Emily Ii Investments v Rockdale City Council - [2009] NSWLEC 1229

Land and Environment Court

of New South Wales

CITATION: Emily II Investments v Rockdale City Council and anor [2009] NSWLEC 1229

PARTIES:
APPLICANT
Emily II Investments Pty Limited
FIRST RESPONDENT
Rockdale City Council
SECOND RESPONDENT
Bexley Chamber of Commerce

FILE NUMBER(S): 10378 of 2008

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- demolition of all existing improvements and the construction of a mixed retail, commercial and residential development - permissibility of the proposed development - inconsistency with the relevant zone and development control plan objectives - impacts on streetscape and character of the area - unacceptable amenity impacts on adjoining and nearby residential properties - inconsistency with the established retail hierarchy - impact on the existing commercial centres of Bexley and Rockdale

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Interpretation Act 1987
Rockdale Local Environmental Plan 2000
State Environmental Planning Policy No 1 – Development Standards

CASES CITED: Maryland Development Co Pty Ltd v Penrith City Council 115 LGERA 75.
Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160
Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
Wehbe v Pittwater Council [2007] 156 LGERA 446
Zhang v Canterbury City Council (2001) 115 LGERA 373
Fabcot Pty Ltd v Hawkesbury City Council [1997] NSWLEC 27
Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315

DATES OF HEARING: 12, 13, 14, 15 May 2009

DATE OF JUDGMENT:
10 July 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr C McEwen SC with Mr M Staunton, barrister
SOLICITORS
Gadens Lawyers
FIRST RESPONDENT
Mr J Cole, solicitor
SOLICITORS
HWL Ebsworth
SECOND RESPONDENT
Mr C Gough, solicitor
SOLICITORS
Storey and Gough

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

10 July 2009

10378 of 2008 Emily II Investments Pty Limited (Applicant) v Rockdale City Council (First Respondent) and Bexley Chamber of Commerce (Second Respondent)
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Development Application 2008/246 by Rockdale City Council (the council) for the demolition of all existing improvements and the construction of a mixed retail, commercial and residential development at 159 Frederick Street and 286A, 290-298 Forest Road, Bexley (the site).

2 The council’s contentions relate to the inconsistency with the relevant zone and development control plan objectives, unacceptable impacts on the streetscape and character of the area through the design of the proposed development and unacceptable amenity impacts on adjoining and nearby residential properties.

3 The contentions raised by the Bexley Chamber of Commerce (the Chamber of Commerce) relate to the inconsistency with the established retail hierarchy in the area and the unacceptable impact on the existing commercial centres of Bexley and Rockdale. The Chamber of Commerce also raised the issue of the permissibility of the proposed development.

The site

4 The site is made up of various lots with a 54 m frontage to Frederick Street and a 45 m frontage to Forest Road. The total site area is 3528.71 sq m. There is a consistent slope from the south-west corner to the north-west corner of the site with an approximate cross fall of 1 m.

5 The development on the opposite side of Forest Road is characterised by older retail strip shops comprising a predominantly two-storey form with shops at street level and flats or commercial uses above. To the south and east of the site is low density residential development.

6 The Bexley shopping centre is located some 250 m to the south of the site on Forest Road and separated from the site by a school and service station and Fredrick Street. The main part of the Bexley shopping centre is located on the opposite side of Harrow Road.

The proposal

7 The proposal involves the demolition of the existing improvements and the construction of a mixed retail, commercial and residential development. There are 3 basement car parking levels (car park levels 1, 2 and 3) containing a total of 212 spaces for the different uses. A liquor outlet of 627 sq m is also located on car park level 1. A full line supermarket of around 2800 sq m (including storage areas) is to be located on the lower ground level. The ground floor will contain 7 retail outlets ranging in size from 50 sq m to 335 sq m with a total area of 898 sq m. Three of the retail outlets have a frontage to Forest Road and two retail outlets have a frontage to Frederick Street. The first floor level contains 1303 sq m of commercial space and three residential units. The second floor level contains ten residential units separated by an open courtyard area.

8 The main entrance to the commercial and retail components of the development is located at the corner of Forest Road and Frederick Street with a secondary entrance off Forest Road. The entrance to the residential component of the development is from Frederick Street. Access to the loading bay and car parking area is located off Frederick Street.

Relevant planning controls

9 The site is located within Zone 3(a) General Business zone and Zone 3(c) Neighbourhood Business zone under Rockdale Local Environmental Plan 2000 (LEP 2000). “Mixed use premises” are a permissible use in each zone, with consent. There was disagreement on the categorisation of the proposed development and this is addressed later in the judgment. Clause 12(3) provides that consent must not be granted unless the development would be consistent with one or more of the objectives of the zones in which the proposal is located.

10 Clause 37 provides requirements for floor space ratio (FSR). The maximum the FSR for a building in the 3(a) zone is 2:1 and in the 3(c) zone, the maximum FSR is 1:1 (cl 37(1)). The residential component of any mixed use premises must not exceed an FSR of 1:1 (cl 37(4)). There was no disagreement that the proposed development satisfies these requirements with the exception of the FSR requirement for that part of the proposal on the 3(c) zoned land. An objection under State Environmental Planning Policy No 1 – Development Standards (SEPP 1) was provided to show why strict compliance with the development standard was unreasonable and unnecessary in this instance.

11 Clause 41 provides specific requirements for those parts of the development of the site zoned 3(a). The height of the building must not exceed 65 m above Australian Height Datum (AHD) (cl 41(3)(a)), the maximum gross floor area used for all residential purposes must not exceed 1.05:1 (cl 41(3)(b)) and parking must meet the requirements of the council in the form of on-site underground parking (cl 41(3)(e)). There was agreement that the proposed development satisfies these requirements.

12 Rockdale Development Control Plan No. 27 (DCP 27) is a site-specific development control plan. DCP 27 states that it is to complement Rockdale Local Environmental Plan No. 155 (LEP 155). LEP 155 amended the Rockdale Planning Scheme Ordinance (the Ordinance) on 3 December 1999 by the inclusion of cl 65E. The provisions of cl 65E are similar but not identical to the provisions of cl 41 of LEP 2000. The requirements for height, FSR and basement parking are however identical.

13 The relevant parts of the DCP 27 are The Structure of this Plan (cl 1.1), General Objectives of The Plan (cl 5), Parking and Loading (cl 9), Setbacks and Envelope Controls (cl 13) and Commercial Uses (cl 15). The council’s traffic expert agreed that a small reduction in the overall number of car parking spaces from that required by the council requirements was acceptable.

14 The council provided expert evidence from:

Mr Shaun Beckley on planning issues,
Mr Simon Porter planning and urban design issues,
Mr Thomas Kulchar on planning and urban design issues,
Mr Jamie Milner on loading dock issues, and
Mr Craig McLaren on traffic and parking issues,

15 A number of local residents provided evidence on site and opposed the proposed development on issues relating to impacts on amenity such as overlooking and bulk and scale, increased traffic and the impact on the character of the area.

16 The Chamber of Commerce provided expert evidence from:

Mr Angus Whitherby on planning issues, and
Mr Sean Stephens on economic issues.

17 A number of local shopkeepers provided evidence on site and opposed the proposed development for reasons similar to those raised by the Chamber of Commerce.

18 The applicant provided expert evidence from:

Ms Alison McCabe on planning issues,
Ms Kristy Lee on planning issues,
Mr Nigel Dickson on planning and urban design issues
Mr Peter Leyshon on economic issues,
Mr Stephen Cooper on acoustic issues,
Mr John Coady on traffic and parking issues, and
Ms Narelle Sonter on landscape issues.

19 The planning issues covered a number of areas, including the regional implications of the proposed development as well as more local issues relating to compliance with the council planning controls and design issues. The experts gave concurrent evidence and while there were attempts to segregate the regional and local issues, there were a number of areas where the evidence overlapped.

Is the proposed development permissible?

20 The permissibility of the proposed development was not a matter raised by the council or the Chamber of Commerce in their Statement of Contentions but was raised at the hearing.

21 Mr Gough submits that the proposed development is prohibited for a number of reasons. First, cl 8 of LEP 2000 provides definitions. Relevantly, cl 8 defines "shop" as:

shop

means a building or place used for the purposes of selling, exposing, or offering for sale by retail or hire, of goods, merchandise or materials, but does not include a building or place elsewhere specifically defined in this clause, or a building or place used for a purpose elsewhere specifically defined in this clause.

22 Clause 8 defines "mixed use premises" as:

mixed use premises

means a site on which a building used for a non-residential purpose and one or more dwellings, that may or may not be attached to that building, are situated, whether or not the dwelling or dwellings will be used in conjunction with that non-residential use.

23 A “shop” and “mixed use premises” are land uses identified in cl 36 of LEP 2000 as being "Only With Development Consent" within Zones 3(a) and 3(c) and as such are permissible uses, with development consent.

24 Clause 10 of LEP 2000 adopts the definitions within the Model Provisions except for those definitions identified in cl 10(a). Relevantly, cl 10 adopts the following definition from the Model Provisions for a “general store”:

general store

means a shop used for the sale by retail of general merchandise and which may include the facilities of a post office;

25 A “general store” is a land use not identified in cl 36 of LEP 2000 as being "Only With Development Consent" within Zones 3(a) and 3(c) and as such falls within the "Prohibited" category of land uses.

26 Mr Gough submits that the definitions imported from the Model Provisions by cl 10, must form part of cl 8 of LEP 2000, as this is the clause within LEP 2000 that contains definitions. The consequence is that the supermarket is appropriately categorised as a "general store" and cannot be categorised as a "shop" as it does not satisfy the definition of a "shop" as there is a "building or place used for a purpose elsewhere specifically defined in this clause", that is, a "general store".

27 Second, Mr Gough submits that the proposed development is not categorised as a "mixed use premises". The definition refers to “a site” and not a use. While the building may be described as a “mixed use premises”, the supermarket component is not a “mixed use premises”. The definition refers to "a building for a non-residential purpose". It is singular and the definition suggests only two purposes, that is a non-residential purpose and one or more dwellings. An example of a mixed use premises would be traditional shop-top housing and not multiple purposes such as that proposed in this application for retail and commercial uses.

28 Third, Mr Gough submits that the supermarket cannot be categorised as a shop on the basis of the findings by Sheahan J in Maryland Development Co Pty Ltd v Penrith City Council 115 LGERA 75. In this case His Honour considered the question of how a supermarket falls within the planning framework. The case specifically dealt with the question of whether a supermarket was appropriately categorised as a shop or a general store. Based on His Honour’s findings, the supermarket must be categorised as a general store. Relevantly, His Honour states (at par 71):

117. Where a large “general store” sells a general range of merchandise, including foodstuffs and homewares, it may be referred to colloquially as a supermarket. “Supermarket” is not a planning term; labelling the proposed development as a “supermarket” is irrelevant; a supermarket is a shop, and may be a “general store”. A “department store” is probably also a “general store”. It is irrelevant also that a store’s approval may have impacts. The merit question is different from the permissibility question.

29 While there are no specifications as to what constitute general merchandise based on the available details submitted as part of the development application, Mr Gough states that even in the absence of specific details, a submission could reasonably be made that the supermarket will sell general merchandise as opposed to foodstuffs and homewares, and as such would be categorised as a “general store” and prohibited.

The council submissions

30 Mr Cole adopts different positions on the question of permissibility. He agrees with the submissions of Mr Gough that the proposed supermarket is appropriately categorised as a "general store" based on the findings in Maryland Development and as such is prohibited within the zone. Mr Cole submits that if the proposed development is considered as a "mixed use premises", the fact that the supermarket is categorised as a "general store" and is prohibited within the zone, then the whole development is prohibited, notwithstanding the permissibility of the other components of the development.

31 Mr Cole does not accept Mr Gough’s submission on the singular and plural argument associated with the definition of "mixed use premises" and further submits that if the genus and species argument used by Bignold J in Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160 was used in this case, with shop being the genus and the general store being the species, it would be possible to conclude that as a “shop” is permissible, a “general store” is also permissible.

The applicant submissions

32 Mr McEwen SC submits that the supermarket is appropriately categorised as a "shop". There is no basis for the submission that the definitions in the Model Provisions should somehow be imported into cl 8. There is no reference in cl 8 to the Model Provisions and the clause commences with the words "Definitions in this plan". The definitions adopted by the Model Provisions become effective through cl 10.

33 Mr McEwen rejects the submission of Mr Gough on the reference to the word "site" in the definition of "mixed use premises". In his submission, this is explained by looking at the zoning table where "mixed use premises" is one of the purposes for which development may be carried out. The proposed development is a "mixed use premises" because it is on a site where there will be a building that contains more than one dwelling and a non-residential use. Mr McEwen rejects the submission of Mr Gough on the singular and plural argument with reference to s 8(b) of the Interpretation Act 1987 where it states that:

(b) a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form,

34 For this reason, the existence of more than one non-residential use in a "mixed use premises" is not a matter that can lead to the conclusion that the proposal is not a "mixed use premises".

35 In response to the submissions on the decision of Maryland Development, Mr McEwen submits that there is no evidence before the Court to conclude that the supermarket is a "general store". It is clear that in some circumstances a supermarket may be a "general store" however it depends on the type of supermarket. To come to the conclusion suggested by Mr Gough and Mr Cole, it would be necessary for evidence to be provided as to what type of products are being sold. In the event that the submissions of Mr Cole and Mr Gough are ultimately correct and that the supermarket is a "general store", then the ability to enforce the zoning requirements for the site remains, although it is not a conclusion that can be reached on the evidence provided to the Court.

Findings

36 In considering the competing submissions, I agree with the conclusions of Mr McEwen. While there is some logic to the submission of Mr Gough that the Model Provisions definitions should be included with the other definitions in cl 8, there is nothing within cl 8 or cl 10 or anywhere else in LEP 2000 to suggest that this is the way that these definitions should be considered. In the absence of any specific provision to support Mr Gough's submission, I accept that the definitions imported from the Model Provisions are simply activated through cl 10, rather than cl 8. The effect is that the supermarket is appropriately categorised as a "shop", as there is no building or place used for a purpose elsewhere specifically defined in cl 8.

37 I also accept the submission of Mr McEwen on the use of the word "site" in the definition of "mixed use premises". The zoning table identifies that "mixed use premises" is one of the purposes for which development may be carried out. The word "site" in the definition of "mixed use premises" does not detract from its permissibility generated by the zoning table. I am also satisfied that the singular and plural submission of Mr Gough is overcome by s 8(b) of the Interpretation Act 1987.

38 The decision of Maryland Development highlights the tension between the definitions of “shop” and “general store”. As submitted by Mr McEwen, the differences between the definitions hinges largely on the particular characteristics of the premises in question. In Maryland Development, comprehensive details of the product lines to be carried were available (see pars 34, 119 and 120). It would be fair to say that these details were ultimately found by His Honour to be an important consideration in the categorisation of the use as a "general store". In this case, the extent of the product lines was generally limited to the term "full line supermarket". In the absence of any greater detail on the types of products to be sold, it is open to the Court to categorise the supermarket as a “shop”.

39 While the Court is bound by the requirements of the LEP 2000 in determining what land uses are permissible or prohibited, in practical terms it seems an absurdity when two separately defined land uses (that is, a "shop" and a "general store") are virtually identical in terms of their operation, however one is permissible and the other is prohibited.

40 For the reasons mentioned in the preceding paragraphs, I am satisfied that the proposed development is appropriately categorised as a "mixed use premises" and consequently is permissible within the 3(a) and 3(c) zones.

Regional planning implications
The evidence

41 Mr Witherby and Mr Beckley state that the 3(a) zoning cannot be considered as a reflection of state policy as the Draft South Subregional Strategy identifies the area in which the proposal is located as separate to and smaller than Bexley town centre. The assessment of the development application needs to be seen in the context of a suite of planning controls, extending from state policy, LEP 2000, LEP 155 and DCP 27. In the opinion of Mr Witherby and Mr Beckley the type of development proposed is inconsistent with the range of planning controls applicable to the site.

42 Mr Witherby and Mr Beckley also agree that State Environmental Planning Policy No. 66 - Integration of Land Use and Transport (SEPP 66) and the policy The Right Place for Businesses and Services- Planning Policy still has currency as the proposed development will not anchor the nearby higher order Bexley town centre and that the centre will be commercially threatened by the proposed development. The proposed development would tend to discourage investment in the Bexley town centre and this would further the urban blight, already noticeable in the centre. While accepting that the proposed development would be of little detriment to the Rockdale town centre, the agreed position of Mr Witherby and Mr Beckley is that the proposed development would not strengthen this centre.

43 Mr Beckley notes that Development Control Plan 68 - Bexley Town Centre (DCP 68) does not apply to the site. The boundary of DCP 68 extends only to the western side of Bexley Public School. The purpose of DCP 68 is to encourage "development to contribute to a positive future for Bexley". In his opinion, this will not be achieved with the construction of a full line supermarket outside the Bexley town centre.

44 In relation to Draft South Subregional Strategy, Ms McCabe states that, at best, the document informs council's planning processes, particularly in the preparation of a comprehensive local environmental plan. It is not a document that should dictate the assessment of an individual development application. Ms McCabe describes SEPP 66 as having no application as Planning Circular PS-08-13 (13 November 2008) states that draft SEPP’s not made within three years of exhibition should not be a consideration in the assessment of development applications.

45 Ms McCabe further states that the 3(a) zoning of the site envisages the potential use of the land for a range of uses, including a supermarket and office premises. There are no limits on retail or commercial uses. The zoning was created in complete knowledge of the existing zoning of the Rockdale and Bexley centres. The proposal is on land planned for the type of uses proposed in the application, is in close proximity to transport networks and walking distance to the Bexley shopping centre. There is nothing in any regional strategy, including the NSW Retail and Centres Policy that would limit the use of the land for the proposed development. The appropriateness or otherwise of a supermarket on the site relies only on its merits and this is appropriately tested against the provisions of LEP 2000 and DCP 27.

Findings

46 On this issue, the evidence of Ms McCabe must be accepted. The controls in LEP 2000 and DCP 27 must be the principle means of determining whether the proposed development is appropriate or not. I agree with Ms McCabe that planning documents such as the Draft South Subregional Strategy, SEPP 66 and accompanying documents and the NSW Retail and Centres Policy are important documents for councils in local planning however they cannot be seen as a valid basis to override existing properly prepared local planning controls such as LEP 2000 and DCP 27. It must be presumed that the consequences of zoning the site 3(a) were fully understood by the council when it resolved to allow the rezoning in 1999.

47 It is difficult to give any substantive weight to DCP 68 as a basis for the refusal of the application as it does not apply to the site. Again, significant weight has to be given to the 3(a) zoning of the site and the site-specific DCP 27.

48 While the experts put their minds to whether sites could be amalgamated to allow the construction of a full line supermarket within the Bexley town centre, I do not accept that this is a necessary or appropriate part of the determination of the proposed development application. The question that needs to be answered is simply whether the proposed development is appropriate on the site and not whether it is more appropriately located at another site.

49 The objectives of the 3(a) zone are:

(a) to encourage appropriate business activities which contribute to economic growth and employment opportunities within the area, and

(b) to provide a range of retail, commercial and professional services in appropriate localities, and

(c) to promote urban consolidation policies by permitting the establishment of additional residential space in the form of mixed developments.

The evidence

50 Mr Beckley states that the proposal does encourage employment opportunities and economic growth however the scale and intensity of the proposal is not appropriate for the immediate area. Given the disconnection from the Bexley shopping centre, the proposal infringes objective (a). The proposal also offends objective (b) in that while providing a range of retail, commercial and professional services, the underground supermarket significantly increases the intensity of the commercial use to an inappropriate level at this location. Mr Beckley further states that the proposed development is inconsistent with objective (c) in that while the proposed development provides for some residential development, this component represents a small component of the total floor space. In his opinion, the provision of a minor residential component within the development does not sufficiently promote urban consolidation.

51 Ms Lee comes to the opposite conclusion. She states that the proposed development is consistent with objective (a), in that a diversity of uses is provided that will contribute to both employment and economic growth. The proposal is also consistent with objective (b) as the proposed development provides the opportunity for a range of retail, commercial and professional services and objective (c) because of the higher density housing provided in the development.

52 Ms McCabe comes to a similar conclusion as Ms Lee. She states that the proposed development meets the objectives of both zones. She further states that the appropriateness or otherwise of the proposed development is determined by the underlying zone. In this case the 3(a) and 3(c) zones permits shops and commercial premises and neither seek to restrict the size of shops. Similarly there are no specific provisions in LEP 2000 that limit the nature of the uses in the 3(a) zone.

Findings - 3(a) zone objectives

53 Clause 12(3) of LEP 2000 imposes preconditions to the Court exercising the power to grant consent to the proposed development. The clause requires that the development must be “consistent with one or more of the objectives of the zone”. A finding of inconsistency must see the appeal dismissed and a finding of consistency would enliven the power to grant development consent subject to a merit assessment.

54 I agree with Ms Lee and Ms McCabe that the proposed development is not inconsistent with any of the zone objectives. I can comfortably conclude that the proposed development will contribute to economic growth and employment opportunities in the area because of the opportunities available through the construction of the building, the provision of a range of retail, commercial and professional services through the proposed shops and office areas and promote urban consolidation policies by permitting the establishment of residential consistent development, consistent with that required by cl 41(3)(b).

55 I fail to understand the evidence of Mr Beckley on the scale and intensity of the development given the satisfaction with the height and FSR requirements in DCP 27. Similarly, I fail to understand the evidence of Mr Beckley on the insufficient amount of residential development given the limitations imposed by cl 37(4).

56 A consistent theme running through the evidence from the council and the Chamber of Commerce was the inappropriate location for a supermarket in relation to the existing Bexley shopping centre. Much of the evidence indicated that a supermarket could reasonably be located in the general area but the location should be within the existing Bexley shopping centre. While there are some obvious benefits to this location, a location outside the Bexley shopping centre is not necessarily a matter that, by itself, would lead to a finding of inconsistency with the zone objectives.

57 Presumably, the council when rezoning the site in 1999 to the 3(a) zone understood that the site would ultimately be used for a use or uses allowed by the 3(a) zoning. The 3(a) zone is the highest order commercial zone in the Rockdale local government area. The potential uses would include a supermarket, given the size of the site. The provisions of DCP 27 reinforce the potential (or even likelihood) of a supermarket being located on the site as specific requirements are provided for a supermarket. Similarly, it would presumably be understood that the site would be developed to its maximum potential under LEP 2000 and DCP 27 in terms of floor space and form.

58 The question of whether the site is suitable for the proposed development has been assessed against the relevant provisions of DCP 27 later in the judgment and found to be acceptable despite some variations to the requirements in DCP 27.

59 In considering the requirements in cl 12(3), I am satisfied that the proposed development is consistent with one or more of the objectives of the 3(a) zone in which it is located and the power to grant development consent is available, subject to a merit assessment.

60 The objectives of the 3(c) zone are:

a) to provide a level of local retail and commercial facilities which services the immediate residential community, and

(b) to ensure that the nature, scale and type of development is compatible with adjacent residential development, and

(c) to ensure that development within neighbourhood centres does not detract from the economic viability of the commercial centres in Zone 3 (a) within the City of Rockdale.

The evidence

61 Mr Witherby and Mr Beckley state that the proposed development is inconsistent with the objectives of the 3(c) zone as the scale of the overall proposal is greater than that required to service the immediate residential community. The nature, scale and type of development, specifically a supermarket of the size proposed, is incompatible with adjacent to residential development and the entire development would detract from the economic viability of the Bexley town centre.

62 Ms McCabe states that the proposal is consistent with the objectives of the 3(c) zone in that the development would service immediately adjoining residents. Further, the nature and scale of the development is as envisaged by the controls and the proportion of the development within the 3(c) zone is only a minor part of the overall development.

Findings - the 3(c) zone objectives

63 I agree with the conclusions of Ms McCabe. The site contains 3(a) and 3(c) zoned land. The majority of the site (3239 sq m or 92%) falls within 3(a) zoned land. The remaining 3(c) zoned land (288 sq m or 8%) has a frontage to Forest Road and is surrounded by 3(a) zoned land. While the 3(c) zoned land has different requirements for development, in practical terms a better urban design outcome is achieved through the development of 3(c) zoned land in conjunction with the 3(a) zoned land notwithstanding the different zone objectives and development requirements. The unchallenged evidence of Ms Lee was that the combined development of the 3(a) and 3(c) zoned land was an approach encouraged by council staff (including Mr Kulchar) at a meeting in September 2007.

64 Because of the size and location of the 3(c) zoned land, I am satisfied that it could not be inconsistent with the 3(c) zone objectives even if considered as a separate area and not as part of the overall development of the site. I accept that because of the relatively small area of 3(c) zoned land and it’s location on Forest Road, the land could not be incompatible with adjacent residential development and detract from the economic viability of the commercial centres in Zone 3 (a) within the City of Rockdale. It is also likely that the 3(c) zoned land will service the immediate residential community.

65 In considering the requirements in cl 12(3), I am satisfied that the proposed development is consistent with one or more of the objectives of the 3(c) zone in which it is located and the power to grant development consent is available, subject to a merit assessment.

66 The contentions can be grouped into the following main areas:

the SEPP 1 objection,
streetscape/ character
economic impacts
building design, and
amenity impacts.

67 The SEPP 1 objection states that the FSR for the 3(c) zoned is 2.48: 1, whereas cl 37(1) provides for a maximum FSR of 1:1. Clause 37 of LEP 2000 identifies the objective of the FSR development standard as:

To control the intensity and scale of development of land zoned business so that development will be in accordance with the land’s environmental capacity and zone objectives.

68 The SEPP 1 states that the scale and intensity of development on this portion of the site is not beyond the environmental capacity. The proposed development is within the limits in terms of traffic generation and noise and will not cause adverse impacts to neighbouring properties. The scale and built form, as a whole, has been designed to ensure a suitable relationship with the neighbouring properties. The bulk is distributed over the site to ensure that the development creates a suitable urban outcome when presented in the broader streetscape. Notwithstanding the exceedance of the FSR, the design of the development to Forest Road presents a consistent built form and alignment with the neighbouring properties.

69 The SEPP 1 objection concludes by stating that the proposed development is consistent with the requirements of the policy and will result in a more holistic and beneficial use of the site than if the FSR standard was applied directly. The application of the standard is unreasonable and unnecessary in this case.

70 A means of dealing with a SEPP 1 objection is set out in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, where a number of questions are asked. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state:

3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act.

71 This question also asks does compliance with the development standard tends to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state:

5.The objects of this Act are:

(a) to encourage –

(i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment;

(ii) the promotion and coordination of the orderly and economic use and development of land.

72 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

73 The comments of Preston CJ in Wehbe v Pittwater Council [2007] 156 LGERA 446 are also relevant. This judgment supplements the findings in Winten and identifies a number of ways of establishing that compliance is unreasonable or unnecessary. Wehbe acknowledges that the most commonly used way of addressing a SEPP 1 objection is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (or the Winten tests) (Test 1).

74 A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary (Test 2).

75 A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable (Test 3).

76 A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary in unreasonable (Test 4).

77 A fifth way is to establish that the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate that that zoning was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in that case would also be unreasonable or unnecessary (Test 5).

78 I have previously addressed the issue of consistency with the 3(c) the zone (see pars 63 to 65) and found the proposed development to be consistent with these objectives. For similar reasons, I am satisfied that Tests 2, 3 and 5 in Wehbe support a variation to the development standard in that the purpose is not relevant to the development, that the underlying objective or purpose would be defeated or thwarted if compliance was required and the 3(c) zone is inappropriate because of its small size and the fact it is surrounded by 3(a) zoned land.

79 For these reasons, strict compliance with the FSR development standard for the 3(c) zoned land is unreasonable and unnecessary in the circumstances of this case. It follows that the SEPP 1 objection is well founded.

80 The relevant parts of the DCP 27 are cl 1.1, The Structure of this Plan where it relevantly states:

Objectives describe what is meant to be achieved by the design elements.
Standards requirements which, when met, evidence that the development meets the Objectives. These measures will, in most cases, be applied by Council in determining a development application. However, they may be varied by Council if it can be shown that a development meets the Objectives and Planning Criteria through some other means.

81 Clause 5 provides General Objectives of The Plan. The relevant objectives are:

(a). enable a mixture of commercial and residential land uses on the subject site in an integrated and co-ordinated manner;

(b) ensure that infill development of the subject land is sympathetic to the existing development within the locality and responds to the surrounding built environment and community expectations;

(c) protect the residential amenity of adjoining properties, including visual and acoustic privacy;

(h) provide appropriate setbacks, stepping and envelope controls for development to be carried out on the site, having regard to the nature and location of adjoining development; and

82 Clause 9 provides objectives and standards for Parking and Loading. The relevant objective is:

(b) To ensure that the streetscape is not dominated by car parking structures.

83 The relevant standard is:

(d) Car parking facilities including access ways and ventilation should not dominate the view of the development from the street, and should be visually compatible with the development.

84 Clause 13 provides objectives and standards for Setbacks and Envelope Controls. The relevant objectives are:

(a) To ensure that the future development of the site adequately responds to the site’s location and context.

(b) To ensure that the building frontage, alignment, and the height and length of walls are of appropriate scale, character and visual bulk.

85 The relevant standards are:

b) The setback to Frederick Street to be a minimum of 8.5 m to the Frederick Street property boundary. The rear property boundary setbacks (i.e. to the north-east property boundary) to be a minimum of 12 m.

(c) The setback to Frederick Street may be reduced to 4.0 m, but only where offset by an increase in the setback to between 14 m and 27 m (minimum) to the north eastern boundary of the site (refer figure 2). In addition, the area between the north-eastern property boundary and the building line is to be suitably landscaped to maintain the privacy and amenity of adjoining residential development.

86 Clause 15 provides objectives and standards for Commercial Uses. The relevant objectives are:

(a) To encourage commercial land uses along with the Forest Road frontage of the site, while restricting the expansion of commercial land uses into residential streets.

(b) To ensure that new development on the site does not detract from the commercial viability of the Bexley and Rockdale town centres.

87 The relevant standards are:

(a) Commercial uses on the site are to be confined to the Forest Road frontage.

(b) Council reserves the right to limit the hours of operation of any commercial/retail use to reasonable hours to protect the amenity of surrounding residential areas.

(c) Council reserves the right to restrict certain uses which may detract from existing commercial centres at Bexley and Rockdale (eg supermarkets, fruit markets, etc), or uses which may detract from residential amenity.

Streetscape/character
The evidence

88 Mr Beckley states that the strategic basis for rezoning the site was to allow a mixed use development that would confine commercial uses to be Forest Rd frontage (where there is a lower residential amenity) and allow for a transition to the adjoining low density residential area.

89 In accepting that amendments to the plans have created a more visually interesting built form, Mr Porter maintains that the fundamental problem still remains in that the proposal provides for an internal semi-public space that internalises activity and detracts from the public domain. In his opinion, this is a direct consequence of the extent of internal retail space with the result that the internal circulation space competes with the street and public domain rather than complementing it. Mr Porter also raises concern over the-non active Forest Road Street frontage, the lack of an appropriate response to the existing residential streetscape and adjoining properties by way of an inadequate setback and stepping back of the building at the upper levels to Frederick Street. Mr Porter also raises concern over the effect that the car parking and loading dock entries have on the residential amenity of Frederick Street.

90 Mr Dickson disagrees with the conclusions of Mr Beckley and Mr Porter. He states that the character of the proposed development has a strong relationship with the character of the existing community. There is a generally two-storey retail facade with the third storey set back, individual shopfront articulation and consistent low awning height above glazed shopfront windows facing Forest Road.

91 Mr Dickson states that the proposed development provides an improved boundary edge for adjacent residential properties. The proposed building has upper level setbacks to increase privacy for adjacent residences and minimise building scale. Landscaping and an acoustic wall provide an additional buffer for the adjoining property at 157 Frederick Street. Additional street planting is provided along Frederick Street and the building articulation provided in Forest Road is carried through to the Frederick Street elevation. Mr Dickson’s comparative sections of the existing and proposed buildings indicate a general consistency in overall form.

92 Ms Lee supports the conclusions of Mr Dickson and states that the southern elevation of the building has been designed to step down in physical form to provide an appropriate transition to the adjoining residential land uses. Landscaping and the selection of appropriate materials surrounding the entry to the car park have been carefully chosen to soften the appearance of the building and ensure that the southernmost portion reads as a residential element when viewed from Frederick Street. This allows for the bulk, scale and appearance of the structure to be compatible with the local context.

The findings
Forest Road

93 Notwithstanding the variations to the DCP, I accept the conclusions of Mr Dickson and Ms Lee. Some cognisance needs to be taken of the relatively pedestrian unfriendly environment of this frontage. Forest Road carries a large volume of traffic, including heavy vehicles and the public area is not a desirable location for an active public domain. Its functional role is largely as a thoroughfare but with access to the retail activities of the proposal and some shop fronts. With the existing traffic constraints, I am satisfied the building provide a commensurate level of activity.

94 Mr Dickson’s evidence provides a thorough assessment of the Forest Road streetscape and I accept his conclusions that the proposed development provides a quality building design through a range of building materials, facade articulation and the continuation of the footpath awning.

Frederick Street

95 This frontage of the building raises a number of issues when compared to the requirements of DCP 27. Again, I accept the design of the building is acceptable despite the variations to the DCP requirements. DCP 27 seeks to relate development on the site to the residential development further to the south in Frederick Street through a minimum 4 m setback, the exclusion of commercial uses and limitations on the car park/loading area entry.

96 In accepting that the general aim of relating any development on the site to the residential component of Frederick Street is desirable, I am satisfied that the aim can be achieved without strict compliance with the relevant requirements of DCP 27. The form and nature of the proposed development (and any development based on DCP 27) will be clearly seen as commercial. This is a natural consequence of the 3(a) zoning. I do not accept that the provision of a minimum 4 m setback to Frederick Street alters this perception or provides as association with the nearby residential development in any meaningful way. The proposed zero setback is consistent with the Forest Road frontage, the existing commercial building on the site and generally most commercial developments in a 3(a) zone. As with the Forest Road streetscape, the building design provides an interesting and varied facade, consistent with what would be expected for a commercial site. The streetscape provides for two retail tenancies, part of the principal access to the commercial and retail component of the building and access to the residential component. The impact, if any, on the residential properties in Frederick Street is negligible and what would be reasonably expected for the site, given the less attractive, smaller and busier Forest Road frontage.

97 Similarly, the entrance to the underground car park and loading facilities is consistent with the commercial use of the site. It could not be expected to be in any other location given that the entrance cannot be located in Forest Road and for traffic safety reasons is best located at the maximum distance from the corner of Forest Road and Frederick Street. While it was argued that the size of the car park entrance/loading dock entry was directly related to the inclusion of a supermarket in the development (and this may well be correct) I am not satisfied that a development without a supermarket, and not unreasonably seeking to maximise development of the site in accordance with the requirements of LEP 2000 and DCP 27, would require a car park entrance/loading dock entry that would not be substantially different to that proposed in this application.

98 The objective in cl 15(a) seeks to restrict the expansion of commercial land use into residential streets however given the constraints mentioned in the preceding paragraph, I am satisfied that the proposed development restricts commercial development in Frederick Street as much as is practicably possible.

Impact on residential properties in Fredrick Street

99 Based on the site view, the residential properties on the opposite side of Frederick Street are located some 35 m from the site. The closest residential property in Frederick Street is directly behind the site at 157 Frederick Street. DCP27 provides for a setback of 2.75 m to this property and a maximum height of 65 m AHD (or around 13 m in height at the common boundary). DCP 27 also requires the development to be stepped in plan and/or elevation at the upper levels but without specifying a setback (cl 13(2)(e)) and at least four hours sunlight is to be provided to the adjoining residential properties between 9 a.m. and 3 p.m. in midwinter (cl 13(2)(f)).

100 The proposed development provides for setbacks to the main part of the building of 6 m to 8.5 m at the ground level, 12 m at the first level and 14 m at the second level. In my view, the proposed setbacks to 157 Frederick Street are generous given the requirements in DCP 27. It would appear from DCP 27 that the upper level setbacks are largely governed by the satisfaction of the solar access requirements for the adjoining property. Given the orientation of the lots and the proposed and existing building forms, I am satisfied that the solar access requirements will be easily met by the proposed development because of the generous setbacks. It is likely that the required amount of solar access could still be achieved with lesser setbacks. The significant setbacks at the upper levels have the added benefit of providing a better relationship and greater compatibility with the adjoining residential context because of greater separation and the stepping of the setbacks with height. In my view, this is far more effective in providing a positive relationship with adjoining residential development than the provision of a 4 m setback to Fredrick Street.

101 The Court was directed to the judgment of Zhang v Canterbury City Council (2001) 115 LGERA 373 where Spigelman CJ (at par 75) stated that the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. His Honour also relevantly stated that a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

102 In this case, cl 1.1 of DCP 27 provides the opportunity to vary the requirements subject to the satisfaction of certain criteria. I am satisfied that it has been shown that the proposed development meets the relevant objectives and planning criteria of DCP 27. In my view, the proposed development satisfies the General Objectives (b) and (h), objective 9(b), objectives 13(a) and (b) and objective 15(a) and as such, strict compliance with the standards in DCP 27 is not required.

Economic impacts
The evidence

103 Mr Leyshon and Mr Stephens agreed that there will be minimal synergies between the site and Bexley town centre because of the distance between the two areas. Mr Leyshon is of the view that some shoppers will patronise both areas as part of a single shopping visit however Mr Stephens considers the likelihood to be low having regard to the emphasis on car-based travel and the likely replication of convenience retail shops.

104 There was also agreement that even though Mr Leyshon or Mr Stephens adopt different populations for their different trade areas, there is scope for additional supermarket floor space to serve either trade area. Mr Leyshon goes as far to say that the area is substantially under serviced with full line supermarkets although Mr Stephens maintains that residents are relatively well served by existing supermarkets in centres adjacent, but not within, the trade area.

105 As Mr Leyshon and Mr Stephens use different methodologies to calculate the available supermarket spending based on their trade areas, they consequently have different conclusions on the impact on the Bexley town centre. Mr Leyshon estimates an impact of -7.2% (-$3.3 million) whereas Mr Stephens estimates in impact of -11.8% (-$4 million). Mr Leyshon does not consider that either impact estimate will materially affect the viability of Bexley town centre. Mr Stephens considers the potential for store closures and relocation of businesses from the Bexley town centre to be high.

106 Mr Leyshon considers the test imposed by cl 15(1)(b) should be read as requiring a material impact on the commercial viability of Bexley town centre. The test of a material effect on the viability of the centre is whether or not it would lose a core retail or commercial function within the centre, which would result in its role in the centres hierarchy being threatened. Mr Leyshon is of the view that this will not occur as a result of the proposed development.

107 Mr Stephens states that the meaning of cl 15(1)(b) should be read in conjunction with the overall intention of DCP 27 and other provisions in the plan. In his opinion, this leads to the conclusion that there should be smaller scale commercial uses on the site. In this context, the reference to detracting from the commercial viability of Bexley town centre should be seen as an intention to limit the scale and type of development for development in the Bexley village area (that is the 3(c) zoned land adjoining the site) compared to the Bexley town centre.

Findings

108 Apart from the general consideration of the likely economic impacts of development in the locality (s 79C(b) of the EPA Act), potential economic impacts are raised by cl 15(1)(b) in DCP 27 where it provides that new development on the site does not detract from the commercial viability of the Bexley and Rockdale town centres. I did not understand there to be any issue by the experts over an unacceptable impact on the Rockdale town centre.

109 The experts disagree on the impact on Bexley town centre based on their interpretation of cl 15(1)(b). As a starting point, cl 15(1)(b) does not relate to individual shops but the town centre. I do not accept that the clause, (because of the use of the word “detract”) can be read so narrowly so as to restrict the use of the site if there was any, no matter how small, impact on an individual shop or groups of shops. For the clause to have any meaning, there must be a quantifiable and more than minimal impact.

110 The threshold test used by Mr Stephens for cl 15(1)(b) is not, in my view, the appropriate test as any reliance on the intent of DCP 27 to limit the size of a development is clearly flawed given the absence of any such requirements in DCP 27 and more importantly in LEP 2000.

111 Mr Leyshon adopts as his threshold test for cl 15(1)(b), a material impact, as do the respondents town planning experts, Mr Beckley and Mr Witherby. As there is general agreement on the material impact threshold test for cl 15(1)(b), I accept it is reasonable in the circumstances.

112 It is clear that the proposed development will have an impact on Bexley town centre. It will provide another focus for commercial activity away from the existing Bexley town centre. This, however must have been contemplated when the site was rezoned to 3(a) without any restrictions on the amount of floor space and uses which would normally apply to 3(a) zoned land. In the absence of any such restrictions, it would be unrealistic to think that the site would be developed with a floor area less than is allowed under the planning controls. Even if a supermarket was not contemplated for the site, a significant amount of retail floor space is still potentially available and would still create another focus for commercial activity away from the existing Bexley town centre.

113 On the basis that the appropriate test in cl 15(1)(b) is to show that there will be a material impact on the commercial viability of the Bexley town centre, I accept the conclusions of Mr Leyshon. While maintaining that there will be an unacceptable impact, Mr Stephens accepts that there is a substantial undersupply of supermarket floor space, even in his adopted trade area, to the point where additional supermarkets could be accommodated.

114 I accept that a potential loss of between $3.3 million and $4 million from the Bexley town centre may create some adjustment to the makeup of the Bexley town centre through the movement and closure of some businesses and there will be other short-term impacts however I agree with Mr Leyshon that any impacts needs to be considered in the long-term rather than the short-term.

115 I also agree with Mr Leyshon that there are a number of core businesses within the Bexley town centre, such as the hotel, RSL Club, Post Office that are likely to be unaffected by the proposed development. The existing IGA supermarket within the Bexley town centre was seen by many of the lay witnesses as the focal point of the centre. This supermarket may potentially suffer a reduced turnover however based on the agreed substantial undersupply of supermarket floor space (even in the smaller catchment advocated by Mr Stephens) it is likely to continue operation. I am not satisfied that the adjustment of some commercial activities in the Bexley town centre through the development of an appropriately zoned site could be seen as having a material impact. It must be remembered that competition between trade competitors is not a relevant planning consideration (Fabcot Pty Ltd v Hawkesbury City Council [1997] NSWLEC 27)

116 The undisputed evidence was that the Bexley town centre was trading well notwithstanding a relatively high vacancy rate for shops. There was some difference of opinion between Mr Leyshon and Mr Stephens on the reason for the vacancy rate that did not necessarily relate to the quantum of floor space.

117 There is also some merit in Mr Leyshon’s argument that a new significant anchor tenant, such as a full line supermarket, will attract additional patrons to the area and not just the site. The amount of retail space (beyond the supermarket) proposed in the development is limited compared to the floor space in the Bexley town centre and while the retail space within the proposed development is likely to be seen as desirable because of the location of a supermarket within the same building, the potential clearly exists for the Bexley town centre to benefit from the existence of the proposed development, even if in the longer term.

118 For the reasons mentioned above and in accordance with cl 15(1)(b) of DCP 27, I find that the proposed development will not detract from the commercial viability of the Bexley town centre.

Traffic, parking and unloading facilities
Forest Road/Frederick Street/Broadford Street intersection

119 Mr Coady and Mr McLaren agreed that if traffic signals are installed at the Forest Road/Frederick Street/Broadford Street intersection, the additional traffic demand on the intersection from the development, will not have an unacceptable effect on intersection performance. The applicant accepted a condition of consent to install traffic signals.

Off street car parking provision

120 The councils DCP requires a total of 212 spaces, being made up of 20 spaces for the residential component and 192 spaces for the retail/commercial component. The proposed development provides a total of 206 spaces or 205 spaces when one space is allocated for a courier parking space. The deficiency is therefore 7 car parking spaces.

121 Mr Coady and Mr McLaren agreed that the deficiency in car parking is not a matter that requires correction because of the likely complementary and dual use of car parking associated with the mixed use nature of the development.

122 I concur with the conclusions of Mr Coady and Mr McLaren.

Unloading facilities for the liquor outlet

123 Mr McLaren raised concerns over the movement of liquor outlet goods from the loading dock to the bottle shop, as it may involve movements of goods through the retail arcade to the lift shared by supermarket customers, bottle shop customers, office users and service to lift for the residential component of the development.

124 Following the amendment of the plans to provide an additional goods lift to service the liquor outlet, Mr McLaren accepted that his concerns have been adequately addressed.

125 Loading facilities for the proposed development are provided from Frederick Street. Four loading docks are provided (excluding the courier loading bay in the basement) with two docks allocated for the supermarket and two docks allocated to the remaining retail and commercial uses. Trucks will enter in a forward direction and when necessary, use an electric turntable to reverse into the appropriate loading dock. When unloading is completed the trucks will leave the loading area onto Frederick Street in a forward direction. An Operation Management Plan (the Plan) will control the operation of the loading facilities. In general, the Plan provides for:

a dedicated loading dock manager to coordinate delivery schedules,
restriction on the number and size of truck deliveries,
complaint management procedures, and
a corrective action plan.

126 Mr McLaren expressed concern over the Plan and how the servicing requirements of each of the retail tenancies, commercial tenancies, bottle shop and residential apartments will be managed on a day-to-day basis.

127 Mr Jamie Milner, a Development Engineer with the council, provided evidence of a conversation with a colleague from Hurstville City Council on the operation of a similar loading facility at a Coles supermarket at West Oatley. He stated that problems associated with the loading dock included drivers crossing double yellow lines when leaving the loading dock and drivers not parking in the designated areas when the loading dock was being used. He further stated that the loading dock had been the subject of at least eight reports to the councils Traffic Committee since, based on his internet inquiries, since its operation although these reports did not necessarily relate to the unacceptable use of the loading dock.

128 Mr Coady maintains that the Plan can operate effectively providing that deliveries to the other uses in the building are subject to the same restrictions as deliveries to the Coles supermarket. This will require close consultation and cooperation with the Coles supermarket manager. There will also need to be a provision in any leases for the retail tenancies, commercial office, liquor store and residential apartments requiring that occupants comply with delivery instructions and arrangements in the Plan.

129 Mr Peter Mitchell, the Senior Project Manager for NSW, Queensland and ACT for Coles also provided evidence. He stated that, in his experience the use of a turntable is acceptable for multiple docks and that turntables have been used in the least two other stores, largely because of limitations on the size of the sites on which they are located. In his opinion, the Plan can satisfactorily address the operation of the loading docks.

130 In considering the issue of whether the plan of management will address the operation of the loading dock, the planning principle in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 states that in considering whether a management plan is appropriate for a particular use and situation, the following questions should be considered:

1. Do the requirements in the management plan relate to the proposed use and complement any conditions of approval?

2. Do the requirements in the management plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case?

3. Can the source of any breaches of the management plan be readily identified to allow for any enforcement action?

4. Do the requirements in the management plan require absolute compliance to achieve an acceptable outcome?

5. Can the people, the subject of the management plan, be reasonably expected to know of its requirements?

6. Is the management plan to be enforced as a condition of consent?

7. Does the management plan contain complaint management procedures?

8. Is there a procedure for updating and changing the management plan including the advertising of any changes?

131 The concerns of Mr McLaren relate to questions 2, 3, 4 and 5 and specifically whether the users of the loading dock can be managed to ensure that there will not be unacceptable overlapping of deliveries and thereby potentially creating traffic impacts in the locality.

132 As I understand, there was no issue between the experts on the number of loading docks provided for the development. Also, that if deliveries were properly organised, sufficient time was available to unload delivery trucks given the number of loading docks and anticipated unloading times.

133 To address the concerns of Mr McLaren, the applicant proposes the following conditions, in addition to or supplementary to the Plan:

the installation of a Traffic Light System for the loading dock to indicate when the loading dock is full or the turntable being used (condition 8),
all loading, unloading and transfer of goods is to be from the loading area (condition 19 and 20),
limitations on the size of vehicles using the loading dock (condition 21),
compliance with the Bexley Village Operation Management Plan (condition 21a),
the appointment of a loading dock manager (condition 21b),
notification of the use of the loading dock for the residential tenancies (condition 21c), and
the provision of priority access to pedestrians on Frederick Street (condition 21e).

134 In considering questions 2, 3, 4 and 5 in Renaldo Plus 3, I am satisfied that based on conditions proposed by the applicant and the contents of the Plan, that:

it would not require delivery drivers to act in an unreasonable manner once they had been made aware of the particular requirements (question 2),
any breach of the proposed conditions of consent can be readily identified because the offending truck can be easily identified (question 3),
absolute compliance would be the appropriate goal however a random or occasional non-compliance that may see a truck queued at the entrance to the loading dock would not necessarily result in unacceptable outcome (question 4), and
delivery drivers could reasonably be expected to know of the specific requirements of the loading facilities through the loading dock manager (question 5).

135 The evidence provided by Mr Milner on the operation of the loading dock at West Oatley did not raise any issue with the operation of a turntable within the loading dock and the reliance on a plan of management, that would suggest that these particular characteristics necessarily create any unacceptable impacts in the local area. The most significant impact identified by Mr Milner was that drivers, when leaving the loading dock in a forward direction, sometimes cross double lines onto the opposite side of the road. In my understanding, this occurrence is the direct result of the drivers of the trucks and not the operation or design of the loading dock, as vehicles can leave the loading dock without crossing on to the wrong side of the road, based on the appropriate turning path diagrams.

136 Ms Lee, Mr Dickson, Mr Kulchar and Mr Porter addressed this issue in part, in a joint report. Some areas of disagreement have been addressed elsewhere in the judgement and agreement was reached on most other issues. The areas of agreement are:

the proposed setback distances and associated planter boxes minimise the potential overlooking to adjoining properties,
the acoustic wall along the eastern side boundary is appropriate,
the landscape treatment adjoining 157 Frederick St is adequate, and
the proposal does not result in adverse impacts to adjacent residential properties.

137 Mr Cooper addressed the issue of noise. He relies on the previous noise assessments undertaken by Bassett Consulting Engineers in 2008. Additional information has been provided for noise associated with the driveway, loading dock, masonry fencing and noise from plant and equipment. The additional information confirmed the conclusions in the Bassett Consulting Engineers report. Mr Cooper notes that the acoustic environment of the area is not one of a pristine residential area but an area that is subject to a significant degree of road traffic noise. For residential properties on Frederick St, in close proximity to the development, the existing acoustic environment would mask the majority of traffic movements in and out of the proposed development. For residential properties further to the east in Frederick Street, the traffic movements will comply with the EPA assessment criteria for collector roads.

138 In his opinion the council's standard noise conditions of consent that incorporate relevant standards and EPA criteria are appropriate and there is no basis for refusal of the subject application on acoustic grounds.

139 In the absence of any contradictory expert evidence, I accept the conclusions of Mr Cooper.

140 Mr Coady and Mr McLaren addressed the additional traffic generated by the proposed development and the likely impact on Frederick Street. They agree that the Frederick Street is appropriately classified as a collector road and while there will be an increase in the level of activity in Frederick Street (and Broadford Street) the maximum environmental capacity of those streets will not be exceeded. There was also agreement between the experts that the proposal will not have an unacceptable effect on the residential amenity of Frederick Street as a consequence of traffic activity from large rigid vehicles. I accept the conclusions of Mr Coady and Mr McLaren on this issue.

Conditions

141 The issue of right turn movements from the loading dock into Frederick Street remained an issue between Mr Coady and Mr McLaren. Mr Coady maintained that right turn movements could be conducted with minimal impact on traffic movements whereas Mr McLaren expressed some concerns that this movement would unacceptably impact on traffic movements. As a compromise, Mr Coady suggested a six-month trial period to assess any impacts of the turning movement (see condition 21d). In my view, this is an appropriate means of dealing with the dispute between the experts.

142 The following conditions remained in dispute between the parties:

143 Condition 59 and 60 - these conditions addresses the operating hours for the proposed loading dock and particularly on Sunday's end Public Holidays. The applicant seeks to use the loading dock from 8 a.m. whereas the council seeks 10 a.m. because of the proximity to the residential properties in Frederick Street. As there was no issue regarding noise raised by Mr Cooper, I accept the applicant’s submission that 8 a.m. is an appropriate time.

144 Condition 69 - this condition requires the payment of a contribution under s94. There was some dispute over the actual amount to be paid based on the amount of credit for existing dwellings. Mr Garry Green gave evidence on behalf of the applicant. Part of the site is owned by Mr Green's family and he provided evidence on the number of individual dwellings based on his experience of having resided at the premises for many years. Mr Green also provided evidence on his understanding of the number of dwellings in the remaining properties that made up the site. Based on his assessment of the number of dwellings, the total contribution was $21,699.48.

145 Mr Cole, for the council, submitted that a search of council's records revealed no approvals for the number of dwellings stated by Mr Green. Based on the council records of the number of dwellings approved on the site, the total contribution is $63,107 43.

146 In the absence of any approvals or records to substantiate the number of dwellings stated by Mr Green, I accept the appropriate contribution is $63,107.43.

Orders

147 The Orders of the Court are:

______________

G T Brown

Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Emily II Investments Pty Ltd v Rockdale City Council

Property: 159 Frederick Street, ROCKDALE NSW 2216, 286A & 290 - 302 Forest Road BEXLEY NSW 2207

Lot B DP 375889, Lot 3 DP 1114882, Lot 4 DP 1114882, Lot A DP 375889, Lot C DP 327795, Lot B DP 327795, Lot A DP 380056, Lot B DP 380056, Lot X DP 33367, Lot Y DP 33367, Lot A DP 327795, Lot 31 DP 1353

Proposal: Demolition of existing structures & construction of 3 storey mixed retail, commercial & residential development including 10 residential units & carparking spaces

The above development is approved subject to the following conditions:

The following conditions restrict the work to the detail provided in the Development Application and are to ensure that the development is complete.

1A The detailed design documentation for the design and signal phasing of the proposed traffic signals at the intersection of Forest Road and Fredrick Street / Broadford Street shall be submitted to and approved by the New South Wales Roads and Traffic Authority.

1B The traffic signals at the intersection of Forest Road and Fredrick Street / Broadford Street shall be installed and implemented in accordance with the approved design documentation prior to issue of an occupation certificate.

1. The term of this consent is limited to a period of five (5) years from the date of approval. The consent will lapse if the development does not commence within this time.

2. The development must be implemented substantially in accordance with the plans listed below, the application form and on any supporting information received with the application, except as may be amended in red on the attached plans and by the following conditions.
Architectural plans prepared by Voorderhake Architects and Dickson Rothschild architects/urban designers:
(a) LE 272-0000 E Title Sheet Issue E – 16.02.09
(b) LE 272-100 E Survey Issue E – 16.02.09
(c) LE 272-1000 E Plan Site Issue E – 16.02.09
(d) LE 272-1100 E Plan Carpark-3 Issue E – 16.02.09
(e) LE 272-1200 E Plan Carpark-2 Issue E – 16.02.09
(f) LE 272-1300 F Plan Carpark-1 Issue F – 15.05.09
(g) LE 272-1400 F Plan Lower Ground Issue F – 15.05.09
(h) LE 272-1500 F Plan Ground Issue F – 15.05.09
(i) LE 272-1600 E Plan Commercial Issue E – 16.02.09
(j) LE 272-1700 E Plan Residential Issue E – 16.02.09
(k) LE 272-1800 E Plan Roof Issue E – 16.02.09
(l) CC 272-2100 C Elevations Issue C – 14.02.09
(m) LE 272-3100 E Sections Issue E – 16.02.09
(n) LE-L001 Street Landscape Treatment Plan Issue A – 03.02.09
(o) LE-L002 Landscape Plan & Section A Issue A – 03.02.09
(p) LE-L003 Panting Image Palette Issue A – 03.02.09
(q) LE-L004 Landscape Plan & Section A, B + C Issue A – 03.02.09
(r) LE 272-4100 E Sun Studies General Issue E – 16.02.09
(s) LE 272-4200 E Sun Studies Neighbour Issue E – 16.02.09
The landscape plan is to be amended prior to issue of the construction certificate as follows:
i. in accordance with paragraph 6 of the Joint Landscape Report prepared by Narelle Sonter and Thomas Kulchar and filed with the Court on 26 March 2009. The note ’90 Waterhousia Hedge’ is to be replaced with the note ‘Waterhousia Floribunda at 5 metre intervals with a double row of Syzigium Australe between the Waterhousia Floribunda at 1.5metre intervals’; and
ii. to include a note requiring that the landscaping adjacent to the loading dock be no greater than 500mm in height at maturity.
The architectural plans are to be amended prior to issue of the construction certificate as follows:
i. the height of the wall on the northern boundary between gridline 4.5 and 7 is not to be higher than 3.5 metres above the finished ground level of the adjoining residential property;
ii. the roof level of the top of the parapet over the vehicular entry ramp adjoining 157 Frederick Street is to be built at no higher than RL 55.250; and
iii. to incorporate the amendments and additional details shown in figures 1, 9, 10, 11 and 12 in appendix A of the joint Urban Design and Town Planning report prepared by Kristy Lee, Nigel Dickson, Thomas Kulchar and Simon Porter, dated 30 March 2009 (Exhibit E).

3. All new building work must be carried out in accordance with the provisions of the Building Code of Australia (BCA).

4. A Construction Certificate must be obtained from Council or an Accredited Certifier prior to any building work commencing.

5. The development must be implemented and all BASIX commitments thereafter maintained in accordance with BASIX Certificate Number 234918M other than superseded by any further amended consent and BASIX certificate.
Note: Clause 145(1)(a1) of the Environmental Planning & Assessment Regulation 2000 provides: A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: -
§ (a1) that the plans and specifications for the building include such matters as each relevant BASIX certificate requires.
Note: Clause 154B(2) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying authority must not issue a final occupation certificate for a BASIX affected building to which this clause applies unless it is satisfied that each of the commitments whose fulfilment it is required to monitor has been fulfilled."
Note: For further information please see

6. A separate development application shall be submitted for the Strata Subdivision.

7. A separate development application shall be submitted for the use of retail and commercial uses on the site other than the supermarket and drive through liquor shop which are approved by this consent.

8. Some forms of signage require separate development consent. Please refer to DCP 29 – Outdoor Advertising and DCP 57 – Exempt and Complying Development for more information.

8a. The Supermarket and liquor shop shall operate between the hours of 7am – 10pm Monday to Sunday.

8b. The Traffic Light System for the Loading Dock shall be installed and make provision for the following separate lights mounted in a clear position next to the Loading Dock roller shutter;
a. A red light activated when the loading dock is full or when the turntable is operating to warn trucks not to wait.
b. A flashing orange light activated when the roller shutter is open to warn pedestrians that trucks are entering/departing the loading dock.

8c. The acoustic screen constructed adjacent to the driveway for the carpark shall be constructed of transparent materials if greater than 500mm high to ensure compliance with AS2890.1:2004.

9. The residential units shall not be used for any commercial, industrial or business purposes without prior development consent.

10. Balconies shall not be enclosed at any future time.

11. This approval is not to be construed as permission to erect any structure on or near a boundary contrary to the provisions of the Dividing Fences Act.

12. Excavation, filling of the site (with the exception of the area immediately under the building envelope), or construction of retaining walls are not permitted unless shown on the approved plans and authorised by a subsequent construction certificate.

13. Mail boxes must be installed along the street frontage of the property boundary in accordance with Australia Post Guidelines. Prominent house numbers are to be displayed, with a minimum number size of 150 mm in height for each number and letter in the alphabet.

14. A street/shop number shall be prominently displayed at the front of the development. The street number shall be a minimum of 120 mm in height to assist emergency services and visitors to locate the property. The numbering shall be erected prior to commencement of operations.

15. As malicious damage (graffiti) is often an offence committed at such developments, strong consideration is to be given to the use of graffiti resistant materials, particularly on fences and all ground floor areas. Alternatively a malicious damage (graffiti) plan is to be included in the Plan of Management (POM) addressed under Condition 94.

The following conditions must be completed prior to the commencement of works.

94a. Prior to the commencement of works a permit shall be obtained from Council pursuant to Section 138 of the Roads Act 1993. In order to issue the permit, details shall be submitted to Council for assessment and approval to in relation to the following:

i) The construction of a new kerb inlet pit in Frederick Street on the alignment of the existing 450mm diameter RCP.
ii) The construction of paving and other streetscape works in Frederick Street and Forest Road.

iii) The construction of awnings over the Frederick Street and Forest Road footpaths.

95. Council's warning sign for soil and water management must be displayed on the most prominent point on the building site, visible to both the street and site workers. The sign shall be erected prior to commencement of works and shall be displayed throughout construction.

96. Soil and sedimentation controls are to be put in place prior to commencement of any work on site. The controls are to be maintained in effective working order during construction.
The controls are to be designed and installed in accordance with the Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Regional Organisation of Council. Copies of the guidelines are available from Council

97. A Soil and Water Management Plan shall be prepared in accordance with Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Region Organisation of Councils. A copy of the plan must be submitted to Council. The Plan must include details of the erosion and sediment controls to be installed on the building site. A copy of the Soil and Water Management Plan must be kept on-site at all times and made available on request.
Sediment control devices shall not be located beneath the driplines of trees, which are to be retained.

98. A sign must be erected at the front boundary of the property clearly indicating the Development Approval Number, description of work, builder's name, licence number and house number before commencement of work. If owner/builder, the Owner/Builder Permit Number must be displayed.

99. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out:
i) stating that unauthorised entry to the work site is prohibited, and
ii) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.
Any such sign is to be removed when the work has been completed.
This condition does not apply to:
iii) building work carried out inside an existing building or
iv) 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.

100. Prior to the commencement of work, Tree Protection Zones shall be established with protective fences at least 1.2 metres high erected around each tree Camellia street tree. The protective fences shall consist of parawebbing or chain wire mesh mounted on star pickets or similar metal posts, shall be in place prior to the commencement of any work on site and remain until the completion of all building and hard landscape construction. Excavations for services, waste bins, storage of materials and equipment, site residue, site sheds, vehicle access or cleaning of tools and equipment are not permitted within the Tree Protection Zones at any time

101. Prior to the commencement of any work on site, a sign shall be placed in a prominent position on each protective fence identifying the area as a Tree Protection Zone and prohibiting vehicle access, waste bins, storage of materials and equipment, site residue and excavations within the fenced off area

102. The site shall be secured by a 1500 mm (minimum) high temporary fence for the duration of the work. Gates shall be provided at the opening points.

103. Where construction/building works require the use of a public place including a road or footpath, approval under Section 68 of the Local Government act 1993 for a Barricade Permit is to be obtained from Council prior to commencement of work. Details of the barricade construction, area of enclosure and period of work are required to be submitted to the satisfaction of Council.

104. When the work involved in the erection or demolition of a building:
i) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or
ii) building involves the enclosure of a public place,
a hoarding or fence shall be erected between the work site and the public place.
When necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.
Any such hoarding, fence or awning is to be removed when the work has been completed.
The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

105. Toilet facilities are to be provided, at or in the vicinity of the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site and the toilet facilities must be designed and installed in accordance with the provisions of clause 781 of the Environmental Planning and Assessment Regulation 1994, and be installed before any other work is commenced.

106. A system of fire and smoke alarms and/or detection system (as applicable) shall be provided throughout the building. Details shall be submitted for assessment and approval prior to commencement of works

107. Consultation with Energy Australia is essential prior to commencement of work. Failure to notify Energy Australia may involve unnecessary expense in circumstances such as:
i) where the point of connection and the meter board has been located in positions other than those selected by Energy Australia or
ii) where the erection of gates or fences has restricted access to metering equipment.

108. Where clearances to any existing overhead High Voltage mains are affected, the builder shall make arrangements with Energy Australia for any necessary modification to the electrical network in question. These works shall be at the applicant’s expense. Energy Australia’s requirements under Section 49 Part 1 of the Electricity Supply Act 1995 shall be met prior to commencement of works or as agreed with Energy Australia.

The following conditions must be complied with during demolition, excavation and or construction.

109. A copy of the Construction Certificate and the approved plans and specifications must be kept on the site at all times and be available to Council officers upon request.

110. Hours of construction shall be confined to between 7 am and 6.30 pm Mondays to Fridays, inclusive, and between 8 am and 3.30 pm Saturdays with no work being carried out on Sundays and all public holidays.

111. For Class 2, 3 and 4 structures, the building works are to be inspected during construction, by the principal certifying authority (or other suitably qualified person on behalf of the principal certifying authority) to monitor compliance with Council's approval and the relevant standards of construction encompassing the following stages:
i) at the commencement of the building work, and
ii) prior to covering waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within a building, and
iii) prior to covering any stormwater drainage connections, and
iv) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
Documentary evidence of compliance with Council's approval and relevant standards of construction is to be obtained prior to proceeding to the subsequent stages of construction and copies of the documentary evidence are to be maintained by the principal certifying authority and be made available to Council officers upon request.

112. For Class 5-9 structures, the building works are to be inspected during construction, by the principal certifying authority (or other suitably qualified person on behalf of the principal certifying authority) to monitor compliance with Council's approval and the relevant standards of construction encompassing the following stages:
i) at the commencement of the building work, and
ii) prior to covering any stormwater drainage connections, and
iii) after the building work has been completed and prior to any occupation certificate being issued in relation to the building.
Documentary evidence of compliance with Council's approval and relevant standards of construction is to be obtained prior to proceeding to the subsequent stages of construction and copies of the documentary evidence are to be maintained by the principal certifying authority and be made available to Council officers upon request.

113. Upon inspection of each stage of construction, the Principal Certifying Authority (or other suitably qualified person on behalf of the Principal Certifying Authority) is also required to ensure that adequate provisions are made for the following measures (as applicable), to ensure compliance with the terms of Council's approval:
§ Sediment control measures
§ Provision of perimeter fences or hoardings for public safety and restricted access to building sites.
§ Maintenance of the public place free from unauthorised materials, waste containers or other obstructions.

114. Ground water shall only be pumped or drained to Council’s stormwater system if the water is clean and unpolluted. The standard used to determine the acceptability of the quality of the water is the ‘Australian and New Zealand Environment and Conservation Council - Australian Water Quality Guidelines for Fresh and Marine Waters 1992’.
Note: Prior treatment and/or filtration of the water may be necessary to achieve acceptable quality, including a non-filterable residue not exceeding 50 milligrams/litre or small quantities may be removed by the services of a Licenced Liquid Waste Transporter. It is an offence under the provisions of the Protection of the Environment Operations Act 1997 to pollute the stormwater system.

115. Demolition operations shall not be conducted on the roadway or public footway or any other locations, which could lead to the discharge of materials into the stormwater drainage system.

116. All waste generated on site shall be disposed of in accordance with the submitted Waste Management Plan

117. A Registered Surveyor’s check survey certificate or compliance certificate shall be forwarded to the certifying authority detailing compliance with Council's approval at the following stage/s of construction:
i) After excavation work for the footings, but prior to pouring of concrete, showing the area of the land, building and boundary setbacks.
ii) Prior to construction of each floor level showing the area of the land, building and boundary setbacks and verifying that the building is being constructed at the approved level.
iii) Prior to fixing of roof cladding verifying the eave, gutter setback is not less than that approved and that the building has been constructed at the approved levels.
iv) On completion of the building showing the area of the land, the position of the building and boundary setbacks and verifying that the building has been constructed at the approved levels.
v) On completion of the drainage works (comprising the drainage pipeline, pits, overland flow paths, on-site detention or retention system, and other relevant works) verifying that the drainage has been constructed to the approved levels, accompanied by a plan showing sizes and reduced levels of the elements that comprise the works.

118. All excavation and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards and guarded and protected to prevent them from being dangerous to life or property.

119. When excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building or an adjoining allotment of land, you shall.
i) preserve and protect the building from damage and
ii) underpin and support the building in an approved manner, if necessary and
iii) give notice of intention to excavate below the level of the base of the footings of a building on an adjoining allotment of land to the owner at least 7 days prior to excavation and furnish particulars of the excavation to the owner of the building being erected or demolished.
Note: The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land.
In this conditions allotment of land includes a public road and any other public place.

120. When soil conditions require it:
i) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided, and
ii) adequate provision shall be made for drainage.

121. Wind blown dust from stockpile and construction activities shall be minimised by one or more of the following methods:
i) spraying water in dry windy weather
ii) cover stockpiles
iii) fabric fences

122. Works shall not encroach onto or over adjoining properties, including retaining walls, fill material or other similar works. Soil shall not be lost from adjoining sites due to construction techniques employed on the subject site.

123. Works shall not encroach onto or over adjoining properties, including retaining walls, fill material or other similar works. Soil shall not be lost from adjoining sites due to construction techniques employed on the subject site.

124. All contractors shall comply with the following during all stages of demolition and construction:
§ A Waste Container on Public Road Reserve Permit must be obtained prior to the placement of any waste container or skip bin in the road reserve (i.e. road or footpath or nature strip). Where a waste container or skip bin is placed in the road reserve without first obtaining a permit, the Council’s fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council’s Customer Service Centre.
§ A Road Opening Permit must be obtained prior to any excavation in the road reserve (i.e. road or footpath or nature strip). Where excavation is carried out on the road reserve without first obtaining a permit, the Council’s fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council’s Customer Service Centre.
§ A Hoarding Permit must be obtained prior to the erection of any hoarding (Class A or Class B) in the road reserve (i.e. road or footpath or nature strip). Where a hoarding is erected in the road reserve without first obtaining a permit, the Council’s fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council’s Customer Service Centre.
§ A Crane Permit must be obtained from Council prior to the operation of any activity involving the swinging or hoisting of goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway. Permits can be obtained from Council’s Customer Service Centre.
§ A Permit to Dewater or Pump Out a site must be obtained prior to the discharge of pumped water into the road reserve, which includes Council stormwater pits and the kerb and gutter. Permits can be obtained from Council’s Customer Service Centre

125. The existing dwelling/structure shall be demolished and removed from the site prior to works commencing. All demolition work shall be carried out in accordance with Council's Demolition and Erection of Buildings Code, with AS2601 – 2001: The Demolition of Structures and with the requirements of the WorkCover Authority of NSW.

126. Stockpiles are not permitted to be stored on Council property (including nature strip) unless prior approval has been granted. In addition stockpiles of topsoil, sand, aggregate, soil or other material shall be stored clear of any drainage line or easement, natural watercourse, kerb or road surface

127. Building and demolition operations such as brickcutting, washing tools or paint brushes, and mixing mortar shall not be performed on the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system

128. All disturbed areas shall be stabilised against erosion within 14 days of completion, and prior to removal of sediment controls

129. Stormwater from roof areas shall be linked via a temporary downpipe to an approved stormwater disposal system immediately after completion of the roof area

130. Building, demolition and construction works not to cause stormwater pollution and being carried out in accordance with Section 2.8 of Council's Stormwater Pollution Control Code 1993. Pollutants such as concrete slurry, clay and soil shall not be washed from vehicles onto roadways, footways or into the stormwater system. Drains, gutters, roadways and access ways shall be maintained free of sediment. Where required, gutters and roadways shall be swept regularly to maintain them free from sediment.
Note: The Applicant may be liable to prosecution under the Environmental Planning and Assessment Act 1979 for a breach of an approval condition, or under the Protection of the Environment Operations Act 1997, if its employees, agents or sub-contractors allow sediment, including soil, excavated material, building materials, or other materials to be pumped, drained or allowed to flow to the street, stormwater pipes or waterways. The Applicant shall ensure that its employees, agents or sub-contractors understand and maintain sediment control measures

131. Owners/Applicants/Builders and demolishers are required to confine access to building and demolition sites to no more than two 3m driveways, and provide a footpath protection pad over Council’s footpath at these points (see attached detail). Within the site, provision of a minimum of 100mm coarse crushed rock is to be provided for a minimum length of 2 metres to remove mud from the tyres of construction vehicles.
An all weather drive system or a vehicle wheel wash, cattle grid, wheel shaker or other appropriate device, shall be installed prior to commencement of any site works or activities, to prevent mud and dirt leaving the site and being deposited on the street. Vehicular access is to be controlled so as to prevent tracking of sediment onto adjoining roadways, particularly during wet weather or when the site is muddy. Where any sediment is deposited on roadways it is to be removed by means other than washing and disposed of appropriately.
In addition builders / demolishers are required to erect a 1.5m high fence along the whole of the street alignment other than at the two openings. Such protection work, including fences, is to be constructed, positioned and maintained in a safe condition to the satisfaction of the Principal Certifying Authority, prior to the demolition of the existing structures and commencement of building operations

132. Existing site and/or street trees shall be adequately protected from damage during operations.

133. Trees located within adjoining properties or Council’s nature strip shall not be removed or pruned without the written consent of Council in the form of a Permit issued under Council’s Tree Preservation Order

The following conditions must be complied with prior to issue of the Occupation Certificate or Commencement of Use.

134. An Occupation Certificate shall be obtained in relation to the approved works prior to any use or occupation of the building.

135. Appropriate signage and tactile information indicating accessible facilities shall be provided at the main entrance directory, or wherever directional signage such as lifts or building directories or information is provided to those buildings where access and facilities for people with disabilities has been provided. Such signage shall have regard to the provisions of AS1428.1 and AS1428.2.

136. Tactile differentiation on floor surfaces indicating change of gradient shall be provided to those buildings where access and facilities for people with disabilities has been provided. This includes the external parts of the building, eg. access walkways and ramps. Such differentiation shall have regard to the provisions of AS1428.4.

137. Where Council's park/reserve is damaged as a result of building work or vehicular building traffic, this area shall be restored by Council at the applicant's expense. Repairs shall be completed prior to the issue of the Occupation Certificate

138. All excess excavated material, demolition material, vegetative matter and builder’s rubbish shall be removed to the Waste Disposal Depot or the Regional Tip prior to final inspection.
Note: Burning on site is prohibited.

139. Ground level surfaces are to be treated with anti-graffiti coating to minimise the potential of defacement. In addition, any graffiti evident on the exterior facades and visible from a public place shall be removed forthwith.

140. All landscape works are to be carried out in accordance with the approved landscape plans. The landscaping is to be maintained to the approved standard at all times.

141. All works within the road reserve, which are subject to approval pursuant to Section 138 of the Roads Act 1993, shall be completed and accepted by council

142. The vehicular entrances of the development shall be signposted at the Frederick Street elevation, in order to clearly distinguish the entry and exit points for the development, and the loading bay entry point. Complementary signage shall be provided within the development to clearly distinguish the vehicle exit and exit route.

143. Vehicles shall enter and exit the site in a forward direction at all times. A plaque with minimum dimensions 300mm x 200mm shall be permanently fixed to the inside skin of the front fence, or where there is no front fence a prominent place approved by the Principal Certifying Authority, stating the following: “Vehicle shall enter and exit the site in a forward direction at all times”.

144. Prior to completion of the building works, a full width vehicular entry is to be constructed to service the property. Any obsolete vehicular entries are to be removed and reconstructed with kerb and gutter. This work may be done using either a Council quote or a private contractor. There are specific requirements for approval of private contractors

145. The width of the driveway for the basement car park and width of the loading bay access driveway shall be in accordance with the dimensions as indicated on approved plans .

146. Any gate or roller door erected to ensure security for the basement shall be located in order to permit the queuing of two (2) vehicles when waiting to enter the basement garage.

147. Off-street car spaces shall be provided in accordance with the approved plan and shall be sealed and linemarked to Council's satisfaction. The pavement of all car parking spaces, manoeuvring areas and internal driveways shall comply with Australian Standard AS3727 – Guide to Residential Pavements

148. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation.
Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section of the web site 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 Section 73 Certificate must be submitted to the Principal Certifying Authority prior to occupation of the development

149. Prior to occupation, a registered surveyor shall certify that the driveway(s) over the footpath and within the property have been constructed in accordance with the approved driveway profile(s). The certification shall be based on a survey of the completed works. A copy of the certificate and a works-as-executed driveway profile shall be provided to Council if Council is not the Principal Certifying Authority.

150. Where the installation of electricity conduits is required in the footway, the builder shall install the conduits within the footway across the frontage/s of the development site, to EnergyAustralia’s specifications. EnergyAustralia will supply the conduits at no charge. A Road Opening Permit must be obtained from Council prior to the installation of the conduits. The builder is responsible for compaction of the trench and restoration of the footway in accordance with Council direction. A Compliance Certificate from Energy Australia shall be obtained prior to the issue of the Occupation Certificate.

151. An appropriately qualified Noise Consultant is to certify that Australian Standard 2021- 2000 Acoustic - Aircraft Noise Intrusion has been met before an occupation certificate will be issued.

152. Testing and evaluation of the building insulationis to be carried out at post construction stage by a suitably qualified acoustical engineer to showcompliance with Conditions 33 and 34 A report is to be submitted to the Principal Certifying authority prior to the issue of the Occupation Certificate.

154. Acoustic compliance testing shall be conducted 6 months after occupation of the commercial component of the development to ascertain compliance with condition 62. Such compliance testing shall be conducted by an accredited acoustic engineer/consultant whose firm is independent of any acoustic consultants involved in teh development application or supervision during construction. The results of the compliance testing shall be submitted to Council within 21 days of such testing. Any non-compliance shall be corrected within 30 days and the development re-tested and a report provided to Council wihtin 10 days of such testing.

155. A certificate is to be provided to Council that all wet areas have been effectively waterproofed (prior to tiling) in accordance with AS3740 and the product manufacturer's recommendations.

156. A Landscape Architect shall provide a report to the certifying authority (with a copy provided to Council, if Council is not the principal certifying authority) stating that the landscape works have been carried out in accordance with the approved plans and documentation.

157. Prior to occupation or use of the premises, a qualified mechanical engineer shall certify that the mechanical ventilation/air conditioning system complies in all respects with the requirements of Australian Standard 1668, Part 1 & 2.

158. Prior to occupation a Chartered Professional Engineer shall certify that the stormwater system has been constructed in accordance with the approved plans and as required by Council’s DCP 78 - Stormwater Management. The certificate shall be in the form specified in DCP 78 and include an evaluation of the completed drainage works. A works-as-executed drainage plan shall be prepared by a registered surveyor based on a survey of the completed works. A copy of the certificate and works-as-executed plan(s) shall be supplied to the Principal Certifying Authority. A copy shall be provided to Council if Council is not the Principal Certifying Authority

159. A positive covenant pursuant to the Conveyancing Act 1919 shall be created on the title of the lots that contain the stormwater detention facility to provide for the maintenance of the detention facility.

160. The drainage system shall be constructed in accordance with the approved drainage plans and any amendments in red. All stormwater drainage plumbing work shall comply with the NSW Code of Practice: Plumbing and Drainage and Australian Standard AS3500

161. The owner of the premises shall inform Sydney Water that a Rainwater tank has been installed in accordance with applicable requirements of Sydney Water

162. The overflow from the rainwater tank shall be directed to the storm water system.

163. All plumbing work for the installation and reuse of rainwater shall comply with the NSW Code of Practice: Plumbing and Drainage and be installed in accordance with Sydney Water “Guidelines for rainwater tanks on residential properties.

164. A first flush device shall be installed to reduce the amount of dust, bird faeces, leaves and other matter entering the rainwater tank.

165. Construction related activities must not take place on the roadway without Council approval.
Short-term activities (including operating plant, materials delivery) that reduce parking spaces, affect access to a particular route or prevent or restrict the passage of vehicles along the road must not occur without a valid Temporary Roadside Closure Permit.
Activities involving occupation of the parking lane for durations longer than allowed under a Temporary Roadside Closure Permit require a Construction Zone Permit and must not occur prior to the erection of Construction Zone signs by the RTA.
Permit application forms should be lodged at Council's Customer Service Centre allowing sufficient time for evaluation. An information package is available on request.

166. Where applicable, the following works will be required to be undertaken in the road reserve at the applicant's expense:

i) construction of a new fully constructed concrete vehicular entrance/s;
ii) removal of the existing concrete vehicular entrance/s, and/or kerb laybacks which will no longer be required;

iii) reconstruction of selected areas of the existing concrete Footpath/vehicular entrances and/or kerb and gutter

167. In addition to the works in the road reserve listed above, the following modification and/or improvement works to Council’s road and drainage infrastructure will be required to be undertaken at the applicant’s expense:
i) The construction of a new kerb inlet pit in Frederick Street on the alignment of the existing 450mm diameter RCP.
ii) The construction of paving and other streetscape works in Frederick Street (limited to the area immediately in front of 159 Frederick Street) and Forest Road (limited to the area immediately in front of 286A, 288, 290, 292, 294, 296, 298, 300 & 302 Forest Road).
Note: Detailed plans of the works are required to be submitted to Council for assessment and approval pursuant to Section 138 of the Roads Act 1993, prior to the issue of the Construction Certificate.

168. All footpath, or road and drainage modification and/or improvement works to be undertaken in the road reserve shall be undertaken by Council, or by a Private Licensed Contractor subject to the submission and approval of a Private Contractor Permit, together with payment of all inspection fees. An estimate of the cost to have these works constructed by Council may be obtained by contacting Council on 9562 1670. The cost of conducting these works will be deducted from the Footpath Reserve Restoration Deposit, or if this is insufficient the balance of the cost will be due for payment to Council upon completion of the work.

169. The following details shall be submitted to Council for assessment and approval pursuant to Section 138 of the Roads Act 1993, in relation to the awnings over Forest Road and Frederick Street:
i) Detailed design plans and specifications, including structural details; and
ii) Design certificate.
The awning shall be designed by a Chartered Professional Engineer (Structural). Note: Awnings are required to be set back a minimum of 600 mm from the kerb face and be a minimum height of 2.4 metres above the footpath level. Drainage from the awning shall be connected to the stormwater system for the development.
Following completion of the installation of the awning a certificate from a Chartered Professional Engineer (Structural) shall be submitted to Council stating that the awning has been constructed in accordance with the design plans and specifications.

170. Any driveway works to be undertaken in the footpath reserve by a private contractor requires an “Application for Consideration by a Private Contractor” to be submitted to Council together with payment of the application fee. Works within the footpath reserve must not start until the application has been approved by Council.

171. All works associated with the development shall be at no cost to the RTA.

172. Subject to the approval of the Rockdale Local Traffic Committee, the bus zone on the Frederick Street frontage of the site will be relocated to a position determined by the Committee. The cost associated with removal of the existing signage and installation of the new signage will be borne by the applicant.

173. “No Parking” restrictions are required to be installed along Frederick Street for the full frontage of the development site, subject to the approval of the Rockdale Traffic Committee.

174. All traffic control during construction must be carried out by accredited RTA approved traffic controllers.

175. The developer is to arrange with the RTA’s Transport Management Centre (TMC) for any required road occupancy license during construction and if the operation of the pedestrian signals on Forest Road will be affected.

176. The existing Bus Zone fronting the site on Forest Road is to remain, and the remaining frontage of Forest Road is to be signposted ‘No Stopping’.

177. Existing AM and PM clearway restrictions shall apply to the development frontage at all times.

178. A work zone will not be permitted on Forest Road

179. All works subject to design approval by the RTA shall be completed in accordance with RTA conditions and RTA agreements.

______________________

G T Brown
Commissioner of the Court

ljr

CITATION:	Emily II Investments v Rockdale City Council and anor [2009] NSWLEC 1229
PARTIES:	APPLICANT Emily II Investments Pty Limited FIRST RESPONDENT Rockdale City Council SECOND RESPONDENT Bexley Chamber of Commerce
FILE NUMBER(S):	10378 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- demolition of all existing improvements and the construction of a mixed retail, commercial and residential development - permissibility of the proposed development - inconsistency with the relevant zone and development control plan objectives - impacts on streetscape and character of the area - unacceptable amenity impacts on adjoining and nearby residential properties - inconsistency with the established retail hierarchy - impact on the existing commercial centres of Bexley and Rockdale
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Interpretation Act 1987 Rockdale Local Environmental Plan 2000 State Environmental Planning Policy No 1 – Development Standards
CASES CITED:	Maryland Development Co Pty Ltd v Penrith City Council 115 LGERA 75. Friends of Pryor Park Incorporated v Ryde Council [1995] NSWLEC 160 Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 Wehbe v Pittwater Council [2007] 156 LGERA 446 Zhang v Canterbury City Council (2001) 115 LGERA 373 Fabcot Pty Ltd v Hawkesbury City Council [1997] NSWLEC 27 Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315
DATES OF HEARING:	12, 13, 14, 15 May 2009
DATE OF JUDGMENT:	10 July 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen SC with Mr M Staunton, barrister SOLICITORS Gadens Lawyers FIRST RESPONDENT Mr J Cole, solicitor SOLICITORS HWL Ebsworth SECOND RESPONDENT Mr C Gough, solicitor SOLICITORS Storey and Gough

1A	The detailed design documentation for the design and signal phasing of the proposed traffic signals at the intersection of Forest Road and Fredrick Street / Broadford Street shall be submitted to and approved by the New South Wales Roads and Traffic Authority.
1B	The traffic signals at the intersection of Forest Road and Fredrick Street / Broadford Street shall be installed and implemented in accordance with the approved design documentation prior to issue of an occupation certificate.
1.	The term of this consent is limited to a period of five (5) years from the date of approval. The consent will lapse if the development does not commence within this time.
2.	The development must be implemented substantially in accordance with the plans listed below, the application form and on any supporting information received with the application, except as may be amended in red on the attached plans and by the following conditions. Architectural plans prepared by Voorderhake Architects and Dickson Rothschild architects/urban designers: (a) LE 272-0000 E Title Sheet Issue E – 16.02.09 (b) LE 272-100 E Survey Issue E – 16.02.09 (c) LE 272-1000 E Plan Site Issue E – 16.02.09 (d) LE 272-1100 E Plan Carpark-3 Issue E – 16.02.09 (e) LE 272-1200 E Plan Carpark-2 Issue E – 16.02.09 (f) LE 272-1300 F Plan Carpark-1 Issue F – 15.05.09 (g) LE 272-1400 F Plan Lower Ground Issue F – 15.05.09 (h) LE 272-1500 F Plan Ground Issue F – 15.05.09 (i) LE 272-1600 E Plan Commercial Issue E – 16.02.09 (j) LE 272-1700 E Plan Residential Issue E – 16.02.09 (k) LE 272-1800 E Plan Roof Issue E – 16.02.09 (l) CC 272-2100 C Elevations Issue C – 14.02.09 (m) LE 272-3100 E Sections Issue E – 16.02.09 (n) LE-L001 Street Landscape Treatment Plan Issue A – 03.02.09 (o) LE-L002 Landscape Plan & Section A Issue A – 03.02.09 (p) LE-L003 Panting Image Palette Issue A – 03.02.09 (q) LE-L004 Landscape Plan & Section A, B + C Issue A – 03.02.09 (r) LE 272-4100 E Sun Studies General Issue E – 16.02.09 (s) LE 272-4200 E Sun Studies Neighbour Issue E – 16.02.09 The landscape plan is to be amended prior to issue of the construction certificate as follows: i. in accordance with paragraph 6 of the Joint Landscape Report prepared by Narelle Sonter and Thomas Kulchar and filed with the Court on 26 March 2009. The note ’90 Waterhousia Hedge’ is to be replaced with the note ‘Waterhousia Floribunda at 5 metre intervals with a double row of Syzigium Australe between the Waterhousia Floribunda at 1.5metre intervals’; and ii. to include a note requiring that the landscaping adjacent to the loading dock be no greater than 500mm in height at maturity. The architectural plans are to be amended prior to issue of the construction certificate as follows: i. the height of the wall on the northern boundary between gridline 4.5 and 7 is not to be higher than 3.5 metres above the finished ground level of the adjoining residential property; ii. the roof level of the top of the parapet over the vehicular entry ramp adjoining 157 Frederick Street is to be built at no higher than RL 55.250; and iii. to incorporate the amendments and additional details shown in figures 1, 9, 10, 11 and 12 in appendix A of the joint Urban Design and Town Planning report prepared by Kristy Lee, Nigel Dickson, Thomas Kulchar and Simon Porter, dated 30 March 2009 (Exhibit E).
3.	All new building work must be carried out in accordance with the provisions of the Building Code of Australia (BCA).
4.	A Construction Certificate must be obtained from Council or an Accredited Certifier prior to any building work commencing.
5.	The development must be implemented and all BASIX commitments thereafter maintained in accordance with BASIX Certificate Number 234918M other than superseded by any further amended consent and BASIX certificate. Note: Clause 145(1)(a1) of the Environmental Planning & Assessment Regulation 2000 provides: A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: - § (a1) that the plans and specifications for the building include such matters as each relevant BASIX certificate requires. Note: Clause 154B(2) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying authority must not issue a final occupation certificate for a BASIX affected building to which this clause applies unless it is satisfied that each of the commitments whose fulfilment it is required to monitor has been fulfilled." Note: For further information please see
6.	A separate development application shall be submitted for the Strata Subdivision.
7.	A separate development application shall be submitted for the use of retail and commercial uses on the site other than the supermarket and drive through liquor shop which are approved by this consent.
8.	Some forms of signage require separate development consent. Please refer to DCP 29 – Outdoor Advertising and DCP 57 – Exempt and Complying Development for more information.
8a.	The Supermarket and liquor shop shall operate between the hours of 7am – 10pm Monday to Sunday.
8b.	The Traffic Light System for the Loading Dock shall be installed and make provision for the following separate lights mounted in a clear position next to the Loading Dock roller shutter; a. A red light activated when the loading dock is full or when the turntable is operating to warn trucks not to wait. b. A flashing orange light activated when the roller shutter is open to warn pedestrians that trucks are entering/departing the loading dock.
8c.	The acoustic screen constructed adjacent to the driveway for the carpark shall be constructed of transparent materials if greater than 500mm high to ensure compliance with AS2890.1:2004.
9.	The residential units shall not be used for any commercial, industrial or business purposes without prior development consent.
10.	Balconies shall not be enclosed at any future time.
11.	This approval is not to be construed as permission to erect any structure on or near a boundary contrary to the provisions of the Dividing Fences Act.
12.	Excavation, filling of the site (with the exception of the area immediately under the building envelope), or construction of retaining walls are not permitted unless shown on the approved plans and authorised by a subsequent construction certificate.
13.	Mail boxes must be installed along the street frontage of the property boundary in accordance with Australia Post Guidelines. Prominent house numbers are to be displayed, with a minimum number size of 150 mm in height for each number and letter in the alphabet.
14.	A street/shop number shall be prominently displayed at the front of the development. The street number shall be a minimum of 120 mm in height to assist emergency services and visitors to locate the property. The numbering shall be erected prior to commencement of operations.
15.	As malicious damage (graffiti) is often an offence committed at such developments, strong consideration is to be given to the use of graffiti resistant materials, particularly on fences and all ground floor areas. Alternatively a malicious damage (graffiti) plan is to be included in the Plan of Management (POM) addressed under Condition 94.

94a.	Prior to the commencement of works a permit shall be obtained from Council pursuant to Section 138 of the Roads Act 1993. In order to issue the permit, details shall be submitted to Council for assessment and approval to in relation to the following: i) The construction of a new kerb inlet pit in Frederick Street on the alignment of the existing 450mm diameter RCP. ii) The construction of paving and other streetscape works in Frederick Street and Forest Road. iii) The construction of awnings over the Frederick Street and Forest Road footpaths.
95.	Council's warning sign for soil and water management must be displayed on the most prominent point on the building site, visible to both the street and site workers. The sign shall be erected prior to commencement of works and shall be displayed throughout construction.
96.	Soil and sedimentation controls are to be put in place prior to commencement of any work on site. The controls are to be maintained in effective working order during construction. The controls are to be designed and installed in accordance with the Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Regional Organisation of Council. Copies of the guidelines are available from Council
97.	A Soil and Water Management Plan shall be prepared in accordance with Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Region Organisation of Councils. A copy of the plan must be submitted to Council. The Plan must include details of the erosion and sediment controls to be installed on the building site. A copy of the Soil and Water Management Plan must be kept on-site at all times and made available on request. Sediment control devices shall not be located beneath the driplines of trees, which are to be retained.
98.	A sign must be erected at the front boundary of the property clearly indicating the Development Approval Number, description of work, builder's name, licence number and house number before commencement of work. If owner/builder, the Owner/Builder Permit Number must be displayed.
99.	A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: i) stating that unauthorised entry to the work site is prohibited, and ii) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. Any such sign is to be removed when the work has been completed. This condition does not apply to: iii) building work carried out inside an existing building or iv) 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.
100.	Prior to the commencement of work, Tree Protection Zones shall be established with protective fences at least 1.2 metres high erected around each tree Camellia street tree. The protective fences shall consist of parawebbing or chain wire mesh mounted on star pickets or similar metal posts, shall be in place prior to the commencement of any work on site and remain until the completion of all building and hard landscape construction. Excavations for services, waste bins, storage of materials and equipment, site residue, site sheds, vehicle access or cleaning of tools and equipment are not permitted within the Tree Protection Zones at any time
101.	Prior to the commencement of any work on site, a sign shall be placed in a prominent position on each protective fence identifying the area as a Tree Protection Zone and prohibiting vehicle access, waste bins, storage of materials and equipment, site residue and excavations within the fenced off area
102.	The site shall be secured by a 1500 mm (minimum) high temporary fence for the duration of the work. Gates shall be provided at the opening points.
103.	Where construction/building works require the use of a public place including a road or footpath, approval under Section 68 of the Local Government act 1993 for a Barricade Permit is to be obtained from Council prior to commencement of work. Details of the barricade construction, area of enclosure and period of work are required to be submitted to the satisfaction of Council.
104.	When the work involved in the erection or demolition of a building: i) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or ii) building involves the enclosure of a public place, a hoarding or fence shall be erected between the work site and the public place. When necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place. Any such hoarding, fence or awning is to be removed when the work has been completed. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.
105.	Toilet facilities are to be provided, at or in the vicinity of the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site and the toilet facilities must be designed and installed in accordance with the provisions of clause 781 of the Environmental Planning and Assessment Regulation 1994, and be installed before any other work is commenced.
106.	A system of fire and smoke alarms and/or detection system (as applicable) shall be provided throughout the building. Details shall be submitted for assessment and approval prior to commencement of works
107.	Consultation with Energy Australia is essential prior to commencement of work. Failure to notify Energy Australia may involve unnecessary expense in circumstances such as: i) where the point of connection and the meter board has been located in positions other than those selected by Energy Australia or ii) where the erection of gates or fences has restricted access to metering equipment.
108.	Where clearances to any existing overhead High Voltage mains are affected, the builder shall make arrangements with Energy Australia for any necessary modification to the electrical network in question. These works shall be at the applicant’s expense. Energy Australia’s requirements under Section 49 Part 1 of the Electricity Supply Act 1995 shall be met prior to commencement of works or as agreed with Energy Australia.

109.	A copy of the Construction Certificate and the approved plans and specifications must be kept on the site at all times and be available to Council officers upon request.
110.	Hours of construction shall be confined to between 7 am and 6.30 pm Mondays to Fridays, inclusive, and between 8 am and 3.30 pm Saturdays with no work being carried out on Sundays and all public holidays.
111.	For Class 2, 3 and 4 structures, the building works are to be inspected during construction, by the principal certifying authority (or other suitably qualified person on behalf of the principal certifying authority) to monitor compliance with Council's approval and the relevant standards of construction encompassing the following stages: i) at the commencement of the building work, and ii) prior to covering waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within a building, and iii) prior to covering any stormwater drainage connections, and iv) after the building work has been completed and prior to any occupation certificate being issued in relation to the building. Documentary evidence of compliance with Council's approval and relevant standards of construction is to be obtained prior to proceeding to the subsequent stages of construction and copies of the documentary evidence are to be maintained by the principal certifying authority and be made available to Council officers upon request.
112.	For Class 5-9 structures, the building works are to be inspected during construction, by the principal certifying authority (or other suitably qualified person on behalf of the principal certifying authority) to monitor compliance with Council's approval and the relevant standards of construction encompassing the following stages: i) at the commencement of the building work, and ii) prior to covering any stormwater drainage connections, and iii) after the building work has been completed and prior to any occupation certificate being issued in relation to the building. Documentary evidence of compliance with Council's approval and relevant standards of construction is to be obtained prior to proceeding to the subsequent stages of construction and copies of the documentary evidence are to be maintained by the principal certifying authority and be made available to Council officers upon request.
113.	Upon inspection of each stage of construction, the Principal Certifying Authority (or other suitably qualified person on behalf of the Principal Certifying Authority) is also required to ensure that adequate provisions are made for the following measures (as applicable), to ensure compliance with the terms of Council's approval: § Sediment control measures § Provision of perimeter fences or hoardings for public safety and restricted access to building sites. § Maintenance of the public place free from unauthorised materials, waste containers or other obstructions.
114.	Ground water shall only be pumped or drained to Council’s stormwater system if the water is clean and unpolluted. The standard used to determine the acceptability of the quality of the water is the ‘Australian and New Zealand Environment and Conservation Council - Australian Water Quality Guidelines for Fresh and Marine Waters 1992’. Note: Prior treatment and/or filtration of the water may be necessary to achieve acceptable quality, including a non-filterable residue not exceeding 50 milligrams/litre or small quantities may be removed by the services of a Licenced Liquid Waste Transporter. It is an offence under the provisions of the Protection of the Environment Operations Act 1997 to pollute the stormwater system.
115.	Demolition operations shall not be conducted on the roadway or public footway or any other locations, which could lead to the discharge of materials into the stormwater drainage system.
116.	All waste generated on site shall be disposed of in accordance with the submitted Waste Management Plan
117.	A Registered Surveyor’s check survey certificate or compliance certificate shall be forwarded to the certifying authority detailing compliance with Council's approval at the following stage/s of construction: i) After excavation work for the footings, but prior to pouring of concrete, showing the area of the land, building and boundary setbacks. ii) Prior to construction of each floor level showing the area of the land, building and boundary setbacks and verifying that the building is being constructed at the approved level. iii) Prior to fixing of roof cladding verifying the eave, gutter setback is not less than that approved and that the building has been constructed at the approved levels. iv) On completion of the building showing the area of the land, the position of the building and boundary setbacks and verifying that the building has been constructed at the approved levels. v) On completion of the drainage works (comprising the drainage pipeline, pits, overland flow paths, on-site detention or retention system, and other relevant works) verifying that the drainage has been constructed to the approved levels, accompanied by a plan showing sizes and reduced levels of the elements that comprise the works.
118.	All excavation and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards and guarded and protected to prevent them from being dangerous to life or property.
119.	When excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building or an adjoining allotment of land, you shall. i) preserve and protect the building from damage and ii) underpin and support the building in an approved manner, if necessary and iii) give notice of intention to excavate below the level of the base of the footings of a building on an adjoining allotment of land to the owner at least 7 days prior to excavation and furnish particulars of the excavation to the owner of the building being erected or demolished. Note: The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. In this conditions allotment of land includes a public road and any other public place.
120.	When soil conditions require it: i) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided, and ii) adequate provision shall be made for drainage.
121.	Wind blown dust from stockpile and construction activities shall be minimised by one or more of the following methods: i) spraying water in dry windy weather ii) cover stockpiles iii) fabric fences
122.	Works shall not encroach onto or over adjoining properties, including retaining walls, fill material or other similar works. Soil shall not be lost from adjoining sites due to construction techniques employed on the subject site.
123.	Works shall not encroach onto or over adjoining properties, including retaining walls, fill material or other similar works. Soil shall not be lost from adjoining sites due to construction techniques employed on the subject site.
124.	All contractors shall comply with the following during all stages of demolition and construction: § A Waste Container on Public Road Reserve Permit must be obtained prior to the placement of any waste container or skip bin in the road reserve (i.e. road or footpath or nature strip). Where a waste container or skip bin is placed in the road reserve without first obtaining a permit, the Council’s fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council’s Customer Service Centre. § A Road Opening Permit must be obtained prior to any excavation in the road reserve (i.e. road or footpath or nature strip). Where excavation is carried out on the road reserve without first obtaining a permit, the Council’s fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council’s Customer Service Centre. § A Hoarding Permit must be obtained prior to the erection of any hoarding (Class A or Class B) in the road reserve (i.e. road or footpath or nature strip). Where a hoarding is erected in the road reserve without first obtaining a permit, the Council’s fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council’s Customer Service Centre. § A Crane Permit must be obtained from Council prior to the operation of any activity involving the swinging or hoisting of goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway. Permits can be obtained from Council’s Customer Service Centre. § A Permit to Dewater or Pump Out a site must be obtained prior to the discharge of pumped water into the road reserve, which includes Council stormwater pits and the kerb and gutter. Permits can be obtained from Council’s Customer Service Centre
125.	The existing dwelling/structure shall be demolished and removed from the site prior to works commencing. All demolition work shall be carried out in accordance with Council's Demolition and Erection of Buildings Code, with AS2601 – 2001: The Demolition of Structures and with the requirements of the WorkCover Authority of NSW.
126.	Stockpiles are not permitted to be stored on Council property (including nature strip) unless prior approval has been granted. In addition stockpiles of topsoil, sand, aggregate, soil or other material shall be stored clear of any drainage line or easement, natural watercourse, kerb or road surface
127.	Building and demolition operations such as brickcutting, washing tools or paint brushes, and mixing mortar shall not be performed on the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system
128.	All disturbed areas shall be stabilised against erosion within 14 days of completion, and prior to removal of sediment controls
129.	Stormwater from roof areas shall be linked via a temporary downpipe to an approved stormwater disposal system immediately after completion of the roof area
130.	Building, demolition and construction works not to cause stormwater pollution and being carried out in accordance with Section 2.8 of Council's Stormwater Pollution Control Code 1993. Pollutants such as concrete slurry, clay and soil shall not be washed from vehicles onto roadways, footways or into the stormwater system. Drains, gutters, roadways and access ways shall be maintained free of sediment. Where required, gutters and roadways shall be swept regularly to maintain them free from sediment. Note: The Applicant may be liable to prosecution under the Environmental Planning and Assessment Act 1979 for a breach of an approval condition, or under the Protection of the Environment Operations Act 1997, if its employees, agents or sub-contractors allow sediment, including soil, excavated material, building materials, or other materials to be pumped, drained or allowed to flow to the street, stormwater pipes or waterways. The Applicant shall ensure that its employees, agents or sub-contractors understand and maintain sediment control measures
131.	Owners/Applicants/Builders and demolishers are required to confine access to building and demolition sites to no more than two 3m driveways, and provide a footpath protection pad over Council’s footpath at these points (see attached detail). Within the site, provision of a minimum of 100mm coarse crushed rock is to be provided for a minimum length of 2 metres to remove mud from the tyres of construction vehicles. An all weather drive system or a vehicle wheel wash, cattle grid, wheel shaker or other appropriate device, shall be installed prior to commencement of any site works or activities, to prevent mud and dirt leaving the site and being deposited on the street. Vehicular access is to be controlled so as to prevent tracking of sediment onto adjoining roadways, particularly during wet weather or when the site is muddy. Where any sediment is deposited on roadways it is to be removed by means other than washing and disposed of appropriately. In addition builders / demolishers are required to erect a 1.5m high fence along the whole of the street alignment other than at the two openings. Such protection work, including fences, is to be constructed, positioned and maintained in a safe condition to the satisfaction of the Principal Certifying Authority, prior to the demolition of the existing structures and commencement of building operations
132.	Existing site and/or street trees shall be adequately protected from damage during operations.
133.	Trees located within adjoining properties or Council’s nature strip shall not be removed or pruned without the written consent of Council in the form of a Permit issued under Council’s Tree Preservation Order

134.	An Occupation Certificate shall be obtained in relation to the approved works prior to any use or occupation of the building.
135.	Appropriate signage and tactile information indicating accessible facilities shall be provided at the main entrance directory, or wherever directional signage such as lifts or building directories or information is provided to those buildings where access and facilities for people with disabilities has been provided. Such signage shall have regard to the provisions of AS1428.1 and AS1428.2.
136.	Tactile differentiation on floor surfaces indicating change of gradient shall be provided to those buildings where access and facilities for people with disabilities has been provided. This includes the external parts of the building, eg. access walkways and ramps. Such differentiation shall have regard to the provisions of AS1428.4.
137.	Where Council's park/reserve is damaged as a result of building work or vehicular building traffic, this area shall be restored by Council at the applicant's expense. Repairs shall be completed prior to the issue of the Occupation Certificate
138.	All excess excavated material, demolition material, vegetative matter and builder’s rubbish shall be removed to the Waste Disposal Depot or the Regional Tip prior to final inspection. Note: Burning on site is prohibited.
139.	Ground level surfaces are to be treated with anti-graffiti coating to minimise the potential of defacement. In addition, any graffiti evident on the exterior facades and visible from a public place shall be removed forthwith.
140.	All landscape works are to be carried out in accordance with the approved landscape plans. The landscaping is to be maintained to the approved standard at all times.
141.	All works within the road reserve, which are subject to approval pursuant to Section 138 of the Roads Act 1993, shall be completed and accepted by council
142.	The vehicular entrances of the development shall be signposted at the Frederick Street elevation, in order to clearly distinguish the entry and exit points for the development, and the loading bay entry point. Complementary signage shall be provided within the development to clearly distinguish the vehicle exit and exit route.
143.	Vehicles shall enter and exit the site in a forward direction at all times. A plaque with minimum dimensions 300mm x 200mm shall be permanently fixed to the inside skin of the front fence, or where there is no front fence a prominent place approved by the Principal Certifying Authority, stating the following: “Vehicle shall enter and exit the site in a forward direction at all times”.
144.	Prior to completion of the building works, a full width vehicular entry is to be constructed to service the property. Any obsolete vehicular entries are to be removed and reconstructed with kerb and gutter. This work may be done using either a Council quote or a private contractor. There are specific requirements for approval of private contractors
145.	The width of the driveway for the basement car park and width of the loading bay access driveway shall be in accordance with the dimensions as indicated on approved plans .
146.	Any gate or roller door erected to ensure security for the basement shall be located in order to permit the queuing of two (2) vehicles when waiting to enter the basement garage.
147.	Off-street car spaces shall be provided in accordance with the approved plan and shall be sealed and linemarked to Council's satisfaction. The pavement of all car parking spaces, manoeuvring areas and internal driveways shall comply with Australian Standard AS3727 – Guide to Residential Pavements
148.	A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation. Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section of the web site 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 Section 73 Certificate must be submitted to the Principal Certifying Authority prior to occupation of the development
149.	Prior to occupation, a registered surveyor shall certify that the driveway(s) over the footpath and within the property have been constructed in accordance with the approved driveway profile(s). The certification shall be based on a survey of the completed works. A copy of the certificate and a works-as-executed driveway profile shall be provided to Council if Council is not the Principal Certifying Authority.
150.	Where the installation of electricity conduits is required in the footway, the builder shall install the conduits within the footway across the frontage/s of the development site, to EnergyAustralia’s specifications. EnergyAustralia will supply the conduits at no charge. A Road Opening Permit must be obtained from Council prior to the installation of the conduits. The builder is responsible for compaction of the trench and restoration of the footway in accordance with Council direction. A Compliance Certificate from Energy Australia shall be obtained prior to the issue of the Occupation Certificate.
151.	An appropriately qualified Noise Consultant is to certify that Australian Standard 2021- 2000 Acoustic - Aircraft Noise Intrusion has been met before an occupation certificate will be issued.
152.	Testing and evaluation of the building insulationis to be carried out at post construction stage by a suitably qualified acoustical engineer to showcompliance with Conditions 33 and 34 A report is to be submitted to the Principal Certifying authority prior to the issue of the Occupation Certificate.
154.	Acoustic compliance testing shall be conducted 6 months after occupation of the commercial component of the development to ascertain compliance with condition 62. Such compliance testing shall be conducted by an accredited acoustic engineer/consultant whose firm is independent of any acoustic consultants involved in teh development application or supervision during construction. The results of the compliance testing shall be submitted to Council within 21 days of such testing. Any non-compliance shall be corrected within 30 days and the development re-tested and a report provided to Council wihtin 10 days of such testing.
155.	A certificate is to be provided to Council that all wet areas have been effectively waterproofed (prior to tiling) in accordance with AS3740 and the product manufacturer's recommendations.
156.	A Landscape Architect shall provide a report to the certifying authority (with a copy provided to Council, if Council is not the principal certifying authority) stating that the landscape works have been carried out in accordance with the approved plans and documentation.
157.	Prior to occupation or use of the premises, a qualified mechanical engineer shall certify that the mechanical ventilation/air conditioning system complies in all respects with the requirements of Australian Standard 1668, Part 1 & 2.
158.	Prior to occupation a Chartered Professional Engineer shall certify that the stormwater system has been constructed in accordance with the approved plans and as required by Council’s DCP 78 - Stormwater Management. The certificate shall be in the form specified in DCP 78 and include an evaluation of the completed drainage works. A works-as-executed drainage plan shall be prepared by a registered surveyor based on a survey of the completed works. A copy of the certificate and works-as-executed plan(s) shall be supplied to the Principal Certifying Authority. A copy shall be provided to Council if Council is not the Principal Certifying Authority
159.	A positive covenant pursuant to the Conveyancing Act 1919 shall be created on the title of the lots that contain the stormwater detention facility to provide for the maintenance of the detention facility.
160.	The drainage system shall be constructed in accordance with the approved drainage plans and any amendments in red. All stormwater drainage plumbing work shall comply with the NSW Code of Practice: Plumbing and Drainage and Australian Standard AS3500
161.	The owner of the premises shall inform Sydney Water that a Rainwater tank has been installed in accordance with applicable requirements of Sydney Water
162.	The overflow from the rainwater tank shall be directed to the storm water system.
163.	All plumbing work for the installation and reuse of rainwater shall comply with the NSW Code of Practice: Plumbing and Drainage and be installed in accordance with Sydney Water “Guidelines for rainwater tanks on residential properties.
164.	A first flush device shall be installed to reduce the amount of dust, bird faeces, leaves and other matter entering the rainwater tank.

165.	Construction related activities must not take place on the roadway without Council approval. Short-term activities (including operating plant, materials delivery) that reduce parking spaces, affect access to a particular route or prevent or restrict the passage of vehicles along the road must not occur without a valid Temporary Roadside Closure Permit. Activities involving occupation of the parking lane for durations longer than allowed under a Temporary Roadside Closure Permit require a Construction Zone Permit and must not occur prior to the erection of Construction Zone signs by the RTA. Permit application forms should be lodged at Council's Customer Service Centre allowing sufficient time for evaluation. An information package is available on request.
166.	Where applicable, the following works will be required to be undertaken in the road reserve at the applicant's expense: i) construction of a new fully constructed concrete vehicular entrance/s; ii) removal of the existing concrete vehicular entrance/s, and/or kerb laybacks which will no longer be required; iii) reconstruction of selected areas of the existing concrete Footpath/vehicular entrances and/or kerb and gutter
167.	In addition to the works in the road reserve listed above, the following modification and/or improvement works to Council’s road and drainage infrastructure will be required to be undertaken at the applicant’s expense: i) The construction of a new kerb inlet pit in Frederick Street on the alignment of the existing 450mm diameter RCP. ii) The construction of paving and other streetscape works in Frederick Street (limited to the area immediately in front of 159 Frederick Street) and Forest Road (limited to the area immediately in front of 286A, 288, 290, 292, 294, 296, 298, 300 & 302 Forest Road). Note: Detailed plans of the works are required to be submitted to Council for assessment and approval pursuant to Section 138 of the Roads Act 1993, prior to the issue of the Construction Certificate.
168.	All footpath, or road and drainage modification and/or improvement works to be undertaken in the road reserve shall be undertaken by Council, or by a Private Licensed Contractor subject to the submission and approval of a Private Contractor Permit, together with payment of all inspection fees. An estimate of the cost to have these works constructed by Council may be obtained by contacting Council on 9562 1670. The cost of conducting these works will be deducted from the Footpath Reserve Restoration Deposit, or if this is insufficient the balance of the cost will be due for payment to Council upon completion of the work.
169.	The following details shall be submitted to Council for assessment and approval pursuant to Section 138 of the Roads Act 1993, in relation to the awnings over Forest Road and Frederick Street: i) Detailed design plans and specifications, including structural details; and ii) Design certificate. The awning shall be designed by a Chartered Professional Engineer (Structural). Note: Awnings are required to be set back a minimum of 600 mm from the kerb face and be a minimum height of 2.4 metres above the footpath level. Drainage from the awning shall be connected to the stormwater system for the development. Following completion of the installation of the awning a certificate from a Chartered Professional Engineer (Structural) shall be submitted to Council stating that the awning has been constructed in accordance with the design plans and specifications.
170.	Any driveway works to be undertaken in the footpath reserve by a private contractor requires an “Application for Consideration by a Private Contractor” to be submitted to Council together with payment of the application fee. Works within the footpath reserve must not start until the application has been approved by Council.
171.	All works associated with the development shall be at no cost to the RTA.
172.	Subject to the approval of the Rockdale Local Traffic Committee, the bus zone on the Frederick Street frontage of the site will be relocated to a position determined by the Committee. The cost associated with removal of the existing signage and installation of the new signage will be borne by the applicant.
173.	“No Parking” restrictions are required to be installed along Frederick Street for the full frontage of the development site, subject to the approval of the Rockdale Traffic Committee.
174.	All traffic control during construction must be carried out by accredited RTA approved traffic controllers.
175.	The developer is to arrange with the RTA’s Transport Management Centre (TMC) for any required road occupancy license during construction and if the operation of the pedestrian signals on Forest Road will be affected.
176.	The existing Bus Zone fronting the site on Forest Road is to remain, and the remaining frontage of Forest Road is to be signposted ‘No Stopping’.
177.	Existing AM and PM clearway restrictions shall apply to the development frontage at all times.
178.	A work zone will not be permitted on Forest Road
179.	All works subject to design approval by the RTA shall be completed in accordance with RTA conditions and RTA agreements.