Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council

[2000] NSWLEC 243

Land and Environment Court

of New South Wales

CITATION:	Berowra RSL Community and Bowling Club Ltd v Hornsby Shire Council [2000] NSWLEC 243
PARTIES:	APPLICANT Berowra RSL Community and Bowling Club Ltd RESPONDENT Hornsby Shire Council
FILE NUMBER(S):	10001 of 2000
CORAM:	Pearlman J
KEY ISSUES:	Development :- characterisation - existing use - parking - traffic - noise
LEGISLATION CITED:	County of Cumberland Planning Scheme Ordinance cl 11 Crown Lands Consolidation Act 1913 Environmental Planning and Assessment Act 1979 s 79C, s 106, s 107, s 108 Environmental Planning and Assessment Regulation 1980 cl 54 Environmental Planning and Assessment Regulation 1994 cl 38, cl 39, cl 40, cl 41, cl 42, cl 43, cl 44 Hornsby Planning Scheme Ordinance cl 97 Hornsby Shire Local Environmental Plan 1994 cl 23 Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 Registered Clubs Act 1976
CASES CITED:	Berowra RSL Community & Bowling Club Ltd v Hornsby Shire Council (2000) 109 LGERA 328; Egan and Ors v Hawkesbury City Council and Anor (1993) 79 LGERA 321; Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373; North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Ors (1989) 67 LGRA 344; Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305; Shire of Perth v O’Keefe and Anor (1964) 10 LGRA 147; South Sydney City Council v Houlakis and Anor (1996) 92 LGERA 401; Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206; Woollahra Municipal Council v Minister for the Environment and Anor (1991) 73 LGRA 379
DATES OF HEARING:	17/10/2000, 18/10/2000, 19/10/2000, 20/10/2000, 24/10/2000, 25/10/2000, 30/10/2000
DATE OF JUDGMENT:	12/05/2000
LEGAL REPRESENTATIVES:	APPLICANT Mr J B Maston (Barrister) with Mr J Johnson (Barrister) SOLICITORS Conway MacCallum RESPONDENT Mr P C Tomasetti (Barrister) SOLICITORS Ian Woodward

JUDGMENT:

Contents

Section Paragraph Number

Introduction 1 to 3

The site and the proposed development 4 to 6

The history of planning and development on the site 7 to 12

The zoning history and relevant statutory provisions 13 to 16

The competing claims about the existing rights issue 17 to 20

Prohibition or permissibility? 21 to 31

The effect of the existing use 32 to 41

The issues generally 42 to 47

Parking and traffic generation 48 to 60

Noise 61 to 68

Conclusion 69 to 72

IN THE LAND AND

10001 of 2000

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 5 December 2000

BEROWRA RSL COMMUNITY AND BOWLING CLUB LTD

Applicant

v

HORNSBY SHIRE COUNCIL

Respondent

JUDGMENT

Introduction

1. The applicant, Berowra RSL Community and Bowling Club Ltd, has appealed against the deemed refusal of its development application by Hornsby Shire Council.

2. The development application sought approval for the demolition of existing development and the construction of a bowling, RSL and community club on land known as 8 High Street, Berowra being lot 413 in DP 752026 (“the site”).

3. A preliminary question of law arose concerning whether or not the proposed development (characterised as a “registered club” ) is prohibited by the provisions of the Hornsby Local Environmental Plan 1994 (“the Hornsby LEP”). That question was answered in the affirmative by Sheahan J on 16 August 2000 (see Berowra RSL Community & Bowling Club Ltd v Hornsby Shire Council (2000) 109 LGERA 328). The applicant claims, however, that it has the benefit of existing use rights, and it claims that the proposed development involves a rebuilding and an enlargement, expansion or intensification of the existing use. The council denies that the applicant has the benefit of existing use rights, but contends in any event that development consent in respect of the proposed development should be refused on merit grounds.

The site and the proposed development

4. The site is located at the south eastern corner of Boundary and High Streets in Berowra. It adjoins residential development to its north and west. On the east it backs on to Berowra Park, and to the south it adjoins tennis courts. It is currently occupied by two bowling greens, a clubhouse, a bitumen parking area and some ancillary structures.

5. Although the area to the north and west of the site is predominantly residential, there are some non-residential uses nearby. The Berowra Public School is situated on the corner of Berowra Waters Road and High Street. A scout hall and a bush fire brigade building are located in High Street in the vicinity of the site. Opposite the site in Boundary Street is a water tower.

6. It is proposed to retain the existing bowling greens, but to demolish the buildings on the site, and to erect a two storey clubhouse and a carpark for 92 vehicles.

The history of planning and development on the site

7. The first issue which arises is whether or not the applicant has the benefit of existing use rights, and in order to determine that issue it is necessary to outline the relevant history of development upon the site, and to make findings of fact as to the manner in which the site was used at relevant dates.

8. Briefly, the relevant history of development upon the site is as follows:

22 November 1960 Berowra Bowling Club Ltd (“the Bowling Club”) was incorporated as a company limited by guarantee;

1 June 1961 Special Lease 1960/136 was granted under the Crown Lands Consolidation Act 1913 to the Bowling Club for the specified purpose of “Erection of buildings (club house and recreation) (bowling greens)” . [Freehold title to the site was acquired by the applicant on 17 January 1999.];

1961 One bowling green, called “Davidson Green”, was built;

1961 and 1962 A building application for “WB and Glass Club House” was submitted to the council, and, on 30 August 1961, the council approved the erection of “a timber-framed clubhouse with a bituminous roof” . On 15 January 1962, the council approved the erection of a temporary clubhouse. At some point of time during these years, a clubhouse was erected;

10 December 1962 A liquor licence was granted;

June 1966 A second bowling green was constructed;

1973 onwards Various alterations and additions were made to the clubhouse and ancillary structures were erected;

28 July 1993 An agreement was reached to amalgamate the Bowling Club and the Berowra RSL & Citizens Club Ltd (“the RSL Club”);

30 May 1994 The amalgamation was approved by the Licensing Court;

15 November 1994 The assets of the Bowling Club were transferred to the amalgamated club;

1994 to the present The applicant, which is the amalgamated club, operates both on the site and at the premises of the former RSL Club located at 997 Pacific Highway, Berowra.

9. A number of persons gave evidence as to the operation of the Bowling Club from its inception in 1961 until amalgamation in 1994. One of these persons was Mr B Rothwell, who is currently the secretary/manager of the applicant. Mr Rothwell was the assistant manager or the secretary/manager of the RSL Club from 1975 to the time of amalgamation (except for a short gap of about two years). The other persons were Mr J A Hatfield, who has been a member of the Bowling Club since the early 1960’s, Mr P A Huett, who was a foundation member of the Bowling Club, and Mr G E Thompson, who also was a foundation member of the Bowling Club and who, for the last six years, has been a bowls coach at the amalgamated club.

10. From the evidence of these persons and having regard to the history I have outlined, I make the following findings of fact:

(a) The primary purpose for the establishment of the Bowling Club in the early 1960’s was to establish a place to play bowls, but a secondary purpose was to establish a community facility, since such a facility was lacking in Berowra at that time. From the time of the establishment of the Bowling Club, there were members who regularly played bowls, such as Mr Thompson. There were also members who both played bowls and enjoyed the social facilities (such as Mr Huett, who played bowls once a week and was a regular afternoon drinker), and there were also members who were only social members and who did not play bowls at all (such as Mr Hatfield).

(b) It was almost universal in New South Wales that bowling clubs provide a clubhouse facility for their members. As Mr Thompson expressed it in giving oral evidence, if there was no clubhouse, there would be no bowls, and if there were bowls, there would be a clubhouse. The clubhouse served various purposes. It has been a facility for providing refreshments to members, and has permitted the bowling club to augment its income from members’ fees, by revenue from bar sales, poker machines, and the holding of functions.

(c) Members’ fees have been insufficient to cover the costs of running the Bowling Club, the principal expenditure being the maintenance of the two bowling greens. It is essential, therefore, to augment that income by having a clubhouse, obtaining a liquor licence, encouraging visitors, and utilising the facilities for functions.

(d) The bowling greens have been utilised about three or four days each week, and on special occasions, but the clubhouse is open every day, and closes each evening about 8:30 pm;

(e) The Bowling Club had kitchen facilities until the early 1990’s, but those facilities failed to meet required standards, and have not been used from that time. Morning and afternoon teas, and the provision of food at functions have to be brought to the site;

(f) Although bowls have been the primary recreational activity conducted on the site, over the years other recreational sporting activities have taken place. Table tennis was played until about 1975, and there was an affiliated fishing club and indoor bowls.

11. The purposes for which the Bowling Club was incorporated, as set out in its memorandum of association, were to promote bowls, lawn tennis and croquet, and other indoor and outdoor sports and recreations; to construct and maintain bowling greens, lawn tennis courts, croquet lawns and quoit pitches; to construct and maintain a clubhouse and other conveniences for members; to lease the grounds, clubhouse or any part of the premises; to promote and conduct sports, tournaments, entertainments or amusements; and to supply refreshments to persons and visitors using the clubhouse, grounds and other premises.

12. The articles of association of the Bowling Club provided for several categories of membership, including life members, full members and social members. Article 9 provided that social members were entitled to “enjoy the full social advantages” of the Bowling Club, but they were not entitled to plays bowls. Power was conferred upon the General Committee (the management committee of the Bowling Club) to require a social member to apply for full membership, and failure to do so would result in deemed resignation from the Bowling Club. Furthermore, cl 15 of the articles provided that members other than life members and full members “shall not have any voice in the management” of the Bowling Club.

The zoning history and relevant statutory provisions

13. In 1961, when the Bowling Club commenced to use it, the site was zoned under the County of Cumberland Planning Scheme Ordinance as County Open Space. Clause 11(1)(a) of the Ordinance permitted the erection of a building incidental to the purpose for which the site was reserved.

14. On 29 April 1977, the Hornsby Planning Scheme Ordinance (“the PSO”) came into force. Under the PSO, the site was zoned 6(a) Open Space - Existing Recreation. In that zone, development for certain purposes was permissible with consent, but those purposes did not include bowling greens, recreation areas or registered clubs.

15. On 22 July 1994, the Hornsby LEP came into force. Under the Hornsby LEP, the site is zoned Open Space A (Public Recreation - Local). In that zone, development for certain specified purposes is permissible without development consent, development for other specified purposes is permissible with consent, and all other development is prohibited. The only possible categories of development which might be relevant to the current use of the site by the applicant are “recreation areas” or “recreation facilities” , both of which purposes are permissible with consent. As has already been found (see par 3), use of the site for the purposes of a registered club is prohibited.

16. Clause 97 of the PSO relevantly preserved the continuance of any right accrued or incurred under the Cumberland Planning Scheme Ordinance. This clause was, however, repealed under the Miscellaneous Acts (Planning) Repeal and Amendment Act 1979 as from 26 September 1980. On that date, the Environmental Planning and Assessment Act 1979 (“the EP&A Act”) however, was in force. Section 107 of the EP&A Act preserves the continuance of an existing use. The term “existing use” is relevantly defined in s 106(a)as follows:

‘existing use’ means:

(a) the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of this Part, have the effect of prohibiting that use …

The competing claims about the existing rights issue

17. Against the facts and circumstances I have set out, the competing claims of the parties may be summarised. The applicant claims that the site was used for the purpose of recreation under the County of Cumberland Planning Scheme Ordinance, and that was a use which was lawful under that Ordinance. That lawful use continued thereafter, and, properly characterised, it is a use for the purpose of a registered bowling and community/social club. That was the use of the site immediately before the coming into force of the PSO in 1977, when a use of that nature was prohibited. The prohibition continued under the Hornsby LEP. Accordingly, the use is an “existing use” within the meaning of s 106(a), and its continuance is preserved by s 107.

18. The council claims that, properly characterised, the use of the site from its commencement to the present day is that of recreational lawn bowling. All other activities which have taken place on the site are ancillary to that use. Although that use may have been prohibited under the PSO, it is a use which is permissible under the Hornsby LEP, and it is not, therefore, an existing use. Its permissibility under the Hornsby LEP derives from it being properly characterised under the Hornsby LEP as a “recreation area” or a “recreation facility”.

19. It can be seen, therefore, that question of existing use turns on the proper characterisation of the use which commenced on the site in 1961 and has continued to the present day. The principles applicable to the task of characterising a use as an “existing use” are not in doubt, and may be summarised as follows:

(1) The proper approach is to ask what, according to ordinary terminology, is the appropriate designation of the purpose being served by the use of the site at the relevant date - Shire of Perth v O’Keefe and Anor (1964) 10 LGRA 147 per Kitto J at 150;

(2) The task should not be approached through a meticulous examination of the details of the activities - Shire of Perth v O’Keefe at 150;

(3) What is required is to describe the purpose of the use of the site only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date - Royal Agricultural Society of New South Wales v Sydney City Council (1987) 61 LGRA 305 per McHugh JA at 310;

(4) Nevertheless, the general approach is to construe the use broadly. What is required is the determination of the appropriate genus which best describes the activities in question - North Sydney Municipal Council v Boyts Radio and Electrical Pty Ltd and Ors (1989) 67 LGRA 344 per Kirby P (as he then was) at 353;

(5) It is erroneous to approach the task by searching for a purpose that is comprehended by a definition in the environmental planning instrument - Shire of Perth v O’Keefe at 150; Royal Agricultural Society v Sydney City Council at 310 - 311;

(6) Defining the existing use depends upon a detailed examination of the facts of each case, and there will be borderline cases where minds might differ - North Sydney v Boyts per Kirby P at 353; Shire of Perth v O’Keefe at 150.

(7) The task of characterisation must satisfy an objective test, in the sense that it refers to the end which is served by the use of the site, rather than a subjective test, in the sense of the objects or motives in the minds of particular individuals - Shire of Perth v O’Keefe at 149; Woollahra Municipal Council v Minister for the Environment and Anor (1991) 73 LGRA 379 per Gleeson CJ at 382.

20. Applying these principles, I have concluded that the proper characterisation of the use of the site which commenced in 1961 and still continues is that of a recreational bowling club. In my opinion, the social activities of the Bowling Club and the licensing of the clubhouse for the sale of liquor are ancillary to that purpose. The members came to the Bowling Club primarily for the purpose of playing bowls, and other activities were secondary to that purpose. The purposes for which the Bowling Club was incorporated support such a conclusion, because they emphasise the recreational playing of bowls, although activities for other purposes were no doubt within the power of the incorporated company. The articles of association also support such a conclusion, because they emphasise the paramount status of full and life members as against social members by requiring the latter to apply for full membership if so requested. It may have been the hope and aspiration of the foundation members that the Bowling Club would be a community club, but their personal motives are irrelevant, and there was no evidence whatsoever which would establish that the Bowling Club truly operated as a community or social club. Activities such as the sale of liquor, the use of poker machines, and the hiring of parts of the clubhouse for functions were primarily for the purpose of raising revenue to support the maintenance of the bowling greens and bowling facilities, and not to constitute a separate or independent use of the site.

Prohibition or permissibility?

21. The question which then arises is whether the use of the site for the purpose of a recreational bowling club is a prohibited use. It was prohibited by the PSO, but does it remain prohibited under the Hornsby LEP? The answer to that question requires the proper construction of the relevant provisions of the Hornsby LEP.

22. As I have noted in par 15, in the zone into which the site falls (Open Space A (Public Recreation - Local)) development for the purpose of “recreation areas” and “recreation facilities” is permissible with development consent, and, except for a limited number of specified purposes, development for all other purposes, which includes “registered clubs”, is prohibited.

23. A “recreation area” is relevantly defined in cl 23 (the dictionary) of the Hornsby LEP as follows:

‘recreation area’ means:

(a) …
(b) an area used or intended for use for sporting activities or sporting facilities;
(c) an area used or intended for use to provide facilities for recreational activities which promote the physical, cultural or intellectual welfare of persons within the community, being facilities provided by:
(i) …
(ii) a body of persons associated for the purpose of the physical, cultural or intellectual welfare of persons within the community …

24. A “recreation facility” is defined in the same clause as follows:

‘ recreation facility’ means a building or place used for sporting activities, recreation or leisure activities, whether or not operated for the purpose of gain, but does not include a building or place elsewhere defined in this clause.

25. A “registered club” is also defined in the same clause as follows:

‘registered club’ means a building or place which is used by persons associated, or by a body incorporated, for a social, literary, political, sporting, athletic or other similar lawful purpose and which is, or is intended to be, registered under the Registered Clubs Act 1976;

26. As a starting point, it is clear that the definition of “recreation facility” is relevant only if the other definitions do not apply - that is, the use may properly fall within the definition of “a recreation area” or “a registered club” or both, but if it does, then it cannot fall within the definition of “recreation facility” because that definition must yield to a use elsewhere defined in cl 23.

27. In my opinion, the use falls within both of the other definitions. It may properly be characterised as a use for the purpose of both “a recreation area” and “a registered club” . This is because a “recreation area” means, amongst other things, an area “used … for sporting activities or sporting facilities” . Clearly, the site is used for the purpose so described. The use is, however, also for the purpose of “a registered club” because the site is used “by a body incorporated … for … a sporting … purpose …” and it is registered under the Registered Clubs Act 1976.

28. In coming to this conclusion, I reject the submission of Mr Maston, appearing for the applicant, that the definition of “recreation area” is confined to a use of a public rather than a private nature, and would not therefore encompass the use upon the site, which is that of a private club, open only to members and their visitors, and not to the public generally. Mr Maston placed much emphasis on the use of the words “of persons within the community” where they twice appear in the definition. Furthermore, he claimed that his proposition was supported by the objectives of the open space zones under the Hornsby LEP. Each of them refers, in almost identical terms, to an objective of ensuring the provision of adequate open space to meet the needs of the community or the regional community. But only the third of them (Open Space C (Private Recreation)) includes amongst its objectives a reference to sustaining “the use of privately owned land for sporting activities” . This submission, however, ignores the fact that the reference in the definition to “persons within the community” is confined to sub-par (c) of the definition. No such constraint appears in sub-par (b), nor do I think such a constraint can be inferred from the objectives of each of the zones.

29. My view, therefore, remains that the use of the site falls within both definitions. In Egan and Ors v Hawkesbury City Council and Anor (1993) 79 LGERA 321, Mahoney JA dealt (at pp 328 - 329) with the proper approach to be taken when definitions in a local environmental plan are so drawn that activities fall not merely one, but two or more of them. His Honour said:

The submission for the respondents would involve that, if an activity for which development approval is sought is within a definition of an activity which is proscribed, it would yet not be proscribed if it fell also within a definition or class of activity not so proscribed. I do not think that that is how the local environmental plan was intended to operate. It intended to remove from use with council approval the kinds of activities falling within the definition as proscribed. The fact that a prescribed (sic) activity might fall within another definition was not intended to have the effect that it could be carried on, or carried on with consent.

…

In the end, the respondents’ submission is to be accepted only if this Court is to infer the intention that, despite the meanings assigned in the definitions, consent can be given to a use which is proscribed because it also falls within another use which is defined by the local environmental plan. That, of course, can be done if there is, in the plan and the context, some appropriately compelling consideration for the departure from the ordinary and natural meaning of the terms.

30. In my opinion, in this case there is no “appropriately compelling consideration” for departing from the ordinary and natural meaning of the defined terms as they are used in the Hornsby LEP. If regard is had to the open space zones in the Hornsby LEP, it is apparent that it was not intended that a “registered club” could be carried on with consent simply because the use of the site also falls within the definition of “recreation area”. There are three such open space zones. The first, within which the site falls, is Open Space A (Public Recreation - Local) Zone. In that zone, as I have earlier said, development for the purpose of “recreation areas” is permissible with consent, but development for the purpose of a “registered club” is prohibited. A similar position pertains to the second zone, which is entitled Open Space B (Public Recreation - District) Zone. Again, development for the purpose of “ recreation areas” is specified as being permissible with consent, whilst development for the purpose of “ registered club” falls within the innominate purposes which are prohibited. But in the third zone, which is entitled Open Space C (Private Recreation) zone, development for the purposes both of “ recreation areas” and “ registered clubs” is permissible with consent. The clear intention of the Hornsby LEP is, I think, that development for the purpose of “ registered clubs” is only permissible with consent in the third zone, and it is prohibited in both other open space zones even though it may fall within the definition of “ recreation area”. That conclusion also follows from the titles of the zones. The third zone is the only zone concerned with private recreation. That is a description more akin to a “ registered club” because such clubs normally involve private membership rather than public use.

31. I conclude for these reasons that the use of the site as a recreational bowling club falls within both the definitions of “registered club” and “recreation area” , but that, under the Hornsby LEP, the former use is prohibited and it is not intended that the use is nevertheless permissible with consent simply because it also falls within the latter definition. That being the case, the use, which was prohibited under the PSO, remains prohibited under the Hornsby LEP, and consequently, it is an “existing use” within the meaning of s 106(a) of the EP&A Act.

The effect of the existing use

32. Section 107 of the EP&A Act operates to preserve the continuance of the existing use. However, the applicant claims that what it is seeking is to enlarge, expand or intensify the existing use, and to demolish and rebuild the structures on the site. Such a course is permissible under the EP&A Act, provided that development consent is obtained.

33. That permissibility is to be found in the operation of s 108 of the EP&A Act and the relevant clauses of the Environmental Planning and Assessment Regulation 1994 (“the Regulation”) made pursuant thereto. Section 108(1) provides that regulations may make provision with respect to, amongst other things, the rebuilding of a building used for an existing use, or the enlargement, expansion or intensification of that use, or a change of that use to another use. Section 108(2) provides that regulations so made are taken to be incorporated in every environmental planning instrument, and such regulations are commonly called “the incorporated provisions”.

34. The incorporated provisions are cls 38 to 44 of pt 5 of the Regulation. Relevantly for these proceedings, cl 39 provides that an existing use may be enlarged, expanded or intensified or may be rebuilt, or may be changed to another use. Clauses 40, 42 and 43 deal respectively with those matters, and provide that development consent in respect of them must be obtained.

35. In assessing any such development application, relevant matters arising under s 79C of the EP&A Act must be taken into account, but any provisions in any environmental planning instrument which derogate from the incorporated provisions have no force and effect, and therefore may be ignored (see s 108(3)) and Fabcot Pty Ltd v Hawkesbury City Council (1997) 93 LGERA 373 at pp 375 - 378).

36. Before I turn to consider the relevant matters arising under s 79C, I deal with the claim raised by the council that what is sought by the applicant is not in fact an enlargement, expansion or intensification of the existing use, but is rather a change of the existing use to add to it a new use being that of a “registered club”. The basis for this claim is that what is proposed, as I have earlier indicated, is that the RSL Club will operate upon the site as part of the amalgamation, so that, in effect, the site will be the location of both the Bowling Club use and the RSL Club use. The former, as I have found, is an existing use of the site as a recreational bowling club. The activity carried on by the RSL Club at its location on the Pacific Highway cannot be so characterised because it does not provide for the playing of lawn bowls. It falls more aptly into the definition of “registered club”. Hence, in the submission of Mr Tomasetti, appearing for the council, the development application purports in reality to seek a change of use under cl 43 of the incorporated provisions by adding a new use to the existing use.

37. In Mr Tomasetti’s submission, cl 43 does not permit an existing use to be changed so that the site becomes used for two different uses. The EP&A Act and the Regulation speak of a change of an existing use “to another use” and accordingly, in Mr Tomasetti’s submission, a change of an existing use to two independent uses is not authorised by the EP&A Act or the Regulations.

38. I think that Mr Tomasetti is correct in submitting that what is proposed by the applicant is to change the existing use of the site for the purpose of recreational bowling club to the same use and in addition to a use for the purpose of a registered club. Mr Maston’s contrary submission depended upon a finding that the existing use was for the purpose of a registered bowling and community/social club, and accordingly no change of use was involved.

39. But Mr Tomasetti’s submission that such a change of use is not authorised by the EP&A Act and the Regulations is contrary to decided authority. In Warringah Shire Council v Caltex Oil (Australia) Pty Ltd (1989) 68 LGRA 206, it was held by the Court of Appeal (Hope and Meagher JJA, Samuels JA dissenting) that cl 54(1) of the Environmental Planning and Assessment Regulation 1980 permitted a use (use A) to be changed so as to comprise both that use (use A) and also another use (use B). Clause 54(1) has now been replaced by the provisions to be found in pt 5 of the Regulation, but the decision turned upon the words “changed to another use” which remain almost identically in the present cls 39 and 43 of the Regulation, and the general planning context of the provisions remains the same. In so holding, Hope JA reviewed previous decisions, including those of this Court, and held, at p 213 that the word “change” is properly construed having regard to the context and planning considerations as “to make different, alter in condition, appearance etc” , and that, accordingly, a change of use from purpose “A” to purposes “A” and “B” is a “change” .

40. However, I am also of the view that what is proposed amounts also to a rebuilding, and to an enlargement, expansion or intensification of the existing use. Firstly, the existing structures on the site are to be demolished and replaced with new structures. That is clearly a rebuilding. Secondly, although the two bowling greens will remain unaltered, the entire amalgamated club will operate on the site, that is, at one location rather than two separate locations, and there will be a larger clubhouse. There will accordingly be an enlargement, expansion or intensification of the existing use, taking those three terms as embodying a “notion of increase” ( South Sydney City Council v Houlakis and Anor (1996) 92 LGERA 401 per Clarke JA at 404).

41. Accordingly, as I have explained, what is proposed remains to be assessed under s 79C, since what is proposed is a change of use, a rebuilding and an enlargement, expansion or intensification of that use, and I now turn to deal with the merit issues.

The issues generally

42. The council raised 14 issues in its further amended statement of issues. The first two of those issues related to the existing use. The third issue was not pressed. Nine of the remaining issues related to matters of car parking, traffic generation and noise, and those matters emerged as the only critical issues in this case.

43. One of the final two issues was about the concerns of objectors. Four of them gave evidence at the hearing. They were Ms C P Jones, who lives at No 3 High Street and whose house is located between the public school and the bush fire brigade; Mr R W Moore, who lives at No 6 High Street; Mr L H Bentley, who lives at No 4 High Street; and Mr A J Bigham, who lives at No 11 Boundary Street. They were concerned about each of the matters I have listed as critical issues, but in general terms they were worried about the proposed development because it would replace a rustic, old-fashioned bowling club with a new RSL club where bowling would be a minor ancillary use. That would, in their estimation, change the nature of the club, and the consequence would be a detrimental affect upon their amenity. That concern underlay some of the evidence of Mr P A Le Bas, a consultant town planner who gave evidence for the council. He said, in giving oral evidence, that the bowling club would change and there would be a significant impact as a consequence.

44. I have thought carefully about this concern. It is true that an old-fashioned clubhouse will be replaced by a new and larger clubhouse, with improved facilities, which is likely to attract an increased patronage and greater use of the facilities provided. That has implications for car parking, traffic generation and noise, but I do not consider that it has any other implications and the evidence of the objectors did not reveal any other implications.

45. The final issue was whether the proposed development is reasonable in a residential area or whether it is repugnant to the locality. This issue did not loom large at the hearing, and it is understandable why that was so. The issue must be understood in the context that the bowling club use already exists upon the site. It must also be considered having regard to the fact that the residential area does not surround the entire site and that there are other non-residential uses in the locality. In considering this issue, Mr D V B Crane, a consultant town planner who gave evidence for the applicant, treated it as being concerned with four aspects - possible anti-social behaviour, noise, an increase in poker machines and an increase in car headlights exiting from the site. Apart from the question of the impact of noise, there was no specific evidence about the other matters. In particular, there was no evidence of anti-social behaviour, but, in any event, Mr Crane thought it would be reasonable to suppose that the applicant will put security measures in place. Nor was there any evidence about any increase in car headlights. As to poker machines, the evidence was that there would be no increase in the number of poker machines beyond the number presently located at both locations currently operated by the applicant.

46. I have, for these reasons, treated these last two issues as not being grounds upon which to refuse consent to the development application. However, the issues of car parking, traffic generation and noise are the critical issues, and I turn to consider the detailed expert evidence which was furnished in relation to them.

47. Before doing so, however, I should state that I have placed no weight upon the evidence furnished on behalf of the council by Mr P A Fryar, whose position at the council is Manager Assessments, and by Mr G H Porter, who is a social policy consultant. Mr Fryar dealt largely with historical background, rezoning proposals and land acquisition, none of which were crucial to the issues as they emerged during the hearing. The major part of Mr Porter’s evidence dealt with the social impact of noise and road safety impacts. However, his conclusions about unacceptable social impact was predicated on there being unacceptable noise and traffic impacts. As I later point out, evidence about noise and traffic generation was furnished by experts in those fields, and the evidence about those matters does not, for the reasons which I set out, establish unacceptable noise and traffic impacts.

Parking and traffic generation

48. Three questions about parking and traffic generation arise. They are as follows:

(1) Whether the proposed development will provide adequate car parking or whether parking will spill on to the adjacent streets;

(2) Whether the proposed development will generate unacceptable levels of traffic; and

(3) Whether the intersection at the corner of Berowra Waters Road and High Street requires modification as a consequence of the level of traffic likely to be generated by the proposed development.

49. Evidence on these issues was given by three traffic engineers. On behalf of the applicant, evidence was given by Mr C J Wilson, a director of Masson Wilson Twiney. For the council, evidence was given by Mr C Hallam of Christopher Hallam & Associates Pty Ltd, and by Mr T J Rogers an associate director of Colston Budd Hunt & Kafes Pty Ltd. Mr Hallam was unavailable for cross examination, but his report was tendered.

50. I can shortly deal with the last of the questions which are set out above. Mr Wilson’s initial opinion was that no modification to the intersection should be made. Mr Rogers’ initial opinion was that a roundabout was required for safety reasons at that location. However they both ultimately agreed on a method of improving that intersection by means of what is called a “seagull” intersection, and the applicant will accept a condition of consent to this effect.

51. Turning to the issue of car parking, the starting point is to note that the proposed development provides for 92 car parking spaces upon the site. Mr Wilson regarded that number as providing an adequate number of car parking spaces, except for a short period of five Fridays throughout the year. However, both Mr Hallam and Mr Rogers considered that there would be a shortfall in the number of car parking spaces required on the site, and that, accordingly, car parking would regularly spill over to the surrounding streets.

52. The point of difference between the experts depended upon their respective estimates of, on the one hand, future peak patronage densities (meaning the number of patrons per 100 m2 of public floor space) and, on the other hand, estimates of the percentage of patrons travelling to the site by car (the “car driver mode”). Mr Wilson estimated a future peak patronage level of 292 persons (which calculates at 18.1 persons per 100 m2)(the total floor space being 1613 m2), whilst Mr Hallam and Mr Rogers each calculated a level of between 20.1 and 21.6 patrons per 100 m2 . As to the car driver mode, Mr Wilson calculated a rate of 32 per cent, whilst Mr Hallam’s calculation was 50 per cent.

53. These differences in estimates resulted, of course, in a higher estimates of car parking demand on the part of Mr Hallam and Mr Rogers, compared to those of Mr Wilson. Whilst Mr Wilson calculated that provision of 92 car parking spaces would meet the demand, Mr Rogers calculated that 103 to 165 car parking spaces were required.

54. The reason for the differences in estimates flowed from the approaches which they respectively took. Mr Wilson placed much emphasis on the fact that the Roads and Traffic Authority (“the RTA”) has not identified an acceptable general parking or traffic generation rate for clubs. Instead, in section 3.7.3 of its Guide to Traffic Generating Developments, the RTA states, as follows:

A traffic generation assessment of new clubs should be based on recent surveys of similar clubs. For extensions to an existing club, the assessment should be based on the relevant club.

55. Mr Wilson interpreted this to mean that his assessment should be focussed on the applicant because it already exists, although he did survey some other clubs at the request of the council. Mr Hallam and Mr Rogers, however, considered that the appropriate assessment should be made by comparing existing clubs in the general vicinity. In particular, Mr Rogers compared the peak patronage levels of the old Epping RSL Club and the new relocated Epping RSL Club, from which he drew the conclusion that, when a club improves its facilities, the patronage density increases.

56. Mr Wilson claimed that his assessment was more accurate, and he proffered the following reasons for that claim:

(a) the primary motivation for the proposed development is the financial imperative of locating the two operations together, rather than a desire to increase the growth of the applicant;

(b) the applicant has agreed to abide by a condition of consent limiting its membership to 3000 members (its current membership is about 2800 members);

(c) comparison with the other clubs is inappropriate because none of them are similar in style, location, potential membership catchment and size.

57. I prefer the evidence of Mr Wilson, for three reasons. First, he has had an abundant experience in assessing the parking and traffic demands of the applicant, because he prepared reports about these matters in December 1996, in May 1999, in August 1999, and in December 1999. Secondly, I place less weight on Mr Hallam’s report, as he was not available for cross examination. Thirdly, I think that it is reasonable to assess parking demand in the light of the actual circumstances - that is, the ceiling on membership and the fact that the applicant is already in existence.

58. For these reasons, I conclude that the provision of 92 car parking spaces will be adequate. I accept Mr Wilson’s assessment that there will be a shortfall of car parking spaces on five Fridays throughout the year, but I do not regard that shortfall as creating an unacceptable impact, particularly taking into account that a spill of parking to surrounding streets already occurs occasionally during the year (for example, on ANZAC day).

59. As to traffic generation levels, the RTA has developed a standard for the environmental capacity of residential streets. In respect of local streets, its environmental capacity standard is 200 vehicles per hour. Mr Wilson’s estimates of traffic generation indicated that this standard would be met because the volumes of traffic which he estimated were well below the 200 vehicles per hour standard. Mr Hallam thought that the standard would be exceeded between 7 pm and 8 pm in High Street, but Mr Rogers thought that the standard would be met. I place greater weight on the evidence of Mr Wilson and Mr Rogers than Mr Hallam (who, as I said, was unavailable for cross examination).

60. For these reasons, I am satisfied that the proposed development will have no unacceptable impact arising out of parking demand and traffic generation.

Noise

61. The potential noise impact arises from, first, the operation of mechanical plant and the playing of music, secondly, the use of the car park, that is, the noise potentially generated by cars starting up and moving, car doors slamming, and the voices of patrons entering and leaving their cars, and, thirdly, from increased traffic generation.

62. Evidence on these matters was given on behalf of the applicant by Mr B J Murray, of Wilkinson Murray Pty Ltd. On behalf of the council, a report on these matters was prepared by Mr R A Godson of Richard Heggie Associates Pty Ltd. Mr Godson was unavailable at the time of the hearing, and his report was considered and adopted by Mr R S Heggie, who gave oral evidence.

63. Both experts agreed that the potential impact of noise generated by the operation of mechanical plant and the playing of music could be satisfactorily controlled by the imposition of conditions of consent. Hence the critical issue between the parties was the potential impact of noise emitted from the car park, and from increased traffic generation.

64. It is proposed to construct an acoustic barrier around the car park. Both experts agreed that this should have the effect of reducing noise emissions from the car park compared to the present situation.

65. The residences at 21 and 23 High Street are those most likely to be affected by unacceptable noise impact. Mr Murray estimated that the maximum noise levels from the car park, when shielded by the acoustic barriers, would at those residences comply with appropriate noise criteria, except on Sunday evening, when the noise level will be up to 2 dBA above the criterion. Mr Murray noted, however, that it would be impossible to shield all parking locations within the car park because access to it is required off High Street. He calculated that each of those residences would be affected by noise levels up to 3 dBA higher than the noise from the shielded locations. His recommendation, which the applicant accepts, is that some form of acoustic treatment (such as upgraded glazing and mechanical ventilation) be offered to the residents of 21 and 23 High Street and installed by the applicant if those residents agree.

66. Mr Heggie generally agreed with Mr Murray’s assessment except for one aspect. Relying on Mr Hallam’s estimate that car parking would regularly spill over into the adjacent streets, Mr Heggie considered that there would be a doubling of perceived noise levels as a consequence, and the appropriate sleep disturbance criterion would increase to 12 dBA to 15 dBA. Mr Murray acknowledged that he did not consider the impact of noise generated by parking on the street, because he relied upon Mr Wilson’s assessment that the car parking spaces to be provided would be adequate except for five occasions in each year. Since I have accepted Mr Wilson’s evidence in preference to that of Mr Hallam, I also accept Mr Murray’s estimate in preference to that of Mr Heggie. That leaves, however, the question of whether it is appropriate to mitigate the impact of noise from the car park by acoustic treatment to the residences at 21 and 23 High Street. Mr Heggie agreed in giving oral evidence that some form of acoustic treatment of the affected residences was a valid approach to the mitigation of noise impact, and I therefore accept the appropriateness of imposing a condition of consent to this effect.

67. As to the potential impact of noise from traffic generation, Mr Murray once again relied upon Mr Wilson’s estimates which I have accepted. Mr Murray concluded that noise levels after 10 pm would not exceed the EPA environmental noise criteria, but that during the earlier parts of the evening, the EPA daytime noise criterion would be exceeded by up to 8 dBA. He did not consider that an exceedence of the daytime criterion was significant because “during daytime and evening residents normally pursue activities which in themselves involve noise”. Mr Heggie calculated that the impact of noise from traffic generation would be greater than estimated by Mr Murray, but, once again, Mr Heggie’s calculations were based on Mr Hallam’s evidence rather than Mr Wilson’s, and accordingly I place less weight upon them.

68. I conclude, therefore, that the development application should not be refused upon the ground of noise impact.

Conclusion

69. For the foregoing reasons, I have, in summary, reached the following conclusions:

(1) The use of the site which commenced in about 1961 and has continued to the present day is that of a recreational bowling club;

(2) The use of the site for the purpose of a recreational bowling club was prohibited under the PSO which came into force in 1977, and continues to be prohibited under the Hornsby LEP;

(3) The use of the site for the purpose of a recreational bowling club is accordingly an existing use and may continue pursuant to s 107 of the EP&A Act 1979;

(4) The applicant’s proposed development constitutes a change of use, a rebuilding, and an enlargement, expansion or intensification of the use, all of which are permissible with development consent under that Act;

(5) There are no merit grounds for refusing development consent, and in particular, matters of car parking, traffic generation and noise do not constitute unacceptable impacts of the proposed development.

70. Accordingly, I propose to grant development consent. The question then arises as to appropriate conditions of consent. The council furnished a draft of conditions which it would wish to impose if consent was to be granted, and the applicant responded to that draft by seeking some amendments and additions. I think it is appropriate to impose conditions in the form proposed by the council but incorporating the applicant’s suggested amendments and additions. Although I will impose those conditions when making final orders, I attach a copy of them for convenience.

71. There is, however, a “housekeeping” problem. The draft conditions refer to some plans which were not tendered during the hearing, and they should be tendered so as to become part of the Court’s file. Furthermore, the plans which were tendered (ex 8) were in laminated form, and it would be preferable that they be in an unlaminated form for record purposes.

72. I propose therefore to stand the proceedings over to a date to be fixed for the tender of the documents mentioned below and for the making of final orders. The documents are:

(1) Plan prepared by Lyle Marshall and Associates Pty Ltd No 10000/99 and dated 13 January 2000 (referred to in draft condition 47 in connection with sediment and erosion control measures);

(2) Plans prepared by Peter Argent Pty Ltd (referred to in draft condition 89 in connection with a stormwater detention system);

(3) Plan prepared by Proust & Gardner No A and dated June 1998 (referred to by implication in condition 50 in connection with the preservation of trees No T10 and T14); and

(4) Plans corresponding to ex 8 in unlaminated form.

Berowra RSL Bowling Club and Community Club Ltd

v

Hornsby Shire Council

Property: 8 High Street, Berowra

[Lot 413 DP 752026]

Conditions of Consent

Development is to be generally in accordance with plans GA.01J, GA.02F, GA.03G, GA.04A, GA.05A and GA.06A, subject to the following conditions:

Council Land

1. No building materials, machinery or the like are to be stored on the road or footpath and the pathway is to be kept in a clean, tidy and safe condition during the building operations. Further, Council reserves the right, without notice, to rectify any such breach and to charge the cost against the builder, owner or applicant.

2. The land and adjoining areas are to be kept in a clean and tidy condition at all times. Litter and rubbish to be placed in containers and removed from the site. A waste storage container is to be provided at the commencement of the building work.

3. Any damage that may be caused to any Council property as a consequence of doing or not doing anything to which this approval relates shall be made good at the applicant’s expense prior to occupation or use of the structure.

4. This approval does not give right of access to the site from Council owned or controlled land, a park, reserve or the like. Should such access be required, written application is to be made to the Environment Division.

5. In order to restore Council’s facilities, damaged kerb and gutter as well as disused gutter and footpath crossings are to be removed and the respective kerb sections and footpath areas are to be restored to the satisfaction of Council’s Engineer at the cost of the applicant.

Hours of Operation

6. In order to maintain the amenity of adjoining properties, site and building works shall be restricted to between 7.00 am and 6.00 pm, Monday to Friday and 8.00 am to 1.00 pm Saturday. If inaudible on residential premises, site and building works shall be restricted to between 7.00 am and 4.00 pm on Saturday. No work is to be undertaken on Sundays or public holidays.

7. Plant, goods or materials shall not be delivered to the site outside the approved hours of operation or site and building works without the approval of the Council.

Signage on Building and Demolition Sites

8. A sign must be erected in a prominent position on the premises on which the erection or demolition of a building is being carried out:

(a) stating that unauthorised entry to the premises is prohibited, and

(b) showing the name of the builder or other person in control of the premises and a telephone number at which the builder or other person may be contacted outside work hours.

Any such sign is to be removed when the erection or demolition of the building has been completed.

This clause does not apply to building work carried out inside an existing building, or building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out.

Construction Certificate

9. In order to certify that detailed construction plans and specifications for the building work(s) are in accordance with the requirements of the Development Consent and Council standards, you are required to obtain a Construction Certificate prior to the commencement of any works.

Principal Certifying Authority

10. Before any construction works commence, you are required to appoint a Principal Certifying Authority as required by Section 81A of the Environmental Planning and Assessment Act 1979. The Principal Certifying Authority is responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications.

11. Council shall be given 48 hours notice of commencement of any site work in accordance with the Environmental Planning and Assessment Regulation 1978.

Occupation

12. Occupation of the building, or part, is prohibited until an Occupation Certificate has been issued in accordance with Sections 109C and 109H of the Environmental Planning and Assessment Act 1979.

Building Code of Australia

13. All building work must be carried out in accordance with the requirements of the Building Code of Australia. Fully detailed plans shall be submitted with the Construction Certificate application.

Final Fire Safety Certificate

14. In accordance with the requirements of Clause 80GA of the Environmental Planning and Assessment Regulation 1994, the owner of the building must on completion of the building cause the Council to be given a certificate (in an approved format Form 15) in relation to each essential fire or other safety measures installed in the building as contained in the Fire Safety Schedule below.

Fire Safety Schedule

Access panels, doors and hoppers to fire-resisting shafts
Automatic fire detection and alarm systems
Emergency lighting
Exit signs
Fire dampers
Fire doors
Fire hydrant systems
Fire mains and water supply services
Fire seals protecting openings in fire-resisting components of the building
Hose reel systems.
Portable fire extinguishers
Required exit doors (automatic)
Smoke control
Smoke dampers
Smoke detectors and heat detectors
Standby power systems
Wall-wetting sprinkler and drencher systems

15. The final fire safety certificate required under condition 14 must state that each essential fire safety measure specified in the current fire safety schedule for the building to which the certificate relates:

(a) has been assessed by a properly qualified person, and

(b) was found, when it was assessed, to be capable of performing to a standard not less than that required by the current fire safety schedule for the building for which the certificate is issued.

(c) The choice of person to carry out the assessment is up to the owner of the building.

(d) The person who carries out the assessment:

(i) must inspect and verify the performance of each fire safety measure being assessed, and

(ii) must test the operation of each new item of equipment installed in the building premises that is included in the current fire safety schedule for the building.

16. As soon as practicable after a final fire safety certificate is issued, the owner of the building to which it relates:

(i) must cause a copy of the certificate (together with a copy of the current fire safety schedule) to be given to the Commissioner of New South Wales Fire Brigades, and

(ii) must cause a further copy of the certificate (together with a copy of the current fire safety schedule) to be prominently displayed in the building.

Annual Fire Safety Certificate

17. At least once in each period of 12 months after the date of the first certificate, the owner shall give Council a further certificate in relation to each essential service installed in the building. The certificate (in an approved format Form 15A) is to state as to each service:

(i) has been inspected and tested by a person (chosen by the owner of the building) who is competent to carry out such an inspection and test; and

(ii) the service was or was not (as at the date on which it was inspected and tested) found to have been designed and installed, and to be capable of operating, to a standard not less than that required above.

Demolition of Structures

18. Full compliance shall be given to the relevant requirements of AS 2601-1991 - The Demolition of Structures.

19. Demolished building materials shall be disposed of to an approved waste disposal depot or to an approved landfill site.

20. All excavation and/or demolition material shall be disposed of at an authorised site. Documentary evidence of such authorisation shall be submitted with the Construction Certificate application.

21. To achieve safe and proper means of disposal of asbestos materials from buildings, only depots authorised by the Waste Services Authority are to be utilised. Approval must be obtained from the Waste Services Authority before disposal of any asbestos materials and details referred to Council prior to commencement of works and prior to release of the Construction Certificate.

22. Licensed contractors engaged in the removal and/or transport of asbestos materials are required by the Waste Services Authority to ensure safe, dust free work conditions. Evidence of such licence is to be submitted before demolition work commences and prior to the issue of the Construction Certificate.

23. Documentary evidence of approved contractors for the demolition and removal of asbestos materials is to be submitted with the Construction Certificate application prior to the commencement of any site works.

24. To ensure safe handling of asbestos materials, the re-use or sale of asbestos building materials is prohibited.

25. A waste management plan is to be submitted with the Construction Certificate application. The plan is to detail the type and volume of demolished building materials, waste building materials and excavated soil wastes/fill materials and the means of their disposal, including recycling options and the location of approved waste disposal depots or approved landfill sites which will be utilised for disposal.

Excavation and Backfilling

26. All excavations and backfilling must be executed safely and in accordance with appropriate professional standards.

27. All excavations must be properly guarded and protected to prevent them from being dangerous to life or property.

Protection of Public Places.

28. If the erection or demolition of a building will cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or the erection or demolition of a building involves the enclosure of a public place, a hoarding or fence must be erected between the building premises and the public place.

29. A sufficient awning is to be erected to prevent any substance from, or in connection with, the work falling onto the public place.

30. The site of the building is to be kept lit between sunset and sunrise if it is likely to be a source of danger to persons using the public place.

31. Any hoarding, fence or awning is to be removed when no longer required.

Required Building Inspections

32. At the request of the applicant the Principal Certifying Authority is to inspect the site and building works at the following nominated construction stages and certify that the building and associated works are in accordance with the conditions of development consent, approved plans and specifications, and Building Code of Australia. The certifying certificate, together with any required certificates are to be submitted to Council within 7 days from the date of the inspection:

* Sediment control and tree protection barriers, prior to any excavation or demolition works commencing.

* Pier holes prior to pouring concrete.

* Footing, foundation and steel prior to pouring of concrete.

* Floor slabs at each level prior to pouring of concrete.

* Sediment control (one month after footings or ground floor slab inspection).

* Roof frame inspection.

* Roofwater drains, subsoil drains and surface water drains prior to covering.

* Completed structure - before occupancy.

* Completed work.

Note: All building component inspection certificates submitted to Council are to be accompanied by $11.00 administration service fee (including GST) subject to change and in accordance with Council’s “Adopted Fees and Charges”.

Required Certificates

33. The Principal Certifying Authority is to submit the following certificates to Hornsby Shire Council.

* Essential Fire Safety Services - Form 15

* Structural Engineers progress certifications

* Structural Engineers final certification

* Survey Report

* Safety Glassing

* Mechanical ventilation system

* Fire Ceiling

* Fire Stopping

* Fire Door

* Fire Hazard Test Report for linings and furnishings

* Acoustic Certification

* Waterproofing of wet areas

Support for Neighbouring Properties

34. If an excavation extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made:

(a) must preserve and protect the building from damage, and

(b) if necessary, must underpin and support the building in an approved manner, and

(c) must, at least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars to the owner of the proposed work.

(d) In this clause, allotment of land includes a public road and any other public place.

Survey Reports

35. A report prepared by a registered surveyor is to be submitted to the Principal Certifying Authority at footing stage and at the completion of the building indicating that the building, retaining walls and the like have been correctly positioned on the site.

36. A report prepared by a registered surveyor is to be submitted to the Principal Certifying Authority prior to the pouring of concrete indicating that the finished floor level is in accordance with the approved plans.

Temporary closets

37. Closet accommodation is to be provided at the work site at all times at the rate of one closet for every 20 persons and be constructed in accordance with the requirements of subclause 3.1 of the BCA, and be located wholly within the boundaries of the property.

Fire Control

38.1 The creation of a restrictions-as-to-user clause to be applied to the site to mitigate the impact of any bush fire, but not to guarantee that the property will not be effected by bush fire at some time, such that:

(a) The area of the site around the footprint of any proposed structure is to be underscrubbed. All trees less than three metres in height are to be removed and thereafter the lot maintained in a fuel reduced state to the satisfaction of Council’s Environment Division and Fire Control Branch.

38.2 The creation of a positive covenant on the site to mitigate the impact of bush fire, but not to guarantee that the property will not be affected by bush fire at some time, such that:

(a) Any proposed building is to have fully enclosed foundations and boxed in eaves except where specifically approved under this consent. All building materials used for eaves, facia and external cladding are to be non combustible ie, clay bricks, concrete blocks, AAC blocks and materials similar to “Hardie Planks” etc.

38.3 The roof of any proposed building is to be designed so as not to incorporate any “box gutters” and must also be designed and constructed in a manner that will not allow for the accumulation of roof litter.

38.4 If a “Colour Bond” or “Clip-Lock” type roofing material is used then the area below the point that this material extends past any external wall and/or facia is to be sealed with suitable materials to prevent the entry of sparks, embers, hot ash etc under the “Colour Bond” or “Clip-Lock” type material into the roof space and/or wall cavity.

38.5 All external doors forming part of any proposed building are to have strips that are not readily combustible fitted to the bottom of the doors so as to prevent the entry of sparks, hot ash and embers into the building.

38.6 Eaves forming part of any proposed building is to be constructed so as to prevent the incipient spread of fire into the roof space.

38.7 Roof area forming part of any proposed building is to be fully insulated with a suitable non combustible foil type sarking material to reduce the entry of sparks, hot ash and embers into the roof space.

38.8 Any openings in the external walls forming part of any proposed building including louvred roof vents are to be fully protected with copper/bronze or stainless steel insect mesh so as to prevent the entry of sparks, hot ash and embers into any space or cavity wall etc.

38.9 Any openings forming part of any proposed building in the roof surface for ventilation and heat release are to be protected so as to prevent the entry of hot ash, sparks and embers into the roof space via any vent/s.

38.10 Any roof gutters forming part of any proposed building are to have fitted to them, metal “Gutter Guard” type filters throughout their length to prevent the entry and accumulation of roof litter into the gutters.

38.11 So as not to provide a “fire source feature” in times of bush fire, no “brush-wood” type fencing is to be erected within 3 metres of any building on the lot or any adjoining lot.

38.12 Any roof mounted “sky-lights” or similar forming part of any proposed building are to be flush mounted with the finished surface of the roofing material or designed and installed in such a manner so as to prevent the accumulation of roof litter on or around any “sky-light”.

38.13 Metal framed insect screens with metal wire are to be fitted to the outside of all opening windows forming part of any proposed structure.

38.14 All window frames forming part of any proposed structure are to be non-combustible.

38.15 All external surfaces finishes etc are to be kept well maintained and in a state of good repair

38.16 Rough sawn timbers are not to be used on any external part of the proposed structure.

38.17 Any deck located on the eastern and north eastern side of the proposed structure is to be constructed from non-combustible materials. The area under any timber deck is to be kept free of all combustible materials.

38.18 All glazed areas on the eastern side of the proposed structure are to be of “toughened” glass.

38.19 Any “roller” type or “panel-lift” type door/s are to be constructed from non-combustible materials and have fitted to the bottom of the door a strip that is not readily combustible so as to prevent the entry of any sparks, hot ash and embers into the garage area.

Food Premises

39. The construction and fitting out of the proposed development, or any part thereof, to be used for the manufacture, preparation or storage of food for sale, is to be in accordance with the National Code for the Construction and Fitout of Food Premises (1993) and the requirements of the Food Act 1989 and Food (General) Regulation 1997.

Noise

40. The premises shall operate so as not to give rise to an “offensive noise” nuisance as defined by the Noise Control Act 1975.

Place of Public Entertainment

41. An application is to be made and a licence issued for a Place of Public Entertainment as required by Section 68 of the Local Government Act 1993 prior to occupation of the building.

Soil and Water Management Plan

42. In order to protect the adjoining land and downstream water quality from sedimentation a Soil and Water Management Plan (SWMP) is to be prepared by a suitably qualified/experienced consultant. The SWMP is to detail the sediment and erosion control measures to be implemented during the construction of the proposed development and is to be submitted incorporating a plan to scale of 1:500 or larger and supporting information.

The following information is to be included in the SWMP:-

(a) site survey which identifies contours and approximate grades and the direction(s) of fall;

(b) locality of site and allotment boundaries;

(c) location of adjoining road(s) and all impervious surfaces;

(d) location of site within catchment including an estimate of flows through the site;

(e) existing vegetation and site drainage;

(f) nature and extent of clearing, excavation and filling;

(g) diversion of run off around disturbed areas;

(h) location and type of proposed erosion and sediment control measures;

(i) location of site access and stabilisation of site access;

(j) location of material stockpiles;

(k) location and engineering details with supporting design calculations for all necessary sediment retention basins;

(l) location and concept plans of any proposed constructed wetlands, gross pollutant traps, trash racks or trash collection/separator units;

(m) proposed site rehabilitation and landscaping;

(n) detailed staging of construction works (breaking down of catchment disturbed); and

(o) maintenance program for erosion and sediment control measures.

All design criteria and calculations used to size sediment and erosion control measures should be shown, and construction standard drawings are to be provided on each type of sediment and erosion control measure proposed.

Where sediment retention basins are proposed the following additional information is to be included in the SWMP:-

(a) details of catchment area of basin;

(b) design capacity dimensions of basin and overflow mechanism;

(c) estimate of the average volumes of water to be disposed from the basin;

(d) details of treatment methods to be employed to water prior to disposal from basin (flocculation);

(e) estimate of the water quality after treatment prior to disposal from basin (suspended solids);

(f) method of disposal of water from basin;

(g) location of discharge points and/or disposal areas of water from basin; and

(h) inspection and maintenance program for basin.

Stormwater Treatment Device

43. Engineering details concerning stormwater treatment during the post development phase of the development are to be provided to Council prior to issue of a construction certificate.

44. A stormwater treatment device shall be designed and installed after OSD to service the total development site. The device shall have performance capture criteria in excess of 90 per cent of gross stormwater pollutants (eg suspended solids, litter, floatable and organic debris), and in particular (road grit) grease and oil.

45. Engineering and cross-sectional plans of the stormwater treatment to be provided to Council coupled with the performance design efficiency. The design should also incorporate access for the disposal of trash and for inspection and maintenance of the stormwater treatment device.

Flow Dissipation

46. Stormwater weir flow disbursement has scouring capabilities downstream from the outlet. As such scour protection (rip rap) shall be used downstream to ensure no scouring is occurring downstream at the point of discharge.

47. Sediment and erosion control measures are to be constructed in accordance with plans prepared by Lyle Marshall and Associates Pty Ltd and shown on Plan No 10000/99, dated 13 January 2000.

48. In order to protect downstream water quality and maintaining public roads in a clean condition, sediment control measures are to be implemented and maintained at entry/exit points to ensure the removal of soils and other associated soil pollutants ie concrete slurry, from vehicles before leaving the site.

49. Stockpiles of soil, sand or other material shall be stored clear of any drainage line or easement, waters, footpath, kerb or road surface and shall have sediment control measures in place to prevent the movement of such materials onto areas mentioned.

Parks & Landscape Team

50. The removal of tree/s numbered T10 and T14 (marked on the plan) or excavation or filling of soil or the placing of building materials or associated works (ie water, sewer, telephone, drainage) within a 4 metre setback is forbidden unless approved in writing by Council.

51. The driveway is to be laid on existing grade with no excavation or fill within the nominated restriction zone, OR pier and beam construction of the driveway or road within the nominated restriction zone shall be used with piers being located no closer than 3 metres to the trunks of the trees. The driveway edge is to be located no closer than 1 metre to the edge of the trunk. The excavation for the piers within the nominated restriction zone must be hand dug with no root greater than 70 mm severed. A qualified and experienced arborist is to be on site overseeing the work to ensure that the roots are cut cleanly and that the works will not adversely affect the longevity of the tree.

52. To maintain canopy cover six medium to large locally indigenous tree such as Sydney Red Gum ( Angophora costata ) or Red Bloodwood ( Corymbia gummifera ) are to be planted on the site. The pot size is to be a minimum of 25 litres and the tree must be maintained and protected until it reaches the height of 3 metres so it is then covered by Council’s Tree Preservation Order. Criteria for tree selection is that the tree is locally indigenous, local plant material is preferable, mature height greater than 12 metres, life span greater than 20 years.

(i) Trees numbered T10 and T14 to be retained shall be protected during site works by the construction and erection of solid barricades ie 1.8 metre cyclone chainmesh fence OR picket or plywood hoarding fences to 1.2 metres and strained and posted at 2 metre intervals at the previously nominated distance, from the trunk/s of such trees.

(ii) All tree protection measures so approved and installed, shall be maintained in good working order and repair throughout the course of building or development works.

53. All existing trees shall be retained in accordance with Hornsby Shire Council’s Tree Preservation Order, except where Council’s prior written consent has been obtained, or where after approval of the relevant Engineering Plans, trees stand within the envelope of approved buildings or within the alignment of approved permanent paved vehicle access roads and parking areas.

54. The developer/contractor will prevent damage to trees and tree root systems during site works and construction activities including the provision of water, sewerage and stormwater drainage services. In particular, works, erection of structures, excavation or changes to soil levels within 4 metres of the trunks of trees to be retained are not permitted unless part of the development as approved, and the storage of spoil, building materials, soils or the driving or parking of any vehicle or machinery within 4 metres of the trunk of a tree to be retained, is not permitted.

55. All environmental weeds, noxious and invasive plants are to be removed and continually suppressed using an appropriate method prior to release of the final plan.

56. A fully documented landscape plan incorporating the following points shall be submitted with any application for a Construction Certificate:

(a) The Landscape Plan must be prepared in relation to Hornsby Shire Council’s “Landscape Code for Development and Building Approval”.

(b) Council requires that the tree cover, preferably locally native trees, be emphasised in the design to maintain the amenity of the area. Trees such as Eucalyptus maculata nominated in the plan are not locally native and therefore should not be used. Trees which are similar such as Sydney Red Gum should be used as an alternative.

(c) All areas to be landscaped are to be cleansed of building materials and prepared in a proper fashion prior to the commencement of landscaping works.

(d) Mass planted garden areas are to be mulched with a minimum of 75 mm thickness of garden mulching material.

(e) All trees are to be of advanced stock size, having a minimum pot size of 150 mm, planted in holes large enough to enable the placement of good quality soil to aid with the establishment of the plants.

(f) All mass planted garden areas are to be formed into edged garden beds.

Noise Emissions

57. The level of noise emanating from any mechanical plant and equipment shall not exceed the following L Aeq(15 minute) noise levels at any location l metre from the facade of any dwelling or other noise-sensitive premises:

43 dBA 7.00 am to 10.00 pm
38 dBA 10.00 pm to 7.00 am

58. Noise emanating from any mechanical plant and equipment shall not contain audible tonal, impulsive or modulated components.

59. The level of music noise emission from the premises shall not exceed 35 dBA L Aeq(15 minute) noise levels at any time at any location l metre from the facade of any dwelling or other noise-sensitive premises.

60. Music noise emission from the premises shall be inaudible inside any dwelling or other noise sensitive premises during the period midnight to 7.00 am.

61. Deleted.

62. Noise barriers shall be erected as described in Wilkinson Murray Acoustic Report No 99099-L-50E Version B dated August 2000.

63. An Acoustic Design Report prepared to the satisfaction of Council by a recognised Acoustical Consultant shall be prepared and submitted to Council presenting a detailed acoustical design analysis demonstrating that noise emissions from the proposed development will comply with Council’s Conditions of Consent.

64. Within 60 days of the development becoming operational, noise emission surveys shall be conducted and an Acoustic Compliance Report shall be prepared to the satisfaction of Council by a recognised Acoustical Consultant demonstrating the noise emissions from that development comply with Council’s Conditions of Consent.

Development Engineer

PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE (ENGINEERING)

65. In order to certify that detailed construction plans and specifications are in accordance with the requirements of the Development Consent and Council standards, you are required to obtain a Construction Certificate prior to the commencement of any works.

66. To obtain a Construction Certificate, you must complete an application form, pay the appropriate fee and submit the form together with engineering design plans for approval. It should be noted that a Construction Certificate may be obtained from either Council or an Accredited Certifier. Engineering design plans and specifications are to be prepared by a suitably qualified person or company for any proposed works. The plans and specifications are to be in accordance with Development Consent conditions, appropriate Australian standards, and applicable Council standards, in particular “Hornsby Shire Council Civil Works - Design and Construction Specification”. Information that is required to be submitted with a Construction Certificate is as follows:

(a) Copies of compliance certificates relied upon

(b) Four copies of the detailed engineering plans in accordance with Hornsby Shire Council’s Civil Works - Design Specification 1999. The detailed plans may include but are not limited to the earthworks, roadworks, road pavements, road furnishings, stormwater drainage, landscaping and erosion control works.

67. Any Construction Certificate issued in relation to this consent shall incorporate and address the design of those works required by condition 26 and 27 and any ancillary works necessary to make the construction effective.

68. All engineering works required by condition Nos 42 to 47 must be designed prior to issue of Construction Certificate and construction completed prior to issue of construction certificate in accordance with:

(a) Australian Rainfall and Run-Off 1987.

(b) Hornsby Shire Council’s Civil Works Design and Construction Specifications 1999 (as amended at the time of design or construction).

Note: Council must separately approve any variation from these design requirements.

69. A tree retention plan is to be included with any Construction Certificate indicating:

(a) Trees to be retained; and

(b) All areas left undisturbed that are to be cordoned off from construction works.

70. Stormwater drainage from the site shall be designed to satisfactorily drain rainfall intensities for an average recurrence interval of 20 years. The design shall:

(a) Be in accordance with Hornsby Shire Council’s Civil Works - Design Specification 1999.

(b) Provide for drainage discharge to the proposed on site detention system.

(c) Ensure that the development, either during construction or upon completion, does not impede or divert natural surface water runoff so as to cause a nuisance to adjoining properties.

71. Written permission is to be obtained to:

(a) Discharge stormwater onto adjoining land

(b) Carry out works on adjoining land

(c) Drain the site across adjoining land

prior to the issue of any Construction Certificate.

72. The design of the on-site detention system is to be in accordance with Hornsby Shire Council’s Civil Works - Design Specification 1999 and the permitted site discharge is to be equal to the 1 in 5 year ARI pre development storm flow and the system is required to provide storage up to and including the 1 in 20 ARI post development storm flow.

73. A certificate from a Chartered Professional Engineer must be obtained prior to the release of the Construction Certificate verifying that the structures associated with the on-site detention system have been designed to withstand all loads likely to be imposed on them during their lifetime.

74. A certificate from a Professional Civil Engineer/Registered Surveyor must be obtained prior to release of the Construction Certificate verifying that the on-site detention system will function hydraulically in accordance with the approved design plans.

75. A separate application or details (as necessary) shall be submitted for the separate approval of Council, under the provisions of the Local Government Act 1993 and Roads Act 1993 for any of the following:

(a) The installation of a vehicular footway crossing servicing the development.

(b) To undertake work within the Public Road (this includes laneways, public pathways, and footways).

76. Road pavements are to be designed by a Professional Civic Engineer in accordance with Hornsby Shire Council’s Civil Works Design and Construction Specification 1999 and based upon soil tests performed by a registered NATA Soils Laboratory. The pavement and designs plus traffic loadings must be lodged with Council before the issue of the Engineering Construction Certificate.

77. A Traffic Management Plan shall be included as part of the Engineering Construction Certificate for road and drainage works to be carried out within public road reserves in strict compliance with the requirements of Australian Standard 1742.3 (Traffic Control Devices for Works on Roads).

78. All engineering work required by this consent must be inspected at the following nominated stages. A Compliance Certificate is to be issued that the works comply with Development Consent, Construction Certificate, Hornsby Shire Council’s Civil Works - Design and Construction Specification for each nominated stage of the project:

(a) Implementation of erosion control

(b) Implementation of traffic control

(c) Boxing out

(d) Subgrade

(e) Subsoil laying

(f) Subbase

(g) Kerb pre-laying

(h) Kerb during laying

(i) Pavement depths (Survey Certificate)

(j) Base course

(k) Wearing course/s

(l) Street furniture

(m) Footpath turfing

(n) Pathway construction

(o) Final erosion control inspection

(p) At completion of OSD system

(q) Access crossing

(r) Pavement marking

(s) Final inspection

79. The internal driveway loading dock and parking areas are to be designed in accordance with Australian Standard 2890.1 - 1993 Off Street Car Parking and Australian Standard 2890.2 - 1993 Commercial Vehicle Facilities

80. Any work to be undertaken within a public infrastructure and/or the connection to the public infrastructure is to be designed and constructed in accordance with Hornsby Shire Council’s Civil Works - Design and Construction Specification 1999. Design plans and specifications for this work are to be submitted to and approved by Council.

81. All measures specified in the Construction Certificate to control soil erosion and sedimentation are to be installed prior to the commencement of construction works. Council, where measures are not provided or maintained, may issue infringement notices, incurring a monetary penalty.

DURING CONSTRUCTION

(AFTER THE ISSUE OF A CONSTRUCTION CERTIFICATE)

82. Before any construction works commence, you are required to appoint a Principal Certifying Authority who will be responsible for ensuring that all the works are carried out in accordance with the approved plans and specifications.

83. At least two days written notice must be given prior to the commencement of engineering works. Such notice must be accompanied by evidence of the contractor’s Public Liability and Workers Compensation Insurances.

84. All engineering work required by conditions 42 to 47 of this consent must be inspected at the hold points as nominated in Hornsby Shire Council’s Civil Works Construction Specifications 1999.

85. Adequate measures shall be provided and maintained to the satisfaction of Council, to control the emission of dust and other impurities into the surrounding environment.

ENGINEERING WORKS

86. Deleted.

87. Construction of kerb, gutter, drainage, concrete footpath and road shoulder works across the frontage of the site in High Street and extending to the proposed roundabout in Berowra Waters Road. The kerb is to be located 4.5 metres from the property boundary.

88. The intersection of High Street and Berowra Waters Road shall be upgraded at no cost to the Council, by provision of a seagull type chanelisation generally in accordance with the attached sketch. Detailed plans and specifications are to be submitted for approval of the Council’s engineer.

89. Construction of a stormwater detention system. The system is to be generally in accordance with the Peter Argent Pty Ltd plans.

90. The car park and loading dock is to be marked in accordance with AS 2890.1 - 1993 and AS 2890.2 - 1993. The loading dock is required to be designed and constructed to accommodate the manoeuvring of a heavy rigid vehicle.

91. Construction of Council’s standard heavy duty vehicular footway and gutter (layback) crossing in accordance with Hornsby Shire Council’s Civil Works Design and Construction Specification 1999. The concrete driveway shall be a minimum of 6.0 metres wide, with minimum 150 mm thick and reinforced with minimum F72 steel reinforcing fabric.

PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

92. The cost of repairing any damage caused to Council’s assets in the vicinity of the site as a result of construction works associated with the approved development is to be met in full by the applicant/developer prior to the issue of a Occupation Certificate.

93. A work-as-executed plan under the hand of a Chartered Professional Engineer or a Registered Surveyor must be lodged with Hornsby Shire Council when the engineering works are complete (prior to the release of the Occupation Certificate).

94. All work associated with the Development Consent is to be completed prior to the issue of Occupation Certificate.

95. A certificate from a Professional Civil Engineer/Registered Surveyor must be obtained verifying that the on-site detention system will function hydraulically in accordance with the approved design plans. This certificate is to be submitted prior to the approval of the Occupation Certificate.

96. A certificate from a Chartered Professional Engineer must be lodged with Council verifying that the structures associated with the on-site detention system(s) have been constructed to withstand all loads likely to be imposed on them during their lifetime. This certificate is to be submitted prior to the approval of the Occupation Certificate.

GENERAL CONDITIONS

97. Operational Hours of the Club

(a) The operational hours are Sunday to Wednesday 10.30 am to 10.30 pm, Thursday 10.30 am to 11 pm, Friday and Saturday 10.30 am to 12 pm.

(b) Lawn bowls are not to be played after 9 pm.

98. Maximum Membership of the Club

The membership of the occupant of the site at any time shall not exceed 3,000 (excluding “junior membership” for children and people under 18 years of age).

99. Mini-Bus

A mini-bus shall be provided on Thursday, Friday and Saturdays from 6.30 pm to closing time and is to be used as a pick-up and return service to and from the Club for people arriving at Berowra Railway Station and for people within 5 km of the land. Otherwise the bus shall be available at all times on call during operational hours. The mini-bus shall have a seating capacity of not less than 8 persons, nor more than 12.

100. Evening Supervision

After 9 am on Thursday, Friday and Saturdays, an officer of the Club shall be on duty within the open carpark and in and about the High Street entry/exit to the land. Duties shall include ensuring the quiet and prompt departure of persons leaving the land.

101. If the owners of the dwellings at Nos 21 and 23 High Street, Berowra (by notice in writing to the Council received within 6 calendar months of the issue of the occupation certificate) so require, either front fencing, window shutters or double glazing for the front windows shall be erected or installed at such dwelling or dwellings at no cost to the owner or the Council and to the satisfaction of the Council’s building services manager.