Land and Environment Court of New South Wales CITATION : Symcorp Pty Limited v Leichhardt Council [2004] NSWLEC 606 APPLICANT: PARTIES : Symcorp Pty Limited RESPONDENT: Leichhardt Council FILE NUMBER(S) : 10433 of 2004 CORAM: Watts C at 1 KEY ISSUES: Development Application :- LEGISLATION CITED: Leichhardt Local Environmental Plan 2000, (LEP 2000) - State Environmental Planning Policy No 65 - Design of Residential Flat buildings - Part 2: Design Quality Principles, (SEPP65) - Environmental Planning and Assessment Act 1979, ss79C and 97 CASES CITED: DATES OF HEARING: 01/11/2004 EX TEMPORE 11/01/2004 JUDGMENT DATE : APPLICANT: Mr D J Baird, solicitor with Ms J Wauchope, solicitor SOLICITORS: Maddocks LEGAL REPRESENTATIVES: RESPONDENT: Ms R McCulloch, solicitor SOLICITORS: Pike Pike and Fenwick JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Watts C 1 November 2004 10433 of 2004 - Symcorp Pty Limited v Leichhardt Council JUDGMENT 1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the decision of the (the council) to refuse a development application for the adaptive re-use of the existing building on the land, converting the former Rozelle Theatre to 8 x 2 bedroom apartments, 3 x 1 bedroom apartments, 1 x 3 bedroom apartments, 1 retail space and 2 commercial spaces and car parking for 18 cars at Lot 1 in DP 75771, being No 728 Darling Street, Rozelle. 2 I have concluded that the proposed consent orders may be granted. The land 3 The land is situated on the southern corner of the intersection of Darling and Red Lion Street, near and to the south of the intersection of Darling Street with Victoria Road. 4 The land is "L" shaped, although the main part is rectangular, and there is a part behind No 736 Darling Street, to the south west. The site area is 737m2. The land has a frontage to Darling Street of 17.88m, to Red Lion Street of 36.61m. The building has nil setbacks to both public roads. There is a slight fall in the land down from Darling Street towards the rear boundary. 5 Erected on the land is the Rozelle Theatre also known as 'Festival House' a building originally constructed, in the 1920s, as a theatre. The council's architect planner, describes it as: …a handsome inter war period stripped classical styled building. Its external form is substantially intact with some unsympathetic and reversible changes ... the roofform is a series of gables stepping up from the east end to accommodate a balcony in the cinema. A concrete floor has been inserted in converting the ground level for parking and service areas. A central form stair to the upper level main reception room upstairs, off Darling St remains. All interiors from the cinema have been stripped. 6 The property was remodeled in the interwar Art Deco style in 1937-8, as part of the refurbishment of Hoyts theatres throughout Sydney and Melbourne. The theatre closed in 1963 and since that time was used to provide reception facilities primarily for Sydney's Greek community. The building is vacant. 7 Although the premises is not a heritage item and it is not within a conservation area, there are heritage items under Leichhardt Local Environmental Plan 2000 in the vicinity at: · No 736 Darling Street, Rozelle (adjoining building to the south west) - local significance; · No 707 Darling Street, (corner Waterloo Street) - regional significance; · Nos 4-12 Red Lion Street (Mary Terrace) - local significance. 8 On both sides of Darling Street to the north and south and near the land are retail and commercial development, of single-storey and two-storeys. 9 Development to the immediate south west of the land comprises a single-storey commercial building, at No 736 Darling Street, described as an "…intact example of a 19th Century workshop building". This building is listed as a heritage item under Leichhardt LEP 2000 as being of local significance. 10 Development to the southeast in Red Lion Street, comprises single-storey and two-storey attached dwellings and this form of development extends on both sides of Red Lion Street. Across Red Lion Street, at the opposite corner of that Street and Darling Street, is the Red Lion Hotel. Relevant planning controls Leichhardt Local Environmental Plan 2000, (LEP 2000) 11 Under the provisions of the LEP200 the land is zoned 'Business' and mixed-use development is permissible subject to development consent. Relevant standards and provisions under LEP 2000 ClauseRequirement/ standardDoes proposal comply? 7(3)Requirement to give consideration to relevant objectives. Merit considerations Relevant objectives are set out in: Clause 13 General objectives Clause 15 Heritage conservation Clause 17 Housing Clause 20 Employment 19(6)Diverse housing: for developments comprisingYes. four or more dwellings, a minimum of 25% of dwellings are required to be bedsitter or one bedroom dwellings, and a maximum of 30% of dwellings are to be three or more bedrooms (in each case rounded to the nearest whole number. 19(7)Adaptable housing: 1 adaptable dwelling is Yes (subject to conditions) required and two dwellings are proposed. 23Floor space ratio: Maximum 1.5:1 for mixed use, No. Proposed FSR is 3.2:1 'but only if all floor space at the ground floor or street level is used for non residential purposes (except for any floor space used for service andA SEPP 1 objection has been access purposes required for the residentialsubmitted. component of the building in the floors above)' 16(7)Development in the vicinity of a heritage items.Merit consideration Developments in the vicinity include No 736 Darling Street (adjacent, to the south) and Nos 4-12 Red Lion Street (Mary Terrace) The consent authority is required to consider the impact on the heritage significance of the item and its setting. Relevant provisions: Leichhardt Development Control Plan 2000 (DCP 2000). ClauseRequirement/ controlDoes proposal comply? Suburb profile - site is located in RozelleMerit consideration Commercial Neighbourhood Part B1.2Building form envelope and siting Building location zone, ridge height, side setbacks No Note; non-compliances arise because this is an adaptive re-use proposal. The existing building envelope does not comply. Part B1.3Car Parking: Part A0.8Total minimum required: • 8.9 (9) spaces forCompliant in terms of total residents, 1.2 spaces (1 space) number of spaces (18), allocation visitors = 10.1 spaces.would be subject to condition. • 1.5 spaces (2 spaces) required for retail tenancies. • Including 1 space suitable for people with a disability • Proposal provides 18 spaces (including disabled spaces) Other provisions: Part B 1.4, Site drainage and stormwater Part B 1.5, Part C1.4 Elevations and Materials Part B 1.8, Part C 1.5 Site facilities Part B 2.1, Part C 2.2/2.3 Thermal Mass and Materials Part B 2.2, Part C2.4 Solar control Part B 2.3, Part C 2.5 Insulation Part B 2.4 Part C2.6 Ventilation Part B 2.5 Heating and Cooling Part B 2.8, Part C 1.3 Landscaping Part B 3.1 Solar access - residential amenity and Energy efficiency Part B 3.2 Private open space Part B 3.3 Visual privacy Part B 3.4 Access to views Part B 3.5 Acoustic privacy Part B 4.6 Residential development in Business Areas. Part B 4.7 Diverse and affordable housing Part C - Non residential development Part C 1.1 Site layout and building design Part C 1.2 Parking layout, servicing and maneouvring Part C1.6 Shopfronts Part C1.7 balconies, verandahs and awnings State Environmental Planning Policy No 65 - Design of Residential Flat buildings - Part 2: Design Quality Principles, (SEPP65) 1 Report prepared by the applicant and now fully complies. State Environmental Planning Policy No 55 - Contaminated Land, (SEPP55) 2 No issues were raised in these proceedings in this regard. Development Control plan No 38 - Waste management, (DCP38) 3 No issues raised in these proceedings in this regard. Development Control Plan No 42 - Contaminated Land Management, (DCP42) 4 No issues raised in these proceedings in this regard. Section 94 Plan, (Contributions plan) 5 A contribution is to be levied by condition. The proposal and its history 6 Development application No D/ 2002/331 was lodged with the respondent council on 21 May 2003 after a pre-DA meeting had been held in March of the same year (letter of confirmation of pre-DA advice is dated 3 April 2002). 7 The development application seeks consent for the adaptive re-use of the existing building on the land converting the premises to 8 x 2 bedroom apartments, 3 x 1 bedroom apartments, 1 x 3 bedroom apartments, 1 retail space and 2 commercial spaces and car parking for 18 cars on the land. Basement level: • Parking for 12 cars for resident parking, accessed from Red Lion Street; Ground level: • One retail tenancy on Darling Street, with floor area 76.2 square metres; • One commercial tenancy with floor area of 227.5 square metres; • Pedestrian entry foyer; and • Landscaped courtyard. First level: • Four x the lower level of two-bedroom units; • One x single level two-bedroom unit • Two x single level one-bedroom unit. Second level: • Four x the upper level of two bedroom units; • One x single level one bedroom unit; • One x single level two-bedroom unit. Third level: • Two x the lower level one-bedroom units; • One x single level three-bedroom unit. Fourth level: • Upper level of two x one bedroom units. 8 After negotiation between the parties and further amendment there is now proposed a roof profile similar to that presently existing with no increase in height. There would be a reduction in height, over part, due to the cutting back of the main gable of the existing roof at the southern and northern ends. 9 The masonry wall on the north east side (adjoining Red Lion Street) would be retained but its height increased over part (in the manner previously described), a new roof form is proposed, the elevation would be punctuated by new openings. Notification 10 The application was originally notified between 14 August 2002 and 28 August 2002 to nearby owners and occupants and the council received seven (7) submissions. Amended plans were lodged on 13 March 2003 and were advertised 2 April to 16 April 2003 and fourteen (14) submissions were received. 11 Further plans were filed on 25 May 2004, and were readvertised and the council received three objections on that occasion. 12 A further set of plans was filed on 3 August 2004 and was again advertised and the council received three submissions. Subsequent plans were not required to be re-advertised. 13 The resident objections received can be summarised as: · Parking and congestion · Loss of privacy; · Solar access; · Noise; · Appropriateness of scale of proposal; · Sterilisation of adjoining sites; · Waste management issues; · BCA compliance issues; · Incompatibility with surrounding land uses, and particularly the Red Lion Hotel; · Construction impacts and · Impacts on property values. 14 Internal referrals were received from: • Environmental Health and Building Surveyor; and • Architect-planner. The council's decision 15 By notice dated 28 January 2004, the council refused the application for the following reasons: 1. The proposed Floor Space ratio is 2.73:1, which is substantially above the maximum permissible Floor Space Ratio of 1.5:1; 2. The applicant has failed to demonstrate that the development is compatible with the character of adjoining and surrounding properties. The applicant has also failed to demonstrate that the proposal in its current form will sensitively relate to existing development and be compatible with the desired future character for the area; 3. The proportions and balance of the proposed elevations are not compatible that of surrounding development and/or the streetscape; 4. Council is rot satisfied that the proposed development can be entirely `self reliant' in terms of borrowing light, ventilation, outlook and views from across the boundary of the adjoining properties. It is considered that the proposal would effectively sterilise much of the development potential on the adjoining sites; 5. The proposal fails to satisfactorily comply with the natural ventilation provisions of Leichhardt Development Control Plan 2000 and provides a minimum depth of 15.5 metres in through site dwellings; 6. The proposal fails to satisfactorily comply with the solar access provisions of Leichhardt Development Control Plan 2000. The internal design of the single storey two bedroom apartments would not adequately provide solar access for three hours between 9.00am and 3.00pm at the winter solstice. This situation would further deteriorate should development at 736 Darling Street occur at some point in the future; and 7. The proposed development fails to sensitively relate to the integrity of the development at 736 Darling Street and 4-12 Red Lion Street which are considered to be items of environmental heritage and contribute to the streetscape characteristics along Darling Street and Red Lion Street and historic development, of the area alike. The hearing 16 The appeal was filed on 13 April 2004. 17 The Court received into evidence a joint statement on all issues. This was prepared by Ms A Cowie, town planner of the council and Mr R N Dickson, urban designer and architect. 18 The Court-appointed traffic consultant was Mr Coady. The issues 19 On 1 October 2004 the council filed a final statement of issues. Floor Space Ratio: 1. The proposed floor space ratio is 3.24:1 (not 2.98:1 as claimed by the applicant) which is substantially above the maximum permissible floor space ratio of 1.5:1 and SEPP 1 objection is not well founded. (Leichhardt LEP 2000 Cl 23(1)) Car Parking: 2.1 Quantum - The proposal provides insufficient car parking on site for the needs of residents, employees, and visitors and that demand cannot be satisfied off site due to the extreme shortage of on-street parking in the locality. (Leichhardt DCP 2000 A8) 2.2 Dimensions - The proposed parking bays significantly fail to meet the width requirements of AS2890.1. This is exacerbated by the location of the columns towards the front of the parking spaces and the need to provide concrete sleeves around the pad footings and steel sections to the corners of all columns. It is likely that unless the column layout is substantially reconfigured, at least 5 parking bays will be lost from the current layout. 2.3 Headroom - The headroom of the car parking area, which is proposed to meet the minimum requirement, will be reduced by the need to install structural supports for the proposed ground floor level and to attach 150mm stormwater drainage pipes beneath that floor level. 2.4 Car Stackers - No details of the proposed triple "car stackers" have been provided in relation to dimensions, mechanical or operational aspects. The proposed car stacker at space 12/13/14 will restrict the functionality of space 11 due to the need to install a protective barrier between the two spaces. Finishes and materials: 3. The proposal has provided insufficient detail of the finishes and materials in order to enable a firm conclusion to be drawn as to the compatibility of the end product building with prevailing streetscape characteristics. Car park slab: 4. The lowering of the car parking slab will result in greater problems with regard to stormwater control and possible flooding Mix of dwelling types: 5. The proposal does not provide the required mix of dwelling types and the SEPP 1 objection is not well founded. (Leichhardt LEP 2000 Cl. 19(6)) Glass brick wall: 6. The proposal incorporates an unnecessarily large expanse of glass brick wall in the southern elevation, which would adversely affect neighbours by reason of light spillage. Structural report: 7. The structural report is deficient in that: · It does not address the significant extent of excavation (lateral and vertical) around the base of the existing walls, which would be needed to lower the car park floor as proposed. · It is not based on plans lodged on 22 September 2004 (which incorporate significant additional excavation for the proposed car stackers) · The method of support (ie. method of attachment to the existing columns) for the proposed ground floor level has not been specified. · It does not detail any underpinning necessary to protect adjacent buildings or Council's road reserve. · It does not specify a methodology for observance during demolition, excavation and construction necessary to ensure the structural stability of the building and adjoining buildings and road reserve · It does not certify that the building is capable of being retained as proposed. 20 The salient issues were the FSR car parking of the proposal. The evidence and findings FSR 21 The proposed floor space is accommodated within the external walls of the existing building with no net increase in height or bulk. This was achieved through extensive negotiations and consultation between the parties. New openings and balconies would punctuate the elevation. 22 The FSR although exceeding the standard set under LEP2000 is considered reasonable and there is no objection to the upholding of the FSR objection under SEPP1. Car parking 23 The car parking issue was resolved to the parties' satisfaction by providing some stacked spaces. 24 I am satisfied that the consent orders arrived at by the parties are such as may reasonably be endorsed by the Court under the Environmental Planning and Assessment Act 1979. For the above reasons, the appeal is upheld by consent. Conditions 25 The conditions are those in Exhibit 1. Costs 26 The Court notes that the parties have each agreed to pay their own costs. Consent orders 27 The consent orders are: 1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld. 2. The objection made under State Environmental Planning Policy No 1 to the provisions of cl 23(1) of the Leichhardt Local Environmental Plan 2000 is upheld. 3. Development application No D/ 2002/ 331 lodged with the respondent council on 21 May 2003, and as amended, for the adaptive re-use of the existing building on the land, converting the former Rozelle Theatre to 8 x 2 bedroom apartments, 3 x 1 bedroom apartments, 1 x 3 bedroom apartment, 1 retail space and 2 commercial spaces and car parking for 18 cars at Lot 1 in DP 75771, being No 728 Darling Street, Rozelle, is approved subject to Conditions 1 to 83 in Annexure A. 4. The exhibits are retained. S J Watts Commissioner of the Court Conditions of development consent Annexure A Symcorp Pty Limited v Leichhardt Council Conditions for 728 Darling Street, Rozelle. That a development consent for a mixed use development comprising retail and commercial space and 12 residential dwellings with basement car parking at No 728 Darling Street, Rozelle be granted subject to the following condition(s): Approved plans 1. The development shall be implemented in accordance with the details set out on the following: · Architectural Plan numbers DA-A-201 Revision E, DA-A-202 Rev. E, DA-A-203 Rev. D dated 28/10/2004, DA-A-204 to 207 Rev. B inclusive prepared by Dickson Rothschild Pty Ltd and dated 26 July 2004, except as amended by Conditions · Sections DA-A-301 Revision D, DA-A-302 and 303 Rev. C inclusive prepared by Dickson Rothschild Pty Ltd and dated 28/10/2004, except as amended by Conditions · Elevations numbered DA-A-401 & 402 Revision C, and DA-A-403 Rev. D dated 28/10/2004 and 29/10/2004, and DA-A-404 B inclusive prepared by Dickson Rothschild Pty Ltd and dated 26 July 2004; 2. The stormwater drainage system shall be constructed generally in accordance to the stormwater drainage plan as prepared by Australian Consulting Engineers, Drawing No's 04AH288 D01-7, filed 22 September 2004 subject to amendments to address the following issues: a) The proposed extension of Council's drainage system in Red Lion Street requires amendment to address the following: · The invert level of the existing Council stormwater pipeline at the proposed point of connection on the north eastern side of Red Lion Street must be established. Where insufficient cover / depth is available, the existing stormwater line in Red Lion Street shall be reconstructed for a sufficient length downstream to allow sufficient fall and cover to be achieved. b) The access grate for maintenance to the proposed rainwater tank is shown to be located within the floor of the kitchen of Unit 4. Maintenance access must be provided from a common property area. Prior to the issue of Construction Certificate, the amended plans, together with Certification by a suitably qualified Civil Engineer with NPER registration with the Institution of Engineers Australia shall be submitted to Council for approval. Approved details shall be submitted to the Principle Certifying Authority prior to the issue of a Construction Certificate. · House Energy Rating Certificate Number LEI 270704 prepared by The Association of Building Sustainability Assessors dated 27 July 2004. and on the application form and on any supporting information received with the application except as amended by the conditions specified to this consent. Conditions that must be complied with prior to the commencement of demolition works 3. A report from a structural engineer detailing the remedial works that are required to be undertaken to existing brick façade must be submitted and all the remedial works identified in this report undertaken prior to the commencement of demolition works. 4. Details of the "structurally adequate frame structure" required to ensure the retention to the existing external façade must be submitted to the certifying authority. This frame is to be installed under a professional engineer's supervision prior to the commencement of demolition works to ensure the retention of the existing façade. 5. Before the commencement of demolition works the applicant shall provide security to the value of $10,000 for the payment of the cost of making good any damage caused to any Council property as a consequence of the implementation of the consent. The security may be provided by way of a deposit with the Council or a guarantee satisfactory to the Council. Should any of Council's property and/or the environment sustain damage during the course of the demolition works, or if the works put Council's assets or the environment at risk, Council may carry out any works necessary to repair the damage and/or remove the risk. The cost of these works will be deducted from the security. An inspection fee of $113.85 is also required to be paid to Council prior to the release of the Construction Certificate. A request for release of the security may be made to the Council after all demolition work has been completed. 6. A Work Plan shall be submitted to the accredited certifier, prepared in accordance with AS 2601 appendix A by a person with suitable expertise and experience. The Work Plan shall be applicable to the scale of the structure to be demolished and identify any hazardous materials including but not limited to asbestos and lead, the method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials. Conditions to be complied with prior to the release of the Construction Certificate Section 94 levies 7. Prior to a Construction Certificate being issued for works in connection with this development consent the following monetary contributions shall be paid to Leichhardt Council: · $154,248 for the cost of acquiring and augmenting public open space in lieu of its physical provision Note: This contribution has been imposed pursuant to Section 94 of the Environmental Planning and Assessment Act 1979 , and the Leichhardt Open Space and Recreation Contributions Plan , after identifying that the development will increase the demand for local and district open space within the area. · $26,294 for the cost of providing community facilities and services Note: This contribution has been imposed pursuant to Section 94 of the Environmental Planning and Assessment Act 1979 and the Leichhardt Community Facilities and Services Contributions Plan , after identifying that the development will increase the demand for community facilities and services within the area. · $251.58 (if fewer than four bicycle parking spaces are provided on site) for the cost of providing bicycle works and facilities Note: This contribution has been imposed pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 and the Leichhardt Contributions Plan – Transport and Access , after identifying that the development will increase the demand for transport and access works and facilities within the area. It has been calculated on the basis of 12 new dwellings. Payment will only be accepted in the form of cash, bank cheque or EFTPOS/Credit Card (to a maximum of $10,000). It should be noted that personal cheques cannot be accepted for Section 94 contributions. It has been calculated on the following basis: 9 new dwellings between 55m2 and 85m2 in floor area; 3 new dwellings between 85m2 and 120m2 in floor area; Contribution Plans may be inspected or a copy purchased at the Customer Service Counter in Council's Administration Centre, 7-15 Wetherill Street, Leichhardt during office hours. 8. Amended plans to protect privacy The plans submitted with the application for a Construction Certificate must incorporate the following amendments: (a) The timber screening on the south-western elevation of Level 1 must extend for the length of the courtyards to a height of the existing wall, be 75% obscure and permanently fixed in place. (b) The timber screening on the south-western elevation of Level 2 must extend for approximately 21.5 metres from the wall on this boundary to a height of the existing wall, be 75% obscure and permanently fixed in place. (c) Timber screening must be placed on the north-western, south-western and south-eastern edges of the terrace located on Level 2 to the south-east of the proposed dwellings. This timber screening must be 1.7 metres in height, 75% obscure and permanently fixed in place. (d) The timber screening on the south-western elevation of Level 3 must extend for approximately 11 metres from the mechanical ventilation to a height of the existing wall, be 75% obscure and permanently fixed in place. (e) The openings on the wall on the south-eastern edge of the terrace on located on Level 3 to the south-east of the proposed dwelling must either be amended to have a sill height of at least 1.5 metres or obscure glazing placed in the opening. 9. The proposed basement pump-out stormwater / groundwater discharge system shall consist of two (2) pumps, connected in parallel, with each pump being capable of emptying the holding tank at a rate equal to the lower of the allowable on site detention discharge rate, or the rate of inflow for the one hour, 1 in 100 year ARI storm event. An overflow, flashing light and audible alarm is to be provided to warn of pump failure. Full details of the holding tank capacity, pump type and discharge rate and the delivery line size, must be submitted to the Principle Certifying Authority prior to the issue of a Construction Certificate. 10. An application must be made to Council's Manager – Assets for the issue of a Certificate fixing levels at the property alignment prior to the issue of a Construction Certificate to ensure that the finished floor levels of new structures or land adjoining the roadway satisfy Council's roadway design requirements. If in doubt, contact Council's Operations Division, telephone 9367 9006, to avoid being required to carry out later rectification work. 11. The applicant is required to bear the cost of the following works: a) Drainage works associated with the extension of Council's piped drainage system in Red Lion Street in accordance with the stormwater plan approved under Condition 5 . b) Reconstruct the footpath and kerb and gutter in Darling Street for the full frontage of the site (plus required transitions) in accordance with the Darling Street Mainstreet Masterplan. Works shall include the removal of the 'dual gutter' arrangement currently at this frontage. c) Reconstruct the asphalt footpath and sandstone kerb and gutter for the full Red Lion Street frontage of the site d) Construction of a vehicular crossing at the Red Lion Street frontage of the site. Development Consent does NOT give approval to undertake any works on Council property. A SEPARATE APPROVAL IS REQUIRED UNDER SECTION 138 AND 139 OF THE ROADS ACT 1993 FOR ANY WORKS REQUIRED BY THIS CONDITION. The Construction Certificate must not be issued until Council's Manager – Assets has issued the Applicant with a written consent under the Roads Act. An "Application to carry out works in a Public Road" form must be completed and lodged, with the Application fee, at Council's Customer Services counter. Detailed engineering drawings (plans, sections and elevation views) and specifications of the works required by this Condition must accompany the Application form. Four weeks should be allowed for assessment. Works generally must be undertaken in accordance with Council's "Specification for Road and Drainage Works" and relevant Australian Standards. Upon receipt of approval from Council, all amounts payable must be paid as soon as practicable to enable the works to be constructed prior to the completion of the development. The cost of adjustment or relocation of any public utility service shall be borne by the owner/applicant. 12. The applicant or successor shall lodge a payment security bond for road works in Darling and Cambridge Streets in the form of a bank guarantee, for the sum of $61,600 prior to the issue of the Construction Certificate. The costs associated with the road works shall be assessed using the Council's adopted construction charges current at the time. 13. Internal adjustments must be made to the entry to the carpark to ensure that levels at the boundary comply with those obtained in the Level Certificate issued by Council's Manager - Assets. The longitudinal profile along both sides of the carpark entry must comply with the Ground and Head Clearance requirements of AS/NZS2890.1 – 2004. In this regard, a longitudinal section along each side of the proposed vehicular access demonstrating compliance with the above requirements shall be submitted to the Principle Certifying Authority prior to the issue of a Construction Certificate. 14. Plans demonstrating that the proposed off-street parking facilities comply with the minimum dimensions shown on the architectural plans prepared by Dickson Rothschild Pty Ltd, Drawing No. 04-017 DA-A-201 / E, dated 29 September 2004 The plans must address all relevant issues including; parking bay dimensions, disabled parking, bicycle parking, aisle widths, turning paths, headroom, ground clearance and column locations. Minimum headroom of 2300mm must be provided through the entire path of travel to or from the disabled parking space. The plans must be certified by a suitably qualified Civil Engineer with NPER Registration with the Institution of Engineers Australia and submitted to the Principle Certifying Authority prior to the issue of a Construction Certificate. 15. A rainwater storage tank with a minimum capacity of 9000 Litres is to be installed. The overflow from the proposed rainwater tank shall discharge to the onsite stormwater detention tank and shall be to be constructed in accordance with the plans approved under Condition 2. Tank water supply taps are to be marked "RAINWATER – do not use for human consumption". Any inlet or outlet must be screened or filtered, to prevent the entry of foreign matter, mosquitos and creatures. The tank must be fitted with a first-flush device. The tank is to be cleaned out periodically. The tank and any support structure must be set on a suitable, structurally sound, erosion resistant foundation. Any support structure elevating the tank above ground level must be in accordance with a design prepared by a practising structural engineer. If a pump is installed it must not cause noise disturbance to neighbouring properties and should be weatherproofed and encased in sound insulation material. The tank must be covered or enclosed entirely to prevent children from wilfully or accidentally entering, climbing or falling into the tank. The rainwater tank shall comply with AS/NZ 2179-1994 and AS2180-1986 and AS/NZS 3500.1.2-1998. Any plumbing work undertaken for the tank is to be in accordance with the NSW Code of Practice – Plumbing and Drainage and have the consent and meet the requirements of Sydney Water. Prior to the issue of a Construction Certificate, detailed design plans, together with Certification by a suitably qualified Civil Engineer with NPER registration with the Institution of Engineers Australia shall be submitted to the Principal Certifying Authority. 16. An Operation and Management Plan for the mechanical car stackers shall be submitted to the Principle Certifying Authority to demonstrate safe and functional performance of the facility. The plan must address then following at a minimum: a) An assessment of noise and vibration levels indicating acceptable levels in accordance with appropriate standards. b) Proposed method of management of the facility, including supervisory staff, procedures, directions to users, emergency response plan in the event of mechanical failure etc. Any person required to operate the parking system must be trained to do so. c) Supporting information from the manufacturer confirming the operation of the system, including specifications. 17. Garbage Conditions Details and location of the proposed garbage room are to be submitted complying with the following requirements before the issue of a Construction Certificate: Rooms used for the storage of garbage and rooms used for the washing and storage of garbage receptacles are to be constructed of solid material, cement rendered and trowelled to a smooth even surface and subject to the following requirements: · The floor shall be of impervious material coved at the intersection with the walls, graded and drained to an approved floor waste within the room. · Garbage rooms shall be vented to the external air by natural or mechanical ventilation. 18. Access for people with disabilities An Access Management Plan shall be submitted to Council or the accredited certifier before the issue of a Construction Certificate. Details for the Access Management Plan shall include: (a) Access to the building for people with disabilities shall be provided through the primary entrance of the premises in accordance with AS1428.1 to 1428.4 inclusive and Leichhardt DCP32. An accessible path of travel shall be provided to all common open space areas, the accessible car parking space, emergency exits, the storage area for the adaptable unit, the bin storage area and the balcony associated with the adaptable unit. (b) Sanitary facilities that comply with AS1428.1 are to be provided on the premises for people with disabilities. At least one WC shall be accessible to all persons working in or using the building and another shall be provided in the adaptable unit (Unit 8). (c) One motor vehicle parking space shall be provided on the site for the exclusive use of people with disabilities and comply with the requirements of AS1428.1. This car parking space shall be allocated to the adaptable unit (Unit 8). Detailed plans drawn to the scale of 1:20 shall be submitted demonstrating compliance with the requirements of AS 1428.1, AS4299 and Leichhardt DCP 32 prior to the issue of a Construction Certificate, showing detailed levels, ramp slopes, door widths, circulation spaces and any other relevant details. Paths of travel through the primary entrance of the premises to the allocated car parking spaces and facilities for people with disabilities shall also be provided. 19. Sydney Water A Notice of Requirements for a Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water. Sydney Water may require you to construct works and/or pay developer charges, details of which will be provided in a Notice of Requirements from Sydney Water. You should make immediate application for a Certificate and obtain a Notice of Requirements. Early advice will avoid problems in providing water and sewer services to your development and adverse impacts on lot layout, other service or design of buildings, driveways and landscaping. Sydney Water written advice that you have obtained the Notice of Requirements must be submitted to Council or the accredited certifier prior to the Construction Certificate being issued. 20. Public liability insurance for works on public lands Where works are carried out on Council or public lands (ie footpath, roads, parks etc) by or on behalf of the applicant the following conditions shall be satisfied: (a) The person or company carrying out the works will be required to carry public liability insurance to a value of ten million dollars. Proof of the policy is to be provided to Council prior work commencing. (b) The person or company carrying out the works shall submit to Council references demonstrating experience in the type of work proposed to be undertaken. The person or company shall obtain approval from Council to carry out the works prior works commencing. (c) The applicant will be required to pay for inspections in accordance with Council's fees and charges. 21. Acoustic treatment The windows facing Darling Street and Red Lion Street must incorporate sufficient acoustic treatment to prevent the likely noise output from the adjacent hotels being audible in all units between 10:00 pm and 7:00 am. This will include the measures recommended in the acoustic engineer's report submitted with the application and any other measures required to meet this criterion. Evidence from an appropriately qualified person that these design requirements have been met shall accompany the application for the Construction Certificate. 22. Construction and Site Management Plan Prior the issue of a Construction Certificate the applicant shall submit to and obtain approval from Council or the accredited certifier of a construction and site management plan that clearly sets out the following: (a) what actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from building activities, crossings by heavy equipment, plant and materials delivery, or static loads from cranes, concrete pumps and the like, (b) the proposed method of loading and unloading excavation machines, building materials, formwork and the erection of any part of the structure within the site, (c) the proposed areas within the site to be used for the storage of excavated material, construction materials and waste and recycling containers during the construction period, (d) how it is proposed to ensure that soil/excavated material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways, (e) the proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be designed by a Chartered Civil Engineer, with National Professional Engineering Registration (NPER) in the construction of civil works or a survey company of Registered Surveyors with "preliminary accreditation" from the Institution of Surveyors NSW Inc. or an accredited certifier. Where it is proposed to: · pump concrete from within a public road reserve or laneway, or · stand a mobile crane within the public road reserve or laneway, · use part of Council's road/footpath area, · pump stormwater from the site to Council's stormwater drains, or · store waste and recycling containers, skip, bins, and/or building materials on part of Council's footpath or roadway, An application for a construction zone, a pumping permit, an approval to stand a mobile crane or an application to pump water into a public road, together with the necessary fee in accordance with Council's adopted schedule of fees and charges shall be submitted to Council and approval obtained before a Construction Certificate is issued. A separate approval under the Roads Act 1993 must be obtained for the enclosure of a public place (hoarding). 23. Soil and Water Management Plan Prior the issue of a Construction Certificate, the applicant shall submit to and obtain approval from Council or the accredited certifier of a Soil and Water Management Plan and Statement which clearly identifies site features, constraints and soil types together with the nature of proposed land disturbing activities and also specifies the type and location of erosion and sediment control measures and also rehabilitation techniques necessary to deal with such activities. The Plan shall be compatible with any Construction and Site Management Plan and shall ensure the following objectives are achieved, namely: (a) To minimise the area of soils exposed at any one time (b) To conserve top soil (c) To identify and protect proposed stockpile locations (d) To preserve existing vegetation and identify revegetation techniques and materials (e) To prevent soil, sand, gravel, and any other sediment or spoil from leaving the site in an uncontrolled manner (f) To control surface water flows through the development construction site in a manner that:- · Diverts clean run-off around disturbed areas · Minimises slope gradient and flow distance within disturbed areas. · Ensures surface run-off occurs at non-erodable velocities. · Ensures disturbed areas are promptly rehabilitated (g) To ensure regular monitoring and maintenance of erosion and sediment control measures and rehabilitation works. The plan is to be prepared in accordance with "Managing Urban Stormwater: Soils and Construction Manual" prepared by NSW Department of Housing (1998). 24. Essential Fire Safety Measures Prior the issue of a Construction Certificate, the applicant is to submit to Council or the accredited certifier a Fire Safety Schedule specifying: (a) The essential services that are currently installed in the building; (b) The essential services that are to be installed in the building in connection with the proposed structural alteration or change of use must be submitted; (c) The fire safety measures that are currently installed in the building; (d) The fire safety measures that are proposed to be installed in the building; (e) The minimum standard of performance for each fire safety measure included in the schedule. The list must describe the extent, capability and the basis of design of each such service. 25. Water efficient irrigation system The communal open space areas shall be provided with a water efficient irrigation system in accordance with Sydney Water guidelines to enable effective landscape maintenance. Details shall be included with the landscape plan to be submitted with the Construction Certificate. 26. Hot Water System Centralised, gas boosted solar hot water services or centralised heat pump services shall be installed. The service must be adequately sized to meet the anticipated maximum hot water demand of each dwelling. Consideration should be given to position of the hot water system such that its efficiency is maximised by minimising heat loss in pipe-work. In the case of centralised solar hot water services, the service installer must provide written confirmation that a minimum of 50% of the water heating per annum is provided from solar energy input. Where a pump is used to circulate water between tank and remote panels, any noise associated with the pump must not exceed 5dB at the property boundary. Details to be submitted to Council or the accredited certifier prior the issue of a Construction Certificate. 27. Driveway, kerb, guttering, footpath, drainage costs to be borne by applicant The applicant or successor shall bear the cost of any driveway, footpath, kerb, guttering or stormwater drainage deemed necessary by Council as required by conditions contained in this development consent. Details of compliance with any conditions for works are to be submitted for approval prior to the issue of a Construction Certificate. 28. Waste Management Plan - Construction Prior to the issue of a Construction Certificate, the applicant shall prepare and submit a Waste Management Plan in accordance with the provisions of DCP 38 and the Waste Planning Guide for Development Applications (Planning for Less Waste, prepared by the Regional Waste Boards), including: a) Estimations of quantities and type of materials to be reused, recycled or left over for removal from site; b) Identification on a plan of on site material storage areas during construction, waste storage, recycling and composting areas; c) Details of the construction materials and methods to be used to minimised the production of waste in the completion of the new building work. 29. Insulation – Energy efficiency (for alterations and additions) To reduce both summer heat gain and winter heat loss, the new work is to be insulated to achieve energy efficiency and thermal comfort. Insulation to the following R value standards is to be provided; * R1.5 for roofs and ceilings (combined value) * R1.0 for walls Details are to be included in the specification submitted with the Construction Certificate. 30. Plantation or recycled timbers To minimise the damage to the environment, no rainforest timbers or timbers cut from old growth forests are to be used in the construction of buildings. The Construction Certificate is to specify the timbers to be used. These are to be limited to plantation timbers grown on Australian farms, or State Forest Plantations, or recycled timbers. Conditions that must be satisfied before a Subdivision Certificate can be issued 31. Subdivision plans Prior the issue of a Subdivision Certificate, the applicant is to submit a survey plan, prepared by a registered surveyor, and at least six copies for certification by the General Manager or delegate. Reason: Because it is in the public interest that the plan is certified by the General Manager or delegate, pursuant to the provisions of the Environmental Planning and Assessment Act 1979 (or if relevant Local Government Act 1919) and that Council retain and catalogue a copy of that plan. 32. Section 73 Certificate Prior the issue of a Subdivision Certificate, the applicant is to submit a certificate under Section 73 of the Water Board (Corporisation) Act 1994. Reason: To ensure the provision of services is available to service the subdivision. 33. The linen plans are to allocate car parking on the following basis: (i) Residential units are to have one space each, which is not to be a stacker space. (ii) There is to be one disabled space which is not to be a stacker space (iii)The stacker spaces are to be for the use of the commercial/retail components of the building only. 34. The strata plan is to include annotation that resident and visitor parking permits from Leichhardt Council are not available to this property. Conditions that must be complied with prior to the commencement of construction works 35. Sydney Water – Stamped Plans Prior to the commencement of work, 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. Council or the accredited certifier must ensure that Sydney Water has stamped the approved plans before work commences on site. 36. Site Controls Sediment and erosion controls must be in place before work is commenced on the site. The control strategies must be consistent with the technical requirements set out in the Sydney Coastal Councils' "Stormwater Pollution Control Code for Local Government." Material from the site is not to be tracked onto the road by vehicles entering or leaving the site. At the end of each working day any dust/dirt or other sediment shall be swept off the road and contained on the site and not washed down any stormwater pit or gutter. A sediment and erosion control plan must be prepared and identify appropriate measures for bunding and siltation fencing. Any such erosion and sedimentation controls shall also include the protection of stormwater inlets or gutter systems within the immediate vicinity of the site. The sediment and erosion control measures are to be inspected daily and defects or system failures are to be repaired as soon as they are detected. 37. Demolition Any demolition on the site is to be conducted in accordance with the requirements of AS 2601 - 2001, demolition of structures. a) Hazardous dust must not be allowed to escape from the site or contaminate the immediate environment. The use of fine mesh dust proof screens, wet-lead safe work practices, or other measures is required. b) All contractors and employees directly involved in the removal of hazardous dusts and substances shall wear protective equipment conforming to AS 1716 Respiratory Protective Devices and shall adopt work practices in accordance with WorkSafe Requirements (in particular the WorkSafe standard for the Control of Inorganic Lead At Work (NOHSC: 1012, 1994) and AS 2641, 1998). c) Any existing accumulations of dust (eg; ceiling voids and wall cavities must be removed by the use of an industrial vacuum fitted with a high efficiency particulate air (HEPA) filter and disposed of appropriately. d) All dusty surfaces and dust created from work is to be suppressed by a fine water spray. Water used as a suppressant spray is not be allowed to enter the street gutter and stormwater systems. e) Demolition is not to be performed during high winds that may cause dust to spread beyond the site boundaries without adequate containment. f) All lead contaminated material is to be disposed of in accordance with the NSW Environment Protection Authorities requirements. g) Precautions to be taken include compliance with the requirements of the WorkCover Authority of New South Wales, including but not limited to: (i) Protection of site workers and the general public. (ii) Erection of hoardings where appropriate. (iii) Asbestos handling and disposal where applicable. (iv) Any disused service connections shall be capped off to Council's requirements. 38. Support for Neighbouring Buildings As the 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 : (a) must preserve and protect the adjoining building from damage, and (b) if necessary, must underpin and support the building in an approved manner - details of method of underpinning and supporting the building shall be submitted prior to issue of the construction certificate. (c) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished. 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 clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. In this clause, allotment of land includes a public road and any other public place. Note: The intent of this condition is to ensure that where any excavation or underpinning is likely to affect an adjoining building, the adjoining owners are notified and preventative measures taken to protect the adjoining building. 39. Asbestos and/or lead removal The existing structures on site potentially contain asbestos and/or lead. Following removal of any asbestos located on site a clearance must be provided to the Principal Certifying Authority certifying that no such asbestos remains on site from a suitably qualified person. A copy of the Certificate must be forwarded to Council before construction work is commenced. 40. Protection of Public Places As the work involves the erection or demolition of a building and may cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, a hoarding or fence must be erected between the work site and the public place. Consent must be in force for the erection of the scaffolding for the works to be carried out on the site. If necessary, an awning is to be erected, 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. Any such hoarding, fence or awning is to be removed when the work has been completed. Note: Where building work may prejudice public safety and convenience, suitable barricades, hoarding and lighting are to be provided during building works and removed at completion. 41. Signs to be erected on building and demolition sites 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: (a) stating that unauthorised entry to the work site is prohibited, and (b) 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. This clause does not apply to: (a) building work carried out inside an existing building, or (b) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out. Note: The intent of this condition is to protect public safety and convenience during construction. 42. Toilet Facilities 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 connected to a public sewer, or - if that is not practicable, an accredited sewage management facility approved by the council, or - if that is not practicable, any other sewage management facility approved by the council The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced. In this clause: accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in clause 95B of the Regulation. approved by the council means the subject of an approval in force under Division 1 of Part 3 of the Local Government (Approvals) Regulation 1993. public sewer has the same meaning as it has in the Local Government (Approvals) Regulation 1993. sewage management facility has the same meaning as it has in the Local Government (Approvals) Regulation 1993. Note: The intent of this condition is to maintain public health and convenience of the construction site workers. 43. Disposal of soil Any soil proposed to be disposed off site is to be tested to ensure that it meets the criteria set out in "Environmental Guideline - Landfill Disposal of Industrial Wastes, WD-3", prepared by the Environment Protection Authority. Any soil, which fails to meet the criteria, is not to be disposed of off site unless agreed to in writing by the Environment Protection Authority. Results of the testing are to be forwarded to Leichhardt Council and the Environment Protection Authority for acknowledgment before any off-site disposal and before proceeding with any construction works. 44. Removal of hazardous materials All hazardous materials are to be removed from the site in accordance with the requirements of the relevant legislation, codes, standards and guidelines, prior commencing with any demolition works. All hazardous materials are to be disposed of at an approved waste disposal facility. Prior carrying out any asbestos removal works, full details complying with the relevant provisions of all relevant Acts are to be submitted to Council on the method of containment and control of emission of fibres to the air. The proposed methods of containment and control of fibres are to be to the satisfaction of Council. 45. Asbestos removal All asbestos removal and transportation works are to fully comply with the requirements of WorkCover NSW and the Environment Protection Authority, as well as the "Code of Practice for the Safe Removal of Asbestos (NOHSC:2002 (1988))" prepared by the National Occupation Health and Safety Commission. The requirements of WorkCover NSW and the Environment Protection Authority are to be obtained before proceeding with the removal of any asbestos. 46. Completed removal of asbestos Following the removal of any asbestos, a clearance is to be obtained to certify that no asbestos products remain on-site. A copy of the clearance is to be forwarded to, and acknowledged in writing by Council, prior proceeding with any works. Conditions that must be complied with during construction 47. Demolition Any demolition on the site is to be conducted in strict accordance with AS 2601 and the demolition plan submitted in accordance with Condition(s) of this consent. 48. Noise control during construction and demolition For construction and demolition periods of 4 weeks or less the L10 level, measured over a period of 15 minutes when the construction or demolition site is in operation, must not exceed the background level by more than 20dB. For construction and demolition periods greater than 4 weeks and not exceeding 26 weeks the L10 level, measured over a period of 15 minutes when the construction or demolition site is in operation, must not exceed the background level by more than 10 dB. 49. Excavations and backfilling 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 of a building must be properly guarded and protected to prevent them from being dangerous to life or property. Note: The intent of this condition is to ensure excavations and backfilling are done in a workman like manner and are suitably barricaded so as not to prejudice public safety and convenience. 50. Construction materials and machinery must be kept on site All construction materials, sheds, skip bins, temporary water closets, spoil, etc, shall be kept within the property. No vehicles, skips or machines shall be permitted to stand on Council's footpath. 51. Erosion control measures of stock piled materials Building materials are to be located wholly on site and not placed in a position that may result in materials being washed onto the roadway or into the stormwater system. Topsoil, excavated material, construction & landscaping supplies and on site debris are to be stockpiled within the erosion containment boundary and shall not encroach upon the footpath, nature strip or road. 52. All fill used with the proposal shall be virgin excavated material (such as clay, gravel, sand, soil and rock) that is not mixed with any other type of waste and which has been excavated from areas of land that are not contaminated with human-made chemicals as a result of industrial, commercial, mining or agricultural activities and which do not contain sulphidic ores or soils. 53. Un-impeded public access Construction material and vehicles shall not block or impede public use of footpaths or roadways. 54. Fire safety during construction In a building under construction: (a) not less than one fire extinguisher to suit Class A, B and C fires and electrical fires must be provided at all times on each storey adjacent to each required exit or temporary stairway or exit; and (b) after the building has reached an effective height of 12m: · the required hydrants and hose reels must be operational in at least every storey that is covered by the roof or the floor structure above, except the two uppermost storeys; and · any required booster connections must be installed. 55. Change of Building Use A building in respect of which there is a change of building use must comply with the Category 1 fire safety provisions applicable to the proposed new use. Note: The obligation under this 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. This clause does not apply to the extent to which an exemption is in force under clause 80H or 80I, subject to the terms of any condition or requirement referred to in clause 80H (6) or 80I (4). In this clause, Category 1 fire safety provision has the same meaning as it has in Part 7B. Note: The intent of this condition is to emphasise that a change of use which may or may not involve building work is required to comply with Category 1 Fire Safety Provisions that are relevant to the new use, but only to the extent that an objection (referred to in Condition 1) has been lodged by the applicant and agreed to in full or part by the consent authority, the Department of Local Government and/or The Fire Brigade (having regard to a Category 3 Fire Safety Provision). 56. Encroachments & Survey Certificate No portion of the proposed structure shall encroach onto the adjoining properties. All footings and walls adjacent to a boundary must be set out by a registered surveyor. On commencement of brickwork or wall construction a Survey and Report must be submitted to the Principal Certifying Authority indicating the position of external walls in relation to the boundaries of the allotment. Conditions that must be complied with before the building is occupied 57. Approval to use/occupy building The building or any part of the building which is the subject of a development consent and construction certificate must not be used or occupied until an application for an Occupation Certificate has been made to the Private Certifying Authority and the Occupation Certificate issued. The following preconditions that must be complied with before the issues of an occupation certificate for the building: (a) practical completion of the building or part of the building including the following: a. internal and external painting, and implementation of finishes, materials and colours as designated on the architectural plans and accompanying sample board b. connection of stormwater to street or in accordance with approved drainage design; c. erection of balustrades d. installation of hot water service e. installation of the vehicular crossing and rectification work for any damage to the footpath or council infrastructure has been completed; f. a continuous accessible path of travel, WC and car parking space for disabled persons as required by Condition g. erection of a sign in the basement carpark advising occupants of the building that they are not eligible for a resident parking permit from Leichhardt Council h. (b) Compliance Certificate or other satisfactory documentary evidence has been submitted to certify: a. the adequacy of the drainage installation WAEX; b. the installation of essential services and final fire safety statement from the owner or agent of the building; 58. A street number must be displayed in a position clearly visible from the street, in numbers having a height of not less than 75 mm. The number must be in place before the premises can be occupied. 59. Proof of the actual destination of construction and demolition waste (e.g. by provision of Council waste facility receipts) shall be submitted to the accredited certifier prior to the release of the occupation certificate. 60. Interim/Final Fire Safety Certificate Prior to an Interim/Occupation Certificate being issued by the Principal Certifying Authority, and Leichhardt Council, the owner of the building shall furnish to the Principal Certifying Authority a final/interim Fire Safety Certificate with respect to each essential fire safety measure specified in the current Fire Safety Schedule for the building to which the Certificate relates. The Certificate shall state: (a) That each essential fire safety measure has been assessed by a properly qualified person. (b) That each essential fire safety measure was found, when it was assessed, to be capable of performing to a standard not less than that required by the current Fire Safety Schedule for the building to which the certificate is issued. 61 Section 73 Certificate Prior the issue of a Occupation Certificate, the applicant is to submit a certificate under Section 73 of the Water Board (Corporation) Act 1994. 62. A covenant created under Section 88E of the Conveyancing Act 1919. The terms of the 88E instrument with positive covenant shall include, but not be limited to, the following: a) The Proprietor of the property shall be responsible for keeping clear, and the maintenance of all pumps, holding tanks, pits, pipelines, trench barriers and other structures. b) The Proprietor shall have the pump facilities inspected annually by a competent person. c) The Proprietor have the on-site stormwater detention facilities ("OSD") inspected annually by a competent person. d) The Council shall have the right to enter upon the land referred to above, at all reasonable times to inspect, construct, install, clean, repair and maintain in good working order all pumps, holding tanks, pits, pipelines, tench barriers and other structures in or upon the said land which comprise the OSD / pump facility or which convey stormwater from the said land; and recover the costs of any such works from the proprietor. e) The registered proprietor shall indemnify the Council and any adjoining land owners against damage to their land arising from the failure of any component of the OSD / pump facility, or failure to clean, maintain and repair the OSD / pump facility. The proprietor or successor shall bear all costs associated in the preparation of the subject 88E instrument. Proof of lodgement with the Land Titles Office shall be submitted to Council prior to the issue of the Occupation Certificate. 63. Upon completion of all drainage works, work-as-executed plans with Certification by a suitably qualified Civil Engineer with NPER registration with the Institution of Engineers Australia shall be submitted to verify that the required drainage works have been constructed in accordance with the approved design, prior to the issue of the Occupation Certificate. 64. Certification by a suitably Qualified Civil Engineer with NPER Registration with the Institution of Engineers Australia that the off-street parking facilities have been constructed in accordance with all relevant Australian Standards and the plans submitted in accordance with condition(s) of this consent must be submitted to the Principle Certifying Authority prior to the issue of the Occupation Certificate. Conditions that are ongoing requirements of development consent 65. Limited Consent - restriction on use This consent does not give approval for the use of the plant room solely in conjunction with either the commercial use or office use or as an extension to either of the uses. The area on the plans labelled "plant room" must only be used to house "plant" or equipment required for the upkeep of the entire building. 66. Interim/Final Fire Safety Certificate The owner of the building must certify to Leichhardt Council every year that the essential fire safety measures installed in the building have been inspected and are capable of operating to the required minimum standard. 67. A copy of the management plan, outlining the operation and maintenance procedures for the mechanical car stackers is to be kept on site and available for use at all times. 68. A clear vision of sight is to be maintained at all times for all entry and exit points and comply with the requirements of AS2890.1-2004. 69. The property will be excluded from any existing or proposed Resident Parking Scheme. All occupants of this development will be ineligible to obtain Resident Parking Scheme parking permits. 70. Pedestrian access to the basement car park must be kept clear of obstacles, including parked vehicles, at all times. 71. All vehicles must enter and exit the property in a forward direction. 72. All off street parking bays must be used for the sole purpose of parking vehicles. 73. The parking bays proposed for the commercial / retail component of the development must be easily accessible and be clearly designated, marked and signed. 74. The parking bays proposed for the residential component of the development must be inaccessible to visitors to the commercial component of the development and shall be clearly designated, marked and signed. In addition, the parking bays must be appropriately marked or signed to indicate which residential unit they have been allocated to. 75. Parking provision – ongoing requirements and notice on title (a) Provision is to be made within the subject property for not less than 18 clearly marked vehicular parking spaces, comprising 12 resident spaces and the remainder to be commercial spaces and there is to be one disabled access space. (b) A sign is to be erected in the basement carpark advising that occupants of the building are not eligible for Resident carparking permits from Leichhardt Council. (c) The strata-by laws are to note that occupants of the building are not eligible for Resident carparking permits from Leichhardt Council. 76. The RT logos on the front of the building facing Darling Street must be retained in situ. 77. Deleted. 78. Deleted. 79. The retail component is only to operate between the hours of 8.30am to 5.30pm Monday to Friday and 9.00am to 5.00pm Saturday with no opening on Sunday. Any change to hours is to be the subject of a separate application to Council. 80. The commercial component is only to operate between the hours of 8.30am to 5.30pm Monday to Friday. Any change of hours is to be the subject of a separate application to Council. Prescribed Conditions 81. Compliance with Building Code of Australia All building work (other than work relating to the erection of a temporary building) must be carried out in accordance with the requirements of the Building Code of Australia (as in force on the date the application for the relevant construction certificate or complying development certificate was made). This clause does not apply to the extent to which an exemption is in force under clause 187 or 188, subject to the terms of any condition or requirement referred to in clause 187 (6) or 188 (4). This clause does not apply to the erection of a temporary building. Note: The intent of this condition is to emphasise that apart from the choice of full Building Code of Australia compliance, the applicant has the right to lodge an objection to the consent authority (and the NSW Fire Brigade in relation to a Category 3 Fire Safety Provision) that compliance with the BCA is inappropriate, unreasonable or unnecessary in the particular circumstance. Any subsequent concurrence (conditional or otherwise) by the Consent Authority to the objection must be with, and consistent to, the express consent of the Director General of the Department of Local Government (and the NSW Fire Brigade having regard to a Category 3 Fire Safety provision). 82. Residential Building Work Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the Council written notice of the following information: (a) in the case of work for which principal contractor is required to be appointed: (i) the name and licence number of the principal contractor, and (ii) the name of the insurer by which the work is insured under Part 6 of that Act, (b) in the case of work to be done by an owner-builder: (i) the name of the owner-builder, and (ii) if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit If arrangements for doing the residential building work are changed while the work is in progress so that the information required under (a) or (b) above becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information. 83. Erection of signs – any building, subdivision or demolition work A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: (a) showing the name, address and telephone number of the principal certifying authority for the work, and (b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and (c) stating that unauthorised entry to the work site is prohibited. Any such sign is to be maintained while the building work, subdivision or demolition work is being carried out, but must be removed when the work has been completed. NOTE: where Council is the appointed principal certifying authority it may provide its own sign. Any sign must be rigid and durable showing the person's identifying particulars so that they can be read easily by anyone in any public road or any public place adjacent to the site. The sign it to be erected in a prominent position on the site before the commencement of work and is maintained on the site at all times while this clause applies until the work has been carried out. Advisory Notes 1 Appointment of a principal certifying authority No works in connection with this development consent are to be commenced until the applicant: (a) has had detailed plans and specifications endorsed with a construction certificate; (b) has appointed a Principal Certifying Authority, and; (c) has notified the Council of the appointment; The applicant may appoint the Council or an accredited certifier as the principal certifying authority for the development. If the principal certifying authority is not the Council, then the person so nominated must provide an acceptance of the nomination in writing to the Council. If the principal certifying authority is the Council, the nomination will be subject to the payment of a fee for the service to cover the cost of undertaking building work and/or civil engineering inspections. 2 Termite Protection Termite protection shall be provided in accordance with the requirements of AS.3660.1 Protection of buildings from subterranean termites, new buildings. The proposed method of treatment in accordance with the standard shall be submitted for approval by the Principal Certifying Authority with the application for a Construction Certificate. 3 Copy of Development Consent to be kept on site For the duration of any work on site, the builder must maintain a copy of the specification, stamped approved plans, copy of Development Consent and Construction Certificate on site. 4 Critical stage inspections for Class 2,3 or 4 buildings. The development site must be inspected as the following stages during construction: (a) at the commencement for the building work, and (b) prior to covering waterproofing in any wet areas, and (c) prior to covering any stormwater drainage connections, and (d) after the building work has been completed and prior to any occupation certificate being issued in relation to the building. 5 Critical stage inspections for Class 5,6,7,8 or 9 buildings. The development site must be inspected as the following stages during construction: (a) at the commencement for the building work, and (b) prior to covering any stormwater drainage connections, and (c) after the building work has been completed and prior to any occupation certificate being issued in relation to the building. 6 The commercial components of the building would require further development consent in order to be used as restaurant/refreshment rooms/cafes. Such uses would be likely to generate a parking demand which might not be able to be met on-site. 7 The commercial components of the building may only be used for retail/commercial use. 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.