Land and Environment Court of New South Wales CITATION : Presrod Pty Limited v Wollongong City Council [2010] NSWLEC 1257 APPLICANT Presrod Pty Limited PARTIES : RESPONDENT Wollongong City Council FILE NUMBER(S) : 10124 of 2010 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- use of an existing serviced apartment building for hotel accommodation - savings provision and weight to planning instrument in force prior to gazettal of new planning instrument - impacts of the right-of-carriageway shared by site and adjoining property - resident concerns over car parking - future use - noise - loss of trees Environmental Planning and Assessment Act 1979 LEGISLATION CITED: Wollongong Local Environmental Plan 2009 Wollongong Local Environmental Plan 2007 Future Space Pty Limited v Ku-ring-gai Council (2009) NSWLEC 15 CASES CITED: Ronaldo Plus 3 Pty Limited v Hurstville City Council (2005) NSWLEC 315 Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 DATES OF HEARING: 29 July 2010 EX TEMPORE JUDGMENT DATE : 30 July 2010 APPLICANT Mr I Hemmings, barrister SOLICITORS Wilshire Webb Staunton Beattie LEGAL REPRESENTATIVES: RESPONDENT Mr M Mantei, solicitor SOLICITORS Kells The Lawyers JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 30 July 2010 10124 of 2010 Presrod Pty Limited v Wollongong City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal by Wollongong City Council (the council) of Development Application No. DA2009/867 to use an existing serviced apartment building for hotel accommodation at 39 Smith Street Wollongong (the site). 2 The appeal was subject of a conciliation conference on 7 May 2010 under s 34 of the Land and Environment Court Act 1979 (the Court Act). As no agreement was reached, the conciliation conference was terminated pursuant to s 34(4)(a). The parties consented to me disposing of the proceeding at a later date pursuant to s 34(4)(b)(i) and on the basis of what occurred at the conciliation conference pursuant to s 34(4)(b)(ii). Background 3 The existing building on the site was constructed in accordance with development consent DA 87/218 granted on 28 May 1987 and provided for the use of the building as a motel containing 43 rooms and a dining room. The council approved a modification to DA 87/218 on 13 July 1987 to provide for 34 serviced apartments. The contentions 4 The council filed a Statement of Facts and Contentions on 6 March 2010 and an Amended Statement of Facts and Contentions on 3 June 2010 following the submission of additional information by the applicant. 5 The matters in contention related to: 1. whether the car park layout satisfied Australian Standard AS6890.1 (contention 2A), 2. whether the check in/check out operations will unacceptably impact on the right-of-carriageway shared with the adjoining property (contention 3), 3. whether the change of use will have unacceptable additional impacts (contention 5), 4. what weight should be given to LEP 2009 (contentions 6, 7 and 8), 5. whether acceptable disabled access and accommodation is provided (contentions 8A and 8B), and 6. whether the matters raised by local residents warrant the refusal of the application. 6 Following the submission of further information; contentions 2A, 8A and 8B were not pressed by the council. The site and nearby area 7 The site is lot 31 in DP 747755. It is a hatchet shaped allotment with a frontage to Smith Street of 25.02 m, a depth of 101.33 m and a rear boundary of 40.7 m giving an overall site area of 3027 sq m. The site is burdened by a right-of-carriageway and service easement 3 m wide along the western boundary which, when combined with the right-of-carriageway and service easement over the adjoining property at 41 Smith Street, forms a driveway access to the parking area at the rear of the site, the basement car parking entrance to 41 Smith Street and ground level parking area at the rear of 41 Smith Street. The rear 40.48 m of the site also has an easement restricting the use of this area to car parking. 8 The existing building is setback 8.305 m from the street, a minimum of 2.5 m to the eastern boundary and 3 m to the western boundary. The front of the building at ground level contains administration, kitchen, laundry and breakfast facilities and the rear contains the serviced apartments. The upper level contains 20 serviced apartments. Car parking is provided for 36 vehicles in an open car parking area at the rear of the site at two separate levels with approximately 500 mm difference in height. The car parking area contains landscaped strips along the northern, eastern and southern boundary. At the southern boundary is a large fig tree. 9 To the east of the site sharing a common boundary to a depth of 71 m is 35 Smith Street, which is occupied by a two storey older style residential flat building. To the east of the rear part of the site is the rear of 31 Smith Street which is occupied by a 3-storey townhouse building comprising part of a development known as Milford Mews. The first floor level of this building is set at a level similar to the existing parking area on the site with the ground floor and courtyards to the west facing units set well below the parking level. The western elevation of this building contains balconies at the first floor level. Currently, landscape screening is provided on the site along the common boundary. 10 To the south of the site is a 2- storey townhouse development with access from Market Street. This development is set back a minimum of 1 m from the common boundary. To the west of the site is 41 Smith Street. It is a 5-storey above ground level parking residential flat building comprising two buildings. The buildings are set back a minimum of 10.4 m from the common boundary. The east elevations of these buildings contain large balconies at each level spanning the extent of each elevation. Relevant planning controls 11 The site is currently zoned R1 General Residential under Wollongong Local Environmental Plan 2009 (LEP 2009) which was gazetted on 3 March 2010. Hotel accommodation is a prohibited use within this zone. The subject application is, however, subject to the savings provisions in cl 1.8A of LEP 2009, having been lodged with the council on 22 July 2009. Clause 1.8A states: If a development application has been made before the commencement of this Plan in relation to land to which this Plan applies and the application has not finally been determined before that commencement, the application must be determined as if this Plan had not commenced. 12 The planning instrument in force prior to LEP 2009 was Wollongong Local Environmental Plan 2007 (LEP 2007). Under LEP 2007, the site is within Zone B4-Mixed Use. Hotel accommodation is not listed as a prohibited use within this zone and based on the construction of the zoning table is permissible with development consent. LEP 2007 defines "hotel accommodation" as: Hotel accommodation means a building (whether or not a hotel within the meaning of the Liquor Act 1982 ) that provides tourist and visitor accommodation consisting of rooms of self-contained suites but does not include backpackers' accommodation, a boarding house or bed and breakfast accommodation. 13 As the proposed development only seeks to change the use of the existing building and does not involve any building works (apart from car park line-marking) the applicable development standards in LEP 2007 and LEP 2009 do not need to be directly applied. In any event, the existing building is well within the density and height controls of LEP 2007. 14 Wollongong Development Control Plan 2007 (DCP 2007) was repealed with the gazettal of LEP 2009 and replaced with Wollongong Development Control Plan 2009 (DCP 2009) although the remaining contentions raise no issues with any requirements with any development control plan. The proposal 15 The Statement of Environmental Effects provides details of the proposed use and states that the site will be used for hotel accommodation and will be in operation 24 hours a day, 7 days per week with reception hours generally between 7am and 8pm Monday to Friday and 8am to 8pm Saturday and Sunday and public holidays. Staff members of the hotel are available outside these hours for the convenience of guests. 16 The proposal provides for 34 rooms, a spa and sauna, car parking, secretarial service, rooms serviced daily, guest meal area, room service, full laundry, mini bar and reception with porter services. The hotel will employ between 16 and 20 staff with 5 to 8 staff on site at any one time. The proposed development retains the existing arrangements for waste management, security and lighting. A Plan of Management accompanies the proposed development. Weight to be given to LEP 2009 The submissions 17 Mr Mantei, for the council, submits that determinative weight should be given to LEP 2009 and as the proposed development is not permissible under this planning instrument, consent should be refused. He submits that the clear intent of the R1 zone is to promote residential development as indicated by the zone objectives. 18 Mr Hemmings, for the applicant, comes to a different conclusion. He submits that while LEP 2009 could be seen to be "imminent and certain"; if regard is given to the zone objectives then there is no reason why consent should not be granted consent. In his submission, the zone objectives when considered in conjunction with the land uses that are permitted with consent support the proposed development. Findings 19 The savings provisions in cl 1.8A provide that the application must be considered under LEP 2007 but LEP 2009 must be considered as if the plan had not commenced. I have taken the word "commenced" to mean the date LEP 2009 becomes effective. At this stage LEP 2009 would have to be seen as "imminent and certain" as the terms of LEP 2009 would have been finalised. 20 The question to be answered is whether LEP 2009 should be given such weight that it should be preferred to LEP 2007 in the consideration of the application. In my view the question should be answered in the negative. The weight to be attributed to a draft environmental planning instrument will be greater if there is a greater certainty that it will be adopted (Terrace Tower Holdings Pty Ltd v Sutherland Shire Council (2003) NSWCA 289 at par 5). Relevantly, in Terrace Tower, Spigelman CJ states at pars 6 and 7 that: 6. Notwithstanding 'certainty and imminence', a consent authority may of course grant consent to a development application which does not comply with the draft instrument. The different kinds of planning controls would be entitled to different levels of consideration and of weight in this respect. 7. Where a draft instrument seeks to preserve the character of a particular neighbourhood that purpose will be entitled to considerable weight in deciding whether or not to reject a development under the pre-existing instrument, which would in a substantial way undermine that objective. 21 Terrace Tower (par 7) raises the question of whether the proposed development will preserve the character anticipated by the R1 zone and whether the proposed development will undermine the objectives of the R1 zone in LEP 2009. The submissions of Mr Mantei and Mr Hemmings come to different conclusions, however, I agree with the conclusions of Mr Hemmings. 22 The Zone R1 objectives in LEP 2009 are: - To provide for the housing needs of the community. - To provide for a variety of housing types and densities. - To enable other land uses that provide facilities or services to meet the day to day needs of residents. 23 Contrary to the submission of Mr Mantei, I do not accept that the Zone R1 objectives provide for residential development or that the clear intent of the zone R1 is to provide a residential area. Even though the zone title includes the word "residential", the objectives use the word "housing". In my view, this clearly suggests that the zone contemplates the opportunity for housing or accommodation beyond just residential housing or residential accommodation. Support for this proposition comes from the range of uses permissible with consent in Zone R1 that includes bed and breakfast accommodation, boarding houses, hostel and serviced apartments. 24 I am also satisfied that when the proposed use is compared to a number of the permissible uses under LEP 2009; the proposed use is not that dissimilar that it could reasonably be said that the proposed use would substantially undermine the objectives of Zone R1. For example, the definition of hotel accommodation in LEP 2007 (and prohibited under LEP 2009) is: Hotel accommodation means a building (whether or not a hotel within the meaning of the Liquor Act 1982 ) that provides tourist and visitor accommodation consisting of rooms of self-contained suites but does not include backpackers' accommodation, a boarding house or bed and breakfast accommodation. 25 The definition of serviced apartment that is a permissible use under LEP 2009 is: Serviced apartment means a building or part of a building providing self-contained tourist and visitor accommodation that is regularly serviced or cleaned by the owner or manager of the building or part of the building or the owner's or manager's agents. 26 In my reading of the two definitions, there is no meaningful difference between the proposed uses (if the hotel accommodation is not a hotel within the meaning of the Liquor Act 1982) beyond the requirement in the definition of serviced apartment for the accommodation to be serviced or cleaned by the owner or manager. 27 While LEP 2009 is imminent and certain I am satisfied that LEP 2009 should not be given determinative weight as the proposed use will likely preserve the character and not undermine the objectives of Zone R1 under LEP 2009 given the permissible uses in this zone. The impacts of the right-of-carriageway 28 The remaining planning contention raised by the council in the proceedings relates to the impacts of the right-of-carriageway and whether the proposed Plan of Management satisfactorily addresses any impacts, 29 Evidence on this contention was addressed by town planners, Mr Michael Brown for the council, and Mr Andrew Duggan for the applicant. The applicant's traffic expert, Mr Craig McLaren, also contributed but was not required for cross-examination. 30 On the fundamental question of whether the proposed use will increase traffic on the right-of-carriageway, Mr McLaren's unchallenged evidence was that the daily and peak hourly traffic generation on the right-of-carriageway is relatively low and will not alter to any significant degree by the proposed development. I also note that both town planning experts also accepted that peak hourly trip generation will not vary widely between the existing serviced apartments and the proposed use. 31 In peak times and even if all units were occupied and with all occupants using private cars and arriving or departing in a single hour; Mr McLaren calculates that this would give rise to 32 peak hour vehicle trips in one direction. This unlikely worst case scenario equates to one vehicle arriving or departing every 112 seconds, which is described by Mr McLaren as moderately low in traffic terms. Overall, Mr McLaren states that the application is acceptable in terms of potential impacts along the right-of-carriageway. 32 Mr McLaren also notes that the RTA's Guide to Traffic Generating Developments adopts a peak hourly threshold limit of 100 vehicles per hour as the desirable limit of peak hourly traffic flow along accessways before traffic calming or noise attenuation measures need to be considered. The proposal is significantly less than this threshold. 33 Notwithstanding the agreed position of the experts that the traffic generation would not vary widely from the existing serviced apartments to the proposed use, the applicant has offered to be bound by a Plan of Management for the operation of the proposed hotel accommodation. Mr Brown however maintained that the Plan of Management would not alleviate impediments to the use of the right-of-carriageway based on his 2-hour inspection of the site in April 2010. When cross-examined on the specific reasons for his concerns, Mr Brown indicated that his concerns were based on observations where people did not park in accordance with the proposed Plan of Management and a parking manoeuvre of a taxi at the street frontage to pick up patrons from the serviced apartments where the taxi blocked both lanes of the right-of-carriageway. The potential unacceptable use of the right-of-carriageway for parking of vehicles was a significant issue raised by a number of residents in the adjoining residential flat building at 41 Smith Street. 34 The appropriateness of a Plan of Management is addressed in Ronaldo Plus 3 Pty Limited v Hurstville City Council (2005) NSWLEC 315 (at par 54) where a number of questions should be considered. These are: 1. Do the requirements in the Management Plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the Management Plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the Management Plan be readily identified to allow for any enforcement action? 4. Do the requirements in the Management Plan require absolute compliance to achieve an acceptable outcome? 5. Can the people the subject of the Management Plan be reasonably expected to know its requirements? 6. Is the Management Plan to be enforced as a condition of consent? 7. Does the Management Plan contain complaint management procedures? 8. Is there a procedure for updating and changing the Management Plan including the advertising of any changes? 35 The evidence focused on question 4, that is, whether the requirements of the Plan of Management require absolute compliance to achieve an acceptable outcome and question 5, that asks whether people the subject of the management plan be reasonably expected to know of its requirements. 36 On question 4, I am satisfied the answer is no. In the event that a person parks in the right-of-carriageway in excess of the allocated five minutes for checking in and checking out, then the consequence is that a vehicle seeking to use the right-of-carriageway will simply move to the other side of the right-of-carriageway to pass in the same way that a vehicle would need to negotiate the right-of-carriageway if a vehicle was parked within the allocated five minutes. There are no issues with sight distance and the amount of vehicular movements on the right-of-carriageway is likely to be relatively small. In the rare event that a vehicle is using the other side of the right-of-carriageway then it will simply be a matter of waiting to let the other vehicle pass. At worst, there will be a minor inconvenience. 37 For question 5, I am satisfied that the future patrons could be advised of the relevant requirements of the Plan of Management when they check in. If there is a non-compliance with the Plan of Management, adequate complaints handling procedures are provided. Resident concerns 38 In terms of resident objections and based on the Amended Statement of Facts and Contentions, the relevant concerns raised by the residents and not addressed previously are: 1. the provision of car parking, 2. the potential use of the site as a licensed hotel, 3. noise, and 4. loss of trees. Car parking 39 There was no dispute from the council that the proposed development satisfies the requirements in DCP 2007 or DCP 2009 for the number of car parking spaces so the concern over lack of car parking is not substantiated and would not be a reason to refuse the application. Use of the site as a licensed hotel 40 The proposal does not include any part of the premises to be used as a licensed hotel. A new development application would need to be submitted for a licensed hotel as this is a separate and distinct use to that proposed in this application. If submitted the opportunity would be available for public comment. Noise 41 On the question of noise, no acoustic evidence was provided as it was not a specific contention raised by the council. Given the similar characteristics to the existing serviced apartments and the evidence of Mr McLaren, additional noise will not be an issue, in my view, that would substantiate the refusal of the application. Tree loss 42 On the issue of tree loss I did not understand the applicant to provide for the removal of any existing trees. In fact, the applicant has provided an arborist's report on the best means of retaining the existing vegetation on the site. Conditions 43 The only condition in dispute is condition 4. This condition provides for a 12 month trial period for the proposed use. The condition is opposed by the applicant because it is unnecessary given the similarity with the proposed use, the additional protection offered by the Plan of Management and the cost of complying with the conditions of consent. I concur with this submission but principally on the basis that the merit assessment of the application provided no valid basis for a trial period. Costs 44 The council also sought an order under s 97B of the Environmental Planning and Assessment Act 1979 for costs payable for amendments to the application. At the commencement of the proceedings, leave was granted to rely on amended plans but subject to the submissions on whether costs should be awarded to the council pursuant to s 97B at the conclusion of the hearing. The affidavit of Kendall Webb dated 20 July 2010 was read and contained details of the differences between the plans lodged with the appeal and the amended plans relied upon by the applicant. These are: 1. The kerb on the eastern side of the car park has been straightened and the car spaces on that side have been reduced by one. 2. The car spaces on the southern boundary of the car park have been increased by one. 3. The car spaces in the middle aisle of the car park have been reduced by one. 4. The eastern end of the centre wall of the car park has been relocated. 5. The directional flow within the car park has been changed to one way. 6. The layout of car spaces in the car park adjacent to the rear entrance of the building has been altered. 7. The overall number of car spaces in the car park has been reduced from thirty to twenty-nine. 8. Drop off notation has been added to the plan at the reception area. 9. Accessibility items have been added to the plan in accordance with the Relf report and plan. The accessibility items identified in the Relf report are set out in the applicant's solicitor's letter of 26 July 2010 and include: (i.) Low rise platform lift to be installed on reception steps. (ii.) Auto sliding door to be incorporated into reception entrance. (iii.) Low rise platform lift to be installed at steps within the reception foyer area. (iv.) Stairs to have upgraded handrails and tactile ground surface indicators and luminescent contrasting step nosings. (v.) Rear entry doorway to be modified to provide for a raised level surface with one in ten ramp transition to car park. (vi.) Install active door leaf with lever handles to rear doors. (vii.) Folding stairway platform lift to be installed on the stairs in the middle of the ground floor corridor. (viii.) Rehanging room 13 door. (ix.) Modify bedroom door of room 13. (x.) New grab rails and toilet seat for the bathroom of room 13. Modify bathroom door. (xi.) All doors in room 13 to have new lever door handles. (xii.) Lower microwave over bench height in kitchen at room 13. (xiii.) Raise the outdoor deck of room 13. (xiv.) Make similar changes to room 7 including enlargement of the bedroom and relocation of the external door as set out on the plan. 45 Section 97B provides that an applicant may file an amended application other than to make minor amendments and, if so, the Court must make an order for the payment by the applicant of those costs as set out in s 97B(2). In Future Space Pty Limited v Ku-ring-gai Council (2009) NSWLEC 15, Pepper J [at 42] reviews the relevant recent authorities and sets out eight principles for assisting the determination of what may constitute minor for the purposes of s 97B. These can be summarised as: - the question of what is minor is one of fact and degree. - regard must be had not to the number of amendments but to their cumulative or overall effect in the context and location of the proposed development. - where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor. - merely because the amendments involve a change in concept does not mean that they are not minor. - merely because the amendments do not raise an entirely new issue does not mean that they are not minor. - merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor. - the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor. - an absence of evidence by the consent authority that costs will be incurred or will be undertaken by it in relation to the proposed amendments may be taken into account but it is not determinative. 46 In terms of those matters raised in Future Space and specifically the second dot point, there are a number of amendments. However, they fall into a number of distinct categories, being: - line marking for circulation, identifying car spaces and drop off and new pick up area, - physical work such as relocating retaining walls and kerbs, and - disability compliance works. 47 If tested against the third dot point above from Future Space above, the test involves a consideration of whether "a significant assessment of the development application is required by the proposed amendments." In this regard, and considering the grouping of the amendments in par 46, I am satisfied that the line marking amendments are minor. Line marking of the car park was always proposed as part of the application and the amendments, while marginally changing the location of some car spaces, require only a minor assessment as part of the development application. 48 For the identified physical works, I come to a similar conclusion. There is only a small relocation of the retaining wall from its original position and the re-alignment of the kerb is similarly only a small distance from its original position. I do not accept that a significant re-assessment of the development application is required given the small changes to the location of the retaining wall and kerb in the context of the application. 49 For the disability compliance works, I am also satisfied that these are minor. The changes were identified in some detail in the report of Mr Relf. The report was explicit in the required changes. In my view, the requirements in the Relf report could have quite simply be included as a condition of development consent. The inclusion of the changes in the amended plans were helpful, but not necessary, in my view. Consequently, the changes did not generate a need for a significant re-assessment of the application. 50 For these reasons, an order under s 97B for costs cannot be justified in this case. Orders 51 The orders of the Court are: 1. The appeal is upheld. 2. Development Application No 2009/867 for the use of an existing serviced apartment building for motel accommodation at 39 Smith Street Wollongong is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 3, A and B. 4. No order for costs under s 97B of the Environmental Planning and Assessment Act 1979. ___________________ G T Brown Commissioner of the Court Annexure A Conditions of consent Use of an existing serviced apartment building for hotel accommodation at 39 Smith Street, Wollongong 1. The development is to be carried out in compliance with the plans and documentation listed below, except where amended by other conditions of this consent: Site analysis, site and locality plan - number 05-036-DA-01 - dated May 2010 revision C - PRD Architects Ground floor and first floor plan - number 05-036-DA-02 - dated May 2010 revision H - PRD Architects Plans and Statement of Environmental Effects prepared by JBA Urban Planning Consultants dated 21 May 2009 Specifications Plan of Management dated July 2010 (marked as Attachment 1) Accessibility Audit prepared by Accessibility Solutions dated 19 July 2010 Arborists Report by Moore Trees Consulting dated 15 July 2010 GENERAL Building Work - Compliance with the Building Code of Australia 2. All new building work must be carried out in compliance with the provisions of the Building Code of Australia. Drop off zone/right of carriageway 3. The right of carriageway must not be impeded at any time except that a single carparking space may be provided to serve as a drop off zone directly in front of the reception entry. Parking in the drop off zone is to be restricted to a period of 5 minutes duration only, at all times except between the hours of 4pm-6pm Monday –Friday (during which there is to be no stopping or parking in the drop off zone). The drop off zone must be line marked and signposted so as to indicate that parking is restricted to 5 minutes duration and permitted at all times except between the hours of 4pm-6pm Monday –Friday. The requirements of this condition also apply to delivery vehicles, taxis and any vehicles involved in the carrying out of the development the subject of this consent. Construction Certificate 4. A Construction Certificate must be obtained from Council or an Accredited Certifier prior to any building work commencing. A Construction Certificate certifies that the provisions of Clauses 139-148 of the Environmental Planning and Assessment Amendment Regulations, 2000 have been satisfied, including compliance with all relevant conditions of Development Consent and the Building Code of Australia. The submission to Council of two (2) copies of all stamped Construction Certificate plans and supporting documentation is required within two (2) days from the date of issue of the Construction Certificate, in the event that the Construction Certificate is not issued by Council Disability Discrimination Act 1992 5. This consent does not imply or confer compliance with the requirements of the Disability Discrimination Act 1992. It is the responsibility of the applicant to guarantee compliance with the requirements of the Disability Discrimination Act 1992. The current Australian Standard AS1428.1 – Design for Access and Mobility is recommended to be referred for specific design and construction requirements, in order to provide appropriate access to all persons within the building. PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE Disabled Access and Facilities 6. Access and facilities for people with a disability must be provided throughout the development in accordance with the Accessibility Audit Report prepared by Accessibility Solutions dated 19 July 2010. Parking and Access 7. The development shall make provision for a total of 29 car parking spaces. This requirement shall be reflected on the Construction Certificate plans. Any change in above parking numbers shown on the approved DA plans shall be dealt with via a section 96 modification to the development. The approved parking spaces shall be maintained to the satisfaction of Council, at all times. Parking dimensions 8. The parking dimensions, circulation, aisle widths, kerb splay corners, and grades of the car parking areas are to be in conformity with the current relevant Australian Standard AS2890.1 (2004), except where amended by other conditions of this consent. Details of such compliance are to be reflected on the Construction Certificate plans. Disabled parking 9. Each disabled person's parking space must have a minimum dimension in compliance with AS2890.1 2004. This requirement shall be reflected on the Construction Certificate plans. Line marking 10. The development shall make provision for suitable barriers, line-marking and painted signage delineating vehicular flow movements within the car parking areas where indicated on the approved plans. These details shall be reflected on the Construction Certificate plans. Separation of access road 11. The car parking areas and internal access roads shall be separated from the landscaped bays by means of a kerb or concrete dwarf wall. All kerbs required to act as wheel stops shall have a maximum height of 100 mm aboveground. These details shall be reflected on the Construction Certificate plans. Low Impact Floodlighting 12. The car parking areas shall incorporate 'low impact' floodlighting to ameliorate any light spillage and/or glare impacts upon surrounding properties. The final design details of the proposed floodlighting system shall be reflected on the Construction Certificate plans. The erection of the floodlighting system shall be in accordance with the approved final design. Tree Protection and Management 13. The existing trees are to be retained upon the subject property and any trees on adjoining properties shall not be impacted upon during the excavation or construction phases of the development. This will require the installation and maintenance of appropriate tree protection measures, including (but not necessarily limited to) the following: a. Installation of Tree Protection Fencing - Protective fencing shall be 1.8 metre cyclone chainmesh fence, with posts and portable concrete footings. Details and location of protective fencing must be indicated on the architectural and engineering plans to be submitted to the Principal Certifying Authority prior to release of the Construction Certificate. b. Installation of Tree Protection Fencing - A one (1) metre high exclusion fence must be installed around the extremity of the dripline of the tree/trees prior to any site works commencing. The minimum acceptable standard is a 3 strand wire fence with star pickets at 1.8 metre centres. This fence must be maintained throughout the period of construction to prevent any access within the tree protection area. Details of tree protection and its locations must be indicated on the architectural and engineering plans to be submitted to the Principal Certifying Authority prior to release of the Construction Certificate. This requirement applies only to trees where works are taking place nearby. c. Mulch Tree Protection Zone: Areas within a Tree Protection Zone are to be mulched with minimum 75 mm thick 100% recycled hardwood chip/leaf litter mulch. d. Irrigate: Areas within the Tree Protection Zone are to be regularly watered in accordance with the arborist's report referred to in condition 1. Provision of Hob or Dish Drain 14. The edge of the driveway and hard stand areas must be provided with a hob or dish drain to prevent surface water flows from entering the adjoining property. This requirement shall be reflected on the Construction Certificate plans, prior to the release of the Construction Certificate. PRIOR TO COMMENCEMENT OF WORKS Appointment of Principal Certifying Authority 15. Prior to commencement of work, the person having the benefit of the Development Consent and a Construction Certificate must: a. Appoint a Principal Certifying Authority (PCA) and notify Council in writing of the appointment. irrespective of whether Council or an accredited private certifier is appointed (if Council is nominated as the PCA please use the attached form) and b. notify Council in writing (on the attached form) of their intention to commence the erection of the building (at least two days notice is required). The Principal Certifying Authority must determine when inspections and compliance certificates are required. Sign – Supervisor Contact Details 16. Before commencement of any work, a sign must be erected in a prominent, visible position: a. stating that unauthorised entry to the work site is not permitted; b. showing the name, address and telephone number of the Principal Certifying Authority for the work; and c. showing the name and address of the principal contractor in charge of the work site and a telephone number at which that person can be contacted at any time for business purposes. 17. This sign shall be maintained while the work is being carried out and removed upon the completion of the construction works. Temporary Toilet/Closet Facilities 18. 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. a standard flushing toilet; and b. connected to either: c. the Sydney Water Corporation Ltd sewerage system or d. an accredited sewage management facility or e. an approved chemical closet. 19. The toilet facilities shall be provided on-site, prior to the commencement of any works. Supervising Arborist - Tree Inspection and Installation of Tree Protection Measures 20. Prior to the commencement of any demolition, excavation or construction works, the supervising arborist must certify in writing that tree protection measures have been inspected and installed in accordance with the arborist's recommendations and relevant conditions of this consent. Stormwater Disposal 21. Stormwater from the car park shall be piped to the existing on-site stormwater drainage system. Notification to Surrounding Residents 22. Work must not commence unless at least 2 days written notice has been given to adjoining residents of the date on which works will commence. DURING DEMOLITION EXCAVATION/CONSTRUCTION Construction plan of management (CMP) 23. The person having the benefit of the Development Consent must ensure that the CMP that forms part of the approval documentation is complied with at all times. These requirements include but are not limited to the following: a. The right of carriageway is to remain unrestricted for a full width at all times, except as set out below. b. At least 48 hours prior to any events that will create restriction to access within the right of carriageway, the person having the benefit of this consent must notify all affected adjoining owners of such events. c. During any such events, a half width of carriageway must be provided for access at all times. Such access is to be supervised by appropriately qualified traffic controllers to maintain the safety of all users of the right of carriageway. Demolition Works 24. No demolition materials shall be burnt or buried on-site. The person responsible for the demolition works shall ensure that all vehicles leaving the site carrying demolition materials have their loads covered and do not track soil or waste materials onto the road. Any unforeseen hazardous and/or intractable wastes shall be disposed of to the satisfaction of the Principal Certifying Authority. In the event that the demolition works may involve the obstruction of any road reserve/footpath or other Council owned land, a separate application shall be made to Council to enclose the public place with a hoarding or fence over the footpath or other Council owned land. No Adverse Run-off Impacts to Adjoining Neighbours 25. The design of the development shall ensure there are no adverse effects to adjoining properties or upon the land as a result of flood or stormwater run-off. Attention must be paid to ensure adequate protection for buildings against the ingress of surface run-off. Waste Management 26. The developer must provide an adequate receptacle to store all waste generated by the development pending disposal. The receptacle must be regularly emptied and waste must not be allowed to lie or accumulate on the property other than in the receptacle. Consideration should be given to the source separation of recyclable and reusable materials. Erosion and Sediment Control Measures 27. Erosion and sediment control devices are to be installed prior to the commencement of any demolition, excavation or construction works upon the site. These devices are to be maintained throughout the entire demolition, excavation and construction phases of the development and for a minimum three (3) month period after the completion of the project, where necessary. Restricted Hours of Work (not domestic residential scale) 28. The developer must not carry out any work other than emergency procedures to control dust or sediment laden runoff outside the hours of 7.00 am to 5.00 pm, Monday to Friday and 7 am to 1.00 pm Saturdays without the prior written consent of the Principal Certifying Authority and Council. 29. No work is permitted on public holidays, Sundays or the Saturday adjacent to public holidays on Mondays or Fridays. Any request to vary these hours shall be submitted to the Council in writing detailing: a. the variation in hours required; b. the reason for that variation; c. the type of work and machinery to be used. 30. The developer is advised that other legislation may control the activities for which Council has granted consent including but not limited to the Protection of the Environment Operations Act 1997. Developers must note that EPA Environmental Noise manual restricts use of power tools (electronic or pneumatic) to between the hours of 7.00 am to 5.00 pm Mondays to Fridays and 8.00 am to 4.00 pm on Saturdays. USE OF SITE/OPERATIONAL Plan of management (POM) 31. The person taking the benefit of this Development Consent must ensure that the POM that forms part of the approval documentation is complied with at all times. Particular attention is drawn to the requirements of Condition 3, which must be complied with at all times. 32. The POM forms part of this consent. Any amendment to the requirements of the POM must be effected by an application to modify this consent under section 96 of the Environmental Planning and Assessment Act. Lighting not to Cause Nuisance 33. The lighting of the premises including the carpark must be directed so as not to cause nuisance to the owners or occupiers of adjoining premises or to motorists on adjoining or nearby roads. Hotel Accommodation 34. Subject to condition 38, the development shall only operate as hotel accommodation, that is as a building (whether or not a hotel within the meaning of the Liquor Act 1982) that provides tourist and visitor accommodation consisting of rooms or self-contained suites. Limitations on hotel use 35. Development consent is not granted for use of the building as a licenced premises, a restaurant, backpackers' accommodation, a boarding house, bed and breakfast accommodation, serviced apartments or any other use that is not for the purposes of hotel accommodation. _______________ G T Brown 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.