Land and Environment Court of New South Wales CITATION : Brentwood Village Limited v Gosford City Council [2001] NSWLEC 112 APPLICANT Brentwood Village Limited PARTIES : RESPONDENT Gosford City Council FILE NUMBER(S) : 10074 of 2000 CORAM: Cowdroy J KEY ISSUES: Development Consent :- appeal against council refusal of development consent for convalescent hospital - council thereafter resolving to grant approval of same development - Court satisfied that the merits of the application justifies approval LEGISLATION CITED: Environmental Planning and Assessment Act 1979 s 79C, s 91 CASES CITED: DATES OF HEARING: 21/5/01, 22/5/01 DATE OF JUDGMENT: 06/12/2001 APPLICANT Mr M Tobias QC SOLICITORS Toltz La Hood LEGAL REPRESENTATIVES: RESPONDENT Mr P Thompson (Barrister) SOLICITORS P J Donnellan & Co JUDGMENT: IN THE LAND AND MATTER No. 10074 of 2001 ENVIRONMENT COURT CORAM: Cowdroy J OF NEW SOUTH WALES DECISION DATE: 12/6/01 Brentwood Village Limited Applicant v Gosford City Council Respondent JUDGMENT Facts 1. Brentwood Village Limited ("the applicant") instituted class one proceedings on 25 January 2001 following a decision by the Gosford City Council ("the council") to refuse the applicant's development application 7704/2000 for a convalescent hospital ("the application"). 2. The application had been submitted to council on 22 March 2000. It related to land being Lot 1301 in DP 881285 and Lot 131 in DP 1976 situated at 351-361 Terrigal Drive, Erina ("the site") and was made in respect of a 182 bed facility in a single storey building connected by covered walkways and surrounded by landscaped areas ("the development"). Formal requirements 3. Consent was required for the application from the Department of Land and Water Conservation and the Department of Fisheries in addition to the consent of council. On 7 April 2000 the public notification process commenced as the development comprised 'integrated development' within the meaning of s 91 of the Environmental Planning and Assessment Act 1979 ("the EP&A Act"). 4. The subject site is located within zone 7(c2) - Scenic Protection - Rural Small Holdings pursuant to the provisions of the Gosford City Interim Order No 122 ("the IDO"). Within such zone development for convalescent hospitals was a use which is permissible with consent. Development Control Plan No 122 - Cut and Fill Restrictions ("the DCP") also affects the site. 5. Before any determination of the application had been made by the council Gosford Local Environmental Plan No 381 ("the LEP") was gazetted on 28 July 2000 in the New South Wales Government Gazette No 97. Pursuant to its provisions convalescent hospitals would constitute a prohibited use on the site. However the LEP contains a saving provision contained in cl 4(2) which states:- (2) A development application made, but not finally determined, before the commencement of this plan in relation to land to which this plan applies is to be determined as if this plan had not been made. Since the application was made prior to the gazettal, the application remains competent. 6. On 23 January 2001 council rejected the application and in consequence the appeal to this Court was made. However on 31 January 2001 an application for review of the determination was made pursuant to s 82A of the EP&A Act and on 13 March 2001 council then resolved to approve such application. 7. On 27 April 2001 the Court was asked to uphold the appeal with the consent of council. However an objector, namely Mr A W Evans, provided evidence on behalf of an organisation known as the COSS Management Committee in which he expressed concern for the impact of the development upon the environment. In view of his evidence and in view of the apparent inconsistent conduct of the council in refusing the application, and then later approving an identical development application, the Court determined that it was necessary to examine the appeal in detail. Basis of initial rejection of application 8. Council had received numerous objections to the proposal from the following persons namely, Central Coast Christian Life Centre Ltd; Coss Management Committee; Gosford Wildlife Conservation Society; The Hammond Care Group; Shirley Hargrave; Charles and Traci Sherlock; and Sirkka Siltanen. The council's initial determination rejected the application as a result of an equally divided vote and the mayor followed his usual policy of exercising his casting vote in favour of the motion. 9. The reasons for council's rejection of the application were stated as follows:- 1. The scale and size of the proposal is excessive and out of character with existing and likely future development in the area. 2. The proposal results in the removal of trees including threatened species which should be retained. 3. The proposal results in cut and fill which is excessive and not in accordance with the requirements of DCP 122 - Cut & Fill. 4. The proposal is not in accordance with the principles of ESD and therefore approval is not in the public interest. 5. The proposal is contrary to the objectives of the 7(c2) zone and the planning objectives for the locality. 10. When the matter was reviewed, council reversed its prior decision with a vote of nine to one in favour of the application. At all times, Mr James Gray the council's senior town planner has supported the application and recommended its approval. Qualities of site 11. A large equestrian centre exists adjacent to the north west of the site. On its eastern side a convalescent hospital has been constructed by the Hammond Care Group. Further to the west a large church of modern style is in the course of construction. In summary, the area could not be described as one which does not have a predominately residential use, although Mr and Mrs Sherlock's house is in close proximity. Objectors 12. At the hearing of this application Mr Charles Sherlock gave evidence as an objector. Mr Sherlock owns land the north of the site upon which he and his wife have erected a residence. Mr Sherlock said that he was concerned that the development would interfere with the peaceful enjoyment of his land. He agreed in cross-examination that he constructed his house in close proximity to the southern boundary of his land despite his knowledge of the application. Expert reports 13. The Court has considered expert reports provided by Douglas Partners in relation to geo-technical conditions and groundwater, and a flora and fauna impact assessment prepared by Mr Phillip Conacher, the principal of Conacher Travers Pty Limited, Environmental Consultants. The latter report concludes that the proposed development would not result in any significant impact to threatened species or to their habitat. A traffic impact assessment of BJ Bradley and Associates, consulting civil and traffic engineers was tendered in evidence. Such report concludes:- (iii) The proposed Convalescent Hospital will generate minimal additional traffic to Terrigal Drive and approval to the proposed development will have no significant impact on the capacity or safety of Terrigal Drive; 14. In view of concern for the ecology of the site, an additional assessment was made by Mr Conacher and his conclusion is stated in his supplementary report dated March 2001 as follows:- (i) The Sydney Coastal Estuary Swamp Forest Complex present on the subject site is already highly disturbed, isolated and not connected to any similar vegetation; (ii) The potential impacts of the proposed development on the Sydney Coastal Estuary Swamp Forest Complex are not likely to be significant in relation to the regional extent of this community; (iii) A Species Impact Statement should not be required for the proposed development. 15. Ms Deborah Laidlaw, an expert town planner, investigated the site and the development taking into consideration the community submissions. Ms Laidlaw concluded as follows:- Although it is a reasonably large complex, the development has provided a significant setback to Terrigal Drive, and its impact on the scenic values of the area will be minimal. The removal of elements of existing built structure, (that is the plant nursery and associated signage), will be beneficial and will support the objectives of IDO 122 and DCP's 36 and 89. The low rise nature of the development, being of single storey with a low pitched roof, will also ensure that the impact of the development, as viewed from other localities within the zone will be reasonable and not inconsistent with environmental outcomes promoted by the IDO and DCPs. Response to objections 16. The objection of Central Coast Christian Life Centre Ltd was withdrawn following an offer by the applicant to provide acoustic and landscape treatments for the proposed development. 17. In relation to Mr and Mrs Sherlock's objection the applicant has now agreed to certain conditions as follows:- 1. The internal driveway residence will not be used for any vehicular traffic after 7 pm nor before 8 am excepting emergency vehicles. 2. The applicant will provide dense landscaping to a depth of 5 m north of the boundary between the applicant's land and that of Mr and Mrs Sherlock. 3. From the same boundary for a distance of 13 m south the applicant will landscape such strip and provide a burm, 2 m in height over a length of 66 m which will effectively screen the development of Mr and Mrs Sherlock. 4. An acoustic wall 2 m in height will be erected on the southern side of such landscaping. 18. The buildings proposed for the site will be re-located 10 m to the south from the position presently shown in the plans before the Court. As a result the impact of the development on the residence of Mr & Mrs Sherlock should be minimised. Mr and Mrs Sherlock informed the Court that if such measures were taken they were content to withdraw their objection to the development. 19. The Court considers that the other concerns raised by the remaining objectors have been addressed by the expert evidence of the applicant. The Court concludes that there is no ground of objection sufficient to warrant refusal of the appeal. Points of law 20. Mr Evans of the COSS Management Committee raised the concern that such a development should not be approved in view of the planning regime contained in the LEP which prohibits such development in the 7(c2) zone. However the savings provision contained in cl 4(2) as set out above provides a legal right which entitles the applicant to continue with its application despite the gazettal of the LEP. 21. A further question was raised concerning the use of the proposed hospital. The submission was made by Mr Evans that the majority of patients would be those suffering from dementia and that the facility would not thereby constitute a 'convalescent hospital' for the purposes of the IDO. 22. Upon this issue the Court has heard evidence and has been provided with statistics concerning possible recovery of patients in similar institutions. Carol Gladys Pike, a nurse who has been engaged in aged care since 1980 and who is currently the director of the Veronica Nursing Home testified that in her experience approximately 6.2% of patients were discharged to their homes after treatment whilst 0.4% were discharged to other hostels. However she explained that the care provided to all patients is intended to improve the quality of their lifestyle with the result that they require a lesser standard of care. In short, various forms of therapy can improve the quality of life of a patient and their enjoyment of life in such institutions. 23. Mr John Gerard Klumpfer, the principal of the applicant gave evidence that he had been engaged in the construction of nursing home facilities in the central coast area for 35 years. Various forms of treatment were provided by convalescent hospitals already operated by the applicant such as physiotherapy, occupational therapy and entertainment to strengthen the physical and mental well-being of the patients. Mr Klumpfer said that it would be erroneous to regard such places as being a mere stage towards the end of the life of the patient. Mr Klumpfer also testified that there was a 700 bed shortage for dementia patients and a 400 bed shortage for nursing home accommodation in the Central Coast region. Findings 24. The term 'convalescent hospital' is not defined in the IDO nor the LEP. The term 'hospital' is defined in the IDO as follows:- "hospital" means a building used as a hospital, sanatorium, health centre or dispensary, nursing home, home for infirm, incurable, mildly intellectually handicapped, or convalescent persons, whether public or private, and includes a shop or dispensary used in conjunction therewith but does not include an institution; The term 'hospital' is defined in the LEP as follows:- "Hospital" means a building or place used for the purpose of providing professional health services (including preventative care, diagnosis, medical or surgical treatment or counselling) to people admitted as in-patients, whether or no out-patients are also cared for or treated, and includes: (a) a nursing home; and (b) ancillary facilities for accommodation of staff and visitors; and (c) associated educational or research facilities. The term 'convalesce' is defined in Dorlands Illustrated Medical dictionary as ' the stage of recovery following an attack of disease, a surgical operation, or an injury' . The Oxford English Dictionary, (Clarendon Press Oxford 1989, 2nd Edition) defines convalesce as including, ' gradual recovery of health and strength after illness' . Such concepts would apply to the intended treatment for the proposed patients, even though it is not suggested they will make a full recovery. Even a partial recovery or a stage of recovery would suffice to describe the patients as 'convalescing'. The Court is satisfied that the forms of treatment provided at the proposed institution renders it a convalescent hospital pursuant to the provisions of the LEP. 25. The Court has considered the suitability of the site for development pursuant to s 79C(1) of the EP&A Act. The Court has had the benefit of a view and the expert opinion of Ms Laidlaw. In the absence of any expert evidence from any objector the Court accepts the evidence that the site is one which is suitable for the proposed development and that the environmental impacts, if approved with conditions, would be negligible. None of the original grounds relied upon by council for its initial decision to refuse development consent are sustained. Orders 26. For the reasons given above the Court makes the orders set out in the Annexure hereto and marked "A". 17 Development Application No. 7707/2000 1 No works are to be commenced until a Construction Certificate has been issued. 2 Deleted. 3 Compliance with any requirements of the WorkCover Authority. 4 Completion of the building and the development of the site in accordance with the conditions of Council's consent prior to the issue of an occupation certificate. 5 Lot 131 DP 1976 and Lot 1301 DP 881285 are to be consolidated into a single allotment under one Certificate of Title prior to the issue of a Construction Certificate. 6 The suites of rooms in the eastern-most buildings are only to be occupied by dementia sufferers. 7 Trees to be retained shall be protected during site works and construction by the erection of solid barricades around the dripline, and the trunks of such trees. The developer or contractor will take all measures to prevent damage to trees and root systems during site works and construction activities including provision of water, sewerage and stormwater drainage services. In particular, works, erection of structures, excavation or changes to soil levels within three (3) metres of the trunks of trees to be retained are not permitted unless part of the development as approved, and the storage of spoil, building materials, soils or the driving or parking of any vehicle or machinery within three (3) metres, of the trunk of a tree to be retained, is not permitted. 8 The driveway, vehicle manoeuvring area and car parking spaces as shown on the approved plan are to be properly constructed, graded, drained and sealed with an impervious all-weather material, with all car parking spaces being clearly marked, and maintained in accordance with Council's Car Parking Policy. 9 A concrete kerb or such alternative of similar standard as may be approved by Council is to be provided to driveways and around areas of landscaping to prevent encroachment of vehicles. 10 Car parking spaces are to be suitably screened from view from any public place or public reserve, such screening to be detailed in the landscaping plan. 11 No trade wastes are to be discharged into the sewerage system until such time as approval has been granted by Council. 12 A garbage and recycling storage area is to be provided, designed and constructed so as to conceal its contents from view from public places and adjacent properties and is to be blended into the landscaping layout. The storage area is to be located so as to be readily accessible from within the site, and the garbage collector from the adjoining road. 13 The external surfaces of all buildings are to be of materials and colour which are low reflective and which blend with the landscape of the site on which they are to be used and the surrounding natural environment. 14 Any lighting on the site is to be directed in such a manner so that no nuisance is caused to adjoining properties or to drivers on surrounding streets. 15 The erection of a building must not be commenced until a principal certifying authority has been appointed. 16 Council must be notified within two (2) days of the commencement of work, who is to be nominated as the Principal Certifying Authority. Please complete the attached form and return to Council. 17 All building work must be carried out in accordance with the provisions of the Building Code of Australia. In the event Council is nominated as the Principal Certified Authority, additional information may be required to specifically address matters pertaining to the issue of a Construction Certificate. 18 The waste storage/collection area/s are to be identified on the Construction Certificate plans and all internal roadways traversed by the collection vehicles shall be designed to withstand the loading of fully laden collection vehicle (est. 25 tonnes) 19 All collection vehicles are to enter and leave the site in a forward direction. 20 Compliance with the requirements of the Food Act and Council's Code for the "Construction and Alteration of Food Premises". 21 Compliance with all requirements of Council's Plumbing and Drainage and Trade Waste Inspectors. Note: A Trade Waste Application form is to be submitted to Council's Trade Waste Section prior to trading of the business commencing. 22 The floor of the coolroom being graded to the door and a floor waste being located outside the coolroom as near to the door opening as practicable. 23 The refrigerated or cooling chamber, which is of sufficient size for a person to enter must have – a A door which is capable of being opened by hand from inside without a key; and b internal lighting controlled only by a switch which is located adjacent to the entrance doorway inside the chamber, and c an indicator lamp positioned outside the chamber which is illuminated when the interior light is switched on; and d an alarm that is – i located outside but controllable only from within the chamber; and ii able to achieve a sound pressure level outside the chamber of 90 dB(A) when measured 3m form the sounding device. The door required by (a) above must have a doorway with a clear width of not less than 600mm and a clear height of not less than 1.5m. 24 The ventilation system being operated at a noise level which will not cause annoyance or inconvenience to the occupants of the building and adjoining premises. 25 Mechanical ventilation and/or air conditioning systems complying with the requirements of Australian Standard 1668-1991 SAA "The Use of Mechanical Ventilation and Air-Conditioning in Buildings Part 1 and/or Part 2". 26 A certificate being submitted at the completion of the installation from a practising Mechanical engineer certifying that the construction, installation and operation of the exhaust hood ventilation system meets the requirements of AS 1668.1 and/or AS 1668.2 – 1991. 27 Provision of tundishes connected to the sewerage drainage lines for the disposal of liquid wastes produced by any fixture or fitting. 28 Submission to Council for approval prior to the issue of a Construction Certificate fully detailed plans and specifications for the exhaust hood ventilation system, with the design being certified by a practising Mechanical engineer to be in accordance with AS1668 Parts 1 and/or 2. You are advised to consult with Council's Food Surveillance Officer on this requirement prior to preparation of these details. 29 A commercial exhaust hood with ductwork extending to above the highest roofline is to be provided over all cooking equipment designated by Council. 30 All walls bounding and within designated food preparation, food servery and food storage areas are to be constructed of solid materials approved by Council. 31 Separate Construction Certificates are required for the hospital kitchens and the Community kitchen. Fully detailed plans and specifications for the internal construction and fitout of each kitchen are to be submitted to Council for approval prior to the issue of these Construction Certificates. You are advised to consult with Council's Food Surveillance Officer on this requirement prior to preparation of these details. 32 Drainage points required in the kitchens are to be determined following consultation with Council's Food Surveillance Officer, and prior to concrete floor slabs being poured. 33 Minimum Floor Level for all buildings is to be 0.5 metre above secondary flowpath water levels and at least 0.3 metre above ground level surrounding each building. This shall be confirmed by a Registered Surveyor at the completion of construction. 34 Catch drains proposed along the northern and eastern boundaries are to be designed to contain up to the predicted 1% AEP runoff flows. This information is to be supplied with the construction plans, and upon completion of construction the dimensions certified by a Registered Surveyor. 35 The major pipeline crossing the site should connect with the drainage from the upstream development and convey these flows to Worthing Creek for all events up to and including the 1% AEP. Details shall be provided by the applicant's engineer in the construction certificate plans. 36 A secondary flowpath corridor is to be provided through the site to accommodate surcharging flows from the upstream development flowpath. This secondary flow path with dimensions is to be nominated on the construction certificate plans and maintained as a clearway to avoid blockage or diversion. 37 All construction proposed within the 1% AEP floodplain must be flood compatible and not impede or divert flood flows. 38 OSD and GPT calculations and structural details are required in the construction certificate plans for these structures to accommodate all events up to and including the 1% AEP for this development. Details are also required for any sediment wells within these structures, with the Nursing Home responsible for all maintenance and care of the system. 39 Carparking or any other obstructions is not permitted within the 1% AEP flowpaths or floodplain. 40 If it is proposed to increase any run off at the North-West corner of the site area, an interallotment drainage easement will be required over the adjoining property. Alternatively, run-off from this corner should be diverted to the south-western corner of the site via an on-site detention system. 41 Compliance with the following requirements of the Department of Land and Water Conservation. a The work to which these general terms of approval apply is not to commence until such time as a formal Permit under 3A of the RFI Act has been issued from DLWC b Any Permit subsequently granted is not transferable to any other person or company and does not allow operations at any other site. The location and nature of any works under this Permit application shall not be altered. c Any Permit subsequently granted does not give the holder the right to occupy any land without the owners' consent nor does it relieve the holder of any obligation which may exist to also obtain permission from Local Government or any other Authorities who may have some form of control over the site of the work and/or the activity proposed. d Operations shall not damage or interfere in any way with: Vegetation outside the area of operation, The stability of adjacent or nearby creek bank or bed, or The quality of water in the creek. e All soil and/or vegetation material to be removed from the area of operation shall be disposed to an appropriate site where it cannot be swept back into the creek. f If in the opinion of a DLWC officer any work is being carried out in such a manner as it may damage or detrimentally affect the creek, or damage or interfere in any way with any work, the operation on that section of the creek shall cease upon oral or written direction of such officer. g If the Permit conditions have been breached the Permit holder shall restore the site to the satisfaction of DLWC. If necessary works are not completed then the Permit holder shall pay a fee prescribed by DLWC for the initial breach and all subsequent inspections. h The progressive rehabilitation of the area to the satisfaction of DLWC is the responsibility of the Permit holder and owner or occupies of the land. i The Permit holder and the owner and occupier of the land are responsible for any excavation or soil removal undertaken by any other person at this site. j These general terms of approval are issued with the proviso that operations shall be carried out on freehold land. Should the operations be: ! On Crown Land, ! By a public authority operating within the lawful activities of its Act ! On land subject to a mining lease ! Located more that 40 m from the top of bank or shore of protected water. ! Works constructed or installed pursuant to a right exercisable under Sections 7 or 22A of the Water Act or Parts 2, 3, 7 or 8 of the Water Act. ! This Permit is rendered null and void. k An Erosion and Sediment Control Plan shall be prepared in accordance with Gosford City Council's the Erosion and Sediment Control Plan Guidelines. Sediment control measures shall be provided for the duration of all works and until the site is stabilised. l Any structural works within 20 m of the High Water Mark or the top of bank of the creek shall be designed and certified by a practising structural engineer. m Planning of development layouts should consider green corridors and natural watercourses, whether permanent or intermittent. These should be based upon a 10m buffer zone from the top the bank of the watercourse. Such corridors should be rehabilitated, including the removal of exotic species and the control of potential erosion hazards, in order to promote the overall ecological integrity of the riparian zone in accordance with the objectives of the NSW State Rivers & Estuaries Policy (1992). n Any stormwater discharge from the site shall not result in erosion or bank/bed instability. For this reason adequate scour protection with vegetation strategies shall be provided at outlet points to Worthing Creek. o The proposed detention basin areas and nutrient control pond within the site shall not result in erosion or bank/bed instability. Such structures should be developed in combination with revegetation strategies, based upon the use of local native endemic species. The final design of detention facilities shall ensure post-development flows mirror pre-development flows in Worthing Creek. p Final nutrient treatment plans and operational maintenance guidelines shall be provided to DLWC as part of the 3A Permit application. These plans shall show how the proposal satisfies EPA Guidelines. q All dams used for stormwater detention shall have adequately designed spillways. r A vegetation management plan is to be prepared for the proposal by a suitably qualified person in consultation with and to the satisfaction of the department. The plan is to detail the staging of the works, vegetation to be retained, the establishment of a 10m riparian zone adjacent to Worthing Creek using local native endemic species, vegetation maintenance, monitoring and performance criteria, and who is to undertake the tasks. s In potential acid sulfate soil areas (coastal areas below 5m AHD as mapped by DLWC) an Acid Sulfate Soil Management Plan shall be developed and implemented where soil testing indicates the presence of Potential Acid Sulfate Soils. t Any Acid Sulfate Soil Management Plan shall be prepared in accordance with the Acid Sulfate Soil Manual's (Acid Sulfate Soil Management Advisory Committee August 1998) guidelines for the preparation of Management Plans. u Any stormwater discharge from the site shall not result in erosion or bank/bed instability. v The road surface shall not be steeper that a grade of 1 vertical to 3 horizontal or flatter than a grade of 1 vertical to 50 horizontal with an even longitudinal grade smooth and free from holes or ridges. w The site shall be fenced off to prevent stock access while the site is undergoing restoration and revegetation. x Any realigned bed or banks of the creek or channelled or pipe flow into protected waters shall not undermine or direct flow so as to cause instability of the bed or banks elsewhere. y Establish / maintain riparian (riverine) corridor vegetation to reduce soil erosion and to encourage habitat regrowth and integrity. z Any proposed structure shall comply with Local Environment Plans (LEPs), State Environmental Planning Policies (SEPPs) or Regional Environmental Planning policies (REPs) or Councils' Development Control Plans (DCP'S) for works of this nature, as assessed in the DA determination. 42 Erosion and sediment control is to be provided in accordance with Council's Policy and Code of Practice: Erosion and Sediment Control. An Erosion and Sediment Control (ESC) Plan is to be prepared, and control measures provided on any part of the land where the natural surface is disturbed and/or earthworks are carried out. The ESC Plan is to give detail as to staging of construction works and corresponding control measures, and the maintenance program for erosion and sediment controls on the site. Advice: The Applicant shall be held responsible for any breaches of the Protection of the Environment Operations (POEO) Act 1997 . Please note: Failure to implement or maintain appropriate erosion and sediment control measures is a breach of the Protection of the Environment Operations (POEO) Act 1997. Such a breach is liable for a $750 on-the-spot fine for an individual, or a $1500 on-the-spot fine for a corporation. Applicant(s) and Builder(s) are advised that spot checks of erosion and sediment control measures may occur and fines for breaches imposed. 43 Nutrient control is to be provided in accordance with Council's Policy and Best Practice Guidelines: Nutrient Control. A vegetated nutrient filter strip is considered the most appropriate form of nutrient control for the site, and is to be planted out with native species indigenous to the area. 44 The retaining walls around the proposed fill areas are to be built prior to the placement of fill in each area, or if filled in stages, are to be in place prior to the placement of each level of fill. 45 Suitable foraging tree species for threatened bat species that may utilise the area are to be included in the landscaping for the development, at an equivalent or higher density to those removed from the site. 46 The existing native vegetation to be retained is to be fenced off prior to, and during construction, as a 'no-go' area. 47 An Arborists report is to be prepared in relation to existing trees adjacent to the eastern part of the northern site boundary which is to address the measures necessary to protect these trees from damage from earthworks and to ensure their long term health. Site works are to take place in accordance with the recommendations of this report. Details are to be submitted prior to the issue of a Construction Certificate. 48 Measures are to be employed in the construction of the western most building to suppress the intrusion of noise from the adjoining place of public worship. 49 The area shaded in yellow on the approved site plan is to be planted out with native species to create a dense screen. Planting details are to be included on the landscaping plan to be lodged and approved prior to issue of the Construction Certificate. 50 (a) A 2 metre high acoustic fence is to be erected on the northern side of the site and driveway in the location as shown in red on the approved plans. (b) The proposed retaining wall in the north-eastern corner of the site is to be relocated to conform with the location of the acoustic fence. 51 Screen planting is to be provided along the eastern boundary of the site. Details are to be provided in the landscaping plan. 52 A permit is to be obtained from NSW Fisheries under the Fisheries Management Act prior to the commencement of the development. 53 Best practice environmental safeguards (booms, silt curtains etc) are to be used during the construction stage to arrest sediment escaping from the site and creating turbid blooms within the aquatic environment. 54 Prior to onset of works all trees to be removed according to the plan should be removed in a manner so as to prevent damage to those trees which are to be preserved eg. they may be felled section by section or removed by crane. 55 All stumps are to be ground out or removed in a manner so as not to damage the trees to be preserved. 56 Two metre high chain mesh fences should be erected around preservation zones as indicated by the plan and the fences shall remain intact until all construction on the site is completed. 57 Fences around preservation zones should be signposted to warn contractors of their purpose. 58 An arborists report is to be obtained in relation to measures necessary to ensure the long-term health of any trees to be retained which are within 6 metres of the proposed buildings. A copy of this report is to be submitted to Council prior to the issue of a Construction Certificate. 59 Treatment and pruning of trees may only be undertaken by qualified arborists and in accordance with Australian Standards 4373 pruning of amenity trees. 60 Prior to the issue of a Construction Certificate a security deposit of $10,000.00 shall be paid into Council's trust fund to cover the cost of repairing damage caused as a result of the development. Such deposit will be refunded upon the completion of the project if no damage is caused. 61 Satisfactory arrangements are to be made for the provision of water and sewer services to the land. A copy of the Certificate of Compliance under Section 26 of the Water Supply Authorities Act 1987, is to be obtained prior to the issue of a Construction Certificate. Contributions may be applicable to the Section 26 Certificate. Advice Developers are urged to make early application for a Section 26 certificate. A Section 24 application form is attached in order to apply for a Section 26 Certificate of Compliance. 62 Construction of a on-site stormwater detention to limit post development flows from the proposed development to less than or equal to predevelopment flows for all storm events up to and including the 1% AEP storm event. A stormwater detention report prepared by a practising Civil Engineer shall be approved by Council prior to the issue of a Construction Certificate. A runoff routing method is to be used for sites greater than 3000 sqm. At the completion of construction a Compliance Certificate shall be submitted prior to the issue of an Occupation Certificate. The Engineer is to certify that the detention system as built will perform to the criteria set down by the designing Engineer and that all stormwater drainage and related work has been constructed in accordance with the Construction Certificate. 63 Driveways and car parking spaces are to be designed according to the requirements of the current Australian Standard AS2890. Plans are to show the following information: i vehicular swept paths and dimensions of clear manoeuvring areas; ii a longitudinal section through the centre line of the driveway from the kerb line to the proposed garages, showing driveway grades and suitable transition at changes of grades; iii drainage pits and pipes; iv a pavement design prepared by a suitably qualified Engineer. At the completion of construction a Compliance Certificate shall be submitted prior to the issue of an Occupation Certificate. A work as executed plan and written verification stating that all driveway pavements as built will perform to the criteria set down by the designing Engineer and the work has been constructed in accordance with the Construction Certificate. 64 All work to be carried out on a public road shall be approved by Council under the Roads Act. Engineering plans for the work are to be prepared and designed by a suitably qualified person in accordance with Council's Civil Construction Specification, Specification for the Drafting and Design of Stormwater Drainage Works and Roadworks and Code of Practice for Erosion and Sedimentation Control. The plans are to be approved by Council prior to the issue of a separate Construction Certificate for these works in this condition. Advice A fee for the approval of engineering plans shall apply. The amount of this fee can be obtained from Council's Information Services. All work is to be carried out in accordance with the Occupational Health and Safety Act. 65 Construction of the following works in accordance with Council's Civil Construction Specification, Specification for the Drafting and Design of Stormwater Drainage Works and Roadworks and Code of Practice for Erosion and Sedimentation Control. The works shall not have an adverse impact upon nearby properties and shall comply with WorkCover Authority requirements. A Compliance Certificate together with two (2) copies of a work-as-executed plan shall be submitted with the Occupation/Subdivision Certificate. i Half width road including kerb and guttering, subsoil drainage, footpath formation, drainage and a minimum 1m wide road pavement across the full frontage of the site in Terrigal Drive. ii Footway formation graded at +4% from the top of kerb to the property boundary, across the full frontage of the site in Terrigal Drive. iii Piping of the natural watercourse for its entire length within the subject land. iv 1.2m wide reinforced (F72 steel fabric) concrete footpath in an approved location across the full frontage of the site. v Vehicle crossing (entry) that has a width of 6.0m and constructed with 150mm thick concrete reinforced with F72 steel fabric. vi Vehicle crossing (Exit) that has a width of 6.0m and constructed with 200mm thick concrete reinforced with 2 layers of F72 steel fabric. vii All redundant dish crossings and/or damaged kerb and gutter are to be removed and replaced with new kerb and gutter. viii Piping of all stormwater from impervious areas within the site to Council's drainage system located in Terrigal Drive 66 All stormwater work to be carried out shall be approved by Council under the Local Government Act. Engineering plans for the work are to be prepared and designed by a suitably qualified person in accordance with Council's Civil Construction Specifications, Specification for the Drafting and Design of Stormwater Drainage Works and Roadworks and Code of Practice for Erosion and Sedimentation Control. The plans are to be approved by Council prior to the issuing of a Construction Certificate required by this consent. Advice A fee for the approval of engineering plans shall apply. The amount of this fee can be obtained from Council's Information Services. All work is to be carried out in accordance with the Occupational Health and Safety Act. 67 Submission of a pavement report prepared by a practising Geotechnical Engineer. The pavement depths are to be determined in accordance with Council's specifications and the following traffic loadings: Name of Street Traffic Loading (ESAs) Terrigal Drive 2 x 106 At the completion of construction a Compliance Certificate shall be submitted prior to the issue of a Occupation/Subdivision Certificate, the Geotechnical Engineer is to certify that the pavements as built have been constructed in accordance with the Construction Certificate, accepted practice, and recommendations outlined in the pavement report. 68 Construction of a nutrient control facility and the submission of a nutrient control report prepared by a suitably experienced and qualified engineer or professional. The nutrient control measures are to be determined in accordance with Council's Policy E0.09 Best Practice Guidelines Nutrient Policy. The report shall include an operation and maintenance plan. At the completion of construction a Compliance Certificate must be submitted prior to the issue of a Occupation/Subdivision Certificate, the engineer or professional is to certify that the nutrient control measures as built have been constructed in accordance with the Construction Certificate, accepted practice, and recommendations outlined in the nutrient control report. 69 Provision of an AUSTROADS Guide to Traffic Engineering Practice, Part 5 - Intersections at Grade, auxiliary left turn deceleration lane, 30m long in Terrigal Drive at the junction of Terrigal Drive and Access Road. 70 Provision of an AUSTROADS PART 14 on road bicycle lane adjacent to the left turn deceleration lane located in the Terrigal Drive as above. 71 Provision of a centre concrete median strip 0.9m wide in Terrigal Drive. This median strip shall be extended from the proposed median by the neighbouring development to the east of the site on Terrigal Drive, to 45m past the proposed access for the development as shown the applicant's Plan No 9944. 72 Provision of kerb & gutter and concrete footpath works on the Terrigal Drive across the complete frontage of the site, in accordance with to Council requirements. Note: for Item 1 to 4 : To accommodate the above auxiliary lane, concrete median, travel lanes, bicycle lane and sealed shoulders on each side, Terrigal Drive may need to be widened to accommodate the intersection improvement. 73 All redundant dish crossing and/or damaged kerb and gutter are to removed and replaced with new kerb and gutter. 74 Provision of a "Type 3" driveway as per the RTA's Guide To Traffic Generating Developments with approximately 1-3 metre minimum separation in the driveways including a six-metre wide entry and four to a six-metre wide exit. 75 Detail of the location of all proposed auxiliary lane, concrete median, travel lanes, bicycle lane, sealed shoulders, line marking, and related regulatory signs in Terrigal Drive is to be in accordance with Roads and Traffic Authority Specification and Australian Standards. All proposed line marking plans Engineering plans are to be submitted and approved by the Manager-Transport Advisory Unit and RTA's Projects Manager, Road Safety and Traffic Management, Hunter Region prior to the issue of a separate Construction Certificate for these works in this condition. All works at the Developer's cost. 76 The approval of the Roads and Traffic Authority is to be obtained. The RTA will require the following to be submitted with the engineering plans: C A pavement Design Report (The RTA shall be contacted for pavement design loading.) C A3 drawings including drainage, pavement design and line marking and signposting. C A Review of Environmental Factors (REF) (minimum of 3 weeks for assessment) C An Environmental Management Plan (EMP) (minimum of 3 weeks for assessment). C An Erosion and Sedimentation Control Plan (ESCP) as part of the engineering works drawings (minimum of 3 weeks for assessment). C Gantt Chart for the project construction. C Traffic control plan. C A Road Safety Audit. C An Occupational Health and Safety Plan C The applicant to lodge deed of agreement documentation with RTA for approval prior to the commencement of works in Terrigal Drive. C A Section 138 agreement shall be entered into with the RTA to ensure compatibility of roadworks with the State Road network. Above information to be submitted to RTA's Project Manager, Road Safety and Traffic Management Section, Hunter Region for approved before commencement of works. Construction of all works at the Developer's cost. 77 Provision of street lighting in accordance with Council's Policy for illumination of the median in Terrigal Drive at no cost to Council. 78 This development is subject to Councils DCP106 – Controls for Site Waste Management. A Waste Management Plan is required to be prepared in accordance with Council's Waste Management Guidelines and submitted with the Construction Certificate. The Plan should address demolition, construction and final use stages of the proposed development. 79 The consent of Council is to be obtained for future signs for the development. These signs are to comply with the provisions of Development Control Plan No 36. 80 The proposed development is to be connected to the reticulated sewer system. 81 A landscaping plan is to submitted and approved by Council prior to issue of Construction Certificate. Landscaping is to incorporate advanced native species. 82 a Upon removal of the existing Nursery on the site the area of land is to be intensely landscaped with native species including Melaleuca biconvexa and Eucalyptus robusta. b The landscape plan to be approved by Council and to include a mix of a variety of native species of 10:1 or greater. 83 Dense screen landscaping is to be provided adjacent to the existing kindergarten as shown cross hatched in red on the approved site plans. 84 The proposed earth mound shown in the approved plans at the rear of the site is to be designed by a consulting arborist to ensure the protection of any trees in this location and is to be constructed so as to have a height of 2 metres above the natural surface level or the finished level of the adjacent driveway, whichever is the higher. The location of the earth mound and existing trees in this location are to be identified on the landscaping plan to be lodged and approved prior to the issue of the Construction Certificate. 85 Vehicular access is to be provided to the existing kindergarten as shown in red on the approved plans. All existing vehicular ingress/egress points are to be replaced by the proposed central driveway. 86 Movement of vehicles on the internal road/access system is to be restricted to the hours of 8am to 7 pm, seven (7) days per week except for the movement of emergency vehicles undertaking emergency procedures. 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.