Mr Mark Kassis v Parramatta City Council

[2004] NSWLEC 262

Land and Environment Court

of New South Wales

CITATION:	Mr Mark Kassis v Parramatta City Council [2004] NSWLEC 262
PARTIES:	APPLICANT Mr Mark Kassis RESPONDENT Parramatta City Council
FILE NUMBER(S):	10737 of 2003
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Public interest and objectors' concerns
LEGISLATION CITED:	Parramatta Local Environmental Plan 2001, (PLEP) - Parramatta Development Control Plan 2001, (PDCP) - State Environmental Planning Policy No 65, (SEPP65)· - Environmental Planning and Assessment Act 1979, ss79C and 97
CASES CITED:
DATES OF HEARING:	03/05/2004
EX TEMPORE JUDGMENT DATE :	05/03/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr C McEwen, barrister, instructed by Mr N Velcic, solicitor SOLICITOR Nikola Velcic & Associates RESPONDENT Mr C C Gough, solicitor SOLICITOR Storey & Gough

JUDGMENT:

Appeal No: 10737 of 2003

Mr Mark Kassis
v
Parramatta City Council

Judgment

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Parramatta City Council (the council) of a development application to demolish the two existing dwellings and outbuildings on the land, to erect a mixed-use development, and to strata subdivide in Zone 10 at Lot 461, DP136036, and Lot 47, DP926 known as Nos 207 & 209 Woodville Road (Corner Derby Street).

2 I visited the land in company with the parties on the morning of the first day of the hearing and eleven residents gave evidence on the site inspection.

3 After being considered under the heads of s 79C of the Environmental Planning and Assessment Act 1979I have concluded that the application should succeed and conditional approval may be granted.

4 An extempore decision follows at paras 33-41 below.

The land

5 The land is situated on the southeastern corner of Derby Street and Woodville Road, Merrylands. The land is rectangular with a frontage of 28.195m to Woodville Road, a depth of 47.51m along the southern boundary, a frontage of 42.67m to Derby Street and 31.19m on the eastern boundary with an area of 1447.3m2.

6 The land as a gradual fall from the southeastern corner to the northwestern corner of about 1.2m and stormwater may be gravity drained to Derby Street.

7 Erected on the land are two modest single-storey detached weatherboard dwellings and associated outbuildings. The existing buildings do not have heritage significance and there are few trees and vegetation on the land.

Relevant planning controls

Parramatta Local Environmental Plan 2001, (PLEP)

8 Under the PLEP the land is zoned Mixed Use 10 and the “mixed use” proposal would be permissible with consent. The land use table is cl 16 of the PLEP.

9 The objectives of the Mixed Use 10 zone are:

(a) to encourage a mix of compatible land uses, such as office and commercial, retail, residential, tourist, service, recreational, community and light industry development, but only where adjacent uses will not have an adverse impact on each other, and
(b) to promote the development of the area to its maximum potential, while minimising environmental impacts of development by facilitating the use of public transport, bicycle and pedestrian facilities and services, and
(c) to ensure that development is energy and water efficient in design, minimises pollution and conserves the natural and built landscape, and
(d) to establish a highly attractive area to live and work in, and for recreational and tourist uses.

10 The relevant sections of the DCP2001 are:

· Design Element 4.1.1- Energy Smart Buildings;
· Design Element 4.1.2 - Waste Controls; and
· Design Element 4.2.1- Housing Diversity.
· Design Element 4.3.5 - Vehicular Access & Parking;
· Design Element 4.4 - Design

11 Site-specific controls for mixed-use development are found in Section 5.7 and the experts agreed that generally these would be met.

12 Clause 4.3.5 of DCP2001 requires car parking spaces to be provided as follows:

· 1 space per 1 bedroom unit;
· 1.25 space per 2 bedroom unit;
· 1.5 space per 3 bedroom unit;
· 0.25 visitor space per residential unit;
· 1 space per 30m2 of retail floor space;
· 1 space per 50m2 of commercial floor space; and
· 1 loading dock per 400m2 of floor space.

13 As the proposal comprises 7 x 1 bedroom residential units, 11 x 2 bedroom, 2 x 3 bedroom, and 227m2 of commercial space, twenty-four (24) residential car parking spaces, five (5) residential visitor’s car parking spaces and four (4) car parking spaces for the commercial components plus the provision of a loading dock, would be required. Thus thirty-three (33) car parking spaces and one (1) loading dock are required.

14 Thirty-three car parking spaces plus a loading dock are proposed and the proposal would comply on the assumption that commercial uses would occupy the three commercial tenancies.

15 The applicant stated that the proposed floor space ratio, (FSR) would be 1.23:1 and this would comply with the allowable FSR of 1.5:1, [Note: Exhibit D p 11].

State Environmental Planning Policy No 65, (SEPP65)

16 SEPP65 also applies and the applicant has addressed this aspect in the Statement of Environmental Effects, and was found by the experts to be satisfactory, [Note: Exhibit D pp 24-30].

The proposal and its history

17 Development application No D/597/03 was lodged with the respondent council on 21 March 2003 to demolish two existing dwellings and outbuildings on the land, remove trees and to erect a mixed-use development containing three (3) ground floor commercial tenancies and twenty (20) residential units comprising seven (7) x one bedroom units, eleven (11) x two bedroom units and two (2) x 3 bedroom units.

18 Parking is proposed at grade and within a basement carpark accessed from a driveway off Derby Street.

19 The applicant also seeks approval to strata subdivide the development.

20 The proposal is described in plans prepared by Joseph Aboud Design Co: Job No 20223 at 1:100 scale drawing Nos 1D, 2D, 3D, 4D, 5D, 6D, 7E, 8E, 9D in Exhibit A and landscaping plan as amended in red prepared by Vision Dynamics drawing No 03009BA1 Revision C in Exhibit B.

Notification

21 The original application was notified to nearby owners and occupants for a period of 42 days from 16 April to 28 May 2003. The extended exhibition period was as a result of the applicant lodging a working set of drawing with the correct drawings being readvertised and renotified.

22 Amended plans were advertised and notified from 3 December to 17 December 2003.

23 From 18 February 2004 to 8 March 2004 as a result of the advertisement in the local paper being incorrect the application was again advertised. The further revised proposal comprising twenty-one (21) residential units now further amended to twenty (20), was notified from 13 April to 27 April 2004.

24 Fifty-three (53) nearby residents were notified of the original proposal and fifty-five (55) were notified of the revised plans.

25 In respect of the original plans the council received seventeen (17) individual letters as well as a petition signed by fifty-six (56) people. In respect of the revised plans the council received twenty-one (21) individual letters and a petition signed by one hundred and one (101) people.

26 One supplementary submission was received from the owner of 34A Derby Street.

27 Concerns raised during the exhibition periods were:

· building height;
· population increase;
· privacy and overlooking;
· noise impacts;
· tree removal;
· traffic and parking;
· lack of notification of zoning change;
· use of commercial tenancies;
· inaccuracies with plans;
· garbage provision;
· precedent for future development;
· lack of architectural interest;
· lack of recreation areas;
· anti-social behaviour;
· overshadowing;
· use of home offices;
· asbestos removal;
· decreased property values;
· units facing Park Street will be denied natural light and airflow in winter; and
· health of future occupants.

28 When the appeal was filed the council had not finally determined the application.

The hearing

29 The appeal was filed on 27 June 2003.

30 At the hearing the court received a planning report dated 30 April 2004 by Mr B Delapierre, on behalf of the council, which recommended approval of the application, [Note: Exhibit 7].

31 On behalf of the applicant Mr White provided written evidence, [Note: Exhibit E].

The issues

32 On 30 April 2004 the council filed a final statement of issues, which highlighted the public interest and objectors’ concerns, [Note: Exhibit 9].

1. Whether approval should be granted as the proposed development is not in the public interest; and
2. Issues raised by objectors.

33 [Under the provisions of] the DCP, [it is reasonable for] Derby Street to be considered as a frontage and that a zero set-back apply to that frontage. In order to achieve a floor space ratio close to the 1.5:1 the applicant has [made] use of the frontages for the development and has kept the building lower in other areas. Although [the applicant] has infringed the 30 percent rear set-back with the two-storey building [on Derby Street], I agree with the council officer that the two-storey building [would] provide a transition in height between the four-storey building on Woodville Road and the single-storey buildings beyond. [I have taken into account that nearby dwellings may] be erected to two storeys if required.

34 The extra traffic generated by the proposal is to be expected in a Zone 10 area and it is a matter that could properly have been considered at the plan-making stage. The safety of children in the area - is something that people [must] to be aware of. The driveway [within] the site [would have] a level area [at] Derby Street [and vehicles may exit in a forward direction]. So, everything has been done to make the exiting of vehicles as safe as possible and with that in mind I consider the concern for safety of children to has been met.

35 The question of the viability of the shops in the area has to be taken into account by the applicant. If the shops are not viable then other uses would have to be found for them but the Council has planned for this type of development along Woodville Road in the Zone 10.

36 The cumulative effect [of development] on Woodville Road must be taken into account. At the moment this development is standing alone and at this stage [would] read as a separate development. It is the intention of the Council [to encourage] …high-density development along Woodville Road, so it may be that the cumulative effect might never reach a point that is considered to be adverse in terms of its Woodville Road frontage. [The planning report in] Exhibit 7 [indicates] the type of development that has been approved in the area, which is similar to that which is proposed here and is something that one would expect in a Zone 10.

37 The acoustic privacy [of residents] of the development has been taken into account by the conditions and the one minute Leq [would have] to be met and although it is not completely specified in the application, I would expect that 10-millimetre glass would be required (at least) along that frontage. I think the applicant should give some consideration to highlight windows because when [conditions] are quiet, or quieter, it would be good to be able to get some ventilation without having to open up the doors completely. Otherwise, I think the units fronting Woodville Road would need to be protected from the noise by 10-millimetre glass and air conditioning. A report on the acoustics [would] need to be carried out and I would not refuse the application …in the absence of an acoustic report.

38 So although there have been a significant number of objections [to the application] I have considered those objections, both on the site this morning and by looking at the [comprehensive] planning report, and I would not refuse the development for any one of those reasons, and I am prepared to approved the application.

39 [I have considered the impacts of] this particular development application and the impacts it would have on the surrounding area. The residents were concerned for the zoning aspect and that is something for the Council to consider [in preparing] a draft LEP under Part 3 of the Act. The site inspection this morning was of great assistance in clarifying the issues that relate to the application under Part 4 of the Act.

40 For the above reasons, the appeal is upheld.

Conditions

41 The conditions are those in Exhibit 8 as amended during the hearing to take account of some of the objectors concerns.

Orders

42 My orders are:

1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. Development application No JJ/597/03 lodged with the respondent council on 21 March 2003, for a mixed-use development in Zone 10 at Lot 461, DP136036, and Lot 47, DP926 known as Nos 207-209 Woodville Road Marylands, is approved subject to Conditions 1 to 76 in Annexure A.

3. The exhibits with the exception of Exhibits A, B, C, D, 7, 8 and 9 are returned.

S J Watts

sw

Appeal No: 10737 of 2003

Conditions of development consent

Annexure A

Mr Mark Kassis
v
Parramatta City Council
Mixed Use Development at Nos. 207 -209 Woodville Road

(1) All building work must be carried out in accordance with the provisions of the Building Code of Australia and the plans prepared by Joseph Aboud Design Co Job No 20223 at 1:100 scale drawing Nos 1D, 2D, 3D, 4D, 5D, 6D, 7E, 8E, 9D in Exhibit A and landscaping plan as amended in red prepared by Vision Dynamics drawing No 03009BA1 Revision C in Exhibit B.
Reason: To comply with the Environmental Planning and Assessment Act Regulations .

(2) As there is a change in the building use (classification), the building must comply with the category 1 fire safety provisions applicable to the proposed new use.
NOTE: The obligation under this subclause to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in the relevant development consent.
In this clause, Category 1 fire safety provision has the same meaning as it has in Part 7B of the Environmental Planning and Assessment Regulations.
Reason: To comply with the Environmental Planning and Assessment Act 1979.


(3) All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards. All excavations associated with the erection or demolition for a building must be properly guarded and protected to prevent them from being dangerous to life or property.
Reason: To ensure safety.

(4) Where soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil must be provided inclusive of adequate provision for drainage.
Reason: To prevent soil movement.

(5) If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land; the person causing the excavation to be made; must underpin and support the building in an approved manner.

At least 7 days before excavating below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation to be made must give notice of intention to do so to the owner of the adjoining allotment of land and furnish particulars of the excavation to the owner of the building being erected or demolished and submit to the Principal Certifying Authority details of the date and manner by which the adjoining owner(s) were advised. The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this condition, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. In this condition, allotment of land includes a public road and any other public place.

Reason: To control excavation procedures.

(6) As the work involved in the erection or demolition of a building is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place.
Such hoarding may need to include an awning sufficient to prevent any substance from, or in connection with, the work falling into the public place.
The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place, and any such hoarding, fence or awning is to be removed when the work has been completed.

Reason: To provide safety adjacent to work sites.

(7) A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out; stating that unauthorised entry to the work site is prohibited; and showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours.
Any such sign is to be removed when the work has been completed.
Reason: To provide information regarding the site.

(8) Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site. Each toilet provided; must be a standard flushing toilet; and must be connected to a public sewer, or if connection to a public sewer is not practicable, to an accredited sewage management facility approved by the council, or if connection to a public sewer or an accredited sewage management facility is not practicable, to some other sewage management facility approved by the council.
The provision of toilet facilities in accordance with this condition must be completed before any work is commenced.

Reason: To ensure adequate toilet facilities are provided.

(9) Prior to the commencement of any works that involve the physical disturbance of the site, surface water and sediment control measures, including those shown on the approved plan(s), shall be implemented. The measures shall be utilised and maintained during the development at all times.
Reason: To prevent erosion and control sediment.

(10) Building work may only be carried out six (6) days a week, Monday to Friday between the hours of 7.00am to 8.00pm and Saturday 8.00am to 8.00pm. No work is permitted to be carried out on Sundays or Public Holidays.
Reason: To protect the amenity of the area.

(11) A house number is to be placed on the building in a readily visible location prior to occupation of the building.
Reason: To ensure a visible house number is provided.


(12) An Occupation Certificate shall be obtained prior to occupation or use of the premises.
Reason: To comply with legislative requirements.

(13) Immediately prior to the commencement of demolition an inspection is to be arranged with Council’s Building Surveyor for the purpose of ensuring adequate measures are in place or will be taken to control dust, erosion or sediment that could leave the site as well as the protection of the road and footpath area from damage during the demolition process. Prior to commencement of demolition an inspection fee is to be paid in accordance with Council’s current fee schedule.
Reason: To maintain the amenity of the area during demolition.


(14) The Construction Certificate is not to be released unless the Certifying Authority is satisfied that the required levy payable under Section 34 of the Building and Construction Industry Long Service Payments Act 1986 has been paid.
Reason: To ensure that the levy is paid.

(15) The approved plans must be submitted to the appropriate Sydney Water office to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water’s requirements, the approved plans will be appropriately stamped. Evidence is to be provided to Council prior to occupation.
Reason: To comply with the requirements of Sydney Water.

(16) No building work shall commence until a Construction Certificate has been issued. A separate application must be completed for a Construction Certificate.
Note: Further information on Construction Certificates can be obtained by contacting the Building Certification Team on 9806 5518.

Reason: To comply with legislative requirements.

(17) Dust control measures shall be implemented during all periods of earth works, demolition, excavation and construction in accordance with the requirements of the NSW Environment Protection Authority. No dust is permitted to leave the site.
Reason: To protect the amenity of the area.

(18) Noise from construction and/or demolition activities associated with the development shall comply with the NSW Environment Protection Authority’s Environmental Noise Manual and the Protection of the Environment Operations Act 1997.
Reason: To protect the amenity of the area.

(19) No materials, machinery, signs or vehicles used in or resulting from the construction or demolition relating to the development shall be stored or placed on Council’s footpath, nature strip or roadway.
Reason: To ensure pedestrian access.

(20) A heavy-duty vehicular crossing shall be constructed in accordance with Council’s Standard Plan No. 5426. A vehicular crossing bond for an amount of $5232.00 shall be paid prior to the issue of a Construction Certificate.
Reason: To provide vehicular access.

(21) The disused vehicular crossings shall be removed and the kerb reconstructed in accordance with Council’s Standard Plan No. 5426 prior to issue of an Occupation Certificate.
Reason: To ensure redundant vehicular crossings are removed.

(22) The damaged footpath slabs within the Woodville Road frontage of the property shall be reconstructed. Detailed drawings shall be submitted to Council’s Infrastructure Unit prior to the commencement of works.
Reason: To provide pedestrian passage.

(23) If a Private Certifier is appointed to certify construction works Council’s Development Unit shall be notified in writing within 7 days following commencement of the approved use and/or occupation of the development so that an inspection can be undertaken by Council to ensure compliance with this Consent.
NOTE: Be aware that the issuing of an Occupation Certificate by a Principle Certifying Authority does not mean that this Consent is complied with and that Council cannot take any further action in regard to compliance with this Consent (refer to the Environmental Planning and Assessment Act and Regulation).

Reason: To ensure that this consent is complied with.

(24) All pruning works and tree removals shall be carried out by a suitably qualified tree surgeon/arborist in accordance with the provisions of AS4373-1996 Pruning Amenity Trees and the Tree Works Industry Code of Practice (WorkCover NSW).

25) The landscaping shall be completed in accordance with the consent and approved plans, prior to occupation or use of the premises and shall be maintained at all times.
Reason: To ensure landscaping is completed in accordance with the approved plans and maintained.


(26) Car parking and driveways shall be constructed, marked and signposted prior to occupation or use of the premises.
Reason: To ensure appropriate carparking.

(27) Works as executed plans certified by a suitably qualified person are to be submitted to the Principal Certifying Authority prior to occupation of the premises certifying that the stormwater drainage system has been constructed in accordance with the approved plans. A copy of the works as executed plans is to be submitted to Council’s Development Unit to update the on site detention data base for the upper Parramatta River Catchment Trust.
Reason: To ensure works comply with approved plans and for data for the Upper Parramatta River Catchment Trust.


(28) The garbage disposal/storage area shall be constructed and finished in accordance with the requirements of Council’s Garbage Room Code.
Reason: To ensure a suitable garbage storage area.

(29) Certification that the mechanical ventilation system(s) have been installed in accordance with the approved plans and specifications and functions in accordance with the AS 1668, must be submitted to the Principal Certifying Authority prior to occupation or use of the premises.
Reason: To ensure compliance with the Building Code of Australia.

(30) Certification from a suitably qualified person certifying that the building complies with the Category 1 fire safety provisions applicable to the proposed new use must be issued prior to occupation or use of the premises.
Reason: To ensure compliance with the fire safety provisions.

(31) The proposed on-site detention system shall be designed in accordance with the Upper Parramatta River Catchment Trust “On-site Detention Handbook”, Council’s Drainage Code. The design shall achieve a Site Storage Requirement of 470m3/ha and a Permissible Site Discharge of 80/l/s/ha. Detailed working plans demonstrating the intended method of compliance with this condition shall be submitted to the Principal Certifying Authority for approval prior to any works commencing on this component of the development.
Reason: To provide on site detention.

(32) A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to “Your Business” section of Sydney Water’s web site at then the “e-developer” icon or telephone 13 20 92.
Following application a “Notice of Requirements” will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Co-ordinator, since building of water/sewer extensions can be timed consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to the Construction Certificate being issued.

Reason: To ensure the requirements of Sydney Water have been complied with.

(33) Integral Energy Requirements
The submission of documentary evidence from Integral Energy to the Principal Certifying Authority is required confirming that satisfactory arrangements have been made with Integral Energy for the provision of electricity supplies to the development, prior to the release of the Construction Certificate.
Reason: To ensure adequate electricity supply to the development.

(34) Telecommunications
The submission of documentary evidence from an approved telecommunications carrier to the Principal Certifying Authority confirming that telecommunication services are available for this development is required prior to the issue of the Construction Certificate.
Reason: To ensure adequate telecommunication facilities are connected to the development.

(35) A concrete footpath, 1.2m wide and 70mm thick, shall be constructed along the Derby Street frontage of the site. Detailed drawings shall be submitted to Council’s Infrastructure Unit prior to the commencement of works.
Reason: To provide appropriate pedestrian passage.

(36) The payment of the following monetary contributions in accordance with Council’s Comprehensive Section 94 Contributions Plan:
Traffic and Transport $1,888.00
Open Space, Public Space and Recreation $54,976.00
Community and Cultural $5168.00
Other $80.00
Plan Management and Administration $7920.00
This results in a total contribution of $70,032.00 to be paid to Council prior to the issue of the Construction Certificate. The Section 94 Contribution fees are subject to annual review and the current rates are applicable for the current financial year... If you pay the contribution in a later financial year you will be required to pay the fee applicable at that time.
Reason: To comply with the adopted Section 94 Plan.

(37) A Positive Covenant and a Restriction is to be created on the property title (under the provision of the Conveyancing Act) to ensure that the required on site detention system will be adequately maintained. A copy of the typical covenant may be obtained from the Council’s Development Unit. Proof of registration shall be submitted to the Principal Certifying Authority prior to the occupation or use of the premises.
Note: The covenant is to be submitted to Council for approval prior to lodgement with the NSW Department of Lands

Reason: To ensure maintenance of on site detention facilities.

(38) AAA rated water saving fixtures shall be fitted prior to issue of an Occupation Certificate.
Reason: To ensure the building is water efficient.

(39) The hot water system(s) to be installed shall have a minimum rating of 3.5 stars. Details to be submitted prior to the issue of an Occupation Certificate.
Reason: To provide energy efficient hot water systems.

(40) A waste data file must be kept on site at all times and available to Council officers upon request at any time. All waste disposal receipts or weighbridge receipts confirming the disposal site for demolition and construction waste is to be stored within this file.
Reason: To ensure appropriate waste management is implemented.


(41) The existing lots are to be consolidated into one (1) lot and the plan of consolidation shall be registered at the Land Titles Office. Proof of registration shall be submitted prior to issue of the Construction Certificate. Alternatively, if the owner agrees in writing to Council’s Solicitors lodging the plan of consolidation at the NSW Department of Lands, have the carriage of such payment of the necessary legal fees, the issuance of the Construction Certificate can occur upon lodgement of the Plan of Consolidation for registration provided registration shall be completed prior to occupation of the premises.
Reason: To ensure consolidation occurs.

(42) Five (5) working days (ie Monday to Friday with the exclusion of Public Holidays) notice in writing is to be given to Parramatta City Council for inspection prior to the commencement of any works. Such written notice is to include the date when demolition will commence and details of the name, address, business hours contact telephone number and licence number of the demolisher. Persons undertaking demolition work should obtain the relevant licence with WorkCover.
Reason: To ensure appropriate demolition and compliance with Workcover requirements.

(43) On the first day of demolition, work is not to commence until the Principal Certifying Authority (PCA) has inspected the site. Should the building to be demolished be found to be wholly or partly clad with asbestos cement, approval to commence demolition will not be given until the PCA is satisfied that all measures are in place so as to comply with WorkCover's "Short Guide to Working with Asbestos Cement" a copy of which accompanies this Development Consent.
Reason: To ensure compliance with Workcover requirements.

(44) Demolition works involving the removal and disposal of asbestos cement must only be undertaken by contractors who hold a current WorkCover "Demolition Licence" AND a current WorkCover "Class 2 (Restricted) Asbestos Licence".
Reason: To ensure compliance with Workcover requirements.

(45) On demolition sites where buildings to be demolished contain asbestos cement, a standard commercially manufactured sign containing the words "DANGER ASBESTOS REMOVAL IN PROGRESS" measuring not less than 400mm x 300mm is to be erected in a prominent visible position on the site to the satisfaction of Council's officers. Advice on the availability of these signs can be obtained by telephoning Council's Customer Service Centre during business hours on 9806 5000. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos cement has been removed from the site to an approved waste facility. This condition is imposed for the purpose of worker and public safety and to ensure compliance with Clause 259(2)(c) of the Occupational Health and Safety Regulation 2001.
Reason: To comply with legislative requirements.

(46) Demolition is to be carried out in accordance with the applicable provisions of Australian Standard AS2601 1991 - The Demolition of Structures.
NOTE: Developers are reminded that WorkCover requires that all plant and equipment used in demolition work must comply with the relevant Australian Standards and manufacturer specifications.
Reason: To ensure appropriate demolition.

(47) All asbestos laden waste, including flat, corrugated or profiled asbestos cement sheets must be disposed of at a tip recommended by the NSW Environment Protection Authority (EPA).
NOTE: The person responsible for disposing of the above asbestos waste is to telephone the EPA on [phone] to determine the location of a tip licensed to receive asbestos. Upon completion of tipping operations the applicant must lodge with Council, all receipts issued by the receiving tip as evidence of proper disposal.
Reason: To ensure proper disposal of asbestos materials.


(48) Demolition works are restricted to Monday to Friday between the hours of 7:00am to 6:00pm. No demolition works are to be undertaken on Saturdays, Sundays or Public Holidays.
Reason: To protect the amenity of the area.

(50) The developer is to notify adjoining resident’s five (5) working days prior to demolition. Such notification is to be a clearly written note on note pad size paper giving the date demolition will commence and be placed in the letterbox of every premises (including every residential flat or unit, if any) either side and immediately at the rear and opposite the demolition site.
Reason: To minimise impact on adjoining properties.

(51) A copy of the notification and addresses of residents notified to be lodged with Council no less than two (2) business days prior to demolition.
Reason: To minimise impact on adjoining properties.

(52) A separate Development Application shall be submitted for the occupation of each of the ground floor commercial/retail tenancies.
Reason: To minimise the impact on surrounding residential properties.

(53) The development being built in accordance with the materials and colours illustrated on the photomontage submitted with the Development application.
Reason: To confirm the details of the development application submitted.

(54) Twenty four (24) carparking spaces shall be set aside for occupants of the residential units with a further five spaces being set aside for the use of visitors to the complex.
Reason: To ensure carparking is provided in accordance with the requirements of DCP 2001.


(55) Residential spaces shall be provided within a secure compound with the vehicular entrance to the residential portion of the basement carpark being provided with a sliding security gate. Details shall be shown be illustrated on plans submitted with the Construction Certificate.

(56) Nine Callistemon Viminals street trees are too planted within the Derby Street road reserve prior to the occupation of the complex. Trees are to be planted at three metre centres with trees being planted three metres from any corner or driveway.

(57) The use of residential units two and three shall be conducted in accordance with the definition of “Home Occupation” in the Parramatta Local Environmental Plan 2001 and outlined below :-

means an occupation carried on in a dwelling house or in a dwelling in a residential building, by the permanent residents of the dwelling house or dwelling which does not involve:
a. the employment of persons other than those residents, or
b. interference with the amenity of the neighborhood by reason of the emission of noise, vibration, smell, fumes, smoke, vapour, steam, ash, soot, dust, waste water, waste products, grit or oil, or otherwise, or
c. the display of goods, whether in a window or otherwise, or,
d. the exhibition of any notice, advertisement or sign (other than a notice, advertisement or sign exhibited on the dwelling house or dwelling to indicate the name and occupation of the resident), or,
e. the sale of items (whether goods or materials), or the exposure or offer for sale of items, by retail, or
f. prostitution.

Reason: To protect the amenity of the area.

(58) An acoustic report prepared by a qualified acoustic consultant is to be prepared in accordance with AS3671 and the NSW Environment Protection Authority’s Environmental Criteria for Road Traffic Noise and submitted to the Principal Certifying Authority before the issue of a Construction Certificate demonstrating that the internal habitable rooms have been designed to achieve internal noise levels of 50 dBALeq1min maximum. Any recommendations of that report are to be incorporated within the design and construction of the proposed development.
Reason: To minimise the impact of road noise on the amenity of the future residents of the building.
(59) Prior to the issue of a construction certificate a report shall be submitted to the principal certifying authority that provides details of the private contractor that will be engaged to collect domestic and commercial waste from the site. This report shall identify the frequency of collection and provided details of how waste products including paper, aluminium cans, bottles etc, will be re-cycled. Waste collection from the site shall occur in accordance with the details contained within this report. (60) Disabled Access and Facilities
The provision of disabled access throughout the development is required and shall be in compliance with the Building Code of Australia Part D3 “Access for People with Disabilities” and Australian Standard AS1428.1 (2001) - Design for Access and Mobility – Part 1 General Requirements for Access – Buildings. This requirement shall be reflected on the Construction Certificate plans.

Reason: To provide satisfactory access for all.

(61) The disabled access ramps shall comply with Australian Standard AS1428.1 (2001) – Design for Access and Mobility – Part 1 General Requirements for Access – Buildings. This requirement shall be reflected on the Construction Certificate plans.
Reason: To provide satisfactory access for all.


(62) Access for the disabled must be provided to the whole floor in accordance with AS1428.1 (2001) – Design for Access and Mobility – General Requirements for Access – New Building Work. This requirement shall be reflected on the Construction Certificate plans.
Reason: To provide satisfactory access for all.

(63) Toilet facilities shall be provided for disabled persons in accordance with the design criteria in AS1428.1 (2001) – Design for Access and Mobility – General Requirements for Access – New Building Work. This requirement shall be reflected on the Construction Certificate plans.
Reason: To provide satisfactory access for all.


(64) The gradient for all disabled access ramps shall not exceed a maximum of one (1) (vertical) in fourteen (14) (horizontal) as per the requirements of Australian Standard AS1428.1 (2001) – Design for Access and Mobility – General Requirements for Access – New Building Work. The final design of the proposed disabled access ramps shall be reflected on the Construction Certificate plans.
Reason: To provide satisfactory access for all.

(65) Signs incorporating the international symbol of access for disabled persons must be provided to identify each accessible:

a. entrance;
b. lift or bank of lifts; and
c. sanitary facility.
This requirement shall be reflected on the Construction Certificate plans and supporting documentation with the signs provided prior to the issue of an occupation certificate.
Reason: To provide satisfactory access for all.

(66) Any exhaust ventilation from the car park is to be ventilated away from the property boundaries of the adjoining dwellings, and in accordance with the provisions of AS1668.1. Details demonstrating compliance are to be provided with the Construction Certificate.
Reason: To preserve community health and ensure compliance with acceptable standards.


(67) In order to maximise visibility in the basement carpark, the ceiling shall be painted white. This requirement shall be reflected on the Construction Certificate plans.
Reason : To protect public safety.

(68) Service ducts shall be provided within the building to keep external walls free of plumbing or any other utility installations. Such service ducts are to be concealed from view from the street. Details demonstrating compliance are to be provided in the construction certificate.
Reason: To ensure the quality built form of the development.

(69) That provision be made for cigarette butt receptacles on the site to minimise littering. Cigarette butt receptacles must be provided during building works on any site, and permanently provided to any restaurant/bar/retail/commercial component of the development after construction. Details of the size and the location of the receptacle are to be provided in the Construction Certificate.

Reason: To ensure that adequate provision is made for the disposal of cigarette buts and prevent littering of the public domain.

(70) A certificate prepared by an appropriately qualified and practising structural engineer, at no cost to the Council, detailing the structural adequacy of adjoining properties and certifying their ability to withstand the proposed excavation and any measures required to be incorporated into the work to ensure that no damage will occur to adjoining properties during the course of the works, shall be submitted to the Certifying Authority with the Construction Certificate application.

Reason: To ensure the protection and structural integrity of adjoining properties.


(71) An Access Management Plan shall be submitted to Council or the accredited certifier before the issue of a Construction Certificate. Details for the Access Management Plan shall include:

(a) Access to the building for people with disabilities.
(b) Sanitary facilities for people with disabilities. Such facilities shall be accessible to all persons working in or using the building.
(c) One motor vehicle parking space on the site for the exclusive use of people with disabilities.
Reason: To provide appropriate access.

(72) A single master TV antenna is to be installed to service the development and provision made for connection to each dwelling unit within the development. This requirement shall be reflected on the Construction Certificate plans.
Reason: To protect the visual amenity of the area.


(73) To ensure the site landscaping thrives, the on slab planters and turf shown on the approved landscape plan must be designed to include adequate drainage provisions and permanent irrigation. Details shall be submitted with the Construction Certificate application.

(74) A copy of this development consent, stamped plans and accompanying documentation is to be retained for reference with the approved plans on-site during the course of any works. Appropriate builders, contractors or sub-contractors are to be furnished with a copy of the notice of determination and accompanying documentation.
Reason: To ensure compliance with this consent.

(75) The applicant shall record details of all complaints received during the construction period in an up do date complaints register. The register shall record, but not necessarily be limited to:
a) The date and time of the complaint;
b) The means by which the complaint was made;
c) Any personal details of the complainant that were provided, or if no details were provided, a note to that affect;
d) Nature of the complaints;
e) Any action(s) taken by the applicant in relation to the compliant, including any follow up contact with the complainant; and
f) If no action was taken by the applicant in relation to the complaint, the reason(s) why no action was taken.
The complaints register shall be made available to Council upon request.

(76) The subdivision certificate (linen release) shall not be issued until an occupation certificate has been issued.
Reason: To ensure the development is built in accordance with the approved plan.
S J Watts
Commissioner of the Court