Neometro Architects and Planners v Gosford City Council
[2002] NSWLEC 33
•03/15/2002
Land and Environment Court
of New South Wales
CITATION: Neometro Architects and Planners v Gosford City Council [2002] NSWLEC 33 PARTIES: APPLICANT
Neometro Architects and Planners
RESPONDENT
Gosford City CouncilFILE NUMBER(S): 10090 of 2001 CORAM: Sheahan J KEY ISSUES: Development Application :- application of SEPP 5 - application of SEPP 1 - setback to arterial road - noise attenuation - resident access to necessary services and facilities - water management issues - waste management issues - vehicular access to site - wetlands - public interest - costs of adjournment LEGISLATION CITED: State Environomental Planning Policy 1
State Environmental Planning Policy 5
State Environmental Planning Policy 14
Gosford City Council Interim Development Order 122
Gosford City Council Development Control Plan 114
Gosford City Council Local Environmental Plan 381CASES CITED: Asset Based Securities Pty Ltd v Hornsby Shire Council [2001] NSWLEC 276;
Hewitt v Hurstville Council [2001] NSWLEC 294;
Hornsby Shire Council v Malcolm (1986) 60 LGRA 429;
North Sydney Council v Ligon 302 Pty Ltd [No.2] (1996) 93 LGERA 23DATES OF HEARING: 5/11/01-8/11/01, 11/03/02-12/03/02 DATE OF JUDGMENT:
03/15/2002LEGAL REPRESENTATIVES:
APPLICANT
Mr Adrian Abbott, Agent
Ms Sonja Heath, Agent
Tesoriero, Henderson & Cotter, Solicitors
RESPONDENT
Mr A J J Thompson, Barrister
P J Donnellan & Co, Solicitors
JUDGMENT:
NEOMETRO ARCHITECTS AND PLANNERS
Applicant
v
GOSFORD CITY COUNCIL
Respondent
Introduction
1. This is an appeal in class 1 of the court’s jurisdiction against the respondent Council’s refusal of consent to a medium-density residential development proposed under the auspices of State Environmental Planning Policy No.5 (“SEPP 5”), on lot 107 in DP 2739, at 115 The Entrance Road, Erina (“the subject site”).
2. The Entrance Road (“the Road”) is a major arterial road linking Gosford to other densely populated areas of the Central Coast.
3. The Central Coast area generally has a higher proportion of populations over the age of 55 - the relevant percentage is 25% compared with Sydney 20%. It is anticipated that the higher than average level of age population in the Central Coast region will be maintained into the foreseeable future. Accordingly, there will be a high demand into the future for “well-designed, safe and secure housing for older people over the age of 55”, making SEPP 5 particularly relevant to Council’s area (Exhibit A7 p8).
4. The current proposal can be approved only if it is held to accord with the requirements of SEPP 5. The parties are in dispute as to whether the court need or should apply to such requirements the dispensatory power of SEPP 1. c.f. Hewitt v Hurstville Council [2001] NSWLEC 294.
5. The local planning instrument relevant to the subject site, Interim Development Order No.122 (“IDO 122” – Exhibit C4), was amended by Gosford Local Environmental Plan 381 (“LEP 381”) on 21 July 2000, but LEP 381 included a savings provision which applies to the subject application. The subject land has, since 1983, been zoned 1(d) Rural (Urban Investigation), and consent is required for dwelling houses and other relevant uses (Exhibit C4 p20).
6. The relevant development application (“DA” 7862/2000) was lodged on 3 April 2000. The proposal then comprised eight medium sized dwellings, one small dwelling, community lounge, carparking and the landfill. The small dwelling was deleted on 26 August 2000, and the Council refused the DA on 28 November 2000 and so advised the applicant on 6 December 2000.
7. The proposal currently before the court involves the demolition of the existing house on the subject site, the regularisation of current but unauthorised fill above ground level, and the addition of further fill to the relevant portion of the subject site, prior to the construction of the units, as permitted by Council’s Erina Creek Floodplain Management Plan 1991 (Exhibit C5 – note Addendum 3 dated 14 October 1991).
8. The proposal was the subject of considerable amendment as to detail between the time this appeal was filed (on 2 February 2001) and the date upon which closing submissions were made (on 12 March 2002). Eventually, what was finally proposed was the construction of eight two-bedroom units in two attached blocks of four on each side of a “gun-barrel driveway”. (See the final amended plans now comprising Exhibit A2).
The site and its environs
9. The court had the benefit of a comprehensive site inspection on 8 November 2001, and my observations accorded with the depictions of the site and its environs in Exhibit C1 and Exhibit C3.
10. The subject site has an area of approximately 3000m2 and is generally rectangular (30m x 95m) in shape. Approximately 2500m2 of the subject site will be occupied by the proposed units.
11. That part of the land which is proposed to be developed has been generally “cleared and used for residential purposes” since 1954, or at least 1973 (Exhibit C14 Item 61).
12. The rear (northern) 20m of the land, adjoining coastal wetland 917, is proposed to be regenerated and will not be developed (See Planting Plan in Exhibit A17). It is densely vegetated and a sewerage line is located adjacent to it.
13. Wetland 917 is an estuarine (or riparian) wetland alongside Erina Creek. It is dominated by mangroves along the creek margins and is subject to daily tidal inundation. The low lying land that is not subject to daily tidal inundation exhibits salt meadow plants and swamp she-oak. On the slightly higher land where the saline influence is greatly reduced, wetland plants, typical of more brackish and freshwater conditions, such as Small-leaved Privet and Japanese Honeysuckle, occur, along with small numbers of native plants, notably Swamp Oak and Heath-leaved Paperbark (Exhibit A4 p2).
14. Council has a Wetland Management Policy (Exhibit C6), and SEPP 14 aims to ensure that “coastal wetlands are preserved and protected in the environmental and economic interests of the State”.
15. The low-lying areas of the subject site are generally level, with a gradient of 1%-5%, but their proximity to Erina Creek renders them flood liable. There is currently a dilapidated dwelling at the frontage of the subject site to the Road. The site has been partly filled and slopes from the Road, at a level of approximately RL 5, to RL 1.5 at the edge of the dense vegetation.
16. Erina Creek runs alongside the Road for some distance en route to Brisbane Water to the west, but diverges from the road a short distance to the east of the subject site. Between that point of divergence (near the Road’s intersection with Avoca Drive) and the subject site there are some old dwellings, a nursery and, next door east of the subject site, a St Vincent de Paul crisis accommodation facility, which is a “large brick building with a tile roof” (Exhibit C7 p4) at the 1% flood level, and having a floor level at RL 2.25-2.32m.
17. The St Vincent de Paul building was originally constructed as a boarding house pursuant to Council approval No. BA 18424/82 on 29 April 1982. It was approved for 18 bedrooms and a two bedroom manager’s suite (a floor plan/site plan appears at Exhibit C14, Item 57). That building is now used as a crisis centre for women and children. Up to six women and their children may be accommodated at any one time for periods in the order of a week to a month (Exhibit A11 p2).
18. The filling of the subject site will place the minimum floor level of the proposed units – the habitable floor levels range from RL 2.8 to RL 4.3 - at a level approximately 500mm above the floor level of the St Vincent de Paul facility.
19. To the immediate east of the subject site, on the same side of the Road, there is a large vacant grassed area separating it from an electricity substation facility approximately 50 metres away. The house on the subject site slightly encroaches on that grassed area. The grass areas ground level is approximately 0.5m above the level of the subject site towards the northern end, while the ground level of the substation is higher again. On site inspection it appeared that there would be a lesser difference between the ground level of the substation and the floor level of the units.
20. Drainage culverts under the Road discharge runoff from a major cul-de-sac onto the grass and treed area approximately 35m east of the eastern boundary of the subject site. Those flows run closer to the boundary of the subject site and into the dense vegetation. It appears that Council relies upon a drainage easement through the substation property.
21. A few kilometres generally east of Gosford Central Business District, the Road has a major intersection with Avoca Drive. The subject site is approximately 160 metres east of that intersection. The kerbside lane begins immediately after the Avoca Road intersection. Its status as a parking lane is indicated by an unbroken line. Parking was readily available on the site inspection. There is an east-bound bus-stop at the western end of this lane.
22. There are five houses fronting the Road directly opposite the subject site, and one house behind them, making six in all. They are in fairly good condition but of mixed quality. Behind them is the substantial complex operated by the Salvation Army as the Woodport Retirement Village.
SEPP 5
23. A SEPP 5 project is permissible on the subject land because it is “land zoned primarily for urban purposes or land that adjoins” such land within the meaning of cl 4 of the policy. The sub-station site adjacent, although it has a lot of vacant land, is zoned Special Uses 5(a), considered to be an urban zoning. The land opposite is zoned 2A Residential and that is sufficient proximity to comply with the definition.
24. Set out below are the relevant provisions of SEPP 5 (some emphasis added):
Aims
- (2) These aims will be achieved by:
- Matters for consideration
- 12. (1) Location, facilities and support services The consent authority must not consent to a development application made pursuant to this Part unless the consent authority is satisfied, by written evidence that residents of the proposed development will have access that complies with subclause (2 ) to:
(a) shops, banks and other retail and commercial services that residents may reasonably require, and
(b) community services and recreation facilities, and
(c) the practice of a general medical practitioner.
(2) Access complies with this subclause if:
(a) the facilities and services referred to in subclause (1) are located at a distance of not more than 400 metres from the site of the proposed development, or
(b) there is a transport service available to the residents who will occupy the proposed development:
(i) that is located at a distance of not more than 400 metres from the site of the proposed development, and
(ii) that will take those residents to a place that is located at a distance of not more than 400 metres from the relevant facilities or services, and
(iii) that is available both to and from the proposed development during daylight hours at least once per day from Monday to Friday (both days inclusive).
(2A) The consent authority must not consent to a development application made pursuant to this Part to carry out development on land that adjoins land zoned primarily for urban purposes unless the consent authority is satisfied, by written evidence, that residents of the proposed development will have reasonable access to:
(a) home delivered meals, and
(b) personal care and home nursing, and
(c) assistance with housework.
…
25. Clause 13A details certain provisions, entitled as “development standards”, as to access and useability. Clause 13A(1) provides that consent authority “must not consent … unless” the DA “complies with the standards specified” in the clause, regarding wheelchair access to units and an adjoining public road, the location and standard of carparking, letterboxes, pathway lighting, and internal design matters. Clause 13A(21) provides that “an outside garbage storage area must be provided in an accessible location”.
26. Clause 14 deals with “standards which cannot be used as grounds for refusal” of an application, and refers to height, density and scale, landscaped area, parking, etc.
27. Clause 25 provides that “consent must not be granted … unless … adequate regard has been given to” various particularised principles of design, including aspects of neighbourhood amenity and streetscape, visual and acoustic privacy, solar access, stormwater management, etc.
28. The court has also had regard to the Department of Urban Affairs and Planning publication “A Guide for Councils and Applicants” regarding the interpretation and application of the provisions of SEPP 5 (Exhibit A26 – note especially p 8 regarding “public” transport and “quality” of access), and to the remarks of Talbot J in Asset Based Securities Pty Limited v Hornsby Shire Council [2001] NSWLEC 276, especially the following:
16 . Clause 12(1) constrains the grant of consent, unless the minimum criteria is satisfied. However, the establishment of the minimum criteria does not thereupon discharge the consent authority from otherwise having regard to the wider issue of access to facilities and services. It does not, in my opinion, preclude the consent authority from considering all other aspects of the access on the merits.
17. Clause 25(f) establishes a set of distinct principles which must be considered. The principles identified by cl 25(f) have to be regarded as part of the process of assessment of the development generally. It would be farcical if the authority had no outstanding power to refuse consent for a development that satisfied the minimum numerical requirements of cl 12(2), yet presented other obstacles which prevented reasonable practical access for the frail and marginally disabled.
18. Satisfaction of the criteria in cl 12(2) does not of itself dispose of the issue of access to facilities and support services. It nevertheless has an important function, namely to set the threshold test for permissibility. Once the tests in cl 12(2) are satisfied then the caveat against refusal of consent is lifted but no more than that.
…19. That having been said, it is not necessary, in the Court’s view, for the convenience and amenity of all persons who fall within the category of occupants recognised by SEPP 5 to be satisfied. Nevertheless, there must be a recognition of the general class of potential future occupants…
26. As I have already said, this is not an ideal site but the test is not that the site be perfect. The test is firstly, whether the Court is precluded from granting consent as a consequence of cl 12. Once that hurdle is bridged, or overcome, then the Court needs to be satisfied that there is a reasonable opportunity for those persons who are within the contemplation of SEPP 5 to have access to not just their minimum daily requirements but their reasonable daily requirements.
IDO 122
29. Clause 32 of IDO 122 deals with setbacks, and cl 32(4) provides that a building shall not be erected on any land with a frontage to an arterial road without (in the case of a lot of less than 45m depth from the road) a minimum setback to the road of 18m. Although deleted by LEP 381, cl 32 of IDO 122 applies to the subject proposal. Clause 7.2.1(a) of DCP 114 (Exhibit C15) requires a setback of at least 30m from a public road “unless environmental considerations warrant a lesser distance”. On questions of a setback, IDO 122 should prevail over DCP 114. North Sydney Council v Ligon 302 Pty Ltd [No.2] (1996) 93 LGERA 23.
30. Clause 39 provides as follows:
Where an application is made to the Council for consent or approval to the carrying out of the following development, namely –
(a) development within view of any waterway or adjacent to any arterial road or main road, railway, public reserve, land zoned or reserved for open space under a former planning instrument or land within zone No 6(a), 6(d), 7(a) or 7(b), the Council shall take into consideration the probable aesthetic appearance of the land or of the proposed building or work when used for the proposed purpose and viewed from the waterway, road, railway, public reserve or reserved or zoned land;
…
(c) development likely to cause increased vehicular traffic on any road in the vicinity thereof (including the erection or use of a hotel, motel, service station, car repair station, place of assembly, drive-in theatre or industrial premises), the Council shall refer particulars of the application to the Traffic Authority of New South Wales, and shall take into consideration whether having regard to the proposed use -
(i) adequate vehicle entrances to and exits from the site have been provided so that vehicles using those exits and entrances will not endanger persons and vehicles using that road;
(ii) space, sufficient to provide for the parking or standing of so many vehicles as the Council may determine having regard to the purpose for which the building, work or land is proposed to be used, has been provided on the site or on land adjoining the site not being a public road;
(iii) any requirements of the Traffic Authority of New South Wales have been met; and
(iv) adequate space has been provided within the site of the buildings or development for the loading, unloading and fuelling of vehicles and for the picking up and setting down of passengers.
…
(e) development proposed to be carried out on land with a slope of 18 degrees or more, the Council shall, take into consideration whether adequate precautions have been taken to prevent erosion and the effluxion of sediment into the natural drainage system of the surrounding area;
(f) development (including the construction of roads) likely to cause erosion or the siltation of any natural watercourses or drainage systems, the Council shall take into consideration whether coffer dams should be provided or other measures taken by the applicant and if the applicant is not the owner, by the owner also) to prevent that erosion or siltation;
(g) development in water catchment area, the Council shall take into account the effect of the development on the water supply;
(h) development on or adjacent to any wetlands, the Council shall take into account -
(i) the effect of the development on the flora and fauna found in the wetlands;
(ii) the effects of the development on the watertable;
(iii) whether adequate provision has been made for stormwater runoff;
(iv) the effect on the wetlands of any proposed draining or filling; and
(v) the terms of any environmental impact statement prepared in relation to the development;
…
(j) development of land which, in the opinion of the Council, is liable to flood, the Council shall take into consideration whether the land has been adequately filled; or
…
Council’s consideration, and its views
31. None of the nearby residents invited to comment expressed any objection to the proposal (see Exhibit C14, Item 11).
32. Because the Road is a major arterial road, the RTA was contacted about the application.
33. In its response to Council on 25 July 2000 (Exhibit C14, Item 8) the RTA raised “no objections” to the development “subject to the following points being considered”:
· Driveway design to be in accordance with RTA standards. The exit appears to be orientated towards the western approach on The Entrance Road.
· Garbage collection must not interfere with through traffic movements on The Entrance Road.
· All development on the abovementioned land shall be in accordance with the EPA draft environmental criteria for road traffic noise and Australian Standards AS 2107-1987 and AS 3671-1989. It is the responsibility of the applicant/land owner/developer to ensure that any development of the land is in accordance with the abovementioned criteria and standards. There shall be no expectation on the part of the property owner, tenant or Council, present or future, for the provision of noise abatement or other impact minimisation measures by the RTA. All costs associated with the compliance with the abovementioned criteria and standards shall be at the expense of the applicant/land owner/developer.
34. On 7 November 2000, Council officers recommended approval subject to 71 conditions, but, on 28 November 2000, the Council determined to refuse its consent for the following reasons (Exhibit C14 Item 32):
1. Inappropriate location for development with respect to the site adjoining an arterial road and electrical substation;
2. Ingress and egress to the site is unsatisfactory due to left in/left out access arrangements;
3. Limited access for future residents to commercial/retail, community and recreational services and facilities;
4. Lack of amenity for future residents due to noise and traffic impacts of The Entrance Road on the site;
5. Does not comply with the front setback requirements for Interim development Order No 122;
6. Not in the public interest.
35. The Council also, or subsequently, expressed its concern about the lack of any method of enforcing the requirements of SEPP 5 for the occupation of housing, reliant upon SEPP 5 for approval, by aged or disabled persons.
36. The Council also resolved, at its meeting on 28 November 2000, that this case be brought to the attention of the Minister for Urban Affairs & Planning “advising of Council’s concern in regard to … [use] of SEPP 5 as a vehicle to achieve this type of development”. In its letter of 7 February 2001 to the Minister’s Department (Exhibit C14, Item 41), the Council pointed out specifically its concern that the subject site fronted a four-lane sub-arterial road, was affected by the 1% AEP flood level, and adjoins SEPP 14 wetlands to its rear. The letter concluded :
Council resolved to raise its concern about the provisions of SEPP 5 which permits such development in zones and locations that are unsuitable. It seems that SEPP5 is being used by some people to obtain development consent for medium density residential housing by exploiting the clauses that override Council’s planning instruments.
37. The Council subsequently resolved further to recommend the making of a new LEP to rezone seven lots surrounding and including the subject site from 1(d) Rural (Urban Investigation) to 7(a) Conservation and Scenic Protection (Conservation) and/or 9(a) Restricted Development (Flood Prone Land). Dwelling-houses are permissible with consent in zones 1(d) and 9(a). If the rezoning takes place the area to be occupied by the proposed development would be within the 9(a) zone and the rear of the subject site, in close proximity to the wetland areas, would be in 7(a) (see Exhibit C14, Item 68). While no nearby residents objected to the development proposal, the owner of one nearby lot (lot A DP 375919 – land affected by IDO 20), Mrs F J Martin of 101 The Entrance Road, objected vehemently to the proposed rezoning (Exhibit C14, Item 78). The proposed rezoning LEP will have a clause “saving” the DA currently before the court.
38. The applicant’s expert town planner, David Kettle, notes in his report that no action was taken by the Council to investigate the site’s urban development potential until this proposal was submitted (Exhibit A7 p21).
39. During the ongoing negotiations between the applicant and the Council, the applicant’s representatives, Hampton Management Group, wrote to the Mayor on 2 March 2001 to address the six above-quoted reasons given by Council for its refusal, relying upon the fact that no objections were lodged at Council in respect of the proposed development, and arguing that it is a responsible proposal for the following reasons (Exhibit C14, Item 42):
…
4. All requirements under SEPP 5 for disabled access, etc, have been met by the current Plans. The Building Code of Australia requirements will be adhered to at Construction Certificate stage.
Issues before the court
40. By the time the resumed hearing of this appeal had drawn to a close, and agreement was close on the question of conditions, the Council was persisting with only the following issues (Exhibit C2):
- (i) The Court can be satisfied by written evidence that residents of the proposed development will have reasonable access to:
- …
- (ii) Any relevant facility or service is or will be convenient to residents of the proposing(sic) housing in view of the walking distance and availability of public transport to and from the facility.
- Particulars
(a) The proposed development is on the northern side of The Entrance Road, a main arterial road.
(b) The nearest shop or other retail outlet is a petrol station/convenience store some 400 metres distance.
(c) Other retail and commercial facilities are located on the southern side of The Entrance Road, a greater distance away.
(d) The nearest community facility is the Erina Public Hall, over a kilometre away to the east.
(e) Recreational facilities are to be found on the southern side of The Entrance Road.
- (a) home delivered meals; and
(b) personal care and home nursing; and
(c) assistance with housework.
5. Whether the proposed development complies with the development standards required by SEPP 5, in particular:…
- …
(xx) garbage facilities.
…
(i) Part 3 of SEPP 5 sets out design requirements.
…
(b) … acoustic privacy
…
(f) accessibility [for residents in wheelchairs]
(g) waste management
…
…
10. Whether the location of the proposed development is appropriate given its position adjoining an arterial road, an electrical substation and a SEPP 14 – Wetland and a drainage overland flow path.
Particulars
(i) As to the arterial road; see paragraph 10 (sic).
…
…
12. Whether the amenity of the future residents of the proposed development will be satisfactory due to the noise generated by traffic on The Entrance Road.
Particulars
(i) The Entrance Road at this point carries some 37,792 vehicles per day (RTA Survey 1998).
13. Whether the proposed development complies with clause 32 of Interim Development Order No. 122.
Particulars
(i) Clause 32 requires a setback of 22 metres from The Entrance Road. The proposed development will have a front setback of, variously, 6.1 to 12.5 metres.
14. Whether the SEPP 1 Objection to Clause 32 of IDO 122, lodged by the Applicant, should be upheld in the circumstances of this case.
…
(d) adequate space has been provided within the site of the buildings or development for the loading, unloading and fuelling of vehicles and for the picking up and setting down of passengers.
…
22. The public interest.
41. Accordingly the court must now adjudicate on the following general matters not already conceded by Council or adequately addressed by agreed conditions:
Issue 3 - Does the proposal provide reasonable access to services and facilities envisaged by SEPP 5?
Issue 5 - Do the proposed garbage arrangements comply with the requirements of SEPP 5?
Issue 7 - Does the proposal meet all the design requirements of SEPP 5?
Issues 10, 12, 13 & 15 - The location of the proposal adjacent to The Entrance Road, and the requirements of IDO 122 regarding setback (cl 32), parking, loading, unloading, turning, etc. of vehicles on site (cl 39), and the generation of “ increased vehicular traffic ” on The Entrance Road.
Issue 22 - Public interest considerations.
42. If the court is to approve the development, it must also adjudicate on a SEPP 1 objection regarding setback (in cl 32 of IDO 122 – issue 14), and possibly also one regarding a bus-stop more than 400m from the site (as stipulated by cl 12(2)(b) of SEPP 5).
The evidence
43. The applicant relied on evidence from the following:
Philip Pritchard , Principal Architect of the applicant ( Exhibit A9, Exhibit A24, Exhibit A25 and oral evidence).
Louis Challis , Consulting Acoustic Engineer ( Exhibit A8 , Exhibit A23 and oral evidence).
Barry Bradley , Consulting Civil and Traffic Engineer ( Exhibit A6, Exhibit A7, Exhibit A12, Exhibit A16, Exhibit A21, Exhibit A22 and oral evidence).
Geoffrey Winning , Consulting Ecologist ( Exhibit A4, Exhibit A10 and oral evidence).
Mark Tooker , Consulting Water and Civil Engineer ( Exhibit A5, Exhibit A19 and oral evidence).
David Kettle , Consulting Town Planner ( Exhibit A7, Exhibit A11 and oral evidence).
44. The Council relied on evidence from the following:
Michael Evesson , Consulting Town Planner ( Exhibit C7, Exhibit C26 and oral evidence).
Robert Staniland , Consulting Civil and Hydraulic Engineer ( Exhibit C8, Exhibit C23 and oral evidence).
Peter Cowper , Consulting Ecologist ( Exhibit C9, Exhibit C21 and oral evidence).
Ronald Brown , Consulting Civil and Traffic Engineer ( Exhibit C10, Exhibit C19, Exhibit C20 and oral evidence).
Neil Gross , Consulting Acoustic Engineer ( Exhibit C11, Exhibit C22 and oral evidence).
45. The witnesses Staniland and Tooker conferred on 1 March 2002 and a report of their discussions was written by Mr Staniland (Exhibit C24).
Issue 3 – services, facilities and access
46. The court has before it voluminous “written evidence” to support the applicant’s assertion that all the services considered necessary by SEPP 5, and detailed in the above list of issues, can be “reasonably accessed” by the residents of this proposal. (See Exhibit A7, Exhibit A11, Exhibit A13, and Exhibit A14) c.f. Hornsby Shire Council v Malcolm (1986) 60 LGRA 429 at 431-2 and 442.
47. The court finds it hard to envisage a site better located for a SEPP 5 development if its natural and other constraints can be met. Proximity to an arterial road is both an advantage and a challenge, but provides exceptionally good, regular and level access to the necessary facilities available in Gosford (to the west) and Erina (to the east).
48. The nearby Erina shopping centre is the largest retail centre on the central coast and the more proximate Fountain Plaza contains banks, post office, a large medical centre, and other relevant services.
49. West of the subject site is the East Gosford Shopping Centre and further west the main Gosford commercial centre. All of these would be available to residents of the proposed development, and the court has to consider the reasonableness of access.
50. In this respect there is an east-bound bus-stop approximately 50m west of the front of the subject site. The west-bound bus-stops are on the opposite side of The Entrance Road, but the nearest pedestrian crossing is at the intersection of Ernest Street, east of the Woodport Public School. There is a west-bound bus-stop opposite the substation, and one east of Ernest Street in front of Erina High School. The court has received evidence of the distance to be travelled by residents on the subject site to access either of those west-bound bus-stops by using the pedestrian crossing at the intersection of Ernest Street. There is also some evidence of an RTA proposal to incorporate a signal controlled pedestrian crossing in the proposed upgrading of the intersection of Avoca Drive and the Road approximately 100m west of the subject site.
51. Assuming the three bus-stops could be accessed reasonably in terms of SEPP 5 (an issue to which I will return) there is no question that there is a substantial public transport service provided by a private bus company in both directions. Kettle opines that there is a total of approximately 63 bus services available each week in each direction. All of them service Erina Fair and East Gosford. Kettle has made an objection, on the applicant’s behalf, pursuant to SEPP 1 in the event that the access distance is in excess of 400m as specified in cl 12(2)(b) of SEPP 5. The footpath access is concrete with a relatively level grade for its full length, but he estimates the distance at 480m to the High School bus-stop (Exhibit A7 p 12).
52. The applicant also relies upon the easy availability of taxi services 24 hours per day, 7 days per week. The estimated fares are less than $10 from the site into Erina Fair and $15 to Gosford town centre.
53. Within the city of Gosford there is also a HACC funded community transport service for frail, aged and disabled people not able to use regular public transport. There is a weekly shopping service available to Erina Fair and Gosford town centre from the subject site and provision for the service to access medical services (Exhibit A13).
54. Kettle’s principal report, which incorporates his statement of environmental effects (Exhibit A7), contains voluminous information regarding community facilities and services, such as library, service clubs, churches, and the like, as well as recreational facilities. He opines that all such facilities and services are available within a distance of 400m of a bus-stop or taxi access. The court accepts these information items as the “written evidence” required by SEPP 5.
55. I am also satisfied that residents would have reasonable access to home-delivered meals, personal homecare and home nursing, and assistance with housework as required by cl 12(2)(a) of SEPP 5 (see Exhibit A7, Exhibit A14, and oral evidence of Mr Kettle).
56. One available west-bound bus-stop is more than 400m away, on a level surface, but another closer to the site can be easily and safely accessed by most pedestrians (see photographs in Exhibit C3). In so far as a SEPP 1 objection may be considered necessary in this respect, it should be upheld.
Issue 5 – garbage arrangements
57. The communal garbage arrangements are much improved on what was originally proposed (so conceded even by Evesson in Exhibit C26), and clearly now comply with the requirements of SEPP 5.
58. As Pritchard says (Exhibit A25):
Waste Management – domestic: The residents have the option of storing their bins in their spacious garage and placing them, or having them placed, prior to collection day in the designated storage area. Alternatively they can leave their bins permanently in the storage area.
Bins for recycling will be left permanently in the storage area.
The bin storage area is of sufficient size accommodating eight 120 L. bins for waste and three 240 L. bins for recyclables.
Issue 7 – design issues
Acoustic Privacy
59. The Road and the nearby substation pose noise challenges for the proposal, and a balance must be struck between aesthetic considerations and acoustic privacy.
60. It may be that, even with the agreed glazing, sealing, and ventilation proposals, together with acoustic fencing, maximum acoustic privacy will be achieved only when residents have their windows closed, but full air-conditioning would require that, even if there were no external noise features.
61. The court is content to approve the proposed noise attenuation measures, but remains concerned about the now proposed height of the acoustic fences. At the early stages of the hearing the expert Challis convinced the applicant to agree to 2m, but, when recalled, he proposed 1.5m for aesthetic reasons. On the other hand, the Council’s expert Gross consistently argued for 2m or higher, preferring 2.5m.
62. Despite the aesthetic impact (as noted by Evesson in Exhibit C7 at p 19), the court has concluded that the acoustic fencing should be 2m in height.
Wheelchair accessibility
63. The only remaining issue under this heading appears to be the possible need for chair-bound residents to access their courtyards via their garages.
64. As this does not seem to be an unreasonable imposition when all other possible impediments to amenity for such residents have been overcome in the revision of the project design, the court should not refuse the application that ground.
Waste management
65. While this area of dispute between respective experts resulted in the adjournment of the hearing last November, and an agreement to pay costs thrown away, the applicant developed a comprehensive waste management plan (tendered on 11 March 2002 as Exhibit A20), with which the Council has expressed no concerns.
66. I have already dealt with the question of domestic waste bins.
67. Council has promulgated best practice guidelines for nutrient control (Exhibit C16), which require the necessary works to be detailed in a nutrient control plan, and the parties are agreed:
(i) that the constraints of the site call for the installation of a Gross Pollutant Trap (“ GPT ”) and a waste water detention system,
(ii) that these facilities should be installed at the site works stage, and
(iii) that they should be located within the development footprint (as it appears in the final amended plans – Exhibit A2 ).
68. On behalf of the applicant, Tooker prepared and submitted a Water Management Plan (Exhibit A19).
69. The court thinks it prudent to require that the capacity of the detention tank should be 17m3 (as suggested by Staniland), rather than 12.3m3 (as calculated by Tooker) – see draft condition 26(n) in Exhibit C25 - and notes that the preferred GPT manufacturer (CSR Humes) has advised that a suitable “STC9 Humeceptor” can be adapted to the site conditions at modest cost (Exhibit A28).
70. The larger detention tank can be accommodated within the footprint (see Exhibit A27 c.f. Exhibit A18).
71. Appropriate conditions will be imposed to accomplish these objectives.
Issues 10, 12, 13, 14, 15 – The Entrance Road, and site-related traffic matters
72. The major reason for the setback nominated by IDO 122 cl 32 is noise impact, but, as that is to be addressed by a range of measures referred to above, the possibility that the Road may be widened in years to come (Exhibit A22 p3) is not a sufficient reason to insist upon a setback of 18m, let alone 30m.
73. Kettle opines that the setback in the subject proposal is between 8.5m and 14.5m, and he has submitted a SEPP 1 objection at least partly on the basis that it is more important for respect to be paid to the constraint imposed by the coastal wetland. Existing buildings on other relevant sites are located less than 18m from The Entrance Road, an acoustic barrier along the frontage of the residential units is proposed and the requirement has been repealed.
74. Accordingly, the SEPP 1 objection in respect of setback should be upheld.
75. The development will itself generate “negligible” traffic on the Road, and negligible extra time for a garbage truck to stop on the Road, but some traffic movements on site remain an issue between the parties, despite the now adequate ingress-egress arrangements proposed.
76. Two visitor parking spaces are still proposed. It is arguable that one would be adequate, and perhaps none obligatory, but, in the final amended plans, their location has improved.
77. However, medium-to-large service vehicles may have difficulty turning within the complex if both visitor spaces are occupied at the time.
78. Essentially, this concerns the need to access and pump-out the GPT on a quarterly basis, although the occasional removal/delivery van, or even ambulance, may also be involved from time to time.
79. I am satisfied from Bradley’s evidence that the GPT can be serviced from a small commercial vehicle, and/or pumped out through a flexible hose to a vehicle parked in the kerbside lane on the Road.
80. In any event, these vehicles can access the site with no direct impact on residents, and the occasional need to keep a visitor space, or even both of them, vacant for a short period should not prove impossible.
81. Certainly, these issues are not sufficient to indicate that the application should be refused.
Issue 22 – The Public Interest
82. Kettle dealt with the question of the public interest in the context of the following considerations (Exhibit A7 s 3.8 pp 22-3):
(a) The need for housing for older people or people with a disability in the City of Gosford including the suitability of multi-unit projects because of less maintenance, greater mobility, more personal and property security, lower costs and better design features, specifically catering for their needs. This smaller scale development offers a market alternative.
(b) The suitability of the site in view of its very short distance by relatively level access and good transport to all necessary services and facilities.
(c) The elimination of potential flood hazard by permissible filling of the land to a level clear of the 1% flood height.
(d) Council’s issues regarding proximity to The Entrance Road, the wetland, the substation, the overland flow path, and flooding, have all been adequately addressed.
(e) There were no objections to the proposal which has only one-storey and no significant effect on the adjoining properties in terms of privacy or over-shadowing.
83. Kettle concluded that the proposal has a positive public benefit, promoting the orderly and economic use and development of the subject land.
84. Kettle later commented as follows (Exhibit A11 p7):
As the land is devoid of any significant vegetation, other than the uncleared but relatively weed infested northern section of the site, and the land is to be filled, there is an opportunity to create a landscaped environment on the property in conjunction with the proposed development.
There is an opportunity for the area or relatively undisturbed vegetation at the northern end of the site to be cleared of weed infestation and its habitat restored as an area compatible with the adjoining wetland. The carrying out of development would assist in controlling unauthorised access to this area and the dumping of rubbish on the land.
85. Rather than being isolated and “wedged”, as alleged by Evesson, Kettle contends that the site is “located in one of the most easily accessible areas in the City of Gosford with the highest concentration of public transport routes …”. The current zoning recognises that the land between the Road and the creek has urban development potential. Kettle opines that it would be able to support a small urban community and this would be the first of a number of potential urban developments in this area. It will set a new standard for residential development of the northern side, and could lead to a significant improvement in the residential character of the area.
86. The court respectfully agrees with, and adopts, Mr Kettle’s opinions in this regard, rather than the contrary views expressed by Mr Evesson.
The ecological evidence
87. At the early stages of the hearing there was some conflict in the ecological evidence, and in the expert recommendations for the protection of the wetlands, and the improvement of the area to be landscaped between the wetlands and the proposed development.
88. The Council’s expert ecologist, Cowper, opined (Exhibit C9 sec 4.6 p 8) that any development proposals for the site must consider the following points as a guide to design:
· No development or landscaping for recreation purposes should occur north of the ‘limit of development’ line identified on Council’s flood management plan.
· Access to the wetland fringe to any future residents should not be provided for recreation.
· The existing vegetation in the northern section of the subject land should be restored to more adequately provide a buffer to the adjacent wetland. Restoration should aim to replicate the natural vegetation assemblage using plants derived from seeds of local provenance.
· Any nutrient, sediment and gross pollutant control devices should be located within the development footprint and not within the vegetated northern section of the subject land.
· Following treatment, discharge of surface run off from the subject land should aim to maintain existing flow patterns into the buffer area and wetland beyond.
· Landscaping associated with any future proposal should avoid the use of invasive native and introduced species, particularly adjacent to any buffer zones to the wetland.
· Measures to ensure garden waste and other refuse is not dumped in the wetland or buffer areas should be considered.
· Any future development should consider methods to limit the potential for Key Threatening Processes to occur or be encouraged by development of the subject land. Such processes include ‘Predation by the Feral Cat’, ‘Predation by the European Red Fox’ and ‘Predation by Gambusia holbrooki’, in addition to others as previously discussed.
· Consideration should be given to consultation with the Department of Land and Water Conservation to determine the relevance of the Rivers & Foreshores Improvement Act to the subject land.
89. He had little disagreement with the applicant’s expert, Winning, on key matters, but was very concerned about indirect effects of the proposed development on the wetlands. “Such a design should consider mitigation and enhancement of the local environment to a greater extent than demonstrated in the current proposal” (Exhibit C9 section 5.0 p8).
90. Both ecologists gave oral evidence.
91. Winning described the relevant area as a “disturbed ecotone” being a transition area between grass and wetland. The area could easily be rehabilitated and although it was a sensitive task, it could be supervised by him. Conditions regarding landscaping could cover revegetation and the focus should be on local natives. “There is no difficulty in associating that work subject to appropriate controls”, with the aged residential complex.
92. When the hearing resumed on 11 March, the applicant tendered a “planting plan” (Exhibit A17), an earlier version of which (No. L01A, c.f. No. L01B in Exhibit A17) was the subject of a further report by Cowper (Exhibit C21), in which he recommended the imposition of the following condition:
The applicant shall prepare a Vegetation Management and Rehabilitation Plan to be approved by Council such that the adjoining ‘Riparian Forest Zone’ and ‘Native Buffer Zone’ are managed in a manner consistent with the draft zone objectives. The Plan shall be prepared by a suitably qualified person and shall include but not be limited to:
(i) Weed management,
(ii) Rehabilitation of remnant native vegetation communities,
(iii) Monitoring of site runoff, and
(iv) A program for the identified works.
93. The court agrees that such a condition should attach to any approval of this development, and it has been included among those submitted by Council (Exhibit C25 draft condition 9).
Conclusion
94. The court is satisfied that the appeal should be allowed, the SEPP 1 objection(s) upheld, and the development illustrated in the final amended plans (Exhibit A2) determined by the grant of consent, subject to the imposition of appropriate conditions.
Conditions
95. The Council’s final version of draft conditions (Exhibit C25) is generally acceptable to the applicant.
96. The solicitors for the applicant in their written submissions presented by Mr Abbott, and later by fax, raised some matters which dealt as much with style as with substance. Some of the draft conditions were revised by the Council, and some by me, to correct such concerns, but some details remained in contention.
97. The court was impressed by the evidence of Mr Tooker on the manner in which the GPT/detention system will work, and has, therefore, concluded that par (m) of draft condition 26 can be deleted. Paragraph (n) will stand, but become (m) in consequence of this deletion.
98. I have revised some of the wording of conditions 26, 55 and 56 so they sit more comfortably together, and with condition 27, but Council has not agreed to the applicant’s submissions regarding them, and the court considers that all four have a role to play, albeit that they could have been expressed and/or grouped more elegantly.
99. In the absence of any submission from Council in response to the applicant’s last written submission, I have not deleted any other conditions questioned (rather than opposed) by the applicant.
Orders
100. The orders of the court will, therefore, be:
1. Appeal allowed.
2. The applicant’s SEPP 1 objections upheld.
3. The applicant’s development application 7862/2000, as amended, for proposed Aged Housing on Lot 107 DP 2739, The Entrance Road, Erina, determined by the grant of consent, on the conditions annexed to this judgment.
4. The applicant to pay the respondent’s costs thrown away as a consequence of the adjournment of the proceedings on 8 November 2001.
5. All exhibits returned except Exhibit A2, Exhibit A27, and Exhibit C25 .
LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES
Neometro Architects and Planners v Gosford City Council
Matter No. 10090 of 2001
CONDITIONS OF CONSENT
A. Council assume the concurrence of the Director, of the Department of Urban Affairs and Planning for the use of SEPP No.1 to vary Clause 32 (3) of Interim Development Order No 122 to permit the development, and dispense, in part, the requirements of Cl 12 (2) of SEPP 5 in respect of west-bound bus services.
B. The following conditions apply to the Court’s Consent 15 March 2002.
1. No works are to be commenced until a Construction Certificate has been issued.
2. Any clearing of land, excavation, and/or earthworks, building works, and the delivery of building materials is to be carried out between the following hours of work.
Mondays to Fridays - 7.00am to 6.00pm
Saturdays - 8.00am to 4.00pm3. The street number of the property is to be prominently displayed in an appropriate location.
4. Mail receptacles are to be provided and appropriately numbered for each dwelling unit in the development in consultation with Australia Post, including the managing body.
5. Provision shall be made for the erection of one common television aerial per building.
6. Development being generally in accordance with plans numbered 98399 DA01H dated 26 August 2000, DA02a dated 19 February 2000, DA02b dated 19 February 2000, DA03D dated 19 February 2000, DA04E dated 19 February 2000, DA05C dated 16 August 2000, DA06B dated 19 February 2000, DA07B dated 19 February 2000, DA08B dated 19 February 2000, DA09B dated 19 February 2000, DA10 dated 29 November 2001 and DA11A dated 29 November 2001, 12 sheets, submitted/drawn by Neometro Architects, as amended in red, or where modified by conditions of this consent.
7. Compliance with any requirements of the WorkCover Authority.
9. The Applicant shall prepare a Vegetation Management and Rehabilitation Plan to be approved by Council such that the adjoining “Riparian Forest Zone” and “Native Buffer Zone” are managed in a manner consistent with the draft zone objectives. The Plan shall be prepared by a suitably qualified person and shall include but not be limited to:8. Landscaping is to be carried out and maintained in accordance with the Planting Plan of Pittendrigh Shinkfield Bruce, Drawing No L01 B dated 28 November 2001.
i. Weed management
ii. Rehabilitation of remnant native vegetation communities
iii. Monitoring of site runoff; and
- iv. A program for the identified works
10. The driveway, vehicle manoeuvring area and car parking spaces as shown on the approved plan are to be properly constructed, graded, drained and sealed with an impervious all-weather material, with all car parking spaces being clearly marked, and maintained in accordance with Council’s Car Parking DCP.
11. A concrete kerb or such alternative of similar standard as may be approved by Council is to be provided to driveways and around areas of landscaping to prevent encroachment of vehicles.
12. Car parking spaces are to be suitably screened from view from any public place or public reserve, such screening to be detailed in the landscaping plan.
13. Provision is to be made for the illumination of the common areas at the frontage of the site, throughout the hours of darkness.
14. All garages are to have a minimum width of 3 metres.
15. The proposed development is to be constructed so that 50 per cent of the dwellings have wheelchair access to the internal road. (Refer Australian Standard AS 1428-1192, 1993.)
16. The proposed development is to be constructed so that at least 10% of the dwellings referred to in Condition 17 above have wheelchair access to The Entrance Road. (Refer to Australian Standard AS 1428-1992, 1993).
17. At least 10 per cent of the dwellings referred to in Condition 17 above are to have or be capable of being modified to have wheelchair access to all essential areas and facilities within the dwelling.
18. Wheelchair access is to be provided to all common areas and facilities within the development.
19. The occupancy of the proposed dwellings is to be restricted to only those persons permitted by State Environmental Planning Policy No 5.
20. Provision is to be made in Unit 5 for the observation of the approaches to the dwelling entry from inside the dwelling.
22. Should you nominate Gosford City Council as the Principal Certifying Authority, the following inspections and fees are required in respect to this approval:21. Measures are to be taken in relation to the development to limit road traffic noise intrusion to a level consistent with Australian Standard 3671-1989, Australian Standard 2107-1987 and the draft Environment Protection Authority criteria. Details are to be submitted with the Construction Certificate application.
Indicates inspection required
- Pier holes before concrete is poured.
Termite protection.
The steelwork when in position and before concrete is poured (footings, lintels, beams, columns, floors, walls, or the like).
The framework including roof members when completed and prior to the fixing of any internal sheets.
NB: This not only includes structural components, but refers to a schedule of works to be assessed prior to further construction proceedings.
Any certification for concrete construction or termite controls must be submitted to Council prior to this inspection.
Internal drainage lines before the floor is laid, or poured. (Inspection is to be made by Council’s Plumbing and Drainage Inspector).
External sewer drainage lines before backfilling of the trenches. (Inspection is to be made by Councils Plumbing and Drainage Inspector).
Occupation Certificate.
Construction required to have a sound transmission class (STC).
Erosion / Siltation control measures.
Lock-up.
Final. A fee of $1,260.00 for the above required building inspection(s) must be paid prior to the first inspection. The fee may be paid directly at the Customer Service Unit on the Ground Floor of the Administration Building or posted to Council.
NB Bookings should be made on 4325 8854/8840 or on mobile No 0409 327 042. Work which is found to be defective or not ready at time of inspection will attract a re-inspection fee of $66.00. Please cancel bookings which will not be ready for inspection. Note: Development Application reference number must be quoted when booking Inspections. Inspection bookings will not be accepted without a DA number.
23. Sanitary facilities for people with disabilities shall be constructed in accordance with the provisions of the Building Code of Australia. Details and location shall be submitted with Construction Certificate.
25. It is the sole responsibility of the owner, builder and developer, to ensure that the proposed building or works complies with the requirements of the Disability Discrimination Act.24. Identification of access facility for people with disabilities shall be provided in accordance with Clause D3.6 of the Building Code of Australia.
- NOTE: The Disability Discrimination Act (DDA) is a Federal anti-discrimination law. The DDA covers a wide range of areas including employment, education, sport and recreation, the provision of goods, services and facilities, accommodation and access to premises.
26. An Erosion and Sediment Control Plan and a stormwater and drainage plan are to be submitted to and approved by Council or the principal certifying authority prior to the issue of a construction certificate required by this consent.The DDA seeks to stop discrimination against people with any form of disability including physical, intellectual, sensory, psychiatric, neurological, learning, disfigurement or presence in the body of a disease causing organism. Whilst this development consent issued by Council is in accordance with the relevant provisions of the current Building Code of Australia, it does not indicate nor confirm that the application complies with the requirements of the DDA.
The plans are to be generally in accordance with the concept plans prepared by Trehy Ingold Neate being 18014 A01 Revision B dated 19 October 2001, the Erosion and Sediment Control Plan 18014 A02 Revision B dated 19 October 2001, the Plan of Proposed Works 18014 A03 Revision A dated 19 October 2001, and the Water Management Plan of Patterson Britton & Partners Pty Ltd dated 26 November 2001 prepared by Mark Tooker, as amended in red or where modified by conditions of this consent and will include scaled drawings and detailed specifications in accordance with Council’s Civil Construction, Specification for the Drafting and Design of Stormwater Drainage Works and Roadworks and Code of Practice for Erosion and Sedimentation Control which can be readily understood and applied on-site by supervisory staff. Items to be shown on the plans shall include:-
- a Locality of the site, a north point and scale;
b Existing contours of the site including catchment area boundaries and indications of direction of fall;
c Location of and basic description of existing vegetation;
d Diversion of uncontaminated upslope runoff around the disturbed site(s);
e Location of significant natural areas requiring special planning or management including water bodies, flood plans, seasonally wet areas, areas prone to ponding/water logging, unstable slopes, etc;
f Nature and extent of earthworks, including cut and fill and roadworks;
g Location of all soil and material stockpiles;
h Location of site access, proposed roads and other impervious areas;
i Existing and proposed drainage patterns;
j Location and type of proposed erosion and sediment control measures;
k Site rehabilitation proposals, including final contours.
l Initial construction of detention tank and humeceptor GPT rather than a temporary earth pond. The detention tank should be temporarily adapted by fitting a perforated filtered riser to the outlet.
m A minimum detention volume of 17 cubic metres is required.
27. Construction of a nutrient control facility and the submission of a nutrient control report prepared by a suitably experienced and qualified engineer or professional. The nutrient control measures are to be determined in accordance with Council’s Policy E0.09 Best Practice Guidelines Nutrient Policy. The report shall include an operation and maintenance plan.
28. Erosion and Sedimentation Control in accordance with Council’s Code of Practice for Erosion and Sedimentation Control as described above must be in place prior to the commencement of work.
29. All drainage from the site is to be directed to the proposed nutrient control facility which is to be located wholly above the maximum development line. Detailed plans of this facility are to be approved by Council prior to the issue of a Construction Certificate as set out above.
30. The erection of a building in accordance with a development consent must not be commenced until detailed plan and specification of the building have been endorsed with a construction certificate.
31. The erection of a building must not be commenced until a principal certifying authority has been appointed.
32. Council must be notified within two (2) days of the commencement of work, who is to be nominated as the Principal Certifying Authority. Please complete the attached form and return to Council.
33. All building work must be carried out in accordance with the provisions of the Building Code of Australia. In the event Council is nominated as the Principal Certifying Authority, additional information may be required to specifically address matters pertaining to the issue of a Construction Certificate.
34. All exposed timbers having a durability class of 2 or better, being CCA treated. Note: Oregon is not considered a durable timber.
35. Glass installations complying with the requirements of Australian Standard 1288 and to be of adequate thickness for the terrain category and wind loading applicable to the allotment allocation.
36. The installation of garbage disposal units is not permitted due to the release of nutrients into Council’s sewerage system.
37. Timber sizes and framework shall conform with the requirements of AS 1684 or, where applicable Part 3.4.3 of the Housing Provisions.
Should Part 3.4.3 of the Housing Provisions be the chosen method of compliance, then detailed specifications of all timber framework including its sizes, spacing and stress grading to be submitted to and approved by the Principal Certifying Authority prior to the issue of the Construction Certificate.
38. Smoke alarms must be installed in Class 1a and 1b buildings in accordance with 3.7.2.3 and 3.7.2.4 of the Building Code of Australia 1996, AS 3786 and Manufacturer’s Specification recommendations and must be connected to consumer mains power where consumer mains power is supplied to the building. The detector must be installed on or near the ceiling and located between each part of the dwelling containing bedrooms and the remainder of the dwelling and where bedrooms are serviced by a hallway, in that hallway, and in any other storey not containing bedrooms.
40. Sound insulation between sole occupancy units shall comply with Part 3.8.6 of the Building Code of Australia Vol 2.39. A wall that separates Class 1 buildings or a Class 1 building from a Class 10a building which is not appurtenant to the Class 1 building must have a FRL of 60/60/60 in accordance with Class 3.7.1.8 of the Building Code of Australia.
- a The walls dividing bathrooms, laundries and kitchens in one dwelling from habitable rooms in an adjoining dwelling having a Sound Transmission Class of not less than 50 and be constructed in accordance with Part 3.8.6 of the Building Code of Australia (Housing Provisions)
b Soil and waste pipes including those that pass through a floor, shall be separated from the rooms of any dwelling immediately adjacent thereto, by construction having a Sound Transmission Class in accordance with Part 3.8.6 of the Building Code of Australia (Housing Provisions).
41. The site being provided with protective fencing during the course of construction to restrict public access and suitable signage advising against unauthorised site entry, containing the builders or contact persons name, contact phone number, after hours emergency number, and consent/certificate number. Details must be submitted with the application for the Construction Certificate.
42. The premises not being occupied until an Occupation Certificate (Form 12) has been determined by approval in accordance with the procedure specified by Clauses 79J - L Environmental Planning and Assessment Regulations1994.
43. The Community Lounge shall be erected in Type c construction for a 9b building in accordance with Specification C1.1 of the Building Code of Australia.
44. A list of any fire safety measures that are proposed to be implemented in the building or on the land on which the building is situated is to be submitted with the Construction Certificate. Such a list must describe the extent, capability and basis of design of each of the measures.
The buildings being served by a compliant AS2419.1 Fire hydrant. Details being submitted with the Construction Certificate application.
45. Mobile garbage bins and mobile recycling bins to be stored in the communal enclosure and placed for service each week/fortnight at the kerbside on The Entrance Road and returned to the storage area following servicing.
46. Prior to the issue of a Construction Certificate a security deposit of $3,000.00 shall be paid into Council’s trust fund to cover the cost of repairing damage caused as a result of the development. Such deposit will be refunded upon the completion of the project if no damage is caused.
47. Satisfactory arrangements are to be made for the provision of water and sewer services to the land. A copy of the Certificate of Compliance under Section 26 of the Water Supply Authorities Act 1987, is to be obtained prior to the issue of a Construction Certificate. Contributions may be applicable to the Section 26 Certificate.
Advice
Developers are urged to make early application for a Section 26 certificate. A Section 24 application form is attached in order to apply for a Section 26 Certificate of Compliance.
48. Building/Development constructed near or over the sewer main shall comply with Council’s guidelines for building over sewers. Details prepared by a practising structural engineer must be submitted to and approved by Council prior to the issue of a Construction Certificate in accordance with the Water Supply Authorities Act 1987.
50. Driveways are to be designed according to the requirements of the current Australian Standard AS2890. Plans are to show the following information:49. The minimum floor level of all habitable rooms in the development is to be RL 2.8m AHD. A Compliance Certificate shall be submitted prior to the issue of a Occupation Certificate.
- i vehicular swept paths and dimensions of clear manoeuvring areas;
ii a longitudinal section through the centre line of the driveway from the kerb line to the proposed garages, showing driveway grades and suitable transition at changes of grades;
iii drainage pits and pipes;
iv a pavement design prepared by a suitably qualified Engineer.
51. At the completion of construction a Compliance Certificate shall be submitted prior to the issue of an Occupation Certificate. A work as executed plan and written verification stating that all driveway pavements as built will perform to the criteria set down by the designing Engineer and the work has been constructed in accordance with the Construction Certificate.
52. All work to be carried out on a public road shall be approved by Council under the Roads Act. Engineering plans for the work are to be prepared and designed by a suitably qualified person in accordance with Council’s Civil Construction Specifications, Specification for the Drafting and Design of Stormwater Drainage Works and Roadworks and Code of Practice for Erosion and Sedimentation Control. The plans are to be approved by Council prior to the issuing of a Construction Certificate required by this consent.
53. Construction of the following works in accordance with Council’s Civil Construction Specification, Specification for the Drafting and Design of Stormwater Drainage Works and Roadworks and Code of Practice for Erosion and Sedimentation Control. The works shall not have an adverse impact upon nearby properties and shall comply with WorkCover Authority requirements. A Compliance Certificate together with two (2) copies of a work-as-executed plan shall be submitted with the Occupation/Subdivision Certificate.Advice
A fee for the approval of engineering plans shall apply. The amount of this fee can be obtained from Council’s Information Services. All work is to be carried out in accordance with the Occupational Health and Safety Act.
- a Shoulder width road including kerb and guttering, subsoil drainage, footpath formation, drainage and a minimum 2m wide road pavement for 2m on either side of the driveway across the frontage of the site in the Entrance Road.
b Vehicle crossing that has a width of 9m and constructed with 150mm thick concrete reinforced with F72 steel fabric.
d Piping of all stormwater from impervious areas within the site to Council’s drainage system.c All redundant dish crossings and/or damaged footpath, kerb and gutter are to be removed and replaced with new footpath, kerb and gutter.
54. Submission of a pavement report prepared by a practising Geotechnical Engineer. The pavement depths are to be determined in accordance with Council’s specifications and the following traffic loadings:
Name of Street Traffic Loading (ESAs)
The Entrance Road 3x10 7
At the completion of construction a Compliance Certificate shall be submitted prior to the issue of a Occupation Certificate, the Geotechnical Engineer is to certify that the pavements as built have been constructed in accordance with the Construction Certificate, accepted practice, and recommendations outlined in the pavement report.
55. Erosion and siltation control measures shall be undertaken in respect to all civil works and are to be constructed in accordance with Council’s Code of Practice for Erosion and Sedimentation Control and the Protection of the Environment Operations Act, 1997. All disturbed areas to be fully established with vegetation prior to the issue of the Occupation/Subdivision Certificate.
WARNING
The applicant shall be held responsible for any breaches of the Protection of the Environment Operations Act, 1997 . Failure to implement or maintain appropriate erosion/sediment control measures is a breach of Section 120 of the Protection of the Environment Operations Act, 1997. Such a breach is liable for a $750 on-the-spot fine for an individual or $1,500 for a Company. Applicant(s) and Builder(s) are advised that spot checks of Erosion and Sedimentation Control measures may occur and fines for breaches imposed.
56. All stormwater work to be carried out shall be approved by Council under the Local Government Act. Engineering plans for the work are to be prepared and designed by a suitably qualified person in accordance with Council’s Civil Construction Specifications, Specification for the Drafting and Design of Stormwater Drainage Works and Roadworks and Code of Practice for Erosion and Sedimentation Control.
Advice
A fee for the approval of engineering plans shall apply. The amount of this fee can be obtained from Council’s Information Services. All work is to be carried out in accordance with the Occupational Health and Safety Act.
57. At the completion of construction a Compliance Certificate must be submitted prior to the issue of a Occupation Certificate, the Environmental Engineer is to certify that the nutrient control measures as built have been constructed in accordance with the Construction Certificate, accepted practice, and recommendations outlined in the nutrient control report.
59. Works to be carried out in The Entrance Road require the approval of the RTA. The RTA will require the following to be submitted with the engineering plans:58. All development shall be in accordance with the EPA draft environmental criteria for road traffic noise and Australian Standards AS 2107-1987 and AS 3671-1989. It is the responsibility of the applicant/land owner/developer to ensure that any development of the land is in accordance with the abovementioned criteria and standards. There shall be no expectation on the part of the property owner, tenant or Council, present or future, for the provision of noise abatement or other impact minimisation measures by the RTA. All costs associated with compliance with the abovementioned criteria and standards shall be at the expense of the applicant/land owner/developer.
- a A pavement Design Report (The RTA shall be contacted for pavement design loading.)
b A3 drawings including drainage, pavement design and line marking and signposting.
c A Review of Environmental Factors (REF) (minimum of 3 weeks for assessment).
d An Environmental Management Plan (EMP) (minimum of 3 weeks for assessment).
e An Erosion and Sedimentation Control Plan (ESCP) as part of the engineering works drawings (minimum of 3 weeks for assessment)
f Gantt Chart for the project construction
g Traffic Control Plan.
h A Road Safety Audit.
i An Occupational Health and Safety Plan
j The applicant to lodge deed of agreement documentation with RTA for approval prior to the commencement of works in Terrigal Drive.
k. A Section 138 agreement shall be entered into with the RTA to ensure compatibility of roadworks with the State Road network.
Above information to be submitted to RTA’s Project Manager, Road Safety and Traffic Management Section, Hunter Region for approval before commencement of works. Construction of all works at the Developers’ cost.
60. Filling is permitted to the Limit of Development Line. No filling (including toe of batter) or development (including eaves) is permitted past this line.
61. Fill levels must be a minimum of 300mm (R.L.2.3m AHD) above the 1% AEP flood level.
62. All proposed works along the limit of development line shall be designed for, amongst other things, toe stability, forces from flooding, hydraulic pressures, seepage, and revegetation. Works shall have to be certified to be flood compatible by a competent hydraulics engineer prior to the issue of an Occupation Certificate.
63. The creation of a restriction as to user under Section 88B of the Conveyancing Act on that part of the site between the northern (rear) boundary and the maximum development line indicated within Council’s Flood Management Plan affecting the site. The restriction as to user shall prohibit the filling of the land, the erection of any structures, or the removal and planting of vegetation and trees except with approval from the Council.
64. The visitor car parking space at the front of the site is to be equipped to allow cars to be washed on the site, and provided with adequate drainage and water taps in close proximity. Waste disposal from the car wash area is not to be disposed of to Council’s stormwater system.
66. The area below the maximum development line is to be fenced off prior to the commencement of any works and is to be maintained as a “no-go” area for the duration of construction.65. Site waste shall be managed in accordance with the Waste Management Plan of Neometro Architects dated 16 November 2001.
67. The proposed batter along the maximum development line is to be replaced by a permanent retaining wall. Details are to be provided to Council prior to the issue of a Construction Certificate.
68. The wetland area below the maximum development line shall not be used for recreation purposes at any time.
70. No part of the proposed structures are to extend beyond the maximum development line.69. Garden waste from the development must not be placed in the area below the maximum development line.
C In accordance with Section 95(1)(a) of the Environmental Planning & Assessment Act 1979, this consent shall be valid for a period of five (5) years.
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