Land and Environment Court of New South Wales CITATION : Icon Hospitality Group Pty Ltd v Council of the City of Sydney [2010] NSWLEC 1186 This decision has been amended. Please see the end of the judgment for a list of the amendments. APPLICANT Icon Hospitality Group Pty Ltd PARTIES : RESPONDENT Council of the City of Sydney FILE NUMBER(S) : 10179 of 2010 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- appeal against condition restricting hours of operation for alterations and additions to an existing hotel - noise - intensification of use Environmental Planning and Assessment Act 1979 LEGISLATION CITED: South Sydney Local Environmental Plan 1998 South Sydney Urban Design Development Control Plan 1997 City of Sydney Late Night Trading Premises Development Control Plan 2007 Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 CASES CITED: Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10 Vinson v Randwick Council [2005] NSWLEC 142 Zhang v Canterbury City Council (2001) 115 LGERA 373 DATES OF HEARING: 1 July 2010 DATE OF JUDGMENT: 20 July 2010 APPLICANT Mr P Clay, barrister SOLICITORS Gadens Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr A Hawkes, solicitor SOLICITORS Council of the City of Sydney JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 20 July 2010 10179 of 2010 Icon Hospitality Group Pty Ltd v Council of the City of Sydney JUDGMENT 1 COMMISSIONER: This is an appeal against condition 2 imposed by the Council of the City of Sydney (the council) on the approval of Development Application D/2009/1788 for alterations and additions to the Dolphin Hotel at 412-416 Crown Street Surry Hills (the site). Background 2 The site originally comprised a part two and part three-storey building at 412-414 Crown Street however the building was extended during 1995 with the acquisition of 416 Crown Street. The 3-storey interwar free classical style building located at 412-414 is a listed heritage item and is also located within the Bourke Street North Conservation Area and the Crown Street Heritage Streetscape although no heritage issues are raised by the council. 3 A hotel has been operating from the site since the late 1850's and has been the subject of a number of alterations over time. Currently the hotel contains a gaming room, bottle shop, cool room, restaurant, bar, storage areas and a courtyard at ground level directly adjoining Sheas Lane. A dining area, kitchen and staff offices are located on a mezzanine level. A bar, lounge and terrace are located on the first floor. An outdoor terrace fronts Crown Street and a void is located in the centre of the first floor. A function room and toilet are located at the second level. There are six public entrances to the hotel, four on Crown Street and two via Fitzroy Street. 4 The current trading hours of the hotel are 10 a.m. to midnight Monday to Saturday and 10 a.m. to 10 p.m. Sunday. Council has also approved a footpath license for the Crown Street frontage that permits tables and chairs between 11 a.m. and 10 p.m. seven days per week. 5 D/2009/1788 was approved by the council on 16 February 2010 and provides for the removal of the existing iron roof over part of the first floor on the south-eastern corner of the hotel, where the existing kitchen and staff offices are located, to create a new outdoor terrace and covered lounge area. The new area will have an area of around 85 sq m and a maximum capacity of 80 persons; 50 persons in the outdoor terrace and 30 persons in the covered lounge area. The condition in dispute 6 Condition 2 states: ( 2) HOURS OF OPERATION The outdoor terrace located on the first floor at the rear of the subject site is to be closed at 8.00 p.m. each night. 7 Subject to a Plan of Management being submitted and approved by the council, the council proposes an additional two hours trading to 10 p.m. on the outdoor terrace and covered lounge area for a 12 month trial period of one year. On this basis, the council submits that condition 2 could be amended to read: (2) HOURS OF OPERATION (a) The hours of operation of the outdoor terrace and covered lounge must be restricted to between 10.00 a.m. and 8.00 p.m. Monday to Sunday. (b) Notwithstanding (a) above from, the use may continue to operate between 8.00 p.m. and 10.00 p.m. for a trial period of one year from the date of issue of the Occupation Certificate for the new works. (c) A further application may be lodged to continue trading hours outlined in (b) above before the end of the trial period. Council's consideration of a proposed continuation and/or extension of the hours permitted by the trial will be based on, among other things, the performance of the operator in the relation to compliance with development consent conditions, any substantiated complaints received and any views expressed by the Police. 8 The applicant rejects the additional two hours trading to 10 p.m. on the outdoor terrace and covered lounge area and proposes that condition 2 should be amended to reflect the existing hotel operating hours; being 10 a.m. to 12 midnight Monday to Saturdays and 10 a.m. to 10 p.m. Sundays. The applicant, however accepts that these extended operating hours can be subject to a 12 month trial period. The contentions 9 The contentions relate generally to impacts on the amenity of adjoining and nearby residential properties. The principle impact relates to noise although the intensification of the use of the hotel and potential additional disturbances from anti -social behaviour are also raised. Relevant planning controls 10 The site is within Zone 10 Mixed Use under South Sydney Local Environmental Plan 1998 (LEP 1998). The proposal is permissible with consent within this zone. Clause 10 provides that consent must not be granted unless the proposal is consistent with the objectives of the zone. The relevant objectives are: ( a) to allow, in appropriate circumstances, a mixture of compatible land uses such as residential, retail, commercial, light industrial and industrial development, and (b) to promote mixed use planning by locating mutually supportive and compatible uses such as residential uses, places of employment and retail uses in close proximity to each other so as to minimise vehicular travel, and . (h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area. 11 South Sydney Urban Design Development Control Plan 1997 (DCP 1997) applies. Part D, Sec 6 provides objectives for managing cumulative impacts and trade-offs. The relevant performance criteria are: Development takes into account cumulative impacts of past development activity and does not exacerbate existing negative social impacts issues. Development identifies and responds to opportunities to benefit the local community and provides measures to mitigate against negative impacts. 12 Part F, Sec 4 of DCP 1997 provides design criteria for mixed use development and provides precincts with differing levels of non-residential development. The site is located within Precinct 2 - Mixed Use Transitional where the planning intent is to encourage medium density urban housing and a range of compatible vibrant non-residential uses. 13 Part B, Sec 4 of DCP 1997 provides urban design principles in addition to design controls to ensure a sustainable, healthy environment. This section provides that non-residential buildings are to be designed and operated to reduce their operational impact on adjacent residential areas. 14 City of Sydney Late Night Trading Premises Development Control Plan 2007 (the Late Night Trading DCP) applies. The relevant objectives are: b) ensure that late-night trading premises will have minimal adverse impact on the amenity of residential or other sensitive land uses; l) ensure that appropriate hours permitted for outdoor trading; and m) ensure a consistent approach to the assessment of applications for premises seeking night trading hours. 15 Chapter 2, Control 2.4 defines the site as a Category "A" Premise High Impact. Map 3.2 identifies the site as being within a "Local Centre Area". The council also classified the outdoor terrace and covered lounge as "outdoors" although this was not fully accepted by the applicant. Based on the council's classification, the base trading hours are 10 a.m. to 8 p.m. and the extended trading hours are 10 a.m. to 10 p.m. For comparison purposes, if the area was classified as "indoor" the base trading hours are 10 a.m. to 10 p.m. and the extended trading hours are 10 a.m. to midnight. 16 Chapter 2, Control 2.8 provides that the base hours are the standard range of trading hours and the extended trading hours may be approved on a trial basis and may be extended depending on the performance of the operator during the trial period. The evidence 17 Expert town planning expert evidence was provided by Ms Kyeema Doyle for the council and Ms Kristy Lee for the applicant. Expert acoustic evidence was provided by Mr Graham Atkins for the council and Mr Steven Cooper for the applicant. In addition, four residents from Fitzroy Street and Foveaux Street provided evidence on site. They opposed the proposed change in hours of operation for a number of reasons, including: - noise impacts due to the proximity of the outdoor terrace and covered lounge to residential properties, - the natural amphitheatre feature of the local area which can amplify sound, - the direct line of sight from residential properties to the subject area, - the difficulty in understanding the proposal with ongoing amendments, - overlooking, and - increased number of patrons that will exacerbate the existing problems of traffic movements and anti-social behaviour in Sheas Lane. Noise The land use context 18 The surrounding area is best characterised as mixed. The adjoining terraces to the south are occupied by retail, medical and commercial uses. A 3-storey commercial warehouse is located directly across Crown Street and the St Vincent Paul Society and Salvation Army crisis centre accommodation is located directly opposite to the west. Residential terraces are located to the east along Fitzroy and Foveaux Streets, with the closest terrace located on the opposite side of Sheas Lane. 19 Given the location of the proposed outdoor terrace and covered lounge, the focus on noise impacts centred on the terraces located to the east along Fitzroy and Foveaux Streets. The evidence 20 Mr Atkins provided a statement of evidence and Mr Cooper provided a statement of evidence and a supplementary statement. Mr Atkins and Mr Cooper also provided a joint report. They agreed that the Office of Liquor, Gaming and Racing (OLGR) noise criteria for licensed premises should be applied to the application. As the hotel does not trade after midnight then the appropriate residential boundary criterion is background +5dB when measured in octave bands. They also agreed that the residential properties potentially exposed to noise from the proposed development are located to the east in Fitzroy and Foveaux Streets and that background noise is controlled by road traffic, noise from the hotel, mechanical plant from other premises and pedestrian traffic. 21 Mr Cooper concludes that noise emitted from the proposed outdoor terrace and covered lounge will result in sound level contributions below the specified noise criterion when assessed as just that noise component or alternatively when assessed as cumulative noise from patrons and music of the hotel. This conclusion relies on the inclusion of a parapet around the edge of outdoor terrace that denies any direct line of sight (and consequent noise emissions) from the outdoor terrace to any residential properties to the east. 22 While there were originally some concerns about the parapet and its impact on the noise assessments by Mr Atkins, there was ultimately an understanding on the consequences of the inclusion of the parapet. Similarly, some concern was expressed at the absence of relative levels on the plans, however it was also agreed that the plans were sufficient for the assessment of any noise impacts. At the direction of the Court, additional plans were prepared to clarify any uncertainty. 23 Mr Atkins does not accept the conclusions of Mr Cooper for: - the receptor location for noise measurements, - allowances made for the conversation of patrons in the outdoor terrace, and - allowances made for reflected noise from the outdoor terrace on adjoining residential properties. The receptor location 24 Mr Atkins states that the OLGR criterion should be amended to include measurement at "any residential boundary, balcony or window to habitable room". While this varies the standard OLGR criterion where measurement is taken at "the boundary of any affected residence", this approach has been used on other occasions. Mr Cooper disagrees and maintains that the OLGR criterion should be used. Conversation of patrons 25 Mr Atkins states that the modelling undertaken by Mr Cooper is based on 50 patrons and not 80 patrons. In his assessment, the additional patrons would increase the noise from the proposed terrace by up to 2 dBA. Mr Atkins also states that the modelling undertaken by Mr Cooper for 50 persons results in a sound power level 86dBA for 50 patrons whereas his calculations result in a power level of 96dBA. This power level is based on 50 persons speaking in a loud voice (based on a range of loud, raised or normal voice levels) as Mr Atkins suggests that this is likely to occur given the presence of music in the hotel that has a maximum level of 85dBA. 26 Mr Cooper disagrees with the conclusions of Mr Atkins. He states that 50 patrons is the appropriate number as this is the number of patrons allocated to proposed outdoor terrace. The additional 30 patrons are allocated to the covered lounge, which does not have the same acoustic consequences for adjoining residents as the noise from the open terrace because of the shielding of the covered area. Mr Cooper states that his modelling of patron noise is based on previous measurements taken in hotels and relies on a spatial averaging, that is noise generated by patrons in no specific direction. His assessment uses 50% of the 50 people in the outdoor terrace talking at the same time with raised voices. Any reliance on the maximum level of 85dBA from inside the hotel by Mr Atkins is incorrect according to Mr Cooper as this noise level would be attenuated when detected in the outdoor terrace. Typically, there is a 10 dBA reduction from inside to outside via an open doorway and then further reductions with greater distance from the door opening. In any event, if loud voices were used for the assessment and there was an increase in the level by 10 dBA then Mr Cooper calculates that the cumulative noise levels are still below the appropriate noise goal of background + 5dBA. Mechanical plant noise 27 Mr Atkins states that noise from the kitchen exhaust fan does not satisfy the council's general noise criterion of background + 5dBA based on an audit measurement undertaken on Friday 28 May 2010. No assessment has been provided to evaluate noise from the remaining plant installed on the hotel or proposed as part of the proposed alterations. In his discussions with local residents, Mr Atkins notes that the residents have identified mechanical plant installed on the hotel premises as a noise source. 28 Mr Cooper states that there is no additional plant associated with the proposed alterations and additions. He states that the noise contribution of the exhaust ducts on the eastern side of the hotel is significantly less than the background noise level. Mr Cooper stated that he did not detect any other mechanical plant at the hotel to be operating. He notes that noise from a refrigeration plant in the basement of the adjoining property at 410 Crown Street may be the cause of the disturbance and this may have been incorrectly attributed to the hotel. 29 The supplementary report of Mr Cooper accepts that the kitchen exhaust fan is generally operating at a level of noise that exceeds the specification of the fan. He proposes an inspection of the fan to ascertain the basis of that exceedance with remedial work to be undertaken to address the exceedance. It was also agreed that the kitchen exhaust fan has the potential to operate after the hotel has ceased trading and it is agreed that a condition be imposed to provide a time clock that prohibits the operation of the kitchen exhaust fan between 11:30 p.m. and 9 a.m. Reflected noise 30 Mr Atkins states that noise from the outdoor terrace and covered lounge will be reflected around the residential area to the east around Fitzroy and Foveaux Streets because of the bowl-like topography of the area. Mr Atkins states that the effect is difficult to model however he estimates that this effect could potentially increase noise levels by around 2-3 dBA. This was a concern also raised by residents of the area. 31 Mr Cooper largely rejects the conclusions of Mr Atkins. He agrees that reflected noise is difficult to model because of a range of factors, including the different ambient noise levels at different locations, the direction of reflected of sound waves because of the location and the different surfaces of buildings. He states however that sound waves suffer a loss of energy with increased distance and when reflected from other surfaces. In his opinion, reflected noise would not add to overall noise in the area. At best, there would be a maximum increase of around 0.5 dBA, which would not be noticeable. Findings 32 I do not accept that the change to the receptor location suggested by Mr Atkins is appropriate given the findings in Telstra Corporation Limited v Hornsby Shire Council (2006) 146 LGERA 10 (at 98 and 99) where it was found that it is not appropriate to set aside or disregard an authoritative and scientifically credible standard or create a new and different standard. While the circumstances are not identical in this case, as the standard in Telstra was an Australian Standard, the principle is no less important. The standard OLGR criterion is used widely and as I understand, currently applies to the operation of the hotel. I also note that the amendment suggested by Mr Atkins was not adopted by the council in their draft conditions. 33 On the other matters in dispute between Mr Atkins and Mr Cooper, I agree with the conclusions of Mr Cooper. The modelling undertaken by Mr Cooper for noise generated by patrons should be preferred above the approach suggested by Mr Atkins. I accept that 50 patrons is the appropriate number of patrons for modelling of the noise impacts of adjoining residential properties. The other 30 patrons will be located within the covered lounge area and will not generate the same noise impacts on adjoining residential properties because of the screening effects of the covered area. It is reasonable that these patrons be excluded from the modelling. While it is not impossible, I am satisfied that it is highly improbable that a maximum capacity of 50 patrons in the open terrace will all be speaking in a loud voice at the same time. In my view, Mr Cooper's assessment based on 25 patrons speaking with raised voices is a more reasoned approach and would more likely reflect the actual situation in the open terrace area. 34 The issue of reflected noise was not addressed in any analytical way by the experts, largely because of the difficulty in carrying out this task. I understood there to be no disagreement by the experts that there is no direct line of sight from any area within the open terrace to any residential property because of the inclusion of the parapet wall around this area. It follows that there will also be no direct source of noise to any residential property. If there is any reflected noise, I am satisfied that it is more likely to be within the range suggested by Mr Cooper and its effect would be unnoticeable. I also accept Mr Cooper's evidence that reflected noise will suffer a loss of energy with increased distance and when reflected from other surfaces thereby further reducing any impact. Can the additional trading hours be justified? 35 Randall Pty Ltd v Leichhardt Council [2004] NSWLEC 277 establishes principles for the assessment of an extension or intensification of a use which may have an adverse impact on residential amenity, such as a hotel. These are: First, is the impact of the operation of the existing use on residential amenity acceptable? If the answer is no, then an extension or intensification, would be unacceptable unless there is no overall increase in impact or there are measures proposed which would mitigate the existing impact. Second, if the answer is yes, is the impact of the proposed extension or intensification still acceptable? 36 These planning principles are expanded in Vinson v Randwick Council [2005] NSWLEC 142 to include: What are the adverse impacts of the present trading hours, permitted number of patrons and permitted activities? Evidence of anti-social behaviour at or linked to the premises taken from records such as the police COPS system and/or other police records and/or diaries kept by local residents is preferable to generalised anecdotal evidence that cannot be tested by the applicant against any records kept by the operator of the premises. A similar position applies to complaints about other amenity impacting behaviour such as noise from people on the premises or its plant and equipment; noise from entertainment provided on the premises or the noise necessarily arising from patrons such as car doors, engines starting or late-night conversations in residential streets in the vicinity. Demand for on-street parking may also be relevant. In assessing the likely adverse impact of increased trading hours, permitted number of patrons or permitted activities for licensed premises, the objectors' fears of adverse impacts, no matter how genuinely felt, are relevant only to the extent that there is a reasonable probability that impacts will occur . What measures are in place to address those impacts? Measures include the number and times of engagement of security personnel, designated duties performed by them together with patrolling patterns. Identification of and responses to specific trouble spots should be considered. The method and timing of street litter collection are also relevant. For premises that provide entertainment, noise control measures that do not require intervention by an operator may also be relevant. How are those measures documented? A well-documented management plan for the premises and its availability to local residents is a positive factor. The measures that are currently in place to record and respond to complaints made by residents are also relevant. Have those measures been successful? The period during which the control measures (for the current trading hours, permitted number of patrons and permitted activities) have been operating is relevant to enable assessment of the likely success of their being applied to extended hours. If the present management regime has been in operation for a relatively short period, or has been unsuccessful or not fully implemented, less weight can be given to it than to a management regime which has succeeded in reducing antisocial behaviour. What additional measures are proposed by the applicant or might otherwise be required? If any extension of hours, numbers or activities is likely to be acceptable but only subject to additional measures to reduce noise or anti-social behaviour, a trial period may be appropriate to test those measures. 37 If the proposed development is assessed against the principles in Randall and Vinson, the evidence of the residents indicated that the hotel was having an adverse impact on their residential amenity. The resident evidence suggests that the main, but not only, source of noise impact is from the open terrace area on the ground floor adjoining Sheas Lane. 38 Little other evidence was provided to the Court on impacts from the hotel. The police, notwithstanding efforts by the council to provide comments on the application, provided no comments. No Computerised Operational Policing System (COPS) reports on any incidents for the hotel were provided. Ms Doyle's evidence did not indicate that she had inspected the site between 10 am and midnight, so I presume her concerns are based on the concerns expressed by the local residents rather than first hand observations. Importantly, Ms Doyle's evidence indicates there is "no history of any serious or repeated incidents of anti-social behaviour on the premises or its immediate vicinity in the past 10 years arising from patrons of the premises". Further "police records from January 2009 show no significant issues reported against the venue". From council's records, there have been six complaints in the past two years although none relate to hotel patron behaviour. It is also worth noting that a resident objector described the hotel as being "well-managed". 39 The potential impact from the open terrace area on the ground floor adjoining Sheas Lane has been recognised by the operators of the hotel who have voluntarily reduced the hours of this area to 10 p.m. when the remainder of the hotel operates to midnight. While this area does not form part of this application, these hours are detailed in the Plan of Management. 40 Randall and Vinson ask whether there are measures proposed which would mitigate any existing impact. A similar requirement is found in Part D, Sec 6 of DCP 1997. The principle measure proposed by the applicant in this case is a Plan of Management. This document provides requirements for behaviour of patrons, noise, safety and security and management responsibilities. The contents of the Plan of Management are addressed later in the judgement. Additional measures that currently do not apply to the hotel include limitations on the use of the kitchen exhaust fan because of the potential to create an acceptable noise impacts and automatic restrictions on the maximum noise for internal music. 41 I am satisfied that the provision of a Plan of Management is a positive aspect of the proposed development, particularly as it seeks to control operations of the hotel that are not directly related the proposed development. Other matters identified as part of this application, such as the kitchen exhaust fan and the controls on internal music will further minimise the impacts on adjoining residential development. Specific requirements for security staff can also potentially minimise the impacts on adjoining residential development through the control of patron behaviour. Finally, and of some importance is the agreement that the extended trading hours till midnight is subject to a 12 month trial period where the impacts can be assessed at the end of the trial period. 42 Ms Doyle places some considerable emphasis on the Late Night Trading DCP and the trading hours in Chapter 3.1. The weight to be given to a development control plan is set out in detail in Zhang v Canterbury City Council (2001) 115 LGERA 373. Spigelman CJ, at par 75, raises three important propositions. First, and although the Court has a wide-ranging discretion, the discretion is not unfettered. Secondly the provisions of a development control plan are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. Thirdly, a provision of the development control plan directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative. 43 In this case, I do not accept that the rigid approach adopted by Ms Doyle to the provisions of the Late Night Trading DCP is appropriate for the following reasons: - Zhang provides flexibility in the application of development control plans, - the evidence indicates that any noise associated with the proposed development will satisfy the appropriate noise goal, - the proposed development is a mix of "indoor" and "outdoor" trading, - the extended trading hours are consistent with the existing trading hours of the hotel, - the existing trading hours of the hotel are consistent with the Late Night Trading DCP, - no objections were received from the police, - the main areas of concern from local residents are not related the proposed development, - the proposed development is likely to provide a net benefit in terms of residential amenity, - the opportunity exists to review the extended trading hours in 12 months, and - objectives (b), (l) and (m) of the Late Night Trading DCP) are satisfied. 44 For the reasons mentioned in the preceding paragraphs, there is no basis to deny the trading hours of the open terrace and closed lounge area to extend to 12 midnight Mondays to Saturdays and 10 p.m. on Sundays. The intensification The evidence 45 Ms Doyle states that the proposed extended trading hours and the increased capacity is inconsistent with the zone objectives because it would result in a use that is no longer compatible with residential uses and fails to ensure that the nuisance generated by non-residential development, relating to operating hours, noise or other factors is controlled so as to preserve the quality of life residents within the area. The current operation of the hotel, mainly the ground floor open courtyard area has been identified as causing a nuisance to the nearby residents and the new outdoor area with extended trading hours and increased capacity will only exacerbate this further. Ms Doyle further states that the proposal would result in the use that fails to comply with the principal objectives of the Late Night Trading DCP. 46 Ms Lee disagrees and states that the use of the proposed outdoor area will satisfy the zone objectives, will be compatible in terms of the existing circumstances of the premises and will not materially alter the existing situation. In her opinion, the proposed use will not result in a nuisance as adequate management controls will be in place to ensure that the zone objectives are achieved. The question of amenity impacts is addressed through the management mechanisms in the Plan of Management. Ms Lee further states that the proposal is not inconsistent with the character of the Local Centre Area in the Late Night Trading DCP as it is a long standing use in the locality and is reflective of the mixed nature of land uses within the precinct. Findings 47 The existing hotel has a maximum patronage of 660 persons and the new area will have a maximum capacity of 80 persons; providing for an increase in patronage of around 12%. In my understanding of Ms Doyle's evidence, the issue of intensification was secondary to the issue of noise. This was confirmed when Ms Doyle was asked by the Court to accept the hypothetical situation that the open terrace area was covered (thereby removing the concerns over noise) and whether her opposition to the application remained. She answered in the negative. Also, the council has granted consent to the proposed alterations and additions, thereby accepting the additional patronage numbers although the dispute over condition 2 limits the issue of intensification to the hours between 10 a.m. and midnight. 48 While the local residents opposed the additional trading hours, I am not satisfied that the additional patronage created by the proposed alterations and additions between the hours of 10 p.m. and midnight would be a reason to refuse the application given the relative increase in patronage numbers, the existing hours of operation of the hotel and importantly the more formal arrangements in the Plan of Management for security staff to address anti-social behaviour in the vicinity of the hotel. 49 I find that pursuant to cl 10 of LEP the proposal is consistent with the relevant objectives of the zone, satisfies the relevant performance criteria in Part D, Sec 6 of DCP 1997 and is consistent with the relevant objectives in the Late Night Trading DCP. The conditions in dispute 50 The conditions in dispute are: 51 Condition 2: this condition addresses the hours of operation for the outdoor terrace and covered lounge. This has been addressed previously in the judgment and it has been found that the applicant's version of condition 2 should be adopted. 52 Condition 4(b)(iii): this condition requires the downstairs rear courtyard door to be modified from a swinging to a single direction action and fitted with acoustic seals or similar around on the edges. The applicant seeks the deletion of this condition. The condition is included under the general heading of "Compliance with the Acoustic Report" and refers to the report prepared by The Acoustic Group dated 30 September 2009. In my reading of this report, no such requirement exists and as such it should be deleted. 53 Condition 4(b)(iv): this condition requires all open windows of the hotel (including those on the upper levels) to be shut and locked at 10 p.m. each night. The applicant seeks the deletion of this condition. The condition is included under the general heading of "Compliance with the Acoustic Report" and refers to the report prepared by The Acoustic Group dated 30 September 2009. In my reading of this report, no such requirement exists and as such it should be deleted. 54 Condition 4B: this condition limits the hours of operation for the ground floor rear courtyard to 10 a.m. to 10 p.m. Monday to Saturday and 12 midday to 10 p.m. Sundays. The applicant seeks the deletion of this condition. I agree that limitations should be imposed on this area as it is the principle source of noise for the adjoining residential properties however it is best achieved through the Plan of Management rather than as a condition of this consent. 55 Conditions 4C(a), (b) and (c): these conditions require a Plan of Management be prepared, include certain matters and be approved by the council. The applicant proposes an alternate condition that refers to the specific Plan of Management provided during the hearing. I agree with the applicant in this case and amended the condition to refer to the specific Plan of Management, but subject to the amendments later in the judgement. I do not however accept the applicants position that any amendments must be acceptable to the applicant. 56 Condition 4D: this condition provides additional noise conditions. The essential difference between the parties is that the council requires a suitably qualified acoustic engineer to verify that the noise emanating from the hotel complies with the appropriate noise criterion whereas the applicant proposes a condition that limits the verification process to the open terrace and covered lounge area. 57 Mr Atkins and Mr Cooper addressed the noise assessment from different perspectives. Mr Cooper took the view that any assessment should only involve any noise impacts from the proposed outdoor terrace and covered lounge whereas Mr Atkins took the view that any noise assessment should include the complete operation of the hotel. Mr Atkins states that noise from the rear courtyard and the Crown Street balconies was clearly audible at residential receptors and concluded that the noise from the rear courtyard exceeded the OLGR pre-midnight noise criteria. Mr Atkins also stated that other noise mitigation measures, such as doors to be Crown Street terrace area have been removed. 58 The hotel had been the subject of a number of acoustic assessments. In 2006, Renzo Tonin Associates conducted an acoustic assessment for a development application to extend trading hours to 1 a.m. This was refused by the council and became the subject of an appeal before the Land and Environment Court and was ultimately dismissed. Mr Cooper participated in a joint conference with Dr Tonin for the appeal that led to a joint report that found that the hotel, for the existing trading hours up to midnight, complied with the conditions of consent by council and the conditions of consent set out on the Liquor License. This was not a conclusion reached by Mr Atkins based on his recent observations of the hotel. 59 While accepting that development application seeks alterations and additions to only part of the hotel, I agree with Mr Atkins that the acoustic assessment should include the whole hotel, for a number of reasons. First, the evidence of Ms Lee offers and relies on a Plan of Management to support the application. The proposed Plan of Management addresses the operation of the whole hotel. Second, and having accepted that Mr Cooper's acoustic assessments supports a 12-month trial of the trading hours until midnight, these trading hours consistent with the hours within the Late Night Trading DCP. In my view, it would not be unreasonable to address outstanding issues as part of a Plan of Management given the absence of any existing Plan of Management. Third, the 2006 Renzo Tonin report relied upon by Mr Cooper is some four years old and circumstances may have changed since the time it was prepared. Fourth, it was unclear whether all the acoustic attenuation measures that were in place when the 2006 Renzo Tonin report was prepared are still in place. I refer particularly to the absence of doors on the first floor terrace facing Crown Street. Fifth, the evidence from local residents clearly indicates an ongoing noise issue, particularly with the open courtyard adjoining Sheas Lane. This is a matter squarely raised in the Proposed Plan of Management. 60 Condition 15: this condition prohibits speakers from being installed and music played in any outdoor areas associated with the hotel and also prohibits speakers being placed so as to direct music towards the outdoor areas within the premises. The applicant seeks the deletion of this condition on the basis that condition 4E prohibits entertainment in the form of bands or DJs on the open terrace and covered lounge area. Given the proximity of residential properties to the hotel and in the absence of any assessment of such activities in The Acoustic Group report, the council's condition should remain. The Plan of Management 61 The Plan of Management was prepared by Hamptons and dated May 2010. The areas of disagreement council relate to: 62 Section 3.3: this section addresses the hours of operation for the outdoor terrace and covered lounge. This has been addressed previously in the judgement and it has been found that the applicant's version of condition 2 should be adopted. 63 Section 5.2: this section deals with security and specifically the number of security guards. In general terms, the applicant proposes one security guard on Friday and Saturday nights as a minimum but with 3 or 4 security guards on busy nights. The applicant submits that the current arrangements for security guards has been entirely successful and will continue to be monitored during the trial period. The council seeks to a condition where security guards are provided at a ratio of not less than one security officer to 100 patrons or part thereof together with other specific requirements for security guards. 64 Ms Lee and Ms Doyle provided little evidence on the issue of security guards. Local resident evidence was also limited but concerns were expressed by one resident of anti-social behaviour in Sheas Lane. No evidence was provided on unacceptable behaviour of patrons in Crown Street or in other residential streets near the hotel. On this basis, I propose to adopt the applicant's version of the condition however at the expiration of the 12 month trial period, the issue of the number of security guards and the frequency and location of unacceptable behaviour of patrons should be a consideration in determining whether the trial period should be extended or whether this section of the Plan of Management should be amended. 65 Section 5.3: this section deals with the ground floor courtyard adjoining Sheas Lane. There was agreement that the ground floor courtyard will be closed at 10 p.m. each night however the applicant seeks to add that upon completion of the acoustic rectification works the area may be used until 12 midnight. As these rectification works required development consent, I agree with the council that any reference to extended hours for this area is premature and should be deleted. 66 While not raised by the council, there are a number of matters in the Plan of Management that, in my opinion, require amendment to have a meaningful effect on the operation of the hotel. These are: Section 4.1 and Section 6.2: these sections provide that all deliveries and the removal of waste from the premises are made between 8:30 a.m. and 6 p.m. seven days per week. Given the proximity of residential development to the waste collection area in Sheas Lane consideration should be given to amending this provision to exclude Sundays at the expiration of the 12 month trial period, if this was found to be an issue with adjoining residential development. Similarly, the question of any deliveries on a Sunday should also be reconsidered at this time. 67 Section 4.3: this section is titled "Compliance with Relevant Noise and Vibration Criteria" and seeks to confirm the contents of The Acoustic Group report. In my view, this is inappropriate for a Plan of Management. It is also inappropriate, in my view, to make reference to unknown works that may be required to be undertaken to ensure compliance with the noise goal for the ground floor rear courtyard. The appropriate requirement should simply be compliance with the required noise goals as set out in condition 14 at all times. 68 Section 5.4: this section provides details on complaints handling however it should be amended to provide a phone number for persons wishing to make a complaint. Orders 69 The Orders of the Court are: 1. The appeal is upheld. 2. Development Application D/2009/1788 for alterations and additions to the Dolphin Hotel at 412-416 Crown Street Surry Hills is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit E. _____________ G T Brown Commissioner of the Court Annexure 'A' Conditions of Consent ICON Hospitality v City of Sydney Council 412-416 Crown Street, Surry Hills SCHEDULE 1A APPROVED DEVELOPMENT/DESIGN MODIFICATIONS/COVENANTS AND CONTRIBUTIONS/USE AND OPERATION Note: Some conditions in Schedule 1A are to be satisfied prior to issue of a Construction Certificate and some are to be satisfied prior to issue of Occupation Certificate, where indicated. (1) APPROVED DEVELOPMENT (a) Development must be in accordance with Development Application No. D/2009/1788 dated 26 October 2009 and the following drawings: Drawing Number Architect Date DA100 /A SJB Interiors 07/10/2009 DA101 /A SJB Interiors 07/10/2009 DA102 (Rev E) SJB Interiors 07/07/2010 DA300 (Rev D) SJB Interiors 07/07/2010 D-H2/1 SJB Interiors September 2009 D-H3/1 SJB Interiors September 2009 and as amended by the conditions of this consent. (b) In the event of any inconsistency between the approved plans and supplementary documentation, the plans will prevail. (c) Prior to issuance of the occupation certificate a parapet shall be constructed in accordance with the recommendation of Steven Cooper in section 5 of the Joint Report with Graham Atkins dated 30 June 2010 as follows : The parapet to be raised (east of the adjoining building) to the arrow and follow the line in Section 04 marked "new corrugated iron roof/guttering to be below existing parapet height" The extension of the parapet on the southern wall is to be 4.34 metres above the outdoor courtyard floor level and to address the un-dimensioned attic window for 134 Foveaux Street should return above the covered lounge and generally in accordance with the plans dated 7 July 2010 referred to in condition 1 (a) above. (2) HOURS OF OPERATION – OUTDOOR TERRACE AND COVERED LOUNGE AREA The hours of operation of the outdoor terrace and covered lounge area are regulated as follows: (a) The hours of operation must be restricted to between 10.00am and 10.00pm Monday to Saturday and 12 midday to 8.00pm Sunday. (b) Notwithstanding (a) above, the use may operate between 8:00pm and 12:00am midnight Monday to Saturday and 8:00pm and 10:00pm Sunday for a trial period of one year from the date of issue of the Occupation Certificate. Council's Planning Unit is to be informed in writing of the date of commencing the trial hours. (c) A further application may be lodged to continue the trading hours outlined in (b) above before the end of the trial period. In accordance with Clause 2.7 of the Late Night Trading Premises DCP 2007 if the application is lodged within 30 days of the expiry of the trial period the applicant will be permitted to continue with the extended trading trial period until the new development application has been determined by the Council (or the Court on appeal provided that such appeal is lodged within 30 days of the Council determination. If a development application is not lodged within 30 days from the expiry of the trial period then the approved trading hours will revert back to base trading hours. (3) MAXIMUM OCCUPANCY CAPAPCITY – OUTDOOR TERRACE AND COVERED LOUNGE AREA (a) the occupancy capacity for the outdoor terrace and covered lounge area shall not exceed eighty persons: 50 in outdoor terrace and 30 in covered lounge. (b) an occupancy capacity sign in contrasting lettering not less then 50mm height shall be fixed in a conspicuous location adjacent to the doors to the outdoor terrace and covered lounge area worded as follows: "Maximum Number of persons Permitted - 80 Persons" 4) COMPLIANCE WITH ACOUSTIC REPORT All recommendations contained in the acoustic report prepared by The Acoustic Group, dated 30 September 2009 must be implemented during construction and use of the premises. (a) The proposed outdoor lounge is to be acoustically treated by one of the following three methods: (i) The ceiling under the roof of the outdoor lounge shall be made of two layers plasterboard ceiling not less than 13mm thick with furring channels on the underside of the set ceiling to accommodate acoustic tiles or similar absorbing ceiling having a NRC (Noise Reduction Coefficient) of not less than 0.7. (ii) The ceiling under the roof of the outdoor lounge shall be made of one layer of 50mm thick Ortech panel (acoustic finish-with hole to bottom). (iii) One layer of 18mm thick particle board flooring is installed over the roof purlins and covered with sisalation/fibreglass and metal deck. The acoustic absorbing ceiling is to achieve (NRC of not less than 0.75) and with 50mm thick fibreglass building blanket (45kg/m3) be provided in the cavity. (b) The window glazing on the northern side of the outdoor lounge shall be fixed and not less than 10mm thick. (b)(i) Replacement of the louvered windows on the ground floor toilets at the corner of Sheas Lane and Fitzroy Street with fixed 10.38mm laminated glass and the provision of an acoustically treated mechanical ventilation system on the roof. (b)(ii) The kitchen exhaust fan should be inspected and/or the provision of a discharge silencer installed. The fan should also be fitted with a time lock to prohibit its use between the hours of 11.30pm and 9.00am each day. (b)(iii) Deleted (b)(iv) Deleted (c) The Principal Certifying Authority (PCA) shall ensure that a statement from an accredited acoustic consultant certifying that the acoustic mitigation measures identified in the noise assessment report prepared by The Acoustic Group, dated 30 September 2009, pg.7-8 are suitably incorporated into the development, and the noise criteria have been met prior to the issue of Occupation Certificate. (4A) FURNITURE LAYOUT - OUTDOOR TERRACE AND COVERED LOUNGE AREA Seating shall be provided for not less than 44 persons in the outdoor terrace and 16 persons in the adjacent lounge area generally in accordance with the Plan No 102 Rev E prepared by SJB Planning dated 07.07.2010. At no time is the area to be cleared of any furnishing to accommodate extra patrons. (4B) HOURS OF OPERATION – GROUND FLOOR REAR COURTYARD Deleted (4C) PLAN OF MANAGEMENT The premises shall comply at all times with the Plan of Management by Hamptons dated May 2010 and attached as Annexure B. (4D) ADDITIONAL NOISE CONDITIONS FOR LICENSED PREMISES A suitably qualified acoustic engineer must be appointed and the following acoustic measures must be undertaken within the first month of operation of the new outdoor terrace and covered lounge area: (a) The acoustic consultant must: (i) measure and verify that the noise emanating from the premises complies with the noise criteria in the "Noise Use (Licensed Premises)" condition; and (ii) if necessary, make recommendations to ensure that the noise emanating from the premises complies with the noise criteria in "Noise Use (Licensed Premises)" condition. (b) The noise measurements must be: (i) undertaken without the knowledge of the applicant, manager or operator of the premises; and (ii) taken on at least three different occasions on three different days of the week (excluding Monday, Tuesday and Wednesday) from 11pm until the end of the public entertainment or the close of business, whichever occurs first; and (iii) submitted to Council's Licensed Premises unit within 7 days of the testing. (c) If the acoustic consultant recommends that additional treatment or works be undertaken under condition (a)(ii) above, those recommendations must be: (i) submitted to Council with the noise measurements as required in (b)(ii) above; and (ii) implemented to the acoustic consultant's satisfaction before the end of the first 60 days of use of the new area. (d) If the acoustic consultant's recommendations are not implemented in accordance with this condition, the new area is not to be used until such time as the recommendations are implemented and verified. (4E) No entertainment in the form of bands or DJs shall be provided in the proposed outdoor terrace and lounge, and any music shall be limited to background music only. (4F) Additional acoustic insulation/treatment shall be provided to the whole of the western and southern boundaries of the new outdoor terrace so as to achieve a reduction in noise reflectivity of not less than 2dB(A) (4G) The internal level of music on the first floor shall not exceed 85dB(A) when measured as an L10 at a position two metres north of the doorway to the first level outdoor courtyard SCHEDULE 1B PRIOR TO CONSTRUCTION CERTIFICATE/COMMENCEMENT OF WORK/HEALTH AND BUILDING Note: Prior to the issue of the Construction Certificate, sufficient information must be forwarded to the certifying authority (whether Council or a private accredited certifier) illustrating compliance with the relevant requirements of the Building Code of Australia (and a copy forwarded to Council where Council is not the certifying authority). If Council is to be the certifying authority, please contact the Building Unit to discuss the requirements prior to submission of the application for construction certificate. (5) VERIFICATION OF SUPPORT FOR NEW LOADS For alterations and additions to an existing building, a certificate from a qualified practicing structural engineer (National Engineering Registration Board) must be submitted to the Principal Certifying Authority prior to a Construction Certificate being issued. The certificate must state that the existing structure is adequate to support the new loads and that the design will comply with the relevant Australian Standards adopted by the Building Code of Australia. (6) BCA - NEW BUILDING WORKS - CLASS 2-9 BUILDINGS (a) Pursuant to Clause 98 of the Environmental Planning and Assessment Regulation 2000, the proposed building work must comply with the Building Code of Australia (BCA) including: (i) Structural provisions - Part B1; (ii) Fire resistance and stability - Part C1; (iii) Compartmentation and separation - Part C2; (iv) Protection of openings - Part C3; (v) Provision for escape (access and egress) - Part D1; (vi) Construction of exits - Part D2; Note: the provision of folding doors to the outdoor terrace areas may necessitate design modifications prior to a construction certificate being issued. (vii) Fire fighting equipment - Part E1; (viii) Smoke hazard management - Part E2; (ix) Emergency lighting, exit signs and warning systems - Part E4; (x) Damp and weatherproofing - Part F1; (xi) Sanitary and other facilities - Part F2; (xii) Room sizes - Part F3; (xiii) Light and ventilation - Part F4; (xiv) Energy Efficiency – Section J - with respect to new building elements and services (b) If compliance with the deemed-to-satisfy provisions of the BCA and the matters listed in condition (a) above cannot be achieved, an alternative building solution in accordance with Part A0 of the BCA must be prepared by a suitably qualified and accredited person and be submitted to the Certifying Authority illustrating how the relevant performance requirements of the BCA are to be satisfied. Prior to a Construction Certificate being issued, the Certifying Authority must ensure that the building complies with the Building Code of Australia. (c) The BCA matters identified in (a) above are not an exhaustive list of conditions to verify compliance or non-compliance with the BCA. Any design amendments required to achieve compliance with the BCA must be submitted to Council. Significant amendments may require an application under Section 96 of the Act to be lodged with Council to amend this consent. Note: The provisions of Clause 94 of the Environmental Planning and Assessment Regulation 2000 have been considered in the assessment of the proposed development. (7) FIRE SAFETY CERTIFICATE TO BE SUBMITTED A Fire Safety Certificate must be submitted to the Principal Certifying Authority for all of the items listed in the Fire Safety Schedule prior to an Occupation Certificate being issued. (8) ANNUAL FIRE SAFETY STATEMENT FORM An annual Fire Safety Statement must be given to Council and the NSW Fire Brigade commencing within 12 months after the date on which the initial Interim/Final Fire Safety Certificate is issued. (9) NO DEMOLITION PRIOR TO A CONSTRUCTION CERTIFICATE Demolition or excavation must not commence until a Construction Certificate has been issued. (10) STORMWATER AND DRAINAGE - MINOR DEVELOPMENT The drainage system is to be constructed in accordance with Council's standard requirements as detailed in Council's 'Stormwater Drainage Connection Information' document dated July 2006. This information is available on Council's website - www.cityofsydney.nsw.gov.au . (11) APPLICATION FOR HOARDINGS AND SCAFFOLDING ON A PUBLIC PLACE (a) A separate application under Section 138 of the Roads Act 1993 is to be made to Council to erect a hoarding and/or scaffolding in a public place and such application is to include:- (i) Architectural, construction and structural details of the design in accordance with the Policy for the Design and Construction of Hoarding (September 1997) and the Guidelines for Temporary Protective Structures ( April 2001). (ii) Structural certification prepared and signed by an appropriately qualified practising structural engineer. Evidence of the issue of a Structural Works Inspection Certificate and structural certification will be required prior to the commencement of demolition or construction works on site. Assessment of the impacts of construction and final design upon the City of Sydney's street furniture such as bus shelters, phone booths, bollards and litter bins and JCDecaux street furniture including kiosks, bus shelters, phones, poster bollards, bench seats and littler bins. The applicant is responsible for the cost of removal, storage and reinstallation of any of the above as a result of the erection of the hoarding. In addition, the applicant is responsible for meeting any revenue loss experienced by Council as a result of the removal of street furniture. Costing details will be provided by Council. The applicant must also seek permission from the telecommunications carrier (e.g. Telstra) for the removal of any public telephone. (b) Should the hoarding obstruct the operation of Council's CCTV Cameras, the applicant shall relocate or replace the CCTV camera within the hoarding or to an alternative position as determined by Council's Contracts and Asset Management Unit for the duration of the construction of the development. The cost of relocating or replacing the CCTV camera is to be borne by the applicant. Further information and a map of the CCTV cameras is available by contacting Council's CCTV Unit on 9265 9232. (c) The hoarding must comply with the Councils policies for hoardings and temporary structures on the public way. Graffiti must be removed from the hoarding within one working day. (12) BARRICADE PERMIT Where construction/building works require the use of a public place including a road or footpath, approval under Section 138 of the Roads Act 1993 for a Barricade Permit is to be obtained from Council prior to the commencement of work. Details of the barricade construction, area of enclosure and period of work are required to be submitted to the satisfaction of Council. (13) WASTE AND RECYCLING MANAGEMENT - MINOR The proposal must comply with the relevant provisions of Council's Policy for Waste Minimisation in New Developments 2005 which requires facilities to minimise and manage waste and recycling generated by the proposal. (14) NOISE - LICENSED PREMISES (a) The LA10 noise level emitted from the use must not exceed the background noise level (LA90) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz inclusive) by more than 5dB between the hours of 7.00am and 12.00 midnight when assessed at the boundary of any affected residence. (b) The LA10 noise level emitted from the use must not exceed the background noise level (LA90) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz inclusive) between the hours of 12.00 midnight and 7.00am when assessed at the boundary of any affected residence. (c) Notwithstanding compliance with (a) and (b) above, the noise from the use must not be audible within any habitable room in any residential property between the hours of 12.00 midnight and 7.00am. (d) The L10 noise level emitted from the use must not exceed the background noise level (L90) in any Octave Band Centre Frequency (31.5 Hz to 8 kHz inclusive) by more than 3dB when assessed indoors at any affected commercial premises. (e) The use of the premise shall be controlled so that any emitted noise is at a level so as not to create an " offensive noise " as defined in the Protection of the Environment Operations Act 1997 to any affected receiver. (15) NO SPEAKERS OR MUSIC OUTSIDESpeakers must not be installed and music must not be played in any of the outdoor areas associated with the premises including the public domain. Speakers located within the premises must not be placed so as to direct the playing of music towards the outdoor areas associated with the premises. Speakers must not be installed and music must not be played in any of the outdoor areas associated with the premises including the public domain. Speakers located within the premises must not be placed so as to direct the playing of music towards the outdoor areas associated with the premises. (16) CLASSIFICATION OF WASTE Prior to the exportation of waste from the site, the waste materials must be classified to determine where the waste may be legally taken. The Protection of the Environment Operations Act 1997 provides for the commission of an offence for both the waste owner and the transporters if the waste is taken to a place that cannot lawfully be used as a waste facility. (17) HOURS OF WORK AND NOISE – OUTSIDE CBD The hours of construction and work on the development must be as follows: (a) All work, including building/demolition and excavation work, and activities in the vicinity of the site generating noise associated with preparation for the commencement of work (eg. loading and unloading of goods, transferring of tools etc) in connection with the proposed development must only be carried out between the hours of 7.30am and 5.30pm on Mondays to Fridays, inclusive, and 7.30am and 3.30pm on Saturdays, with safety inspections being permitted at 7.00am on work days, and no work must be carried out on Sundays or public holidays. (b) All work, including demolition, excavation and building work must comply with the City of Sydney Building Sites Noise Code and Australian Standard 2436 - 1981 "Guide to Noise Control on Construction, Maintenance and Demolition Sites". SCHEDULE 1C DURING CONSTRUCTION/PRIOR TO OCCUPATION/COMPLETION (18) OCCUPATION CERTIFICATE TO BE SUBMITTED An Occupation Certificate must be obtained from the Principal Certifying Authority and a copy submitted to Council prior to commencement of occupation or use of the whole or any part of a new building, an altered portion of, or an extension to an existing building. (19) LOADING AND UNLOADING DURING CONSTRUCTION The following requirements apply: (a) All loading and unloading associated with construction must be accommodated on site. (b) A Works Zone is required if loading and unloading is not possible on site. If a Works Zone is warranted an application must be made to Council at least 8 weeks prior to commencement of work on the site. An approval for a Works Zone may be given for a specific period and certain hours of the days to meet the particular need for the site for such facilities at various stages of construction. The approval will be reviewed periodically for any adjustment necessitated by the progress of the construction activities. (c) The structural design of the building must permit the basement and/or the ground floor to be used as a loading and unloading area for the construction of the remainder of the development. (d) If, during excavation, it is not feasible for loading and unloading to take place on site, a Works Zone on the street may be considered by Council. (e) In addition to any approved construction zone, provision must be made for loading and unloading to be accommodated on site once the development has reached ground level. (20) NO OBSTRUCTION OF PUBLIC WAY The public way must not be obstructed by any materials, vehicles, refuse, skips or the like, under any circumstances. Non-compliance with this requirement will result in the issue of a notice by Council to stop all work on site. SCHEDULE 2 PRESCRIBED CONDITIONS The prescribed conditions in accordance with Division 8A of the Environmental Planning and Assessment Regulation 2000 apply: Clause 98 Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989 Clause 98A Erection of signs Clause 98B Notification of Home Building Act 1989 requirements Clause 98C Conditions applying to use of buildings at places of public entertainment Clause 98D Conditions applying to use of land as drive-in theatre Clause 98E Conditions relating to shoring and adequacy of adjoining property Refer to the NSW State legislation for full text of the clauses under Division 8A of the Environmental Planning and Assessment Regulation 2000. This can be accessed at: http://www.legislation.nsw.gov.au ______________________ G T Brown Commissioner of the Court ljr 17/08/2010 - Typographical errors - Paragraph(s) Condition 2(b), Judgment - Paragraphs 34 and 59 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.