Land and Environment Court of New South Wales CITATION : I V Trading Pty Limited v Parramatta City Council [2010] NSWLEC 1170 APPLICANT I V Trading Pty Limited PARTIES : RESPONDENT Parramatta City Council FILE NUMBER(S) : 10504 of 2009 CORAM: Brown C KEY ISSUES: DEVELOPMENT APPLICATION :- use of premises for a brothel - absence of authority from the Owners Corporation for works in the common area - the appropriateness of the location - impacts on the amenity of adjoining and nearby properties and on the neighbourhood - the impact on the character of the area Environmental Planning and Assessment Act 1979 LEGISLATION CITED: State Environmental Planning Policy No 1 Parramatta Local Environmental Plan 2001 Parramatta Development Control Plan for Sex Services and Restricted Premises DATES OF HEARING: 28,29 April 2010 EX TEMPORE JUDGMENT DATE : 30 April 2010 APPLICANT Mr G Green, solicitor SOLICITORS Pikes Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr T Pickup, solicitor SOLICITORS Storey & Gough JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES Brown C 30 April 2010 10504 of 2009 I V Trading Pty Limited v Parramatta City Council JUDGMENT 1 COMMISSIONER: This is an appeal against the refusal of DA/910/1008 by Parramatta City Council (the council) to use Unit 7/3 Sutherland Street Clyde for a brothel (the site). The proposal 2 The proposal provides for the internal fit-out of Unit 7 to include two car parking spaces and one disabled space, entry lobby and disabled workroom at the ground level. An additional three car parking spaces are located directly outside the unit. A first floor mezzanine forms part of the proposed development and provides six workrooms, reception, waiting rooms, landing, toilet facilities and manager's office. 3 The brothel was originally proposed to operate seven days per week, 24 hours per day, although Mr Green, on behalf of the applicant, proposed that the operating hours be reduced to 6pm to 7am, seven days per week. The brothel will have a maximum of six sex workers present at any one time, a part-time receptionist/manager and a part-time cleaner. The site 4 Unit 7 is Lot 7 in Strata Plan 64748 and is one of 8 lots in the strata plan. The 8 strata lots and the common area make up Lot 22 in DP 837556. Unit 7 is an industrial style unit, which forms part of a group of seven similar units and a café. The site forms part of an industrial precinct bounded by Parramatta Road, the western railway line, Marsh Street and Berry Street. The area consists predominantly of older style industrial buildings, built to the side and rear property boundaries with minimal street setbacks and landscaping. A significant number of uses in the area are involved in the automotive industry including mechanical repairs and panel beating although brothels are located at 10 Marsh Street, 26 George Street, 32 Berry Street and 21 Berry Street. Relevant planning controls 5 The site is zoned Employment 4 under Parramatta Local Environmental Plan 2001 (LEP 2001). A brothel is a permissible use in this zone with consent. Clause 16(3) provides that consent may not be granted unless the development is consistent with the zone objectives. The relevant zone objectives are: (c )to retain the predominant role of the City of Parramatta's industrial areas, and (d) to facilitate a range of non-industrial land uses that serve the needs of workers and visitors to land within this zone, and (e) to enable limited development for commercial premises to enhance the viability of the land uses within this zone. 6 Clause 24 provides specific requirements for brothels and relevantly states; 24 Brothels (1) Regardless of any other provisions of this plan, premises shall not be erected or used for the purpose of a brothel where they are located: (a) on any land zoned residential or within 200 metres (measured from the boundary of the allotment upon which the brothel is proposed) of residences or any land zoned residential, or (b) near or within view from any church, hospital, school, community facility or public open space or from any other place regularly frequented by children for recreation or cultural activities or, (c) within 50 metres (measured from the boundary of the allotment upon which the brothel is proposed) of a public transport facility, being a railway station entrance, bus stop, taxi rank, ferry terminal or the like, or (2) In determining an application to carry out development for the purpose of a brothel, the consent authority must consider the following matters: (a) whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood because of its size, location, hours of operation, clients or the number of employees and other people working in it, (b) whether the operation of a brothel will be likely to interfere with the amenity of the neighbourhood, and (c) whether the operation of the brothel will be likely to cause a disturbance in the neighbourhood when taking into account other brothels operating in the neighbourhood involving similar hours of operation. 7 Parramatta Development Control Plan for Sex Services and Restricted Premises (the DCP) provides further requirements. The DCP became effective on 9 December 2009. The relevant parts of the DCP are Pt 5.1 Location. Objective O1 of Pt 5.1 states: To avoid the concentration of sex services, restricted premises and adult entertainment premises in any one area which changes the current character or is not in keeping with the desired future character of the area. 8 Location Control S.1 of Pt 5.1 states that sex services, restricted premises and adult entertainment premises must not be sited within a radius of 100 m of existing sex services, restricted premises and adult entertainment premises NOTE; Distances referred to in this DCP and in Parramatta Local Environmental Plan 2001 in respect of sex services premises and restricted premises are to be measured as a radius from the boundary of the allotment upon which the premises are proposed. 9 Part 5.4 provides requirement for hours of operation. Objective O2 of Pt 5.4 states: Ensure that sex services, restricted premises and adult entertainment premises are not operated over a full 24 hour period. 10 Design Control P2 of Pt 5.4 states: Sex services premises, restricted premises and adult entertainment premises must not operate between the hours of 2am and 7am unless such operation can be justified by the hours of operation and nature of adjoining uses. 11 The DCP is currently the subject of amendment. The amendment has been advertised but not determined by the council. The relevant amendment is to change Location Control S1 of Pt 5.1 from 100 m to 200 m. I have given no weight to the proposed change because the council has not determined the amendment so the change could not be seen as imminent or certain. The contentions 12 The contentions raised by the council can be grouped in to the following main areas: 1. the absence of authority from the Owners Corporation for works in the common area, 2. the appropriateness of the location given the limitations imposed by LEP 2001 and the DCP, 3. the potential impacts on the amenity of adjoining and nearby properties and on the neighbourhood, and 4. the impact on the character of the area particularly the cumulative affect with other brothels. Owners Corporation consent 13 The absence of the approval from the Owners Corporation for works in the common area of the strata plan was explained to the Court. While attempts have been made to resolve the issue of an approval, the attempts have been unsuccessful for a number of reasons. It is not necessary to outline the reasons but only to acknowledge that no approval exists for any works in the common area. 14 Generally, the external works involve: 1. the replacement of the existing roll-a-door with a perforated type door, 2. two penetrations in the northern façade to accommodate exhaust fans and duct work, 3. an exhaust riser with cowl on the roof, 4. air conditioning condensers on the roof, and 5. the installation of security cameras, intercom and security lights. 15 The internal works involve: 1. cuts to the existing floor slab for services and pad footings for the mezzanine floor, 2. fixing of the mezzanine structure to the walls and floor, and 3. ducting for exhaust fans and air conditioning. 16 Mr Green accepted that the approval of the works in the common area will require the approval of the Owners Corporation, however he submitted that it would be inefficient to wait until this had occurred given that the parties were prepared for the appeal on the planning issues. He submitted that the Court could deal with the planning issues and if found to be acceptable, the proceedings could be adjourned for the Owners Corporation approval or alternatively the findings of any proceedings in the NSW Consumer, Trading and Tenancy Tribunal if no approval was granted by the Owners Corporation. 17 Mr Pickup, for the council, submitted that the details provided by the applicant for the works in the common area were insufficient for the Court to properly consider these works, although I did not understand Mr Pickup to object in principle to the approach suggested by Mr Green. 18 For the "just, quick and cheap" disposal of the proceedings, I agree with the approach suggested by Mr Green. In response to Mr Pickup's concerns over the details of the works, I am satisfied that sufficient details have been provided to consider the proposed works, particularly those works external to the unit. The works are not overly substantial in my view, and can be readily addressed through the provision of more detailed specifications at a later date, if required. I am also satisfied that the external works do not raise any issues relating to amenity or appearance that would require any further amendments or suggest that the application should be refused for this reason. Is the location acceptable? 19 Town planners, Mr Peter Fryar for the council and Mr Greg Boston for the applicant provided evidence. The locational requirements for brothels are addressed in both LEP 2001 and the DCP. The LEP 2001 requirements provide that a brothel shall not be erected or used: 1. within 200 m of residentially zoned land, 2. near or within view of a place… "regularly frequented by children for recreational or cultural activities", and 3. within 50 m of a railway station entrance. 20 Mr Fryar and Mr Boston addressed each of the three locational requirements in LEP 2001 in their evidence. There was disagreement between the experts on how to measure the specified distances and also the interpretation of the requirement. While not accepting that the proposal did not satisfy the numerical requirements, Mr Boston provided objections under State Environmental Planning Policy No 1 – Development Standards (SEPP 1) for abundant caution. Residentially zoned land 21 There was agreement that the 200 m distance to residentially zoned land was breached by the proposed development, however Mr Fryar accepted that the SEPP 1 objection of Mr Boston was well founded and that strict compliance with a 200 m development standard was unreasonable and unnecessary in this particular circumstance. Having reviewed the SEPP 1 objection I concur with the conclusions of Mr Fryar and Mr Boston. Places regularly frequented by children 22 The requirement that a brothel shall not be located near a place regularly frequented by children for recreational or cultural purposes was in dispute between Mr Fryar and Mr Boston. Mr Fryar states that the take away shop (Lot 8 in the strata plan) is in a direct line of sight to the brothel. On the two site inspections he had undertaken, he had observed children socialising and consuming food from the take away shop. He also states that based on his conversation with some occupants of the adjoining strata units, children sometimes accompanied adults to businesses in the adjoining units, including during school holidays. 23 Mr Boston states that during his inspections of the site, he has not witnessed the café being regularly frequented by children. In his opinion, the fact that children may be within proximity of the site from time to time either accompanied or unaccompanied by adults is not determinative, given the irregularity of such uses and the zoning of the land. Mr Boston further states that children who choose to use the café will likely enter and depart from the direction of Clyde Railway Station and accordingly will not walk past the brothel or even notice its existence because the entrance to the café does not provide a sight line to the brothel. Also, Mr Boston states the hours of operation of the brothel are likely to coincide with times that other premises, including the café are not operating. 24 On this matter I agree with Mr Boston. The test in cl 24(1)(b) would require the café to be "regularly frequented by children" and also require the café to be classified as "a recreational or cultural activity". In my view, neither test can be satisfied. While Mr Fryar may have observed children at the café on his two visits to the site, Mr Boston did not observe any children on his site visits. The permissibility of the café and the likely clientele of the café is of some importance. As I understand, the café is only permissible as a "local shop". This means, in part that it operates primarily to serve the needs of the surrounding residents or, in this case, workers in the surrounding industrial area. In terms of location, the café would have little, if any passing trade beyond those people having business in the industrial area. There were no other destinations pointed out to the Court in the industrial area or further, that would require children to over the railway overpass at Clyde Railway Station and past the café. I agree with Mr Boston that if children choose to use the café, they would most likely retrace their paths back over the railway overpass and not via the brothel. At best, children may infrequently or occasionally use the café. 25 I can also comfortably conclude that the café could not be reasonably be classified as a "recreational or cultural activity." 26 If I am incorrect in this conclusion, the SEPP 1 objection of Mr Boston addresses the variation to the development standard in a manner set out in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46. For reasons set out in the previous paragraphs, Mr Boston concludes that the SEPP 1 can be supported and that the SEPP 1 objection is well founded. Having reviewed the SEPP 1 objection, I concur with this conclusion. 50 m of the entrance to the railway station 27 The requirement that a brothel shall not be located within 50 m of the entrance to the railway station was also in dispute. Mr Fryar maintained that the proposal did not comply if the distance was measured from the closest boundary of Lot 22 (and not the boundary of Lot 7) as the distance was 36.8 m. Mr Boston states that if measured from the boundary of Lot 7, the 50 m requirement was comfortably satisfied. 28 Clause 24(1)(c) requires the 50 m to be measured as a radius from the boundary of the allotment upon which the premises are proposed. There can be no disagreement that the allotment on which the brothel is proposed is Lot 7 in SP 64748. It is a separate lot from other units in the complex. I see no reason why this should not be the basis for the assessment under this clause. In practical terms there can be no logical reason for adopting the approach of Mr Fryar when his measurement is based on a point at the back rear internal corner of the factory unit on Lot 2. This lot has no relevance in the assessment of the matters required by cl 24(1)(c). 29 If I am incorrect in this conclusion, I have reviewed the SEPP 1 objection of Mr Boston and concur that strict compliance with the development standard is unreasonable and unnecessary in this case and that the SEPP 1 objection is well founded. Other brothels 30 Location Control S1 in Pt 5.1 states that a brothel should not be sited within 100 m of another brothel. The measurement of the 100 m is measured as a radius from the boundary of the allotment upon which the premises are proposed ". Mr Fryar and Mr Boston adopt similar approaches to the measurement in the DCP as they did for the measurement in cl 24(1) of LEP 2001 with similar results. Mr Fryar states that the proposed brothel does not satisfy the 100 m requirement, whereas Mr Boston states that it does comply. 31 Given my findings in the earlier paragraphs on how the distance should be measured, I agree with Mr Boston and find that the proposed development satisfies Location Control S1 in Pt 5.1 and also Objective O.4. Amenity 32 Clause 24(2) provides matters to be considered in determining an application for a brothel. The relevant requirements aresubcl (a), (b) and (c). These requirements generally relate to the impact of a brothel on the amenity of the neighbourhood. In this case, the experts agreed that the neighbourhood consisted of the area bounded by Parramatta Road, the western railway line, Marsh Street and Berry Street. The particular locations in the neighbourhood that could potentially be affected by the proposed development were those occupiers within the strata complex and particularly the café and the Kelly Country Clothing establishment. The principle concerns related to the potential impact on children who may frequent the site from time to time. I have addressed these concerns as part of the consideration of cl 24(1)(b) and have found that the frequency that children are likely to visit the site would not be a reason to refuse the application. 33 Given that the revised operating hours of the brothel will generally coincide with the closure of most businesses, I am satisfied that there will be little impact on the amenity of the neighbourhood. While there may be times when the operating times may overlap, these times are likely to be infrequent and not a reason to refuse the application. I also note that the Kelly Country Clothing establishment has withdrawn its earlier objection to the proposed development. Character/proliferation of brothels 34 The issue of character and proliferation of brothels was seen by Mr Fryar as being an important consideration as an expert town planner and also bythe elected council. While the potential proliferation of brothels is a valid and reasonable planning consideration, it must be based on some form of standard. The DCP provides requirements for separation between brothels and similar premises and having found that the separation between the proposed brothel and existing brothels satisfies the numerical separation distance, in my view it would be difficult to reasonably argue that having satisfied this separation distance, the proposal would create a proliferation of brothels in the neighbourhood. 35 I also note that cl 24(2)(c) addresses the question of the cumulative impact of brothels and for similar reasons I am satisfied that this subclause does not raise any barriers to the approval of the application. 36 I do not accept that the zone objectives provide any support for the council's position that the proposal will create a change in the character of the neighbourhood. Brothels are a permissible use in this zone and the existence of five brothels within an area containing around 80 lots used for industrial purposes does, not in my view, detract from the existing industrial character of the area. The site inspection highlighted the dominant industrial character of the neighbourhood that will not be changed by the proposed development. I have little trouble in concluding that a person viewing the neighbourhood and who has little knowledge of the neighbourhood, would have difficulty in identifying the brothels and concluding that they were adversely affecting the industrial character of the neighbourhood. 37 Pursuant to cl 16(3) I find that the proposed development is consistent with the relevant zone objectives being objectives (c), (d) and (e). 38 I also find that the proposed hours of operation while being inconsistent with Design Control P2 in Section 5.4, can be justified as the hours are likely to be compatible with adjoining uses: being at times when the adjoining uses are, in most cases, likely to be closed. Conditions 39 There was general agreement on the council's conditions of consent with the exception of the wording of condition 2. There was agreement that the approval should be subject to a three-year trial period however there was disagreement on the basis for any extension of the trial period. The council was silent on the basis of any extension whereas the applicant sought the consideration to be based on "the impact of the use on the amenity of the occupants in the locality having regard to the manner in which the operator manages the brothel use and the effectiveness of the Plan of Management referred to in conditions 13". 40 On this disagreement, I agree generally with the wording proposed by the applicant. In my view, it is helpful to have some parameters to consider the application for an extension of the three-year trial period. Based on the evidence in these proceedings, the issues of impact on the amenity of the neighbourhood and the operation of the brothel were important considerations and should be fundamental considerations in any application to extend the use. I do not accept that these matters should be the only considerations and I have made small amendments to the condition to ensure that the option is available for the council to consider other matters, if considered appropriate. Future conduct of the hearing 41 Based on the assessment of the planning issues, there are no reasons to refuse the development application. As development consent cannot be granted in the absence of the approval for the works in the common area, I propose to allow some time for this matter to be addressed. There should however be some a time frame placed on the further time required to obtain approval from the Owners Corporation or alternatively through the NSW Consumer, Trading and Tenancy Tribunal. 42 I direct that the applicant is to provide a report on the progress of this matter, by e- Court, every four weeks. Whether development consent is to be granted will depend on what progress is being made on this fundamental issue. 43 If consent is obtained for works within the common area and on filing of the consent, the orders of the Court will be: 1. The appeal is upheld. 2. DA/910/2008 to use Unit 7/3 Sutherland Street, Clyde for a brothel is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibits 1, A and C. 44 The conditions in Annexure A are: SCHEDULE 1: General Matters : 1. The development is to be carried out in compliance with the following plans and documentation listed below, except where amended by other conditions of this consent: No Issue Title Author Date DA-02 G Existing Floor Plans JND Architectural Services Pty Ltd 4.2.10 DA-03 G Site Plan JND Architectural Services Pty Ltd 4.2.10 DA-04 G Site/Ground Floor JND Architectural Services Pty Ltd 4.2.10 DA-05 G Site.First Floor JND Architectural Services Pty Ltd 4.2.10 DA-06 G Ground Floor Fin/Spec JND Architectural Services Pty Ltd 4.2.10 DA-07 G First Floor Finishes JND Architectural Services Pty Ltd 4.2.10 DA-08 G Roof/Section AA JND Architectural Services Pty Ltd 4.2.10 DA-15 G Elevations JND Architectural Services Pty Ltd 47.2.10 Document(s) Dated Statement of Environmental Effects July 2009 General Specifications July 2009 Waste Management Plan July 2009 Plan of Management 30 April 2010 Trial Period 2. The use lot 7/3 Sutherland Street as a brothel is limited to a 3 year trial period from the date of issue of an Occupation Certificate or the commencement of the brothel use, which ever occurs later. The brothel operator must notify the Council in writing of the date that the Occupation Certificate is issued and the date that the brothel use actually commences on the site. A section 96 application may be submitted to Council prior to the expiration of the 3 year trial period seeking the continuation of the brothel use. This consent shall continue to operate until such time as that application is determined by the Council. Such application, should consider, but not exclusively, the impact of the use on the amenity of the occupants in the locality having regard to the manner in which the operator manages the brothel use, including compliance with the Plan of Management referred to in condition 13. Reason: To limit the operation of the brothel to a 3 year trial period. 3. The operation of the brothel complying at all times with the details and information contained in the Plan of Management, dated (April 2010), except where the Plan of Management is inconsistent with the conditions of this consent, in which case the conditions of consent will prevail. A copy of the Plan of Management with completed details is to be submitted to the Council prior to the commencement of the brothel use indicating the relevant contact persons details contained under the section within the plan of management entitled "complaints reporting management". Reason: To ensure that the operation of the premises complies with the endorsed Plan of Management. 4. If there are changes to the operator or owner of the business, information is to be submitted to Council within 2 weeks, providing details about the new operator and owner. Details are to include: name, telephone and fax number, mailing address, ABN, and GST registration and proof of worker's compensation insurance. Reason: To keep Council informed about who is operating the premises. 5. Staff members not involved in the provision of sexual services are to be suitably trained in the use of fire fighting equipment (i.e. portable fire extinguishers). A trained staff member is to be present on the premises at all times during brothel operation. Trained staff are to give basic instruction on the use and location of firefighting equipment and emergency procedures to all new staff at the commencement of their employment. Reason: To ensure staff are capable of using the equipment in the event of an emergency. 6. The brothel is to operate with a maximum of six (6) sex workers, 1 manager and a contract cleaner on site at any one time. Reason: To ensure that the development complies with the development consent. 7. The number of client service rooms, including the disabled service room in the premises is not to exceed six (6) at all times. Reason: To ensure that the development complies with the development consent. 8. The days and hours of operation are restricted to 6pm to 7am the next day, 7 days a week. Any alterations to the above will require further development approval. Reason: To minimise the impact on the amenity of the area. 9. Clear sight lines shall be provided at the property boundary line to ensure adequate visibility between vehicles leaving the carpark and pedestrians along the frontage road footpath in compliance with Australian Standard AS2890.1-2004 – Figure 3.3. The required sight lines to pedestrians or other vehicles in or around the site should not be compromised by the landscaping, signage fences, walls or display materials. Reason: To ensure compliance with the relevant standards 10. Six (6) on site car parking spaces (3 spaces allocated for Unit 7, one of which is to be allocated as disabled parking and 3 spaces internally within the lower level of Unit 7) to be provided, permanently marked on the pavement and used accordingly. The dimensions for parking spaces and aisle width to be in accordance with AS 2890.1-2004 (2.4m wide x 5.4m long clear of columns plus 300mm clearance adjacent walls & 6.2m aisle width minimum). The disabled parking space dimensions to be 3.8m wide x 5.5m long according to Council's DCP 2005. Reason: To ensure that the adequate car parking is provided. 11. Use of the ground floor rooms as client service rooms of the subject premises is prohibited except for the room identified as disabled work room on architectural plan no. DA-04, Issue G. Reason: To protect the amenity of the area 12. The display or erection of any advertisement or signage external to the premises or visible from a public place is strictly prohibited. Reason: To protect the amenity of the area 13. No merchandise display relating to the proposed brothel is to be erected, displayed or exhibited in an access corridor (including stairwell to the premises). Reason: The maintain the amenity of the area. 14. The operation of the premises shall be in accordance with the revised Plan of Management and entitled "Plan of Management". Reason: To ensure the safe and orderly operation of the premises. 15. The operation of the premises shall comply with the requirements in the NSW Health and Workcover publication "Health and Safety Guidelines for Brothels in NSW" (1997) or such other publication which may supersede these guidelines published by the above regulatory agencies. Reason: To ensure best practice standards. 16. All obsolete materials and combustible rubbish be removed from inside and outside the building (i.e. all materials unless they are absolutely necessary for the functioning of the business). Reason: To reduce the fire hazard. 17. Arrangements shall be made for a garbage collection service to be provided to the premises prior to the occupation of the building. Contaminated waste must be disposed of by the DEC's licensed waste collectors. Reason: To ensure appropriate garbage collection is provided to the site. 18. A staff member suitably trained in, or aware of the requirements of the Commercial Brothel Plan of Management, and all conditions of consent is to be present on the premises at all times during brothel operation. 19. Details of Business Registration/ABN No., Workers Compensation and Public Liability Insurance, book keeping records, Taxation and Employee records shall be kept on the premises at all times and made available for inspection upon request of Council. Reason: To ensure the premises is operating within legal requirements ' 20. No provision or consumption of alcohol on the premises at any time. Reason: To ensure the proper management of the brothel and protect the amenity of the surrounding residential properties 21. The service rooms shall not be used for sleepovers at any time. Reason: To ensure the development complies with the development consent. 22. All employees are to have relevant identification at all times. Reason: To ensure the premises is operating within legal requirements 23. Closed circuit video surveillance cameras shall be installed so as to provide coverage of the entry area to the premises from Sutherland Street. The cameras shall be selected so as to provide images of a quality that meets the applicable Australian Standard. The cameras shall record continuously while the Brothel is open for trade and for, at least, 30 minutes after the cessation of trading. The surveillance system shall display images in real time on screens where staff, and/or security personnel can see them. All recording made by the system shall be kept for one month before being erased. Signs shall be displayed to the effect that the area is under video surveillance. Reason: To protect the amenity of the area. Prior to Issue of Construction Certificate 24. An Annual Monitoring Fee for Restricted Premises and Sex Service Premises must be paid to Council. The Annual Monitoring Fee will be the amount stated from time to time in Council's adopted 'Fees and Charges'. The first payment of the Annual Monitoring Fee must be made to Council prior to: A Construction Certificate being issued if this consent authorizes the conduct of works for which a construction certificate is required; or The premises being used in accordance with this consent if this consent does not authorize the conduct of works for which a construction certificate is required, And each subsequent annual payment must be made on each anniversary of the date on which the first payment was due to be paid. Reason: To comply with Council's adopted Fees and Charge document and to ensure compliance with conditions of consent. 25. An Infrastructure and Restoration Administration Fee is to be paid to Council prior to the issue of a construction certificate. The fee to be paid in accordance with Council's adopted 'Fees and Charges' at the time of payment. Reason: To comply with Council's adopted Fees and Charge document and to ensure compliance with conditions of consent. 26. No construction works (including excavation) shall be undertaken prior to the release of the Construction Certificate. Note: Further information on Construction Certificates can be obtained by contacting Customer Service on 9806 5602. Reason: To ensure the work is carried out in accordance with the approved plans. 27. All building work must be carried out in accordance with the provisions of the Building Code of Australia. Reason: To comply with the Environmental Planning and Assessment Act 1979, as amended and Environmental Planning and Assessment Regulation 2000. 28. Prior to construction of the approved development, it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued by Council or an Accredited Certifier. Plans and documentation submitted with the Construction Certificate are to be amended to satisfy all relevant conditions of this Development Consent. Reason: To ensure compliance with Legislative Requirements. 29. The building shall include the provision of a security/safe room for staff which can be secure in the event of intruders invading the site. Details of security devices including the provision of a back to base security system shall be provided prior to the issue of a Construction Certificate. Reason: To ensure appropriate safety of staff on the site 30. Long Service Levy payment where construction costs exceed $25,000. The Construction Certificate is not to be released unless the Principal Certifying Authority is satisfied that the required levy payable, under Section 34 of the Building and Construction Industry Long Service Payments Act 1986, has been paid. Reason : To ensure that the levy is paid 31. Submit a report from a qualified "access consultant" certifying that the disabled sanitary facilities comply with the requirements of the Building Code of Australia and Australian Standard 1428. The certification shall be submitted prior to the issue of the occupation certificate. 32. A bollard or a suitably positioned handrail (or both) shall be positioned at the base of the disabled access ramp onto the car park so as to ensure direct and dignified access to the building for people with a disability. Such details shall be detailed on the plans submitted for approval prior to the issuing of a construction certificate. Reason : To ensure disabled access is maintained and provided to the building at all times. 33. The main front entry / exit door in a required exit , forming part of a required exit or in the path of travel to a required exit must be readily open-able without a key from the side that faces a person seeking egress, by a single hand downward action or pushing action on a single device which is located between 900 mm and 1.2 m from the floor. Details showing compliance with this requirement must be submitted for approval prior to the issuing of a construction certificate. 34. The applicant shall submit an BCA Compliance Report indicating the premises has been upgraded to ensure compliance with the Building Code of Australia in the following areas. BCA Section C "Fire Resistance" BCA Section D "Access and egress" BCA Section E "Services & Equipment" The Compliance Report must be prepared by a suitably qualified person and approved by the Principal Certifying Authority prior to the issuing of an Construction Certificate. 35. The applicant must submit details to the principal certifying authority prior to the issuing of the construction certificate, which detail works to the existing bathrooms and other wet areas, to ensure compliance with part F1 of the Building Code of Australia. 36. All windows for this development on the first floor are to be frosted or opaque glazing and are to be permanently fixed. This requirement shall be reflected on the Construction Certificate plans and be approved by the nominated PCA Reason: To maintain amenity to the adjoining occupants and provide privacy to these rooms. Prior to Work Commencing : 37. Prior to commencement of work, the person having the benefit of the Development Consent and a Construction Certificate must: (a) appoint a Principal Certifying Authority (PCA) and notify Council in writing of the appointment irrespective of whether Council or an accredited private certifier is appointed within 7 days; and (b) notify Council in writing of their intention to commence works (at least 2 days notice is required prior to the commencement of works). The PCA must determine when inspections and compliance certificates are required. Reason: To comply with legislative requirements. 38. Prior to work commencing, adequate toilet facilities are to be provided on the work site prior to any works being carried out. Reason: To ensure adequate toilet facilities are provided 39. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:- (a) Stating that unauthorised entry to the work site is prohibited; (i) Showing the name of the principal contractor (or person in charge of the work site), and a telephone number at which that person may be contacted at any time for business purposes and outside working hours; and (ii) Showing the name, address and telephone number of the Principal Certifying Authority for the work. (b) Any such sign must be maintained while the building work or demolition work is being carried out, but must be removed when the work has been completed. (c) This condition does not apply to building works being carried out inside an existing building. Reason: To comply with statutory requirements. During Work : 40. Building work may only be carried out six (6) days a week, Monday to Friday between the hours of 7.00am to 8.00pm and Saturday 8.00am to 8.00pm. No work is permitted to be carried out on Sundays or Public Holidays. Reason: To protect the amenity of the area. 41. A copy of this development consent, stamped plans and accompanying documentation is to be retained for reference with the approved plans on-site during the course of any works. Appropriate builders, contractors or sub-contractors are to be furnished with a copy of the notice of determination and accompanying documentation. Reason: To ensure compliance with this consent. 42. Noise from construction and/or demolition activities associated with the development shall comply with the NSW Environment Protection Authority's Environmental Noise Manual and the Protection of the Environment Operations Act 1997. Reason: To protect the amenity of the area. 43. No materials, machinery, signs or vehicles used in or resulting from the construction or demolition relating to the development shall be stored or placed on Council's footpath, nature strip or roadway. Reason: To ensure pedestrian access. 44. Any footpath construction and/or restoration, if included as part of a final DA consent Conditions, shall require a Road Occupancy Permit and Road Opening Permit. The applicant shall submit an application for a Road Occupancy Permit through Council's Traffic & Transport Services and a Road Opening Permit through Council's Restoration Engineer, prior to carrying out the construction/restoration works." Reason: To protect the amenity of the area. Prior to the issue of an Occupation Certificate/Use Commencing : 45. In accordance with clause 162B of the Environmental Planning and Assessment Regulation 2000, the certifying authority responsible for critical stage inspections must make a record of each inspection as soon as practicable after it has been carried out. Where Council is not the Principal Certifying Authority, the Principal Certifying Authority is to forward a copy of all records to Council. The record must include details of: (a) the development application and construction certificate number; (b) the address of the property at which the inspection was carried out; (c) the type of inspection; (d) the date on which it was carried out; (e) the name and accreditation number of the certifying authority by whom the inspection was carried out; and (f) whether or not the inspection was satisfactory in the opinion of the certifying authority who carried it out. Reason: To comply with legislative requirements. 46. Where Council is not the Principal Certifying Authority, a copy of any compliance certificates and or records of inspections received by the PCA shall be forwarded to Council prior to occupation or commencement of the use. Reason: To comply with legislative requirements. 47. A complete system of emergency lighting and illuminated exit signs is to be installed throughout the building in accordance with the Building Code of Australia, including referenced Australian Standard 2293 prior to occupation. Reason: To assist people exiting the building in the event of power failure. 48. A certificate from a suitably qualified electrician indicating the existing electrical wiring system has been inspected and is certified as being adequate, safe and fit for purpose prior to occupation. Reason: To ensure that the electrical wiring does not pose an undue fire risk. 49. Prior to the issue of the final occupation certificate the applicant shall submit to Council a Final Fire Safety Certificate attesting to the adequacy of the newly installed: i) portable fire extinguishers, ii) emergency lights, iii) illuminated exit signs, A copy of the final fire safety certificate is to also be submitted to the New South Wales Fire Brigades (Private Locked Bag 12, Greenacre 2190) and a further copy is to be displayed in a prominent position in the building for easy inspection by Council or the New South Wales Fire Brigade. Each calendar year after this original certificate, you are required to prepare and submit an annual fire safety statement to both Council and the New South Wales Fire Brigade. A copy is also required to be displayed in a prominent position. Reason: To ensure these essential fire safety measures have been installed in accordance with acceptable design standards. 50. A 3.5 kg carbon dioxide portable fire extinguisher (or equivalent) is to be located adjacent to the electrical switch board. The extinguisher is to be suitably wall mounted and sign posted. Reason: To ensure adequate fire fighting facilities are provided. 51. Approved essential services pictogram signage is to be installed with all Portable Fire Extinguishers, further ensuring that these pictograms are positioned in accordance with the provisions of AS 2444. Reason: To assist occupants in locating the first aid fire fighting facilities. ___________________ G T Brown Commissioner of the Court DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.