Land and Environment Court of New South Wales CITATION : Rupert v Manly Council [2004] NSWLEC 276 APPLICANT Laura Rupert PARTIES : RESPONDENT Manly Council FILE NUMBER(S) : 11059 of 2003 CORAM: Nott C KEY ISSUES: Development Application :- Childcare centre above existing dwelling - proposed increase in number of children sought from 15 to 25 - no drive-through - traffic and parking - car turntable to be provided on site - noise - privacy LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97 CASES CITED: DATES OF HEARING: 27 January 2004; 24 February 2004 (telephone conference, and final orders) EX TEMPORE 01/27/2004 JUDGMENT DATE : APPLICANT Mr G McKee, solicitor SOLICITORS McKees LEGAL REPRESENTATIVES: RESPONDENT Ms K Gerathy, solicitor SOLICITORS Abbot Tout JUDGMENT: IN THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES 11059 of 2003 Nott C 27 January 2004 Laura Rupert Applicant v Manly Council Respondent Reasons for Judgment 1 . This is an appeal against the council's refusal of a development application to increase the number of children of a childcare centre at 25 Fromelles Avenue, Seaforth, from 15 children to 23 children and to carry out alterations and additions principally to the upstairs section of the building where there is a dwelling. 2 . The application was considered by the council and refused. At the hearing, I heard expert traffic engineering evidence from Mr J Hewitt for the applicant and Mr K Ketheesuran for the council. I also heard expert town-planning evidence and as well took into account the written evidence of Ms A Moore and Mr Armstrong. In addition, I have taken into account the evidence of adjoining or nearby neighbours who attended in person, and I have considered the written documentation presented by both parties. 3 . The existing childcare centre was approved by a notice of determination dated 20 February 1997 subject to a series of conditions. The plan which was approved is contained as an annexure in the statement of Ms Moore. Approval was given for three staff-parking spaces in tandem located mainly between the existing structures on the subject land and the side boundary. This arrangement I consider to be somewhat unsatisfactory, because if the staff parked in the designated places on the approved plan and a staff member had to leave the site for some reason, it could mean two other staff members would have to reverse out from the site, particularly if the turning bay was occupied by some visiting parent. As well, two drop-off bays were provided which would require the reversing across the front of the site to the turning bay and the path of the movement of the vehicles would be in front of the entry to the pedestrian ramp leading to the front door of the childcare centre. 4 . In my opinion the proposed development partially improves the situation and certainly noticeably improves it when one looks only at the teacher or child carer parking spaces. What is proposed, as seen in the development application plans exhibit A, is that there will be two teacher spaces at the end of a driveway provided within a proposed new semi-enclosed area and a third space for a teacher located also near the end of the driveway but separated from the two semi-enclosed spaces. (I use the term "teacher" in the broad sense to include staff who are employed on the site.) Between these two semi-enclosed spaces and a third space for a teacher, it is proposed to have a turntable. In my opinion this turntable will enable each of the three teacher cars that have progressed in a forward direction down towards the end of the driveway to be able to leave the site in a forward direction, and these teacher cars will not have to manoeuvre across the entry to the pedestrian ramp. They will be able to exit the site in a forward direction, so in my opinion that is an improvement. 5 . There could possibly be an improvement in the drop-off bays that are also to be provided, but there is a reversal of what has previously been approved. It is proposed that a parent's car will enter from the street in a forward direction and will proceed up to a position alongside a proposed resident space located near the existing office of the childcare centre and that the parent's car will then reverse back into one or other of two spaces that are to be provided in front of the childcare centre. After dropping off the child, the parent will then be able to leave in a forward direction. 6 . The existing and proposed arrangement for the drop-off and pick up of children is not all together satisfactory, insofar as all the parents' cars that come onto the site will have to pass the front entrance of the ramp leading up to the front door of the childcare centre. There is always the possibility that a child might break free from a carer's control while a car is reversing. It is proposed that the risk of that occurring will be minimised by the management's seeking to enforce a policy that is to be provided to the parents in writing, containing various safety instructions, including the manner in which cars are to manoeuvre and park on the site and including a reminder for strict control of the child, who should be carried or held firmly by hand while crossing the manoeuvring area to the front gate of the pedestrian entry. 7 . One car space is proposed for a resident in addition to the three teacher spaces and the two drop-off bays. Parking for residents on the site is needed because there is a dwelling above the childcare centre. It is proposed that one of the westernmost teacher-parking spaces should also be a resident space and that a condition by consent be imposed that a full-time staff member reside in the dwelling, so that there would be a dual use of one of the spaces. 8 . In the light of the street situation where the carriageway is relatively narrow (though there are wide grass verges) and in light of the fact that the width of the site (which must include the entry to the site) is only 13.7 m, it is important in my opinion that appropriate car-parking spaces be provided on the site. For 23 children, it would appear that the number of spaces may be inadequate. Certainly, even if there were several other spaces able to be provided, on-street car-parking would still occur. Nevertheless, if there was a reduction in the number of children now proposed, there would be less of a demand for car parking. 9 . Ideally, a site should provide appropriately located car-parking spaces, so that manoeuvring does not involve vehicles reversing across the main pedestrian entry to which children would be taken by parents who have parked on the street, and ordinarily this would involve appropriately located spaces together with a drive-through. A drive-through cannot be appropriately located on the subject site and sufficient car spaces provided. In that respect the proposed development does not appear altogether satisfactory, insofar as 23 children are proposed in the application. 10 . Having regard to those matters and to certain other matters I will refer to shortly, I have come to the conclusion, considering all the evidence, that it is appropriate to grant development consent, but at this stage to allow 19 children to be looked after on the site at any one time. I will elaborate further on my reasons, dealing I hope with all the issues that have been of main concern at least to the residents. 11 . In relation to the access down the side of the site, adjoining the property owned by Mrs McManus at No. 23, it is to be taken into account that there is already approval for four cars (being three staff cars and one parent car) to park in the driveway. This is an unsatisfactory situation as it would be difficult for three of those cars to manoeuvre and drive out in a forward direction. 12 . If this were a new application, one would query whether it would be appropriate to approve access down the side where the width of the side driveway is only 2.7 m between the side common boundary wall and fence and the side of the house. However, a width of 2.7 m for persons who are regularly using that driveway will be adequate even for a car larger than the 85 percentile vehicle. A chimney that projects into the driveway by several hundred millimetres will be removed so that there will be a consistent 2.7 m width, at least to a height of 2.5 m above the driveway. 13 . In my opinion, the vehicles which will use the proposed spaces towards the end of this driveway will be able to turn around satisfactorily using the proposed turntable. I am satisfied having regard to the specifications provided that the turntable will adequately fit and that with reasonable care a car which is parked on the turntable will have adequate clearance from the other cars on both sides and from the walls. The evidence indicates that the turntable will move with a suitable clearance for the car standing on it to be able to drive out in a forward direction. 14 . A turntable used in a domestic situation is not uncommon, particularly in highly sought-after locations on steep sites, such as at a site inspected at Seaforth or such as at steep locations in the eastern suburbs in domestic situations. I am satisfied that it is appropriate for the turntable to be provided and that there will be no adverse noise impact to the adjoining neighbour from the turntable. To protect the neighbour however, there will be a condition imposed which has been recommended by a noise consultant, Mr S. Cooper, whose evidence was presented on behalf of the applicant. No acoustic evidence was presented on behalf of the council. 15 . It is true that the driveway will be used by cars to a greater extent than in an ordinary domestic situation, and I have taken that into account. There will be a brick wall constructed on the common side boundary with Mrs McManus's property in the location where the two staff cars will park side by side, and the wall will be continued to the end of the turntable, after which there is an existing lapped and capped fence along the driveway. These spaces will not be used by parents and so there will be some use usually at the beginning of the day, which will generally be after 7.30 am although on some occasions it might be as early as 7.00 am, and then at the end of the day. 16 . It will be a requirement of the consent that the resident's space shown on the proposed plan located near the office is to be used only by a resident, even if vacant, because that will avoid a carer coming in and having to reverse not only across part of the site but all the way out from the site, if there are already two parents' cars in the drop-off bays. 17 . I will continue to deal with the question of noise, which I think is an important consideration and one about which adjoining neighbours regularly and with some justification usually complain in respect of an adjoining childcare centre. If the number of children is only increased by four (and I am not necessarily excluding the subsequent increase depending on how this proposal is implemented), it would appear that this minor increase of numbers of children, taken in conjunction with the measures now proposed (which would not apply with current numbers), will at least maintain the amenity of the adjoining neighbours or to some extent improve it. 18 . Part of the requirement will be that prior to the increased numbers being permitted on the site, the boundary fences on the southern and northern sides at the rear yard are to be replaced at the expense of the applicant and to be lapped and capped fences to a height of 1.8 m above the existing ground level immediately below the fence on the subject site. This will improve the acoustic environment for the neighbours according to the acoustic evidence that has been presented, because at the present time the fences on the northern side are a little lower, and on both sides the gaps in the paling fences allow sound to penetrate. Of course, there will be still some high-pitched or L1 sounds that will be audible on the adjoining sites. 19 . I do not necessarily adopt the criterion that has been put forward by Mr Cooper in this case, because there has not been a consideration by any expert called by the council. That criterion is referred to principally on page 12 of Mr Cooper's statement of evidence and it envisages that the Leq should not exceed the ambient Leq level by more than 10dB(A) when assessed at residential facades. As I indicated, and which was also was submitted on behalf of the council, the high-pitched and very short intermittent screams or other noises from a childcare centre are averaged out in the Leq parameter or criteria. Nevertheless, I have found Mr Cooper's report to be of assistance, particularly his recommendations for ameliorating the present situation which, but for the implementation of the proposed consent, could continue. 20 . I have mentioned that the proposed fencing will improve the existing acoustic environment. In addition, the applicant proposes glass-block walling to ceiling height on a presently open veranda located only about 1.5 m from the common boundary of the adjoining neighbours at No. 27. Before the numbers of children can be increased, that work will have to be carried out. Besides the walling that will be on the common boundary of the property at No. 23 that I referred to, glass-block walling will be provided to a height of 1.8 m on the southern side of the open rear veranda, which is presently used by the childcare centre. 21 . There will be the additional increased traffic associated with four additional children, and I have taken that into account. No children will be permitted to be booked into the centre prior to 7.30 am. Between 7.30 am and 8.00 am there will be a limitation of seven children and after 8.00 am the other children may arrive. If there is any variation sought by the applicant, under the new procedures the council may, if appropriate, modify the consent without referring the matter to the Court. 22 . In determining the total number of children to be 19, I take into account the fact that the street where the childcare centre is located is a quiet one. The childcare centre use noticeably changes the residential use of the street. Including the childcare centre usage, it appears that there are 25 vehicles per hour using the street during the busiest time. Because it is generally a quiet street, it is therefore important (even thought there may be the capacity for on-street parking), that parking where possible should occur on the subject site, so that residents do not have vehicles constantly moving on the street and parking outside their premises, particularly the adjoining ones. 23 . It is not the intention of the Court to cure the problems presently prevailing. But at least limiting the numbers of children, and the rearrangement and widening of the entrance for the manoeuvres to the drop-off bay will, I think, provide the opportunity for parents to use the site, insofar as there may be an increased number of vehicles. I do not think there will be a noticeable change to the on-street parking situation, which is admittedly of concern to the residents. 24 . The on-street parking in the past, according to the oral and written evidence of the residents, is that cars sometimes park partially over the driveway of the adjoining sites, causing inconvenience to residents who are leaving or arriving at the time that a parent is parked near the site. Also, cars parked on either side of the street do cause some inconvenience, insofar as only one car can proceed along the relatively narrow carriageway between the cars parked on either side of the street. Moreover, extra care and manoeuvring by residents who have to back out of their premises is involved, where cars from the childcare centre (not being able to be parked or not actually parking on the subject site) are parked on the street in front of other residents' properties. 25 . Conditions of consent will be imposed which to a minor extent modify the car-parking entry to the site, making it wider than it is at present by 600 mm and there will have to be an appropriately graded addition to the existing manoeuvring area near the widened entry, so that a parent's car parked in the car space closest to the street (separated from the street by a landscaped area) will be able to readily leave the parked position and drive out in a forward direction without causing any damage to the common wall at the southern boundary of the subject site. This will involve the removal of two small trees, and it will be a condition of consent that those trees should be relocated to the existing pedestrian access, which is on the street side of the drop-off bays. This existing pedestrian access is of course in addition to the driveway which is also used as a pedestrian access. But the pedestrian-only access that exists at the present time is to be closed off for safety reasons, because a parent (driving a car) then will only have to concentrate upon one entry point for carers who may be walking with their children onto the site. Where this dedicated existing pedestrian access is closed off, the trees are to be located and landscaping provided, so there will not be an overall loss of landscaping at the front of the site other than a grassed area adjoining the single concrete parking space. This grassed area will of course have to be concreted in order to provide the second drop-off bay. Between the new concreted area there is space for higher landscaping which exists and can be maintained. 26 . I come to the matter of open space on the site. There will be non-compliance to some extent with cl 2.5.2 of the council's development control plan and there will be a shortfall in the total site coverage which would ordinarily be required. However, I consider that a departure from the DCP insofar as it relates to character and site coverage is warranted in this particular case, because of the improved parking arrangements that will result for the staff parking. In order to provide for the staff cars to move in one straight forward direction off the site, the existing garage or carport at the end of the driveway will have to be moved into part of the open space area at the rear of the site, to allow for the turntable to be provided. This is a desirable result in my opinion. Overall, it does not significantly reduce the vegetated landscaped area at the rear of the existing site. 27 . It is proposed that stormwater detention be provided. I have some reservation as to whether it is necessary. Insofar as it can be a matter of condition or not, I will hear from the parties. 28 . I now consider the questions relating to whether the upstairs dwelling should be extended. It was proposed that there be a large balcony provided at the front extending out from the existing fairly narrow balcony. It was agreed during the hearing that this proposed balcony be deleted. I fully agree with the decision of the applicant to do that and I indicate that, on the evidence, I would not have approved it. 29 . It is also proposed to increase the height of portion of the building at the front of the property. This front portion is now only single storey but it is elevated above the existing ground level. It has a sloping roof and behind this fairly long sloping roof there is provided a second floor with a bedroom. 30 . I take into account in considering whether or not to approve the extension, which in effect means that the front wall which is now in appearance one-and-a-quarter storeys high (although it is actually one storey because there is sub-floor space) will be increased with a wall going up fully two storeys and will thus increase the size of the bedroom immediately behind the front of the house. It is important to note the location of this front wall. This front wall is not to be located behind the main front walls of adjoining premises but in fact stands proud of the adjoining main wall of the house on No. 27 and is also well forward of the alignment of the house at No. 23. 31 . Having regard to the imposing nature of the existing sidewall where it now rises to two storeys facing towards No. 27, I do not consider that it is appropriate to approve the proposed extension forward of the upper level, and therefore that element is to be deleted. Accordingly, there would be a development on the site that is largely what is there now, but there would be an increased area of one parking space plus an increased hard surface area at the rear. If a detention tank is required, it is to be provided underneath the easternmost drop-off bay; it will not affect landscaping. 32 . In the circumstances, there will no discernable increase in building form from the street due to the proposed development, and the amended landscaping between the new car-parking spaces and the street will in effect provide a similar situation to what is present now. 33 . At the rear of the upper level there is also a balcony, and it is proposed in the present application that there be an extension rearward of that balcony taking into account that the present occupants of the upstairs area can only use the yard area at the rear (which is a very pleasantly landscaped area) after children have ceased to use the area during weekdays, or can only use it on the weekend or during holidays. 34 . I therefore consider it appropriate to approve (subject to conditions) the proposed rearward extension of the upper deck area. This upper deck area does allow at the present time overviewing of the property at No. 27, because there is no panelling on the northern side of the deck. Insofar as it is proposed to be extended, I consider that the deck should have a 1.6 m high solid privacy screen on the northern side, and that this screen should additionally be extended back to the rear wall, so that there will be no overviewing at all in a sideward direction toward No. 27 as is the case now. As well, to further reduce but not totally prevent overlooking in the oblique direction towards the rear part of the rear yard of No. 27, there will be a requirement that there be a permanent planter box provided at the western end of the deck. This is illustrated although not described on the upstairs floor plan. On the other side of the balcony, there will also be a privacy screen and there will be no overlooking ,it seems, in any direction into the rear yard of No. 23, taking into account the landscaping that has been provided on the subject site itself. Likewise there is landscaping on the subject site along the common boundary of the adjoining property to the north. 35 . There will be no increased internal floor space provided as a result of the proposed development, although there will be an increased useable floor area (at the upper-deck) for the occupants of the dwelling, and I consider that this is appropriate. I also consider the appearance of the two upstairs privacy screens will be acceptable, having regard to the distance of the southernmost screen from the southern common boundary with the adjoining property, and having regard to a setback of the northern side privacy wall of the balcony from the northern boundary by an additional 0.5 m from the general alignment of the northern wall of the existing dwelling and having regard to its height of 1.6 m. 36 . There are limitations on the use of this site for a childcare centre for a significant number of children as I indicated, and of course it is a matter for the owner whether or not the owner wishes to go to the considerable expense involved in modifying the centre in order to have the small additional number of children or whether it might be more appropriate to look for a wider and better-appointed site for a childcare centre, or whether in the circumstances simply to continue the existing childcare centre (with 15 children) without any required changes. 37 . I am of the opinion, having regard to the amendments that will be required by the new conditions of consent and in particular to the deletion of the front proposed structures, that the proposed development with the approved amendments will be consistent with the objectives of the Manly Local Environmental Plan in this residential zone and in particular with objective (f). It is also consistent with the other objectives, one of which involves the adoption of development control plans. I have already referred to what I consider to be the most important departure of the proposal relating to site coverage and have given the reasons for departing from the DCP in this case and also for departing from it in respect of, for example, the driveway width. The situation might be different if this were a new application altogether and there were not a childcare centre already in existence. 38 . I come now to the conditions of consent which were agreed by the parties, but there were a considerable number of conditions which are still in draft form. I propose therefore to indicate that I am going to allow the proposed development and to generally adopt the conditions that have been discussed during the hearing, but I will defer the actual making of the final orders giving approval until a full typed copy of the conditions has been considered by me. I may for example make some minor changes without further reference to the parties while not changing the substance of my decision or departing from the submissions made by the parties. In particular, the safety policy document which is to be provided by the childcare owner to parents relating to the safe manoeuvring of cars is to be amended from its current form so as to provide for a required movement of parking, namely that cars drive on to the site and pause adjacent to the resident space and then reverse. That is an important requirement because (according to the opinion of Mr Hewitt who is an expert traffic engineer) that would provide a more safe manoeuvre in front of the entry to the childcare ramp than if cars proceeded in a forward direction to the drop-off bays and then had to reverse out. I tend to agree with that opinion and it was not opposed by the council. To some extent that is different from the present situation. 39 . The other matter which I would perhaps specify in a condition or in the management policy is that children should always be carried by a carer or firmly held by hand while passing through the open area between the front of the site and the gate to the pedestrian ramp. What other safety requirements might be specified, and there are some desirable ones in the current policy, will be a matter for the decision of the management of the childcare centre should this consent be implemented. Parking directly outside the front of the site will not always be possible. Parents are to be encouraged to park on the site if spaces are available and then, if they do park on the site, they should follow the required procedure. If there is no on-site parking space available, they should if possible park in front of the subject site. If they park elsewhere in the street, parents should of course be reminded to always park on the proper side of the street and not to block any driveways. So there would probably only be two required directions in the policy, but I generally endorse the other advices given. 40 . The increased number of children on the site is not to occur until the conditions relating to access and fencing are first carried out. 41 . Having considered the other matters raised by the objectors and taking into account the matters in section 79C of the Environmental Planning and Assessment Act 1979, it is appropriate to grant consent subject to conditions. 42 . The representatives of the parties made brief submissions on whether there was a need for a stormwater detention tank. On the question of whether a stormwater detention tank is needed, I am of the opinion that having regard to the existing situation, a completely new stormwater disposal system is not required. 43 . I should also add that it is probably desirable that the applicant should seek expert advice as to the gradient of the small additional manoeuvring area and parking drop-off space, although an express condition requiring this to occur will not be imposed. 44 . I will make final orders in chambers without the need for the representatives of the parties to attend, and the registrar will forward a minute of my orders to the parties. The applicant's representative is to provide me with a draft in electronic form of the amended conditions that were discussed and agreed during the submissions of the parties (and a copy is to be forwarded to the council's representative). ________ 45 . After the above judgment, the parties later negotiated and agreed upon the final form of conditions. On 24 February 2004 , I had a telephone conference with the representatives of the parties, and made the following orders: 1. The appeal is allowed. 2. Development consent is granted to increase the maximum number of children from the previously approved 15 children to 19 children at the child care centre at 25 Fromelles Ave, Seaforth, and to carry out alterations and additions the child care centre and attached dwelling, subject to the conditions in annexure A hereto. 3. The exhibits, other than exhibits A, B, H and F, may be returned. ___________ A J Nott Commissioner of the Court Ljr/rjs Annexure A Conditions 25 Fromelles Avenue DA6/03 BCA Building Class – 1a, 10a and 9b 1. This consent relates to drawings Nos. TS-MK 25C dated 10 December, 2003 prepared by Calldart Pty Ltd and received by Council on the 17 December, 2003 (ex A) and Landscape Plans Drawing LI/69 dated 10 December, 2003 prepared by Environ Design (ex H), except as amended by the following conditions. This consent does not grant approval for the proposed- (1) sail cloths in the rear yard, (2) extensions to front balcony, (3) alterations and additions to bedroom and front elevation These works are to be deleted from the plans prior to the submission of any Construction Certificate. 2. The development shall be provided with access and facilities for people with disabilities in accordance with Australian Standard 1428.2-1992 Design for Access and Mobility Part 2: Enhanced and additional Requirements (AS 1428.2). 3. Pursuant to Section 97 of the Local Government Act 1993, Council requires, prior to issue of the Construction Certificate, or commencement of any excavation and demolition works, payment of a Trust Fund Deposit of $1,100.00. The Deposit is required as security of compliance with Conditions of Consent, and as security against damage to Council property during works on the site. Note: Should Council property adjoining the site be defective e.g., cracked footpath, broken kerb etc., this shall be reported in writing to Council, at least 7 days prior to the commencement of any work on site. 4. No obstruction shall be caused to pedestrian use of Council's footpath or vehicular use of any public roadway during construction. 5. Details of the builder's name and licence number contracted to undertake the works shall be provided to Council prior to issue of the Construction Certificate. 6. Insurance must be undertaken with the contracted builder in accordance with the Home Building Act 1997. Evidence of Insurance together with the contracted builder's name and licence number must be submitted to Council prior to issue of the Construction Certificate. 7. 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 person or part of 20 persons employed at the site, by effecting either a permanent or temporary connection to the Sydney Water's sewerage system or by approved closets. 8. A sign must be erected on the subject site in a prominent position stating that unauthorised entry is prohibited and giving details of the name of the builder or the person responsible for the site and 24-hour contact details. The sign is to have dimensions of approximately 500 mm x 400 mm. Note: The sign is not required if the building on the site is to remain occupied during the course of the building works. 9. Consent given to build in close proximity to the allotment boundary is in no way to be construed as permission to build on or encroach over the allotment boundary. Your attention is directed to the provisions of the Dividing Fences Act, which gives certain rights to adjoining owners, including use of the common boundary. In the absence of the structure standing well clear of the common boundary, it is recommended that you make yourself aware of your legal position, which may involve a survey to identify the allotment boundary. 10. Except as provided for by conditions 46 and 47, natural lighting and ventilation shall be provided to the proposed room(s) by means of windows of a size and design to comply with the requirements of the Building Code of Australia. 11. All timber framed walls, flooring and roofing construction shall be in accordance with the requirements of Australian Standard 1684, Timber Framing Code. 12. All cavity brick or brick veneer construction shall be in accordance with the requirements of Australian Standard 3700 - Masonry Structures. 13. Certificate(s) from a professional Engineer or other appropriately qualified person is to be submitted which certifies that material, design and/or form of construction (for the turntable) complies with the requirements of Clause A2.2 of the Building Code of Australia. 14. The front of the carport is not to be enclosed without the prior approval of Council. 15. The carport roof cladding and any ceiling lining are to be non-combustible in accordance with the requirements of Part 3.7.1 of the Building Code of Australia - Housing Provisions. 16. Four (4) Architectural/Services Specifications are to be submitted with the Construction Certificate application/prior to the issue of the Construction Certificate. 17. The visitor car spaces shall be accessible at all times and a sign post shall be erected at the vehicular entry point(s) of the development indicating the location of the spaces. 18. Prior to any increase in the number of children attending the centre, all driveways, carparking areas and pedestrian paths shall be surfaced and sealed. Details of treatment to these areas shall be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate. 19. The proposed turntable shall be installed and operating prior to the increase in the number of children attending the Centre. 20. The turntable shall be maintained in an operating mode at all times in accordance with the manufacturer's specifications. 21. An approved water interceptor shall be provided across the driveway at the street boundary and all stormwater shall be conveyed by underground pipe to Council's street gutter to the satisfaction of the Principal Certifying Authority. 22. Roofwaters and surface stormwaters from paved area are to be conveyed by pipeline to Council's street gutter. 23. All demolition is to be carried out in accordance with AS2601-1991. 24. All building work must be carried out in accordance with the provisions of the Building Code of Australia. 25. An automatic fire detection and alarm system shall be installed in the proposed dwelling in accordance with the requirements of Part 3.7.2 of the Building Code of Australia 1996 - Housing Provisions. 26. No existing street trees shall be removed without Council approval. Where such approval is granted, the trees shall be replaced at full cost by the applicant with super advanced trees of a species nominated by Council's relevant officer. 27. No building materials may be stored on the road reserve without separate approval from Council. 28. A Waste Management Plan is to be submitted with the application for a Construction Certificate in accordance with Council's Development Control Plan for Waste Minimisation and Management. 29. Landscaping is to be carried out in accordance with the approved Landscape Plan submitted in conjunction with the Development Application, except as amended by these conditions. Evidence of an agreement for the maintenance of all plants for a period of 12 months from the date of practical completion of the building is to be provided to the Principal Certifying Authority prior to issue of the Final Occupation Certificate. 30. All healthy trees and shrubs identified for retention on the plan must be: (i) Suitably marked before any development starts and be suitably protected from damage during the construction process; and (ii) Retained unless their location or condition is likely to cause damage and their removal has been approved by Council. 31. No tree other than on land identified for the construction of buildings and works as shown on the building plan shall be felled, lopped, topped, ringbarked or otherwise wilfully destroyed or removed without the approval of Council with the exception of the existing Conifer adjacent to the front entry. The existing Conifer tree adjacent to the front entry shall be trimmed or removed prior to any increase in the number of children attending the centre and replaced by a suitable species to allow clear sight distances to the drop off bays. Landscaping adjoining the access ramp shall be no higher than 400mm above the access ramp level at the pedestrian gate. 32. Details are to be provided of at least two (2) existing or proposed endemic trees for the site that are typically expected to reach a height at maturity of 10 metres. A list of appropriate endemic trees for the Manly area may be obtained at Council's Customer Service desk. Details of new planting are to include appropriate siting and pot size (minimum of 25litres) in accordance with section 3.2 of the Residential Development Control Plan 2001. Details are to be submitted with the Construction Certificate to the satisfaction of the Principal Certifying Authority. 33. Prior to the commencement of any works on the land including demolition and site preparation, provision of silt control fences shall be provided. A Sediment/Erosion Control detail shall be submitted to the Certifying Authority prior to the issue of the Construction Certificate. 34. All materials on site or being delivered to the site shall generally be contained within the site. The requirements of the Protection of the Environment Operations Act 1997 shall be complied with when placing/stockpiling loose material, disposing of concrete waste, or other activities likely to pollute drains or watercourses. 35. A Construction Certificate Application is required to be submitted to and issued by the Principal Certifying Authority prior to any building works being carried out on site. 36. The works require the following inspection/certification during the course of construction: Silt control fences Footing inspection -trench and steel Framework inspection Drainage inspection Final inspection The cost of these inspections by Council is $393.00 (being $70.00 per inspection and $113.00 for Final inspection inclusive of GST). Should you require Council to undertake the inspection/certification, then payment is required prior to the first inspection. Inspection appointments can be made by contacting the Development Assessment office on 9976 1500. At least 24 hours notice should be given for a request for an inspection and submission of the relevant inspection card. Any additional inspection required as a result of incomplete works will incur a fee of $80.00. 37. All excavated material should be removed from the site in an approved manner and be disposed of lawfully to a tip or other authorised disposal area. 38. The applicant and/or builder must prior to the commencement of work, install at the periphery of the site, measures to control sedimentation and the possible erosion of the land. The measures must include:- (i) siltation fencing; (ii) protection. of the public stormwater system; and (iii) site entry construction to prevent vehicles that enter and leave the site from tracking loose material onto the adjoining public place. 39. Building or construction work must be confined to the hours between 7.00am to 6.00pm, Monday to Friday and 7.00am to 1.00pm Saturday, with a total exclusion of such work on Public Holidays and Sundays. Non-offensive works where power operated plant is not used and including setting out, surveying, plumbing, electrical installation, tiling, internal timber or fibrous plaster fixing, glazing, cleaning down brickwork, magnesite flooring, painting, building or site cleaning by hand shovel and site landscaping, are permitted between the hours of 1.00pm to 4.00pm Saturdays. Note: That the Protection of the Environment Operations Act 1997 may preclude the operation of some equipment on site during these permitted working hours. 40. Details of the method of termite protection which will provide whole of building protection, inclusive of structural and non-structural elements, shall be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Attention is drawn to the provisions of Australian Standard 3660.1 "Protection of Buildings from Subterranean Termites - New Buildings" and to Council's Code for the "Protection of Buildings Against Termite Attack". 41. Prior to issue of the Occupation Certificate, a durable termite protection notice shall be permanently fixed to the building in a prominent location detailing the form of termite protection which has been used in accordance with Council's Code for the "Protection of Buildings Against Termite Attack". 42. The public footways and roadways adjacent to the site shall be maintained at all times during the course of the work in a safe condition. 43. The maximum number of children in attendance at the childcare centre shall be 19 children at any one time. 44. The centre is to have a maximum of three (3) staff at any one time, of which one is to be the resident /Director employed on a full time basis in the operation of the childcare centre. 45. Compliance with any requirements of the Department of Community Services prior to any increase in the number of children attending the centre. 46. The windows in the northern wall of the ground floor level are to be of non-openable glass and be protected by external wall-wetting sprinklers. 47. As a consequence of the above, habitable rooms (requiring light and ventilation) are required to be provided with a mechanical air supply prior to any use the subject of this consent. 48.-50. [Deleted.] 51. A detailed stormwater management plan shall be prepared to comply with Council's "Specification for on-site Stormwater Management 2003" (provided that for the existing building and minor additions thereto, a stormwater detention tank need not be required) and shall be submitted with the Construction Certificate application. The stormwater management plan shall be prepared by an experienced Chartered Civil Engineer. The Principal Certifying Authority shall ensure that the design complies with the above said specification prior to the issue of the Construction Certificate. 52. On completion of the drainage works the applicant is required to submit work as executed drawings of the on site stormwater detention system. The work as executed drawings shall be certified by a Chartered Professional Engineer and submitted to Council prior to the Occupation Certificate being issued. 53. Any adjustment to the public utility service is to be carried out in compliance with their standards and the cost is to be borne by the applicant. 54. A suitable sub-surface drainage system being provided adjacent to all excavated areas and such drains being connected to an approved disposal system. 55. An approved water interceptor shall be provided across the driveway at the street boundary and all stormwater shall be conveyed to the stormwater detention system 56. All site waters during excavation and construction shall be contained on site in an approved manner to avoid pollutants entering into the Harbour or Council's stormwater drainage system. 57. The capacity and effectiveness of erosion and sediment control devices must be maintained to Council's satisfaction at all times. 58. All disturbed areas shall be stabilised against erosion to Council's satisfaction within 14 days of completion, and prior to removal of sediment controls. 59. In accordance with the Roads Act 1993, written consent from Council shall be obtained and shall be in hand prior to any track-equipped plant being taken in or onto any roadway, kerb and gutter, footway, nature strip, or other property under Council's control. 60. The hours of operation of the childcare centre shall be from 7.30am to 6.00pm Monday to Fridays with seven (7) children permitted to arrive at the site between the hours of 7.30am and 8.00am with the remainder of children to arrive after 8.00am. 61. Prior to any increase in the number of children attending the centre, the carport shall be widened to have an internal width of 5.4 metres. 62. To prevent sideways overlooking into adjoining properties, privacy screens with a length of 3.1 metres and 2.1 metres respectively and with a height of 1.6 metres shall be attached to the northern and southern sides of the rear balcony. The rear deck and privacy barrier on the northern side is to be setback 500mm from the external face of the northern sidewall. A permanent earth-filled (for landscaping) planter box 500 mm wide (east-west) across the whole of western end of the deck is to be provided (as indicated on the approved plan), and the deck is to be designed to take the extra load of the filled planter box in addition to ordinary domestic use. Details to be provided with the construction certificate. 63. An amended safety policy shall be provided by the operator to all parents or carers of children attending the childcare centre, and the operator shall take reasonable steps to require parents to observe the policy. Specifically in the policy, the operator shall encourage parents to park on the site whenever a visitor drop-off car space is observed to be vacant. When parking on the site, parents are to be required to enter the site in a forward direction and pause in the driveway on the southern side of the resident parking space, then reverse into a drop-off bay, in order to later drive out in a forward direction. A diagram illustrating the movements is to be included in the policy. Parents are to be reminded that before carrying out this reversing movement, they should look to the rear and side to ensure that no child or other person will be in the path of the reversing car. Again, before leaving the site, parents should take extra care that no child or other person is leaving the pedestrian exit gate or walking across the driveway to the gate. Parents who are walking across the driveway to the pedestrian entry or who are leaving the entry are to make sure that they firmly hold the hand of any child accompanying them or otherwise carry the child. Such other policy directions for the safe, efficient and orderly operation of the centre as may seem appropriate to the centre- operator may be included in the policy document. A copy of the safety policy document shall be provided for information of the council. 64. Prior to any increase in the number of children attending the centre, the chimney shall be removed to a height of 2.5 metres to provide improved access to the rear parking spaces. 65. Prior to any increase in the number of children attending the centre, the existing northern and southern boundary fences are to be replaced at the expense of the Applicant. The northern boundary fence for the distance of 35m from the rear boundary and the southern fence between the rear boundary and the proposed carport shall be of a height not less than 1.8 m and not greater than 1.9 m measured from the existing ground level of the subject property and be of a solid lapped and capped timber construction. These fences are to be maintained in good condition while ever the centre operates pursuant to this consent. 66. Prior to any increase in the number of children attending the centre, the rear (western) boundary fence shall be lined on the child care centre side with 6 mm thick FC sheeting or waterproof villaboard so as to cover the gaps in the palings between the cross beams of that fence. 67. The southern elevation of the ground-floor veranda shall be of glass brick or similar construction of a height of 1.8 metres in lieu of lattice and painted board. The adjoining gate shall be solid and to a height of 1.6 metres measured from 200mm from the operational floor level. These works must be done prior to any increase in the number of children attending the centre. 68. Any mechanical plant or air conditioners installed on site shall not exceed the nominated design goal for such plant, being a sound pressure level contribution on or at any site boundary not exceeding 41dB(A). The air conditioning unit on the northern wall is to be relocated away from the area between the building on the subject site and the northern boundary. 69. The applicant agrees to surrender consent 448/96 seven (7) days after the completion of works set out in condition 19 and prior to an increase in the number of children attending. 70. Prior to any increase in the number of children attending the centre, the southern corner of the front retaining wall is to be reduced by 600mm and to have no return. 71. Regrading is to occur to ensure maximum convenience and avoid scraping. The Jacaranda and Lilly Pilly and other landscaping adjoining the southern end of the front retaining wall are to be transplanted to the area of the existing pedestrian access. The existing pedestrian access is to be closed off. 72. Parking spaces shall be used strictly in accordance with the allocation shown on the application during the hours the childcare centre is operating. ******** 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.