Land and Environment Court of New South Wales CITATION : Peddle Thorp and Walker Architects Pty Limited v Woollahra Municipal Council [2000] NSWLEC 279 APPLICANT: Peddle Thorp and Walker Architects Pty Limited PARTIES : RESPONDENT: Woollahra Municipal Council FILE NUMBER(S) : 10614 of 2000 CORAM: Bignold J KEY ISSUES: Development :- existing use of Art Gallery - proposed intensification - resident objections -conditions of consent to protect residential amenity LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97, s 106 CASES CITED: DATES OF HEARING: 24-25/10/00 DATE OF JUDGMENT: 12/22/2000 APPLICANT: Mr T S Hale, SC SOLICITORS Freehill Hollingdale and Page LEGAL REPRESENTATIVES: RESPONDENT: Mr J A Ayling, Barrister SOLICITORS Michell Sillar JUDGMENT: IN THE LAND AND Matter No . 10614 of 2000 ENVIRONMENT COURT OF Coram : Bignold J. NEW SOUTH WALES 22 December 2000 PEDDLE THORP AND WALKER ARCHITECTS PTY LIMITED Applicant v WOOLLAHRA MUNICIPAL COUNCIL Respondent JUDGMENT Bignold J: A. INTRODUCTION 1. This is an appeal pursuant to the Environmental Planning and Assessment Act 1979, s 97 (the EP&A Act) against the determination of the Council refusing development consent to an application for a building addition to an existing commercial development known as the "Sherman Gallery" situate at premises known as Nos 16, 18 and 20 Goodhope Street, Paddington (the development site). 2. The Council's determination as notified to the Applicant pursuant to s 81(1)(a) of the EP&A Act stated the following reasons for the refusal of consent— 1. The proposed development is prohibited under the provisions of the Residential 2(a) zone within the Woollahra Local Environmental Plan 1995. 2. The proposed application fails to comply with Council's Development Control Plan for Off Street Car parking Provision and Servicing Facilities. 3. The public interest. 3. After the proceedings had been commenced, the Council filed its Statement of Issues raised by the appeal which included a question of law as to whether the development site had the benefit of "existing use" rights within the meaning of the EP&A Act. 4. However, on the hearing of the appeal, Counsel for the Council informed the Court that that question was no longer in issue, the Council now being satisfied that the proposed development was a permissible form of development, notwithstanding its Residential 2A zoning under Woollahra Local Environmental Plan 1995 (the LEP) either as an extension to an existing use or pursuant to the provisions of cl 30 of the LEP. 5. In consequence of the Council now being satisfied that the proposed development was a permissible form of development, Counsel for the Council informed the Court that the Council had reviewed its decision on the planning merits of the case and was now also satisfied that provided that residential amenity in the locality was adequately protected and preserved, the proposed development warranted the grant of consent subject to the imposition of appropriate conditions. In this respect, the Council had proposed a set of conditions (Exhibit 1) which were revised in the course of the hearing to include further conditions (Exhibit 9) which in the Council's opinion would, if imposed, attain the desired level of protection or preservation of residential amenity in the locality. However, there were two provisos to the Council's revised stance in relation to the proposed development—firstly, there was the fact that the Applicant was not prepared to submit to the imposition of all of the conditions sought by the Council, and secondly, the Council would call evidence from objecting neighbouring residents of Goodhope Street. 6. However, in introducing the evidence from residents, the Council was not changing its position. Although the Council was relying upon the residents' evidence in support of the Council's case that development consent should be granted subject to the imposition of the conditions sought by the Council, the Council did not embrace or adopt the residents' unqualified opposition to the proposed development. Accordingly, the Council's declared position in respect of these provisos was as follows: (i.) the Court would need to adjudicate upon the parties' sole dispute concerning the appropriate conditions; and (ii.) although the Court would be in possession of evidence of the residents' opposition to the grant of development consent, the Council's case was that the Court would nonetheless grant development consent subject to the conditions it sought to have imposed. 7. Thus, to a large extent, the Court was virtually placed in the situation provided for by par 9 of the Court's Practice Direction ("consent orders")being invited by the parties to make consent orders in a situation where objections had been raised to the proposed development. It was in these circumstances that the Council adopted the proper course of tendering all of the written objections that the Council had received against the proposed development and of calling as witnesses any of these residents who wished to give testimony. (At the hearing, the Court received the testimony of four residents.) B. THE PROPOSED DEVELOPMENT 8. The proposed development is, in my opinion, aptly and fairly described in the statement of evidence of Ms Janet Thomson, a Consultant Town Planner and Director of the Applicant (Exhibit K) in the following terms: 3.1 The proposal is to construct a building on the allotment known as 20 Goodhope Street. The building is single storey with a mezzanine level. The building will be built as an addition to the existing gallery on the site. The new building will have a floor area of 157m2. 1.2 The building will be rendered masonry with a metal roof. The building will compliment the adjoining terraces and the existing gallery. It is compatible to these buildings in materials and finishes. 1.3 The new building will be used for the relocation of the private client viewing area together with the secure art storage area. There will be no increase in the display space of the gallery. Further, there will no be more artists or works involved. The pool of sales material will not change, the aim is to provide more comfortable premises. 1.4 The proposed development, if approved, will not lead to any increase in exhibitions or in openings at the premises 16-20 Goodhope Street. The proposal will not attract any additional visitors to the premises than occurs at present. The development will enable people to view the stock in a more comfortable display environment. C. THE PLANNING CONTEXT OF THE DEVELOPMENT SITE 9. The development site comprises a combined area of 677 m2 (Nos 16 and 18 comprising 322 m2 and No 20 comprising 355 m2). 10. The development site is located within the Residential 2(a) zone under the LEP which zone relevantly incorporates the majority of properties fronting Goodhope Street (mainly comprising terrace residences most of which depend upon kerbside parking). 11. The development site is situate only a short distance (100 m) from the Five Ways, a busy neighbourhood commercial centre comprising a cluster of shops, a popular hotel and restaurants. 12. The Sherman Gallery was established on property Nos 16 and 18 Goodhope Street in 1989/1990 pursuant to the Council's development consent for the change of use of the existing building which had been used since the 1950s as a panel beating shop (a non-conforming existing use), subject to the following conditions: 1. Development being carried out generally in accordance with Plans dated September, 1989 and drawn by Design 23 except where amended by the following conditions. 2. The hours of operation being limited to:- 9.00 a.m. to 5.00 p.m. Monday to Saturday by appointment only. 3. Loading and unloading being confined within the property. 4. No display or sale of goods on the footpath. 5. The colour, texture and substance of all external materials being to the satisfaction of the Council. 6. The use not commencing until such time as the conditions of this development consent have been carried out. 7. The total number of public and private exhibitions per calender year being limited to six (6) and Council being notified, in writing, at least fourteen (14) days prior to any exhibition and approval obtained before the exhibition. 8. An additional toilet and wash basin being provided. 13. On 18 January 1994, the Council granted development consent for alterations and additions to the development site comprising the erection of a timber and steel deck with storage under leading from the existing gallery to a courtyard situate at No 20 and the use of No 20 as a "sculpture garden" (the latter being an open air setting for the display of works of sculpture which were available for viewing and sale). 14. In terms of the Residential 2(a) zoning under the LEP, the proposed development which is properly categorised thereunder as "commercial premises" is prohibited development: vide cl 8(2). 15. However, since the development site is also included within a heritage conservation area designated by the LEP, the zoning restrictions are subject to the heritage provisions of the LEP (vide cl 8(4)) which provisions include cl 30 which confers a power upon the Council to grant development consent for additional uses (including commercial premises) in certain circumstances notwithstanding cl 8 of the LEP. D. IS THE PROPOSED DEVELOPMENT PERMISSIBLE? 16. I have already mentioned how this question, which was originally in issue, has been resolved between the parties. Notwithstanding the parties' agreement, I must be satisfied that the proposed development is permissible development. 17. Two sources of permissibility have been mentioned—(i) cl 30 of the LEP; and (ii) the existing use entitlements conferred by the EP&A Act and the Regulation made thereunder. 18. The potential sources of permissibility are necessarily alternatives—because of the definition of "existing use" contained in s 106 which relevantly provides in par (a) as follows: the use of building work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for…… , have the effect of prohibiting that use… (my emphasis) 19. If cl 30 of the LEP (which came into force on 10 March 1995 ) applies to the building erected on the development site, then it cannot be concluded for the purpose of the statutory definition of " existing use " that the LEP had the effect of " prohibiting that use ". 20. Clause 30 of the LEP is in the following terms: 30 Additional uses within heritage conservation areas (1) This clause applies to all buildings and the allotments on which they are situated or any parts thereof located within a heritage conservation, other than those situated within Zone No. 3(a), 3(b) or 3(c) - (a) where the whole or part of the building has a history of a lawfully commenced non-residential use, whether or not that use was discontinued, abandoned or interrupted; and (b) where the whole or part of the building was originally lawfully constructed with a non-residential design or was lawfully altered or adapted to a non-residential design. (2) Notwithstanding clause 8, the Council may consent to the use of a building or part thereof, referred to in subclause (1), for the purpose of commercial premises (not being a brothel), community facilities, artisans' studios, educational establishments, public buildings and shops. (3) In addition to the use of a building or part thereof, the Council may also consent to the use of the allotment on which the building is situated for any purpose specified in subclause (2). (4) The Council may grant a consent pursuant to this clause that will result in - (a) an increase in the gross floor area of a building referred to in subclause (1); and (b) the use of that increased area for a purpose specified in subclause (2). (5) The Council must not grant consent as referred to in subclause (2) or (4) unless it is satisfied that carrying out development in accordance with the consent will not adversely affect the heritage significance of the building, its site, or the heritage conservation area and will not detrimentally affect the enjoyment by an occupier of any lands adjoining or adjacent to, or in the neighbourhood of, the lands upon which such development is proposed. (6) The Council must not grant consent as referred to in subclause (2) or (4) unless it is satisfied that the external architecture of the building or part thereof - (a) is compatible with the external architecture of other buildings in the vicinity; or (b) is, by virtue of the proposal, to be made compatible with the external architecture of other buildings in the vicinity; or (c) has architectural or historic value of its own which will be conserved. 21. If, on the other hand, the development site has the benefit of existing use entitlements, they are to be found in the provisions of the Environmental Planning and Assessment Regulation 1994, Pt 5 (the Regulation), cl 39(1) providing as follows: 39. (1) An existing use may, in accordance with this Division, be: (a) enlarged, expanded or intensified; or (b) altered or extended; or (c) rebuilt; or (d) changed to another use, including a use that would otherwise be prohibited under the Act. 22. Clause 40 is, in my opinion, the most relevant provision of Pt 5, in the present case. It provides as follows: 40. (1) Development consent is required for any enlargement, expansion or intensification of an existing use. (2) The enlargement, expansion or intensification: (a) must be for the existing use, or for a use changed under clause 43, but for no other use; and (b) must be carried out only on the land on which the existing use was carried out immediately before the relevant date. 23. In my opinion, there are obvious difficulties arising from the text of cl 30 of the LEP that lie in the way of concluding that (i) it has ready application to the development site; and (ii) it sanctions the proposed development. 24. On the other hand in my opinion, it may safely be concluded on the evidence that the use of the development site and the building(s) erected thereon constitutes "an existing use" within the meaning of the EP&A Act, s 106(a) and Regulation. It is also, in my opinion, reasonable to conclude that cl 40 of the Regulation provides sufficient authorisation for the proposed development as a relevant "enlargement expansion or intensification of an existing use". 25. Accordingly, I am satisfied that the proposed development is a permissible form of development by virtue of the application of cl 40 of the Regulation.. E. THE RESIDENTS' OBJECTIONS TO THE PROPOSED DEVELOPMENT 26. In response to the Council's public notification of the proposed development, the Council received five letters of objection from residents of Goodhope Street. 27. The addresses of the objecting residents were Nos 22, 26, 30 and 34 and No 17, all being close to the development site (Nos 16 - 20). 28. The letters of objection are included in the Council's documentary evidence (Exhibit 2). 29. In addition, oral testimony was given by Dr Clark (No 22), Mr Potter (No 34), Mr Bell (No 17) and Mr Garnett (the former resident until recently of No 28 Goodhope Street). 30. There is included the Council's Planning Department's written appraisal of the development proposal (Exhibit 2), what I would regard as a fair and an apt summary of, and commentary on, the residents' objections, which I would respectfully adopt for myself, except for the conclusion that the application "should be refused for its non-compliance with the Residential 2(a) zoning". It is apparent that the officers' conclusion was based upon legal advice received from the Council's lawyers that the development site did not have the benefit of any "existing use" entitlements. Since this is no longer the position advanced by the Council and since I have already held that there are relevant existing use entitlements which render the proposed development a permissible development, it follows that the officers' conclusion can no longer be supported in law. However, save for that matter, I am content to adopt the Council's officers' commentary on the residents' objections which appears in the following extract from their written report (which formed the basis for the Council's determination (pursuant to delegated authority) refusing development consent). OBJECTORS' CONCERNS Compliance with the Residential 2(a) zoning. Comment: The proposed works have been identified as prohibited within the residential 2(a) zone. As a result the application should be refused. Previous approvals and compliance therewith. Comment: The objectors have indicated that the existing use is failing to comply with its conditions of consent particularly those relating to the provisions of exhibitions. It is noted that the subject building will also be required to comply with these provisions. Furthermore, Council should be made aware that refusal of the application on the presumption of non-compliance with conditions of consent cannot be undertaken, rather Council should at the time of any breach of a consent be advised promptly so appropriate action can be undertaken. Impact of the new building upon the conservation area particularly having regard to the roof form, dormer window, skylights and general appearance. Comment: The proposed development is considered to be an appropriate form of infill development within Goodhope Street and the conservation area. Increased parking and traffic. Comment: It is considered that appropriate methods of noise attenuation be installed so as to provide for adequate levels of amenity to the surrounding residential properties. Proposed use of the new building. Comment: The objectors have indicated that the provision of a kitchen and guest toilet suggest that the proposed building is to service the reception function of the premises. It is noted that the reception or exhibition function currently provided to the existing art gallery building is limited to six occasions per year with notification to Council occurring beforehand. In consideration of the proposed new building is it considered that its use should be restricted such that it does not provide for any exhibitions. Such a condition, would reduce the impact upon the amenity provided to the neighbourhood. 31. Turning now to my evaluation of the oral evidence given by the four residents, it is clear in my opinion, that their principal concern lay with the prospect of the intensification of a commercial use (the Sherman Gallery) by expanding the gallery activities onto No 20 Goodhope in circumstances where (i) those residents had over the lifetime of Gallery, experienced from time to time varying degrees of nuisance (people noise, people crowds and traffic and parking congestion in Goodhope Street); and (ii) the existing commercial use of No 20 (the sculpture garden) had been a very, very low key affair. A number of the residents perceived the proposed intensification or expansion of the existing use as a de facto commercial rezoning of No 20 Goodhope Street. This escalation or creep effect of the commercial existing use was understandably apprehended by a number of the residents as an unwelcome intrusion into the residential amenity of Goodhope Street, with the possibility of their valuable properties being thereby devalued. 32. Whereas there is obvious force in the residents' concerns, there are a number of other relevant factors that need to be considered in the overall evaluation of the residents' evidence. The first factor concerns the true nature of the proposal, the second factor concerns the nature of the existing residential amenity in Goodhope Street and the third factor concerns the environmental impact of the proposal on the existing residential amenity of Goodhope Street. 33. The true nature of the proposed development is that of the introduction into the development site of a modest building which, in terms of built form, is in the nature of an infill development which is sympathetic to both the streetscape and the heritage conservation area in which it is placed. As a matter of built form the proposal is modest in scale and character and harmonious with its context (physical and heritage conservation wise). As a matter of use, the proposal is also modest in scale and character, albeit one that involves an intensification of the existing commercial use of the development site. However, that use will not involve any public exhibition of art work and persons attending will be limited to one or two private viewers at any one time attending by invitation only. My overall assessment is that the proposal will undoubtedly involve an intensification of the existing commercial use, but the impact will inevitably be modest. 34. The suggestion that the proposal will create a de facto re-zoning of the site is in my respectful opinion, misconceived. It must be remembered that development site already enjoys existing use entitlements as a commercial development and the only legitimate basis for the proposed development is as an expansion or intensification of that existing use. The EP&A Act itself creates "existing use" entitlements, so that their legitimacy is founded on the express terms of that Act. 35. The second factor concerns the residential amenity of Goodhope Street. There can be no doubt that the predominantly terrace style residential development in Goodhope Street is valuable inner City real estate enjoying a very pleasant inner City residential ambience and amenity. Goodhope Street itself is a very pleasant and amply proportioned residential avenue, as it slopes down towards Sydney Harbour from the Five Ways. However, despite these attractions, there nonetheless remains obvious traffic and parking congestion in Goodhope Street, not only because the terrace residences generally do not have off street parking facilities, but also because of the impact of the lively and vibrant neighbourhood commercial centre at the Five Ways. Its impact on traffic conditions and acoustical amenity in Goodhope Street is infinitely more pronounced and influential than any impact that is exerted by the Sherman Gallery or the proposed development, particularly during evening hours when the latter development is not operating. 36. Finally, there is the question of the impact of proposed development on the residential amenity. In my judgment, the likely environmental impact of the proposal is slight. In considering that impact, it must not be assumed that Sherman Gallery exists as an intrusive and unwelcome feature of the existing environment. True, it is a commercial development located within a Residential zone and in a predominantly residential environment. However, it is a commercial development of a particular kind, namely a commercial Art Gallery enjoying an international reputation for the quality of its exhibitions, and one that generously promotes Australian art (both locally and overseas) and sponsors and supports Australian artists. Thus, there is a definite public benefit in the commercial enterprise. 37. Dr Sherman, the co-owner and founder of the Art Gallery, in her evidence expressed genuine regret and surprise at the intensity of residents' objections to the proposal. She frankly admitted that the Gallery had, almost from its origins, staged more openings of public exhibitions than the six per year limited by the conditions of the 1989 development consent. For each of the past six years, the number of openings had been 10 or 11. The openings occurred between the hours of 6 - 8 pm with a chosen speaker officially opening the exhibition about 7 pm. Drinks, but not food, are served to persons attending the openings and attendances at the openings can exceed 100 persons. Those numbers obviously are not sustained throughout the period of the exhibition. 38. Dr Sherman stated that she would immediately set in train the appropriate application to the Council to modify the conditions of the existing development consent for the Art Gallery, now that she had become acutely and painfully aware (through the residents' objections) of the fact that the openings of public exhibitions had for many years exceeded the limit imposed by the 1989 development consent granted by Council. 39. Dr Sherman also candidly conceded that there had been a few occasions over the years when social events (unrelated to art exhibitions) had been held at the Gallery which had prompted resident objection. She expressed her regrets for such occasions and acknowledged that the existing development consent did not authorise the holding of such social events and declared that such events would not be held in the future. 40. One of the direct benefits arising from the residents' evidence in the present proceedings is the need freely acknowledged by Dr Sherman to "put her house" in strict order ie to ensure that the Gallery's operations conformed to the relevant development consents and to pledge herself to maintaining good relations with neighbouring residents. 41. I accept Dr Sherman's commitments to these ends, as being serious and sincere and achievable. I am confident that she will properly regularise past practices and indiscretions that have troubled neighbouring residents (but have not provoked any enforcement action by the Council). 42. An allied benefit of the residents' participation in the hearing is that the air has been cleared between Dr Sherman and the residents in a public forum and fashion in circumstances where amends can be readily made. 43. In the end result, I am satisfied that the residents' concerns with the proposed development (which are largely derived from their concerns with the existing development) can be legitimately resolved by the imposition of appropriate conditions on the development consent that, in my opinion, should be granted in the present case, supplemented by Dr Sherman's commitment to obtain further necessary consents from the Council to regularise any discrepancy between what the 1989 development consent has authorised and the current operations of the Art Gallery. 44. However, the residents' objections do not, in my opinion, justify outright refusal of the proposal. They do however justify a stringent regime of conditions of consent. F. WHAT ARE THE APPROPRIATE CONDITIONS OF DEVELOPMENT CONSENT? 45. This brings me to the only question that was in dispute between the parties. Of the 50 conditions of consent sought by the Council, only a few conditions are in substantial dispute, namely (i.) the Council's proposed condition limiting the hours of operation of the proposed development from 9 am to 6 pm Monday to Saturday; (ii.) the Council's proposed condition particularising and limiting the nature of the uses to be conducted in the proposed new building; and (iii.) the Council's proposed condition limiting the life of the consent for the proposed use to that of the existing Art Gallery use. 46. Additionally, there is a minor (almost drafting) dispute on two other Council proposed conditions dealing with (i) the closure of the vehicular crossover in Goodhope Street outside the development site and (ii) noise control. 47. In respect of these minor matters, I think that the Applicant's drafting changes are appropriate and I shall adopt them. They do not diminish the Council's conditions. 48. The dispute concerning the hours of operation is limited to the use of the private viewing room in the proposed new building. 49. In my opinion, the nature and purpose of this desirable facility that is presently lacking in the existing Art Gallery would be almost entirely defeated if the ordinary operating hours of the Gallery were to apply to that facility. I accept entirely the evidence of Mr William Wright, the Gallery's distinguished Curatorial Director, concerning the nature of such a private viewing facility in an Art Gallery such as the Sherman Gallery (of international reputation), and of the needs for, and nature of, use of such a facility. I am entirely satisfied that the absence of any restriction on the hours of use of such a facility will involve no adverse environmental impact on the residential amenity of Goodhope Street. Accordingly, the Council's condition imposing restrictions on operating hours will expressly exclude the proper intended use of the private viewing room. 50. The other conditions in dispute concern (i) the particular uses to which the proposed development may be devoted; and (ii) the linking of the proposed development to the existing Gallery development. 51. The Council's suggested conditions in this respect are as follows: 50. This consent does not authorise or permit the use of the building or land at 20 Goodhope Street Paddington for the purpose of exhibiting or displaying to the public works of art on either a permanent or a temporary basis. The consent extends only to the following activities at 20 Goodhope Street: (a) the storage, on the ground floor of the building in the position indicated on the approved plans, in suspended or similar racks of works of art which are not on exhibition to the public but which are for sale to the public and are in the nature of gallery stock; (b) the storage, within the mezzanine area of the building, of prints or other works of art not suitable for rack storage; (c) the showing of works of art to individuals who, not being persons then attending an exhibition or gallery opening or other function at 16-18 Goodhope Street, have expressed a desire to purchase works of art and who have requested that they be shown works in stock; (d) the office accommodation of persons operating, or employed by the operator of, the gallery at 16-18 Goodhope Street, and no other persons; (e) the preparation, solely for consumption by the persons having office accommodation in the building at 20 Goodhope Street or persons being shown works of art in stock for the purpose of considering its purchase, of drinks and light refreshments. The building and land at 20 Goodhope Street, Paddington, including the covered rear verandah, the footway of the public street immediately in front of the building and the landscaped and paved areas between the street and the building alignment, shall not (f) be used for the purpose of providing space or accommodation for persons attending exhibitions, gallery openings or other functions at 16-18 Goodhope Street, nor shall such persons be permitted access thereto; (g) be used other than for purposes ancillary to the use of the premises at 16-18 Goodhope Street, which purposes are specifically contemplated by this condition. 51. This consent ceases to have effect (except insofar as it authorises the erection of the building) if and when the premises at 16-18 Goodhope Street Paddington (a) cease to be used for the purpose of a commercial art gallery; or (b) cease to be used as a commercial art gallery operated by, under the control of, the same persons as operate and control the activities conducted on 20 Goodhope Street. 52. The Applicant's suggested condition is as follows: 50. The proposed building upon No 20 Goodhope Street shall only be used for a private viewing area, storage and office and shall not be used for the purpose of public exhibitions. 53. In my judgment, the Council's suggested conditions should be adopted in the circumstances of the present case, which having regard to my evaluation of the resident objectors' evidence, justify (i) a very detailed particularisation of the permitted uses of the proposed new building in a manner that does not intensify those aspects of the existing Art Gallery use which involve the attendance on the premises of large numbers of members of the public; and (ii) a linking of the proposed development with the existing development in a manner that ensures the former operates as a modest and closely circumscribed "adjunct" to the latter. It may be thought that this approach is unduly restrictive and somewhat fastidious, but even if this be the case, I think the result is nonetheless justified in deference to the legitimacy of the concerns of the resident objectors and in furtherance of the need for the discretionary planning judgment required in the present case to strike the most harmonious balance in the co-existence of the intensified commercial use and existing residential uses in the context of a residential zone dominated by residential development enjoying a high level of inner City residential amenity. G. CONCLUSIONS AND ORDERS 54. For all the foregoing reasons, I am of the opinion that development consent should be granted subject to appropriate conditions, being the conditions as sought by the Council but modified by my adjudication herein. 55. Accordingly, I make the following orders— 1. Appeal allowed. 2. Development consent granted, subject to the conditions annexed hereto and marked "A". 3. No order as to costs. 4. Exhibits (other than Exhibits 1, 9 and M) to be returned. ANNEXURE "A" WOOLLAHRA MUNICIPAL COUNCIL ATS PEDDLE THORPE ARCHITECTS LAND AND ENVIRONMENT COURT PROCEEDINGS NO 10614 OF 2000 1. New development The development must be carried out in accordance with the plans numbered CDOOI - CD003 (inclusive), dated July 1999 and drawn by Peddle Thorp & Walker, except where amended by the following conditions. 2. Kerb and Guttering That kerb and guttering shall be reinstated in lieu of the existing vehicular crossover. The footway shall be in front of No 20 Goodhope Street reinstated in conformity with the footway adjacent to No. 22 Goodhope Street. Any alternative treatment must be carried out to the satisfaction of Council's Development Engineer. Such work is to be carried out at the expense of the applicant and to the satisfaction of Council. This shall not prevent occasional access being gained by means of temporary ramps over the kerb adjacent to the rollerdoor on No 20 Goodhope Street. 3. Requirement for a Construction Certificate In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979, the erection of the building must not be commenced until: (a) detailed plans and specifications of the building have been endorsed with a Construction Certificate by: i. Council; or ii. an accredited certifier; and (b) a principal certifying authority (PCA) has been appointed and the Council has been notified in writing of the appointment, and (c) at least two days notice, in writing, has been given to Council of the intention to commence work. 4. Materials Details of the colour, texture and substance of all external materials must be submitted to Council or the PCA prior to the issue of a Construction Certificate and are to be to the satisfaction of an authorised Council assessment officer or the PCA. For properties that are located in a Conservation Area or that are Heritage Items, the proposed materials must be to the satisfaction of Council's Heritage Officer. 5. Drawings to show levels and heights The reduced levels of the ground floor, first floor and the overall height of the roof in relation to Australian Height Datum must be shown on the drawings submitted with the Construction Certificate Application to ensure that building construction complies with the development consent. 6. Compliance with Disability Discrimination Act The development must be designed to comply with the requirements of the Disability Discrimination Act and AS 1428 - "Design for Access and Mobility", Parts 1, 2, 3 and 4. 7. Structural details Structural engineering details and design calculations, prepared and certified by a qualified practising Structural Engineer, must be submitted with Construction Certificate application, for all reinforced concrete work, structural steel work, retaining walls, brick fences, shoring and underpinning, isolated piers, chimneys, parapets and other structural members. This condition is imposed to ensure the structural integrity of the proposed building work. 8. Layout of buildings The layout of all external walls, including retaining walls and contiguous piling must be checked and verified by survey prior to the commencement of construction to ensure that building construction complies with the development consent and does not encroach beyond the boundaries of the site. 9. Demolition, excavation and construction hours Demolition, excavation and construction work must not take place outside the hours of 7.00am to 5.30pm Monday to Friday and 7.00am to 1.00pm Saturday. No work and no deliveries are to take place on Sundays and public holidays. Noise from construction activities associated with the development must comply with the guidelines contained in the NSW EPA Environmental Noise Control Manual Chapter 171. 10. Noise limit - Demolition, excavation and construction periods The LA10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 1OdB(A) when assessed from any sensitive noise receiver. In addition, all demolition, excavation and construction activities must comply with the requirements of Council's Code relating to "The Control and Regulation of Noise on Building Sites." 11. Machine excavation Excavation or removal of any materials involving the use of machinery of any kind, including compressors and jack hammers, must be limited to between 9.00am and 4.00pm Mondays to Fridays, with regular breaks of 15 minutes each hour. This condition is imposed to ensure reasonable standards of amenity for occupants of neighbouring properties. 12. Levels For the purpose of indicating relative levels in terms of Australian Height Datum and boundary clearances, and to ensure that building construction complies with the development consent, survey certificates must be provided to the PCA in respect of the building/s layout and ground floor level/s prior to pouring of concrete or laying of timber floor boards. 13. Inspections If Council is appointed as the Principal Certifying Authority (PCA), the following inspections are required as a minimum. Inspections prior to pouring concrete, backfilling or lining: a) Foundations - ie: pier / pile construction where reinforcement is placed insitu. b) Footings. c) Damp proof course / flashings. d) Reinforcement for concrete. e) Structural beams and columns. f) Timber framing - floor, walls, roof g) Stormwater. Inspectionsfor shopfitouts: a) at completion of works. FinalInspection a) at completion of all works Each separate inspection undertaken by Council will require a fee to be paid to Council prior to the inspection being undertaken. 14. Requirement for a Compliance Certificate A Compliance Certificate must be issued prior to the issue of an Occupation Certificate certifying that the development has been built and completed in accordance with the development consent and that all the conditions of development consent have been satisfied. 15. Occupation of premises The premises must not be occupied prior to the issue of an Occupation Certificate. 16. Hours of operation The hours of operation for the use of No 20 Goodhope Street shall be 9.00am to 6.00pm Monday to Saturday but this restriction does not apply to the use for private viewing by persons referred to in Condition 50(c). 17. Landscaping plan A landscape plan, prepared by a qualified Landscape Architect or Landscape Consultant, to a scale of 1:100 or 1:200, conforming to Council's Landscaping Code and all other relevant conditions of this Consent, must be submitted to Council or the PCA for approval with or before the application for a Construction Certificate. If submitted to Council, four weeks should be allowed for this assessment. The Plan must provide for the following:- a) A plan showing the existing location, canopy spread, trunk diameter, height and names of all existing trees protected by Council's Tree Preservation Order on or directly adjacent to the site. The Plan must also include the existing ground levels at the base of the trunk of such trees and a schedule of works proposed to protect the trees. b) Planting plans indicating the location of all proposed planting and all existing planting to be retained, delineating each species type and showing existing and proposed ground levels (shown as spot heights over the site and at the base of the trees that are to be retained). The plan must include a detailed planting schedule, which must include species listed by botanical and common names, quantities of each species, pot sizes, the estimated size of the plant at maturity. c) The minimum soil depth for plantings on any slab must be 1000mm for trees, 600mm for shrubs and 300mm for turf. These dimensions for trees must include 75mm depth of mulch. d) Construction details of planter boxes, paving, edging, fencing, screening panels & other (specify) must be provided. e) Planting details must be provided for the preparation and laying of turf, tube and potted plants, super-advanced plants, bare-rooted stock and proposed methods of staking trees. 18. Stormwater disposal Stormwater must be disposed of by an appropriate method specified in Council's Private Storrnwater Code. Details of the proposed method/s of disposal must be submitted to Council or the PCA for approval with or before the application for a Construction Certificate. If submitted to Council, four weeks should be allowed for this assessment. 19. Plant room A plant room is to be provided, in an approved location, of sufficient area to house all machinery associated with mechanical ventilation services. Details, confirming compliance with this condition, are to be submitted with or before the application for a Construction Certificate. 20. Fire safety A schedule of all existing and proposed safety measures within the building must be submitted to Council with or before the application for a Construction Certificate. 21. Erosion and sediment control plan An erosion and sediment control plan, designed in accordance with the SSROC Soil and Water Management Brochure and the NSW Environmental Protection Authority's Managing Urban Stormwater: Construction Activities, must be prepared to show erosion and sediment control measures which are to be installed. The Plan must be submitted to Council or the PCA for approval before commencement of excavation or construction work. 22. Compliance with erosion and sediment control plan The erosion and sediment control plan must be implemented during site works and construction activities. All controls in the Plan must be maintained at all times. A copy of the Plan must be kept on-site at all times and made available to the PCA and Council officers on request. 23. Sediment removal from vehicle wheels A vehicle wheel wash, cattle grid, wheel shaker or other appropriate device, must be installed to prevent mud and dirt leaving the site and being deposited on the street. 24. Display of Council's warning sign for soil and water management Throughout the demolition, excavation, remediation, and construction #delete whichever is inappropriate period, Council's warning sign for soil and water management must be displayed on the most prominent point of the building site, visible both from the street and site. A copy of the sign is available from Council. 25. Stockpiles Stockpiles of topsoil, sand, aggregate, soil or other material must not be located on any drainage line or easement, natural watercourse, footpath or roadway, or within the dripline of any Street Tree. Stockpiles within the construction site must be protected with adequate sediment controls, in accordance with Council's Code for Sediment Control. 26. Location of building operations Building operations such as brick cutting, washing tools or brushes and mixing mortar must not take place on public roadways or footways or in any other location which could lead to the discharge of materials into the stormwater drainage system. Footpaths, gutters and roadways must be swept regularly to keep them free from sediment. 27. Temporary disposal of roof water Storinwater from any roof areas must be linked, via a temporary downpipe, to a Council approved stormwater disposal system immediately upon completion of the roof installation. 28. Disposal of site water Site water discharged to Council's stormwater system must have a level of suspended solids of less than 50 mg/L. This may require treatment such as transfer to settling ponds, use of approved chemicals to settle out sediment, or passing the contaminated water through a treatment device. Site water may also be disposed of through the services of a licensed liquid waste transporter. 29. Standard for demolition All demolition work must be undertaken in accordance with the provisions of Australian Standard AS2601-1991: The Demolition of Structures. 30. Construction management plan A construction management plan must be submitted for the approval of Council's Development Engineer, before the commencement of excavation or construction works. The Plan must:- a. describe the anticipated impact of the construction works on: · local traffic routes · pedestrian circulation ad . acent to the building site and on-street parking in the local area, and; b. describe the means proposed to: · manage construction works to minimise such impacts, · provide for the standing of vehicles during construction, · provide for the movement of trucks to and from the site, and deliveries to the site, and; c. show the location of: · ·any site sheds and any anticipated use of cranes and concrete pumps, · any areas of Council property on which it is proposed to install a construction zone, or to erect structures such as hoardings, scaffolding or shoring, or to excavate. The Plan must make provision for all materials, plant, etc. to be stored within the development site at all times during construction. Structures or works on Council property such as hoardings, scaffolding, shoring or excavation need separate consent from Council. Standing of cranes and concrete pumps on Council property will need consent on each occasion. 31. Compliance with the construction management plan All excavation, demolition and construction work and traffic movements must be carried out in accordance with the approved construction management plan. All controls in the Plan must be maintained at all times. A copy of the Plan must be kept on-site at all times and made available to the PCA and Council officers on request. 32. Site fencing The site must be appropriately secured and fenced to the satisfaction of Council during demolition, excavation and construction work to ensure there are no unacceptable impacts on the amenity of adjoining properties. Permits for hoardings and or scaffolding on Council land must be obtained and clearly displayed on site. 33. Works on Council land (a) Approval Development Consent does NOT give approval to works on Council property. Detailed plans and specifications of any new works which are proposed to be carried out on Council property, including works on roadways, footways, parks and reserves, drainage reserves and easements, etc. must be submitted for the approval of Council's Development Engineer, with or before the application for a Construction Certificate. Four weeks should be allowed for assessment. Works generally must be in accordance with the relevant clauses of the current edition of AUS-SPEC. (b) Infrastructure works bond To ensure that works on Council property are carried out to Council's requirements, the developer must lodge a bond to the estimated value of the works. An estimate must be submitted with above application . The Bond may be in the form of a bank guarantee and must be lodged prior to the issue of a Construction Certificate. The Bond will be not be released until Council has inspected and is satisfied with the works or the PCA has certified that the works have been carried out to Council's requirements. Council may use part or all of the bond to complete the works to its satisfaction if they do not meet Council's requirements. 34. Damage security deposit A security deposit for the cost of making good any damage to Council property caused as a consequence of the construction work, plus an administration fee of $150.00, must be paid to Council prior to the issue of the Construction Certificate. The security deposit must be calculated in accordance with the following schedule and may be accepted as a bank guarantee. Estimated cost of work Deposit Works up to $50,000 $1,000 Works in excess of $50,000 & up to $100,000 $2,000 Works in excess of $100,000 $2,000 plus $200 per $10,000 estimated cost>$100,000 Works including excavation and demolition $500 in addition to base fee Swimming pools, spa pools, tubs or the like $1,000 Note: An increase in the amount of the bond may be required according to a calculation based upon the potential for damage, such to be undertaken by Council's Development Engineer. Council may use part or all of this Damage Bond to complete the works to its satisfaction if they do not meet Council's requirements. 35. Footpath levels The existing footpath level and grade at the street aligmnent of the property must be maintained. 36. Protection of services Prior to any excavation works, the location and depth of all services (telephone, cable TV, electricity, gas, water, sewer, drainage, etc.) must be ascertained. The developer must meet all costs of any adjustment, relocation or reinstatement of any services. 37. Support for Council roads, footpaths, drainage reserves, etc Council property adjoining the construction site must be fully supported at all times during all excavation, demolition and building construction works. Details of shoring, propping and anchoring of works adjoining Council property, prepared by a qualified Structural Engineer or Geotechnical Engineer, must be submitted for the approval of Council's Development Engineer, or certified as structurally adequate by the PCA, before the commencement of the works. Backfilling of excavations adjoining Council property, or any void remaining at completion of construction between the building and Council property, must be fully compacted prior to release of the Damage Security Deposit. 38. Storage of materials and plant on Council's footpath Building, excavation or demolition materials and plant must not be stored on Council's footpath and/or roadway unless prior written approval has been obtained from Council's Development Engineer. 39. Public footpaths A safe pedestrian circulation route a minimum of 1.5m wide and with a pavement free of trip hazards must be maintained at all times on or adjacent to the public footpaths fronting the construction site. Where the footpath is damaged, repair works must be carried when directed by Council officers and in accordance with the relevant clauses of the current edition of AUS-SPEC. Where circulation is diverted on to the roadway clear directional signage and protective barricades must be installed in accordance with Aust AS1742-3 1996 "Traffic Control Devices for Work on Roads ". If pedestrian circulation is not satisfactorily maintained, and action is not taken promptly to rectify the defects, Council may carry out remedial works and deduct the cost from the Damage Security Deposit. 40. Completion of infrastructure work All infrastructure works must be completed and be certified by the PCA as meeting all Council requirements and as-built drawings are to be submitted to Council's Development Engineer, prior to the release of the Infrastructure Works Bond. Works generally must be in accordance with the relevant clauses of the current edition of AUS-SPEC. 41. Repair of Damaged Infrastructure If Council's infrastructure is damaged during the course of works, Council's Development Engineer must be notified and necessary repairs must be undertaken within the time stipulated by Council, to Council's specifications, and at no cost to Council. Works generally must be in accordance with the relevant clauses of the current edition of AUS-SPEC. If work is not undertaken to the satisfaction of the Development Engineer with regard to time or quality, Council may carry out remedial works and deduct the cost from the Damage Security Deposit. 42. Facilities for waste storage and collection Details of facilities for waste storage and collection must be submitted to Council's Health Officer for approval with or before the application for a Construction Certificate. Facilities must be provided which encourage the segregation of nonputrescible recyclable materials, including the use of colour-coded waste and recyclable storage bins. The proposed method/s of putrescible and recyclable waste handling, transport, storage and disposal must conform to the following requirements: a) Single occupancies: Storage must be provided for a 120 litres bin and a 55 litres recycling crate; b) Multiple occupancies: i) Putrescible Waste - the garbage area must be sized for 120 litres (per unit) in Southern Sydney Waste Board (SSWB) approved colour-coded, shared 240 litres bins. ii) Recyclable waste - the garbage area must be sized for 80-100 litres (per unit) as SSWB approved colour-coded, shared 240 litres bins, including paper, cardboard, glass, PET and HDPE plastics and aluminium and steel cans. c) Location The waste collection area must be located within three (3) metres of the street aligmnent to provide ready access for collection vehicles. 43. Trade waste Full details of facilities for the storage and disposal of trade waste must be submitted to Council's Health Officer for approval with or before the application for a Construction Certificate. The storage area/s must be of a sufficient size to store the waste generated by the proposed use/s, with allowance for separation of putrescible from waste suitable for recycling. 44. Cost of works Estimate An accurate estimate of the cost of the proposed works, prepared and certified by a registered quantity surveyor or the like, must be provided to the satisfaction of Council's Assessment Officer, with or before the application for a Construction Certificate. The estimate should be based on recognised industry cost rates or the contract price, including the cost of labour. If the revised cost of works estimate exceeds the estimate supplied with the Development Application, an additional fee based on the revised estimate must be paid to Council prior to the issue of a Construction Certificate. 45. Vehicular access and garaging Driveways and access ramps must be designed not to scrape the underside of cars. In all other respects, proposed garage/car park/basement car park, driveways and access ramps must be designed to comply with Australian Standard AS 2890.1 "Off-Street car parking." 46. Dilapidation reports A dilapidation report on the current structural condition of the existing buildings at No 22 Goodhope Street, Paddington and must be prepared by a practicing structural engineer. The Report must be completed and submitted to Council or the Principal Certifying Authority prior to the commencement of works. A second dilapidation report recording structural condition must be carried out on the above mentioned property at the completion of the works and be submitted to Council or the PCA. 47. PRESCRIBED CONDITIONS UNDER S. 80A(11) OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT ACT 1979 AND CLAUSE 78 OF THE ENVIRONMENTAL PLANNING AND ASSESSMENT, REGULATION 1998 Compliance with Building Code of Australia (a) All building work must be carried out in accordance with the provisions of the Building Code ofaustralia. (b) This condition does not apply to the extent to which an exemption is in force under Clause 80H or 80I, of the Environmental Planning and Assessment Regulation 1994, subject to the terms of any condition or requirement referred to in Clause 80H (6) or 80I (4) of the Regulation. Change of building use (a) A building in respect of which there is a change of building use must comply with the Category 1 fire safety provisions applicable to the proposed new use. Note . The obligation under this condition to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in the relevant development consent. (b) This condition does not apply to the extent to which an exemption is in force under Clause 80H or 80I of the Environmental Planning and Assessment Regulation 1994, subject to the terms of any condition or requirement referred to in Clause 80H (6) or 80I (4). Residential building work (a) Building work that involves residential building work (within the meaning of the Home Building Act 1989) must not be carried out unless the principal certifying authority (PCA) for the development to which the work relates: · in the case of work to be done by a licensee under that Act: (i) has been informed in writing of the licensee's name and contractor license number; and (ii) is satisfied that the licensee has complied with the requirements of Part 6 of that Act; or · in the case of work to be done by any other person: (i) has been informed in writing of the person's name and owner-builder permit number; or (ii) has been given a declaration, signed by the owner of the land, that states that the reasonable market cost of the labour and materials involved in the work is less than the amount prescribed for the purposes of the definition of owner-builder work in Section 29 of that Act, and is given appropriate information and declarations under paragraphs (a) and (b) whenever arrangements for the doing of the work are changed in such a manner as to render out of date any information or declaration previously given under either of those paragraphs. Note : The amount referred to in paragraph (b) (ii) is prescribed by regulations under the Home Building Act 1989. As at the date on which this Regulation was Gazetted, that amount was $3,000. As those regulations are amended from time to time, so that amount may vary. b) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part. Excavations and backfilling (a) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. (b) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property. Retaining walls and drainage If the soil conditions require it: (a) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided; and (b) adequate provision must be made for drainage. Support for neighbouring buildings (a) If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made: (i) must preserve and protect the building from damage; and (ii) if necessary, must underpin and support the building in an approved manner; and (iii) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished. (b) The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this condition, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. (c) In this condition, allotment of land includes a public road and any other public place. Protection of public places (a) If the work involved in the erection or demolition of a building: (i) is likely to cause pedestrian or vehicular traffic on a public place to be obstructed or rendered inconvenient, or (ii) building involves the enclosure of a public place; a hoarding or fence must be erected between the work site and the public place. (b) If necessary, an awning must be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place. (c) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place. (d) Any such hoarding, fence or awning must be removed when the work has been completed. Note: Prior to the erection of any hoarding, fence or the like on any footpath or other property owned or controlled by Council, permission must be sought and obtained from Council and the prescribed rental fee paid. (See Condition No. #) Signs to be erected on building and demolition sites (a) A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: i) stating that unauthorised entry to the work site is prohibited; and ii) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. (b) Any such sign must be removed when the work has been completed. (c) This clause does not apply to: (i) building work carried out inside an existing building; or (ii) building work carried out on premises that must be occupied continuously (both during and outside working hours) while the work is being carried out. Toilet facilities (a) Toilet facilities must be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. (b) Each toilet provided: (a) must be a standard flushing toilet; and (b) must be connected: (i) to a public sewer; or (ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council; or (iii) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council. (c) The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced. (d) In this condition: accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in Clause 95B of the Regulation. approved by the Council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993. public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993. sewage management facility has the same meaning as it has in the Local Govermnent (Approvals) Regulation 1993. Residential building work over $5,000 in value Council must be provided with the following information prior to the commencement of any works; (a) the proposed builder's details (in writing); and (b) proof of payment of the required insurance premium pursuant to Part 6 of the Home Building Act 1989. 48. Noise control The uses caried on within the proposed building on No 20 Goodhope Street must not give rise to: · the transmission of offensive noise to any place of different occupancy; · a sound pressure level at any affected premises that exceeds the background (LA90) noise level, in the absence of the noise under consideration, by more than 5dB(A). The source noise level must be assessed as an LA10, 15min and adjusted in accordance with EPA guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content. · A sound pressure level at any affected premises that exceeds the recommended planning levels outlined in the NSW EPA Environmental Noise Control Manual. or · A sound pressure level at any affected premises that exceeds the NSW EPA reconunended maximum noise level as modified to account for the existing level of stationary noise at the receiver premises. (NSW EPA Draft Stationary Noise Source Policy). 49. Noise from mechanical ventilation The developer must submit to Council or the PCA, with or before the application for a Construction Certificate, a report from a qualified practising acoustic engineer, certifying that the method of treating the mechanical ventilation system will ensure that the noise level, as measured at the boundaries of the subject property, will not exceed the ambient noise level. Particularisation of Permitted Uses 50. This consent does not authorise or perrm't the use of the building or land at 20 Goodhope Street Paddington for the purpose of exhibiting or displaying to the public works of art on either a permanent or a temporary basis. The consent extends only to the following activities at 20 Goodhope Street: (a) the storage, on the ground floor of the building in the position indicated on the approved plans, in suspended or similar racks of works of art which are not on exhibition to the public but which are for sale to the public and are in the nature of gallery stock; (b) the storage, within the mezzanine area of the building, of prints or other works of art not suitable for rack storage; (c) the showing of works of art to individuals who, not being persons then attening an exhibition or gallery opening or other function at 16-18 Goodhope Street, have expressed a desire to purchase works of art and who have requested that they be shown works in stock; (d) the office accommodation of persons operating, or employed by the operator of., the gallery at 16-18 Goodhope Street, and no other persons; (e) the preparation, solely for consumption by the persons having office accommodation in the building at 20 Goodhope Street or persons being shown works of art in stock for the purpose of considering its purchase, of drinks and light refreshments. The building and land at 20 Goodhope Street, Paddington, including the covered rear verandah, the footway of the public street immediately in front of the building and the landscaped and paved areas between the street and the building alignment, shall not (f) be used for the purpose of providing space or accommodation for persons attending exhibitions, gallery openings or other functions at 16-18 Goodhope Street, nor shall such persons be permitted access thereto; (g) be used other than for purposes ancillary to the use of the premises at 16-18 Goodhope Street, which purposes are specifically contemplated by this condition. Restriction on life of the consent 51. This consent ceases to have etfect (except insofar as it authorises the erection of the building) if and when the premises at 16-18 Goodhope Street Paddington (a) cease to be used for the purpose of a commercial art gallery; or (b) cease to be used as a commercial art gallery operated by, under the control of, the same persons as operate and control the activities conducted on 20 Goodhope Street. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.