Aldi Stores v Newcastle City Council - [2010] NSWLEC 227

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Aldi Stores v Newcastle City Council [2010] NSWLEC 227

PARTIES:
APPLICANT
Aldi Stores
RESPONDENT
Newcastle City Council

FILE NUMBER(S): 10527 of 2010

CORAM: Pepper J

KEY ISSUES: APPEAL :- appeal pursuant to s 56A - whether there was a mischaracterisation of the use of the proposed development as both a "shop" and a "local shop" - whether there was a denial of procedural fairness - appeal upheld - whether the proceedings should be remitted or whether the consent should be granted - consent granted

LEGISLATION CITED: Civil Procedure Act 2005 s 56
Land and Environment Court Act 1979 s 56A
Newcastle Local Environmental Plan 2003

CASES CITED: Aldi Stores v Newcastle City Council [2010] NSWLEC 1110
Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; (2010) 173 LGERA 456
Kostas v HIA Insurance Services Pty Limited [2010] HCA 32
Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611
Pallas Newco Pty Ltd v Votraint No 1066 Pty Limited [2003] NSWLEC 232; (2003) 129 LGERA 234
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59
Shire of Perth v O’Keefe (1964) 110 CLR 529
ThainaTown (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230

DATES OF HEARING: 2 November 2010

EX TEMPORE JUDGMENT DATE: 3 November 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms S Duggan SC
SOLICITORS
Baker & McKenzie
RESPONDENT
Ms A Pearman
SOLICITORS
Newcastle City Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

PEPPER J

3 November 2010

10527 of 2010 Aldi Stores v Newcastle City Council

EX TEMPORE JUDGMENT

Introduction

1 HER HONOUR: The applicant, Aldi Stores (“Aldi”) appeals under s 56A of the Land and Environment Court Act 1979 (“the Act”) against the decision of the Senior Commissioner dated 7 June 2010, to refuse a development application (Aldi Stores v Newcastle City Council [2010] NSWLEC 1110 or “the decision”).

2 In the appeal, the council has filed a submitting appearance only.

3 The bases of the appeal are two-fold:

(a) first, that the Senior Commissioner erred in his determination that the proper characterisation of the proposed development was for the dual purpose of a “shop” and a “local shop”, the latter permissible, the former prohibited; and

4 For the reasons below I have upheld the appeal in respect of both errors.

Factual Background Giving Rise to the Appeal

5 The development application made to the council by Aldi on 6 March 2009 (“the DA”), was for the construction and operation of an Aldi food store on land known as 1 Britannia Boulevarde, Fletcher (“the site”). The proposed development was for a new single storey supermarket with associated car parking and signage.

6 The land is zoned 3(a) Local Centre Zone under the Newcastle Local Environmental Plan 2003 (“the LEP”).

7 Within the 3(a) Local Centre Zone, development for the purpose of a “shop” is listed as prohibited development, however, development for a purpose that is not specifically listed as prohibited is permissible with the consent of the council (cl 16 of the LEP).

8 The term “shop” is defined in the LEP as:

shop

9 The term “local shop” is defined in the LEP as:

local shop

10 At the hearing before the Senior Commissioner the council indicated that it would consent to the grant of development consent. Consequently, it did not take an active role in the proceedings.

The Findings of the Senior Commissioner

11 Importantly, the Senior Commissioner made findings that:

(a) the proposed development was consistent with the zone and the LEP objectives;

(b) did not involve an unreasonable environmental impact; and

12 In terms of characterising the proposed development, the Senior Commissioner found that the development was not precluded from the definition of a “local shop” on the basis that it was not a bulky goods retail outlet, a convenience store or a sex aid establishment.

13 Critically, the Senior Commissioner found that the proposed development would be of the required “nature” and “size” and that it was “suitable to serve a surrounding population of approximately 5,000 people”. This was so notwithstanding that there was evidence before the Commissioner that the actual likely population of Fletcher by 2016 would be approximately 6,000, and not 5,000, people.

14 However, the Senior Commissioner went on to examine the extent to which the proposed store was predicted to trade to a market beyond that of serving the community of Fletcher, thereby giving rise to some further separate use taking place at the site. On this question the Senior Commissioner made the following findings (at [44]-[45]):

44 During the course of the hearing, on a number of occasions the proposition was put that the use as a local shop would be the predominant use of the proposed facility. Accepting, as I do, Mr. Hack uncontradicted expert evidence concerning the expected trading pattern in 2016, it is obviously appropriate to describe the 2016 trading position in these terms – that the predominant use would be as a local shop as defined in the LEP.

local shop

local shop.

local shop

15 Relevantly for present purposes, in determining this question the Senior Commissioner had regard to the following two factors (at [49]):

(a) the nature of the proposed vehicle circulation patterns within the site; and

16 The Senior Commissioner found that the traffic within the proposed development was not an issue (at [50]-[51]).

17 But in relation to the customer parking proposed to be provided, the Senior Commissioner found that the proposal envisaged parking spaces for 87 cars and 5 motorcycles, whereas the council’s parking controls found in the Newcastle Development Control Plan 2005 (“the DCP”) required, on one view, a maximum of 75 spaces. That is to say, the number of parking spaces proposed was in excess of the number required by council’s controls.

18 In this regard the Senior Commissioner concluded (at [53]):

local

19 This is significant because the Senior Commissioner considered that the excessive customer parking proposed to be provided was relevant to the conclusion that he reached, namely, that the additional use proposed for the site was as a “shop”, and not a “local shop” (at [57]).

20 Accordingly, the Senior Commissioner held that there were two uses proposed to be carried out on the site, namely, that of a “local shop”, and separately and impermissibly, as a “shop”, with the second of those uses being, on the evidence before him, at a trading volume and turnover not ancillary to, or subsumed by, the “predominant” use as a “local shop” (at [54]-[58]).

21 The Senior Commissioner stated that so much so had been admitted, albeit by implication, on behalf of Aldi (at [55]).

22 Therefore, applying the decision of the Court in Pallas Newco Pty Ltd v Votraint No 1066 Pty Limited (2003) 129 LGERA 234, the Senior Commissioner held that because there were two uses of the land and the second use was subordinate, but not ancillary, to the other, and that one of those uses was prohibited, “the totality of the application is tainted by that second and impermissible use” (at [59]). In other words, because the Senior Commissioner had found that there was an additional separate use proposed to be carried out on the site, that is as a prohibited “shop”, he was compelled to refuse the grant of the development consent.

Error in the Characterisation of the Proposed Development

23 As has often been remarked, the characterisation of shop uses is often a vexed question (Shire of Perth v O’Keefe (1964) 110 CLR 529 at 535).

24 But in the present case it is clear, having regard to the terms of the LEP, that development for the purpose of a “shop” is a prohibited development within the 3(a) Local Centre Zone unless the development is a shop that is “of a nature and size that is suitable to serve a surrounding population of approximately 5,000 people”. That is to say, as a “local shop”. This use is permissible with consent because, if properly characterised, the use is not as a “shop”, but is as a “local shop”.

25 Therefore, the relevant question for the Senior Commissioner as the consent authority, was whether the shop was of a nature and size that would be suitable to serve the surrounding population in accordance with the terms of the LEP.

26 The Senior Commissioner found that the proposal was consistent with the word “size” in the definition of local shop (at [36]) and was consistent with the term “serving a population of approximately 5,000 people” (at [37]-[38]). He was also satisfied that the proposed store would serve the population of Fletcher (at [39]). Accordingly, the Senior Commissioner concluded that “this facility would be consistent with the definition of a local shop contained in the LEP” (at [39]).

27 In my opinion, this should have been the end of the Senior Commissioner’s inquiry, particularly having regard to the findings made by him, especially the finding that 6,000 people was “not so unreasonably high a variation” that it was inconsistent with the development “serving a population of approximately 5,000 people” contained in the definition of a “local shop” in the LEP.

28 But as the Senior Commissioner’s reasons demonstrate, he went further and examined the extent to which the proposed development was predicted to trade to a market beyond that of the community of Fletcher. In particular, the Senior Commissioner was troubled by the evidence of Mr Adrian Hack (a property consultant and land economist who gave evidence on behalf of Aldi) contained in a report provided to the council by Aldi as part of a submission on the issue of permissibility, the Hill PDA report, which stated that the trading position of Aldi in 2016 would be of an annual turnover of approximately $8 million dollars of which 75% would come from the residents of Fletcher. The Senior Commissioner did not consider the additional 25% and estimated $2 million of trading coming from residents outside of Fletcher “to be so small to be merely ancillary to the use as a local shop” (at [45]).

29 As Aldi correctly submitted, there was nothing in the definition of the term “shop” or “local shop” in the LEP that required this additional examination to be undertaken by the Senior Commissioner. Provided the elements contained in the definitions of “shop” and “local shop” in the LEP were satisfied, which the Senior Commissioner found they were in determining that the use of the proposed development was as a “local shop”, any further characterisation was neither warranted nor, in the circumstances, permitted.

30 To the extent that the Senior Commissioner felt bound by the decision in Pallas Newco, I agree with Aldi that this was, with great respect, misplaced. Pallas Newco involved an application for what was found to be a bottle shop, which was prohibited development, and not a drive-in takeaway establishment as described in the development application. The Court held that the substantial and dominant purpose of the proposed use was a conventional bottle shop with the drive-in component not being the commanding and dominant feature that permitted the business to be characterised wholly as a drive-in takeaway establishment. At best what was proposed was a liquor store or bottle shop with an ancillary feature of a driveway. Consequently, because the overall or predominant use was for the purpose of a bottle shop and not a drive-in takeaway, the consent was declared null and void.

31 By comparison with the present facts, the Senior Commissioner did not find, which was not surprising on the available evidence, that the predominant or dominant purpose of the proposed development was to serve persons other than the residents of Fletcher thereby rendering the proposed development for use of the site as a “shop”. On the contrary he expressly found the predominant use of the site was as a “local shop”. On this basis the decision in Pallas Newco is distinguishable.

32 Accordingly, in my opinion, the Senior Commissioner erred in his characterisation of the proposed development. It was an error that fundamentally affected the Senior Commissioner’s decision to refuse consent, it being the only basis upon which he determined that the proposed use of the site was impermissible which was, in turn, the only basis upon which consent was refused.

33 On this ground alone the appeal must be upheld. However, in case this conclusion is incorrect consideration is also given to the issue of whether or not Aldi was denied procedural fairness by the Senior Commissioner in making the decision.

The Commissioner Denied Aldi Procedural Fairness

34 Aldi particularised this ground of appeal by stating that it was not given an opportunity to comment upon:

(a) first, the finding by the Senior Commissioner that if there was no explanation for the increased number of parking spaces proposed, the inference to be drawn was that the proposed development involved, in part, a prohibited use, namely, as a “shop”; and

35 I have dealt with each in turn.

Increased Number of Parking Spaces

36 As discussed above in assessing the additional and separate use of the site other than as a “local shop”, the Senior Commissioner had regard to the nature of the proposed vehicle circulation patterns within the site and the extent to which customer parking was proposed to be provided (at [49]). Having determined that the internal traffic arrangements “provides no assistance to me nor comfort to the opponents of the proposal”, the Senior Commissioner went on to state that “the same cannot be said for the extent of the parking proposed to be provided on the site” (at [51] and [52] respectively).

37 The Senior Commissioner stated that he was not able to find in any of the material in evidence any explanation as to why an increased number of parking spaces beyond those that would be required by the relevant DCP controls were proposed to be provided on the site. The conclusion that he therefore reached was that this additional parking was necessary to cater for the “out of Fletcher (and thus not local) trade envisaged for the facility” (at [53]). The Senior Commissioner thus emphatically stated (at [57]):

shop

38 There can be no doubt that the additional proposed car parking was material to the Senior Commissioner’s conclusion that there were two uses proposed to be carried out on the site, one permissible and one prohibited.

39 However, a review of the transcript reveals that this issue was not put to Aldi for comment. While the general issue of permissibility and the more specific issue of internal traffic were put to, and were the subject of comment by, Aldi, the particular issue of the excess parking spaces was not.

40 Rather, the concern of the Senior Commissioner was whether the evidence that 25% of the turnover of the proposed store was to come from beyond Fletcher raised an issue as to whether or not the development was permissible. The Senior Commissioner expressly stated that he was putting Aldi on notice of this issue. In so doing, he stated that he wanted “to make it clear that that’s the only matter of the documents that it would seem to me at least causes me to ask you the question how does that fit with the definition”.

41 In Cavasinni Constructions Pty Ltd v Fairfield City Council (2010) 173 LGERA 456 Craig J stated the following applicable principles (at [39]):

Castle Constructions Pty Ltd v North Sydney Council

Shao v Hornsby Shire Council

Design Power Associates Pty Ltd v Willoughby City Council

42 In my opinion, the dictates of procedural fairness mandated that Aldi be given notice of, and afforded an opportunity to comment upon, the excess car parking issue, particularly in light of the determinative effect that this issue had on the reasoning of the Senior Commissioner. The failure of the Senior Commissioner to do so amounted to an error in the decision that would necessitate the appeal being upheld.

Finding That the Predominant Proposed Use of the Site for the Purpose of a Local Shop Contained an Implied Admission by Aldi

43 The Senior Commissioner found that, as an implied admission by the submissions made by Aldi and the evidence it put before the Court, the “predominant use” of the proposed facility was that of a “local shop” but that another use of the facility was that of a “shop” (at [44] and [45]).

44 In finding that this additional turnover constituted a further use which was more than ancillary to the “predominant use” of the site as a “local shop”, the Senior Commissioner stated as follows (at [54]-[55]):

54 I am satisfied that, solely on the basis of the uncontradicted expert evidence given by Mr. Hack concerning the expected 2016 trading pattern’s population drawing and the resultant out of area (Fletcher) monetary turnover and proportion of trading volume that the extent to which the proposed Aldi food store will trade beyond being a facility appropriate to serve a population of approximately 5000 people is sufficiently large to require this aspect of the facility’s proposed operation to be regarded as a separate use.

45 The Hill PDA report had stated:

This is easily achievable without the need capture further expenditure beyond this point.

All retail stores capture some trade from beyond their primary trade area. The intention of the definition of “local shop” under the LEP is to ensure that any shop “predominately” serves the local area (and to exclude large retailers such as department stores and highly specialised shops that rely on larger trade areas for commercial sustainability). In other words to comply with the definition of a “local shop” the major proportion of trade should be generated by the immediate locality of approximately 5,000 people.

46 The transcript demonstrates that the evidence of Mr Hack was to the effect that the primary trade area, that is to say the area where a store “predominantly” catches the majority of its turnover, was the suburb of Fletcher. The proposed store was not intended to “predominately” attract custom from outside its local area. It followed that outside the boundaries of Fletcher, residents would not come into Fletcher as a “predominant” destination for their shopping needs. That is to say, they may come into Fletcher on occasion to shop, but “predominantly” they would shop elsewhere.

47 Aldi submitted that there is no reference in any of the material to the term “predominant use” in the manner in which the Senior Commissioner has applied it in his reasoning in making the decision. Aldi submitted that the Senior Commissioner had misunderstood the use of the term in the evidence and had conflated the predominant use of the proposed development, namely, as a “local shop”, with the area where the predominant trade will occur, to erroneously find that there was a further impermissible use.

48 Aldi further complained that it was not given the opportunity to comment on the purported implied admission by it.

49 I am not convinced that the Senior Commissioner misconceived the use of the concept of “predominant use”, and therefore, misused it in his reasoning. In my opinion, there is an inextricable and relevant connection between the predominant trading area of the proposed store and its predominant use as a “local shop” or “shop” having regard to the definition of those terms in the LEP. This is particularly so when regard is had to the requirement that the store be “suitable to serve a surrounding population of approximately 5,000 people” in order for it to be characterised as a “local shop”.

50 In addition, I do not accept that this alleged misconception amounts to an error of law. At its highest this is an error of fact based on the evidence which, absent unreasonableness (Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611 at [129] and [130]), cannot be reviewed in an appeal of this nature (Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) 198 ALR 59 at [54]-[55] and [114]).

51 Furthermore, whether or not Aldi made the implied concession attributed to it, the Senior Commissioner explicitly stated in his reasons that he did not consider that this implied concession was essential to support the conclusion that he had separately reached on the basis of the evidence before him.

52 Finally, even if the Senior Commissioner did misconstrue the evidence, the nature of the error rendered it highly unlikely that the misconception relied upon by him was not put to Aldi for comment and correction. While Aldi characterises the Senior Commissioner’s failure to do so as a denial of procedural fairness, this is not correct. Were it otherwise, every erroneous finding of fact not put to a party for comment could, by describing it as a breach of procedural fairness, be transformed into an error of law. Plainly this cannot be the case.

53 I therefore do not find that the second basis upon which it is asserted that the Senior Commissioner failed to afford Aldi procedural fairness has been demonstrated. However, for the reasons given above, the appeal must nevertheless be upheld.

Relief

54 Section 56A of the Act states as follows:

56A Class 1, 2 and 3 proceedings—appeals to the Court against decisions of Commissioners

55 Having determined that the appeal must be upheld, the Court has the choice of either remitting the matter to the Senior Commissioner for determination in accordance with this decision or, as Aldi submitted, substituting its own judgment for that of the Senior Commissioner and granting the consent, provided that it is satisfied that no further findings of fact are necessary for it to do so (ThainaTown (on Goulburn) Pty Ltd v City of Sydney Council (2007) 71 NSWLR 230 (at [103]), recently affirmed in Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 at [31]-[32]).

56 It is clear upon reading the Senior Commissioner’s reasons that no new findings of fact are required in order for the Court to grant development consent under s 56A(2)(b) because all of the necessary findings regarding the merits of the development application were made by him (at [86]).

57 Because the Court accepts Aldi’s submissions on characterisation, it is therefore open for the Court to grant consent under that provision as an order that the Senior Commissioner ought to have made had he properly directed himself on all questions of law.

58 In my view, the circumstances of this appeal render it appropriate that the Court grants consent subject to the conditions proposed by the council which were, after discussion and amendment at the hearing, accepted by the Senior Commissioner. To do so facilitates the “just, quick and cheap” determination of the real issues in the proceedings (s 56 of the Civil Procedure Act 2005).

Costs

59 I accept the submission of Aldi that as the council did not take an active role in the appeal the appropriate order is that each party pay its own costs.

Orders

60 The orders of the Court are therefore:

(1) the appeal is allowed;

(2) the decision of the Senior Commissioner in proceeding 10048 of 2010 is set aside;

(3) development application 09/0227 is determined by the grant of a development consent subject to the conditions attached to this judgment at Schedule ‘A’;

(4) each party is to pay its own costs of the appeal; and

**********

SCHEDULE ‘A’

1 Conditions Restricting the Terms of Consent

1 The proposed development being carried out strictly in accordance with the details set out on the amended plans by Suters Architects filed with the Land and Environment Court 4 February 2010 (Proj No 10232 Dwg No 05 & 06 Issue B, No 02 Issue C, No 03 Issue C and 04 Issue B), in the Statement of Environmental Effects, in the Water Management report and associated plans by Robert Bird Group dated 16 Febraury 2010 filed with the Land and Environment Court 4 February 2010 (Job 08783 Report 08783-SW & Dwg No SKC-101 Rev 2), in accordance with the Obtrusive Spill Light Report by Webb Australia dated 21 July 2009 (Rpt No I559AREP002 Issue A) filed with the Land and Environment Court 4 February 2010, in accordance with the landscape concept plan by Site Image (Job No SS09-1841 Dwg 101 & 501 Issue D) filed with the Land and Environment Court 4 February 2010, in the letters from traffic engineers Colston Budd Hunt & Kafes Pty Ltd dated 9 July 2009 and 29 May 2009 filed with the Land and Environment Court 4 February 2010 and on the Application form, except as otherwise provided by the conditions of this consent.

Note: Any proposal to modify the terms or conditions of this consent whilst still maintaining substantially the same development to that approved, will require the submission of a formal application for Council’s consideration in accordance with the provisions of Section 96 of the Environmental Planning and Assessment Act, 1979.

Reason: To confirm and clarify the terms of Council’s approval.

2 Conditions Requiring Payment of a Monetary Contribution Dedication of Land / Carrying Out of Off Site Works

2.1 The Developer designing and constructing the following works associated with Minmi Road adjacent to the site, generally in accordance with that shown on Suters Architects Plan Ref. 10232 Dwg DA02 Issue C dated 26/8/09, at no cost to Council and in accordance with Council’s guidelines and design specification, such works to be implemented prior to occupation of the premises:

a) Central raised concrete median (minimum 0.9m wide);

b) Road pavement (minimum 3.5m wide travel lane and minimum 1.5m wide on-road cycle lane);

c) Left Turn Lane (minimum 3.5m wide);

d) Kerb and gutter;

e) Footway formation (minimum 3.5m wide measured from nominal face of kerb);

f) Footpaving (minimum 1.8m wide reinforced concrete);

g) Associated linemarking and signposting;

h) Associated drainage works; and

i) Associated underground street lighting.

Note: i) Full construction details regarding the required works are to be submitted to Council for approval, under Section 138 of the Roads Act 1993, prior to commencement.

ii) Construction plans are to be accompanied by two copies of a pavement design report prepared and certified by a practising geotechnical engineer.

iii) The Developer is advised to confer with Council’s Senior Development Officer (Engineering) on telephone number (02) 4974 2637 to ascertain Council’s detailed requirements in this regard.

Reason: To ensure that public road facilities are upgraded to an appropriate standard having regard to the additional traffic movement likely to be generated by the proposed development.

2.2 Commercial type vehicular crossings 6.0m and 25.0m wide respectively being constructed across the public footway at each of the proposed driveway entrance/exits at no cost to Council and in accordance with Council’s A17 Series (Concrete Vehicular Crossings) design specifications and such crossing being properly maintained.

Note: i) A separate approval from the Road Authority (Council) must be obtained for all works within the public road reserve pursuant to Section 138 of the Roads Act 1993.

ii) The Developer is advised to confer with Council’s Senior Development Officer (Engineering) on telephone number (02) 4974 2637 to ascertain Council’s detailed requirements in this regard prior to a Construction Certificate being issued for any on site works.

Reason: To ensure the provision of adequate clearly defined and properly constructed means of all-weather vehicular access to the site in order to encourage the use of on-site parking facilities and in the interest of maximising vehicular and pedestrian safety and convenience.

2.3 Any redundant existing vehicular crossings being removed at no cost to Council and the public footway and kerb being restored to match the existing infrastructure.

Reason: To clarify site access arrangements in the interest of traffic and pedestrian safety, as well as road efficiency, to maximise kerbside parking opportunity and to ensure that reinstatement work is undertaken to an appropriate standard.

2.4 Any necessary alterations to public utility installations being at the Developer/Demolisher’s expense and to the requirements of both Council and the appropriate authorities.

Reason: To ensure that any required alterations to public utility infrastructure are undertaken to acceptable standards and without demands on public sector resources.

2.5 A temporary protective crossing being provided over the footway for vehicular traffic before building operations are commenced. This approval does not permit access to the property over any adjacent private or public land.

Reason: To ensure public safety and protection of public assets.

2.6 Section 94A Levy

A total monetary contribution of $49071.00 being paid to Council, pursuant to Section 94A of the Environmental Planning and Assessment Act 1979, such contribution to be payable prior to the issue of a Construction Certificate in respect of the proposed development.

Note: i) This condition is imposed in accordance with the provisions of the Newcastle City Council S94A Development Contributions Plan 2006 operational from 15 January 2007. A copy of the plan may be inspected at Council’s Customer Enquiry Centre, ground floor of the City Administration Centre, 282 King Street Newcastle 8.30 am to 5.00 pm, excluding public holidays.

ii) The amount of contribution payable under this condition has been calculated on the basis of the current rate as at the date of consent and is based on the most recent quarterly Consumer Price Index (CPI) release made available by the Australian Bureau of Statistics (ABS). The CPI index rate is expected to rise at regular intervals and therefore the actual contribution payable is indexed and recalculated at the CPI rate applicable on the day of payment.

CPI quarterly figures are released by the ABS on a date after the indexation quarter and as a guide, these approximate dates are provided below. Indexation quarters from the ABS are as follows:

Indexation quarters Approx release date

September Late October

December Late January

March Late April

June Late July

Any party intending to act on this consent should contact Council’s Customer Enquiry Centre for determination of the indexed amount of contribution on the date of payment.

Reason: To assist Council in the provision of public facilities within the local government area in response to the additional demand likely to result from the proposed development.

3 Conditions Requiring Inclusion of Details in Documentation for a Construction Certificate Application / Matters to be Resolved Prior to Certification of Survey Plans / Matters to be Resolved Prior to Occupation of the Premises

3.1 The building being provided with adequate means of access for persons with disabilities in order to comply with the Building Code of Australia and the Disability Discrimination Act 1992.

In this regard, the applicant is to submit a design detail which has been certified by a qualified Access Advisor* with the application for a Construction Certificate.

Note: i) Compliance with the Building Code of Australia only can still leave a building professional or building owner in contravention of the Disability Discrimination Act 1992.

ii) * A qualified Access Advisor is a current member of -

Association of Consultants in Access Aust Inc

326 Autumn Street, HERNE HILL, VIC. 3218.

Ph (03) 5221 2820

iii) A qualified Access Advisor should carry current and relevant public liability and public indemnity insurances for the practice of their trade.

Reason: To ensure compliance with the provision of the Environmental Planning and Assessment Act, 1979 and the Building Code of Australia and the Disability Discrimination Act 1992 in relation to the provision of equity in access for disabled persons.

3.2 On-site parking accommodation being provided for a minimum of 87 cars inclusive of 2 disabled spaces as well as 5 bicycles and 5 motor cycles. Such being set out generally in accordance with the minimum parking layout standards indicated within Element 4.1 of Council’s Newcastle 2005 DCP and Australian Standards AS2890.1-2004 “Parking Facilities – Part 1 off street car parking”. Full details are to be included in documentation for a Construction Certificate application.

Reason: To ensure the provision of adequate on-site parking facilities commensurate with the demand likely to be generated by the proposed development.

3.3 All proposed driveways, parking bays and vehicular turning areas being constructed with a basecourse of adequate depth to suit design traffic, being sealed with either bitumen seal, asphaltic concrete, concrete or interlocking pavers and being properly maintained. Full details are to be included in documentation for a Construction Certificate application.

Reason: To facilitate the use of vehicular access and parking facilities and to minimise any associated noise and dust nuisance.

3.4 Kerbing or dwarf walls having a minimum height of 100 mm being constructed along the edge of all garden or lawn areas adjacent to driveways and parking bays sufficient to discourage the encroachment of vehicles thereon. Full details are to be included in documentation for a Construction Certificate application.

Reason: To assist in confining vehicular movement to constructed driveways and parking areas and protect site landscaping works against vehicular damage.

3.5 Landscaping and any other obstructions to visibility should be kept clear of or limited in height to 1.2 m in the 2.5 metre by 2 metre splay within the property boundary each side of the driveway entrance; full details to be included in documentation for a Construction Certificate application.

Reason: To ensure adequate sight distance to traffic on the frontage road and sight distance to pedestrians on the frontage road footway.

3.6 Any alteration to natural surface levels on the site being undertaken in such a manner as to ensure that no surface water is drained onto or impounded on adjoining properties.

Reason: To ensure that any such proposed works do not disrupt existing natural stormwater flows in the vicinity.

3.7 The Developer instituting appropriate erosion protection and soil stabilisation measures in association with the proposed site works. Such measures are to be designed in accordance with the requirement of the Department of Water and Energy. Full details are to be included in the documentation for a Construction Certificate application.

Reason: To control soil erosion and prevent sedimentation of surrounding lands both private and public.

3.8 Roof water from the proposed new work being directed to the proposed water tank and being reticulated therefrom to any new toilet cisterns and cold water laundry and washing machine taps, with a mains water top up being installed to maintain between 10% and 15% of the tank capacity. Alternatively, an electronically activated mechanical valve device is to be installed to switch any new toilet cisterns and laundry taps to mains water when the tank falls below 10% capacity. The water tank and plumbing is to be installed in accordance with AS 3500, the relevant plumbing regulations and the requirements of the Hunter Water Corporation, full details to be provided with the Construction Certificate application.

Reason

:

3.9 Overflows from the roof water tanks and any additional discharge controls (if required) being directed to Council’s drainage system by means of an inter-allotment drainage line or underground pipe directly to the street gutter, full details to be provided with the Construction Certificate application.

Reason:

3.10 The water management measures as indicated on the submitted plans and Statement of Environmental Effects and/or modified under the terms of this consent being implemented and the nominated fixtures and appliances being installed and operational prior to issue of an Occupation Certificate, full details to be provided with the Construction Certificate application.

Reason:

3.11 All new impervious surfaces, including driveways and paved areas being drained to the nominated discharge controls, full details to be provided with the Construction Certificate application.

Reason:

3.12 Appropriate acoustic treatment being implemented in accordance with the recommendations set out in the report prepared by Wilkinson Murray Pty Ltd dated February 2009 and the Noise Addendum Letters prepared by Wilkinson Murray Pty Ltd dated 30 June 2009 and 26 August 2009

Note: Written certification from the said consultant confirming that the recommended acoustic treatment has been implemented in accordance with the requirements is to be submitted to the Principal Certifying Authority prior to the commencement of any noise generating activity within the premises.

Reason: To ensure that appropriate noise control measures are implemented.

3.13 All proposed planting and landscape elements indicated on the submitted landscape concept plan or otherwise required under the conditions of this consent being implemented and a comprehensive landscape design plan and specification in respect thereof being prepared by a qualified landscape designer and being submitted with a Construction Certificate application.

Note: i) The required comprehensive landscape design plan and specifications is to be in accordance with the provisions of Council’s adopted Newcastle Development Control Plan, 2005 and is to include cross sections through the site where appropriate, proposed contours or spot levels, botanical names, quantities and container size of all proposed trees, shrubs and ground cover, details of proposed soil preparation, mulching and staking as well as treatment of external surfaces and retaining walls where proposed, drainage, location of taps and the nominated maintenance periods. Refer to attached checklist.

ii) A Landscape Practical Completion Report is required to be submitted to the Principal Certifying Authority by the consultant responsible for the landscape design plan prior to occupation of the premises or any portion of the premises that is the subject of this consent. The report is to verify that all landscape works have been carried out in accordance with the approved landscape design plan to a high professional standard and that an effective maintenance program has been commenced.

Reason: To ensure that adequate and appropriate provision is made for landscaping of the site in association with the proposed development, to enhance the external appearance of the premises and to contribute to the overall landscape quality of the locality.

3.14 All existing trees on the site outside the envelope of the proposed building being preserved where practicable and all such trees being indicated on the required comprehensive landscape design plan and being adequately protected against damage during the building construction period. Full details to be included in the documentation for a Construction Certificate application.

Reason: To confirm and clarify the terms of Council’s consent and to ensure that existing trees are retained to protect the landscape and scenic quality of the locality.

3.15 Any garbage storage facility being screened from the street. Full details are to be included in the documentation for a Construction Certificate application.

Reason: To ensure any such facilities do not unreasonably detract from the external appearance of the development.

3.16 A Landscape Practical Completion Report is to be submitted to the Principal Certifying Authority prior to occupation of the premises. A copy of the report format is attached.

Reason: To ensure that landscape works are carried out in accordance with the approval.

3.17 The applicant complying with all requirements of the Hunter Water Corporation regarding the connection of water supply and sewerage services, including the payment of any required cash contribution towards necessary amplification of service mains in the locality as a result of the increased intensity of land use proposed. A copy of the Corporation’s certificate of compliance is to be included in documentation for a Construction Certificate application.

Reason: To ensure that water supply and sewerage services are available and adequate for the increased intensity of land use proposed and are properly connected in the public interest.

3.18 All areas not provided with natural ventilation in accordance with the provisions of the Building Code of Australia being provided with an adequate mechanical ventilation system complying with Australian Standard 1668, Parts 1 and 2 “The use of mechanical ventilation and air conditioning in buildings”. Full details are to be included in the documentation for a Construction Certificate application.

Reason: To ensure the provision of adequate ventilation in the interest of public health and safety.

3.19 Appropriate arrangements being made for the on-site collection of waste (recyclable and non-recyclable) from the development and such arrangements being in place prior to the occupation of the premises the subject of this development application. In this regard a refuse storage area is to be incorporated into the development with full details to be provided prior to issue of a Construction Certificate.

Reason: To ensure suitable garbage removal arrangements are provided in association with the proposed development in the interest of public safety.

3.20 Wheel stops being provided along the front of parking spaces adjacent to pedestrian pathways in accordance with AS 2890.1 Parking. Full details are to be included in documentation for a Construction Certificate application.

Reason: To ensure safe and convenient use of on-site parking and to minimise vehicular and pedestrian conflict.

3.21 A pavement design report for the construction of the internal access driveway and carpark is to be prepared and certified by a practising geotechnical engineer, and such being included in documentation for a Construction Certificate application.

Reason

:

3.22 Speed humps being constructed in the car park areas in accordance with AS 2890 – Parking Facilities incorporating appropriate delineation in the form of signage and/or linemarking. Full details are to be included in documentation for a Construction Certificate application.

Reason: To ensure the vehicular speed controls proposed in association with this development application are installed in accordance with the appropriate standards.

3.23 Parking space 55 being deleted and replaced with an additional landscaped garden bed for the full width and length of the former bay and planted with a taller growing tree species as included within the planting schedule by Site Image (SS09-1841 Dwg 501 Issue D), full details to be submitted with the required Construction Certificate.

Reason: To provide additional landscaping and lessen visual impact of the continuous row of parking along the Minmi Road frontage of the proposed development.

3.24. A noise barrier being constructed along the eastern edge of the proposed loading dock. The noise barrier is to be constructed of colourbond material or other materials with similar acoustic properties, to a height of 3000mm and length of 9000mm, and maintained such that no significant gaps exist. Full details are to be included in documentation for a Construction Certificate application and the noise barrier being installed prior to the release of the Occupation Certificate or occupation of the premises.

Reason

3.25. Prior to the issue of a Construction Certificate, the proponent preparing and submitting to the Principal Certifying Authority and Council a Noxious Weeds Management Plan detailing procedures and measures to manage flora listed under the Noxious Weeds Act 1993.

The Noxious Weeds Management Plan should include but not be limited to

a) Identification and measures of disposal of invasive species listed under the Noxious Weeds Act 1993 .
b) Management of the site during and after construction to prevent growth of noxious weeds

Reason : To prevent spread and establishment of invasive species listed under the Noxious Weeds Act 1993 .

3.26. Prior to the issue of a Construction Certificate, the proponent preparing and submitting to the Principal Certifying Authority and Council, an Environmental Management Plan (EMP) for construction works on the site, such to be kept on site and made available to authorised Council officers upon request. The EMP is to include but not be limited to:

a) A site management strategy, identifying and addressing issues such as environmental health and safety, site security, and traffic management.

b) A water management strategy, detailing erosion and sediment control, management of soil stockpiles, control and management of surface water, groundwater. Procedures should also be included to ensure that all roads adjacent to the site are kept free and clear from mud and sediment.

c) A dust management strategy, detailing procedures to minimise dust generation, with particular reference to control techniques and operational limits under adverse meteorological conditions.

d) A noise and vibration management strategy detailing measures to minimise the impact of the construction phase on the amenity of the locality in accordance with Australian Standard AS 2436. 1981 (Guide to Noise control on Construction, Maintenance and Demolition Sites). Noise and vibration monitoring during the construction phase are to be incorporated into the program.

f) A waste minimisation strategy, which aims to avoid production of waste and maximise reuse, recycling or reprocessing of potential waste material.

Reason:

Protection of the Environment Operations Act 1997

4 Conditions Requiring the Submission of Future Applications to Council or The Approval of Other Authorities

4.1 Compliance with the requirements of the Hunter Water Corporation in respect of any building or structure proposed to be erected over any services or stormwater drain under the Corporation’s control.

Reason: To protect the Corporation’s infrastructure from site development works.

4.2 Any proposed work within the public road reserve, including reinstatement of a kerb, pipe or vehicular crossings, being the subject of the separate approval of Council prior to commencement.

Note: A separate approval from Council must be obtained for all works within the public road reserve pursuant to Section 138 of the Roads Act 1993. For further information contact Council’s Works Depot on 4974 6000 to request a Road Opening Approval. A fee will be payable in this regard.

Reason: To ensure that works within the public road are suitably authorised and constructed to appropriate standards.

5 General Conditions

5.1 All building work must be carried out in accordance with the provisions of the Building Code of Australia.

Reason: To confirm a condition of consent prescribed by the Environmental Planning & Assessment Regulation 2000.

5.2 The proposed parking bays being clearly indicated by means of signs and/or pavement markings.

Reason: To encourage the use of the proposed on-site car parking facilities and thereby minimise kerbside parking in the adjacent public road as a result of the proposed development.

5.3 The proposed disabled parking bays being clearly indicated by means of signs and/or pavement markings.

Reason: To encourage the use of the proposed on-site car parking facilities and thereby minimise kerbside parking in the adjacent public road as a result of the proposed development.

5.4 The vehicular entrance and exit driveways and the direction of traffic movement within the site being clearly indicated by means of reflectorised signs and pavement markings.

Reason: To ensure that clear direction is provided to the drivers of vehicles entering and leaving the premises in order to facilitate the orderly and efficient use of on-site parking spaces / facilities and driveway access and in the interest of traffic safety and convenience.

5.5 All vehicular movement to and from the site being in a forward direction.

Reason: To ensure that the proposed development does not give rise to vehicle reversing movements on or off the public road with consequent traffic accident potential and reduction in road efficiency.

5.6 The use and occupation of the premises including all plant and equipment installed thereon, not giving rise to any "offensive noise", as defined under the Protection of the Environment Operations Act, 1997, as amended.

Note: Should Council consider that offensive noise has emanated from the premises, the owner/occupier of the premises will be required to submit an acoustic consultant's report recommending appropriate acoustic measures necessary to ensure future compliance with this condition and will be required to implement such measures within a nominated period. Furthermore, written certification from the said consultant confirming that the recommended acoustic measures have been satisfactorily implemented will be required to be submitted to Council before the expiration of the nominated period.

Reason: To ensure that appropriate noise control measures are implemented if required.

5.7 There being no interference with the amenity of the neighbourhood by reason of the emission of any "offensive noise", vibration, smell, fumes, smoke, vapour, steam, soot, ash or dust, or otherwise as a result of the proposed development.

Reason: To prevent environmental pollution, to ensure observance of appropriate public health standards and to protect the existing amenity of the neighbourhood.

5.8 Any liquid wastes from the premises, other than stormwater being discharged to the sewers of the Hunter Water Corporation in accordance with that authority’s requirements.

Reason: To prevent environmental pollution and to ensure observance of appropriate public health standards.

5.9 Proposed parking areas, service bays, truck docks, driveways, vehicular ramps and turning areas being maintained clear of obstruction and being used exclusively for purposes of car parking, loading and unloading, and vehicle access, respectively. Under no circumstances are such areas to be used for the storage of goods or waste materials.

Reason: To ensure the proposed/required parking, loading/unloading facilities and associated driveways are able to function efficiently for their intended purpose and are not otherwise used in a manner which detracts from the overall appearance of the development.

5.10 Any proposed floodlighting of the premises being so positioned, directed and shielded as to not interfere with traffic safety or detract from the amenity of the adjacent premises.

Reason: To ensure that the proposal does not interfere with traffic safety and to protect the existing amenity of the neighbourhood.

5.11 No flashing, chasing or scintillating lighting or promotional material of a visually intrusive nature being installed or displayed on the exterior of the premises.

Reason: To ensure compliance with the provisions of Council’s adopted Newcastle Development Control Plan, 2005 and to protect the existing amenity of the neighbourhood.

5.12 Any flags, bunting or other promotional material of a like nature being arranged and properly maintained in a manner which does not detract from the appearance of the premises or the streetscape and which does not represent a hazard to the public.

Reason: To ensure that there is adequate control over such displays in order that they do not detract from the amenity of the neighbourhood or threaten public safety.

5.13 No goods or advertising signs being displayed or allowed to stand on the public footpath or street.

Reason: To avoid interference with pedestrian traffic flow and to protect the visual amenity of the neighbourhood.

5.14 Adequate facilities being provided in an appropriately screened location within the premises for the separate storage of recyclable and non-recyclable material, and arrangements being made for regular removal and disposal of same.

Reason: To prevent environmental pollution and reduce the amount of waste being disposed to landfill.

5.15 Construction/demolition work that generates noise that is audible at residential premises being restricted to the following times:

Monday to Friday, 7:00 am to 6:00 pm;
Saturday, 8:00 am to 1:00 pm;

With no noise from construction/demolition work to be generated on Sundays or Public Holidays.

Reason: To prevent ‘offensive noise’ from construction/demolition sites in order to safeguard the amenity of the neighbourhood

5.16 No construction/demolition work being undertaken on a Public Holiday or on a Saturday or Sunday adjacent to a Public Holiday

Reason: To safeguard the amenity of the neighbourhood.

5.17 Council’s “PREVENT POLLUTION“ sign being erected and maintained in a conspicuous location on or adjacent to the property boundary so that it is clearly visible to the public or at other locations on the site as otherwise directed by Council for the duration of construction work.

Note: Council’s PREVENT POLLUTION sign can be obtained by presenting your development application receipt at Council’s Customer Enquiry Counter at 282 King Street Newcastle or at the Master Builders Association office.

Reason: To increase industry and community awareness of developer's obligations to prevent pollution and to assist in ensuring compliance with the statutory provisions of the Protection of the Environment Operations Act 1997.

5.18 A 1.8 m Colorbond fence, or equivalent, being erected along the side and boundaries of the site in consultation with the adjoining owners involved.

Note: Any disputation which may arise between the developer and the adjoining property owners in respect of this matter is to be resolved in accordance with the provisions of the Dividing Fences Act.

Reason: To minimise any adverse impact which the proposed development may have upon the neighbouring dwellings in terms of noise nuisance or loss of privacy.

5.19 All public footways, footpaving, kerbs, gutters and road pavement damaged during the works being immediately repaired following the damage, to a satisfactory state that provides for safe use by pedestrians and vehicles. Full restoration of the damage is to be carried out to Council’s satisfaction prior to the issue of any occupation certificate in respect of the development.

Reason: To ensure that safe conditions are maintained on the site during construction and that the required restoration is undertaken to acceptable standards, without demand on public sector resources.

5.20 Where the proposed development involves the destruction or disturbance of any existing survey monuments, those monuments affected being relocated at no cost to Council by a surveyor registered under the Surveyor’s Act.

Reason: To ensure that existing permanent survey marks which may be affected by the development are appropriately reinstated.

5.21 The premises being identified by the provision of house numbers on the building exterior and mailbox such that they are clearly visible from the road frontage.

The minimum numeral height shall be 75 mm.

Reason: To ensure that the property can be readily identified by visitors, motorists, emergency services and the community generally.

5.22 Any demolition/waste building materials being disposed of at Council’s Summerhill Waste Management Facility or other approved site.

Reason: To prevent indiscriminate dumping or use of demolition/waste building material for purposes of unauthorised land fill.

5.23 Construction of the required site discharge control devices being supervised and certified upon completion by a Consultant Engineer or Registered Surveyor with respect to its compliance with the approved design plans. The certification is to be supported by a Works-as-Executed (WAE) plan of the property drainage and detention system, which is to be submitted to Council by the Principal Certifying Authority/Applicant prior to the issue of an Occupation Certificate or occupation of the premises.

Reason: To ensure that proposed drainage infrastructure is satisfactorily constructed .

5.24 Separate bins being provided within the proposed refuse storage areas to enable the on-site separation of recyclable and non-recyclable garbage, such arrangements being in place prior to the occupation of the premises the subject of this development application.

Reason: To ensure suitable garbage arrangements are provided in association with the proposed development in accordance with Council’s Waste Minimisation Policy.

5.25 Written certification from a Practicing Geotechnical Engineer that the internal access driveway and carpark has been constructed in accordance with the geotechnical requirements is to be submitted to the Principal Certifying Authority prior to the occupation of the premise.

Reason : To ensure the future integrity of the internal access driveway and carpark of the development.

5.26. Appropriate lighting being provided for the car park and pedestrian pathways in accordance with AS 1158 - Lighting and AS 4282 - Control of the Obtrusive Effects of Outdoor Lighting, such being installed prior to the occupation of the portion of the premise the subject of this application.

Reason: To ensure that adequate and appropriate lighting facilities are provided for the proposed development.

5.26 All external ramps and pathways within the site required to be accessible for persons with disabilities being designed and constructed in accordance with AS.1428 – Design for Access and Mobility. Kerb ramps are to be provided adjacent to disabled parking bays allowing access to these pathways. Full details are to be included in documentation for a Construction Certificate application.

Reason: To ensure appropriate disabled persons access is provided for this development in accordance with the appropriate standards.

5.27 Proposed parking areas, driveways, vehicular ramps and turning areas being maintained clear of obstruction and being used exclusively for purposes of car parking and vehicle access, respectively. Under no circumstances are such areas to be used for the storage of goods or waste materials.

Reason: To ensure the proposed/required parking, facilities and associated driveways are able to function efficiently for their intended purpose and are not otherwise used in a manner which detracts from the overall appearance of the development.

5.28. Prior to the commencement of works, the developer providing written notification to the adjoining landowners of the intention to start works, advising details of the scheduling of works and nominating a contact person. A legible prominent sign stating the name of the developer and contractor and a 24 hour contact telephone number is to also be displayed on-site during the construction period.

Reason: To minimise inconvenience to neighbouring residents during construction activities.

5.29. The developer being responsible for the provision of additional regulatory signage and all adjustments to and/or relocation of existing regulatory signage necessary as part of this development in accordance with the Newcastle City Traffic Committee requirements, such works to be completed prior to the occupation of the buildings the subject of this development application.

(Note: Alterations to regulatory signage and kerbside parking will need to be referred to the Newcastle City Traffic Committee for approval).

Reason: To ensure that public road facilities are upgraded to an appropriate standard having regard to the additional traffic movement and pedestrian activity likely to be generated by the proposed development.

5.30 The maximum size vehicle that shall access the development is to be an articulated vehicle (AV) 19 metres in length as defined in Australian Standard AS 2890.2 – 2002 – “Parking facilities – Off-street commercial vehicle facilities. Under no circumstances should any vehicle larger than this enter the site.

Reason: To control vehicular activity associated with this development in the interest of public safety and amenity.

5.31 All signage associated with the development is to comply with SEPP 64.

Reason: To ensure compliance with the relevant State Environmental Planning Policy.

5.32 The vehicular entrance and exit driveway to Minmi Road is to clearly define separation of vehicular ingress and egress and the direction of travel by inclusion of a painted central median and associated pavement markings.

Reason: To ensure that clear direction is provided to the drivers of vehicles entering and leaving the premises in order to facilitate the orderly and efficient use of on-site parking spaces and driveway access and in the interest of traffic safety and convenience.

5.33 No work within the existing or proposed public road reserve being commenced until the Road Authority’s (Council) separate approval under Section 138 of the Roads Act 1993 has been obtained. A fee will be payable in this regard.

Note: The public road reserve includes both the carriageway and the footway.

Reason: To ensure that any work within the public road reserve is carried out in accordance with Council’s requirements and under Council supervision.

5.34 The portion of the site required for road widening to facilitate the works associated with Minmi Road being dedicated as Public Road. In this regard the extent of necessary road dedication is to be determined by the provision of the required 3.5m wide footway and measured from the respective nominal face of kerb as shown on the works-as-executed plans. A suitable survey plan providing for the dedication is to be submitted to, and approved by, the Road Authority prior to lodgement for registration with the Department of Lands, with such plan being registered prior to the issue of an Occupation Certificate.

Note : All associated survey and legal work to be undertaken by the applicant at their expense.

Reason:

5.35 Plans of any proposed traffic management devices, linemarking and signposting works on existing or proposed public roads being submitted to Council and approved by the Newcastle City Traffic Committee prior to those works being undertaken.

Reason : To ensure all regulatory traffic control measures are undertaken to the requirements of the Road Authority.

5.36 No compensation being payable by Council for or in respect of any land required to be dedicated as road widening or public road as a result of complying with any condition of this consent.

Reason: To indemnify Council against any claim for compensation in respect of any land required to be dedicated as road widening or public road as a result of this development.

5.37 Appropriate documentation being submitted with the required survey plan for road widening to provide for the release of any existing easement affecting the proposed public roads and made redundant by the development, or by complying with the terms of these conditions of consent.

Reason: To ensure that all extraneous and/or redundant easements are removed from both the proposed road widening.

5.38 Any proposed retaining walls, inclusive of footings, drainage and pedestrian or vehicle barriers being wholly contained within private property and not within existing or proposed public road reserves. Full details are to be included in documentation for a Construction Certificate application.

Reason: To ensure that maintenance of the proposed retaining walls and associated infrastructure is undertaken without demands on resources of the Roads Authority.

5.39 Certified works-as-executed (WAE) plans and documentation for the works associated with Minmi Road being lodged with the Road Authority on completion of the road works. The required WAE plans are to be provided on a full copy of the approved Road Opening Permit drawings and are to include:

a) Details of any alterations made to the approved plans;

b) The location and type of service conduits;

c) Details of all kerbs and gutters, pathways, pits and pipelines; and

d) Linemarking and signposting.

Reason:

5.40 Prior to any site works commencing, the Developer preparing a Construction Management Plan (CMP) such to be designed and implemented to manage all environmental aspects associated with the construction works, including off site impacts such as transport to and from the site. Two copies of the CMP are to be provided to both the Principal Certifying Authority and the Road Authority and the CMP is to be maintained on site during all site works and be made available to Authorised Officers upon request. The CMP is to include but not be limited to:

a) A traffic and access management strategy addressing and managing all traffic impacts associated with the works and is to address the impact of the works on the safety and traffic function of Minmi Road.

b) A site management strategy, identifying and addressing issues such as environmental health and safety, site security, and traffic management.

c) A soil and water management strategy, detailing erosion and sediment control, management of soil stockpiles, control and management of surface water and groundwater. Procedures should be included to ensure that all roads adjacent to the site are kept free and clear from mud and sediment.

d) A dust management strategy, detailing procedures to minimise dust generation, with particular reference to control techniques and operational limits under adverse meteorological conditions.

e) A waste minimisation strategy that aims to avoid production of waste and maximise reuse, recycling or reprocessing of potential waste material.

f) A community relations plan that aims to inform local residents and other local stakeholders of the proposed nature and timeframes for construction activities together with contact details for site management.

g) A noise management strategy detailing measures to minimise the impact of the construction phase on the amenity of the locality, in accordance with Australian Standard AS 2436, 1981 'Guide to Noise control on Construction, Maintenance and Demolition Sites'. Noise monitoring during the construction phase should be incorporated into the program.

Reason:

5.41 A defect liability applying in respect of the construction works associated with Minmi Road for a six month period prior to the Road Authority (Council) accepting maintenance responsibility for the constructed road works. The required defect liability period is to commence at the date of registration of the plan of survey that dedicates the required road widening as Public Road.

In this regard, a cash bond or bank guarantee in an amount equivalent to 5.0% of the construction value of the road construction works, or an alternative lesser amount as may be agreed to by the Road Authority, together with an endorsed Defects Liability Agreement form (available from Council), is to be submitted to the Road Authority prior to registration of the survey plan.

Note

ii) Any defects identified by the Road Authority are to be rectified by the developer prior to the Road Authority’s acceptance of maintenance responsibility and the release of the bond.

Reason:

5.42 The Developer designing and constructing the following works associated with Minmi Road adjacent to the site, generally in accordance with that shown on Suters Architects Plan Ref. 10232 Dwg DA02 Issue C dated 26/8/09, at no cost to Council and in accordance with Council’s guidelines and design specification, such works to be implemented prior to occupation of the premises:

a) Central raised concrete median (minimum 0.9m wide);
b) Road pavement (minimum 3.5m wide travel lane and minimum 1.5m wide on-road cycle lane);
c) Left Turn Lane (minimum 3.5m wide);
d) Kerb and gutter;
e) Footway formation (minimum 3.5m wide measured from nominal face of kerb);
f) Footpaving (minimum 1.8m wide reinforced concrete);
g) Associated linemarking and signposting;
h) Associated drainage works; and
i) Associated underground street lighting.

(Note: i) Full construction details regarding the required works are to be submitted to Council for approval, under Section 138 of the Roads Act 1993, and approved prior to the commencement of any work in the public road.

ii) Construction plans are to be accompanied by two copies of a pavement design report prepared and certified by a practising geotechnical engineer.

iii) The Developer is advised to confer with Council’s Senior Development Officer (Engineering) on telephone number (02) 4974 2637 to ascertain Council’s detailed requirements in this regard.)

Reason: To ensure that public road facilities are upgraded to an appropriate standard having regard to the additional traffic movement likely to be generated by the proposed development.

5.43 Prior to the commencement of any excavation or construction of the proposed supermarket or carpark area, an acoustic fence being constructed along the full length of the south-eastern boundary of Lot 30 DP 869101 known as 1 Britannia Boulevarde, Fletcher. The fence is be a Colorbond fence or materials with similar acoustic properties, to a height of 1800mm, and maintained such that no significant gaps exist in the fence. Full details are to be included in documentation from a Construction Certificate application.

Reason : To ensure that appropriate noise control measures are implemented and the amenity of the area is protected.

5.44 Prior to the commencement of any excavation or construction of the proposed supermarket or carpark area, an acoustic fence being constructed along the full length of the north-eastern boundary of Lot 30 DP 869101 known as 1 Britannia Boulevarde, Fletcher. The fence is be a lapped and capped timber fence or materials with similar acoustic properties, to a height of 2000mm, and maintained such that no significant gaps exist in the fence.

Reason : To ensure that appropriate noise control measures are implemented and the amenity of the area is protected.

5.45 Use of the driveway crossings on Britannia Boulevarde and Minmi Road, by any vehicle, being restricted by the installation of suitable traffic management devices which are required to be locked between the hours of 10.00pm to 6:30am. Full details are to be included in documentation for a Construction Certificate application and the devices being installed prior to the release of the Occupation Certificate or occupation of the premises.

(Note: The traffic management device may consist of gates, bollards, chains or combination thereof.)

Reason: To prevent access to the site after hours and protect the amenity of the neighbourhood.

5.46 The following activities associated with the operation of the proposed supermarket being restricted to the following times:

Deliveries:
7:00am and 8:00pm daily

Waste collection, bin cleaning & garbage removal:
7:00am and 6:00pm Monday to Friday
8:00am and 6:00pm Saturday and Sunday

(Note: Generally deliveries & waste collection should avoid being undertaken during the retail trading hours.)
Reason : To confirm the terms of consent and to protect the amenity of the neighbourhood.

5.47. The hours of trading of the premises being not more than from:

DAY START FINISH

Monday 9:00am 7:00pm

Tuesday 9:00am 7:00pm

Wednesday 9:00am 7:00pm

Thursday 9:00am 9:00pm

Friday 9:00am 7:00pm

Saturday 8:30am 7:00pm

Sunday 9:00am 7:00pm

unless a separate application to vary the hours of operation or trading has been submitted to and approved by Council.
Reason : To protect the likely and future amenity of the neighbourhood and to ensure the use of the premises does not intensify without the prior consent of the Council.

5.48. The hours of staff being on the premises being limited to the following hours:

DAY START FINISH

Monday 6:30am 8:00pm

Tuesday 6:30am 8:00pm

Wednesday 6:30am 8:00pm

Thursday 6:30am 10:00pm

Friday 6:30am 8:00pm

Saturday 6:30am 8:00pm

Sunday 6:30am 8:00pm

unless a separate application to vary the hours of operation or trading has been submitted to and approved by Council.
Reason : To protect the likely and future amenity of the neighbourhood and to ensure the use of the premises does not intensify without the prior consent of the Council.

5.49. Any excavated material to be removed from the site being assessed, classified, transported and disposed of in accordance with the Department of Environment and Climate Change’s (DECC) ‘Waste Classification Guidelines Part 1: Classifying Waste’.

Reason : To prevent environmental pollution and to ensure observance of appropriate health standards.

5.50. Any fill material imported into the site being Virgin Excavated Natural Material or material subject to a Resource Recovery Exemption that is permitted to be used as a fill material, in accordance with the provisions of the Protection of the Environment Operations Act 1997 and the Protection of the Environment (Waste) Regulation 2005.

Reason : To ensure that any imported fill is of an acceptable standard for environmental protection purposes.

5.51. Any fill material subject to a Resource Recovery Exemption received at the site must be accompanied by documentation demonstrating that material’s compliance with the conditions of the exemption, and this documentation must be provided to Council officers or the Principal Certifying Authority on request.

Reason : To ensure that any imported fill is of an acceptable standard for environmental protection purposes.

5.52. A suitably qualified ecologist to be on-site during tree clearing to manage the identification, management and protection of flora and in particular, fauna, which are located on the site.

Reason : To prevent environmental pollution and harm to flora/fauna.

5.53. A dilapidation survey being conducted by a suitably qualified consultant of surrounding buildings considered to be at risk of property damage from site works, as determined by said consultant, prior to and following the proposed construction works.

Reason: To confirm the terms of consent and allow assessment of vibration impacts on neighbouring properties if required.

5.54. Continuous monitoring of peak vibration levels being conducted at properties considered to be potentially impacted by vibration due to site works as determined by a suitably qualified consultant. The results of vibration monitoring are to be provided to Authorised Council Officers upon request.

Reason: To confirm the terms of consent, allow assessment of vibration impacts on neighbouring properties and ensure compliance with the relevant assessment criteria.

5.55. Erosion and sediment control measures being implemented prior to the commencement of works and maintained during the period of construction in accordance with the details set out in the Sediment and Erosion Control Plan prepared by Robert Bird Group dated February 2009 and in accordance with the requirements of Managing Urban Stormwater: Soils and Construction 4^th Edition - Vol. 1 (the "Blue Book") published by Landcom, 2004.

Reason: To control soil erosion and prevent sedimentation of surrounding lands.

5.56 All building or site works or other written undertaking or obligation indicated in the submitted plans and supporting documentation or otherwise required under the terms of this consent being carried out or implemented prior to occupation of the premises.

Reason: To ensure compliance with the provisions of the Environmental Planning and Assessment Act,1979.

6 General Terms of Approval to be Obtained from Other Authorities

6.1 Working drawings and specifications of the proposed building being submitted to the NSW Mine Subsidence Board for approval prior to an application for a Construction Certificate and compliance with any requirements of the Board.

Note: The Board advises that it will be necessary for the working drawings to be certified by a qualified Structural Engineer to the effect that the proposed building works will be safe, serviceable and repairable having regard to the following mine subsidence parameters:

a) Design pot hole of nominal diameter 5000 mm.

b) Work as executed drawing to be submitted to the Board, certified by a qualified Structural Engineer that all improvements have been constructed in compliance with the plans approved by the Board.

c) No cavity or internal brick walls.

d) Absolute maximum height of foundation brickwork not to exceed 1.5 metres.

e) For brick veneer construction, the design to incorporate special features into the building (panellised brickwork and/or control joints etc) and

f) No raft or infill slabs.

Reason: To ensure that structural stability of the proposed development having regard to underground mine workings.

7 Advisory Matters

7.1 A Construction Certificate application for this project is to include a list of fire safety measures proposed to be installed in the building and/or on the land and include a separate list of any fire safety measures that already exist at the premises. The lists must describe the extent, capability and basis of design of each of the measures.

Reason: To advise of information that must accompany an application for a Construction Certificate for the project.

7.2 Prior to commencing any construction works, the following provisions of the Environmental Planning and 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 and form 7 of schedule 1 to the Regulations.

c) Council is to be given at least two days notice of the date intended for commencement of building works, in accordance with Section 81A(2)(c) of the Act and Form 7 of Schedule 1 to the Regulations.

Reason: To advise of matters to be resolved prior to the commencement of work.

7.3 Prior to the occupation of a new building, or, occupation or use of an altered portion of, or an extension to an existing building, an Occupation Certificate is to be obtained from the Principal Certifying Authority appointed for the proposed development. An application for an Occupation Certificate must contain the information set out in Clause 155 of the Environmental Planning and Assessment Regulations.

Reason: To ensure compliance with Section 109M of the Environmental Planning and Assessment Act 1979, as amended.

7.4 A copy of the final Fire Safety Certificate (together with a copy of the current fire safety schedule) is to be given to the Commissioner of NSW Fire Brigades and a further copy of the Certificate (together with a copy of the current fire safety schedule) is to be prominently displayed in the building.

Reason: To ensure compliance with Clause 172 of the Environmental Planning and Assessment Regulation 2000.

Citations

Aldi Stores v Newcastle City Council [2010] NSWLEC 227

Most Recent Citation

Cases Citing This Decision

4

Mike George Planning Pty Ltd v Woollahra Municipal Council (No 3) [2014] NSWLEC 123

Boral Cement Pty Ltd v SHCAG Pty Ltd; Minister for Planning and Infrastructure v SHCAG Pty Ltd [2013] NSWLEC 203

Botany Bay City Council v Pet Carriers International Pty Ltd [2013] NSWLEC 147

Cases Cited

12

Statutory Material Cited

3

Aldi Stores v Newcastle City Council [2010] NSWLEC 1110

Shire of Perth v O'Keefe [1964] HCA 37

W64/01A v Minister for Immigration and Multicultural Affairs [2002] FCA 970

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CITATION:	Aldi Stores v Newcastle City Council [2010] NSWLEC 227
PARTIES:	APPLICANT Aldi Stores RESPONDENT Newcastle City Council
FILE NUMBER(S):	10527 of 2010
CORAM:	Pepper J
KEY ISSUES:	APPEAL :- appeal pursuant to s 56A - whether there was a mischaracterisation of the use of the proposed development as both a "shop" and a "local shop" - whether there was a denial of procedural fairness - appeal upheld - whether the proceedings should be remitted or whether the consent should be granted - consent granted
LEGISLATION CITED:	Civil Procedure Act 2005 s 56 Land and Environment Court Act 1979 s 56A Newcastle Local Environmental Plan 2003
CASES CITED:	Aldi Stores v Newcastle City Council [2010] NSWLEC 1110 Cavasinni Constructions Pty Ltd v Fairfield City Council [2010] NSWLEC 65; (2010) 173 LGERA 456 Kostas v HIA Insurance Services Pty Limited [2010] HCA 32 Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; (2010) 240 CLR 611 Pallas Newco Pty Ltd v Votraint No 1066 Pty Limited [2003] NSWLEC 232; (2003) 129 LGERA 234 Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 198 ALR 59 Shire of Perth v O’Keefe (1964) 110 CLR 529 ThainaTown (on Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230
DATES OF HEARING:	2 November 2010
EX TEMPORE JUDGMENT DATE:	3 November 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms S Duggan SC SOLICITORS Baker & McKenzie RESPONDENT Ms A Pearman SOLICITORS Newcastle City Council

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