Moeskops v Sutherland SC - [2005] NSWLEC 176

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Moeskops v Sutherland SC [2005] NSWLEC 176

PARTIES:
APPLICANT
Robinson Moeskops
RESPONDENT
Sutherland Shire Council

FILE NUMBER(S):
11615 of 2004

CORAM:
Brown C

KEY ISSUES:
Development Application :- alterations and additions to existing childcare centre - increase in number of children - noise - landscaped area

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
Sutherland Shire Local Environmental Plan 2000
draft Sutherland Shire Local Environmental Plan 2004

DATES OF HEARING: 8/04/2005

EX TEMPORE JUDGMENT DATE:
04/08/2005

LEGAL REPRESENTATIVES:
APPLICANT
Ms S. Duggan, barrister
SOLICITORS
Willis & Bowring
RESPONDENT
Mr C. Mathieson, solicitor
SOLICITORS
Sutherland Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Brown C

8 April 2005

11615 of 2004 Robinson Moeskops v Sutherland Shire Council
JUDGMENT

1 This is an appeal against the refusal by Sutherland Shire Council (the council) of Development Application 04/0670 for alterations and additions and to extend the number of children at an existing childcare centre at 482 Port Hacking Road, Caringbah (the site). The proceedings were conducted as an On Site Hearing.

2 The site is lot 25 in D P 5606. It is almost rectangular in shape and is located on the south-eastern corner of Port Hacking Road and Telopea Avenue. It has a frontage of 19.82 m to Port Hacking Road and a depth of 73.715 m along Telopea Avenue giving a total site area of 1257.8 sq m.

3 Development in the area is predominantly residential characterised by a mix of single dwellings, dual occupancy, villas and town houses. To the north across Telopea Avenue is a two storey brick dwelling and to the south is a dual occupancy development. To the east is a villa development.

4 The proposal is to increase the number of children attending the centre from 40 to 48. The proposal also includes an extension to the north-eastern corner of the main building to provide an addition 27 sq m of playroom floor area. An extension to the existing patio at the centre of the west elevation of the main building and the relocation of a window on the western elevation is also proposed. The existing play areas and carparking will be retained.

5 The site is zoned 2(a2) Residential under Sutherland Shire Local Environmental Plan 2000 (the LEP). The proposed development is permissible with consent. Clause 31 of the LEP provides requirements for non-residential uses in residential zones. Clause 36 provides for a 50% landscape area requirement in residential zones.

6 The council’s Development Control Plan for Childcare Centres 9.3/08 (Edition 3) (the DCP) applies to the application. Relevantly, cl 15 of the DCP requires that the maximum number of 40 children in residential zones.

7 The proposal is also subject to draft Sutherland Local Environmental Plan 2004 (the draft LEP). The draft LEP covers the local government area. It has been advertised and the evidence indicated that the council is to further consider the contents of the draft LEP in light of comments from the Department of Infrastructure Planning and Natural Resources. Childcare centres are a permissible use on the site if the amount of children does not exceed 45. Considering the normal matters of immense and certainty, I am not convinced that any significant weight can be given to its contents. I am also advised that the draft LEP will contain transitional provisions that will save the application and this supports the conclusion that no significant weight should be placed on the draft LEP.

8 The council filed a Statement of Issues containing two principle areas of concern. These being:

9 Noise was the significant issue in the proceedings. The parties agree to the appointment of Mr Louis Challis as the Court appoint acoustical expert. Ms Tracey Gowen prepared a further acoustical report for the applicant.

10 Mr Challis recommended that a Noise Management Plan be prepared to address the issues raised by a number of local residents. He also provided further conditions that addressed the noise impacts on the adjoining property at 484A Port Hacking Road. This largely involves changes to the wall between the two properties.

11 During the hearing Mr Challis and Ms Gowen conferred and prepared conditions that sought to address noise impacts on the property owned by Mr Romeo at 484A Port Hacking Road. This involves a two-stage approach using the Noise Management Plan and additions to the boundary fencing of a physical barrier adjoining the rear yard of Mr Romeo’s property.

12 There was agreement between Mr Challis and Ms Gowen that the physical works would likely achieve a noise reduction of 10dBa. A condition provides the mechanism to ensure that this reduction is achieved. They also agreed that noise levels would be further reduced through compliance with the requirements in the Noise Management Plan.

13 The Court was advised that measures contained in the Noise Management Plan have been introduced at the centre over the last two weeks and in response, Mr Romeo indicated that he had experienced a noticeable reduction in noise at his property during this time.

14 The occupier of the adjoining dwelling at 484 Port Hacking Road, Mrs Greenwood, also provided oral evidence to the Court. She also indicated a noticeable improvement over noise over the last two week period. I note that the applicant also accepted further conditions to address other concerns raised by Ms Greenwood, such as additional landscaping along the common boundary and the removal of an adjoining storage shed.

15 On the issue of noise, I accept the Noise Management Plan and the modifications to the fencing with 484A Port Hacking Road will satisfactorily address this issue.

16 Mr Greg Hand and Mr Lyndsay Fletcher provided evidence for the council and applicant respectively on the issue of the landscaped area. With recent amendments to the proposal, the council did not press the non-compliance with the landscaped area requirements, even though the 50% requirement was not been satisfied. There was agreement that the proposal achieves 49%. Mr Hand reviewed the SEPP 1 objection and accepted that the need to strictly comply with the standard was unreasonable and unnecessary in this case and as such the SEPP1 objection was well founded. I concur with this conclusion.

17 Traffic was also an issue raised by local residents but not the council. The applicant provided a traffic report from Mr Craig McLaren. The report concludes that the additional parking demand for the additional eight children can be readily accommodated by the supply on site and nearby convenient on-street parking. The additional traffic volumes should also be readily accommodated by the surrounding areas with minimum impacts and would be hardly noticeable. Considering the relatively small increase in children, I agree with the conclusions of Mr McLaren.

18 Accepting that the proposed noise attenuation measures are more than satisfactory and considering the proposal only seeks to increase the number of children by 8, there are no substantive reasons why approval should not be granted even though the 48 places exceeds the requirement in the DCP.

19 Consequently, the Orders of the Court are:

1. The appeal is upheld.

2. Development Application 04/0670 for alterations and additions to an existing child care centre at 482 Port Hacking Road, Caringbah is approved subject to the conditions in Annexure A.

3. The exhibits are returned with the exception of Exhibits 1, 7, A and B.

G T Brown

Commissioner of the Court

ljr

Annexure “A”

Conditions of Consent

Robinson Moeskops v Sutherland Shire Council

GENERAL CONDITIONS

These general conditions are imposed to ensure that the development is carried out in accordance with the development consent, having regard to the environmental circumstances of the site.

1. Approved Plans and Documents

The development shall be implemented substantially in accordance with the details and specifications set out on the Plan / Drawing No.02.10/1 and No.02.10/02 Issue B prepared by Robinson Moeskops Architects, concept stormwater drainage concept plan design drawing No. 2002-173/H1 prepared by Burgess, Arnott & Grava Pty. Ltd. and the recommendations of the Acoustic Assessment Report (Reference TB417-01F02)(Rev 3) and any details on the application form and on any supporting information received with the application except as amended by the conditions specified and imposed hereunder.

Note 1 : Nothing in this development consent whatsoever approves or authorises the commencement, erection or construction of any building, construction or subdivision works.

Note 2 : Prior to the commencement of any building, construction, or subdivision work being carried out a 'construction certificate' shall be obtained from Council or an Accredited Certifier.

Note 3 : Prior to any work being carried out relating to the development the subject of the consent, the person implementing the consent shall provide Council with:

(a) Notification of the appointment of a Principal Certifying Authority and a letter of acceptance from the PCA.

2. Prescribed Conditions

The following are prescribed conditions of development consent pursuant to s.80A(11) of the Environmental Planning and Assessment Act 1979 and cl.98 of the Environmental Planning and Assessment Regulation 2000.

3. General Condition 1

The maximum number of children permitted to use the child care centre at any given time shall be 48 children.

Bonds and Contributions

The following security bonds and contributions have been levied in relation to the proposed development.

4. Council Property & Environment Damage Security - Construction

Before the commencement of any works or the issue of a Construction Certificate the applicant shall provide security to the value of $1500 for the payment of the cost of making good any damage caused to any Council property and / or the environment as a consequence of the implementation of this consent. The security may be provided by way of a deposit with the Council or a satisfactory guarantee. This shall be retained by Council for a period of 6 months following completion of the development for the purpose of remedying any damage to Council property or the environment that arises in this period. Should any public property and / or the environment sustain damage during the course of construction, or if the construction works put Council's assets or the environment at risk, Council may carry out any works necessary to repair the damage and / or remove the risk. The costs incurred shall be deducted from the security. The security will be released upon request 6 months after the completion of all works. (An administration fee is payable in relation to this bond.)

5. Landscape Security (Tree Protection)

Before the commencement of site works or the issue of a Construction Certificate the applicant shall provide security to Council to the value of $2000 for the payment of the cost of providing effective protection of all f trees during the development construction period.

If Council determines that works are necessary to ensure protection of the nominated trees in accordance with the terms of the development consent the cost of these works will be deducted from the security.

6. Public Liability Insurance

Prior to the commencement of work or the issue of a Construction Certificate, the owner or contractor shall take out a Public Liability Insurance Policy with a minimum cover of $9 million in relation to the occupation of and works within Council's road reserve, for the full duration of the proposed works. Evidence of this policy shall be submitted to Council prior to commencement of work or the issue of a Construction Certificate.

MATTERS RELATING TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

The following conditions involve either modification to the development proposal or further investigation prior to the issue of a Construction Certificate, so as to ensure that there will be no adverse impact on the environment or adjoining development. This information shall be submitted with the Construction Certificate.

Design Conditions

These design conditions are imposed to ensure the development, when constructed, meets appropriate standards for public safety and convenience.

7. Design Changes Required

(a) Relocate the existing immature tree within Council's Road Reserve adjoining the Telopea Avenue 'entry' as shown on the attached approved plan to the new location as shown and provide a concrete splay of 1.2 metres wide along the Telopea Avenue kerb to the existing 'entry' access footpath crossing at the north-western side of the property frontage.

(b) The Child Care Centre’s management shall remove the existing circular unsilenced fresh air vents that have been inserted in the various walls of the centre and then replace them with commercial modular filtered and silenced fan-assisted fresh air vents, that provide air quantities compliant with the requirements of Section F4.5 of the BCA. Following the installation of these BCA compliant make-up fresh air supply systems, the Child Care Centre’s management shall obtain a certificate of compliance from an appropriately certified and qualified ventilation engineer, who shall assess the volumetric air-flow and acoustical compliance of the Child Care Centre’s reconfigured ventilation system.

(c) Each toilet shall be provided with a correctly configured and functional exhaust fan compliant with the BCA requirements for toilets and bathrooms.

(d) The metal carpark rolling door track shall be reinstalled so that:

(i) The substrate to which the track is fixed, is dimensionally stable of its level;

(ii) The rolling track is laid upon a continuous strip of 3mm minimum thickness neoprene rubber to obviate metal to brickwork impact noise source;

(iii) The rolling track shall be securely fixed to the substrate through the rubber so that the fixings do not dislodge or loosen, and the rolling track does not give rise to acoustically disturbing/or unnecessary sources of impact noise as a result of vehicles driving over the rolling track.

(e) A 45 degree clear polycarbonate screen/barrier shall be constructed from the top of the masonry boundary wall on the southern side of the 0-2 year old outdoor play area, angled over the play area to achieve a minimum 10 dB(A) noise reduction compared with the level previously recorded on the southern side of the fence (see note below).

The height of the apex of the clear polycarbonate screen/barrier shall be 3 metres above ground level.

The clear polycarbonate screen/barrier shall extend the full length of the masonry wall and terminate at the vertical faces of the two adjacent child care centre buildings.

Solid gates or similar acoustic screens shall be provided between the ends of the masonry wall and the adjacent child care centre buildings so as to enclose the 0-2 year old play area.

In the event that these works do not achieve the required noise reduction then further works supplementing the internal (northern) surface of the wall with an appropriately protected sound absorption lining that provides a minimum NRC rating of 0.9 shall be implemented.

8. The provisions of the Noise Management Policy annexed to this development consent shall be adhered to at all times.

9. Site Management Plan

A Construction and Site Management Plan shall accompany the Construction Certificate. This plan shall satisfy the objectives of Council's Environmental Site Management Development Control Plan and shall consider the following:

(a) What actions and works are proposed to ensure safe access to and from the site and what protection will be provided to the road and footpath area from building activities, crossings by heavy equipment, plant and materials delivery, or static loads from cranes, concrete pumps and the like,

(b) The proposed method of loading and unloading excavation machines, building materials, formwork and the erection of any part of the structure within the site,

(c) The proposed areas within the site to be used for the storage of excavated material, construction materials and waste containers during the construction period,

(d) How it is proposed to ensure that soil / excavated material is not transported on wheels or tracks of vehicles or plant and deposited on surrounding roadways,

(e) The proposed method of support to any excavation adjacent to adjoining properties, or the road reserve. The proposed method of support is to be certified by an Accredited Certifier in civil engineering.

(f) The requirements of any site specific Development Control Plan that may affect this development site.

(g) The footpath and road reserve shall not be used for construction purposes.

Should extenuating circumstances exist then an application may be made to Council for approval under the Roads Act, 1993 to use the footpath or road reserve for construction purposes. These circumstances included where it is proposed to:

(i) Pump concrete from within a public road reserve or laneway,
(ii) Stand a mobile crane within the public road reserve or/laneway,
(iii) Use part of Council's road/footpath area,
(iv) Pump stormwater from the site to Council's stormwater drains, or
(v) Store waste containers, skip, bins, and/or building materials on part of Council's footpath or roadway

10. Nomination of Engineering Works Supervisor

Prior to the issue of a Construction Certificate the applicant shall nominate an appropriately accredited certifier to supervise all public area civil and drainage works to ensure that they are constructed in compliance with Council's current "Specification for Civil Works Associated with Subdivisions and Developments".

The engineer shall:
(a) provide an acceptance in writing to supervise sufficient of the works to ensure compliance with:
(i) all relevant statutory requirements,
(ii) all relevant conditions of development consent,
(iii) construction requirements detailed in the above Specification, and
(iv) the requirements of all legislation relating to environmental protection,

(b) on completion of the works certify that the works have been constructed in compliance with the approved plans, specifications and conditions of approval, and,
(c) certify that the Works As Executed plans are a true and correct record of what has been built.

Public Utility Authorities Requirements

These conditions are imposed to avoid problems in servicing the development and reduce adverse impacts on the lot layout or the design of buildings or associated facilities.

11. Sydney Water - Notice of Requirements

Prior to the issue of a Construction Certificate or Subdivision Certificate the applicant shall obtain a Notice of Requirements under the Sydney Water Act 1994, Part 6 Division 9 from Sydney Water and submit the Notice to the Council.

12. Public Utility Authorities

Arrangements shall be made to the satisfaction of all Utility Authorities including cable television network providers in respect to the services supplied to the development by those authorities. The necessity to provide or adjust conduits/ services within the road and footway areas shall be at full cost to the applicant.

13. General Engineering Condition 1 - Stormwater Drainage System

The stormwater drainage system shall be designed and constructed generally in accordance with the stormwater drainage concept design drawing No. 2002-173/H1 prepared by Burgess, Arnott & Grava Pty. Ltd. except where amended by the following:

(a) Designed by an appropriately qualified person in accordance AS/NZS3500.3.2:1998 National Plumbing and Drainage Standard Part 3.2: Stormwater drainage - Acceptable Solutions, Council document On-Site Stormwater Detention Policy and Technical Specification and Council document Stormwater Management Policy and Guidelines, Council document Urban Drainage Design and the Institute of Engineers' publication Australian Rainfall & Runoff, 1987.
(b) All stormwater shall be conveyed by gravity (not a charged system).
(c) The design drawings are to indicate the alignment, sizes, type, class, grades and lengths of all the pipelines and associated structures. All levels shall be reduced to Australian Height Datum.
(d) The rate of discharge of stormwater from the site to a drainage system under Council's control shall be controlled so that it does not exceed the pre-development rate of discharge. The base plan for this calculation shall be site survey by John R. Holt Surveyors Pty.Ltd (Plan No. 18526) Specific certification from the designer to this effect shall be incorporated in the submitted drainage plans / details.
(e) If the stormwater design solution involves construction of a detention tank, then a restrictive covenant pursuant to section 88E of the Conveyancing Act, 1919 shall be created on the title of the lot to provide for the maintenance of the detention facility. To this end the registered proprietor(s) of the property thereby burdened shall covenant with Sutherland Shire Council and its successors not to use the property except as permitted by this development specifically with respect to the provision and maintenance of the detention facilities. The location and extent of the detention facilities shall be delineated on the Linen Plan of Subdivision.

Certification from the Civil Engineer/Registered Surveyor to the effect that the design has been prepared having regard to the aforementioned requirements shall accompany the application for the construction certificate.

Note : (1) Reference Survey Plan No.18526 prepared by John R. Holt as marked supplementary and attached to this consent.

Energy Efficiency

These conditions are imposed to ensure that development is energy efficient and is designed and constructed using appropriate materials and appliances to maximise the use of sustainable energy sources (such as sunlight) and use energy more efficiently.

14. Energy Efficiency – Additions and Alterations (No NatHER Certificate

Required)

Details of how it is intended to achieve the Energy Efficiency requirements listed below, shall form part of the Construction Specifications or shall de detailed on the plans endorsed with the Construction Certificate:

(a) R3.0 roof insulation.
(b) R1.5 external wall insulation, except where walls are cavity brick.
(c) R2.0 floor insulation except where a slab on ground is proposed.

The following services and facilities where their replacement is proposed, shall be incorporated into the proposed building:

(a) A hot water system having a 3.5 rating, using SEDA's Greenhouse Scorecard.
(b) AAA rated shower heads, wash basins, kitchen sink and toilet cisterns.
(c) Clothes dryers having a 3.5 rating, using SEDA's Greenhouse Scorecard.

Note 1 : The Energy Efficiency requirements contained within this condition only relate to the works forming part of the Development Consent.

Note 2

15. Submission of Fire Safety Schedule

16. The metal store room adjacent to the south western corner of playroom 2 shall be demolished and the concrete floor removed and replaced with landscaping, such to be shown on the Construction Certificate plans.

PRE-COMMENCEMENT CONDITIONS

The following conditions are imposed to ensure that all pre-commencement matters are attended to before work is commenced.

17. Pre-Commencement - Notification Requirements

No works in connection with this development consent shall be commenced until:

18. Pre-Commencement Inspection

Prior to the commencement of any works, the PCA and the Builder / responsible person shall undertake a pre-commencement site inspection with Council's Compliance Officer. The purpose of this inspection is to facilitate the implementation of the consent specifically with regard to the impact on the public way and to clarify any matters of concern.

Note

19. Signs to be Erected on Building and Demolition Sites

Where proposed works affect the external walls of a building, a rigid and durable sign shall be erected prior to the commencement of work and maintained in a prominent position on any work site on which building work, subdivision work or demolition work is being carried out. The responsibility for this to occur is that of the principal certifying authority or the principal contractor.

The signage, which must be able to be easily read by anyone in any public road or other public place adjacent to the site, must:

(a) show the name, address and telephone number of the principal certifying authority for the work, and
(b) show the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and
(c) state that unauthorised entry to the work site is prohibited.

CONSTRUCTION CONDITIONS

These conditions are imposed to ensure the development does not unreasonably impact on the amenity of the locality during the construction or demolition phase.

20. Environmental Site Management DCP

All construction work approved by this development consent shall be undertaken in accordance with the principles and objectives of Council's Environmental Site Management Development Control Plan.

21. Permitted hours for building and demolition work

To minimise the noise impact on the surrounding environment all building and demolition work shall be carried out only between the hours of 7.00am and 6.00pm Monday to Friday inclusive, 8.00am and 5.00pm Saturdays. No work shall be carried out on Sundays and Public Holidays.

22. Excavations and backfilling

(a) All earthworks including excavations and backfilling associated with the erection or demolition of a building shall be executed safely and in accordance with appropriate professional standards.

(b) All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

23. Protection of Public Places

To protect public safety and convenience during the course of constructing the works covered by this consent, the following matters shall be complied with:

(a) If the work involved in the erection or demolition of a building:

(i) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed, inconvenienced, or rendered unsafe; or

(ii) building involves the enclosure of a public place,

A hoarding or fence shall be erected between the work site and the public place.

(b) If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place.

(c) The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

Any such hoarding, fence or awning shall be removed and any damage to any public place reinstated to Council's satisfaction when the work has been completed.

24. Noise control during construction and demolition

To minimise the impact on the surrounding environment:

(a) For construction and demolition periods of 4 weeks or less the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the ambient background level by more than 20dB(A) when measured at the nearest affected premises.

(b) For construction and demolition periods greater than 4 weeks and not exceeding 26 weeks the Leq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 10 dB(A) when measured at the nearest affected premises.

(c) For construction and demolition periods greater than 26 weeks the LAeq noise level, measured over a period of 15 minutes when the construction or demolition site is in operation, shall not exceed the background level by more than 5 dB(A) when measured at the nearest affected premises.

25. Maintenance of Erosion Control Measures

Erosion and sediment control measures shall be implemented and maintained, during the course of construction, to minimise downstream sediment transfer particularly with respect to watercourses, stormwater outlets, fire trails, batters and disturbed ground. All control measures shall be maintained in accordance with Council's Environmental Site Management Development Control Plan and "Specification for Civil Works Associated with Subdivisions and Developments".

26. Construction materials and machinery must be kept on site

All construction materials, sheds, skip bins, temporary water closets, spoil, and the like, shall be kept within the property. No vehicles or machines shall be permitted to stand on Council's footpath. For further information, refer to Council's Environmental Site Management Development Control Plan.

27. Protection of trees and bushland

All trees / bushland areas shall be protected during construction in accordance with the requirements set out in the Landscape Development Control Plan. This includes provision of protective fencing, exclusion of storage materials from within the drip zone, erosion control and soil pH maintenance.

All trees and vegetation which are not expressly authorised by this development consent to be removed, damaged or interfered with shall be retained. Only trees and vegetation whose removal is expressly authorised by this development consent are permitted to be removed, damaged or interfered with.

28. Landscaping shall be provided along the southern boundary of the site between the Port Hacking Road frontage and the western wall of the child care centre building, such to be designed to soften the visual appearance of, discourage children playing too close to and prevent persons hitting the existing fence.

POST CONSTRUCTION CONDITIONS

These conditions are imposed to ensure all works are completed in accordance with the Development Consent prior to either the issue of an Occupation Certificate, a Subdivision Certificate or habitation / occupation of the development.

29. Section 73 Compliance Certificate

A Compliance Certificate under s73 of the Sydney Water Act, 1994, shall be submitted to Council by the PCA prior to the issue of an Occupation Certificate or before the issue of a Subdivision Certificate. Sydney Water may require the construction of works and/or the payment of developer charges.

Following application a "Notice of Requirements" will be forwarded detailing 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 as well as building, driveway or landscaping design.

30. Works As Executed Information

Certification shall be provided from a registered surveyor to the effect that:

(a) All civil engineering works required by this development consent have been carried out in accordance with the terms of the development consent and the approved engineering drawings with regard to location and level.

(b) All pipes, pits and detention facilities lay within their relevant existing or proposed easements.

(c) All rights-of-way or positive covenants required by conditions of this development consent have been provided.

31. Works As Executed Drawings

Certification shall be provided from the supervising engineer to the effect that:

(a) All civil engineering and stormwater works associated with development have been carried out in accordance with the terms of the development consent, the approved engineering drawings and in the case of public works Council's "Specifications For Civil Works associated with Subdivisions and Developments".

b) The construction of the drainage system for the proposed development has been carried out generally in accordance with the requirements of the approved stormwater drainage plans, Council's stormwater management policy and guidelines and Council's On-site Detention Policy and has been carried out in order that stormwater runoff downstream is not increased as a result of the development and that all assumptions made during the design remain valid. Works-as-Executed drawings certified in the above manner and containing all relevant information as required by Council's "Specification for Civil Works Associated with Subdivisions and Developments" shall accompany the Subdivision / Occupation Certificate.

32. Acoustic Works - Report

To ensure all acoustic work has been completed, certification shall be provided upon completion of the works, accompanied with evidence in the form of a report from a suitably qualified practicing acoustic engineer, to the effect that the acoustic attenuation has been carried out in accordance with the development consent. The report shall include all post construction validation test results.

33. Prior to Occupation or Use of the Development

The Development shall not be occupied or used until:

34. Completion Report

The Completion Report shall be submitted to Council by the Principal Certifying Authority which shall contain the following information. This report shall accompany the Final / Interim Occupation Certificate or shall be submitted prior to occupation by the additional children.

(i) Date of the report.

35. Final site Inspection

Prior to the issue of the Subdivision or Occupation Certificate, a final site inspection relating to the public area shall be arranged by the applicant, and shall be undertaken by the applicant's Supervising Engineer and Council's Compliance Officer. The purpose of the inspection is to ensure that notwithstanding the submission of any certificates required by the development consent, all impacts within the public area caused by the development have been satisfactorily addressed.

Note

OPERATIONAL CONDITIONS

These conditions are imposed to ensure that the use or operation of the development does not adversely impact on the amenity of the neighbourhood and the environment.

36. Amenity of the Neighbourhood

The implementation of this development shall not adversely affect the amenity of the neighbourhood or interfere unreasonably with the comfort or repose of a person who is outside the premises by reason of the emission or discharge of noise, fumes, vapour, odour, steam, soot, ash, dust, waste water, waste products, grit, oil or other harmful products.

37. Hours of Operation

To minimise the impact of the development on the surrounding environment, the use of the premises shall be restricted to between the hours of 7.00am and 6.00pm Mondays to Fridays.

38. Noise Control - Offensive Noise

To minimise the noise impact on the surrounding environment, the use of the premises, building services, equipment, machinery and ancillary fittings shall not give rise to an "offensive noise" as defined under the provisions of the Protection of the Environment Operations Act 1997.

39. Ventilation – Operation

To ensure that adequate ventilation within the building, all mechanical and / or natural ventilation systems shall be operated and maintained in accordance with the provisions of:
(a) The Building Code of Australia.
(b) AS 1668 Part 1 - 1991.
(c) AS 1668 Part 2 - 1991.
(d) The Public Health Act - 1991.
(e) The Public Health (Microbial Control) – Regulation 2000
(f) AS 3666 – 2002.
(g) AS 3666.2 – 2002
(h) AS 3666.3 – 2000

_______________________

G T Brown

Commissioner of the Court

ljr

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Citations

Moeskops v Sutherland SC [2005] NSWLEC 176

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CITATION:	Moeskops v Sutherland SC [2005] NSWLEC 176
PARTIES:	APPLICANT Robinson Moeskops RESPONDENT Sutherland Shire Council
FILE NUMBER(S):	11615 of 2004
CORAM:	Brown C
KEY ISSUES:	Development Application :- alterations and additions to existing childcare centre - increase in number of children - noise - landscaped area
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Sutherland Shire Local Environmental Plan 2000 draft Sutherland Shire Local Environmental Plan 2004
DATES OF HEARING:	8/04/2005
EX TEMPORE JUDGMENT DATE:	04/08/2005
LEGAL REPRESENTATIVES:	APPLICANT Ms S. Duggan, barrister SOLICITORS Willis & Bowring RESPONDENT Mr C. Mathieson, solicitor SOLICITORS Sutherland Shire Council