Abacus Property Group v Ashfield Municipal Council - [2009] NSWLEC 1097

Land and Environment Court

of New South Wales

CITATION: Abacus Property Group v Ashfield Municipal Council [2009] NSWLEC 1097

PARTIES:
APPLICANT
Abacus Property Group
RESPONDENT
Ashfield Municipal Council

FILE NUMBER(S): 10261 of 2008

CORAM: Bly C

KEY ISSUES: DEVELOPMENT APPLICATION :- Retail, commercial and residential development, alterations and additions to existing buildings, height, bulk and scale, floor space, carparking

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy No. 1 - Development Standards
State Environmental Planning Policy No 65 - Principles for Residential Flat Design
Ashfield Local Environmental Plan 1985
Ashfield Development Control Plan 2007

DATES OF HEARING: 15-18/12/2008, 27/03/2009 and 31/03/2009

DATE OF JUDGMENT:
3 April 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr M. Craig, QC
Instructed by Malleson Stephen Jaques
RESPONDENT
Mr J. Ayling, SC
Instructed by Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

3 March 2009

10261 of 2008 Abacus Property Group v Ashfield Municipal Council
Judgment

Introduction

1 Situated in Liverpool Road a short distance to the south of the Ashfield Railway Station in the Ashfield Town centre is the existing retail and commercial development known as the Ashfield Mall. The development application to which this appeal relates involves significant alterations and additions to the existing buildings including changes to its architectural presentation, additional commercial and retail floorspace and together with residential flats, terrace style houses and landscaped open space above the existing roof top car park.

2 More particularly, as detailed in the architectural plans (Exhibit A), the proposal comprises:

Improvements to the existing shopping mall including 1,898 m2 of new floor space and the upgrading of the existing public plaza to Liverpool Road and an additional 268 car parking spaces.
Two rows of terrace houses containing 12 dwellings and three residential flat buildings (Buildings A, B and C) containing 116 dwellings. These four buildings are to be constructed above the existing roof top car park.
Demolition of existing buildings at 244-256 Liverpool Road and the erection of a new five story building comprising a new pedestrian arcade/entry, additional retail and commercial floorspace, serviced apartments, a child-care centre and additional basement car parking (Building D).
The provision of a through site pedestrian link between Liverpool Road and Norton Street.

3 The site of the proposed development occupies the majority of the block bounded by Liverpool Road (Hume Highway), Holden Street, Norton Street and Knox Street, Ashfield. More particularly it comprises:

260A Liverpool Road, Lot 1 DP 736779,
244 Liverpool Road, Lot A DP 405790,
252 Liverpool Road, Lot B DP 404055,
254 Liverpool Road, Lot A DP 404055,
256 Liverpool Road, Lot 100 DP 734467.

4 The site has a total area of approximately 2.34 ha comprising: 244-256 Liverpool Road (Site 1) - 1,543 m2; and 260A Liverpool Road (Site 2)-21,887 m2.

Council’s planning controls

5 Subject to the provisions of the Ashfield Local Environmental Plan 1985 the majority of the site is zoned 3(a) General Business. Part of the site in Liverpool Road adjoining council's civic centre, having an area of around 690 m2 is zoned 5(a) Special Uses (Civic Purposes). There was no dispute that the proposed development is permissible with development consent.

6 Clause 17B of the LEP deals with development of the Ashfield Business Centre in the 3(a) zone. Subclause 17B(2) sets an allowable base floor space ratio of 2:1. Subclause 17B(3) provides bonus, additional floor space ratios for certain sites including a bonus floor space ratio of 1:1 for Site 1 where development involves: residential or cinemas, child-care centres, recreation facilities, clubs or educational establishments. Because a child-care centre is included, the bonus floor space ratio is available hence on this part of the site the maximum floor space ratio is 2:1. There is no floor space ratio for that part of the site in the 5(a) zone.

7 It was not in dispute that the proposal exceeds the applicable floor space ratio and as a consequence the applicant has provided an objection under State Environmental Planning Policy No. 1 - Development Standards (Exhibit M) that was supplemented by the applicant's consultant town planner (Exhibit 15).

8 Also applicable is Ashfield Development Control Plan 2007. This DCP is divided into a number of parts, with Part C3 - Ashfield Town Centre being particularly relevant. Also relevant is the associated Ashfield Town Centre - Development Strategy (1997)

9 The development application (DA No 10.2006.24) was advertised between May and July 2006 and 31 submissions plus a petition were received. An amended proposal was subsequently advertised resulting in 11 submissions being received. Matters of concern raised in these submissions include:

Failure to comply with various planning controls
Inadequate provision of car parking,
Increased traffic congestion and reduced pedestrian safety in the locality,
Streetscape impacts including excessive building height and poor design,
Amenity impacts including overshadowing and loss of privacy,
Infrastructure deficiencies and absence of water recycling facilities.

10 Several of these matters were elaborated upon by a number of resident objectors who gave evidence when the hearing began on site.

Council's decision

11 On the 11 December 2007 the Ashfield Council refused the application for 30 separate reasons including matters relating to streetscape, bulk and scale, internal and external amenity, traffic, access and car parking, landscaping and structural adequacy.

12 The applicant has now appealed under s 97 of the Environmental Planning and Assessment Act 1979 to this court. For the following reasons I have decided that the appeal can be upheld and conditional development consent granted.

13 According to the statement of facts and contentions (Exhibit 1) and taking into account matters that have been resolved by agreed conditions of consent or by modifications to the application, the remaining matters in dispute include:

Unacceptable urban design including matters of excessive height bulk and scale, unsatisfactory landscaping and the requirements of the planning controls.
Excessive floorspace resulting in non-compliance with the maximum floor space ratio permitted by the LEP.
Whether the design of the proposed child-care centre and access thereto is satisfactory.
The unsatisfactory provision of car parking particularly in relation to the allocation of designated visitor parking spaces for the new dwellings.
Whether the paths of travel for pedestrians and for removalists and the like is satisfactory.

14 On behalf of the respondent council expert evidence was given by:

Mr B Krohn - urban design,
Miss P Walsh - child-care,
Mr G. Pindar - traffic and parking
Mr H. Sanders - town planning

15 On behalf of the applicant expert evidence was given by:

Miss G. Morrish - urban design,
Mr A Smith - child-care,
Mr C. Hallam - traffic and parking

16 In addition, the applicant's architect Mr D Rabinowitz provided a design statement in response to the requirements of State Environmental Planning Policy No 65 - Principles for Residential Flat Design.

17 In relation to the urban design issue the respondent contends that:

The proposed development particularly the three residential towers are excessive in scale and will adversely impact upon the streetscape and locality through the overall height, location and building form

18 More particularly concerns are raised that Buildings B and C when viewed from Paton Park, Ashfield railway station and Ashfield Park are excessive in height bulk and scale and will have an adverse impact on the skyscape. Also building C is excessive in height and will adversely impact on the roof and tower of the adjoining Ashfield Baptist Church on the corner of Norton and Holden Streets.

Planning controls - urban design

19 The DCP contains various provisions that are relevant to this application. Section 2.4 observes that some development sites can provide opportunities for better public open space areas, extra residents and new business space and:

Major new buildings are expected to locate on the fringes of the Centre in the block containing the Ashfield shopping mall and civic centre.

20 The reference here to the Centre is to the Ashfield town centre that variously extends between lands on the west side of Cavill Avenue and the intersection of Liverpool Road and the railway line and between Norton Street and Elizabeth Street on the north side of the railway line. The Centre is divided into a core area that includes the subject site and four separate fringe areas that are suitable for comprehensive redevelopment.

21 Sections 2.7 and 2.8 provide that new developments are to incorporate different types of floor space to allow mixed use and should make provision for future adaptability. Section 2.9 encourages new development that will open up new building entrances and replace existing blank walls facing streets.

22 Section 3 deals with good town design and section 3.1 requires a high level of design to improve the townscape quality of Ashfield. Broadly there are two areas of the Centre:

(a) The core area where the retention of existing businesses and floorspace and the pedestrian scale is important; and

(b) The fringe areas where new higher scale development is encouraged with less emphasis on the need to conserve existing business spaces, buildings or streetscapes.

23 Section 3.3 requires that new developments should enhance the townscape of the town centre addressing:

(a) The appearance of the development from a distance and along the routes and viewpoints leading to the site;

(b) The spaces adjacent to, and defined by, the development;

(c) The need to be complimentary to adjacent buildings in terms of height, scale, setbacks, materials and design details.

24 Sections 3.8, 3.10, 3.11, 3.12 and 3.22 deal with building form, respectively requiring that:

The shape, roof design and colour of buildings is to provide an interesting skyline when viewed from a distance and along the routes and viewpoints leading to the site. Lift overruns and services plant are to be concealed within well-designed roof structures appearing as an integral part of the main building.

Building facades are to reinforce the interest, character and continuity of existing streetscapes

Overall wall, parapet and individual floor heights are to be complimentary with adjacent development at least at the street frontage of the site. New higher development can then step back

New development should not appear over scaled in comparison to corner buildings.

Contemporary architectural design styles are preferred provided they echo the proportions and scale of existing older style development having heritage conservation merit within the centre.

25 Section 5 deals with building height and describes the town centre as having a reasonably uniform height of two storeys punctuated by newer buildings of approximately 6 storeys. The intention is to retain as far as possible these qualities while accepting that the scale of new buildings will increase in order to achieve new business spaces and residential units consistent with the allowable floor space ratios. The height controls are concerned to ensure that the amenity of shopping streets in the core area is maintained and that the centre will not be developed with a traditional city skyline of tall buildings. Instead:

The taller buildings will likely occur on the edges. They will also be able to act as well-designed landmarks for the centre.

26 Section 5.3 refers to the Building Height Map (Map 6) and explains that maximum building heights are determined by reference to principles of limiting overshadowing, and the maintenance of a street scale in the order of 2:1 for east-west streets and 1:2 for north-south streets with further levels stepped back at an angle of 45°. Additional building height is permissible on corner sites to give emphasis. A bonus of two additional storeys above ground within the core area can be considered, subject to the provision of community facilities and/or affordable housing. Map 6 identifies allowable building heights for various areas within the town centre and applies a six-storey limit to site 2. For site 1(that comprises the bulk of the site), the map notes:

Building height on Ashfield Mall and area to north-west subject to negotiation with owners regarding attainment of acceptable development.

27 The DCP also refers to the Ashfield Town Centre Development Strategy that seeks to achieve a balance between existing businesses, the pedestrian scale of streets and buildings, and the need for new open spaces and residential development. It seeks the development of the town centre as the focal point for public activities in Ashfield.

28 Section 3 of the strategy deals with building and spaces, encouraging mixed use developments including landmark residential buildings that maximise views and openness for residents provided that impacts on existing properties is minimal. Section 3.4 requires that in relation to the development of individual sites and the creation of a cohesive and integrated town centre, development should be consistent with this strategy. Section 7 contains precinct plans with the Ashfield shopping mall being included in Precinct 6 – Civic Centre.

29 The associated strategic principles include references to child-care facilities new office space and/or residential and the improvement of spaces between the mall and council buildings. The difficulties associated with new buildings, improving car access and limiting building height are recognized hence the final form of development would need to be subject to extensive negotiations between the council and the owners. A number of preferred responses, ideas and design suggestions are provided including:

Allow higher density residential use based on shadowing and privacy determinants to adjacent property.
Redevelopment area comprising rear of existing buildings fronting Liverpool Road and car park area of mall. Residential or commercial.

30 Accordingly the following diagrams (as extracted from the strategy) provide an indication of how a substantial proportion of the site extending from the corner of Liverpool Road and Holden Street to the west could be developed.

Expert evidence - urban design

31 In their lengthy joint report Ms Morrish and Mr Krohn considered the question of unacceptable urban design in the light of the requirements of the planning controls but failed to reach any meaningful agreement. Indeed the extent of their disagreement was such as to make the report of little use as a joint report having failed in many respects to display a meeting of minds.

32 According to Mr Krohn the overarching objective of the controls for the Ashfield town centre is to achieve a limited building height that being six storeys with an additional two storeys subject to the provision of a public benefit. These controls also include the floor space ratio development standard that provides bonuses for some fringe areas other than the site. The exceedence of both of these controls is of concern.

33 His detailed analysis of the three tower buildings in the light of a 2005 report by Dr R Lamb (commissioned but not adopted by the council) concludes that none of the three tower buildings fall within the height limits (10 storeys and maximum RL 57.5) in that report. Hence any reliance by the applicant on this report to justify the heights of the proposed buildings cannot be sustained. Also, the building does not achieve a well conceived building massing nor has an optimal, composed skyline outcome been produced.

34 Ms Morrish did not accept Mr Krohn's concerns and argued that the controls facilitate a significant increase in scale effectively involving a "double street wall" with a height of 6-8 storeys behind the street wall. These heights are available on this site because it forms one of the edges of the town centre as referred to in the DCP together with the fact that there are no height controls over the portion of the site adjacent to Norton Street. Taking into account the DCP's approach of locating taller buildings along the town centre edges it is reasonable to expect that such buildings will be visible to the broader surrounding areas as landmarks that blend into the horizon. The proposed towers are consistent with this approach but do not create a traditional city skyline. She also described how the proposed tower buildings correlate to existing multi-story buildings in the Ashfield town centre.

35 According to Mr Sanders, considering the six-storey (equivalent) height of the existing building the proposed Buildings A, B and C equate to heights of 12, 13 and 14 storeys. Hence, and taking into account the requirement of the DCP regarding acceptable development and the six storeys plus the two storey bonus (in certain circumstances), this has not been met. He also notes the 2005 height controls study that recommended a maximum heights of 6 and 10 storeys in the respective locations of development. Mr Cady disagreed contending that the proposed buildings will not be out of scale with their existing or planned future built form context and will not cause unreasonable overshadowing.

36 Ms Morrish and Mr Krohn considered the eight-storey Building A separately. Mr Krohn believes that this building breaches the intent of the DCP and would have a substantial impact in Liverpool Road and on the existing 2/3-storey building on the Knox Street corner. Ms Morrish believed it would have an appropriate scale, being positioned behind the existing lower scale street frontage buildings; again taking also into account that there is no height limit in the controls. It is expected that this site will be redeveloped to six or eight storeys.

Court's consideration - urban design

37 Having reviewed the planning controls applicable to the site in the light of the evidence of the urban design and town planning experts there are a number of provisions that are particularly relevant to the assessment of this development. Major new well-designed landmark buildings are to be expected where such buildings comprise a higher scale of development that provides an interesting skyline that can be viewed from a distance. Such buildings should be of contemporary architectural design and be stepped back from the street frontage to protect the pedestrian scale of streets. Whilst there is no building height limit (despite Mr Krohn's reference to an overarching height objective), the amenity of adjacent residential properties should be protected. In my opinion none of these provisions are affected by Dr Lamb's report that, not having been adopted by the council, must be given little weight in comparison with a properly prepared and adopted development control plan. Despite this whilst I recognize that Buildings B and C exceed his suggested maximum height they are not entirely inconsistent with his suggestion that there is capacity on the site of buildings to be at least as tall as the tallest of the nearby buildings.

38 Taking these matters into account I agree with Ms Morrish that the heights of Buildings B and C are not excessive and there are no adverse streetscape or amenity impacts. Having contemplated the height, bulk and scale of these two buildings as well as Building A whilst on site and taking into account the photomontages (including 2/4, 5/4, 6/4, 14/4 and 16/4 in Exhibit A), I agree that what is proposed is a satisfactory response to the controls, especially taking into account that major new landmark buildings are sought and that such buildings, by definition, need to be visible.

39 Whilst the built form skyline created by Buildings B and C may not be optimal and could have been improved with greater modulation at the upper levels (these buildings are over 40 m long) and greater building separation, this is not a sufficient reason to refuse the application.

40 As for Building A, taking into account the existing building and redevelopment opportunities available to the land at the corner of Liverpool Road and Knox Street, I accept the evidence of Ms Morrish that this is a background building that would not adversely affect the Liverpool Road streetscape. In this regard I am not concerned that the building would be able to be seen from Liverpool Road in the manner depicted in the photomontages (2/4 and 6/4 Exhibit A). I have also taken into account the significant distance that this building is set back from the corner of Liverpool Road and Knox Street. Similarly, I have no concerns in relation to impacts on the Baptist Church at the corner of Norton and Holden streets given the distance of separation and the limited extent to which Building C will be seen above the roof of the church.

41 More generally, there can be little doubt that the proposed new built form of this development projecting as it will into the skyline when viewed from various positions in the locality will change the visual character of the Ashfield town centre. However I accept that this change will not be inappropriate in the light of the applicable planning controls, notwithstanding that all of the requirements of the DCP may not have been strictly met. In particular, whilst the (above) diagrams in the development strategy are not entirely clear they are at least indicative of a built form concept that is essentially responded to by this proposal.

Floor space ratio - SEPP 1 objection

42 The SEPP 1 objection identifies the floor space ratio provisions in clause 17B of the LEP as being the relevant development standard and taking into account the base floor space ratio of 2:1 and the bonus floor space ratio of 1:1 this reflects a permissible floor space of 48,404 m2 for both Sites 1 and 2.

43 In their joint report Mr Cady and Mr Sanders disagreed as to the actual floor space ratio on the basis of site area and the gross floor area of the building. Mr Sanders said that the land zoned 5(a), an area of some 720 square metres, should be excluded from the calculation, resulting in a higher floor space ratio. Mr Cady disagreed because part of the existing shopping centre is already located on this land. I agree that this land should be included in the calculation because it is part of the site area of the land on which the development is proposed to take place. The resulting calculated floor space ratio would thus be appropriately meaningful.

44 Mr Sanders included in his calculation of gross floor area an area of some 1,283 m2 being the area occupied by fire stairs adjacent to the car parking floors. However, I agree with Mr Cady that these areas should be excluded in accordance with the definition of gross floor area, because they provide internal access to the car parking areas that are provided in accordance with council's requirements.

45 As referred to above Site 2 attracts a bonus floor space ratio of 1:1 with a total available floor space ratio of 3:1. Whilst I understand that this floor space ratio has not been fully utilised and that this might be indicative of a lower floor space ratio for both sites together, there nevertheless remains an overall exceedence.

46 In the joint report Mr Cady refers to his calculated floor space ratio of 2.15:1 that reflects a gross floor space exceedence of 2,084 m2 and I accept this as being correct. This excess floor space comprises 4.3% of the permitted yield and I understand that it is roughly equivalent to just over one whole floor in Buildings A, B and C.

47 According to the SEPP 1 objection the grounds for the non-compliance relate to the carefully developed building envelopes taking into account difficulties of fitting in new buildings, improving car access and avoiding residential amenity impacts in Norton Street. Despite the non-compliance, the resultant scheme is entirely consistent with the stated objectives of the standard, which (inter alia) is to balance:

The need to retain and protect existing business premises, heritage items and the existing pedestrian scale of the centre in addition to providing more open space; and
The need for a new floor space to accommodate both business and residential uses within the Town Centre.

48 (Unfortunately I do not know where these stated objectives could be found hence they attract little weight).

49 The objection nevertheless deals with the question of what is the underlying object or purpose of the development standard. It notes that there are no specific objectives or purpose in clause 17B and suggests, that the aims and objectives of the LEP are too broad to be of much relevance. I agree with this proposition. However Part C3 (Section 4.1(a)) of the DCP supplements clause 17 B as follows:

The floor space ratios are set with the following criteria in mind:

(a) To allow a reasonable quantum of development potential where desirable.

(b) To ensure the quantum of development is not so large as to create:

Environmental problems (out of scale buildings, overshadowing);
Traffic generation problems.

50 Also of some assistance in the determination of the underlying object or purpose of the development standard are the provisions in clause 17B (3) and (4) of the LEP notwithstanding that they are not strictly applicable. These provisions enable certain lands adjoining the site in Liverpool Street and adjacent to the site on the east side of Holden Street to take advantage of Possible Additional Floor Space provided that the additional development will not result in an adverse impact on any of the following:

(a) The scale and character of the streetscape.

(b) The amenity of any existing or potential residential units on neighbouring land.

(c) Sunlight access to surrounding streets, open space and nearby properties.

(d) Wind flow patterns to surrounding streets, open space and nearby properties.

51 Section 4.2(f) of the DCP in dealing with additions to the base floor space ratio contains similar provisions plus the need to consider the amenity of any resultant residential units.

52 The SEPP 1 objection relies on two of the five alternate ways of establishing that strict compliance with the floor space ratio development standard is unreasonable or unnecessary as identified by Preston CJ in Wehbe v Pittwater Council (2007) NSWLEC 827 viz:

Establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard achieved notwithstanding non-compliance with the standard.
Establish that the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate for that zoning was also unreasonable or unnecessary as it applied to the land and that compliance with the standard in that case would also be unreasonable or unnecessary.

53 In dealing with the objects of the EPA Act, the objection argues that a strict application of the standard would constrain a major opportunity for consolidation of the Ashfield town centre without positively addressing any of the concerns that lead to the site being excluded from the floor space ratio bonus that is applicable to most of the town centre. It would also reduce revenue that would otherwise be available to contribute to improvements to the existing shopping centre and associated public domain spaces.

54 It then goes on to apply the underlying objectives of the development standard that are assumed to be to control the intensity and density of development having regard to:

The desired local character and built form of the area.
Limiting traffic generation.
The availability and capacity of existing infrastructure.
To minimise environmental and amenity impacts on residential properties and the public domain, including consideration of sunlight access and wind patterns.

55 In relation to local character and built form the objection refers to the outcomes envisaged by the DCP and the Town Centre Strategy particularly in relation to open space areas, extra residents and new business space particularly in the subject Street block where reference is made to major opportunities to improve services offered to town centre customers. In response the proposal includes refurbishment, major new residential buildings, additional commercial floor space and a new child care centre. The 5.3% variation (now 4.3%) to the development standard is consistent with this.

56 Also, the site is proximate to a major railway station and additional traffic generated by the proposed development can be accommodated within the surrounding road network. All major utilities are capable of being appropriately upgraded. There are no demonstrated adverse amenity impacts for surrounding development.

57 As for the unreasonableness of the zoning of the land, the objection argues that all land in the town centre except Ashfield Mall is subject to a 2:1 floor space ratio and a 1:1 bonus floor space ratio. The site is identified as being suitable for major new buildings and the town centre strategy recognizes its many opportunities and its practical difficulties. Whilst the underlying planning intent is thus to optimise the development potential of the site, the 1:1 floor space ratio bonus available throughout most of the town centre was deferred to consider matters such as the practicability of constructing additional buildings, road capacity and amenity impacts on properties to the south. These matters have now been favourably resolved.

58 The objection is thus said to be well-founded because:

It clearly documents the standard proposed to be varied, and the nature and extent of the proposed variation.
It demonstrates that the variation is the result of a sound design process driven by relevant town planning objectives.
It examines the purpose for which the standard was formulated and demonstrates that the proposed development satisfies this underlying purpose, notwithstanding the proposed non-compliance with the standard.
It demonstrates that strict compliance with the standard is unreasonable and unnecessary given the circumstances of the case.
It demonstrates that the variation is not numerically significant, and will not be manifest in any perceptible adverse environmental effects.

59 In their joint report the planners disagreed as to whether the proposed development meets the underlying objectives of the floor space ratio development standard with Mr Sanders contending that its bulk and scale is not appropriate. In response Mr Cady said that the development is not so large as to create environmental or traffic problems and that the quantum of development proposed is reasonable. It is a major new building that is appropriately located in response to the intent of the DCP and the town centre strategy.

60 As for the reasonableness of the zoning Mr Sanders observes that the objection does not question the zoning of the land instead it questions the proposition that a bonus floorspace had always been envisaged for this site. He asserts that there is no basis at all for the assertion that consideration of such a bonus was deferred. In this regard he refers to Map No. 3 that indicates where bonus provisions are or might be available. If there had been an intention to defer the application of a bonus then an appropriately worded notation would have appeared on the map. In response Mr Cady relies upon the strategy upon which the floor space ratio zoning is based, that being that:

Major new buildings are expected to locate on the fringes of the Centre or in the block containing the Ashfield Shopping Mall and Civic Centre.

61 In his opinion this strategy suggests that the reason the floor space ratio bonus provision was not applied to the site involves, as referred to in the SEPP 1 objection, difficulties of fitting in new buildings, improving car access and the protection of residential amenity. Hence the final form of development needs to be the subject of negotiation between council and the owners. He does not consider that the land use zoning of the site is unreasonable and accepts that the floor space ratio zoning was reasonable at the time of the gazettal of the LEP. The absence of a floor space ratio bonus that is otherwise generally available has been demonstrated to be unreasonable in the light of subsequent design and testing and documentation.

62 Mr Sanders explained that the excess floor space ratio manifests itself in a development that has an excessive bulk and scale and as a consequence of their excessive height they have adverse visual impacts in the locality.

63 Mr Cady disagreed explaining that the quantum of floor space proposed is responsive to the DCP that anticipates major new buildings in the block containing the Ashfield Shopping Mall and the Civic Centre. Also the floor space proposed is considerably less than that permitted on most other sites within the town centre. The site is within 150 m of Ashfield Railway Station and the development would be responsive to the Inner West Draft Sub-regional Strategy that requires the majority of the 2000 new dwellings for Ashfield be provided around transit nodes.

Court's conclusions - SEPP 1 objection

64 Relevant to the test in Wehbe involving the objectives of the development standard, the 1998 Amendment 72 to the LEP introduced new floorspace ratios to, inter alia, guide development in the Ashfield Town Centre and to provide a floor space ratio bonus for certain areas in the town centre but not for the Ashfield Shopping Mall site. The shopping mall building then existed in its present form. Unfortunately Amendment 72 did not introduce any objectives for the floor space ratio development standard hence one needs to discover and take into account its underlying objectives.

65 Section 74 C of the EPA Act deals with the preparation of development control plans. It enables a planning authority to prepare a development control plan if it considers it necessary or desirable to make more detailed provision with respect to development to achieve the purpose of an environmental planning instrument applying to the land concerned. On this basis I can accept that the provisions of the 2007 DCP that deal with floor space ratio can be of assistance in determining the underlying objective or purpose of the floor space ratio development standard in the earlier Amendment 72.

66 Hence, in the absence of any specifically stated objectives in the LEP I accept the SEPP 1 objection's interpretation of the underlying objectives of the development standard as, in essence, involving:

A reasonable quantum of development.
An absence of environmental problems including, internal and external residential amenity and traffic.
Buildings with an appropriate character, bulk and scale.

67 Having considered these matters in the light of the arguments within the SEPP 1 objection itself and having been persuaded by the evidence of Mr Cady, I am satisfied that the underlying objectives of the development standard are met by the proposal. More particularly whilst an absence of environmental harm is not a reason to uphold and SEPP 1 objection, given that there are no unreasonable impacts involving residential amenity and traffic this can be taken into consideration given that this is one of the underlying objectives of the standard. Also, as discussed in the context of urban design the proposal is appropriately responsive to the planning controls in terms of building height, appearance and relationship to surrounding development. I have also taken into account the proximity of the site to the Ashfield Railway Station and the requirement of the draft sub regional strategy that a significant number of new dwellings in Ashfield be provided around transit nodes. In these circumstances I conclude that the total floor space proposed is not unreasonable.

68 Whilst an intent of the scheme of the floor space ratio provisions can be said to limit further development on the site, this does not mean that SEPP 1 cannot be used to allow an exceedence of the applicable floor space ratio, subject of course to meeting its requirements. In all of the circumstances I am satisfied that the objection is well founded and that compliance with the development standard would be unreasonable or unnecessary. It would not hinder the objects of the Act that seek to encourage, inter alia the proper management of resources and the orderly and economic use of land.

69 Whilst I understand Mr Cady's logic I do not accept that floor space ratio zoning is the same as the zoning of particular land as referred to in Wehbe I can nevertheless accept and give some weight to this approach in dealing with the question of whether compliance with the development standard would be unreasonable or unnecessary. In this context I note that if a floor space ratio of 3:1 were available for this site (including the 1:1 floor space ratio bonus available to other nearby sites) this development's floor space ratio of 2.15:1 is indicative of comfortable compliance. Bonus floor space can be available if inter alia development involves residential or childcare centres as is here proposed.

The child-care centre

70 As for the two-level child-care centre I agree with the submission made on behalf of the applicant that the remaining debate seems to involve the design of the children's outdoor play area. In this regard I am satisfied that the proposal is capable of obtaining the necessary licence based on the design generally indicated in the plans and see no fundamental reason why the application should be refused.

Visitor Parking

71 Mr Hallam and Mr Pindar agreed that the availability of more than 1000 car parking spaces in the proposed development would be sufficient to meet the demand of the entire development. However they disagreed in relation to the allocation and distribution of car parking spaces between the residential and commercial elements of the development.

72 The existing and proposed commercial parking spaces are provided in levels 1,2, the mezzanine off level 2 and level 5. The 136 new residential parking spaces (8 spaces more than the 128 required under the DCP) are provided on level 6 together with additional parking spaces for the child-care centre and the serviced apartments. The new level 6 is located in the south-west corner of the site below the proposed townhouses.

73 Mr Pindar pointed out that 32 spaces are required for visitors and preferably these should be set aside as such. He was particularly concerned that residential visitor parking spaces have not been specifically allocated, instead visitors will be required to utilise the public parking spaces. This represents a poor planning outcome for the residential use within the development. However as a minimum, half of the 32 spaces should be dedicated for visitors noting that there already is a surplus of 8 spaces on level 6.

74 Mr Hallam disagreed; arguing that residential visitors will most likely visit the site during non-peak shopping times hence there will be ample spare parking spaces. There is thus no need to provide segregated visitor parking. He was also concerned that by providing visitor parking on level 6 this would reduce the security for residents.

75 Plainly, when visitors come during non-peak shopping times they would have little differently obtaining a paring space. However peak shopping times often extend well into Thursday and Friday nights and much of Saturdays and Sundays when parking is more likely to be fully occupied. Consequently I agree with Mr Pindar that it would be appropriate for at least half of the required visitor car parking spaces to be provided as dedicated parking.

Pedestrian access and parking

76 There is to be provided a dedicated loading bay for large trucks on level 3 and a dedicated loading bay for small delivery vehicles on level 5 to service the proposed dwellings. The small vehicle loading bay on level 5 is located in reasonable proximity to the lifts on the same level that services Buildings B and C. However it is located some 80 m distance from the lift that services Building A and the town houses.

77 The car parking spaces for the serviced apartments are located about 100 m from these apartments. The access lobbies for Building A is located approximately 30 m from the level 6 car park and the townhouses and the lobby for Building C are located in some instances more than 100 m distance. Also, access from the car park to Buildings B and C involve the use of two sets of lifts. The distance for the transfer to the lift in Building B is about 80 m.

78 Ms Morrish says that the pedestrian access to the apartments including via attractive communal open space is satisfactory bearing in mind that the Residential Flat Design Code and the DCP contain no standards for the distance of travel from cars to lift cores. Also in very large developments the size of car parks can result in a considerable distance of travel depending upon the allocation of car spaces.

79 Mr Krohn was of the opinion that these paths of travel and way finding to dwellings for both occupants and visitors being in direct, convoluted and lengthy are unsatisfactory and are not indicative of the basic aim of SEPP 65 that being to achieve a higher quality of residential development. .

80 In relation to this issue I agree with Mr Krohn and find that the convoluted nature and the distances of travel for pedestrians and for deliveries as described do not represent an appropriate standard for modern development.

Findings

81 On 4 March 2009 I provided the parties with my findings in relation to this appeal and gave the applicant an opportunity to consider whether the car parking and access arrangements as discussed above could be modified to produce a satisfactory outcome. The application was subsequently modified and the plans were the subject of further consideration by the various experts. The modifications were discussed when the hearing resumed on 27 and 31 March 2009.

Conditions

82 The respondent provided a set of without prejudice conditions of consent that were largely agreed to by the applicant. Certain conditions have been modified by agreement and I modified other disputed conditions during the resumed hearing.

Conclusions

83 Having decided to uphold the SEPP 1 objection on the basis that the development is appropriately responsive to the underlying objective of the floor space ratio development standard it is necessary to consider the proposed development on its merits and in the light of the matters in dispute. Whilst it exceeds the applicable floor space ratio in the LEP I am satisfied that this development is essentially responsive to the relevant planning controls and despite the concerns expressed on behalf of the council, its built form and appearance in the locality are satisfactory. No amenity impacts of any determinative significance have been brought to my attention. The only matter of state or regional significance to arise involves the appropriate provision of a significant number of dwellings in close proximity to the railway station and this provides additional support for the proposal.

84 As discussed above I found the original proposal to be deficient in relation to visitor car parking and paths of travel to some of the dwellings in the development. Having considered the amended plans that reveal significant improvement in this regard and taking into account the conditions of consent I am now persuaded that these matters do not require the refusal of the application. Hence, on its merits I am satisfied that the appeal should be upheld and development consent as now sought should be granted.

85 The orders of the Court are therefore:

______________________

ljr

Annexure ‘A’

Conditions of Consent

COURT DETAILS

CourtLand and Environment Court of NSW

Class1

Case number10261 of 2008

TITLE OF PROCEEDINGS

Applicant Abacus Group Holdings Limited

Respondent Ashfield Council

FILING DETAILS

Filed forAshfield Council, Respondent

Legal representativePeter Jackson, Pikes Lawyers

Legal representative’s referencePMJ:LS:ASH0160/80187

Contact name and telephonePeter Jackson, (02)9262 6188

BODY OF FORM

THAT Development Application No. 10.2006.24 for:

alterations and additions to the existing Ashfield Mall at 260A Liverpool Road Ashfield, being Lot 1 in DP736779; and
demolition and redevelopment of 244-256 Liverpool Road Ashfield, comprising:

o Lot A of DP 405790;

o Lot A of DP 404055;

o Lot B of DP 404055;

o Lot 100 of DP 734467

comprising:

a Development above the existing mall including:

□ Changes to the façade of the existing mall; and

□ Redevelopment of the existing plaza to Liverpool Road; and

□ Construction of three residential apartment towers (Buildings A, B and C) at 6, 8 and 7 storeys respectively, accommodating 116 residential apartments; and

□ two groups of two storey townhouses containing 12 terrace houses above the existing mall building; and

b Demolition and construction of a five storey building (Building D) at 244-256 Liverpool Road, Ashfield comprising:

□ New pedestrian entry from Liverpool Road into the shopping centre; and

□ Two levels of containing 16 serviced apartments; and

□ 811m2 childcare centre over two levels on building D (fronting Liverpool Road) with roof top outdoor play area; and

be approved as a deferred commencement consent pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979, subject to the following conditions:

A DEFERRED COMMENCEMENT CONDITIONS

A1 This consent shall not operate until such time as the following additional/revised information is provided to the satisfaction of the Council. This information is required to be provided to Council within 24 months of consent being granted.

A2 Architectural Drawings

The Applicant will provide to the Council:

a Final architectural drawings for the development, incorporating into those drawings –

i The plans tendered as Exhibit A in Land and Environment Court Proceedings 10261 of 2008 (‘the proceedings’)
ii The design changes illustrated in sketch plans tendered as Exhibit W in the proceedings, including the reorientation of car parking spaces
iii The further detail of units on levels 6 and 7 of buildings B and C, as depicted in sketch plans SK341 – SK344prepared by JPR Architects and dated 27 March 2009, forming Exhibit Y in the proceedings
iv The solar panel detail drawings forming Exhibit Q in the proceedings
v The revisions contained in the plans and documents forming Exhibit U in the proceedings
vi Details of adjustable clothes hanging rails to be installed on the balconies of all residential apartments generally in accordance with the drawings and specifications forming Exhibit R in the proceedings.

b A revised plan of stratum subdivision for the site reflecting the architectural drawings provided pursuant to paragraph a

c A revised hydraulics concept plan reflecting the architectural drawings provided pursuant to paragraph a

d Revised BASIX certification reflecting the architectural drawings provided pursuant to paragraph a

A3 Improvements to the Public Domain at the Existing Liverpool Road frontage of land at 260A Liverpool Road zoned 5(a)

The Applicant shall provide detailed landscape plans in respect of the public domain at the existing Liverpool Road frontage of land at 260A Liverpool Road zoned 5(a). The design shall address all landscape elements including large shade trees, entry features, structures and built forms such as covered awning or pergola for all weather access, lighting, furniture, naming signage, directional signage, and disabled access.

The documentation to be provided must include:

All existing trees in the civic plaza area must be retained or replaced with mature trees of similar species. The trees may be replaced within the forecourt area where necessary to achieve ramp access to the mall.

A4 Other Landscaped Areas

The Applicant shall provide the following information, plans and documentation:

a A detailed amended Landscape Plan, prepared by a landscape architect, landscape designer or other suitably qualified person who is eligible for membership of the Australian Institute of Landscape Architecture or the Australian Institute of Landscape Designers and Managers, that:

i is consistent with the architectural drawings forming this consent

ii details proposed hardworks including for areas both on ground and on suspended slab - including surface levels and finishes, external/internal dimensions, retaining walls, driveways, paths, pavings, lawn areas, planting areas, drainage, soil preparation, mulching, staking as well as a lighting and furniture layout. Soil to podium levels to be clean crushed sandstone or sterilised topsoil mix. Mulch to planting areas to be well-aged and of suitable weight and shape to prevent being blown around by the wind.

iii shows existing boundaries, roads, levels, fencing, neighbouring buildings, use of interior rooms, existing trees and man-made structures to be retained / removed where relevant

iv provides detailed information for all other levels of the site other than the public domain in the Liverpool Road frontage.

v details how the containers for the vines to the screen on Norton Street will be accessed and provides management guidelines and a programme showing how the planting will be maintained over the long term.

vi details the location, height and construction of the proposed balustrade/glass panelling/windbreak to the Level 6 and 7 podiums.

vii provides access for all residents and enough facilities, furniture and adequate screen planting on the Level 5 podium to ensure its ongoing use.

viii provides dedicated areas for a community garden, an enclosed meeting room/games area, BBQ area and pergola at the eastern end of Level 6.

ix relocates the BBQ area next to the children’s play area opposite the path between the townhouses on the Level 7 podium.

x provides a permanent shade structure (not sails) over the children’s play area and pergolas 4.0m wide to the three other BBQ areas on Levels 6 and 7.

xi provides dedicated areas for the proposed exercise work stations on Levels 6 and 7.

xii provides a clear hierarchy of paths on Levels 6 and 7. The two main east-west paths and the path between the townhouses to be of a minimum width of 1.5m.

xiii details the proposed containers for tree planting in decking on Levels 5. 6 and 7.

b A detailed Planting Plan and Species List which shows where species are proposed to be planted and details common/ botanic names, plant provenance, size of pot, and expected height and spread. The majority of tree and shrub species shall be selected from indigenous coastal species from the Sydney bioregion to improve habitat and biodiversity. Waterhousea floribunda is not to be used for the windbreak plantings on Levels 6 and 7. All plant stock to be tubestock up to a maximum of 300mm diameter pots.

c A report by a structural engineer shall be provided that confirms that the proposed landscape to the podium levels is acceptable.

d A report by a structural engineer or specialist designer shall be provided that confirms that the proposed design of any shade sails installed on level 7 is acceptable.

e A report by a hydraulic engineer shall be provided detailing the harvested rainwater and automatic drip irrigation system that is required to support the establishment and on-going success of the proposed landscape plantings and shall include plans showing the layout of those systems.

f An updated Windtech report shall be provided confirming that the proposed windbreak measures are acceptable on Levels 6 and 7.

g A leasing arrangement with Council for the area occupied by the overhanging screen above the footpath on the Norton Street frontage.

h A Maintenance Strategy to ensure plants are successfully established and maintained shall be submitted.

Upon Council's written approval of satisfactory compliance with the above "Deferred Commencement" matters, this development consent will become operable subject to the following conditions:

B GENERAL CONDITIONS

B1 Approved plans stamped by Council

The development must be carried out only in accordance with the plans and specifications set out in the architectural drawings and other documentation provided and approved by Council pursuant to deferred commencement conditions A1, A2, A3 and A4 except as amended by this consent. On approval by Council the plans the subject of the deferred commencement conditions shall form part of this consent

B2 Restriction on paid car parking

There is to be no charge for parking and there is to be no controlled parking without further development consent.

B3 Design of car parking bays, manoeuvring areas, ramps and service vehicle standing areas

Design of new or reconfigured car parking bays, manoeuvring areas, ramps and service vehicle standing areas shall be in accordance with Australian Standards AS 2890.1 2004 "Off Street Car Parking" and AS 2890.2 2002 to enable safe compliance with the Australian Road Rules and manoeuvring of trucks.

B4 Vehicle clearance height

A vehicle clearance height of 4.5m is to be provided for all manoeuvring areas for service vehicles.

B5 Motorcycle Parking

Four motorcycle parking bays are to be provided for the benefit of mall customers, visitors and staff in addition to the car parking spaces required by this consent.

B6 Residential Visitor Parking

A minimum of sixteen dedicated residential visitor car parking spaces are to be provided (in addition to the car parking spaces required for residents which are to be provided at a rate of 1 space per residential unit/townhouse). These spaces are to be clearly marked, secure at all times and accessible only via an intercom system operated by residents or a concierge of the residential towers.

B7 Car Wash Bay

There is to be a minimum of 1 car wash bay within the Level 6 parking area for use by residents.

B8 Public Car Park

Either 394 or 330 public car parking spaces, subject to the public car parking easement, for use as a public car park are to be provided and accessible at all times.

C DESIGN CHANGES

C1 Exhaust ducts

There are no diagrams or details of the proposed exhaust ducts. The applicant shall ensure that exhaust ducts comply with AS 1668 and the Building Code of Australia, and is to have particular regard to the child care centre, high volume pedestrian movements and residential blocks.

D CONDITIONS THAT MUST BE SATISFIED PRIOR TO ISSUING/RELEASING CONSTRUCTION CERTIFICATE

D1 Construction Management Plan

A Construction Management Plan, taking into account all areas including the mall, car parks, leased areas, shops, footpaths, and pedestrian ways, and areas adjacent to the site shall be submitted to Council. The Construction Management Plan must be expressly approved by Council in writing prior to the issue of any construction certificate. The Construction Management Plan must be prepared in consultation with Council and address the following matters to Council’s satisfaction:

(a) how it is proposed to ensure that either 394 or 330 public car parking spaces, subject to the public car parking easement, will remain accessible and in use at all times. If the construction measures to be undertaken will result in some or all of the public car parking spaces required by the public car parking easement being unavailable, the applicant is to specify the alternative site for the location of those spaces.

(b) how it is proposed to ensure that fire egress across Right of Way to Civic Centre buildings will be available and complying, including details of alternate arrangements should the existing egress need to be blocked, and procedures for notifying Council in that circumstance..

(c) how it is proposed to ensure that continued reasonable access via Rights of Way for all beneficiaries will remain available at all times.

(d) identify all the routes and standing areas used for all construction related vehicles and how it is proposed to ensure that these routes and standing areas will be managed in accordance with RTA traffic control guidelines, to ensure the construction process does not interfere with the capacity and functioning of Liverpool Rd, Knox Street, Holden Street or Norton Street.

(e) how it is proposed to make safe any damage to local streets infrastructure from construction works until such times a permanent repairs are done for the provision of an occupancy certificate.

(f) how it is proposed to ameliorate the impacts of noise and dust generated during construction upon existing tenants, patrons of the shopping centre, residents and users of the public car park and how it is proposed to achieve compliance with DECC Draft Guidelines for construction Noise and Australian Standard 2436:1981 “Guide to Noise Control on Construction Maintenance and Demolition Sites.”

(g) how it is proposed to ensure the safety of existing tenants, patrons of the shopping centre, residents and users of the public car park during the construction phase.

(h) how the mall is to be operated during the construction phase.

(i) how it is proposed to load and unload excavation machines, building materials, formwork and erect any part of the structure within the site, including details of the proposed areas within the site to be used for the storage of excavated material, construction materials and waste and recycling containers during the construction period. The location of these materials, containers and machinery shall be depicted in a diagram or plan.

(j) full details of proposed haulage routes, estimated number of vehicle movements and trip locations related to demolition/construction activities

(k) details showing the locations of any cranes required for demolition or construction and requisite approvals for the placing of those cranes, including a Crane Permit from Council and RTA or Police approvals as necessary

(l) details showing how the following conditions of this consent will be complied with:

i condition F7

ii condition F8

iii condition G3

iv condition G4

v condition G9

vi condition G10

vii condition G16

viii condition G17

ix condition G18

(m) Local Traffic Committee approval for all traffic controls associated with the plan

D2 Traffic Management Plan

The Applicant is to provide a detailed Construction Traffic Management Plan (CTMP) prepared by an RTA accredited traffic controller for the construction of the proposed development which shall be submitted to Council and the RTA for review and approval. The CTMP must be expressly approved by Council and by the RTA in writing prior to the issue of any construction certificate. The CTMP must be prepared in consultation with Council and is to be accompanied by a study to assess the impact of the proposed arrangements and management measures in terms of:

§ traffic movements for all the parking on site,

§ traffic patterns on surrounding streets and intersection function, traffic and pedestrian safety and amenity

§ impacts of parking in surrounding streets

§ impact of extended area of shopping trolley leaving and subsequent collection activity

§ construction related vehicles including contractor staff parking and unloading

§ the routes and manoeuvring of construction and delivery vehicles

§ ameliorating any impacts, including changes to traffic and parking restrictions

§ the impact and management of construction activities and materials storage eg craning, concrete pumping, waste bins, temporary fencing.

The applicant is to obtain Local or Regional Traffic Committee approval for any changes to parking and traffic controls

D3 Waste Management Plan (Construction)

Prior to the issue of a Construction Certificate, the applicant shall prepare and submit a Construction Waste Management Plan in accordance with the provisions of Ashfield Development Control Plan - Planning For Less Waste and the Waste Planning Guide for Development Applications (Planning for Less Waste, prepared by the Regional Waste Boards), including:

(a) Estimations of quantities and type of materials to be reused, recycled or left over for removal from site;

(b) Identification on a plan of on site material storage areas during construction, waste storage, recycling and composting areas;

(c) Details of construction materials and methods to be used to minimise the production of waste in the completion of the new building work.

(d) How waste is to be treated on the site.

(e) How any residual non-reusable and non-recyclable waste is to be disposed of and including details of the approved waste disposal outlets where disposal will take place.

D4 Plan of Management for Waste Storage and Collection

Prior to the issue of any construction certificate a Plan of Management for Waste Storage and Collection shall be submitted to the satisfaction of Council which shall show the adequate coordination and control of waste and recycling services on the site, including details of the following:

a A waste storage room that meets the requirements of the Applicant’s garbage contractor

b Waste storage for the townhouses

c Waste storage rooms in Buildings A, B and C

d Waste storage rooms in Building D

e Number of persons employed to manage and transfer bins to the required locations

f Transfer routes for waste bins

g Times when bins will be stored in the garbage presentation room

h Times and location where bins will be placed for collection

i Waste generation rates for all new uses on the site including retail, commercial and residential

j Access pathways, including width of pathways for transfer of bins and installation of any mechanical equipment associated with the waste collection rooms

k The provision of hot and cold water for washing purposes and drained to a floor connected to a Sydney Water sewer system and mechanical ventilation to the level 5 garbage rooms

l Compliance with:

i the Waste Avoidance and Resource Recovery Act 2001; and

ii the Department of Environment and Climate Change’s (‘DECC’) Better Practice Guide for Waste Management in Multi-Unit Dwellings; and

iii the DECC’s requirements to enable obtaining the Waste Service Improvement Payment under the City and Country Environment Restoration Program.

D5 Activity Application, pumping permit, approval to stand crane

Where it is proposed to:

· pump concrete from within a public road reserve or laneway, or

· stand a mobile crane within the public road reserve or laneway, or

· use part of Council's road/footpath area,

· pump stormwater from the site to Council's stormwater drains, or

· store waste and recycling containers, skip, bins, and/or building materials on part of Council's footpath or roadway,

an Activity Application for a construction zone, a pumping permit, an approval to stand a mobile crane or an application to pump water into a public road, together with the necessary fee shall be submitted to Council and approval obtained before a Construction Certificate is issued.

Note: A separate application to Council must be made for the enclosure of a public place (hoarding).

D6 Erosion & sedimentation control-management plan

Prior to issue of a construction certificate the applicant shall prepare an erosion and sedimentation control plan in accordance with Part 4 of the guidelines titled "Pollution Control Manual for Urban Stormwater", as recommended by the Department of Environment and Climate Change.

Any stormwater runoff collected from the site must be treated in accordance with the Guidelines, before discharge off the site to comply with the Protection of the Environment Operations Act 1997 or other subsequent Acts.

Where sedimentation control basins are provided discharge shall be to the requirements of the Department of Environment and Climate Change.

Applicants are further advised to refer to the following publications for additional information:

(a) "Sedimentation and Erosion Control" - Department of Environment and Climate Change.

(b) "Soil and Water Management for Urban Development" - Department of Housing.

The plan must be submitted with the application for a construction certificate.

Further information may be obtained from:

Environment Protection Officer

Environment Protection Authority

Inner Sydney Region

Locked Bag 1502

BANKSTOWN NSW 2200

D7 Sediment control, stormwater and covenants bond

A bond of $10,000 in the form of cash or bank guarantee shall be lodged prior to the release of the Construction Certificate. This bond covers:

(a) connection to Council's stormwater drainage.

(b) the installation and maintenance of sediment control measures for the duration of construction/demolition activities.

(c) the final Work-As-Executed Plans complies with Council's Stormwater Management Code, all relevant Australian Standards and all DA Consent conditions.

(d) all necessary Council inspections in regards to stormwater and roadworks are undertaken.

(e) the release to Council of the approved Stormwater Construction Certificate plan.

D8 Damage & Security deposit - footpath, road, kerb and gutter & safe access

A Damage Deposit of $200,000 is to be submitted prior to the release of the Construction Certificate covering repair and/or replacement of adjoining footpath, road shoulder, road pavement, kerbing and guttering, Rights of Way and public infrastructure, both outside the subject site and the surrounding area, and shall be lodged with Ashfield Council either in the form of cash or a Bank Guarantee which will be refunded subject to satisfactory completion and the issuing of the final occupation certificate for the development.

A security deposit of $75,000 is to be submitted prior to the release of the Construction Certificate covering temporary and emergency works that may be required to restore and maintain safe traffic conditions, pedestrian access to the public car park and surrounding streets, and environmental controls shall be lodged with Ashfield Council either in the form of cash or a Bank Guarantee which will be refunded subject to satisfactory completion and the issuing of the final occupation certificate for the development.

Bank Guarantees are accepted in lieu of any Council security deposit/bond subject to the following:

· A charge equal to the value multiplied by the current "overdue rates interest charge" be levied, per month or part thereof, with a minimum charge of three months is to be paid upon lodgement.

· Any remaining charge is to be calculated at the prevailing "overdue rates interest rate" for each month or part thereof beyond the original three months that the Bank Guarantee was held, and paid prior to its release.

· Any costs incurred in the acceptance, administration or release of such Bank Guarantees be on-charged to the entity claiming the release of such Bank Guarantee, and that these amounts be paid prior to its release.

· At the time of lodgement, Council will seek verification of the Bank Guarantee. Please provide contact details for the branch (phone number and officer) to assist with verification of the bona fides of the Bank Guarantee.

Until all items above are completed, no documents or usage sought from Council by the party lodging the Bank Guarantee can be issued. Please allow a minimum of 2 business days for this process.

D9 Section 94 Contributions

A contribution under Section 94 of the Environmental Planning and Assessment Act 1979 is to be paid in accordance with the provisions of Council's adopted Section 94 Contribution Plan prior to the release of the Construction Certificate.

(i) for community facilities/services:

$745.00 x 116 flats or apartments = $86,420

$865.00 x 12 townhouses = $10,380

(ii) for open space and recreation facilities:

$5,640.00 x 116 dwellings = $654,240

$6,770.00 x 12 townhouses = $81,240

Subtotal $832,280

(iii) as payment in lieu of the provision of car parking, as calculated in accordance with condition D10

Any contributions required in satisfaction of a condition of development consent are to be valid until Council's next annual review of Section 94 Contribution Plans on 30 June following which the amount of the contribution will be reassessed in line with the revised figures.

D10 Section 94 Contributions - Car Parking

The development is required to provide 1348 parking spaces as shown in the following table:

Allocation of carparking

Level 0
Serviced apartments 16
Child care centre staff 8
Commercial tenants (D) 24
Total 48

Level 1
Council public 330
Council staff from Level 2 20
Retail 86
Total 436

Level 2
Retail 312

Level 2 Mezzanine
Retail 50

Level 5
Retail 284
Residents (C) 43
Residential Visitors 7
Child care centre drop-off 9
Total 343

Level 6
Residents (A) 28
Residents (B) 47
Townhouses 12
Residential Visitors 9
Retail staff 63
Total 160
Total 1348 spaces

The non-retail parking shall be in accordance with the above table and any deficiency shall be in relation to retail parking only, and therefore subject to a section 94 contribution in accordance with Council’s Section 94 Contributions Plan: Public Carparking. To the extent that there is to be any less than 1348 car parking spaces provided, the payment of a cash contribution towards the provision car parking is required under Section 94 of the Environmental Planning and Assessment Act 1979.

This contribution is payable for every car parking space under 1348 spaces that is provided by the development assessed at the current rate of $15,208.00 per space as per Council's Section 94 Contributions Plan: Public Car Parking.

Any contributions required in satisfaction of a condition of development consent are to be valid until Council's next review of Section 94 Contribution Plans on 30 June following which the amount of the contribution will be reassessed in line with the revised figured.

Payment is to be made prior to release of the Construction Certificate.

D11 Section 94 Contributions - Community Facilities

The payment of a cash contribution of $96,800 towards the provision of community facilities in the locality is required.

This contribution is based on $745 for each flat or apartment and $865 for each town house in accordance with Council's adopted Section 94 Contributions Plan for Ashfield: Community Facilities.

Any contributions required in satisfaction of a condition of development consent are to be valid until Council's next review of Section 94 Contributions Plan on 30 June following which the amount of the contribution will be reassessed in line with the revised figures.

Payment is to be made prior to release of the Construction Certificate.

D12 Section 94 Contributions - Open Space and Recreation Facilities

The payment of a cash contribution of $735,480 towards the provision of open space and recreation facilities in the locality is required.

This contribution is based on $5,640 per flat or apartment and $6,770 for each townhouse in accordance with Council's adopted Section 94 Contributions Plan for Ashfield: Open Space and Recreation Facilities.

Payment is to be made prior to release of the Construction Certificate.

D13 Cost of development

The applicant is to provide a revised estimate of development cost verified by a qualified quantity surveyor, reflecting the proposal as amended, for the purposes of calculating the long service levy required by Section 34 of the Building and Construction Industry Long Service Payments Act 1986.

D14 Long service levy

Compliance with Section 109F of the Environmental Planning and Assessment Act 1979 - payment of the long service levy under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 (or, where such a levy is payable by instalments, the first instalment of the levy) - is required. All building works in excess of $25,000.00 are subject to the payment of a Long Service Levy at the rate of 0.35% of the cost of development calculated in accordance with condition D13.

D15 Services and infrastructure adjustment/relocation

The applicant shall meet the full cost for Telstra, Sydney Water, Energy Australia, AGL Electricity/AGL Retail Energy or alternative service/energy providers to adjust/relocate their services/infrastructure as required. The applicant shall make the necessary arrangements with the relevant service authority or relevant retail energy company.

(For information on the location of services contact the "Dial before you Dig" service on 1100.)

Documentary evidence from the utility authorities/retail energy company confirming that all of their requirements have been satisfied shall be submitted to Council prior to the issue of an Occupation Certificate.

D16 Security devices/measures

In order to achieve satisfactory levels of surveillance and ongoing security on the site, the following shall occur:

(a) To Street/Road ground and first floor level windows, shall have fitted security locking devices, which comply with the relevant Australian Standard.

(b) Ground floor and entry porticos shall have as a minimum double barrel security and fire locks.

(d) Where any tree planting is proposed along the eastern boundary with properties off Street/Road, it shall have tree planting of the following type:

· tall canopies which commence at approximately 2.5m off ground;

· semi transparent canopies which have a large degree of visual transparency.

Details to be shown on the construction certificate.

D17 Lighting to pedestrian routes, outdoor areas and car parking

The Applicant shall demonstrate that lighting which meets the Australian Standard 1158 level P3, and complies with “safe by design” lighting, including consultation with specialist branch of NSW police and spaced at appropriate intervals to provide the required surveillance will be provided to all new and reconfigured pedestrian routes, outdoor areas and car parking areas, including mall entry areas and the plaza forecourt area contained in the land zoned 5(a) Special Uses.

This lighting is not to be directed into adjoining properties. No up- lighting is permitted.

Details to be shown on the construction certificate.

D18 Car parking provision/layout

Off-street parking and service vehicle areas including spaces for the accessible/adaptable units shall be provided and allocated for the new and reconfigured parts of the site in accordance with the provisions of AS2890 and enable ready and safe compliance with the Australian Road Rules.

Details to be shown on the application with the Construction Certificate, including details showing that minimum ceiling heights for cars, service vehicles and people with disabilities will be achieved.

Note: a) Minimum basement ceiling height above any parking spaces provided for people with disabilities is to be 2.6 metres.

Design of car parking shall be in accordance with Australian Standards AS 2890.1 2004 "Off Street Car Parking"

D19 Motorcycle Parking

Prior to the issue of a construction certificate the applicant is to provide plans showing the allocation of four dedicated motorcycle parking bays in addition to the car parking spaces required by this consent.

The motorcycle parking bays are to be available at all times for mall customers, visitors and staff.

D20 Residential Visitor Parking

Prior to the issue of a construction certificate the applicant is to provide plans and details showing the provision of a minimum of 16 dedicated residential visitor car parking spaces (in addition to the car parking spaces required for residents which are to be provided at a rate of 1 space per residential unit/townhouse). These spaces are to be clearly marked and secure at all times and accessible only via an intercom system operated by residents or a concierge of the residential towers. The information provided is to detail how these requirements are to be achieved.

D21 Access and services for people with a disability - flats

a Adaptable units complying with AS4299 and AS 1428 Part 1 and the provisions of Part C1 - Access, Adaptability and Mobility, Ashfield Development Control Plan 2007 shall be provided as shown in the approved plans.

b Access to adaptable units is to be provided in accordance with the approved plans and AS 4299 and AS1428 and the and the provisions of Part C1 - Access, Adaptability and Mobility, Ashfield Development Control Plan 2007. A minimum of 10% or part thereof of the residential units of towers A, B and C must comply as adaptable units, equitably distributed between various types and sizes of units, with one designated accessible parking spaces conveniently located for each adaptable unit.

D22 Access management plan for people with a disability

Subject to the other conditions of this consent an Access Management Plan for the new and reconfigured areas of the site shall be submitted to Council or the accredited certifier before the issue of a Construction Certificate. Details for the Access Management Plan shall include:

(a) Access to the building for people with disabilities in accordance with the provisions of AS4299 and AS 1428 Part 1 and the Ashfield Development Control Plan for Access and Mobility (tel. 9716 1800 for a free copy)

(b) Sanitary facilities accessible to people with disabilities. Such facilities shall be accessible to all persons working in or using the building.

(c) Accessible paths of travel to and within the existing Liverpool Rd Ashfield Mall civic plaza, with consistent signage and way finding.

(d) Accessible paths of travel to and within all areas of the project, including accessible links to adjacent streets, frontages, parks and community facilities, with consistent signage and way finding.

(e) Accessible toilets to be located on each retail level, adjacent to gender specific toilets, and all toilets to be unlocked when the Centre is open. Parents and baby change areas to be accessible and adjacent to public toilets.

(f) Level 6 bridge walkways to include wheelchair passing spaces.

(g) New and existing carpark metal expansion joint panels to be wheelchair accessible.

D23 Preparation of geotechnical report

To ensure that the structural integrity of the proposal and neighbouring buildings will be maintained, a full geotechnical report must be submitted to the Council or the PCA prior to the issue of a construction certificate and prior to the commencement of excavation works. The report must include an investigation of site and soil conditions as well as the proposed means of construction and must contain, where required, recommendations to ensure that excavation, backfilling and construction, including temporary works during construction, will not affect the structural integrity of neighbouring buildings or the structural stability of neighbouring public land, property or services. The report is to be prepared and certified by an appropriately qualified practicing geotechnical engineer.

The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced.

F6 Crane permit

Should the applicant need to use a crane during the course of building, it will be necessary to first obtain a "Crane Permit" from Council's One Stop Shop. The approval of other authorities (eg Police Department, RTA) may be required for the use of a crane.

F7 Protection of public places - erection or demolition of building

· If the work involved in the erection or demolition of a building is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or involves the enclosure of a public place; a hoarding or fence must be erected between the work site and the public place.

· If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

· The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

· Any such hoarding, fence or awning is to be erected prior to works commencing and only with Council approval in accordance with WorkCover requirements. The temporary structures are to be removed when the work has been completed.

F8 Site fencing/security

The site must be appropriately secured and fenced to the satisfaction of Council during demolition, excavation and construction work to ensure there are no unacceptable impacts on the amenity of adjoining properties. Permits for hoardings and or scaffolding on Council land must be obtained and clearly displayed on site.

F9 Support for neighbouring buildings and notice to adjoining owners

(a) If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:

i. must preserve and protect the building from damage, and

ii. if necessary, must underpin and support the building in manner approved by a practicing structural engineer, and

iii. must at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.

(b) The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.

Notes:

(i) Details of underpinning works, prepared and certified by a practicing structural engineer shall be submitted to and approved by the Principal Certifying Authority prior to the commencement of any works.

(ii) allotment of land includes a public road and any other public place.

F10 Demolition work plan

Prior to demolition, the applicant shall submit a Work Plan prepared in accordance with AS 2601 by a person with suitable expertise and experience to the Principal Certifying Authority. The Work Plan shall identify any hazardous materials, the method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials.

F11 Asbestos removal - EPA/WorkCover Authority

Asbestos removal is to be carried prior to principal works commencing in accordance with Environmental Protection Authority and WorkCover Authority requirements. Proper procedures shall be employed in the handling and removal of asbestos and products containing asbestos so as to minimise the risk to personnel and the escape of asbestos particles in the atmosphere. Work is only to be carried out with the prior consent of the Work Cover Authority.

Note: There are substantial penalties for non-compliance with the above requirements.

F12 Asbestos and/or lead removal certification

The existing structures/land on the site potentially contain asbestos and/or lead. Following removal of any asbestos/lead located on site a clearance must be provided to the Principal Certifying Authority certifying that no such asbestos/lead remains on site from a suitably qualified person.

A copy of the clearance Certificate must be forwarded to Council before any other demolition work is commenced.

F13 Sydney Water approval

The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements and if further requirements need to be met. Plans will be appropriately stamped. For Quick Check agent details please refer to the web site: see Your Business then Building & Developing then Building & Renovating or telephone Sydney Water 13 20 92.

F14 Building location - check survey certificate

To ensure that the location of the building satisfies the provision of the approval, a check survey certificate shall be submitted to the Principal Certifying Authority at the following times :

(a) prior to the pouring of the residential tower columns;

(b) ground floor slabs;

(i) location of the building with respect to the boundaries of the site;

(ii) level of the floor in relation to the levels on the site (all levels are to be shown relative to Australian Height Datum);

(iii) site coverage of the buildings on the site.

F15 Dilapidation Reports - 1

A Dilapidation Report on the Rights of Way, and all surrounding streets for the block encompassing the site covering the road pavements, footpaths, kerbing and drainage shall be prepared by a practicing civil engineer. The Dilapidation Report must be completed and submitted to the beneficiaries of the Right of Way and to Council prior to the commencement of any demolition, excavation or construction works. At the completion of the works, a second Dilapidation Report recording the structural condition shall be prepared and submitted to the beneficiaries and to Council. The reports are to include a photographic record at sufficient resolution and coverage to show pavement defects such as cracking.

F16 Dilapidation Reports - 2

A Dilapidation Report on the current structural condition of the existing buildings immediately adjoining the subject site along Liverpool Road, Ashfield, must be prepared by a practicing structural engineer. The Dilapidation Report must be completed and submitted to the owner of the subject property and to Council prior to the commencement of any demolition, excavation or construction works. At the completion of the works, a second Dilapidation Report recording the structural condition must be prepared. That Report must be submitted to the owner of the subject property and to Council.

F17 Tree Protection Measures

a Prior to commencement of site works, an AQF5 or university qualified arborist is to be commissioned to oversee the installation of tree protection measures such that all trees to be retained are suitably protected from potential adverse impacts arising from the proposed construction activities. Protection of trees should include fencing and, where necessary, treeguards as well as a management plan covering the works period.

b Prior to commencement of site works, an AQF5 or university qualified arborist is to certify that suitable tree protection measures, including as necessary, treeguards and/or fencing consisting of galvanised metal posts a minimum of 1800 mm high and chain wire mesh are in place. No site works are to take place until a copy of this certification has been forwarded to the Principal Certifying Authority.

G CONDITIONS THAT MUST BE COMPLIED WITH DURING CONSTRUCTION OR DEMOLITION

G1 Construction Management Plan and Traffic Management Plan

The Construction Management Plan and Traffic Management Plan prepared pursuant to conditions D1 and D2 are to be complied with at all times during construction and demolition.

G2 Building materials - storage/placement on footpath/roadway and on Rights of Way

All building materials shall be stored wholly within the property boundaries and shall not be placed on council land or on rights of way without the written consent of all of the beneficiaries.

Bulk refuse bins shall not be placed on the grass verge, footpath or roadway.

G3 Footpath, kerb and gutter protection

The applicant is to take all precautions to ensure footpaths and roads are kept in a safe condition and to prevent damage to Council's property, and maintain or repair any damage that occurs.

Any damage caused or failure to keep public lands safe for use will be made good by Council at Council's restoration rates or at cost, whichever is applicable, at the applicant's expense.

G4 Traffic control on public roads

Traffic control is to be in accordance with the Traffic Managementl Plan provide pursuant to deferred commencement condition D2.

G5 Engineering staff to inspect roadworks/drainage

An inspection by Council's staff will be required for (kerb/gutter/crossing etc) at the following stages:

(i) After excavation.

(ii) After the erection of formwork and the placement of reinforcement and prior to pouring of concrete.

(iii) After placement of road base course.

(iv) After completion of any pits.

(v) After pipes have been laid and prior to backfilling.

(vi) On completion of works.

A minimum of 24 hours notice is required to be given to Council to obtain an inspection. Work is not to proceed until the works or activity covered by the inspection is approved.

G6 Plans to be available on site

The Council stamped approved plans, Development Consent and Construction Certificate shall be held on site to be produced unobliterated to Council's officer at any time when required.

G7 Advertisements on hoardings prohibited

No advertisements of any kind shall be affixed to the hoarding except a board which may show the builder's or architect's name or any particulars regarding the subject building.

G8 Billposters - sign on hoarding

A sign "Billposters Will Be Prosecuted" shall be attached to or printed upon the front of the hoarding.

G9 Storage of building materials

Building materials and spoil are to be located wholly on site and not placed in a position that may result in materials being washed onto the roadway or into the stormwater system except as expressly provided by the construction management plan.

G10 Building materials - storage/placement on footpath/roadway - Council approval

All building materials shall be stored wholly within the property boundaries and shall not be placed on the footpath, grass verge or roadway without prior written approval of Council except as expressly provided by the construction management plan..

Bulk refuse bins shall not be placed on the grass verge, footpath or roadway without Council permission except as expressly provided by the construction management plan.. Application forms and details of applicable fees are available from Council's One Stop Shop telephone 9716 1800

G11 Signs to be erected on building and demolition sites

(a) 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:

i. stating that unauthorised entry to the work site is prohibited; and

ii. showing the name and address of the contractor for the building work and the person in charge of the work site and a telephone number at which the person may be contacted outside working hours; and

iii. showing the name, address and telephone number of the Principal Certifying Authority appointed for the building works.

(b) Any-sign shall be maintained and not removed until work has been finished,

G12 Construction Waste Management Plan - compliance

(a) All requirements of the Construction Waste Management Plan approved pursuant to condition D3 must be implemented during the demolition and/or excavation and construction period of the development. Adequate measures need to be in place to ensure the ongoing waste management of the site.

(b) Keep receipts of where waste will be taken to be treated or disposed. The receipts must be presented to the Principal Certifying Authority prior to issue of the occupation certificate.

G13 Lead Removal - Renovation and Refurbishment

Any paint containing lead on residential and commercial buildings is to be managed in accordance with the Australian Standard AS 4361.2, Guideline to Lead Paint Management Part 2: Residential and Commercial Buildings without causing any contamination to the environment.

Removal of lead paint and protective coatings, using methods such as abrasive blasting, from larger buildings and industrial infrastructure where higher lead protective coatings continued to be used is to be done in accordance with AS 4361.1 Guide for Lead Paint Management in Industrial Applications 1995.

The following measures must be undertaken when removing lead:

(a) For outside works lay plastic sheeting under and around the work area to contain debris; close windows and doors. For indoor works, seal the work area off from the rest of the building and outside by covering floors, doors and windows with plastic and tape; remove soft furnishings, curtains, carpets and other household items or cover them with plastic.

(b) Removal methods that distribute paint dust or flakes into the surrounding environment must not be used unless adequate protection and containment measures are taken such as wet-sanding and wet-scraping. All paint debris including dust and flakes must be collected and safely disposed of in a sealed container. No paint dust or flakes should be allowed to pollute the interior or exterior environment.

(d) All workers shall wear an approved (AS1716) respirator fitted with P1 (dust) or P2 (dust & fumes) filters, and coveralls to prevent exposure to lead dust and fumes. Protective clothing (long sleeves and pants) that does not catch dust or flakes in pockets or cuffs (or disposable overalls and plastic boots) are to be worn.

(e) The manufacturer's instructions are to be strictly adhered to if solvent or caustic chemical strippers are being used.

(f) Following removal, the entire area is to be wet washed with a detergent, such as liquid soap and rinse with clean water. Where children will reoccupy the premises, consideration should be given to having a clearance test to ensure lead paint and dust has been thoroughly removed.

g) All lead-contaminated material is to be disposed of in accordance with the NSW Environment Protection Authorities requirements.

G14 Demolition/excavation/construction - hours of work

Demolition, excavation and construction work and deliveries, including loading and unloading of materials and machinery, shall be restricted to between the hours of 7.00am to 5.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. Work is prohibited on Sundays, and on public holidays. Noise levels are to be in accordance with EPA guidelines at all times during demolition, excavation and construction.

G15 Demolition/excavation/construction - hours of work for developments likely to involve substantial construction works that may affect the amenity of the locality

(a) Subject to sub-clauses Clauses (b) and (c) below, demolition, excavation and construction work and deliveries, including loading and unloading of materials and the use of machinery, shall be restricted to between the hours of 7.00am to 5.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. Work is prohibited on Sundays, on public holidays and on union picnic days or on any fixed building industry agreed "rostered" days off that apply during the period of demolition, excavation and construction works. Noise levels are to be in accordance with EPA guidelines at all times during demolition, excavation and construction.

(b) In the event that a public holiday is a Friday, work is not to be conducted on the Saturday following the public holiday.

(c) In the event that a public holiday falls on a Monday, Council expects that the following Tuesday should be a rostered day off.

G16 Demolition/excavation/construction - noise - Protection of the Environment Operations Act 1997

Noise arising from demolition/excavation/construction works shall be controlled in accordance with the requirements of Protection of the Environment Operations Act 1997 and guidelines currently contained in the NSW EPA Environmental Noise Control Manual.

G17 Dust control

Adequate measures are to be implemented, including, for example, water spraying/mesh barriers, to prevent dust from causing any nuisance.

G18 Site vehicles - mud/debris

You are to ensure that ALL vehicles leaving the site are free of mud and debris. Loads are to be fully covered and vehicles/wheels washed down to ensure that no nuisance occurs. This is to be carried out in accordance with the Sediment Control Plan provided and approved pursuant to condition D6

G19 Excavations and backfilling - safety/standards

(a) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.

(b) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

G20 Demolition requirements/standards

Demolition is to be carried out in accordance with the following:

(a) Australian Standard 2601 and any requirements of the WorkCover Authority.

(b) The Waste Management Plan submitted with the Development Application.

(d) All precautions are to be exercised in the handling, removal and disposal of all asbestos materials. Licensed contractors and the disposal of asbestos is to be carried out in accordance with the requirements of the Work Cover Authority.

(e) All other materials and debris is to be removed from the site and disposed of to approved outlets.

(f) Any demolition on the site is to be conducted in strict accordance with, but not limited to, sections 1.5, 1.6, 1.7, 3.1 and 3.9 of the AS 2601 - 1991, demolition of structures. The following measures must be undertaken for hazardous dust control:

(g) Prior to demolition, the applicant shall submit a Work Plan prepared in accordance with AS 2601 by a person with suitable expertise and experience to the Principal Certifying Authority. The Work Plan shall identify any hazardous materials, the method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials.

(h) Hazardous dust must not be allowed to escape from the site or contaminate the immediate environment. The use of fine mesh dust proof screens, wet-lead safe work practices, or other measures is required.

(i) All contractors and employees directly involved in the removal of hazardous dusts and substances shall wear protective equipment conforming to AS 1716 Respiratory Protective Devices and shall adopt work practices in accordance with WorkSafe Requirements (in particular the WorkSafe standard for the Control of Inorganic Lead At Work (NOHSC: 1012, 1994) and AS 2641, 1998).

(j) Any existing accumulations of dust (eg; ceiling voids and wall cavities must be removed by the use of an industrial vacuum fitted with a high efficiency particulate air (HEPA) filter and disposed of appropriately.

(k) All dusty surfaces and dust created from work is to be suppressed by a fine water spray. Unclean water from the suppressant spray is not be allowed to enter the street gutter and stormwater systems.

(l) Demolition is not to be performed during high winds that may cause dust to spread beyond the site boundaries without adequate containment.

(m) All lead contaminated material is to be disposed of in accordance with the NSW Environment Protection Authorities requirements.

(n) Construction and demolition waste, particularly timber, bricks and tiles, concrete and other materials need not be disposed of- they can be recycled and resold if segregated properly from any hazardous waste contamination.

(o) Following demolition activities, soil must be tested by a person with suitable expertise to ensure the soil lead levels are below acceptable health criteria for residential areas. Full certification is to be provided for approval by the Principal Certifying Authority.

G21 Materials and colour schemes

Materials of construction are to be as specified in the schedule of finishes submitted with the development application and on the approved plans, except where amended by the conditions hereunder.

G22 Under awning signs - minimum height

Any under awning sign shall be minimum 2.6m clear above ground level. This consent does not include consent for any signs, signage or public artwork other than existing signage or any mandatory sign required in accordance with the Environmental Planning and Assessment Act. Further consent must be sought for any signage and any such signage shall comply with the strategy required by this condition.

G23 Underground services and electrical sub-station

All electrical and telephone services to the subject property must be placed underground. If an electrical sub-station is required, it must be situated within the boundaries of the subject property and suitably screened.

G24 Tree Protection Measures

All works within 5 metres of the existing trees to be retained, including pruning, demolition, excavation, civil works, fencing and the like shall be carried out in accordance with the plan approved pursuant to condition E17(b) of this consent and shall be carried out by hand under the supervision of an experienced, AQF5 or university qualified arborist. Should roots larger the 30mm be encountered, all excavation works are to cease immediately and the arborist is to advise on the impacts of the root’s removal on the tree’s survival and report to the Principal Certifying Authority prior to works recommencing. If tree roots are present, a pier and beam method of footing construction is to be adopted so as to bridge/span any identified lateral roots.

G25 Acoustic protection of adjacent buildings

A construction noise management plan shall be developed to the reasonable satisfaction of Council and is to comply with:

a DECC Draft Guidelines for construction Noise and

b Australian Standard 2436-1981 “Guide to Noise Control on Construction Maintenance and Demolition Sites.”

G26 Damage to local streets infrastructure

During demolition, excavation or construction the applicant is to make safe any damage to local streets infrastructure from those works until such times as permanent repairs are done for the provision of an occupation certificate. Details of proposed interim safety measures are to be provided to Council within 48 hours of the Applicant becoming aware of the damage occurring

H CONDITIONS THAT MUST BE COMPLIED WITH PRIOR TO INSTALLATION OF SERVICES

H1 Air handling systems - use of premises

The use of the premises shall at all times be conducted without nuisance being caused and in particular not give rise to emissions of air impurities in contravention of the POEO Act. Air handling systems shall have adequate filters provided and maintained. Full details of air handling systems are to be submitted with the construction certificate for approval by the Principal Certifying Authority prior to installation.

H2 Kitchen exhaust - approval by PCA

Plans and specifications showing details of the proposed kitchen mechanical exhaust ventilation system for any new or reconfigured kitchens shall be submitted to and be approved by the Principal Certifying Authority prior to the installation being commenced.

H3 Grease traps

Details of the location of any new grease trap and the proposed method of cleaning the trap shall be submitted to and be approved by the Principal Certifying Authority before the installation work is commenced.

I CONDITIONS THAT MUST BE COMPLIED WITH BEFORE THE BUILDING IS OCCUPIED

I1 Approval to use/occupy building

Any works or buildings approved by this consent or any part thereof must not be used or occupied until an Occupation Certificate has been issued for the class 2-9 buildings, or a completion inspection, has been satisfactorily carried out for class 1&10 structures.

I2 Installation of transmission repeater

Prior to a certificate of occupancy being issued, a transmission repeater be installed and maintained in a technically verifiable location to remediate any loss in television and radio reception to other properties caused by the development.

I3 Landscape Maintenance

An inspection of all landscape works, including the podium landscaping, civic plaza landscaping and “hanging garden’ along the Norton Street façade, shall be carried out prior to a certificate of occupancy being issued to ensure that the following conditions are met:

· the planting is well established

· there are no dead or diseased plants, weeds or rubbish

· the mulch is of the specified depth

· the staking/guying is as specified and fully operational

· the irrigation system is fully operational

· a contract with a suitably qualified landscape maintenance contractor has been signed for a period of three years.

I4 Civic plaza landscaping

Prior to a certificate of occupancy being issued, the applicant is to upgrade the landscaping of the civic plaza, for improvements to amenity for local shoppers and residents, in accordance with the plans and documentation prepared pursuant to deferred commencement condition A3.

I5 Fire Safety Certificate

Prior to the issue of an occupation certificate in respect of the proposed development (inclusive of existing and new portions of building), a fire safety certificate is to be issued which includes all the essential and critical fire safety measures required to achieve compliance with the provisions of sections C, D & E of the BCA.

(Reason: To upgrade the existing building to provide adequate measures to protect persons using the building, and to facilitate their egress from the building, in the event of fire)

I6 Servicing Management Plan

Prior to issue of an occupation certificate a Servicing Management Plan shall be prepared identifying how all vehicles delivering, collecting and used for maintenance and service activities for the site (including residential removal vehicles accessing all towers) will access, park and manoeuvre on site; and identifying how the safe movement of goods and services will occur within the development

I7 Landscaping works

All landscaping works are to be carried out in accordance with the approved Construction Certificate plans prior to the issue of an occupation certificate.

I8 Lighting to pedestrian routes, outdoor areas and car parking

Lighting in accordance with the details submitted and approved pursuant to condition D17 is to be installed and maintained at all times and at the Applicant’s expense.

I9 Childcare Centre Plan of Management

Prior to the issue of any occupation certificate the applicant is to prepare a detailed plan of management for the child care centre, to the satisfaction of an early childcare consultant. The plan of management is to limit the number of children to be enrolled in the centre to 60 in total. The plan of management shall also provide details of how the number of children using the outdoor play area is to be limited at any one point in time so as to allow proper interaction between the children and between the children and the play equipment. The plan of management shall also detail the number of teachers to be present in each outdoor play area so as to allow adequate supervision.

J CONDITIONS THAT ARE ONGOING REQUIREMENTS OF DEVELOPMENT CONSENT

J1 Impact on amenity of surrounding area

To ensure reasonable levels of amenity for neighbouring properties, to minimise any adverse impact arising from construction and occupation of the development and to ensure the development does not conflict with the public interest:

a The implementation of this development shall not adversely affect the amenity of the neighbourhood or interfere unreasonably with the comfort or repose of a person who is outside the premises by reason of the emission or discharge of noise, fumes, vapour, steam, soot, ash, dust, and sediment in stormwater, waste water, waste products, grit, oil or other harmful products.

b Use of the premises shall not cause a sound level in excess of 5dBa at any point along the site boundaries above the following:

c Day (7am to 6pm) 38dB(A)L90

d Evening (6pm to 10pm) 34dB(A)L90

e Night(10pm to 7am) 30dB(A)L90

f The use of the premises, building services, equipment, machinery and ancillary fittings shall not give rise to an "offensive noise" as defined under the provisions of the Protection of the Environment Operations Act 1997.

g All sound producing plant, equipment, machinery or fittings associated with or forming part of the mechanical ventilation system and/or the refrigeration system, shall be sound insulated and/or isolated so that the noise emitted does not exceed 5 dB above the background level in any octave band from 63.0 Hz centre frequencies inclusive at the boundary of the site. Note: The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1-1989.

h There shall be no industrial activities, storage or depositing of any goods or maintenance to any machinery conducted external to the building.

i The use of the building and any plant, equipment and fittings installed shall be operated so as to meet the requirements of the:

i. Protection of the Environment Operations Act 1997

ii. AS 1668 - Part 2 - 1991

iii. AS 3666 - 1989

iv. Public Health Act - 1991

v. Public Health Act - 1991, Regulation

j The landscape plantings and fixtures shall be maintained in accordance with the Maintenance Specification and in the event of death or irreparable damage shall be replaced promptly as necessary.

J2 Lighting overspill - amenity

No security or other lighting shall cause light overspill to adjoining property owners, occupiers or residents.

J3 Trade waste containers

Any trade waste containers are to be screened from view from a public place and are not to obstruct or interfere with the use of the loading and parking facilities.

J4 Waste Management Plan Compliance

The Applicant is to comply with the Waste Management Plan provided and approved pursuant to condition D4 at all times

J5 Loading/unloading on site

All loading and unloading is to be conducted within the site at all times. Any designated loading bay/dock area is to remain available for loading/unloading purposes at all times. No storage of goods or parking of cars is to be carried out in these areas.

Delivery times are only permitted within the following periods:

Monday to Friday 7am to 4pm and 6pm to 9pm

Saturday 7am to 10am and 2pm to 8pm

Sunday 8am to 8pm

J6 Outdoor Lighting

No lighting (except emergency lighting, as required by Part E of the Building Code of Australia) is to be fixed to the exterior of the buildings or any outdoor area of the site without the prior consent of Council. This is to protect the amenity of the surrounding area and environment from light pollution.

Public Car park

· Access from Norton St via the express ramp, and access and egress Holden Street are to be kept open at all times.

· Lighting to be inspected and lamps replaced on a regular basis, details to be included in operational management plan.

· Parking for Council vehicles to be accessible all the times, including pedestrian access to the civic centre.

J8 CCTV Surveillance

The existing CCTV surveillance system shall be expanded to accommodate the new public access areas resulting from the development and be maintained at all times to ensure security footage is available for review by Mall management and NSW Police.

J9 Operation of the Serviced Apartments

The maximum length of stay for guests or residents of the serviced apartments in building D is 3 months.

J10 Services and Utilities Easements in Civic Plaza

Access for service vehicles from Liverpool Road to the plaza forecourt area contained in the land zoned 5(a) Special Uses for the service and utilities easements is to be preserved.

J11 Compliance with Parking and Internal Movement Signage Plan

The Applicant is to comply with the Parking and Internal Movement Signage Plan prepared pursuant to condition D35 of this consent.

J12 Compliance with Servicing Management Plan

The Applicant is to ensure compliance at all times with the Servicing Management Plan prepared pursuant to condition I6 of this consent.

J13 Compliance with Childcare Management Plan

The Applicant is to ensure compliance at all times with the Childcare Plan of Management prepared pursuant to condition I9 of this consent.

J14 Access from Public Carpark to other mall areas prohibited

No access is permissible from the level one public car park to any other internal areas of the Ashfield Mall, including other car parking areas, retail areas or lift lobbies, at any time the mall is closed.

J15 Level 5 retail parking

The level 5 Retail parking shall be available for use at all times during the applicable retail trading hours on all days

K ADVISORY NOTES/CONDITIONS (IMPORTANT INFORMATION FOR APPLICANTS)

K1 Signs -approval required

A separate Development Consent or Complying Development Certificate must be obtained prior to the erection of any advertising sign.

K2 Compliance with the Disability Discrimination Act - liability

This decision does not ensure compliance with the Disability Discrimination Act. The owner, lessee, operator and/or manager of the premises are advised that under the Disability Discrimination Act 1992, it is illegal to discriminate against a person with a disability by means of restricting access to or within the building. If access is restricted the owner, lessee, operator and/or manager of the premises may be liable for prosecution and/or a successful appeal to the Human Rights and Equal Opportunities Commission. You should therefore investigate your liability under that Act. Australian Standard 1428 - Design for Access and Mobility, Parts 2, 3 and 4 may assist in determining compliance with the Disability Discrimination Act 1992.

K3 Application for Road Use

Application for road use (opening) permit under s138 of the Roads Act 1993 for works in or on a public road, or the temporary exclusive use of part of a roadway.

Local Traffic Committee or RTA approval may be required for traffic control measures, and the applicant is to allow sufficient time for such approvals.

____________________________

T A Bly

Commissioner of the Court

ljr

CITATION:	Abacus Property Group v Ashfield Municipal Council [2009] NSWLEC 1097
PARTIES:	APPLICANT Abacus Property Group RESPONDENT Ashfield Municipal Council
FILE NUMBER(S):	10261 of 2008
CORAM:	Bly C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Retail, commercial and residential development, alterations and additions to existing buildings, height, bulk and scale, floor space, carparking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy No. 1 - Development Standards State Environmental Planning Policy No 65 - Principles for Residential Flat Design Ashfield Local Environmental Plan 1985 Ashfield Development Control Plan 2007
DATES OF HEARING:	15-18/12/2008, 27/03/2009 and 31/03/2009
DATE OF JUDGMENT:	3 April 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr M. Craig, QC Instructed by Malleson Stephen Jaques RESPONDENT Mr J. Ayling, SC Instructed by Pikes Lawyers