Land and Environment Court of New South Wales CITATION : New Fortune Development Pty Ltd v Auburn City Council [2010] NSWLEC 1290 APPLICANT New Fortune Development Pty Ltd PARTIES : RESPONDENT Auburn City Council FILE NUMBER(S) : 10450; 10451 of 2010 CORAM: Morris C KEY ISSUES: BUILDING CERTIFICATE - DEVELOPMENT APPLICATION :- LEGISLATION CITED: Environmental Planning and Assessment Act 1979 Auburn Local Environmental Plan 2000 DATES OF HEARING: 19-20 October 2010 DATE OF JUDGMENT: 2 November 2010 APPLICANT Mr M Staunton, Barrister SOLICITOR HWL Ebsworth Lawyers LEGAL REPRESENTATIVES: RESPONDENT Mr C Gough SOLICITOR Storey & Gough Lawyers JUDGMENT: The Land and Environment Court OF NEW SOUTH WALES Morris C. 2 November 2010 10450 of 2010 New Fortune Development Pty Ltd & v Auburn City Council 10451 of 2010 JUDGMENT 1 Commissioner: These are appeals against the refusal by Auburn City Council (the council) of: 1. a development application for the alterations and additions to an existing building and use of those areas for storage, restaurant and display of bulky goods.(Appeal No. 10451 of 2010). 2. a building certificate application, under s 149F of the Act for that building work carried out on the site that has been built without the consent of the council. (Appeal No. 10450 of 2010). The site 2 No. 219 Parramatta Road (the site) is located on the northern side of the road between Skarratt and Newton Streets and is an L-shaped allotment with frontage of 39.625m to Parramatta Road and 12.19m to Skarratt Street and area of 4949m2. A right-of-carriageway provides access in a westerly and northerly direction from the site to Adderley Street. A three-storey building with basement parking is currently erected on the site. In accordance with consent conditions, vehicular access for cars only is provided from Parramatta Road and egress is to Skarratt Street however, unauthorised use of the latter as a two-way ramp is occurring. All service vehicles enter the site from the right-of-way off Adderley Street to a loading area located at the northern end of the building. Parking for 86 vehicles is provided within the basement area with access for customers provided from this level by escalator or lift to the showroom areas. The ground floor level comprises six bulky goods showrooms around a central circulation area and a further four showrooms are provided on the first floor. The second level contains a café, centre manager's office, children's play area and further display areas. Background and proposal 3 The council granted development consent in 2004 for the construction of a two-storey building with basement carpark. A vaulted roof, which acts as a skylight to the building's circulation areas, extended above the main concrete deck roof and a small rooftop staff recreation and children's play was approved on this roof level. That consent was modified on a number of occasions to provide for the construction of further roofing to the upper level (now second floor) and allowed use of that area for the display of bulky goods in association with one of the tenancies of the approved building. Further approvals introduced a café and children's playground area to the second floor and additional roofed area approved for display purposes. The consent did not authorise the enclosure of the area, rather, the display areas were to be roofed and separated from the remainder of the original rooftop and a landscaped areas by a dwarf wall. 4 The council issued consent for strata subdivision into 12 lots and that plan was registered on 16 July 2007 The plan registered provides for the basement carparking area to be common property with the exception of 24 spaces at the northern end which are allocated to individual tenancies. The ground floor contains 6 lots which form individual showrooms and the rear loading dock and access thereto is designated as common property. The first floor comprises a further five lots however lots 9 and 10 are currently used as one tenancy. The rooftop area is common property with the exception of the area approved for bulky goods display and that forms part of Lot 8 and the café area, which is Lot 12. 5 Further work to that authorised by the council has been carried out on the site and comprises the following: - - Construction of mezzanine storage areas within all units. - Reconfiguration and reduction in size of the loading bays and access to that area from the showrooms. - Conversion of the unpacking areas adjacent to the approved loading docks and incorporation of that area into Lot 4. - Increase in floor area to Lots 9 and 10 by conversion of the approved terrace area to bulky goods showroom. - Extension and increase in height of the roofed area on the upper level (level 2) and enclosure of the entire second level floor space with glass windows, louvres and doorways. - Construction of room display cases with mezzanine areas above within Level 2. - Alterations to the food preparation area and centre manager's office. - Widening of the driveway off Skarratt Street to provide truck access and conversion, by line-marking, of the one-way ramp to Skarratt Street from the carpark to provide two-way access for cars. The applicant seeks consent to use the areas as built, the use of part of the second floor as a restaurant and the issue of a building certificate to authorise the works. 6 The council, on 8 April, 2010, refused consent to DA-48/2010 which sought approval to use the additional unauthorised floor area for bulky goods retailing and as a restaurant for a range of reasons which now form the contentions in this case. 7 An application for a building certificate, which sought to authorise the works as built, was refused by the council on 7 June, 2010. The issues 8 In relation to the development application the issues are whether: - - there is adequate parking provided on site; - the use of the Skarratt Street ramp is appropriate for two-way traffic movement; - the loading facilities are adequate; - the development is appropriate for the site in terms of its size, bulk and scale; - the proposed landscaping is adequate; - approval of the application is in the public interest. In relation to the final point, it was agreed that the contentions that relate to the public interest are addressed in the first five matters and did not require any further assessment. 9 The council's contention regarding lack of information regarding the restaurant use was not pressed due to the extent of understanding of the proposed operations that became evident leading up to and during the hearing. 10 The parties agree that if consent is granted to the development application, the building certificate could be issued subject to conditions that require carrying out of works and certification of certain work. The planning controls 11 The site is zoned 4(c) Industrial Enterprise Zone pursuant to the provisions of Auburn Local Environmental Plan 2000 (the LEP). The relevant aims of the zone, to which development must be consistent to are: (a) to recognise the special character of Parramatta Road frontages and surrounding areas, (b) to ensure that development in this zone does not reduce the economic viability of businesses in the business zones, 12 Clause 22 of the LEP restricts the grant of consent and requires development to be compatible with the existing and likely future character and amenity of the surrounding area in terms of a number of matters, of which the following are relevant: (a) its scale, bulk, design, height, siting and landscaping, (b) its operation, (c) traffic generation and car parking, Neither the LEP or any related development control plan provide guidance as to the future desired character of the area. 13 Bulky goods retailing is a use permitted with consent in the 4(c) zone. 14 Auburn Development Control Plan 2000 (DCP2000) applies to the site and Parts E and H are relevant to the appeals. 15 It is agreed between the parties that an exhibited draft local environmental plan that is to replace the LEP is certain and imminent and accordingly, significant weight should be given to the provisions of the draft plan. A draft development control plan (the draft DCP) has also been exhibited which is to replace DCP2000 when the draft plan is made. The parties agree that the draft DCP is similar in its content to DCP2000. The evidence 16 The hearing commenced on site when the premises was inspected, in the company of the parties and their experts, and the extent of works that are the subject of the applications was identified. Discussion took place as to the need to provide toilet facilities within the proposed restaurant and it was suggested by the building experts that, if the Court deemed it appropriate that such facilities were required, a unisex facility could be provided adjacent to the lift motor room within the café area. This location was detailed on plans tendered as Exhibit K. Those experts were not required to provide further evidence to the Court as all issues related to the extent of works that were required to allow a building certificate to be issued were agreed and were detailed in the joint expert report provided to the Court as Exhibit 15. 17 Expert evidence was heard from: - Mr W Gosling, town planner for the applicant; - Mr K Rothe, town planner for the council; - Mr C McLaren, traffic engineer for the applicant; - Mr S Sivakumar, traffic engineer for the council. Parking 18 The parties agree that the site provides parking for 86 cars within the basement area and that the council's planning controls do not specify a parking rate for bulky goods showrooms. Part H of the DCP incorporates performance criteria and 'development standards' for off street parking and lists three criteria as follows: - To ensure that new and altered development is provided with adequate off-street parking to service the likely parking demand of that development. - To ensure that new development does not introduce unnecessary or excessive off-street parking. - To ensure that parking provided for development not listed in table H-1 is based on sound and detailed parking assessment. For bulky goods retail stores, Table H-1 states that the parking requirement is to be determined from comparison with similar developments. Section D1.3 requires such an assessment to include, but not be necessarily limited to a detailed parking survey of similar establishments located in areas that demonstrate similar traffic and parking demand characteristics, along with a range of other issues, none of which were addressed in evidence. 19 The parties agreed that the approved gross floor area (GFA) of the development is 4950m2 and that the current GFA is 7991m2. There was no agreement on the rate that parking should be based for the additional bulky goods, restaurant and mezzanine areas. Mr McLaren stated that no additional parking was required as he considered the site currently provided sufficient parking based on his survey of the site and a RTA survey of an adjoining furniture store opposite the site. He stated that the 86 spaces provided represented a parking rate of 1.43 spaces per 100m2 of gross leaseable floor area (GLFA) for the development as proposed utilising the same approach that was accepted by the council when determining the original development application. At the time that application was determined the parking rate adopted was 1.8 spaces per 100m2. Mr Sivakumar stated that the mezzanine floors may have future potential to convert to other permitted uses and that could have a significant impact on parking demand. Mr McLaren considers it unlikely that the individual small mezzanine levels would be used as separate offices or other purposes unrelated to the main tenancy. Similar views were expressed in relation to the goods storage area. 20 Mr McLaren referenced the RTA parking demand survey of the Nick Scali store (opposite the site) that provides a parking rate of 1.24 spaces per 100m2. As the parking provision for the site exceeds this amount, and he considered the premises to be similar, (both being furniture showrooms) he argued that the parking provided for the site, at a rate of 1.43, would be adequate. Mr Sivakumar accepted the rate calculation however did not consider the site to be similar to Nick Scali as that building is occupied by one business only whereas the site contains 12 separate tenancies. Mr McLaren stated that the businesses at the site were furniture stores and were located in a cluster of similar premises including the Harvey Norman store and a large bulky goods centre at the corner of Parramatta Road and Duck Street and he considered that people would visit one property and then walk to the others to compare products. For this reason he stated there would be dual use of parking in the area. Mr Sivakumar stated that he considered the appropriate parking rate to be 2.08 spaces per 100m2 to be consistent with other similar development in the Auburn local government area however he could not cite any stores other than Nos. 258 and 265 Parramatta Road that provided parking at a rate equal to or higher than that figure and he could not quantify the rate of provision at the latter premises. 21 Mr Sivakumar was also of the view that parking for the restaurant use should provide additional parking based on the council's rate for reception lounges however Mr McLaren took the view that the restaurant was not a reception lounge and as the DCP did not establish a rate for restaurants, the RTA rate for restaurants in shopping centres should apply. He also stated that the restaurant would be used by patrons of the bulky goods stores during the day and that during the night those stores would not be open so parking available would be adequate at all times. Mr Sivakumar did not accept the site to be a shopping centre and considers that such a rate would be applicable to a restaurant within a Westfield type development only. 22 The applicant requested consideration be given to a 12 month trial period for the restaurant to allow monitoring the impacts of that use and a condition limiting seating capacity to 72 seats be imposed. The council sought a condition which required a security management plan to be prepared by the licensee of the restaurant. I note that this was not a requirement of the police and that at this stage, no application for a licence is sought and accordingly, the condition would be more appropriate to be attached to such approval. I do however concur that the site is isolated so the condition in relation to crime prevention is appropriate if consent were to be granted. 23 Mr McLaren had conducted a survey of parking usage at the site over three days in August 2010 when eleven tenancies were operating. This survey showed that the peak parking demand occurred on Saturday at 2.30pm when 42 cars were on site, which represents 47.7% of carpark capacity or peak rate of 0.79 spaces per 100m2 GLFA based on the area of the site occupied at that time. He concludes that the parking rate provided on site will therefore be sufficient when the entire complex is occupied and if consent is granted to the application. Mr Sivakumar has not carried out any surveys of bulky goods stores in the Auburn area and maintained the rate that should be applied was 2.08. The ramp 24 The original development consent included conditions that vehicular access to the carpark should be off Parramatta Road and egress only to Skarratt Street. The site has been operating with signage and markings to encourage two-way use of both driveways. The applicant concedes that the ingress driveway off Parramatta Road should be restricted to one-way ingress and accordingly, has agreed to remove all signage and reinstate the restrictions. The application involves a proposal to use the existing ramp off Skarratt Street for both ingress and egress to the basement carpark. 25 Mr McLaren has prepared a diagram of a B99 and B85 vehicle using the ramp and advises that it is adequate for such vehicles. Mr Sivakumar advises that the ramp is of inadequate dimensions, particularly in relation to width, to comply with the relevant Australian Standards and that a 300mm wide median would also be required if the ramp was to be used for two-way vehicles and, as it was not proposed to widen the ramp, it should be retained as one-way operation. Mr McLaren conceded the ramp did not meet the numerical requirements of the standard however he considers the standard to apply to spiral ramps and that a 'knee-joint' arrangement is more appropriate to this particular circumstance. He maintained that double centre line marking would be sufficient to address the median requirement, that the majority of vehicles would enter the site from Parramatta Road and, as an accredited safety auditor, he was of the view that the use of the ramp would be safe. Mr Sivakumar disagreed as he stated that the turn is designed on a 5kph speed limit and the grade of the ramp may require vehicles to travel faster when leaving the basement area. Loading facilities 26 The originally approved plans made provision for four loading docks at the northern end of the building. All truck access to the site is provided from Adderley Street via a right-of-way over the adjoining property. Accordingly, there is a need to provide truck manoeuvring space which is provided adjacent to the site's northern property boundary. The proposed changes involve the reduction in the width and depth of the loading docks, the size of vehicles that can be accommodated therein and the conversion of an adjacent unpacking area to bulky goods floor space within Lot 4. The service corridors are narrowed and relocated to now follow the perimeter of Lot 3 rather than the original wider central corridor direct to the ground floor level. 27 Four, 12m heavy-rigid trucks could be parked in the approved loading area. This is now reduced to one heavy, one medium and two small rigid trucks with the heavy rigid truck having to extend beyond the building to retain an area at the rear for loading/unloading. Mr McLaren has undertaken assessment of the type of trucks that service the site and advises that 80% are small rigid, 15% medium and 5% large and heavy rigid vehicles. He considers that this fact, along with a condition of consent imposed to ensure operation of the dock in accordance with a management plan, a draft of which has been included in his expert report, Exhibit E, would ensure that the proposed arrangements are satisfactory. Mr Sivakumar advises that the council's DCP would require 8 docks for the floor space proposed and because the council had allowed only four when the original consent was granted when six were required, this number would be reduced to six. He maintained that six should be provided and that all docks should be designed to accommodate a heavy rigid vehicle. The DCP does not specify any criteria for the size of the loading docks. 28 The option of a twelve-month trial period to monitor usage of the area was raised by Mr Stauton for the applicant. Mr McLaren considered this a viable option for the site provided the management plan was implemented and regular monitoring and review of the operation was conducted. Mr Sivakumar agreed that this could be an option provided at least quarterly assessments were conducted and the results presented to the council for consideration. Draft conditions were prepared to reflect such trial period. Bulk and scale 29 Mr Rothe considers that the proposal represents an overdevelopment of the site, an intensification of the use, is contrary to the relevant planning instruments and policies (particularly in relation to floor space ratio (FSR)), is not in the public interest and that the unauthorised works should be removed. Mr Gosling disagrees and considers the development to be appropriate for the site, particularly in the context of the draft planning instruments which, the parties agree, are imminent and certain. 30 The parties agree that the FSR of the development is 1.6:1 and the DCP control is currently 1:1 however, it was also agreed that an exhibited draft Local Environmental Plan (the draft LEP) adopted by the Council and referred to the Department of Planning to be made will have, as a development standard, a FSR of 1.5:1 for bulky goods premises and 3:1 for office premises, hotel and motel accommodation in the B6 zone that will apply to the site. 31 Auburn Local Environmental Plan 2010 was made on 29 October 2010 which was in the period between when I reserved my decision in this matter but prior to delivery of my judgment. There are no consequential changes that will affect my decision as the plan has been made with the FSR provisions contained in clause 4.4(2B)(a) as described in paragraph 30 of this judgment. 32 Mr Gosling advises that the likely future character of the area will include three storey buildings as a result of the higher FSR and accordingly considers the bulk and scale of the proposed building to be appropriate. He also states that the approved roof at the upper level sets the scale of the building. The light-weight construction, setbacks of the upper level and the use of glass walls, in his opinion, reduce the impact of the development when viewed from adjoining public places and that the enclosure of the approved display areas does not intensify the use. Mr Rothe stated that the majority of development in the area is one and two storey however did agree there is design merit with regard to the setbacks, light-weight structure and glass elements of the building. He was concerned with the numerical non-compliance with the FSR and did not consider the development was compatible with development in the surrounding area. Mr Gosling advised that there are a number of taller buildings along Parramatta Road and there were likely to be more once the draft LEP is made due to the planning controls allowing for a higher FSR. Landscaping 33 Clause D5.8 of the DCP requires that a minimum of 15% of the site is to be maintained as soft landscaping, with lawns, trees and shrubs for aesthetic purposes and for the enjoyment of workers of the site. There is no definition of soft landscaping and Mr Gosling maintains that appropriate species in planter boxes to be provided around the second level of the building in addition to the landscaped setback to Parramatta Road and the replacement of the unauthorised concrete driveway area adjacent to the northern boundary with landscaping would meet the numerical requirement and provide amenity to workers and customers of the site. Mr Rothe considered that the whole area along the northern boundary should be reinstated and Mr Gosling stated that the western end could be concreted and used for container or waste bin storage. Mr Rothe considers there should be no external storage of containers, that the approved garbage room would be sufficient for bin storage and the area would provide better amenity if it were landscaped. The Building Certificate 34 The parties agreed that if I determined that consent should be granted to the development application, a building certificate for part of the building could be issued in accordance with the provisions of s 149F(3)(a) of the Environmental Planning and Assessment Act 1979 (the Act) which states: (3) On hearing the appeal, the Court may do any one or more the following: (a) It may direct the council to issue a building certificate in such terms and on such conditions as the Court thinks fit, provided that and an agreed list of works was completed and certified. The applicant requests that a building certificate be issued for the building with the exception of the loading dock area and that a 12-month trial period be allowed to monitor the effectiveness of the area and the proposed dock management plan. In the event that the trial period is found to be successful, a further building certificate application could be lodged with the council for that portion of the building. Alternately, the area could be converted to the configuration originally approved. Conclusions and findings 35 The council does not have a standard for parking provision within bulky goods premises and requires applicants to undertake surveys of similar developments. Whilst I accept Mr Rothe's contention that the Nick Scali establishment is not similar to the site, as it is a building with one tenant and does not allow for comparison shopping, I rely on Mr McLaren's survey of the site and his conclusion that the parking provided will meet the peak demands. The 12-month trial period for the operation of the restaurant is appropriate to determine whether it is used primarily by shoppers or whether a different clientele is established which may impact on parking demand. 36 I consider that it is necessary to provide an accessible toilet facility on the same level as the restaurant and that such a facility can be provided in the area agreed by the parties. 37 I accept Mr Sivakumar's advice that the use of the Skarratt Street ramp does not meet the numerical requirements of the Australian Standard and also McLaren's advice that it could be used safely however, evidence of the difficulties associated with two-way use was apparent on site and I do not consider that it is appropriate or necessary that the ramp be two-way, particularly as customers may utilise larger vehicles to collect furniture or goods purchased from the site and these larger vehicles would not be able to pass on the ramp. 38 The reduction in the size of the loading bays, will, according to Mr McLaren's evidence, accommodate the variety of trucks that service the site. Mr Sivakumar could not provide any basis, other than numerical compliance with the council's DCP, for dock numbers or any evidence that the proposed arrangement will not satisfy tenant and customer needs. As the site was not fully operational at the time of Mr McLaren's survey of use, I consider the 12-month trial period with an approved dock management plan to be appropriate to allow monitoring its effectiveness. This will allow users of the site and the council to determine whether the amended arrangements are satisfactory. If they are not, the area can be reinstated to that approved under the original development consent. The parties did not agree on who should monitor the operations, the council advising that it wants to appoint the engineer and ensure the surveys are carried out unannounced and the applicant states that it should be able to appoint the engineer. It is appropriate that both parties agree to the appointee and that the survey is done on a random basis. 39 The form of the building approved by the Council incorporated a substantial roof on the second level of the building and I agree with Mr Gosling that this structure determines the height and scale of the building. Whilst the area is now enclosed, the use of glass windows and doors does not add to the bulk and scale of the building to such an extent that it could be said to be out of character with the locality. There are a range of building types and forms along Parramatta Road and, with the new planning controls that will apply when the draft LEP is made, it is likely that redevelopment will be in the form of more two and three storey buildings to optimise the FSR permitted. As the parties agree that I must place significant weight on the draft LEP, I do not consider that the scale, bulk or intensity of the development to be inappropriate for the site, its context and location. 40 The ability to provide effective and efficient vehicle manoeuvring areas and truck waiting areas to the docks is considered desirable and for that reason, I consider there should be no external storage of containers or other goods as it is imperative that all vehicles can access the docks and not intrude on the right-of-way that provides access to the site, thereby impacting on the users of the adjoining development. 41 I support the reinstatement of the landscaping along the boundary and consider there should be no need for any goods to be stored outside the building. In the event that there is such need then it is more appropriate that the applicant reinstate the packing area adjacent to the dock. I accept that the roof top planters, provided they are adequately maintained, would constitute soft landscaping and accordingly, I am of the view that the landscape plans proposed more than satisfy the council's numerical requirement of 15% soft landscaping. 42 In view of my decision in relation to the merits of the development application, it is appropriate for the council to issue a building certificate for part of the building, with the exception of the loading dock arrangement, when the works agreed have been completed and certified by appropriately qualified persons. Orders 43 In Appeal 10451 of 2010 the Orders of the Court are: 1. The Appeal is upheld in part. 2. Development Application No DA-48/2010 for alterations and additions to an existing building and use of those areas for storage, restaurant and display of bulky goods at No. 219 Parramatta Road, Auburn is approved subject to the conditions in Annexure A. 3. The exhibits, other than Exhibit A and K, are returned. 44 In Appeal 10450 of 2010 the Orders of the Court are: 1. The council, pursuant to Section 149F3(a) of the Environmental Planning and Assessment Act, 1979, issue a Building Certificate for part of the building excluding the loading dock area in accordance with the requirements detailed in Annexure 1 within 14 days of receiving all certification detailed in that annexure. 2. The exhibits are returned. _________________________ Sue Morris Commissioner of the Court ANNEXURE A CONDITIONS OF CONSENT NEW FORTUNE DEVELOPMENT v AUBURN CITY COUNCIL LAND & ENVIRONMENT COURT PROCEEDINGS 10451 of 2010 DA-48/2010 A) The following "Deferred Commencement" conditions are applied and must be satisfied before the consent can operate: - Consent is granted subject to the following "deferred commencement" conditions. In accordance with Section 80(3) of the Environmental Planning and Assessment Act, this development consent will not operate until you satisfy the Council as to the matters set out in these "deferred commencement" conditions. i) All necessary work has been carried out and documentation provided as listed in Schedule 1 of these Conditions. ii) A sum is to be paid to Council for the purpose of the provision of additional services and public facilities that is likely to generate from employment generating development within the Auburn LGA. That sum is to be calculated based on the cost of the unauthorised works carried out by the Applicant as follows: a) 0.5% of the cost of the development from $100,000.00 to $200,000.00; and b) 1% of the cost of the development from $200,000.00 onwards. In order to calculate the appropriate sum, the Applicant is to provide the Council with a certificate from an appropriately qualified quantity surveyor as to the cost of the works which are the subject of this development application for the use of those works. Reason: To assist in the provision of additional services and public facilities that is likely to generate from employment generating development within the Auburn LGA In accordance with clause 95(3) of the Environmental Planning and Assessment Regulation 2000, you must produce evidence to the Council within a period of 180 days , sufficient enough for Council to be able to be satisfied of the above matters. If evidence is produced within the specified period, in accordance with Clause 95(5) of the Regulation, Council will notify you whether or not it is satisfied as to the above matters and whether or not the consent will operate. B) Conditions to be satisfied throughout the term that the consent remains valid: - 1. Approved plans The development is to be carried out in accordance with the approved stamped plans as numbered below: Plan Number Prepared By Revision No. Dated DA02 Basement Floor Plan Draftsmart P/L A 12 February 2010 DA03 Ground Floor Plan Draftsmart P/L A 29 October 2009 DA04 First Floor Plan Draftsmart P/L A 12 February 2010 DA05 Second Floor Plan Draftsmart P/L A 12 February 2010 DA06 Sections and Elevations Draftsmart P/L A 12 February 2010 DA08 South Elevations Draftsmart P/L A 12 February 2010 Landscape Plan Melissa Wilson Landscape Architects A 9 September 2010 Annexure D - Draft Loading Dock Management Plan for 219 Parramatta Road, Auburn and addendum "Operational Loading Dock Management Plan" Craig McLaren 10 September 2010 (Addendum document tendered on 19 October 2010) Plan of Management for the restaurant Warwick Gosling Tendered on 20 October 2010 except as otherwise provided by the conditions of this determination (Note:- modifications to the approved plans will require the lodgement and consideration by Council of a modification pursuant to Section 96 of the Environmental Planning and Assessment Act). Reason:- to confirm and clarify the terms of Council's approval. 2. Provision of disabled amenities A unisex disabled toilet facility is to be provided on the second floor towards the southern end of the area marked "Café" generally in accordance with the marked up plan provided to the Land and Environment Court. A detailed plan to be provided to the Council for its approval prior to the Construction Certificate. Reason: To ensure that adequate amenities are available to patrons of the café and restaurant. 3. Construction Certificate (i) PCA – Inspection of works – general and site management The building works are to be inspected by the principal certifying authority (or other suitably qualified person on behalf of the Applicant if permitted by the PCA) to monitor compliance with Council's approval and the relevant standards of construction. Documentary evidence of compliance with Council's approval and relevant standards of construction is to be maintained by the principal certifying authority. Upon inspection of each stage of construction, the principal certifying authority (or other suitably qualified person on behalf of the Applicant) is also required to ensure that adequate provisions are made for the following measures (as applicable), to ensure compliance with the terms of Council's approval: - Sediment control measures; - Provision of perimeter fences or hoardings for public safety and restricted access to building sites; - Maintenance of the public place free from unauthorised materials, waste containers or other obstructions. ADVISORY NOTE If Council is appointed as the PCA, the following critical inspections (as applicable to the development), must be arranged: a) prior to commencement of Building Works, ensure erosion controls PCA and the buildings signs are displayed and a temporary toilet is located on site; b) the framework including roof members when completed and prior to the fixing of any internal sheets; c) prior to covering waterproofing in any wet area; and d) final inspection. A minimum of 48 hours notice must be provided to Council to enable the following inspections to be carried out during the course of construction. Reason: to ensure the development is adequately monitored during the construction phase. (ii) Sign to be erected concerning unauthorised entry to the site A sign must be erected in a prominent position stating that unauthorised entry to the site is not permitted. The sign must also name the builder or other person responsible for the site and a telephone number at which the builder or other person can be contacted outside working hours. Where Council is not the Principal Certifying Authority, the sign shall also display the name and contact details of the nominated Principal Certifying Authority. The sign is to be removed when the building works have been completed. Reason: to restrict public access to the site and to provide suitable contact details in a clear and conspicuous position. (iii) Submission of Construction Certificate Construction works are not to commence until such time that a Construction Certificate for the proposed works has been issued by Council or an Accredited Certifier. NOTES When an Accredited Certifier issues a Construction Certificate, a copy of the following documents must be forwarded to Council within 7 days of issue, together with payment of the Council's adopted registration fee; determination; application to which it relates; construction certificate issued; plans and specifications; any fire safety schedule; and any other documents lodged with the certificate. Any modification involving building works to the approved development made under Section 96 of the Environmental Planning & Assessment Act 1979 requires the submission of an amended construction certificate. Reason: to comply with the requirements of Section 81A of the Environmental Planning & Assessment Act and Clause 142 of the Environmental Planning & Assessment Regulation. (iv) Appointment of Principal Certifying Authority/Notice of Commencement of Work Site works are not to commence until: a) a construction certificate for the building work has been issued by the consent authority; and b) the person having the benefit of the development consent has: i) appointed principal certifying authority for the building work; and ii) notified the principal certifying authority that the person will carry out the building work as an owner-builder, if that is the case; and b1) the principal certifying authority has, no later than 2 days before the building work commences: i) notified the consent authority and the Council (if the Council is not the consent authority) of his or her appointment; and ii) notified the person having the benefit of the development consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work; and b2) the person having the benefit of the development consent, if not carrying out the work as an owner/building has: i) appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved; and iii) notified the principal certifying authority of any such appointment; and c) the person having the benefit of the development consent has given at least 2 days notice to the Council of the person's intention to commence the erection of the building. Reason: to comply with the requirements of Section 81A of the Environmental Planning & Assessment Act (v) Principal Certifying Authority 1) The person having the benefit of a development consent or complying development certificate for development involving building work or subdivision work may appoint the consent authority, the Council or an accredited certifier as the principal certifying authority for the development. 1A) Despite subsection (1), such an appointment may not be made by any contractor or other person who will carry out the building work or subdivision work unless the contractor or other person is the owner of the land on which the work is to be carried out. 2) Despite subsection (1), an accredited certifier must not be appointed as the principal certifying authority for development involving subdivision work unless the subdivision to which the work relates is of a kind identified by an environmental planning instrument as one in respect of which an accredited certifier may be a certifying authority. 3) A principal certifying authority for building work or subdivision work to be carried out on a site is required to be satisfied: a) that a construction certificate or complying development certificate has been issued for such of the building work or subdivision work as requires development consent and over which the principal certifying authority has control, before the work commences on the site; and b) that the principal contractor for the work is the holder of the appropriate licence and is covered by the appropriate insurance, in each case is required by the Home Building Act 1989 , before any residential building work over which the principal certifying authority has control commences on the site, unless the work is to be carried out by an owner/builder; and c) that the owner/builder is the holder of any owner/builder permit required under the Home Building Act 1989 , before an owner/builder commences on the site any residential building work over which the principal certifying authority has control; and d) that building work or subdivision work on the site has been inspected by the principal certifying authority or another certifying authority on such occasions (if any) as are prescribed by the regulations and on such other occasions as may be required by the principal certifying authority, before the principal certifying authority issues an occupation certificate or subdivision certificate for the building or work; and e) that any preconditions required by a development consent or complying development certificate to be met for the work before the issue of an occupation certificate or subdivision certificate have been met, before the principal certifying authority issues the occupation certificate or subdivision certificate. 4) A principal certifying authority must also comply with such other requirements of a like or different nature as may be imposed on principal certifying authorities by the regulations. NOTE: Section 81A prohibits the commencement of building work or subdivision work unless the consent authority has been notified of the appointment of a principal certifying authority for the work. Section 109D (2) prohibits the issue of an occupation certificate authorising the occupation and use of a new building except by the principal certifying authority appointed for the erection of the building. Section 109D (3) prohibits the issue of a subdivision certificate for a subdivision involving subdivision work except by the principal certifying authority appointed for the carrying out of the subdivision. Reason: to comply with the requirements of Section 109E of the Environmental Planning & Assessment Act. (iv) Replacement of Principal Certifying Authorities Unless the relevant authority so approves in writing, a person may not be appointed to replace another person as the principal certifying authority for development. A principal certifying authority appointed to replace another principal certifying authority must ensure that notice of the appointment and of the approval of that appointment is given to the consent authority (and, if the consent authority is not the Council, to the Council) within 2 days of the appointment, Reason: to comply with the requirements of Section 109EA of the Environmental Planning & Assessment Act and Clause 162 of the Environmental Planning & Assessment Regulation. (vii) Notice to Allow Inspections To allow a principal certifying authority or another certifying authority time to carry out critical stage inspections or any other inspections required by the principal certifying authority, the principal contractor for a building site, or the owner/building, must notify the principal certifying authority at least 48 hours before building work is commenced at the site if a critical stage inspection is required before the commencement of the work. Reason: to comply with the requirements of Clause 163 of the Environmental Planning & Assessment Regulation. (viii) Erection of Signs A rigid and durable sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out: a) showing the name, address and telephone number of the principal certifying authority for the work; and b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside work hours; c) stating that unauthorised entry to the work site is prohibited. Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed. 4. Landscaping Prior to the use of the restaurant, landscaping is to be undertaken in accordance with the Melissa Wilson Landscape Architects Plan, 9 September, 2010 with the exclusion of the area marked garbage area which is to be planted to the satisfaction of the Council and generally consistent with the planting in the vicinity of the rear driveway. All landscaping on the site shall be properly maintained (including a fully operational planter box sprinkler system for all planter boxes) to Council's satisfaction, for the life of the consent. 5. Time period of consent This consent shall lapse five (5) years from the date of determination unless the approved building, engineering or construction work has been physically commenced in accordance with this consent. Development consent for the use of land does not lapse if the approved use of any land, building or work is actually commenced prior to the date on which the consent would otherwise lapse. Reason:- to satisfy the requirements of Section 95 of the Environmental Planning and Assessment Act. 6. Trial period for restaurant and loading dock The use of the loading dock and the restaurant area approved for a period of 12 months commencing from the date of the issue of the building certificate in Land and Environment Court Proceedings No. 10450 of 2010. During the trial period the applicant shall commission independent quarterly surveys by an appropriately qualified traffic engineer in relation to the operation of the loading dock in accordance with the loading dock management plan and in relation to parking demand generated by the restaurant use. The appointment of the engineer is to be agreed by the Council and applicant. The engineer shall carry out surveys unannounced to the Applicant and the Applicant is to pay the cost of the surveys. As a minimum the quarterly surveys must identify on a minimum of three (3) days of a typical week (one of the days to include a Saturday) the following: a) The number of daily trucks that visit the site by length of truck. b) The peak number of trucks that park within the four modified loading dock locations and within the loading dock area generally. c) The number of containers (by length) that are stored within the loading dock area generally and whether they are stored in the locations specified in the approved loading dock management plan. d) the number of cars parked in the basement carpark; The survey should include independent discussions with the individual tenancy owner/occupiers to record their satisfaction or dissatisfaction with the operation of the loading dock area and interviews of restaurant patrons to determine which of those patrons parked on site and whether they undertook any shopping. Any recorded problems to be highlighted and measures to correct these problems to be identified as corrective actions. The corrective action plan to be agreed via a joint discussion with all tenants with the date of agreement recorded. Any problems that are unable to be corrected via this process should be recorded. The independent surveys are to be provided to the Applicant at the completion of each survey period. If a section 96 application is lodged with Council no earlier than 3 months before the end of the trial period and no later than the expiry of the trial period then the use of the loading dock and restaurant may continue until such time as that application is finally determined. The results of the quarterly surveys are to be submitted to Council with any application to continue or make permanent the trial period of the restaurant or loading dock area. 7. No alteration without prior Council approval The completed building is not to be altered externally in character or colour without the prior consent of Council. Reason:- to ensure the external appearance of the development is not obtrusive or offensive and does not degrade the visual quality of the surrounding area. 8. No change of use without prior Council approval The areas of the floor plan which nominate that they will be used for particular activities, the mezzanine areas and the approved children's play area must not be utilised for different activities without the prior consent of Council. Reason: To ensure that the development is carried out in accordance with the development consent. 9. Provision of street numbers A street number is to be displayed in a prominent position at the entrance to the premises. Numbers are to be of a colour contrasting with the wall to which they are affixed. Reason:- to clearly identify the street number of the property. 10. Compliance with the Building Code of Australia All building work must be carried out in accordance with the requirements of the Building Code of Australia. Reason:- to ensure compliance with the requirements of the Building Code of Australia and to comply with Clause 98 of the Environmental Planning and Assessment Regulation 2000. 11. Commonwealth Disability Discrimination Act The Commonwealth Disability Discrimination Act 1992, may apply to this particular proposal. Submission and/or approval of this application does not imply or confer compliance with this Act. Applicants should satisfy themselves and make their inquiries to the Human Rights and Equal Opportunity Commission. Reason:- to provide advice on the requirements of the Commonwealth Disability Discrimination Act 1992 12. Erection of signs A rigid and durable sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:- a) showing the name, address and telephone number of the principal certifying authority for the work, and b) showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and c) stating that unauthorised entry to the work site is prohibited. Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed. Note: Principal certifying authorities and principal contractors must also ensure that signs required by this clause are erected and maintained (see clause 227A which currently imposes a maximum penalty of $1,100. Reason:- to comply with the requirements of Clause 98A and 136B of the Environmental Planning and Assessment Regulations. 13. Separate development consent No signs, whether for advertising, directory or identification purposes or for any other purpose, are to be erected on the land without the written consent of Council having first been obtained. Reason:- to limit and control advertising. 14. Business and building identification signage Business and building identification signage shall comply with the following:- The approved signage shall be appropriately maintained at all times. b) The signage shall be utilised as building and business identification signage only and shall not be adapted or altered to be third party advertising signage without the further consent of Council. c) The signage shall not:- i) flash, move, be animated, scintillate or be decorated with rotating flashing lights; ii) include any apparatus to provide any sound; iii) carry a message(s) which is offensive; iv) give instructions to traffic by the use of the words 'Halt', 'Stop', or any other direction, nor imitate traffic signs in respect to shape, layout or colour; v) contain interchangeable or movable parts; vi) impair or distract the vision of a driver through the intensity of the illumination of the sign; vii) must not impede the ability of the occupants to exit the building under emergency conditions. d) The wording to the signage shall be primarily displayed in English but may include a translation in another language. Reason:- to ensure the appearance and operation of the signage is in an orderly fashion. 15. Advertising of restaurant The exterior of the building is to contain no advertising for the restaurant which is located on the second floor. Reason: - to minimise the impacts on car parking within the site. 16. Vehicles related to the development to be parked on the development site All vehicles associated with the use of the premises shall be parked within the confines of the site at all times. Reason:- to minimise the impacts of car parking on local streets does not impact surrounding development. 17. Vehicles driven in forward direction All vehicles must be driven in a forward direction at all times when entering or leaving the premises. Reason:- to preserve and enhance the safe operation of the car parking area. 18. Loading and unloading of vehicles All deliveries to and from the site are to be conducted from vehicles standing within designated loading areas and not on access driveways, car parking spaces or landscaped areas. Reason:- to ensure delivery vehicles do not obstruct these designated areas of the site. 19. Deliveries to restaurant Deliveries to the restaurant on the second floor via the internal lift must only be undertaken outside the normal trading hours of the bulky goods retail outlets. Reason: To ensure that there is no conflict with pedestrians. 20. Vehicle access The ramp, which provides access from the basement carpark to Skarratt Street, shall operate in a one-way direction only providing egress from the site only. No use of the Skarratt Street driveway shall be made for vehicular entry to the site. The Parramatta Road entry to the site shall be used for ingress only and suitable signage shall be erected within the site to indicate this restriction. All delivery vehicles shall leave and enter the site from Adderley Street. Reason: to ensure efficient movement of vehicles to and from the site. 21. Container storage No shipping/maritime or airfreight containers shall be stored externally to the buildings Reason: to ensure all containers are stored internally within the premises so as to avoid visual intrusion to other properties. 22. Annual fire safety statement The owner of any building in which fire safety measures are installed, must cause the Council to be given an annual fire safety statement, within 12 months after the last such statement or final fire safety certificate was issued. The certificate shall certify:- a) That each essential fire safety measure has been assessed by a properly qualified person and was found, at the date of assessment, to be capable of performing to a standard not less than that required by the current fire safety schedule. b) That a properly qualified person has inspected the building and has certified that, as at the date of inspection, the condition of the building did not disclose any grounds for a prosecution under Division C. NOTES: 1. As soon as practicable after an annual fire safety statement is issued, the owner of the building to which it relates:- i) must cause a copy of the statement (and current fire safety schedule) to be given to the Commissioner of NSW Fire Brigades, and ii) must cause a further copy of the statement (and current copy of the current fire safety schedule) to be prominently displayed in the building. 2. A "fire safety measure" is defined as any measure (including any item of equipment, form of construction or fire safety strategy) that is, or is proposed to be, implemented in the building to ensure the safety of persons using the building in the event of fire. Reason:- to ensure compliance with Regulation 171 of the Environmental Planning and Assessment Regulation 2000. 23. Fire safety notices The fire-isolated stairway, fire-isolated passageway or fire-isolated ramp must contain a notice advising of "Offences relating to fire exits". The notice shall contain the wording prescribed by Clause 183 of the Environmental Planning and Assessment Regulation, 2000 and the Building Code of Australia. Reason:- to comply with Clause 183 of the Environmental Planning and Assessment Regulation 2000 and the BCA. 24. Amenity The operation of the premises shall be conducted in such a manner as not to interfere with or materially affect the amenity of the neighbourhood by reason of noise, vibration, odour, fumes, vapour, steam, soot, ash, dust, waste water, waste products, grit, oil, or otherwise. Reason:- to protect the amenity of the locality. 25. Odour No offensive odour from any trade, industry or process shall be detected outside the premises by an authorised Council Officer as defined in the Protection of the Environment Operations Act 1997. Reason:- to protect the surrounding locality from offensive odours. 26. Water pollution The operation of the premises shall be conducted in a manner which does not pollute waters as defined by the Protection of the Environment Operations Act 1997. Reason:- to protect waterways and stormwater systems from pollution. 27. Light overspill Any lighting on the site shall be designed so as not to cause nuisance to other residences in the area or to motorists on nearby roads, and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with AS4282-1997 Control of the obtrusive effects of outdoor lighting. Reason:- to ensure light overspill arising from the development does not interfere with the amenity of the locality and complies with relevant Australian Standards. 28. Food premises fitout – compliance with Standards The fitout of the food premises shall comply with the requirements of Australian Standard 4674-2004, Design, Construction and Fit-out of a Food Premises and Food Safety Standard 3.2.3, Food Premises & Equipment. Reason:- to ensure the food premises fitout complies with relevant standards. 29. Design and construction of food premises The design and construction of food premises must comply with the following requirements, as applicable:- 1) No alterations to the shop or any fittings therein (including the installation of new items of equipment) are to be made without the prior approval of the Principal Certifying Authority. 2) Areas intended to be used for storing & preparing food or for storing food packaging & equipment shall be physically separated from chemical storage areas, living & sleeping areas, toilets & change rooms, garbage & recycling facilities and all other activities likely to pose a risk of food contamination. 3) Adequate space shall be provided on the premises for the storage of dry goods, fresh fruit & vegetables, returned food, recalled food, packaging material and utensils & equipment. 4) All windows, doors, entrances/exits and serving latches shall be protected against the entry of pests. 5) Where doors and windows need to be pest proofed against flying insects only, they may be protected by:- i) Air curtains that effectively prevent insects entering the premises; or ii) Being fitted with plastic strip curtains that effectively exclude flying insects; or iii) Opening into vestibules with self-closing doors; or iv) Fitting the bottom edge of doors or bottom sash of windows (where practicable) with a seal; or v) Provide a fly zapper that is to remain on during business operating hours. 6) Insect control devices shall be installed so that the devices are not located directly over food preparation working areas, exposed food, clean equipment and/or unwrapped packaging material. 7) All service pipes, drains, cables and duct penetrations shall be effectively sealed to prevent entry of pests. 8) All service pipes conducts and electrical wiring shall either be concealed in the floor, plinths, walls & ceiling or fixed on brackets to provide a clearance at least 25mm and 100mm from the adjacent vertical and horizontal surface respectively. 9) Spaces between adjoining structures, such a between coolroom / freezer walls and premises walls and the external roof, shall be accessible for inspection and cleaning or sealed with a suitable compound to prevent the entry of pests. 10) The applicant shall refer to Sydney Water for trade waste requirements prior to the business use commencing. 11) Grease arrestors shall not be located in areas where food, equipment or packaging materials are handled or stored. 12) In areas where open food is handled or stored, light fittings shall be provided with fitted light diffusers to prevent contamination of food should the globe or tube shatter and allow easy access for cleaning. 13) Floors in the food premises shall be finished with a surface that complies with Table 3.1 of AS 4674.2004. 14) Floors in the food preparation areas shall be graded and drained to a floor waste connected to the sewerage system. 15) The intersection of floors with walls shall be coved in accordance with diagrams 3.1 and 3.2 of AS 4674.2004. 16) The plinths shall be of solid construction and not less than 75mm high with an impervious finish and consistent with the floor surface in table 3.1 of AS 4674 including coving. 17) Walls in the food premises shall be of solid construction and finished with a material in accordance with Table 3.2 of AS 4674-2004. 18) Wall surfaces shall provide a smooth even finish, free of buckles, ledges, fixing screws, picture rails, open joints, cracks & crevices. 19) Ceilings in the food premises shall consist of a non perforated material and finished free of open joints, cracks & crevices. 20) The intersections of walls and ceilings shall be tight jointed, sealed and dust proof. 21) Ceilings in other areas shall be installed in accordance with the requirements of Table 3.3 of AS 4674-2004. 22) Drop-in removable ceiling panels shall not be used in food preparation areas or where open food is being displayed or stored. 23) The food premises shall be provided with a single bowl sink with supply of hot water at a temperature of not less than 45°c for washing operations only where pre-packed food, drink and uncut fruit & vegetables are being sold. 24) The food premises shall be provided with a double bowl sink with a supply of hot and cold water through a common mixing spout. Hot water shall be provided at a temperature of at least 45°c for washing operations. 25) All fixtures, fittings and equipment in the food premises shall be designed in accordance the requirements of Table 4.3 of AS 4674. 26) Fixtures, fittings and equipment shall comply with one of the following options:- a) movable for cleaning; b) built into walls with the enclosure completely vermin proofed; c) butted against walls or other equipment and the joints sealed; d) installed with clearance distances compliant with Figure 4.4 of AS 4674.2004; or e) if installed on a plinth, installed such that it overhangs the plinths. 27) All equipment used for display or storage of hot foods must be capable of maintaining such food at a temperature of not less than 60oC, and being fitted with an approved thermometer able to read easily from the outside of the appliance for the purpose of measuring this temperature. 28) All equipment used for display or storage of cold foods must be capable of maintaining such food at a temperature below 5?C. Frozen foods must remain in a frozen state. The coolroom and freezer must be fitted with an approved thermometer able to be read easily from the outside of the appliance for the purpose of measuring this temperature. 29) Hand wash basins shall be provided adjacent to each toilet, with taps that operate hands free. The hand wash basin shall be provided with a permanent supply of warm water delivered through a single outlet. 30) Hand wash basins shall be provided at a distance of no greater than five metres from a food preparation area where open food is handled. Hand wash basins shall be provided with taps that operate hands free and be provided with a permanent supply of warm water delivered through a single outlet. 31) A sufficient supply of liquid soap and disposable hand towels shall be provided at the hand wash basin. 32) A separate area shall be provided for the storage of employees clothing, cleaning material and equipment. 33) Toilet facilities shall be in accordance with the BCA and shall be separated from areas where open food is handled, displayed & stored or provided with self-closing doors and a mechanical exhaust system that operates when the sanitary compartment is in use. 34) Access to toilet areas shall not be provided through areas (other than the dining area) where open food is handled, displayed or stored. 35) All waste material shall be stored in containers with tight fitting lids at all times. 36) No food whether covered or uncovered shall be stored outside of the external building facade. Reason:- to ensure the fitout complies with the food premises standards. 30. Trade waste The food premises must comply with the following requirements:- a) Liquid trade waste materials are to be disposed of in accordance with the requirements of the Sydney Water, Trade Waste Department and details of compliance are to be submitted to the certifying authority prior to the commencement of works. b) The disposal of waste materials in the domestic garbage service is not permitted. All waste materials must be collected by a waste contractor authorised by the Waste Service of New South Wales and details of the proposed service to serve the development are to be submitted to Council prior to occupation of the building. Reason:- to ensure that trade waste is properly disposed of. 31. Foodshop notification and inspection a) Foodshop notification shall be obtained from the NSW Food Authority, prior to commencement of business operations and a copy of the notification shall be submitted to Council. Notification can be completed on NSW Health Department's web site at www.foodnotify.nsw.gov.au b) The applicant shall notify Council not less than forty-eight (48) hours prior to the proposed occupation of the premise to arrange for a final compliance inspection. c) The applicant shall not operate the food premises until an occupation certificate has been issued. Reason:- to enable registration of the food premises and to ensure appropriate inspections are made of the food premises. 32. Hours of operation of restaurant The hours of operation of the development are limited to 9:00 a.m. to midnight Monday to Sunday and public holidays. Reason:- to limit the operating hours of the development so as to reduce the likely nuisance on adjoining development. 33. Maximum number of patrons for the restaurant and cafe The maximum number of patrons for the restaurant use of the premises on the second floor shall be limited to seventy-two (72) people. The café seating area cannot be used as seating for the purposes of the Restaurant Reason:- to restrict the number of people attending the premises at one time and to ensure the café seating is not used as restaurant seating. 34. Use of building not to commence until conditions of consent satisfied The use of those components of the premises to which this consent relates (including mezzanines on all floors; all the second floor as it is presently constructed; the enclosed terrace at the rear of the first floor) is not to commence until all terms of this consent have been satisfied. Reason:- to ensure compliance with the terms of the development consent. 35. Display of goods not permitted outside building or property Materials, goods, plant, equipment, signage, advertising structures or the like are not to be stored, placed or displayed anywhere outside the building or property without Council approval. Reason:- to avoid visual intrusion into areas adjoining the site. 36. Removal of litter In addition to Council's street sweeping and cleansing operations, the owner/manager of the building shall ensure that the footpath, gutter, building entry and surrounds are kept clean and clear of litter at all times. The owner of the building shall also be responsible for the prompt removal of any graffiti from the building. Reason:- to maintain a satisfactory level of amenity in the locality. 37. CCTV camera system The Management/Licensee of the restaurant shall install CCTV surveillance cameras in and around the premises, placed in strategic places such as the external entrance and exit doors. The surveillance tapes shall be kept for a period of 14 days for viewing by the police upon request. Reason:- to ensure that the use provides adequate visual surveillance and adequate records for the NSW Police to peruse is required. 38. Patron behaviour The Management/Licensee of the restaurant shall ensure that the behaviour of patrons entering and leaving the premises does not detrimentally affect the amenity of the neighbourhood. In this regard the management shall be responsible for the control of noise, loitering and litter generated by patrons of the premises and shall ensure that people leave the premises and area in an orderly manner. Reason:- to ensure that the use does not have an adverse impact on the amenity of the surrounding area. 39. Graffiti and vandalism rectification Should the external fabric of the building(s), walls to landscaped areas and like constructions be subject to graffiti or like vandalism, then within seven (7) days of this occurrence, the graffiti must be removed and the affected surface(s) returned to a condition it was in before defilement. Reason:- to ensure graffiti and vandalism is removed from premises in a timely manner and to protect the visual appearance of the area. 40. No approval granted for a public address system or sound amplifying equipment A public address system or sound amplifying equipment shall not, without the consent of Council, be installed in or upon the premises so as to cause or permit the emission of sound onto any public place or nearby residential area. Reason:- to ensure the development does not cause a noise nuisance to adjoining development. 41. Cleaning of facade The owner/manager of the building shall ensure that all windows either on the facade, and the facade itself or shopfront, of the premises/tenancy are cleaned regularly and, in any event, not less than twice in an annual period. Reason:- to ensure regular maintenance and cleaning. 42. Target hardening strategies to reduce crime The following target hardening strategies shall be undertaken on site to assist in the reduction of crime in the locality:- a) CCTV digital cameras shall be installed in and around the restaurant premises, particularly at the entry and exit points to assist police to identify offenders of crime. b) Warning signs strategically posted in and around the premises to warn intruders of the security measures. c) Additional lightning be installed in and around the premises to act as a deterrent for crime. The lighting shall be installed in accordance with the Australian Standards 1158.3 1999. The details shall be shown in the construction plans for approval by Council or the Accredited Certifier prior to the commencement of the restaurant use. Reason:- to reduce the incidence of late night crime in the locality and to improve public safety late at night. 43. Trade waste containers to be stored within the building An adequate area is to be set aside within the building for the storage of trade waste containers. Such space must be reserved at all times for the storage of trade waste containers. The containers shall not to obstruct or interfere with the use of loading and parking facilities and accessways. Reason:- to ensure the trade waste containers are stored within the building to prevent vandalism, arson and possible pollution to the external environment. 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.