Mirvac Projects v Randwick City Council - [2009] NSWLEC 1024

Land and Environment Court

of New South Wales

CITATION: Mirvac Projects v Randwick City Council [2009] NSWLEC 1024

PARTIES:
APPLICANT
Mirvac Projects Pty Limited
RESPONDENT
Randwick City Council

FILE NUMBER(S): 10701 of 2008

CORAM: Brown C

KEY ISSUES: DEVELOPMENT APPLICATION :- Stage 1 Concept Plan for the future residential development - traffic/access - provision of affordable housing - provision of pedestrian accessways

LEGISLATION CITED: Environmental Planning and Assessment Act 1979

CASES CITED: Newbury District Council v Secretary of State for the Environment [1981] AC 578

DATES OF HEARING: 10, 11/11/08, 19/12/08, 30/01/09

DATE OF JUDGMENT:
5 February 2009

LEGAL REPRESENTATIVES:
APPLICANT
Mr C Leggat SC
SOLICITORS
Lindsay Taylor Lawyers
REPONDENT
Mr A Seton, solicitor
SOLICITORS
Marsdens

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

5 February 2009

10701 of 2008 Mirvac Projects Pty Limited v Randwick City Council
JUDGMENT

1 COMMISSIONER: This is an appeal against the refusal of Randwick City Council (the council) of Development Application 77/208 for a Stage 1 Concept Plan for the future residential development of the property at 88-102 Moverly Road, South Coogee.

The site

2 The site is lot 1 in DP 789368. It is an irregularly shaped allotment with an area of approximately 6.74 ha. It contains four large buildings formerly used for housing of Department of Defence personnel, several small buildings, walkways, roads and car parks. The site has a variety of trees, shrubs and lawn. There is an existing variable height concrete retaining wall approximately 1 m from and extending most of the length of the eastern boundary of the site. The site has an access to Moverly Road via a single-entry driveway. The site has a fall of approximately 10 m from the north-eastern corner to the south-western corner.

3 The immediate environment is residential in nature with existing dwelling houses fronting Moverly Road adjoining the site to the east, and dwelling houses within the existing Moverly Green residential complex adjoining the site to the north, west and south. A section of the southern side of the site is bounded by Latham Park, a regional recreational park.

The Stage 1 Concept Plan

4 The Stage 1 Concept Plan proposes the following main elements:

bulk earthworks to re-grade the site for residential development, infrastructure works including internal roads and drainage,
Torrens title subdivision of the site into 10 super lots for later re-subdivision,
a central open space area of around 2000 sq m to 3000 sq m,
the designation of specific areas within the site to accommodate 150 to 160 new dwellings comprising a mix of residential types.
standards for the future construction of residential development including specific requirements for height, setback, storeys, floor space ratio and landscape areas.

Relevant planning controls

5 The site is within Zone No 5 (Special Uses Zone) under Randwick Local Environmental Plan 1998 (LEP 1998). The proposed development is permissible within the zone, being development for dwellings, dwelling houses and multi-unit housing.

6 Clause 9 provides that consideration is to be given to the extent to which the proposed development is consistent with the general aims of LEP 1998 and the specific objectives of the zone. Clause 2 contains the LEP 1998 aims, cl 17 contains the zone objectives, cl 37A provides requirements for Development within Special Uses Zone, cl 40 provides requirements for Excavation and filling and cl 40A provides requirements for Master plans.

The council issues

7 The issues raised by the council relate to:

The resident issues

8 The following residents provided evidence on site:

Ms Felicia Harris, the Secretary of the Moverly Precinct Committee,
Ms Jocelyn McGirr of 12 Cedar Place, South Coogee
Mr Alex Kanikevich of 106 Moverly Road, South Coogee
Ms Anne Collings of 128 Moverly Road, South Coogee
Mr Vladimir Gilbourd of 28 Cedar Place, South Coogee
Mr Ian Paterson of 20 Cedar Place, South Coogee
Mr Gordon Pitstock of 16 Cedar Place, South Coogee
Mr Michael Burton of 70 Jacaranda Place, South Coogee and
Mr Graeme Harrison of 14 Tucabia Street, South Coogee.

9 The residents raised one or more of the following concerns:

the proposed form of development is not compatible with the existing character of the area;
unacceptable levels of traffic, particularly close to the nearby school;
the proposed park is impractical and the area would be better used to relocate dwellings away from the side boundaries that adjoin existing residential development;
the density is unacceptable, particularly the area near the entrance to the site;
channelling vehicles into adjoining residential areas is totally unacceptable;
loss of views;
overshadowing;
loss of privacy;
loss of vegetation; and
an additional easement should be created to provide a further area for sewage disposal.

Traffic

10 The issue of whether traffic calming facilities should be provided near the entrance to the site was addressed by Mr Joshua Hollis for the applicant and Mr Giuseppe Ingegneri for the council. Mr Hollis’s position was that no additional facilities were needed, whereas Mr Ingegneri advocated channelisation facilities at the intersection of Moverly Road with Macleay Street and Byrne Avenue, located just to the north and south respectively of the access point to the site. The effect of the channelisation facilities would be to slow traffic at the entrance to the site because of the unacceptable speed of existing vehicles on Moverly Road near the entrance to the site.

11 Both Mr Hollis and Mr Ingegneri independently conducted speed measurements near the entrance to the site although their measurements were taken at different locations, at different times and at different frequencies. Both experts relied on the AUSROADS 2005 document, Guide to Traffic Generating Practice, Part 5, Intersections at Grade for their assessment. The results indicate an agreed 85th percentile speed for south travelling vehicles of 57 kph and a 85th percentile speed range between 49 kph (for Mr Hollis) and 56 kph (for Mr Ingegneri) for north travelling vehicles. The posted speed limit at the entrance to the site is 50 kph.

12 There was general agreement between Mr Hollis and Mr Ingegneri that the sight distance for the access point was around 90 m to 93 m in a southerly direction and around 195 m in a northerly direction, using the method specified in cl 6.2.2.1 of AUSROADS 2005. Clause 6.2.2 identifies a number of types of site distances that should be considered in designing intersections. The experts focused on the Safe Intersection Sight Distance (SISD) and the Entering Sight Distance (ESD). Put simply, SISD should be the minimum sight distance provided and the ESD is the most desirable but rarely achieved sight distance.

13 In balancing the different conclusions of the experts, I am satisfied that the conclusions of Mr Ingegneri should be adopted for a number of reasons; Firstly, for vehicles travelling in a northerly direction, the SISD for 50 kph is 89 m. This satisfies the agreed sight distance of 90 m to 93 m except that Mr Ingegneri states that the SISD for 60 km ph should be used based on his survey results. This requires a sight distance of 113 m based on his surveyed speed of 56 kph (by rounding up to 60 kph). While Mr Ingegneri’s speed recordings were not taken directly at the access point (as were Mr Hollis’s), I am more inclined to accept his speed readings because they were conducted over a week whereas Mr Hollis’s were conducted for only three and a half hours on two separate days. The location of the different measurement points, in my view, was not so significant that the differences in speed should be so large. If for no other reason a cautious approach should be adopted.

14 Secondly, for vehicles travelling in a southerly direction, there was agreement between Mr Hollis and Mr Ingegneri that the unobstructed sight distance was around 195 m. This distance satisfies both the ESD and SISD site distances for 60 kph. However, Mr Ingegneri, in my view, correctly adopts the position that the 195 m sight distance is likely to be blocked by vehicles parking at the kerb along Moverly Road, particularly where there is unrestricted parking and a school nearby. In his assessment, this could reduce the sight distance to around 70 m. While Mr Hollis states that the vehicles travelling south are likely to be visible through and between the cars parked in Moverly Road, this is clearly not an optimal situation particularly where traffic facilities can be easily provided to reduce the speed of vehicles.

15 Thirdly, Mr Ingegneri estimates the total cost of the two separate traffic channelisation facilities at around $40,000. Mr Hollis did not disagree with this cost estimate. In my view, the cost is not onerous taking into account the size of the proposed development and the clear benefits it will achieve in speed reduction at the access point of the proposed development.

16 Fourthly, and while there is no accident history for the previous use of the site at the intersection with Moverly Road, I do not consider this to be a valid reason to maintain the current access arrangements after considering the requirements in AUSROADS 2005.

17 For these reasons, the traffic measures proposed by Mr Ingegneri should be adopted as contained in the additional condition proposed by Mr Ingegneri (Exhibit 8) with the exception that the plan for the channelisation should be approved prior to the issuing of the construction certificate and the works completed prior to the issuing of any occupation certificate.

Affordable housing

18 The issue of whether the applicant should provide a two-bedroom unit at no cost to the council for affordable housing was addressed by Mr David Ongkili for the council and Ms Helen Mulcahy for the applicant. Mr Ongkili states that the council has identified there is a need for affordable housing in the Local Government area in their study Affordable Housing Strategic Action Plan 2008-2018. Also, cl 40A(5)(u) provides that “where appropriate… a Master plan is to address, illustrate and explain the provision of housing mix and tenure including affordable housing”.

19 Mr Seton submits that this requirement has not been fulfilled and as such approval cannot be granted. This clause is “appropriate” in this case and that the affordable housing objectives inserted in LEP 1998 by Amendment 22 on 19 August 2005 also support the provision of affordable housing. .

20 Ms Mulcahy states that State Environmental Planning Policy No 70 - Affordable Housing (SEPP 70) inserts affordable housing provisions into environmental planning instruments in the Greater Metropolitan region. Clause 9 identifies the local government areas where there is a need for affordable housing. The clause does not include the Randwick local government area. In her opinion, cl 40A(5)(u) is inconsistent with SEPP 70 and as such there is no requirement for the development to make provision for affordable housing. Mr Leggat SC for the applicant submitted that the application of this clause is not “appropriate” in this case and as such cl 40A(5) does not apply.

21 There was agreement that the provisions of cl 40A apply (putting aside the test of whether it is “appropriate”) even though the application was submitted under the staged development provisions of cl 83C of the Environmental Planning and Assessment Ac 1979. It was also agreed that there was no power within LEP 1998 to require the provision of affordable housing, even though a need may have been established through the Affordable Housing Strategic Action Plan 2008-2018.

22 In this case, I am satisfied that the council’s requirement for the provision of a two-bedroom unit for affordable housing cannot be justified. The ultimate test of whether a condition can be imposed is set out in Newbury District Council v Secretary of State for the Environment [1981] AC 578. In order to be valid, a condition under the Newbury test must:

23 In this case, I do not accept that the condition satisfies the second test in Newbury, that is, it does not fairly and reasonably relate to the proposed development. In the absence of any other enabling provision in the LEP 1998 (or elsewhere) there was no evidence to indicate that the proposed development would displace any person who was accommodated in affordable housing or even that the existing buildings on the site were used for affordable housing. On this basis, it would not be fair or reasonable to impose a requirement on the applicant to provide affordable housing. In saying this, there is no barrier to the provision of affordable housing through a Voluntary Planning Agreement however such a requirement is not a matter that can be enforced on the applicant by the Court.

Site access

24 Mr Ongkili, Ms Mulcahy and Ms Gabrielle Morrish, an architect and urban designer, addressed the issue of site access and permeability.

Vehicular access

25 Mr Ongkili states additional vehicular access points into the development are required to provide increased travel choice through alternate vehicular travel routes and increased directional choice by allowing the development to be approached in different directions. Mr Ongkili requires additional vehicular access points to the east and west of the site although without identifying specific locations.

26 Ms Mulcahy and Ms Morrish do not agree that additional vehicular accesses should be provided. Ms Mulcahy states that the proposed vehicular access arrangements provide a controlled access arrangement that can accommodate the traffic generated by the proposed development in a safe and controlled manner. Ms Morrish sees the additional vehicular connectivity as undesirable for a number of reasons, including the existing road layout of Moverly Green to the west, the need for council to purchase between two and four dwellings and the lack of benefit to cars leaving the site via other roads in the area. The residents of Moverly Green opposed any connection to the existing roads serving this residential development.

27 On the issue of additional vehicular access, I agree with Ms Mulcahy and Ms Morrish. I see no benefit in providing additional vehicular access to Moverly Road or Moverly Green considering the size of the proposed development and the little, if any, advantage in terms of additional travel routes and choice that these would provide. In my view, the disadvantages to the residents of Moverly Green are significant, given the potential additional traffic to a development that currently has no through traffic. Similarly, I see no benefit in another access to Moverly Road as any access would be only a short distance north of the proposed access way and in proximity to an existing school. There was no suggestion that additional vehicular access points were required to dilute the level of traffic using the proposed access point on Moverly Road.

Pedestrian access

28 Mr Ongkili states that pedestrian connectivity is an important consideration as it will allow access to a wide range of facilities in the area. Ms Mulcahy and Ms Morrish do not disagree with Mr Ongkilli and support pedestrian links to the east and west. In their opinion, this should be by way of extinguishable easements over existing lots to allow council to acquire the relevant properties to extend the pedestrian routes to Moverly Road and Moverly Green. If not acquired within a period of around 15 years, the easement should be extinguished.

29 There was no disagreement between the experts as to the need for additional east and west pedestrian links. As with the additional vehicular access, no specific locations were identified for the pedestrian links. In my view, these links make good planning sense by providing ready pedestrian access to Moverly Road and the school to the east and the proposed Randwick Environmental Park to the west. I accept that if access was only obtainable to the facilities outside the site via the proposed road

30 The disagreement between the experts centred on how the links should be created and who is responsible for their acquisition. I do not accept the approach advocated by Ms Morrish where the acquisition rests with the council. In my view, as the need for the additional pedestrian access is generated by the proposed development then it fall squarely on the applicant to provide the pedestrian access points, including their acquisition and dedication. While other residents may make some use of the new pedestrian access points, the need is generated largely, if not solely by the proposed development. As there was no dispute as to the need, the applicant must satisfy the council as to their ability to acquire and dedicate the accessways.

31 Interim findings were made on the council’s issues on 12 November 2008 however the issue of future pedestrian access will require further discussion between the parties it was agreed that the proceedings be adjourned to allow this further discussion. The parties consequently agreed that the proceedings be relisted on 19 December 2008 for further submissions on the outstanding issue of additional pedestrian access to the site.

Resident concerns

32 Of the matters raised by the local residents, many go to the design philosophy for the site. These are not matters that were in dispute and it would be inappropriate for the Court to essentially reassess the planning approach adopted by the council. I note that the additional requirements from the council’s Residential Development Control Plan in relation to privacy and overshadowing are to be included in the Master plan so there can be no doubt as to the appropriate assessment criteria for future stages of the development.

Further submissions on pedestrian access

33 At the reconvened hearing on 19 December 2008, Mr Leggat provided a number of options to address the remaining issue. For the easterly access, Mr Leggat stated that access could be obtained through 132 Moverly Road. Contracts had been prepared for its purchase and a concept plan drawn to show how the access could be constructed. In my understanding, the council accepted the access over this property subject to there being no cost to the council. The timing for the acquisition and construction is discussed later in the judgement.

34 The western access was not so easily resolved. Mr Leggat provided two options. Option 1 provided future access to the west over one of a range of lots identified on a plan and marked "Access Precinct B”. This area occupies part of Stage 2 and Stage 3 of the proposed development and adjoins 13 properties with frontage to Argyle Crescent and Grevillea Place in Moverly Green. Mr Leggat submitted that it is likely that one of the identified properties will come onto the market in the near future and at this time the property would be acquired and access to the west provided. The option contained a requirement that the access must be provided prior to the occupation of new dwellings in "Access Precinct B”.

35 Option 2 is similar to Option 1 but specifically identifies 23 Argyle Crescent as the location for the westerly pedestrian access rather than one lot from the range of lots in "Access Precinct B”. The timing under Option 2 is identical to that in Option 1.

36 Options 1 and 2 both contain an identical alternate access provision if these options are not acceptable. This involves the applicant constructing an accessway through Latham Park, directly to the south of the site and then connecting to a pedestrian access in Cedar Place.

37 Dealing first with the alternate option of access through Latham Park, Mr Leggat submits that this satisfies the requirement for the westerly pedestrian link. Mr Seton submits that this access is unacceptable, as it does not satisfy the requirements for the westerly link based on the undisputed evidence of all the experts that required the link to be in the general area of the proposed internal east-west road. Further, there was no approval to use the council reserve and any approval was unlikely even if an application was made.

38 On the alternate option, I agree with the council that it is inappropriate. Putting aside the approval issue, I find it is unacceptable in a town planning sense. The objective of the western link is to allow the future residents of the development to gain access to the west. This access should be located to minimise travel time and distance for pedestrians. While access to the west is available through an existing link to Tallow Place, this link is at the very north of the site. If the objective is to minimise travel time and distance for pedestrians, a pedestrian link at the very south of the site is inconsistent with this objective and should be rejected.

39 This leaves two issues associated with the westerly pedestrian link. Firstly the location of the link, that is through 23 Argyle Crescent or within one of a lots adjoining "Access Precinct B” and secondly the timing of the acquisition and construction of the link.

40 On the first issue, I am satisfied that there should be some flexibility in locating the potential access point to the west however not to the extent shown in "Access Precinct B”. In my view, the potential access points should be limited to the lots adjoining Stage 2, that is, including and to the south of 23 Argyle Crescent. Any one of these lots would provide an access point generally equidistant between the access point at Tallow Place to the north and Latham Park to the south.

41 On the second issue, and accepting the need to ensure that the accessways will be available for future residents in both and easterly and westerly direction, it is appropriate that these links be in the ownership of the applicant and approval granted for the construction prior to the approval of any works associated with Stages 2, 3, 4 and 5 (or any approval beyond a Stage 1, if the staging varies). As there is a clear nexus between the needs of the future residents of the development and availability of the pedestrian accessways, their construction should be completed and available for use prior to the issuing of any Occupation Certificates for buildings on the site.

42 In terms of configuration of the accessways, I accept that the pedestrian accessways should have an overall width of 2.5 m, comprising a 1.5 m wide footway and 0.5 m of landscaping on each side of the footway.

43 The parties were directed to confer and amend the draft conditions to address the findings in the judgment. As the conditions had not been filed, a further Mention was held on 30 January 2009 where the parties advised that the conditions had been prepared to address the previously identified issues over access however a further issue had arose over the council's requirements for the undergrounding overhead power lines across Moverley Street (condition 33). The parties were directed to provide written submissions on this issue by close of business 3 February 2009.

44 The applicant submits that the condition should not be imposed because it does not fairly and reasonably relate to the development. The cables are physically remote from the development site and do not even traverse the small access frontage of the development. The council submits that the condition is imposed by way of a general resolution of the council on 8 November 2005.

45 On this issue, I agree with the submissions of the applicant that there is no basis for the imposition of condition 33, as it does not fairly and reasonably relate to the development and as such can be deleted.

Orders

46 The Orders of the Court are:

___________

G T Brown

Commissioner of the Court

ANNEXURE A

CONDITIONS OF CONSENT

Stage 1 of the Staged development application of Lot 1 in Deposited Plan 789368, 88-102 Moverly Road, South Coogee

The following conditions are applied to satisfy the provisions of section 79C of the Environmental Planning and Assessment Act 1979 and to maintain reasonable levels of environmental amenity.

1. Consent is granted to the concept proposal and Stage 1 of the Staged development application only in respect of the land described as Lot 1 in Deposited Plan 789368, 88-102 Moverly Road, South Coogee subject to the conditions that follow.

2. This consent does not authorise the carrying out of development on any part of the site other than Stage 1 which comprises:

3. The concept plan proposal and Stage 1 of the development to which consent is given are described in the following plans and documents:

4. While this consent remains in force determination of any further development application in respect of the site to which this consent applies must not be inconsistent with this consent and the plans and documents referred to in condition 3.

4A. Development consent must not be granted for any of Stages 2, 3, 4 or 5 of the concept plan proposal until land is acquired by the developer and development consent obtained to provide a 2.5metre wide (comprising 1.5 metre footpath and 0.5 metre landscaped strips on either side) public pedestrian access way from the internal roads of the development:

(a) to the east to Moverly Road, South Coogee through No. 132 Moverly Road; and
(b) to the west to either Argyle Crescent or Grevillea Place, South Coogee through a property between Lot 248 DP 834862 and Lot 329 in DP 840804.

4B. Prior to the issue of any occupation certificate for any dwelling erected upon the land the developer must have completed the construction of the public pedestrian access ways referred to in condition 4A above.

The following Conditions are to be satisfied prior to the issuing of either a development consent for Stage 2 works or construction certificate/occupation certificate (as referred to in the condition) associated with Stage 1 works.

The following condition is applied to meet additional demands for public facilities:

5. In accordance with Council’s Section 94A Development Contributions Plan effective from 2 July 2007, the following monetary levy must be paid to Council.

Category	Cost	Applicable Levy	S94A Levy
Development cost $100,001 - $200,000	-	0.5%	-
Development Cost More than $200,000	$10,956,000.00	1.0%	$109, 560.00

The levy must be paid in cash, bank cheque or by credit card prior to a construction certificate being issued for the proposed development. The development is subject to an index to reflect quarterly variations in the Consumer Price Index (CPI) from the date of Council’s determination to the date of payment.

The following conditions are applied to provide adequate security against damage to Council’s infrastructure:

6. The following damage/civil works security deposit requirement is to be complied with prior to commencement of any site construction or demolition works, as security for making good any damage caused to the roadway, footway, verge or any public place; or as security for completing any public work; and for remedying any defect on such public works, in accordance with section 80A(6) of the Environmental Planning and Assessment Act 1979:

$20,000.00 – Damage/Civil Works Security deposit

The damage/civil works security deposit may be provided by way of a cash or cheque with the Council and is refundable upon:

A satisfactory inspection by Council following completion of all works that no damage has occurred to the Council assets such as roadway, kerb, guttering, drainage pits footway, or verge; and

The applicant is to advise Council in writing and/or photographs of any signs of existing damage to the Council roadway, footway, or verge prior to the commencement of any building/demolition works.

The following conditions are applied to provide adequate provisions for access, transport and infrastructure:

7. Deleted

7A. ‘Dwelling houses must be designed to allow two (2) cars to be parked wholly within the allotment. Where a dwelling on an allotment will not have parking in a garage for two (2) cars, the setback of the garage along the proposed internal driveway from the road frontage must be no less than 5 – 5.5m.’

8. All work associated with the proposed development, both within the development site and in Moverly Road, shall be at no cost to the Council.

9. A separate written approval from Council is required to be obtained in relation to all works which are located externally from the site within the road reserve/public place, in accordance with the requirements of the Road Act 1993. Detailed plans and specifications of the proposed works are to be submitted to and approved by the Director of City services prior to commencing any works within the road reserve/public place.

All works within the road reserve/public place must be carried out to the satisfaction of Council and certification from a certified practicing engineer is to be provided to Council upon completion of the works.
Relevant Council assessment and inspection fees, as specified in Council’s adopted Pricing Policy, are required to be paid to Council prior to commencement of the works.

10. Road intersections within the development site and at the intersection of the development site with Moverly Road must be designed with a minimum turning radius of 10.5 metres. Larger trucks such as 12.5 metre removalist trucks must be able to navigate the intersections without mounting kerbs but may mount medians provided that the medians are to be suitably reinforced. The requirement in relation to 12.5 metre trucks does not apply to all intersections related to Roads 4 and 5, as depicted on Drawing No. CDA 9205 Revision B dated 7 October 2008. All future development applications for civil infrastructure within this site and any Construction Certificate for Stage 1 works must demonstrate compliance with this requirement.

11. All internal roads within the proposed development site must be constructed to Council’s specification and requirements. The minimum standards for carriageway, verge widths and road reserve widths shall be generally as documented in Drawing No. A0015 Revision B as amended by the following:

2.3 metre wide parking lane on the left hand side with a minimum 3 metre wide travelling lane measured to the lip of the gutter. Thus a carriageway width of 5.75 metres will be attained, with 3 metre wide road verges and 1.5 metre wide footpaths on both sides creating an 11.75 metre wide road reserve. Note: notwithstanding the above requirements the dimensions of any one way street must be such that adequate vehicle manoeuvring space is available for vehicles to enter/exit vehicular crossings and internal driveways.

Notes:

a. A detailed analysis of vehicle turning manoeuvres must be undertaken by the applicant for vehicles to enter/exit vehicular crossings and internal driveways within any one way street. The analysis must be submitted to Council for approval, and be approved, prior to the issuing of any development consent for the Stage 2 application and prior to the issuing of a construction Certificate for any Stage 1 works
b. Council’s preference is for the proposed kerb and gutter within the development site to be Council’s standard integral kerb and gutter. Roll kerb will only be considered in areas where vehicular crossings are in very close proximity to one another.

12. All internal roads within the development site shall be dedicated to Council, at no cost to Council, following construction of the roads to Council’s design standards and specification.

13. All civil infrastructure within the development must be constructed to Council’s design standards and specifications. The applicant must liaise with Council’s Development Engineer Coordinator regarding the Council’s relevant design standards and specification prior to lodgement of any future development application for the provision of civil infrastructure and prior to lodgement of any Construction Certificate for Stage 1 works.

14. Prior to the issuing of development consent for any Stage 2 application and prior to the issuing of a construction certificate for the Stage 1 site the applicant shall submit to Council for approval, and have approved, engineering details, specifications, plans and quality plans for all filling/excavation works, drainage construction works, roadworks, kerb and gutter construction, footpath construction, construction of earth retaining structures, play equipment, landscaping works and site regrading, (including detailed levels, contours and cross sections that make reference to both existing and proposed surface levels). The engineering details and specifications shall specifically relate to those areas within the development site that are proposed for dedication to Council and shall include level and survey information, materials to be used, construction techniques and testing procedures and shall be prepared in consultation with Council. The engineering details and specifications must be prepared by suitably qualified engineering consultants who must certify that the details and specifications meet best engineering practice and relevant standards. The applicant must liaise with Council’s Development Engineer Coordinator prior to preparation of the subject details/specification. Note: Council will not take dedication of any area/infrastructure that has not been constructed in strict compliance with the approved details/specification.

15. The drainage construction specification and details referred to in the previous condition shall include the following:

Supply, laying and backfilling of the stormwater pipelines.
Construction of stormwater pits and other associated structures.

The applicant shall note the following when preparing the specification:

a) All future Council stormwater pipelines shall be constructed with spigot and socket rubber ringed jointed, steel reinforced concrete pipeline (RRRCP). The Council stormwater pipelines shall be a minimum of 375mm diameter. Prior to backfilling, the pipeline shall be inspected and approved by the Certifying Authority.

Generally backfill material for the pipeline trench shall be:-

clean sand.

watered in.

compacted in 150 mm layers with a minimum 97% relative compaction.

Note that should Council be the Certifying Authority, the applicant shall liaise with Council’s Director of Asset and Infrastructure regarding payment for the required inspections (2 working days clear notice shall be given prior to the required inspection/s)
b) All standard extended kerb inlet pits shall be constructed:-

(i) in “situ” (a precast pit will be acceptable only in a park or reserve).
(ii) in accordance with Council’s drawings SD 3 or SD 8 (subject to the depth and/or the size of the pipeline).
(iii) with a minimum concrete strength of 32 Mpa.

c) All standard junction pits shall be constructed:-

(i) in “situ” (a precast pit will be acceptable only in a park or reserve).
(ii) in accordance with Council’s drawing SD 4.
(iii) with a minimum concrete strength of 32 Mpa.

d) All other pits that cannot be constructed to the above details shall be designed by a structural engineer. The detail of the pit/s shall in general, be similar to SD 3 (for an inlet pit) or SD 4 (for a junction pit). Note that all pits shall be;-

(i) benched with a minimum 75 mm concrete.
(ii) constructed with a minimum concrete strength of 32 Mpa.

16. The minimum design serviceable life for all road pavements shall be 40 years, (with the minimum design traffic ESA’s for the travel lanes of the pavement and the parking areas to be obtained from Council’s Development Engineer Coordinator) and designed in accordance with AUSTROADS PAVEMENT DESIGN GUIDE. All other infrastructure i.e. kerb and gutter, footpaths, retaining walls, pipe drainage etc shall have a minimum design serviceable life of 80 years. The specification and engineering details prepared for the Stage 2 Development Application and for any Construction Certificate for Stage 1 works must demonstrate compliance with this requirement.

17. All civil infrastructure that is to be dedicated to Council must be constructed strictly in accordance with the Council approved specification and in compliance with the above minimum design serviceable life requirements.

18. All civil construction works within/associated with the development site shall be constructed in accordance with the approved engineering details and specifications referred to above and shall be undertaken and paid for by the applicant.

19. Prior to the issuing of any development consent for the Stage 2 application and prior to the issuing of a construction Certificate for any Stage 1 works the applicant must demonstrate to Council, through the use of detailed swept path analysis, that the internal road design will operate satisfactorily for service and delivery vehicles, in accordance with condition 10.

The applicant shall meet the full cost for the design and construction of all new civil infrastructure, traffic facilities, signposting and alterations to existing infrastructure within the development site, adjacent to the development site and in Moverly Road.

20. The applicant must meet the full cost for Council or a Council approved contractor to repair/replace any damaged sections of Council's footpath, kerb & gutter, nature strip etc which are due to building works being carried out at the above site. This includes the removal of cement slurry from Council's footpath and roadway.

21. The applicant shall note that all external work, carried out on Council property, shall be in accordance with Council's Policy for "Vehicular Access and Road and Drainage Works". An application for the cost of the Council civil works is to be submitted to Council at the completion of the internal building works. An application fee shall be payable to Council for the quotation of the required works. The applicant may elect to use his contractor for the required works, subject to Council approval, however a design and supervision fee based on the lowest quotation from Council's nominated contractor will be required to be paid prior to the commencement of any works.

22. All new walls adjacent to vehicular crossings must be lowered to a height of 600mm above the internal driveway level for a distance of 1.50m within the site or splayed 1.5 metre by 1.5 metre to provide satisfactory sight lines. Details are to be submitted to the Certifying Authority prior to the release of the relevant construction certificate showing compliance with this condition.

23.

a. The number of carspaces to be provided within the development site shall, as a minimum, be in general accordance with the relevant sections of Council’s Development Control Plan – Parking. Details of parking provision calculations and proposed allocation of spaces shall be provided with the Stage 2 Development Application.
b. The design of all dwellings adjacent to the boundary of the site shall maintain appropriate sunlight access to adjoining properties. In this regard, the design of those dwellings shall comply with Preferred Solution “S2” at page 25 of Council’s DCP – Dwelling Houses and Attached Dual Occupancies as amended on 26 November 2002 and effective from 20 December 2002.

24. Prior to the issuing of any development consent for the Stage 2 application and prior to the issuing of a construction Certificate for any Stage 1 works the applicant shall submit for approval and have approved by Council's Traffic Engineer a detailed construction traffic management plan. The plan shall demonstrate how construction and delivery vehicles will access the development site during the demolition and construction phase of the development.

25. All traffic associated with the subject development shall comply with the terms of the approved construction traffic management plan.

26. Prior to the issuing of a construction Certificate for any Stage 1 works, the applicant is to provide a Plan of Management for the existing retaining wall along the eastern boundary of the subject site.

Prior to the issuing of a subdivision certificate for Stage 4, the following information shall be submitted to and approved by Council’s Director City Planning:

Measures and procedures to be used to maintain and repair the wall along its full length within Stage 4 and Stage 5 (including access to the wall for machinery and repair vehicles)

Responsibilities for the maintenance and repair of the wall (including how it is intended for private owners of future allotments abutting this wall to be made aware of their responsibilities in relation to the maintenance and repair of this wall – this may include appropriate covenants on individual allotment titles or on the overall community title whichever is applicable)

The following conditions are applied to provide adequate provisions for future civil works in the road reserve:

27.

a. The design alignment level (concrete/paved/tiled level) at the Moverly Road property boundary for driveways, internal roads, access ramps and pathways or the like must be obtained in writing from Council’s Development Engineer Coordinator prior to the issuing of any development consent for the Stage 2 application and prior to the issuing of a construction Certificate for any Stage 1 works. The alignment level to be issued shall be determined following design of the required traffic management device in Moverly Road.

b. The applicant must design and construct channelisation traffic facilities on Moverly Road at its intersection with Macleay Street and Byrne Avenue. The traffic facilities shall achieve a reduction of vehicle speeds by narrowing the carriageway and deflecting the traffic (if design permits). The channelisation is to be achieved with concrete traffic islands, linemarking and signs but is to minimise the loss of parking. The traffic facility shall be designed to accommodate all existing vehicle manoeuvres. The design shall be in accordance with relevant traffic facility design guidelines and Randwick City Council standards. The applicant must contact Randwick Council’s Manager Integrated Transport prior to undertaking any investigation / design work to obtain Randwick Council’s requirements for the traffic facilities. Design plans for the traffic facilities must be submitted to Randwick Council for approval, and be approved prior to the issuing of a Construction Certificate for any Stage 1 works and must be constructed prior to the issuing of an occupation certificate for any Stage 2 application.

The developer shall be responsible for all public utility adjustment / relocation works and costs, necessitated by the above work. These works shall be undertaken as required by the relevant public utility authorities and / or their agents.

28. The above alignment levels and the site inspection by Council’s Development Engineer have been issued at a prescribed fee of $880 calculated at $44.00 (inclusive of GST) per metre of site frontage to Moverly Road. This amount is to be paid prior to a construction certificate being issued for the development.

The following conditions are applied to provide adequate consideration for Service authority assets:

29. A public utility impact assessment must be carried out on all public utility services on the site, roadway, nature strip, footpath, public reserve or any public areas associated with and/or adjacent to the development/building works and include relevant information from public utility authorities and exploratory trenching or pot-holing, if necessary, to determine the position and level of service.

30. The applicant must meet the full cost for telecommunication companies, gas providers Energy Australia and Sydney Water to adjust/repair/relocate their services as required. The applicant must make the necessary arrangements with the service authority.

31. Any electricity substation required for the site as a consequence of this development shall be located within the site and shall be screened from view. The proposed location and elevation shall be shown on all detailed landscape drawings and specifications. The applicant must liaise with Energy Australia prior to lodging the construction certificate to determine whether or not an electricity substation is required for the development.

32. All public utility / telecommunication services within the site must be located underground. All street lighting is to be provided on Energy Australia approved light poles and connected to the Energy Australia street lighting system.

33. Deleted.

34. A Section 73 Compliance Certificate under the Sydney water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to "Your Business" section of Sydney Water's web site at 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 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 Notice must be issued to the Principal Certifying Authority prior to the construction certificate being issued.
The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the plan of subdivision.

34A. All Energy Australia Service Turrets shall be recessed wholly into the property boundaries/behind the prevailing property alignment, so that the turrets do not cause a trip hazard and the turrets do not hinder or obstruct the movement, access and enjoyment of the road reserve. The applicant is advised that should Energy Australia require the turrets to be located within the road reserve the applicant will be required to dedicate land to Council, the dimensions of such dedication/s shall be as required to satisfy all of Energy Australia’s requirements.

The following conditions are applied to provide adequate provisions for drainage and associated infrastructure:

35. Any future development application and any Construction Certificate for Stage 1 works for the subject development site must demonstrate compliance with the following to council's satisfaction:

All allotments must be suitably protected from stormwater inundation for up to the 1 in 100 year ARI levels.
All allotments adjacent to secondary overland flow paths (i.e. flowpaths other than roads) must be a minimum of 300 millimetres above calculated 1in 100 year ARI water levels.
The internal pipe system must be designed to cater for the critical 1 in 20 year ARI storm event with overland flows contained within the roadways or other suitable flowpaths for up to the 1in 100 year storm event. The applicant must fully demonstrate compliance with this requirement and make specific reference to the operation of the bioretention swales during major storm events.
The velocity depth restriction of VDs < 0.4 for a 1 in 100 year ARI storm should be applied along the overland flow paths.

36. Any future development application for the subject site must provide details showing indicative pipe sizes, pit locations, pipe locations and any associated drainage easements, interallotment drainage pipelines and associated interallotment drainage easements. Plans must identify the road network, pipe/pit network, catchments draining to the various pipes/drainage pits, location of potential overland flow paths, levels of properties adjacent to overland flow paths and level information on the roads in general.

37. Prior to lodgement of a Stage 2 Development Application and prior to lodgement of any Construction Certificate for Stage 1 works the applicant must either:

a. undertake a detailed analysis of the existing flowpath regime through/surrounding and downstream of the development site and compare that with proposed flowpaths post development. The applicant must provide sufficient documentation/evidence to Council to indicate that the proposed development will not increase the depth of overland flow in areas outside the development site and that no property downstream of the development site will be adversely affected as a result of the proposed development for storm events up to the 1 in 100 year ARI event. The applicant must liaise with Council’s Development Engineer Coordinator regarding Council’s requirements for the detailed analysis prior to undertaking the analysis, or
b. use an onsite stormwater detention system located within the development site, including proposed road reserves, (as referenced in Drainage Concept Plan Drawing No. CDA 9212 Revision B,) subject to:

1. full hydraulic, construction and maintenance details being submitted to Council for approval, and being approved, prior to lodgement of a Stage 2 development application and prior to lodgement of any Construction Certificate for Stage 1 works, and 2. the capacity of the existing downstream stormwater pipe through 23 Argyle Crescent not being exceeded for all stormwater events up to the 100 year ARI event.

38. Prior to lodgement of a Stage 2 Development Application and prior to lodgement of any Construction Certificate for Stage 1 works the applicant must either:

a. undertake a detailed analysis of the existing site stormwater drainage system and the proposed stormwater drainage system, (piped and overland flow). The applicant must provide sufficient documentation/evidence to Council that the proposed site stormwater drainage system will not increase the depth of overland flow in areas outside the development site, will not adversely impact on Council’s stormwater drainage infrastructure and that no property downstream of the development site will be adversely affected as a result of the proposed development for storm events up to the 1 in 100 year ARI event. The applicant must liaise with Council’s Development Engineer Coordinator regarding Council’s requirements for the detailed analysis prior to undertaking the analysis, or
b. use an onsite stormwater detention system located within the development site, including proposed road reserves, (as referenced in Drainage Concept Plan Drawing No. CDA 9212 Revision B,) subject to:

1. full hydraulic, construction and maintenance details being submitted to Council for approval, and being approved, prior to lodgement of a Stage 2 development application and prior to lodgement of any Construction Certificate for Stage 1 works, and
2. the capacity of the existing downstream stormwater pipe through 23 Argyle Crescent not being exceeded for all stormwater events up to the 100 year ARI event

39. Prior to lodgement of a Stage 2 Development Application and prior to lodgement of any Construction Certificate for Stage 1 works the applicant must provide to Council full details of any proposed stormwater infrastructure to be constructed external to the site and within land not owned by either the applicant or by Council. The applicant must either demonstrate that in principle support for the infrastructure has been provided by the relevant landholder or provide sufficient documentation that construction of the infrastructure and creation of suitable associated easements can be legally enforced. Should the applicant be unable to obtain the necessary agreements or demonstrate to Council that creation of the easement and construction of the infrastructure can be legally enforced then an alternate stormwater drainage scheme must be developed. The applicant is advised to liaise with Council’s Development Engineer Coordinator regarding these requirements.

40. Prior to the issuing of a Construction Certificate for any Stage 1 works and prior to the issuing of development consent for any Stage 2 application the applicant shall submit to the Principal Certifying Authority for approval, and have approved, a detailed stormwater drainage plan. The applicant must liaise with Council, prior to preparation of the drainage plan, to obtain Council’s requirements for drainage works within, and adjacent to the development site.

Details shall include, but not be limited to:

A detailed drainage study/analysis identifying the catchment areas upstream of the site and the stormwater flows generated from these catchments, together with the catchment areas within the site and the flows generated from same. The study/analysis shall identify the overland flow rates and depths of flow from storm events up to the 1 in 100 year annual recurrence interval within the streets of the subdivision. Information submitted shall be generally in accordance with the flood study requirements of the latest draft “FLOODPLAIN MANAGEMENT MANUAL” (ISBN 07313 0370 9).

Confirmation of the existing and proposed finished surface levels within the development site. Documentation of the change in surface levels is required together with volumes of material imported or exported from the site.

Gross pollutant trap details (GPT). Note that any proposed GPT shall be designed in accordance Council’s specification and guidelines for determining Gross Pollutant Trap/s. The GPT’s are to be located within the road carriageway.

Stormwater drainage plans, pipeline longitudinal sections and calculations in general accordance with the recommendations of the Floodplain Management Manual” and “Australian Rainfall and Runoff, 1997 Edition).

Full design and “for construction” details of any onsite stormwater detention system.

Typical cross sections for all roads, laneways, private laneways/right of carriageways.

41. The calculations, plans, longitudinal sections and details for the roads and stormwater drainage referenced above shall include the following information:

a) A detailed drainage design at a scale of 1:200 and a catchment area plan at a scale of 1:1000 or as considered acceptable by the Certifying Authority, and drainage calculations prepared in accordance with the Institution of Engineers publication, Australian Rainfall and Run-off, 1987 edition.

b) A layout of the proposed drainage system including pipe sizes, type, grade, length, invert levels, etc., dimensions and types of all drainage pipes and the connection into Council's stormwater system.

Note: Generally all proposed stormwater drainage pipelines shall be capable of discharging a minimum 1 in 20 year storm flow.

c) Proposed finished surface levels and grades of roads, parks, internal driveways and access aisles, which are to be related to Council’s design alignment levels.

d) Details of all stormwater overland flowpaths, (volume, depth, width and safety factor).

e) The details of any special features that will affect the drainage design eg. the nature of the soil in the site and/or the presence of rock etc.

f) Detailed design and “for construction” specification of any proposed onsite stormwater detention system

g) A drainage plan and longitudinal section with all utility services accurately plotted for this stormwater pipeline must be provided. It should be noted that notwithstanding the calculations, the minimum pipe diameter acceptable within Council's street system and/or easement is 375mm.
h) All public utility services, where they are to be laid parallel to the Council stormwater pipeline, shall be located a minimum of 1.5 metres from the centreline of the stormwater pipeline.

42. Any flood study / hydraulic modelling to be submitted with future development applications for this site should be undertaken using "DRAINS" Urban Drainage Simulation Model (and HECRAS for determining flow depths). Alternative flood modelling programs may be used, however, the applicant will be required to meet the full cost for an independent hydraulic consultant to review the model as Council does not have the computer software to run alternative flood modelling programs.

43. The proposed internal roadways, drainage easements and overland flow routes shall be designed to drain the 1in 100 year storm event and to consider personal and structure safety and the hazard factor, (product of velocity and depth of flow) This safety factor shall not exceed a value of 0.4 at any location. (i.e. VD< 0.4).

44. All interallotment stormwater drainage lines must be designed, as a minimum, to accommodate stormwater flows generated by the 1 in 20 year storm event. Suitable width easements are to be created over the line of any interallotment drainage system in conjunction with any plan of subdivision for the development site, (the pipeline is to be centrally located within the easement). In the situation where no legal overland flow route exists for flows generated by storm events greater than the 1in 20 year storm event the interallotment drainage line and the required drainage easement must be capable of containing within the easement and discharging storm water flows generated by storm events up to the 1in 100 year storm event.

The minimum easement width shall be 1.0 metre for light-weight pipes up to and including 300mm in diameter. Easement widths for drainage lines that are not light-weight, (e.g. concrete), and larger than 300mm in diameter should be sufficient to enable maintenance equipment to access the pipeline.

45. Council requires that all new stormwater pipelines be of sufficient capacity to provide for a storm recurrence interval of 20 years with an overland floodway that is to be capable of containing a 1in 100 year flood within the boundaries of the drainage, landscaping and site works over such pipes and/or easement must ensure that the natural floodway or water course is not blocked or altered in such a way to flood private properties. No buildings or structures must be located within the easement.

46. Suitable width drainage easements must be created over the line of any existing/ new / relocated or upgraded stormwater pipelines within the site, under the control of Council. Minimum easement widths are as follows:

1. Pipeline diameter is 1,200mm or less -easement width required = 3.0m

2. From 1,200mm to and including 1,500mm diameter -easement width required =3.5m
3. Above 1500mm diameter -easement width required to Council's satisfaction.

Note: no buildings or structures must be located within the easement.

The following conditions are applied to provide adequate provisions for waste management:

47. The applicant must provide swept path details for a 9.5metre garbage truck, (10.5 metre turning radius) with any future development application for the provision of civil infrastructure for this site. The applicant shall note that satisfactory collection of domestic waste must be considered when designing the road network and or travel lane/footpath/parking lane configuration of the road network.

The following conditions are applied to provide adequate provisions for landscaping and to maintain reasonable levels of environmental amenity:

48. Street tree selection and planting locations must be to Council's satisfaction. The applicant must contact Council's Landscape Development Officer prior to lodgement of any future development application for the site to obtain Council’s requirements for street tree selection and planting locations.

49. Any future development application for the provision of civil infrastructure within the site must provide irrigation details for the proposed landscape areas. Typically Council requires an automatic irrigation system shall be installed throughout all the landscaped areas. Such system shall provide full coverage to all the landscaped areas with no overspray onto driveways and pathways. The system shall comply with all Sydney Water requirements, and relevant Australian Standards. Note: landscaped areas must contain a predominance of species that require minimal watering once established or species with water needs that match rainfall and drainage conditions.

50. Any future development application for the provision of civil infrastructure and any Construction Certificate for Stage 1 works must include a detailed Public Domain Plan. The subject plan shall be submitted to Council for approval and must demonstrate the strategies that are proposed for the urban design of the public domain (including any open space reserves) and the provision of good pedestrian access, recreational diversity and environmental sustainability. The strategies in relation to Stage 1 will include:

footpath strategy,

Further to this, the Public Domain Plan for Stage 1 shall also include details of individual treatments throughout the site. These treatments shall be consistent with Council's management requirements. The details shall be a detailed design showing plans elevations, sections, the materials and finishes for the following elements, (where relevant):

Footpath treatments

Street lighting

Street signs

Kerb ramps

Pavements

Retaining walls and balustrades within road reserves

Any future development application for the provision of civil infrastructure and any Construction Certificate for Stage 2 works must include a detailed Public Domain Plan. The subject plan shall be submitted to Council for approval and must demonstrate the strategies that are proposed for the urban design of the public domain (including any open space reserves) and the provision of good pedestrian access, recreational diversity and environmental sustainability. The strategies in relation to Stage 2 will include:

tree planting strategy,

water management strategies

Park planning strategy

Further to this, the Public Domain Plan for Stage 2 shall also include details of individual treatments throughout the site. These treatments shall be consistent with Council's management requirements. The details shall be a detailed design showing plans elevations, sections, the materials and finishes for the following elements, (where relevant):

Street tree planting

Street furniture

Lighting

Automatic irrigation systems

Water features

Bicycle facilites

Bus shelters

Retaining walls and balustrades within allotments and proposed open space

51. Approval is granted for removal of those trees identified for removal in the Tree Survey prepared by Arborcraft as submitted with the development application. Any tree identified for retention in the Tree Survey must be fully protected during the course of construction works. The applicant must ensure the long term health and stability of all trees located on properties adjoining the development site.

52. A site Arborist shall be engaged to provide a written report, containing Tree Protection Zones and specific Tree Management Plans for those trees identified for retention as part of the proposal. The report will need to consider direct and indirect impacts arising from the proposed works, such as excavations from the basement carpark level, site machinery movements and the need for pruning for clearances etc.

The following conditions are applied to ensure that the development satisfies relevant standards of construction, and to maintain adequate levels of health, safety and amenity during demolition, excavation and construction:

53.

54. The demolition of buildings and the removal, storage, handling and disposal of building materials must be carried out in accordance with the relevant requirements of WorkCover NSW, the NSW Department of Environment & Conservation (formerly the Environment Protection Authority) and Randwick City Council policies and conditions, including:

Australian Standard 2601 (2001) – Demolition of Structures
The Protection of the Environment Operations Act 1997 and Protection of the Environment Operations (Waste) Regulation 1996.
Relevant Department of Environment & Conservation (DEC) / Environment Protection Authority (EPA) and WorkCover NSW Guidelines.
Randwick City Council Asbestos Policy (adopted 13 September 2005)

55. A Demolition Work Plan must be prepared for the development in accordance with Australian Standard AS2601-2001, Demolition of Structures.

The Work Plan must include the following information (as applicable):

The name, address, contact details and licence number of the Demolisher /Asbestos Removal Contractor

Details of hazardous materials (including asbestos)

Method/s of demolition (including removal of any asbestos)

Measures and processes to be implemented to ensure the health & safety of workers and community

Measures to be implemented to minimise any airborne dust and asbestos

Methods and location of disposal of any hazardous materials

Other relevant details, measures and requirements to be implemented

Date the demolition works will commence

The Demolition Work Plan must be submitted to Council and the Principal Certifying Authority (PCA) if the Council is not the PCA, not less than two (2) working days before commencing any demolition works involving asbestos products or materials. A copy of the Demolition Work Plan must also be maintained on site and be made available to Council officers upon request.
Note it is the responsibility of the persons undertaking demolition work to obtain the relevant WorkCover licences and permits.

56. Any building/demolition works involving asbestos products are to be carried out in accordance with WorkCover New South Wales requirements, guidelines and codes of practice.
57. All excavations and backfilling associated with the erection or demolition of a building must be executed safely in accordance with appropriate professional standards and excavations are to be properly guarded and supported to prevent them from being dangerous to life, property or buildings.

Retaining walls, shoring or piling must be provided to support land which is excavated in association with the erection or demolition of a building, to prevent the movement of soil and to support the adjacent land and buildings, if the soil conditions require it. Adequate provisions are also to be made for drainage.
Retaining walls, shoring, or piling must be designed and installed in accordance with appropriate professional standards and the relevant requirements of the Building Code of Australia and Australian Standards. Details of proposed retaining walls, shoring or piling are to be submitted to and approved by the Principal Certifying Authority for the development prior to commencing such excavations or works.

58. The adjoining land and buildings located upon the adjoining land must be adequately supported at all times.

If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of any building located on an adjoining allotment of land, the person causing the excavation must:

preserve and protect the building /s on the adjoining land from damage; and
effectively support the excavation and building; and
at least seven (7) days before excavating below the level of the base of the footings of a building on an adjoining allotment of land (including a public road or public place), give notice of the intention and particulars of the works to the owner of the adjoining land.
Notes

This consent and condition does not authorise any trespass or encroachment upon any adjoining or supported land or building whether private or public. Where any underpinning, shoring, soil anchoring (temporary or permanent) or the like is proposed to be carried out upon any adjoining or supported land, the principal contractor or owner-builder must obtain:
a) the consent of the owners of such adjoining or supported land to trespass or encroach, or
b) an access order under the Access to Neighbouring Land Act 2000, or
c) an easement under section 88K of the Conveyancing Act 1919, or
d) an easement under section 40 of the Land & Environment Court Act 1979, as appropriate.

Section 177 of the Conveyancing Act 1919 creates a statutory duty of care in relation to support of land. Accordingly, a person has a duty of care not to do anything on or in relation to land being developed (the supporting land) that removes the support provided by the supporting land to any other adjoining land (the supported land).

(Hours of operation – building activities/construction noise for class 1 & 10 buildings , inc alterations & additions to /or new single dwellings and associated structures)

59. Except with the written approval of Council’s Manager of Health, Building & Regulatory Services, all building, demolition and associated site works (including site deliveries) must only be carried out between the hours of 7.00am to 5.00pm on Monday to Friday inclusive and between 8.00am to 5.00pm on Saturdays and all building activities are strictly prohibited on Sundays and Public Holidays.

In addition, the use of any rock excavation machinery or any mechanical pile drivers or the like, is restricted to the hours of 8.00am to 5.00pm (maximum) on Monday to Friday only, to minimise the noise levels during construction and loss of amenity to nearby residents.
(Hours of operation – building activities/construction noise for class 2 to 9 buildings and dual occupancies inc. multi-unit housing, apartments, townhouses and commercial or mixed-use developments)

60. Except with the written approval of Council’s Manager of Health, Building & Regulatory Services, all building, demolition and associated site works (including site deliveries) must only be carried out between the hours of 7.00am to 5.00pm on Monday to Friday inclusive and (except as detailed below) between 8.00am to 5.00pm on Saturdays.

All building, demolition and associated site works are strictly prohibited on Sundays, Public Holidays and also on Saturdays adjacent to a Public Holiday.
In addition, the use of any rock excavation machinery or any mechanical pile drivers or the like is restricted to the hours of 8.00am to 5.00pm (maximum) on Monday to Friday only, to minimise the noise levels during construction and loss of amenity to nearby residents.

61. Noise and vibration emissions during the construction of the building and associated site works must not result in damage to nearby premises or result in an unreasonable loss of amenity to nearby residents and the relevant provisions of the Protection of the Environment Operations Act 1997 must be satisfied at all times.
62. Noise and vibration from any rock excavation machinery and pile drivers (or the like) must be minimised by using appropriate plant and equipment and silencers and a construction noise and vibration minimisation strategy, prepared by a suitably qualified consultant is to be implemented during the works, to the satisfaction of the Principal Certifying Authority.

(Detailed noise and vibration report – Major class 2 – 9 developments)

63. A report prepared by a suitably qualified and experienced consultant in acoustics/vibration shall be submitted to the Principal Certifying Authority (PCA) and a copy is to be provided to Council upon commencement of works, certifying that noise and vibration emissions from the construction of the development satisfies the relevant provisions of the Protection of the Environment Operations Act 1997, Councils conditions of consent and relevant Standards relating to noise and vibration. In support of the above, it is necessary to submit all relevant readings and calculations made.

Any recommendations and requirements contained in the report are to be implemented accordingly and should noise and vibration emissions not comply with the terms and conditions of consent, work must cease forthwith and is not to recommence until details of compliance are submitted to the PCA and Council.

64. Temporary toilet facilities are to be provided, at or in the vicinity of the work site throughout the course of demolition and construction, to the satisfaction of WorkCover NSW and the toilet facilities must be connected to a public sewer or other sewage management facility approved by Council.
65. Public safety and convenience must be maintained at all times during demolition, excavation and construction works.

The roadway, footpath and nature strip must be maintained in a good, safe condition and free from any obstructions, trip hazards, materials, soils or debris at all times. Any damage caused to the road, footway or nature strip must be repaired immediately, to the satisfaction of Council.

66. A Road / Asset Opening Permit must be obtained from Council prior to carrying out any works within or upon a road, footpath, nature strip or in any public place, in accordance with section 138 of the Roads Act 1993 and all of the conditions and requirements contained in the Road / Asset Opening Permit must be complied with.

The owner/builder must ensure that all works within or upon the road reserve, footpath, nature strip or other public place are completed to the satisfaction of Council, prior to the issuing of a final occupation certificate for the development.
For further information, please contact Council’s Road / Asset Opening Officer on 9399 0691 or 9399 0999.

67. Building materials, sand, soil, waste materials, construction equipment or other materials or articles must not be placed upon the footpath, roadway or nature strip at any time and the footpath, nature strip and road must be maintained in a clean condition and free from any obstructions, soil and debris at all times.
68. Bulk bins, waste containers or other articles must not be located upon the footpath, roadway or nature strip at any time without the prior written approval of the Council. Applications to place a waste container or other articles in a public place can be made to Council’s Building Certification Services section.
69. A Construction Site Management Plan is to be developed and implemented prior to the commencement of demolition, excavation, earthworks, remediation works or construction works. The site management plan must include the following measures, as applicable to the type of development:

location and construction of protective fencing / hoardings to the perimeter of the site;
location of site storage areas/sheds/equipment;
location of building materials for construction;
provisions for public safety;
dust control measures;
site access location and construction
details of methods of disposal of demolition materials;
protective measures for tree preservation;
provisions for temporary sanitary facilities;
location and size of waste containers/bulk bins;
details of proposed sediment and erosion control measures;
construction noise and vibration management;
construction traffic management details.
The site management measures are to be implemented prior to the commencement of any site works and be maintained throughout the works, to maintain reasonable levels of public health, safety and amenity to the satisfaction of Council. A copy of the approved Construction Site Management Plan must be maintained on site and be made available to Council officers upon request.

70. During demolition, excavation earthworks, remediation works and construction works, dust emissions must be minimised, so as not to result in a nuisance to nearby residents or result in a potential pollution incident.

Adequate dust control measures must be provided to the site prior to the works commencing and the measures and practices must be maintained throughout the demolition, excavation and construction process, to the satisfaction of Council. Dust control measures and practices may include:-
Provision of geotextile fabric to all perimeter site fencing (attached on the prevailing wind side of the site fencing).
Covering of stockpiles of sand, soil and excavated material with adequately secured tarpaulins or plastic sheeting.
Installation of a water sprinkling system or provision hoses or the like.
Regular watering-down of all loose materials and stockpiles of sand, soil and excavated material.
Minimisation/relocation of stockpiles of materials, to minimise potential for disturbance by prevailing winds.
Landscaping and revegetation of disturbed areas.

71. During construction stages, sediment laden stormwater run-off shall be controlled using the sediment control measures outlined in the manual for Managing Urban Stormwater – Soils and Construction, published by the NSW Department of Housing.

Details of the proposed sediment control measures are to be detailed in the site management plan which shall be submitted to and approved by the principal certifying authority prior to the commencement of any site works. The sediment and erosion control measures must be implemented prior to the commencement of any site works and be maintained throughout construction. A copy of the approved details must be forwarded to the Council and a copy is to be maintained on-site and be made available to Council officers upon request.
Details of proposed sediment and erosion control measures shall include; a site plan; indicating the slope of land, access points & access control measures, location and type of sediment & erosion controls, location of existing vegetation to be retained, location of material stockpiles and storage areas, location of building operations and equipment, methods of sediment control, details of drainage systems and details of existing and proposed vegetation.

72. Stockpiles of soil, sand, aggregate or other materials must not be located on any footpath, roadway, nature strip, drainage line or any public place and the stockpiles must be protected with adequate sediment control measures.

Building operations such as brick cutting, washing tools or equipment and mixing mortar are not permitted on public footpaths, roadways, nature strips, in any public place or any location which may lead to the discharge of materials into the stormwater drainage system.

73. A warning sign for sediment control, soil and water management must be displayed in a prominent position on the building site, visible to both the public and site workers. The sign must be displayed throughout the construction period. Copies of a suitable warning sign are available at Council’s Customer Service Centre for a nominal fee.
74. A temporary timber, asphalt or concrete crossing is to be provided to the site entrance across the kerb and footway area, with splayed edges, to the satisfaction of Council, unless access is via an existing concrete crossover.
75. The owner/builder is required to hold Public Liability Insurance, with a minimum liability of $5 million and a copy of the Insurance cover is to be provided to Council.
76. Any part of Council’s nature strip which is damaged as a result of the work must be back-filled, top-soiled and re-turfed with kikuyu turf prior to occupation or finalisation of the development, to Council’s satisfaction.
77. Public safety must be maintained at all times and public access to the site and building works, materials and equipment on the site is to be restricted, when work is not in progress or the site is unoccupied.

A temporary safety fence is to be provided to protect the public, located to the perimeter of the site (unless the site is separated from the adjoining land by an existing structurally adequate fence, having a minimum height of 1.5 metres). Temporary fences are to have a minimum height of 1.8 metres and be constructed of cyclone wire fencing, with geotextile fabric attached to the inside of the fence to provide dust control, or other material approved by Council.

Temporary site fences are to be structurally adequate, safe and be constructed in a professional manner and the use of poor quality materials or steel reinforcement mesh as fencing is not permissible.

The public safety provisions and temporary fences must be in place prior to the commencement of any demolition, excavation or building works and be maintained throughout construction.

78. If it is proposed to locate any site fencing, hoardings or amenities upon any part of the footpath, nature strip or any public place, the written consent from Council’s Building Services section must be obtained beforehand and detailed plans are to be submitted to Council for consideration, together with payment of the weekly charge in accordance with Council’s adopted fees and charges.
79. If the work involved in the erection or demolition of a building is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or the building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place.

If necessary, an awning is to be erected sufficiently to prevent any substance from, or in connection with, the work from falling into the public place or adjoining premises.

The public place adjacent to the work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place and any such hoarding, fence or awning is to be removed upon completion of the work.

The public safety provisions and temporary fences must be in place prior to the commencement of any demolition, excavation or building works and be maintained throughout construction.
If it is proposed to locate any site fencing, hoardings or amenities upon any part of the footpath, nature strip or any public place, the written consent from Council’s Building Services section must be obtained beforehand and detailed plans are to be submitted to Council for consideration, together with payment of the weekly charge in accordance with Council’s adopted fees and charges.

80. A ‘B Class’ overhead type hoarding is required is be provided to protect the public, located adjacent to the development, prior to the commencement of any works on the site which comprise:-

any works or hoisting of materials over a public footway or adjoining premises, or
any building or demolition works on buildings which are over 7.5m in height and located within 3.6 metres of the street alignment.

The public safety provisions and temporary fences must be in place prior to the commencement of any demolition, excavation or building works and be maintained throughout construction.
If it is proposed to locate any site fencing, hoardings or amenities upon any part of the footpath, nature strip or any public place, the written consent from Council’s Building Services section must be obtained beforehand and detailed plans are to be submitted to Council for consideration, together with payment of the weekly charge in accordance with Council’s adopted fees and charges.

81. A local approval application must be submitted to and be approved by Council’s Building Certification Services section prior to commencing any of the following activities on a footpath, road, nature strip or in any public place:-

Install or erect any site fencing, hoardings or site structures
Operate a crane or hoist goods or materials over a footpath or road
Placement of a waste skip or any other container or article.

The following conditions are applied to maintain reasonable levels of public health, amenity and safety:
82. The applicant is to engage a NSW Department of Environment and Conservation (DEC) (formerly EPA) Accredited Site Auditor. The Site Auditor is to assess the suitability of the site for its intended development and use. A Site Audit Statement and Summary Site Audit Report is to be submitted to Council, prior to a construction certificate [or subdivision certificate] being issued, which confirms that the land has been remediated and the site is suitable for the intended development and use and satisfies the relevant criteria in the National Environment Protection (Assessment of Site Contamination) Measure 1999.

Any requirements contained within an Environmental Management Plan (EMP) which forms part of the Site Audit Statement and Site Audit Report, form part of this consent and Council must be consulted with prior to the development of the EMP.

83. The Site Audit Statement must, where no guideline made or approved under the NSW Contaminated Land Management Act is available (as with asbestos), clearly state the source of the standard adopted in determining the suitability of the land for the intended development and use and must also demonstrate its suitability to Council.

In relation to any asbestos contamination, a comprehensive remediation strategy and remedial action plan must be developed, to the satisfaction of the Site Auditor and NSW Department of Health or other suitably qualified and experienced specialist to the satisfaction of the Site Auditor.
The remediation strategy and remedial action plan must demonstrate that the land will be remediated in accordance with relevant guidelines (if any) and to a level or standard where no unacceptable health risk remains from asbestos exposure, which shall be verified upon completion of the remediation works to the satisfaction of the Site Auditor.

84. A specific contact number is to be made available for enquiries and complaints (including an after-hours emergency contract number) in relation to the proposed works and a complaints register is to be maintained to record all such enquiries, complaints and actions taken in response to same, which is to be made available to Council officers upon request.

Any hazardous and/or intractable wastes arising from any bulk earthworks and infrastructure works are to be managed and disposed of in accordance with the requirements of WorkCover NSW and the Department of Environment and Climate Change (formerly EPA), including the provisions of:

New South Wales Occupational Health and Safety Act, 2000

The Occupational Health and Safety (Hazardous Substances) Regulation 2001

The Occupational Health and Safety (Asbestos Removal Work) Regulation 2001

Protection Of the Environment Operations Act 1997 (NSW)

Environment Protection Authority's Environmental Guidelines; Assessment, Classification and Management of Liquid and Non Liquid Wastes (1999)

Randwick City Council’s Asbestos Policy

85. Any fill that is to be imported to the site is to be monitored, classified and documented by a suitably qualified Environmental Consultant. Only ‘Virgin Excavated Natural Material’ (VENM) is to be imported to the site, as defined within the NSW EPA ‘Environmental Guidelines; Assessment, Classification and management of Liquid and Non-Liquid Wastes. 1999’.
The following conditions are applied to satisfy the relevant pollution control criteria and to maintain reasonable levels of health, safety and amenity to the locality:
86. The use and operation of the premises shall not give rise to an environmental health or public nuisance.
87. There are to be no emissions or discharges from the premises which give rise to a public nuisance or result in an offence under the Protection of the Environment Operations Act 1997 and Regulations.
Stage 1 Subdivision
88. Prior to the issue of a subdivision certificate in respect of the torrens title subdivision of the subject land into 10 super lots under the Stage 1 development consent:

it must be demonstrated to Council that the conditions of this development consent for Stage 1 have been satisfied and their compliance verified by the Principal Certifying Authority;

it must be demonstrated to Council that suitable rights of carriageway, easements for services, support and stormwater lines, as required will be created upon the registration of the plan of subdivision; and

details of critical stage inspections carried out by the Principal Certifying Authority, together with any other certification relied upon must be provided to Council.

Advisory Conditions
89. The applicant is to advise Council in writing and/or by the provision of photographs of any signs of existing damage to the Council roadway, footway, or verge prior to the commencement of any building/demolition works.

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CITATION:	Mirvac Projects v Randwick City Council [2009] NSWLEC 1024
PARTIES:	APPLICANT Mirvac Projects Pty Limited RESPONDENT Randwick City Council
FILE NUMBER(S):	10701 of 2008
CORAM:	Brown C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Stage 1 Concept Plan for the future residential development - traffic/access - provision of affordable housing - provision of pedestrian accessways
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979
CASES CITED:	Newbury District Council v Secretary of State for the Environment [1981] AC 578
DATES OF HEARING:	10, 11/11/08, 19/12/08, 30/01/09
DATE OF JUDGMENT:	5 February 2009
LEGAL REPRESENTATIVES:	APPLICANT Mr C Leggat SC SOLICITORS Lindsay Taylor Lawyers REPONDENT Mr A Seton, solicitor SOLICITORS Marsdens