Cashstar Pty Ltd v Wollongong City Council - [2010] NSWLEC 1316

Land and Environment Court

of New South Wales

CITATION: Cashstar Pty Ltd v Wollongong City Council [2010] NSWLEC 1316

PARTIES:
APPLICANT
Cashstar Pty Ltd
RESPONDENT
Wollongong City Council

FILE NUMBER(S): 10490 of 2010

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT MODIFICATION :- S96 Modification; Additional access to classified road; impact on effectiveness and ongoing operation of road.

LEGISLATION CITED: Land and Environment Court Act 1979
Water Management Act 2000
State Environmental Planning Policy (Infrastructure) 2007
Wollongong Local Environmental Plan 2009
Wollongong City Centre Development Control Plan 2009

CASES CITED: Wilson v State Rail Authority of New South Wales [2010] NSWCA 198

DATES OF HEARING: 2 & 3 November 2010

DATE OF JUDGMENT:
18 November 2010

LEGAL REPRESENTATIVES:
APPLICANT
Mr I Hemmings (Barrister)
SOLICITOR
RMB Lawyers
RESPONDENT
Mr P Kelso (Solicitor)
SOLICITOR
Bartier Perry

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

18 November 2010
Appeal No 10490 of 2010 Cashstar Pty Limited v Wollongong City Council

JUDGMENT

Background.

1 This appeal was lodged against council’s refusal of a s96 application to modify the access arrangements to a new commercial development located near the intersection of Flinders Street and Station Street, Wollongong. Whilst the site has a frontage to Flinders Street, the new entrance to the development is from the rear boundary, off Station Street.

2 The modifications propose:

1 Crea t e a slip l a n e in the western f oo t path ar e a of F li nders St r eet adjacen t to the s i te.

2 Ded i cate a 3 . 5m wide footpa t h a r ea as r oad reserve.

3 C r ea t e a n in t erna l access road from the eastern bo und ary of t he si t e to car p a r k 1.

4 Crea t e five (5) ca r spaces adjace nt to t he s tr eet f r o n tage.

5 Reduce l a n ds c aping b et w e e n the b uil ding and the Fl inde r s S t reet bo u n d ary of t h e si t e.

3 Consequently the contentions raised by council are summarised as follows:

Permissibility;
Traffic flow impacts;
Pedestrian impacts.

The site

4 The site is bound by Flinders Street to the east, Stafford Street to the west, a car showroom to the north and a watercourse to the south. It comprised eleven (11) allotments located on the western side of Flinders Street. Some of the allotments have frontage to Flinders Street while the remaining lots have frontage to Stafford Street.

5 The immediate locality comprises a mixture of commercial enterprises. Adjoining the site to the north is a 2-storey commercial building and a motor vehicle showroom. Access to this development is from Station Street. The North Wollongong Railway Station is located in Station and Stafford Streets. On the opposite (western side) of the railway line is residential development on single allotments. Further to the north of the site is a triangular parcel of land that contains a large motor vehicle showroom

6 On the south eastern side of those roads is a former restaurant (2-storeys). Immediately adjoining the restaurant site is the North Wollongong Hotel. On the north eastern corner of Flinders Street and Bourke Street is a motor vehicle showroom. Bourke Street is predominately a residential street with a number of residential flat buildings constructed on both sides heading east

The approved development

7 The approved development on the site involves the erection of a 2-storey commercial development comprised of 8 retail tenancies and associated car parking. It provides for vehicular access to be gained to the site from the rear from Stafford Street. Two vehicular access points were approved, one adjacent to the northern boundary of the site, to access loading docks. The second access point is further to the south and will provide entry and egress to/from the 3 level car park. Pedestrian access will be gained from both Stafford and Flinders Streets, with a pedestrian footpath to be provided through the site.

8 The approved development comprises 3 large retail premises and 5 smaller premises. At ground floor, 2 large retail/commercial spaces are proposed along with 3 smaller premises. One large and a further 2 smaller premises will be provided at first floor level.

9 A 3-storey car-park is to be provided on the southern end of the building, accommodating 161 car spaces. Ramps linking the levels will be provided adjacent to the southern boundary of the site. Shade sails are to be provided over part of the second car parking level. Provision has been made for motorcycle parking adjacent to the Stafford Street entrance.

10 Bicycle parking will be provided on the eastern side of the site near to the Flinders Street frontage, while landscaping will be provided inside the southern boundary, in the 'forecourt' area fronting Flinders Street and along the edge of Fairy Creek, which forms part of the southern boundary of the site.

11 A 9.0m high pylon sign is proposed to be erected adjacent to the Flinders Street frontage of the site. The signage structure will provide advertising space for each of the eight tenancies. Indicative sign age positions have also been illustrated on the plans however no specific signage has been detailed. Separate consent will be required for any signs.

12 The following controls apply:

State Environmental Planning Policy (Infrastructure) 2007;
Water Management Act 2000;
Wollongong LEP 2009;
Wollongong City Centre DCP 2009.

13 The threshold issue in this matter concerns the permissibility of the access modification, which dependent on the interpretation of the following clause 101 of the SEPP:

101 Development with frontage to classified road

(1) The objectives of this clause are:

(a) to ensure that new development does not compromise the effective and ongoing operation and function of classified roads, and

(b) to prevent or reduce the potential impact of traffic noise and vehicle emission on development adjacent to classified roads.

(2) The consent authority must not grant consent to development on land that has a frontage to a classified road unless it is satisfied that:

(a) where practicable, vehicular access to the land is provided by a road other than the classified road, and

(b) the safety, efficiency and ongoing operation of the classified road will not be adversely affected by the development as a result of:

(i) the design of the vehicular access to the land, or

(ii) the emission of smoke or dust from the development, or

(iii) the nature, volume or frequency of vehicles using the classified road to gain access to the land, and

(c) the development is of a type that is not sensitive to traffic noise or vehicle emissions, or is appropriately located and designed, or includes measures, to ameliorate potential traffic noise or vehicle emissions within the site of the development arising from the adjacent classified road.

14 A joint traffic report was presented by the following experts:

Mr C Millett; Manager Land Use Development Assessment (RTA).
Mr C Hallam; Applicant’s traffic consultant.

15 As noted, the threshold issue concerns the application of cl 101. Both parties agreed that the appropriate authority for interpretation of legislation is contained in Wilson v State Rail Authority of New South Wales [2010] NSWCA 198 wherein Allsop P said:

12 I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed: Harrison v Melhem [2008] NSWCA 67; 72 NSWLR 380 at 384-385 [12]-[16] (Spigelman CJ), 398-403 [158]-[185] (Mason P), 403 [191] (Beazley JA) and 403 [192] (Giles JA). However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect. The foregoing principles can be taken from the following: Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 421-424, specifically approved by the Court (Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ) in Bropho v Western Australia [1990] HCA 24; 171 CLR 1 at 20; CIC Insurance Ltd v Bankstown Football Club Ltd [1997] HCA 2; 187 CLR 384 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); Newcastle City Council v GIO General Ltd [1997] HCA 53; 191 CLR 85 at 99 (Toohey, Gaudron and Gummow JJ), 112-113 (McHugh J); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at 381-382 [69]-[71] and 384 [78] (McHugh, Gummow, Kirby and Hayne JJ); Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at 23 [49] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Eastman v Director of Public Prosecutions of the Australian Capital Territory [2003] HCA 28; 214 CLR 318 at 322 [1] (Gleeson CJ agreeing with Heydon J) 330 [32] (Gummow J agreeing with Heydon J), 331 [34] (Kirby J agreeing with Heydon J), 331 [35] (Hayne J agreeing with Heydon J), 331 [36] (Callinan J agreeing with Heydon J) and 368 [140] and fn 99 (Heydon J); Network Ten Pty Ltd v TCN Channel Nine Pty Ltd [2004] HCA 14; 218 CLR 273 at 280-281 [10]-[11] (McHugh ACJ and Gummow and Hayne JJ), 305-306 (Kirby J, in dissent, though not in expression of principle); Minister for Immigration and Citizenship v SZJGV [2009] HCA 40 at [8]-[9] (French CJ and Bell J), [47]-[48] (Crennan and Kiefel JJ), cf [19]-[20] (Hayne J), though compare Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 and Saeed v Minister for Immigration and Citizenship [2010] HCA 23 at [33]-[34]; and see also the Interpretation Act 1987 (NSW), ss 33 and 34.

16 In summary then, this approach involves:

Consideration of the language in the clause;
Reading all the words and giving them meaning;
Adjust any conflicting provisions to avoid ambiguity so as to achieve the result that gives the best effect to the purpose language of the provisions.
Having regard to the objectives.

17 On this basis then, Mr Hemming’s submissions are that the objectives of clause 101 (1) are endeavouring to ensure that new development adjacent to classified roads does not compromise the effective and ongoing operation of that road. Also, that potential noise and vehicle emission is prevented or reduced.

18 These objectives are to be achieved by effectively limiting direct access to the classified road where there is practical vehicular access from another road that satisfies the stated merit criteria. However, as the objective of the clause is not to prevent direct access to the classified road, then other access points could be allowed providing the safety, efficiency and ongoing operation of the road is not compromised.

19 Against this, Mr Kelso’s submission is that the purpose/mischief of the clause is to ‘ensure there is no comprise’ in the operation of the road. This requires the consent authority to give due weight to the obligatory restriction in the cl 101 (2) provisions, whereby the application of the clause is that there is to be no access off the classified road where there is alternate access.

20 Having considered the competing approaches, it seems to me that words in cl 101 do not state that the objective/mischief of the clause is to prevent direct access to the classified road. Instead, the objective is to not compromise the efficiency of the road and as there is no specific words denying access, then access may be permitted subject to satisfaction of the merit criteria.

21 Accordingly, I rely on Mr Hemming’s submission that the proposed slip lane access is permissible subject to merit consideration and undertaken the following assessment. If this conclusion is wrong and the proposed access is prohibited under cl 101, then the appeal would fail and the s96 modification application refused.

Merits

22 In the subject context this development has been granted consent with the approved and deemed practical access from the secondary road (Stafford Street) and this is to remain as the main access. The traffic experts agree that this access in Stafford Street via Station Street from the classified road Flinders Street is satisfactory. Furthermore, they agree that the possible northern manoeuvre from Bourke Street allowing ‘weaving’ across to Station Street is satisfactory for safe access to the development.

23 The traffic safety concerns however arise from potential weaving movements originating at the intersection of Bourke and Flinders Street (traffic light controlled), where there are 2 west bound lanes that permit a right turn into the median lane and either a left turn south or right turn north from the kerb lane. This right turn manoeuvre can be to the middle lane or the kerb lane (3 lanes north –south). Consequently, any subsequent ‘weaving’ movement from the median lane to the kerb lane to access the slip lane is the primary concern.

24 Apart from this, the traffic experts also agree that the design configuration of the slip lane, which is for a Left–Turn–In only, is satisfactory for all other movements, subject to determining the relative priorities for pedestrians and vehicles over the footpath area at the site entry. But they agree this detailing is a matter for conditions.

25 Consequently, the following 3 components were identified as the appropriate criteria for assessing the efficiency of the ongoing operation of the classified road, as required by cl 101:

accident potential;
queuing in slip lane;
weaving risks.

26 The accident potential assessment referred to the ‘crash report’ that shows there were 6 accidents in the vicinity of Flinders Street between Bourke and Station Streets between January 2006 and January 2010. Accordingly, Mr Millett does not favour the additional entry point onto Flinders Street because he considers it will increase accident risks.

27 By reference then to the Austroads document and other literature, the experts agree that as the number of access points onto a road increase, so do the conflict points and accident potential. But Mr Hallam says that most of this literature relates to the intersection of 2 roads, as distinct to a private driveway onto a public road, as proposed. Accordingly, movement restrictions can be imposed on private driveways, which limit conflicting movements when compared to an intersection that allows more manoeuvres. Consequently in the subject context where the proposed Left In Only has no conflicts, therefore it is different to intersection safety considerations.

28 Insofar as Mr Millett also relies on a 1997 Australian Road Research Board (ARRB) report titled “Relationships Between Accident Frequencies and Access Frequency Control”, this results in a theoretical accident rate of 0.27/year i.e 1/4yrs. Notwithstanding this, he acknowledges that the additional crash risk of the proposal is not particularly high and his overall concern is about the cumulative effect of allowing multiple accesses to the classified road.

29 Against this, Mr Hallam says that the authorities have not adopted this ARRB reference as a design control. His assessment is that the estimated accident rate based on the same assumptions results in a theoretical accident rate of 1/17yrs, which he considers on the basis of his extensive experience, is low risk and acceptable.

30 The next safety component relates to queuing in the slip lane. This mainly relates to the effects of pedestrians restricting traffic flows into the site. However, after discussions it was agreed this could be satisfactorily managed by conditions. I rely on the engineer’s agreement in this regard.

31 The main issue then concerns the ‘weaving manoeuvre’ by north bound traffic, which exit from Bourke Street, particularly from the median lane, endeavouring cross lanes in Flinders Street to enter the development via the new slip lane.

32 Mr Millet’s concern is the available weaving distance of approximately 80m, is inadequate and that it would have the potential to further reduce the safety of the road environment at this location. But Mr Hallam opposes this approach because based on his traffic movement counts and observations of traffic movements at this intersection, he considers there is sufficient distance to facilitate a safe weaving movement to the slip lane. If however this cannot be achieved in some instances, then the driver can travel a relatively small distance further and enter the development via Station Street, as approved.

33 In order to quantify the weaving risks, the traffic experts initially considered the RTA Road Design Guide and subsequently the approach in the Austroads – Guide to Road Design (2008).

34 In the joint report Mr Millett relies on calculations undertaken by his colleague Mr Walters of the RTA. Application of the RTA formula resulted in a total weave distance of 115m.

35 The RTA formula is Tm = VY/3.6S, where the relevant factors are:

Tm = merge length.
V = design speed.
Y = width of lateral movement.
S = rate of lateral movement. (Noting that acceleration lane merge 1.0m/s, through lane merge = 0.6m/s).

36 Depending on the various assumptions for these factors, Mr Millett’s calculation is that a total merge length of up to 140.7m could be required required, which exceeds the available 80m. Therefore insufficient weaving distance is available.

37 Whilst Mr Hallam does not consider it appropriate to rely on these calculations, nevertheless his application of different design speed assumptions on driver behaviour from the Bourke Street intersection and ‘S’ factors results in considerably lower weaving distances varying from 65.2m to 81m.

38 The main difference appears to relate to the assumption for driver decision time. According to the RTA Guide, drivers should be required to make only 1 decision at a time with at least 3 seconds between decisions. Similarly, Austroads in s 1.10.5 states:

“It is advisable to provide a road layout, or signposting arrangement, which requires the driver to make one decision at a time, with preferably at least three seconds between each decision

39 Mr Millett’s assumption is that a driver deciding to enter the slip lane would have to make 2 decisions to shift to the middle lane, then the kerb lane, which increases the time and weaving distance. Against this Mr Hallam says that in the subject context only 1 driver decision would be required and on this basis the distance is satisfactory.

40 Having considered these disparate opinions, I am satisfied from the evidence to rely on Mr Hallam’s approach. In terms of the critical weaving manoeuvre it seems to me that:

One has to assume reasonable driver behaviour and attention to the traffic controls.
The light controlled Bourke Street intersection layout will slow or stop vehicles turning right and I accept Mr Hallam’s design speed transition assumptions in this regard.

Considering the approved layout of the development and proposed signage, I think that a “reasonable” driver would likely make 1 decision from the intersection to enter the site and with due care, could make the weaving manoeuvre, as indicated by Mr Hallam.
If traffic conditions prevent this manoeuvre and a further distance is required, then the driver can continue the weave to enter Station Street, as approved.
As some of the movements from Bourke Street will originate from a Stop position, the weaving manoeuvre should be facilitated by less through traffic.
Depending on the coordination of the Bourke Street and Station Street lights, the speed environment should be such as to facilitate any weaving manoeuvre.

Conclusions

41 Having considered the evidence, the submissions and undertaken a view, I am satisfied this modification application merits consent. In terms of the s96 modification, I am satisfied that the application relates to the approved development and that no objection issues have been raised.

42 The principal merit issue concerns whether the modification to allow the additional entry to the site from Flinders Street should be allowed. This controlled by the provisions of cl 101 of the SEPP 9 (Infrastructure). My assessment of the competing submissions is that the stated objective in cl 101 is to ensure new development does not compromise the effective and ongoing operation of the classified road.

43 Where practical, this objective is to be achieved by alternate access from another road, providing it satisfies the criteria in cl 101 (2) (b), as with the original consent. Whilst the objective is achieved by limiting direct access to the classified road, I do not consider the wording in this clause prevents other access in situations where there is this alternate access. Accordingly I do not accept council’s submission and rely on those made for the applicant.

44 In addition to this, any new development must satisfy the merit criteria concerning the safety, efficiency and ongoing operation of the classified road. The criteria identified for the Court concerns accident risks, slip lane queuing and lane change/weaving manoeuvres. The experts agree that the only aspect they disagreed with concerns the weaving movement.

45 In this regard, I note that the approved development allows a similar weaving movement for entry to Station Street, which is over a greater merge length. Insofar as there was considerable discussion and disagreement by the traffic experts on the merge length to safely access the slip lane, I think the numeric and qualitative approach taken by Mr Hallam is reasonable in the circumstances. In particular, I accept his opinion that an “average driver” is only likely to make 1 decision to enter the slip lane and consequently a safe merge length is in the order of 80m, which the application complies with.

46 On the basis of this provision, I further rely on Mr Hallam opinion, based on his extensive experience, that the approval of the slip lane will not adversely affect the safety, efficiency and ongoing operation of Flinders Street. Whilst driver behaviour is not entirely predictable, nevertheless I am satisfied that the likelihood of accident risk is low and the proposal satisfies the provisions of cl 101 of the SEPP.

47 Insofar as Mr Millett expressed concerns about some precedential effects of allowing this application, there was no substantive evidence to indicate other similar such applications wishing to obtain a similar access arrangement. Instead, if such a situation did arise, then each application would be assessed on its merits. This is not a sufficient ground to reject the application.

48 The Court orders that:

Annexure “A”

CONDITIONS OF CONSENT

Cashstar Pty Ltd v Wollongong City Council

Any amendments or modification to the proposed controlled activities may render these GTA invalid. If the proposed controlled activities are amended or modified, the Department of Water & Energy must be notified in writing to determine if any variations to these GTAs will be required.

Prior to the commencement of any controlled activity (works) on waterfront land, the consent holder must contain a Controlled Activity Approval (CAA) under the Water Management Act from the Department of Water & Energy. Waterfront land for the purposes of this DA is land and material that is within 40 metres of the top of the bank or shore of the river identified.

The consent holder must prepare or commission the preparation of an Erosion and Sediment Control Plan.

5 The consent holder must (i) carry out any controlled activity in accordance with approved plans; and (ii) construct and/or implement any controlled activity by, or under the direct supervision of, a suitably qualified professional; and (iii) when required prior a certificate of completion to the Department of Water & Energy.

6 Rehabilitation and Maintenance

The consent holder must carry out a maintenance period for two (2) years after practical completion of all controlled activities, rehabilitation and vegetation management in accordance with a plan approved by the Department of Water & Energy. 7 The consent holder must reinstate waterfront land affected by the carrying out of any controlled activity in accordance with a plan or design approved by the Department of Water & Energy.
8 Reporting Requirements

The consent holder must use a suitably qualified person to monitor the progress, completion, performance of works, rehabilitation and maintenance and report to the Department of Water & Energy as required.

9 Disposal

The consent holder must ensure that no materials or cleared vegetation that may obstruct flow, wash into the water body or cause damage to river banks are left on waterfront land other than in accordance with a plan approved by the Department of Water & Energy.

10 Drainage & Stormwater

The consent holder must ensure that all drainage works (i) capture and convey runoff, discharges and flood flows to low flow water level in accordance with a plan approved by the Department of Water & Energy; and (ii) do not obstruct flow other than in accordance with a plan approved by the Department of Water & Energy. 11 The consent holder must stabilise drain discharge points to prevent erosion in accordance with a plan approved by the Department of Water & Energy.

12 Erosion Control

The consent holder must establish all erosion and sediment control works and water diversion structures in accordance with a plan approved by the Department of Water & Energy. These works and structures must be inspected and maintained throughout the working period and must not be removed until the site has been fully stabilised.

13 Excavation

The consent holder must ensure that no excavation is undertaken on waterfront land other than in accordance with a plan approved by the Department of Water & Energy.

14 The consent holder must ensure that any excavation does not result in (i) the diversion of any river, or (ii) bed or bank instability, or (iii) damage to existing native vegetation within the area where a controlled activity has been authorised, other than in accordance with a plan approved by the Department of Water & Energy.

15 Vegetation Management and Riparian Corridor

The consent holder must establish a riparian corridor along Fairy Creek in accordance with a plan approved by the Department of Water & Energy.

Conditions imposed by Council as part of this Integrated Development Consent are:
Approved Plans and Specifications

Modification 1 dated 18 November 2010

1 The development is to be carried out in compliance with the plans and documentation listed below and endorsed with Council’s stamp (except where modified by plan of Proposed Slip Lane – number DA1B – dated 14 September 2010 – Architects Edmiston Jones), and except where amended by other conditions of this consent:

Modification 2 dated
18 November 2010

Plans and

Specifications

Plan of Proposed Slip Lane – number DA1B – dated 14 September 2010 – Architects Edmiston Jones

General Matters

2 Building Work - Compliance with the Building Code of Australia
All building work must be carried out in compliance with the provisions of the Building Code of Australia.
3 Construction Certificate

Note : The submission to Council of two (2) copies of all stamped Construction Certificate plans and supporting documentation is required within two (2) days from the date of issue of the Construction Certificate, in the event that the Construction Certificate is not issued by Council.
4 Disability Discrimination Act 1992

5 Occupation Certificate

A final Occupation Certificate must be issued by the Principal Certifying Authority prior to occupation or use of the development. In issuing an Occupation Certificate, the Principal Certifying Authority must be satisfied that the requirements of Section 109H of the Environmental Planning and Assessment Act 1979, have been complied with as well as all of the conditions of the Development Consent.

6 Advertising Signage

This consent authorises the erection of the pylon sign only as shown on the approved plan. Any additional advertising signage will require separate Council approval.

7 No advertising signs or structures associated with the development shall be permitted within the Flinders Street or Stafford Street road reserves.

8 Maintenance of Access to Adjoining Properties

Access to all properties not the subject of this approval must be maintained at all times and any alteration to access to such properties, temporary or permanent, must not be commenced until such time as written evidence is submitted to Council or the Principal Certifying Authority indicating agreement by the affected property owners.

9 Trees to be Removed

The developer has permission to remove Trees No. T2 – T5 as indicated on the submitted Landscape Plan by Hughes Landscape Architects, Revision E dated 27 November 2009. No other trees or vegetation shall be removed without the prior written approval of Council.

10 Trees to be Retained

The developer must retain Trees No.T1, T6-T8 as indicated on the submitted Landscape Plan by Hughes Landscape Architects, Revision E dated 27 November 2009.

11 Street Tree Removal
Tree removal costs are to be borne by developer. The removal of trees, including stumps, is to be carried out by suitably qualified tree contractor. This contractor must be appropriately insured to indemnify Council against any loss or damage incurred during the above works. They must also have appropriate OH&S policies and procedures (including traffic control) to ensure that works are carried out in a safe manner and in accordance in Council’s own OH&S policies. The developer must apply for (and be granted) permission under Section 138 of the Roads Act, 1993, to work within the road reserve.

12 Roadworks in or Adjacent to Classified Roads – Requirements of the NSW Roads and Traffic Authority

All works associated with the construction of any access to this site shall be at no cost to Council. The construction of all civil infrastructure works within the road reserve are to be at the applicant’s cost and all signage shall be in accordance with the Roads and Traffic Authority’s Traffic Control at Worksites Manual and the latest version of Australian Standard AS1742 - Manual of Uniform Traffic Control Devices.

Prior to the Issue of the Construction Certificate
13 Controlled Activity Approval

The Construction Certificate will not be issued over any part of the site requiring a Controlled Activity Approval until a copy of the Approval has been provided to Council and the Principal Certifying Authority.

14 Trolley Bays

Provision shall be made for a trolley bay on the third car parking level. Details shall be provided on the Construction Certificate drawings.

15 Water Conservation

16 Installation of Traffic Signals

Traffic signals shall be provided at the junction of Flinders Street and Station Street. The traffic signals shall be designed in accordance with RTA Traffic Signal Practice.

17 Lighting

Where required, lighting shall be upgraded/provided in accordance with Australian Standard AS/NZS 1158.

18 Geometric Road Design

Road Design Guide

19 Pavement Design

Pavement design shall be in accordance with the AUSTROADS Pavement Design Guide. Pavement must be designed to support signal loops.

20 Costs to be borne by developer

Modification 3 dated 18 November 2010

21 Reinstatement Flinders Street Access Point

The existing driveway access points to the site from Flinders Street shall be permanently closed. and reinstated to footpath, kerb and gutter.

22 Road Traffic Noise Attenuation

The proposed development shall be designed such that road traffic noise from Flinders Street is mitigated by durable materials, in accordance with the EPA criteria for new land use developments (The Environmental Criteria for Road Traffic Noise, May 1999). The RTA’s Environmental Noise Management Manual provides practical advice in selecting noise mitigation treatments.

23 Works Authorisation Deed

Prior to the issuing of the Construction Certificate, the developer shall enter into a Works Authorisation Deed (WAD) with the RTA for the installation of the traffic signals at the junction of Flinders Street and Station Street.

24 Section 138 Approval

Section 138 consent under the Roads Act 1993 shall be obtained from the RTA prior to construction. Note: since a WAD is required for the subject roadworks the RTA will be exercising its powers under Section 64 of the Roads Act, 1993 to become the roads authority.

25 Footpath Levels

Footpath levels must be obtained from Council’s Regulation and Enforcement Division prior to the issue of the Construction Certificate. The approved footpath levels shall be reflected on the Construction Certificate plans. All such structures and internal driveways shall be constructed to these approved levels.

26 Application for Occupation of Footpath/Roadway

27 Footpath Pavement

The developer is responsible for the construction of footpath paving for the entire frontage of the development for Flinders Street and Stafford Street. The paving type is to be in accordance with the Public Domain Technical Manual. A nominal two percent (2%) maximum two and a half (2.5%) cross fall to be provided from property line to back of kerb. The footpath must be installed to the satisfaction of WCC Manager of City Works. This requirement shall be indicated on the final Landscape Plans submitted to the Principal Certifying Authority, prior to the release of the construction certificate.

28 Existing/Proposed Levels

Existing and proposed levels to Australian Height Datum (AHD), including floor, ground, grate, pipe inverts and pavement levels shall be shown on the detailed drainage design. This requirement shall be reflected on the Construction Certificate plans and supporting documentation.

29 Car Parking Areas

Parking areas shall be designed to comply with the requirements of Section 2.5 of Council’s DCP 54 – Managing Our Flood Risks (2004). This requirement shall be reflected on the Construction Certificate plans and supporting documentation.

30 Barrier to Car Park

A suitable barrier shall be provided to the proposed car parking area to prevent vehicles from becoming moving debris and causing damage downstream during a flood event. The barrier shall consist of adequately spaced bollards and/or vehicular gate(s) which are capable of withstanding the impact of moving debris (i.e. vehicles). This requirement shall be reflected on the Construction Certificate plans and supporting documentation.

31 Permit to Enter and Exit Site – Demolition Works

Where it is proposed to carry out demolition activities, a permit must be obtained from Council’s Regulation and Enforcement Division prior to the issue of the Construction Certificate.

32 Awning Setback

The two (2) awnings proposed over the Stafford Street frontage must be sited a minimum 1.2m back from the kerb. This shall be detailed on the plans submitted with the Construction Certificate.

33 Rail Related Noise & Vibration

An acoustic assessment is to be submitted to Council prior to the issue of a Construction Certificate demonstrating how the proposed development will comply with the Department of Planning’s document titled “Development Near Rail Corridors and Busy Roads – Interim Guidelines.”

34 Stray Currents and Electrolysis from Rail Operations

Prior to the issue of a Construction Certificate, the developer is to engage an Electrolysis Expert to prepare a report on the Electrolysis Risk to the development from stray currents. The developer must incorporate in the development all the measures recommended in the report to control that risk. A copy of the report is to be provided to the Principal Certifying Authority with the application for a Construction Certificate.

35 Crime Prevention through Environmental Design

The recommendations contained within the report titled “CPTED – Crime Prevention through Environmental Design” prepared by Chalmerspaige shall be implemented at all times. Details demonstrating compliance shall be provided with the Construction Certificate.

36 Treatment of Wall Surfaces to Minimise Vandalism/Graffiti

Wall surfaces shall be painted or treated with anti-graffiti treatment to support the rapid removal of graffiti if it occurs.

37 Fire Safety Schedule

When issuing a Construction Certificate, a certifying authority must attach a Fire Safety Schedule specifying all of the fire safety measures required for the building to ensure the safety of persons in the building in the event of fire.

38 Section 73 Compliance Certificate

then refer to "Water Servicing Coordinator" under "Developing Your Land" or telephone 13 20 92 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 Notice of Requirements must be submitted to the Principal Certifying Authority prior to issue of the construction certificate.

39 Integral Energy Requirements

40 Telecommunications

The submission of documentary evidence from an approved telecommunications carrier to the Principal Certifying Authority confirming that underground telecommunication services are available for this development is required prior to the issue of the Construction Certificate.

41 Glass Reflectivity Index

The reflectivity index of the glass used in the external façade of the building shall not exceed 20 per cent. The details and samples of the glass to be used are to be submitted with the Construction Certificate together with written evidence that the reflectivity of the glass is 20 per cent or less.

42 External Finishes

Pedestrian access ways, entry paths and lobbies must be constructed with durable materials commensurate with the standard of the adjoining public domain with appropriate slip resistant materials, tactile surfaces and contrasting colours.

43 Vehicular entries are to have high quality finishes to walls and ceilings as well as high standard detailing. No ducts or pipes are to be visible from the street.
44 Disabled Access and Facilities

The provision of disabled access throughout the development is required and shall be in compliance with the Building Code of Australia Part D3 “Access for People with Disabilities” and Australian Standard AS1428.1 (2001) - Design for Access and Mobility – Part 1 General Requirements for Access – Buildings. This requirement shall be reflected on the Construction Certificate plans.

45 The disabled access ramp(s) shall comply with Australian Standard AS1428.1 (2001) – Design for Access and Mobility – Part 1 General Requirements for Access – Buildings. This requirement shall be reflected on the Construction Certificate plans.
46 The development shall provide suitable light spillage mitigation measures within the development to mitigate against any adverse light spillage impacts upon surrounding properties. This requirement shall be reflected on the Construction Certificate plans. The implementation of the approved light spillage mitigation measures is required prior to the use or occupation of the development.
47 Car parking and Access

The development shall make provision for a total of 161 car parking spaces, 7 motorcycle parking spaces and 10 (6 employee and 4 visitor) bicycle parking spaces. This requirement shall be reflected on the Construction Certificate plans. Any change in above parking numbers shown on the approved DA plans shall be dealt with via a section 96 modification to the development. The approved parking spaces shall be maintained to the satisfaction of Council, at all times.

48 The parking dimensions, internal circulation, aisle widths, kerb splay corners, head clearance heights, ramp widths and grades of the car parking areas are to be in conformity with Australian Standard AS2890.1 (1993), except where amended by other conditions of this consent. Details of such compliance are to be reflected on the Construction Certificate plans.
49 Each disabled person’s parking space must have a minimum dimension of 3.2 metres by 5.4 metres and be clearly marked and/or signposted, and be located to maximise accessibility to the building. A minimum 2.3 metres headroom height shall be provided throughout the car parking area to and from any proposed disabled/adaptable housing parking space and a minimum headroom of 2.5m over the disabled/adaptable housing space. This requirement shall be reflected on the Construction Certificate plans.
50 Bicycle Parking

The security level of the bicycle parking is to be is to comply with the most current version of Austroads Part 14. This requirement shall be reflected on the Construction Certificate plans.

51 The main entry point to the building shall be in accordance with Australian Standard 1428.1 - 2001 Design for Access and Mobility - Part 1 General Requirements for Access - Buildings. The proposed pedestrian ramps within the car parking areas shall incorporate gradients (with suitable landing intervals) in accordance with the Australian Standard. The final design of the pedestrian ramps, including ramp gradients shall be reflected on the Construction Certificate plans.
52 The designated loading/unloading facility shall be kept clear for that purpose at all times. The designated loading/unloading facility shall be shown on the Construction Certificate plans.
53 The provision of suitable barriers, line-marking and painted signage delineating vehicular flow movements within the car parking areas. These details shall be reflected on the Construction Certificate plans.
54 The car parking areas and internal access roads shall be separated from the landscaped bays by means of a kerb or concrete dwarf wall. All kerbs required to act as wheel stops shall have a maximum height of 100 mm above ground. These details shall be reflected on the Construction Certificate plans.
55 The car parking areas shall incorporate ‘low impact’ floodlighting to ameliorate any light spillage and/or glare impacts upon surrounding properties. The final design details of the proposed floodlighting system shall be reflected on the Construction Certificate plans. The erection of the floodlighting system shall be in accordance with the approved final design.
56 Ramps for internal parking areas shall be designed in accordance with AS2890.1 - Parking Facilities - Off Street Car Parking. This requirement shall be reflected on the Construction Certificate plans.
57 A minimum headroom height throughout the car parking and manoeuvring area shall be in accordance with AS2890 series. The manoeuvring area for commercial vehicles shall comply with AS2890.2 and the general car parking and associated areas shall comply with AS2890.1. This requirement shall be reflected on the Construction Certificate plans.
58 Gradients of Ramps and Access Driveways

Gradients of ramps and access driveways shall be provided in accordance with the latest version of Australian Standard AS2890.1 - Off Street Car Parking. This requirement shall be reflected on the Construction Certificate plans.

59 Utilities

The depth and location of all services (ie gas, water, sewer, electricity, telephone, traffic lights, etc) must be ascertained and reflected on the Construction Certificate plans and supporting documentation.

60 Should a proposed Vehicular Crossing be located where it is likely to disturb or impact upon a utility installation (ie power pole, Telstra pit etc) written confirmation from the affected supplier that they have agreed to the proposed impacts shall be submitted to the Principal Certifying Authority prior to the issue of the Construction Certificate.
61 The arrangements and costs associated with any adjustment to a public utility service shall be borne by the applicant/developer. Any adjustment, deletion and/or creation of public utility easements associated with the approved works are the responsibility of the applicant/developer. The submission of documentary evidence to the Principal Certifying Authority which confirms that satisfactory arrangements have been put in place regarding any adjustment to such services is required prior to the release of the Construction Certificate.
62 Driveways

63 A change in driveway paving is required at the entrance threshold to clearly show motorists they are crossing a pedestrian area. The developer must construct the paving in accordance with the conditions, technical specifications and levels to be obtained from Council's Manager Works. This requirement shall be reflected on the Construction Certificate plans and any supporting documentation.

Modification 4 dated 18 November 2010

63A Prior to the issuing of the construction certificate, the developer must enter into a Works Authorisation Deed (WAD) with the RTA for the construction of the deceleration lane.

63B Prior to occupation, the developer must construct a left turn deceleration lane to the satisfaction of the RTA. Given that the proposed lane does not allow for storage, the entry into the site will be designed as a free flow arrangement with no significant grade change from the Flinders Street pavement, giving vehicles priority over pedestrians. Pram ramps will be provided for pedestrians.
63C The developer must dedicate a 3m wide section of land as public road to compensate for the width of the deceleration lane.
63D Geometric road design will be in accordance with RTA Road Design Guide. Pavement design will be in accordance with the AUSTROADS Pavement Design Guide.
63E Where required, lighting will be upgraded/provided in accordance with Australian Standard AS/NZS 1158.
63F All roadworks, traffic control facilities and other works associated with the development, including property dedications, will be at no cost to the RTA. All works must be completed prior to occupation.
63G As the RTA will be exercising its powers under Section 64 of the Roads Act 1993 to become the roads authority for works on Flinders Street, consent under Section 138 of the Roads Act 1993 must be obtained from the RTA prior to construction.
63H The developer must apply for a Road Occupancy Licence (ROL) from the RTA Traffic Operations Unit (TOU) prior to commencing work within the classified road reserve or within 1090m of traffic signals. The application will require a Traffic Management Plan (TMP) to be prepared by a person who is certified to prepare Traffic Control Plans. Should the TMP require a reduction of the speed limit, a Direction to Restrict will also be required from the TOU. The developer must submit the ROL application 10 business days prior to commencing work.
63J The pedestrian crossing of the driveway between the areas marked as Pedestrian Walkway and Pedestrian Footpath shown coloured black on the plan of Proposed Slip Lane No DA 1 B of Architects Edminston Jones will be constructed with a raised threshold platform which maintains the footpath level between the entry off Flinders Street and the pedestrian pathway in front of the building.
64 Structures Adjacent to Driveway

Any proposed structures adjacent to the driveway shall comply with the requirements of the latest version of Australian/New Zealand Standard AS/NZ 2890.1 to provide for adequate sight distance. This includes, but is not limited to, structures such as signs, letterboxes, retaining walls, dense planting etc. This requirement shall be reflected on the Construction Certificate plans.

65 Habitable floor levels for the shops must be constructed at a minimum of RL 4.60 metres AHD. This requirement shall be reflected on the Construction Certificate plans, prior to the release of the Construction Certificate.
66 Floor levels for the store must be constructed at a minimum of RL 4.60 metres AHD. This requirement shall be reflected on the Construction Certificate plans, prior to the release of the Construction Certificate.
67 Any portion of the building or structure below RL 5.10 metres AHD should be built from flood compatible materials. Where alternative materials are proposed and not shown in Schedule 2 of DCP 54, relevant documentation from the manufacturer shall be provided to ensure the materials satisfy the definition of ‘flood compatible materials’ as stated in DCP 54. This requirement shall be reflected on the Construction Certificate plans prior to the release of the Construction Certificate.
68 Parking area levels shall be designed and constructed to limit the 1 in 100 year ARI flood flow velocity and depth to within the vehicle stability limits as illustrated within Figure 5.1 of Wollongong City Council’s “Drainage Design Code”. This requirement shall be reflected on the Construction Certificate plans prior to the release of the Construction Certificate.
69 Overflow paths must be provided to allow for flows of water in excess of the capacity of the pipe/drainage system draining the land. Blocked pipe situations with 1 in 100 year ARI events must be incorporated in the design. Overflow paths must also be provided in low points and depressions. This requirement shall be reflected on the Construction Certificate plans prior to the release of the Construction Certificate.
70 Provision shall be made for a minimum 200mm grated box drain along the boundary of the property at the vehicular crossing/s to prevent waste and surface water entering the road reserve. This requirement shall be reflected on the Construction Certificate plans.
71 Details of the proposed alterations to the existing pits and of the proposed pits within the road reserve shall be provided in conjunction with the detailed drainage design for the site. These requirements shall be reflected on the Construction Certificate plans and supporting documentation.
72 Landscaping

The submission of a final Landscape Plan in accordance with the requirements of Wollongong City Council Landscape Technical Policy No 98/4 and in accordance with the approved Landscape Plan (ie as part of this consent) for the approval by the Principal Certifying Authority, prior to the release of the Construction Certificate.

73 Final Landscape Plan
The submission of a final Landscape Plan to the Principal Certifying Authority, prior to the release of the Construction Certificate. The final Landscape Plan shall address the following requirements:

Modification 5 dated 18 November 2010

a) planting of indigenous plant species native to the Illawarra Region such as: Syzygium smithii (syn Acmena smithii) Lilly pilly, Archontophoenix cunninghamiana Bangalow palm, Backhousia myrtifolia Grey myrtle, Elaeocarpus reticulatus Blueberry ash, Glochidion ferdinandii Cheese tree, Livistona australis Cabbage palm tree, Syzygium paniculatum Brush cherry

A further list of suitable suggested species may be found in Wollongong Development Control Plan 2009 – Chapter E6: Landscaping;

b) a schedule of proposed planting, including botanic name, common name, expected mature height and staking requirements as well as number of plants and pot sizes;
c) the location of all proposed and existing overhead and underground service lines. The location of such service lines shall be clear of the dripline of existing and proposed trees; and;

d) the submitted landscape plan and any other relevant plans that relate to the road/footpath layout clearly show that the footpath pavement is continuous and that the slip lane will terminate in a vehicle ramp, so that pedestrian movements will take priority.

The completion of the landscaping works as per the final approved Landscape Plan is required, prior to the issue of Occupation Certificate.

74 The provision of common tap(s) and/or an irrigation system is required to guarantee that all landscape works are adequately watered. The location of common taps and/or irrigation system must be indicated on the Landscape Plan for the Construction Certificate, as detailed in the Wollongong City Council Landscape Technical Policy No 98/4. This requirement shall be reflected on the Landscape Plan prior to the release of the Construction Certificate.
75 The submission of certification from a suitably qualified and experienced landscape designer and drainage consultant to the Principal Certifying Authority prior to the release of the Construction Certificate, confirming that the landscape plan and the drainage plan are compatible.
76 The implementation of a landscape maintenance program in accordance with the approved Landscape Plan for a minimum period of 12 months to ensure that all landscape work becomes well established by regular maintenance. Details of the program must be submitted with the Landscape Plan to the Principal Certifying Authority prior to release of the Construction Certificate.
77 Tree Protection and Management

78 Podium Planter Boxes

All podium planter boxes are to have a waterproofing membrane. The waterproofing membrane is to have a minimum 10 year life span. This requirement shall be reflected on the Construction Certificate plans and any supporting documentation.

79 Site Entrance/Exit Threshold

A change in driveway paving is required at the entrance/exit threshold and the loading dock entry/exit on the site to clearly show motorists they are crossing a pedestrian area. This requirement shall be reflected on the Construction Certificate plans and any supporting documentation.

80 Street Trees

Cupaniopsis anacardiodes

Lophostemon confertus

81 Asbestos Management Report

The submission of a report, prepared by a suitably qualified and experienced asbestos consultant, which indicates the exact nature and extent of asbestos material contained within the site and the proposed remediation measures to be adopted for the removal of the asbestos material from the site to a NSW Environmental Protection Authority registered waste disposal site. This report shall be submitted to the Principal Certifying Authority for its separate approval prior to the issue of the Construction Certificate.

82 Dust Suppression Measures

The submission of details of the proposed dust suppression measures for the demolition, excavation and construction phases of the development to the Principal Certifying Authority, prior to issue of the Construction Certificate.

83 The following Section 94A Levy Contribution is required towards the provision of public amenities and services in accordance with the Wollongong City Council Section 94A Development Contributions Plan.

The following formula for indexing contributions is to be used:

Contribution at time of payment = $C x (CP2/CP1)
Where

Details of CP1 and CP2 can be found in the Australian Bureau of Statistics website Catalog No 6401.0 - Consumer Price Index, Australia.
Payment of the S94A levy must be by cash or bank cheque only. A copy of the Wollongong City Council Section 94A Development Contributions Plan and accompanying Fact Sheet may be inspected or obtained from the Wollongong City Council Administration Building, 41 Burelli Street, Wollongong during business hours or on Council’s web site at
(Reason: To provide high quality and diverse public amenities and services to meet the expectations of the existing and new residents of Wollongong City Council .

Prior to the Commencement of Works
84 Appointment of Principal Certifying Authority

Prior to commencement of work, the person having the benefit of the Development Consent and a Construction Certificate must:

84.1 Appoint a Principal Certifying Authority (PCA) and notify Council in writing of the appointment. irrespective of whether Council or an accredited private certifier is appointed (if Council is nominated as the PCA please use the attached form) and
84.2 notify Council in writing (on the attached form) of their intention to commence the erection of the building (at least two days notice is required).

The Principal Certifying Authority must determine when inspections and compliance certificates are required.

85 Sign – Supervisor Contact Details

86 Consultation with NSW WorkCover Authority

Prior to any work commencing on the site it is the responsibility of the owner to contact NSW WorkCover Authority in writing in respect to any demolition or use of any crane, hoist, plant or scaffolding.

87 Site Management, Pedestrian and Traffic Management (Where Works are Proposed in or from a Public Road Reserve)

88 Temporary Toilet/Closet Facilities

89 Hoardings (within any Public Road Reserve)

The site must be enclosed with a suitable hoarding (type A or B) or security fence of a type in accordance with the Regulation and Enforcement Division Design Standard, and must satisfy the requirements of the Occupational Health and Safety Act, the Occupational Health and Safety Regulations and Australian Standard AS 2601. This application must be submitted to Council’s Regulation and Enforcement Division, and a permit obtained, before the erection of any such hoarding or fence.

90 Enclosure of the Site

The site must be enclosed with a suitable security fence to prohibit unauthorised access, to be approved by the Principal Certifying Authority. No building work is to commence until the fence is erected.

91 Demolition Works

92 Demolition Works

93 Demolition Notification to Surrounding Residents

Demolition must not commence unless at least 2 days written notice has been given to adjoining residents of the date on which demolition works will commence.

94 Consultation with NSW WorkCover Authority – Prior to Asbestos Removal

The applicant or appointed contractor is to give NSW WorkCover Authority at least seven days advanced notice, prior to the removal of asbestos from the site.

95 Contaminated Roof Dust

Any existing accumulations of dust in ceiling voids and wall cavities must be removed prior to any demolition work commencing. Removal must take place by the use of an industrial vacuum fitted with a high efficiency particulate air (HEPA) filter.

96 Waste Management

The developer must provide an adequate receptacle to store all waste generated by the development pending disposal. The receptacle must be regularly emptied and waste must not be allowed to lie or accumulate on the property other than in the receptacle. Consideration should be given to the source separation of recyclable and reusable materials.

97 Support for Neighbouring Buildings

98 Public Liability Insurance

All contractors working in Council’s road reserve and/or public reserve areas shall take out public liability insurance for a minimum amount of $10 Million. The policy shall specifically indemnify Council from all claims arising from the execution of the works. Written evidence of this insurance shall be supplied to the Principal Certifying Authority and Council (in the event that Council is not the Principal Certifying Authority) prior to the commencement of any such works in any road reserve or public reserve area.

99 Erosion and Sediment Control Measures

Erosion and sediment control devices are to be installed prior to the commencement of any demolition, excavation or construction works upon the site. These devices are to be maintained throughout the entire demolition, excavation and construction phases of the development and for a minimum three (3) month period after the completion of the project, where necessary.

100 The depth and location of all services (ie stormwater, gas, water, sewer, electricity, telephone, etc) must be ascertained and reflected on the plans and supporting documentation issued for construction.
101 Construction of Vehicular Crossing

102 Road Opening Permit

Prior to works commencing the applicant shall apply to and obtain a Road Opening Permit from Council’s Regulation and Enforcement Division. This permit covers the connection of services to mains within the road reserve such as, but not limited to water, sewer, stormwater drainage and power. A copy of this permit shall be submitted to the Principal Certifying Authority, prior to works commencing.

103 Application for Occupation of Footpath/Roadway

104 Road Occupancy Licence (ROL) from the RTA

105 Supervision of Works and Notification to Council of Works in Road Reserve

106 Notification to Council of any Damage to Council’s Infrastructure

Council must be notified in the event of any existing damage to any of Council’s infrastructure including, but not limited to the road, kerb and gutter, road shoulder, footpath, drainage structures and street trees fronting the development prior to the commencement of work. Adequate protection must be provided to Council infrastructure prior to work commencing and during the construction period. Any damage to Council’s assets shall be restored in a satisfactory manner prior to the issue of the Occupation Certificate.

During Demolition, Excavation or Construction
107 Site Filling

Filling on the site shall be restricted to within the proposed building footprint, ramped areas to shops/loading docks and the ground level car park as per the levels shown on page C1 of the plans by Sherson Lautier Consultancy dated 18 May 2009. No other increases in ground surface levels on the site are permitted. No wholesale filling of the site is permitted.

108 Flood Signage

The developer must provide flood indicators/flood warning signs on the site to alert persons of the possible flood risk during an extreme storm event.

109 Fences

Any new fences constructed on the site and located in the flood plain shall be of a type that will not obstruct the free flow of floodwaters and not cause damage to surrounding land in the event of a flood.

110 Flood Compatible Materials - Electrical

All commercial power service (metering) equipment, wiring, power outlets, switches etc. shall be located above the flood level of RL 5.10m AHD. All electrical wiring installed below this level should be suitable for continuous underwater immersion and should contain no fibrous components. Earth leakage circuit breakers must also be installed. Any equipment installed below or partially below the relevant flood level should be capable of disconnection by a single plug and socket assembly.

111 Pipe Connection

All pipe connections to existing pits within the road reserve must be constructed flush with the pit wall in accordance with good engineering practice. The developer must ensure that the condition of the pit is not compromised and that the service life of the pit is not reduced as a result of the connection.

112 Survey Report for Floor Levels

A Survey Report must be submitted to the Principal Certifying Authority verifying that each floor level accords with the floor levels as per the approved plans under this consent. The survey shall be undertaken after the formwork has been completed and prior to the pouring of concrete for each respective level of the building (if the building involves more than one level). All levels shall relate to Australian Height Datum.

113 Supervision of Engineering Works

All engineering works associated with the development are to be carried out under the supervision of a practicing engineer and/or registered surveyor.

114 New Kerb Inlet Pit

A new kerb inlet pit shall be constructed at PK1 as shown on page C1 of the plans by Sherson Lautier Consultancy dated 18 May 2009. The pit shall be generally in accordance with Drawing Nº S115/4 Appendix F of Wollongong City Council’s Drainage Design Code. The pit shall incorporate a minimum 2.4m pre-cast lintel. This work shall be done by a Council approved contractor, at the developer’s expense.

115 Piping of Stormwater to Existing Stormwater Drainage System

Stormwater for the land must be piped to Council’s existing stormwater drainage system. Prior to undertaking the connection the developer shall obtain permission from and arrange inspections with Council's Regulation and Enforcement Division.

116 No Adverse Run-off Impacts on Adjoining Properties

The design of the development shall ensure there are no adverse effects to adjoining properties or upon the land as a result of flood or stormwater run-off. Attention must be paid to ensure adequate protection for buildings against the ingress of surface run-off.

117 Re-direction or Treatment of Stormwater Run-off

Allowance must be made for surface run-off from adjoining properties. Any redirection or treatment of that run-off must not adversely affect any other property.

118 Prior approval from Council for any works in Road Reserve

Note: This includes temporary road closures for the delivery of materials, plant and equipment, concrete pours etc.

119 Temporary Road Closure(s)

120 Forty Eight Hours Notice – Prior to Works Commencing in any Road Reserve

The applicant shall consult with Wollongong City Council’s Senior Construction Compliance Officer, giving 48 hours notice to arrange an on-site meeting, prior to any works commencing in any road reserve (footpath/carriageway). The purpose of the meeting will be to discuss any relevant issues such as a schedule of inspections, the need for a road occupation or opening permit and the provision of a traffic control plan as part of the works.

121 Notification to Adjoining Property Owners Prior to Commencement of Works

The contractor shall be mindful of maintaining access to existing properties fronting the drainage works. It would be prudent to provide some form of notification to the affected properties prior to commencement of works. This is particularly the case if any disruption to access will be required as a consequence of the works.

122 Redundant Crossings

Any existing vehicular crossings rendered unnecessary by this development must be removed and the footpath and normal kerbing and guttering must be restored. This work shall be carried out by a Council recognised concrete contractor at the developer’s expense.

123 Protection of Public Places

124 Copy of Consent to be in Possession of Person carrying out Tree Removal

The applicant/developer must ensure that any person carrying out tree removal/vegetation clearance is in possession of this development consent and/or the approved landscape plan, in respect to the trees/vegetation which have/has been given approval to be removed in accordance with this consent.

125 Restricted Hours of Work

126 The developer must carry out work at all times in a manner which will not cause a nuisance, by the generation of unreasonable noise, dust or other activity, to the owners and/or occupiers of adjoining and adjacent land.
127 The lighting of the premises must be directed so as not to cause nuisance to the owners or occupiers of adjoining premises or to motorists on adjoining or nearby roads.
128 Spillage of Material

Should, during the construction period, any waste material or construction material be accidentally or otherwise spilled, tracked or placed on the road or footpath area without the prior approval of Council’s Regulation and Enforcement Division this shall be removed immediately. Evidence that any approval to place material on the road or road reserve shall be available for inspection by Council officers on site at any time.

129 Vehicle access is to be controlled so as to prevent tracking of sediment onto adjoining roadways, particularly during wet weather or when the site has been affected by wet weather.
130 Trucks which are entering and leaving the premises and carrying loads must be sealed or covered at all times, except during loading and unloading.
131 Acid Sulphate Soils

132 Asbestos Waste Collection

The asbestos waste must be collected and stored on-site in impermeable bags inside an adequate waste receptacle pending transportation. The receptacle must be lined and covered in accordance with the bin provider’s requirements and S29 of the Protection of the Environment Operations Waste Regulations 1996.

133 Asbestos waste must be prepared in accordance with WorkCover requirements and disposed of to an EPA licensed landfill site.

134 Provision of Waste Receptacle

The developer must provide an adequate receptacle to store all waste generated by the development, pending disposal. The receptacle must be regularly emptied and waste must not be allowed to lie or accumulate on the property other than in the receptacle. Consideration should be given to the source separation of recyclable and re-usable materials.

135 External Plant and Equipment

External plant such as air conditioners, compressors and other machinery likely to emit noise shall be located so adjoining areas are not adversely affected.

136 Compliance with Statutory Authorities/Government Departments

Prior to the Issue of the Occupation Certificate
137 Fire Safety Certificate

138 Remove and Replace Kerb and Gutter

139 Finished Surface Levels - Utilities

The finished surface levels of all existing utilities must match the new surface levels of the reconstructed footpaths to the satisfaction of Council’s Manager Works and Services.

140 Drainage WAE

The developer shall obtain written verification from a suitably qualified civil engineer, stating that all stormwater drainage and related work has been constructed in accordance with the approved plans. In addition, full works-as-executed plans, prepared and signed by a Registered Surveyor must be submitted. These plans must include levels and location for all drainage structures and works, buildings (including floor levels) and finished ground and pavement surface levels. This information must be submitted to the Principal certifying Authority prior to the issue of the final occupation certificate.

141 Completion of Landscaping Works

The completion of the landscaping works as per the final approved Landscape Plan is required, prior to the issue of Occupation Certificate.

142 Structural Soundness

The submission of a report from a suitably qualified and experienced structural engineer to the Principal Certifying Authority is required, prior to the issue of the final Occupation Certificate and commencement of use. This report is required to verify that all structures (i.e. buildings and bollards) can withstand the forces of floodwater, debris (including vehicles) and buoyancy up to and including the PMF flood plus freeboard being RL 6.40m AHD.

143 Site Emergency Response Flood Report

144 Completion of Engineering Works

The completion of all engineering works in accordance with the conditions of this consent and any necessary work to make the construction effective to the satisfaction of Council’s Manager Regulation and Enforcement. The cost of all engineering works shall be fully borne by the applicant/developer and any damage to Council’s assets shall be restored in a satisfactory manner, prior to the issue of the Occupation Certificate.

145 Mechanical Ventilation System

A mechanical ventilation system, complying with AS1668 (Mechanical Ventilation Code) is required for the cooking appliances. Submit to Council a Mechanical Engineer’s Certificate verifying the system compliance prior to final inspection.

Operational Phases of the Development/Use of the Site
146 Storage of Materials/Goods/Equipment

An area shall be provided within the development to store materials/goods/equipment above the 1 in 100 year flood level plus 0.5m freeboard (i.e. RL 5.10m AHD).

147 External Storage of Materials/Equipment

No external storage of materials/equipment is permitted below RL 5.10m AHD which is likely to cause pollution or be potentially hazardous during a flood event.

148 Locking of Car Park Stairwells

The stairwells within the car park are to be locked outside of trading hours to prevent anti-social behaviour from occurring.

149 Management of Trolleys

A trolley management strategy shall be implemented to ensure that trolleys do not leave the site, and any that do are collected and returned to the site before the conclusion of trading hours. The strategy shall be submitted to Council for approval prior to the release of an Occupation Certificate.

150 Removal of Graffiti

Any evidence of graffiti or vandalism shall be rectified within 48 hours of such vandalism or graffiti taking place.

151 All vehicles shall enter and exit the site in a forward direction at all times.

152 Loading/Unloading Operations/Activities

All loading/unloading operations are to take place at all times wholly within the confines of the site.

153 Consent Required for Use of Retail Premises

Development consent must be obtained for the initial use of each of the retail premises.

154 Food Safety

All food premises or food businesses within the development shall comply with the NSW Food Act, NSW Food Regulation and Food Safety Standards.

155 Microbial Control

The “water cooling system” and “warm water” installation and operation shall comply with NSW Public Health Act and (Microbial Control) Regulation and AS3666.

156 Smoke Free Environment

The proprietor shall comply with the NSW Health Department “Smoke-Free Environment Act”.

157 Food Premises

158 Garbage and Recyclable Materials

159 The cleaners sink must be connected with hot and cold water, located in a space outside any food preparation areas.

_______________________
R Hussey
Commissioner of the Court

CITATION:	Cashstar Pty Ltd v Wollongong City Council [2010] NSWLEC 1316
PARTIES:	APPLICANT Cashstar Pty Ltd RESPONDENT Wollongong City Council
FILE NUMBER(S):	10490 of 2010
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT MODIFICATION :- S96 Modification; Additional access to classified road; impact on effectiveness and ongoing operation of road.
LEGISLATION CITED:	Land and Environment Court Act 1979 Water Management Act 2000 State Environmental Planning Policy (Infrastructure) 2007 Wollongong Local Environmental Plan 2009 Wollongong City Centre Development Control Plan 2009
CASES CITED:	Wilson v State Rail Authority of New South Wales [2010] NSWCA 198
DATES OF HEARING:	2 & 3 November 2010
DATE OF JUDGMENT:	18 November 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr I Hemmings (Barrister) SOLICITOR RMB Lawyers RESPONDENT Mr P Kelso (Solicitor) SOLICITOR Bartier Perry