Aberline Associates Pty Ltd v Sutherland Shire Council - [2009] NSWLEC 1335

Land and Environment Court

of New South Wales

CITATION: Aberline Associates Pty Ltd v Sutherland Shire Council [2009] NSWLEC 1335
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
Aberline Associates Pty Ltd
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S): 10264 of 2009

CORAM: Dixon C

KEY ISSUES: DEVELOPMENT APPLICATION :- permissable use; streetscape; amenity; access; and parking

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Sutherland Shire Development Control Plan 2006
Sutherland Shire Local Environmental Plan 2006

DATES OF HEARING: 18 September 2009

EX TEMPORE JUDGMENT DATE: 18 September 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr Paul Vergotis (solicitor)
SOLICITOR
DLA Phillips Fox
RESPONDENT
Ms Jane Hewitt (solicitor)
SOLICITOR
HWL Ebsworth Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

COMMISSIONER DIXON

FRIDAY 18 SEPTEMBER 2009

10264 of 2009 ABERLINE ASSOCIATES PTY LTD v SUTHERLAND SHIRE COUNCIL

This determination was given extemporaneously
and has been edited prior to publication

JUDGMENT

1 COMMISSIONER: The applicant seeks approval of its application for development of a childcare centre at 17-19 Milford Road Miranda. A childcare centre is a permissible use subject to council’s consent. However, the council did not give its consent to this application or to the s 82A review filed by the applicant. The council determined that the application had unacceptable impacts on the streetscape and the amenity of the adjoining residents. Furthermore, it concluded that the proposed caretaker’s flat on the first floor was not a permissible use.

2 The applicant appeal Council’s refusal and relies on the amended plans which is Exhibit A. The amended plan deletes the caretaker’s flat, improves the acoustic measures, reduces the number of site parking spaces and increases the landscaping of the development. An amended plan of management is also relied on and is Annexure “C” to this judgment.

3 The council now accepts that the issues raised in the Statement of Facts and Contentions (apart from the residents issues) have been dealt with by the amended plans and the conditions.

4 Having considered the evidence, submissions and relevant matters in s79C of the Environmental Planning and Assessment Act 1979 I am of the opinion that this amended application is acceptable and is therefore approved.

Background:

5 A brief understanding of the evolution of the amended plans is necessary to appreciate how the applicant has worked to address the issues raised by the council and the residents. The hearing commenced on site on 18 August 2009. At that time I inspected the site and the surrounding streets in the company of the parties, their consultants and heard evidence from the attending residents. Of particular value is the opportunity to inspect the adjoining property at 15 Milford Road and hear the concerns of the owners most affected by the development. Some time was taken explaining the proposed acoustic fence between the site and No 15 Milford Road and discussing with the owners what acoustic treatment they would prefer. I also had the opportunity to inspect the streets surrounding the site to better understand the context of the evidence that I would later receive in Court.

6 At the conclusion of the first day the applicant sought a further opportunity to amend the plans to address the parking and acoustic and landscaping concerns raised by the evidence. The Court allowed the applicant leave to further amend the design. On 25 August 2009 the proceedings resumed in Court and at that point the council indicated its position, advising that the latest round of amendments had satisfactorily addressed its concerns, apart from the residents’ concerns.

7 The owner of 15 Milford Road was present in Court to hear the latest changes, which attempted in particular to address his concerns, particularly the appearance of the acoustic wall. After careful consideration the adjoining owner at No 15 gave evidence that he too was satisfied with the amendments.

8 The site is on the northern side of Milford Road Miranda and is characterised by dwelling houses of a variety of ages and architectural styles. The surrounding dwellings have generous setbacks. The site has a total area of 1842 m sq with a frontage of 34.82 m to Milford Road, a rear boundary of 31.38 m adjoining Miranda North public school and northern and southern boundaries of 56.21 and 65.17. It is zone 4 Local Housing under the Sutherland LEP 2006. The site had no significant vegetation and it is proposed that the existing single storey dwelling and garage on 17 Milford Road will be demolished if the application is approved. A boundary adjustment with the adjoining block at 19 Milford Road is also proposed to facilitate the childcare development. The site at the rear abuts Miranda North public school. Vehicle access to the school is via The Boulevard, approximately 200 m from the intersection of Milford Road and Kareena Road is Kareena Private Hospital and Sutherland Public Hospital is located on the south-eastern corner of Kareena Road and Kingsway.

9 In my consideration of the application under s79C I am required to have regard to the following planning instruments: Sutherland LEP, Sutherland DCP and Sutherland Shire s 94 plan.

10 The evidence of the residents was in writing and tendered in Court in council‘s bundle and orally taken on site during the hearing. As earlier stated, the adjoining owner at No 15 attended the hearing and gave further evidence in Court about the amended plans. Generally the residents’ concerns fall into the following categories: Concern about increased traffic and parking, pedestrian safety especially since there is no footpath for mothers with prams, noise emanating from the centre, parking across driveways, the visual presentation to the street, acoustic impact on adjoining property at No 15 and the visual impact of looking at an acoustic wall, particularly for that property.

11 Both parties called evidence from their respective town planners, traffic and acoustic experts and the amendments were prepared in consultation with these experts. The experts supported the amendments and believe that they address the issues raised in the Statement of Facts and Contentions that have been filed by the council.

12 I am satisfied on the evidence that the residents’ concerns, which overlap with the issues raised by council are satisfactorily dealt with by the amendments. The development is permissible on this site. The applicant has through amendments attempted to overcome the concerns expressed by the residents. I am satisfied that the adjoining resident at 15 Milford Road has had his concerns dealt with by the amended plans. The amended proposal complies with the parking requirements in council’s controls. The amended design has appropriate landscaping and setback, pedestrian access outside the site, ramped access to the centre wide enough for a pram. The first floor has been converted into a storage office area and the design changes make it difficult for the area to be used for any residential use because such a use would be illegal and in breach of the conditions of the consent.

13 The applicant has a comprehensive management plan with identified contacts available to deal with any issue should a resident have a concern about the operation of the centre. The children’s play-time will be co-ordinated with play time of the adjoining school. The ingress and egress has been widened with a circular driveway and eight car spaces and two additional car spaces intended for a parent drop off and pick up area.

14 The local traffic committee has agreed to the imposition of a condition requiring no parking signs to be installed on the road reserve at the front of the childcare centre, which prohibits parking while the childcare centre is in operation with half an hour extension of the prohibition either side of the hours of operation.

15 The stormwater issue has been dealt with by way of a deferred commencement condition. Council’s DCP is a focal point of my assessment of this application and the objectives encourage low density development that contemplate the predominantly urban landscape setting of the zone characterised by dwelling houses on single lots of land and to allow non-residential buildings that provide necessary services to the local community without adversely affecting the residential community. The amended plans in my opinion achieve these objectives of the zone. Clearly there will be those residents who will not want a child care centre in their street whatever the design. However, the council has zoned this land as a permissible use on this site. Therefore, as I am satisfied that the amended plans address the issues raised by the council and the applicant has attempted to address the residents’ concerns the application is approved.

16 After submissions the proceedings were adjourned to allow the local traffic committee an opportunity to meet on 4 September 2009 to consider the proposed parking conditions. The appeal has been listed today to confirm council’s position in respect of the parking committee’s approval and to hand down this judgment. It is necessary to note that the plans now before the Court are different to the plans originally filed and refused by the council but are now acceptable to the council and the adjoining resident at No 15 most affected by the development.

17 The orders of the Court are:

___________________

S Dixon

Commissioner of the Court

Annexure ‘B’

Conditions of Consent

Aberline Associates Pty Ltd v Sutherland Shire Council

DEVELOPMENT APPLICATION No. 07/1285

Land:

Lots 1 and 2 DP 27866 (Nos. 17 and 19 Milford Road, Miranda)

Development:

Demolition of the existing dwelling on No. 17 Milford Road and the erection of a childcare centre and for a boundary adjustment between the two lots.

It has been determined to grant a “Deferred Commencement” consent subject to the conditions listed in this Notice.

The conditions listed in Schedule 1 are to be complied with prior to the commencement of the consent. On completion of all conditions in Schedule 1, an operational consent will be issued for the development.

DEFERRED COMMENCEMENT CONDITIONS

To enable the submission of further information to clarify or resolve specific aspects of the proposed development this Development Consent is issued as a "Deferred Commencement" Consent under the provisions of Section 80(3) of the Environmental Planning and Assessment Act1979 (NSW) as amended. The Consent shall not operate until the applicant satisfies the Council as to the following matters

Note- Under the provisions of Clause 95A(5) of the Environmental Planning and Assessment Regulation 2000 (NSW) upon submission of the required information, Council shall advise in writing whether or not it is satisfied as to the relevant matters.

1. Stormwater Discharge.

(a) The applicant shall provide evidence of the registration of an instrument pursuant to s 88B of the Conveyancing Act 1919 (NSW) that the registered proprietors of Lot 2, DP 27866, Lot 1, DP957442 and Lot 15, DP 20660 have made suitable arrangements to drain stormwater from Lot 2, DP27866 into the existing stormwater pipe located within the 2m wide easement to drain water in DP957442.

and

(b) Provide evidence to the effect that the Body Corporate of Strata Plan No.79112 (the owner of the pipeline) is willing to accept the direct connection of the drainage system of the development to the pipeline detailed in concept stormwater drainage design drawings No.2872 sheets C01/B, C02/B & C03/B prepared by Global Projects Solutions.

Provide evidence that the existing pipeline within the stormwater easement is capable of flowing the Q100 discharge from this development plus the development upon No.11 and No.11A Milford Road, shall accompany the application for the Construction Certificate.

GENERAL CONDITIONS

These general conditions are imposed to ensure that the development is carried out in accordance with the development consent, having regard to the environmental circumstances of the site.

2. Approved Plans and Documents

The development shall be implemented substantially in accordance with the following

details and specifications set out on the architectural design drawing No. HELWANI Sec82A sheets 00B, 01C and 02C prepared by Norman A Naylor and Associates;
the concept stormwater drainage design drawing No.2872 sheets C01/B, C02/B and C03/B prepared by Global Projects Solution;
Sheets 1 and 2 of drawing no. 07-2017D prepared by Zenith Landscape Designs dated 21.08.09 ;
Annexure #1 - Plan of Management dated 25 August 2009;
The Noise Assessment Report of Atkins Acoustics dated 31 July 2009; and
Any details on the application form and on any supporting information received with the application except as amended by the conditions specified and imposed hereunder.

This consent does not authorise the erection of any signs associated with the childcare centre.

3. Prescribed Conditions

The following are prescribed conditions of development consent pursuant to s.80A(11) of the Environmental Planning and Assessment Act 1979 (NSW) and cl.98 of the Environmental Planning and Assessment Regulation 2000 (NSW).

A. Compliance with the Building Code of Australia

The development must be carried out in accordance with the provisions of the Building Code of Australia.

B. Residential building work

Principal Certifying

Authority

2. A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purposes of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part.

C. Details to be provided to Council with the Notice of Commencement

Builders and Insurance details required under part B above shall be provided to Council with the Notice of Commencement. In relation to non-residential building work Builders details shall be provided to Council with the Notice of Commencement.

Bonds and Contributions

The following security bonds and contributions have been levied in relation to the proposed development.

4. Public Place and Environmental Damage Security

Before the commencement of any works (including demolition) or the issue of a Construction Certificate the applicant shall provide security to Council to the value of $4,600 against damage caused to any Council property and / or the environment as a consequence of the implementation of this consent. The security may be provided by way of a deposit with the Council or a satisfactory guarantee. A non refundable inspection / administration fee is included in the bond value.

It is the applicant’s responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a current dilapidation report supported by photographs. This information shall be submitted to Council at least two (2) days prior to the commencement of works.

Should any public property and / or the environment sustain damage during the course of and as a result of construction, or if the construction works put Council's assets or the environment at risk, Council may carry out any works necessary to repair the damage and / or remove the risk. The costs incurred shall be deducted from the security.

‘Bond Release Request Form’

5. Public Liability Insurance

Prior to the commencement of work or the issue of a Construction Certificate, the owner or contractor shall take out a Public Liability Insurance Policy with a minimum cover of $5 million in relation to the occupation of and works within Council's road reserve, for the full duration of the proposed works. Evidence of this policy shall be submitted to Council prior to commencement of work or the issue of a Construction Certificate.

MATTERS RELATING TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

The following conditions involve either modification to the development proposal or further investigation prior to the issue of a Construction Certificate, so as to ensure that there will be no adverse impact on the environment or adjoining development. This information shall be submitted with the Construction Certificate.

6. Deleted

Design Conditions

These design conditions are imposed to ensure the development, when constructed, meets appropriate standards for public safety and convenience.

7. Design Changes Required

The following design changes shall be implemented:

8. Detailed Landscape Plan

A detailed Landscape Plan shall be prepared by an experienced Landscape Designer (a person eligible for membership of the Australian Institute of Landscape Designers and Managers) or a Landscape Architect (a person eligible for membership of the Australian Institute of Landscape Architects as a Registered Landscape Architect).

The plan shall accord with Section 6.7 of Council's Landscape Development Control Plan, which sets out the requirements for a Detailed Landscape Plan, and the relevant conditions of this consent.

The Detailed Landscape Plan shall be based on the Concept Landscape Plan No.07-2017D sheets 1 and 2 prepared by Zenith Landscape Designs dated 21.08.09 and shall address the following:

a) Water efficient irrigation system in accordance with Sydney Water requirements and relevant Australian Standards serving all landscaped areas on No.17 and No.19 Milford Road shown on the concept landscape plan

9. Site Management Plan

An Environmental Site Management Plan shall accompany the Construction Certificate. This plan shall satisfy the Objectives and Controls in Part 4 of Chapter 3 of Sutherland Shire Development Control Plan 2006 and shall address the following:

a) What actions and works are to be employed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from building activities, crossings by heavy equipment, plant and materials delivery, and the like.
b) The proposed method of loading and unloading excavation machines, building materials.
c) Areas within the site to be used for the storage of excavated material, construction materials and waste containers during demolition / construction.
d) How it is proposed to ensure that material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways.
e) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be certified by a Certifier accredited in civil engineering.
f) The provision of temporary fencing to secure the work site (fencing, hoarding or awnings over public land require Council approval under the Roads Act).
g) The control of surface water flows within and through the construction site to minimise erosion and movement of sediment off site.
h) The type and location of erosion and sediment control measures, strategies to minimise the amount of soil uncovered at any time, the conservation of topsoil for re-use on site, the location and protection of stockpiles.
i) Identify all trees that are to be retained and the measures proposed to protect them (including fencing, mulching, watering, erection of signs excluding access to the protection zone, etc), and identify areas for revegetation.

Roads Act 1993

10. Works Adjacent to Pool Area

To ensure the safety of persons, the design and construction of the development and associated boundary fencing shall ensure that the existing swimming pool located at No.19 Milford Road complies with the following requirements:

a) The Swimming Pools Act 1982 (NSW) & Regulations applicable at the time of construction.
b) Australian Standard 1926 Swimming Pool Safety as prescribed under the Regulations.

Details of all child-resistant barriers (existing and proposed) to be utilised to comply with the requirements of the Swimming Pools Act 1982 (NSW) and Regulations applicable at the time shall be shown on the Construction Certificate plans. The information is required for recording in Sutherland Shire Pool Register.

Where the wall of a building is to be used as part of the required child-resistant barrier, the plans shall indicate if the wall has any openings and how they comply with pool safety requirements.

11. Noise Management

To minimise the impact of noise from the development, all sound producing plant, equipment, machinery, mechanical ventilation systems, refrigeration systems and/or air conditioning systems, shall be designed and / or located so that the noise emitted does not exceed an LAeq sound pressure level of 5 dB(A) above the ambient background level in any octave band from 31.5Hz to 8kHz centre frequencies inclusive when measured at the most affected point on or within any residential property boundary between the hours of 8.00am and 10.00pm. Between the hours of 10.00pm and 8.00am noise shall not exceed ambient background level in any octave band from 31.5 Hz and 8kHz centre frequencies inclusive when measured at the most affected point on or within any residential property boundary.

Note: The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1.

12. Design and Construction of Road Frontage Works

Council has determined that the proposed development generates a need for the following works to be undertaken by the Applicant in the Road Reserve in conjunction with the development. The design drawing shall generally comply with the approved architectural design drawings and provide the following;

The road frontage works design drawing shall be prepared and submission as part of the Construction Certificate. The creation of the design shall be undertaken by Sutherland Shire Council’s Engineering Division.

Conditions Relating to Works in the Road Reserve

These conditions are imposed to ensure that adequate road works are provided to minimise the adverse effect of traffic generated by the development.

13. Access Application

An access application shall be made to Council to obtain footpath crossing and boundary alignment levels before commencing the final design of internal driveways, paths and car park area. The proposal shall comply with the levels issued by Council and a copy of the issued levels shall accompany the Construction Certificate.

14. Road Opening Approval Required

No work whatsoever shall be carried out within the Public Road Reserve unless a "Road Opening Permit" under the Roads Act, 1993 (NSW) has been issued by either Council or the Roads and Traffic Authority for every opening of the public road reserve.

15. Deleted

Public Utility Authorities Requirements

These conditions are imposed to avoid problems in servicing the development and reduce adverse impacts on the lot layout or the design of buildings or associated facilities.

16. Public Utilities - Subdivision

Arrangements shall be made with Energy Australia, Telstra, cable television network providers and other public utilities in relation to:

17. Sydney Water - Referral Requirements

The plans approved as part of the Construction Certificate shall be submitted to a Sydney Water Quick Check agent or Customer Centre to determine as to 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 stamped appropriately.

for:

Quick Check agents details – see Building Development and Plumbing then Quick Check; and

Guidelines for Building Over / Adjacent to Sydney Water Assets – see Building Development and Plumbing then Building and Renovation.

18. Public Utility Authorities

Arrangements shall be made to the satisfaction of all Utility Authorities including cable television network providers in respect to the services supplied to the development by those authorities. The necessity to provide or adjust conduits/ services within the road and footway areas shall be at full cost to the applicant.

19. Engineering Works Supervisor.

Prior to the commencement of any works the applicant shall nominate an appropriately qualified Accredited Certifier in Civil Engineering works or a Charter Civil Engineer to supervise construction of the Road frontage works, the stormwater drainage system, rainwater harvesting system and the rainwater reuse systems. The Engineer shall:

a). Provided an acceptance in writing to supervise sufficient of the aforementioned works to ensure compliance with the relevant conditions of Development Consent and associated Roads Act Consent, and
b). On completion of the works certify that the aforementioned works have been constructed in compliance with the approved plans, specifications and conditions of Consents.

20. [Deleted]

21. Car Park and Vehicular Access-way

The vehicular access-way shall be designed and constructed to comply with AS2890.1:2004 and the approved architectural design drawings, except where modified by the following;

a). Align with Council’s vehicular crossing profile issued as a result of compliance with condition “Design and Construction of the Road Frontage Works”,
b). The vertical alignment of the vehicular access-way shall ensure that a B99 vehicle will not strike the surface of the crossing, driveway or the car parking bays,
c). The driveway shall be paved using materials other than plain or exposed aggregate concrete,
d). Provide a maximum grade of 5% for the first 3 metres inside the property boundary, and
e). Compliance with Clauses of 2.6.2, 3.3 and 3.3(d) is not required.

Certification from an Accredited Certifier or Chartered Civil Engineer, to the effect that the car park and vehicular access-way design was prepared having regard to the conditions of development consent, shall accompany the application for the Construction Certificate.

22. Garbage, Recycling and Green-waste Storage Area

To ensure proper storage of waste from the premises (including the child care centre and the attached residence), an enclosed garbage and recycling storage area shall be provided. The bin storage area shown on the approved plan shall be repositioned to the western side of the site to minimise odour impact on the adjacent dwelling at No.15 Milford Road, shall be easily accessible to the street and shall accommodate waste and recycling bins to Council's requirements. Within this area a smooth impervious floor shall be provided that is graded to a floor waste and a tap and hose provided to facilitate regular cleaning of the bins. All waste water shall be discharged to the sewer in accordance with the requirements of Sydney Water.
The required number and type of waste and recycling material containers shall be provided at the full cost of the developer.

Details of the garbage, recycling and greenwaste storage area shall accompany the Construction Certificate.
The works included above shall be completed prior to the issue of an occupation certificate.

23. Cleanliness and Maintenance of Food Preparation Areas

To ensure that adequate provision is made for the cleanliness and maintenance of all food preparation areas all building work in connection with the occupation or use of the premises intended for the preparation and storage of food shall be designed and implemented in accordance with the requirements of:
i. Food Act 2003 (NSW)
ii. Food Regulation 2004 (NSW)
iii. Food Safety Standards 3.1.1, 3.2.2 and 3.2.3
iv. AS 4674 – 2004 (Design, construction and fit-out of food premises)
v. Sydney Water Corporation - Trade Waste Section,
vi. Protection of the Environment Operations (Clean Air) Regulation, 2002 (NSW)
vii. AS 1668 Part 2 - 1991
viii. The Building Code of Australia

Certification to this effect shall be provided by an appropriately qualified person and this shall accompany the Construction Certificate.

24. Building Ventilation

To ensure that adequate provision is made for ventilation of the building mechanical and / or natural ventilation systems shall be provided. These shall be designed, in accordance with the provisions of:

a) The Building Code of Australia.
b) AS 1668 Part 2 - 1991.
Details of all mechanical and / or natural ventilation systems, along with specific certification provided by an appropriately qualified person verifying compliance with the abovementioned requirements, shall accompany the Construction Certificate.

25. Noise Control – Design of Plant and Equipment

To minimise the impact of noise from the development, all sound producing plant, equipment, machinery, mechanical ventilation systems, refrigeration systems and/or air conditioning systems, shall be designed and / or located so that the noise emitted does not exceed an LAeq sound pressure level of 5 dB(A) above the ambient background level in any octave band from 31.5Hz to 8kHz centre frequencies inclusive when measured at the most affected point on or within any residential property boundary between the hours of 8.00am and 10.00pm. Between the hours of 10.00pm and 8.00am noise shall not exceed ambient background level in any octave band from 31.5 Hz and 8kHz centre frequencies inclusive when measured at the most affected point on or within any residential property boundary.
Note: The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1.
Details of the acoustic attenuation treatment required to comply with this condition, shall be prepared by a practicing acoustic engineer and shall be submitted with the Construction Certificate.

PRE-COMMENCEMENT CONDITIONS

The following conditions are imposed to ensure that all pre-commencement matters are attended to before work is commenced.

26. Pre-Commencement - Notification Requirements

No works in connection with this development consent shall be commenced until:
a) A Construction Certificate / Subdivision Certificate has been issued and detailed plans and specifications have been endorsed and lodged with Council;
b) A Principal Certifying Authority has been appointed. Council shall be notified of this appointment along with details of the Principal Certifying Authority, and their written acceptance of the appointment; and
c) Notice of commencement has been provided to Council 48 hours prior to commencement of construction work on the approved development.

27. Signs to be Erected on Building and Demolition Sites

Where proposed works affect the external walls of a building, a rigid and durable sign shall be erected prior to the commencement of work and maintained in a prominent position on any work site on which building work, subdivision work or demolition work is being carried out. The responsibility for this to occur is that of the principal certifying authority or the principal contractor.

The signage, which must be able to be easily read by anyone in any public road or other public place adjacent to the site, must:

a) show the name, address and telephone number of the principal certifying authority for the work, and
b) show the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and
c) state that unauthorised entry to the work site is prohibited.
Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

CONSTRUCTION CONDITIONS

These conditions are imposed to ensure the development does not unreasonably impact on the amenity of the locality during the construction or demolition phase.

28. Environmental Site Management DCP

All construction work approved by this development consent shall be undertaken in accordance with the objectives and controls in Part 3 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management.

29. Permitted Hours for Building and Demolition Work

To minimise the noise impact on the surrounding environment all building and demolition work shall be carried out only between the hours of 7.00am and 6.00pm Monday to Friday inclusive, 8.00am and 1.00pm Saturdays. No work shall be carried out on Sundays and Public Holidays.

30. Toilet Facilities

Toilet facilities shall to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

Each toilet provided:
a) shall be a standard flushing toilet, and
b) shall be connected:
i) to a public sewer, or
ii) if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the Council, or
iii) if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the Council.

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

31. Demolition Work

To ensure that demolition of structures is carried out in an environmentally acceptable and safe manner:
a) The demolition of the existing building shall be carried out strictly in accordance with Australian Standard 2601 - The Demolition of Structures, and
b) If demolition is to commence prior to the issue of a Construction Certificate, the Builder/principal contractor shall undertake a pre-commencement site inspection with Council's Engineering Compliance Officer and Council's Civil Asset Manager. The purpose of this inspection is to facilitate the implementation of the consent specifically with regard to the impact on the public way and to clarify any matters of concern.

32. Demolition – Removal of Asbestos Material

To ensure that the removal and transportation of any asbestos material from the premises is carried out in an environmentally acceptable and safe manner, all work shall comply with the following:

a) Occupational Health and Safety Act 2000 (NSW);
b) Occupational Health and Safety Regulation 2001 (NSW);
c) Code of Practice for the Safe Removal of Asbestos 2nd Edition [NOHSC:2002(2005)];
d) Workcover NSW ‘Working with Asbestos – Guide 2008’; and
e) Protection of the Environment Operations Act 1997 (NSW).
The applicant shall notify Council’s Environment & Health Regulation Unit (phone (02) 97100333 during normal business hours) of any proposed removal of asbestos material not less than 72 hours prior to the commencement of the work.

33. Excavations and Backfilling

a) All earthworks including excavations and backfilling associated with the erection or demolition of a building shall 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.
c) All canopy, trunk and root system of all trees to be retained on site and neighbouring properties shall be protected from damage during excavation.

34. Retaining Walls and Drainage

If the soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided, and adequate provision must be made for drainage.

35. Support for Neighbouring Buildings

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:

a) Shall preserve and protect the building from damage.
b) If necessary, shall underpin and support the building in an approved manner.
c) Shall, 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.
d) 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.
In this clause, allotment of land includes a public road and any other public place.

36. Protection of Public Places

To protect public safety and convenience during the course of constructing the works covered by this consent, a hoarding or fence shall be erected between the work site and the public place. Any such hoarding, fence or awning shall be removed and any damage to any public place reinstated to Council's satisfaction when the work has been completed.

37. Noise Control during Construction and Demolition

To minimise the impact on the surrounding environment:
a) For construction and demolition periods of 4 weeks or less the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the ambient background level by more than 20dB(A) when measured at the nearest affected premises.
b) For construction and demolition periods greater than 4 weeks and not exceeding 26 weeks the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 10 dB(A) when measured at the nearest affected premises.
c) For construction and demolition periods greater than 26 weeks the LAeq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 5 dB(A) when measured at the nearest affected premises.

38. Environment Protection and Management

The environment protection and management measures described in the required Environmental Site Management Plan (including sediment controls and tree protection) shall be installed or implemented prior to commencement of any site works and continuously maintained during the period of construction or demolition. These measures shall generally be in accordance with the requirements of Part 3 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management.

39. Run-off and Erosion Controls

Run-off and erosion controls shall be installed prior to commencement of any site works and shall be continuously maintained during the period of construction or demolition. These control measures shall generally be in accordance with the requirements of Part 3 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management and shall specifically address the following matters:
a) diversion of uncontaminated runoff around cleared or disturbed areas;
b) a silt fence or other device to prevent sediment and other debris escaping from the cleared or disturbed areas into drainage systems or waterways;
c) controls to prevent tracking of sediment by vehicles onto adjoining roadways and public areas; and
d) disturbed areas shall be stabilised either temporarily or permanently by the use of turf, mulch, paving or other methods approved by the Council.

40. Stockpiling of materials during construction

Topsoil, excavated material, construction and landscaping supplies and on site debris shall be stockpiled within the erosion containment boundary and shall not encroach beyond the boundaries of the property or the drip-line of any tree marked for retention. For further information, refer to Part 3 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management.

41. Containment of Fill

Fill shall not extend beyond the perimeter of the building. (The use of a dropped edge beam is a method of complying with this condition.)

42. Construction materials and machinery must be kept within the site

All construction materials, sheds, skip bins, temporary water closets, spoil, and the like, shall be kept within the property. No vehicles or machines shall be permitted to stand on Council's footpath. For further information, refer to Part 3 of Chapter 8 of Sutherland Shire Development Control Plan 2006 and the Sutherland Shire Environmental Specification 2007 - Environmental Site Management.

43. Spoil deposited on public way (roads or reserves)

Any spoil deposited on public roads during cartage of materials from or to the site shall be removed immediately to the satisfaction of Council. If Council determines that excessive depositing of spoil onto the public way is taking place then the cartage of spoil shall cease if so directed by Council.

POST CONSTRUCTION CONDITIONS

These conditions are imposed to ensure all works are completed in accordance with the Development Consent prior to either the issue of an Occupation Certificate, a Subdivision Certificate or habitation / occupation of the development.

44. Section 73 Compliance Certificate

A Compliance Certificate under s73 of the Sydney Water Act, 1994 (NSW), shall be submitted to Council by the PCA prior to the issue of an Occupation Certificate or before the issue of a Subdivision Certificate. Sydney Water may require the construction of works and/or the payment of developer charges.

Advice from Sydney Water:
An application must be made through an authorised Water Servicing Coordinator. For details see the Sydney Water web site at or by telephone 13 20 92.
Following application a "Notice of Requirements" will be forwarded detailing water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water / sewer extensions can be time consuming and may impact on other services as well as building, driveway or landscaping design.

45. Acoustic Works - Report

To ensure all acoustic work has been completed, certification shall be provided upon completion of the works, accompanied with evidence in the form of a report from a suitably qualified practising acoustic engineer, to the effect that the acoustic attenuation has been carried out in accordance with the development consent. The report shall include all post construction validation test results.

46. Works-As-Executed Drawings (W.A.E.D) and Certification of Works.

a). The Supervising Engineer shall certify that the stormwater drainage works, rainwater harvesting facility and rainwater reuse system were constructed in accordance with the Development Consent and to their satisfaction. Prior to the occupation or use of the building the Applicant/Owner shall submit to Council a copy of the aforementioned letter of certification.
b). The Supervising Engineer shall certify that the frontage works were constructed to their satisfaction and in accordance with the Development Consent and associated Roads Act Consent. Prior to the occupation or use of the building the Applicant/Owner shall submit to Council a copy of the aforementioned letter of certification.
d). A W.A.E.D shall be prepared to show the stormwater drainage system, detailing the alignment of pipelines, pits, rainwater tanks and associated structures. The W.A.E.D. shall be prepared by a Registered Surveyor and prior to the occupation or use of the building the Applicant/Owner shall submit to Council a copy of the aforementioned W.A.E.D.

47. Food Preparation

Certification from a suitably qualified person that all work in connection with the occupation or use of the premises for the preparation, display and storage of food has been carried out in accordance with the terms of the development consent.

48. General Compliance

Certification from the Principal Certifying Authority certifying that all works have been completed and comply with the approved plans, conditions and specifications.

49. Completion of Landscaping

Certification shall be provided from a suitably qualified and experienced Landscape Designer or Landscape Architect within three months after the issue of the Final Occupation Certificate for the development. This Certification shall verify that the landscape works have been completed to the stage of practical completion in accordance with the approved detailed landscape plan and relevant conditions of this consent.
Note: A Landscape Designer is a person eligible for membership of the Australian Institute of Landscape Designers and Managers and a Landscape Architect is a person eligible for membership of the Australian Institute of Landscape Architects as a Registered Landscape Architect.

50. Prior to Occupation or Use of the Development

The Development shall not be occupied or used until:
a) A Final Occupation Certificate is issued and provided to Council for the development; or
b) An Interim Occupation Certificate is issued and provided to Council for the development. This shall clearly identify the part of the development to which the Interim Occupation Certificate relates.

Subdivision Plan Requirements
The following conditions have been imposed in relation to the preparation and release of the Linen Plans of Subdivision.

51. Deleted

52. Positive Covenant for maintenance of detention facilities - Subdivision

A positive covenant pursuant to section 88E of the Conveyancing Act, 1919 (NSW) shall be created on the title of the allotment that contains the stormwater detention facility to provide for the maintenance of the detention facility. To this end the registered proprietor(s) of the property thereby burdened shall covenant with Sutherland Shire Council and its successors not to use the property except as permitted by this development specifically with respect to the provision and maintenance of the detention facilities. The location and extent of the detention facilities shall be delineated on the Linen Plan of Subdivision.

53. Endorsement of Linen Plan of Subdivision for Boundary Adjustment

To facilitate the issue of the Plan of Subdivision for the boundary adjustment, following completion of the requirements detailed in the condition of this Development Consent and the issue of the Subdivision Certificate by Council, a film and eight (8) paper copies of the Plan of Subdivision shall be submitted together with any necessary Instrument under the Conveyancing Act ,1919 (NSW) where required for ultimate lodgement of the Land Titles Office.

OPERATIONAL CONDITIONS

These conditions are imposed to ensure that the use or operation of the development does not adversely impact on the amenity of the neighbourhood and the environment.

54. Maintenance and Operational Efficiency of BASIX Requirements

The operation of all devices or appliances installed within the development approved by this consent as stipulated in the BASIX Certificate shall be maintained in good operating order at all times.

55. Carparking Areas

To ensure that the carparking area satisfies the demands of the development it shall be made available on an unrestricted basis at all times for employees' and visitors' vehicles.

56. Hours of Operation

To minimise the impact of the development on the surrounding environment, the use of the premises for activities relating to the supervising or caring for children (including the dropping-off and picking-up of children by parents and others) shall be restricted to between the hours of 7.00am and 6.30 pm Mondays to Fridays. No activities relating to the supervising or caring for children shall be conducted at the premises on a Saturday, Sunday or Public Holiday.
Child care centre staff, cleaners, maintenance and trades personnel may undertake periodic cleaning, repairs and maintenance between the hours of 8.00am and 1.00pm Saturdays. There shall be no cleaning, repairs and maintenance activities conducted on the premises on Sundays or Public Holidays.

57. External Lighting

All external lights shall be operated and maintained in accordance with the Australian Standard AS4282 - Control of the Obtrusive Effects of Outdoor Lighting so as not to cause a nuisance or adverse impact on the amenity of residents of the surrounding area nor to motorists on nearby roads.

58. Noise Control - Offensive Noise

To minimise the noise impact on the surrounding environment, the use of the outdoor play area shall not give rise to an "offensive noise" as defined under the provisions of the Protection of the Environment Operations Act 1997 (NSW).

Noise from the outdoor play areas must not exceed an LAeq (15min) sound pressure level of 10 dB(A) above the ambient background level.
Specifically, the following noise criteria shall apply:
The noise levels from outdoor play areas at the windows on the western elevation of 15 Milford Road Miranda must comply with the noise criterion of 52dBA LAeq, 15min;

The noise levels from outdoor play areas at the rear of 15 Milford Road Miranda must comply with the noise criterion of 54dBA LAeq, 15min;

The noise levels from outdoor play areas at the front of 18 Milford Road Miranda must comply with the noise criterion of 52dBA LAeq, 15min;

The noise levels from outdoor play areas at the front of 19 Milford Road Miranda must comply with the noise criterion of 52dBA LAeq, 15min; and

The noise levels from outdoor play areas at the rear of 19 Milford Road Miranda must comply with the noise criterion 54dBA LAeq, 15min.

Car parking noise must not exceed an LAeq (15min) sound pressure level of 5 dB(A) above the ambient background level.
Specifically, the following noise criteria shall apply:
The noise levels from outdoor play areas at the windows on the western elevation of 15 Milford Road Miranda must comply with the noise criterion of 47dBA LAeq, 15min;

The noise levels from outdoor play areas at the front of 18 Milford Road Miranda must comply with the noise criterion of 47dBA LAeq, 15min; and

The noise levels from outdoor play areas at the front of 19 Milford Road Miranda must comply with the noise criterion of 47dBA LAeq, 15min.

59. Noise Control – Operation of Plant & Equipment

To minimise the impact of noise from the development, all sound producing plant, equipment, machinery, mechanical ventilation or refrigeration systems, shall be operated and maintained in such a manner so that the noise emitted does not exceed a LAeq sound pressure level of 5 dB above the ambient background level, in any octave band from 31.5Hz to 8kHz centre frequencies inclusive, when measured at the most affected point on or within any residential property boundary.
Note: The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1.

60. Ventilation – Operation

To ensure that adequate ventilation within the building, all mechanical and / or natural ventilation systems shall be operated and maintained in accordance with the provisions of:
a) The Building Code of Australia.
b) AS 1668 Part 2 - 1991.

61. Operational Acoustical Validation Report

Within 12 weeks of the commencement of the use of the premises as a Long Day Child Care Centre, the applicant, when called upon to do so by Council, shall engage a suitably qualified independent practicing acoustic engineer to carry out post construction validation testing. The Council shall approve the appointment of the suitably qualified independent practicing acoustic engineer prior to the testing commencing. The testing shall be carried out at a time deemed appropriate by the suitably qualified independent practicing acoustic engineer in consultation with Council. The testing shall be carried out without prior knowledge of the Applicant.

A suitably qualified practising acoustic engineer is to remain in the physical locality of the noise receiving and testing equipment at all times during the duration of the testing. If the post construction validation test results demonstrate that the development does not comply with the noise criteria stipulated in this development consent, then the applicant shall ensure that the development is carried out in an alternate way, such that the criteria are complied with until such time as the development as originally carried out does comply with those noise criteria as evidenced by a further report from the acoustic engineer.

A copy of the report is to be provided to the applicant and to Council.
For the purposes of this condition, measurements shall be undertaken at No. 15 Milford Road, Miranda.

62. Outdoor Play Areas

The front courtyard outdoor play area shall be used by the children only aged 0-2 years old for a maximum of two (2) hours per day between the hours of 9.30am and 4.30pm Monday to Friday.

The rear section of the outdoor play area denoted as 'Active Play Area' on Drawing no. HELWANI Sec82A-01C shall be used by the children only aged 2-5 years old for a maximum of two (2) hours per day between the hours of 9.30am and 4.30pm Monday to Friday.

There are to be no activities relating to the supervising or caring for children in any outdoor play area between 4.30pm and 9.30am Monday to Friday. Childcare centre staff may set up equipment in the outdoor play areas between the hours of 9.00am and 9.30am and may pack up equipment (and clean) in the outdoor play areas between the hours of 4.30pm to 5.00pm Monday to Friday.

There shall be a maximum of ten (10) children in the front courtyard outdoor play area and a maximum of sixteen (16) children in the rear outdoor play area at any one time.

Area 2 - Supervised Educational Activity area should not be used for active free play. Uses for this area could include supervised education activities and/or supervised passive play (sand pit, drawing, painting, reading, etc). This area shall not be used at the same time as the Outdoor Play Areas are in use.
The ground floor veranda at the front of the development should not be used as an outdoor play area for the Child Care Centre.

63. Plan of Management to Comply with the Conditions of Development Consent at All Times

Prior to the issue of the Construction Certificate, the Plan of Management shall be amended to ensure it fully reflects the conditions of consent.

The plan of management shall not be altered in any future review, in any manner which contravenes development consent.
The plan of management binds all current future owners/operators of the Childcare Centre at all times.

64. Number of Children and Age Groups

The number of children in attendance at the child care centre at any one time shall be limited to a maximum of 42 children. Further, this shall consist of a maximum of 10 children in the 0-2 year age group and a maximum of 32 children in the 2-5 year age group.

65. Registration Requirements

Occupation of the premises shall not occur until a registration application has been submitted to Council’s Environment and Health Regulation Department for the food shop.

66. Maintenance of Landscaping

All landscaping provided by to meet the needs of the development on No.17 and No.19 Milford Road shall be maintained at all times in accordance with the approved landscape plan.

67. Use of no. 17 Milford Road

No. 17 Milford Road shall be used only as a 42 place childcare centre. No part of the development located on no. 17 Milford Road shall be used for any form of short or long term residential accommodation.

_______________________

ljr
Annexure ‘C’

Plan of Management
Helwani Child Care Centre
17 Milford Road, Miranda

1.1 This Plan of Management (PoM) has been developed to facilitate in the management and operation of the Helwani Child Care Centre (HCCC) at 17 Milford Road, Miranda to ensure that the HCCC, whilst trading, does not unreasonably affect the amenity of any residential property in Milford Road;

1.2 The PoM is also intended to complement any conditions imposed on Development Consent no. 07/1285 (Development Consent) granted by the Land and Environment Court of NSW to ensure that all users and stakeholders of the HCCC comply with the Development Consent and all other relevant legal requirements which affect the day-to-day operation of the HCCC;

1.3 A copy of the PoM (and any subsequent amendments) will be provided to any resident in Milford Road upon request and at no cost;

1.4 A copy of the PoM (and any subsequent amendments) will also be provided to the Sutherland Shire Council (Council) for its information and records; and

1.5 This PoM is provided in addition to any other requirements for management plans by State or Commonwealth Government authorities.

The aims and objectives of the PoM are:

2.1 To facilitate compliance with the Development Consent;

2.2 To ensure the HCCC is operated in a manner that will ensure that the residential amenity of Milford Road is not adversely affected by virtue of the operation of the HCCC;

2.3 To ensure the applicable Zone 4 Local Housing objectives under the Sutherland Shire Local Environmental Plan 2006 are met to the maximum extent possible by the provisions of this plan;

2.4 To ensure that any resident in Milford Road has an immediate and dedicated point of contact to the management of the HCCC;

2.5 To ensure that in the event of a concern or a complaint being raised by any occupant of any neighbouring property in Milford Road about the operation of the HCCC, the concern or complaint is dealt with and resolved promptly;

2.6 To ensure that users and stakeholders of the HCCC abide with the PoM at all times; and

2.7 To ensure that the PoM is reviewed annually.

3.1 All HCCC's staff vehicles shall be parked on the site and within the designated spaces using the stacked parking first;

3.2 Staff vehicles shall arrive no earlier than 7.00 am and depart no later than 7.00 pm except in the case of exceptional circumstances or emergencies;

3.3 Parents/guardians/carers vehicles entering or leaving the site to drop or pick up children shall be required to enter and leave the site from a westerly direction in Milford Road (from and to The Boulevarde) without delay once children have been dropped off or picked up;

3.4 Parents/guardians/carers driving vehicles to and from the HCCC will be required to approach the HCCC and depart from the HCCC from The Boulevarde end of Milford Road. This requirement will be by written agreement at the time of enrolment and shall be a condition included on the enrolment form;

3.5 All parents/guardians/carers driving vehicles to and from the HCCC will be reminded to give full and complete consideration to the residents in Milford Road to ensure that any residents are not inconvenienced in any way with respect to traffic or noise associated with the dropping off or picking up of children. This includes, but is not limited to, the parking of vehicles across driveways or on footpaths, double parking, road speed and the idling of vehicles whilst stationary; and

3.6 Deliveries of any goods and services to the HCCC, except in the case of an emergency, shall be restricted to Monday to Friday within the hours of 10.00 am to 3.00 pm.

4.1 The number of children in attendance at the HCCC at any one time shall be limited to a maximum of forty two (42) children. Further, this shall consist of a maximum of ten (10) children in the 0 to 2 year age group and a maximum of thirty two (32) children in the 2 to 5 year age group;

4.2 The PoM shall be implemented and complied with at all times with Outdoor Play Areas (OPAs) being used so that a maximum of twenty six (26) children shall be outside at any one time in the following OPAs:

4.2.1 Southern OPA (being the area between the building and the carparking area) - a maximum number of ten (10) children aged 0 to 2 years; and

4.2.2 Northern OPA - (being the area denoted 'Active Play' area on Drawing no. 'Helwani Sec82A-01C' which is between the building and the rear common boundary and on the eastern side of the acoustic screen) - a maximum number of sixteen (16) children aged 3 to 5 years.

4.3 The combined use of the OPAs shall be restricted to a maximum period of two (2) hours per day between the hours of 9.30 am and 4.30 pm Monday to Friday;

4.4 There shall be no activities relating to the supervising or caring for children in any outdoor play area between 4.30 pm and 9.30 am Monday to Friday. HCCC staff may set up equipment in the outdoor play areas between the hours of 9.00 am and 9.30 am and may pack up equipment (and clean) in the outdoor play areas between the hours of 4.30 pm to 5.00 pm Monday to Friday;

4.5 All parents/guardians/carers will be constantly reminded by HCCC staff to have full and complete consideration of the residents in Milford Road when visiting the HCCC to ensure that any resident is not inconvenienced by any undue noise;

4.6 Appropriate signage (in accordance with any Council requirement) shall be erected within the perimeter of the HCCC to remind any person of the need to keep noise to an absolute minimum at all times;

4.7 HCCC staff will at all times supervise the use of the OPAs to ensure noise levels are maintained to comply with the recommendations set out in the Joint Acoustic Report prepared by Atkins Acoustics Pty Ltd and John Wassermann
[Exhibit ] dated 14 August 2009 and condition no. [insert] imposed on the Development Consent;

4.8 The windows and doors along the eastern and western elevations of the HCCC shall be kept closed during the hours of operation to ensure that any internal noise is minimised;

4.9 The disposal of waste and/or rubbish in the bin storage area shall be limited to
10.00 am to 4.00 pm on weekdays. HCCC staff will ensure that the disposal of recyclable glass and metal items shall not give rise to any undue noise to the neighbouring property at No.15 Milford Road;

4.10 HCCC staff shall not use any plant or equipment, other than equipment required to be installed by any law, regulation, consent or construction certificate, which is audible from the site boundary of the HCCC premises; and

4.11 All play equipment used in the OPAs shall be restricted to items that do not make any audible sounds (i.e. there shall be no use of audible toys, horns, whistles, bells or music devices or the like in the OPA's).

5 Complaints handling
5.1 All residents in Milford Road will be given the Directors' names, the telephone number and email address of the HCCC;

5.2 In the event that any resident in Milford Road makes a complaint or has a concern about any aspect of the operation of the HCCC, such a complaint or concern shall be registered by HCCC management and/or staff in a dedicated Complaints Log Book (Complaints Log Book);

5.3 Any complaints or concerns can be made orally and/or in writing or both;

5.4 Any complaint or concern will be investigated and responded to by HCCC management within five (5) working days and the person making the complaint or concern will receive a response letter or email within ten (10) working days detailing what action has been taken by HCCC to address the complaint or concern;

5.5 If any complaint or concern cannot be resolved by the HCCC management or staff to the satisfaction of the complainant, the matter can be escalated to an independent third party, such as the Council, for appropriate action; and

5.6 The Complaints Log Book will be made available to the Council for inspection upon request.

6 Evacuation & Emergency Procedures
6.1 Regular practice sessions as required by the NSW Department of Community Services or other authorised body will be held as required;

6.2 Residents within three (3) properties of either side and or the opposite side of the HCCC, will be informed of all planned practice sessions at least two (2) days prior to the session; and

6.3 As far as practicable disruption to neighbours and noise shall be minimised during these procedures.

7 Review of Plan of Management
7.1 The PoM shall be reviewed on an Annual Basis in consultation with the residents of Milford Road; and
7.2 All amendments incorporated into the PoM shall be notified to the residents in Milford Road and the Council.

8 Dictionary
Annual Basis
means every twelve (12) months from the date the occupation certificate is issued for the HCCC.

Complaints Log Book
means a dedicated log book or register kept and maintained by the management and staff of the HCCC to record any complaint or concern made by any resident in Milford Road about the operation of the HCCC.

Council
means the Sutherland Shire Council.

Development Consent
means Development Consent no. 07/1285 granted by the Land and Environment Court of NSW.

HCCC
means the Helwani Child Care Centre.

OPAs
(and/or OPA) mean(s) the Outdoor Play Areas on the southern (front) and northern (rear) sides of the HCCC as shown in Drawing No. 'Helwani Sec82A-01B'.

PoM
means the Plan of Management dated 14 August 2009 for the Helwani Child Care Centre (HCCC).

22/02/2011 - Third dot point at p 2 of 24 of Annexure B Conditions of Consent deleted by consent - Paragraph(s) Para 2

CITATION:	Aberline Associates Pty Ltd v Sutherland Shire Council [2009] NSWLEC 1335 This decision has been amended. Please see the end of the judgment for a list of the amendments.
PARTIES:	APPLICANT Aberline Associates Pty Ltd RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	10264 of 2009
CORAM:	Dixon C
KEY ISSUES:	DEVELOPMENT APPLICATION :- permissable use; streetscape; amenity; access; and parking
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sutherland Shire Development Control Plan 2006 Sutherland Shire Local Environmental Plan 2006
DATES OF HEARING:	18 September 2009
EX TEMPORE JUDGMENT DATE:	18 September 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr Paul Vergotis (solicitor) SOLICITOR DLA Phillips Fox RESPONDENT Ms Jane Hewitt (solicitor) SOLICITOR HWL Ebsworth Lawyers