Acre Woods Child Care - Roseville v Ku-ring-gai Council - [2005] NSWLEC 301

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Acre Woods Child Care - Roseville v Ku-ring-gai Council [2005] NSWLEC 301

PARTIES:
APPLICANT:
Acre Woods Child Care - Roseville
RESPONDENT:
Ku-ring-gai Council

FILE NUMBER(S):
10072 of 2005

CORAM:
Watts C at 1

KEY ISSUES:
Development Application :- Traffic and heritage

LEGISLATION CITED:
Ku-ring-gai Planning Scheme Ordinance 1971, (KPSO)

DATES OF HEARING: 30/05/2005, 31/05/2005 and 1/06/2005

DATE OF JUDGMENT:

06/09/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr I Hemmings, barrister, instructed by
Mr J Hones, solicitor
SOLICITORS:
Hones Lawyers
RESPONDENT:
Mr A Hudson, solicitor for the respondent
SOLICITORS:
Wilshire Webb

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

9 June 2005

10072 of 2005 - Acre Woods Child Care – Roseville v Ku-ring-gai Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Ku-ring-gai Council (the council) of a development application to alter and add to an existing heritage-listed dwelling and to operate as a ninety place, long-day care childcare centre at Lots 23, 24 and 28 of DP 9475, being No 81 Clanville Road, Roseville. The council under delegated authority on 11 March 2005 has formally refused the development application.

2 I visited the land in company with the parties on the morning of the first day of the hearing. Around eighty residents attended the site inspection and some gave evidence. Notes of this evidence were recorded and became Exhibits 1 and 2 .

3 I have concluded that the application should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979.

The site

4 The site is situated on the southern corner of the intersection of Clanville and Archbold Roads. The site is largely rectangular in plan with a northeastern boundary to Archbold Road of 62.31 metres; a south-eastern boundary with No 40 Archbold Road of 57 metres and the common boundary with No 79 Clanville Road and No 16 Cranbrook Avenue of 76 metres and an area of 2,991m2. The site is largely level but has a gentle fall to the eastern corner.

5 For convenience the parties agreed to nominate, as north, the Clanville Road frontage of the site. This is reflected in the architectural plans.

6 Erected on the site is an interwar brick and tile dwelling with a detached garage. The site including house, garden, specimen trees and the front fence is listed as a local heritage item.

7 Large single-storey and two-storey dwellings of a mix of architectural styles and designs are found in the vicinity of the site. The area has a strong landscape character due to the large size of the residential sites.

8 To the west, at No 79 Clanville Road there is a single-storey dwelling setback around 10.0 metres to its northern front boundary. The setback to its eastern boundary abutting the subject site is around 1.6 metres.

9 Abutting the south of the site at No 40 Archbold Road is a single-storey dwelling. No 16 Cranbrook Avenue abuts the southern boundary of the site.

10 The heritage-listed garden comprises an open grassed area studded with mature specimen trees and surrounded by a mixed shrub border along the boundaries. The existing trees include two (2) Phoenix canariensis (Date Palms), two (2) Syragus romanzoffianum (Cocos Palms) and a Magnolia grandiflora (Bull-bay Magnolia) all of which are considered by the council to be significant in the streetscape and the heritage value of the site. It is estimated that the palms and specimen trees are 70 to 80 years old. No indigenous tree species are present.

Relevant planning controls

Ku-ring-gai Planning Scheme Ordinance 1971, (KPSO)

11 Under the provisions of the KPSO (as amended) the site is zoned Residential 2(a), and the proposal is permissible with consent.

12 Other relevant planning controls applying to the site:

DCP 38 - Residential Design Manual

DCP 43 - Car Parking

DCP 40 - Construction and Demolition Waste Management

DCP 47 - Water Management

- Ku-ring-gai Council Policy on Child Care Centres

- Draft Development Control Plan - Child Care Centres

13 Development application No 1266/04 was lodged with the respondent council on 26 November 2004 to alter and add to an existing heritage-listed dwelling and to operate a ninety place long day care childcare centre. The applicant was Glendinning Minto and Associates and the owners were A R Hogg and T J Coster. The proposal is described in plans prepared by Curtin Bathgate & Somers Pty Limited, Architects, drawing Nos DA – 101, Issue 5; 102 and 103 Issue 4 in Exhibit K.

14 It is proposed to use the site as a long-day care centre for ninety, (90) children between the ages of 0 to 5 years; comprising 30 children from 0-2 years and 60 children from 3-5 years. The proposed hours of operation are 7.30am to 6.30pm Monday to Friday. Thirteen (13) staff will be employed at the centre.

15 The childcare use would occupy a floor area of around 240m2 within the existing building accommodating three (3) separate play rooms, two (2) cot rooms, a nappy change room, a meeting room, staff room, kitchen, laundry, staff toilets and some storage areas.

16 The new works would be located to the south of the existing dwelling separated by new access ramps measuring 2.5 metres wide would accommodate two (2) toddlers’ rooms, a pre-school room, three (3) store rooms, three (3) bathrooms and a garbage enclosure.

17 The front and rear walls of the existing garage would be demolished to give access to a seventeen (17) space car parking area to the south of the garage.

18 The existing driveway would be widened for two-way traffic. An outdoor play area of around 560m2 is proposed in the northeastern corner of the site. An elevated paved deck of around 100m2 is proposed abutting the new addition on Archbold Road.

19 The finished floor level of the proposed new works would be at RL 94.86m AHD about 1.8 metres above the footpath of Archbold Road. The ridge level of the new roof would be at RL 102.10m AHD or about 9 metres above the footpath of Archbold Road.

20 The setback to Archbold Road would be 3.5 metres and the setback to the southern boundary would vary from 2 metre to 3.3 metres.

21 On 8 December 2004 the applicant submitted shadow diagrams. On 21 December 2004 an amended statement of environmental effects was submitted. A licensing application with the Department of Community Services would be lodged only after development consent is granted.

Notification

22 The application was notified to nearby owners and occupants on 15 December 2004 and an advertisement was placed in the ‘North Shore Times’ inviting comments up to 14 January 2005. Due to a typographical error re-notification was required and this commenced on 16 December 2004. At the end of the notification period the council received two petitions with 325 and 79 signatures each. In addition Project Planning Associates lodged a submission and 72 individual letters of objections were received from:Appeal No: 10072 of 2005

19

ROSEVILLE
1.	P Coakes _	71 Clanville Rd
2.	ER & JL Temple	67 Clanville Rd
3.	PJ Van Gelder	75 Clanville Rd
4.	FO Archer	11 Clanville Rd
5.	H McHutchinson	_ 75 Clanville Rd
6.	B & HB Lamble _	62 Clanville Rd
7.	R Archer	11 Clanville Rd
8.	C Crouch	37 Clanville Rd
9.	N Lam	70 Clanville Rd
10.	A & K Fitzgerald	33 Clanville Rd
11.	G Johnson & G Morgan	70 Clanville Rd
12.	FP, CB & P O'Brien	50 Clanville Rd
13._	P Thompson	79 Clanville Rd
14.	J Dunn	53 Clanville Rd
15.	A & M Lawless	43 Clanville Rd
16.	GS Nagy	5 Clanville Rd
17.	J & G Browne	36 Clanville Rd
18.	M Willis	67a Clanville Rd
19.	R Grannall	67a Clanville Rd
20.	I Thompson	79 Clanville Rd
21.	PH & P Phillips	60 Clanville Rd
22.	S Gower	77 Clanville Rd
23.	G & B O'Neill	69 Clanville Rd
24.	A Pembroke	49 Clanville Rd
25.	P Selosse	44 Clanville Rd
26.	B & L Murphy	51 Clanville Rd
27.	VT & JL Morgan	64 Clanville Rd
28.	S Kincaid	61 Clanville Rd
29.	M Slattery	39 Clanville Rd
30.	P Smith	66 Clanville Rd
31.	P Smith & S Bodero	66 Clanville Rd
32.	J & M Mendelsohn	10 Clanville Rd
33.	L Barkl	57 Clanville Rd
34.	P Philips	59 Archbold Rd
35.	Frost Family	73 Archbold Rd
36.	JS Frost	73 Archbold Rd
37.	M & SK Ferris _	77 Archbold Rd
38.	Val Rogers	Archbold Rd
39._	Messrs Falconer	37 Dudley Ave
40.	J & P Pettit	26 Dudley Ave
41.	J Skellern	33 Dudley Ave
42.	BL Werth	27 Dudley Ave
43.	K & L Fleming	7 Dudley Ave
44.	SS Freeman	41 Dudley Ave
45.	K & D Geerin	6 Dudley Ave
46.	C Flint	16 Dudley Ave
47.	D & L Gibson	1a Woodlands Rd
48.	GW & IW Keep	4 Woodlands Rd
49.	M & BJ Clarebrough	20 Cranbrook Ave
50.	K Ash	7 Cranbrook Ave
51.	DC Ash	_ 7 Cranbrook Ave
52.	Messrs O'Connor	17 Cranbrook Ave
53.	P & K Flight	1 Cranbrook Ave
54.	F Seeley	12 Cranbrook Ave
55.	M Bluett	18 Cranbrook Ave
56.	Messrs Howarth	16 Mcleod Ave
57.	JT & SE Scott	20 Mcleod Ave
58.	PS Warren	9 Mcleod Ave
59.	J Rees	26 Roseville Ave
60.	WE Black	90 Roseville Ave
61.	R Tilden	23 Trafalgar Ave
62.	B Cotton	6 Gerald Ave
63.	H Carroll	24 Gerald Ave
64.	M Carroll	24 Gerald Ave
65.	JF Sundin	14 Clermiston Ave
66.	V Taylor	15 Clermiston Ave
67.	M Sundin	14 Clermiston Ave
68.	R Taylor	15 Clermiston Ave
69.	T Jelihovski	47 Earl St
LINDFIELD
70.	H Jerram	9 Keith St
71.	V Berry	16 Sydney St
72.	S Selosse	10 Middle Harbour Rd

The council’s decision
2 On 16 December 2004, the council requested written confirmation from the Department of Community Services of the council that the proposal would meet its licensing requirements.
3 The development application was referred to other departments of the council including:
· Landscape Development Officer;
· Development Engineer;
· Heritage Officer;
· Technical Services Department;
· Community Services Department; and
· Environmental Officer.

The hearing
4 The appeal was filed on 9 February 2005 on the basis of a deemed refusal of the development application. Since the appeal was filed, the council has formally refused the development application.
5 Court-appointed experts including Ms J Hill, heritage; Mr G Pindar, traffic; Mr T Machin, landscaping; and Mr B Murray, noise; gave evidence.
6 Mr N Child, the applicant’s consultant engineer, prepared an environmental assessment of air, soil quality and risk. Mr O Sannikov, the applicant’s traffic expert and Mr J Piccoli, the council’s Strategic Traffic Engineer, addressed traffic issues concurrently.
7 Ms J Grant, the applicant’s consultant town planner prepared a report dealing with issue 6 (b), (c), (d) and (h) below. She prepared a joint-report dated 26 May 2005, with the council’s early childhood expert, Ms L Schwartz.
8 Ms K Harrogon, the applicant’s consultant town planner, prepared a statement of environmental effects. She concluded that there would be no significant detrimental impacts to surrounding residents as a result of the proposal.
9 Ms C Swanepoel, Town Planner of Ku-ring-gai Council prepared the statement of basic facts dated 7 March 2005.

The issues
10 On 23 March 2005 the council filed a statement of issues:

1. Traffic

The site is not suitable for the development because of the health and safety impacts from the traffic in and around the site on the persons arriving, departing and using the childcare centre.

PARTICULARS

(a) Existing and increased (from the development) traffic conflicts in and around the intersection of Clanville Road and Archbold Road which will impact on the safety of the persons arriving to / departing from and using the childcare centre and on the current users of the intersection.

(b) Inappropriate parking arrangements (see issue 2 below).

(c) Health impacts from vehicle exhausts (in the air and soil) on the children and staff of the childcare centre.

(d) Excessive traffic noise impacts on the children and staff of the childcare centre.

Council's draft DCP for Childcare Centres - clause 2.1.2

The applicant has provided insufficient information to properly assess items (c) and (d). These matters may be addressed by the applicant submitting appropriate information and reports from suitably qualified experts.

2. Carparking and access

There is insufficient onsite parking proposed for the development and inadequate pedestrian and vehicular access to and from the site.

(a)

Eighteen (18) car spaces are provided on site which is five (5) less than the requirements of Council's DCP and the RTA Guidelines.

(b)

The shortfall of five (5) spaces onsite will be accommodated by on-street parking primarily in Clanville Road which will contribute to the traffic conflicts referred to in 1 above will lessen safety and will cause amenity (noise / blocked driveways) impacts on properties in the immediate vicinity where the on-street parking is likely to take place.

(c)

The dimensions of the set down and pick up car spaces (proposed 2.6m v required 2.7m) do not comply with DCP 43 and the aisle widths of the staff parking area (proposed 5.5m v required 5.8m) do not comply with DCP43 and AS2890.1.

(d)

The skewed alignment of the driveway crossing results in swept path conflicts with vehicles leaving the site if an 85% vehicle tries to enter the site simultaneously.

(e)

Vehicles parked on the southern side of Clanville Road would impact on site distances to the east for motorists exiting the development.

(f)

Occupation of the carparking space next to the gate accessing the verandah from the carpark could cause access difficulties to the childcare centre.

(g)

Separate pedestrian access point is required with a footpath connecting to the internal footpath network to avoid pedestrian and vehicle conflict (this could be conditioned).

Council's carparking code - DCP 43 and RTA "Guide to Traffic Generating Developments"

3. Heritage

The proposal will result in unacceptable and substantial adverse impacts on the existing dwelling house and garden, which are a heritage item listed in the Ku-ring-gai Planning Scheme Ordinance (KPSO).

PARTICULARS

(a)

The proposed modifications to the garden are inconsistent with the character of the existing heritage listed garden and will adversely impact on the heritage value of the garden and the house.

(b)

Significant trees in the garden (magnolia and date palm), will be adversely affected by the proposed outdoor play area.

(c)

The existing garage and laundry should be retained. The garage has original timber and glass doors and could be incorporated into the new facility as a gateway structure which would screen the carpark from the Clanville Road view.

(d)

The extent of vehicle accommodation, the widening of the cross over and demolition of the gates and posts diminishes the garden suburb setting and compromises the integrity of the heritage item.

(e)

The proposed new building should be set down lower with the linking structure to accommodate the changes in levels. This will reduce the new structures domination of the heritage item.

(f)

The existing red gravel driveway should be retained as it is the original surface and is a characteristic of the period (this could be conditioned).

(g)

The ramps at the eastern side are intrusive and too close to the eastern bay window of the house and should be redesigned (this could be conditioned).

KPSO Clause 61D(1) and (2)

4. Landscaping

The proposal is incompatible with and does not maintain the existing amenity and environmental character of residential zones.

PARTICULARS

(a)

There will be an unacceptable impact on existing trees due to the construction under the canopy spread and long term impacts due to the increased use of the garden (magnolia and date palm).

(b)

There is insufficient area provided for vegetation and landscape treatment within the side and rear setbacks, particularly because of the proposed rear addition carparking area which restricts the available area for soft landscaping.

(c)

There will be unacceptable visual amenity impacts to adjoining properties (Archbold Road and Clanville Road) as there is insufficient area proposed for softening vegetation to maintain the landscape character of the area.

(d)

The proposal will increase the built upon area of the site to more than 63% of the site, reducing the landscaped area to less than 40% of the site. Landscaped areas on residential properties in the area are generally far in excess of 40%.

KPSO Schedule 9 Clause 1(a), (b) and (2(c)

5. Design and Facilities

The proposal is poorly designed and does not provide adequate access for children between rooms and outdoor and indoor areas or adequate play areas. The proposal does not incorporate appropriate facilities for the proper supervision of children.

PARTICULARS

(a)

There is inadequate outdoor and indoor play space for the proposed number (90) of children.

(b)

There are a number of deficiencies in the design for access between rooms and facilities:

absence of a direct passage from all playrooms to cot rooms;

absence of a direct passage from all playrooms to the nappy change area;

absence of visual supervision of both cot rooms from all playrooms;

lack of direct access to all outdoor play areas from all playrooms;

lack of direct access to lower outdoor play area from toddler rooms 1 and 2, and the preschool room; and

access from the outdoor play area to the children's toilet inside is inappropriate and too long.

(c) There are a number of facilities, which are required but not provided for in the proposal:

no storage areas for children's lockers, children's shelving or bed storage areas;

no nappy change facilities including hand washing facilities for adults, storage for soiled nappies, storage of clean nappies, age appropriate washing facilities and sluice or contaminated waste disposal units;

no stove, microwave, sink, refrigerator, suitable disposal facilities or hot water supply are indicated;

plans do not specify the layout or the number of cots / beds;

no provision in any of the playrooms for craft preparation facilities or provision of a sink, bench top and lockable cupboard for craft activities;

no bottle preparation area is designated; and

no child proof gates, especially gates to the entrances or exits of the centre are indicated.

(d) The proposal has been designed for ninety (90) children which is excessive having regard to the residential zone and location next to an arterial road.

Children's Services Regulation 2004, Council's Policy on Child Care Centres 1988 and Council's Draft DCP for Child Care Centres.

6. Public Submissions

Objections raised by residents following Council's notification including:

(a)

Appropriateness of design for use as a childcare facility and need for relevant State Government Department to approve such design;

(b)

Additional traffic, parking and safety concerns, especially given the location on a dangerous intersection;

(c)

Impact on residential character of area due to commercial nature and design, including amount of built form ie overdevelopment;

(d)

Setbacks of development to boundaries is minimal;

(e)

Lack of vegetation proposed and removal of existing canopy trees;

(f)

Fumes and noise from passing traffic on Archbold Road and impact on children;

(g)

Acoustic impacts to surrounding residential properties;

(h)

Privacy and amenity.

The evidence and findings

Corner location
12 Ms Schwartz, who was the council’s early childcare expert, and who had prepared a joint report in Exhibit 9, with Ms Grant, consultant town planner, brought this issue into focus. She was of the opinion that:

…given the direct access problems combined with the active and very physical nature of toddler care, that such a large centre of 90 places is not ideal on this particular site with these plans. [A] smaller centre of around 50 places would put much less stress on staff and the quality of care would not be compromised to the extent that it [would with] a 90 place centre.

“…best practice for children’s development”

“…[fifty] 50 children are generally not encouraged”

“Planning the Location of Centre-based Early Childhood Services”

“…sites on main or arterial roads should not be approved”

“…centres may only be located on roads which carry fewer than 15,000 vehicles per day”

“I consider that the proposed site is suitable for such a development.”

The availability, accessibility and affordability of long day care for 0-5 year olds is an on-going issue in Ku-ring-gai. Services continue to experience lengthy waiting lists and parents looking for childcare places continue to express their frustration at not being able to find care within the Municipality.

Traffic and parking
27 According to Mr Pindar, Clanville Road is categorised as a local collector road operating well below its environmental maximum with a two-way weekday flow of around 1,811 vehicles per day, (veh/day) in 2003 between Gregory Street and Cranbrook Avenue.
28 Archbold Road is a subarterial road, classified as a secondary road, that carries around 30,000 veh/day. It is neither a main nor arterial road for the purposes of the Early Childhood Australia policy. However, Archbold Road is listed as being a heavily trafficked road in the council’s draft DCP Childcare Centres in Appendix 1 to Exhibit 16. No vehicular access to the site is proposed off Archbold Road.
29 Ms Schwartz identified road safety as a cause for concern, having regard for the potential conflict between pedestrians approaching the site from the west and the two-way traffic at the vehicular entrance to the site. Local residents also raised pedestrian and traffic conflict as a concern. I have had regard for the expert evidence of Mr Pindar the Court-appointed traffic expert.
30 Mr Pindar in Exhibit 6, estimated that with ninety (90) places provided in the centre for children there would be around 72 vehicle movements per hour, (veh/hr) in the morning and about 63 veh/hr in the evening. If the number of children in the centre were reduced to eighty-four (84) places the vehicle movements in and out of the site, in the morning and evening, would be less. He estimated that the vehicle arrival rate for 90-child centre would be one vehicle every 1.67 minutes (100 seconds) in the morning and one vehicle every 1.94 minutes (116 seconds) in the evening. Thus on average, there would be gaps between cars entering and leaving the site that would allow pedestrians to pass along the footpath to the pedestrian entrance in front of the centre.
31 Mr Pindar stated that this level of vehicle arrivals and departures was not significant, in traffic terms [Note: Exhibit 6 p 3], and he was not greatly concerned for pedestrian/vehicle conflict. He was more concerned that motorists dropping off children would be encouraged to park in the street and possibly cause additional traffic congestion, if the pedestrian entry to the site were located near on-street parking. He suggested that the pedestrian entry to the site be located as far east in Clanville Road as possible and near the no-standing area east of the traffic-calming device.
32 I am satisfied that, the concerns expressed by Ms Schwartz’ and the residents, may be slightly exaggerated and provided motorists and pedestrians exercise care any pedestrian/vehicle conflict would not be such as to warrant refusal of the application.
33 Residents also raised concern for the likelihood of rear-end accidents on Archbold Road which have occurred in the past.
34 Mr Pindar carefully examined the additional traffic likely to be generated by the proposal and whether this would be unreasonable in this corner location. He found that the addition of 36 veh/hr in the morning and 32 veh/hr in the evening generated by the proposal would result in flows in Clanville Road of about 216 veh/hr in the morning and 212 veh/hr in the evening. He concluded that: “…these [traffic flows would be] well below the environmental goal ‘threshold’ of 300veh/hr for a local collector road and are substantially below the environmental maximum of 500 veh/hr as set out in Table 4.6 of the RTA’s Guideline,” [Note: Exhibit 6 p 3]. He considered that one vehicle arrival every 2 minutes or so on average in the busiest times of the day would not be significant and would not create congestion. He considered the proposal to be a ‘low-order traffic generator’ and the impacts would be manageable and acceptable.
35 Mr Pindar did note that the intersection of Clanville and Archbold Roads could possibly deteriorate from a level of service of E to F at times of afternoon peak activity for vehicles turning right out of Clanville Road into Archbold Road. He was aware that motorists might use other routes and if that occurred the level of service might well be maintained or not fall as much. He concluded that while conditions could deteriorate slightly as a consequence of development, the extent of this deterioration would be moderate and the difficulties present at the intersection of Clanville and Archbold Roads would not be so problematic as to cause existing residents undue concern, [Note: Exhibit 6 p 4].
36 Mr Pindar reviewed the traffic accident data in Exhibit 6 Appendix 2 that reported 3.4 accidents per year for the intersection of Clanville and Archbold Roads and no reported accidents over the last eighteen months. He concluded that this is a moderate crash record and no road safety remedial measures need be implemented, for the development of the site, [Note: Exhibit 6 p 5], and traffic safety should not be used to prohibit this development.
37 He considered that the vehicular entry point being around 42m from Archbold Road, (39m to the eastern side of the driveway) would be greater than the minimum required distance of 6m from the tangent point at the intersection. It was submitted by Mr Hemmings that such a distance would allow the queuing of a single lane of six cars. Mr Pindar also proposed no standing east of the speed hump in Clanville Road and thus two lanes would be available for queuing. Such a queuing length should provide a haven for vehicles turning left out of Archbold Road into Clanville Road before the entry into the site and I would not refuse the application for reason of its impact on traffic flows in Clanville or Archbold Roads.
38 Mr Pindar was strongly opposed to parking more than three vehicles on-street. If that were the maximum number of cars on street, the total car parking for the development would be twenty-one (21) vehicles, made up of seventeen (17) in the rear car parking area, one at the set-down point in the driveway and three on-street. Applying the RTA Guidelines for car parking associated with childcare centres of one car for four children this amount of car parking would allow for an 84-child centre. The application is for 90-child centre. Thus the deficiency in car parking is two (2) vehicles rounded up from 1.5 vehicles.
39 There would be sufficient on-street car parking to allow two staff cars to be parked in the vicinity of the development on the northern side of Clanville Road. Three carer/parent on-street car parking spaces would be available near the centre on the southern side of Clanville Road. Mr Pindar concluded that “…moderate reliance on on-street parking will not create any problems …of congestion or blocked driveways, particularly in view of the efficient two-way driveway that is propose and especially if the one-way internal clock-wise flow system is implemented” as now proposed.
40 Condition 41 would limit the number of children to eighty-four (84). However, after the centre has been operating for one year, and sufficient time elapsed to assess the traffic impacts of the proposal, it might be appropriate to permit the sought-after complement of ninety (90) children and a s 96 modification application might be entertained by the council. The technical deficiency is but 1.5 spaces. I am satisfied that with eighty four (84) children at the centre the proposed car parking on-site and on-street would be acceptable and appropriate.
41 In order for vehicles being driven towards the west along Clanville Road to left-turn into the site it would be necessary to modify the traffic-calming device in Clanville Road in front of the site. The traffic experts agreed that this is physically possible and a plan in Exhibit L was prepared showing this. This plan indicates that the western side of the new traffic-calming device would be relocated about 1m to the east of the western edge of the existing traffic calming device. The swept path diagrams attached show that if the new traffic-calming device were to be so located, vehicles entering and leaving the site could do so safely.

Heritage
42 During the course of the hearing changes were made to the design of the new additions and Ms Hill the Court-appointed heritage expert informed the Court that the revised design addressed all her issues and is “…a major improvement” to the design. I am also satisfied that the heritage aspects of the proposal have been adequately addressed either by the amended plans or by conditions and heritage this would not be a reason for refusal of the application.
43 For the above reasons, the appeal is upheld.

Conditions
44 The conditions are those in Exhibit M as amended by those in Exhibit N and as filed electronically.
45 Under s 39 of the Land and Environment Court Act 1979, the Court has jurisdiction to approve works under the Main Roads Act 1993 for the construction of the traffic-calming device near the northern frontage of the site. In granting consent to the development application, consent is also granted to the construction of a new traffic-calming device as disclosed in Condition 105.
46 Agreement between the parties was reached in respect of the conditions, however, Conditions 67, 68 that relate to bonds on landscaping remained in dispute. Mr Hemmings on behalf of the applicant’s submitted that it is inappropriate to impose such a condition when the council has power to bring enforcement proceedings if the landscaping plan is not carried into effect. Mr Hudson relied on the fact that these are standard conditions imposed by the council in such circumstances as a means of ensuring compliance with the consent.
47 Where there is no objection taken by the applicant it is sometimes the case that the Court imposes such conditions. Where the applicant is opposed, and the plans are sufficiently comprehensive, as in the present case, these bond conditions are usually removed as going beyond what is anticipated under the scheme of the Environmental Planning and Assessment Act 1979. I am satisfied in the circumstances of this case that the Revision F landscaping plan in Exhibit J, are sufficiently comprehensive as to describe the proposed works within the garden areas of the site, such that the bond conditions are otiose. For that reason I have deleted Condition 67 and modified Condition 68 to delete reference to the bonds.

Orders
48 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.
2. Development application No 1266/04 lodged with the respondent council on 26 November 2004 to alter and add to an existing heritage-listed dwelling and to operate a ninety place long-day care childcare centre at Lots 23, 24 and 28 of DP 9475, being No 81 Clanville Road, Roseville, is approved subject to Conditions 1 to 105 in Annexure A.
3. The exhibits with the exception of Exhibits B, D, E, J, K, L, M, N, 1, 2 and 5 are returned.
4. There are no orders as to costs.
S J Watts
Commissioner of the Court
sw
Annexure A
Acre Woods Child Care – Roseville v Ku-ring-gai Council
Premises: 81 Clanville Road, Roseville
Development Application No: 1266/04
Proposal: Alterations and additions to a heritage item in order to operate a long day care centre

GENERAL CONDITIONS

1. The development to be in accordance with Development Application No 1266/04 and Architectural Plans prepared by Curtin Bathgate & Somers, reference number DA 101 – Rev 5, DA 102 – Rev 4 and DA 103 Rev 4, Stormwater Plans Sheet 1 Rev 0 and Sheet 2 Rev 1, and Landscape Plan prepared by Patio Landscape Architects dated 30.05.05 L01 Rev F, subject to any changes set out in these conditions.

2. Deleted.

3. The submission of the approved plans to Sydney Water, before any work is commenced to ensure that the proposed structure meets that Authority’s By-Laws. Failure to submit these plans before commencing work will render the owner liable to a penalty and may result in the demolition of work.

4. The approved building shall not be occupied unless the development has been completed in accordance with all conditions of consent and the approved plans and an Occupation Certificate has been issued.

5. The opening of any footway, roadway, road shoulder or any part of the road reserve shall not be carried out without a Road Opening Permit being obtained from the Council (upon payment of the required fee) beforehand.

6. For the purpose of ensuring the compliance with the terms of the approval, an approved copy of the plan and this Consent and Construction Certificate shall be kept on site at all times.

7. For the purpose of safety and amenity of the area, no building materials, plant or the like are to be stored on the road or footpath without the written approval being obtained from the Council beforehand. The pathway shall be kept in a clean, tidy and safe condition during building operations. Council reserves the right, without notice, to rectify any such breach and to charge the cost against the applicant/owner/builder, as the case may be.

8. HOURS OF WORK: For the purpose of residential amenity, noise generating work carried out in connection with building and construction operation, including deliveries of building materials and equipment, is restricted to the following hours: Mondays to Fridays inclusive: 7.00am to 5.30pm. Saturdays: 8.00am to 12.00 noon. Sundays and Public Holidays: Not Permitted. The use of the following items of plant on the site is also restricted to the abovementioned hours: compressors, bulldozers, power operated woodworking machines, excavators and loaders, jackhammers, Ramset guns, concrete mixers and concrete delivery wagons, hoists, winches, welding and riveting plant.

Whilst work on Saturdays may be performed until 5.30pm, such work or any associated activities shall not involve the use of any noise generating processes or equipment.

9. For the purpose of public safety, a sign shall be erected on the site prior to any work commencing which is clearly visible from a public place stating that unauthorised entry to the site is not permitted and showing the name of the builder or another person responsible for the site and a telephone number for contact outside working hours. The sign may only be removed on satisfactory completion of the works.

10. A sign shall be erected in a prominent position on the site, which states the name and contact details of the Principal Certifying Authority.

11. All excavations shall be properly guarded and protected with hoardings or fencing to prevent them from being dangerous to life and property.

12. Deleted.

13. Deleted.

14. 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. must preserve and protect the building from damage, and
b. if necessary, must underpin and support the building in an approved manner, and
c. 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.

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.

15. Toilet facilities are to be provided, within 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.

16. All noise generating equipment associated with any proposed mechanical ventilation system/s shall be located and/or soundproofed so the equipment is not audible within a habitable room in any other residential premises before 7am and after 10pm Monday to Friday and before 8am and after 10pm Saturday, Sunday and Public Holidays. Furthermore, the operation of the unit outside these restricted hours shall emit a noise level of not greater than 5dbA above the background when measure at the nearest adjoining boundary.

17. The fence and footings shall be constructed entirely within the boundaries of the property.

18. The demolition is to be carried out in accordance with the guidelines contained in Australian Standard 2601-1991: The Demolition of Structures.

19. Access to demolition sites shall be protected as directed by the Principal Certifying Authority by the use of suitable fences or hoardings.

20. Where a new development is not commencing immediately following demolition, the demolition shall be limited to the extent of the footprint of the building/s on the site and no excavation shall be carried out.

21. A person taking down or demolishing or causing to be taken down or demolished any building or part thereof shall, upon identifying or suspecting that asbestos is present in the building, immediately notify the Workcover Authority. The Authority is the controlling body for the safe removal, handling and disposal of asbestos. The Authority supervises and monitors contractors engaged in asbestos removal.

The requirements and standards imposed by the Authority, its consultants or contractors shall be complied with.

22. Erosion control measures shall be provided on demolition sites to prevent the siltation of watercourses and drainage systems.

23. Dust control measures shall be taken on all demolition sites so as to avoid a nuisance to adjoining properties and harm to the environment.

b. Such person shall not chute, throw or let fall or cause to chute, throw or let fall from the floor to floor or into any basement of such building any building materials or any other matter so as to cause dust to escape from the building or cause any such material to fall or cast upon a public way to the annoyance, inconvenience, or danger of persons using such public way.

24. A temporary construction exit and sediment trap to reduce the transport of sediment from the site onto public roads shall be provided before demolition commences.

25. Existing stormwater lines on the site are to be blocked and made inoperable after buildings are demolished so as to prevent the conveyance of silt or sediments into the gutter or street drainage system.

26. Materials salvaged from a demolition may be stored on site provided they are non combustible, neatly and safety stockpiled and not likely to become a harbourage for vermin.

27. Trees and vegetation on a site shall not be disturbed except in accordance with the approved landscape plan.

28. Adequate precautions shall be taken to ensure the protection of adjoining premises and persons therein from damage and injury during the process of demolition.

29. Buildings built prior to the 1970’s may contain lead based paint. Lead dust is a hazardous substance. You are advised to follow the attached WorkCover guidelines to prevent personal and environmental contamination.

30. The applicant or builder/developer is responsible for the cost of making good any damage that may be caused to any Council property as a result of work associated with the demolition.

31. Deleted.

32. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:

a. stating that unauthorised entry to the work site is prohibited, and
b. showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.

Any such sign is to be removed when the work has been completed.

This clause does not apply to:

a. building work carried out inside an existing building, or
b. building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

33. All demolition materials of value for re-use either on-site or elsewhere, shall be separated and made available for re-cycling.

34. For the purpose of health and amenity, effective measures are to be taken at all times to prevent any nuisance being caused by noise, vibrations smells, fumes, dust, smoke, waste water products and the like.

35. To prevent pollution, all vehicles making a delivery to or from the site are to be covered to prevent loose materials, dust etc falling from the vehicles.

36. Your attention is directed to the operation of the Commonwealth Disability Discrimination Act 1992 , which may impose greater obligations on providing access to disabled persons other than compliance with the Building Code of Australia. You are advised to seek advice from the Human Rights and Equal Opportunity Commission (phone (02) 9284 9600) in respect of your application.

37. Deleted.

38. No advertising signs are to be erected without the prior consent of Council.

39. All vehicles associated with or which service the premises are to carry out such activities from the rear of the property.

40. The development must be carried out in accordance with the Management Plan.
The hours of operation and management of the development is detailed further in the Management Plan, which is annexed and marked “ B ”.

Any amendments to the Management Plan require the consent of Council by a new Development Application or section 96-modification application.

41. The childcare centre is restricted to a maximum of eighty-four (84) children at any one time. An increase in child numbers is not permitted. The number of children in each age group permitted is as follows:
· Under 2 year old children - twenty-seven (27)
· 2 year to under 6 year old children - fifty-seven (57)

42. Outdoor play shall occur for a maximum cumulative 3 hours per day.

43. The windows on the eastern side of the childcare centre are to be kept closed at all times.

44. Noise levels from mechanical plant operation on the premises shall not exceed 50dBA when measured from any point on any neighbouring residential premises.

45. The fence on the eastern boundary to 79 Clanville Road will be reconstructed and replaced at the expense of the applicant by a masonry fence to a height as follows:

(a) From the street frontage for a distance of 2.5m: to a height of 1m above finished ground levels on No 81 Clanville Road;

(b) From a location 2.5m from the Clanville Road frontage, stepping up to a height of 2.1m above finished ground levels on No 81 Clanville Road at an angle of approximately 45 degrees; and

(c) For the balance of the boundary: for a height of 2.1m above finished ground levels on No 81 Clanville Road.

(d) The fence is to be bagged or plastered and to be a colour agreed to by the owners of No 79 Clanville Road. That agreement is not to be unreasonably withheld. In the absence of agreement within 21 days of written request by the developer the owner’s agreement shall not be required by this condition.

(e) Full details of all the fencing (including the agreement with the owner referred to in (e) above) to be submitted to the certifying authority prior to the issue of the construction certificate.

(f) The fence is to be constructed prior to excavation, demolition or building works being carried out under this consent.

46. A 1.2m (above terrace floor) glass balustrade shall be erected on the eastern boundary edge of the proposed outdoor terrace extending from the proposed store in the south to the proposed new steps in the east. No gaps shall be allowed in the balustrade construction, including under the glass panels.

47. A Tree Preservation Order exists within the Ku-ring-gai Council area whereby the removal, lopping or destruction of any tree exceeding 5.0 metres in height or 4.0 metres in canopy spread (except where exempt as defined under Council’s Tree Preservation Order) without prior written consent of Council is prohibited.

Release of the Construction Certificate gives automatic approval to the removal ONLY of those trees located on the subject property within the footprint of a proposed new building/structure or within 3.0 metres of a proposed new dwelling or where otherwise shown for removal from, or relocation within, the subject site on the approved development application plans (and as amended by any condition of consent). Where this application is for a building/structure other than a dwelling then ONLY trees within the area to be occupied by this building/structure may be removed. Other trees SHALL NOT be REMOVED or DAMAGED without an application being made under Council’s Tree Preservation Order.

48. The applicant shall ensure that at all times during the construction period no activities, storage or disposal of materials shall take place beneath the canopy of any tree protected under Council's Tree Preservation Order, except those works / activities approved by this consent.

49. Stormwater runoff from all new impervious areas and subsoil drainage systems must be piped to the street drainage system. New drainage line connections to the street drainage system must conform and comply with the requirements described in sections 5.3 and 5.4 of Ku-ring-gai Council Water Management Development Control Plan 47. The Applicants attention is directed to the requirements for obtaining a Road Opening Permit for excavating in the road reserve.

50. A mandatory rainwater retention and re-use system comprising storage tanks and ancillary plumbing must be provided for the development. The (minimum) total storage volume of the rainwater tank system, and the prescribed re-use of the water on site, must satisfy all relevant BASIX commitments and the requirements specified in chapter 6 of Ku-ring-gai Council Water Management Development Control Plan 47 (DCP47).

51. To control surface runoff all new exposed impervious areas graded towards adjacent property and/or habitable areas are to be drained via the main drainage system. This may require the installation of suitable inlets pits, cut-off structures (e.g. kerb), and/or barriers that direct such runoff to the formal drainage system. Details for such measures shall be shown on the approved Construction Certificate issue drawings, to the satisfaction of the Principal Certifying Authority.

52. During construction, stormwater runoff must be disposed in a controlled manner that is compatible with the erosion and sediment controls on the site. Immediately upon completion of any impervious areas on the site (including roofs, driveways, paving) and where the final drainage system is incomplete, the necessary temporary drainage systems must be installed to manage and control runoff as far as the approved point of stormwater discharge. Such measures shall be to the satisfaction of the Principal Certifying Authority.

53. Where required, the adjustment or inclusion of any new utility service facilities must be carried out by the applicant and in accordance with the requirements of the relevant utility authority. These works shall be at no cost to Council. It is the Applicants full responsibility to make contact with the relevant utility authorities to ascertain the impacts of the proposal upon utility services at the appropriate stage of the development (including water, phone, gas and the like). Council accepts no responsibility whatsoever for any matter arising from its approval of this application involving any influence upon utility services provided by another authority.

54. All public footways and roadways fronting and adjacent to the site must be maintained in a safe condition at all times during the course of the development works. Construction materials and plant must not be stored in the road reserve. A safe pedestrian circulation route and a pavement/route free of trip hazards must be maintained at all times on or adjacent to any public access ways fronting the construction site. Where public infrastructure is damaged, repair works must be carried out when and as directed by Council officers. Where pedestrian circulation is diverted on to the roadway or verge areas, clear directional signage and protective barricades must be installed in accordance with AS1742-3 (1996) “Traffic Control Devices for Work on Roads” . If pedestrian circulation is not satisfactorily maintained across the site frontage, and action is not taken promptly to rectify the defects, Council may undertake proceedings to stop work.

55. The provision of temporary sediment and erosion control facilities and measures must be installed, prior to the commencement of any works on the site to eliminate unnecessary erosion and loss of sediment. These facilities must be maintained in working order during construction works up to completion. All sediment traps must be cleared on a regular basis and after each major storm, and/or as directed by the Principal Certifying Authority and Council officers.

56. (a) Driveways and vehicular access ramps must be designed not to scrape the underside of cars. The proposed vehicle access and accommodation arrangements including the car park must be designed and constructed to comply with the minimum requirements of Australian Standard 2890.1 (2004) “Off-Street car parking”, subject to part (b) and (c) of this condition.

(b) The design of the carpark must incorporate the drainage cells and details as shown in Annexure “ C ” to this consent, in the locations shown on the landscape plan as “Suspended Concrete Slab over Soft Landscaping”.

(c) The northern façade, western wall, eastern wall for a length of 500mm (from the north east corner of the garage) and roof of the existing garage on the driveway is to be retained and modified as follows:

(i) the driveway width at the northern opening of the garage between the internal face of the external walls must be no less than 5200mm;

(ii) the supporting columns for the garage must be marked with chevrons to a height of 1m above the finished level of the driveway;

(iii) the eastern wall of the garage is to be demolished;

(iv) the garage must have an internal head height of not less than 2.1m;

(v) the head height must be shown on a sign;

(vi) a 150mm wide and high kerb must be installed on the approach to and within the garage to keep vehicles from the internal faces of the garage opening.

Final engineering details for (a), (b) and (c) above are to be submitted to the Principal Certifying Authority prior to the release of the Construction Certificate.

CONDITIONS TO BE COMPLIED WITH PRIOR TO THE ISSUE OF THE CONSTRUCTION CERTIFICATE

57. The Long Service Levy is to be paid to Council in accordance with the provisions of Section 34 of the Building and Construction Industry Payments Act 1986 prior to the issue of the Construction Certificate.

Note: Required if cost of works exceed $25,000.00.

58. The Infrastructure Restorations Fee calculated in accordance with the Council's adopted schedule of Fees and Charges is to be paid to the Council prior to any earthworks or construction commencing. The applicant or builder/developer will be held responsible for and liable for the cost any damage caused to any Council property or for the removal of any waste bin, building materials, sediment, silt, or any other article as a consequence of doing or not doing anything to which this consent relates. "Council Property" includes footway, footpath paving, kerbing, guttering, crossings, street furniture, seats, litter bins, trees, shrubs, lawns mounds, bushland, and similar structures or features on road reserves or any adjacent public place. Council will undertake minor restoration work as a consequence of the work at this site in consideration of the "Infrastructure Restorations Fee" lodged with the Council prior to the release of the Construction Certificate. This undertaking by the Council does not absolve the applicant or Builder/developer of responsibility for ensuring that work or activity at this site does not jeopardise the safety or public using adjacent public areas or of making good or maintaining "Council property" (as defined) during the course of this project.

59. The following are required details and must be submitted to the Principal Certifying Authority prior to issue of the Construction Certificate. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify.

a. Details prepared by a practicing structural engineer for all or any reinforced concrete, structural steel or timber framing.
b. Wind bracing details complying with AS 1684-1992 National Timber Framing Code, AS 1170.2-1989 Wind Load Code or AS 4055-1992 Wind Loads for Housing Code.
c. Retaining walls and associated drainage.
d. Wet area waterproofing details complying with the Building Code of Australia.

e. Mechanical ventilation details complying with Australian Standard 1668-1993 Mechanical Ventilation & Air conditioning.
f. Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code.
g. Stormwater disposal details complying with Council's Stormwater Management Manual and/or other conditions of this consent.

59a. Deleted

60. Deleted

61. To preserve the following trees additional details regarding the proposed deck are to be provided in accordance with the following specifications. The amended plans shall be submitted to the Principal Certifying Authority for approval with a copy to Council, prior to the release of the Construction Certificate.

· The proposed deck shall be designed in consultation with Kidsafe of NSW Inc, Playground Advisory Unit.
· The proposed deck shall not be constructed with CCA timber.
· the proposed timber deck shall be a minimum of 350mm above natural ground level to maintain uninterrupted passage of surface water under the deck as beams or joists may limit infiltration.
· The materials used to construct the deck shall be non-toxic and coated with a mould/moisture resistant sealer. Only biodegradable non-toxic, environmentally friendly products are to be utilised.
· Decking boards shall be spaced to allow water penetration. Consideration shall be given to foot and hand entrapment.
· A drip feed irrigation system shall be installed under the deck and maintained in good working order.
· 100mm of organic mulch shall be placed beneath the deck.
· An anti compaction device shall be installed to prevent compaction alongside the deck in lawn areas to the recommended Tree Protection Zone (“TPZ”) of 6.5 metres radius from the trunk of the tree.
· On the western side of the tree up to the drip line of the tree, porous artificial grass is to replace the lawn / turf.

Magnolia grandiflora

62. To preserve the following tree/s, footings of the proposed timber deck shall be isolated pier or pier and beam construction within the specified radius of the trunk/s. The piers shall be located such that no roots of a diameter greater than 50mm shall be severed or injured in the process of any site works during the construction period. The beam shall be located on or above existing soil levels.

The location and details of the footings shall be submitted to Council’s Landscape Development Officer and be approved prior to release of the Construction Certificate.

Tree/Location Radius in Metres

Magnolia grandiflora (Bull-bay Magnolia) 5 metres
/ Forward of dwelling

63. To preserve the following trees the proposed stormwater trench between Pits 1 & 5, 1 & 2, 2 & 3 shall be hand dug. No roots greater than 50mm in diameter shall be injured or severed during construction works within the specified distance.

Amended hydraulic plans indicating the tree protection works shall be submitted to the Principle Certifying Authority for approval prior to the release of the Construction Certificate.

Tree/Location
Magnolia grandiflora (Bull-bay Magnolia)
/ Forward of dwelling

2 x Jacaranda mimosifolia (Jacaranda)
/ Front boundary

Lophostemon confertus (Brushbox)
/ Nature strip near driveway entrance

64. The landscape plan shall be amended to replace the proposed Christmas Bushes with trees that will attain 13m. On the south west boundary 2 additional deciduous trees shall be planted. The plan must be submitted to Council prior to the release of the Construction Certificate and be approved by Council’s Landscape Development Officer prior to the commencement of works.

65. Deleted.

66. The trees to be planted shall be maintained in a healthy and vigorous condition until they attain a height of 5.0 metres whereby they will be protected by Council’s Tree Preservation Order. Any of the trees found faulty, damaged, dying or dead shall be replaced with the same species.

66a Deleted.

67. Deleted.

68. The applicant is required to maintain the specified trees below.

Enforcement action will be taken by the Council under the Environmental Planning and Assessment Act 1979 , should any of the specified trees be found damaged, dying or dead as a result of any negligence by the applicant or its agent, or as a result of the construction works at any time during the construction period.

Tree/Location
Magnolia grandiflora (Bull-bay Magnolia) / Forward of dwelling

2 x Phoenix canariensis (Canary Island Palm) / Forward of dwelling

2 x Syragus romanzoffianum (Cocos Palm) / Forward of dwelling

Jacaranda mimosifolia (Jacaranda) / Southern boundary near south western corner

Jacaranda mimosifolia (Jacaranda) / Eastern boundary, adjacent to proposed ramp

69. The applicant shall ensure that no underground services (ie water, sewerage, drainage and gas) shall be laid beneath the canopy of any tree protected under Council’s Tree Preservation Order, located on the subject allotment and adjoining allotments.

A plan detailing the routes of these services shall be submitted to the Principal Certifying Authority for approval prior to the release of the Construction Certificate.

70. Prior to issue of the Construction Certificate, driveway and associated footpath levels for any fully new, reconstructed or extended sections of driveway crossings between the property boundary and road alignment must be obtained from Ku-ring-gai Council. Such levels are only able to be issued by Council under the Roads Act 1993 . All footpath crossings, laybacks and driveways are to be constructed according to Council's specifications "Construction of Gutter Crossings and Footpath Crossings" or as specified by Council. Specifications are issued with alignment levels after completing the necessary application form at Customer Services and payment of the assessment fee. When completing the request for driveway levels application from Council, the applicant must attach a copy of the relevant Development Application drawing which indicates the position and proposed level of the proposed driveway at the boundary alignment. Failure to submit this information may delay processing.

71. Deleted.

72. Prior to issue of the Construction Certificate and prior to commencement of any works that may be subject to erosion, the applicant must submit, for approval by the Principal Certifying Authority, a Soil and Erosion Control Plan prepared in accordance with the Landcom document “ Managing Urban Stormwater – Soils and Construction, Volume 1” (2004) . A qualified and experienced civil/environmental engineer shall prepare this plan in accordance with the above guidelines and section 8.2.1 of Councils Water Management Development Control Plan 47.

73. Prior to issue of the Construction Certificate the applicant must submit, for approval by the Principal Certifying Authority, scale construction plans and specifications in relation to the stormwater management and disposal system for the development. The plan(s) must include the following detail:

- Exact location and reduced level of discharge point to the public drainage system.
- Full layout of the property drainage system components, including but not limited to (as required) gutters, downpipes, spreaders, pits, swales, kerbs, cut-off and intercepting drainage structures, subsoil drainage, flushing facilities and all ancillary stormwater plumbing - all designed for a 235mm/hour rainfall intensity for a duration of five (5) minutes (1:50 year storm recurrence).
- Location(s), dimensions and specifications for the required rainwater storage and reuse tanks and systems. Where proprietary products are to be used, manufacturer specifications or equivalent shall be provided.
- Specifications for reticulated pumping facilities (including pump type and manufacturer specifications) and ancillary plumbing to fully utilise rainwater in accordance with the Ku-ring-gai Council Development Control Plan 47.
- Details of any required on-site detention facilities required under Ku-ring-gai Council Water Management DCP 47 including dimensions, materials, locations, orifice and discharge control pit details as required (refer chapter 6 and appendices 2, 3 and 5 of DCP 47 for volume, PSD and design requirements).

The above construction drawings and specifications are to be prepared by a qualified and experienced civil/hydraulic engineer in accordance with Councils Water Management Development Control Plan 47, Australian Standards 3500.2 and 3500.3 - Plumbing and Drainage Code and the BCA. The plans may be generally based on the Stormwater Management Concept Plan prepared by AFCE, sheets 1 and 2 of Project 352540, revision A, dated November 2004 submitted for Development Application approval, which are to be advanced as necessary for construction issue purposes.

74. Prior to issue of the Construction Certificate the applicant must make contact with all relevant utility providers whose services will be impacted upon by the approved development. A written copy of the requirements of each provider, as determined necessary by the Principal Certifying Authority, must be obtained. All utility services or appropriate conduits for the same, including electricity, gas, telephone, water and sewerage must be provided by the developer in accordance with the specifications of those supply authorities.

74A. Final design details for the front pergola agreed to by a heritage consultant are to be submitted to the certifying authority prior to the release of the construction certificate.

74B. Details of proposed lighting onsite is to be submitted prior to the issue of the construction certificate.

(a) Lighting in the carpark area shall incorporate appropriate shielding to prevent light spill into neighbouring properties;

(b) All external lighting in the carpark areas shall be turned off by 8pm; and

(c) Lighting structures along the driveway shall be no more than 1 metre in height.

74C. All plans, specifications and details for the reconstruction of the traffic calming device referred to in condition 105 to be submitted for approval prior to the issue of the Construction Certificate.

CONDITIONS TO BE COMPLIED WITH PRIOR TO WORK COMMENCING

75. Prior to the commencement of any work, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder who intends to carry out the approved works.

76. Prior to commencing any construction or subdivision work, the following provisions of the Environmental Planning & Assessment Act 1979 (the 'Act') are to be complied with:

a. A Construction Certificate is to be obtained in accordance with Section 81A(2)(a) of the Act.
b. A Principal Certifying Authority is to be appointed and Council is to be notified of the appointment in accordance with Section 81A(2)(b) of the Act.
c. Council is to be notified in writing, at least two (2) days prior to the intention of commencing buildings works, in accordance with Section 81A(2)(c) of the Act.
d. Should the development be certified by a Principal Certifying Authority other than Council, a fee for each Part 4A Certificate is to be paid to Council on lodgement of those Certificates with Council.

77. A schedule of external finishes is to be submitted to and approved by the Council prior to the commencement of work.

78. External finishes and colours are to be sympathetic to the surrounding environment. Samples of materials and finishes are to be submitted to and approved by Council prior to the commencement of work.

79. Details of the colour, finish and substance of all external materials are to be submitted to Council for approval prior to commencement of work. New materials shall match existing as closely as possible but shall be discernible from original work. Samples of all external materials, finishes and colours to be submitted for approval by the Principal Certifying Authority prior to the commencement of work.

80. A simple photographic record of the affected parts of the heritage item (the structures (house, garage, fence and gates etc. and the garden) are to be submitted to Council prior to the commencement of work. Recording shall be undertaken in accordance with the Guidelines for Photographic Recording of Heritage Sites, Building and Structures prepared by the New South Wales Heritage Office.

Information shall be bound in an A4 report format. It shall include copies of black and white photographs, referenced to plans of the affected property. Two (2) copies (one (1) copy to include negatives of photographs and an electronic copy in CD format) shall be submitted to Council's Department of Environmental and Regulatory Services, to be held in the Local Studies Collection of Ku-ring-gai Library.

80A. The doors to the garage are to be retained and maintained on site for further possible re-use.

81. To preserve the following tree/s, no work shall commence until the trunk/s are protected by the placement of 2.0 metre lengths of 50 x 100mm hardwood timbers spaced at 150mm centres and secured by 2mm wire at 300mm spacings. The trunk protection shall be maintained intact until the completion of all work on site. Any damage to the tree/s shall be treated immediately by an experienced Horticulturist/Arborist, with minimum qualification of Horticulture Certificate or Tree Surgery Certificate and a report detailing the works carried out shall be submitted to the Principal Certifying Authority:

Tree/Location
Jacaranda mimosifolia (Jacaranda)
/ Southern boundary near south western corner

82. To preserve the following tree/s, no work other than works approved by this consent, shall commence until the area beneath the canopy of the following tree/s is fenced off at the specified radius from the trunk to prevent any activities, storage or the disposal of materials within the fenced area. The fence/s shall be maintained intact until the completion of all demolition/building work on site.

Tree/Location Radius in Metres

Magnolia grandiflora (Bull-bay Magnolia) 5 metres
/ Forward of dwelling

1 x Phoenix canariensis (Canary Island Palm) 4 metres
/ Forward of dwelling

1 x Syragus romanzoffianum (Cocos Palm) 2 metres
/ Forward of dwelling

2 x Jacaranda mimosifolia (Jacaranda) 2 metres
/ Eastern boundary

2 x Jacaranda mimosifolia (Jacaranda) 3 metres
/ Northern boundary

Arbutus unedo (Irish Strawberry Tree) 3 metres
South eastern corner

83. The tree protection fence shall be constructed of galvanised pipe at 2.4 metre spacings and connected by securely attached chain mesh fencing to a minimum height of 1.8 metres prior to work commencing.

84. Upon completion of the installation of the required tree protection measures you are required to contact Council on telephone 9424 0888 or facsimile 9418 1117 to arrange an inspection of the site, in this regard a minimum of 24 hours notice is required. Following the carrying out of a satisfactory inspection and subject to the payment of all relevant monies and compliance with any other conditions of approval, work may commence.

84A. (a) A dilapidation report (at the cost of the applicant) is to be prepared by a practising structural engineer (as agreed by the owners of number 79 Clanville Road) and shall be submitted to the Principal Certifying Authority prior to the commencement of demolition, excavation or building works detailing the current condition and status of the dwelling and ancillary structures located on the adjoining property number 79 Clanville Road;

(b) A copy of the report is to be provided to the owners of number 79 Clanville Road; and

(c) The agreement in clause (a) is not to be unreasonably withheld. In the absence of agreement within 21 days of written request by the developer the owner’s agreement to the structural engineer shall not be required by this condition.

CONDITIONS TO BE COMPLIED WITH PRIOR TO OCCUPATION

85. Prior to the release of any occupation certificate, a compliance certificate must be obtained from an accredited certifier, certifying that the building works for the building to be occupied comply with the plans and specifications approved by this development consent; and any construction certificate associated with this consent for the buildings to be occupied. If the PCA is not the Council, then this compliance certificate must be submitted to the Council at the same time as the occupation certificate is submitted to the Council in accordance with Clause 151(2) of the E P & A Act regulations.

86. Deleted.

87. To ensure compliance with this determination the building shall be set out by a Registered Surveyor and the Survey Report shall be lodged with the Principal Certifying Authority prior to the external wall construction proceeding above floor level.

88. To ensure compliance with this determination a Registered Surveyor's Report confirming reduced levels as shown on the approved plans with particular regard to the future finished level of the ground floor shall be submitted to the Principal Certifying Authority on completion of that floor.

89. Except as otherwise specified on the approved plans (and as amended by these conditions), for the purpose of safety and convenience a balustrade of 1.0 metre minimum height shall be provided to any landing, verandah, balcony or stairway of a height exceeding 1.0 metre above finished ground level. Where the design consists of vertical or horizontal bars, it shall not have any opening exceeding 125mm. For floors more than 4.0 metres above the ground, any horizontal elements within the balustrade or other barrier between 150mm and 760mm above the floor must not facilitate climbing.

90. For the purpose of safe ingress and egress the stairs are to be constructed within the following dimensions:

Risers: Maximum 190mm Minimum 115mm
Going (Treads): Maximum 355mm Minimum 240mm

Note: Dimensions must also comply with limitations of two (2) Risers and one (1) going equalling a maximum 700mm or minimum 550mm. The Risers and Goings shall be uniform throughout the length of the stairway.

91. The landscape works shall be completed prior to release of the Certificate of Occupation and maintained in a satisfactory condition at all times.

92. On completion of the LANDSCAPE WORKS/TREE PLANTING OR SCREEN PLANTING, a Landscape Architect or qualified Landscape Designer shall submit a report certifying correct installation, faithful to the landscape plan to the Principal Certifying Authority with a copy to Council, prior to issue of the Occupation Certificate.

92a Deleted.

93. Prior to issue of the Occupation Certificate, the Principal Certifying Authority (where not Council) must provide Ku-ring-gai Council with a signed declaration that the following works in the road reserve have been completed in full:

- New concrete driveway crossing in accordance with levels and specifications issued by Council.
- Removal of all redundant driveway crossings and kerb laybacks (or sections thereof) and reinstatement of these areas to footpath, turfed verge and upright kerb and gutter. (Reinstatement works to match surrounding adjacent infrastructure with respect to integration of levels and materials).
- Full repair and resealing of any road surface damaged during construction.
- Full replacement of damaged sections of grass verge with a non-friable turf of native variety to match existing.

All works must be completed in accordance with the General Specification for the Construction of Road and Drainage Works in Ku-ring-gai Council , dated November 2004. The Occupation Certificate must not be issued until all damaged public infrastructure caused as a result of construction works on the subject site (including damage caused by, but not limited to, delivery vehicles, waste collection, contractors, sub contractors, concrete vehicles) is fully repaired to the satisfaction of Council. Repair works shall be at no cost to Council.

94. Prior to issue of an Occupation Certificate the applicant must submit certification from a suitably qualified and experienced traffic/civil engineer to the Principal Certifying Authority that the works comply with the requirements of this consent.

95. Prior to issue of the Occupation Certificate the applicant must create a Positive Covenant and Restriction on the Use of Land under Section 88E of the Conveyancing Act 1919, burdening the property with the requirement to maintain the site stormwater retention and re-use facilities on the property. The terms of the instruments are to be generally in accordance with the Council's "draft terms of Section 88B instruments for protection of retention and re-use facilities" (refer to appendices of Ku-ring-gai Council Water Management DCP 47) and to the satisfaction of Council. For existing Titles, the Positive Covenant and the Restriction on the use of Land is to be created through an application to the Land Titles Office in the form of a request using forms 13PC and 13RPA. The relative location of the reuse and retention facility, in relation to the building footprint, must be shown on a scale sketch, attached as an annexure to the request forms. Registered title documents showing the covenants and restrictions must be submitted and approved by the Principal Certifying Authority prior to issue of an Occupation Certificate.

96. Prior to issue of the Occupation Certificate the following must be provided to Council (attention Development Engineer):

a) A copy of the approved Construction Certificate stormwater detention/retention design for the site, and
b) A copy of any works-as-executed drawings required under this consent
c) The Engineer’s certification of the as-built system.

This condition is required so Council may maintain its database of as-constructed on-site stormwater detention systems, and applies particularly where the appointed Principal Certifying Authority (PCA) is not Ku-ring-gai Council.

97. Prior to issue of the Occupation Certificate a qualified and experienced consulting civil/hydraulic engineer must undertake a site inspection of the completed stormwater drainage and management system. The engineer is to provide written certification based on the site inspection to the Principal Certifying Authority, prior to issue of the Occupation Certificate, which makes specific reference to all of the following:

a) That the stormwater drainage works have been satisfactorily completed in accordance with the approved Construction Certificate drainage plans.
b) That the minimum retention and on-site detention storage volume requirements of Ku-ring-gai Council Water Management DCP 47 respectively, have been achieved in full.
c) That retained water is connected and available for uses including irrigation, toilet flushing and cold laundry.
d) That all pit grates potentially accessible by children are secured.
e) That components of the new drainage system have been installed by a licensed plumbing contractor in accordance with the Plumbing and Drainage code AS3500.3 2003 and the BCA, and
f) All enclosed floor areas, including habitable and garage floor levels, are safeguarded from outside stormwater runoff ingress by suitable differences in finished levels, gradings and provision of stormwater collection devices.

The following certification sheets must be accurately completed and attached to the certification:

- Rainwater retention certification sheet contained at appendix 13 of Water Management DCP 47
- On-site detention certification sheet contained at appendix 4 of Water Management DCP 47 (as necessary).

98. Prior to issue of the Occupation Certificate a registered surveyor or hydraulic engineer must provide a Works-as-Executed (WAE) plan of the completed stormwater drainage and management systems. The WAE plan(s) must be submitted to the Principal Certifying Authority for approval prior to issue of the Occupation Certificate. The WAE plan must indicate:

- As built (reduced) surface and invert levels for all drainage pits.
- Gradients of drainage lines, materials and dimensions.
- As built (reduced) level(s) at the approved point of discharge to the public drainage system.
- As built location and internal dimensions of all detention and retention structures on the property (in plan view) and horizontal distances to nearest adjacent boundaries and structures on site.
- The achieved storage volumes of the installed retention and detention storages and derivative calculations.
- As built locations of all access pits and grates in the detention and retention system(s), including dimensions.
- The size of the orifice or control fitted to any on-site detention system.
- Dimensions of the discharge control pit and access grates.
- The maximum depth of storage possible over the outlet control.
- Top water levels of storage areas and indicative RL’s through the overland flow path in the event of blockage of the on-site detention system.

The WAE plan(s) must show the as-built details above in comparison to those shown on the drainage plans approved with the Construction Certificate prior to commencement orf works. All relevant levels and details indicated must be marked in red on a copy of the Principal Certifying Authority stamped construction certificate stormwater plans.

BUILDING CONDITIONS

99. For fire safety an automatic fire detection and alarm system shall be installed throughout the dwelling in accordance with the following requirements:

To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority.

100. Termite protection which will provide whole of building protection in accordance with Australian Standard 3660 - "Protection of Buildings from Subterranean Termites" is to be provided .

Council has a non-chemical policy for termite control but will consider proposals involving physical barriers in combination with approved chemical systems. Hand spraying is prohibited.

Where a monolithic slab is used as part of a termite barrier system, the slab shall be constructed in accordance with Australian Standard 2870.1 or as designed by a structural engineer but in either case shall be vibrated to achieve maximum compaction.

To ensure compliance with this condition, a Compliance Certificate or documentary evidence from a suitably qualified person is to be submitted to the Principal Certifying Authority prior to the issue of an Occupation Certificate.

101. The following are required details and must be submitted to the Council on completion of the works. Any matter listed below must have a Certificate attached from a suitably qualified person to the effect that the design or matter complies with the relevant design Standard or Code which the Certificate must identify.

a. Wet area waterproofing details complying with the Building Code of Australia.
b. Mechanical ventilation details complying with Australian Standard 1684 Mechanical Ventilation & Air conditioning.
c. Glazing details complying with AS 1288-1989 Glass in Buildings and Installation Code.
d. Stormwater disposal details complying with Council's Stormwater Management Manual and/or other conditions of this consent.
e. A Compliance Certificate from a suitably qualified person that the Child Care Centre complies with the relevant deemed to satisfy provisions of the Building Code of Australia.
f. Waterproofing of walls/floors below ground level to prevent the entry of water into the building.

102. The pitched roof to the proposed new structure shall incorporate Marseille pattern roof tiles to match those on the existing dwelling.

103. Six on site car parking spaces are to be provided for staff. Those spaces are to be permanently marked as staff spaces.

104. No stopping signs are to be erected (in consultation with Council) between the Archbold Road/Clanville Road intersection and the driveway to 81 Clanville Road on the Southern side of Clanville Road and between the Archbold Road/Clanville Road intersection on the eastern side of 66 Clanville Road and on the northern side of Clanville Road.

105. Approval is granted under the Roads Act 1993 for the reconstruction of the traffic-calming device located in Clanville Road directly in front of No 81 Clanville Road as follows:

(a) The traffic-calming device is to be generally in accordance with the design prepared by Oleg Sannikov dated 31 May 2005 (copy of which is annexed and marked “ D ”);

(b) The traffic calming device is to comply with AS 1742.13 – 1991 – “Local Area Traffic Management”; and

(c) All costs associated with reconstruction of the traffic-calming device and any ancillary changes to the road are to be met by the applicant.

(d) The traffic-calming device is to be constructed to the satisfaction of the Council prior to the issue of the Occupation Certificate.

S J Watts
Commissioner of the Court

“ANNEXURE B” to Conditions of Consent in Proceedings No. 10072 of 2005

MANAGEMENT PLAN

81 Clanville Road, Roseville

1. Purpose of Plan

1.1 The purpose of this plan is to control the operation of a long day care centre at 81 Clanville Road, Roseville (the “Centre”).

2. Hours of Operation

2.1 The Centre shall only operate between the hours of 7.30 am to 6.30 pm Monday to Friday. The Centre shall not operate on Weekends or Public Holidays.

2.2 Preparation for the proper operation and day to day management of the Centre, including the cleaning, maintenance and staff induction / instruction, is permitted outside the hours specified in Clause 2.1, but only between the hours of 7.00am and 7.00pm Monday to Friday.

2.3 The Centre shall operate of a maximum of 50 weeks per year.

2.4 No functions are allowed at the Centre outside the operation hours specified in clause 2.1.

3. Number of Children

3.1 The Centre shall be limited to a maximum number of [84]* children

3.2 The age groups of the children and their respective numbers shall be limited as follows:

(a) 0 – under 2 years [27]; and

(b) 2 years to under 6 years [57]

4. Parking and Deliveries

4.1 Subject to Clause 4.2, staff shall only park in the marked staff parking spaces (on the western side of the property).

4.2 Between the hours of 10 am and 3pm only, staff may park in non-staff parking spaces.

4.3 In addition to Clauses 4.1 and 4.2 the staff of the Centre shall not park on the northern or the southern side of Clanville Road between the Centre and the intersection of either Archbold Road or Cranbrook Avenue.

4.4 All deliveries to the Centre shall occur between the hours of 9.30 am and 3.30 pm Monday to Friday.

4.5 In so far as deliveries to the Centre are concerned all such deliveries shall be restricted to vehicles no larger than a small van or utility vehicle.

Note: Failure to comply with the parking conditions may result in a breach of the development consent. Management of the Centre must ensure that the car parking restrictions in this Management Plan are complied with.

5. Noise

5.1 Children’s outdoor play activities shall be limited to a maximum cumulative period of 3 hours per day.

5.2 The windows on the eastern side of the Centre are to be kept closed at all times.

5.3 Noise levels from mechanical plant operation for the Centre shall not exceed 50dBA when measured from any point on any neighbouring premises.

Commissioner of the Court

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Citations

Acre Woods Child Care - Roseville v Ku-ring-gai Council [2005] NSWLEC 301

Most Recent Citation

Beehive Capital Pty Limited v Ku-ring-gai Council [2006] NSWLEC 33

Cases Citing This Decision

1

Beehive Capital Pty Limited v Ku-ring-gai Council [2006] NSWLEC 33

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Statutory Material Cited

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CITATION:	Acre Woods Child Care - Roseville v Ku-ring-gai Council [2005] NSWLEC 301
PARTIES:	APPLICANT: Acre Woods Child Care - Roseville RESPONDENT: Ku-ring-gai Council
FILE NUMBER(S):	10072 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Traffic and heritage
LEGISLATION CITED:	Ku-ring-gai Planning Scheme Ordinance 1971, (KPSO)
DATES OF HEARING:	30/05/2005, 31/05/2005 and 1/06/2005
DATE OF JUDGMENT:	06/09/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr I Hemmings, barrister, instructed by Mr J Hones, solicitor SOLICITORS: Hones Lawyers RESPONDENT: Mr A Hudson, solicitor for the respondent SOLICITORS: Wilshire Webb

DCP 38	- Residential Design Manual
DCP 43	- Car Parking
DCP 40	- Construction and Demolition Waste Management
DCP 47	- Water Management
- Ku-ring-gai Council Policy on Child Care Centres
- Draft Development Control Plan - Child Care Centres