Moran Australia (Rouse Hill) Pty Ltd v The Hills Shire Council - [2010] NSWLEC 1154

Land and Environment Court

of New South Wales

CITATION: Moran Australia (Rouse Hill) Pty Ltd v The Hills Shire Council [2010] NSWLEC 1154

PARTIES:
APPLICANT
Moran Australia (Rouse Hill) Pty Ltd
RESPONDENT
The Hills Shire Council

FILE NUMBER(S): 10344 of 2010

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- Adequacy of residential care facility; interim access and drainage arrangements in release area development; piece-meal development; S94 contribution for transport facilities.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Sydney Region Growth Centres) 2006
State Environmental Planning Policy – (Housing for Seniors or People with a Disability) 2004
State Environmental Planning Policy No 55 – Remediation of Land
North Kellyville Development Control Plan
Baulkham Hills Development Control Plan
Section 94 Contributions Plan No 13 – North Kellyville Precinct

DATES OF HEARING: 11 October 2010

DATE OF JUDGMENT:
22 October 2010

LEGAL REPRESENTATIVES:
APPLICANT
Ms L Byrne (Barrister)
SOLICITOR
Paul A Curtis & Co
RESPONDENT
Mr C Winn
SOLICITOR
The Hills Shire Council

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

22 October 2010

Appeal No 10344 of 2010 Moran Australia (Rouse Hill P/L v The Hills Shire Council
JUDGMENT

Background.

1 This appeal was lodged against council’s refusal of a development application for a seniors living type development comprising a 150 bed residential care facility at 71–83 Samantha Riley Drive, Kellyville.

2 The proceedings commenced by way of a s34 Conference, which was terminated and the parties consented to Hussey C determining the matter. As a consequence of discussions between the parties it was agreed that the proposed building form and associated environmental impacts were satisfactory subject to resolution of the following outstanding issues summarised as follows:

Access; whether the proposed “temporary” access arrangements are satisfactory.
Section 94 contributions, particularly in respect of transport services.
Drainage arrangements, including the adequacy of detailing and acceptability of the “interim” drainage proposal.

The site

3 The site is described as Lot 4 in DP 32271. It is of a slightly irregular shape, having a northern (rear) boundary of 144.55m, an eastern (side) boundary of 183.175m, a southern frontage to Samantha Riley Drive of 97.52m and a combined western boundary of 186.78m. It has a total area of 20,237 sq m.

4 There is a single storey cottage of brick and tile roof construction is located in the south-western corner of the site, adjacent to Samantha Riley Drive. This dwelling is currently vacant and is set back approximately 10m from the front site boundary.

5 There is depression in the land towards the northern boundary, which feeds into a small dam is located to the north-western corner of the property. This watercourse then discharges into the rear part of the downstream property No 57-69 SR Drive. Several small, dilapidated sheds are located to the rear of the dwelling, within a loosely fenced paddock area.

6 Vehicular access is currently gained from Samantha Riley Drive.

The Locality

7 The site is located in the suburb of Kellyville approximately 2km north of Kellyville Plaza shopping centre and approximately 2.5 km east of the Rouse Hill Regional Centre. The locality has been identified for future urban development as part of the North West Growth Sector

8 Development in the surrounding locality comprises a mixture of low density residential and rural development, including local and regional open space.

9 To the north is a rural zoned parcel of land having a frontage to Foxall Road. This parcel is currently used for agricultural purposes. Further north of the site, development comprises a variety of rural residential land uses, including market gardens, small vineyards and the like. To the east of the site, is a rural residential allotment known as Nos. 57-69 Samantha Riley Drive. This property contains a single dwelling, fronting Samantha Riley Drive, with paddocks to the north and east along the property's secondary frontage to Foxall Road. Development consent was granted for an 80 - unit retirement village on this property. However that consent has lapsed.

10 Further east of the site is Foxall Road and beyond are rural residential allotments extending to Cattai Creek. To the south, on the opposite side of Samantha Riley Drive is the residential suburb of Kellyville, which is primarily zoned Residential 2(b), comprising a mix of 1 and 2 – storey

residential dwelling houses. This residential area is interspersed with local open space, drainage corridors and some special uses such as schools.

The proposal

11 The proposal is described as comprising 2 connected buildings, being part 2 and 3 storeys in height, with one level of basement parking below. The proposed development provides a total of 150 beds, with 49 low care beds, 81 high care beds and 20 dementia care beds. An existing dwelling house on the site is proposed to be retained for ancillary purposes.

12 A maximum of 40 staff will be employed at anyone time (usually occurring in the morning shift between 7.00am - 3.00pm). The proposed development will be a 24 hour facility with general management and administration hours of 8.00am - 5.30pm. There will be no set visitor hours although the peak hours are expected to be between 5.30pm – 8.00pm.

13 The proposed facility will operate private bus services providing a transport service to and from the centre for client activities and for recreational outings for residents and for day care centre clients. The bus is likely to be a 25 – seat vehicle and bus parking is provided adjacent to the delivery area.

14 Temporary vehicle access/egress is proposed from Samantha Riley Drive with permanent access/egress to be from a future local street (FLS) at the rear of the property, to be constructed in conjunction with adjoining development, as shown in the DCP. In the absence of this new road to provide access and trunk drainage, the applicant proposes to construct an interim drainage control system comprising an OSD system, which maintains discharges into the existing watercourse.

15 A total landscaped area of 11,352 sq m with distinct landscaped zones for entry plantings, boundary plantings, internal courtyards and dementia gardens is proposed.

16 The site is subject to a number of controls including:

State Environmental Planning Policy (Sydney Region Growth Centres) 2006 – Amendment No. 3; under which the land is in the R2 Low Density Residential and SP2 Infrastructure zone and the development is permissible with consent.
State Environmental Planning Policy – (Housing for Seniors or People with a Disability) 2004.
State Environmental Planning Policy No 55 – Remediation of Land.
North Kellyville DCP.
Baulkham Hills DCP (BHDCP)
Section 94 Contributions Plan No 13 – North Kellyville Precinct

17 Detailed evidence was presented by:

Mr F Rayner; Council’s principal forward planner.
Mr A King; Council’s manager infrastructure planning.
Ms V Sivakumar; Council’s senior subdivision engineer.
Mr K Mackay; Applicant’s consulting planner.
Mr A Morse; Applicant’s traffic planning consultant.
Mr B Lysenko; Applicant’s drainage consultant.

18 As noted, the subject land is non – urban land designated for future urban development within the North West Growth Sector. Much of the surrounding land comprises smaller holdings in the order of 2 – 5ha and the future urban development is to be in accordance with the DCP “road layouts”. However, it appears that many of these holdings are in individual ownerships, which imposes considerable difficulties in achieving both access agreements and the timely provision of services so as to facilitate the orderly development the land.

19 This situation occurs in the subject application because direct access to the frontage road (Samantha Riley Drive) is to be denied after it is constructed as a 4–lane Sub-Arterial Road. This construction is dependent on funding raised from s 94 contributions for (land and capital) transport facilities. Ultimately, access to the subject land will be via new internal roads, as shown on Attachment AA. However at this stage, there is no coordination of adjoining property owners to achieve a continuous section of the new future local street (FLS) to connect to an existing public road.

20 Apart causing difficulties with satisfactory road access, the ‘piece - meal’ ownership also restricts the coordinated construction of future drainage infrastructure, particularly as the drainage is usually constructed within the new road reserve alignments.

21 Accordingly, one of the stated purposes the NKDCP is to:

2 Consolidate and simplify the planning controls to ensure the orderly, efficient and environmentally sensitive development of the North Kellyville Precinct as envisaged by the North West Sector structure Plan and refined by the North Kellyville Indicative Layout Plan.

Road access

22 In the absence of the future DCP road connections the applicant proposes an interim measure involving maintaining temporary access from Samantha Riley Drive as the main access. Secondly, it is proposed to condition the subject development to require the construction of the new internal road when approval has been granted to the adjoining land – No 57–69 SR Drive. The conditions include an agreed bonding amount estimated at 150% of the construction costs.

23 The temporary access arrangement was assessed by the traffic experts. Mr King acknowledged the practical difficulties in constructing the rear street but expressed concerns about safety risks in terms of the available safe sight distances for the temporary access onto Samantha Riley Drive. This situation exists because of an existing crest in Samantha Riley Drive, about 110m to the west of the proposed driveway entry.

24 Mr Morse assessed the sight distance concerns by reference to the provisions of AS 2890.1 for driveway design. He says that for compliance with the existing 60km/h speed limit a safe intersection stopping distance (SISD) of 83m is required. For a higher of 70km/h a SISD of 97m would be required. As the proposal can achieve an actual sight distance of 95m, he considers the safety risk acceptable.

25 Against this, Mr King preferred a more cautious approach, which involved an assessment in terms of the Ausroads – Guide to Traffic Engineering Practice. Application of these provisions would require a SISD of 113m for an intersection and as the proposal cannot achieve this, he considered it unsatisfactory. But he conceded the proposed temporary access-way would be classified as a driveway, not an intersection and therefore the applications compliance with the AS 2890.1 provisions was reasonable.

26 In further support of this proposal, the applicant is to implement traffic controls to restrict entry/exit movements to Left In & Left Out only and provide some pavement widening at the driveway connection point, together with the construction of a median strip to prevent unauthorised Right turns.

27 Consequently, I am satisfied to rely on Mr Morse’s opinion the proposed driveway alignment, together with the additional construction works then represents a reasonable safety risk for temporary access to the development. Insofar as the actual 85^th percentile speed is 70km/h, it seems that the community interest would be well served by better enforcement of the speed limits until the upgraded arterial road is constructed to safely accommodate the significant increase in traffic volumes.

Section 94 contributions

28 Draft conditions were provided, which include a number of s94 contributions for infrastructure. Whilst accepting most of the contributions, the applicant challenged those for Transport Facilities (Land & Capital components). Of some interest, the s94 Plan includes $11,089,466.59 for the construction of Samantha Riley Drive, together with other associated transport and traffic works totalling $54, 727,747. However there is no firm implementation plan.

29 The planners agreed that the proposed development is categorised as a “residential care facility” as defined by SEPP Seniors and subsequently addressed the designated facilities having a relevant nexus.

30 With regard of the contentious s94 component for the transport facilities , Mr Mackay says that as the development is a ‘high–care’ facility, the residents will not drive and on–site resident parking is not provided. Therefore no nexus exists in respect of these persons with diminished mobility for traffic facilities. Insofar as there will be some traffic demand by staff, service vehicles and visitors, the amount of contributions should be proportionally discounted.

31 The S94CP adopts 1.3 persons/room as the “assumed average occupancy rates”, which is subject to future monitoring. Accordingly, the s94CP derives a contribution rate/person. However, as the future “high – care” residents will be unable to drive, Mr Mackay says the rate for any contribution should alternatively be discounted and based on the traffic generation demands from the development.

32 He refers to the RTA publication Guide to Traffic Generating Developments Version 2.2, which states that traffic generated per single dwelling is 9 DVTs. Therefore, based on the occupancy rates in the CP (3.4 persons/dwelling), this equates to 2.65 DVTs/person. By comparison with dwelling houses, he says that even if the upper end of the RTA guide rate was accepted on a per bed basis, the resultant traffic generation would be 2 DVTs per bed, less than a person in a single dwelling house.

33 Consequently, he considers it appropriate to apply a contribution rate of $1165.27 per DVT rather than the CP rate of $4103.00 per person.

34 However, the planners agree that due to the nature of this development, it is appropriate to adopt a reduced occupancy rate of 1 person/bed. I accept this concession is reasonable.

35 Comparison of the 2 approaches (including credits) then results in:

Facilities S94 Contrib. Plan @ 1person per/bed Alternate Traffic facilities method

Transport - Land $71,235.20 $39, 745.56

Transport - Capital $530,307.46 $295, 884.56

$601,542.66 $335,630.12

36 Having considered the alternative approaches, I note Mr Rayner’s following objections to the alternative approach. He says that the s94CP is premised on striking a common rate/person and multiplying that rate by the assumed occupancy for a particular type of development. The methodology for calculating the contribution rate is based on the discounted cash flow model that strikes a rate on the basis that present value of costs will equal present value of revenue. Revenue is estimated in the form of persons which forms the common unit of the contribution plan

37 In summary then, it appears that the s94CP methodology comprehensively considered options to achieve a desired servicing outcome. Whilst I accept there could be several alternatives, nevertheless, I do not consider the applicant’s alternative compelling so as to significantly amend a key approach/component of the s94CP.

38 It seems to me that the reduction in the contribution rate to 1person/bed is reasonable in the circumstances. In this regard I note that the CP estimates requires regular monitoring and it could be that this development does attract significant traffic in terms of visitors and service vehicles. Therefore the adjusted council s94 contributions should apply.

39 The drainage issue concerns the likely impacts arising from the applicant’s interim proposal to alter of the existing flow regime in the non–urban context, in order for the development to proceed in advance of the ultimate drainage system. This interim solution comprises:

earthworks involving benching of the site to provide building platforms,
filling of the existing watercourse/dam and its re–alignment to the north, adjacent to the FLS,
the construction of gabion-type weir to intercept and mitigate the discharge rate into the existing downstream watercourse.
the construction of a perimeter road adjacent to the eastern boundary under which an OSD system is to be partially constructed that also discharges into the proposed weir.

40 Accordingly, Mr Lysenko has undertaken a preliminary assessment of the runoff from this catchment area and says that it is relatively small and that the OSD system can be readily designed to ensure that in the interim period, the post development discharge will not exceed the pre – development discharge. Subsequently, when it is practical to construct the new FLS in conjunction with the adjoining downstream property, the aforementioned discharges can be diverted into the road reticulation, thereby eliminating overland via the watercourse.

41 Ms Sivakumar addressed the current engineering controls including the following provisions of the Indicative Layout Plan (ILP):

street network to be based on road hierarchy and to provide interconnected streets that give safe, convenient and clear access within and beyond the Precinct.
selected roads to incorporate swales, WSUD infrastructure as part of Integrated Stormwater Management
riparian corridors, which are to protect, restore and enhance the environmental values and functions of watercourses and riparian corridors.

42 Consequently, she says that the installation of OSD systems are now redundant within the current Water Sensitive Urban Design (WSUD) catchment management strategy, which incorporate conventional drainage systems to convey the stormwater runoff from developments to designated regional basins, which are part of the trunk drainage system that mitigates any flooding.

43 Ms Sivakumar does not consider the proposal complies with the WSUD or other DCP provisions and identifies the following 3 options:

Option 1 (Do nothing); No development to be without public road access, whereby the existing condition of the locality is maintained so as not to heighten the social and financial liability of council. As the proposal does not satisfy this, she consider it should be refused.
Option 2; (No change) This is to allow the proposal, which she considers unreasonable because it does not initially comply with the ultimate drainage strategy.
Option 3 (Compliance with NKP outcomes); This would require the regrading of the land so as the enable construction of temporary drainage structures along the FLS. Where extended earthworks are involved along the downstream common boundary, then agreement for filling and easements should be required.

44 From her assessment of the compliance requirements in the NKPDCP, she does not consider the proposal incorporating the OSD is satisfactory.

45 Insofar as there is a comprehensive set of controls in the NKPDCP to achieve the desired environmental outcome, it is apparent to me from the evidence that there is no coordinated infrastructure-staging plan for the construction of the new internal local roads and drainage systems. This causes considerable inconvenience when neighbouring property owners do not wish to develop concurrently.

46 This is the situation in the current matter where the Moran development wishes to proceed with its ‘150 bed total–care’ development but the adjoining and lower level lot (No 57-69 SR Drive) has no current approval. Therefore no final neighbourhood arrangements have been possible to achieve the construction of the new internal FSL, which will incorporate the ultimate drainage system.

47 In these circumstances, I think it is reasonable to consider the individual site location and associated constraints, to determine whether developments can proceed on an interim ‘piece–meal’ basis. Otherwise the owners of strategically located land designated for access and drainage disposal could thwart orderly development if they are not prepared to negotiate reasonable access and servicing arrangements.

48 In an overall consideration, it appears to me that there are community benefits by allowing this development to proceed providing the environmental impacts can be adequately addressed. In considering the interim drainage solution, I note the provisions of Section 6 – Managing the Environment of the NKPDCP, wherein section 6.1 includes the following objectives for integrated stormwater management:

1 To ensure that appropriate stormwater management measures are implemented to maximise opportunities maintain and enhance the quality and integrity of urban waterways through both the construction and occupation phases of development, while encouraging and creating an urban form where risks to life and property, as a result of either minor or major flooding are minimised,

2 To maximise opportunities for a best practice Water Sensitive Urban Design Approach at the individual lot, overall development and regional scales,..

6 To minimise the impact of nuisance flooding to a level to the community; and…

49 Accordingly, I am satisfied that the interim drainage solution by the applicant reasonably satisfies these objectives. The watercourse diversion to the gabion-type weir and OSD system should effectively control any water quality and increased rate of runoff concerns from the new development, so that the post-development discharges do not exceed the pre-development discharges.

50 Taking into account the nature of the downstream discharge via the OSD and gabion weir structure, it will be mostly in line with the existing discharge point, which is along an apparent natural watercourse through an undeveloped rural property. It seems to me that this individual lot, “interim drainage” proposal will minimise the impact of nuisance flooding and any flooding risk to persons or property.

51 In this regard, I have also given consideration to the applicant’s agreement to conditions, which trigger the construction of the FLS, so that the interim drainage system can then be connected into the ultimate road drainage system. I rely on the levels Mr Lysenko submitted that this can be achieved.

Conclusions

52 Having considered the evidence, the submissions and undertaken a view, I consider this application merits conditional consent. The development is located within the North Kellyville release area, which has been subject to extensive environmental investigation resulting in comprehensive planning controls to allow large-scale residential and associated development.

53 The subject development is permissible within the R2 Low Density Residential and SP2 Infrastructure zone. In support of the application the applicant has submitted various government papers supporting the short – term need for aged–care facilities in this area. Accordingly, I accept the applicant’s submissions that there are community benefits in achieving the development of this type of facility.

54 However implementation of this allowable development is compromised because it is the 1^st development in this sub–catchment area where the ultimate road and drainage infrastructure is not available. But this depends on some development actually commencing so that s94 funds can be progressively obtained. This might mean that some compromised amenity is necessary in the short term.

55 Unfortunately the controls do not provide any guidelines for the ‘piece–meal’ implementation of development. Therefore considering the public interest benefits of progressing the development, it seems reasonable to consider whether appropriate interim servicing measures can be undertaken, which facilitate the development without adverse environmental outcomes and which enable the development to ultimately comply with servicing controls.

56 With respect to the temporary road access, I accept the expert’s opinion that temporary access onto Samantha Riley Drive can be maintained providing additional safety works are undertaken at the driveway/road connection. Also, that conditions can be imposed that effectively trigger the new rear road access (FLS) in conjunction with the adjoining development.

57 The associated servicing issue concerns the drainage issue. In this case the upstream non-urban catchment is relatively small. Therefore I am satisfied to rely on Mr Lysenko’s evidence that the OSD and watercourse works can effectively restrict post-discharges from the site to not exceed pre-development conditions. Whilst it then discharges into the existing watercourse, there was no evidence to indicate that there would any significant risk to person or property. Importantly, I understand that the proposed drainage system can be connected to the ultimate drainage scheme within the FLS, when it is constructed in conjunction with neighbouring developments.

58 The remaining issue concerns payment of reasonable s94 contributions towards transport infrastructure. For the aforementioned reasons, I consider it reasonable to maintain the s94CP methodology but reduce the occupancy factor, as agreed by Mr Kendal, to ascertain the appropriate contributions.

59 Consequently the issues before the Court have been addressed to enable the conditional consent to be granted. However the draft conditions include a deferred commencement condition requiring a drainage easement to be obtained from the downstream property owner. In the circumstances of the temporary drainage works, which maintain very similar discharge characteristics to the existing and noting that the adjoining rural property is subject to development, I do not consider the condition reasonable. Likewise, I do not consider conditions to construct part of Samantha Riley Drive reasonable when the s94 contributions apply.

60 The Court orders that:

2 Development consent is granted to DA 1902/2008/HB for the construction and operation of a 150 bed residential care facility at 57 Samantha Riley Drive Kellyville subject to the conditions in Annexure A.

3 The exhibits may be returned except for 1, 2, A, C, K and L.

R Hussey
Commissioner of the Court

Annexure “A”

Condition of Consent

for 150 Bed Residential Care Facility

57 Samantha Riley Drive, Kellyville.

GENERAL MATTERS
1. Development in Accordance with Submitted Plans

The development being carried out in accordance with the following approved plans and details, stamped and returned with this consent except where amended by other conditions of consent.

REFERENCED PLANS AND DOCUMENTS

DRAWING NO. DESCRIPTION SHEET REVISION DATE

DA01 Site Analysis + Site Plan 1 - 2009 October

DA02 Basement Floor Plan @ RL74.20 1 - 2009 October

DA03 Ground Floor Plan @ RL 77.00 1 - 2009 October

DA04 First Floor Plan @ RL 80.05 1 - 2009 October

DA05 Second Floor Plan @ 83.10 1 - 2009 October

DA06 Elevations 1 - 2009 October

DA07 Sections 1 - 2009 October

DA08 Roof Plan 1 - 2009 October

101 Landscape Plan Sheet 1-1 B 21 December 2009

C03 Civil Services Stormwater Drainage and Grading Site Ground Floor Plan 1 1-1 22 June 2010

No work (including excavation, land fill or earth reshaping) shall be undertaken prior to the issue of the Construction Certificate, where a Construction Certificate is required.

2. SEPP (Housing for Seniors or People with a Disability) 2004

The development shall be restricted to the housing of older people and/or people with a disability in accordance with the provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability)2004.

3. Accessibility and Adaptability

The Access Report prepared by Mark Relf of Accessibility Solutions (NSW) P/L dated 20^th December 2009 must be adhered to at all stages. The development is to be designed according to the report.

The development is required to be provided with forty-two (42) off-street car parking spaces, one (1) external ambulance bay and one (1) bus space to include eighteen (18) visitor spaces and twenty-four (24) facility staff spaces. These car parking spaces shall be available for off street parking at all times.

External finishes and colours shall be in accordance with the details submitted with the development application and approved with this consent.

A separate application being submitted to, and approved by, Council prior to the erection of any advertisements or advertising structures.

Prior to construction of the approved development, it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued by Council or an Accredited Certifier. Plans submitted with the Construction Certificate are to be amended to incorporate the conditions of the Development Consent.

The Waste Management Plan submitted to Council must be adhered to at all stages in the demolition/construction/design of facilities and on-going use phases. All waste material nominated for recycling must be reused or recycled. Any material moved offsite is to be transported in accordance with the requirements of the Protection of the Environment Operations Act (1997) and only to a place that can lawfully be used as a waste facility. Dockets/receipts verifying recycling/disposal must be kept and presented to Council when required.

The reuse and recycling of waste materials must be maximised during construction and demolition. The separation and recycling of the following waste materials is required:

a) Masonry products (bricks, concrete, concrete roof tiles) to be sent for crushing/recycling;

b) Timber waste to be separated and sent for recycling;

c) Metals to be separated and sent for recycling;

d) Clean waste plasterboard to be returned to the supplier for recycling (excluding plasterboard from demolition); and

e) Mixed waste (plastic wrapping, cardboard etc) to be sent to a licensed recycling or disposal facility.

This can be achieved by constructing a minimum of five trade waste compounds on-site. Each waste compound must be adequately sized to enclose the waste . Alternatively, mixed waste may be stored in one or more adequately sized waste compounds and sent to a waste contractor/waste facility that will sort the waste on their site for recycling. Waste must be adequately secured and contained within designated waste areas and must not leave the site onto neighbouring public or private properties. Personal waste must not litter the site. Copies of actual weighbridge receipts verifying recycling/disposal must be kept and presented to Council when required.

The disposal / landfill of surplus excavated material, other than to a DECC licensed facility, is not permitted without formal approval from Council prior to the commencement of works. Any unauthorized disposal of waste, which includes excavated material, is a breach of the Protection of the Environment Operations Act 1997 and subject to substantial penalties. Unless Council approves an alternate site, then all surplus excavated material must be disposed of at a licensed waste facility. Copies of actual weighbridge receipts verifying recycling/disposal must be kept and presented to Council when required.

To ensure that adequate provision is made for the cleanliness and maintenance of all food preparation areas, all work involving construction or fitting out of the premises shall comply with the requirements of Australian Standard – Design, construction and fit-out of food premises AS 4674-2004, Food Act 2003 and the provisions of the Food Safety Standards Code (Australia).

Detailed plans and specifications for the construction of the premises are to be submitted with the Construction Certificate.

Copies of AS 4674-2004 may be obtained from Standards Australia Customer Service on telephone 1300 65 46 46 or by visiting the website: of the Food Safety Standards Code (Australia) may be obtained by contacting the Food Standards Australia New Zealand Authority on Telephone: (02) 6271-2222, e-mail: [email protected] or by visiting the website: use of the premises, building services, equipment, machinery and ancillary fittings shall not give rise to “offensive noise” as defined under the provision of the Protection of the Environment Operation Act 1997. The sound level output shall not exceed 5 dB(A) above the ambient background level at the closest neighbour’s boundary.

Waste and recycling material, generated by the premises, must only be collected between the hours of 6am and 10pm except for Sundays and public holidays, where collection shall be between 8am and 10pm.

A waste contractor shall be engaged to remove all waste from the garbage storage area on a regular basis so that no overflow of rubbish will occur. Practical measures are also to be taken to ensure that odour emission from the garbage storage area does not cause offensive odour as defined by the Protection of the Environmental Operations Act, 1997.

Stockpiles of topsoil, sand, aggregate, spoil or other material capable of being moved by water, to be stored clear of any drainage line, easement, natural watercourse, footpath, kerb or roadside.

A separate waste bin is to be provided for the disposal of clinical and sharps waste. Clinical and sharps waste must be collected and disposed of by an authorised contractor in accordance with the Protection of the Environment Operations (Waste) Regulation 2005. Dockets/receipts of hazardous waste disposal must be kept and presented to Council when required.

The following measures must be taken to control the emission of dust:

a) all dusty surfaces must be wet down and any dust created must be suppressed by means of a fine water spray. Water used for dust suppression must not be allowed to enter the street or stormwater system.

b) all stockpiles of materials that are likely to generate dust must be kept damp or covered.

The applicant is to notify Council's Waste Management Officer (by phone or in writing) five (5) days prior to any works commencing on the site.

Deliveries to the delivery dock and the collection of waste is not permitted after 10:00pm and not permitted before 7am.

The proposed development is to be undertaken in accordance with the requirements of the NSW Police – Local Area Command dated 9 July comprising the following:-

Lighting to meet minimum Australian Standards. Special attention to be made for lighting at entry/exit points of the building, car park and access/exit driveways.
Ensure vegetation/landscaping is trimmed at all times.
Security shutters be placed at the vehicular entrances of each of the basement area.
Residents with dementia or alzheimer’s wear a bracelet or necklace that will enable the resident to be returned to the facility safely.
An external fenced courtyard be provided with walkways for the residents to stroll. Figure ‘8’ walkways are most successful forms of walkways.
All authorised staff be allocated access cards to provide temporary activation of security shutters to the basement areas and lobbies.
The underground parking areas be painted white.
Use of a CCTV to monitor common areas, lobbies, access/exit driveways and underground car parks.
Ensure clean and well maintained areas are kept to include rapid repair of vandalism and graffiti and replacement of car park lighting.
Select materials for construction that are non-porous building surfaces.
Use of sensor lights and a security company to monitor the site while construction is in progress.
The storage areas be alarmed to alert staff to potential unauthorised access.
When nursing staff are working a shift where only one nurse is on-site, the nurse be given a mobile panic alarm.
The doors to any medicine room/s or cabinets are alarmed as are any doors that give external access to the street.

The submission of documentary evidence to the Certifying Authority, including a Notice of Requirements, from Sydney Water Corporation confirming that satisfactory arrangements have been made for the provision of water and sewerage facilities.

Following an application a “Notice of Requirements” will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Co-ordinator, since building of water / sewer extensions can be time consuming and may impact on other services and building, driveway and landscape design.

The responsibility for house/unit/tenancy numbering is vested solely in Council in order to provide a consistent and accurate system of street numbering throughout the Shire. In this regard you are required to contact Council’s Land Information Section on 9843 0474 to confirm the street number. The street numbers as issued are to be displayed on all buildings resulting from this approval.

All work in the road reserve shall be supervised by a suitably qualified and experienced Civil Engineer, Registered Surveyor or Civil Engineering Foreman. The supervisor’s name, address and contact phone number shall be submitted to Council prior to the commencement of construction in the road reserve.

In this regard a construction programme and anticipated duration of construction for all work in the road reserve shall be submitted in writing to Council prior to the commencement of any works in the road reserve.

The submission to Council of an application for gutter and footpath crossings, accompanied by the current fee as prescribed in Council’s Schedule of Fees and Charges.

All contractors working in the public road shall take out public liability insurance for a minimum amount of $10 million. The policy shall specifically indemnify Council from all claims arising from the execution of the works. Written evidence of this insurance shall be submitted to Council prior to the commencement of construction in the road reserve.

Council must be notified of any damage to the public infrastructure such as road pavement, kerb and gutter, concrete footpaths, drainage structures, utilities and landscaping fronting the development.

Adequate protection must be provided for public infrastructure prior to work commencing and during building operations.

Any damage to public infrastructure caused during construction shall be made good prior to the issue of an occupation or subdivision certificate.

New or replacement fencing across drainage easements in favour of Council must be approved by Council. Open style fencing must be used.

A separate development application must be submitted to Council for any proposed community or strata titled subdivision of the approved development.

The formation, surfacing and drainage of all vehicular access and parking areas is required. The design and construction of all vehicular access and parking areas must comply with:

a) AS/ NZS 2890.1:2004 – Parking facilities Part 1: Off-street car parking.

b) AS/ NZS 2890.6:2009 – Parking facilities Part 6: Off-street parking for people with disabilities.

c) AS 2890.2:2002 – Parking facilities Part 2: Off-street commercial vehicle facilities.

d) State Environmental Planning Policy for (Housing for Seniors or People with a Disability) 2004.

e) BHDCP Part D Section 1 – Parking.

Where conflict exists the Australian Standard(s) must be adopted.

The following must be provided:

The detailed design should incorporate the requirements of the Condition titled 'Engineering Works and Design' under this consent, in particular the item (iii): Interim Vehicular Access".

All internal car parking spaces and access roads must be prominently and permanently line marked, signposted and maintained to ensure entry and exit is in a forward direction at all times and that parking and traffic circulation is appropriately controlled.

All access roads and car parking areas are to be separated from landscaped areas by a concrete kerb or wall.

The design certification and construction approval of the engineering works nominated later in this consent require separate approval prior to the commencement of any works as follows:

a) Works on existing public roads or reserves and any land under the care and control of Council require an Engineering Construction Certificate (ECC) in accordance with the Roads Act 1993 and/ or the Local Government Act 1993. This includes the construction of new roads which are to be dedicated as public road.

: An ECC can only be issued by Council.

b) All other engineering works associated with the building approval must be approved by either Council or an Accredited Certifier. This certification must be included with the documentation approved as part of any Construction Certificate.

NOTE

For Council to issue either a ECC and/ or a DCC the following must be provided:

ii.

iii.

iv.

The design and construction of the following engineering works is required in accordance with the following documents and requirements:

a) Council’s Design Guidelines Subdivisions/ Developments

b) Council’s Works Specification Subdivisions/ Developments

c) The North Kellyville Precinct Development Control Plan (December 2008)

d) Council’s Samantha Riley Drive Design “Widening of Samantha Riley Drive, Kellyville - Ultimate Design Plan” Project No 7808-102-799.

Any variation from the above requires separate approval from Council.

The full width construction of the “local street” road along full length of the northern boundary of the development site (Lot 4 DP 32271) as identified in the North Kellyville DCP referenced above.

The full width construction must include all stormwater drainage, concrete footpaths, grassed swales, cycle ways, servicing and other ancillary work as identified in the above documents and in order to make the construction effective.

The proposed road must be constructed to the following requirements:

Road Name: Formation:
(Footpath/ Carriageway/ Grassed Swale/ Carriageway/ Footpath (w/ Cycleway)) (m) Traffic Loading:
N(ESA)

Proposed Road 1
(Sites Northern Boundary) Road Type:
DCP “Local Street” Road Type
3.5m/ 5.3m/ 4m/ 5.3m/ 3.5m
(21.6m total width) 5*10(5)

The partial width construction of the “park street” road along the full length of the western boundary of the development site (Lot 4 DP 32271) as identified in the North Kellyville DCP referenced above.

The partial width construction must include all stormwater drainage, concrete footpaths, grassed swales, cycleways, servicing and other ancillary work as identified in the above documents and in order to make the construction effective.

The proposed road must be constructed to the following requirements:

Road Name: Formation:
(Footpath (w/ Cycleway)/ Carriageway/ Partial Grassed Swale) (m) Traffic Loading:
N(ESA)

Proposed Road 2
(Sites Western Boundary) Road Type:
DCP “Park Street” Road Type (Partial)
4.5m/ 5.3m/ 2m (partial swale)
(11.8m total width) 5*10(5)

iii. Street Names Signs

Street name signs and posts for the new roads as approved by Council.

iv. Heavy Duty Crossings

The temporary site access from Samantha Riley Drive must be closed and replaced with a new heavy duty gutter and footpath crossing and driveway from the “local street” covered by sub-point (i) above. The driveway must be a minimum of 6m wide at the boundary splayed to a minimum of 8m wide at the kerb.

v. Inter-allotment Stormwater Drainage

To provide an access point for the upstream undeveloped property to maintain flow through the existing depression.

BOND PROCESS/ REQUIREMENTS:

The items covered under points (i) to (v) above are able to be bonded. In this respect a bond for 150% of the calculated costs of these works is required to be provided prior to the issuing of any (including an interim) Occupation Certificate for the subject development. The calculated bond amount must be based on an accepted method of cost estimation and is subject to the agreement of Council’s Manager – Subdivision and Development Certification. The applicant is also required to create a Positive Covenant on the title of the property requiring the eventual completion of these works as outlined later in this consent.

Upon notice in writing from the Council the applicant will be required to submit to Council for approval an engineering design for these works no later than three (3) months of the date of the notice. An Engineering Construction Certificate is required in accordance with the requirements of Condition 32 from this consent. The works must be completed within six (6) months from the date of which Council issues an Engineering Construction Certificate for the works.

The written notice referred to above will come as a result of Council receiving an Engineering Construction Certificate for the construction of the adjacent proposed road network as part of any development on the adjoining development sites:

a) Lot 3 DP 32271 to the east of the subject site.

b) Lot 2 DP 32271 to the north of the subject site.

c) Lot 5 DP 32271 to the west of the subject site.

d) Lot C DP 391357 to the west of the subject site.

With the exception of point (v) above which is triggered by an approved development on Lot 5 DP 32271 to the west of the subject site only.

The engineering design for these roads must be accompanied by a separate road widening plan identifying the areas that will be required to be dedicated as road widening as required later in this consent. This dedication must occur at no cost to Council.

PRIOR TO THE ISSUE OF CONSTRUCTION CERTIFICATE
33. Section 94 Contribution – North Kellyville

The following monetary contributions must be paid to Council in accordance with Section 94 of the Environmental Planning and Assessment Act, 1979, to provide for the increased demand for public amenities and services resulting from the development.

Payments comprise of the following:-

Seniors Living

Prior to payment of the above contributions, the applicant is advised to contact Council’s Development Contributions Officer on 9843 0268. Payment must be made by cheque or credit/debit card. Cash payments will not be accepted.

This condition has been imposed in accordance with Contributions Plan No. 13.

Council’s Contributions Plans can be viewed at or a copy may be inspected or purchased at Council’s Administration Centre.

NOTE:

Contributions Plan No. 13 includes provision for payment of the above contributions by monetary contribution, material public benefit (works-in-kind) or by dedication of land. Council may consider an offset against the above monetary contributions where the applicant proposes to undertake works-in-kind or dedication of land envisaged by the contributions plan. Any such proposal is subject to the agreement of Council and the applicant will be required to enter into a Deed or Agreement for any such works and/or dedications.

34. Special Infrastructure Contribution

The applicant is to make a special infrastructure contribution in accordance with any determination made by the Minister administering the Environmental Planning and Assessment Act 1979 under Section 94EE of that Act that is in force on the date of this consent, and must obtain a certificate to that effect from the Growth Centres Commission before a construction certificate is issued in relation to any part of the development to which this consent relates.

35. Landscape Bond

A landscape bond in the amount of $20,000 is to be lodged with Council prior to the issue of the Construction Certificate. It shall be refunded 6 months following the issue of the Occupation Certificate and the submission to Council of certification from a qualified Landscape Architect or Council’s Tree Management Team, that the works have been carried out in accordance with the approved landscape plan.

36. Preliminary Assessment of Plans

A preliminary assessment of the plans submitted with the application has disclosed that the following design and/or construction issued need to be addressed prior to the issue of any Construction Certificate to ensure compliance with the Building code of Australia:

Compliance with the Building Code of Australia Report dated 8 May 2008 ref. J080101 prepared by Vic Lilli & Partners.

37. No Deviation from Development Consent

The Principal Certifying Authority shall not authorise any variations to the Development consent and the approved plans. If variations are required, a section 96 modification shall be lodged and approved by council prior to the issue of the Construction Certificate or prior to the implementation of the variations during construction.

A Temporary Egress Plan and Egress Management Plan shall be submitted to the Principal Certifying Authority for approval prior to the issue of the Construction Certificate for the staged development. The Principal Certifying Authority shall be satisfied that if any existing exits in a particular stage are required to be rendered unavailable during any construction work, provision of temporary alternative exits, artificial lighting, exit signs, emergency lighting and warning signage shall be made prior to work commencement and be maintained throughout the construction period or until the required exits are available.

The stormwater pump-out system must provide for the following:

a) A holding tank sized to store the run-off from a 1:100 year ARI (12 hour) storm event;

b) A two pump (alternating) system capable of emptying the holding tank at the lowest of either the Permissible Site Discharge (PSD) rate or the rate of inflow for a 1:5 year ARI (5 hour) storm event;

c) An alarm system to alert a pump failure;

d) 100.0mm freeboard to all nearby parking spaces;

e) The system must be connected to the Onsite Stormwater Detention (OSD) system before being discharged to the street (under gravity).

All relevant plans, calculations, hydraulic details and manufacturer specifications for the pump(s) must be submitted along with certification from the designer to ensure the design complies with the above requirements.

In accordance with Section 80A(6)(a) of the Environmental Planning and Assessment Act 1979, a security bond to the value of $36,000 is required to be submitted to Council to guarantee the protection of the adjacent road pavement and public assets during construction works. The bond shall be lodged with Council prior to the issue of a Construction Certificate.

The value of this bond shall be confirmed with Council prior to submission and may be in the form of cash or an unconditional bank guarantee. The bond is refundable upon written application to Council along with payment of the applicable bond release fee, and is subject to all work being restored to Council’s satisfaction. Should the cost of restoring any damage exceed the value of the bond, Council will undertake the works and issue an invoice for the recovery of these remaining costs.

In accordance with Section 80A(6)(b) of the Environmental Planning and Assessment Act 1979, a security bond to the value of 150% of the external construction is required to be submitted to Council to guarantee the construction, completion and subsequent performance of all works external to the site. The above amount is 150% of the total value of providing all such works, or $10,000.00 (whichever is the greater).

The bond shall be lodged with Council prior to the issue of a Construction Certificate.

Should a bank guarantee be the proposed method of submitting a security bond the guarantee is to:

a) Have no expiry date;

b) Be forwarded direct from the issuing bank with a suitable cover letter that refers to Development Consent No. 1902/2008/HB;

c) Specifically reference the item(s) and amounts being guaranteed. If a single bank guarantee is submitted for multiple items it must be itemised.

Should it become necessary for Council to uplift the bank guarantee, notice in writing will be forwarded to the applicant fourteen (14) days prior to such action being taken.

: No bank guarantee will be accepted that has been issued directly by the applicant.

Draft copies of all legal documents (deed of agreement, request documents, etc;) required as part of this consent shall be submitted to Council for checking prior to the issue of a Construction Certificate.

Where the engineering works included in the scope of this consent extend into adjoining land, written consent from all affected adjoining property owners must be obtained and submitted to Council prior to the issue of a Construction Certificate.

The design and construction of the following engineering works is required in accordance with the following documents and requirements:

a) Council’s Design Guidelines Subdivisions/ Developments

b) Council’s Works Specification Subdivisions/ Developments

c) The North Kellyville Precinct Development Control Plan (December 2008)

Any variation from the above requires separate approval from Council.

These works require either an Engineering Construction Certificate (ECC) and/ or design certification from either Council or an Accredited Certifier as per Condition 32 from this consent. The following engineering works are required:

i. Interim Vehicular Access Road Resurfacing – Samantha Riley Drive

The applicant shall provide road resurfacing on the northern side of Samantha Riley Drive to provide for a tapered eastbound ingress to and tapered westbound egress from the proposed interim driveway. Details are to be submitted to Council’s satisfaction prior to issue of a Construction Certificate.

ii. Central Median Strip – Samantha Riley Drive

The applicant shall provide a central median strip on Samantha Riley Drive in the vicinity of the proposed interim driveway. The median shall be 600mm in width and must restrict right-hand vehicular movements into and right-hand vehicular movements out-of the site. Details are to be submitted to Council’s satisfaction prior to issue of a Construction Certificate.

iii. Interim Vehicular Access:

Vehicular access to and from the site onto Samantha Riley Drive is approved on an interim temporary basis. Such access is to be a single combined entry/ exit point at the eastern boundary of the premises.. The existing driveway associated with the dwelling on the site must be removed and the existing table drain and swale maintained together with the restoration and turfing of the adjoining footpath area.

The design of this access must consider both the interim and future road connection to the “local street” road along the sites northern boundary. This will include checking the suitability of each proposed access driveway and all internal maneuvering areas within the site itself to cater for the predicted demand generated by all vehicles entering and leaving the property. This requirement may indicate that an alternate delivery truck access should be considered to the western, or “park street” road, frontage as a future development option.

Long term vehicular access to the site must be provided via the road network (aside from Samantha Riley Drive) proposed as part of the North Kellyville Precinct, specifically, the “local street” road along the sites northern boundary that is to be constructed by the applicant in accordance with this consent. To ensure the removal of the temporary access to Samantha Riley Drive upon the “local street” road being constructed a bond to the value of 150% of the cost of the driveway, being $26,250, is required to be paid by the applicant. This bond amount must be confirmed prior to payment.

iv. Heavy Duty Crossings

The temporary site access/ driveway from Samantha Riley Drive must be a minimum of 6m wide at the boundary splayed to a minimum of 8m wide at the kerb and constructed in accordance with Council’s heavy duty crossing/ driveway requirements.

v. Stormwater Drainage Discharge

The proposed outlet structures and rip-rap protection must be provided in accordance with the Civil Services Stormwater Drainage and Grading Site Ground Floor Plan (Drawing 25522 1-1 C03) prepared by Buckton Lysenko Consulting Engineers dated 22 June 2010 .

Until full construction of the Future Local Street (see Condition 32) the Applicant must ensure (by way of the onsite detention system) that the discharge from the developed site into the existing watercourse on Lot 3 DP 32271 will not exceed the discharge quantity and velocity prior to the development of the site for all storm recurrence intervals from 5 to 100 year storms.

Upon full construction of the Future Local Street the drainage system on the developed site must be integrated with the drainage system in the Future Local Street. The detailed Engineering Construction Certificate shall include the ultimate design for the connection of the development drainage into the final drainage system.

NOTE:

Construction of the Future Local Street will occur upon development of adjoining properties as per Condition 32.

vi. Water Sensitive Urban Design (WSUD) Measures

Provision of WSUD measures including combination of rainwater tanks, onsite stormwater detention facilities, rain-gardens (bio-retention basins), road-side swales (bio-infiltration) and gross pollutant traps in order to achieve the overall water quality and stream erosion performance objectives from the North Kellyville DCP.

Comprehensive design plans showing full construction details must be submitted, along with a completed design calculation, including MUSIC modelling, with reference to Section 6.1 of the North Kellyville DCP, along with a maintenance schedule prepared by the designer of the WSUD system.

PRIOR TO WORK COMMENCING ON THE SITE
46. Protection of Existing Trees

The tree/s that is/are to be retained is/are to be protected during all works with 1.8m high chain wire fencing which is to be erected at least three (3) metres from the base of each tree and is to be in place prior to works commencing to restrict the following occurring:

Stockpiling of materials within the root protection zone,
Placement of fill within the root protection zone,
Parking of vehicles within the root protection zone,
Compaction of soil within the root protection zone.

All areas within the root protection zone are to be mulched with composted leaf mulch to a depth of not less than 100mm.

The installation of services within the root protection zone is not to be undertaken without consultation with Council’s Tree Management Officer.

47. Management of Building Sites – Builder’s Details

The erection of suitable fencing or other measures to restrict public access to the site and building works, materials or equipment when the building work is not in progress or the site is otherwise unoccupied.

The erection of a sign, in a prominent position, stating that unauthorised entry to the site is not permitted and giving an after hours contact name and telephone number. In the case of a privately certified development, the name and contact number of the Principal Certifying Authority.

48. Approved Temporary Closet

An approved temporary closet connected to the sewers of Sydney Water, or alternatively an approved chemical closet is to be provided on the land, prior to building operations being commenced.

49. Discontinuation of Domestic Waste Service(s)

Prior to commencement of any demolition works, Council must be notified to collect any garbage or recycling bins from any dwelling/building that is to be demolished and to discontinue the waste service (where the site ceases to be occupied during works). Construction or demolition workers must not use Council’s domestic and garbage and recycling service for the disposal of waste. Please contact Council’s Domestic Waste Hotline on 1800 623 895 for the discontinuation of waste services.

50. Erosion and Sedimentation Controls – Minor Works

Erosion and sedimentation controls shall be in place prior to the commencement of site works; and maintained throughout construction activities until the site is landscaped and/or suitably revegetated. The controls shall be in accordance with the details approved by Council and/or as directed by Council Officers. These requirements shall be in accordance with Managing Urban Stormwater – Soils and Construction produced by the NSW Department of Housing (Blue Book).

51. Stabilised Access Point

A stabilised all weather access point is to be provided prior to commencement of site works, and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the requirements with the details approved by Council and/or as directed by Council Officers. These requirements shall be in accordance with Managing Urban Stormwater – Soils and Construction produced by the NSW Department of Housing (Blue Book).

52. Site Water Management Plan

A Site Water Management Plan is to be submitted to Council for approval. The plan is required to be site specific and be in accordance with "Managing Urban Stormwater - Soils and Construction" (The Blue Book) produced by the NSW Department of Housing.

53. Traffic Control Plan

A Traffic Control Plan (TCP) is required to be prepared and submitted in strict compliance with the requirements of the current Australian Standard 1742.3 (Traffic Control Devices for Works on Roads) and the current RTA Traffic Control and Work Sites Manual. The persons preparing the TCP must have the relevant RTA accreditation to do so.

NOTE:

Where subsequent amendments to the approved TCP are required, a new plan shall be prepared and submitted to Council prior to implementation.

Prior to work commencing you are required to submit to Council a public infrastructure inventory report recording the condition of all public assets in the direct vicinity of the development site. The report shall include:

Designated construction access and delivery routes; and

Photographic evidence of the condition of all public assets. The report shall clearly identify the date of recording.

DURING CONSTRUCTION
55. Hours of Work
Work on the project to be limited to the following hours: -
Monday to Saturday - 7.00am to 5.00pm;
No work to be carried out on Sunday or Public Holidays.
The builder/contractor shall be responsible to instruct and control sub-contractors regarding the hours of work. Council will exercise its powers under the Protection of the Environment Operations Act, in the event that the building operations cause noise to emanate from the property on Sunday or Public Holidays or otherwise than between the hours detailed above.
56. Compliance with Critical Stage Inspections and Other Inspections Nominated by the Principal Certifying Authority
Section 109E(d) of the Act requires certain specific inspections (prescribed by Clause 162A of the Regulations) and known as “Critical Stage Inspections” to be carried out for building work. Prior to permitting commencement of the work, your Principal Certifying Authority is required to give notice of these inspections pursuant to Clause 103A of the Regulations.
N.B. An Occupation Certificate cannot be issued and the building may not be able to be used or occupied where any mandatory critical stage inspections or other inspections required by the Principal Certifying Authority are not carried out.
Where Council is nominated as Principal Certifying Authority, notification of all inspections required is provided with the Construction Certificate approval.
NOTE: You are advised that inspections may only be carried out by the PCA unless by prior agreement of the PCA and subject to that person being an accredited certifier.
57. Breaching and Filling of Dam
The earth dam located on the subject premises is to be breached to the requirements of the Environment Protection Authorities requirements. All fill must be Virgin Excavated Natural Material (VENM) and must not contain contaminants such as demolition material or organic wastes. Details of the source of the material are to be obtained and provided to Council. All fill is to be placed according to geotechnical advice and compacted in layers to achieve a standard suitable for residential development (Australian Standard AS 2870.1).
58. Standard of Works
All work shall be completed in accordance with the development consent and THSC Works Specification for Subdivisions/ Developments and must include any necessary works required to make the construction effective. All works and public utility relocation shall incur no cost to Council.

59. Engineering Construction Inspection(s)

Construction inspections are required for the engineering works included in this consent at the completion of the following inspection stages (where relevant) from Council’s Works Specifications Subdivisions/ Developments:

a) Prior to commencement of work;

b) Traffic control to AS 1742-3;

c) Bedding of pipes in trenches;

d) Trench backfill within roads;

e) Formwork for concrete structures;

f) Sub-grade proof roller test;

g) Proof roller test for kerb;

h) Sub-base course proof roller test;

i) Base course proof roller test;

j) Prior to placing of fill;

k) Road crossing;

l) Final Inspection; and

m) Asphaltic concrete surfacing.

NOTE:

The inspection of works approved by Council can only be carried out by Council’s Subdivision Construction Engineer(s). An initial site inspection is required prior to commencement of works. 24 hours notice must be given for all inspections.

PRIOR TO ISSUE OF A OCCUPATION CERTIFICATE
60. Landscaping Prior to Issue of Occupation Certificate
The landscaping of the site being carried out prior to issue of the Occupation Certificate in accordance with the approved plan. All landscaping is to be maintained at all times in accordance with BHDCP Part D, Section 3 – Landscaping.
61. Issue of Occupation Certificate
A final inspection shall be carried out to ensure compliance with all the conditions of the Development Consent, prior to the issue of an Occupation Certificate. Such certificate shall be issued prior to the occupation or use of any part of the building.
62. Food Shop Registration requirements
Occupation of the premises shall not occur until:
a) A registration application has been submitted to Council’s Health and Environmental Protection for the Food Shop, and
b) Notification to the NSW Food Authority under Food Safety Standard 3.2.2 Division 2 Section 4 Notification. This requirement is to be meet by notifying through the following website:
Evidence of compliance of the above shall be submitted to Council prior to commencement of business.
63. Regulated Systems
To ensure that adequate provision is made for ventilation of the building all mechanical and/or natural ventilation systems shall be designed, constructed and installed in accordance with the provisions of:
a) The Building Code of Australia,
b) AS 1668 Part 1 & 2 – 1991,
c) The Public Health Act – 1991
d) Public Health (Microbial Control) Regulation 2000,
e) Work Cover Authority,
f) AS 3666 –1989 Air Handling and water system of building microbial control

Part 1 - Design installation and commissioning
Part 2 - Operation and maintenance
Part 3 - Performance based maintenance of cooling water systems.

An application to register any regulated system installed must be made to Council prior to commissioning.

64. Waste Storage and Collection Areas

Council's Waste Management Project Officer must inspect and approve all waste storage and collection areas prior to the issue of a final Occupation Certificate.

65. Section 73 Certificate

A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. from Sydney Water Corporation.

Application must be made through an authorised Water Servicing Co-ordinator. Please refer to the Building Development and Plumbing section of the web site and then refer to Water Servicing Co-ordinator under “Developing Your Land” or telephone 13 20 92 for assistance.

66. Provision of Electricity Services

Submission of a compliance certificate from thee relevant provider confirming satisfactory arrangements have been made for the provision of electricity services (including undergrounding of services where appropriate).

67. Provision of Telecommunications Services

The submission of a compliance certificate from the relevant telecommunications provider, authorised under the Telecommunications Act confirming satisfactory arrangements have been made for the provision of, or relocation of, telecommunication services including telecommunications cables and associated infrastructure. This includes undergrounding of aerial telecommunications lines and cables where required by the relevant telecommunications carrier.

68. Compliance with Sydney Water Requirements:

The submission of documentary evidence from Sydney Water that all requirements have been complied with prior to the issue of an Occupation Certificate.

69. Post-Construction Public Infrastructure Dilapidation Report

Prior to the issue of an Occupation and/ or Subdivision Certificate you are required to submit to Council an updated public infrastructure inventory report identifying any damage to such and means of rectification for the approval of Council.

70. Dedication of Public Road

The “local street” and partial width “park street” roads located along the sites northern and western boundaries respectively must be dedicated to Council at no cost upon the completed construction of the same. The dedication of these roads must occur no later than three (3) months following the approval of the completed works by Council.

The applicant must register a plan of “proposed future public road reserve” with the NSW Land and Property Management Authority (LPMA) prior to issuing of any (including interim) Occupation Certificate for the development in order to reserve the land until the completion of road works to the requirements of Council.

To facilitate the dedication of these roads the applicant must apply to Council for a Subdivision Certificate.

71. Dedication of Road Widening - Samantha Riley Drive

The dedication of the proposed road widening on Samantha Riley Drive as public road at no cost to Council.

To facilitate the dedication of this road widening the applicant must apply to Council for a Subdivision Certificate.

NOTE:

The dedication of land associated with the widening of Samantha Riley Drive is envisaged by Council’s Development Contributions Plan No. 13 and accordingly, such dedication would qualify for an offset against Section 94 monetary contributions payable. The nature of any such offset shall be set out in a Deed of Agreement between Council and the Applicant to be entered into prior to issue of an Construction Certificate.

72. Pump Out System Certification

The construction of the stormwater pump-out system shall be certified as complying with the approved design by a suitably qualified hydraulic engineer.

73. Works As Executed (WAE) Plans

Works As Executed (WAE) plans prepared by a suitably accredited engineer or registered surveyor must be submitted to Council when the engineering works are complete. All WAE plans must be prepared in accordance with BHSC Design Guidelines for Subdivisions/ Developments (January 2010) on a copy of the approved engineering plans.

An electronic copy of the WAE plans (in AutoCAD “.DWG” format) must also be submitted along with pavement density results, pavement certification, concrete core test results and site fill results (where applicable).

74. WSUD Elements Certification

The Water Sensitive Urban Design elements must be completed to the satisfaction of the Principal Certifying Authority (PCA) prior to the issuing of an Occupation Certificate.

The following documentation is required to be prepared and submitted upon completion of the OSD system and prior to a final inspection:

a) Works As Executed (WAE) plans prepared on a copy of the approved plans;

b) A certificate from a suitably accredited engineer or surveyor verifying that the elements system (as constructed) will function hydraulically;

c) A certificate from a suitably accredited engineer verifying that the structures associated with the WSUD system (as constructed) are structurally adequate and capable of withstanding all loads likely to be imposed on them during their lifetime (a certificate of structural adequacy).

NOTE: Where Council is not the PCA for the development a copy of the above documentation must be submitted to Council.

75. Performance/ Maintenance Security Bond

The submission of a performance/ maintenance bond of 5% of the total cost of the subdivision/ engineering works (minimum $5,000.00). The bond shall be held for a defect liability period of no less than one (1) year to guarantee the performance of the works. This period may be extended to allow for the completion of necessary maintenance or in the case of outstanding works.

NOTE:

The release of the maintenance bond shall be subject to a written application and a satisfactory final inspection.

76. Creation and Registration of Restrictions and Positive Covenants

a) Creation of Restrictions and Positive Covenants

The submission to Council for endorsement of all necessary documentation together with the relevant endorsement fee prescribed in Council’s Schedule of Fees and Charges for the creation of the following over the title of the property:

i. Restriction – WSUD Elements Modification

A restriction as to user restricting development over or the varying of the finished levels of the WSUD elements and structures and associated components as constructed.

ii. Positive Covenant – WSUD Maintenance

A positive covenant to ensure the on-going maintenance of the WSUD elements and structures and associated components as constructed.

iii. Restriction – Vehicular Access

Restricting vehicular access to Samantha Riley Drive upon completion of the “local street” and “park street” as required under this consent.

iv. Positive Covenant – Construction and Dedication of Public Roads and Closure of Temporary Access to Samantha Riley Drive

The submission to Council for endorsement of all necessary documentation together with payment of the applicable fee in accordance with Council’s adopted schedule of fees and charges for the creation of a positive covenant over the title of the property requiring the construction of the “local street” and “park street” roads along the sites northern and western boundaries respectively, as well as all other bonded works as covered by this consent, in accordance with the following schedule:

- Lot 3 DP 32271 to the east of the subject site.

- Lot 2 DP 32271 to the north of the subject site.

- Lot 5 DP 32271 to the west of the subject site.

- Lot C DP 391357 to the west of the subject site.

v. Restriction – Occupation of Seniors Living

A restriction as to user restricting the use or occupation of any dwellings for housing for older people or people with a disability as per the definition of such included in SEPP (Seniors Living) 2004.

vi. Positive Covenant – Stormwater Pump Maintenance

A positive covenant to ensure on-going maintenance of the stormwater pump-out system is carried out at six (6) monthly intervals (minimum). The wording must specifically indemnify Council from all costs associated with the maintenance of the system.

b) Registration of Request Documents
The endorsed request documents must be lodged with the NSW Land and Property Management Authority and a copy of the registered documents submitted to Council.
An updated title search document will not suffice. A copy of the actual endorsed documents must be submitted to satisfy this requirement.
77. Confirmation that Pipes are Located within Easements
Submission of a letter from a Registered Surveyor certifying that all pipes and drainage structures are located within the proposed easements to drain water.
78. Public Asset Creation Summary
The submission of the following information is required:
a) The length and tendered cost of all constructed road works (public roads);
b) The land area dedicated as public road;
c) The length and cost of all constructed drainage works (excluding common or inter-allotment drainage lines);
d) The length, width and cost of constructed concrete foot-paving;
e) The length, width and cost of constructed cycleway;
NOTE: This information must be tabulated and sorted by street name (all works) and pipe size (for drainage works).

THE USE OF THE SITE
79. Operating and Staffing of the 150 Beds Facility
Approval is granted for the operating and staffing of the facility in accordance with the details under the submitted “Operational Management Statement”.
Any alteration to the above will require further approval of Council.

80. Security Screens/Locking Devices (Fire Safety)

All required fire exits or paths of travel to an exit shall not be fitted with security screens and/or locking devices that will impede safe egress of the building occupants and visitors without prior consent from Council. This condition does not apply to the entry door of the sole occupancy residential units.

81. Lighting

Any lighting on the site shall be designed so as not to cause a nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 The Control of Obtrusive Effects of Outdoor Lighting.

82. Final Acoustic Report

Within three months from the issue of an occupation certificate, an acoustical assessment is to be carried out by an appropriately qualified person, in accordance with the EPA's (DECC) Industrial Noise Policy and submitted to Council for consideration. This report should include but not be limited to, details verifying that the noise control measures as recommended in the acoustic report submitted with the application are effective in attenuating noise to an acceptable noise level and that the use of the does not give rise to “offensive noise” as defined under the provision of the Protection of the Environment Operation Act 1997.

83. Source Separation of Waste Materials

Arrangement must be in place in all areas of the development for the separation of recyclable materials from general waste. Arrangements must be in place in all of parts of the development for the movement of recyclable materials and general waste to the main waste / recycling storage room / area.

Separation into a minimum of three waste streams is required including:

Council contracted or private garbage/recycling collection vehicles servicing the development are not permitted to reverse in or out of the site. Collection vehicles must be travelling in a forward direction at all times to service bins.

____________________
R Hussey
Commissioner of the Court

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Road Name:	Formation: (Footpath/ Carriageway/ Grassed Swale/ Carriageway/ Footpath (w/ Cycleway)) (m)	Traffic Loading: N(ESA)
Proposed Road 1 (Sites Northern Boundary)	Road Type: DCP “Local Street” Road Type 3.5m/ 5.3m/ 4m/ 5.3m/ 3.5m (21.6m total width)	5*10(5)

Road Name:	Formation: (Footpath (w/ Cycleway)/ Carriageway/ Partial Grassed Swale) (m)	Traffic Loading: N(ESA)
Proposed Road 2 (Sites Western Boundary)	Road Type: DCP “Park Street” Road Type (Partial) 4.5m/ 5.3m/ 2m (partial swale) (11.8m total width)	5*10(5)

CITATION:	Moran Australia (Rouse Hill) Pty Ltd v The Hills Shire Council [2010] NSWLEC 1154
PARTIES:	APPLICANT Moran Australia (Rouse Hill) Pty Ltd RESPONDENT The Hills Shire Council
FILE NUMBER(S):	10344 of 2010
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- Adequacy of residential care facility; interim access and drainage arrangements in release area development; piece-meal development; S94 contribution for transport facilities.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Sydney Region Growth Centres) 2006 State Environmental Planning Policy – (Housing for Seniors or People with a Disability) 2004 State Environmental Planning Policy No 55 – Remediation of Land North Kellyville Development Control Plan Baulkham Hills Development Control Plan Section 94 Contributions Plan No 13 – North Kellyville Precinct
DATES OF HEARING:	11 October 2010
DATE OF JUDGMENT:	22 October 2010
LEGAL REPRESENTATIVES:	APPLICANT Ms L Byrne (Barrister) SOLICITOR Paul A Curtis & Co RESPONDENT Mr C Winn SOLICITOR The Hills Shire Council

Facilities	S94 Contrib. Plan @ 1person per/bed	Alternate Traffic facilities method
Transport - Land	$71,235.20	$39, 745.56
Transport - Capital	$530,307.46	$295, 884.56
$601,542.66	$335,630.12

DRAWING NO.	DESCRIPTION	SHEET	REVISION	DATE
DA01	Site Analysis + Site Plan	1	-	2009 October
DA02	Basement Floor Plan @ RL74.20	1	-	2009 October
DA03	Ground Floor Plan @ RL 77.00	1	-	2009 October
DA04	First Floor Plan @ RL 80.05	1	-	2009 October
DA05	Second Floor Plan @ 83.10	1	-	2009 October
DA06	Elevations	1	-	2009 October
DA07	Sections	1	-	2009 October
DA08	Roof Plan	1	-	2009 October
101	Landscape Plan	Sheet 1-1	B	21 December 2009
C03	Civil Services Stormwater Drainage and Grading Site Ground Floor Plan	1	1-1	22 June 2010