Land and Environment Court of New South Wales CITATION : 777 OSH Pty Ltd v Waverley Council [2010] NSWLEC 138 APPLICANT: 777 OSH Pty Ltd PARTIES : RESPONDENT: Waverley Council FILE NUMBER(S) : 10342 of 2010 CORAM: Biscoe J KEY ISSUES: DEVELOPMENT CONSENT :- deemed refusal - mixed development - appeal allowed and development consent granted. LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97(1) CASES CITED: Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58, 173 LGERA 240 DATES OF HEARING: 30 July 2010 DATE OF JUDGMENT: 30 July 2010 APPLICANT: Ms S Hill SOLICITORS: Susan Hill and Associates LEGAL REPRESENTATIVES: RESPONDENT: Mr S Patterson SOLICITORS Wilshire Webb Staunton Beattie JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Biscoe J 30 July 2010 10342 of 2010 777 OSH Pty Ltd v Waverley Council JUDGMENT 1 His Honour: This is an appeal under section 97(1) of the Environmental Planning and Assessment Act 1979 against the deemed refusal by Waverley Council of a development application which proposed alterations and additions to an existing building and change of use from a conference centre to a mixed use development. 2 I acknowledge the assistance of Commissioner Morris. 3 Initially, the proceedings involved an issue in relation to whether existing use rights applied to the property. However this is not pressed and, therefore, only the merits of the application remain to be determined. 4 The issues between the parties have been resolved and they are seeking consent orders from the Court allowing the appeal and granting development consent subject to conditions. 5 The property is known as 773-777 Old South Head Road, Vaucluse and is on the eastern portion of Old South Head Road opposite the intersection of New South Head Road. It is zoned 3(c) Business Neighbourhood under the provisions of Waverley Local Environmental Plan 1996 (the LEP). 6 It is the only parcel of land that is zoned Business Neighbourhood, the surrounding land being zoned Residential 2(c1). 7 The property is made up of two separate lots and contains a 3 storey building with basement car parking and a swimming pool. The land is irregular in shape with a frontage to Old South Head Road of 20.17 metres, a northern frontage of approximately 35.64 metres facing Christison Park and a southern boundary of 50.155 metres while the eastern boundary is 15.045 metres. The total area is 618.7 square metres. The land falls towards Old South Head Road and is located at the lowest level of the adjoining local business centre. Current development comprises a three storey building with basement car parking and a rooftop containing a range of telecommunication towers. The parties agree that the existing development is visually unattractive. 8 The property is not listed as an item of heritage significance and is not within a heritage conservation area and is not located within a residential character study area of the respondent. 9 Adjoining the site to the north is Christison Park. To the south and at the rear are residential flat buildings and small scale shop/commercial premises. To the east are a mix of residential flat buildings and dwellings, Clarke Reserve and the Ocean. To the West across Old South Head Road are low scale residential dwellings. 10 The adjoining residential development contains a mix of single story residential dwellings up to high-rise residential flat buildings. The predominant residential zoning in the locality is Residential 2(c1) which, according to the expert planners, permits residential flats up to a maximum wall height of 9.5 metres and an overall maximum height of 12.5 metres incorporating a potential fourth level comprising an attic or part storey subject to compliance with relevant planning controls. 11 Adjoining the site to the North is Christison Park, which is in the Woollahra Local Government Area, the site being located at the boundary of two local government areas. The park is an active recreation area predominantly comprising sports playing fields. The proposed development is orientated to the north towards the park. Statutory Controls 12 The primary statutory controls are: Waverley Local Environmental Plan 1996 (LEP). The proposal constitutes a "mixed development" which is permissible with consent in the 3(c) zone. Development Control Plan 2006 (Amendment No.4) (DCP). State Environmental Planning Policy No.65- Design Quality of Residential Flat Development (SEPP 65). State Environmental Planning Policy No.1 (SEPP 1). 13 Mixed development is defined in Schedule 2 to the LEP as follows: "mixed development means a residential flat building, dual occupancy, dwelling-house, boarding house, hostel or serviced apartment within the same building as shops, commercial premises or any other non-residential use." 14 A Joint Planning Report was prepared by the parties' planners, Ms K Gordon for the Council and Mr T Moody for the applicant. Following the finalisation of their report, further discussions were held regarding an amended proposal. The amended proposal now before the Court comprises additional indents on the northern façade, the provision of substantial planter beds on the northern façade, and the provision of trees in the rear yard area considered necessary by Ms Gordon. The amended proposal also provides further details of the proposed access to the ground floor coffee shop, which were considered necessary by the planning experts. Finally, the amended plans provide increased setbacks to the fourth floor level from both the northern (facing Christison Park) and western (facing Old South Head Road) boundaries and a reduction in the depth of the awning projecting over the balconies to those frontages at that level. The increases in setback are intended to reduce the visibility of the fourth floor and were considered necessary by Ms Gordon. The planning experts both support the amended plans now before the Court. 15 There is only one objection to the proposal which covers issues of the treatment of the telecommunication towers and the provision of blinds. 16 In relation to the existing telecommunication towers, the amended proposal will consolidate the towers into a smaller area on the roof and the towers will be set back a greater distance from the boundary than the existing towers. 17 More importantly, the equipment shelters will be consolidated into a communications room within the basement carpark area. 18 The planning experts consider that these measures will improve the existing streetscape. However, Ms Gordon considers it appropriate to alter the shape (but not the location) of the area proposed for the telecommunication towers to maximise the setback from Old South Head Road and minimise the visibility of the structures. This is required by proposed agreed Condition 2(e). Responding to the objector's concerns, that condition was amended during the proceeding to minimise the size of the equipment area on the roof. I am satisfied that the condition as amended will significantly reduce the visual impact of the towers. 19 In relation to the objector's point that blinds should be provided and style and colour mandated, the planning experts agree that the proposed overhangs will assist in shading of the proposed development and that it is not reasonable to seek control of the design by internal blinds or curtains. I do not consider that it is necessary to control the window furnishings within the proposed development. Contentions 20 Existing Use Rights: There was a contention raised by Council that the applicant had not provided sufficient information to establish that the site enjoys existing use rights. For its part, the applicant asserted that the subject site enjoyed existing use rights for a residential executive training lodge which it contends continues up the current date. However, given the agreement of the parties to the current amended proposal, on the basis of the application being for a permissible use within the zone and relying upon the submitted SEPP 1 objections, the applicant decided not to press the issue of existing use rights in these proceedings but to reserve its rights on this issue. 21 SEPP 1 Objection: The proposal breaches two development standards under the LEP, being Height and Floor Space Ratio (FSR). 22 Clause 27 of the LEP limits the FSR in the 3(c) zone to 1:1 where the development incorporates residential accommodation within a mixed development. The development satisfies this requirement and accordingly the 1:1 control applies. The existing building has a FSR of 1.76:1 and the proposed FSR is 2.45:1. 23 Clause 28 of the LEP establishes height controls for development in business zones and provides for a maximum height of nine metres. The existing building has a height of 14.13 metres including the communication structures and the proposed height is 14.48 metres. 24 Given the recent decision in Iris Diversified Property Pty Ltd v Randwick City Council [2010] NSWLEC 58, 173 LGERA 240 (Pain J) the applicant lodged SEPP 1 objections relating to Height and Floor Space Ratio on a "without admission basis." As the applicant no longer seeks to rely upon existing use rights for the purposes of this appeal, the assessment of the proposed development has proceeded in reliance upon those SEPP 1 objections. 25 Ms Gordon for Council considered that the SEPP 1 objections relating to the original proposal were not well founded but Mr Moody for the applicant disagreed. However, Ms Gordon now considers that the amended proposal, which incorporates her recommended landscaping treatment and additional indents on the northern facade and increased fourth floor setbacks, results in a supportable development. Accordingly, both planning experts now agree, as do I, that the SEPP 1 objections are well founded. 26 Although the variations to both the floor space ratio and height controls are significant, I agree with the conclusions of the planning experts that these variations are appropriate in the context of the site and its proximity to the Residential 2(c1) zone. 27 Streetscape: The primary issue between the parties relating to the original proposal was the height, bulk and scale of the proposed development. Mr Moody considered that the original proposal was a very good development for the reasons outlined in the Joint Experts' Report. Mr Moody particularly referred to the very favourable comments of the Council's SEPP 65 Panel and also noted that the adjoining residential area had the capacity under its current 2(c1) zoning to be potentially developed up to 3 storeys with an additional fourth storey by way of an attic or part storey. 28 Both planning experts agree that greater weight should be given to the likely scale of development contemplated under the 2(c1) zoning rather than the existing development. Mr Moody also considered that, as the site was at a prominent intersection, additional height was justified particularly in light of the favourable comments of the SEPP 65 Panel and a publication by the Urban Design Advisory Service entitled 'Mixed Use in Urban Centres'. 29 Ms Gordon disagreed, considering that the site was not located on a corner, but opposite an intersection at a low point as viewed from Old South Head Road and Christison Park and as such additional height was not warranted to provide for a corner treatment. Ms Gordon considered that the proposed northern facade required additional softening by the provision of indents in the northern facade and the provision of significant planter beds for mature trees and that the fourth floor required additional setbacks in order to make it appear as an architectural treatment of the building rather than an additional floor as viewed from the areas immediately surrounding the site. Ms Gordon considered these modifications were required to bring about a satisfactory development. 30 Following the recommendation of Ms Gordon, the applicant agreed to her amendments, which have led to the current amended proposal before the Court which is supported by both planning experts. 31 The Council's Design Review Panel has considered the application and had made a series of recommendations. These recommendations are now incorporated in the amended plans. 32 The Panel conclusion was that 'Given the design qualities, the Panel commends this proposal to the Council.' 33 Landscaping: Both planning experts agree that the existing development provides minimal landscaping and the proposed development represents an improvement of landscaping on the site, particularly on the eastern portion and on the rear southern boundary. Whilst acknowledging that the original proposal represented an improvement compared to the existing situation, Ms Gordon sought additional significant landscaping on the northern facade, which has now been incorporated in the additional plans before the Court. 34 Public Interest: There is only one current objection to the proposal and a point of objection relates to a perceived need for blinds on the proposed windows and a concern relating the treatment of the existing telecommunication towers. These matters are discussed above. 35 Overall, the planning experts agree that the amended proposal is supportable particularly in terms of streetscape impact, which was the primary impact of concern between the experts. Ms Gordon considers that the provision of indents and significant landscaping and increased setbacks to the fourth floor renders the current amended proposal supportable. 36 The planning experts discussed a list of potential benefits arising from the proposal and they agreed as follows: The proposal represents a permissible mixed development in contrast to the existing prohibited development. The planning experts agree that this is a positive benefit. The proposal achieves the relevant objectives of the current zoning whereas the existing development does not. The proposal will achieve a compatible interface with the street by the provision of a coffee shop whereas the existing development does not. The proposal will contribute to the vitality of the neighbourhood centre and the amenity for users of the park. The proposal will improve landscaping on the site compared to the existing development, particularly in light of the amendments sought by Ms Gordon on the northern facade. The proposal represents an improved architectural presentation compared to the existing. There will be an improved acoustic environment subject to the agreed proposed conditions, which relate to the acoustic treatment and location of plant and equipment. There will be a substantial decrease in overlooking onto the adjoining townhouses to the south subject to the agreed proposed conditions relating to privacy measures. On this point, the planning experts noted that the existing large picture windows currently provided on the southern facade would be removed. The removal of the existing commercial kitchen facilities and its associated exhaust represents an improvement. There will be no additional unreasonable amenity impacts on adjoining properties. There may be an improvement in perceived and actual security of users of Christison Park by providing residential units overlooking the park. 37 Overall, the planning experts agree that the amended proposal represents positive benefits on a range of planning, architectural and amenity matters particularly in relation to a number of SEPP 65 principles such as amenity, landscaping and security. 38 I accept the planning experts' assessment of the merits including that the proposed development will represent a major visual improvement to the current building on the site and will accord with the intended zoning provisions by the development of the land for the purposes of a mixed development. 39 The reuse of an existing building is considered to have positive environmental benefits. Orders 40 The Orders of the Court are that: 1. The appeal is upheld. 2. The applicant is granted leave to rely upon the following amended plans prepared by Brian Meyerson Architects: 2.1. DAOOB - Cover sheet 2.2. DA01 B - Site analysis plan 2.3. DA02B - Basement and Ground Floor Plan 2.4. DA03B - First and Second Floor Plan 2.5. DA04B - Attic Floor Plan and Site/Roof Plan (as amended in red) 2.6. DA05B - Elevations 2.7. DA06B - Sections 2.8. DA07B - Landscape plan 3. Development Application 116/2010 for alterations and additions to the existing building at 773 & 777 Old South Head Road, Vaucluse (Lot 1 DP7334 and Lot 13 DP900749) and conversion to a mixed use development with a retail shop at ground level, 9 residential units including a penthouse and 14 car spaces with associated landscaping is determined by the granting of development consent subject to the conditions in Annexure A. 4. The applicant is to pay the respondent's costs pursuant to s 97B of the Environmental Planning and Assessment Act 1979 as agreed or assessed within 28 days of the date of these orders. 5. The exhibits except Exhibit A may be returned. SCHEDULE A 777 OSH PTY LTD ATS WAVERLEY COUNCIL - APPEAL NO. 10342 OF 2010 CONDITIONS FOR DEVELOPMENT APPLICATION NO. 116/2010 1. APPROVED DEVELOPMENT The development must be in accordance with: (a) Architectural Plan No. DA02 to DA07, Revision B, and DA08, Revision A (finishes schedule and waste management plan only) prepared by Brian Meyerson Architects Pty Ltd dated 26/07/2010, except where amended by the following conditions of consent; (b) The BASIX Certificate; (c) The Site Waste and Recycling Management Plan (SWRMP) and Checklist, in accordance with the SWRMP Checklist of Part G1, Waverley DCP 2006; (d) Stormwater Management Plan, Job No. 200916, Sheet 1 of 1, Revision A, dated 10 March 2010, prepared by Islecrest Pty Ltd Consulting Civil/Hydraulic Engineer; (e) BCA Report - Fire Safety Upgrade, Hob No. 2009.045, dated March 2010, prepared by Fahrenheit Fire Engineers; and (f) Arboricultural Assessment, Reference 210710, dated July 2010, prepared by Botanics. 2. GENERAL MODIFICATIONS The proposal shall be amended as follows: (a) The provision of a fire isolated stairway serving all residential units and discharging directly to a road or open space in accordance with Clauses D1.3, D1.7, Parts C2, C3 & D2 of the Building Code of Australia or alternately provide a fire engineered alternative solution to satisfy the relevant performance requirements of the Building Code of Australia; (b) All hallway windows within the southern elevation of the building are to be provided with obscure glazing; (c) The bedroom windows of Units 06 and 08 and the windows within the room adjacent to bedroom 3 of Unit 08 within the southern elevation of the building are to be provided with either obscure glazing or be provided with other privacy measures such as highlight windows or screens; (d) All air-conditioning units on the eastern half of the roof are to be removed and no other structures or equipment are to be erected on this portion of the roof; (e) All telecommunication devices, equipment and structures are to be consolidated into a single location and the shape of the specified area generally as shown in red on plan DA04B is to be redesigned to have a maximum setback from Old South Head Road to minimise its visibility. No equipment in this area is to be higher than the existing equipment on the building; and (f) All plant and equipment is to be located away from the southern facade of the building. The amendments shall be submitted for the approval of Councilor the PCA prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. 3. EXCAVATION TO BE LIMITED Excavation shall be limited to that shown in the approved plans. Excavation, proposed or undertaken in the certification or construction of the development, that results in additional habitable or non-habitable floor space (including storage) shall require the submission of a new development application or Section 96 application to modify the. approved development. During consideration of this application construction work on site shall cease without prior agreement of Council. Failure to comply with this condition may lead to Council prosecuting or taking a compliance action against the development for breach of its consent. B. COMPLIANCE PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE 4. SECTION 94A CONTRIBUTION A cash contribution is payable to Waverley Council pursuant to Section 94A of the Environmental Planning and Assessment Act 1979 and the 'Waverley Council Development Contributions Plan 2006' in accordance with the following: (a) A cost report indicating the itemised cost of the development shall be completed and submitted to Council: (i) Where the total development cost is less than $500,000: "Waverley Council Cost Summary Report"; or, (ii) Where the total development cost is $500,000 or more: "Waverley Council Registered Quantity Surveyor's Detailed Cost Report". (b) Prior to the issue of the Construction Certificate, evidence must be provided that the levy has been paid to Council in accordance with this condition or that the cost of works is less than $100,000. Waverley Council Development Contributions Plan 2006 may be inspected at Waverley Council Customer Service Centre, 55 Spring Street, Bondi Junction. Advisory Note A development valued at $100,000 or less will be exempt from the levy. A development valued at $100,001 - $200,000 will attract a levy of 0.5%. A development valued at $200,001 or more will attract a levy of 1 % based on the full cost of the development. 5. SECURITY DEPOSIT A deposit or guarantee satisfactory to Council for the amount of $15,000.00 must be provided as security for the payment of the cost of making good any damage that may be caused to any Council property as a consequence of this building work. This deposit or guarantee must be established prior to the issue of the Construction Certificate. The full amount of the difference after recovery of Council's cost for any repair of damage to Council property will be refunded after satisfactory completion of the building work to the person who paid the deposit. 6. LONG SERVICE LEVY A long service levy, as required under Section 34 of the Building and Construction Industry Long Service Payments Act, 1986, is to be paid in respect to this building work. In this regard, proof that the levy has been paid is to be submitted to Council prior to the issue of a Construction Certificate. Note: Council acts as an agent for the Long Service Payment Corporation and the levy may be paid at Council's office. The levy rate is 0.35% of building work costing $25,000 or more. 7. NO BUILDING WORKS PRIOR TO RELEASE OF CONSTRUCTION CERTIFICATE The building work, including demolition, must not be commenced until: (a) a Construction Certificate has been obtained from Council or an Accredited Certifier in accordance with Section 81A(2) of the Environmental Planning & Assessment Act, 1979; and (b) a Principal Certifying Authority has been appointed and Council has been notified of the appointment in accordance with Section 81 (A)(2)(b) of the Environmental Planning & Assessment Act, 1979 and Form 7 of Schedule 1 of the Regulations; and (c) Council is given at least two days Notice in writing of the intention to commence the building works. The owner/applicant may make application to Council or an Accredited Certifier for the issue of a Construction Certificate and to be the Principle Certifying Authority. 8. ESSENTIAL SERVICES - EXISTING BUILDING Details of the currently implemented and proposed essential fire safety measures shall be submitted to Councilor the PCA, with the Construction Certificate, in the form of a Fire Safety Schedule. This Schedule shall be prepared by a person competent to do so and shall specify the minimum standard of performance for each essential fire safety measure included in the Schedule. At the completion of the installation, a Final Fire Safety Certificate shall be attached to the Occupation Certificate, certifying that each essential fire safety measure specified within the current Fire Safety Schedule: (a) as been assessed by a properly qualified person; and (b) found to be capable of performing to at least the standard required by the current Fire Safety Schedule for the building for which the Certificate is issued. 9. SERVICE AUTHORITIES The applicant is to seek approval from Telstra and Sydney Water regarding any possible modification to the service authorities infrastructure prior to the issue of a Construction Certificate. 10. MECHANICAL PLANT Noise associated with mechanical plant shall not give rise to any one or more of the following: (a) Transmission of "offensive noise" as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy. (b) A sound pressure level at any affected property that exceeds the background (LA90, 15 Minute) noise level by more than 5dB(A). The background noise level must be measured in the absence of noise emitted from the premises. The source noise level must be assessed as a LAeq, 15 minute. (c) Notwithstanding compliance with (a) and (b) above, the noise from mechanical plant associated with the premises must not be audible in any habitable room in any residential premises between the hours of 12.00 midnight and 7.00am. (d) A Certificate is to be submitted at the completion of all work and prior to the issue of an Occupation Certificate, from a suitably qualified Acoustic Engineer. The Certificate is to certify all plant and equipment complies with the terms of the approval in relation to noise. 11. REFRIGERATION UNITS & MECHANICAL PLANT All motors/units and other mechanical plant are to be installed within the building in an acoustically treated plant room. In this regard, adequate provision is to be made within the confines of the building for any refrigeration motors/units or other mechanical plant associated with the use of the building. 12. PROVISION FOR SHAFT FOR FUTURE FOOD PREMISES Adequate provision shall be made for the installation of a mechanical exhaust system for future premises where food is prepared. This includes the provision of a shaft that complies with the Building Code of Australia, to the roof for the ductwork and the flue of the system. 13. MICROBIAL CONTROL (a) Any cooling towers and warm water systems must be operated and maintained in accordance with AS 3666, the Public Health Act, 19991 and Public Health (Microbial Control) Regulation 2000. (b) A true copy of the annual certificate as stipulated in clause 9(2) of the Public Health (Microbial Control) Regulation 2900 which certifies the effectiveness of the process of disinfection used for the water cooling tower, must be submitted to Council prior to the period ending 30 June each year. (c) Prior to commencement of the use the owner of the premises must apply to council for the registration of water cooling systems installed on the premises in accordance with the Public Health (Microbial Control) Regulation 2000. 14. SWIMMING POOLS The following requirements apply to the use and operation of the approved pool: (a) The pool water being treated by an approved water treatment and filtration unit. (b) The pool is to be fitted with a cover, that shall be fitted when the pool is not in use to minimise evaporation and conserve water. (c) To prevent noise nuisance to surrounding properties, the pool filtration motor and pump unit is to be housed within a ventilated soundproof enclosure. 15. HOARDING REQUIRED If required, hoarding designed and constructed in accordance with the requirements of the Work Cover Authority is to be erected on the street alignments of the property, prior to the commencement of building operations, a d such hoardings are to be maintained during the course of building operations. Details of the hoarding are to be provided to Council prior to issue of the Construction Certificate. Where the hoarding is to be erected over the footpath or any public place, the approval of Council must be obtained prior to the erection of the hoarding. 16. DETAILS OF BULK EXCAVATION, SHORING OR PILE CONSTRUCTION A report shall be prepared by a suitably qualified and practising Structural Engineer detailing the proposed methods of staging of demolition (types of materials to be removed from the site), bulk excavation, shoring or pile construction, including details of vibration emissions and any possible damage which may occur to adjoining or nearby properties as a result of the proposed demolition, building and excavation works. The Report shall be submitted to the Principal Certifying Authority, Council and the owners of adjoining properties prior to the issue of a Construction Certificate. Any practices or procedures specified in the Structural Engineer's report in relation to the avoidance or minimisation of structural damage to adjoining properties are to be fully complied with and incorporated into he plans and specifications together with the Construction Certificate. 17. SITE WASTE AND RECYCLING MANAGEMENT PLAN A Site Waste and Recycling Management Plan (SWRMP) Checklist Part 2 shall be submitted to the Principal Certifying Authority for approval in accordance with Part G 1, Waverley DCP 2006 prior to the issue of the Construction Certificate. In this regard, Council expects demolition and excavated material to be reused and/or recycled wherever possible. The builder and all subcontractors shall comply with the approved SWRMP (Part 1 and 2) at all times during construction. At least one copy of the SWRMP is to be available on site at all times during construction. 18. EROSION, SEDIMENT AND POLLUTION CONTROL Erosion, sediment and pollution control measures are to be implemented on this site. These measures are to be in accordance with Council's Stormwater Policy and are to be implemented prior to commencement of any work or activities on or around the site. Details of these measures are to be submitted to the Principal Certifying Authority prior to the issuing of a Construction Certificate. 19. STORMWATER MANAGEMENT Certification is to be provided from a suitably qualified professional, that the stormwater system has been designed in accordance with the Water Management Technical Guidelines. Stormwater system details are to be submitted in accordance with the Waverley Development Control Plan 2006 (Amendment No.4) - Part S, Clause 11.0, prior to the issue of a Construction Certificate. With regards to the stormwater system the Orifice diameter must be 80mm. 20. ENGINEERING DETAILS Structural details prepared and certified by a practicing Structural Engineer being furnished to Councilor Accredited Certifier in connection with all structural components prior to the issue of a Construction Certificate. 21. BASIX CERTIFICATE The undertakings provided in the BASIX Certificate shall be provided for in the Construction Certificate plans and documentation prior to the issue of the Construction Certificate plans. The Principal Certifying Authority shall be responsible for ensuring that all the undertakings are satisfied prior to the issue of an Occupation Certificate. The above condition is a prescribed condition under the Environmental Planning and Assessment Act Regulations clause 97 A and the above BASIX commitments are mandatory and can not be modified under Section 96 of the Environmental Planning and Assessment Act, 1979. 22. AMENDED LANDSCAPE PLAN The Landscape Plan is to be amended by the following changes: (a) Selected species of Melaleuca armillaris is to be substituted with a smaller growing melaleuca to 2m tall. (Melaleuca armillaris grows to approx 3-5 metres); and (b) Selected species of Acmena smithii is to be substituted with a smaller growing native shrub to a maximum of 2m (there is insufficient space on this site to grow tree species); The amended landscape plan is to be submitted to Waverley Council's Tree Management Officer or the PCA with the plans for the Construction Certificate. 23. LANDSCAPE MAINTENANCE PROGRAM A Landscape Maintenance Program is to be prepared to identify the method and frequency of maintenance of the communal landscaped areas, to include the two planter boxes located at the ground floor level at the northern facade of the building prior to the release of the Construction Certificate. The Landscape Maintenance Program is to include: (a) Details of level and frequency of maintenance to be provided (to be generally in accordance with the Arboricultural Assessment, Reference 210710, dated July 2010, prepared by Botanics); (b) Details of the method of access to maintain the communal landscaped areas; (c) Details of the watering system for the communal landscaped areas, which is to be supplied by water from the OSD system and is to include automated overhead watering of the trees within the ground floor planter boxes within the northern facade of the building; (d) Details of the requirement to replace landscaping as necessary to maintain the landscaping approved under the landscape plan; and (e) Identify the person/s responsible for carrying out the maintenance program, with maintenance required to be carried out by an appropriately qualified person. 24. USE OF RENEWABLE TIMBERS Council requires, wherever possible, the use of renewable timbers and/or plantation timbers such as Radiata Pine or Oregon as an alternative to the use of non-renewable rainforest timber products in buildings so as to help protect the existing areas of rainforest. In this regard, a schedule of proposed timber products to be used in the building is to be submitted for approval by the Principle Certifying Authority prior to the issue of the Construction Certificate. Where the applicant is to use timbers not recommended in Council's Policy, reasons are to be given why the alternative timbers recommended cannot be used. 25. VERTICAL SEPARATION OF OPENINGS Vertical separation of openings in the external walls of the building is to comply with Part C2 of the Building Code of Australia. Details as to the method of protection are to be provided in the plans prior to the issue of a construction certificate. 26. ALL OPENINGS IN EXTERNAL WALLS All openings in external walls located within 3m of fire source features are to be protected in accordance with Part C3 of the Building Code of Australia. Details as to the method of protection are to be provided in the plans prior to the issue of a construction certificate. 27. ENGINEERING DETAILS – CERTIFICATE OF STRUCTURAL ADEQUACY A Certificate of Adequacy prepared by a practicing Structural Engineer, certifying the adequacy of the existing building structure to carry the extra load of the proposed additions is to be provided to Councilor the Accredited Certifier prior to the issue of a Construction Certificate. 28. NSW FIRE BRIGADES In accordance with Clause 144 of the Environmental Planning and Assessment Regulations 2000 where building work involves an alternative solution to meet the performance requirements of the Building Code of Australia contained in anyone or more of the Category 2 fire safety provisions as defined under the Environmental Planning and Assessment Regulations 2000 the application for a Construction Certificate must be referred to the Commissioner NSW Fire Brigades in order to obtain an initial fire safety report prior to issue of the Construction Certificate. 29. FIRE SAFETY ENGINEER CERTIFICATION In accordance with Clause 144A of the Environmental Planning and Assessment Regulation 2000, where building work involves an alternative solution under the Building Code of Australia in respect of a fire safety requirement, a Compliance Certificate or written report is required to be obtained from a C10 Accredited Fire Safety Engineer certifying that the alternative solution complies with the relevant performance requirements of the Building Code of Australia, prior to the issue of a Construction Certificate. 30. WASTE STORAGE The following requirements apply to waste management: (a) A waste management plan must be submitted to Councilor the PCA to include all waste removal arrangements such as the Contractor, recyclables and all other waste (collection and disposal), prior to the occupation of the premises. (b) Provide a separate waste storage area suitably covered, bunded and drained to the sewer for the residential and non-residential uses within the site. The waste storage receptacles must be maintained in good order and repair at all times. The waste storage rooms must be of suitable size to allow storage of 5 x 240L MGB for garbage, 2 x 240L MGB for paper/cardboard and 1 x 240L MGB for other recyclables to be emptied weekly for the residential storage area and 1 x 240L MGB for garbage, 1 x 240L MGB for paper/cardboard and 1 x 240L MGB for other recyclables for the non residential use. The waste storage rooms are to be self-contained and have separate keys and locking systems. A supply of hot and cold water, mixed through a centralised mixing valve with a hose cock is to be provided within each waste storage room. The waste storage rooms are to be appropriately ventilated and details of the ventilation system are to be provided for approval, together with details of compliance with the area requirements prior to the release of the Construction Certificate. (c) Provide a suitable storage area affectively bunded for chemicals, pesticides and cleaning products. (d) Confer with Sydney Water regarding whether a Trade Waste Agreement is required. A copy of the agreement shall be forwarded to Council if one is entered into with Sydney Water. 31. ACCESSIBLE TOILET Toilet facilities shall be provided for disabled persons within the retail unit in accordance with the design .criteria in AS1428.1 (2001) - Design for Access and Mobility - General Requirements for Access - New Building Work. This requirement shall be reflected on the Construction Certificate plans. C. COMPLIANCE PRIOR TO AND DURING CONSTRUCTION 32. PRIOR TO SITE WORKS The Principal Certifying Authority must be informed in writing before any site works, building or demolition commences of: (a) the name and contractor licence number of the licensee who has contracted to do, or intends to do, work; or (b) the name and permit number of the owner/builder who intends to do the work; and (c) any change to these arrangements for doing of the work. 33. HOME BUILDING ACT The builder or person who does the residential building work shall comply with the applicable· requirements of Part 6 of the Home and Building Act, 1989. In this regard a person must not contract to do any residential building work unless a contract of insurance that complies with this Act is in force in relation to the proposed work. It is the responsibility of the builder or person who is to do the work to satisfy the Principal Certifying Authority that they have complied with the applicant requirements of Part 6, before any work commences. 34. CONSTRUCTION SIGNS Prior to commencement of any works on the site and during construction a sign shall be erected on the main frontage of the site detailing the name, address and contact details (including a telephone number) of the Principal Certifying Authority and principal contractor (the coordinator of the building works). The sign shall be clearly legible from the adjoining street/public areas and maintained throughout the building works. 35. EXCAVATION AND BACKFILLING All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with the appropriate professional standards and must be properly guarded and protected to prevent them from being dangerous to life or property. 36. EXCAVATION BELOW FOOTINGS If an excavation associated with the erection or demolition of a building extends below the level of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made, at their own expense, must: (a) preserve and protect the building from damage; and (b) if necessary, must underpin and support the building in an approved manner; and (c ) must, at least seven days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished. 37. TOILET FACILITIES Toilet facilities being provided on the work site in accordance with the requirements of Sydney Water. 38. DILAPIDATION REPORT A dilapidation report prepared by a practicing Structural Engineer shall be submitted to the Principal Certifying Authority, Council and the owners of the adjoining properties prior to the commencement of demolition, bulk excavation or building works, detailing the current condition and the status of all buildings at nos. 765 Old South Head Road, 767-771 Old South Head Road, Christison Park and 2-6 Clarke Street, Vaucluse. 39. DEMOLITION OR ALTERATION OF PRE 1987 BUILDINGS At least five (5) days prior to the demolition, renovation work or alterations and additions to any building constructed before 1987, the person acting on the consent shall submit a Work Plan prepared in accordance with Australian Standard AS260-2001, Demolition of Structure and a Hazardous Materials Assessment by a person with suitable expertise .and experience. The Work Plan and Hazardous Materials Assessment shall: (a) outline the identification of any hazardous materials, including surfaces coated with lead paint; (b) confirm that no asbestos products are present on the subject land; or (c) particularise a method of safely disposing of the asbestos in accordance with the Code of Practice for the Safe Removal of Asbestos NOHSC 2002 (1998); (d) describe the method of demolition; (e) describe the precautions to be employed to minimize any dust nuisance; and (f) describe the disposal methods for hazardous materials. 40. COMPLIANCE WITH WORKCOVER NSW REQUIREMENTS All site works complying with the occupational health and safety requirements of WorkCover NSW. 41. SOIL AND WATER MANAGEMENT PLAN A Soil and Water Management Plan (also known as an Erosion and Sediment Control Plan) shall be prepared according to SSROC's Soil and Water Management Brochure and the DECC's Managing Urban Stormwater: Construction Activities. This Plan shall be implemented prior to commencement of any works or activities. All controls in the Plan shall be maintained at all time. A copy of the Soil and Water Management Plan must be kept on site at all times and made available to Council officers on request. 42. STOCKPILES Stockpiles of topsoil, sand, aggregate, soil or other· material shall not be located on any drainage line or easement, natural watercourse, footpath or roadway and shall be protected with adequate sediment controls. 43. LOCATION OF BUILDING OPERATIONS Building operations such as brick cutting, washing tools or brushes and mixing mortar are not permitted on public roadways or footpaths or in any locations which could lead to the discharge of materials into the stormwater drainage system. 44. TEMPORARY DIVERSION OF ROOF WATERS Stormwater from roof areas shall be linked via a temporary downpipe to Council's stormwater system immediately after completion of the roof area. Inspection of the building frame will not occur until this is completed. 45. ALL BUILDING MATERIALS STORED ON SITE All building materials and any other items associated with the development are to be stored within the confines of the property. No materials are to be stored on Council's footpath, nature strip, or road reserve without prior Council approval. No materials are to be stored within Christison Park. 46. CONSTRUCTION HOURS Demolition and building work must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays and 8am to 3pm on Saturdays with no work to be carried out on: (a) The Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which form part of public holiday weekends; (b) Sundays and public holidays; and (c) On the Saturday (except minor renovation or refurbishment to a single dwelling construction) and Sunday which immediately precede or follow industry Rostered Days Off, as agreed by the CFMEU and the Master Builders Association of NSW. Noise from construction activities shall comply with the Protection of the Environmental Operations (Noise Control) Regulation 2000. 47. USE OF HEAVY EARTH MOVING EQUIPMENT Excavation works involving the use of heavy earth movement equipment including rock breakers and the like must only be undertaken between the hours of 7am and 5pm on Mondays to Fridays with no such work to be carried out on Saturday, Sunday or a public holiday. 48. CONSTRUCTION NOISE – PERIODS GREATER THAN 4 WEEKS The LA 10 level measured over a period of not less than 15 minutes when the construction site is in operation must not exceed the background (LA90) noise level by more than 10dB(A) when assessed at any sensitive noise receiver. 49. BUILDING CODE OF AUSTRALIA All building work must be carried out in accordance with the requirements of the Building Code of Australia. 50. QUALITY OF CONSTRUCTION ACT - INSPECTIONS (RESIDENTIAL FLAT DEVELOPMENT AND OTHER RESIDENTIAL CLASS 2, 3 AND 4) The building works are to be inspected during construction by the Principal Certifying Authority (PCA) and in accordance with the Building Legislation (Quality of Construction) Act 2002 and the Environmental Planning and Assessment Regulations. Also, documentary evidence of compliance with the relevant terms of conditions of development consent and standards of construction detailed in the Building Code of Australia is to be obtained prior to proceeding to the subsequent stages of construction and/or issue of an Occupation Certification. MANDATORY Critical Stage Inspections MUST be carried out by the PCA for work undertaken during specified stages of construction and prior to issuing an Occupation Certificate. The specified MANDATORY inspections are: In the case of a Class 2,3 and 4 building; (a) at the commencement of the building work; (b) prior to covering of waterproofing in any wet area for a minimum of 10% of rooms with wet area within a building; (c) prior to covering any stormwater drainage connections; and (d) after the building work has been completed and prior to any Occupation Certificate being issued in relation to the building. The following additional inspections are required to be undertaken by the PCA: (a) sediment control measures prior to the commencement of building work; (b) foundation material prior to undertaking building work; (c) shoring of excavation works, retaining walls, piers, piling or underpinning works; (d) steel reinforcement, prior to pouring concrete; (e) prior to covering timber or steel framework for floors, walls and roofing, including beams and columns; and (f) prior to installation of fire resisting construction systems (ie fire rated ceilings and walls). Note: Certification may be required from a suitably qualified person, in relation to specialist matters, verifying that particular works satisfy the relevant requirements of the Building Code of Australia and standards of construction. 51. CERTIFICATE OF SURVEY – BOUNDARIES AND LOCATION OF BUILDING A Certificate of Survey prepared by a Registered Surveyor setting out the boundaries of the site and the actual situation of the building on the site is to be submitted to the Principal Certifying Authority to certify the building is located in accordance with the development consent plans. The Certificate is to be submitted prior to the construction of the external walls above the ground floor level of the building. 52. IN-SINK WASTE DISPOSAL SYSTEMS The installation of in-sink waste disposal systems is prohibited. 53. ENCROACHMENT BEYOND BOUNDARIES No portion of the proposed development including the footings, fence and roof eaves, to encroach beyond the boundaries of the subject property. 54. WATER PROOFING The floor and wall surfaces of the proposed wet areas being protected against water in accordance with the Building Code of Australia. The wet areas are to be examined and certified by an Accredited Certifier. Note: Water proofing is to be in accordance with AS 3740 - Water Proofing of Wet Areas within residential buildings. 55 . HOT TAP WATER SCALDING To reduce the incidence of hot tap water scalding and, for the purpose of energy efficiency, all new or replacement hot water systems shall deliver hot water to a maximum 50 degrees Celsius at the outlet of all sanitary fixtures used for personal hygiene. 56. SMOKE ALARM SYSTEM A smoke alarm system is to be installed within the building in accordance with the requirements of the Building Code of Australia. 57. EXCAVATION TO BE MANAGED BY STRUCTURAL ENGINEER Bulk excavation is to be managed by a practising structural engineer, in accordance with the specification for shoring and support, as detailed in the approved Construction Certificate. 58. SERVICE PIPES All plumbing and drainage, including sewerage drainage stacks, ventilation stacks and water service pipes shall be concealed within the building. Plumbing other than stormwater down pipes shall not be attached to the external surfaces of the building. 59. TREE PLAN All trees, shrubs or vegetation on the subject or neighbouring sites identified for retention and within 7.5m of the building work are to be provided with tree protection measures as described below. Established boundary fences or site boundary fences are to remain in place at all times to physically protect any existing trees or vegetation on neighbouring sites. Soil levels are not to be changed around any trees on the subject or neighbouring properties. No mechanical excavation shall be undertaken within the tree canopy spread (within the dripline) of any tree, shrub or vegetation. If any tree roots are exposed during any approved works then roots smaller than 30mm are to be pruned as per the specifications below. Any roots greater than 30mm are to be assessed by a qualified arborist before any pruning is undertaken. If tree roots are required to be removed for the purposes of constructing the approved works they shall be cut cleanly by hand, by an experienced Arborist/Horticulturist (with a minimum of the Horticulture Certificate or Tree Surgery Certificate). It is the arborist's responsibility to determine if such root pruning is suitable. If there are any concerns regarding this process then Waverley Council's Tree Management Officer is to be contacted to make final determination. If any trees on neighbouring properties require pruning and are covered by Waverley Council's Tree Preservation Order then permission must be gained from the owner of the tree(s) and an Application to Prune or Remove Trees on Private Property is then to be presented to Council for processing. 60. CONSTRUCTION VEHICLE AND PEDESTRIAN PLAN OF MANAGEMENT Prior to any works on the site including any demolition works the applicant is to submit a "Construction Vehicle and Pedestrian Plan of Management" (CVPPM) for the routing and control of construction vehicles accessing and exiting the site for approval of Council's Manager of Technical Services. No works, including demolition works, are to take place on the site until Council's Manager of Technical Services has approved the CVPPM in writing. The CVPPM is to be complied with at all times. 61. CONVEX MIRRORS Convex mirrors to be installed within the site in the vicinity of the ingress/egress driveway serving the off-street car parking areas to allow drivers exiting the site to view pedestrians. 62. WORK OUTSIDE PROPERTY BOUNDARY All work outside the property boundary is to be carded out with the approval of, and in accordance with, the requirements of Council at the applicant's expense. 63. CONSTRUCTION OF SWIMMING POOLS The following applies to the construction of swimming pools: (a) Reinforcement is to be inspected by an Accredited Officer or other suitably qualified person prior to the pouring of concrete; (b) The electrical wiring system for any proposed underwater artificial lighting installation to the pool being installed in accordance with the requirements of Australian Standard 3000, Part 1 - Wiring Rules; (c) To minimise the likelihood of accidental drowning, the swimming pool is to be provided with a child resistant safety fence, designed and constructed in accordance with the requirements of Australian Standard 1926-1993 "Fencing for Private Swimming Pools". This fencing is to be erected and inspected by the Principal Certifying Authority prior to the pool being filled with water; and (d) A final inspection of the completed pool is to be carried out by the Principal Certifying Authority prior to the pool being filled with water. 64. POOL DRAINAGE Waste waters from the proposed pool being discharged into Sydney Water's sewerage system and in this regard, approved plans MUST be submitted to Sydney Water at least fourteen (14) days prior to commencement of building operations. 65. MECHANICAL VENTILATION (a) The premises are to be ventilated in accordance with the requirements of the Building Code of Australia and relevant Australian Standards. (b) The mechanical ventilation system shall comply with the Building Code of Australia and Australian Standard AS 1668 (Parts 1 and 2). Prior to installation, the design is to be certified by a person competent to do so. At the completion of the installation of the system and prior to the issue of the Occupation Certificate, the work shall be certified by a person competent to do so. The certification shall include: (i) inspection, testing and commissioning details; (ii) date of inspection, testing and commissioning details; (iii) the name and address of the individual who carried out the test; and (iv) a statement that the service has been designed, installed and is capable of operating to the above standard. D. COMPLIANCE PRIOR TO OCCUPATION OR DURING OCCUPATION 66. FINAL OCCUPATION CERTIFICATE The Principal Certifying Authority prior to occupation or use of the development must issue a final Occupation Certificate. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning & Assessment Act, 1979 have been satisfied. 67. LIGHTING Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 Control of the Obtrusive Effects of Outdoor Lighting. 68. STREET NUMBER/S The street number for the property shall be a minimum of 75mm high and shall be positioned 600mm-1500mm above ground level on the site boundary that fronts the street. 69. POOL SIGN An approved sign outlining details of resuscitation techniques for adults, children and infants must be placed in a prominent position, close to the pool prior to filling the pool with water. Signs are available from Council's Planning & Environmental Services Department. 70. INSPECTION OF POOL A final inspection of the completed pool is to be carried out by the Principal Certifying Authority prior to the pool being filled with water. 71. FIRE SAFETY UPGRADE WORKS Pursuant to Clauses 93 & 94 of the Environmental Planning and Assessment Regulation 2000, the existing building is to be brought into total conformity with the Building Code of Australia in relation to fire safety, fire protection and structural adequacy of the building. Details a Building Code of Australia Fire Safety Upgrading Report demonstrating compliance with the Building Code of Australia must be submitted to the Accredited Certifier or Council prior to the issue of a Construction Certificate. All required upgrade works must be completed to the satisfaction of the Principal Certifying Authority prior to the issue of an Occupation Certificate. 72. ALTERNATIVE SOLUTION COMPLETION Should building work involve an alternative solution under the Building Code of Australia in respect of a fire safety requirement, a Compliance Certificate or written report is to be obtained from a C 10 Accredited Fire Safety Engineer certifying that the building work relating to the alternative solution to the Building Code of Australia has been completed and complies with that alternative solution, in accordance with Clause 153A of the Environmental Planning and Assessment Regulation 2000, prior to issue of an Occupation Certificate. 73. STRATA SUBDIVISION Any strata subdivision of the building is to: (a) Retain the two planter boxes located at the ground floor level at the northern facade of the building as communal property; (b) Require the preparation of by-laws to incorporate a provision requiring the communal landscaped areas to be maintained in accordance with the approved Landscape Maintenance Program as required by the conditions of this consent. The by-law is to indicate that it cannot be altered without first gaining approval from Waverley Council to modify the conditions of this consent. 74. DEVELOPMENT APPLICATIONS FOR NON-RESIDENTIAL USE Specific development applications are to be lodged for the approval of Council in connection with the usage of any retail or commercial areas within the development, prior to the occupation of the premises. 75. MAINTENANCE OF LANDSCAPING The communal landscaping within the subject site is to be maintained in accordance with the approved Landscape Maintenance Program. 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.