to buildings with a rise of storeys not more than three that contains two or more dwellings, where a storey has the same meaning as in the BCA and does not include a space within a building if the space includes accommodation only intended for vehicles.

(a) compliance with the approved Soil and Water Management Plan
(b) removal or disturbance of vegetation and top soil is confined to within 3m of the approved building area (no trees to be removed without approval)
(c) all uncontaminated run-off is diverted around cleared or disturbed areas
(d) silt fences or other devices are installed to prevent sediment and other debris escaping from the cleared or disturbed areas into drainage systems or waterways
(e) all erosion and sediment controls are fully maintained for the duration of demolition/ development works
(f) controls are put into place to prevent tracking of sediment by vehicles onto adjoining roadways
(g) all disturbed areas are rendered erosion-resistant by turfing, mulching, paving or similar
(h) all water pumped or otherwise removed from excavations or basement areas is filtered to achieve suspended solids/non filterable residue levels complying with the Australian Water Quality guidelines for Fresh and Marine Waters
(i) pumped or overland flows of water are discharged so as not to cause, permit or allow erosion
(j) compliance with the Do it Right on Site brochure requirements publicated by SSROC

During the Development

Additionally, construction work on all buildings (except that on single dwelling houses and associated structures on the site of a single dwelling house) is prohibited on Saturdays and Sundays on weekends adjacent to a public holiday.

(a) modification of existing soil levels, storage of materials, site sheds and machinery;

(b) preparation of building materials, eg. concrete, or chemical treatments;

(c) the movement of pedestrian or vehicular traffic;

(d) the temporary or permanent location of services, or the works required for their installation, eg. trenches, holes or canals.

Before Occupation

(a) That any preconditions required by the development consent to be met have been met; and

(b) Such building work has been inspected by that Principal Certifying Authority, or, in the case of all inspections other than the last critical stage inspection, by another certifying authority, on such occasions as are prescribed in the Environmental Planning and Assessment Regulation, 2000, and on such other occasions as may be required by the Principal Certifying Authority and the conditions required by this development consent.

The work must be completed before the issue of an Occupation Certificate.

(a) Construct a 130mm thick concrete crossing reinforced with F62 fabric.
(b) Replace all redundant laybacks with kerb and guttering, and redundant concrete with grass.

Council will provide a quote for this work upon request.

or alternatively:

A private contractor may carry out above work subject to:

The work must be complete before the issue of an Occupation Certificate.

After Occupation/Ongoing Conditions

(a) The Swimming Pools Act 1992 & Regulation;
(b) Australian Standard 1926 (1986) - Swimming Pool Safety;
(c) Council's Development Control; and
(d) Protection of the Environment Operations Act 1997.

Monday to Friday (other than a Public Holiday): 7.00 am to 8.00 pm
Saturday, Sunday and Public Holiday: 8.00 am to 8.00 pm

(a) no ground level may be raised or filled except where shown specifically on the approved plans;
(b) all pool/spa waste water is to be discharged to the sewer according to the requirements of Sydney Water;
(c) the swimming pool must not be used for commercial or professional purposes;
(d) pool water quality must be maintained to Council's satisfaction;
(e) install a hydrostatic pressure relief valve in the base of the pool (in ground pools);
(f) provide permanently fixed depth markers at each end of the pool;
(g) drain paved areas to the landscaped areas; and
(h) arrange any external pool/spa lighting to minimise glare nuisance to adjoining owners.

Advices to Applicant

(a) Apply for a Review of a Determination under Section 82A of the Environmental Planning and Assessment Act 1979. A request for review and the decision by Council of that request must be made within six (6) months of the date of this Notice of Determination and be accompanied by the relevant fee. If your development application was lodged with a consent authority prior to 28 February 2011, that request for a review and decision by Council must be made within twelve (12) months of this Notice of Determination. You must ensure that an application for review of determination gives Council a reasonable period in which to review its decision having regard to the relevant issues and complexity of the application.
OR

(b) Appeal to the Land and Environment Court within six (6) months after the date on which you receive this Notice of Determination, under Section 97 of the Environmental Planning and Assessment Act 1979. If your development application was lodged with a consent authority prior to 28 February 2011, an appeal to the Land and Environment Court must be made within twelve (12) months of this Notice of Determination.

(a) street/house number and street name
(b) side of the street
(c) name of nearest cross street
(d) distance from nearest cross street

(a) Pump concrete from within a public road reserve or laneway.
(b) Stand a mobile crane within the public road reserve or laneway.
(c) Use part of Council's road/footpath area.
(d) Pump stormwater from the site to Council's stormwater drains.
(e) Store waste containers, skip bins, and/or building materials on part of Council's footpath or roadway.

an appropriate application for a Work (construction) Zone, a pumping permit, a hoarding, an approval to stand a mobile crane or an application to pump water into a public road, together with the necessary fee in accordance with Council's Schedule of Fees and Charges shall be submitted to Council and approval obtained before commencement of any of the those activities.

84. If you need more information, please contact Development Assessment Officer Ramez Guirguis on 9330-6275 during normal office hours.

* * * * *


DECISION - DAC

THAT the application be approved in accordance with the conditions included in the report.

Applicant	Daoud Building Group
Proposal	Section 96AB Review – modify original development consent to retain unauthorised first floor balcony
Zoning	Zone 2 - Residential
Planning instruments applicable	Hurstville Local Environmental Plan 1994, Development Control Plan No 1 – LGA Wide – Section 4.2 Dual Occupancy
Hurstville Local Environmental Plan 1994 interpretation of use	Dual Occupancy
Owner/s	Robert and George Daoud
Existing development	Dual occupancy development
Cost of development	N/A
Reason for referral to Council	Original application determined by Council and unauthorised building works
Report author/s	Team Leader Development Assessment, Ms L Locke
File No	10/DA-139:3
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. The application seeks a Review of Council’s refusal of a Section 96 Modification Application for a first floor rear balcony on a dual occupancy development.

2. The proposal complies with the Hurstville Local Environmental Plan and Development Control Plan No 1.

3. The balcony has been constructed without development consent.

4. No submissions were received in response to Council’s notification of the Review.


AUTHOR RECOMMENDATION

THAT Council rescind its original determination and approve the application.


REPORT DETAIL

DESCRIPTION OF THE PROPOSAL

The application seeks a Review under Section 96AB of the Environmental Planning and Assessment Act, 1979 of Council’s previous refusal of a modification application for a rear first floor balcony on a dual occupancy development.

The approved dual occupancy development comprises a two (2) storey dwelling fronting Myall Street and a one (1) and a half storey dwelling fronting Myrtle Street. The balcony subject of this Review is located on the rear of the dwelling fronting Myrtle Street. The balcony is accessed via a bedroom.

The balcony has been built without development consent and has dimensions of 3.4m and 2.7m. It has been designed to be integrated into the roof below and has a solid balustrade.

As part of the Review application the proposal has been amended in the following manner:

* A 1.8m privacy screen has been included on the western elevation of the balcony,
* An 800mm wide planter box incorporating.


BACKGROUND

9 Nov 10 Development consent was granted for demolition of existing structures, construction of a detached dual occupancy and subdivision into two (2) Torrens title allotments.

9 Mar 11 A Section 96 modification application was lodged for approval of the unauthorised balcony.

4 May 11 The Section 96 modification application was reported to the Development Assessment Committee who deferred consideration of the matter for a site inspection by Ward and interested Councillors.

8 Jun 11 Council’s Development Assessment Committee resolved to refuse the modification application and “balcony to be removed and reinstated to its original state in accordance with the approved plan”.

15 Jul 11 Current Section 96AB Review of Determination application lodged.


DESCRIPTION OF THE SITE AND LOCALITY

The subject site is located on the eastern side of Myall Street at the corner of Myrtle Street, Oatley. Myrtle Street has been closed off and only pedestrian access is permitted to Myall Street. The site has a frontage to Myall Street of 20.115m and a frontage to Myrtle Street of 50.29m and a site area of 1011.5sqm.

The dual occupancy development, subject of this Review is under construction and is nearing completion.

Adjoining the site to the south is a two (2) storey dwelling and to the rear of the site (facing Myrtle Street) is a two (2) storey dwelling. On the opposite side of Myall Street and Myrtle Street are one (1) and two (2) storey dwelling houses. The area surrounding the subject site is characterised by one (1) and two (2) storey dwelling houses.


COMPLIANCE AND ASSESSMENT

The development has been inspected and assessed under the relevant Section 79C(1) "Matters for Consideration" of the Environmental Planning and Assessment Act 1979.

ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979

Section 96AB Review where modification application refused or conditions imposed

This Review has been undertaken in accordance with the provisions of Section 96AB of the Environmental Planning and Assessment Act, 1979.

For the benefit of Councillors, the previous assessment report is attached at the end of this report.

1. Environmental Planning Instruments

HURSTVILLE LOCAL ENVIRONMENTAL PLAN 1994

The permissibility of the development and compliance with the objectives and standards of the Hurstville Local Environmental Plan was established in the original development consent. This application does affect the acceptability of the development pursuant to the Local Environmental Plan.

This application does not affect the original application’s compliance with any other environmental planning instrument.

2. Draft Environmental Planning Instruments

There are no draft Environmental Planning Instruments applicable to this application.

3. Development Control Plans

The balcony with planter bed and screening does not result in any additional non compliance with Development Control Plan No 1 from the originally approved development.

4. Impacts

Natural Environment

No impact.

Built Environment

Privacy

The following condition was recommended as part of the assessment of the modification application:

“d) The balustrade to the southern elevation of the first floor balcony to bedroom 3 being a minimum 1.5m high. The balustrade is to be of a material that cannot be seen through such as translucent glazing or louvres. If louvres are to be used they are to be fixed in a position that does not allow downward viewing of adjoining developments.”

THAT the application be approved subject to the following conditions:

3. The proposal must comply with the provisions of the Building Code of Australia. However, if this requires any changes to the external portion of the building it may require a Section 96 Modification to be lodged and approved with Council, prior to the issue of the Construction Certificate.

4. OC3 - Amenity - The implementation of this development shall not adversely affect the amenity of the neighbourhood by way of the emission or discharge of noise, vibrations, fumes, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil or other harmful products.

Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989 (relating to building work)

All building work must be carried out in accordance with the provisions of the Building Code of Australia.

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 authorized to be carried out by the consent commences.

(2) Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, and must be removed when the work has been completed.

(3) This clause does not apply 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.

(4) These signage requirements do not apply to in relation to Crown building work that is certified to comply with the technical provisions of the State's building laws.

Notification of Home Building Act 1989 Requirements

(a) in the case of work for which a principal contractor is required to be appointed:

(ii) the name of the insurer by which the work is insured under Part 6 of that Act

(b) in the case of work to be done by an owner builder:

(ii) if the owner builder is required to hold an owner builder permit under the Act, the number of the owner builder permit

If arrangements for doing the residential building work are changed while the work is in progress so that the notified information 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. These insurance requirements do not apply to Crown building work that is certified to comply with the technical provisions of the State's building laws.

To Obtain a Construction Certificate

(a) Evidence of an Owner Builder Permit (Class 1 & 10 buildings only).

(b) Evidence of a Home Building (Private) Insurance Certificate.

(c) Fees to be paid to Council:

Fee Type	Paid	Fee Type	Amount	Receipt Date	Receipt No
Development Application Fee	X	DA1	$1,725.00	16 Apr 10	331865
Plan First Fee	X	AP35	$512.00	16 Apr 10	331865
Notification Fee	X	AP12	$127.00	16 Apr 10	331865
Imaging Fee	X	AP165	$156.00	16 Apr 10	331865
Long Service Levy	X	AP34	$2,800.00	8 Dec 10	343554
Builders Damage Deposit	X	BON2	$1,500.00	8 Dec 10	343554
Inspection Fee for Refund of Damage Deposit	X	DA6	$125.00	8 Dec 10	343554
Subdivision Application Fee	X		$290.00	16 Apr 10	331865
Subdivision Certificate Fee	X		$280.00	8 Dec 10	343554
88B Checking Fee	X		$242.00	8 Dec 10	343554
S94 - Open Space & Community Recreation	X	CONT9	$5,555.00	8 Dec 10	343554
S94 - Community Services & Facilities	X	CONT3	$2,982.00	8 Dec 10	343554
S94 - Management	X	CONT8	$219.59	8 Dec 10	343554
S94 - Library Infrastructure	X	CONT7	$1,519.00	8 Dec 10	343554
S94 - Library Bookstock	X	CONT4	$8.63	8 Dec 10	343554
The following fees apply where you appoint Council as your Principal Certifying Authority (PCA). (If you appoint a private PCA, separate fees will apply)
PCA Services Fee		DA6	$2,223.07

Fees and charges above are subject to change and are as set out in the version of Council's Schedule of Fees and Charges or as required by other Government Authorities, applicable at the time of payment.

b) With the concurrence of the adjoining owners, 600mm of lattice being provided on top of the 1.8m high southern (side) boundary fencing so that the height of the common boundary fence is 2.4m. This condition has been imposed to reduce any overlooking to adjoining developments.

(a) Payment to Council of a Damage Deposit for the cost of making good any damage caused to any Council property as a result of the development: $1,500.00.

(b) Payment to Council of a non refundable Inspection Fee to enable assessment of any damage and repairs where required: $125.00.

(c) At the completion of work Council will inspect the public works, and the damage deposit will be refunded in full upon completion of work where no damage occurs. Otherwise the amount will be either forfeited or partly refunded according to the amount of damage.

(d) Prior to the commencement of work a photographic record of the condition of the Council nature strip, footpath and driveway crossing, or any area likely to be affected by the proposal, shall be submitted to Council.

(e) Payments pursuant to this condition are required to be made to Council before the issue of the Construction Certificate.

The total community services and facilities contribution required and payable before release of the Construction Certificate is $2,982.00.

14. S945 - Management - Pursuant to Section 94(1) of the Environmental Planning and Assessment Act, 1979, payment shall be made to Council of a monetary contribution for Section 94 planning and management.

(b) The book stock acquisition contribution for residential development is $8.63.

(a) For events up to a 5% (depending upon the type of development) annual exceedance probability (AEP) design event as defined by Australian Rainfall and Runoff (May 1987). Maximum peak site discharge resulting from the development shall not be greater than peak site discharge, where the lots were previously occupied by a single dwelling, garage, lawn and garden.

(b) Where the stormwater discharge points are connected to the street gutter system, the peak flow from the site shall not increase the width of gutter flow by more than 200mm at the design storm.

(c) The OSD facility shall be designed to meet all safety requirements and childproof safety fencing around the facility must be provided where the OSD facility is open or above ground when the design peak storage depth is greater than 300mm. A durable metal plate or similar sign is to be placed at the OSD facility and must bear the words:

"This is an on-site detention basin/tank and is subject to possible surface overflow during heavy storms."

Please refer to the web site www.sydneywater.com.au for:

* Quick Check agents details - see Building Developing and Plumbing then Quick Check; and

* Guidelines for Building Over/Adjacent to Sydney Water Assets - see Building Developing and Plumbing then Building and Renovating.

Before Commencing the Development

(a) A Construction Certificate for the building work has been issued by:

(ii) An accredited certifier; and

(b) The person having the benefit of the development consent has:

(i) Notified the Council of his or her appointment, and

(i) Appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved, and
(ii) Notified the Principal Certifying Authority of such appointment, and
(iii) Unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work, and

(c) The person having the benefit of the development consent has given at least 2 days notice to the Council of the person's intention to commence the erection of the building.

Note: If the Principal Certifying Authority is the Council, the nomination will be subject to the payment of a fee for the service to cover the cost of undertaking all necessary inspections and the issue of the appropriate certificates.

37. BC1 - Construction Certificate - No work shall commence until you:

(a) Obtain a Construction Certificate from either Hurstville City Council or an Accredited Certifier - a fee applies for this service; and

(b) Lodge with Hurstville City Council any Construction Certificate obtained from an Accredited Certifier (together with associated plans and documents) - a fee applies for this service.

38. BC2 - Notice of Commencement - No work shall commence until you submit a Notice of Commencement (form attached or available from our website) giving Council:

(c) Details of the name, address and licence details of the Builder.

Note: This condition applies to buildings with a rise of storeys not more than three that contains two or more dwellings, where a storey has the same meaning as in the BCA and does not include a space within a building if the space includes accommodation only intended for vehicles.

(a) compliance with the approved Soil and Water Management Plan

(c) Destination of all materials, recyclable and non-recyclable.

A Registered Surveyor's Report must be submitted to the Principal Certifying Authority at each of the following applicable stages of construction:
(a) Setout before commencing excavation.
(b) Floor slabs or foundation wall, before formwork or commencing brickwork.
(c) Completion of Foundation Walls - Before any construction of flooring, detailing the location of the structure relative to adjacent boundaries and floor levels relative to the datum shown on the approved plans.
(d) Completion of Floor Slab Formwork - Before pouring of concrete/walls construction, detailing the location of the structure relative to adjacent boundaries and floor levels relative to the datum shown on the approved plans. In multi-storey buildings a further survey must be provided at each subsequent storey.
(e) Completion of any Roof Framing - Before roof covered detailing eaves/gutter setback from boundaries.
(f) Completion of all Work - Detailing the location of the structure (including eaves/gutters) relative to adjacent boundaries and its height relative to the datum shown on the approved plans. A final Check Survey must indicate the reduced level of the main ridge.
(g) Other.

Work must not proceed beyond each stage until the Principal Certifying Authority is satisfied that the height and location of the building is proceeding in accordance with the approved plans.

54. PN1 - Hours of Operation for Building and Demolition Work - Work in connection with the proposed development or building that involves the demolition of any existing buildings, any excavation or earthworks, the depositing of materials on the site, the removal of spoil and materials from the site or the erection of the building that requires the use of any tools (including hand tools) or any power operated plant or machinery that creates noise on or adjacent to the site shall only be performed between the hours of 7.00 am and 5.00 pm, Monday to Saturday inclusive. No work is to take place on Sundays, Good Friday, Christmas Day, and any public holiday.

Additionally, construction work on all buildings (except that on single dwelling houses and associated structures on the site of a single dwelling house) is prohibited on Saturdays and Sundays on weekends adjacent to a public holiday.

This fencing shall encompass the maximum possible area covered by the drip line of the canopy to prevent damage to the trees and their root system by the movement of vehicles, the handling or storage of building materials, any excavation, filling, or the like. There is to be no storage of building materials, fill or equipment permitted under the canopy of trees retained on site. The Principal Certifying Authority is to approve on-site protection methods before work commences and to ensure maintenance of those protection methods during construction works.

(a) Construct a 130mm thick concrete crossing reinforced with F62 fabric in Myall Street.
(b) Replace all redundant laybacks with kerb and guttering, and redundant concrete with grass.

Council will provide a quote for this work upon request.

or alternatively:

A private contractor may carry out above work subject to:

(a) Council's conditions and specifications, including payment of asphalt infill repairs.
(b) Payment of Council's administration fee listed in our Schedule of Fees and Charges
(c) No stencilled or coloured concrete may be used outside the boundary of the property.

The work must be complete before the issue of an Occupation Certificate.

Before Occupation

(a) That any preconditions required by the development consent to be met have been met; and

(b) Such building work has been inspected by that Principal Certifying Authority, or, in the case of all inspections other than the last critical stage inspection, by another certifying authority, on such occasions as are prescribed in the Environmental Planning and Assessment Regulation, 2000, and on such other occasions as may be required by the Principal Certifying Authority and the conditions required by this development consent.

After Occupation/Ongoing Conditions

Subdivision Conditions

This plan is to show the dividing wall as a brick party wall and is to create any easements for overhanging roof structures.

83. SU151 - The Dual Occupancy shall be built and completed in accordance with the Conditions of Development Consent No. 10/DA-139 before release of the signed subdivision plans from Council.

84. SU152 - An interim or final Occupation Certificate shall be obtained from the Principal Certifying Authority and submitted to Council prior to the release of the signed subdivision plans from Council.

85. SU153 - All Section 94 Contributions and any other outstanding fees as per Conditions of Development Consent No. 10/DA-139 shall be paid prior to the release of the linen plan of subdivision.

86. SU154 - Any service or drainage line from one lot which passes or will pass through the other lot shall have:

(a) A 1.0m wide easement for stormwater pipes, and
(b) A service to have a 300mm wide easement created and registered over it.

These easements are to be pursuant to Section 88B of the Conveyancing Act.

87. SU155 - A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.

Application must be made through an authorised Water Servicing Co-ordinator. Please refer to the Building Developing and Plumbing section of the web site www.sydneywater.com.au then refer to "Water Servicing Co-ordinator" under "Developing Your Land" or telephone 13 20 92 for assistance.

Following application, a "Notice of Requirements" will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Co-ordinator, as it can take some time to build water/sewer pipes and this may impact on other services and building, driveway or landscape design.

The Section 73 Certificate must be submitted to the Principal Certifying Authority/Council before occupation of the development/release of the plan of subdivision.

88. SU156 - A separate letterbox for each dwelling shall be erected and metal rivet-on type numbers installed to each letterbox. These numbers are to be no. 107 Myall Street for the dwelling facing Myall Street and no. 11 Myrtle Street for the dwelling facing Myrtle Street.

89. SU157 - A Restriction of Use of the Land is to be created over each lot by Section 88B of the Conveyancing Act to ensure each dwelling erected on these lots and the landscaping and paving of each site is to be maintained in conformity with the conditions of any future development consent approved under Council's Dual Occupancy Codes and Requirements. This Restriction shall be worded as follows:

"No dwellings, including the landscaping and paving of each site shall be erected upon the lots burdened unless constructed, completed and maintained in conformity with the conditions of Development Consent No. 10/DA-139 as approved by Hurstville City Council or in conformity with the conditions of any future Development Consent approved under Council's Dual Occupancy Codes and Requirements."

Hurstville City Council is to be nominated as the Authority to release, vary or modify this Restriction.

90. SU158 - A Positive Covenant is to be created pursuant to Section 88B of the Conveyancing Act, 1919 to ensure any on-site detention drainage facilities, together with any ancillary pipes, pits etc, be kept clean at all times, maintained in an efficient working condition and are not to be modified in any way without the prior approval of Council. This Covenant shall be worded as follows:

"It is the responsibility of the lots burdened to keep the "On-Site Detention" facilities, together with any ancillary pumps, pipes, pits etc, clean at all times, maintained in an efficient working condition. The "On-Site Detention" facilities is not to be modified in any way without the prior approval of Council."

Hurstville City Council is to be nominated as the Authority to release, vary or modify this Covenant.

To obtain a Subdivision Certificate, you must complete an application form for a Subdivision Certificate, pay the appropriate fee and submit the form together with any relevant plans and documentation for approval from Council.

Advices to Applicant

(a) Apply for a Review of a Determination under Section 82A of the Environmental Planning and Assessment Act 1979. A request for review and the decision by Council of that request must be made within twelve (12) months of the date of this Notice of Determination and be accompanied by the relevant fee. You must ensure that an application for review of determination gives Council a reasonable period in which to review its decision having regard to the relevant issues and complexity of the application.
OR

(b) Appeal to the Land and Environment Court within twelve (12) months after the date on which you receive this Notice of Determination, under Section 97 of the Environmental Planning and Assessment Act 1979.

(Section 97 of the Environmental Planning and Assessment Act 1979 does not apply to the determination of a development application for State significant development or local designated development that has been the subject of a Commission of Inquiry.)

(a) street/house number and street name
(b) side of the street
(c) name of nearest cross street
(d) distance from nearest cross street

(a) Pump concrete from within a public road reserve or laneway.
(b) Stand a mobile crane within the public road reserve or laneway.
(c) Use part of Council's road/footpath area.
(d) Pump stormwater from the site to Council's stormwater drains.
(e) Store waste containers, skip bins, and/or building materials on part of Council's footpath or roadway.

an appropriate application for a Work (construction) Zone, a pumping permit, a hoarding, an approval to stand a mobile crane or an application to pump water into a public road, together with the necessary fee in accordance with Council's Schedule of Fees and Charges shall be submitted to Council and approval obtained before commencement of any of the those activities.

101. AD14 - If, in the future, separate ownership is sought for each dwelling, Cross Easements for support are required over the dividing wall as well as Rights of Carriageway, Easements for overhanging roof structures, drainage pipelines or services that pass from one lot into the other lot.

102. A notice will be attached to future Section 149 Certificates indicating that the subdivision has been approved pursuant to the provisions of Council's Local Environmental Plan 1994.

103. Notice in writing of the completion of the building must be provided to Council at least 48 hours prior to a final inspection being undertaken.

104. Would you kindly contact Council's Manager - Development Advice, Mr Peter Green on telephone number 9330 6216 when the above conditions have been completed, so that an inspection may be made prior to release of the signed Subdivision plans.

a) All ensuite, laundry and bathroom windows containing translucent glazing.

b) With the concurrence of the adjoining owners, 600mm of lattice being provided on top of the 1.8m high southern (side) boundary fencing so that the height of the common boundary fence is 2.4m. This condition has been imposed to reduce any overlooking to adjoining developments.
c) The balustrade to the south elevation of the terrace to the dwelling facing Myrtle Street to be a minimum 1.5m high from the finished floor level of the terrace. Should the terrace require stairs to access the rear yard, they are to be located on the eastern elevation of the terrace.”

“a) it is satisfied that the proposed modification is of minimal environmental impact,”

“b) it is satisfied that the development to which the consent as modified relates is substantially the same development.”

“c) it has notified the Section 96 application (if required under Council’s DCP) and has considered any submissions concerning the proposed modification.”

Notice is hereby given of the determination by Council as the consent authority of the application to amend the Development Consent relating to the land described above.

a) All ensuite, laundry and bathroom windows containing translucent glazing.

b) With the concurrence of the adjoining owners, 600mm of lattice being provided on top of the 1.8m high southern (side) boundary fencing so that the height of the common boundary fence is 2.4m. This condition has been imposed to reduce any overlooking to adjoining developments.

c) The balustrade to the south elevation of the terrace to the dwelling facing Myrtle Street to be a minimum 1.5m high from the finished floor level of the terrace. Should the terrace require stairs to access the rear yard, they are to be located on the eastern elevation of the terrace.

d) The balustrade to the southern elevation of the first floor balcony to bedroom 3 being a minimum 1.5m high. The balustrade is to be of a material that can not be seen through such as translucent glazing or louvres. If louvres are to be used they are to be fixed in a position that does not allow downward viewing of adjoining developments.

This development consent will lapse unless acted upon within five (5) years from the date of the original endorsement, except as qualified by Section 99 of the Environmental Planning and Assessment Act 1979.

Applicant	Mr P Kirwan
Proposal	Section 96 application to an approved alterations and additions to an existing dwelling for unauthorised works and new attached carport
Zoning	Zone 2 – Residential
Planning instruments applicable	Hurstville Local Environmental Plan 1994, Greater Metropolitan Regional Environmental Plan No 2 – Georges River Catchment, State Environmental Planning Policy No 55 – Remediation of Land, Development Control Plan No 1 – LGA Wide - Section 2.2 Neighbour Notification, Section 4.3 Outbuildings, Section 4.5 Single Dwelling Houses
Hurstville Local Environmental Plan 1994 interpretation of use	Dwelling House
Owner/s	P Kirwan and M Smith
Existing development	Under construction of alterations and additions to existing dwelling
Cost of development	N/A
Reason for referral to Council	Unauthorised works
Report author/s	Senior Development Assessment Officer, Mr I Karaman
File No	2008/DA-32REV1
Disclosure of political donations or gifts?	No

EXECUTIVE SUMMARY

1. The Section 96 application proposes to remedy unauthorised works to approved alterations and additions to an existing dwelling.

2. The unauthorised works are partially completed and the subject works comply with Council requirements under Development Control Plan No 1 – LGA Wide - Section 4.5 Single Dwelling Houses.

3. The proposal was notified and advertised in accordance with Council’s requirements with no objections received.


AUTHOR RECOMMENDATION

THAT the application be approved in accordance with the conditions included in the report. FURTHER THAT the matter be referred to Council’s Manager – Building Control to take appropriate action under Part 6 of the Environmental Planning and Assessment Act 1979 (as amended) in accordance with Council’s adopted Enforcement Policy.


REPORT DETAIL

DESCRIPTION OF THE PROPOSAL

“A consent authority may, on application being made by the applicant or any other person entitled to act on a consent granted by the consent authority and subject to and in accordance with the regulations, modify the consent if:

(a) It is satisfied that the proposed modification is of minimal environmental impact, and”

“(b) It is satisfied that the development to which the consent as modified relates is substantially the same development as the development for which the consent was originally granted and before that consent as originally granted was modified (if at all) under this section, and”

“(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 under Section 72 that requires the notification or advertising of applications for modification of a development consent, and”

“(d) It has considered any submissions made concerning the proposed modification within any period prescribed by the regulations or provided by the development control plan, as the case may be.”

“Under Section 96(3) of the Environmental Planning and Assessment Act 1979:

States:

(e) In determining an application for modification of a consent under this section, the consent authority must take into consideration such of the matters referred to in Section 79C(1) as are of relevance to the development the subject of the application, which is provided below.”