Balmain Care for Kids Pty Ltd v Leichhardt Municipal Council - [2009] NSWLEC 1146

Land and Environment Court

of New South Wales

CITATION: Balmain Care for Kids Pty Ltd v Leichhardt Municipal Council [2009] NSWLEC 1146

PARTIES:
APPLICANT
Balmain Care for Kids Pty Ltd
RESPONDENT
Leichhardt Municipal Council

FILE NUMBER(S): 10877 of 2008

CORAM: Bly C

KEY ISSUES: DEVELOPMENT APPLICATION :- alterations and additions to the existing building and use it for the purposes of a long day care centre

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Leichhardt Local Environmental Plan 2000
Leichhardt Development Control Plan 2000

CASES CITED: Universal Child Care Pty Ltd v Leichhardt Municipal Council [2007] NSWLEC 808
Universal Childcare Pty Limited v Pittwater Council [2007] NSWLEC 665
Design 23 v Woollahra Municipal Council [2009] NSWLEC 1114

DATES OF HEARING: 08/04/2009, 09/04/2009 and 29/04/2009

DATE OF JUDGMENT:
15 May 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr J Cole, solicitor
of HWL Ebsworth
RESPONDENT
Ms R McCulloch, solicitor
of Pikes Lawyers

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Bly C

15 May 2009

10877 of 2008 Balmain Care for Kids Pty Ltd v Leichhardt Municipal Council
JUDGMENT

Introduction

1 This appeal involves a development application for alterations and additions to the existing building at 10 Wortley Street, Balmain and use it for the purposes of a long day care centre for 68 children. The child-care centre is proposed to operate between 7:30 a.m. and 6:00 p.m. Monday to Friday.

2 The existing two-storey building has been used for a bed and breakfast accommodation/guest house and before that a nurse's home in association with the nearby Balmain Hospital. The building is set to be a good, intact example of the Georgian Revival Style although it is not a heritage item. It has a basement car park (with access of Dick and Foy Streets) that extends under the adjoining development to the south.

3 The site is situated on the south side of Wortley Street between Dick and Reynolds Streets. The courtyards of a two-storey townhouse development adjoin the site to the south. Adjoining to the west is Punch Park. Other development in the immediate locality includes older style attached and detached dwellings and relatively new two-storey dwellings and town houses.

4 This judgment concludes that, despite some impacts and despite my conclusion that the proposal is not ideal, it nevertheless warrants approval.

Planning controls

5 The site is situated in the Residential Zone under Leichhardt Local Environmental Plan 2000 in which zone the proposal is permissible with development consent. It is also located within a Heritage Conservation Area and in the vicinity of a number of heritage items although no issue in this regard arises.

6 Also applicable is Leichhardt Development Control Plan 2000 that includes the site within the Palmer Street Sub Valley (Balmain) Distinctive Neighbourhood. Relevantly applicable provisions note that older buildings and trees contribute to local character and the established streetscape, which is to be preserved. In this regard the existing building is to be renovated to the benefit of the streetscape that will otherwise be unaffected.

7 Part A8 of the DCP contains parking requirements for child-care facilities that are met by the proposal. Part B deals with residential development and requires that new development be compatible and complimentary in terms of the Desired Future Character provisions. Other provisions, not strictly applicable to a child-care centre deal with various amenity aspects of residential design including solar access, visual and acoustic privacy. Part C applies to non-residential development and relevantly requires a sensitive design approach where there is an interface between residential and non-residential land uses so as to reduce amenity impacts.

8 The application was advertised and some 20 objections and a petition with some 28 signatures were received. The matters of concern expressed in those objections include:

The adverse consequences associated with increased traffic flow, the picking up and dropping off of children and the limited availability of on street parking.
The proposed modifications to the building including the visual impact of the proposed decks on the west side will have an adverse impact on its existing important character.
Adverse amenity impacts on the close by residential areas resulting from the additional noise generated from outdoor play areas. These impacts will particularly affect those residents who are generally at home during the hours of operation of the centre.
The proposed acoustic treatments rely on impractical and unrealistic assumptions and will have adverse impacts including visual, overshadowing and outlook and will restrict natural breezes.
The proposed outdoor play areas will create an unacceptable loss of privacy for neighbouring residents.
The use of the site by 80 children and 12 staff between 7:15 a.m. and 6:30 p.m. Monday to Friday is indicative of an unacceptable intensity of development for this site.

9 When the hearing began on-site I heard from a number of residents who explained the above-mentioned concerns.

Council's decision

10 In August 2006 a report was prepared examining the original proposal (83 children, 7:15 a.m. to 6:30 p.m. Monday to Friday) in considerable detail and recommending that it be refused for various reasons including: streetscape, traffic and car parking, children's amenity, solar access, neighbour privacy, noise impacts, waste storage and removal, inadequate outdoor play space, stormwater drainage and fire safety. Also, the proposal is inconsistent with various provisions of the LEP. The application was refused under delegation for the same reasons.

11 The applicant subsequently sought a review of the application (68 children, 7:30 a.m. to 6 p.m. Monday to Friday) under s. 82A of the Environmental Planning and Assessment Act 1979. Having conducted that review the council maintained its opinion that the application should be refused.

12 According to the amended statement of contentions, the following essential contentions are pressed by the council and require resolution by the Court:

The proposed child-care centre has not been designed in accordance with the Children's Services Regulation 2004. More particularly, clause 30(7) of the Regulation should not be used to support the provision of outdoor space within the building.
The proposal will result in poor amenity for children cared for at the centre in terms of direct sunlight and daylight and the level and quality of outdoor open space and some indoor play areas will be inconsistent with the applicable objectives within Part A5.0 of the DCP.
The applicant's acoustic report indicates that there will be unacceptable noise impacts on adjoining residential properties, particularly when the centre's children are playing outdoors.

13 It was explained in the submissions made on behalf of the council that this site, including the existing building, is suitable for a long day care centre but in essence the problem with this application is that there are to be too many children. In turn the excessive number of children results in the need to provide numerous devices, such as noise barriers, that adversely affect neighbours, together with constraining management techniques.

14 In response it was submitted on behalf of the applicant that whilst there would be some impacts on neighbours these would be within reason, taking into account that the provision of a long day care centre is in public interest. On balance, considering that this is a good site for such a centre, the demand for child-care centre places, the difficulty of obtaining suitable sites and the conservation of the building that contributes to the conservation area, approval is warranted.

15 I was also referred to the residents’ concerns that include: traffic impacts and insufficient parking; amenity impacts associated with noise and privacy; and inappropriate building modifications.

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

Miss J Lilley - town planning
Mr S. Cooper - acoustics

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

Mr P. Grech - town planner
Mr G. Atkins – acoustics

18 These experts provided joint reports and gave concurrent evidence.

19 Miss P Meale also gave evidence on behalf of the applicant. Miss Meale has considerable experience in operating child-care centres and explained the present considerable demand in this area for child-care centre places. Also in her opinion this is a good location for such a centre and that sites such as this are difficult to obtain.

20 In their joint report Mr Lillie and Mr Grech agreed that the area of indoor play space exceeds the minimum required under clause 30(4) of the Regulation by almost 30 square metres. They also agreed that the area of outdoor play space (496 square metres) exceeds the requirement by about 20 square metres although the total area actually provided outdoors (367 square metres) represents only 77% of the requirement, a deficiency of about 109 square metres. In this regard they agree that the centre relies on cl 30(7) of the Regulation that is as follows:

If the Director-General is satisfied that the location of a centre based children's service makes it impracticable to provide the required amount of usable outdoor play space, the Director-General may consent to the provision of some or all of that space in an indoor area that is to be designed and equipped to permit children to participate in activities that promote gross motor skills.

21 Mr Grech was of the opinion that the play areas have been designed in accordance with the regulation but accepted that should the Director-General disagree, as part of the licensing process then the necessary licence will not be granted. This is different to the planning process involved in this appeal. Miss Lillie suggested that the Department of Community Services looks to the council to effectively administer the Regulation at the development application stage. She was of the opinion that there was no suitable justification in this instance for the applicant's reliance on cl 30 (7).

22 I do not understand that I am, in considering the merits of this proposal, constrained by cl 30(7), taking into account that this provision is for the Director-General also a discretionary merits consideration. As Murrell C said in Universal Child Care Pty Ltd v Leichhardt Municipal Council [2007] NSWLEC 808, satisfaction of the Regulation is not the test for the assessment of a development application. I should however be guided by the merits considerations contained in subcl (7). These considerations essentially comprise:

Does the location of the centre make it impracticable to provide the required amount of usable outdoor play space?
Can some or all of that space be provided indoors?
Has the indoor play space been designed and equipped to permit children to participate in activities that promote gross motor skills?

23 Whilst cl 30(7) must be interpreted on its own terms and provides no assistance as to why the play space needs to be outdoors, it is not unreasonable to expect that some outdoor play areas should be provided to enable children, from time to time, to play in the open air and sunshine. Of course this must be subject to the proper protection of the children against inclement weather and the effects of excess exposure to sunshine. Also, any indoor play spaces, if provided, should have an appropriate amenity and this could, in part at least, be achieved in the sense of replicating the outdoors, by the provision of suitably orientated windows.

24 The answer to the first considerations is not assisted by the absence of an explanation of what the phrase location of the centre actually means. Does it mean the location of the site on which the centre is to be situated or does it mean the location of the centre within a larger building? Or, does it require a consideration of the locality of the site under consideration in terms of surrounding land uses that might require or support the provision of indoor play areas?

25 In addressing the location consideration, Mr Grech pointed out that there are council approved and operating child-care centres within and outside the central business district that have at least some indoor play areas and that assumingly licences have been granted. To the contrary Miss Lillie understands that the Department of Community Services generally applies cl 30(7) to centres in the central business district. She also questioned whether these centres have been issued with licences and whether some of them actually had internal play space. She also noted that at least one of the examples provided by Mr Grech provided indoor play areas with good orientation and access to light and ventilation.

26 I do not accept that this approach to the matter of the location of the site is determinative. Instead I accept that it is the location and orientation of the existing building that is determinative, particularly taking into account (as I later conclude) the desirability of retaining the building and of providing child care facilities in this location.

27 In relation to the second consideration, a significant proportion of the play space is provided outdoors with 23% of the requirement being provided indoors. As indicated above the area of outdoor play space exceeds the total minimum requirement by about 20 square metres. In addition as Mr Grech explained, the regulation's requirement that a minimum of 37% of the required outdoor space is to be shaded. The indoor play areas effectively provide a significant proportion of the required shaded area. Also, in this context the availability of the adjoining park for structured excursions for the children can be taken into account.

28 In relation to the third consideration there was no dispute that the play space both indoors and outdoors has been designed and equipped to permit children to participate in gross motor skills activities. Also as Mr Grech points out the centre is of sufficient size to provide a variety of spaces with opportunities for different play experiences. Also the use of these play areas is not constrained by adverse weather.

29 There was much discussion during the hearing regarding opportunities for children to play outdoors from time to time in the sunshine. Shadow diagrams were provided that reveal, at the winter solstice that the proposed outdoor play areas are significantly overshadowed. Taking these diagrams into account the applicant provided a program to show that all children can, in winter, have some access to sunlight. At other times of the year access to sunlight can be more readily achieved.

30 Taking all of these matters into account I generally accept the reasoning provided by Mr Grech and am satisfied that the proposal's non-compliance with the area requirement for the provision of outdoor play areas does not warrant refusal of the application. I should also add that this issue is, despite what Miss Lillie said about the Department looking to the council to effectively administer the Regulation at the development application stage, also a matter for the consideration of the Director-General who could, if (s)he so chooses, further limit the number of children so as to mathematically reflect the actual provision of outdoor play areas. However, in the context of this development application I do not believe this to be necessary.

Children's amenity

31 In considering the issue of the children's amenity, Miss Lillie explained that Part A5.0 of the DCP requires the provision of an appropriate amenity for various developments including community facilities and that this includes the enjoyment of sunlight. In her opinion the proposal is, in this regard unsatisfactory.

32 Miss Lillie was concerned that one of the lower-level playrooms is unacceptable because it is likely to be cold and damp and would have minimal sunlight access. Mr Grech disagreed explaining that this room will receive some direct sunlight in the afternoons during both midwinter and the equinoxes. Also the building is to be air-conditioned. He also noted that children are rotated through different rooms and spaces.

33 In relation to the outdoor play areas Miss Lillie believes that these are unsatisfactory with regard to solar access and that this deficiency cannot be compensated for by taking into account the adjoining public park. The centre needs to stand on its own. In reply Mr Grech said that the proposal does not rely on the adjoining park but that this is a matter that can be taken into consideration especially given that excursions to it can be so easily undertaken.

34 More particularly Miss Lillie was concerned that the outdoor play areas, especially in winter are either in almost full shadow or substantially overshadowed. She did acknowledge that some areas were at this time in partial sunlight but overall these play areas have very poor amenity with regard to solar access. Mr Grech disagreed explaining that each of the play areas received direct sunlight between March and September for at least some of the time in either the morning or afternoon periods of use. Overall he saw no reason why any of the proposed outdoor play areas should be excluded from the analysis.

35 In relation to the amenity that this development will provide for the children, I agree with Mr Grech for the reasons that he has given that this will be satisfactory. Whilst I accept that greater access to sunlight would be desirable I do not, on balance, agree that what is proposed would result in poor amenity for the children or be so unsatisfactory as to require refusal of the application. In reaching this conclusion I have given some weight to the availability of the adjoining park and the orientation of the windows of the indoor play areas.

Acoustics

36 In their evidence Mr Atkins and Mr Cooper considered in some detail the likely noise impacts from the proposed centre on the neighbouring townhouses, taking into account the provision of an acoustic screen along the southeast boundary of the site. In essence they agreed that the centre would, for the most part, meet the applicable daytime noise standard of background (L eq 15 min) + 5 dB(A), when children are not playing outdoors. In this regard they agreed that the 39 dB(A) as measured by Mr Atkins was an appropriate background level to be used for the assessment of the site.

37 They also agreed that when children are playing outdoors the applicable noise standard of background + 10 dB(A) could be met, particularly in relation to the upstairs bedroom windows of the townhouses being rooms that are not normally utilised during the operating hours of the centre. In this context I recognize that such rooms can be used for home office purposes or for small children who sleep during the day. I also understand that the living rooms and courtyards of the townhouses are significantly less affected.

38 However the experts disagreed (this being the only acoustic matter in dispute between the parties) as to whether, in this context, the centre should be required to limit the period when this should occur to 1 1/2 or 2 hours per day. The council seeks to have imposed a condition of development consent that adopts the 1 1/2 hours per day standard.

39 Mr Cooper explained that the 1 1/2 hours per day standard was the relevantly applicable standard and that he has consistently used this for eight years. He also pointed out that the Court has, in the past, accepted this standard referring to several cases including Universal Childcare Pty Limited v Pittwater Council [2007] NSWLEC 665. In Universal Childcare Murrell C accepted the evidence of Mr Cooper (the parties' single acoustic expert) that the generally accepted noise requirements for the duration of children's free play are:

For 1.5 hours of free play - background plus 10dB(A)
For 2.5 hours of free play - background plus 7dB(A)
For above 2.5 hours of free play - background plus 5dB(A).

40 Mr Cooper also referred to the above-mentioned case of Universal Child Care where the council proposed a condition allowing an exceedence of 10 dB(A) for up to 1 1/2 hours. However the judgment concluded that the appeal should be dismissed and did not address this condition.

41 In response Mr Atkins referred to the Court's decision in Design 23 v Woollahra Municipal Council [2009] NSWLEC 1114. In Design 23 Brown C accepted the evidence of acoustic experts Mr N Gross and Mr R Tonin who used the Association of Australian Acoustical Consultants Technical Guideline - Child Care Centre Noise Assessment (May 2008) for their assessment. (Mr Gross and Mr Tonin are members of that association but Mr Cooper is not). For residential receptors (in this case the adjoining town houses) the Association's guideline standard is:

Up to 2 hours (total) per day - the L eq 15 min noise level emitted from the outdoor play area shall not exceed the background noise level by more than 10 dB at the assessment location.
More than 2 hours (total) per day - the L eq 15 min noise level emitted from the outdoor play area shall not exceed the background noise level by more than 5 dB at the assessment location.

42 According to the Technical Guideline publication:

The recommendations in this guideline are based on the common practice of AAAC members and the results of a NSW Australian Acoustical Society (AAS) Technical Meeting in September 2007 on Child Care Noise.

43 Mr Cooper was nevertheless concerned that the guideline standard should not be utilised because he understood that it was the common practice of Association members to apply the + 10 dB(A) standard for 1 1/2 rather than 2 hours.

44 Whilst I accept that the Association is not a regulatory authority but is a gathering of consultants and that the lesser standard is not supported by scientific evidence or the like I have decided to accept Mr Atkins evidence and apply the Association's guideline standard of + 10 dB(A) for 2 hours. I have so decided because weight can be given to the views of this professional Association of qualified practising acoustic consultants. I also recognise that during these hours the neighbours will hear children playing but I do not accept that this will be unreasonable. Also, simply because the Court has on previous occasions accepted the 1 1/2 hours per day standard this does not mean that it is a standard LEC condition as suggested by Mr Cooper. Council’s draft condition 4 will be amended accordingly.

Impacts on neighbours

45 As noted above the DCP is concerned to ensure that at the interface between residential and non-residential land uses amenity impacts including acoustic impacts be considered. I have already dealt with the noise issue but in submissions put on behalf of the neighbours, I was also invited to take into account the effect of the noise attenuation screen that is to be constructed along the southern boundary of the site. In particular I could consider the neighbours' concerns as to the appearance of the structure and the extent to which it would prevent breezes entering their courtyards that adjoin the boundary.

46 There is, along the common boundary an existing 2.050 m/2.3 m high brick wall with a 650 mm/900 mm lattice screen above. According to the plans (Section C), the acoustic screen will, at the boundary, not exceed the height of the boundary wall for most of its length, although the cantilevered roof element progressively increases in height as it extends away from the wall. Similarly the remainder of the screen, at the boundary will be as high as or slightly higher than the existing lattice screen (Sections A and B).

47 Other than the principal issues in the case, Miss Lilley and Mr Grech agreed that the residents concerns are not by themselves reasons to warrant refusal of the application although Miss Lilley noted that fewer children might mitigate some impacts.

48 Plainly, northerly breezes will be affected by the acoustic screen but, taking into account existing structures, including the boundary fence and the lattice, I do not accept that the affectation would be such as to justify the refusal of the application.

Conclusion

49 I have now considered the expert evidence; the plans and the applicant's plan of management and have no difficulty concluding that whilst the proposal is not ideal it is at the very least satisfactory. There was no dispute that there is an unsatisfied demand for places in a long day care centre for children and this is a good location for such a centre. I also give some weight to the adaptive reuse of the building that makes a positive contribution to the conservation area. Conversely I do not accept that in order for it to be acceptable the capacity of the centre needs to be reduced. In all of the circumstances I am satisfied that the proposal warrants approval. The appeal should therefore be upheld.

50 For the above reasons I have decided that:

_______________________

T A Bly
Commissioner of the Court

CONDITIONS OF CONSENT

Balmain Care For Kids Pty Ltd ats Leichhardt Municipal Council

Land and Environment Court Proceedings No. 10877 of 2008

CONDITIONS OF CONSENT

1. Development must be carried out in accordance with the following plans and supplementary documentation, except where amended by the conditions of this consent.

Plan Reference Drawn By Dated

Site Plan, DA01/2007 Norm Reavell & Associates Architects February 2009

Existing Basement Carpark indicating dedicated spaces, Job No. 06-08, DA 02/2007 Norm Reavell & Associates Architects September 2008

Lower Level Plan, DA 03/2007 Norm Reavell & Associates Architects February 2009

Ground Floor Plan, DA 04/2007 Norm Reavell & Associates Architects February 2009

First Floor Plan, DA 05/2007 Norm Reavell & Associates Architects February 2009

North Elevations, DA 07/2007 Norm Reavell & Associates Architects February 2009

West Elevations, DA 08/2007 Norm Reavell & Associates Architects February 2009

South Elevation, DA 09/2007 Norm Reavell & Associates Architects February 2009

East Elevation, DA10/2007 Norm Reavell & Associates Architects February 2009

Section A-A, DA 11/2007 Norm Reavell & Associates Architects February 2009

Acoustic Screen-Rear Wall, DA 24/2007 Norm Reavell & Associates Architects 8 April 2009

Acoustic Screen Details DA 25/2009 Norm Reavell & Associates Architects 8 April 2009

Document Title Prepared By Dated

Survey Plan Bottaro de Nett Land Surveyors 23.03.07

Landscape Plan, DA 14/2006 Norm Reavell & Associates Architects 24/09/08

Survey indicating spot levels of windows and walls of neighbouring townhouses, Ref No. 02135 Phillip CK Hooi Pty Ltd Consulting Surveyors

Noise Assessment of Proposed Child Care Centre at 10 Wortley Street, Balmain Atkins Acoustics and Associates Pty Ltd January 2009

Plan of Management for 68 Place Child Care Centre including the Winter program for use of outdoor play areas (Exhibit J – 9 April 2009) Balmain Care for Kids February 2009

Flood Study and Stormwater Management Plan Patterson Britton & Partners Pty Ltd May 2007

Preliminary Contamination Assessment Earth Air Water Consulting and Monitoring Pty Limited July 2007

Tree Management Report Terrence Arnold Machin, Horticulture and Arborist Consultant

Access Review Morris-Goding Accessibility Consulting 19 July 2007

In the event of any inconsistency between the approved plans and supplementary documentation, the plans will prevail.

2. The hours of operation of the child care centre are regulated as follows:

(a) The hours of operation of the child care centre shall be restricted as follows:

7.30am to 6.00pm Mondays to Fridays, except Public Holidays.

3. The maximum number of children permitted at the centre at any one time is 68. The Plan of Management shall reflect the permitted number of placements.

4. The cumulative noise generation from the use of the premises (including mechanical plant) is not to exceed background +10 dB(A) up to a total of 2 hours per day with background +5dB(A) for the remainder of the day when assessed as an Leq (15 minute) noise contribution at any point on the residential side of the common boundaries or at any point in or on the adjacent residential properties.

5. The operation of the child care centre is to be implemented in accordance with the Plan of Management for the Child Care Centre, 10 Wortley Street, Balmain, except where modified by the conditions of development consent.

6. All pedestrian gates must be fitted with appropriate door closers to provide a slow and regulated closing of the gate to prevent the generation of impact sound.

7. All doors and windows to the indoor play/activity areas shall be closed during singing and noisy educational activities/use.

8. The location of all outdoor climbing equipment to be under the awning of the proposed acoustic barrier as per the approved Plan of Management.

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

9. Prior to the issue of a Construction Certificate the Applicant must request that the proposal for a ‘drop off/pick up’ zone at the Wortley Street frontage associated with the child care centre be reported to Council’s Traffic Committee for approval. Suitable plans of the proposed parking zones, a traffic study and information regarding the installation of relevant street signs shall be submitted with this request. Approval must be gain from the Traffic Committee prior to issue of the Construction Certificate.

10. Amended plans/further details are to be submitted incorporating the following amendments:

(i) Details indicating the structural adequacy of the rear wall (southern boundary) to support the acoustic fence and the structural integrity of the proposed acoustic fence itself (ie, details with regard to how the cantilevered roof of the acoustic barrier at the rear of the site is to be braced).

(ii) The top of the vertical component of the acoustic barrier at the rear of the site (on the southern boundary) is to maintain a 2.3 metre height above the finished ground level along the southern boundary. It is noted that this ground level varies along the said boundary. The maximum overall height of the cantilevered acrylic roof that forms part of the acoustic barrier shall be 2.7 metres from finished ground level.

(iii) With regard to condition 6 above, the building must be air conditioned so that an acceptable level of amenity is maintained for occupants during singing and noisy educational activities/use. Details must be provided prior to the issue of the Construction Certificate of compliance with Australian Standard AS 1668.

(iv) A fence along the boundary with Dick Street for the length of the Outdoor Play Area 3 shall be constructed as a palisade fence on a maximum 0.5 metre high masonry base. A clear screen shall be fixed to the inside of the palisade fence capable of complying with the acoustic criteria in Condition 4.

(v) All relevant plans shall reflect the width of the cantilevered roof component to the acoustic screen (along the southern boundary) as being 2.3 metres.

(vi) Further details shall be provided of the method by which the acoustic screen over the lattice infill to the wall of 14 Foy Street shall be provided.

(vii) Details of the proposed guttering including down pipes for the acoustic screen along the southern boundary shall be provided.
The details/amendments are to be provided prior to the issue of a Construction Certificate.

11. Prior to the commencement of demolition works on the subject site or a Construction Certificate being issued for works approved by this development consent (whichever occurs first), a security deposit to the value of $7,250.00 must be paid to Council to cover the costs associated with the road, footpath and drainage works required by this consent.

Payment will be accepted in the form of cash, bank cheque, EFTPOS/credit card (to a maximum of $10,000) or bank guarantee.

A request for release of the security may be made to the Council after all construction work has been completed.

The amount nominated is only current for the financial year in which the consent was issued and is revised each financial year. The amount payable must be consistent with Council’s Fees and Charges in force at the date of payment.

12. Prior to the commencement of demolition works on the subject site or a Construction Certificate being issued for works approved by this development consent (whichever occurs first), a security deposit to the value of $11,027.18 must be paid to Council to cover the cost of making good any damage caused to any Council property or the physical environment as a consequence of carrying out the works.

Payment will be accepted in the form of cash, bank cheque or EFTPOS/credit card (to a maximum of $10,000).

Should any of Council’s property and/or the physical environment sustain damage during the course of the demolition or construction works, or if the works put Council’s assets or the environment at risk. Council must notify the applicant in writing and allow them 14 days to rectify the problem and/or put submissions to Council as to the action they will take. Following this and Council’s written response to the applicant setting out reasons why their approach is not acceptable, Council may carry out any works necessary to repair the damage and/or remove the risk. The cost of these works will be deducted from the security.

An inspection fee of $120.00 to determine the condition of the adjacent road reserve is also required to be paid to Council prior to the commencement of demolition works on the site or a Construction Certificate being issued for works approved by this development consent (whichever occurs first).

A request for release of the security may be made to the Council after all construction work has been completed.

13. A Building Code of Australia audit is to be carried out. The audit must cover all clauses within Section C, D and E of the Building Code of Australia.

The results of the audit are to be incorporated into a report and strategy to overcome the non-compliant provision either by alternate solution or adherence to deemed-to-satisfy provision by satisfying the performance requirements of Sections C, D and E of the Building Code of Australia.

A schedule of existing and proposed essential fire safety measures, including their standard performance must be included in the strategy. The report, strategy and compliance certificate from a fire engineer must be provided prior to the issue of a Construction Certificate to the satisfaction of the Certifying Authority.

14. Pursuant to Clause 94 of the Environmental Planning and Assessment Regulation 2000 the existing building is required to be brought into conformity with the Building Code of Australia. Plans and specifications demonstrating conformity are to be provided prior to the issue of a Construction Certificate.

15. Any air conditioning unit on the site must be installed and operated at all times so as not to cause “Offensive Noise” as defined by the Protection of the Environment (Operations) Act 1997. Domestic air conditioners must not be audible in nearby dwellings between 10:00pm to 7:00am on Monday to Friday and 10:00pm to 8:00am on Weekends and Public Holidays.

Details of the acoustic measures to be employed to achieve compliance with this condition must be provided prior to the issue of a Construction Certificate.

16. A flood risk management report, prepared by a qualified practicing Civil Engineer must be provided prior to the issue of a Construction Certificate. The plan must be prepared/ amended to make provision for the following:

(a) The report must be generally in accordance with the recommendations of the Flood Study and Stormwater Management Plan prepared by Patterson Britton & Partners Pty Ltd, dated May 2007.

c) Details of the works proposed to the boundary fences at the Wortley Street, Dick Street and Punch Park frontages to prevent ingress of flood waters onto the site.

17. An engineering design that addresses all relevant recommendations of the flood risk management report prepared by a qualified practicing Structural Engineer must be provided prior to the issue of a Construction Certificate. The design must be prepared/ amended to make provision for the following:

a) Structural integrity of all structures from immersion and/or impact of velocity and debris, including the proposed boundary fences at the Wortley Street, Dick Street and Punch Park frontages.

18. In accordance with the provisions of Section 81A of the Environmental Planning and Assessment Act 1979 construction works approved by this consent must not commence until:

a) A Construction Certificate has been issued by Council or an Accredited Certifier. Either Council or an Accredited Certifier can act as the “Certifying Authority.”

b) A Principal Certifying Authority has been appointed and Council has been notified in writing of the appointment.
c) At least two days notice, in writing has been given to Council of the intention to commence work.

The documentation required under this condition must show that the proposal complies with all Development Consent conditions, the Building Code of Australia and the relevant Australian Standards.

19. Consent is granted for the partial demolition of internal components of the existing building as marked on the architectural plans for removal, subject to strict compliance with the following conditions:

a) The developer is to notify adjoining residents seven (7) working days prior to demolition. Such notification is to be clearly written on A4 size paper giving the date demolition will commence and be placed in the letterbox of every premises (including every residential flat or unit, if any) either side, immediately at the rear of and directly opposite the demolition site.
b) Written notice is to be given to Council / Certifying Authority for inspection prior to demolition. Such written notice is to include the date when demolition will commence and details of the name, address, business hours and contact telephone number and licence number of the demolisher. The following building inspections must be undertaken by Council / Certifying Authority:

i) A pre commencement inspection when all the site works are installed on the site and prior to demolition commencing.

ii) A final inspection when the demolition works have been completed.

NOTE: Council requires 24 hours notice to carry out inspections. Arrangement for inspections can be made by phoning Council.

c) Prior to demolition, the applicant must erect a sign at the front of the property with the demolisher’s name, licence number, contact phone number and site address.

d) Prior to demolition, the applicant must erect a 2.4m high temporary fence, hoarding between the work site and any public property (footpaths, roads, reserves etc). Access to the site must be restricted to authorised persons only and the site must be secured against unauthorised entry when work is not in progress or the site is otherwise unoccupied.

e) The demolition plans must be submitted to the appropriate Sydney Water Office, to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water’s requirements, the plans will be stamped indicating that no further requirements are necessary.

f) Demolition is to be carried out in accordance with the relevant provisions of Australian Standard 2601:2001: Demolition of structures.

g) The hours of demolition work are limited to between 7:00am and 6:00pm on weekdays. No demolition work is to be carried out on Saturdays, Sundays and public holidays.

h) Hazardous or intractable wastes arising from the demolition process must be removed and disposed of in accordance with the requirements of WorkCover New South Wales and the Department of Environment and Climate Change NSW.

i) Demolition procedures must maximise the reuse and recycling of demolished materials in order to reduce the environmental impacts of waste disposal.

j) During demolition, public property (footpaths, roads, reserves etc) must be clear at all times and must not be obstructed by any demolished material or vehicles. The footpaths and roads must be swept (not hosed) clean of any material, including clay, soil and sand. On the spot fines may be levied by Council against the demolisher and/or owner for failure to comply with this condition.

k) All vehicles leaving the site with demolition materials must have their loads covered and vehicles must not track soil and other materials onto public property (footpaths, roads, reserves etc) and the footpaths must be suitably protected against damage when plant and vehicles access the site.

l) The burning of any demolished material on site is not permitted and offenders will be prosecuted.

m) Care must be taken during demolition to ensure that existing services on the site (ie, sewer, electricity, gas, phone) are not damaged. Any damage caused to existing services must be repaired by the relevant authority at the applicant’s expense.

n) Suitable erosion and sediment control measures in accordance with the Soil and Water Management Plan must be erected prior to the commencement of demolition works and must be maintained at all times.

o) Prior to demolition, a Work Plan must be prepared and submitted to Council / Certifying Authority in accordance with the relevant provisions of Australian Standard 2601:2001 Demolition of structures by a person with suitable expertise and experience. The Work Plan must identify hazardous materials including surfaces coated with lead paint, method of demolition, the precautions to be employed to minimise any dust nuisance and the disposal methods for hazardous materials.
p) If the property was built prior to 1987 an asbestos survey prepared by a qualified occupational hygienist is to be undertaken. If asbestos is present then:

i) A WorkCover licensed contractor must undertake removal of all asbestos.

ii) During the asbestos removal a sign “DANGER ASBESTOS REMOVAL IN PROGRESS” measuring not less than 400 mm x 300 mm is to be erected in a visible position on the site to the satisfaction of Council.

iii) Waste disposal receipts must be provided to Council / Certifying Authority as proof of correct disposal of asbestos laden waste.
iv) All removal of asbestos must comply with the requirements of WorkCover and Leichhardt Council.

v) An asbestos clearance certificate prepared by a qualified occupation hygienist must be provided at the completion of the demolition works.

20. A Certificate prepared by an appropriately qualified and practising structural engineer, certifying the structural adequacy of the property and its ability to withstand the proposal additional, or altered structural loads must be provided prior to the issue of a Construction Certificate to the satisfaction of the certifying authority.

21. All details must be prepared in accordance with the relevant provisions of Australian Standard 1428.1:2001 Design for Access and Mobility – General requirements for access - New building work and Australian Standard 1428.4:2002 Design for Access and Mobility – Tactile indicators.

22. All plant and associated equipment must be located within the approved building envelope unless specified on the approved plans and is not to be located on the roof. Details on the location of all plant and equipment must be provided prior to the issue of a Construction Certificate.

23. A landscape plan prepared by a qualified Landscape Architect or Landscape Consultant must be provided prior to the issue of a Construction Certificate. The plan must include:

a) Location of all proposed and existing planting delineating existing trees to be retained, removed or transplanted.

b) A detailed planting schedule including species by botanical and common names, quantities, pot sizes and estimated size at maturity.

c) At least 85% of the plantings must be native species from the Sydney locale.

d) At least one tree capable of a height of four (4) metres.

e) Details of planting procedure.

f) Details of earthworks including mounding, retaining walls, and planter boxes.

g) A landscape maintenance strategy for the owner / occupier to administer over a twelve (12) month establishment period.
h) Details of drainage and watering systems.

24. Prior to the issue of a Construction Certificate, the Certifying Authority must be satisfied that all outdoor lighting is designed and positioned to minimise any detrimental impact upon the amenity of other premises and adjacent dwellings and that the outdoor lighting complies with the relevant provisions of Australian Standard AS 1158.3:2005 Pedestrian area (Category P) lighting – Performance and design requirements and Australian Standard AS 4282:1997 Control of the obtrusive effects of outdoor lighting.

25. In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986, the applicant must pay a long service levy at the prescribed rate of 0.0035 of the total cost of the work to either the Long Service Payments Corporation or Council for any work costing $25,000 or more. The Long Service Levy is payable prior to the issue of a Construction Certificate.

26. Materials and finishes of proposed fences and acoustic fences must be complementary to the character and streetscape of the area. Details of finished external surface materials, including colours and texture must be provided prior to the issue of a Construction Certificate to the satisfaction of the Certifying Authority.

27. The existing unpainted brick surfaces are not to be painted, bagged or rendered but to remain as original brick work. Details must be provided prior to the issue of a Construction Certificate to the satisfaction of the Certifying Authority.

28. A Soil and Water Management Plan must be provided prior to the issue of a Construction Certificate. The Soil and Water Management plan must be compatible with the Construction Management and Traffic Management Plan referred to in this Development Consent and must address, but is not limited to the following issues:

a) Minimise the area of soils exposed at any one time.

b) Conservation of top soil.
c) Identify and protect proposed stockpile locations.

d) Preserve existing vegetation. Identify revegetation technique and materials.

e) Prevent soil, sand, sediments leaving the site in an uncontrolled manner.
f) Control surface water flows through the site in a manner that:

i) Diverts clean run-off around disturbed areas;
ii) Minimises slope gradient and flow distance within disturbed areas;
iii) Ensures surface run-off occurs at non erodable velocities;
iv) Ensures disturbed areas are promptly rehabilitated.

g) Sediment and erosion control measures in place before work commences.

h) Materials are not tracked onto the road by vehicles entering or leaving the site.

i) Details of drainage to protect and drain the site during works.
j) A durable sign, available from Council must be erected during the works in a prominent location on site, warning of penalties should appropriate measures required by the Soil and Water Management Plan not be maintained.

29. The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Service Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. For Quick Check agent details please refer to the web site see Building Developing and Plumbing then Quick Check or telephone 132092.

The Certifying Authority must ensure the Quick Check agent/Sydney Water has appropriately stamped the plans prior to the issue of a Construction Certificate.

30. Prior to the issue of a Construction Certificate, the applicant must prepare a Construction Management and Traffic Management Plan. The following matters should be addressed in the plan:

a) A plan view of the entire site and frontage roadways indicating:

i) Dedicated construction site entrances and exits, controlled by a certified traffic controller, to safely manage pedestrians and construction related vehicles in the frontage roadways.

ii) Turning areas within the site for construction and spoil removal vehicles, allowing a forward egress for all construction vehicles on the site.

iii) The locations of proposed work zones in the frontage roadways.

iv) Location of any proposed crane and concrete pump and truck standing areas on and off the site.

v) A dedicated unloading and loading point within the site for all construction vehicles, plant and deliveries.

vi) Material, plant and spoil bin storage areas within the site, where all materials are to be dropped off and collected.

vii) An on-site parking area for employees, tradespersons and construction vehicles as far as possible.

viii) The proposed areas within the site to be used for the storage of excavated material, construction materials and waste and recycling containers during the construction period.

ix) How it is proposed to ensure that soil/excavated material is not transported onto surrounding footpaths and roadways.
x) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be designed by a Chartered Civil Engineer, with National Professional Engineering Registration (NPER) in the construction of civil works or a survey company of Registered Surveyors with “preliminary accreditation” from the Institution of Surveyors New South Wales Inc. or an accredited certifier.

b) Construction Noise
During excavation, demolition and construction phases, noise generated from the site must be controlled.

c) Occupational Health and Safety
All site works must comply with the occupational health and safety requirements of the New South Wales Work Cover Authority.

d) Toilet Facilities
During excavation, demolition and construction phases, toilet facilities are to be provided on the site, at the rate of one toilet for every twenty (20) persons or part of twenty (20) persons employed at the site.
e) Traffic control plan(s) for the site
All traffic control plans must be in accordance with the Roads and Traffic Authority publication “Traffic Control Worksite Manual” and prepared by a suitably qualified person (minimum ‘red card’ qualification). The main stages of the development requiring specific construction management measures are to be identified and specific traffic control measures identified for each stage.

Approval is to be obtained from Council for any temporary road closures or crane use from public property. Applications to Council shall be made a minimum of 4 weeks prior to the activity proposed being undertaken.

31. Plans and specifications showing details of the proposed mechanical ventilation including the location of external discharge and kitchen exhaust systems to be provided prior to the issue of a Construction Certificate. Details to be in accordance with Australian Standard AS/NZS 1668.1:1998 The use of ventilation and air conditioning in buildings - Fire and smoke control in multi-compartment buildings.

32. Details of the proposed garbage storage area are to be provided prior to the issue of a Construction Certificate. A suitable screen/bin enclosure shall be designed, complementing the proposed building and complying with Leichhardt Development Control Plan No 38 – Avoid, Reuse, Recycle.

33. A Waste Management Plan is to be provided prior to the issue of a Construction Certificate. The Waste Management Plan is to be prepared in accordance with Council’s Development Control Plan No 38 – Avoid, Reuse, Recycle. The plan must address all issues identified in Development Control Plan No 38 including but not limited to:

a) Estimated quantities of materials that are reused, recycled, removed from site.

b) On site material storage areas during construction.

c) Materials and methods used during construction to minimise waste.
d) Nomination of end location of all waste generated.

All requirements of the approved Waste Management Plan must be implemented during the construction of the development.

34. An Access Management Plan must be provided prior to the issue of a Construction Certificate. Details of the Access Management Plan must include:

a) Access to the building for people with disabilities.
b) Sanitary facilities for people with disabilities. Such facilities must be accessible to all persons working in or using the building.

35. The applicant must bear the cost of construction of the following works:

a) Closure of the redundant vehicle crossing at the Dick Street frontage of the site.
b) Reconstruction of the concrete kerb, concrete gutter and asphalt footpath at the location of the closed vehicle crossing to Dick Street.

Development Consent does NOT give approval to undertake any works on Council property. An application must be made to Council for a Roadworks Permit under Section 138 of the Roads Act 1993 and Section 68 of the Local Government Act 1993 for approval to construct these works .

The Roadworks Permit must be provided prior to the issue of a Construction Certificate.

These works must be constructed in accordance with the conditions of the Roadworks Permit and be completed prior to the issue of an Occupation Certificate.
Note: The cost of adjustment or relocation of any public utility service shall be borne by the owner/applicant. Where the finished levels of the new works will result in changes to the existing surface levels, the cost of all necessary adjustments or transitions beyond the above scope of works shall be borne by the owner/applicant.

PRIOR TO THE COMMENCEMENT OF WORKS

36. An application for any of the following on public property (footpaths, roads, reserves) shall be submitted and approved by Council prior to the commencement of works.

a) Construction zone.
b) A pumping permit.
c) Mobile crane.
c) Skip bins other than those authorised by Leichhardt Council.

37. Site cranes and hoists may be erected within the boundaries of the site subject to compliance with the relevant provisions of Australian Standard AS 1418:2005 Crane, hoists and winches, Australian Standard AS 2549:1996 Cranes (including hoists and winches) and Australian Standard AS 2550:2002 Cranes, hoists and winches.

Cranes must not swing or hoist over any public property unless the relevant approval under Local Government Act 1993, Crown Lands Act 1989, or the Roads Act 1993 has been obtained prior to the commencement of works.
The use of the cranes and hoists must comply with the approved hours of construction. The cranes must not be illuminated outside approved working hours other than safety beacons required by the Civil Aviation Safety Authority. No illuminated signs are to be erected upon or displayed upon any crane.

38. The proposed structure(s) to be erected must stand wholly within the boundaries of the allotment. No portion of the proposed fences/retaining walls, including gates and doors during opening and closing operations, shall encroach onto adjoining properties or upon public property.

39. The site must be secured and fenced prior to works commencing. If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling onto public property. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons on public property.

If the work involves the erection or demolition of a building and is likely to cause pedestrian or vehicular traffic on public property to be obstructed or rendered inconvenient, or building involves the enclosure of public property, a hoarding or fence must be erected between the work site and the public property.

Separate approval is required to erect a hoarding or temporary fence on public property prior to the commencement of works. Approvals for hoardings, scaffolding on public land must be obtained and clearly displayed on site for the duration of the works.
Any hoarding, fence or awning is to be removed when the work is completed.

40. Any person or contractor undertaking works on public property must take out Public Risk Insurance with a minimum cover of ten (10) million dollars in relation to the occupation of, and approved works within public property. The Policy is to note, and provide protection for Leichhardt Council, as an interested party and a copy of the Policy must be submitted to Council prior to commencement of the works. The Policy must be valid for the entire period that the works are being undertaken on public property.

41. Prior to the commencement of works, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder intending to carry out the approved works.

42. At least forty-eight (48) hours prior to the commencement of works, a notice of commencement form and details of the appointed Principal Certifying Authority shall be submitted to Council.

43. Prior to the commencement of works, a sign must be erected in a prominent position on the site on which the erection or demolition of a building is being carried out. The sign must state:

a) Unauthorised entry to the work site is prohibited.

b) The name of the principal contractor (or person in charge of the site) and a telephone number at which that person may be contacted at any time for business purposes and outside working hours.
c) The name, address and telephone number of the Certifying Authority for the work.

Any such sign must be maintained while the work is being carried out, but must be removed when the work has been completed.

44. The area beneath the canopy of the tree to be retained must be fenced prior to the commencement of works. The fencing must encompass the maximum possible area covered by the drip line of the canopy and must remain in place until the completion of building works. The fencing should be a minimum of 1.8 metres high chainlink or welded mesh fencing. The fencing is to be maintained for the duration of the building works.

Services should be located to avoid disturbing tree roots. Trenches required for the installation of services should be located outside of the fenced area.
All areas within the perimeter of the safety fencing are to be covered with woodchip mulch to a depth of 100mm. All steep gradients unable to be effectively covered with mulch are to be protected with hessian cloth to be kept at a moisture level sufficient to ensure the preservation of tree root systems.

45. The location and facilities for the collection, storage and disposal of waste generated within the premises shall be submitted to and approved by Council prior to the commencement of works.

DURING WORKS

46. Building work must be restricted to the hours of 7:00am to 5:30pm Monday to Friday inclusive, 7:00am to 1:00pm Saturday. Work is not be carried out on Sunday or Public Holidays.

47. Building materials and machinery are to be located wholly on site.

48. Development of the site shall be carried out in accordance with the recommendations of both the Preliminary Contamination Assessment and the Hazardous Materials Identification Survey and Management Plan prepared by Earth Air Water Consulting and Monitoring Pty Limited, dated July 2007.

49. The development site must be inspected at the following stages during construction:

a) At the commencement of the building work, and

b) Prior to covering any stormwater drainage connections, and
c) After the building work has been completed and prior to any occupation certificate being issued in relation to the building.

50. Noise arising from the works must be controlled in accordance with the requirements of the Protection of the Environment Operations Act 1997 and guidelines contained in the New South Wales Environment Protection Authority Environmental Noise Control Manual.

51. During all phases of demolition, excavation and construction, it is the full responsibility of the applicant and their contractors to:

a) Ascertain the exact location of the Council stormwater drainage pipeline and associated pits traversing and/or adjacent to the site in the vicinity of the works.

b) Take measures to protect the in-ground Council stormwater drainage pipeline and associated pits.
c) Ensure dedicate overland flow paths are satisfactorily maintained through the site.

Stormwater drainage pipes can be damaged through applying excessive loading (such as construction machinery, material storage and the like). All proposed structures and construction activities must be sited fully clear of Councils stormwater drainage pipes, pits, easements, watercourses and overland flow paths on the site.

If the Council pipeline is uncovered during construction, all work must cease and the Principal Certifying Authority and Council must be contacted immediately for advice. Any damage caused to the Council stormwater drainage system must be immediately repaired in full as directed and at no cost to Council.

52. A copy of the approved plans must be kept on site for the duration of site works and be made available upon request.

53. Where any works are proposed in the public road reservation, the following applications must be made to Council, as applicable:

a) For installation or replacement of private stormwater drainage lines or utility services, including water supply, sewerage, gas, electricity, etc. an application must be made for a Road Opening Permit .
b) For construction/reconstruction of Council infrastructure, including vehicular crossings, footpath, kerb and gutter, stormwater drainage, an application must be made for a Roadworks Permit .

Note: Private stormwater drainage is the pipeline(s) that provide the direct connection between the development site and Council’s stormwater drainage system, or street kerb and gutter.

54. With the exception of those parts of the property that drain to Foy Street via an easement in the basement carpark, stormwater runoff from all roof and paved areas within the property must be collected in a system of gutters, pits and pipelines discharged by gravity to the kerb and gutter of a public road.

Any existing component of the stormwater system that is to be retained must be checked and certified by a Licensed Plumber or qualified practicing Civil Engineer to be in good condition and operating satisfactorily.
If any component of the existing system is not in good condition and /or not operating satisfactorily, it must be upgraded.

55. The requirements of the Soil and Water Management Plan must be maintained at all times during the works and any measures required by the Soil and Water Management Plan shall not be removed until the site has been stabilised to the Principal Certifying Authority’s satisfaction.

56. All noxious weeds are identified in the Noxious Weeds Act 1993. Any noxious weeds on the site must be treated in accordance with their classification. A complete list of declared noxious weeds within the Leichhardt Local Government Area can be found on the New South Wales Department of Primary Industries web site at Any fill used with the proposal shall be virgin excavated material (such as clay, gravel, sand, soil and rock) that is not mixed with any other type of waste and which has been excavated from areas of land that are not contaminated with human made chemicals as a result of industrial, commercial, mining or agricultural activities and which do not contain sulphate ores or soils.

58. Construction material and vehicles shall not block or impede public use of footpaths or roadways.

PRIOR TO THE ISSUE OF AN OCCUPATION CERITFICATE

59. Prior to the issue of an Occupation Certificate, all noise control measures specified in the plans and relevant documentation under condition 1 are to be carried out and certified by a practising qualified acoustic consultant/engineer. Certification shall be in writing to the satisfaction of the Principal Certifying Authority.

60. All allotments involved in this proposal must be consolidated into one allotment. Evidence of registration shall be submitted to Council or the Principal Certifying Authority prior to the issue of an Occupation Certificate.

61. Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must ensure that an Operation and Management Plan has been prepared and implemented for the basement pump-out system. The Plan must set out the following at a minimum:

a) The proposed maintenance regime, specifying that the system is to be regularly inspected and checked by qualified practitioners.
b) The proposed method of management of the facility, including procedures, safety protection systems, emergency response plan in the event of mechanical failure, etc.

The Plan must be prepared by a suitably qualified professional and provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate.

62. An Occupation Certificate must be obtained prior to any use or occupation of the development or part thereof. The Principal Certifying Authority must ensure that all works are completed in compliance with the approved Construction Certificate plans and all conditions of this Development Consent.

63. Provision must be maintained for access to and within the building on the site for persons with a disability in accordance with the provisions of Australian Standard AS 1428.1:2001 Design for access and mobility – General requirements for access – new building work prior to the issue of an Occupation Certificate.

64. A licence to operate the child care centre must be obtained from the New South Wales Department of Community Services and fully complied with prior to the issue of a final Occupation Certificate. Note: An interim Occupation Certificate will be required to obtain the licence.

The age breakdown and the number of children attending the child care centre shall not exceed the maximum number of approved child care places advised by the New South Wales Department of Community Services.

Prior to the issue of an Occupation Certificate the owner/operator must have in place an emergency evacuation plan that encompasses the requirements of the New South Wales Fire Brigade and outlines the procedures by which staff will be trained in emergency procedures.

65. An Occupation Certificate must be obtained prior to any use or occupation of the development or part thereof. The Principal Certifying Authority must ensure that all works are completed in compliance with the approved Construction Certificate plans and all conditions of this Development Consent.

66. Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must ensure that all works have been completed in accordance with the approved Waste Management Plan referred to in this development consent.

Proof of actual destination of demolition and construction waste shall be provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate.

67. Prior to the issue of an Occupation Certificate, the Principal Certifying Authority is to be satisfied that all landscape works, including the removal of all noxious weed species, have been undertaken in accordance with the approved landscape plan and conditions of Development Consent.

68. All letter boxes must be constructed and located in accordance with the relevant provisions of Australian Standard AS/NZS 4253:1994 Mailboxes and to Australia Post’s satisfaction. Work is to be completed prior to the issue of an Occupation Certificate.

69. A street / shop number must be clearly displayed at the ground level frontage of the building prior to the issue of an Occupation Certificate. A separate application must be made to Council if new street numbers or a change to street numbers is required.

70. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation. Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and plumbing section on the web site then refer to “Water Servicing Coordinator” under “Developing Your Land” or telephone 132092 for assistance.

Following application a “Notice of Requirements” will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Certifying Authority prior to the issue of an Occupation Certificate.

71. Tactile ground surface indicators complying with Australian Standard AS 1428.4:2002 Design for access and mobility – Tactile indicators must be provided at the point of common public access to the building and at the vehicular access points to assist people with visual impairments in gaining access to and from the public way and the premises prior to the issue of an Occupation Certificate. Such works are to be undertaken wholly within the boundaries of the site.

72. Prior to the issue of an Occupation Certificate, the Principle Certifying Authority must ensure that the stormwater drainage system has been constructed in accordance with the approved design and relevant Australian Standards.

A plan showing pipe locations and diameters of the stormwater drainage system, together with certification by a Licensed Plumber or qualified practicing Civil Engineer that the drainage system has been constructed in accordance with the approved design and relevant Australian Standards, must be provided to the Principle Certifying Authority prior to the issue of an Occupation Certificate.

73. Prior to the issue of an Occupation Certificate, the Principle Certifying Authority must ensure that all approved road, footpath and/or drainage works, including vehicle crossings, have been completed in the road reserve in accordance with Council Roadworks Permit approval.

Written notification from Council that the works approved under the Roadworks Permit have been completed to its satisfaction and in accordance with the conditions of the Permit, must be provided to the Principle Certifying Authority prior to the issue of an Occupation Certificate.

74. Prior to the issue of an Occupation Certificate, the Principle Certifying Authority must ensure that all aspects of the flood risk management report have been implemented in accordance with the approved design and relevant Australian Standards.

Certification by a qualified practicing Civil Engineer that all aspects of the flood risk management report have been implemented and constructed in accordance with the development consent and with relevant Australian Standards must be provided to the Principle Certifying Authority prior to the issue of an Occupation Certificate.

75. Prior to the issue of an Occupation Certificate, the Principle Certifying Authority must ensure that the vehicle access and off street parking facilities have been signposted and line marked in accordance with the relevant Australian Standards.

76. Within 30 days of commencement of operation of the Child Care Centre at full or near full capacity an acoustic compliance test shall be undertaken to verify compliance with condition 4. A report relating to that test shall be submitted to Council within 10 days of the test. If the report identifies non-compliance with condition 4 additional noise control measures and/or alterations to the Plan of Management shall be implemented in accordance with condition 77 within 21 days to ensure compliance with condition 4. In that event a second acoustic compliance test shall be undertaken within 7 days of the additional noise control measures/ alterations to the Plan of Management being implemented. A report relating to that test shall be submitted to Council within 7 days of the test. Acoustic compliance testing shall be carried out by an independent accredited acoustic consultant/engineer who has had no prior association with this development.

77. In the event that the acoustic analysis reveals a breach, measures must be immediately implemented, such as an increase in staff supervision and/or reduction in numbers of children attending the site to ensure compliance. Upon remedial action measures being implemented, further testing, within a period of eight weeks, must be carried out at an exact date/time unknown by the operators of the facility. All costs associated with additional monitoring are to be borne by the owner or operator. The Plan of Management shall be amended to reflect any changes to the operation of the centre resulting from the remedial measures.

78. The consent of the neighbouring properties from which measurements are to be taken must be obtained by the acoustic engineer carrying out the analysis. A right of access for acoustic monitoring purposes is not implied by these conditions. In the event that access is denied from a neighbouring site, the monitoring is required to be carried out on the site boundary adjacent to 10, 12 and 14 Foy Street at ground and first floor levels.

79. Operation of the proposed child care facility (including and future new proprietors/operators) must be carried out in accordance with the approved Plan of Management.

80. Any basement car parking space must not be individually enclosed without prior development consent.

81. Driveways and parking spaces must not be used for manufacture, storage or display of goods, materials and equipment. The spaces must be available at all times, for all vehicles associated with the development.

82. The Operation and Management Plan for the basement pump-out system, approved with the Occupation Certificate, must be implemented and kept in a suitable location on site at all times.

83. At all times, the loading, car parking spaces, driveways and footpaths must be kept clear of goods and must not be used for storage purposes.

84. An annual Fire Safety Statement must be given to Council and the New South Wales Fire Brigade commencing within twelve (12) months after the date on which the initial Interim / Final Fire Safety Certificate is issued.

85. All outdoor lighting must not detrimentally impact upon the amenity of other premises and adjacent dwellings and must comply with, where relevant, Australian Standard AS 1158.3:2005 Lighting for roads and public spaces – Pedestrian Area (Category P) lighting – Performance and design requirements and Australian Standard AS 4282:1997 Control of the obtrusive effects of outdoor lighting.

86. No advertisement shall be erected on or in conjunction with the proposed development without prior development consent unless the advertisement is ‘exempt development’ under Council’s Development Control Plan No. 35 – Exempt and Complying Development.

87. The premises shall not be used for any purpose other than that stated in the Development Application, i.e. child care facility without the prior consent of the Council unless the change to another use is permitted as exempt development under Leichhardt Development Control Plan 35 – Exempt and Complying Development.

The use of the premises as a child care facility, is defined under the Leichhardt Local Environmental Plan 2000 as follows:
Child care facility means a building or place used for the purpose of supervising or caring for children (such as a service of the kind provided at centres for long day care, child minding, pre-school or occasional care, or a multi-purpose child care or neighbourhood centre) which:
a) caters for 6 or more children up to 12 years old, and
b) may include an educational function, and
c) may be used for the hourly care of infants to enable their carer to participate in short-term activities, and
d) may operate for the purpose of gain, and
e) is not home based,but does not include home based child care.

88. Suitably constructed waste disposal containers with securely fitting lids must be kept on the property for the storage of any clinical, contaminated or related waste prior to the final disposal of the material at a facility approved by the Department of Environment and Climate Change NSW.

89. All newly planted trees on site must be appropriately maintained on an on-going basis. Maintenance includes watering, weeding, removal of rubbish from tree bases, pruning, fertilizing, pest and disease control and any other operations required to maintain a healthy vigorous tree.

NOTES

A. This Determination Notice operates or becomes effective from the endorsed date of consent.

B. Prior to the issue of the Construction Certificate, the applicant must make contact with all relevant utility providers (such as Sydney Water, Energy Australia etc) whose services will be impacted upon by the development. A written copy of the requirements of each provider, as determined necessary by the Certifying Authority, must be obtained.

E. Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act 1979 and/or the conditions of this consent may result in the serving of penalty notices or legal action.

F. Works or activities other than those approved by this Development Consent will require the submission of a new development application or an application to modify the consent under Section 96 of the Environmental Planning and Assessment Act 1979.

G. This decision does not ensure compliance with the Disability Discrimination Act 1992. Applicants may wish to investigate their potential for liability under that Act.

H. This development consent does not remove the need to obtain any other statutory consent or approval necessary under any other Act, such as (if necessary):

a) Application for Approval under Section 68 of the Local Government Act 1993 for any activity under that Act, including any erection of a hoarding.

c) Application for a Construction Certificate under Section 109(1)(B) of the Environmental Planning and Assessment Act 1979 .

d) Application for an Occupation Certificate under Section 109(C)(2) of the Environmental Planning and Assessment Act 1979 .

g) Development application for demolition if demolition is not approved by this consent.

h) Development application for subdivision if consent for subdivision is not granted by this consent.
i) An application under the Roads Act 1993 for any footpath / public road occupation. A lease fee is payable for all occupations.

I. In accordance with section 81A of the Environmental Planning and Assessment Act 1979, the person benefiting from this consent is notified that if Council is engaged as the Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading “Critical Stage Inspections” in this consent. If additional inspections are required, further notice will be provided.

___________________

T A Bly

Commissioner of the Court

CITATION:	Balmain Care for Kids Pty Ltd v Leichhardt Municipal Council [2009] NSWLEC 1146
PARTIES:	APPLICANT Balmain Care for Kids Pty Ltd RESPONDENT Leichhardt Municipal Council
FILE NUMBER(S):	10877 of 2008
CORAM:	Bly C
KEY ISSUES:	DEVELOPMENT APPLICATION :- alterations and additions to the existing building and use it for the purposes of a long day care centre
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Leichhardt Local Environmental Plan 2000 Leichhardt Development Control Plan 2000
CASES CITED:	Universal Child Care Pty Ltd v Leichhardt Municipal Council [2007] NSWLEC 808 Universal Childcare Pty Limited v Pittwater Council [2007] NSWLEC 665 Design 23 v Woollahra Municipal Council [2009] NSWLEC 1114
DATES OF HEARING:	08/04/2009, 09/04/2009 and 29/04/2009
DATE OF JUDGMENT:	15 May 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr J Cole, solicitor of HWL Ebsworth RESPONDENT Ms R McCulloch, solicitor of Pikes Lawyers

Plan Reference	Drawn By	Dated
Site Plan, DA01/2007	Norm Reavell & Associates Architects	February 2009
Existing Basement Carpark indicating dedicated spaces, Job No. 06-08, DA 02/2007	Norm Reavell & Associates Architects	September 2008
Lower Level Plan, DA 03/2007	Norm Reavell & Associates Architects	February 2009
Ground Floor Plan, DA 04/2007	Norm Reavell & Associates Architects	February 2009
First Floor Plan, DA 05/2007	Norm Reavell & Associates Architects	February 2009
North Elevations, DA 07/2007	Norm Reavell & Associates Architects	February 2009
West Elevations, DA 08/2007	Norm Reavell & Associates Architects	February 2009
South Elevation, DA 09/2007	Norm Reavell & Associates Architects	February 2009
East Elevation, DA10/2007	Norm Reavell & Associates Architects	February 2009
Section A-A, DA 11/2007	Norm Reavell & Associates Architects	February 2009
Acoustic Screen-Rear Wall, DA 24/2007	Norm Reavell & Associates Architects	8 April 2009
Acoustic Screen Details DA 25/2009	Norm Reavell & Associates Architects	8 April 2009

Document Title	Prepared By	Dated
Survey Plan	Bottaro de Nett Land Surveyors	23.03.07
Landscape Plan, DA 14/2006	Norm Reavell & Associates Architects	24/09/08
Survey indicating spot levels of windows and walls of neighbouring townhouses, Ref No. 02135	Phillip CK Hooi Pty Ltd Consulting Surveyors
Noise Assessment of Proposed Child Care Centre at 10 Wortley Street, Balmain	Atkins Acoustics and Associates Pty Ltd	January 2009
Plan of Management for 68 Place Child Care Centre including the Winter program for use of outdoor play areas (Exhibit J – 9 April 2009)	Balmain Care for Kids	February 2009
Flood Study and Stormwater Management Plan	Patterson Britton & Partners Pty Ltd	May 2007
Preliminary Contamination Assessment	Earth Air Water Consulting and Monitoring Pty Limited	July 2007
Tree Management Report	Terrence Arnold Machin, Horticulture and Arborist Consultant
Access Review	Morris-Goding Accessibility Consulting	19 July 2007