Land and Environment Court of New South Wales CITATION : QSA Businesses v Campbelltown City Council [2009] NSWLEC 1009 Applicant: QSA Businesses Pty Ltd PARTIES : Respondent: Campbelltown City Council FILE NUMBER(S) : 10491 of 2008 CORAM: Hoffman C KEY ISSUES: DEVELOPMENT APPLICATION :- streetscape, setbacks, SEPP No.1, traffic and parking CASES CITED: Winton Properties v North Sydney Council [2001] NSWLEC 46 DATES OF HEARING: 27 November 2008 and 28 November 2008 DATE OF JUDGMENT: 13 January 2009 Applicant: LEGAL REPRESENTATIVES: Mr G Green, solicitor of Pikes Lawyers Respondent: Mr A Seton, solicitor of Marsdens Law Group JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Hoffman C 13 January 2009 10491 of 2008 QSA Businesses Pty Ltd v Campbelltown City Council JUDGMENT 1 Commissioner: This is a Class 1 Appeal No.10491 of 2008 between QSA Businesses Pty Ltd and Campbelltown City Council in regard to the refusal of a 5-storey motel on No.1 Rennie Road, Campbelltown. The lot is on the corner of Harbord Road and backs uphill onto Payten Reserve that is a bushland area on top of a hill behind the proposal. 2 The eastern neighbour of the proposal is a Formula 1 Motel also in Rennie Road closer to its cul-de-sac end. Also in the cul-de-sac are Krispy Crème and Kentucky Fried fast-food outlets and a Black Stump restaurant. Diagonally across the intersection is a MacDonald's fast-food outlet. 3 The site is one block along Harbord Road from Campbelltown Rd, the main road leading from the Hume Highway to central Campbelltown. Harbord Road is a local distributor to the industrial estate that the site is located in, and to residential areas over the hill to the north. 4 The proposal consists of the following: + Construction of a 51 unit serviced motel, comprising four levels of accommodation above a conference room and servicing facilities at ground level and gymnasium at first floor level; + 56 car parking spaces at ground level and 15 car parkinq spaces at first floor level including two disabled spaces and bike racks; + Installation of three internally illuminated Business Identification Signs comprising of two facades and one monument sign; + (Business) Hours of operation of 7.00am to 11.OOpm, 7 days; + Employment of 10 -12 staff. The site 5 The site has a total area of approximately 2880 square metres. Immediately to the north and west of the subject site the land rises steeply within Payten and Kanbyugal Reserves both of which are used for passive and active public recreation. Further to the north and west is the residential suburb of Woodbine. Primary vehicular access to the proposed development is via Rennie Road with a secondary exit via Harbord Road. The proposal closes the Harbord exit. 6 The land currently contains an existing bulky goods type building with a mezzanine component. This building was previously used as a ceramic tile warehouse and later as a wholesale Christmas shop. The building would be demolished as part of the subject development. Statutory Instruments and Controls Environmental Planning and Assessment Act 1979 (EP&A) Campbelltown (Urban Area) Local Environmental Plan 2002 (the LEP) Zone: 4(b)) Industry B Zone Permissible Use: "Motel' The development is defined as a motel and is permissible on the 4(b) zone with consent. State Environmental Planning Policy No. 1 - Development Standards (SEPP No.1) State Environmental Planning Policy No. 64 - Advertising and Signage Campbelltown (Sustainable City) Development Control Plan 2007 Campbelltown Council Industrial Development Policy No. 5.2.13 Development Control Plan No.52 - Off Street Car Parking Development Control Plan No. 99 - Advertising Signs The Contentions Parking 1. The proposed development should be refused as the proposed car parking is unacceptable in terms of its design and layout and is not consistent with the Design Requirements of Part 5.4 of Campbelltown (Sustainable City) Development Control Plan 2007. Particulars (a) The location of the three car parking spaces close to the ramp entrance does not allow for adequate vehicle manoeuvrability when exiting from these spaces. (b) The provision of stacked parking is not acceptable. (c) An adequate turning and manoeuvring area for buses and other vehicles has not been provided at the entrance to the site, for the purpose of setting down occupants of the proposed development. (d) It has not been demonstrated that garbage collection trucks could enter and exit the site in a forward direction. (e) It has not been demonstrated that there will not be a conflict between garbage collection trucks and vehicles entering or exiting the site. Amenity and Visual Impact 2. The proposed concrete ramp and upper level car parking structure will not be adequately screened from public view and will have an unacceptable visual impact on the streetscape. 3. The proposed garbage bin and plant enclosure is not adequately screened from public view and will have an unacceptable visual impact on the streetscape. Garbage Facilities 4. The Applicant has not demonstrated that the proposed garbage area and plant room can satisfactorily contain the required number of garbage bins. 5. The proposed development is unacceptable and should be refused insofar as it will set an undesirable precedent for similar inappropriate development in the area. The Evidence 7 The respondent's evidence came from Ms M Penna, town planner for the Council, and Mr C Hallam consultant traffic engineer. 8 The applicant's evidence came from Mr M Fearns, architect, Mr J Coady consultant traffic engineer, Ms N Sonter landscape consultant and Mr C Outtersides consultant town planner. 9 The parties had negotiated prior to the Hearing and came with Consent Orders incorporating amended plans satisfactory to both. 10 The traffic engineers had agreed on modifications to the plans resolving car space access and manoeuvring matters. The 4 stacked car spaces are acceptable allocated to staff. The engineers agreed that charter bus transport to the motel would be infrequent, and in any case there is a "Bus Zone" outside the site in Harbord Rd and it could be used and thus avoid the need for on-site manoeuvring. A waste storage and collection report had been done and it indicated the motel could be serviced by wheely-bins using the council contractor and they can be collected via the bi-weekly kerb-side pickup. 11 Ms Sonter noted that the site has existing substantial mature perimeter trees as a result of the existing development. All the perimeter trees are to be kept and would provide a significant landscaped setting for the proposal from its commencement. The backdrop of the bushland in Payten Reserve that is behind and above the new building would add to this setting. In the amended plans Ms Sonter had increased the understorey vegetation to screen the external carpark ramp. The planners, Ms Penna and Mr Outtersides had discussed the amended plans and agreed that the improved landscaping would work. The new location for the garbage bin enclosure was now acceptable and the waste storage and collection report showed the enclosure is now big enough for the required number of bins. Having accepted the traffic engineers amendments, the planners are of the opinion the proposal would not create an undesirable precedent. 12 The hearing commenced on-site, and I had the opportunity to review the reports and the applicable instruments and controls. A SEPP No.1 objection had been prepared in regard to cl 37(d) of the Campbelltown Local Environmental Plan 2002. The clause states: Consent must not be granted to development, other than the use of land for landscaping, for access roads and for off street parking, on any land within Zone 4(a) or 4(b) which is within (d) 10 metres from any other road. 13 Rennie Road and Harbord Road are subject to 37(d). The objection said that the building came to within 4.8m of Rennie Road at its south eastern corner, and because this is a corner location only, and the setback at Harbord Rd is 23 metres and at the Harbord/Rennie intersection 21.7 metres, the underlying objective of the requirement to achieve high quality, aesthetically pleasing development would be met. 14 In considering this, I looked at the amended plans the subject of the consent orders. They are in Exhibit A, and saw that the south-east corner of the building is actually 1.79 m from the Rennie Rd boundary. The 4.8m comes if one measures to the kerb. At this point it is a 5-storey building. 15 Also I saw that the setback dimension to the porte-cochere at the intersection is 10m not 21.7m. The 21.7m only comes in if one measures to the corner of the conference room across the width of the porte-cochere. Another thing I read from the plans is that on top of the porte-cochere there are 4-storeys of motel units. So at that point too the building is 5-storey. If one measures from the other end (eastern) of the porte-cochere to the Rennie Road boundary the setback is about 4m, and the building is 5-storey there. Also the elevated carpark ramp in the Harbord Rd front setback comes right to the street boundary at one point. 16 It seemed to me that the SEPP No.1 objection did not deal with these matters of the 5-storey building being less than 10 metres from the boundary at several locations. I asked the parties for clarification. The applicant put that the 4.8 m setback dimension is correct as it should be measured to the road ie. the kerb of the road. 17 The respondent pointed out that there is a definition of a "road" in the LEP, and it includes passage for pedestrians, so "road" must mean the whole width of the road reservation including the footpath. Thus the setbacks must be measured to the street boundaries. The applicant did not contest this further. 18 The parties acknowledged the objection did not deal with these matters and sought time during the hearing to consider that issue. 19 Further amended plans were tendered in Exhibit C with markings to delete two floors of motel units from above the porte-cochere, increase the landscaping within the front setback at the intersection and a new SEPP No.1 objection in Exhibit D. 20 The respondent's legal representative noted that there were no instructions from the council in regard to the proposed amendment. Therefore the representative could only act as a servant of the Court in questioning the witnesses. I accepted that role for the respondent's representative. 21 Because the amendments in Exhibit C represented a lesser development with obviously less bulk and visual impact, and having fewer motel units, having less carparking, garbage and other service requirements, I allowed the tender of Exhibit C and Exhibit D, together with a report from Mr Fearns on them in Exhibit E. The expert witnesses gave concurrent oral evidence on these exhibits. 22 Ms Sonter said in the front setback opposite the Harbord/Rennie intersection there would be 100 sq m of deep soil where she showed 3 additional Spotted Gums that would grow to 20m height, plus more understorey that would soften the built form of the building behind. The 3-storeys of the porte-cochere and the units above would be almost fully screened, she said. In any case the new SEPP No.1 showed it is only about half that portion of the building that is within the 10m setback. The generosity of the Harbord street setbacks and the landscaping would compensate, she said. 23 Mr Fearns said the deletion of the 2 floors from above the porte-cochere would reduce the bulk of the building without compromising its simple architectural form. He said it would actually define the entry better because the smaller block will be seen to project in front of the larger rectilinear form. Being supported by columns only at porte-cochere level, the smaller projecting portion of the building will give a contrasting lightness to the bulk of the main part of the building. 24 Mr Outtersides said that Rennie St is the minor road compared to Harbord that is a local collector and the main approach path to the motel. The lesser setbacks are appropriate on Rennie rather than Harbord. And Harbord has setbacks double and more than the 10 m minimum, thus giving recognition to the more important streetscape and compensating for Rennie having less. 25 The impression of a landscaped setting for this site will maintain the same quality as the other buildings in Rennie St. Since the land is zoned Industrial one would normally expect a more utilitarian appearance, but Rennie St has no industries, only food outlets and accommodation so the proposal fits in with the established character of use-types. 26 Mr Fearns was asked about the 1.79m setback to Rennie St at the southeast corner of the building. He said that Rennie St had large buildings in open settings. The neighbouring development of the Formula 1 Motel has a large ground level carpark in front with the 3-storey motel that is set well back on its lot. The Formula 1 has a high steep pitched roof that gives it a similar bulk to the proposal. So the proposal is not out of scale with it. 27 The proposed building on the subject site will be perceived against the open space of the Formula 1 carpark. With the softening of the new building by the existing large trees on the subject site's east boundary and those on the Formula 1 site, that will maintain the established streetscape character. 28 Ms Sonter referred to the aerial photo in Exhibit 5 and said the Krispy Crème and the Black Stump buildings appeared to have portions that are less than 10m from the street boundaries. The curves of Rennie St and its cul-de-sac, and the irregular shaped allotments, including the subject site, make it difficult to fit rectilinear buildings of sizes near the maximum permissible on the lots unless there are some point locations closer than 10m to the street. 29 Whilst the southeast corner of the main part of the building would come close to the Rennie St boundary, it would be seen as a corner projecting from behind the substantial trees and shrubs on-site opposite the intersection, and the substantial existing trees on the east boundary of the site and on the Formula 1 land. Coupled with the large setbacks, trees and shrubs on Harbord, this southeast corner is the only part of the building that will be seen clearly and will act as a feature. But it will have the bushland above and behind it as seen from 90m away at the intersection of Harbord and Campbelltown Rd. So from the main viewpoint in the public domain, it will be framed with vegetation. From other points of observation, less will be seen. 30 The experts said the proposal now met the objectives of the LEP, the zone, and the underlying objectives of cl 37, and therefore the SEPP No.1 objection should be upheld. 31 The applicant was directed to prepare amended drawings from those marked up in evidence by Mr Fearns, and to be filed with the Court. This was done and gave more accurate documentation for assessment. Conclusions 32 The parties originally came to this Hearing with Consent Orders, all the technical concerns in the issues having been resolved by suitable amendments. 33 The further consideration of the SEPP No.1 objection to cl 37(d) of the LEP has resulted in a lessening of the bulk and visual impact of the proposal, and further improvements to the streetscape appearance and the landscape proposal. 34 Since the council has not seen these amendments, I cannot deal with the appeal as Consent Orders. However the amended plans are a substantial improvement and have less bulk than the council supported scheme. I see no reason to refer the plans back to the council. In this appeal I stand in the shoes of the council and must determine it. Updated agreed conditions were filed on 18 December 2008. 35 The SEPP N0.1 objection needs to be assessed under the relevant tests from Winten Property Group Vs North Sydney [2001]NSWLEC46: …………..SEPP 1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EP&A Act ? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection is well founded? 36 The 10m setback is a standard. The underlying objectives of the standard is as described in the council report of 6 May 2008 viz: + Provide and "open" streetscape rather than "built edge" urban form. The extent of this spatial openness is proportionate to the width/functions of a road ie higher order roads have a greater setback than a local road, and to + Provide sufficient opportunity for landscaping to address the street in scale with the development. 37 In addition to the evidence given by the experts on these objectives, I note that the site is irregular in shape and Rennie Rd is curved and creates the situation of there being no consistent street setback amongst the existing buildings. Still they manage to achieve an "open" look for the street, possibly partly due to the random juxtaposition of one to another with landscaping between. 38 Harbord Rd is obviously the more important thoroughfare, and the setbacks to the main building from it vary between 21m to 26m. If one takes into account the splayed boundary abutting Payten Reserve, and measures from the northwest end of the building to the road reserve there is about a 35m setback. Since Payten Reserve is bushland at that point, it is unlikely to be built upon and the proposal will appear from Harbord to be in a "bush" setting. 39 Within Rennie Rd, due to the existing buildings, the site is part of a precinct with a commercial character even though it is zoned industrial. All the sites in this end of Rennie Rd are built upon, so that character is established. The perception of the proposal in Rennie Rd, described by the experts, even though there are intrusions into the 10m setback, should be achievable and maintain the underlying objectives above. 40 In the circumstances approval of this modified proposal will support s 5(a) (i) and (ii) of the Environmental Planning & Assessment Act 1979, and compliance with the standard is unreasonable. 41 I have come to the conclusion that the amended SEPP No.1 objection is well founded in respect of the amended development, and the changes are such that they could have been required by conditions of consent. Therefore I see no reason sufficient to refuse the proposal subject to appropriate conditions being imposed. 42 Therefore the Orders of the Court are: 1. The appeal is upheld. 2. Development consent is granted to a motel at No. 1 Rennie Rd, Woodbine, containing 49 motel suites in part 4-storeys and part 2-storeys above the ground floor level containing carparking, reception, office and conference rooms and service areas as shown in the drawings listed in Annexure A hereto, and built and operated in accordance with the conditions in Annexure A hereto. 3. The exhibits are returned to the parties except Exhibits D, E, 1 and 3. ___________________ K G Hoffman Commissioner of the Court Ljr/kgh Annexure 'A' Conditions of Consent QSA Businesses Pty Ltd v Campbelltown CC 1 Rennie Road, Campbelltown – DA 2339/2007/DA-C GENERAL CONDITIONS The following conditions have been applied to ensure that the use of the land and/or building is carried out in such a manner that is consistent with the aims and objectives of the planning instrument affecting the land. For the purpose of these conditions, the term 'applicant' means any person who has the authority to act on or benefit of the development consent. 1. Approved Development The development shall take place in accordance with the following approved development plans and all associated documentation submitted with the application, except as modified by any conditions of this consent: Plan Drawing No. Revision Dated Site Plan SK.01.1 11 28 November 2008 First Floor Car Park Plan SK.02.1 4 1 December 2008 Second Floor Plan SK.03 4 1 December 2008 Third Floor Plan SK.04 4 1 December 2008 Fourth Floor Plan SK.05 4 1 December 2008 Revised North-South Elevations SK.06.1 2 1 December 2008 Revised West-East Elevations SK.07.1 4 1 December 2008 Cut and Fill Plan SK.09 3 30 August 2007 Site Analysis Plan SK.10 1 30 August 2007 Section Plan SK.11 1 30 August 2007 Signage Plan SK.12 P1 7 September 2007 Road Section SK.13 -- 28 November 2008 Landscape Plan LP.01/F F 28 October 2008 Landscape Elevations No. LE.01/C C 28 October 2008 Landscape plans to have a 3rd Spotted Gum tree, as in oral evidence, planted in the deep soil area between the 3 carpark spaces adjacent the porte-cochere and the street intersection boundary, adjacent the pedestrian access from the street corner. 2. Building Code of Australia All building work must be carried out in accordance with the provisions of the Building Code of Australia . In this clause, a reference to the Building Code of Australia is a reference to that Code as in force on the date the application for the relevant construction certificate is made. 3. Landscaping The provision and maintenance of landscaping shall be in accordance with the approved landscape plan including the engagement of a suitably qualified landscape consultant/ contractor for landscaping works. The landscaping approved along the southern and western elevations as detailed on the plans dated October 2008, drawn by Narelle Sonter Botanica, Drawing No. LE.01/C shall be advanced and/or mature species. 4. External Finishes The external finishes shall be in accordance with the approved plans and the schedule of finishes submitted with this application. Any proposed alterations to these finishes are considered to be a modification to the development consent and require separate approval by Council. 5. Garbage Room The garbage storage room identified on the approved plans shall: a. Be fully enclosed and shall be provided with a concrete floor, with concrete or cement rendered walls coved to the floor. b. The floor shall be graded to an approved sewer connection incorporating a sump and galvanised grate cover or basket. c. A hose cock shall be provided within the room. d. Garbage rooms shall be vented to the external air by natural or artificial means. 6. Deliveries Vehicles servicing the site shall comply with the following requirements: a. All vehicular entries and exits shall be made in a forward direction. b. All vehicles awaiting loading, unloading or servicing shall be parked on site and not on adjacent or nearby public roads. c. All deliveries to the premises shall be made to the loading bay/s provided. A traffic sign shall be placed adjacent to the driveway at the entrance of the property advising of the above information. Should the sign be damaged or removed, it shall be replaced within 48 hours. 7. Advertising Sign a. All signage is to be erected/supported in a safe and secure manner. b. At no time shall the intensity, period of intermittency and hours of illumination of the signage cause injury to the amenity of the neighbourhood. c. No signage on site shall flash, move or display electronic images. d. The advertising structure shall be maintained in a condition so as to not become unsightly so as to adversely affect the amenity of the surrounding area. 8. Lighting Illumination of the site is to be arranged to provide an appropriate level of lighting and in accordance with the requirements of Australian Standard 4282 (as amended) so as not to impact upon the amenity of the occupants of adjoining and nearby residential premises or traffic. 9. Storage of Goods All works, storage and display of goods, materials and any other item associated with the premises shall be contained wholly within the building. 10. Graffiti Removal In accordance with the environmental maintenance objectives of 'Crime Prevention Through Environmental Design', the owner/lessee of the building shall be responsible for the removal of any graffiti which appears on the buildings, fences, signs and other surfaces of the property within 48 hours of its application. 11. Serviced Motel The operation of the premises shall be carried out in accordance with the following requirements: a. The operation of the premises shall be carried out in accordance with any Police requirements; b. The installation of CCTV surveillance cameras in and around the premises, placed in strategic places such as the external entrance and exit doors. The surveillance tapes shall be kept for a minimum period of 14 days for viewing by the Police upon request. c. Footpath lighting shall be provided along the front entrance for the full frontage of the site. The location, design and illumination of such lighting shall ensure pedestrian safety and shall be at a minimum level of 10 lux in the horizontal and vertical plane. d. The management/licensee shall ensure that the behaviour of patrons entering and leaving the premises does not detrimentally affect the amenity of the neighbourhood. In this regard, the management shall be responsible for the control of noise, loitering and litter generated by patrons of the premises and shall ensure that people leave the premises and area in an orderly manner. If so directed by the Police or Council, the management is to employ private security staff to ensure that this condition is complied with to the satisfaction of Council. e. The hours of operation of the premises are: Monday: 7.00am to 11.00pm Tuesday: 7.00am to 11.00pm Wednesday: 7.00am to 11.00pm Thursday: 7.00am to 11.00pm Friday: 7.00am to 11.00pm Saturday: 7.00am to 11.00pm Sunday: 7.00am to 11.00pm f. Signs shall be placed in clearly visible positions within the serviced motel requesting patrons upon leaving the premises to do so quickly and quietly, having regard to maintaining the amenity of the area. g. No Public Entertainment, as defined under Local Government Act, 1993 shall be provided within the premises unless separately approved by a development application under the Environmental Planning and Assessment Act, 1979 and an application under Section 68 of the Local Government Act, 1993 . h. A public telephone shall be installed inside the premises for patrons to use at all times. 12. Engineering Design Works All designs of engineering works shall be carried out in accordance with the requirements set out with the design requirements of the Campbelltown (Sustainable) City DCP 2007 Volume 2. 13. Car Parking Spaces Seventy-one (71) car parking spaces shall be designed, sealed, line marked and made available to all users of the site in accordance with Australian Standards 2890.1 and 2 (as amended). 14. Accommodation The motel will provide overnight, short-term and/or corporate related accommodation only. There is to be no permanent residency provided in any of the rooms at any time. 15. deleted 16. Air Conditioning Air conditioning equipment shall be mounted and/or appropriately screened so they are not visible from any public places. 17. External Finishes of the Car Parking Structure In order to add visual interest to the deck car parking structure and associated ramp, the external facades of those structures visible from a public place shall be finished in a decorative stone cladding that complements the design, materials, colours and finishes approved for the main building. 18. Garbage Bin Collection The garbage bins are to be placed out on the kerb by an employee of the serviced motel on the nominated garbage bin collection day and returned to the garbage storage area within the building once they have been emptied. 19. Conference Room The use of the conference room shall be strictly ancillary to the predominant use of the site as a Serviced Motel. The use of the conference room shall be limited to motel occupants only and shall not be made available as a commercial facility for use by the general public PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE The following conditions of consent must be complied with prior to the issue of a construction certificate by either Campbelltown City Council or an accredited certifier. All necessary information to comply with the following conditions of consent must be submitted with the application for a construction certificate. 20. Water/Electricity Utility Services Prior to Council or an accredited certifier issuing a construction certificate, the applicant shall submit written evidence of the following service provider requirements: a. Integral Energy - A letter of consent demonstrating that satisfactory arrangements have been made to service the proposed development. b. Sydney Water - The submission of a 'Notice of Requirements' under Section 73 of the Water Board (Corporation) Act 1994. 21. Telecommunications Utility Services Prior to Council or an accredited certifier issuing a construction certificate, the applicant shall submit written evidence demonstrating that satisfactory arrangements have been made with a telecommunications carrier to service the proposed development. Advice on telecommunications infrastructure can be obtained by the notification tool located at https://development.telstrasmartcommunity.com. 22. Stormwater Management Plan (Development) Prior to Council or an accredited certifier issuing a construction certificate, a plan indicating all engineering details and calculations relevant to site regrading and the collection and disposal of stormwater from the site, building/s and adjacent catchment, shall be submitted for approval. Floor levels of all buildings shall be above finished site levels and stormwater shall be conveyed from the site to the nearest drainage system under Council's control. All proposals shall comply with the design requirements of the Campbelltown (Sustainable) City DCP 2007 Volume 2. 23. Inundation by Flood Waters Prior to Council or an accredited certifier issuing a construction certificate, the applicant shall submit plans and detailed hydrological and hydraulic calculations (all to AHD) prepared by an experienced practising hydraulics engineer in accordance with the design requirements of the Campbelltown (Sustainable) City DCP 2007 Volume 2 as it is considered that the subject development may be at risk of inundation by floodwaters due to overland flow affecting the property. The plans shall include details of: a. The calculated 100 year flows at this location and the extent of any inundation affecting the development; b. Any effect on adjacent properties, public or private, likely to be caused by the development; and c. Measures proposed to ensure compliance and with the design requirements of the Campbelltown (Sustainable) City DCP 2007 Volume 2. In addition to the above: i. Site fill levels shall be at or above the calculated 100 year ARI level and habitable floor levels shall be in accordance with the freeboard requirements in accordance with the design requirements of the Campbelltown (Sustainable) City DCP 2007 Volume 2. ii. Any filling required shall be undertaken in accordance with Council's 'Specification for Construction of Subdivision Road and Drainage Works' (as amended), AS3789 'guidelines for Earthworks for Commercial and Residential Development (as amended) , and the approved construction drawings. iii. Where finished floor and surface levels related to flooding are specified as above, a 'work as executed' plan certified by a registered surveyor shall be submitted to Council for approval prior to release of the occupation certificate. 24. Work on Public Land Prior to Council or an accredited certifier issuing a construction certificate, the applicant shall obtain written consent from Council for any proposed work on public land. All inspections, approval and restoration of work shall be undertaken by Council at the applicants expense prior to the principal certifying authority issuing an occupation certificate. 25. Section 94A Developer Contribution - Community Facilities and Services Prior to Council or an accredited certifier issuing a construction certificate (or where a construction certificate is not required, a subdivision certificate), the applicant shall provide a receipt for the payment to Council of a community facilities and services contribution in accordance with the provisions of the Campbelltown City Council Section 94A Development Contributions Plan . For the purposes of calculating the required S94A contribution, where the value of the proposed development exceeds $100,000, the applicant is required to include a cost summary report with the construction certificate application setting out a cost estimate of the proposed development in accordance with the following: · where the value of the proposed development is greater than $100,000 but less than $500,000 - a cost summary report by a person who, in the opinion of the Council, is suitably qualified to provide a cost summary report (Cost Summary Report Template 1), or · where the value of the proposed development is $500,000 or more - a detailed cost report by a quantity surveyor who is a registered member of the Australian Institute of Quantity Surveyors (Cost Summary Report Template 2). Copies of the Cost Summary Report Templates 1 and 2 are located under "Developer Contributions" on Council's web site (www.campbelltown.nsw.gov.au) or can be collected from Council's Planning and Environment Division during normal business hours. All cost estimates will be subject to indexation on a quarterly basis relative to the Consumer Price Index - All Groups (Sydney) where the contribution amount will be based on the indexed value of the development applicable at the time of payment. PRIOR TO THE COMMENCEMENT OF ANY WORKS The following conditions of consent have been imposed to ensure that the administration and amenities relating to the proposed development comply with all relevant requirements. These conditions are to be complied with prior to the commencement of any works on site. 26. Erosion and Sediment Control Prior to the commencement of any works on the land, adequate/approved erosion and sediment control measures shall be fully installed/implemented. 27. Erection of Construction Sign Prior to the commencement of any works on the land, a sign/s must be erected in a prominent position on the site: a. Showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours; b. Stating that unauthorised entry to the work site is prohibited; and c. Pollution warning sign promoting the protection of waterways (issued by Council with the development consent); d. Stating the approved construction hours in which all works can occur. e. Showing the name, address and telephone number of the principal certifying authority for the work. Any such sign/s is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed. 28. Toilet on Construction Site Prior to the commencement of any works on the land, 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 thereof. Each toilet provided must be a standard flushing toilet and be connected to: a. A public sewer, or b. If connection to a public sewer is not practicable, to an accredited sewage management facility approved by Council, or c. If connection to a public sewer or an accredited sewage management facility is not practicable, to some other management facility approved by Council. 29. Trade Waste Prior to the commencement of any works on the land, a trade waste facility shall be provided on-site to store all waste pending disposal. The facility shall be screened, regularly cleaned and accessible to collection vehicles. 30. Vehicular Access During Construction Prior to the commencement of any works on the land, a single vehicle/plant access to the site shall be provided to minimise ground disturbance and prevent the transportation of soil onto any public place. Single sized 40mm or larger aggregate placed 150mm deep, and extending from the street, kerb/road to the site is to be provided as a minimum requirement. 31. Public Property Prior to the commencement of any works on site, the applicant shall advise Council of any damage to property controlled by Council which adjoins the site including kerbs, gutters, footpaths, walkways, reserves and the like. Failure to identify existing damage may result in all damage detected after completion of the development being repaired at the applicant's expense. 32. Footpath and Vehicular Crossing Levels Prior to the commencement of any work, footpath and vehicular crossing levels are to be obtained from Council by lodging an application on the prescribed form. 33. Demolition Works Demolition works shall be carried out in accordance with the following: a. Prior to the commencement of any works on the land, a detailed demolition work plan designed in accordance with Clause 1.7.3 of Australian Standard AS 2601-2001 – The Demolition of Structures, prepared by a suitably qualified person with suitable expertise or experience, shall be submitted to and approved by Council and shall include the identification of any hazardous materials, method of demolition, precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials. b. Prior to commencement of any works on the land, the demolition Contractor(s) licence details must be provided to Council. c. The handling or removal of any asbestos product from the building/site must be carried out by a NSW Work Cover licensed contractor irrespective of the size or nature of the works. Under no circumstances shall any asbestos on site be handled or removed by a non-licensed person. The licensed contractor shall carry out all works in accordance with NSW Work Cover requirements. d. An appropriate fence preventing public access to the site shall be erected for the duration of demolition works e. Immediately prior to the commencement of the demolition or handling of any building or structure that contains asbestos, the applicant shall request that the principal certifying authority attend the site to ensure that all appropriate safety measures are in place. The applicant shall also notify the occupants of the adjoining premises and Workcover NSW prior to the commencement of any works. 34. Hoarding / Fence Prior to the commencement of any works, a hoarding or fence must be erected between the work site and a public place if the work involved in the development is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or if the building involves the enclosure of a public place in accordance with Work Cover requirements. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place. A separate land use application under Section 68 of the Local Government Act 1993 shall be submitted to and approved by Council prior to the erection of any hoarding on public land. DEVELOPMENT REQUIREMENTS DURING CONSTRUCTION The following conditions of consent have been imposed to ensure that the administration and amenities relating to the proposed development comply with all relevant requirements. These conditions are to be complied with during the construction of the development on site. 35. Construction Work Hours All work on site shall only occur between the following hours: Monday to Friday 7.00am to 6.00pm Saturday 8.00am to 1.00pm Sunday and public holidays No Work. 36. Erosion and Sediment Control Erosion and sediment control measures shall be provided and maintained throughout the construction period in accordance with the requirements of the manual – Soils and Construction (2004) (Bluebook), the approved plans, Council specifications and to the satisfaction of the principal certifying authority. The erosion and sedimentation control devices shall remain in place until the site has been stabilised and revegetated. Note: On the spot penalties up to $1,500 will be issued for any non-compliance with this requirement without any further notification or warning. 37. Work Zones All loading, unloading and other activities undertaken during construction shall be accommodated on the development site. Where it is not practical to load, unload or undertake specific activities on the site during construction, the provision of a 'Work Zone' external to the site may be approved by Council following an application being submitted to Council's Traffic Unit outlining the proposal for the work zone. The application is required to be made prior to the commencement of any works and is to include a suitable 'Traffic/Pedestrian Management and Control Plan' for the area of the work zone that will be affected. All costs of approved traffic / pedestrian control measures, including relevant fees, shall be borne by the applicant. 38. Dust Nuisance Measures shall be implemented to minimise wind erosion and dust nuisance in accordance with the requirements of the manual – 'Soils and Construction (2004) (Bluebook) . All haul roads and construction areas shall be treated/ regularly watered to the satisfaction of the principal certifying authority. 39. Public Safety Any works undertaken in a public place are to be maintained in a safe condition at all times in accordance with AS 1742.3 . Council may at any time and without prior notification make safe any such works Council considers to be unsafe, and recover all reasonable costs incurred from the applicant. 40. Compliance with Council Specification All design and construction work, lots and roads created shall be in accordance with Council's requirements as follows: a. Council's specification for Construction of Subdivisional Road and Drainage Works (as amended); b. Council's Campbelltown (Sustainable) City DCP 2007 Volume 2, c. 'Soils and Construction (2004) (Bluebook); and d. Relevant Australian standards and State Government publications. The applicant shall provide water conduits, common drainage lines or kerb outlets, and laybacks as required. 41. Footpath The footpath adjoining the subject land shall be regraded, topsoiled and turfed in accordance with levels to be obtained from Council. The footpath formation may need to be extended beyond the boundary to provide an acceptable transition to existing footpath levels. 42. Industrial / Commercial Driveway and Layback Crossing The applicant shall provide reinforced concrete driveways and layback crossings to Council's Industrial/Commercial Vehicle Crossing Specification and Engineering Design Guide for Development (as amended) . A separate application for this work, which will be subject to a crossing inspection fee, fixing of levels and inspections by Council, must be lodged with Council. Conduits must be provided to service authority requirements. 43. Associated Works The applicant shall undertake any works external to the development made necessary by the development, including additional road and drainage works or any civil works required as directed by Council to make a smooth junction with existing work. 44. Redundant Laybacks All redundant layback/s shall be reinstated to conventional kerb and gutter to Council's Specification for Construction of Subdivisional Road and Drainage Works (as amended) and with the design requirements of the Campbelltown (Sustainable) City DCP 2007 Volume 2. 45. Completion of Construction Works Unless otherwise specified in this consent, all construction works associated with the approved development shall be completed within twenty four (24) months of the date of the notice of the intention to commence construction works under Section 81A of the Act. In the event that construction works are not continually ongoing, the applicant shall appropriately screen the construction site from public view with architectural devices and landscaping to Council's written satisfaction. PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE The following conditions of consent must be complied with prior to the issue of an occupation certificate by either Campbelltown City Council or an accredited principal certifying authority. All necessary information to comply with the following conditions of consent must be submitted with the application for an occupation certificate. Note: For the purpose of this development consent, any reference to "occupation certificate" shall also be taken to mean "interim occupation certificate". 46. Section 73 Certificate Prior to the principal certifying authority issuing an occupation certificate, the submission of a Section 73 certificate issued by Sydney Water . 47. Completion of External Works Prior to the principal certifying authority issuing an occupation certificate, all external works, repairs and renovations detailed in the schedule of treatment/finishes, landscaping, driveways, fencing and retaining walls to be completed to the satisfaction of the consent authority. 48. Restoration of Public Roads Prior to the principal certifying authority issuing an occupation certificate, the restoration of public road and associated works required as a result of the development shall be carried out by Council and all costs shall be paid by the applicant. 49. Public Utilities Prior to the principal certifying authority issuing an occupation certificate, adjustments to public utilities required as a result of the development shall be completed at the sole cost of the applicant. 50. Registration of Levels Prior to the principal certifying authority issuing an occupation certificate, a registered surveyor shall certify that the finished floor and finished surface levels of the development comply with the relevant condition in the development consent. An electronic copy of this work as executed information shall also be submitted to Council, complying with the following provisions: 1. MGA 94 (Map Grid of Australia 1994) Zone 56 - Coordinate System. 2. AutoCAD DWG format 3. All surveyed points will be required to be submitted in a point format (x,y,z) in either an Excel table or a comma separated text file format and to MGA - 56 co-ordinate system 4. Datum to be AHD (Australian Height Datum) 51. Retaining Prior to the principal certifying authority issuing an occupation certificate, all excavated and filled areas shall be battered to a slope of not greater than 1:2 or similarly be retained in accordance with the approved retaining wall. 52. Council Fees and Charges Prior to the principal certifying authority issuing an occupation certificate, the applicant shall obtain written confirmation from Council that all applicable Council fees and charges associated with the development have been paid in full. Written confirmation will be provided to the applicant following Council's final inspection and satisfactory clearance of the public area adjacent the site. ADVISORY NOTES The following information is provided for your assistance to ensure compliance with the Environmental Planning and Assessment Act 1979, Environmental Planning and Assessment Regulation 2000, other relevant Council Policy/s and other relevant requirements. This information does not form part of the conditions of development consent pursuant to Section 80A of the Act. Advice 1. Environmental Planning and Assessment Act 1979 Requirements The Environmental Planning and Assessment Act 1979 requires you to: a. Obtain a construction certificate prior to the commencement of any works. Enquiries regarding the issue of a construction certificate can be made to Council's Customer Service Centre on 4645 4608. b. Nominate a principal certifying authority and notify Council of that appointment prior to the commencement of any works. c. Give Council at least two days notice prior to the commencement of any works. d. Have mandatory inspections of nominated stages of the construction inspected. e. Obtain an occupation certificate before occupying any building or commencing the use of the land. Advice 2. Disability Discrimination Act Your attention is drawn to the existence of the Disability Discrimination Act . A construction certificate is required to be obtained for the proposed building/s, which will provide consideration under the Building Code of Australia , however, the development may not comply with the requirements of the Disability Discrimination Act . This is the sole responsibility of the owner, builder and applicant. Advice 3. Retaining Walls A separate development application shall be submitted and approved for any retaining walls that exceed 1 metre in height. Advice 4. Buried Waste Should buried materials/wastes or the like be uncovered during the excavation of footings or trenches on site works, Council is to be contacted immediately for advice on the treatment/removal methods required to be implemented. Advice 5. Covenants The land upon which the subject building is to be constructed may be affected by restrictive covenants. Council issues this approval without enquiry as to whether any restrictive covenant affecting the land would be breached by the construction of the building, the subject of this permit. Persons to whom this permit is issued must rely on their own enquiries as to whether or not the building breaches any such covenant. Advice 6. Inspection Within Public Areas All works within public areas are required to be inspected at all stages of construction and approved by Council prior to the principal certifying authority releasing the Occupation Certificate. Advice 7. Adjustment to Public Utilities Adjustment to any public utilities necessitated by the development is required to be completed prior to the occupation of the premises and in accordance with the requirements of the relevant Authority. Any costs associated with these adjustments are to be borne by the applicant. Advice 8. Salinity Please note that Campbelltown is an area of known salinity potential. As such any salinity issues should be addressed as part of the construction certificate application. Further information regarding salinity management is available within Council's Engineering Design Guidelines for Development (as amended). Advice 9. Asbestos Warning Should asbestos or asbestos products be encountered during construction or demolition works you are advised to seek advice and information prior to disturbing the material. It is recommended that a contractor holding an asbestos-handling permit (issued by Work Cover NSW), be engaged to manage the proper disposal and handling of the material. Further information regarding the safe handling and removal of asbestos can be found at: www.environment.nsw.gov.au www.nsw.gov.au/fibro www.adfa.org.au www.workcover.nsw.gov.au Alternatively, call Work Cover Asbestos and Demolition Team on 8260 5885. ________________________ K G Hoffman Commissioner of the Court kgh 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.