Land and Environment Court of New South Wales CITATION : Krimotat v Kogarah City Council [2010] NSWLEC 1112 APPLICANT Felix Krimotat PARTIES : RESPONDENT Kogarah City Council FILE NUMBER(S) : 10935 of 2009 CORAM: Murrell C KEY ISSUES: DEVELOPMENT APPLICATION :- Car Wash, Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environment Planning Policy No. 64 Kogarah Local Environmental Plan 1998 CASES CITED: Stockland Development Pty Ltd v Manly Council [2004] NSWLEC 472 BGP Properties v Lake Macquarie City Council (2004) NSWLEC 399. DATES OF HEARING: 7 April 2010 and 19 April 2010 EX TEMPORE JUDGMENT DATE : 19 April 2010 APPLICANT Mr Sahade, barrister SOLICITORS Trust Chambers LEGAL REPRESENTATIVES: RESPONDENT Mr A Seton, solicitor SOLICITOR Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Murrell C 19 April 2010 10935 of 2009 Felix Krimotat v Kogarah City Council This determination was given extemporaneously and has been edited prior to publication JUDGMENT 1 COMMISSIONER: This is an appeal under s 97 of the Environmental Planning and Assessment Act, 1979 against Kogarah Council's refusal of a development application for the property known as 1010 King Georges Road, Blakehurst. The subject site is triangular with a site frontage to Princes Highway of some 45 metres and 60 metres to King Georges Road. This yields a site area of nearly 1600 square metres. This intersection or Y section is on major road within the Sydney metropolitan area. 2 Currently on the subject site, there is an unauthorised car rental business operating and an approved car wash and café with associated office. The proposal is for the hours of operations for the car wash and café to be extended from 7am to 7pm. Currently, there are slightly shorter hours. The hours are not contested by the council. 3 The Court notes the existing structures on the site and can only grant prospective consent for the use of these structures on the site. The site also has a number of unauthorised advertising signs including 'Thrifty Car Rental', one on each façade of the building, and the words 'Thrifty Car Wash' contained within the main pylon signs. These pylon signs to identify the car wash were previously approved. 4 The applicant seeks approval for the use of the premises for a car rental and for the allocation of some eight car parking spaces, four within the basement and four at grade on the site, for the purposes of the car rental business. The car rental business is shown on the plans to be five square metres for the rental desk. 5 The applicant is seeking to have a total of eight staff car parking spaces as shown in the amended plan, exhibit E, which is near the King Georges Road side of the subject site. The four spaces for the rental cars is near the Princes Highway and there is also provided on the amended plan two customer parking spaces, to be for the café. 6 The other part of the development application is for a billboard of some 42 square metres, near the King Georges Road on the northern boundary of the subject site. 7 The Court heard from resident objectors onsite and their concerns. I noted their concerns for the record on returning to Court on the first day of the proceedings. In summary their concerns relate to the fact that the car rental business has caused traffic congestion in the street and has impacted on their residential amenity. In particular, because of the use of a car loader from time to time in the street and the parking of hire vehicles and the parking of staff vehicles, that is the car wash staff for the facility. 8 The objectors referred to the current development consent for the site that requires the parking under the building to be for the purposes of a staff car park and in their opinion, the proposed development is an over intensification of the subject site and should not be allowed. The applicant has agreed if the matter is approved, that conditions be attached such that there would be no use of car carriers for the car rental business and that rental cars would have to be individually driven to the subject site. 9 The area can be described as a very busy intersection. To the north of the subject site there is a church and primary school, or a residence associated with the Catholic Church and a primary school. 10 The other uses within the area include to the north, there are light industrial purposes including car yards and building improvement businesses on the King Georges Road frontage, on the eastern side. The area in Heath Road which runs off Princes Highway is one that is generally residential, the southern section being industrial retail on the western side of Heath Road. 11 The uses on the opposite side of King Georges Road to the west are primarily residential. The Blakehurst Shopping Centre finishes prior to the subject site. There are a number of other service stations, auto businesses on the eastern side of Princes Highway, opposite the subject site and a large recreation park known as Todd Park, as one approaches from the south to the subject site. 12 The Court not only heard from resident objectors, but has the benefit of expert evidence to the Court including that of Mr John Coady, a consultant traffic engineer and Mr Mike George, a consultant town planner. The respondent provided expert evidence by Mr McLaren a traffic engineer and Mr Paul Grech, a consultant town planner. 13 The council provided a statement of facts and contentions. The first contention is, (1) State Environmental Planning Policy No. 64, advertising and signage that is for transport corridors, outdoor advertising and signage guidelines. The particulars include (a) arrangements consistent with the guidelines have not been entered into for the provision of a public benefit to be provided in connection with the display of the proposed freestanding billboard sign and (b) was that the RTA had not granted concurrence. The latter is no longer contested, the RTA have provided a letter to say that they do not object to the proposed development. 14 The second contention of road safety raised by the respondent is the development application should be refused as the proposed freestanding billboard sign is not acceptable in terms of road safety and is not consistent with the criteria set out in the State Policy, or the guidelines in terms of cl 13 of SEPP 64. The size, scale and location of the proposed freestanding billboard sign, will be a distraction to drivers and a significant hazard to road safety. The freestanding billboard sign is also contrary to the provisions of council's own development control plan for advertising and signage. 15 In respect of the third contention design, the development application must be refused in that it is not of an acceptable design. The guidelines to the State Policy are cited and the development control plan. 16 Contention 4 is car parking, loading and unloading of facilities and the development application should be refused because of inadequate car parking, loading and unloading facilities on the subject site. In particular, for the car rental use of the site. 17 The Court heard concurrent evidence from the experts. Mr George is of the opinion that the proposed billboard is acceptable, is appropriate and is what one would expect in the area and it does not significantly intrude into the skyline, in his opinion. Mr George when he was questioned on the issue of cl 13(2) of the State Policy, in terms of the matter of public benefit, said that he thought the provision was unreasonable, "one day advertising on billboards is permitted and then there is a requirement for a demonstration of public benefit". In his opinion, that was unreasonable in principle. He agreed that there had been no arrangements for public benefit submitted with the proposal. 18 Mr Grech is of the opinion that the billboard is not appropriate in its context, having regard to in particular, the amount of advertising that can already be seen on the site. It was agreed that when approaching from the south, one would see some seven advertising signs on the subject site and there are also a number of road signs within the area of this major intersection. 19 Mr Grech is of the opinion that the SEPP 64 criteria as contained in appendix 1, are not met by the proposed development and he is also of the opinion that the billboard will unreasonably intrude into the skyline and it will create an unreasonable relationship at the interface of this property boundary with the adjoining residence and school to the north. It is noted that the sign is slightly higher than the current parapet on the car wash facility and some two metres higher than the pitched roof of the residence adjoining the subject site. It is noted by the photo montages provided by the applicant, that the roofline is obscured of the adjoining residence from certain aspects. In particular, certain trees are obscured byt eh sign however, the large eucalypt growing in the school grounds can be seen above the subject site. 20 Mr Grech is of the opinion that the sign will result in clutter and proliferation of signage and he considers that the large billboard of some 42 square metres is not appropriate for the subject site. He also referred to the council's guidelines, which limit billboard signs to some 26 metres and the other provisions within council's DCP limiting signage generally on a site. 21 For the subject site, with the frontage of 105 square metres and a 1.25 metre allowance for frontages, would allow for 26.5 square metres of signage. There is already some 66 square metres of signage on the subject site and the billboard would add another 42.5 square metres, resulting in some 108 square metres of signage for the subject site, as opposed to the DCP guidelines of 26.5 m2. 22 Mr Grech is of the opinion that the signage is unnecessary and not justified in the circumstances of this case. As I stated, Mr George is of the opinion that in his opinion, it would not represent clutter and it is what one would expect. The signage in the area was pointed out and he is of the opinion that it would not be uncharacteristic of the area. The Court does note that there is a council approved sign on the site to the south of the subject site, council's own car park which has a large billboard erected on same, approved in 2001. 23 The applicant is of the opinion that the car rental business can be satisfactorily accommodated onsite and Mr George gave evidence that the car parking provision is also adequate in his opinion. Mr McLaren had cause to have surveys conducted of the car wash employees and where they parked on various survey dates. It could be seen from the surveys that there were a number of employees who did park on street. 24 Mr Coady provided surveys of other car wash establishments, none were directly parallel with the subject site. The car washes were in locations such as Gladesville and Bondi. But nonetheless, there was a percentage of those that drove to the site in terms of the other car washers, probably the most parallel would be the one at Gladesville and some 27 per cent of employees drove to that site. 25 The experts agreed that in their opinion the parking could generally be provided on the subject site. Mr McLaren is of the opinion that there is a need for eight car parking spaces for the employees that includes for the car wash employees. 26 There was discussion about the office component. The applicant has indicated to the Court that the office is only used for the car wash administration and could not be used for any other purposes in terms of the calculation of car parking requirements by Mr McLaren and Mr Coady. They are generally of the opinion that the parking configuration with improved signage in terms of entry and exit to the site could accommodate the dual use of the site for a car wash facility and the car rental facility on the site. 27 The provision of car parking on the site for employees was discussed during the hearing and Mr McLaren advised the Court that he was of the understanding that employees were required to park offsite. Clearly this is inappropriate and employees of the subject premises generally should have their vehicle accommodated on site if they drive to work. The area is one that is relatively congested and generally car parking off site by employees should be discouraged. The car wash facility should generally accommodate the employees vehicles on this site. This is a relatively large site and from Exhibit H to the proceedings it can be seen that staff cars should be accommodated on the site given the completion for parking in surrounding streets. 28 The issue of the operation of the car rental business was raised during the proceedings. Mr Coady and Mr McLaren suggested that a condition of consent could be included such that the car parking for the car rental business would restrict the operation of that business and that the eight car parking spaces, which would have to accommodate the car rental business employees should also be contained on site. 29 As I noted, the applicant has agreed to a condition that there be no car carrier to the subject premises given the constraints of the site, given manoeuvring and that a car carrier could not unload vehicles on site. It is unreasonable for car carriers to offload in surrounding streets. 30 The Court has the advantage of a walk around the area to look at the nearest residential properties and also to have regard to other uses within the area. The statutory planning framework for assessing the development application. 31 The subject site is within the 4(a) light industrial zone under the Local Environmental Plan Kogarah is 1998 and the light industrial zone objectives are: (a) to recognise existing industry and encourage establishment of new light industry so as to expand the local employment base; (b) to minimise the impact of industry and other permitted uses on adjoining lands; (c) to enable limited retailing of bulky goods; (d) to enable limited development for commercial premises to enhance the viability of land uses within the residential zones. 32 There are a number of aims and objectives of the plan including to protect the urban environment and also to include more detailed controls in development control plans. 33 The other guidelines are contained within council's development control plan and the relevant DCP has a parking ratio for office work of one space per forty square metres, approximately 120 square metres is provided in the upstairs mezzanine office space. 34 In the Commercial and Industrial Lands Development Control Plan in terms of streetscape and urban character the objectives include to ensure elements of development make a positive contribution to the immediate streetscape. 35 The general objectives for the industrial areas, including the Blakehurst industrial area are: to ensure that industrial development in close proximity to residential areas does not have a detrimental effect on such uses' promote development of a visually attractive form, design and scale where urban design elements; and built forms are integrated with the existing environment and minimise the impact of industrial development visual or otherwise through careful site planning; ensure adequate environmental safeguards are implemented; and ensure that signage is integrated with the size, shape, scale and proportion of a proposed building and its setting. 36 The other instrument that I must have regard to is the State Environmental Planning Policy No 64 Advertising and Signage and it is noted that the aims and objectives of this policy include to ensure that signage is compatible with the desired amenity and visual character of an area, provides effective communication in suitable locations and is of a high quality design and finish. It is also to regulate the display of advertisements in transport corridors and to ensure public benefits may be derived from advertising in and adjacent to transport corridors. 37 The Policy applies to all signage, there is no dispute that the billboard is signage that requires consideration under the State Policy and in granting consent the consent authority is to have regard to a number of issues. 38 In particular sch 1 the consent authority must be satisfied the proposal is acceptable in terms of its impacts and satisfies other requirements of the policy. Cl 13(2) states that if the Minister for Planning is the consent authority or cl 18 or 24, and in this regard cl 18 applies to the subject proposal, the consent authority must not grant consent to an application unless the advertisement or the advertising structure as the case requires is consistent with the objectives of the policy set out in cl 1(a) and has been assessed in accordance with the assessment criteria in sch 1 and the guidelines and the consent authority is satisfied that the proposal is acceptable in terms of design, road safety and public benefits. Subcl (3) states that in addition if cl 18 applies to the case the consent authority must not grant consent unless arrangements that are consistent with the guidelines have been entered into for the provision of the public benefits to be provided in connection with the display of the advertisement. 39 The requirements of sch 1 and as I stated earlier the concurrence of the RTA is required under cl 18, that is not contested. In terms of freestanding advertisements under cl 23 I must have regard to not protruding above the dominant skyline including any buildings, structures or tree canopies when viewed from the ground level within a visual catchment of one kilometre. 40 It was agreed by the experts that the proposal will protrude into the skyline, as I stated Mr George is of the opinion that it is not significant, Mr Grech considers that it is dominant feature in the skyline. 41 The assessment criteria in sch 1, and as this is an ex tempore judgment I will not state them all, but in summary I will just say that one has regard to the streetscapes and setting and whether the proposal contribute to the visual interests and the proposal reduce clutter by rationalising and simplifying existing advertising and does the proposal screen unsightliness, does the proposal protrude above buildings, structures or tree canopies in the area or locality. 42 It was submitted for the applicant that the public benefit is one that the Court can assess with the application before it and the powers under s 39(2) of the Court Act does not require the satisfaction in a past tense of 43 arrangements entered into and that it is a matter for the Court in terms of its assessment of the application under the guideline. In particular the guideline at 4.1, what is the public benefit test. The consent authority is to determine whether the applicant has sufficiently demonstrated the proposed advertisement will contribute to an appropriate public benefit. 44 As I stated, it is submitted on behalf of the applicant that this is a matter that I can consider and I have the authority under cl 39(2). 45 It was submitted for the respondent that given the provisions of public benefit test in s 4 of the guidelines and 4.2 requires or sets out a process for public benefit and a mechanism whereby there is dispute resolution where there is disagreement or where a public benefit needs to be demonstrated in terms of the provisions and the section allows for in kind contributions as well as monetary contributions. 46 Given my findings that the billboard sign is not appropriate in the context of the assessment criteria in sch 1 to SEPP 64, it is not necessary for me to make a finding as to whether or not I have the power under 39(2) in terms demonstration of public benefit. 47 In my assessment the signage does not satisfy the requirements of the State Policy. The State Policy is clear in the schedule that it is seeking to "Reduce clutter" by rationalising and simplifying existing advertising and "Does the proposal protrude above building structures or tree canopies." As I stated it does not protrude above the large magnificent eucalypt in the school grounds. It does protrude above the other trees behind it and it also protrudes into the skyline from the development north of the subject site, which is also at a higher elevation. 48 I am of the opinion that the proposed signage does not simplify existing advertising. I am of the opinion that the proposed signage represent clutter. In this regard I go to the definition of clutter, "a proliferation and an unnecessary proliferation of signage." Having regard to the signage already on the site to depict what the uses are. 49 It could be seen on the site inspection that in the vicinity of the site the council approved a large billboard. However, this was approved prior to the current planning regime and all developments must be assessed on their merits. The fact that a development or a use is permissible in a certain zone is not "of right" development and it must be assessed on its merits also under s 79C of the Environmental Planning and Assessment Act. In my assessment of this application the site is not suitable for the proposed billboard as shown in the documentation and the plans provided to the Court. 50 Clearly this site is a large site but there is a significant amount of signage on the site and it is within an area that also competes with road signage. Furthermore I must have regard to its relationship or interface with the adjoining premises to the north, that is the school church and residence, and the large billboard is unsatisfactory in this regard. Also in terms of the residential area to the west of the subject site, the large billboard is an inappropriate visual intrusion. 51 It was stated that the signage will not be seen from a long distance. That may be the case but it clearly would not then provide for effective communication of a message or for advertising and it is inappropriate in terms of the location on the site at the relatively higher topography of the site, not connected or designed or integrated into the design of the building. For these reasons I have determined that the freestanding billboard is excessive and inappropriate for the subject site and does not rationalise signage on the site but rather is a proliferation. 52 The council's Development Control Plan does provide further restrictions. Those restrictions are even greater than the reasons as to why I have refused the sign. I note the DCP calls for billboards to be a maximum of twenty square metres and it also calls up the amount of signage that is considered to be reasonable calculated on the basis of street frontage. 53 In terms of clutter I was referred to a dictionary definition and the Macquarie dictionary also provides definitions. That is clutter is "heap, litter or strewn in a disorderly manner"; "confusion, disorder"; and "a disorderly heap or assemblage." In my assessment the confusion created by the additional signage, not related to any use of the site is unwarranted and unnecessary and unreasonable in the circumstances of this case. 54 On the question of the use of the premises for the co-location of the car rental business, having regard to the expert's views, having regard to the evidence to the Court, I am of the opinion that the car rental business should only be approved subject to a 'deferred commencement'. That is, with a plan of management to clearly outline the operation of the business for vehicles being delivered, a limit to one staff member only, and for the manner rental vehicles are to be delivered to and from the site. Also the conditions will limit the amount of office space that can be allocated to the car rental reception office to 10 square metres. This is over and above what's shown on the plan but 10 sq metres allows for some circulation space for customers but any one time there can only be one employee. 55 A plan of management is necessary to provide for greater certainty in the planning process and it also provides for future users to be aware of the requirements or limitations imposed on uses for this site. Similarly, a plan of management needs to be provided in terms of directing staff associated with the car wash to park on site and the eight spaces provided near the King Georges Road entry to the site are to be clearly marked that they are for staff employees only to avoid further intensification of the subject site. The 8 staff parking spaces will also accommodate the office worker upstairs and the plan of management is to stipulate that the office mezzanine area is to be only used as ancillary office space associated with the car wash and café use. 56 There appears to be concern about greater intensification on the subject site and the conditions in this development consent should be clear. The conditions of consent will also in many respects reiterate the plan of management. The plan of management is to be available to staff members at all times so that it is clear that car wash staff are to park and on the site. The conditions will also stipulate that there can only be one employee for the car rental business with a ten square metre area for the ancillary office area in the subject premises. The conditions of consent will also state that the mezzanine is to be only used as ancillary office space associated with the car wash and café on the subject site. It is noted that there are two customer parking spaces proposed in the amended layout for car parking. 57 For the signage of the 'Thrifty Car Rental' the use of the signage, not the actual signs, is approved by the Court. That is the use of the signage of the three car rental signs shown in the plan and also the use of the current approved car wash pylons to have the words "car rental" included on same. 58 As for all sites the subject site clearly has a maximum limit as to the number of uses and intensification and to provide for certainty the plans of management are to ensure proper and effective management of the uses on the site in accordance with the conditions of consent. 59 The proliferation of signage on the site in my merits assessment under s 79C of the Act, the billboard is unreasonable, unnecessary and contrary and antipathetic to the provisions of the SEPP. 60 Accordingly based on my assessment above, the formal orders of the Court are: 1. The appeal, in respect of the property known as 1010 King Georges Road (corner of Princess Highway) Blakehurst, is upheld in part only. 2. The development application submitted Kogarah Council and as amended, is determined by: (a) Refusal of consent for the billboard advertising structure. (b) Granting a 'deferred commencement' consent for: Use of part of the premises for a car rental office; Use of the car rental signs as shown on the plans; An extension of hours for the car wash facility to be 7am to 7pm seven days a week; Use of the 8 vehicle spaces for the car rental business; 8 spaces allocated for staff parking of the car wash business and 2 car spaces for customers as shown in Exhibit E & B respectively. These spaces are to be clearly marked as staff parking only and customer parking. 3. The exhibits are returned to the parties with the exception of Exhibit 3, B, E, H and K. ___________________ J S Murrell Commissioner of the Court ljr Annexure 'A' Conditions of Consent Felix Krimotat v Kogarah Council No 1010 King Georges Road, Blakehurst DEFERRED CONDITIONS OF CONSENT – Section 80(3) of EP&A Act 1979: 1) Deferred Commencement Consent This is a "Deferred Commencement" consent that is granted subject to a condition under section 80(3) of the Environmental Planning and Assessment Act 1979 ("EP&A Act") that the consent is not to operate until the applicant satisfies Kogarah Council ("Council") as to the matters set out in schedule A below. The period within which the applicant must produce evidence to the Council sufficient enough to enable it to be satisfied as to those matters is 12 months. If the applicant produces evidence to the Council within the period specified sufficient to enable the Council to be satisfied as to the matters set out in schedule A below and the Council notifies the applicant in writing that it is satisfied as to the relevant matters, the development consent shall become operative from the date specified in the notice subject to compliance with the conditions set out in Schedule "B" below. SCHEDULE A A. A Plan of Management dealing with the following matters relating to the car rental agency is to be prepared and provided to Council for approval: (i) How rental vehicles are to be delivered to and removed from the site without a car carrier or transporter; (ii) Ensuring that staff for the car rental agency is limited to one person on the site at any time; (iii) Limiting the floor space allocated to the car rental agency in the existing building to no more than 10 square metres; (iv) Ensuring instructions are given to people returning vehicles consistent with condition 12 in schedule B; (v) The method of ensuring that the total parking demand generated by the car rental agency operation does not exceed 7 spaces for rental vehicles and 1 space for staff; B. A Plan of Management dealing with the following matters relating to the carwash/cafe is to be prepared and provided to Council for approval: (i) Ensuring that the office space on the mezzanine level of the building is used only for purposes ancillary to and associated with the carwash café on the site; (ii) Ensuring that staff of the carwash/café are directed to park their vehicles on the site; (iii) Ensuring that the 8 staff spaces for the carwash café are clearly marked as being for staff of the carwash café only; CONDITIONS OF CONSENT – Section 80(1) of EP&A Act 1979: SCHEDULE B 1. The development must be implemented in accordance with the approved plans, specifications and details listed below and any supporting information submitted with the Development Application except as amended by any conditions attached to the Development Consent: (i) Architectural plans prepared by ID Projects marked Job No 9009 DA 01 – DA06 Issue A dated 27/2/09. (ii) Plans entitled "Crystal Car Wash Workforce Parking Arrangements" – Dwg No. 08078-C dated 7 April 2010. (iii) The approved Plans of Management. 1A. This consent is for the following development only: (a) Use of the land for the purpose of a car rental agency and associated car parking; (b) Changes to the number of carparking spaces, carparking layout and the operating hours of the carwash café subject of the development consent granted to development application 106/01 on 1 May 2001; (c) Display of advertising signage identifying the car rental agency operating on the land as shown on signs B, C,1, 2 and 3 on drawing Nos. DA 01, DA04 and DA 06 revision A dated 27/2/09. 1B. Development Consent is not granted for the freestanding billboard advertising structure shown on the architectural plans referred to in condition 1(i) above or for any other advertising structure shown in those plans. 1C. The floor space allocated to the car rental agency in the existing building is limited to no more than 10 square metres plus the 4 car parking spaces shown in the basement level. 2. Payment of the following amounts as detailed below must be made prior to the issue of a Construction Certificate: Damage Deposit of $ 920.00 *Builders Long Service Levy of $ 105.00 Asset Inspection Fee of $ 110.00 *Note: The Builders Long Service Levy quoted is based on the market value of the proposed building works and the Levy Rate applicable at the time of assessing the Development Application and may be subject to change prior to payment. Site Specific Conditions 3. The following lists of inspections are the MANDATORY CRITICAL STAGE INSPECTIONS that MUST be carried out by the Principal Certifying Authority (PCA). (a) after excavation for, and prior to the placement of, any footings, and (b) prior to pouring any in-situ reinforced concrete building element, and (c) prior to the covering of the framework for any floor, wall, roof or other building element, and (d) prior to covering waterproofing in any wet areas, and (e) prior to covering any stormwater drainage connections, and (f) after the building work has been completed and prior to any occupation certificate being issued in relation to the building. Certificates from your engineer or subcontractor are NOT acceptable in the first instance for the above inspections. Failure to have your PCA carry out these inspections could result in a delay or refusal to issue an Occupation Certificate 4. deleted 5. deleted 6. deleted 7. deleted 8 A total of 10 on-site parking spaces are to be provided to serve the Carwash Café component of the proposed development comprising 2 customer parking spaces (Nos. 4 and 5 shown on Dwg. No. DA01 dated 22nd February 2009) and 8 workforce parking spaces shown on Dwg. No. DA08078-C dated 7 April 2010. Persons using the workforce parking spaces shall reverse into those parking spaces after entering the site travelling in a forward direction. 9. The workforce of the Car Wash Cafe is to be limited to a maximum of 30 persons on the site at any time. Staff for the car rental agency is limited to one person on the site at any time. 10. A total of 8 on-site parking spaces will be allocated to the Car Rental Agency component of the proposed development comprising 4 spaces in the undercroft area beneath the Carwash Café, and 4 spaces (including 2 van parking spaces 7.0m x 2.9m) adjacent to the rear (northern) site boundary on the Princes Highway side of the site. The operation of the Car Rental Agency will be managed so that the total parking demand generated by the business does not exceed that on-site parking provision. 11. The Princes Highway access to the site is to remain open at times when the Carwash Café/car rental agency businesses are unattended, and provision will be made to accommodate on-site any car rental vehicles which are returned at times when the Carwash Café/car rental businesses are unattended. 12. Car rental agency patrons must be made aware that when they drop off rental vehicles it must occur on the site. They must be advised that at times when the Carwash Café/car rental businesses are unattended, access to the site will be available via the Princes Highway entrance, and that space will be available on the site where vehicles can be parked. This advice must be communicated to car rental patrons at the time vehicles are picked-up, and must be reinforced by prominent, written advice which will form part of the vehicle rental documentation. 13. Car carriers are not to be used to transport rental cars to/from the site. 14. The workforce of the Carwash Café and the Car Rental Agency must park on-site in the allocated parking spaces, and must not park on-street in the surrounding streets. 15. All deliveries to the Carwash Café and the Car Rental Agency must be made on-site and must not occur on-street. 16. The office space on the mezzanine floor of the existing building shall not be occupied as a separate tenancy and shall only be used for purposes ancillary to and associated with the car wash café on the site. 16A. All traffic generated by the development shall enter the site from King Georges Road and depart the site to the Princes Highway. The entry driveway off King Georges Road, and the exit driveway to the Princes Highway will be clearly signposted in a manner that is visible for the roadway and within the site. General Conditions 17. Certain items of equipment or forms of construction shall be nominated as "fire safety measures" within the building. Upon completion of works, and before occupation of the building, each of the fire safety measures is required to be certified by an appropriately competent person (chosen by the owner of the building). The certificate is to state that the measure was inspected and found to be designed, installed and capable of operating to a standard not less than that required by the relevant regulations. Further, it is the responsibility of the owner of the building that each fire safety measure is again inspected and certified as to its condition every twelve (12) months following the submission to Council of the original certification. 18. Council is committed to worksite safety and requiring that all scaffolding is installed by competent and qualified professionals with the relative appropriate standards. The applicable Australian Standards for the scaffolding is AS/NZS1576 in respect of the design of the scaffolding and AS/NZS4576 with respect to the erection of the scaffolding. Also, you should ensure that those erecting scaffolding are appropriately qualified and have the appropriate qualifications to erect scaffolding. For further information regarding this please see www.workcover.nsw.gov.au. 19. The proposed building is not to be erected at a height greater than that indicated on the approved plan. 20. Engineer's details prepared by a practising Structural Engineer being used to construct all reinforced concrete work. The details are to be submitted to the Principal Certifying Authority for approval prior to construction of the specified works. 21. Car parking spaces, manoeuvring areas and access aisles shall be provided, paved, drained and suitably marked strictly in accordance with the approved plan. 22. The areas designated as parking areas, loading/unloading areas, and the access to such areas are not to be used at any time for the purposes of storage, or for other commercial uses, or leased to any person, company or organisation not directly associated with the subject site 23. The use of the premises, building services, equipment, machinery and ancillary fittings shall not give rise to an "offensive noise" as defined under the provisions of the Protection of the Environment Operations Act 1997. 24 The layout, disposition, construction and method of installation of all fittings and fixtures together with floor, wall and ceiling finishes within the food preparation/serving/storage areas shall comply with Food Act 2003, Food Regulation 2004 and Australian Standard 4674 – 2004. 25. No advertisement or sign shall be erected or displayed without development consent from Council, unless exempted under Development Control Plan No.26 – Exempt and Complying Development. Any advertising matter relating to the previous use of the premises shall be removed. 26 Any lighting of the premises shall be installed so as to avoid annoyance to the occupants of adjoining premises or glare to motorists on nearby roads. Flashing, moving or intermittent lights or signs are prohibited. The intensity, colour or hours of illumination of the lights shall be varied at Council's discretion if Council considers there to be adverse affects on the amenity of the area. 27. Prior to commencement of any site works, erosion and sediment controls are to be installed in accordance with Council's guidelines and any approved Soil & Water Management Plan and shall incorporate: Measures to prevent sediment and other debris escaping from the cleared or disturbed areas into drainage systems or waterways; Controls to prevent tracking of sand, soil, aggregates, etc, by vehicles onto adjoining roadways. 28. The erection of a building which is the subject of a Development Consent must not be commenced until: (i) detailed plans and specifications of the building have been endorsed with a construction certificate by: · Council; or · an accredited certifier. (ii) the person having the benefit of the development consent has: · appointed a Principal Certifying Authority(PCA); and · notified Council (if Council is not the PCA) in writing of the appointment; · given at least 2 days notice to Council of their intention to commence the erection of the building. Notice may be in writing or by phone. 29. All building work must be carried out in accordance with the provisions of the Building Code of Australia, except where an exemption is in force under clause 80H or 80I of the Environmental Planning and Assessment Amendment Regulation 1998 subject to the terms of any condition or requirement referred to in clause 80H(6) or 801(4). 30. Prior to the commencement of works, the Principal Certifying Authority must be in formed in writing of:- i. the name and contractor licence number of the licensee who has contracted to do or intends to do the work; the name and permit number of the owner-builder who intends to do the work, with a copy of the permit submitted; & ii. the date of their intention to commence the erection of the building. Further, if a contract is entered into for the work to be done by a different licensee or arrangement for doing the work are otherwise changed, the Principal Certifying Authority is to be immediately informed in writing of sufficient particulars for it to update its records. 31. Inspections of the work in progress by the Principal Certifying Authority must be undertaken. The recommended minimum number and type of inspections is detailed in the Development Consent. If these inspections are not carried out, delays, additional costs and possibly demolition of works may result. If Council is the Principal Certifying Authority, inspections can be requested by calling the Customer Service Centre on 9330 9400. To enable prompt service, bookings for inspections should be made during the previous working day. 32 Underground pipes and cables may be affected by excavation works. Excavators are requested to contact NSW Dial Before You Dig Service by phoning 1100 at least two (2) days before work commences. 33. The following is only permitted to take place on or adjacent to the development site between the hours of 7:00 am to 5:00pm on Monday to Friday and 7.00am to 1.00pm on Saturdays and not at all on Sundays and Public Holidays: use of power operated tools or machinery; use of power operated plant such as compressors, jack hammers, bulldozers, excavators and/or loaders; use of woodworking machines (i.e. saws, planers etc.); use of explosive fixing guns; use of concrete or cement mixers; use of floating and/or trowelling machines, vibrators, concrete delivery wagons, hoists or winches; use of welding and/or rivetting machines and the like, removal or placing of concrete forms; placing or tying of steel reinforcement of structural members; nailing and fixing of timber framework; stacking or handling of bricks or blocks; or any other building activity creating objectionable noise. Any heavy vehicles including delivery of excavation and other plant and equipment including construction vehicles are restricted to the following hours: 7.00am to 5.00pm - Monday to Friday 7.00am to 1.00pm — Saturdays With no delivery of heavy vehicles on Sundays or Public Holidays. 34 The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect any Sydney Water asset's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. Please refer to the web site www.sydneywater.com.au for: · Quick Check agents details - see Building Developing and plumbing then Quick Check; and · Guidelines for Building Over/Adjacent to Sydney Water Assets - see Building Developing and Plumbing then Building and Renovating or telephone 13 20 92. 35. A Development Consent or any related Construction Certificate does not allow for any form of road or footpath opening to be made external to the subject property boundary. Should such an opening be required a separate application will have to be approved through Kogarah Council Works. Applications may be made at Council's Customer Service Centre at 84 Railway Parade, Kogarah. 36. The applicant shall bear the cost of restoring any footpath, roadway and any other Council assets damaged due to works at, near or associated with the site This may include works by Public Utility Authorities in the course of providing services to the site. 37. The applicant shall bear the cost of any relocation or modification required to any Public Utility Authority assets required due to work sat or associated with the site. 38. Erosion and sediment control measures are to be undertaken during the course of construction, in accordance with "Sediment and Erosion Control Guidelines". Failure to implement and maintain appropriate measures may result in a $750 Penalty Infringement Notice (individual) or $1,500 (corporations) being issued and/or the incurring of a maximum penalty of $120,000 (individual) and $250,000 (corporation) through the Land and Environment Court. 39. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. 40 All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property. 41 Excavation works - if the soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided and adequate provision shall be made for drainage. 42. A hoarding or fence must be erected between the work site and the public place if: the work involved in the erection or demolition of a building is likely to cause obstruction or inconvenience to pedestrian or vehicular traffic in a public place; or if it involves the enclosure of a public place. 43. If necessary an awning is to be erected which is sufficient to prevent any substance from or in connection with the work from falling into a public place. 44. Any such hoarding, fence or awning is to be removed when the work has been completed. 45 If the work site is likely to be hazardous to persons in a public place, it must be kept it between sunset and sunrise. 46 A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: · stating that unauthorised entry to the work site is prohibited; and · showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours; and · showing the name and telephone number of the builder or owner-builder, if not the same as above; · the licence number of the builder or permit number of the owner- builder, and · showing the name and telephone number of the Principal Certifying Authority (PCA) whether it be Kogarah Council or a Private Certifier. 47. The applicant is to indemnify Council against any injury to persons or damage to property occurring in any public place adjacent to the development site caused by the operation of mechanical equipment or the delivery of materials associated with works on the development site. 48 All building materials or waste containers must be stored within the confines of the site. The storage of such building materials, waste containers or equipment associated with the project upon the public roadway, including the pedestrian footway or unpaved verge, is prohibited. 49. Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Each toilet provided must be a standard flushing toilet and must be connected: to a public sewer; or if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council: or if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council. The provision of toilet facilities must be completed before any other work is commenced. ________________________ J S Murrell Commissioner of the Court ljr 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.