PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council - [2005] NSWLEC 41

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41

PARTIES:
APPLICANT
PDP (Darlinghurst Apartments) Pty Limited
RESPONDENT
City of Sydney Council

FILE NUMBER(S):
10755 of 2004

CORAM:
Talbot J

KEY ISSUES:
Development Consent :- principle for applying opinion expressed by Court Appointed Expert - application of terms of DCP not prescriptive - condition requiring restrictive covenant rejected - criticism of the standard of presentation of draft conditions of consent by the parties

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979 s 76A, s 81A(1), s 96
South Sydney Local Environmental Plan 1998
South Sydney Development Control Plan
South Sydney (Heritage Conservation) Development Control Plan 1998.

DATES OF HEARING: 7/12/2004, 8/12/2004, 9/12/2004, 17/12/2004 (written submissions), 22/12/2004 (written submissions)

DATE OF JUDGMENT:

02/10/2005

LEGAL REPRESENTATIVES:
APPLICANT
Mr M G Craig QC
SOLICITORS
Mallesons Stephen Jacques
RESPONDENT
Mr A E Galasso (Barrister)
SOLICITORS
Maddocks

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Talbot J

10 February 2005

10755 of 2004 PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council
JUDGMENT

1 Talbot J: This appeal is in respect of the respondent Council's refusal of a development application, which proposes the redevelopment and expansion of the former telephone exchange site, situated at 320 Liverpool Street, Darlinghurst for a mixed-use development.

2 This mixed-use development was initially for the construction of a new 11 storey element, together with an 8 storey addition to the current 3 levels. However the proposal was amended during the course of the appeal, so as to reduce and reconfigure the residential component from 40 units to 27 units and to retain an existing 1923 telephone exchange building consequently reducing the bulk, scale and amenity impacts of the proposal.

3 The outstanding issues generally concern the height of the proposal and its setback from Liverpool Street, in terms of the impacts on neighbours and the streetscape.

The site

4 This site has its main frontage of 29 m to Liverpool Street. Little Surrey Street wraps around the western and northern boundaries of the site. It has a total area of 1,062 sq m.

5 The building erected in 1923, as the City East Telephone Exchange, is a two-storey inter-war Stripped Classical Style. An addition was erected on the eastern side of the original building in a similar architectural style in the 1930s. A metal roofing enclosure, which altered part of the parapet was later added over the building.

6 There is a relatively diverse range of uses and built form in the immediate context, ranging from low scale Victorian Terraces to the east and north of the site to the 50m high Telstra utility building, constructed during the 1970s, which is in current use directly adjacent to the site on the eastern side. To the west of the site is the Camelot Apartments, an 8 storey residential flat building constructed at the corner of Victoria Street and Liverpool Street in the 1960s and a 6 storey cement rendered hostel building circa 1920.

7 The Green Park Hotel is also in proximity to the site, at the junction of Liverpool Street with Victoria Street.

The proposal

8 The current proposal involves the retention and reconfiguration of the 1923 building, together with the demolition of the 1930s addition. From this, the redevelopment comprises the following 8 levels:-

· basement level car park,

· part ground level car park,

· part ground level retail area,

· two levels of commercial/office space, and

· midlevel podium of similar height to the 1920s building, above which are four residential levels.

9 The maximum height of the proposal is 27 m above the ground level of the south-eastern corner and it has a maximum FSR of 3.93:1.

10 The form of the new building comprises a base of similar height to the 1923 building, above which is the residential component. These two components are separated by a vertical glazed element, which provides a void separation between them. The new building as proposed is aligned with the setback of the 1970 Telstra building.

11 The glazing above the new building is divided into two vertical zones, whereas above the 1923 building it is divided into five zones.

Planning controls

South Sydney Local Environmental Plan 1998.

12 The site falls within the Zone 10 - Mixed Uses. The objectives of this zone include:

(a) to allow, in appropriate circumstances, a mixture of compatible land uses such as residential, retail, commercial, light industrial and industrial development, and …

13 Heritage aims are contained in Part 4, clause 22. The site is located within the Barcom Avenue Conservation Area so that the consent authority must not grant consent unless it is of the opinion that the proposal is consistent with the aims and objectives.

South Sydney Development Control Plan.

14 The DCP incorporates controls to supplement the provisions of the LEP in respect of urban design principles, the development context for the area, site planning to achieve compatible development that is well designed and makes a positive contribution to its surroundings and details for building form and appearance, which include floor space ration (FSR) and height controls.

15 The maximum prescribed FSR is 2:1 with an 18 m height limit. The object is to ensure buildings do not dominate and overshadow the public domain.

16 I agree with Mr Craig QC, who appears for the applicant, that the language and context of the DCP is not prescriptive. It focuses in terms on performance criteria allowing for flexibility.

South Sydney (Heritage Conservation) Development Control Plan 1998.

17 This DCP adopted on 9 December 1988, supplements the controls in South Sydney LEP Heritage Conservation.

The evidence

18 Jennifer Hill has been appointed as the Court Appointed Expert (“CAE”) in relation to planning and urban design. She comprehensively reviewed the submissions supporting the application, the amended design, together with the residents’ objections.

19 The residents’ objections generally concern:

· the buildings height exceedence above the 18 m DCP control, allegedly resulting in loss of outlook and reduce privacy due to the overlooking opportunities from the new units,

· disamenity from the elevated courtyards,

· additional traffic congestion,

· environmental disamenity during the construction period,

· preference for smaller scale building, with greater consistency with existing buildings.

20 One of the fundamental issues concerns the application of the DCP. Mr Craig QC submits that the numeric controls for height and FSR are not absolute. Instead the stated performance criteria is a guide to "best practice", which allows designers to develop a variety of design responses. Against this, Mr Galasso submits that the controls require a more prescriptive approach.

21 The Court accepts the more flexible approach adopted by the applicant, on the basis that the DCP acknowledges that "not all performance criteria will be applicable to every development" and that the controls may be varied if environmental and amenity issues are satisfactory.

22 M/s Hill has adopted a flexible approach as appropriate for this case and considers that a degree of height and FSR exceedence is acceptable in the local context. However, she expressed an opinion that the height of the building at RL 63:16 is too high and could be reduced by one level. She also suggests consideration of an increased setback to Liverpool Street, adjacent to the Telstra building. The object would be to achieve a better transition thereby reducing the potential for a dominant wall effect in Liverpool Street. She acknowledges that the modern Telstra structure is a negative feature in the area. She would prefer that the new building be more closely aligned to the 1920s hostel building in the laneway to provide similar visual order without creating an overly dominant group of facades to Liverpool Street exceeding the height limits imposed by the DCP.

23 The residents generally would prefer a significantly lower building height. M/s Hill does not consider that the loss of outlook from the residential dwellings in the Barcom Conservation area is sufficient to warrant rejection or significant lowering of the height of building on that account alone. She says that their expectations are unreasonable, given the environment of an inner city area. The Court accepts her opinion in this regard.

24 M/s Hill prefers that the residential component above the podium level be setback from the detracting Telstra building. She says this could be a minimal setback in the order of 200-300mm so as to make the buildings read separately. This in her opinion would achieve a better outcome in urban design terms.

25 M/s Hill considers that the façade on the southern elevation is overly complicated and fussy thereby confusing a reading of the retained element. The mixture of horizontal and vertical glazing elements and the vertical glazing void, she says, contribute to this complication.

26 Accordingly, she believes that the proposed development does not achieve sufficient compliance with the planning controls and objectives in relation to height, bulk, visual impact and the Liverpool Street streetscape. She concludes that these issues could be addressed by:-

1. Reduction in height by the removal of one storey, and

2. Redesign of the facade and form to provide greater simplicity and a reinforcement of the horizontal dominance of the podium and treatment of the façade and building volume of the proposal as two elements thereby allowing a linear transitional form between the 1923 contributory building and the 1970 detracting building to achieve improved aesthetic and urban design merit.

27 I have inspected the site with the parties and Commissioner Hussey. Residents were given the opportunity to express their concerns on site and as witnesses and several adjacent properties were visited. There is little that can be achieved to improve the amenity of residents in the laneway encompassing the site along the western and southern boundaries. Little Surrey Street is narrow and the houses are generally built to the alignment. Although there will be a high wall effect opposite the homes the capacity for overlooking is essentially non-existent. Nevertheless the applicant has proposed for the provision of translucent glass in the windows of commercial tenancies of levels one and two to restrict the prospect of direct overlooking. This could be reinforced by an appropriate condition of consent. The primary adverse impacts will occur unavoidably during construction.

28 The amenity of the rear sections of some properties fronting the southern side of Surrey Street may arguably suffer a detrimental impact from the increased height as a consequence of the loss of an aspect of open sky to the south. The loss in my view will be marginal in this respect. Any reduction in height by deletion of one storey will be of little benefit on this issue. The properties in Surrey Street are separated from the development by the depth of the properties facing Little Surrey Street and the laneway itself, thereby achieving an acceptable setback in terms of amenity, particularly given the crowded inner city living environment in this part of Darlinghurst.

29 Although the site is technically within the delineation of the Barcom Conservation Area it does not present as an integral part of that area and accordingly the development does not, in my opinion, have the potential to detract from its importance.

Conclusion

30 The reduction in height was expressed as a preference by M/s Hill. The suggested re-design of the southern façade was expressed in a similar vein. The latter is clearly a matter upon which opinions can differ and brings personal preferences into play.

31 The Court has no way of knowing whether the criticism of the treatment of the façade would be a widely accepted professional view. Furthermore, the language and context of the DCP does not in my opinion mandate a design code which can be regarded as expressing a subjective specific detailed preference for the manner of presentation of development in the locality. Accordingly, unless the Court is convinced the changes proposed by the Court Appointed Expert are critical, as a matter of principle it is not obliged to accept them entirely.

32 In terms of the streetscape impact of the proposal, the Court notes the significant constraints imposed by the existing, non-complying Camelot and Telstra buildings. Taking into account the height of the proposal as indicated on the view, the Court is of the opinion that the proposed height is acceptable in this context and that any benefits achieved by a further lowering of the building by one floor, would be marginal.

33 The height reasonably satisfies the objectives in section 2.3 of the DCP as being appropriate in scale and compatible with the site and its context. Furthermore, it does not dominate and overshadow the public domain.

34 I do not accept that the marker for the site in terms of height should be the 1920’s hostel building nor is it appropriate to rely on the higher Camelot building to justify the proposed height. The hostel building cannot be realistically regarded as part of the aspect of the streetscape of Liverpool Street. It is sufficiently set back to be unnoticeable from most relevant viewing points in Liverpool Street. The height proposed, set against the Telstra building will not be a detrimental element in that realistic context. Deletion of one storey cannot, in my opinion, be justified by reference to Barcom Conservation Area or the alleged impact on the amenity of any neighbouring or adjacent property.

35 However, the suggestion the Court Appointed Expert makes in regard to an increased setback from the alignment of the detracting Telstra building has merit in the context of further delineating the original 1923 telephone exchange building and distinguishing the drab and harsh outline of 1970’s Telstra building. This in my opinion in some measure will also ameliorate the concerns expressed by M/s Hill in respect of the complicated façade.

36 I propose to approve the development application subject to the building above podium level being set back 300mm from the alignment of the Telstra building abutting the eastern boundary of the site. This can be achieved by setting the whole of that part of the building back without detracting from the utility of the terrace space at the rear or causing further adverse impact on neighbouring properties.

37 Proposed condition 39 requires, in rather nebulous terms, that the applicant “install appropriate technologies within the development to enable the collection and re-use of the rainwater.” Notwithstanding the prospect of there being a worthwhile purpose for the condition I am not persuaded, and there is no evidence one way or the other, that a practical system can be achieved in a building of this type. I do not propose to allow the condition.

38 There is some dispute in relation to the ability to unload and load vehicles on site during construction. It is my view that a proposal by the Council recognises the practicalities and allows for the exercise of reasonable discretion of both parties according to the circumstances as they arise. The draft condition 64 will therefore be maintained over the objection of the applicant.

39 Proposed draft condition 24(c) provides:-

A restrictive covenant is to be created pursuant to Section 88E of the Conveyancing Act, 1919, restricting any change of use of the accommodation levels from residential. The covenant is to be executed

prior to the issue of a Construction Certificate

to the satisfaction of the certifying authority (Council or private accredited certifier). All costs of the preparation and registration of all associated documentation are to be borne by the applicant.

40 The Court will not as a matter of policy impose such a condition where the law already adequately provides for the enforcement of the provisions of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). Section 81A(1) authorise the use of building when erected for the purpose for which it was erected if that purpose is specified in the development application. The proposed uses are clearly defined in the subject development application. There is therefore no need or justification for the imposition of a restrictive covenant. Moreover, the proposed condition provides no definitive guidance for the actual terms of the section 88E restrictive covenant. Any unauthorised change of use would be development as defined in section 4 of the EP&A Act and would be contrary to section 76A of the Act. Alternatively, an application might be made to modify the consent pursuant to section 96 or a fresh development application may be necessary. Condition 24(c) will be deleted.

41 A copy of the approved conditions as edited by me is annexed and marked “A”, subject to the requirements specified in the next paragraph. Unidentified attachments are referred to throughout the draft conditions. These references have been deleted. Advisory notes have been omitted and unnecessary material taken out. These tasks have caused the Court considerable inconvenience and the requirement to do this reflects badly upon the capacity of both parties to bring the conditions of consent to a state of specificity, order, relevance and comprehension whereby they can be readily adopted by the Court. More care needs to be taken by parties to ensure that draft conditions are submitted in a form that is readily conducive to publication and incorporation in a judgment.

42 The parties are directed to jointly draft a further condition, preferably incorporating an amended plan, to reflect the Court’s finding in respect of the setback of the new building. In the event of any further dispute confined only to the means of achieving the result demanded by my conclusion in that regard then the matter can be relisted before me on two days notice. Otherwise the appropriate agreed proposed condition should be submitted for my approval and incorporation in the conditions of consent within 14 days following which formal orders will be made. In the meantime the exhibits will be retained.

43 I acknowledge that I have received considerable assistance from the advice of Commissioner Hussey who agrees with these published reasons.

Annexure A to Judgment in Matter No 10755 of 2004 PDP (DARLINGHURST APARTMENTS) PTY LTD v SYDNEY COUNCIL

APPROVED DEVELOPMENT

(1) Development must be in accordance with Development Application No. D/03/01344 dated 8 December 2003 and information and drawings numbered:

All dated 1 December 2004 prepared by Richard Huxley and Associates and as amended by the following conditions:

(2) Windows to the commercial tenancies on levels 1 and 2 are to be designed to ensure that there is no direct overlooking of properties to the north, by means of providing translucent glass to a height of 1,500 mm above the finished floor level.

(3) The consent shall lapse five (5) years after the date of determination shown on the Notice of Determination.

(4) Final samples of the external finishing materials to be used in the construction of the development shall be submitted to and be approved by Council prior to the issue of a Construction Certificate.

(5) The approved design (including an element or detail of that design) or materials, finish or colours of the building must not be changed so as to affect the internal layout or external appearance of the building, without the approval of Council.

(6) The following applies to Floor Space Ratio:-

(a) The Floor Space Ratio of the proposal must not exceed 3.9:1 calculated in accordance with the South Sydney Development Control Plan 1997. For the purpose of the calculation of FSR, the Floor Space Area of the development is 4,175m2.

(b) Prior to issue of an Occupation Certificate under the Environmental Planning and Assessment Act 1979, a Registered Surveyor shall provide certification of the total and component Floor Space Areas (by use) in the development, utilising the definition under South Sydney Development Control Plan 1997 applicable at the time of development consent to the satisfaction of the Principal Certifying Authority (PCA).

(7)

(a) The height of the building to the topmost parapet must not exceed RL 63.25 and to the top of the lift over-run must not exceed RL 66.10 (AHD).

(b) Prior to issue of an Occupation Certificate under Environmental Planning and Assessment Act 1979, a Registered Surveyor shall provide certification of the height of the building, to the satisfaction of the Principal Certifying Authority (PCA).

USE OF CONSERVATION ARCHITECT

(8) The applicant is to commission an experienced conservation architect to work with the consultant team throughout the design development, contract documentation and construction stages of the project. The conservation architect is to be involved in the resolution of all matters where existing significant fabric and spaces are to be subject to preservation, restoration, reconstruction, adaptive reuse, recording and demolition. The conservation architect is to be provided with full access to the site and authorised by the applicant to respond directly to Council where information or clarification is required regarding the resolution of heritage issues throughout the project.

USE OF EXPERIENCED TRADEPERSONS

(9) The applicant is to commission experienced tradepersons (as appropriate) that are skilled in traditional building and engineering trades to carry out the proposed scope of works.

INTERPRETATION STRATEGY

(10) Prior to the issue of a Construction Certificate an Interpretation Strategy for the site must be submitted to and approved by the Director City Development. The Interpretation Strategy should include, but is not limited to, the provision of details, of public art interpretation through design and/or the display of selected artefacts and/or other material, appropriate to the education of the public in the history and significance of the site. The approved Interpretation Strategy shall be implemented to the satisfaction of the Director City Development prior to the registration of an Occupation Certificate.

HERITAGE CONDITIONS

(11) That the existing hoist and opening is to be retained and conserved.

(12) That the external elevations of the telephone exchange building shall be restored as closely as possible to its original Inter-war style and details, based where possible on documentary and physical evidence.

(13) That all new external finishes and works of making good of the telephone exchange building shall match the existing original work adjacent in respect of materials used, detailed execution and finished appearance.

(14) That the external colour scheme of the original telephone exchange building is to be in keeping with the Interwar Stripped Classical style of the building and that of the new building is to be in predominantly earthy tones in keeping with the character of the existing building and conservation area as whole. Details to be submitted to the satisfaction of Council prior to the issue of a construction certificate.

(15) That a Structural Engineers Report is to be submitted to Council, prepared by a suitably qualified engineer experienced in dealing with heritage buildings. The report is to indicate how the façade is to be retained, supported and not undermined by the proposed development and give details of any intervention such works will have on the façade fabric. Details of all temporary supports and hoarding are also to be provided.

(16) Archival recording for deposit in the City of Sydney Archives must be carried out prior to the removal of any building fabric or furnishings from the site.

(a) The archival record of the site must be submitted to Council prior to the commencement of any demolition work and prior to the issue of a Construction Certificate.

(b) An additional copy must be provided to the Telstra Historical Society.

(c) The form of recording is to be as follows:-

(i) Photographic documentation of the site and its context, and the exteriors and interiors of the existing building(s), photographed where appropriate, using a camera/lens capable of ‘perspective correction’, comprising:-

a. 35mm colour slides, numbered and referenced to the site and building plans, and presented in archival quality storage sheets;

b. 35mm or 120mm black and white film, numbered and referenced to the site and building plans, with negatives developed to archival standards, and one copy of a contact sheet printed on fibre-based paper to archival standards;

c. selective black and white enlargements to be advised by Council, printed on fibre-based paper to archival standards to a minimum size of 20cm x 25cm, illustrating the location and context of the site/building, the relationship of adjacent buildings, building elevations, and important interior and exterior architectural spaces and features of the building/site;

(ii) A summary report of the photographic documentation, detailing;

a. the project description, method of documentation, and any limitations of the photographic record; and

b. photographic catalogue sheets, which are referenced to a site plan and floor plans no larger than A3, and indicating the location and direction of all photos (black & white prints and slides) taken.

c. Written confirmation that the Council reserves the right to use the photographs for its own purposes and for genuine research purposes.

(17)

(a) Should any historical relics be unexpectedly discovered on the site during excavation, all excavation or disturbance to the area is to stop immediately and the Heritage Council of NSW should be informed in accordance with section 146 of the Heritage Act 1977.

(b) Should any Aboriginal relics be unexpectedly discovered then all excavation or disturbance of the area is to stop immediately and the National Parks and Wildlife Service is to be informed in accordance with Section 91 of the National Parks and Wildlife Act, 1974.

SOUTH SYDNEY SECTION 94 CONTRIBUTIONS PLAN 1998 AND SOUTH SYDNEY MULTI FUNCTION ADMINISTRATION CENTRE PLAN

(a) As a consequence of this development, Council has identified an additional demand for public amenities and facilities. Pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979, and South Sydney City Council Section 94 Contributions Plan 1998, and South Sydney Multi Function Administration Centre Plan the following monetary contributions towards the cost of providing facilities and amenities are required.

Contribution Category Amount

Open Space: LGA Works Programme $14,127

(b) The above payments, with the exception of the land acquisition component of New Parks and Management, will be adjusted according to the relative change in the Consumer Price Index using the following formula. The contribution for land will be adjusted in accordance with the latest annual valuations.

Contributions at Time of Payment = C x CPI2

CPI1

(c) The contribution shall be paid prior to the issue of a Construction Certificate under Environmental Planning and Assessment Act 1979. Payment shall be by EFTPOS (debit card only), CASH or a BANK CHEQUE made payable to the City of Sydney. (Personal or company cheques will not be accepted).

Please contact Council’s Technical Coordinator on 9246 7728 prior to payment to confirm amount payable.

Part B

(a) Applications for the payment of contributions by carrying out works which are identified in the Section 94 Contributions Plan will be considered on their merits.

(b) To support the case for carrying out works, Council requires the submission, for formal approval, of complete construction documentation and detailed cost estimates of the works based on established industry standards.

(c) Applicants are advised to contact the Council as soon as possible concerning the specific requirements for any proposal for works-in-kind. Details submitted after the lodgement of the Construction Certificate may not be approved in time to allow the work to be carried out concurrent with the main project. Approved Works will only be off-set against the same category of works.

(d) Unless otherwise agreed, security in the form of an unconditional bank guarantee for the full contribution amount must be lodged with Council and will be held until the approved works have been certified as complete to the satisfaction of Council. For substantial works, Council may, at its discretion, hold the bank guarantee, or part thereof, until the elapse of a minimum defects liability period of at least twelve months after the practical completion of the works. Works to be carried out on public land will also require proof of public liability insurance.

(e) Council also reserves the right to require the future management of the completed work to be formally agreed prior to acceptance.

(f) Copies of the Section 94 Contributions plan may be inspected at Council's offices.

SEPARATE APPLICATION FOR USE

(19) A separate development application must be submitted at the appropriate time for the specific use of the commercial tenancies.

SIGNS

(20) A separate development application for any proposed signs which are either externally fitted or applied must be submitted for the approval of Council prior to the erection or display of any such signs.

NO PARTICIPATION IN RESIDENT PERMIT PARKING SCHEME

(21) Residents are not eligible to participate in the resident permit parking schemes.

(22) Prior to the issue of the Construction Certificate, sufficient information must be forwarded to the certifying authority illustrating compliance with the relevant requirements of the Building Code of Australia (and a copy forwarded to Council where Council is not the certifying authority). If Council is to be the certifying authority, please contact the Building Unit to discuss the requirements prior to submission of the application for construction certificate.

(23) The following requirements apply:-

(a) Three copies of a detailed Public Domain Plan shall be prepared by an architect, urban designer or landscape architect for the approval of Council prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. It is recommended that draft plans should be submitted for comment prior to formal submission for approval.

(b) The Public Domain Plan shall be as follows:-

(i) Drawn at 1:100 scale; 1:200 will be acceptable for larger sites of over 200m street frontage.

(ii) Show the entire layout and pattern of flagstone paving where this paving is required.

(iii) Nominate the location, type and material of all existing and proposed public pavement elements including trees, paving, kerbs and gutters, pedestrian ramps, vehicle crossings, street furniture (including city maps, notice boards, benches, bollards, bins, J C Deceaux kiosks, APT’s and phone booths), utility poles, parking meters, pedestrian and traffic signals, service pits and stormwater pits, stormwater pits and signage (including street nameplates, historical, parking and traffic).

(iv) Include a longitudinal section of the pavement showing existing and proposed levels at 10 metre intervals at the building alignment, the kerb and the gutter on a common datum line. This longitudinal section is to be drawn at 1:100 horizontal scale and 1:10 (exaggerated) vertical scale. For larger sites of over 200m street frontage 1:200 horizontal scale and 1:20 (exaggerated) vertical scale is acceptable. This section is to ensure that any significant longitudinal gradient change, such as flattening for vehicle entries, occurs within the building line and not at the public pavement.

(v) Include 1:50 scale cross sections through pedestrian ramps and vehicle crossings.

(vi) Include specifications of the proposed works.

(c) Random checks by Council officers may be made throughout the construction process to advise the contractor of non-complying elements. However, no parts of the work are to be considered approved until receipt of the City of Sydney Certificate of Completion. The City of Sydney will require all non complying parts to be rectified prior to issue of this letter.

(d) An “Application for Approval of Footpath Levels and Gradients” must be submitted at the City’s One Stop Shop with the appropriate fee at the time of lodgement of the public domain proposal. The fee will be determined in accordance with the City of Sydney Schedule of Fees and Charges.

(e) 3 Copies of the Public Domain Plan are to be lodged with the Public Domain Manager Design, City Development.

RESTRICTION ON RESIDENTIAL DEVELOPMENT

(24) The following restriction applies to buildings approved for residential use:

(a) The accommodation portion of the building must be used as permanent residential accommodation only and not for the purpose of a hotel, motel, serviced apartments, private hotel, boarding house, tourist accommodation or the like.

(b) All approved residential units in the building must be either owner occupied or occupied by a tenant with a residential lease under the Residential Tenancy Act 1987. A certificate signed by the owner or the body corporate (if the development is strata subdivided) or a solicitor (holding a current certificate to practice), must be forwarded to Council within 12 months of the completion of the development, and every 12 months thereafter, certifying that all units approved in the residential building are either owner occupied or are subject to residential leases under the Residential Tenancy Act 1987.

NOISE REDUCTION

(25) Prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979, an acoustic assessment report must be submitted to and approved by Council or the private accredited certifying authority addressing the internal noise levels within the approved apartments. The approved drawings and specifications for construction are to be in accordance with the following:

(a) The report shall indicate measures to preserve the amenity for residents/apartment users such that the repeatable LAeq (1 hour) level will not exceed the following levels:-

(i) In a naturally ventilated - windows closed condition:

a. Sleeping areas (night time only: 2200-0700) 35dB

b. Living areas (24 hours) 45dB

(ii) In a naturally ventilated - windows open condition, (ie windows open up to 5% of the floor area, or attenuated natural ventilation open to 5% of the floor area):

a. Sleeping areas (night time only: 2200-0700) 45dB

b. Living areas (24 hours) 55dB

(iii) Where a naturally ventilated - windows open conditions cannot be achieved, it is necessary to incorporate mechanical ventilation or air conditioning.

(iv) The following repeatable maximum LAeq (1 hour) levels shall not be exceeded when doors and windows are shut and mechanical ventilation or air conditioning is operating. These levels correspond to the combined measured level of external sources and the ventilation system operating normally:-

a. Sleeping areas (night time only: 2200-0700) 38dB

b. Living areas (24 hours) 46dB

(b) In the preparation of the report:

(i) The environmental noise monitoring at the site of the proposed development shall be undertaken for not less than 3 week days, or not less than 2 weeks where the site is affected by noise from part-time operations;

(ii) The repeatable maximum LAeq (1 hour) for the daytime period (0700-2200 hours) and for the night time period (2200-0700 hours) is to be identified, and

(iii) The LAeq (1 hour) noise levels within living rooms and bedrooms with windows and doors both open and closed shall be shown.

(c) All residential buildings are to be designed and constructed in accordance with the above criteria. The completed work must comply with the above conditions prior to issuing an Occupation Certificate (see condition in Schedule E of this consent).

(26) Prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979, an acoustic assessment report must be submitted to and approved by the Certifying Authority (Council or a private accredited certifying authority) addressing acoustic privacy between units. The approved drawings and specifications for construction are to be in accordance with the following:

(a) In order to assist acoustic control of airborne noise between units:

(i) A wall shall have a Field Sound Transmission Class (FSTC) of not less than 50 if it separates sole occupancy units or a sole occupancy unit from a plant room, stairway, public corridor, hallway or the like.

(ii) A wall separating a bathroom, sanitary compartment, laundry or kitchen in one sole occupancy unit from a habitable room (other than a kitchen) in an adjoining unit shall have an FSTC of not less than 55.

(iii) A floor separating sole occupancy units must not have a FSTC of less than 50.

(b) In order to assist acoustic control of impact noise between units:

(i) A floor shall have an Impact Isolation Class (IIC) of not less than 50 if it separates habitable rooms of sole occupancy units or a sole occupancy unit from a plant room, stairway, public corridor, hallway or the like.

(ii) A floor separating a bathroom, sanitary compartment, laundry or kitchen in one sole occupancy unit from a habitable room (other than a kitchen) in an adjoining unit shall have an IIC of not less than 55.

(iii) Walls between sole-occupancy units shall comply with impact sound resistance standards specified in the BCA.

(c) Council or the private Principal Certifying Authority must ensure that the completed work complies with the above conditions prior to issuing an Occupation Certificate (see condition in Schedule E of this consent).

(27) Prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979, the certifying authority (Council or a private accredited certifying authority) must ensure that all living rooms and bedrooms in sole occupancy units shall have a minimum floor to ceiling height of not less than 2.7 metres.

SYDNEY WATER CERTIFICATE (NEW DEVELOPMENT)

(28)

(a) Prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979, written confirmation that you have obtained a Notice of Requirements under Part 6, Division 9 of the Sydney Water Act 1994 must be submitted to the Certifying Authority.

(b) Prior to issue of a construction certificate, under the Environmental Planning and Assessment Act 1979, the approved development application plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whatever the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements and if further requirements need to be met and is to be submitted to the Principal Certifying Authority.

(c) Prior to issue of an Occupation Certificate under the Environmental Planning and Assessment Act 1979, a (Developer) Compliance Certificate under Section 73 of the Sydney Water Act 1994 must be submitted to the Principal Certifying Authority.

(29) Access and facilities for people with disabilities shall be provided in accordance with Part D3 of the Building Code of Australia and Council’s Access Policy. Prior to issue of a Construction Certificate under Environmental Planning and Assessment Act 1979, a certificate certifying compliance with this condition OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act 1979) must be provided, and copy submitted to Council.

(30) The following requirements apply to telecommunication facilities in the building:-

(a) Appropriate access and space within the plant area of the building shall be provided for a minimum of three telecommunication carriers or other providers of broad-band access by ground or satellite delivery.

(b) Appropriate ducting and cabling shall be provided for a minimum of three telecommunication carriers or other providers for telecommunication access and broad-band cabling to each apartment of the building.

(c) The details of (a) and (b) above shall be submitted for the approval of the certifying authority, prior to issue of a construction certificate for the building under the Environmental Planning and Assessment Act 1979.

(31) The following stormwater details shall be submitted:-

(a) Details of the proposed stormwater disposal and drainage of the development are to be submitted for approval by Council prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979. All approved details for the disposal of stormwater and drainage are to be implemented in the development.

(b) Any proposed connection to the City’s underground drainage system will require the owner to enter into a Deed of Agreement with the City Council and obtain registration on Title of a Positive Covenant prior to the commencement of any work within the public way, at no cost to the City.

(c) The requirements of Sydney Water (currently the Urban Development Central East Group, Rockdale Regional Office) with regard to the on site detention of stormwater must be ascertained and complied with. Evidence of the approval of Sydney Water to the on-site detention must be submitted prior to issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979.

(d) An “Application for Approval of Stormwater Drainage Connections” must be submitted at the City’s One Stop Shop with the appropriate fee at the time of lodgement of the proposal for connection of stormwater to the City’s drainage system. The fee will be determined in accordance with the City of Sydney Schedule of Fees and Charges.

UTILITY SERVICES

(32) To ensure that utility authorities are advised of the development:-

(a) A survey is to be carried out of all utility services within the site including relevant information from utility authorities and excavation if necessary, to determine the position and level of services.

(b) Prior to commencement of work the applicant is to negotiate with the utility authorities (e.g. Energy Australia, Sydney Water, and Telecommunications Carriers) in connection with the relocation and/or adjustment of the services affected by the construction of the underground structure. Any costs in the relocation, adjustment or support of services are to be the responsibility of the developer.

(33) Prior to commencement of any foundation or bulk excavation, the following documentation must be submitted to the satisfaction of the Principal Certifying Authority (Council or an accredited certifier) and a copy submitted to Council (if it is not the Principal Certifying Authority):-

(a) A Geotechnical Report which shall include the following information as appropriate:-

(i) Borehole/test pit logs or inspection records;

(ii) Field/laboratory test results;

(iii) General geotechnical description of site;

(iv) Recommended safe bearing values and likely settlements of foundation material;

(v) Recommendations for stability and protection of excavations;

(vi) Opinion on the effect of the new works on adjoining buildings and recommendations for any underpinning or other measures required to maintain stability; and

(vii) Method of proving and assessing foundations underpinning and/or excavation stability in accordance with design.

(b) A Structural Engineer’s Report/Letter stating to the effect that, based on the Geotechnical Report, the proposed excavation and construction work will not adversely affect the adjoining building/s.

(c) An Inspection and Test Plan (ITP) that reflects the requirements of the geotechnical report, project drawings and specifications.

(d) A completed Geotechnical Certificate for the Report and ITP, completed by the Project/Principal Geotechnical Engineer OR, a compliance certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) after satisfying (a), (b) and (c) above.

NON-COMPLIANCE WITH DEEMED TO SATISFY PROVISIONS OF THE BCA

(34) For areas not complying with the deemed to satisfy provisions of the BCA an alternate solution will be required to demonstrate compliance with the performance requirements stipulated in the BCA. Any alternative solution must be submitted and approved by the Certifying Authority prior to the issue of the construction certificate. The following information must be provided:-

(a) Details of the performance requirements that the proposed alternative solution is intended to meet; and

(b) Details of the assessment methods used to establish compliance with those performance requirements.

WASTE MANAGEMENT FOR RESIDENTIAL DEVELOPMENTS

(35) A Building Waste Management Plan is to be submitted and approved by the Director City Development prior to the issue of a Construction Certificate under the Environmental Planning and Assessment Act 1979 for construction of the development. Such plan must comply with Council's "Waste Code" and provide details of the following:-

(a) The location, design and construction of the garbage rooms, recycling rooms, bin washing, collection areas, and vehicle access and standing areas.

(b) The natural or mechanical ventilation of garbage rooms and service areas, in accordance with the Building Code of Australia and Australian Standard 1668.

(c) The location and design of garbage chutes and compaction units required by the Code.

(d) The proximity of waste handling facilities to commercial food areas or loading docks, with a view to avoiding cross contamination.

(e) The design features incorporated in the building and procedures to be undertaken by building management to ensure waste separation and minimisation within individual units and offices, on each floor of the building and within the garbage storage, recycling and collection areas.

(36) The following provisions apply to recycling areas:

(a) The building design must incorporate separate garbage rooms constructed in accordance with Council’s Code, for the separation of commercial waste from residential waste, including recyclable materials.

(b) The building must incorporate design features which will allow waste to be minimised and managed within each individual unit or office, on each floor of the building, and within the garbage/recycling storage and collection area.

(c) The building design must allow easy access to the garbage and recycling areas by residents and tenants, but prevent their use by non-residents/tenants.

INSTALLATION OF WATER EFFICIENT TAPS AND TOILETS

(37) All taps and shower heads and toilets installed shall be water efficient with a minimum “AAA” rating. The details shall be submitted for the approval of the certifying authority, prior to the issue of a construction certificate for the development under the Environmental Planning and Assessment Act, 1979.

(38) To minimise the damage to the environment only timber from sustainable sources shall be used in the construction (structural timbers and floorboards) of the building(s). The information submitted with the construction certificate shall specify the timbers to be used. These are to be limited to plantation and regrowth timbers, recycled timbers or timbers sourced from other sustainable practices and shall be:-

(a) Timber supplied from sustainable plantation sources, with Forest Stewardship Council (FSC) or Australian Forestry Standard (AFC) Certification.

OR

(b) Timber specified by EcoSpecifier or the Wilderness Society’s One Stop Timber Shop or Friends of the Earth’s Good Wood Guide 9th Edition.

OR

(c) Re-used/recycled timber.

PLANT

(39) All plant and associated equipment shall be located within the approved building envelope, including roof-top plant rooms. Any design amendments required to accommodate the plant within the building shall be submitted and approved by Council prior to the issue of a Construction Certificate.

(40) Prior to the commencement of demolition work, the details including plans and elevations showing distances of the subject building from the site boundaries, locations of common/party walls, and (where applicable) proposed method/s of facade retention must be submitted to the satisfaction of the Principal Certifying Authority (Council or an accredited certifier) and a copy sent to Council (if it is not the PCA).

(41) Prior to the commencement of demolition work a licensed demolisher who is registered with the WorkCover Authority must prepare a Work Method Statement to the satisfaction of the Principal Certifying Authority (Council or an accredited certifier) and a copy sent to Council (if it is not the PCA). A copy of the Statement must also be submitted to the WorkCover Authority.

(42) The Statement must be in compliance with AS2601-1991 Demolition of Structures, the requirements of WorkCover Authority and conditions of the Development Approval, and must include provisions for:-

(a) Enclosing and making the site safe, any temporary protective structures must comply with the Guidelines for Temporary Protective Structures (April 2001);

(b) Induction training for on-site personnel;

(c) Inspection and removal of asbestos, and contamination and other hazardous materials;

(d) Dust Control:-

Dust emission must be minimised for the full height of the building. A minimum requirement is that perimeter scaffolding, combined with chain wire and shade cloth must be used, together with continuous water spray during the demolition process. Compressed air must not be used to blow dust from the building site.

(e) Disconnection of Gas and Electrical Supply;

(f) Fire Fighting:-

Fire fighting services on site are to be maintained at all times during demolition work. Access to fire services in the street must not be obstructed.

(g) Access and egress:-

No demolition activity shall cause damage to or adversely affect the safe access and egress of this building.

(h) Waterproofing of any exposed surfaces of adjoining buildings;

(i) Control of water pollution and leachate and cleaning of vehicles tyres:-

Protection of the Environmental Operations Act 1997

(j) Working hours, in accordance with this Development Consent;

(k) Confinement of demolished materials in transit;

(l) Proposed truck routes, in accordance with this Development Consent;

(m) Location and method of waste disposal and recycling in accordance with the Waste Minimisation and Management Act 1995.

(43) Demolition by induced collapse, the use of explosives or on-site burning is not permitted.

(44) Prior to the commencement of demolition work, the following additional details are required to be submitted to the Principal Certifying Authority (PCA) (Council or a accredited certifier), and a copy submitted to Council if its not the PCA:-

(a) A Statement/Letter from an appropriately qualified Structural Engineer certifying concurrence with the structural provisions of the Demolition Work Method Statement and proposed work. If applicable, a Structural Report of the proposed building to be demolished must be attached.

(b) A Letter nominating the person appropriately qualified as an Occupational Hygiene Consultant for inspecting the building/site for asbestos, contamination and other hazardous materials, in accordance with the procedures acceptable to WorkCover Authority.

(c) Dilapidation Report/s of adjoining buildings are to be submitted by an appropriately qualified Structural Engineer prior to commencement of demolition/excavation works, and at completion of demolition/excavation works.

(d) A certified copy of the Public Liability Insurance indemnifying Council for $10,000,000 against public prosecution for the duration of the demolition works.

(e) An Asbestos and Hazardous Materials Clearance Certificate by a person approved by the WorkCover Authority.

(45) Prior to commencement of site excavation works, an Excavation Work Method Statement prepared by an appropriately qualified person must be submitted to the satisfaction of the Principal Certifying Authority (PCA) (Council or an accredited certifier) and a copy submitted to Council (if it is not the PCA). The Statement must include:-

(a) Name and address of the company/contractor undertaking excavation works;

(b) The name and address of the company/contractor undertaking off site remediation/disposal of excavated materials (if applicable);

(c) Name and address of the transport contractor, and location of the disposal site;

(d) Type and quantity of material to be removed from site;

(e) A Materials Handling Statement for the removal of refuse from the demolition site, in accordance with the provisions of the Waste Minimisation and Management Act 1995;

(f) A Dust Control Method Statement for excavated sandstone or other excavation materials;

(g) Procedures to be adopted for the prevention, of loose or contaminated material, spoil, dust and litter from being deposited onto the public way from trucks and associated equipment, and the proposed method of cleaning surrounding roadways from such deposits;

(h) Measures to enclose the excavation site, including safety barriers, particularly if the excavation is greater than 1.5 metres deep. Plastic jersey kerb barriers are not permitted;

(i) Any WorkCover Authority requirements.

(46) The Principal Certifying Authority and Council’s City Care Unit must be given a minimum of 48 hours notice that excavation, shoring or underpinning works are about to commence.

WATER AND SEDIMENT CONTROL STATEMENT FOR DEMOLITION AND EXCAVATION

(47) The following environmental protection measures are required:-

(a) Prior to the commencement of demolition and/or excavation, a Demolition/Excavation Water and Sediment Control Statement must be submitted to and approved by the Principal Certifying Authority.

(b) Such statement must include:-

(i) The procedures by which stormwater and waste water deposited or generated on site is to be collected and treated prior to discharge including details of any proposed pollution control device;

(ii) The proposed method of discharge;

(iii) The procedures to be adopted for the prevention of run-off from the site onto the public way;

(iv) The procedures to be adopted for the prevention of run-off from the site onto the public way.

(c) The statement is to be consistent with the principles and practices set out in the Department of Land and Water Conservation's Erosion and Sediment Control Manual and the Department of Housing Manual Managing Urban Stormwater - Soils and Construction (August 1998).

(d) The Demolition/Excavation Water and Sediment Control Statement shall be implemented during the demolition and/or excavation period.

(e) Any seepage or rainwater collected on site during work must not be pumped to the street stormwater system unless separate prior approval is given in writing by Council.

(f) The applicant must also comply with the NSW Protection of the Environmental Operations Act 1997, whereby it is an offence to pollute classified waters such as Sydney Harbour to which must of the City's street drainage is directly connected.

PEDESTRIAN AND TRAFFIC MANAGEMENT PLAN FOR DEMOLITION AND/OR EXCAVATION

(48) A Pedestrian and Traffic Management Plan must be submitted to and approved by Council prior to commencement of demolition and/or excavation. It must include details of the:-

(a) Proposed ingress and egress of vehicles to and from the construction site;

(b) Proposed protection of pedestrians adjacent to the site;

(c) Proposed pedestrian management whilst vehicles are entering and leaving the site;

(d) Proposed route of construction vehicles to and from the site.

(e) The Pedestrian and Traffic Management Plan shall be implemented during the demolition and/or excavation period.

(49)

(a) A Waste Management Plan for the demolition and/or excavation of the proposed development must be submitted to the satisfaction of the Principal Certifying Authority (and a copy submitted to Council if it is not the PCA) before commencement of work on the site.

(b) Certification that the plan is in accordance with the Development Approval Conditions, Council’s Code for Waste Handling in Buildings and the Waste Minimisation and Management Act 1995, must be submitted in the attached form W3 to the satisfaction of the Principal Certifying Authority. Such Certification must be submitted by an appropriately qualified person experienced in Waste Handling Design and Environmental Management.

(c) The Waste Management Plan must address demolition and excavation, as applicable. The Plan must describe procedures by which waste will be minimised, managed and recycled and must address the following issues:-

(i) Compliance with the requirements set out in Annexure (“A”) of the Code for Waste Handling in Buildings adopted by Council 17 October 1994.

(ii) Details of recycling and the removal of spoil and rubbish from the site in the course of demolition and excavation operations including:-

a. Type and quantities of material expected from demolition and excavation;

b. Name and address of transport company;

c. Address of proposed site of disposal;

d. Name/address of company/organisation accepting material;

e. Types and quantities of materials that are to be reused or recycled, on and off site and procedures involved;

f. Name of company/contractor undertaking on and off site reuse and recycling, and address of recycling outlet;

g. Material for disposal and justification of disposal;

h. If details of items (b to (g) are not known at the time of preparation of the Waste Management Plan, the information must be supplied immediately after the letting of the contacts.

(50) All requirements of Waste Management Plans must be implemented during the demolition and/or excavation period of the development.

(51)

(a) A separate Road Opening Permit under Section 138 of the Roads Act 1993 shall be obtained from City Care Unit of the City of Sydney prior to the commencement of any:-

(i) Excavation in or disturbance of a public way, or

(ii) Excavation on land that, if shoring were not provided, may disturb the surface of a public road (including footpath).

(b) Documents required with the Road Opening Permit application include:-

(i) A plan and relevant sections showing scope of works, boundaries, utility services, levels of proposed excavation, and details of method of reinstating public way;

(ii) Evidence that public utility drawings have been inspected;

(iii) Evidence of a $10 million dollar Public Liability Insurance Policy specifically indemnifying the City of Sydney, valid for at least the duration of the project;

(iv) A Security Deposit for reinstatement of public way.

(c) The Road Opening Permit will be subject to further conditions that shall be complied with.

(52) Where construction/building works require the use of a public place including a road or footpath, approval under Section 68 of the Local Government Act 1993 for a Barricade Permit is to be obtained from Council prior to the commencement of work. Details of the barricade construction, area of enclosure and period of work are required to be submitted to the satisfaction of Council.

(53) The following environmental protection measures are required:-

(a) Prior to the commencement of construction work, a Water and Sediment Control Statement must be submitted and approved by the Principal Certifying Authority.

(b) Such statement must include:-

(i) The procedures by which stormwater and waste water deposited or generated on site is to be collected and treated prior to discharge including details of any proposed pollution control device;

(ii) The proposed method of discharge;

(iii) The procedures to be adopted for the prevention of run-off from the site onto the public way;

(iv) The procedures to be adopted for the prevention of loose material and litter from being blown onto the public way;

(v) The statement is to be consistent with the principles and practices set out in the Department of Land and Water Conservation’s “Erosion and Sediment Control Manual”.

(c) The statement is to be consistent with the principles and practices set out in the Department of Land and Water Conservation’s Erosion and Sediment Control Manual and the Department of Housing Manual Managing Urban Stormwater – Soils and Construction (August 1998).

(d) The Water and Sediment Control Statement shall be implemented during the construction period.

(e) Any seepage or rainwater collected on site during construction must not be pumped to the street stormwater system unless separate prior approval is given in writing by Council.

(f) The applicant must also comply with the NSW Protection of the Environment Operations Act 1997, whereby it is an offence to pollute classified waters such as Sydney Harbour to which much of the City's street drainage is directly connected.

USE OF MOBILE CRANES

(54) Permits required for use of mobile cranes:-

(a) For special operations including the delivery of materials, hoisting of plant and equipment and erection and dismantling of on site tower cranes which warrant the on street use of mobile cranes, permits must be obtained from Council for the use of a mobile crane. The permits must be obtained 48 hours beforehand for partial road closures which, in the opinion of Council will create minimal traffic disruptions and 4 weeks beforehand in the case of full road closures and partial road closures which, in the opinion of Council, will create significant traffic disruptions.

(b) Mobile cranes operating from the road must not be used as a method of demolishing or constructing a building.

(c) Special operations and the use of mobile cranes must comply with the approved hours of construction. Mobile cranes shall not be delivered to the site prior to 7.30am without the prior approval of Council.

CERTIFICATION OF MECHANICAL VENTILATION

(55) The details of any mechanical ventilation or air conditioning must be certified by a competent person to comply with Council’s Ventilation Code, the Building Code of Australia and relevant Australian Standards, to the satisfaction of the Principal Certifying Authority (Council or an accredited certifier) prior to commencement of any mechanical services work.

(56) To enable certification, the mechanical ventilation documentation prescribed below shall be submitted to the Principal Certifying Authority:-

(a) Certified plans (in duplicate), coloured so as to adequately distinguish the proposed alterations;

(b) A general description of the project plus mechanical ventilation drawings and documentation in duplicate, coloured to show ductwork and equipment as set out below. (Where appropriate a schematic drawing should also be submitted).

(i) Supply Air Ducts, Shafts and Fans - Blue

(ii) Return Air Ducts, Shafts and Fans - Pink

(iii) Outside Air Ducts, Shafts, Intakes and Stair Pressurisation - Green

(iv) Exhaust Air Ducts, Shafts, Fans, Discharges and Smoke Spill - Orange

(v) Mixing Boxes and Conditions - Yellow

(vi) Fire Dampers and Electric Heaters - Red

(c) Drawings which show where applicable the existing and proposed air intakes, air discharges and cooling towers and their relative position to each other, the boundaries of the site, openable windows, and adjoining buildings;

(d) A Mechanical Ventilation Design Certificate pursuant to Section 93 of the Local Government Act 1993, OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) together with the Curriculum Vitae of the Design Engineer or other appropriate Certifier must be submitted to Principal Certifying Authority (PCA). A copy of the Certificate and a microfilm set of the certified drawings must be submitted to Council by the PCA;

(e) Documentary evidence in support of requests for departure from the prescribed or deemed provisions of the Building Code of Australia or any other requirements.

STRUCTURAL CERTIFICATION FOR DESIGN - MAJOR WORKS
(57) Prior to the commencement of work

, the following documentation must be submitted to the satisfaction of the Principal Certifying Authority (PCA) and a copy of same submitted to Council (if it was not the PCA):

(a) Structural Drawings

showing all new fully detailed structural elements, prepared by an appropriately qualified practising Structural Engineer, corresponding with and attached to a Structural Certificate (see (b));

(b) Structural Certificate/s for Design

, of all new fully detailed structural elements and for checking any structural elements supporting the new work completed by the Project/Principal Engineer and Architect, OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979), after the structural drawings have been checked and comply with:

(i) The relevant clauses of the Building Code of Australia (BCA);

(ii) The relevant conditions of Development Consent;

(iii) The Architectural Plans incorporated with the Construction Certificate; and

(iv) The relevant Australian Standards listed in the BCA (Specifications A1.3);

(c) Repeat (a) and (b) for any revision, or staged submission of structural drawings.

(58) All Demolition Work shall be carried out in a safe manner by trained personnel under the management of a licensed demolisher who is registered with the WorkCover Authority, in accordance with:-

(a) The approved Demolition Work Method Statement;

(b) Australian Standard AS2601-1991- Demolition of Structures;

(c) Relevant Codes of Practice of the WorkCover Authority (NSW);

(d) The Construction Safety Act 1912 and Demolitions Regulations;

(e) The Occupational Health and Safety Act 1983; and

(f) All other relevant Acts and Regulations.

(59) Demolished combustible materials shall not be stockpiled. Material must be removed regularly.

HOURS OF WORK AND NOISE

(60) The hours of construction and work on the development shall be:

(a) All work, including building/demolition and excavation work, and activities in the vicinity of the site generating noise associated with preparation for the commencement of work (eg. loading and unloading of goods, transferring of tools etc) in connection with the proposed development must only be carried out between the hours of 7.30 a.m. and 5.30 p.m. on Mondays to Fridays, inclusive, and 7.30 a.m. and 3.30 p.m. on Saturdays, with safety inspections being permitted at 7.00 a.m. on work days and no work must be carried out on Sundays or public holidays.

(b) The applicant must provide to Council a 24 hour per day telephone contact number and must ensure such number is continually attended by a person with authority over the building work during the construction period.

(c) The approved hours of work and a 24 hour telephone number must be prominently displayed at all times on the building site and must be visible from a public street or a public place.

(d) All work, including demolition, excavation and building work must comply with "The City of Sydney Building Sites Noise Code" and Australian Standard 2436 - 1981 "Guide to Noise Control on Construction, Maintenance and Demolition Sites”.

(61) A site notice(s) is to be prominently displayed at the boundary to each frontage of the site for the purposes of informing the public of appropriate project details and relevant approvals. The notice(s) is to satisfy all of the following requirements:-

(a) Minimum dimensions of the notice are to measure 841mm x 594mm (A1) with any text on the notice to be a minimum of 30 point type size;

(b) The notice is to be durable and weatherproof and is to be displayed throughout the construction period;

(c) A copy of the first page of the development approval and construction certificate (including any modifications to those approvals) and any civic works approvals is to be posted alongside the notice in weatherproof casing;

(d) The approved hours of work, the Principal Certifying Authority (PCA) including contact address and certification details, the name of the site manager, the responsible managing company, its address and 24 hour contact phone number for any enquiries, including construction/noise complaint are to be displayed on the site notice;

(e) The notice(s) is to be mounted at eye level on the perimeter hoardings and is to state that unauthorised entry to the site is not permitted. If demolition is being undertaken, the words, Danger - Demolition Site, with an international logo must be displayed.

(62) This development consent does not extend to the use of appliances, which emit noise of a highly intrusive nature (such as pile-drivers and hydraulic hammers) or are not listed in Groups B, C, D, E, or F of Schedule 1 of the "City of Sydney Building Sites Noise Code". A separate application for approval to use any of these appliances must be made to Council.

LOADING AND UNLOADING DURING CONSTRUCTION

(63) The following requirements apply:-

(a) Where possible, all loading and unloading associated with construction must be accommodated on site.

(b) Where (a) above is not possible, the applicant shall submit to Council an application for the provision of a construction zone.

(c) In addition to any approved construction zone, provision must be made for loading and unloading to be accommodated on site once the development has reached ground level.

(d) If a construction zone is warranted, such an application must be made to Council prior to commencement of work on the site. An approval for a construction zone may be given for a specific period and certain hours of the days to reflect the particular need of the site for such facility at various stages of construction. The approval will be reviewed periodically for any adjustment necessitated by the progress of the construction activities.

(64) All street trees shall be protected at all times during construction, in accordance with Council’s Tree Preservation Order. Any tree on the footpath which is damaged or removed during construction shall be replaced, to the approval of Council and the Principal Certifying Authority.

(65) To comply with the Protection of the Environment (Operations) Act 1997 whereby it is an offence to pollute classified waters such as Sydney Harbour to which most of the City’s street drainage is directly connected:-

(a) concrete trucks, concrete pumps and their attachments, and trucks used for the disposal of spoil shall not be washed out on the public way;

(b) any water collected from on-site washing down of concrete trucks, concrete pumps or their attachments and trucks used for the disposal of spoil shall not be pumped, directed or allowed to flow to the street stormwater system;

(c) any seepage or rain water collected on site during construction shall not be pumped to the street stormwater system unless separate prior approval is given in writing by Council and evidence of approval is to be submitted to the Principal Certifying Authority prior to discharge into such system.

(66) The public way must not be obstructed by any materials, vehicles, refuse, skips or the like, under any circumstances. Non-compliance with this requirement will result in the issue of Notice by Council to stop all work on site.

(67) An Occupation Certificate (in accordance with Clause 155 of the Environmental Planning and Assessment Regulation 2000) must be obtained from the Principal Certifying Authority (PCA) and a copy furnished to Council in accordance with Section 79L of the Environmental Planning and Assessment Amendment Regulation 1998 prior to commencement of occupation or use of the whole or any part of a new building, an altered portion of, or an extension to an existing building. A copy of the certificate shall be submitted to Council if it was not the PCA.

(68) Upon completion of construction and prior to issue of an Occupation Certificate under the Environmental Planning and Assessment Act (Form 12) for the development or part thereof, compliance of all the building's waste facilities, with the requirements set out in the approved Building Waste Management Plan and in accordance with Council's Waste Code, is to be verified by Council's Manager Contracts and Asset Management.

(69) Certification of completion of waste handling works in accordance with the relevant Development Approval Conditions and Councils Code for Waste Handling in Buildings 1994, must be submitted to the satisfaction of the Principal Certifying Authority (PCA), prior to the issue of an Occupation Certificate under the Environmental Planning and Assessment Act 1979 or prior to use of the premises. A copy of the Certificate shall be submitted to Council if it is not the PCA.

Such Certification must be given by the Architect or other appropriated qualified person experienced in Waste Handling Design and Environmental Management.

MECHANICAL VENTILATION PERFORMANCE CERTIFICATE

(70) Prior to issue of an Occupation Certificate under Environmental Planning and Assessment Act 1979 and following the completion, installation, and testing of all the mechanical ventilation systems covered by the approval, a Mechanical Ventilation Certificate of Completion and Performance, OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) must be submitted to the Principal Certifying Authority (PCA). A copy of the Certificate and a microfilm set of the certified drawings must be submitted to Council if it was not the PCA.

CERTIFICATION FOR STRUCTURAL INSPECTIONS

(71) Prior to issue of an Occupation Certificate or use of the premises, a Structural Inspection Certificate OR a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) must be submitted to the satisfaction of the Principal Certifying Authority (PCA) after:

(a) The site has been periodically inspected and the structural certifier is satisfied that the Structural Works are deemed to comply with the final Design Drawings; and

(b) The drawing revisions listed on the Inspection Certificate have been checked with those listed on the final Design Certificate/s.

(72) A copy of the Certificate with a microfilm set of the final drawings shall be submitted to Council if it was not the PCA.

CERTIFICATION OF GEOTECHNICAL INSPECTION

(73) Prior to issue of an Occupation Certificate or use of the premises, a Geotechnical Inspection Certificate, or a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) must be submitted to the satisfaction of the Principal Certifying Authority (PCA) and a copy submitted to Council, (if it was not the PCA).

COMPLIANCE CERTIFICATE FOR ACOUSTIC PRIVACY

(74) Prior to issue of an Occupation Certificate, a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) must be submitted to the satisfaction of the Principal Certifying Authority (PCA). This must certify compliance with the Acoustic Privacy conditions in Schedule B of this consent, being the requirements in Clauses 6.1.13 – 6.1.16 of the Central Sydney DCP 1996 Amendment No. 5 - Internal Residential Amenity. A copy of the Certificate shall be submitted to Council if it was not the PCA.

COMPLIANCE CERTIFICATE FOR NOISE REDUCTION

(75) Prior to issue of an Occupation Certificate, a Compliance Certificate (in accordance with Section 109C of the Environmental Planning and Assessment Act, 1979) must be submitted to the satisfaction of the Principal Certifying Authority (PCA) (Council or a private accredited certifying authority). This must certify compliance with the Noise Reduction conditions of this consent, being the requirements in the Central Sydney DCP 1996 Amendment No. 5 - Internal Residential Amenity. A copy of the Certificate shall be submitted to Council if it was not the PCA.

NUMBERING

(76) Prior to issue of an Occupation Certificate, street numbers and the building name shall be clearly displayed at either end of the ground level frontage in accordance with the “Policy on Numbering of Premises within the City of Sydney”. If new street numbers or a change to street numbers are required, a separate application shall be made to Council.

NOISE - USE

(77) The use of the premises including music and other activities must not give rise to any one or more of the following:

(i) Transmission of vibration to any place of different occupancy greater than specified in AS 2670.

(ii) An indoor sound pressure level in any place of different occupancy (and/or public place) greater than 3dB above the L90 background level or greater than 5dB at the boundary of any affected property in any octave band from 31.5 Hz to 8,000 Hz centre frequencies inclusive between the hours of 7.00 a.m. to midnight daily and 0dB above the L90 background between 12 midnight and 7.00 a.m. the following morning. However, when the L90 background levels in frequencies below 63 Hz are equal to or below the threshold of hearing, as specified by the equal loudness contours for octave bands of noise, this sub-clause does not apply to any such frequencies.

(iii) During the period 12 midnight to 7.00 a.m. the use shall be inaudible in any habitable room of any residential premises.

(iv) The emission of an "offensive noise" as defined under the Protection of the Environment (Operations) Act 1997.

The method of measurement of vibration in (a) and sound levels in (b), (c) and (d) must be carried out in accordance with AS 2973 for vibration measurements. AS 1055 for outdoor sound level measurements, and AS 2107 for indoor sound level measurements.

(78) Noise associated with mechanical plant must not give rise to any one or more of the following:

(a) Transmission of vibration to any place of different occupancy greater than specified in AS 2670.

(b) An indoor sound pressure level in any place of different occupancy (and/or public place) greater than 3dB above the L90 background level or greater than 5dB at the boundary of any affected property in any octave band from 31.5 Hz to 8,000 Hz centre frequencies inclusive between the hours of 7.00 a.m. to 10.00 p.m. daily and 0dB above the L90 background between 10.00 p.m. and 7.00 a.m. the following morning. However, when the L90 background levels in frequencies below 63 Hz are equal to or below the threshold of hearing, as specified by the equal loudness contours for octave bands of noise, this subclause does not apply to any such frequencies.

(c) The emission of an "offensive noise" as defined under the Protection of the Environment (Operations) Act 1997.

The method of measurement of vibration in (a) and sound levels in (b), (c) must be carried out in accordance with AS 2973 for vibration measurements. AS 1055 for outdoor sound level measurements, and AS 2107 for indoor sound level measurements.

REMOVAL OF GRAFFITI

(79) The owner/manager of the site shall be responsible for the removal of all graffiti from the building within 48 hours of its application.

CARE OF BUILDING SURROUNDS

(80) In addition to Council's daily street sweeping and cleansing operations, the owner/manager of the building shall ensure that the forecourt and the surrounds of the building including pavements and gutters are to be kept clean and free of litter at all times.

(81) The prescribed conditions in accordance with Clause 98 of the Environmental Planning and Assessment Regulation 2000 apply where there is building work:

(a) The work must be carried out in accordance with the requirements of the Building Code of Australia (as in force on the date the application for the relevant construction certificate is made).

(b) This condition does not apply to:

(i) the extent to which an exemption is in force under Clause 187 or 188, subject to the terms of any condition or requirement referred to in Clause 187(6) or 188(4) of the Environmental Planning and Assessment Regulation 2000; or

(ii) the erection of a temporary building.

(82) In the case of residential building work for which the Home Building Act 1989 requires that there be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force.

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Citations

PDP (Darlinghurst Apartments) Pty Ltd v City of Sydney Council [2005] NSWLEC 41

Most Recent Citation

Foster v Hurstville City Council [2006] NSWLEC 53

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Statutory Material Cited

4

CITATION:	PDP (Darlinghurst Apartments) Pty Limited v City of Sydney Council [2005] NSWLEC 41
PARTIES:	APPLICANT PDP (Darlinghurst Apartments) Pty Limited RESPONDENT City of Sydney Council
FILE NUMBER(S):	10755 of 2004
CORAM:	Talbot J
KEY ISSUES:	Development Consent :- principle for applying opinion expressed by Court Appointed Expert - application of terms of DCP not prescriptive - condition requiring restrictive covenant rejected - criticism of the standard of presentation of draft conditions of consent by the parties
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 s 76A, s 81A(1), s 96 South Sydney Local Environmental Plan 1998 South Sydney Development Control Plan South Sydney (Heritage Conservation) Development Control Plan 1998.
DATES OF HEARING:	7/12/2004, 8/12/2004, 9/12/2004, 17/12/2004 (written submissions), 22/12/2004 (written submissions)
DATE OF JUDGMENT:	02/10/2005
LEGAL REPRESENTATIVES:	APPLICANT Mr M G Craig QC SOLICITORS Mallesons Stephen Jacques RESPONDENT Mr A E Galasso (Barrister) SOLICITORS Maddocks