Martin and Spork Pty Ltd v Sydney City Council

[2004] NSWLEC 559

Land and Environment Court

of New South Wales

CITATION:	Martin and Spork Pty Ltd v Sydney City Council [2004] NSWLEC 559
PARTIES:	APPLICANT Martin and Spork Pty Ltd RESPONDENT Sydney City Council
FILE NUMBER(S):	10587 of 2004
CORAM:	Brown C
KEY ISSUES:	Development Application :- Alterations and additions to three shop tenancies impact on character of area amenity
LEGISLATION CITED:	South Sydney Local Environmental Plan 1998 Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	01/09/2004
EX TEMPORE JUDGMENT DATE :	09/01/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C Drury, solicitor SOLICITORS Phillips Fox RESPONDENT Mr P Clay, barrister SOLICITORS Abbott Tout

JUDGMENT:

- 17 -

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

21 September 2004

10587 of 2004 Martin and Spork Pty Ltd v Sydney City Council

JUDGMENT

1 This is an appeal against the refusal by Sydney City Council of development application No. DA D2004/00142 for alterations and additions to three shop tenancies at the existing premises at the corner of Rosyln Street and Darlinghurst Road, Kings Cross (the subject site).

2 The three shops form part of the Empire Hotel building although the shops are located at the Roslyn Street frontage. The three storey building accommodates a public bar and gaming room on the ground floor with bar and dance areas on the upper two levels.

3 The proposal seeks to convert the three shop tenancies into a TAB Sports Bar that would be internally connected to the rest of the hotel premises but with another access to Roslyn Street.

4 The subject site is zoned Mixed Use 10 under South Sydney Local Environmental Plan 1998 (the LEP). The proposed use is permissible within this zone. The subject site is also identified as being within the Elizabeth Bay Conservation Area and forms part of Heritage Streetscape No. 4

5 South Sydney Development Control Plan 1997 (DCP 1997) also applies. The relevant provisions are Part B, Sec 2 - Urban Form, Sec 3 - Urban Villages, Public Spaces and Pedestrian Networks and Sec 4 - Sustainable Health Environment. Part C, Sec 2 addresses Public Domain Improvement and Part E, Sec 2.5 addresses Facade Treatment and Sec 4.1 addresses Visual and Acoustic Privacy. Part F addresses Mixed Use Development. In this regard, the subject site is located within Precinct 3, Urban Village Centres/Kings Cross entertainment precinct (the entertainment precinct).

6 The council filed a Statement of Issues containing four separate issues. These can be conveniently grouped into two main areas:

· Will the loss of the three shops unacceptably impact on the character of the area and
· Will be the impacts of the proposed development be unacceptable on the local residents.

7 In considering these issues, the parties agreed to Mr Robert Chambers as the Court appointed town planning expert.

8 The first issue raised by the council and supported by a number of residents who gave evidence in the proceedings, as well as the submissions provided to the council when the proposal was advertised, was that the loss of the three shops would unacceptably impact on the character of the area. It was suggested that the urban village designation in DCP 1997 encourages small shops at street level to provide goods and services for the local population. The proposed use was seen as an unwanted extension of the more entertainment orientated land uses that exist along Darlinghurst Road.

9 This interpretation of the planning controls was not supported by Mr Chambers who stated that the use was consistent with the objectives of the entertainment precinct. He did however suggest that further amendments should be made to the facade of the building to better reflect the character of the streetscape and the urban village area.

10 With the benefit of the site view I agree with Mr Chambers’ conclusions. The subject site is within the entertainment precinct and the planning intent is seen as:

“to recognise and encourage entertainment uses in the precinct particularly at lower levels of buildings whilst containing these uses to the assigned area to protect the amenity of surrounding residential areas”.

11 In my opinion, the proposal is clearly consistent with this intent. While I understand that many residents would prefer the existing shops to provide a range of day-to-day services it is not within the scope of the planning legislation to dictate specific uses.

12 DCP 1997 requires buildings to “incorporate fine grain features that enhance the historic character of the area”. While the facade treatment is generally consistent with the remaining part of the building, Mr Chambers adopts the approach of the council staff by endorsing some amendments to improve the facade design. I accept this can be appropriately done as a condition of approval.

13 Clauses 22 to 27 of the LEP specify that the proposed development is to satisfy certain heritage requirements. In terms of the assessment required by cl 22A(2), I accept that the proposed development is satisfactory.

14 The potential impacts of the proposed development on the local residents generally relate to noise associated with the proposed 24 hour trading and additional patronage, particularly in Roslyn Street.

15 Mr Chambers states that the 24-hour trading is part and parcel of the local business environment and is consistent with the trading hours of the other functions within the Empire Hotel. He adopts the changes proposed in the report by the council staff where the opening windows are to be replaced with non-opening windows and the use of the entrance in Roslyn Street is to be prohibited between 10 pm and 7 am. At this time access will only be available from the entrance in Darlinghurst Road. He also supports a one-year trial period for the 24-hour operation. I also note that the applicant accepts a condition that sets noise limits to those set by the Liquor Administration Board.

16 In Mr Chambers’ opinion, these measures in addition to the other measures in the applicant’s Management Plan will ensure that the level of residential amenity will not be significantly affected by the proposal. I concur with these conclusions.

17 With the amendments proposed through the additional conditions I accept that the proposed development satisfactorily addresses the relevant requirements in the LEP and DCP 1997.

18 For these reasons the Orders of the Court are:

(1) The appeal is upheld.
(2) Development Application D 2004/00142 for alterations and additions to three shop tenancies at 32-32A Darlinghurst Road, Potts Point, is approved subject to the conditions in Annexure “A”.
(3) The Exhibits are returned with the exception of Exhibits 1 and 6.

________________

G T Brown
Commissioner of the Court
rjs

Annexure “A”

Conditions of Development Consent

Martin & Spork Pty Ltd v Sydney City Council

Schedule IA

Approved Development, Contributions and Covenants

APPROVED DEVELOPMENT

(1) Development must be in accordance with Development Application No. 2004/00142 dated 16 February 2004 and information and drawings numbered 0401-DA-01B dated 19 July 2004 and 0401-DA-02 dated 10 February 2004, prepared by Martin & Spork architects and as amended by the following conditions:

REDESIGN OF THE FAÇADE

(2) The facade of the ground floor fronting Roslyn Street is to be redesigned to include permanently fixed windows/glazing and the mullion design is to be amended to achieve a more vertical proportion similar to small shop fronts within the Kings Cross urban village. Details are to be submitted and approved by Council prior to issue of the Construction Certificate.

ROSLYN STREET ENTRANCE

(3) The new doorway providing entry to the TAB Sports Bar area from Roslyn Street is to be kept closed and not used as an access point between the hours of 10.00pm and 7.00am daily. A sign to this effect is to be mounted on the Roslyn Street doorway and is to be visible externally and internally. It may only be used during these hours as an emergency egress point.

HOURS OF OPERATION

(4) The hours of operation for the hotel extension (sports bar area) are regulated as follows:

(a) The hours of operation should be restricted to between 8.00 am and 12 midnight Mondays to Sundays inclusive;

(b) Notwithstanding (a) above, the use may operate between 12.00 midnight and 8.00 am seven days a week, for a trial period of one year from the date of commencement of these extended hours. The operator shall give the Council seven days notice in writing of the date of the commencement of the extended hours.

(c) A further application may be lodged to continue the trading outlined in (b) above before the end of the trial period for Council’s consideration. Such consideration will be based on, inter alia, the performance of the operator in relation to compliance with development consent conditions and any complaints received.

SEPARATE APPLICATION FOR SIGNAGE

(5) A separate development application is to be made for any signage to be provided on site.

VENTILATION

(6) That the premises shall be ventilated in accordance with the requirements of the Building Code of Australia (If using deemed to satisfy provisions: AS 1668, Parts 1 & 2).

NUMBER OF TOILETS TO BE PROVIDED

(7) That the number of toilets within the building shall comply with the requirements of Part F2 of the BCA.

VENTILATION OF TOILETS

(8) That the new male and female toilets shall be provided with natural ventilation or alternatively a system of mechanical exhaust ventilation extracting at least 25 Us from each sanitary fixture or 10 Us per square metre of floor area of each sanitary compartment, whichever the greater, in accordance with the Building Code of Australia and AS 1668 Parts 1 & 2.

FITOUT OF NEW BAR AREA

(9) That the construction, fitout and finishes of the proposed new bar area shall comply with the Food Act 2003 and Regulations thereunder and the National Code for the Construction and Fitout of Food Premises.

UNDER AWNING LIGHTING

(10) Under awning lighting is to comply with the City's Awning Strategy.

SEPARATE APPLICATION FOR EXTERIOR LIGHTING

(11) A separate development application is required for exterior lighting of buildings, landscape features or illuminated signage.

NO ATM

(12) No automatic teller machines (ATM) shall be installed in the extended ground floor/Sports Bar area.

ADOPTION OF SYDNEY ACCORD

(13) The Licensee is encouraged to adopt the principles of the City of Sydney Accord with Licensed Premises (contact the City Service Development Unit 9265 9003 for information).

CCTV SURVEILLANCE CAMERAS

(14) The Management/Licensee shall install CCTV surveillance cameras in and around the premises, placed in strategic places such as the external entrance and exit doors. The surveillance tapes shall be kept for a period of 14 days for viewing by the police upon request.

Schedule 1B

Conditions to be complied with prior to issue of Construction Certificate to the satisfaction of the Certifying Authority

(15) Prior to the issue of the Construction Certificate, sufficient information must be forwarded to the certifying authority (whether Council or a private accredited certifier) illustrating compliance with the relevant requirements of the Building Code of Australia (and a copy forwarded to Council where Council is not the certifying authority). If Council is to be the certifying authority, please contact the Building Unit to discuss the requirements prior to submission of the application for construction certificate.

MANAGEMENT PLAN

(16) (a) The management plan applying to the Empire Hotel shall be updated to reflect the operational controls applying to the newly extended area and shall be submitted to Council and be approved prior to the issue of a Construction Certificate.

(b) The updated management plan is to include the following additional requirements :

(i) An exterior sign shall include a 24 hour 7 days per week phone number for interested persons to contact an appropriate member of management of the hotel in respect of any genuine concern about the hotel’s operations;

(ii) If experience shows that it is reasonable or desirable to modify any provision of the Management plan for the better management of the hotel, that modification shall be made to the Management Plan only with the approval of Council’s Manager, Development Assessments, which approval shall not be unreasonable withheld.

ACCESS FOR PEOPLE WITH DISABILITIES

(17) Access and facilities for people with disabilities shall be provided in accordance with Part D3 of the Building Code of Australia and Council's Access Policy. Prior to issue of a Construction Certificate under Environmental Planning and Assessment Act 1979, a certificate certifying compliance with this condition OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and

PUBLIC DOMAIN PLAN

(18) The following requirements apply:-

(a) Three copies of a detailed Public Domain Plan shall be prepared by an architect, urban designer or landscape architect for the approval of Council (to be lodged with the Manager Public Domain) prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. It is recommended that draft plans should be submitted for comment prior to formal submission for approval.

(b) The Public Domain Plan shall be as follows:-(i) Drawn at 1:100 scale;

(i) Nominate the location, type and material of all existing and proposed public pavement elements including trees, paving, kerbs and gutters, pedestrian ramps, vehicle crossings, street furniture, utility poles, parking meters, pedestrian and traffic signals, service pits and stormwater pits, stormwater pits and signage (including street nameplates, historical, parking and traffic).
(ii) Include a longitudinal section of the pavement showing existing and proposed levels at 10 metre intervals at the building alignment, the kerb and the gutter on a common datum line. This longitudinal section is to be drawn at 1:100. horizontal scale and 1:10 (exaggerated) vertical scale. This section is to ensure that any significant longitudinal gradient change, such as flattening for vehicle entries, occurs within the building line and not at the public pavement.
(iii) Include 1:50 scale cross sections through pedestrian ramps and vehicle crossings.

(iv) Include specifications of the proposed works.

PEDESTRIAN LIGHTING

(19) Provide pedestrian lighting complying to AS1158.3.1:1999 Category P1 on public footpaths surrounding the building. The City of Sydney specified poles and luminaries are to be used and the lighting designs are to be certified by qualified practicing lighting engineer. Details are to be submitted and approved by Council prior to issue of a Construction Certificate.

RECEPTACLES FOR CIGARETTE BUTTS

(20) Provision must be made on the site, adjacent to-the entrance/s to the building, for an adequate number of receptacles for the disposal of cigarette butts. Prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979, the location and design of the receptacle/s must be approved by Council. The receptacle/s must:-

(a) be located entirely on private property and must not be located on or over Council's footpath;

(b) not obstruct any required means of egress or path of travel from the building required by the Building Code of Australia;

(c) not obstruct any required access/egress path for people with disabilities;

(d) be appropriately secured to the building;

(e) the emptying and maintenance of the receptacle/s is the responsibility of the building owner/manager and will not be undertaken by Council; and

(f) emptying of receptacle/s must be carried out on a daily basis.

LICENSEE SIGNAGE

(21) For licensed premises, in addition to the sign showing the Licensee's name, there shall be affixed alongside, details of the maximum number of persons permitted in the premises, in letters not less than 25mm, displayed at the main front entrance of the premises. The overall size of both signs shall not exceed 600mm in height or width in total. Details of this signage are to be submitted and approved by Council prior to issue of a Construction Certificate.

INSTALLATION OF DUAL-FLUSH TOILETS

(22) All toilets installed within the development shall be of water efficient dual-flush capacity with a minimum "AAA" rating. The details shall be submitted for the approval of the certifying authority, prior to issue of a construction certificate for the building under the Environmental Planning and Assessment Act 1979.

INSTALLATION OF WATER EFFICIENT TAPS

(23) All taps and shower heads installed shall be water efficient with a minimum "AAA" rating. The details shall be submitted for the approval of the certifying authority, prior to the issue of a construction certificate for the development under the Environmental Planning and Assessment Act, 1979.

PLANTATION OR RECYCLED TIMBERS

(24) To minimise the damage to the environment, no rainforest timbers or timbers cut from old growth forests are to be used in the construction of buildings. The Construction Certificate is to specify the timbers used. These are to be limited to plantation timbers grown on Australian farms, or State Forest Plantations, or recycled timbers.

STRUCTURE SUPPORT

(25) For alterations and additions to an existing building, a letter from a qualified practising structural engineer (NPER) or a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act 1979) shall be attached to the Construction Certificate Application. The letter must state that the existing structure is adequate to support the new loads and that the design will comply with the relevant Australian Standards adopted by the Building Code of Australia (Specification A1.3).

NON COMPLIANCE WITH DEEMED TO SATISFY PROVISIONS OF BCA

(26) For areas not complying with the deemed to satisfy provisions of the BCA an alternate solution will be required to demonstrate compliance with the performance requirements stipulated in the BCA. Any alternative solution must be submitted and approved by the Certifying Authority prior to the issue of the construction certificate. The following information must be provided:-

(a) Details of the performance requirements that the proposed alternative solution is intended to meet; and

(b) Details of the assessment methods used to establish compliance with those performance requirements.

Schedule IC

Conditions to be complied with prior to commencement of demolition or work or construction to the satisfaction of the Principal Certifying Authority

CERTIFICATION OF MECHANICAL VENTILATION

(27) The details of any mechanical ventilation or air conditioning must be certified by a competent person to comply with Council's Ventilation Code, the Building Code of Australia and relevant Australian Standards, to the satisfaction of the Principal Certifying Authority (Council or an accredited certifier) prior to commencement of any mechanical services work.

(28) To enable certification, the mechanical ventilation documentation prescribed below shall be submitted to the Principal Certifying Authority:-

(a) Certified plans (in duplicate), coloured so as to adequately distinguish the proposed alterations;

(b) A general description of the project plus mechanical ventilation drawings and documentation in duplicate, coloured to show ductwork and equipment as set out below. (Where appropriate a schematic drawing should also be submitted).

(i) Supply Air Ducts, Shafts and Fans – Blue

(ii) Return Air Ducts, Shafts and Fans – Pink

(iii) Outside Air Ducts, Shafts, Intakes and Stair Pressurisation - Green
(iv) Exhaust Air Ducts, Shafts, Fans, Discharges and Smoke Spill - Orange


(v) Mixing Boxes and Conditions - Yellow

(vi) Fire Dampers and Electric Heaters - Red

(c) Drawings which show where applicable the existing and proposed air intakes, air discharges and cooling towers and their relative position to each other, the boundaries of the site, openable windows, and adjoining buildings;

(d) A Mechanical Ventilation Design Certificate pursuant to Section 93 of the Local Government Act 1993 in the form of Attachment M1, OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) together with the Curriculum Vitae of the Design Engineer or other appropriate Certifier must be submitted to Principal Certifying Authority (PCA). A copy of the Certificate and a microfilm set of the certified drawings must be submitted to Council by the PCA;

(e) Documentary evidence in support of requests for departure from the prescribed or deemed provisions of the Building Code of Australia or any other requirements.

STRUCTURAL CERTIFICATION FOR DESIGN - MINOR WORKS

(29) Prior to commencement of work, the following documentation must be submitted to the satisfaction of the Principal Certifying Authority (PCA), (Council or a private accredited certifier). A copy to the Certificate must be submitted to Council if it is not the PCA.

(a) Structural Drawing/s prepared by an appropriately qualified practising Structural Engineer; corresponding with and attached to a Structural Certificate (see (b));

(b) A Structural Certificate for Design, submitted in the form of Attachment S1, OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979), after the structural drawings have been checked and comply with:-

(i) The relevant clauses of the Building Code of Australia (BCA);


(ii) The relevant conditions of Development Consent;

(iii) The Architectural Plans incorporated with the Construction Certificate; and

(iv) The relevant Australian Standards listed in the BCA (Specification A1.3).

(c) Repeat (a) and (b) for any revision, or staged submission of structural drawings.

(30) Notes

(a) An appropriately qualified practising structural engineer certifying by completing Attachment S1 must have:-

(i) Appropriate tertiary qualifications in Civil or Structural Engineering; AND
(ii) Corporate membership of the Institution of Engineers Australia or equivalent; AND
(iii) Evidence of relevant experience in the form of a CV/Resume. (b) Appropriate current professional indemnity insurance.
(iv) An appropriately qualified practising structural engineer certifying by issuing a Compliance Certificate must have accreditation as a certifier for Structural Engineering issued by the Institution of Engineers Australia in accordance with the Environmental Planning and Assessment Act 1979.
(v) Certification of Inspection/s is also required prior to issue of the Occupation Certificate, and/or prior to use. See Schedule IE Conditions.

Schedule ID

Conditions to be complied with during work on site to the satisfaction of the Principal Certifying Authority

CITY OF SYDNEY COMPLIANCE INSPECTIONS

(31) The purpose of this condition is to ensure that the Council is given sufficient notice prior to the issuing of the Occupation Certificate to carry out inspections of soon to be completed buildings, where Council considers it necessary. In doing so, this ensures that the Council is able to provide an independent analysis of whether the building is constructed to a standard that complies with the BCA and in accordance with the development consent.

(a) The applicant and building owner are to note that it is an offence under S.109N of the Environmental Planning and Assessment Act 1979, to occupy or use a building in whole or in part, unless an Occupation Certificate has been issued in relation to the building or the part.

(b) A maximum penalty of 25 penalty units applies under the provisions of the Environmental Planning and Assessment Act 1979, for the contravention of the above requirements.

(c) Council officers may undertake random inspections from time to time during construction and toward the end of building works to ensure that buildings or part of buildings are not occupied without a partial or final Occupation Certificate, and to check compliance with conditions of development consent and the BCA.

(d) In the event that a Principal Certifying Authority (PCA) other than Council is appointed, written notice shall be given to Council (whether by the developer, builder or other person relying on the development consent) on each of the following occasions:

(i) Within 7 days of installation of services, such as plumbing, mechanical ventilation and the like which penetrate fire rated walls and slabs (excluding basement areas); and
(ii) 7 days prior to the installation of false ceilings or cornices which abut fire rated walls and slabs; and
(iii) 14 days prior to the final inspection to be carried out by the PCA for the purpose of issuing an Occupation Certificate.

(e) The PCA shall be advised in writing (whether by the developer, builder or other person relying on the development consent) of Council's requirements pursuant to paragraph (d).

(f) This reserves time for Council or persons appointed by Council to conduct any random inspections Council may choose to do, prior to the issue of the Occupation Certificate, in order to ensure that buildings or part of buildings are not occupied without a partial or final occupation certificate, and to undertake random audits of certified works.

PROTECTION OF PUBLIC WAY

(32) The public way must not be obstructed by any materials, vehicles, refuse, skips or the like, under any circumstances. Non-compliance with this requirement will result in the issue of Notice by Council to stop all work on site.

BARRICADE PERMIT

(33) 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 the 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.

DEMOLITION WORKS

(34) All Demolition Work shall be carried out in a safe manner by trained personnel under the management of a licensed demolisher who is registered with the WorkCover Authority, in accordance with:-

(a) The approved Demolition Work Method Statement;

(b) Australian Standard AS2601-1991- Demolition of Structures;

(c) Relevant Codes of Practice of the WorkCover Authority (NSW);

(d) The Construction Safety Act 1912 and Demolitions Regulations;

(e) The Occupational Health and Safety Act 1983; and

(f) All other relevant Acts and Regulations.

(35) Demolished combustible materials shall not be stockpiled. Material must be removed regularly.

CONTROL OF RUNOFF DURING CONSTRUCTION

(36) To comply with the Protection of the Environment (Operations) Act 1997 whereby it is an offence to pollute classified waters such as Sydney Harbour to which most of the City's street drainage is directly connected:-

(a) concrete trucks, concrete pumps and their attachments, and trucks used for the disposal of spoil shall not be washed out on the public way;

(b) any water collected from on-site washing down of concrete trucks, concrete pumps or their attachments and trucks used for the disposal of spoil shall not be pumped, directed or allowed to flow to the street stormwater system;

(c) any seepage or rain water collected on site during construction shall not be pumped to the street stormwater system unless separate prior approval is given in writing by Council and evidence of approval is to be submitted to the Principal Certifying Authority prior to discharge into such system.

HOURS OF WORK AND NOISE

(37) The hours of construction and work on the development shall be:

(a) All work, including building/demolition and excavation work, and activities in the vicinity of the site generating noise associated with preparation for the commencement of work (eg. loading and unloading of goods, transferring of tools etc) in connection with the proposed development must only be carried out between the hours of 7.30 a.m. and 5.30 p.m. on Mondays to Fridays, inclusive, and 7.30 a.m. and 3.30 p.m. on Saturdays, with safety inspections being permitted at 7.00 a.m. on work days and no work must be carried out on Sundays or public holidays.

(b) The applicant must provide to Council a 24 hour per day telephone contact number and must ensure such number is continually attended by a person with authority over the building work during the construction period.

(c) The approved hours of work and a 24 hour telephone number must be prominently displayed at all times on the building site and must be visible from a public street or a public place.

(d) All work, including demolition, excavation and building work must comply with "The City of Sydney Building Sites Noise Code" and Australian Standard 2436 - 1981 "Guide to Noise Control on Construction, Maintenance and Demolition Sites".

Schedule 1E

Conditions to be complied with prior to issue of Occupation Certificate and prior to commencement of use, to the satisfaction of the Principal Certifying Authority

OCCUPATION CERTIFICATE

(38) An Occupation Certificate (in accordance with Clause 155 of the Environmental Planning and Assessment Regulation 2000) must be obtained from the Principal Certifying Authority (P CA) (Council or a private accredited certifier) and a copy furnished to Council in accordance with Section 79L of the Environmental Planning and Assessment Amendment Regulation 1998 prior to commencement of occupation or use of the whole or any part of a new building, an altered portion of, or an extension to an existing building. A copy of the certificate shall be submitted to Council if it was not the PCA.

WASTE MANAGEMENT CONTRACTS

(39) Prior to issue of an Occupation Certificate and/or commencement of the use of the premises, all required contracts or arrangements for the collection and removal of wastes and recyclable material must be finalised.

BUILDING MATERIALS

(40) All materials used in the building shall comply with specification C1.10 of the Building Code of Australia.

GLAZING MATERIALS

(41) All glazing materials shall be selected and installed in accordance with the relevant provisions of AS 1288 S.A.A. "Glass Installation Code".

FIRE SAFETY

(42) Pursuant to Clause 94 of the Environmental Planning and Assessment Regulation 2000 the following works are required to be completed prior to the issue of an Occupation Certificate to ensure that there is adequate fire safety in the building.

(a) The sprinkler system shall be upgraded as required, to incorporate the existing and extended service to comply with the requirements of Specification E1.5 of the BCA, and details are to be submitted and approved by the Certifier prior to the issue of any Construction Certificate.

MECHANICAL VENTILATION PERFORMANCE CERTIFICATE

(43) Prior to issue of an Occupation Certificate under Environmental Planning and Assessment Act 1979 and following the completion, installation, and testing of all the mechanical ventilation systems covered by the approval, a Mechanical Ventilation Certificate of Completion and Performance in the foini of Attachment M2, OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) must be submitted to the Principal Certifying Authority (PCA) (Council or a private accredited certifier). A copy of the Certificate and a microfilm set of the certified drawings must be submitted to Council if it was not the PCA.

CONTINUED PERFORMANCE OF MECHANICAL VENTILATION

(44) The efficient operation and performance of any mechanical ventilation, air pressurisation or other smoke control system must not be impaired by the partitioning layout. Adequate relief/transfer air openings must be provided to ensure the performance of systems during fire and non-fire conditions is not impaired.

CERTIFICATION FOR STRUCTURAL INSPECTIONS

(45) Prior to issue of an Occupation Certificate or use of the premises, a Structural Inspection Certificate in the form of Attachment SIC OR a Compliance Certificate (in accordance with Section .109C of the Environmental Planning and Assessment Act, 1979) must be submitted to the satisfaction of the Principal Certifying Authority (PCA) (Council or a private accredited certifier) after:

(a) The site has been periodically inspected and the structural certifier is satisfied that the Structural Works are deemed to comply with the final Design Drawings; and

(b) The drawing revisions listed on the Inspection Certificate have been checked with those listed on the final Design Certificate/s.

(46) A copy of the Certificate with a microfilm set of the final drawings shall be submitted to Council if it was not the PCA.

(47) Notes:

(a) An appropriately qualified practising structural engineer certifying by completing Attachment SIC must have:-

(i) Appropriate tertiary qualifications in Civil or Structural Engineering, AND;

(ii) Corporate membership of the Institution of Engineers Australia or equivalent; AND

(iii) Evidence of relevant experience in the form of a CV/Resume;

(iv) Appropriate current professional indemnity insurance.

(b) An appropriately qualified practising structural engineer certifying by issuing a Compliance Certificate must have accreditation as a certifier for Structural Engineering issued by the Institution of Engineers Australia in accordance with the Environmental Planning and Assessment Act 1979.

Schedule IF

Conditions to be complied with during the use of Premises

NOISE CONTROL

(48) That any speakers or similar associated with televisions in the newly extended/Sports Bar area shall be directed away from Roslyn Street.

(49) The use of the premises must not give rise to any one or more of the following:

(a) Transmission of vibration to any place of different occupancy greater than specified in AS 2670.

(b) An indoor sound pressure level in any place of different occupancy (and/or public place) greater than 3dB above the L90 background level or greater than 5dB at the boundary of any affected property in any octave band from 31.5 Hz to 8,000 Hz centre frequencies inclusive between the hours of 8.00 a.m. to 10.00 p.m. daily and 0dB above the L90 background between 10.00 p.m. and 8.00 a.m. the following morning. However, when the L90 background levels in frequencies below 63 Hz are equal to or below the threshold of hearing, as specified by the equal loudness contours for octave bands of noise, this sub-clause does not apply to any such frequencies.

(c) A sound level at any point on the boundary of the site greater than the background levels specified in Australian Standard 1055. "Acoustics - Description and Measurement of Environmental Noise".

(d) The "emission of an offensive noise" under the Protection of the Environment (Operations) Act 1997.

(e) The emission into the surrounding environment of gases, vapours, dust, or other impurities which are a nuisance or injurious or dangerous or prejudicial to health.

The method of measurement of vibration in (a) and sound levels in (b), (c) and (d) must be carried out in accordance with AS 2973 for vibration measurements. AS 1055 for outdoor sound level measurements, and AS 2107 for indoor sound level measurements.

ADDITIONAL ACOUSTIC ANALYSIS

(50) That a further acoustic report shall be carried out and submitted to Council within 1 month from commencement of approved development carrying out of approved works certifying the following:-

(a) That all acoustic controls and devices described within the acoustic report prepared by Steven Cooper Acoustics dated 17 March 2004 and as amended and required by conditions of this consent have been installed in a satisfactory manner to the satisfaction of the acoustic consultant; and

(b) That operationally the premises are in full compliance with Council's conditions of consent. (see conditions 63 to 66)

BEHAVIOUR OF PATRONS

(51) The Management/Licensee shall ensure that the behaviour of patrons entering and leaving the premises does not detrimentally affect the amenity of the neighbourhood.. In this regard the management shall be responsible for the control of noise, loitering and litter generated by patrons of the premises and shall ensure that people leave the premises and area in an orderly manner. If so directed by the Council, the Management is to employ private security staff to ensure that this condition is complied with to the satisfaction of Council.

(52) The Management/Licensee shall prevent patrons removing glasses, opened cans, bottles or alcohol from the premises. (Except from any approved Bottle Shop area)

(53) Signs shall be placed in clearly visible positions within the hotel requesting patrons upon leaving the premises to do so quickly and quietly, having regard to maintaining the amenity of the area.

WASTE REMOVAL

(54) The removal of recycled bottles and glasses shall only occur between 7.00am and 8.00pm weekdays and 9.00am and 5.00pm weekends and public holidays, to avoid noise disruption to the surrounding area.

CLEANLINESS OF PUBLIC DOMAIN

(55) In addition to Council's daily street sweeping and cleansing operations, the owner/manager of the building shall ensure that the footpath, gutter, building entry and surrounds are kept clean and clear of litter at all times.

REMOVAL OF GRAFFITTI

(56) The owner of the building shall be responsible for the removal of any graffiti from the building within 48 hours of the graffiti appearing.

NO SPRUIKERS

(57) No persons (such as those commonly known as spruikers) or recordings or other devices which have the effect of spruiking are to be located on Council owned property. Furthermore, the sound level of any spruiking or amplified noise generated within privately owned land must not be audible on Council's footpath adjoining the subject premise and within 3 metres of the premises.

NO AMPLIFIED MUSIC

(58) No amplified live entertainment shall be provided within the extended ground floor/Sports Bar area.

NO PUBLIC ENTERTAINMENT

(59) No Public Entertainment, as defined under Local Government Act, 1993 is to be provided within the extended ground floor of the premises including Sports Bar area unless approved by a development application under the Environmental Planning and Assessment Act, 1979 and an application under Section 68 of the Local Government Act, 1993.

60) Gaming machines, amusement devices or the like are not permitted to be installed in the extended ground floor/Sports Bar area.

(61) An annual Fire Safety Statement (form 15A under the Environmental Planning and Assessment Amendment Regulation 1998) must be given to Council and the NSW Fire Brigade commencing within 12 months after the date on which Council receives the initial Fire Safety Certificate.

(62) The owner/manager of the building shall ensure that all windows on the facade of the building are cleaned regularly and, in any event, not less than annually.

(63) The LA 10 noise level emitted from the hotel shall not exceed the background noise level in any Octave Band Centre Frequency (31.5Hz – 8kHz inclusive) by more than 5dB between 7.00am and 12.00 midnight at the boundary of any affected residence.

(64) The LA 10 noise level emitted from the hotel shall not exceed the background noise level in any Octave Band Centre Frequency (31.5Hz – 8kHz inclusive) between 12.00 midnight and 7.00 am at the boundary of any affected residence.

(65) Notwithstanding compliance with the above, the noise from the hotel shall not be audible within any habitable room in any residential premises between the hours of 12.00 midnight and 7.00 am.

(66) For the purposes of this condition, the LA10 can be taken as the average maximum deflection of the noise emission from the hotel.

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G T Brown
Commissioner of the Court
Rjs/ljr