Land and Environment Court of New South Wales CITATION : Jonvana Enterprises Pty Limited ACN 069 981 746 v Parramatta City Council [2004] NSWLEC 239 APPLICANT Jonvana Enterprises Pty Limited ACN 069 981 746 PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10604 of 2003 CORAM: Watts C at 1 KEY ISSUES: Development Application :- ·Position of the garbage store - Position of the footpath beside the deceleration lane - Privacy to the rear - Increase in local traffic in Chamberlain Street - Dilapidation report - Drainage - Potential loss of trees along the rear and·Disabled and loading access between floors. LEGISLATION CITED: Parramatta Local Environmental Plan 2001, (PLEP) - Parramatta Development Control Plan 2001, (PDCP) - State Environmental Planning Policy No 65, (SEPP65) - Environmental Planning and Assessment Act 1979, ss 79C, 97 CASES CITED: DATES OF HEARING: 14/04/2004 and 17/05/2004 DATE OF JUDGMENT: 05/17/2004 APPLICANT Mr P Zada, solicitor SOLICITOR Navado Chartered Accountants & Solicitors LEGAL REPRESENTATIVES: RESPONDENT Mr C C Gough, solicitor SOLICITOR Storey & Gough JUDGMENT: Appeal No: 10604 of 2003 11 Jonvana Enterprises Pty Limited ACN 069 981 746 v Parramatta City Council Judgment 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Parramatta City Council (the council) of a development application to demolish the existing dwellings and to erect a mixed-use development, at Lots 8, 9 & 10, Section 6, DP 4047, being Nos. 518-522 Woodville Road, Guildford. 2 I visited the land in company with the parties on the morning of the first day of the hearing. Residents gave evidence on the site inspection. 3 I have concluded that with the plans amended and the imposition of conditions that the application may be approved when considered under s 79C of the Environmental Planning and Assessment Act 1979 . The land 4 The land is situated on the western side of Woodville Road, between Henry Street and Rhodes Avenue, Guildford. 5 The land is rectangular in plan with a frontage of 45.47m to Woodville Road, a northern boundary of 79.175m, a western boundary of 45.725m and a southern boundary of 84.865m and an area of 3,729m2. 6 Erected on the land are three x single-storey dwelling houses with rear garages. The land slopes gently down to the northwestern corner. The following RL's give an indication of site slope: Northwestern corner: RL 45.24m; Northeastern corner: RL 44.92m; Southwestern corner: RL 46.00m; Southeastern corner: RL 48.33m. There is a cross fall of 3.41m over a distance of about 95m. 7 This part of Guildford is characterised by low-scale residential development in the form of mainly single-storey dwelling houses, although there are some substantial two-storey dwellings. 8 Woodville Road to the east, Guildford Road to the north, the railway line to the west and the Sydney Water Pipeline to the south define a small neighbourhood. 9 Public transport is available to the land. Bus routes are along Woodville Road service Parramatta and the suburbs to the south and west including Merrylands. The nearest railway station is Guildford, which is a bus-rail interchange on the main western railway line. Relevant planning controls Parramatta Local Environmental Plan 2001, (PLEP) 10 Under the PLEP the subject land is zoned Mixed Use 10. Under this zoning, the proposal would be "mixed use" and permissible with consent. The land use table is cl 16 of the PLEP. 11 The objectives of the Mixed Use 10 zone are: (a) to encourage a mix of compatible land uses, such as office and commercial, retail, residential, tourist, service, recreational, community and light industry development, but only where adjacent uses will not have an adverse impact on each other, and (b) to promote the development of the area to its maximum potential, while minimising environmental impacts of development by facilitating the use of public transport, bicycle and pedestrian facilities and services, and (c) to ensure that development is energy and water efficient in design, minimises pollution and conserves the natural and built landscape, and (d) to establish a highly attractive area to live and work in, and for recreational and tourist uses. Parramatta Development Control Plan 2001, (PDCP) 12 The relevant sections of the PDCP are: · Design Element 4.1.1- Energy Smart Buildings; · Design Element 4.1.2 - Waste Controls; and · Design Element 4.2.1- Housing Diversity. 13 The original proposal had a mixture of residential units: 4 x one-bedroom units (9.5% of total); 36 x two-bedroom units (85.7% of total); 2 x three-bedroom units (4.8% of total). It is now proposed to erect twenty units in the front building and seventeen in the rear and include fifty-eight (58) car parking spaces in a basement. · Design Element 4.3.5 - Vehicular Access & Parking; 14 The PDCP requires the provision of the following car parking spaces: Residents: 46.5 spaces; Visitors: 9 spaces; Retail: 4.5 spaces; Total: 60 spaces 15 The proposed basement contains fifty-eight (58) car parking spaces so is deficient by 2 spaces. Visitors and retail spaces are proposed to be dual use. 16 Vehicular access to the basement is by way of a 6.0m-wide ramp on the northern side of the site, adequate for two-way movement. · Design Element 4.4 17 Key Block Principles, [Note: PDCP, Figure 18 on page 94] provide direction as to sites that contain two buildings. However, the block plan is for north/ south orientated allotments, whereas the subject site is east-west orientated. If the Figure 18 principles were imposed upon the subject site, compliance would be achieved. Streetscape: 18 The proposal addresses Woodville Road in respect of the front building. The rear building cannot be seen from the street. Building Form: 19 The proposed building form is of a bulk and scale commensurate with the zoning. Cross-flow ventilation: 20 Each dwelling would have windows that permit cross-flow ventilation and the dwellings are orientated so as to best utilise breezes from the east or stronger winds from the south/west. 21 The floor to ceiling height in all dwellings is 2.7m and this would assist with flow-through ventilation. 22 The floor to ceiling height of the ground floor commercial/ retail is 4.5 metres, and would exceeds the PDCP requirement of 3.3 metres. · Design element 4.4.6: requires each balcony to be at least 8m2 and have a minimum dimension of 2.5m and the proposal complies. 23 The proposal contains a total of 1,125m2 of private open space. This equates to 26.8m2 per dwelling. The design provides a common open space accessible to all dwellings, which exceeds 10m2 per dwelling as required by PDCP. · Site-specific controls for mixed-use development are found in Section 5.7 and these are met. State Environmental Planning Policy No 65, (SEPP65) SEPP 65 also applies. The proposal and its history 24 The original development application No 02/ 2869 was lodged with the respondent council on 27 November 2002, and the amended application was received by the council on 16 October 2003. 25 Two buildings are proposed. The building fronting Woodville Road would contain two retail units, three adaptable one-bedroom units on the ground floor and fifteen (15) two-bedroom units and two x three bedroom units on the three upper floors. The rear building would contain, sixteen (16) two-bedroom and one (1) three-bedroom unit. Fifty-eight (58) car parking spaces are proposed in the basement. Notification 26 The amended application was notified to nearby owners and occupants and three objections were received. Further amendments were made during the course of the hearing to satisfy the concerns of Mr Wong. The council's decision 27 When the appeal was filed the council had not determined the application. The council is now content with the proposal except for the loading and disabled access between floors. The hearing 28 The appeal was filed on 26 May 2003. 29 On site the court heard evidence on behalf of the respondent council from: · Mr T Wong, on behalf of Mr and Mrs Wong at No 524 Woodville Road, Guildford; and · Mr and Mrs Newman of No 46 Chamberlain Road, Guildford. 30 Mr B Delapierre, Team Leader Development Assessments, prepared a statement in reply to the access report of Mr Relf. 31 On behalf of the applicant evidence in support of the application was given by: · Mr Aziz, of No 514 Woodville Road, Guildford; · Mr Kafrouni, of No 1 Chamberlain Road, Guildford; and · Mr E Mikhail, of No 512 Woodville Road, Guildford; and · Mr B Mann, architect. 32 On behalf of the applicant Mr M Relf prepared an access report and Mr D Dang of Atkins Acoustics prepared an acoustic report. The issues 33 On 25 August 2003 the council filed a statement of issues: Design Quality Principles 1. Whether approval should be granted as the proposed development is not consistent with the design quality principles referred to in SEPP No 65. Particulars The proposal is inconsistent with principles relating to context, scale, built form, density, resource, energy, water efficiency, landscape, amenity, safety and security, aesthetics. Zone Objectives 2. Whether approval should be granted as the proposed development is not consistent wit the Mixed Use 10 zone objectives. Particulars Parramatta LEP 2001 - Mixed Use 10 zone - Objectives (a), (c) and (d). Solar Access 3. Whether approval should be granted as the proposed development results in unacceptable overshadowing impacts on the adjoining properties to the south. 4. Whether Units 1, 7, 8, 15, 22, 29 receive adequate access to sunlight. Acoustics 5. Whether approval should be granted as the documentation in support of the development fails to demonstrate that the buildings will not be unduly impacted upon by road noise. Parking 6. Whether approval should be granted as the proposed development results shortfall in the number of spaces required for the development proposed. Particulars Parramatta DCP 2001 - Clause 4.3.5. 7. Whether approval should be granted as the proposed development does not provide appropriate access to the building from the disabled parking spaces. 8. Whether approval should be granted as the proposed development does not provide access to the loading dock in accordance with the requirements of AS 2890.1. 9. Whether approval should be granted as the proposed development does not provide an appropriate driveway design in terms of width and ramp grades. 10. Whether approval should be granted as the proposed development does not comply with the requirement that it not project more than 1.2m above natural ground level and that it be located entirely under the building. Particulars Parramatta DCP 2001 - Clause 4.3.5. Privacy 11. Whether approval should be granted as the proposed development results in adverse privacy impacts on the adjoining dwellings. Particulars a). The proposal is inconsistent with objective (a) of the Mixed Use 10 zone; and b). The proposed balconies make insufficient provision for screening as required by the performance criteria contained at Part 5.7.1 of DCP 2001; and c). The size and position of the windows on the north and south elevation of both buildings is likely to result in privacy impacts to adjoining properties: and d). The first floor level balconies on the western facade have no screening to prevent overlooking of the ground level courtyards for adjoining dwellings within the development. Private Open Space 12. Whether approval should be granted as apartments 2 and 3 in the proposed development do not provide acceptable disabled access to all of the POS. Setbacks 13. Whether approval should be granted as the proposed development does not comply with the side setback control referred to at Part 5.7.3 of DCP 2001. 14. Whether approval should be granted as the proposed development does not comply with the front setback control referred to at Part 5.7.3 of DCP 2001. Plans Unsatisfactory 15. Whether approval should be granted as the Plans lodged with the Appeal are unsatisfactory as follows: · The architectural plans should be provided at a scale of 1:100. · There are significant discrepancies between the architectural and the landscape plans. · The landscape plan does not show sufficient finished levels. · The shadow diagrams do not show internal fencing. · The shadow diagrams do not state whether they are projected from True North. · There are no elevational shadow diagrams provided to show impacts internal and external to the development. · The shadow diagrams do not show the adjoining buildings. · The plans do not show any ridge RL's. · A number of the elevations do not provide the location of NGL at the face of the wall. · Plans at a scale of 1:50 have not been provided in respect of the adaptable apartments. Public Interest and Objector's Concerns 16. Whether approval should be granted as the proposed development is not in the public interest. 17. Issues raised by objectors. 34 The following emerged as the salient issues: · Position of the garbage store; · Position of the footpath beside the deceleration lane; · Privacy to the rear; · Increase in local traffic in Chamberlain Street; · Dilapidation report; · Drainage; · Potential loss of trees along the rear; and · Disabled and loading access between floors. The evidence and findings Position of the garbage store 35 Mr T Wong representing his parents who live at No 524 Woodville Road, Guilford, expressed concern as to the position of the garbage store in close proximity to that neighbouring property. He requested that the applicant consider repositioning the garbage store towards the middle of the land. The reason for the repositioning of the garbage store was to remove potential smell and vermin from the Wong's property. 36 The applicant tentatively agreed to reposition the garbage store, if the architect could come up with an alternative location to meet the Wong's concerns. 37 I am satisfied that the concerns expressed would be addressed by the alternative position of the garbage store. The proposed position of the garbage store would be remote from the northern boundary and would not require further advertising. In fact the neighbour on the northern side had no objection to the proposal prior to the amendment. Position of the footpath beside the deceleration lane 38 Mr Wong pointed out that with the proposed footpath offset from the original footpath position that it might be difficult for his parents when they enter their property to see pedestrians. The applicant was content to move the footpath to abut the deceleration lane so that the offset in the footpath would not be so great. 39 I am satisfied that this repositioning of the footpath would meet the Wong's concerns and would be reasonable when considered under the Act. Privacy to the rear 40 Mr and Mrs Newman were concerned for the privacy of people overlooking their property when standing on the western balconies of the proposal. Mr Gough pointed out that the proposed western elevation would be setback about 28m from the western boundary of the land and trees on the boundary would be retained. 41 Given the distance and screening I am satisfied that the proposal would be acceptable and the Newmans appeared to accept Mr Gough's assurances. Increase in local traffic in Chamberlain Street 42 Mr and Mrs Newman were concerned that because of the limitation on left turns from Woodville Road into the land that motorists would be forced into Chamberlain Road. The traffic report was considered and the number of vehicles using Chamberlain Road during the peak hour was estimated to be 10 per hour or one per 6 minutes. Given this frequency the Newmans accepted that the level of traffic would be negligible and this was no longer a significant concern. 43 I would not refuse the application for this reason. I consider the traffic within Chamberlain Road would be negligible if the numbers were as estimated on the site inspection. Dilapidation report 44 The council and the applicant proposed a condition requiring a dilapidation report to be undertaken by a nominated expert in respect of No 524 Woodville Road, Guilford, the Wong's property. 45 I am satisfied that with the imposition of that condition that the concerns of the Wongs that their property, built mainly on clay foundations, would be disturbed by the proposal would be addressed. Drainage 46 The council was satisfied that the proposed drainage would be acceptable. 47 I would not refuse the application for this reason. Potential loss of trees along the rear 48 The trees growing on the boundary with the Newman's property are to be retained. A condition to this effect is to be imposed. I would not refuse the application for this reason. Passenger lift 49 The council sought to include a passenger lift from the basement to all levels in the building. This was considered necessary in order to give access to both passengers and delivery of goods. Mr Gough submitted that such a lift would be maintained and thus be available for use at all times. 50 Mr Zada submitted that the report of Mr Relf concludes that such a lift is not necessary for disabled access and for a development of the size proposed would not be required for the delivery of goods. The applicant agreed that it would be willing to submit to a condition requiring a goods hoist from the loading dock to the central courtyard if the Court considered such necessary. 51 I am satisfied that the purposive intent of Disability Discrimination Act 1992 would be met by the provision of a platform lift on the stairs between the basement to the ground floor. In that regard I accept the evidence of Mr Relf. I am also satisfied that a goods hoist would be sufficient to provide for goods delivery. Condition 59 is proposed. 52 I would not refuse the application for this reason. 53 For the above reasons, the appeal is upheld. Conditions 54 The conditions are those in Exhibit 8 as amended. Condition 52 relates to noise attenuation. Orders 55 My orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. Development application No 02/ 2869 lodged with the respondent council on 27 November 2002, and amended on 16 October 2003, to demolish the existing dwellings and to erect a mixed-use development, at Lots 8, 9 & 10, Section 6, DP 4047, being Nos 518-522 Woodville Road, Guildford, is approved subject to Conditions 1 to 76 in Annexure A. 3. The exhibits with the exception of Exhibits B, C, D, E, G, H, J, 3, 4 and 5 are returned. S J Watts Commissioner of the Court sw Conditions of development consent Annexure A Jonvana Enterprises Pty Limited ACN 069 981 746 v Parramatta City Council (1) The development is to be carried out in accordance with the following Plans prepared by Robertson and Marks Architects as amended by the plan in Exhibit 1: Appeal No: 10604 of 2003 Type Drawing No & Issue date Basement Plan DA1, Issue C, 23/04/04 Ground Floor DA2, Issue C, 23/04/04 First Floor DA3, Issue C, 23/04/04 Second Floor DA4, Issue C, 23/04/04 Third Floor DA5, Issue C, 23/04/04 Roof Plan DA6, Issue B, 13/10/03 Sections AA & BB DA7, Issue A2, 13/10/03 West Elevation (including Woodville Road) DA8, Issue B, 26/04/04 North and South Elevation DA9, Issue A1, 10/10/03 East Elevations (Internal) DA10, Issue A1, 10/10/03 Adaptable Unit Layout DA14, Issue A2, 13/10/03 With landscaping and engineering plans prepared by Ms T Lucas and M. M. Farah respectively. Landscape plan Engineering concept plan Unnumbered dated October 2003 sheet 1 Engineering concept plan Unnumbered dated October 2003 sheet 2 All building work must be carried out in accordance with the provisions of the Building Code of Australia. Reason: To comply with the Environmental Planning and Assessment Act Regulations . (2) As there is a change in the building use (classification), the building must comply with the Category 1 fire safety provisions applicable to the proposed new use. NOTE: The obligation under this subclause 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. In this clause, Category 1 fire safety provision has the same meaning as it has in Part 7B of the Environmental Planning and Assessment Regulations . Reason: To comply with the Environmental Planning and Assessment Act . (3) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. All excavations associated with the erection or demolition for a building must be properly guarded and protected to prevent them from being dangerous to life or property. Reason: To ensure safety. (4) Where soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided inclusive of adequate provision for drainage. Reason: To prevent soil movement. (5) 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; must underpin and support the building in an approved manner. At least 7 days before excavating 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 must 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 and submit to the Principal Certifying Authority details of the date and manner by which the adjoining owner(s) were advised. 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. In this condition, allotment of land includes a public road an any other public place. Reason: To control excavation procedures. (6) As the work involved in the erection or demolition of a building is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place. Such hoarding may need to include an awning sufficient to prevent any substance from, or in connection with, the work falling into the public place. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place, and any such hoarding, fence or awning is to be removed when the work has been completed. Reason: To provide safety adjacent to work sites. (7) 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; stating that unauthorised entry to the work site is prohibited; and 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. Any such sign is to be removed when the work has been completed. Reason: To provide information regarding the site. (8) Toilet facilities are to 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. Each toilet provided; must be a standard flushing toilet; and must be connected to a public sewer, or if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the council, or 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. The provision of toilet facilities in accordance with this condition must be completed before any work is commenced. Reason: To ensure adequate toilet facilities are provided. (9) Prior to the commencement of any works that involve the physical disturbance of the site, surface water and sediment control measures, including those shown on the approved plan(s), shall be implemented. The measures shall be utilised and maintained during the development at all times. Reason: To prevent erosion and control sediment. (10) Building work may only be carried out six (6) days a week, Monday to Friday between the hours of 7.00am to 8.00pm and Saturday 8.00am to 8.00pm. No work is permitted to be carried out on Sundays or Public Holidays. Reason: To protect the amenity of the area. (11) A house number is to be placed on the building in a readily visible location prior to occupation of the building. Reason: To ensure a visible house number is provided. (12) An Occupation Certificate shall be obtained prior to occupation or use of the premises. Reason: To comply with legislative requirements. (13) Immediately prior to the commencement of demolition an inspection is to be arranged with Council's Building Surveyor for the purpose of ensuring adequate measures are in place or will be taken to control dust, erosion or sediment that could leave the site as well as the protection of the road and footpath area from damage during the demolition process. Prior to commencement of demolition an inspection fee is to be paid in accordance with Council's current fee schedule. Reason : To maintain the amenity of the area during demolition. (14) The Construction Certificate is not to be released unless the Certifying Authority is satisfied that the required levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 has been paid. Reason: To ensure that the levy is paid. (15) The approved plans must be submitted to the appropriate Sydney Water office to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water's requirements, the approved plans will be appropriately stamped. Evidence is to be provided to Council prior to occupation. Reason: To comply with the requirements of Sydney Water. (16) No building work shall commence until a Construction Certificate has been issued. A separate application must be completed for a Construction Certificate. Note: Further information on Construction Certificates can be obtained by contacting the Building Certification Team on 9806 5518. Reason: To comply with legislative requirements. (17) Dust control measures shall be implemented during all periods of earth works, demolition, excavation and construction in accordance with the requirements of the NSW Environment Protection Authority. No dust is permitted to leave the site. Reason – To protect the amenity of the area. (18) Noise from construction and/or demolition activities associated with the development shall comply with the NSW Environment Protection Authority's Environmental Noise Manual and the Protection of the Environment Operations Act 1997 . Reason – To protect the amenity of the area. (19) No materials, machinery, signs or vehicles used in or resulting from the construction or demolition relating to the development shall be stored or placed on Council's footpath, nature strip or roadway. Reason – To ensure pedestrian access. (20) A heavy-duty vehicular crossing shall be constructed in accordance with Council's Standard Plan No. 5426. A vehicular crossing bond for an amount of $2,500.00 shall be paid prior to the issue of a Construction Certificate. Reason – To provide vehicular access. (21) The disused vehicular crossings shall be removed and the kerb reconstructed in accordance with Council's Standard Plan No. 5426 prior to issue of an Occupation Certificate. Reason: To ensure redundant vehicular crossings are removed. (22) In order to ensure the safety of the public during construction works within the road reserve, A Traffic Control Plan is required. In this regard, traffic control measures such as advanced warning signs, barricades, warning lights, after hour arrangements etc, are required when works are in progress on Woodville Road and shall be in accordance with: RTA Specification – October 1998 –"Traffic Control at Work Sites Manual, AS 1742.3 requirements. Reason – To provide pedestrian passage. (23) If a Private Certifier is appointed to certify construction works Council's Development Unit shall be notified in writing within 7 days following commencement of the approved use and/or occupation of the development so that an inspection can be undertaken by Council to ensure compliance with this Consent. NOTE: Be aware that the issuing of an Occupation Certificate by a Principle Certifying Authority does not mean that this Consent is complied with and that Council cannot take any further action in regard to compliance with this Consent (refer to the Environmental Planning and Assessment Act and Regulation ). Reason: To ensure that this consent is complied with. (24) All pruning works and tree removals shall be carried out by a suitably qualified tree surgeon/arborist in accordance with the provisions of AS4373-1996 Pruning Amenity Trees and the Tree Works Industry Code of Practice (WorkCover NSW). (25) The landscaping shall be completed in accordance with the consent and approved plans, prior to occupation or use of the premises and shall be maintained at all times. Reason: To ensure landscaping is completed in accordance with the approved plans and maintained. (26) Car parking and driveways shall be constructed, marked and signposted prior to occupation or use of the premises. Reason: To ensure appropriate carparking. (27) Works as executed plans certified by a suitably qualified person are to be submitted to the Principal Certifying Authority prior to occupation of the premises certifying that the stormwater drainage system has been constructed in accordance with the approved plans. A copy of the works as executed plans is to be submitted to Council's Development Unit to update the on site detention database for the upper Parramatta River Catchment Trust. Reason: To ensure works comply with approved plans and for data for the Upper Parramatta River Catchment Trust. (28) The garbage disposal/storage area shall be constructed and finished in accordance with the requirements of Council's Garbage Room Code. Reason: To ensure a suitable garbage storage area. (29) Certification that the mechanical ventilation system(s) have been installed in accordance with the approved plans and specifications and functions in accordance with the AS 1668, must be submitted to the Principal Certifying Authority prior to occupation or use of the premises. Reason: To ensure compliance with the Building Code of Australia. (30) Certification from a suitably qualified person certifying that the building complies with the Category 1 fire safety provisions applicable to the proposed new use must be issued prior to occupation or use of the premises. Reason: To ensure compliance with the fire safety provisions (31) The proposed on-site detention system shall be designed in accordance with the Upper Parramatta River Catchment Trust "On-site Detention Handbook", Council's Drainage Code. The design shall achieve a Site Storage Requirement of 470m3/ha and a Permissible Site Discharge of 80/l/s/ha. Detailed working plans demonstrating the intended method of compliance with this condition shall be submitted to the Principal Certifying Authority for approval prior to any works commencing on this component of the development. Reason: To provide on site detention. (32) A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water. An application form is available from Council or Sydney Water (call 13 20 92). Following application a "Notice of Requirements" will detail water and sewer extensions to be built and charges to be paid. Please contact Sydney Water early, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the Construction Certificate/Linen Plan (whichever is applicable). Reason: To ensure the requirements of Sydney Water have been complied with. (33) A "Notification of Agreement" outlining the electrical construction requirements and associated fees shall be obtained from Integral Energy prior to the release of the linen plan. Reason: To ensure electricity supply is available to all properties. (34) The payment of the following monetary contributions in accordance with Council's Comprehensive Section 94 Contributions Plan: Traffic and Transport $4,012.00 Open Space, Public Space and Recreation $116,824.00 Community and Cultural $10,982.00 Other $170.00 Plan Management and Administration $16,830.00 This results in a total contribution of $148,818.00 to be paid to Council prior to the issue of the Construction Certificate. The Section 94 Contribution fees are subject to annual review and the current rates are applicable for this financial year. If you pay the contribution in a later financial year you will be required to pay the fee applicable at that time. Reason – To comply with the adopted Section 94 Plan. (35) A Positive Covenant and a Restriction is to be created on the property title (under the provision of the Conveyancing Act) to ensure that the required on site detention system will be adequately maintained. A copy of the typical covenant may be obtained from the Council's Development Unit. Proof of registration shall be submitted to the Principal Certifying Authority prior to the occupation or use of the premises. Note: The covenant is to be submitted to Council for approval prior to lodgement with the Land Titles Office. Reason: To ensure maintenance of on site detention facilities. (36) AAA rated water saving fixtures shall be fitted to all appropriate bathroom and kitchen fittings prior to the issue of an Occupation Certificate. Reason – To ensure the building is water efficient. (37) The hot water systems to be installed shall have a minimum rating of 3.5 stars. Details to be submitted prior to the issue of an Occupation Certificate. Reason – To provide energy efficient hot water systems. (38) Side and rear boundary fences shall be constructed of lapped and capped timber or 'Colourbond' by the applicant, unless agreed otherwise with the neighbours. Noting: the agreement between the applicant and the Newmans of No 46 Chamberlain Road, Guildford, that they did not require a new fence. However all neighbours require 600mm lattice on top of the fence in the location as agreed between the applicant and the neighbours. Reason – To enhance the aesthetic quality of the locality. (39) A waste data file must be kept on site at all times and available to Council officers upon request at any time. All waste disposal receipts or weighbridge receipts confirming the disposal site for demolition and construction waste is to be stored within this file. Reason – To ensure appropriate waste management is implemented. (40) The existing lots are to be consolidated into one (1) lot and the plan of consolidation shall be registered at the Land Titles Office. Proof of registration shall be submitted prior to issue of the Construction Certificate. Alternatively, if the owner agrees in writing to Council's Solicitors lodging the plan of consolidation at the Lands Titles Office, have the carriage of such payment of the necessary legal fees, the issuance of the Construction Certificate can occur upon lodgement of the Plan of Consolidation for registration provided registration shall be completed prior to occupation of the premises. Reason: To ensure consolidation occurs. (41) Five (5) working days (ie Monday to Friday with the exclusion of Public Holidays) notice in writing is to be given to Parramatta City Council for inspection prior to the commencement of any works. Such written notice is to include the date when demolition will commence and details of the name, address, business hours contact telephone number and licence number of the demolisher. Persons undertaking demolition work should obtain the relevant licence with WorkCover. Reason - To ensure appropriate demolition and compliance with Workcover requirements. (42) On the first day of demolition, work is not to commence until the Principal Certifying Authority (PCA) has inspected the site. Should the building to be demolished be found to be wholly or partly clad with asbestos cement, approval to commence demolition will not be given until the PCA is satisfied that all measures are in place so as to comply with WorkCover's "Short Guide to Working with Asbestos Cement" a copy of which accompanies this Development Consent. Reason - To ensure compliance with Workcover requirements. (43) Demolition works involving the removal and disposal of asbestos cement must only be undertaken by contractors who hold a current WorkCover "Demolition Licence" AND a current WorkCover "Class 2 (Restricted) Asbestos Licence". Reason - To ensure compliance with Workcover requirements. (44) On demolition sites where buildings to be demolished contain asbestos cement, a standard commercially manufactured sign containing the words "DANGER ASBESTOS REMOVAL IN PROGRESS" measuring not less than 400mm x 300mm is to be erected in a prominent visible position on the site to the satisfaction of Council's officers. Advice on the availability of these signs can be obtained by telephoning Council's Customer Service Centre during business hours on 9806 5000. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos cement has been removed from the site to an approved waste facility. This condition is imposed for the purpose of worker and public safety and to ensure compliance with Clause 259(2) (c) of the Occupational Health and Safety Regulation 2001. Reason - To comply with legislative requirements. (45) Demolition is to be carried out in accordance with the applicable provisions of Australian Standard AS2601 1991 - The Demolition of Structures. NOTE: Developers are reminded that WorkCover requires that all plant and equipment used in demolition work must comply with the relevant Australian Standards and manufacturer specifications. Reason – To ensure appropriate demolition. (46) All asbestos laden waste, including flat, corrugated or profiled asbestos cement sheets must be disposed of at a tip recommended by the NSW Environment Protection Authority (EPA). NOTE: The person responsible for disposing of the above asbestos waste is to telephone the EPA on (02) 9325 5709 to determine the location of a tip licensed to receive asbestos. Upon completion of tipping operations the applicant must lodge with Council, all receipts issued by the receiving tip as evidence of proper disposal. Reason - To ensure proper disposal of asbestos materials. (47) Demolition works are restricted to Monday to Friday between the hours of 7:00am to 6:00pm. No demolition works are to be undertaken on Saturdays, Sundays or Public Holidays. Reason - To protect the amenity of the area. (48) The developer is to notify adjoining residents five (5) working days prior to demolition. Such notification is to be a clearly written note on note pad size paper giving the date demolition will commence and be placed in the letterbox of every premises (including every residential flat or unit, if any) either side and immediately at the rear and opposite the demolition site. Reason - To minimise impact on adjoining properties. (49) A copy of the notification and addresses of residents notified to be lodged with Council no less than two (2) days prior to demolition. Reason - To minimise impact on adjoining properties. (50) A separate Development Application shall be submitted for the occupation of each of the ground floor retail tenancies. Reason – To minimise the impact on surrounding residential properties. (51) The development being built in accordance with the materials and colours illustrated on the photomontage submitted with the Development application except as modified by these conditions. Reason – To confirm the details of the development application submitted. (52) Noise attenuation works are to be carried out substantially in accordance with the acoustic design report prepared by Atkins Acoustics submitted with the development application dated 8 October 2003. All works are to be completed before the issue of an Occupation Certificate. Reason – To ensure adequate noise attenuation is carried out and to confirm the details of the development application submitted. (53) Disabled Access and Facilities The provision of disabled access throughout the development is required and shall be in compliance with the Building Code of Australia Part D3 "Access for People with Disabilities" and Australian Standard AS1428.1 (2001) - Design for Access and Mobility – Part 1 General Requirements for Access – Buildings. This requirement shall be reflected on the Construction Certificate plans. Reason: To provide satisfactory access for all (54) The disabled access ramps shall comply with Australian Standard AS1428.1 (2001) – Design for Access and Mobility – Part 1 General Requirements for Access – Buildings. This requirement shall be reflected on the Construction Certificate plans. Reason: To provide satisfactory access for all. (55) Access for the disabled must be provided to the whole floor in accordance with AS1428.1 (2001) – Design for Access and Mobility – General Requirements for Access – New Building Work. This requirement shall be reflected on the Construction Certificate plans. Reason: To provide satisfactory access for all (56) Toilet facilities shall be provided for disabled persons in accordance with the design criteria in AS1428.1 (2001) – Design for Access and Mobility – General Requirements for Access – New Building Work. This requirement shall be reflected on the Construction Certificate plans. Reason: To provide satisfactory access for all. (57) The gradient for all disabled access ramps shall not exceed a maximum of one (1) (vertical) in fourteen (14) (horizontal) as per the requirements of Australian Standard AS1428.1 (2001) – Design for Access and Mobility – General Requirements for Access – New Building Work. The final design of the proposed disabled access ramps shall be reflected on the Construction Certificate plans. Reason: To provide satisfactory access for all. (58) Signs incorporating the international symbol of access for disabled persons must be provided to identify each accessible: a entrance; b lift or bank of lifts; and c sanitary facility. This requirement shall be reflected on the Construction Certificate plans and supporting documentation with the signs provided prior to the issue of an occupation certificate. Reason: To provide satisfactory access for all. (59) One goods-hoist shall be provided within the development with direct access from the loading area to the central courtyard. The goods-hoist should have a minimum capacity of 500kg, and a minimum dimension 1m x 1m in plan. Details of the hoist shall be incorporated into plans submitted with the construction certificate. (60) Retained trees or treed areas shall be fenced with a 1.8m high chainmesh to minimise disturbance to existing ground conditions within the canopy drip line or a setback as specified on the approved landscaping plan for the duration of all construction works. Reason: To protect the environmental amenity of the area. (61) No materials (including waste and soil), equipment, structures or goods of any type are to be stored, kept or placed within 3 metres of the drip line of any tree. Reason: To ensure the protection of the tree(s) to be retained on site. (62) The consent from Council is to be obtained prior to any pruning works being undertaken on any tree, including tree/trees located in adjoining properties. Pruning works that are to be undertaken must be carried out by a certified Tree Surgeon/Arborist. This includes the pruning of any roots that are 30mm in diameter or larger. (63) Approval is granted to remove the following trees: Tree No. Botanical Name Dimension (Metres) 1 Cupressus macrocarpa 'Brunniana' 9 x 5 2 Leptospermum laevigatum 5 x 4 3 Chamaecyparis obtusa 5 x 3 4 Juniperus sinensis 8 x 3 5 Juniperus sinensis 8 x 3 6 Araucaria columnaris 6 x 3 7 Juniperus sinensis 6 x 2 8 Eucalyptus citriodora 11 x 7 11 Platycladus orientalis 6 x 3 12 Platycladus orientalis 6 x 3 16 Jacaranda mimosifolia 6 x 7 17 Cinnamomum camphora 8 x 7 18 Grevillea robusta 12 x 5 21 Erythrina x sykesii 9 x 7 22 Erythrina x sykesii 9 x 7 23 Erythrina x sykesii 9 x 7 24 Erythrina x sykesii 9 x 7 25 Erythrina x sykesii 9 x 7 26 Erythrina x sykesii 9 x 7 27 Erythrina x sykesii 9 x 7 All remaining trees are required to be incorporated into the landscaping of the site. (65) A revised landscaping is required to be submitted for the site in accordance with the requirements of Parramatta Development Control Plan 2001 (appendix 5), to and approved by, Council or a suitably qualified landscape architect prior to the issue of a construction certificate. This plan shall be substantially in accordance with the landscape plans prepared by Architecture and Building Works, Project No. PN 0112, with the following amendments: Details shall include: a) The transplanting and incorporation of the three Bangalow Palm and one Alexander Palm into the future landscaping of the site. b) The replacement of the Erythrinia skyesii ( Coral Trees ) at the rear of the building with five native trees selected from the following list: The following species with minimum pot size of 45 litres and capable of growing to a minimum height of six (6) metres are to be planted: Angophora costata, Eucalyptus tereticonis, Eucalyptus molucanna, Eucalyptus punctata. c) A minimum distance of two (2) metres from every pit on site. d) The soil surface around ALL trees has to be mulched (depth: 100mm) within one (1) m radius of the tree trunks every year. e) Details of an automatic irrigation system that is to service all landscaped areas. f) The planting of seven Callistemon 'Hannah Ray' trees (Bottle Brush) within the footpath reservation. (66) All trees for the site must be grown and planted in accordance with Clarke, R 1996 Purchasing Landscape Trees: A guide to assessing tree quality. Natspec Guide No 2. (67) The development shall be carried out in accordance with the requirements of the Roads and Traffic Authority as advised in a letter dated 8 April 2003. The access driveway be constructed to comply with AS2890.1 – 1993 Reason: To ensure pedestrian safety. (68) The dedication to Council of a 3.360m strip of land from the edge of the proposed slip lane as detailed in the Ground Floor architectural drawing No. 6200/DA2 A.2 and identified within condition 1. The dedication of land including registration with the Department of Land is to occur prior to the release of the Construction Certificate and at no cost to Council. Reason : To Provide appropriate pedestrian passage. (69) The construction of a full width 70mm concrete footpath across the frontage of the site. The footpath shall be designed to merge in with the existing footpaths provided on adjoining properties. Details shall be submitted for the approval of Council's Infrastructure Unit prior to commencement of works. Reason: to provide pedestrian passage as a result of the deceleration lane. (70) All side facing ensuite windows along the southern and northern elevations shall be obscure glazed. Amended plans demonstrating this shall be submitted with the Construction Certificate. Reason: To mitigate overlooking opportunities. (71) All side facing bedroom windows along the southern and northern elevations shall be provided with a fixed obscure glazed panel up to a height of 1.5m above the floor level. Amended plans demonstrating this shall be submitted with the Construction Certificate. Reason: To mitigate overlooking opportunities. (72) All garbage from the site shall be collected by private contractors utilising bulk bins with a minimum size of 660 litres. Reason: To protect the amenity of the area. (73) A dilapidation report, including a photographic survey, prepared by Tyrrells Building Services Pty Limited in respect of the property known as No 524 Woodville Road, Guildford, shall be lodged with the council and with the owners of the above property, prior to the issue of a Construction Certificate. (74) Prior to the issue of a construction certificate the applicant shall provide full details of the proposed standby platform lift. The platform lift shall provide access from the basement car park to the ground floor of the development. The platform lift shall be capable of being independently operated. (75) The platform lift must comply with the requirements of paras 6, 7, 8, 9, 10, 11 and 12 of the access report prepared by Mark Relf of Accessibility Solutions dated 28 April 2004. (76) The applicant shall prior to the issue of an occupation certificate install a sign advising that the stairway platform lift shall not be used for the carriage of goods. S J Watts Commissioner of the Court 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.