Mesabo Pty Limited v Mosman Municipal Council - [2004] NSWLEC 492

Land and Environment Court

of New South Wales

CITATION: Mesabo Pty Limited v Mosman Municipal Council [2004] NSWLEC 492 revised - 28/09/2004

PARTIES:
APPLICANT
Mesabo Pty Limited
RESPONDENT
Mosman Municipal Council

FILE NUMBER(S): 10166 of 2004

CORAM: Murrell C

KEY ISSUES:
Development Application :- Child care centre in residential area
noise impacts on adjoining residential properties
intensity of development
demand for on street parking
impact of proposed alterations additions on heritage item and conservation area

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Local Environmental Plan 1998 Mosman

CASES CITED:

DATES OF HEARING: 12/05/04-14/05/04 abd 21/05/04
Written submissions received 07/06/04

DATE OF JUDGMENT: 09/23/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr Andrew Pickles, barrister
Mallesons, Stephens Jaques Solicitors
RESPONDENT
Mr Craig Leggat, barrister
Pike Pike and Fenwick Solicitors

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Murrell C

23 September 2004

10166 of 2004 Mesabo Pty Ltd –v- Mosman Municipal Council
JUDGMENT

1 This judgment is for an appeal under s 97 of the Environmental Planning and Assessment Act 1979 (the Act). Mosman Council (the respondent) determined the development application, for use of the dwellings at 87-89 Shadforth Street, Mosman for a childcare centre with 58 places, by the refusal of consent.

2 By way of Background No. 89 is currently used for the purpose of a child- care centre for 12 children. At the beginning of the proceedings it was submitted that the Council would not object to an intensification and continuance of the existing dwelling being used as a childcare centre. However, Council considers that the development application to incorporate No. 87 will have unacceptable impacts on the residential amenity of the area, in terms of noise and traffic, and the proposal will have significant impacts on the heritage building at No. 87.

3 Having considered all the evidence to the Court including that of the resident objectors and the experts I have decided that the development application should be approved subject to a number of conditions.

Site and Environs

4 Figure 1 shows the subject site, which comprise is of two allotments with a dwelling house erected on each. Lot 11 in DP 76778 is known as No. 87 Shadforth Street, and lot 10 in DP 974982 is known as No. 89 Shadforth Street, Mosman. Each lot contains a detached dwelling house with a driveway on the southern boundary of each lot. The properties are on the south-eastern side of the street and both have a frontage of 12.8 m and are rectangular in shape with side boundaries of approximately 43 m. The land falls from the rear to the street by approximately 2 to 3 m.

5 No. 89 has a childcare centre in a detached building at the rear of the property that extends for nearly the width of the property and is located immediately adjacent to the rear boundary except for the middle portion set back approximately 1.5 m.

6 The surrounding area is generally comprised of single storey dwellings to the south and south-west with some having two storey extensions. The sites is within the Shadforth Street conservation area figure 2 photo 2 shows the streetscape. To the south-east that is behind the subject sites is a three storey residential flat building with parking under and the address of this property is 156-158 Raglan Street. Also to the east at 160-162 Raglan Street, there is a two storey town house style development. Adjoining the subject site to the north-east at No. 91 Shadforth Street, there is a recently constructed two storey town house development with basement parking.

7 The Mosman Preparatory School is located approximately 100 m on the same side of the street to the south-west.

8 The pair of dwellings at No. 85-87, one being the subject of this development application are listed under the Mosman Local Environmental Plan as heritage items of local significance. Features of the pair include symmetrical design, a sandstone base, chimneys, three bay front verandah with cast iron railing and steps leading to the centre of the dwelling.

The Proposal

9 The statement of basic facts describes the proposed development as:

Minor internal alterations to the existing childcare centre building at the rear of No. 89 and its use for 14 x 0-2 year olds;

Internal and external alterations to the dwelling at No. 89, minor additions and conversion of its use from a dwelling house to a childcare centre accommodating 20 x 2-3 year olds;

Internal and external alterations to the dwelling at No. 87, minor additions and conversion of its use from a dwelling house to a childcare centre accommodating 24 x 2-3 year olds;

New building works between Nos. 87 and 89 to connect those buildings and to provide a common entrance, access ramp and stairs

A re-configuration of existing stairs to the front balcony of No. 89;

Provision of a drop off area for two cars, generally in front of No. 87;

Parking for 2 cars at No. 89 and stacked parking for 3 cars at No. 87;

Removal of shared boundary fencing between Nos. 87 and 89; and
Combined use of the consolidated rear yard areas.

10 The proposed hours of operation are 7.00 am to 6.00 pm Monday to Friday.

Issues

11 Some 27 issues were identified in the statement of issues and these are grouped under following headings:

Noise;
traffic and parking;
heritage and streetscape;
landscaping and visual amenity;
disabled access; and
intensity of use.

Evidence and submissions

12 On behalf of the applicant evidence was given to the Court by:

Professor Richard Mackay, heritage
Nick Juradovich, town planner
Christopher Ernest Hallam, traffic
Trevor Beardsmore, disability
Steven Edwin Cooper, acoustics

13 For the respondent evidence was given by:

Hugh Malcolm Fraser, heritage
Paul Grech, town planner
Graham Stewart Pindar, traffic
Mark Stephen Relf, disability
Barry Murray, acoustics

14 At the beginning of the proceedings the Court met the parties on-site and carried out an extensive site inspection and heard from a number of resident objectors as well as attending their properties. It is noted that when the proposal was advertised that there numerous objections received against the proposed development.

15 Mr Hurst of Unit 1 No. 91 Shadforth Street, expressed concern to the Court that in his opinion the proposal is a major commercial development in a quaint residential area and that it would have the effect of degrading the community and that the proposal would result in intolerable noise levels to a number of residents and in his opinion the acoustic screens would not overcome this problem.

16 Ms Basile owns unit 6 in No. 160 Raglan Street and she is concerned that the childcare facility to accommodate 53 children will create intolerable noise as already the noise from the existing childcare facility is a disturbance. Mr Crosby of the same unit block stated noise was the main issue and that there are a number of elderly persons who live in his block and the proposal would disturb their lifestyle and cause a loss of amenity. In his opinion the proposal is inappropriate and a gross over development.

17 Mr Reed from No. 120 Shadforth Street, told the Court that parking and traffic is already a concern in the street for residents who compete for on-street parking and that the proposal would also lead to driveways being blocked and cars double parked. He is also of the opinion that the proposal will adversely affect the conservation area and the residential amenity of the area.

18 Mr Anderson from No. 85 Shadforth Street, is concerned about the cumulative impact of the prep school and a childcare centre both in the same street and the impact on residential amenity with parking. He was also concerned about the cooking and waste odours adjacent to his property and the removal of waste. With respect to the acoustic barrier he was concerned about its aesthetics and was not in favour of it.

19 Expert reports were tendered to the Court as well as joint reports of the town planners, heritage consultants, acoustic experts, traffic engineers and access consultants.

20 Statutory planning provisions and guidelines.

Mosman Local Environmental Plan 1998

Maintain and enhance landscaping as a major element in the residential environment.
Provide for housing which is compatible with surrounding development in terms of bulk, height and scale.
Allow for some non-residential uses that would not adversely affect the living environment of the area.

21 Development that is allowed with development consent includes: childcare centres; educational establishments; multiple dwellings; and home businesses.

22 Clause 15 of the LEP requires a minimum landscape area of 50% for the subject zone.

23 The heritage conservation provisions are found in Part 9 of the LEP and the objectives are set in Cl. 32 and include:

a. To conserve the environment heritage and cultural significance of the local government area of Mosman.

b. To ensure that any development does not adversely affect the heritage significance of heritage items and heritage conservation areas and their settings.

d.. To maintain traditional streetscapes in areas where older style houses predominate.

e. To encourage an appreciation of the heritage of the local government area of Mosman.

24 Clause 33 requires consent for:

b. Altering a heritage item… within a conservation area by making structural or non-structural changes to it’s exterior including to the detail fabric, finish or appearance.

25 Sub cl. 2 states that consent is not required if:

a. The council is of the opinion that the proposed development is of a minor nature…

b. The council is satisfied that the proposed development would not adversely effect the significance of the heritage item or heritage conservation area and, in the case of external alterations, would only have a minor visual impact when viewed from the street or any other public place…

26 When determining a development application cl. 33 requires the council:

a. Must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage item or heritage conservation area;

b. Must not grant consent until it has considered a statement of heritage impact and identifies and assesses the impact of the proposal on the heritage significance of the item and it’s setting or on the heritage conservation area

c. Made a client grant consent to the application until it has considered a heritage assessment to fully assess the level of heritage significance of the item and it’s setting, or of the heritage conservation area.

27 The “Mosman Residential Development Control Plan” includes: guidelines on making a development application; Objectives for acoustic privacy; and controls for waste storage areas; as well as a statement on existing character elements for various precincts. And The Shadforth Street conservation area is described as:

The Shadforth conservation area is a harmonious collection of buildings, gardens and streetscape elements, which are almost entirely residential in character, generally gentle in their human scale and pleasingly diverse in architectural style and quality. The demography, alignments and intersections in the area are visually attractive, while the street plantings are substantial and consistent. There are several buildings that are worthy of individual recognition as items of heritage in Mosman but the area as a whole is redolent of the suburb’s distinctive environment yet it is subtly different from the several identifiable conservation areas in the Municipality.

28 This conservation area is within the Raglan Sirius Bradley’s Townscape.

29 Other instruments cited include: State Environmental Planning Policy No. 56 – Sydney Harbour Foreshores and Tributaries; and Sydney Regional Environmental Plan No. 23 – Sydney and Middle Harbours; the Notifications Development Control Plan; Off Street Parking Code for Mosman, EPA Draft Noise Guide lines for Local Government; and the Australian Standard for Design on access and mobility.

Noise Issues

30 It was agreed, by Mr Murray and Mr Cooper that, the only significant noise issue relates to children playing outside. They agreed that:

“Noise from children inside is not considered an issue at adjacent residential premises and Noise of traffic flow increases in nearby streets is not considered an issue.”

31 The joint report also identified agreement which included the following:

It was agreed that the relevant background noise level at ground level, relevant to the adjacent residential premises is between 35 and 37dBA.
It was agreed that an appropriate noise criterion for the protection of residential amenity is background noise level + 10dBA at residential receivers.
It was agreed that if the existing boundary fences are not modified/repaired, then noise levels from children playing at some ground level residential locations will exceed the agreed criterion.
It was also agreed that even if the existing boundary fences were repaired, noise levels would still exceed the agreed criterion at some residential locations.
It was agreed that if the noise barriers were placed near the site boundaries using polycarbonate material to a height of 2.8 m above the child car ground level, then noise levels from children playing as measured in backyards and at ground floor windows (except ground floor level of 160 Raglan Street) would meet the agreed noise criterion.
It was agreed that the areas of concern are the upper levels of 91 Shadforth Street and 160 Raglan Street.
It was agreed that the following approximate noise levels as a result of 23 children playing simultaneously would be:

rear apartment (1st floor) of 91 Shadforth Street Leq 50 dB(A)
rear apartment ground floor level of 160 Raglan Street Leq 49 dB(A)
rear apartment first floor level of 160 Raglan Street Leq 51 dB(A)
rear apartment second floor level of 160 Raglan Street Leq 51dB(A)

It was agreed that the background level may be higher at elevated locations than at ground level.

32 Mr Murray and Mr Cooper disagreed on the following points:

There was disagreement regarding the likely background level for elevated locations.
Mr Cooper conducted a set of short samples (not logger measurements) and determined the likely increase for elevated locations was in the order of 6 dB(A).
Mr Murray did not accept the results of Mr Cooper’s short sample measurements because of the limited duration of the measurements and the contamination of the measurement results by noise from the preparatory school. Mr Murray considers that, in the absence of more comprehensive measurements of background noise levels at elevated location, the background noise level measured at ground level should be adopted for elevated locations. This is particularly so in the light of the adoption of the criterion of background + 10 dB(A).

33 The experts agreed that the higher noise levels that could be expected from 23 children playing at the one time in the rear of the subject dwellings with a 2.9 m noise barrier would be experienced at 1st Floor where No. 91 adjoins the subject site (Mr & Mrs Ives dwelling). It could be seen from the view that there is a study at the rear of this dwelling at the front the windows to the main bedroom and also the second bedroom has a window adjoining this boundary. The experts considered that the noise levels would be some 50 dB(A).

34 For the residential flat building at No. 160 Raglan Street the ground floor apartment No. 3 - 49 dB(A) was predicted and for apartment No. 6 and 9 - 51 dB(A). The experts agreed that the background noise is greater at the higher levels of the building because of less shielding and similarly the noise from the proposal would also increase for upper floors compared to the adjoining dwellings located at ground level.

35 Mr Cooper’s measurement for the background noise level in the middle of the day when the day care and school were both inside to be 42.5 dB(A) and Mr Murray measured it to be 35 dB(A). The original assessment carried out by Mr Kokias measured it at 37 dB(A).

36 It was agreed that if 10 children played under the verandah then this would shield the noise omitted from the proposed child care centre.

37 Mr Murray was cross examined in respect of for development application expansion of the prep school in October 2001 where he concluded that the expansion would increase by 2 decibels the noise generated by the school. For the assessment of the school expansion the additional noise was considered as opposed to the existing noise plus the additional noise from the expansion. It was submitted that the noise level from the expansion of the childcare centre will reduce the 54 dB(A) to 49 and Mr Murray agreed that the noise to existing residences will come down except for No. 85. A reduction in noise includes the upper floors of the Units and No. 160 Raglan Street. It was also agreed that for No. 158 Raglan and 85 Shadforth that noise would increase above the existing but it is still within the reasonable limit agreed to between the experts.

38 The noise level of children playing outside is based on the management program. The extent to which the proposed development would exceed the criteria of background noise + 10 dB(A) would be for a ½ hour in the morning period of 10:15 to 10:45 am with an exceedance of 2 decibels based on the program put forward.

39 It was submitted on behalf of the applicant that the ½ hour period of play co-incides with the prep school’s playtime. And for the period 3:30 to 4:00 pm when there are 22 children outside 10 would be under the verandah and it was agreed by the experts that this would not exceed acceptable noise levels. Part of this afternoon period would also co-incides with the prep school being dismissed.

40 I note that in Mr Cooper’s statement in reply he states that:

“During the course of the supplementary measurements, it was established that noise from Mosman Preparatory School is of greater magnitude than that emitted from the existing or proposed childcare centre and indicate that that school, along with other day care centres approved by Mosman Council, do not satisfy Mr Murray’s goal of background plus 10dB(A).”

41 There was considerable differences of opinion between Mr Murray and Mr Cooper. For example in Mr Murray’s initial assessment he acknowledges that logger measurements were conducted during the school holiday period but does not indicate the exact position of the logger. Mr Cooper’s reply states that

“the council’s position for assessing external noise (and instructed Koikas acoustics for their assessment) is 1.2 to 1.5 m above the ground 1 m from the childcare site boundary, when assessed on the adjacent residential premises. Accordingly at this position the provision of solid fences or barriers to a normal height of 1.8 m should provide a substantial degree of attenuation and any extension of such barriers can provide a very substantial degree of attenuation with respect to the council nominated position.”

The EPA Industrial Noise Policy document nominates for the purpose of background measurements a position of 1.5 m above the ground whereas the intrusive criterion is assessed at the most effected point on or within the residential property boundary, which appears to be the basis of Mr Murray considering the concept of background plus 10dB(A) for the elevated apartments.

It therefore follows that if the acoustic environment of such elevated locations is different to that in rear yards at ground level, then there will be a different background level and hence, a different acoustic criteria for the elevated locations

It was agreed that for elevated positions at residential dwellings, the acoustic shielding of such barriers is reduced and therefore, there is potential for noise from the childcare centre to exceed a design goal of 47db(A). However, there is disagreement as the application of the background level recorded at a position of 1.5 m above the ground being appropriate for the elevated locations of the townhouse at No. 91 Shadforth and the apartments at the nearest residential premises to the south being identified as 160 Raglan Street…The outstanding issue of concern was with respect to the elevated locations of 160 Raglan Street and the elevated windows on the western façade of the rear building at 91 Shadforth Street.

42 For the supplementary measurements Mr Cooper notes that “during the course of our measurements, we found that the acoustic environment of the area was dominated by noise from Mosman Preparatory School, which is further to the west in Shadforth Street and that the external play time of the childcare co-incided with the play time associated with the Prep. School.” This was in response to the measurements for the upper units of 160 Raglan Street at the rear and it was found that “at the ground level positions behind 160 Raglan Street the dominate noise impacting in that area was the Prep. School, with the childcare centre generating some intermittent pit levels, but could not be differentiated by way of measurements of noise generated by the Prep. School.”

43 Mr Cooper noted that there were some noise leakage via the rear windows of the existing childcare centre at No. 89 and he recommends that such windows be fully closed and sealed as part of the subject application.

44 The noise impact assessment, October 2001 for the proposed extension to the Mosman Prep. School was tendered. In this report it states:

The EPA Industrial Noise Policy (INP) sets out to control noise in two ways known as the intrusiveness criteria and amenity criteria. The amenity criteria are designed to prevent a long term increase in overall noise levels caused by increasing numbers of continuous or semi-continuous noise sources. As the noise caused by children in play ground areas is only likely to occur during play times and therefore of limited duration the amenity criteria do not apply.

The EPA intrusiveness criteria aim to avoid annoyance from intrusive noise by controlling the degree of noise intrusion above the existing and the noise level. The intrusiveness noise criteria mean that the Laeq noise level as measured at the nearest residential boundary should not exceed the rating background level by more than 5dB(A)…For the type of noise to be generated, it is not appropriate to apply the INP directly without further consideration. The following factors need to be taken into account when setting noise criteria for this type of noise:

The school would operate approximately 40 weeks per year rather than 52 weeks.
The outside play time will extend over approximately 4 1/2 to 5 hours, 5 days per week rather than all day time hours 7 days per week.
A school would be considered by the wider community to have social and educational benefits.

Because of the reduced duration over which noise generating school activities would occur and the difference between industrial noise and school noise, allowance of a further 5dB(A) above background noise level is appropriate for the intrusiveness criterion in order to assess the potential noise impact of the school activity. The intrusiveness criterion should therefore be the RBL plus 10dB(A).

45 The Prep. School noise assessment report went on to say that:

“the noise level for typical loud play involving some play within the areas of 73 and 75 Shadforth Street maybe taken as 66dB(A)…The predicted level just inside the boundary fence of the nearest potential effected residents, No. 79 Shadforth Street, would be 68dB(A)…at the nearest effected residents in Raglan Street, 68dB(A) would also be expected. These figures are based on the existing fence heights.”

46 The report further comments that “the predicted levels at the most effected residences are 2dB(A) higher as a result of the extension. Such an increase in barely noticeable.

47 In conclusion the report states, “the existing playing noise levels currently exceed the intrusiveness criterion determined in accordance with the INP and the exceedance will increase slightly.” In the joint statement of the acoustic experts there was no agreement regarding the likely level for elevated locations that is the rear of No. 91 and 160 Raglan Streets. Mr Cooper on the basis of his short samples considered the likely increase was in the order of 6dB(A). However, Mr Murray considers that in the absence of more comprehensive measurements of background noise levels at elevated location the background noise level measured at ground level should be adopted for elevated locations. On the basis of this difference of opinion the experts agreed:

If a criterion of 47dB(A) was applied elevated locations then noise from 23 children playing simultaneously at the day care centre would exceed the criterion.

If a criterion of 53dB(A) was applied for elevated apartments then noise from 23 children playing outside would satisfy the criterion.

48 The critical question in the Court’s assessment having regard to the evidence of the experts is the duration that the noise levels exceed more than 10 dB(A) above the background noise i.e. 37 + 10 dB(A).

49 It was agreed that the greatest noise generated would be: by 23 children playing outside between the period of 10:15 am to 10:45 am; and the 17 children that are programmed to play outside between 3.30 and 4.00 pm. The experts also agreed that the noise from the preparatory school when children are outside playing increases the background noise by some 6 dB(A).

50 In my overall assessment I have concluded that the noise generated by the child care centre would not warrant refusal of the application for the reasons that the increased noise levels are not continuous but intermittent and furthermore the period when the increased noise levels will be experienced is confined for one half hour period during the morning from 10:15am to 10:45am where there maybe an increase in noise level of 2 decibels and between 3:30pm - 4:00pm. An increase of 2 decibels was seen to be barely discernable in the assessment of the expansion of the Mosman Prep. School. From the evidence I have not been persuaded that there should be a different approach taken with the assessment of the application before me. Furthermore I am strengthened in my decision in that the proposed facility is to operate generally in accordance with the management plan which prescribes the maximum number of children in the play areas in any one time. And I accept the submission that not all the children will be outside at lunch time as a significant number of the children will be supervised eating their lunch before their afternoon sleep time. I also accept that the children’s play areas will be supervised at all times and whilst on the odd occasion there will be increased noise levels from the children’s play it will not be continuous or of such long duration to have an unreasonable impact on the residential amenity of the area.

51 Facilities such as child care centres and schools are permissible in residential zones and appropriate supervision and management must allow these facilities to continue to co-exist with residential dwellings. I have decided that the duration of the increased noise levels would not warrant acoustic screens apart from a standard 1.8 or 2 m boundary fence to provide some attenuation. To acquire acoustic screens to be erected in the circumstances of this case also raised a number of issues with respect to their effectiveness and visual presentation. Furthermore, council’s written submission of the 7 June 2004 states:

“The council submits that such a condition is inappropriate as the Court needs to be satisfied that the noise impact is acceptable now. Deferring consideration of this is inappropriate.”

52 This is in response to a condition requiring a trial period for further acoustic measurement six months after the commencement of the operation. I am satisfied the noise emitted from the child care facility having regard to the criteria cited above for the Mosman Preparatory School such facilities in the community should not be considered to unreasonably impact on residential amenity. This is not to say that there will not be increased noise associated with the use of the playgrounds but the duration and frequency of such occurrences would not warrant the imposition of acoustic screens and I am satisfied in the circumstances that the noise impact is acceptable and there is also the comfort of the management plan to generally limit numbers of children playing outside at any one time.

Heritage and conservation significance

53 The heritage experts agreed that the heritage value of the pair of Victorian regency style (also known as Victorian filagree) dwellings is as follows:

These are a pretty pair of almost identical single storey houses whose modest forms are augmented by being elevated a few steps up from the street. They are symmetrical brick and stucco buildings, each on a sandstone base and each has hipped roof and three bay front verandah with an ensemble of cast iron columns baluster panels and frieze and (combination). Triple arched windows flanked a central doorway with side lights, transom light and four panelled doors. Openings in the front wall had label moles. The chimneys are stucco with moulded tops. The verandahs have slate edges and the front steps have curved base walls.

54 The properties at Nos 85 and 87 are listed as heritage items in the Mosman LEP. From the view it could be seen that No. 85 has sympathetic upstairs addition. The experts noted that the documentation in the development application meets the requirements set out in the NSW Heritage Office Guidelines. It was also agreed that the internal changes to No. 89 and changes at the rear do not give rise to substantive heritage issues. While the demolition of some internal walls will create heritage impact the retention of nib walls means the walls could be reinstated and would not warrant refusal of the application. Although I note Mr Faser considers this a detraction of the proposal.

55 The experts also agreed that the original subdivision pattern is important and it would not be appropriate to require consolidation into a single allotment.

56 The determinative heritage issue in the case relates to the impact on the integrity of the heritage item of No. 87 and the affects of the front garden changes (drive through and car parking) on the setting of this heritage item, the related streetscape and the Shadforth Street conservation area.

57 In this regard Mr Fraser considers that these changes would result in substantive adverse impacts upon the core heritage significance of the item that cannot be justified on the basis of the proposed new use. The change of use results in heritage impacts that are not essential to its continuing residential use. Furthermore, Mr Fraser considers that the new built link between the buildings at the rear at the expense of the clear property separation and side landscaping obscures the traditional subdivision pattern. He was also of the opinion that the extent of heritage impact arising from changes to the front garden involving removal of the dividing fence; provision of car parking spaces and manoeuvring areas in front of No. 89 and drive-through in No. 87 strongly detracts from the garden setting of the two houses which creates a negative impact on the heritage significance of the item and the unity of the pair that is 85 and 87. Overall Mr Fraser considers that the extent of vehicle usage is unsympathetic fragmenting the streetscape and changing the original subdivision rhythm. He further considers that the extent of cross-overs and the removal of front site planting diminishes the garden suburb value of the conservation area as well as the setting and unity of the heritage items.

58 On the other hand Professor Mackay is of the opinion that the link between the buildings, and the lift are elements designed so that they are recessed and read as an addition to No. 89. Furthermore he considers the design is an effective way of meeting statutory access requirements. He is also of the opinion that the proposed adaptation will retain the residential character and architectural quality of the building despite the changes – to the front garden setting. He is of the opinion that the provision of car parking spaces and manoeuvring areas is not unusual in the surrounding conservation area where car parking is provided in front of other dwellings. Furthermore, he notes that these properties are part of a streetscape continuance not individual icons themselves. In his overall assessment he considers the proposal does not have a substantive adverse impact on the heritage value identified for the pair of residences at 85-87 Shadforth Street nor on the overall significance of the Shadforth Conservation Area.

59 Mr Fraser advised the Court that if there was not a drive-through between the dwellings most of the other changes/modifications were “alright”. However, the drive-through would lead to the missing tooth syndrome and in his opinion the front streetscape is the key issue and the shortening of the front hedge by 2.2 m. With the amended landscape plan and the landscaping/hedge now proposed he considered this would be an improvement. Mr Fraser is of the opinion that the proposed development when viewed from the street in front will be adversely impacted and therefore the proposal is not consistent with cl 37 of the LEP. Mr Fraser agreed that the focus of the listing for No. 85 and 87 is on the building but he is of the opinion that the nature strip is important and the consistency of the building line in the front setback and gardens that are dominant at the pedestrian level.

60 Professor Mackay who was involved in the original heritage study when the Nos. 85 and 87 were listed as items told the Court that the garden is not the core to the listing. He is of the opinion that while the proposal involves change to No. 87 this will not lead to substantial adverse impact and that the alterations to the dwelling itself, listed as the heritage item, are acceptable and the alteration to the setting with the drive-through and changes to the garden satisfy the provisions of the LEP. While he considered a stair climber to provide disabled access is more appropriate in terms of heritage at the same time he said the impact of the lift associated with the building link adjoining No. 89 should not lead to refusal of the application. For the palisade fence in front of No. 87 he agrees that it should match No. 85 with a base material of stucco or sandstone and that the fence for No. 89 should be similar.

61 Professor Mackay is of the opinion that the heritage impact when viewed from the public domain is limited and whilst the changes may impact in his opinion they are not substantive or significant even though he recognises the reduced landscaped area being replaced by hardstand area, the removal of the side boundary fence together with the structure linking the building will lessen the legibility of the separate houses on allotments. But the amendments now proposed also reduce the heritage conservation impacts and in his opinion the impacts are acceptable in heritage/conservation terms. He agreed that the hedge assists in understanding the subdivision pattern but at the same time the hedge is not of core significance to the heritage item but part of the setting and while the change will be apparent and it will not amount to a significant adverse affect.

62 Professor Mackay stated that the overall heritage impact must be considered in terms of a holistic assessment and not from one stationary position standing on the street. In his opinion the property is experienced viewed in the context of the streetscape as a continuance as opposed to being viewed from a single vantage point. The removal of the hedge and the drive-through will be the only visible change in his opinion and with a fence constructed in front of No. 89 and additional landscaping this will ameliorate the adverse impact of the removal of the hedge.

63 In my assessment under the heritage and conservations provisions of the LEP and DCP, having regard to all the evidence, including the amended landscape plan, I am satisfied that the proposal will have a minor adverse impact but that this impact and not significant or substantial to warrant refusal of the application. The dwellings will still be seen in a landscaped setting with appropriate front fences, hedges and other vegetation to ameliorate the provision of a drive-through and additional hard paved areas and parking. While I accept that the setting and the uniform building setback and subdivision pattern form part of the setting for the heritage item the proposed in my assessment still repeats those elements. I am `an element that was elevated in terms of the listing of the item although clearly it cannot be disregarded but overall the required changes to the front setback area are acceptable and would not warrant refusal of the application. In terms of cll 32, 33 and 37 I am satisfied that the proposed development will not have a significant or substantive adverse effect on either the heritage conservation area of Shadforth Street or the heritage items of Nos. 85 and 87. Similarly I am satisfied that the link between the buildings will have a minimal impact in the overall context of the streetscape conservation area and the heritage item of No. 87. It could also be seen that a dominating element in the streetscape are the brush box trees on the verge. Refer to figure 2 photo 2.

Access

64 The only issue for the Court to decide on access is whether the proposal should incorporate a lift or a stair climber for disabled access. In my assessment of this issue I have had regard to the overall impact of the alternative forms of access on the streetscape as a conservation area. The experts agreed that a ramp is always the best solution for disabled access but it is recognised that in adapting buildings this is not always possible. On balance in the circumstances I am satisfied that the method of disabled access proposed is acceptable in the context of the streetscape and the heritage item of 87. The stair climber/lift would be appropriate in having less of a visual intrusion while at the same time providing adequate access for the disabled to the child care facility.

Traffic and parking

65 The experts agreed that there is no issue with respect to staff parking and that the proposal accommodates sufficient staff parking. The remaining issue is whether the parking for parent and carers is adequate. A number of surveys were provided on behalf of the respondent based on other child care centres in the area and the parking demand. The council used as a starting point the RTA guidelines which requires 15 on-site spaces while Mr Pindar considered this to be unreasonable because the site is not a green field site but nonetheless he said his surveys are consistent with the RTA guidelines in that it demonstrates 14 spaces are needed. Mr Pindar says that the council’s code requires compliance with the RTA guidelines. He is of the opinion that even if parents seek to avoid the peak pick up and drop off times there will still be an unacceptable impact on residents who rely on kerbside parking and that there is a traffic safety issue involved where parents are required to cross Shadforth Street with young children.

66 It was submitted on behalf of the applicant that no child care facility recently approved by the council has required parking for parents to be provided on site. Therefore the provisions of council’s code do not appear to have been consistently applied.

67 In Mr Hallam’s opinion the maximum peak demand will be for 4 or 5 spaces and that 3 of these can be provided on the street in the limited parking zone at the front of the premises, the fourth space can be provided in the drive through and as such this leaves only one person looking for a parking space at any one time. Mr Pindar considers that the peak demand would be for 6 based on his survey for the SDN Centre. Mr Hallam however, disputed the accuracy of the survey where “not one number plate for the afternoon pick-up matched the morning drop-off number plates”. He accepted the Chester House and first SDN survey that indicated the peak parking demand to be for 5 vehicles and based on his surveys of availability of on-street parking in Shadforth Street, this would mean that only one person would be looking for a parking space beyond the site but even if one takes Mr Pindar peak of 6, only 2 would be looking beyond the site. In Mr Hallam’s opinion the survey of available spaces on street shows that there is ample spaces.

68 The experts in their joint statement agreed that:

If kerb space outside a property is not needed for through traffic movement, it is reasonable in general terms to use this space for the activities on site. In the subject case as this exclusive use will be limited to morning and afternoon peak periods this is acceptable.

69 Based on the availability of on-street parking, Mr Hallam considered it is unlikely that parents will have to park on the western side of the street but in the event they do the level of traffic flow in Shadforth Street is not excessive. Both experts agree that the proposed development will not create unacceptable external traffic impacts and not result in the environmental capacity of Shadforth Street being exceeded. However Mr Pindar considers that there will be a local traffic impact adjacent to the site and that the on-street parking will reduce the amenity for residents who rely on on-street parking. Mr Hallam on the other hand considers that any parking overflow that is not accommodated outside the site or in the drive through will be for very limited periods during the day. He estimates that for approximately 27 minutes of a morning peak and 3 minutes of an afternoon peak. However, parking will be available proximate to the site within 50 m and there is not an issue with respect to road safety.

70 On the evidence to the Court I am satisfied that the proposed development will not significantly adversely impact on the traffic or parking in Shadforth Street. The experts agreed that the traffic generated by the proposal can be accommodated in the street. And even if I accept Mr Pindar’s peak demand it is not unreasonable during these peak periods of morning and afternoon for two parents/carers to find a car space in the street, that is not directly outside the centre on in the drive-through, given the vacant spaces surveyed for on-street parking. While the proposed development will create additional demand for parking in my assessment the impacts are not unreasonable to warrant refusal of the application. I observed on the view that not all dwelling houses accommodate parking on-site and there is a reliance for on-street parking associated with some residential dwellings, however, at the same time there is capacity in the street. Therefore from a traffic and parking point of view I’m satisfied that the child care facility can co-exist in this residential environment.

Conclustion

71 In conclusion, in my assessment of this development application I have carefully considered the concerns of the residents and their desire to maintain their residential amenity. I also accept Mr Leggett’s submission that the fact the use is permissible in the zone only allows for neutral consideration. However I have carefully considered the issues raised by council and residents and I am satisfied that the child care facility for 58 children as proposed can co-exist with both the multi unit development to the rear and north of the site and the single dwellings to the south and opposite the site without significant impacts on the residential amenity of the area. That is in terms of the parking and traffic generation of the proposed development can be accommodated by the local road and and noise impacts are limited to a short duration only when there are a larger number of children playing outside.

72 I am satisfied that the intensity of the development to provide for 58 child care places is not an overdevelopment of the site and the impacts can be managed such that the living environment of the area would not be unreasonably adversely affected while allowing for a non residential use consistent with the zone objectives.

73 From a streetscape point of view I am also satisfied that while additional hard paved areas will be introduced by virtue of the development to allow for a drive through and parking I am satisfied that the proposed landscaping will make a positive contribution to the streetscape and that landscaping will still remain a major element which is strengthened by the street trees and their dominance over the built form elements. The scale bulk and form of the built elements will remain largely unchanged apart from the link between the buildings and I am satisfied that this has been designed to minimise its impact on the conservation area and the heritage item at No. 87. In this regard I am satisfied that the objectives of cl. 32 are met and the provisions of cl. 33 for the protection of heritage items and heritage conservation areas are also satisfied. Clause 37 relates to development in the vicinity of heritage items and I have considered the likely affect of the proposed development on the heritage significance, curtilage and setting of the items as well as the impact of the proposed development on any significant views to and from the heritage items, and I am satisfied the proposed development is satisfactory and there is no significant affect or impact.

Conditions

74 At the end of the proceedings there were a number of conditions that were in dispute between the parties and written submissions were received in respect of the conditions following the conclusion of the hearing. From my assessment above I have amended the conditions accordingly. This includes the deletion of any conditions that refer to acoustic barrier screens and deletion of the condition for a trial period of six months. I am satisfied that the child care centre does not require the erection of acoustic screen barriers for the reasons stated above. Furthermore this approach is consistent with previous decisions of the council in their assessment of child care facilities and the expansion of schools in residential zones. The noise from children playing, in particular, the intermittent noise and the fact that for the proposed child care centre the periods when the noise levels may exceed background plus 10dB(A) is confined to two relatively short periods during the day. Furthermore, the applicant is not opposed to a management plan that provides for that, under normal circumstances subject to weather conditions, is to be complied with and any variation of the management plan would require the approval of the council. In the circumstances I am satisfied that acoustic barrier screens are not required.

75 The council proposed a number of deferred commencement conditions relating to materials and finishes, landscaping and parking fines. I am satisfied that the heritage consultants have provided advice and the materials and finishes conditions are contained as conditions to be complied with. Similarly the landscape plan is satisfactory and provides certainty for the proposal and is a condition of consent. With respect to the retention of the Evergreen Alder in the sandpit region of the child care centre, I accept the arborist’s report that the tree should be removed and the conditions reflect this decision. The kerb side parking signs to restrict parking to 10 minutes between 7 am and 9.30 am and 3 pm and 6 pm Monday to Friday is a condition of consent to be satisfied prior to occupation rather than it being a deferred commencement requirement. This will allow the relevant approvals to be obtained prior to commencement of a child care facility but it will also allow other works to be carried out simultaneously and would not warrant a deferred commencement.

76 The condition restricting the maximum number of children to 58 has the additional words added except for open days and orientation sessions. And there is a condition to generally restrict the maximum number of children to 23 allowed to play outside at any one time except for bad weather and orientation and open days.

77 The condition for deliveries and waste collection confines it to the hours as nominated by the council that is 10 am to 2 pm and 6.30 pm to 8.30 pm Mondays to Fridays with the additional words except for the delivery of milk and deliveries by staff using their own vehicles. This is to ensure that the peak pick-up and drop off times do not conflict with the deliveries and contracted waste collection.

78 Council was seeking to have a condition imposed for on-site detention works. However, I agree with the applicant that the additional hard paved area/reduction in landscaped area of 70 sq m would not warrant such a condition and it would be an onerous requirement. As such this condition has been deleted.

79 The condition to require the windows of the outbuilding at the rear of 89 to be permanently closed and sealed is supported by the acoustic experts’ advice. However, the experts did not consider it necessary to require the windows of the dwelling house adjacent to No. 91 to be closed as it was agreed that noise when children are inside the dwelling is not an issue.

80 The other conditions are as generally agreed to between the parties.

81 On the basis of my assessment above the formal order of the Court are:

1. The appeal in respect of the properties known as 87 and 89 Shadforth Street, Mosman, is upheld.

2. The development application submitted to Mosman Council for a 58 place child care centre, and as amended, is approved subject to the conditions contained in Annexure “A”.

Annexure “A”

MESABO PTY LTD V MOSMAN MUNICIPAL COUNCIL

LAND AND ENVIRONMENT COURT PROCEEDINGS NO. 10166 OF 2004

CONDITIONS OF DEVELOPMENT CONSENT

PROPERTY: 87-89 SHADFORTH STREET, MOSMAN

GENERAL CONDITIONS

The Development Consent Relates To The Following Plans and Documentation:

The development must be carried out in accordance with the following plans and documentation, except where amended by conditions of consent:

Plan Nos. Date of plan Prepared by

2115 DA01F 22.04.04 Colin Dalton & Associates

2115 DA02G Colin Dalton & Associates

2115 DA03F 22.04.04 Colin Dalton & Associates

3036 Sheet 1 of 1 14/4/2003 Geomat Engineering Pty Ltd

LP01 Issue D 2004 Liz Leuchars Garden Design

(a) The following conditions must be satisfied prior to the release of the Construction Certificate. Conditions may require the submission of additional information with the Construction Certificate application. Applicants should also familiarise themselves with conditions in subsequent sections and provide plans in accordance with any design requirements contained therein.

(i) Construction Certificate Application Plans
Two copies of architectural and Structural Engineer’s plans must be submitted with the Construction Certificate application. The structural engineering plans must be signed by a qualified practicing Structural Engineer with corporate membership of the Institute of Engineers Australia or who is eligible to become a corporate member and has appropriate experience and competence in the related field.
The plans are to incorporate and note any changes from the approved development application plans as required by conditions of this consent.
For applications involving alterations and additions, one set of plans should be coloured which indicate the extent of new works.
(ii) Dilapidation Report – Council Assets
To assist with an assessment of claims for the refund of the security deposit over Council’s property, a dilapidation report must be submitted. The report must document and provide photographs that clearly depict any existing damage to the road, kerb, gutter, footpath, driveways, street trees, street signs or any other Council assets in the vicinity of the development. Any damage not shown in this manner will be assumed to have been caused as a result of the site works undertaken and must either be rectified at the applicant’s expense or compensated by deduction from the security deposit.
(iii) Deleted
(iv) Sydney Water
The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to “Your Business” section of Sydney Water’s web site at then see Building & Renovating under the heading Building & Renovating, or telephone 13 20 92.
The consent authority or a private accredited certifier must ensure that a Quick check agent/Sydney Water has appropriately stamped the plans before the issue of any Construction Certificate.
(v) Driveway
To ensure the vehicle crossing is properly completed, the applicant shall complete and pay applicable fees for an application under Mosman Council’s “ Construction of Vehicle Crossing By Contract ”.
(vi) Utility Services
The applicant shall consult with the relevant public utility providers and meet any costs imposed by those providers for alterations to mains or services required as a consequence of this approval.
(vii) Long Service Levy
In accordance with Section 34 of the Building and Construction Industry Long Service Payments Act 1986 , the applicant shall pay a long service levy at the prescribed rate of 0.2% of the total cost of the work to either the Long Service Payments Corporation or Mosman Municipal Council for any work costing $25,000 or more.
(viii) Security Deposit
A cash deposit or bank guarantee to the value of $2500.00 in favour of Council shall be provided for the making good any damage caused to Council property. A request for a refund of unused funds may be made following the completion of works and an inspection of the property by Council.
(ix) Accessibility
Prior to the issue of the Construction certificate, the Applicant is to provide plans and documentation to the Principal Certifying Authority of any sanitary facilities, accessible parking, doors, internal circulation, signage, ramp or lift in accordance with the relevant parts of AS1428.1, AS2890.1 and AS1735 to demonstrate the access ways and amenities for people with a disability in accordance with Parts D3, E3.6 and F2.4 of the BCA.

(x) Heritage Conservation

The applicant is to photograph all regions of No.87 that are to be altered both internally and externally to document the heritage character of the building, to the satisfaction of Council. These photos are to be submitted to Council.

(xi) Deleted
(xii) Front Fencing

The applicant is to provide a 1:20 scale detailed design of the front replacement fence at No.87 with fencing palisade to match the fencing and profile of the base at No.85.

The applicant is to provide a 1:20 scale detailed design of an open picket fence and gate at No.89 which reflects the design and style of the verandah detail proposed at No.89, incorporating current stone base.
(xiii) Materials and Finishes
To ensure works do not unduly impact on the heritgage setting of the houses, materials and finishes shall be complimentary to the character and streetscape of the area. Highly reflective roofing materials shall not be used.

The Applicant is to provide a 1:20 detailed drawing of proposed verandahs, associated stairs and handrails of No. 87 and No. 89 and link structure between No. 87 and No. 89. The drawing is to provide details of finished external surface material, including colours, types, brand, style and texture. The drawing must be certified as suitable by Professor Richard Mackay and approved by the Council or certifying authority.
The Applicant must also provide a 1:20 detailed drawing of proposed changes internally to No. 87. The drawing is to provide details of finished external surface material, including colours, types, brand, style and texture and be certified as suitable by Professor Richard Mackay and approved by the Council or certifying authority.

(xiv) Front fencing and paving

The Applicant is to replace the front fence at No. 87 with fencing palisade to match the fencing and profile of the base at No. 85. This condition does not require the use of stone in construction of the base, only a base profile, which matches the existing base at No. 85.

The Applicant is to provide an open picket fence at No. 89, which reflects the design and style of the verandah detail proposed at No. 89, incorporating current stone base.

The Applicant is to provide:
1. a band of coloured paving along the common boundary of No. 87 and No. 89 to define the original allotment boundary. This boundary paving to return towards No. 87 at the position of original front fence corner post;
2. a band of coloured paving 1m wide from the front gate of No. 87 to the front steps; a band of coloured paving along the front boundary of the driveway adjacent to No. 85; and
3. otherwise the front drive-through is to be finished in buff coloured pavers to match those existing pavers at No. 89.

The following measures must be satisfied prior to the commencement of site works, including any works relating to demolition, excavation or vegetation removal.

(i) Notice of Intent to Commence Site Works

Environmental Planning and Assessment Act 1979

appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved; and
notified the PCA of any such appointment; and
unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work; and

(e) the person benefiting from the consent has given Council at least 2 days’ notice of the person’s intention to commence the erection of the building by way of completing Form 7D.

(ii) Protection of Adjoining Areas

cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe; or

involve the enclosure of a public place; or

have the potential to damage adjoining private land by way of falling objects

then a temporary hoarding, fence or awning must be erected between the work site and the adjoining area. Any such hoarding, fence or awning must be removed when the work has been completed. The fence must be constructed prior to the commencement of works and where adjoining public land shall be covered in cyclone wire mesh to discourage the fixing of posters or graffiti.
(iii) Sediment & Erosion Controls
Temporary sedimentation and erosion controls shall be constructed prior to commencement of any site works in order to prevent the discharge of sediment from the site. The controls shall be designed and installed in accordance with the requirements of the NSW Department of Conservation and Land Management's " Urban Erosion and Sediment Control " manual. Note: this document is now available from the Department of Infrastructure, Planning and Natural Resources.
(iv) Lapsing of Consent if Site Works Not Commenced
In accordance with Section 95(1) of the Act, this consent shall lapse unless work has physically commenced on the land within 5 years from the date of the consent or in instances where no work is required, the use has commenced within 5 years from the date of the consent.
(v) Public Liability Insurance
Public liability insurance to the value of $5,000,000 must be taken out by the builder or owner to protect any person, firm or company from injury, loss or damage sustained as a consequence of the carrying out of site works, including all excavation, demolition and construction works. A copy of the policy must be provided to Council or the Accredited Certifier.
(vi) Facilities

First aid facilities shall be provided consistent with requirements under Centre Based and Mobile Child Care Services Regulation (No. 2) 1996. Details to be submitted with a construction certificate application.

Centre Based and Mobile Child Care Services Regulation (No. 2) 1996

4. DURING SITE WORKS / CONSTRUCTION

The following conditions must be satisfied during site and construction works.

(i) Compliance with the Building Code of Australia

(ii) Demolition

ustralian Standard 2601-2001: The Demolition of Structures

(iii) Demolition

Occupational Health and Safety Regulation 2001

Protection of the Environment Operations (waste) Regulation 1996

(iv) Signs for Building and Demolition Sites

(v) Site Work Hours

(vi) Sediment & Erosion Controls

(vii) Dust Control

(viii) Council Property

(ix) Driveway

(x) Protection of Landscape Features

(xi) Protection of Landscape Features

(xii) Protection of Landscape Features

Species	Location	Critical Root Zone
Jacaranda mimosofolia	Front yard No. 89	4.0m
Alnus jorrulensis	Rear yard No. 87	4.0m
Ulmus parvifolia	Adjoining property at 158 Raglan Street near rear boundary of No.87	4.0m

In the event that major structural or feeder roots are encountered between the critical and primary root zones, the arborist is to recommend and or implement appropriate measures to ensure the retention of the tree. If these measures involve structural alterations to the building or work, such measures must be certified by a practicing Structural Engineer that the modified plans/details comply with the relevant Building Code of Australia and/or Australian Standards. (Note: Council’s Tree Management Officer may be contacted for advice regarding appropriate tree protection measures).

(xiii) Tree Preservation

(xiv) Tree Removal

The existing tree situated between parking spaces 3 and 4 shall be removed and those parking spaces shall be then relocated 1 metre further east, with spaces 3 and 4 each being 5.4 meters long in accordance width AS2890.1 (2004).

(xv) Air Conditioning Units

Exempt and complying Development DCP

(xvi) Food Premises

Food Act 2003

National Foods Standards Code

Centre Based and Mobile Child Care Services Regulation (No. 2) 1996.

(xvii) Waste Storage Area

For safety, amenity and maintenance reasons, the waste storage area (being the existing garage at no. 87) must be constructed to the following standards:

(A) Floors must be constructed of concrete, graded and drained to an approved drainage outlet connected to the sewer and finished to a smooth even trowelled surface;

(B) Walls must be constructed with solid impervious material and shall be cement rendered internally to a smooth even steel trowelled surface;

(C) All intersections between the walls and floors shall be coved with coving having a minimum radius of 25mm;

(D) All entry points into the room must be bounded to prevent the escape of liquid waste. Bunding shall be for 110% of the likely liquid storage waste and constructed in such a manner that does not obstruct the removal of waste receptacles from the room or create a safety risk to users;

(E) Adequate ventilation shall be provided;

(F) Adequate lighting shall be provided;

(G) The ceiling must have a minimum height of 2.1m from floor level and be finished with a smooth faced non-absorbent material capable of being easily cleaned;

(H) Waste storage areas shall prevent the access of vermin;

(I) Waste receptacles used shall be compatible with Mosman council’s waste collection service;

(J) The door to the storage area shall be weatherproof and able to be opened from the inside at all times; and

(K) Hot and cold water hose cocks shall be located inside or within close proximity to the waste storage areas to facilitate cleaning.

(xviii) Deleted

(xix) Deleted

(xx) Local Government Act 1993

Local Government Act 1993

(xxi) Approved Plans

(xxii) Change of Building Use

A building in respect of which there is a change of building use must comply with the Category 1 fire safety provisions applicable to the proposed new use.

Note: The obligation under the sub-clause to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in the relevant development consent.

(a)

(i) Critical Stage Inspections

at the commencement of the building work;
after excavation for, and prior to the placement of, any footings;
prior to pouring any in-situ reinforced concrete building element;
prior to covering of the framework for any floor, wall, roof or other building element;
prior to covering waterproofing in any wet areas;
prior to covering any stormwater drainage connections;
smoke alarms prior to any occupation certificate being issued in relation to the building;
mechanical ventilation where mechanical means for ventilating a room is required prior to any occupation certificate being issued in relation to the building;
access and mobility if disabled parking is provided prior to any occupation certificate being issued in relation to the building; and
final inspection after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

Notes: Records of the above critical stage inspections will be required to be submitted prior to the release of the Occupation Certificate – see later conditions of consent.

If you intend engaging Council to undertake the inspections, please telephone the area Building Surveyor or Council’s Case Officer on 9978 4044 to arrange a suitable time.

(ii) Food Preparation

Food Act 2003

(iii) Deleted

(iv) Deleted

(v) Sydney Water

ydney Water Act 1994

then the “e-developer” icon or telephone 13 20 92.
Following application, a “notice of requirements” will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions 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 the release of the Occupation Certificate or Subdivision Certificate as applicable or whichever may occur first.
A copy of any Trade Waste Agreement required by Sydney Water shall be submitted to Council prior to the release of the Occupation Certificate.
(vi) Side and Rear Fencing
All boundaries behind the building line shall be enclosed with 1.8m fences/walls to protect the privacy of future occupants as well as adjoining owners (where not already treated in this manner) unless an adjoining owner agrees to the provision of an alternate fence/wall that fence/wall shall be erected in lieu of the fence/wall required by this condition.

. PRIOR TO OCCUPATION

(a)

(i) Compliance Certificates and Inspection Records

Where Council is not the principal certifying authority, a copy of any compliance certificates and or records of inspections received by the PCA shall be forwarded to Council prior to occupation or commencement of the use.

(ii) Occupation Certificate

Occupation or use, either in part or full, shall not take place until an occupation certificate has been issued. The occupation certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with.
Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council.

(iii) Kerb Side Parking and Sign Posting

(iv) Management Plan

Provide for a limitation on the use of the outdoor play area at the rear of No. 89 Shadforth Street to children aged 6 weeks to 2 years with a general limit of 5 children at any one time.
Provide for a limitation on the use of the outdoor play area at the rear of No. 87 Shadforth Street to children aged between 2 years and 5 years with a general limit of 10 children at any one time.
Provide for a limitation on the use of the open space/verandah area between No.s 87 and 89 to children aged between 2 years and 5 years with a general limit of 8 children at any one time.
Specify the standard hours during which the outdoor areas will be used.
Specify the circumstances in which these limits might not be able to be met (for example in times of inclement or excessively hot weather, for open days on limited occasions during each year, during orientation for new children).
Provide for a prohibition on children being permitted to be on site forward of the front building line unless accompanied by a parent or carer.

(a)

(i) Noxious Weeds

and then under “environment” and “trees and weeds”.
(ii) Occupation
The premises shall be occupied solely for the approved use. No change of use or additional use of any part of the premises shall take place without prior development consent (other than for exempt development).
(iii) Operating Hours
To ensure reasonable neighbourhood amenity, hours of operation are restricted to the following times:

Monday to Friday

7.00am - 6.00pm

There is no approval to operate on the Weekends under any circumstances.

(iv) Deleted

(v) Acoustic

The rear windows to the outbuilding (at the rear of No. 89 Shadforth Street) adjacent to the common boundary with No. 160 Raglan Street are to be permanently closed and sealed. If required, as a result of this condition, to comply with the BCA ventilation standards criteria, mechanical ventilation shall be installed.

(vi) Number of Children

(b) 20 of the children being 3-5 years of age.

The maximum number of children permitted on-site for purposes other than accompanying parents/carers of those enrolled children being dropped off or collected from the child care centre shall be 58, at any time except for open days and orientation sessions.

(vii) Open Space – Play time.
The outdoor play area shall not be used by children for a period greater than 3 hours per day. Such outdoor use shall occur only between the hours of 9.30am- 11.30am and 2.30pm to 4.30pm. A maximum of 23 children shall be allowed to play outside at any one time except: during inclement or exsessively hot weather; open days; and orientation for new children.

(viii) Car parking

(ix) Drive Through Facility

(x) Waste Storage

(xi) Deliveries and Waste Collection

Deliveries of goods and the contracted collection of wastes associated with the child care centre are restricted to the hours of 10.00am – 2.00pm and 6.30pm - 8.00pm, Monday to Friday except for the delivery of milk and deliveries by staff using their own vehicles.

(xii) Landscaping

(xiii) Advertising Signs

Exempt and Complying Development DCP

(xiv) Number of Staff

The number of (full-time and part-time) staff on the premises at any one time shall not exceed ten (this is including a supervisor and a cook).

(xvi) Lighting

To maintain amenity for adjoining properties, all external lighting installed shall comply with Australian Standard 4282-1997 “Control of the Obtrusive Effects of Outdoor Lighting’.

External lighting about the premises shall be designed in accordance with Council’s “Lighting Code for Residential Areas” to avoid loss of amenity for adjoining residents.

(xvii)

_______________________

J S Murrell

Commissioner of the Court

ljr

CITATION:	Mesabo Pty Limited v Mosman Municipal Council [2004] NSWLEC 492 revised - 28/09/2004
PARTIES:	APPLICANT Mesabo Pty Limited RESPONDENT Mosman Municipal Council
FILE NUMBER(S):	10166 of 2004
CORAM:	Murrell C
KEY ISSUES:	Development Application :- Child care centre in residential area noise impacts on adjoining residential properties intensity of development demand for on street parking impact of proposed alterations additions on heritage item and conservation area
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Local Environmental Plan 1998 Mosman
CASES CITED:
DATES OF HEARING:	12/05/04-14/05/04 abd 21/05/04 Written submissions received 07/06/04
DATE OF JUDGMENT:	09/23/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr Andrew Pickles, barrister Mallesons, Stephens Jaques Solicitors RESPONDENT Mr Craig Leggat, barrister Pike Pike and Fenwick Solicitors

Plan Nos.	Date of plan	Prepared by
2115 DA01F	22.04.04	Colin Dalton & Associates
2115 DA02G	Colin Dalton & Associates
2115 DA03F	22.04.04	Colin Dalton & Associates
3036 Sheet 1 of 1	14/4/2003	Geomat Engineering Pty Ltd
LP01 Issue D	2004	Liz Leuchars Garden Design