Ayache v Sutherland Shire Council - [2010] NSWLEC 1074

Land and Environment Court

of New South Wales

CITATION: Ayache v Sutherland Shire Council [2010] NSWLEC 1074

PARTIES:
APPLICANT:
Michael Ayache
RESPONDENT:
Sutherland Shire Council

FILE NUMBER(S): 10999 of 2009

CORAM: Tuor C

KEY ISSUES: DEVELOPMENT APPLICATION :- child care centre - residential neighbourhood - traffic and parking impacts - noise control

LEGISLATION CITED: Sutherland Shire Local Environmental Plan 2006

DATES OF HEARING: 3 March 2010 and 26 March 2010

DATE OF JUDGMENT:
26 March 2010

LEGAL REPRESENTATIVES:
APPLICANT:
Ms L Amy (solicitor)
SOLICITORS:
VA Lawyers
RESPONDENT:
Ms J Amy (solicitor)
SOLICITORS:
Sutherland Shire Council

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

26 March 2010

10999 of 2009 Ayache v Sutherland Shire Council

JUDGMENT

1 Commissioner: This is an appeal against the refusal by Sutherland Shire Council (the council) of a development application to demolish the existing dwelling and construct a child care centre for 36 children and on-site parking for four cars at 37 Dwyer Street, Gymea.

2 The site, its locality, the history of the application and the planning controls are in the Statement of Facts and Contentions filed by the Council on 11 February 2010.

3 The appeal commenced on site on 3 March 2010 as a conciliation conference under s 34 of the Land and Environment Court Act 1979 (Court Act). The Court heard evidence from a number of residents whose principle concern was the traffic and parking impacts of the proposal. They were concerned that Dwyer Street is too narrow to accommodate additional traffic, which is likely to be generated by the proposal, particularly as there is already a childcare on the street. They considered the traffic conditions in Manchester Road and Dwyer Street to be already dangerous and that this would be exacerbated by the proposal. The residents were also concerned that the proposal provided inadequate on-site parking and that cars would park on the street. They raised concerns about the safety of the proposal for young children. The adjoining owners were concerned about the noise impacts from the proposal, particularly children using outdoor area for extended periods.

4 The Court heard expert evidence from Mr C McLaren (for the applicant) and Mr P Anderson (for the council) on traffic issues and Mr R Abelard (for the applicant) and Ms D Pinfold (for the council) on planning issues.

5 The main concern of the experts was the design of the hard stand area off Dwyer Street which provides parking for two cars (including one disabled space). Ms Pinfold was concerned that the extent of the hard stand area was excessive and did not provide adequate landscaping. In her opinion this was uncharacteristic of the streetscape.

6 The experts agreed that the concern could be addressed by a re-design of the area and a reduction in the hard stand area. The parties agreed that amended plans should be prepared to reflect this and other changes such as location of garbage areas and acoustic fencing.

7 Ms Pinfold also raised concern about the potential noise impacts. An acoustic report recommended acoustic boundary fencing along adjoining residential properties. The acoustic report indicated that a maximum of 16 children using the outdoor play area would comply with a noise criterion of 5dB(A) above background with the provision of acoustic fencing.

8 The 2-5 age group proposes 20 children playing outdoor at any one time. The experts considered this to be acceptable on the basis that the outdoor play period for the 2-5 year olds be limited to a maximum of 1.5 hours per day and a noise criterion of 10dB(A) above the background not be exceeded for this period.

9 The experts agreed that a plan of management is required to incorporate the traffic management and noise controls for outdoor play activities at the centre.

10 The s 34 hearing was adjourned for the amended plans and plan of management to be prepared.

11 The s 34 conference resumed on 26 March 2010. Ms Amy, for the council, advised that the amended plans and plan of management had been considered by the experts and found to be acceptable and that the contentions between the parties were resolved. However, the council would not enter into a s 34 agreement on the basis of the residents concerns. The s 34 conciliation was therefore terminated. The parties agreed to me disposing of the proceedings under s 34(4)(b)(ii) of the Court Act and to me considering the evidence from the conciliation conference.

12 A joint report by Mr McLaren and Mr Anderson which addressed the traffic issues and the amended plans was tendered but no further oral evidence was heard.

13 Mr McLaren and Mr Anderson stated in the joint report that:

the revised plans address all matters raised during the s 34 Conference, with regard to car parking changes and pedestrian safety. Mr McLaren and Mr Anderson agree that the revised plans comply with AS2890.1-2004 and provide an adequately designed disabled parking space, in accordance with AS2890.6-2009.

Mr McLaren and Mr Anderson agree that the short term parking demand of visitors and parents associated with the proposed child care centre can rely upon the on-street parking supply immediately fronting the site in Manchester Road.

Mr McLaren and Mr Anderson that Contention No. 2 and the traffic, parking and pedestrian matters raised under Contention No. 5 are satisfactorily addressed by the revised plans. Mr McLaren and Mr Anderson agree that the management plan is appropriate and that in practical terms the plan of management is enforceable and does provide a proper planning outcome for this site. Therefore, Mr McLaren and Mr Anderson agree that Contention Nos. 2 and 5 (traffic, parking and pedestrian safety matters) are resolved and no longer in issue in this case.

Findings

14 The concerns of the residents relate principally to traffic and parking and noise. These reflect the contentions that were originally raised by the council but have now been resolved.

15 In relation to the traffic and parking, the applicant has submitted a traffic assessment. The traffic experts agree that having regard to the history of traffic accidents and the existing traffic conditions the increased traffic generated by the proposal is acceptable. The proposal does not comply with the requirement in cl 1.b.34 of Pt 7 of the Sutherland Shire Development Control Plan 2006 (DCP) of one space per four children. However, it meets the objectives of the control as there is safe and convenient parking along the street frontage of the site in Manchester Road.

16 Both traffic experts agree that for this site the parking arrangements are acceptable, given the existing and proposed traffic volumes are low, the width of Manchester Road, the availability of parking and the site’s corner location.

17 In relation to noise, the experts have agreed that with the provision of acoustic fences along the north and east boundaries of adjoining residences and with the limitation of the use of the outdoor play area in accordance with the approved management plan, the noise impacts are acceptable. A condition has been imposed to require compliance with the noise criteria and monitoring.

18 In the absence of expert evidence to the contrary, I accept the evidence of the experts in relation to noise and traffic.

19 The proposal therefore meets the relevant objective for Zone 4 in the Sutherland Shire Local Environmental Plan 2006 (SSLEP 2006):

(e) to allow non-residential buildings that provide necessary services to the local community without adversely affecting the residential amenity of the zone.

20 The proposal meets the requirements in cl 50(2)(c) and cl 53(c) of SSLEP 2006 and the relevant objectives of the DCP.

Annelise Tuor

Commissioner of the Court

Appeal No: 10999 of 2009

Annexure ‘A’

Conditions of Consent

Premises: No. 37 Dwyer Street, Gymea

GENERAL CONDITIONS

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

1. Approved Plans and Documents

The development shall be implemented substantially in accordance with the details and specifications set out on the Drawing No. KASS-Sec 34-01b prepared by Norman A Naylor & Associates printed on 10 March 2010 but dated 10 February 2010 and KASS-DA-00b (relating to the Construction Management Plan only) and the Plan of Management dated 26 March 2010 attached and marked “B” and any details on the application form and on any supporting information received with the application except as amended by the conditions specified and imposed hereunder.

Nothing in this development consent whatsoever approves or authorises the commencement, erection or construction of any building or construction works.

Prior to the commencement of any building or construction work being carried out a 'construction certificate' shall be obtained from Council or an Accredited Certifier.

Prior to any work being carried out relating to the development the subject of the consent, the person implementing the consent shall provide Council with:

2. Prescribed Conditions - General

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

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

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

3. Approvals Required under Roads Act or Local Government Act

The following works or activities shall not be carried out on public land (including a road) adjacent to the development site without approval under the Roads Act 1993 and/or the Local Government Act 1993:

a) Placing or storing materials or equipment;
b) Placing waste containers or skip bins;
c) Pumping concrete from a public road;
d) Standing a mobile crane;
e) Pumping stormwater from the site into Council’s stormwater drains;
f) Erecting a hoarding;
g) Establishing a construction zone;
h) Opening the road reserve for the purpose of connections including telecommunications, water, sewer, gas, electricity and stormwater; or
i) Constructing a vehicular crossing or footpath.

An application, together with the necessary fee, shall be submitted and approval granted by Council prior to any of the above works or activities commencing.

4. Site contamination assessment and remediation

Following demolition of the existing buildings but prior to commencement of construction of the child care centre a Preliminary Site Assessment (carried out in accordance with NSW Department of Climate Change guidelines) shall be undertaken by a suitably qualified Environmental Consultant, incorporating in particular soil testing for asbestos and lead, and any contamination found exceeding the NSW Department of Climate Change guidelines must be remediated prior to the commencement of construction of the child care centre.

5. Noise Management Plan

A Noise Management Plan shall be prepared and submitted setting out the day time running of the centre with emphasis on hours of use of the outdoor play area including the number of children at each time slot and the allocated times each age group will use the outdoor play area. All centre staff shall be advised of the plan upon commencement of employment of the centre.

6. Testing procedure

Within 12 weeks of the commencement of the use of the premises as a childcare centre, the Applicant, when called upon to do so by Council, shall engage a suitably qualified independent practicing acoustic engineer to carry out post construction validation testing. The Council shall approve the appointment of the suitably qualified independent practicing acoustic engineer prior to the testing commencing.

The testing must be carried out at a time deemed appropriate by the suitably qualified independent practicing acoustic engineer in consultation with Council. The testing shall be carried out without the prior knowledge of the Applicant and in such manner as the suitably qualified practicing acoustic engineer considers appropriate.

A suitably qualified practicing acoustic engineer is to remain in the physical locality of the noise receiving and testing equipment at all times during the duration of the testing.

If the post construction validation test results demonstrate that the development does not comply with the noise criteria stipulated in this development consent, then the Applicant shall ensure that development is carried out in an alternative way such that the criteria are complied with until such time as the development as originally carried out does comply with those noise criteria as evidenced by a further report from the acoustic engineer nominated by Council.

The costs of the acoustic engineer in carrying out the post construction validation results referred to in this condition are to be borne by the Applicant. However, the services to be performed pursuant to this condition by the engineer are to be only those that relate to the post construction validation testing referred to in this condition which includes any further testing and reports as referred to in the above paragraph to demonstrate compliance with the criteria contained in this development consent.

A copy of any report is to be provided to the Applicant as well as Council.

7. Capacity of Centre

The capacity of the centre shall be limited to a maximum of 36 children.

8. Acoustic controls

8A. All the windows on the eastern façade of the indoor playroom 2 are to remain closed during activity periods and shall be constructed using 6.38mm laminated glass with acoustic seals.

9. Public Liability Insurance

10. Public Place and Environmental Damage Security

prior

A request for release of the security deposit may be made to Council after all works relating to this consent have been completed. Such a request shall be submitted to Council on the ‘Bond Release Request Form’ signed by the owner or any person entitled to use of the consent.

11. Design and Construction of Works or Assets in Public Areas

Council has determined that the proposed development generates a need for works to be undertaken by the Applicant in the Road Reserve in conjunction with the development:

Before the commencement of any works or the issue of a Construction Certificate the applicant shall provide security to Council as specified above and as set out in the adopted Schedule of Fees and Charges (in the form of cash, cheque or bank guarantee). A non refundable inspection / administration fee is included in the bond value. It is the applicant’s responsibility to notify Council of any existing damage prior to the commencement of works through the submission of a current dilapidation report supported by photographs at least 2 days prior to the commencement of works.

Before seeking a Construction Certificate , for a complete understanding of the requirements and procedures relating to the administration, holding and release of bonds contact the Civil Assets Manager on telephone 9710 0134.

MATTERS RELATING TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

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

12. Design Changes Required

To reduce the environmental impact of the development proposal, the following design changes shall be implemented:

a) Deleted.

b) Provision shall be made for one on site bicycle parking space.

c) The Disabled Persons Parking Space shall comply with the dimensional requirements of Australian Standard AS 2890.1- 2009.

d) Deleted.

13. Detailed Landscape Plan

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

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

The Detailed Landscape Plan shall be based on the Concept Landscape Plan No 08-2120B Sheets 1 and 2 prepared by Zenith Landscape Design dated September 2008 and shall address the following:

(a) A planting plan at a scale of 1:100 or 1:200 indicating the location of all proposed planting and existing trees to be retained. All plants are to be drawn at their mature size with a dense planting of shrubs, accent plants and ground covers within all garden beds so that a continuous planted cover is achieved.
(b) A planting schedule listing all plants by botanic and common names, plant numbers, plant spacings for shrubs, groundcovers and accent plants, pot sizes, estimated size of plant at maturity (height and spread) and proposed staking methods when applicable. The plant schedule is to provide a minimum 80% local indigenous species and species selection is to be considered carefully and shall avoid all species known to be toxic, poisonous or to cause skin irritations or breathing difficulties.
(c) Additional notation showing soil and mulch details, irrigation details, edging, paving, fencing details, surface finishes, retaining wall details and any other landscape elements in sufficient detail to fully describe the proposed landscape works.
(d) Additional information to fully describe any proposed playground equipment and soft fall, including details showing that this equipment and soft fall complies with the relevant Australian standards.
(e) Position of existing and proposed site services including water, gas, electricity, sewer, storm water etc.
(f) Sectional elevations through the site, showing the existing and proposed ground lines, building elevations and mature height of proposed planting.
(g) The landscape plan shall include an additional tree having a mature height of at least 4 metres in the lawn area to the south west of the entry doors. The tree selected shall be of a local indigenous species.
(h) The landscaped areas shall be provided with a water efficient irrigation system in accordance with Sydney Water requirements and relevant Australian Standards.
(i) Location of easements within the site and upon adjoining sites (if any)
(j) An edge strip shall be provided between any lawn and garden bed area. The edging shall finish flush with the finished lawn level and shall be constructed from either concrete, face brick set in mortar or timber.
(k) In order to prevent overhang into garden beds, concrete wheel stops shall be located to all car spaces. Such wheel stops shall be positioned in accordance with the Australian Standard of Parking Facilities – off-street car parking, AS2890.1-1993. Details of the wheel stops shall be shown on the detailed landscape drawings.
(l) In order to prevent the encroachment of motor vehicles into the landscaped areas, a 150mm high concrete edge shall be constructed between the landscaped areas and roadway. Details of the concrete edge shall be shown on the detailed landscape drawings.
(m) The detailed landscape plan shall note that all excavation works required within the drip zone of any tree to be retained either within or external to the site boundaries shall be undertaken by hand and supervised by the site arborist who shall provide certification to that effect prior to the issue of any Occupation certificate

14. Site Management Plan

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

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

15. Design and Construction of Works in Public Areas

Council has determined that the proposed development generates a need for works to be undertaken by the Applicant in the Road Reserve in conjunction with the development:

(a) Stormwater drainage work comprised of construction of a pipeline and stormwater drainage pit within Manchester Road. The joint between the OSD drainage outlet pipeline and Council’s stormwater drainage pipeline shall be accomplished by the construction of a pit compliant with details within Councils “Civil Works Specification for Subdivisions and Developments”.
(b) Demolition of existing kerb and gutter at the proposed points of access and replacement with a concrete layback crossing.
(c) Removal of all redundant layback crossings and reconstruction with integral concrete kerb and gutter.
(d) Removal of all redundant footpath crossings and reinstatement in accordance with Council’s requirements.
(e) A layback crossing at the access points, such to be no closer than 6 metres to the intersection of adjacent roads.
(f) The footpath crossing in Dwyer Street to be 5.5 m wide and Manchester Road to be 5.5m wide.
(g) Provision of pedestrian kerb ramps at the Manchester Road/Dwyer Street intersection compliant with Council’s design.
(h) Construction of a 1.2m wide reinforced plain concrete footpath across the full frontages of the site.
(i) Regrading, topsoiling and turfing of the footpath area to final design levels across the full frontages of the site and across adjacent properties if existing levels are altered or the existing turf is damaged. Transitions between the design levels and existing levels shall be at a maximum gradient of 1 in 14. Public utility services shall be altered accordingly to match the design and any transitions.
(j) Construction of footpath crossings to the levels issued by the Council in Manchester Road and Dwyer Street..
(k) Erosion and sediment controls.
(l) Provision of street landscaping.
(m) Adjustment to public services infrastructure where required.

An application under the Roads Act, together with the necessary fee, shall be submitted and approval granted by Council prior to any of the above works or activities commencing. Approval under the Roads Act cannot be granted by a Principal Certifying Authority or by a Private Certifier. Failure to obtain approval may result in fines or prosecution.

16. Soil and Water Management

Prior to the commencement of works or the issue of a Construction Certificate, the applicant shall submit to and obtain Council approval of a Soil and Water Management Plan and Statement which clearly identifies site features, constraints and soil types together with the nature of proposed land disturbing activities and also specifies the type and location of erosion and sediment control measures and also rehabilitation techniques necessary to deal with such activities.
The Plan shall take into account the objectives of Council's Environmental Site Management Development Control Plan and shall be compatible with any Construction Management Plan thus ensuring the following objectives are achieved, namely:

17. Mechanical Services

All mechanical services must be acoustically treated to ensure that during the hours of 7am and 10pm Mondays to Fridays and 8am to 10pm Saturdays, Sundays and Public Holidays, noise emitted from the service is no more than 5 dB(A) above the background noise level.

18. Access Application

Access applications shall be made to Council to obtain footpath crossing and boundary alignment levels for both Dwyer Street and Manchester Road before commencing the final design of internal driveways, paths and car park area. The proposal shall comply with the levels issued by Council and a copy of the issued levels shall accompany the Construction Certificate.

19. Road Opening Approval Required

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

20. Nomination of Engineering Works Supervisor

Prior to the issue of a Construction Certificate the applicant shall nominate an appropriately accredited certifier to supervise all public area civil and drainage works to ensure that they are constructed in compliance with Council's current "Specification for Civil Works Associated with Subdivisions and Developments".

The engineer shall:

21. Nomination of Supervising Arborist

Prior to the issue of a Construction Certificate, the Applicant shall nominate a suitably qualified and experienced arborist to act as an Accredited certifier for all works that lay within the drip zones of trees to be retained both within and external to the development site . The arborist shall:-

22. Public Utilities

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

23. Sydney Water - Notice of Requirements

Prior to the issue of a Construction Certificate the applicant shall obtain a Notice of Requirements under the Sydney Water Act 1994, Part 6 Division 9 from Sydney Water and submit the Notice to the Council.

24. Sydney Water - Referral Requirements

The plans approved as part of the Construction Certificate shall be submitted to a Sydney Water Quick Check agent or Customer Centre to determine as to whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and / or easements, and if further requirements need to be met. Plans will be stamped appropriately.

for:
? Quick Check agents details – see Building Development and Plumbing then Quick Check; and
? Guidelines for Building Over / Adjacent to Sydney Water Assets – see Building Development and Plumbing then Building and Renovation.

25. Internal driveway profile

The internal driveway profile shall be designed to:

(a) Provide adequate sight distance for the safety of pedestrians using the footpath area;

(b) Align with Council’s issued footpath crossing levels;

(c) Provide a maximum grade of 5% for the first 3 metres inside the property boundary; and
(d) Comply with AS2890.1(2004) and AS2890.2(2002) – Small Rigid Vehicle - in relation to the design of vehicular access, parking and general manoeuvring.

A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.

26. Public Utility Authorities

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

27. Drainage Design - Detailed Requirements

A detailed drainage design shall be prepared in accordance with Sutherland Development Control Plan 2006 (Chapter 8 - Ecologically 'Sustainable Development'; Section 6 - 'Stormwater Management'), “Australian Rainfall and Runoff (1987)”, Council's Drainage Design Manual and Council's "On-site Stormwater Detention Policy and Technical Specification”.

The design shall include:

a) A detailed drainage design supported by a catchment area plan and drainage calculations.
b) A layout of the drainage system showing existing and proposed pipe sizes, type, class, grades, lengths, invert levels, finished surface levels and location of all pipes with levels reduced to Australian Height Datum. Impacts on existing trees must be indicated on the plan.
c) A longitudinal section of the pipeline within the road reserve including existing natural surface levels, design surface levels, design invert levels of the proposed pipeline and the location, size and reduced level of all services to AHD where those services cross the proposed drainage line.
d) A physical barrier (eg. concrete kerb or earth mound within the landscaping) shall be provided around the perimeter of the site to prevent the discharge of surface water flows onto adjoining properties or the road reserve.
e) Water from pathways and access drives shall be prevented from entering the road reserve as surface flow. This can be achieved by constructing a box drain at the boundary equipped with a 300mm wide grate and frame to collect the flow or directing the flow to a sag pit within the property.
f) The rate of discharge of stormwater from the site to a drainage system under Council’s control shall be controlled so that it does not exceed the pre-development rate of discharge. Specific certification from the designer to this effect shall be incorporated in the submitted drainage plans / details.

g) All excavation works for the installation of the outlet pipe for the site On-Site Detention system together with all pipelines and other drainage structures within the development site where such excavation lays within the drip zone of any trees within the site or the road reserves of Dwyer Street and Manchester Road shall be undertaken by hand and supervised by the site supervising arborist who shall provide Certification to that effect prior to the issue of any Occupation Certificate.

A Compliance Certificate issued by an appropriately accredited person to the effect that these design requirements have been met shall accompany the Construction Certificate.

28. Drainage Design (Stormwater Disposal)

To ensure the efficient disposal of stormwater and that no problem is caused to surrounding premises, the stormwater from the development shall be discharged to the existing piped drainage system in Manchester Road, being a properly functioning system permitted by Council.

29. Stormwater Treatment

An appropriate stormwater treatment measure, selected from the Environment Protection Authority’s document “Managing Urban Stormwater - Treatment Techniques, November 1997”, shall be provided as part of the permanent site stormwater (water quality) management system.

30. Parking Areas and Access

All vehicular access, parking and manoeuvrability for the proposed development shall be designed and constructed to comply with AS2890.1 - 2004.

The following specific requirements shall be incorporated into the constructed works:
a) The car parks shall be line marked sufficient to accommodate four vehicles with staff car parking delineated by signposting and handicapped space marked in accordance with Australian Standard AS2890.1-2004.
b) The internal driveway and car parking area shall be paved using materials other than plain or exposed aggregate concrete.

31. Cleanliness and Maintenance of Food Preparation Areas

To ensure that adequate provision is made for the cleanliness and maintenance of all food preparation areas all building work in connection with the occupation or use of the premises intended for the preparation and storage of food shall be designed and implemented in accordance with the requirements of:
i) Food Act 2003.
ii) Food Regulation 2004.
iii) Food Safety Standards 3.1.1, 3.2.2 and 3.2.3.
iv) AS 4674 – 2004 (Design, construction and fit-out of food premises).
v) Sydney Water Corporation - Trade Waste Section.
vi) Protection of the Environment Operations (Clean Air) Regulation, 2002.
vii) AS 1668 Part 1- 1998.

viii) AS 1668 Part 2 – 1991.
ix) The Building Code of Australia
Certification to this effect shall be provided by an appropriately qualified person and this shall accompany the Construction Certificate.

32. External Lighting - (Amenity)

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

33. Building Ventilation

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

(a) The Building Code of Australia
(b) AS 1668 Part 1 – 1998
(c) AS1668 Part 2 – 1991
(d) The Public Health Act – 1991.
(e) The Public Health (Microbial Control) – Regulation 2000
(f) AS 3666.1 – 2002
(g) AS 3666.2 – 2002
(h) AS 666.3 – 2000
Details of all mechanical and / or natural ventilation systems, along with specific certification provided by an appropriately qualified person verifying compliance with the abovementioned requirements, shall accompany the Construction Certificate.

34. Noise Control – Design of Plant and Equipment (Continual Operation)

To minimise the impact of noise from the development, all sound producing plant, equipment, machinery, mechanical ventilation systems and / or refrigeration systems, shall be designed and / or located so that the noise emitted does not exceed the Project Specific Noise level when measured at the most affected point on or within any residential property boundary.

The Project Specific Noise level shall be the most stringent noise level of the Intrusive and Amenity criteria and be calculated in accordance with the provisions of the Department of Environment and Conservation’s Industrial Noise Policy. The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1.
Details of the acoustic attenuation treatment required to comply with this condition, shall be prepared by a practising acoustic engineer and shall be submitted with the Construction Certificate.

35. Engineering Work -

All engineering work in relation to the proposed development within the road reserves of Dwyer Street and Manchester Road shall be designed and constructed in accordance with the requirements of Council’s adopted “Specification for Civil Works Associated with Subdivisions and Developments”.

36. Energy Efficiency

Details of how it is intended to achieve the Energy Efficiency requirements listed below, shall form part of the Construction Specifications or shall detailed on the plans endorsed with the Construction Certificate:

a) A hot water system having a 3.5 rating, using SEDA's Greenhouse Scorecard.
b) AAA rated shower heads, wash basins, kitchen sink and toilet cisterns.
c) Clothes dryers having a 3.5 rating, using SEDA's Greenhouse Scorecard.
The hot water system shall be designed and/or located so that the noise emitted does not exceed an LAeq sound pressure level of 5dB above the ambient background noise level in any octave band, from 31.5Hz to 8kHz centre frequencies inclusive when measured at the most affected point on or within any residential property boundary.

37. General Amenity / Compliance with Acoustic Report

To minimise the impact of noise on the surrounding residents the development shall be designed in accordance with the recommendations in Section 7.0 of the acoustic report prepared by Acoustic Local Consultancy Report No 2008630/0902/R2/TT dated 5 September 2008. Details of the acoustic treatment shall accompany the application for the construction certificate.

No colourbond fencing shall be used in the construction of the boundary fence of the development.

38. Submission of Fire Safety Schedule

A fire safety schedule shall be issued by an appropriately qualified person and provided to Council as part of the Construction certificate in accordance with the Environmental Planning & Assessment Regulation 2000. This schedule shall distinguish between current, proposed and required fire safety measures, with the minimum standard of performance being indicated for each fire safety measure. The Fire Safety Schedule shall identify each fire safety measure that is a Critical Fire Safety Measure and the intervals at which supplementary fire safety statements shall be given to the Council in respect of each such measure.

PRE-COMMENCEMENT CONDITIONS

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

39. Pre-Commencement - Notification Requirements

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

40. Pre-commencement Inspection

The pre-commencement meeting is to be convened by the Applicant on-site a minimum 5 days prior to any demolition and/or construction activity and between the hours of 8.00 am and 4.30 pm Monday to Friday. Prior to this meeting the relevant sections of the Environmental Site Management Plan (ESMP) must be implemented. The meeting must be attended by a representative of Council's Civil Assets Branch, the PCA, the builder/site manager of the building/civil construction company and where necessary the supervising engineer. The attendance of the owner is required when it is intended to use more than one builder/principal contractor throughout the course of construction.

The purpose of the meeting is to:
i) Inspect the implementation of relevant sections of the ESMP such as safe passage for pedestrians, the installation of sediment and erosion controls, hoardings, Work and Hoarded Zones;
ii) Check the installation and adequacy of all traffic management devices;
iii) Discuss/explain any sections of the development consent that may require clarification or elaboration;
iv) Confirm that a Construction Certificate has been issued where necessary and all Council fees paid;
v) Vet the compliance of any special/specific conditions of consent;
vi) Confirm that the supervising engineer has a copy of Council's Specification for Civil Works Associated with Subdivisions and Developments – January 1996; and,
vii) Confirm that the builder/site manager/principal contractor has a copy of the Sutherland Shire Development Control Plan 2006 and Environmental Specification 2007.

41. Pre-commencement Site Inspection - Road Frontage Works

The Principal Certifying Authority and / or the Supervising Engineer shall undertake a site inspection with Council staff prior to commencement of the road frontage works. The purpose of this inspection is to enable Council's Civil Assets Engineer to clarify Council's requirements, as owner of the roadway, in relation to the carrying out of the works.

Contact shall be made with Council's Civil Assets Branch to arrange for the inspection. An inspection fee shall be paid to Council prior to the lodgement of the Notice of Commencement.

42. Signs to be Erected on Building and Demolition Sites

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

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

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

CONSTRUCTION CONDITIONS

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

43. Environmental Site Management DCP

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

44. Permitted Hours for Building and Demolition Work

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

45. Toilet Facilities

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

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

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

46. Demolition Work

To ensure that demolition of structures is carried out in an environmentally acceptable and safe manner:
a) The demolition of the existing building shall be carried out strictly in accordance with Australian Standard 2601 - The Demolition of Structures.
b) It is the applicant's responsibility to notify Council of any existing damage to public areas in the vicinity of the development site through the submission of a dilapidation report supported with suitable photographic records. This information shall be submitted to Council prior to the commencement of work. Any damage other than that noted prior to commencement of the demolition shall be the responsibility of the owner of the property for repair or reinstatement.
c) The applicant shall ensure that the demolition contractor has a current public risk insurance coverage for a minimum of $5 million. A copy of the Policy must be submitted to the Council prior to demolition.
d) If demolition is to commence prior to the issue of a Construction Certificate, the applicant shall submit to Council a Site Management Plan – Demolition for assessment prior to the commencement of any demolition work. This plan shall satisfy the objectives of Council's Environmental Site Management Development Control Plan and shall consider the following:
i) What actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from demolition activities, crossings by heavy equipment, plant and materials deliveries and the like;
ii) The proposed method of loading and unloading demolition machines within the site;
iii) The proposed areas within the site to be used for the storage of demolished material and waste containers during the demolition period;
iv) How it is proposed to ensure that soil / demolished material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways;
v) The requirements of any site specific Development Control Plan that may affect this development site.

e) Pre-Commencement Inspection

If demolition is to commence prior to the issue of a Construction Certificate, the Builder/principal contractor shall undertake a pre-commencement site inspection with Council's Engineering Compliance Officer and Council's Civil Asset Manager . The purpose of this inspection is to facilitate the implementation of the consent specifically with regard to the impact on the public way and to clarify any matters of concern. An inspection fee shall be paid to Council prior to the meeting.

47. Demolition – Removal of Asbestos Material

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

a) Occupational Health and Safety Act 2000;
b) Occupational Health and Safety Regulation 2001;
c) Code of Practice for the Safe Removal of Asbestos 2nd Edition [NOHSC:2002(2005)];
d) Workcover NSW ‘Working with Asbestos – Guide 2008’; and,
e) Protection of the Environment Operations Act 1997.

Should works involve the removal of more than 10 square metres of asbestos material, a bonded asbestos licence is required. A friable asbestos licence is required to remove, repair or disturb any amount of friable asbestos. For further information contact the NSW Workcover Authority. Asbestos waste in any form shall be disposed of at a waste facility licensed by the Department of Environment Climate Change & Water to accept asbestos waste.
The applicant shall notify Council’s Environment & Health Regulation Unit (phone (02) 97100333 during normal business hours) of any proposed removal of asbestos material not less than 72 hours prior to the commencement of the work.

48. Excavations and Backfilling

a) All earthworks including excavations and backfilling associated with the development shall be executed safely and in accordance with appropriate professional standards.
b) All excavations associated with the development must be properly guarded and protected to prevent them from being dangerous to life or property.
c) All canopy, trunk and root system of all trees to be retained on site and neighbouring properties shall be protected from damage during excavation.

49. Retaining Walls and Drainage

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

50. Support for Neighbouring Buildings

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

a) Shall preserve and protect the building from damage.
b) If necessary, shall underpin and support the building in an approved manner.
c) Shall, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished.
d) The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.
In this clause, allotment of land includes a public road and any other public place.

51. Protection of Public Places

To protect public safety and convenience during the course of constructing the works covered by this consent, the following matters shall be complied with:
a) If the work involved in the erection or demolition of a building:
i) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed, inconvenienced, or rendered unsafe; or
ii) building involves the enclosure of a public place,
A hoarding or fence shall be erected between the work site and the public place.
b) If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.
c) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.
Any such hoarding, fence or awning shall be removed and any damage to any public place reinstated to Council's satisfaction when the work has been completed.

52. Noise Control during Construction and Demolition

To minimise the impact on the surrounding environment:
a) For construction and demolition periods of four (4) weeks or less, the LAeq sound pressure level measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the ambient background level (LA90 15min) by more than 20dB(A) when measured at the nearest affected premises.

b) For construction and demolition periods greater than four (4) weeks, the LAeq sound pressure level measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the ambient background level (LA90 15min) by more than 10dB(A) when measured at the nearest affected premises.

53. Environment Protection and Management

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

54. Run-off and Erosion Controls

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

55. Stockpiling of materials during construction

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

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

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

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

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

58. Irrigation system

The grassed and landscaped areas within the development site shall be provided with a water efficient irrigation system to enable effective landscape maintenance. Details of this shall be provided in the landscape plan which shall accompany the Construction Certificate.

Landscaping Requirements

These conditions are imposed to ensure the retention and enhancement of the existing landscaping.

59. Tree Replacement

A minimum of two (2) local native canopy replacement trees shall be planted within the subject site and not within 3m of a building and one (1) replacement street tree of the Species Eucalyptus racemosa - scribbly gum shall be planted on the Dwyer Street verge. They shall have a minimum pot size of 25 litres and shall be maintained and protected until they are covered by Council’s Controls for Preservation of Trees and Bushland Vegetation. This tree planting shall be reflected on the Landscape Plan. Any replacement trees found faulty, damaged, dying or dead shall be replaced with the same species within one month of the issue of the Occupation Certificate.

60. Removal of Trees

The issue of the Construction Certificate gives approval for the removal of the following trees:

a) Any trees specifically identified in the consent “existing tree to be removed”.
b) Any trees growing within the building footprint of the approved structures.
c) Any declared noxious plant. The applicant is to ensure that all noxious plants are properly identified and controlled/removed.
d) Any tree species listed in Clause 57 of the SSDCP 2006 Council’s Controls for Preservation of Trees and Bushland Vegetation.
e) Any approved tree removals within the road reserve shall be organised in consultation with Council’s Street Tree Manager Phone: 9710 5773 or 0414 193944.
All other vegetation not specifically identified above, and protected by Council’s Controls for Preservation of Trees and Bushland Vegetation shall be retained and protected from construction damage. These Controls for Preservation of Trees and Bushland Vegetation protects any vegetation unless written consent is obtained.

61. Street Tree Retention

The trees identified for retention on the Site Levels and Surface Finishes Plan no. J8-2120 sheet 1/2 dated Sept 08 , along the Dwyer Street and Manchester Road footpaths shall be retained and the footpath design amended accordingly. Tree 16 identified on this plan shall be retained.

POST CONSTRUCTION CONDITIONS

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

62. Section 73 Compliance Certificate

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

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

63. Works As Executed Information

Certification shall be provided from a registered surveyor to the effect that:
a) All civil engineering works required by this development consent have been carried out in accordance with the terms of the development consent and the approved engineering drawings with regard to location and level.
b) All pipes, pits and detention facilities lay within their relevant existing or proposed easements.

64. Works As Executed Drawings

Certification shall be provided from the supervising engineer acting as an Accredited Certifier, to the effect that:
a) All civil engineering and stormwater works associated with development have been carried out in accordance with the terms of the development consent, the approved engineering drawings and in the case of public works Council's "Specifications for Civil Works associated with Subdivisions and Developments".
b) The construction of the drainage system for the proposed development has been carried out generally in accordance with the requirements of the approved stormwater drainage plans, Council's stormwater management policy and guidelines and Council's On-site Detention Policy and has been carried out in order that stormwater runoff downstream is not increased as a result of the development and that all assumptions made during the design remain valid. Works-as-Executed drawings certified in the above manner and containing all relevant information as required by Council's "Specification for Civil Works Associated with Subdivisions and Developments" shall accompany the Subdivision / Occupation Certificate.

65. Acoustic Treatment Certification

Certification shall be provided from a suitably qualified acoustic engineer certifying that the acoustic treatment of the premises complies with the requirements of the development consent. This shall accompany the Occupation Certificate.

66. Food

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

67. General Compliance

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

68. Certification from Supervising Arborist

Certification shall be provided from the Supervising Arborist acting as an Accredited Certifier certifying that all construction and excavation works that lay within the drip zone of any trees to be retained on-site or within the road reserves of Dwyer Street or Manchester Road have been undertaken by hand and that such works have resulted in minimum damage or disturbance to any tree root system.

69. Prior to Occupation or Use of the Development

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

70. Final site Inspection

Prior to the issue of any Occupation Certificate, a final site inspection relating to the public area shall be arranged by the applicant, and shall be undertaken by the applicant's Supervising Engineer and Council's Civil Assets Engineer. The purpose of the inspection is to ensure that notwithstanding the submission of any certificates required by the development consent, all impacts within the public area caused by the development have been satisfactorily addressed.
The relevant inspection fee shall be paid to Council.

71. Positive Covenant over Detention Facilities

A positive covenant pursuant to Section 88E of the Conveyancing Act, 1919 shall be created on the title of the allotment with respect to the maintenance of the required detention facilities. To this end the registered proprietor(s) of the property thereby burdened shall covenant with Sutherland Shire Council and its successors not to use the property except as permitted by this development specifically with respect to the provision and maintenance of the detention facilities.

OPERATIONAL CONDITIONS

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

72. Carparking Areas

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

73. Hours of Operation

To minimise the impact of the development on the surrounding environment, the use of the premises for activities relating to the supervising or caring for children including dropping off and picking up of children shall be restricted to between the hours of 7.00am and 6.00pm Mondays to Fridays.
Childcare Centre Staff, cleaners and maintenance personnel may undertake cleaning and maintenance between 8 am and 7 pm Mondays to Fridays and between 9 am and 3 pm Saturdays. There shall be no use of the premises on Sundays or Public Holidays due to the proximity of residential development.

74. Loading and Unloading

In the interests of public safety and amenity, all delivery vehicles servicing the property shall stand within the curtilage of the site. Loading and unloading of vehicles from the roadway is not permitted.

75. External Lighting

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

76. Noise Control - Offensive Noise

To minimise the noise impact on the surrounding environment, the use of the premises, building services, equipment, machinery and ancillary fittings shall not give rise to an "offensive noise" as defined under the provisions of the Protection of the Environment Operations Act 1997.

77. Noise Control – Plant & Equipment (Continual operation)

To minimise the impact of noise from the development, all sound producing plant, equipment, machinery, mechanical ventilation systems and / or refrigeration systems, shall be operated so that the noise emitted does not exceed the Project Specific Noise level when measured at the most affected point on or within any residential property boundary.

The Project Specific Noise level shall be the most stringent noise level of the Intrusive and Amenity criteria and be calculated in accordance with the provisions of the Department of Environment and Climate Change Industrial Noise Policy.
The method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1.

78. Maintenance of Landscaping

All site landscaping and associated watering system/s required to comply with this consent shall be maintained in perpetuity in accordance with the approved landscape plan/s. Replacement plantings shall be carried out for any plants which fail at any time for any reason.

79. Compliance with DOCS Regulations

Notwithstanding any other conditions detailed in this consent, the development shall at all times comply with the requirements of the Department of Community Services relative to the operation of the Childcare facility.

79A. Compliance with the Plan of Management dated 26 March 2010

The development shall at all times comply with the requirements of the Plan of Management dated 26 March 2010 relative to the operation of the Childcare facility, a copy of which is attached and marked “B”.
79B. Modification of the Plan of Management

The Plan of Management shall be reviewed annually and any changes required shall be the subject of a modification application under the Environmental Planning and Assessment Act 1979.

80. Mechanical or Natural ventilation

Certification from a suitably qualified Mechanical Engineer certifying that all work associated with the installation of the mechanical or natural ventilation systems has been carried out in accordance with the conditions of the development consent.

81. Acoustic Works

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

82. Ventilation – Operation

To ensure that adequate provision is made for ventilation of the building mechanical and/or natural ventilation systems shall be operated and maintained in accordance with the provisions of;
(i) The Building Code of Australia
(j) AS 1668 Part 1 – 1998
(k) AS 1668 Part 2 – 1991
(l) The Public Health Act – 1991.
(m)The Public Health (Microbial Control) – Regulation 2000
(n) AS 3666.1 – 2002
(o) AS 3666.2 – 2002
(p) AS 3666.3 – 2000

83. General Operation/Amenity Condition - Outdoor Play Area

The outdoor play area shall be used by 36 children in accordance with the schedule in the Plan of Management dated 26 March 2010 a copy of which is attached and marked “B” and in accordance with condition 84 of this consent. The 2-5 year olds shall use the outdoor play area for no more than 1.5 hours per day.
There are to be no activities relating to the supervising or caring for children in any outdoor play area between 5.00pm and 9.00am on any day.
Childcare centre staff may set up equipment in the outdoor play areas between the hours of 8.30am and 9.00am and may pack up equipment (and clean) in the outdoor play areas between the hours of 5.00pm and 6.00pm Monday to Friday.

84. General Operation/Amenity Condition – Noise Levels for Outdoor Play Area

The noise emitted from the outdoor play areas of the Child Care Centre shall not exceed LAeq (15 minute) sound pressure level of more than 10dB(A) above the background level for a maximum of 1.5 hours per day. At all other times the noise emitted from the outdoor play areas shall not exceed 5dB(A) above background when measured at the most affected point on or within the boundary of the affected premises at any time the childcare centre is in operation.
The location and method of measurement of sound shall be carried out in accordance with Australian Standard 1055.1.

_____________________

Annelise Tuor
Commissioner of the Court
Annexure ‘B’
MANCHESTER ROAD

CHILD CARE CENTRE

37 Dwyer Street, Gymea
Plan of Management

26 March 2010 (version 01)
1.1 This Plan of Management (PoM) has been developed to facilitate in the management and operation of the Manchester Road Child Care Centre (MRCCC) at 37 Dwyer Street Gymea to ensure that the MRCCC, whilst trading, does not unreasonably affect the amenity of any residential property in close proximity;
1.2 The PoM is also intended to complement any conditions of a development consent granted by the Land and Environment Court of NSW to ensure that all users and stakeholders of the MRCCC comply with the development consent and all other relevant legal requirements which affect the day-to-day operation of the MRCCC;
1.3 A copy of the PoM (and any subsequent amendments) will be provided to any adjoining resident upon request and at no cost;
1.4 A copy of the PoM (and any subsequent amendments) will also be provided to the Sutherland Shire Council (Council) for its information and records; and
1.5 This PoM is provided in addition to any other requirements for management plans by State or Commonwealth Government authorities.
2 Aims & Objectives
The aims and objectives of the PoM are:
2.1 To facilitate compliance with the development consent;
2.2 To ensure the MRCCC is operated in a manner that will ensure that the residential amenity of surrounding properties is not adversely affected by virtue of the operation of the MRCCC;
2.3 To ensure the applicable Zone 4 Local Housing objectives under the Sutherland Shire Local Environmental Plan 2006 are met to the maximum extent possible by the provisions of this plan;
2.4 To ensure that any resident in Manchester Road or Dwyer Street has an immediate and dedicated point of contact to the management of the MRCCC;
2.5 To ensure that in the event of a concern or a complaint being raised by any occupant of any neighbouring property about the operation of the MRCCC, the concern or complaint is dealt with and resolved promptly;
2.6 To ensure that users and stakeholders of the MRCCC abide with the PoM at all times; and
2.7 To ensure that the PoM is reviewed annually.
3 Traffic Management
3.1 Employees' (staff) vehicles shall be parked on the site and within the designated spaces for staff parking;
3.2 Parents/guardians/carers will be requested to park their vehicle in Manchester Road only and preferably on the eastern side adjacent to the MRCCC;
3.3 All parents/guardians/carers driving to and from the MRCCC will be reminded to give full and complete consideration to the residents in neighbouring properties to ensure that any residents are not inconvenienced in any way with respect to traffic or noise associated with the dropping off or picking up of children. This includes, but is not limited to, the parking of vehicles across driveways or on footpaths, double parking, road speed and the idling of vehicles whilst stationary; and

4 Noise

4.1 The number of children in attendance at the child care centre at any one time shall be limited to a maximum of 36 children. Further, this shall consist of a maximum of 16 children in the 0-2 year age group (including a maximum of 8 children under 1 year old) and a maximum of 20 children in the 2-5 year age group;

4.2 The outdoor play area shall be used by children only aged 0-5 for a maximum of four (4) hours per day between the hours of 9.00am and 5.00pm Monday to Friday substantially in accordance with the times set out in the Schedule annexed hereto. The 2-5 year olds shall use the outdoor play area for no more than 1.5 hours per day.

4.3 There are to be no activities relating to the supervising or caring for children in any outdoor play area between 5.00pm and 9.00am Monday to Friday excepting Public Holidays.

4.4 Childcare centre staff may set up equipment in the outdoor play areas between the hours of 8.30am and 9.00am and may pack up equipment (and clean) in the outdoor play areas between the hours of 5.00pm and 6.00pm Monday to Friday.

4.5 All parents/guardians/carers will be reminded to have full and complete consideration of the neighbouring residents when visiting the MRCCC to ensure that any resident is not inconvenienced by any undue noise,

4.6 Appropriate signage shall be erected within the perimeter of the MRCCC to remind any person of the need to keep noise to an absolute minimum at all times;

4.7 The windows and doors along the eastern elevation of the MRCCC shall be kept closed during the hours of operation to ensure that any internal noise is minimised/contained;

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

5 Complaints handling

5.1 All adjoining residents will be given the Directors name and email address of the MRCCC;

5.2 In the event that any resident makes a complaint or has a concern about any aspect of the operation of the MRCCC, such a complaint or concern shall be registered by staff in a dedicated 'complaints log book';

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

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

5.5 If any complaint or concern that cannot be resolved by the management of the MRCCC, to the satisfaction of the complainant, the matter can be escalated to an agreed independent third party for action; and

5.6 The complaints log book will be made available to inspect by the Council or residents upon reasonable request.

6 Evacuation & Emergency Procedures

6.1 Regular practice sessions as required by Department of Community Services or other authorised body will be held as required;

7 Dictionary
Annual basis means every twelve months from the date the occupation certificate is issued for the MRCCC.

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

Council means the Sutherland Shire Council.

MRCCC means the Manchester Road Child Care Centre.

OPA mean the Outdoor Play Area on the northern side of the MRCCC.

PoM
means the Plan of Management dated 26 March 2010 for the Manchester Road Child Care Centre.
SCHEDULE

Outdoor Play Area Times

Spring/Summer Months
Mornings
0 – 2 years: 9:00am – 9:45am
2 – 5 years: 9:45am – 10:30am
Afternoons
0 – 2 years: 3:15pm – 4:00pm
2 – 5 years: 4:00pm – 4:45pm
Autumn/Winter Months
Mornings
0 – 2 years: 9:30am – 10:15am
2 – 5 years: 10:15am – 11:00am
Afternoons
0 – 2 years: 3:00pm – 3:45pm
2 – 5 years: 3:45pm – 4:30pm

CITATION:	Ayache v Sutherland Shire Council [2010] NSWLEC 1074
PARTIES:	APPLICANT: Michael Ayache RESPONDENT: Sutherland Shire Council
FILE NUMBER(S):	10999 of 2009
CORAM:	Tuor C
KEY ISSUES:	DEVELOPMENT APPLICATION :- child care centre - residential neighbourhood - traffic and parking impacts - noise control
LEGISLATION CITED:	Sutherland Shire Local Environmental Plan 2006
DATES OF HEARING:	3 March 2010 and 26 March 2010
DATE OF JUDGMENT:	26 March 2010
LEGAL REPRESENTATIVES:	APPLICANT: Ms L Amy (solicitor) SOLICITORS: VA Lawyers RESPONDENT: Ms J Amy (solicitor) SOLICITORS: Sutherland Shire Council