Premier Holdings Corporation Pty Limited v The Hills Shire Council

Case •

[2010] NSWLEC 1241

•

12 August 2010

No judgment structure available for this case.

Land and Environment Court


of New South Wales


CITATION: Premier Holdings Corporation Pty Limited v The Hills Shire Council [2010] NSWLEC 1241
PARTIES:

APPLICANT
Premier Holdings Corporation Pty Limited

RESPONDENT
The Hills Shire Council
FILE NUMBER(S): 10279; 10280 of 2010
CORAM: Brown C
KEY ISSUES: DEVELOPMENT APPLICATION :- two separate but related appeals in relation to the erection of self care housing for aged persons or persons with a disability - whether proposal a new use or for same purpose - public interest
LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land and Environment Court Act 1979
Environment Planning and Assessment Regulations 2000
State Environmental Planning Policy Housing Policy for Seniors or People with a Disability 2004
Baulkham Hills Local Environmental Plan 2005
CASES CITED: Chamwell Pty Limited v Strathfield Council 2007 NSWLEC 114
DATES OF HEARING: 12 August 2010
EX TEMPORE JUDGMENT DATE: 12 August 2010
LEGAL REPRESENTATIVES:

APPLICANT
Mr D Kavanagh, Sole Director of applicant company

RESPONDENT
Ms S Puckeridge, solicitor
SOLICITORS
Matthews Folbigg Pty Ltd

INTERVENOR
Ms P Jeffreys

JUDGMENT:

      THE LAND AND
      ENVIRONMENT COURT
      OF NEW SOUTH WALES

      Brown C

      12 August 2010

      10279, 10280 of 2010 Premier Holdings Corporation Pty Limited v The Hills Shire Council

      JUDGMENT

1 COMMISSIONER: These are two separate but related appeals in relation to the erection of housing for aged persons or persons with a disability at Lot 90 and Lot 91 in Strata Plan 72284 Spurway Drive Baulkham Hills (the site).

2 Appeal No. 10280 of 2010 (Development Application No. 755/2009/HA) is an appeal against the refusal by The Hills Shire Council (the council) for the erection of 48 self-care units within four two storey buildings.

3 Appeal No. 10279 of 2010 (Development Application No. 1112/2009/ZC) is an appeal against the refusal by the council for a two lot strata subdivision to create one lot containing an existing constructed villa, one strata development lot and the extension of Eagle View Place to be included as common property of the strata management plan.

      Background

4 The appeal was the subject of a conciliation conference on 28 June 2010 under s 34 of the Land and Environment Court Act 1979 (the Court Act). The conciliation conference was adjourned at this time to allow the applicant to address the matters raised at the conciliation conference. The resumed s 34 conference was held on 19 July 2010 where the conciliation conference was terminated pursuant to s 34(4)(a)(i). The parties consented to me disposing of the proceedings at a later date pursuant to s 34(4)(b)(i) and on the basis of what had occurred at the conciliation conference pursuant to s 34(4)(b)(ii). The hearing date was 12 August 2010.

5 The contentions originally raised by the council related to:

        • the visual impact, particularly the proposed 3 m setback to the northern boundary of the site and adjoining Castle Hill Golf Club, and
        • disabled access, particularly from the proposed buildings to Windsor Road.

6 Mr Robert Player provided evidence on the town planning issues and Mr Mark Relf provided evidence on the access issues for the council. While both raised some concerns with the original proposal at the first conciliation conference their concerns were addressed through amended plans provided at the resumed s 34 conference. Consequently, no planning, access or any other contention raised by the council remained. There was also agreement on the conditions of consent for both appeals.

7 On 6 August 2010 Ms Jeffreys, the owner of a premises in Fairhaven Circuit Baulkham Hills, sought to be joined as a party in the proceedings pursuant to s 39A of the Court Act. Ms Jeffreys was not granted leave to be a party in the proceedings but granted leave to “appear in the proceedings, to rely on the document filed and to give oral evidence at the hearing in relation to that document.” As I understand, the document referred to in the joinder application raises two principal arguments being, firstly, the change from a hostel facility to self care apartments was not permitted under cl 41(1)(d) of the Environment Planning and Assessment Regulations 2000 (the Regulations) and secondly, the change from a hostel facility to self-care apartments is not in the public interest.

      Planning controls

8 The site is zoned Open Space 6(b) (Existing and Proposed Public Recreation) under Baulkham Hills Local Environmental Plan 2005. The proposed development is not permissible within this zone. However, it was agreed the site benefits from the existing use rights from a development consent granted by the council on 17 January 1980 for a staged development for housing for older people or people with a disability. The development consent describes the application as

          Staged development – SEPP 5 - housing for older people and people with a disability – 40 x self-care dwellings, administration building and recreational facilities including a tennis court (Stage 1) 30 x self-care dwellings (Stage 2) and 46 x self-care dwellings and a 40 bed hostel facility (Stage 3).

9 In essence, the proposal is to replace the 40 bed hostel facility (Stage 3 of the approval) with 48 self-care units within four two storey buildings.

      Ms Jeffreys contentions
      Clause 41(1)(d) of the Regulations

10 Clause 41(1)(d) states:

          (1) An existing use may, subject to this Division:
              ( d) be changed from another use but only if that use is a use that may be carried out with or without development consent under this Act, or

11 As I understand, the issue raised by Ms Jeffreys it is that the Court has no power to approve the amendment as it is for a different use, that is, self-contained dwellings in place of a hostel. In terms of cl 41(1)(d) there was no dispute that the site enjoys existing use rights by way of the 1990 consent and that a substantial component of the consent has been constructed. Whether the proposed change requires development consent rests on the requirements in cll 42 and 43 of the Regulations. Clause 42 addresses “alteration or extension of buildings and works” and cl 43 addresses “enlargement, expansion and intensification of existing uses.” It is not of great moment which section the proposal falls under as both pose the same test, that is, the change “must be for the existing use”

12 The difference of opinion between Ms Jeffreys and the applicant is what constitutes “the existing use”. Ms Jeffreys maintains that the existing use is for self-care units and a hostel facility and that the proposed change is for self-care apartments, which is a prohibited use under the Open Space 6(b) zone.

13 The applicant maintains that the existing use is for the purpose of a seniors housing development comprising various buildings and this purpose is unchanged by the proposed application. Under the 1990 consent, as modified, one of the proposed buildings is a hostel. The proposed development seeks to remove the hostel and replace it with self-care units. Those self-care units will also be for the purpose of seniors housing. That change, whether an enlargement, expansion, intensification, alteration or extension, is for the existing use and no other use and consequently the Court has power to consider the merits of the proposed development. To support this position the applicant relies on the decision of the Chief Judge in Chamwell Pty Limited v Strathfield Council 2007 NSWLEC 114.

14 On this matter I agree with the approach of the applicant. Chamwell addresses the issues of characterisation and particularly distinguishes between “use and purpose of the use”. Particularly relevant is par 36 which states:

          36. The characterisation of the purpose of the use of land should be done at a level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on not in terms of the detailed activities, transactions or processes.”

15 In my view, this clearly supports the position adopted by the council and the applicant that the proposal to replace the 40 bed hostel facility with 48 self-care units within four two storey buildings is for the same purpose, that is, a seniors housing development.

      The public interest

16 In terms of the public interest, and while I understand the concerns of Ms Jeffreys and the other residents who provided evidence and supported the retention of the hostel, the State Environmental Planning Policy Housing Policy for Seniors or People with a Disability 2004 (the Policy) and its predecessors places no obligation on the provision of any specific form of housing available under the Policy. The Policy simply provides the opportunity for the provision of a range of different housing types. In what form the housing is provided is left to those wishing to develop under this Policy. For this reason, the Court could not reasonably require the retention of the hostel on the basis of the public interest.

      Orders

17 The Orders of the Court for Appeal 10279 of 2010 are:

            1. The appeal is upheld.
            2. Development Application No1112/2009/ZC for the subdivision of Lot 90 in SP 72284 into 2 strata lots at 96 - 99 Longview Place, Baulkham Hills is approved subject to the conditions in Annexure A.
            3. The exhibits are returned with the exception of exhibits 1, 3, 7, 9 and A.

18 The Orders of the Court for Appeal 10280 of 2010 are:

            1. The appeal is upheld.
            2. Development Application No755/2009/HA for the erection of 46 self care units and 2 villas at Lots 90 and 91 in SP 72284 Spurway Drive, Baulkham Hills is approved subject to the conditions in Annexure A.
            3. The exhibits are returned with the exception of exhibits 1, 3, 7, 9 and A.
      __________________
      G T Brown
      Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Premier Holdings Corporation Pty Limited v The Hills Shire Council

Land to be developed:

LOT 90 SP 72284 NO'S. 96 - 99 LONGVIEW PLACE, BAULKHAM HILLS


Development

: PROPOSED TWO (2) LOT STRATA SUBDIVISION

GENERAL MATTERS

      The subdivision being carried out in accordance with the amended plan of subdivision stamped signed and dated 23 February 2010.
      In order to provide a consistent and accurate system of house numbering throughout the Shire, house numbering is to be provided through discussion with Councils Land Information Management Section. The responsibility for house/unit numbering is vested solely in Council.
      The final plan of strata subdivision cannot be registered with the Department of Lands unless accompanied by a special resolution of the Strata Owners Corporation agreeing to any changes to the schedule of unit entitlement.


PRIOR TO ISSUE OF A SUBDIVISION CERTIFICATE

      The submission of a Subdivision Certificate application accompanied by the following:
      a) The original final plan and administration sheet(s);
      b) Ten (10) copies of the final plan and administration sheet(s);
      c) The original plus one (1) copy of the 88B Instrument creating all necessary easements, positive covenants and restrictions (where required);
      d) All certificates and supplementary information as required by this consent;
      e) The completed checklist confirming compliance with all consent conditions (a blank checklist is attached);
      f) An electronic copy of the final plan of subdivision on disk in AutoCAD “.DWG” format;
      g) One (1) copy of the strata subdivision plan detailing house/ unit numbering consistent with the approved house/ unit numbering issued by Council.


NOTE:

Council will not accept a Subdivision Certificate application without all the items listed above.

      Compliance with all conditions of approval of the Development Application on the subject property.


NOTE:

All landscaping to be provided commensurate with the use of the land around rear courtyard and front of villa and being in accordance with development consent 2785/01/HD.

      A Subdivision Certificate cannot be issued prior to the release of the Restriction on the Use of Land (SP 72284).

      In this regard, a copy of the registered Request document from the Department of Lands is to be submitted to Council.

      A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water. Application must be made through an authorised Water Servicing Coordinator. A list can be found by following this link:

      The certificate must refer to the issued consent, all of the lots created and Development Consent DA 1112/09/ZC.


NOTE

: Sydney Water’s guidelines provide for assumed concurrence for the strata subdivision of a development approved by an earlier DA covered by a compliance certificate.

      Submission of a compliance certificate confirming satisfactory arrangements have been made for the provision of electrical services. This includes the under-grounding of electrical services where directed by the relevant service provider. This must include street lighting for newly proposed roads and the provision of a hinged lighting column in any proposed pedestrian pathway links.

      The certificate must refer to all of the lots created and Development Consent DA 1112/09/ZC.

      Submission of a compliance certificate issued by the relevant telecommunications provider authorised under the Telecommunications Act confirming satisfactory arrangements have been made for the provision (or relocation) of telecommunication services including telecommunications cables and associated infrastructure. This includes the under-grounding of aerial telecommunications lines and cables where directed by the relevant telecommunications carrier.

      The certificate must refer to all of the lots created and Development Consent DA 1112/09/ZC.

      Should the strata subdivision certificate be issued by a certifier other than Council the following information must be submitted to Council within seven (7) days following the issue of such:

      a) A copy of the strata certificate;
      b) A soft copy of the subdivision on disk (in AutoCAD “.DWG” format);
      c) A copy of the Section 88B instrument (where applicable);
      d) Copies of all issued service authority certificates;
      e) A letter from the certifier confirming all conditions of this consent have been complied with.

The final plan and 88B Instrument must provide for the following:


(a) Restriction – Occupation of Seniors Living


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




Annexure ‘A’

Conditions of Consent

Premier Holdings Corporation Pty Ltd v The Hills Shire Council

12 August 2010



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

      The amendments in red relates to the provision of two (2) additional trees within each courtyard area which adjoins the golf course. The extension of the existing retaining wall to be constructed along the northern boundary of the site is to be a split face block retaining wall to match the existing section of the wall.

      The existing common facilities provided within the village are to be available for residents of this development at all times. Services available on site such as meals, cleaning services, personal care and nursing care shall be in accordance with arrangements for the existing village.

REFERENCED PLANS AND DOCUMENTS

DRAWING NO. DESCRIPTION SHEET ISSUE
A1.1
Cover Sheet
08-280
E
A1.2
Site Layout/Site Analysis
08-280
E
A1.3
Site Plan
08-280
E
A1.4
Site Elevations 1
08-280
E
A1.5
Site Elevations 2
08-280
E
A1.6
Sections
08-280
E
A1.7
Parking Basement
08-280
E
A1.8
Building 1 Plans
08-280
E
A1.9
Building 2 Plans
08-280
G
A1.10
Building 3 Plans
08-280
E
A1.11
Building 4 Plans
08-280
E
A1.12
Villa Plans and Elevations
08-280
E
A1.13
Garbage Bay Plan and Elevations
08-280
E
A1.14
Landscape Plan
08-280
E2
A1.15
Shadow Diagrams
08-280
E
A1.16
Colour Selections (for Apartments)
08-280
E
LP01
Landscape Plan
Sheet 1
Issue A (Leuchars Partners, Landscape Architects)

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

      (a) The following kinds of people only may occupy a dwelling:
          i. Seniors or people who have a disability;
          ii. People who live within the same household with seniors or people who have a disability; or
          iii. Staff employed to assist in the administration of and provision of services to the dwellings
      (b) The following meanings apply in (a) above:
          Seniors are people aged 55 or more years, people who are resident at a facility at which residential care (within the meaning of the Aged Care Act 1997 of the Commonwealth) is provided and / or people who have been assessed as being eligible to occupy housing for aged persons provided by a social housing provider.
          People with a disability are people of any age who have, either permanently or for an extended period, one or more impairments, limitations or activity restrictions that substantially affect their capacity to participate in everyday life.
      (c) A restriction as to user must be registered in accordance with section 88E of the Conveyancing Act 1919 over Lots 90 and 91 SP 77284 which restricts the occupation of any dwelling to the kinds of people referred to in (a) defined in (b) above. The terms of the restriction as to user are to be approved by Council in writing prior to registration. The Council shall be the party who has the right to modify or extinguish the restriction.

          This requirement for registration is to be satisfied prior to the issue of an occupation certificate.
      Development consent (no. 85/915) granted 17 January 1990 as modified (no. 2104/01/HA on 23 March 2001) shall be modified by this consent in relation to the land of Lots 90 and 91 SP 72284 pursuant to section 80A(1)(b) and (5) of the Environmental Planning and Assessment Act by the lodgement with the Council of a notice of modification in accordance with clause 97 of the Environmental Planning and Assessment Regulations 2000 prior to the issue of a occupation certificate.
      (i) External finishes and colours for the apartment style buildings shall be in accordance with the details submitted with the development application and approved with this consent.
      (ii) External finishes for the two (2) villas are to match the existing villa located on Lot 90 in regard to brick and roof colours.

      Prior to construction of the approved development, it is necessary to obtain a Construction Certificate. A Construction Certificate may be issued by Council or an Accredited Certifier. Plans submitted with the Construction Certificate are to be amended to incorporate the conditions of the Development Consent.
      All building work must be carried out in accordance with the provisions of the Building Code of Australia.
      All trees planted as part of the approved landscape plan are to be minimum 75 litre pot size. All shrubs planted as part of the approved landscape plan are to be minimum 200mm pot size.
      All garden areas shall be planted with groundcovers at a rate of 5/m².
      To maintain the treed environment of the Shire, those trees as shown for retention on Landscape Plan Drawing No A1.14 Issue B prepared by Stephen Menzies Architects and dated 25/09/09 are to be retained.
      A separate development application must be submitted to Council for any proposed strata titled subdivision of the approved development.
      The design and construction of all the minor engineering works outlined below must be provided for in accordance with:
      (a) BHSC Design Guidelines Subdivisions/ Developments (June 1997)
      (b) BHSC Works Specifications Subdivisions/ Developments (November 2001)
      NOTE: Works on existing public roads or reserves and any land under the care and control of Council must be approved and inspected by Council (including payment of all applicable fees) in accordance with the Roads Act 1993 and/ or the Local Government Act 1993.
          (a) Concrete footpath 1.5m wide across the frontage of buildings 3 and 4 linking Longview Place from the west to the existing clubhouse car parking area.
          (b) Concrete footpath 1.25m wide across the Spurway Drive frontage of buildings 1 and 2 linking Eagleview Place to Castle Pines Drive and also linking to the existing clubhouse car parking area.
          Medium duty gutter and footpath crossings at all points of vehicular access (Spurway Drive and Eagleview Place).
          (a) The entire site area must be graded, collected and drained by pits and pipes to a suitable point of legal discharge. Site stormwater drainage is to be provided based on a 1:10 year ARI storm event and connected to the existing stormwater drainage system.
          (b) A 450mm square stormwater pit is to be located at the low point in the front yard, Eagleview Place, of the existing villa (Unit No. 39) and piped to the existing stormwater pit in Eagleview Place. The yard is to be graded to the new grated pit and secondary flow path to be provided.
      The formation, surfacing and drainage of all vehicular access and parking areas is required. The design and construction of all vehicular access and parking areas must comply with:
      (a) AS/ NZS 2890.1:2004 – Parking facilities – Part 1: Off-street car parking
      (b) AS 2890.2:2002 – Parking facilities – Part 2: Off-street commercial vehicle facilities
      (c) BHDCP Part D Section 1 – Parking
      NOTE: Where conflict exists the Australian Standard(s) must be adopted.

The following must be provided:

      i. All internal car parking spaces and access roads must be prominently and permanently line marked, signposted and maintained to ensure entry and exit is in a forward direction at all times and that parking and traffic circulation is appropriately controlled.
      ii. All access roads and car parking areas are to be separated from landscaped areas by a concrete kerb or wall.
      The development must provide at least two mini bus trips to neighbouring shops, community facilities each day, and/or that the regular bus services along Windsor Road past the development will be diverted into the Retirement Village.
      The design certification and construction approval of the engineering works nominated later in this consent require separate approval prior to the commencement of any works as follows:
      (a) Works on existing public roads or reserves and any land under the care and control of Council require an Engineering Construction Certificate (ECC) in accordance with the Roads Act 1993 and/ or the Local Government Act 1993. This includes the construction of new roads which are to be dedicated as public road.

: An ECC can only be issued by Council.

      (b) All other engineering works associated with the building approval must be approved by either Council or an Accredited Certifier. This certification must be included with the documentation approved as part of any Construction Certificate.
          The designer of the engineering works must be qualified, experienced and have speciality knowledge in the relevant field of work.
          NOTE: A Design Compliance Certificate (DCC) certifying the detailed design of the OSD system can be issued by Council.
      For Council to issue either a ECC and/ or a DCC the following must be provided:
      i. A completed application form;
      ii. Four (4) copies of the design plans and specifications;
      iii. Payment of the appropriate application fee;
      iv. Payment of the appropriate inspection fee(s); and
      v. Payment of a suitable bond for any required security bonds.
      The Waste Management Plan submitted to and approved by Council must be adhered to at all stages in the demolition/construction/design of facilities and on-going use phases. All waste material nominated for recycling must be reused or recycled. Any material moved offsite is to be transported in accordance with the requirements of the Protection of the Environment Operations Act (1997) and only to a place that can lawfully be used as a waste facility. Dockets/receipts verifying recycling/disposal must be kept and presented to Council when required.
      The use of the premises, building services, equipment, machinery and ancillary fittings shall not give rise to “offensive noise” as defined under the provision of the Protection of the Environment Operation Act 1997. The sound level output shall not exceed 5 dB(A) above the ambient background level at the closest neighbour’s boundary.
      The reuse and recycling of waste materials must be maximised during construction. The separation and recycling of the following waste materials is required:
      (a) Masonry products (bricks, concrete, concrete roof tiles) to be sent for crushing/recycling;
      (b) Timber waste to be separated and sent for recycling;
      (c) Metals to be separated and sent for recycling;
      (d) Clean waste plasterboard to be returned to the supplier for recycling (excluding plasterboard from demolition); and
      (e) Mixed waste (plastic wrapping, cardboard etc) to be sent to a licensed recycling or disposal facility.
      This can be achieved by constructing a minimum of five trade waste compounds on-site. Each waste compound must be adequately sized to enclose the waste. Alternatively, mixed waste may be stored in one or more adequately sized waste compounds and sent to a waste contractor/waste facility that will sort the waste on their site for recycling . Waste must be adequately secured and contained within designated waste areas and must not leave the site onto neighbouring public or private properties. Personal waste must not litter the site. Copies of actual weighbridge receipts verifying recycling/disposal must be kept and presented to Council when required.
      Waste and recycling material, generated by the premises, must only be collected between the hours of 6am and 10pm except for Sundays and public holidays, where collection shall be between 8am and 10pm.
      Stockpiles of topsoil, sand, aggregate, spoil or other material capable of being moved by water, to be stored clear of any drainage line, easement, natural watercourse, footpath, kerb or roadside.
      The disposal / landfill of surplus excavated material, other than to a DECC licensed facility, is not permitted without formal approval from Council prior to the commencement of works. Any unauthorized disposal of waste, which includes excavated material, is a breach of the Protection of the Environment Operations Act 1997 and subject to substantial penalties. Unless Council approves an alternate site, then all surplus excavated material must be disposed of at a licensed waste facility. Copies of actual weighbridge receipts verifying recycling/disposal must be kept and presented to Council when required.
      Any lighting on the site shall be designed so as not to cause a nuisance to other residences in the area or to motorists on nearby roads and to ensure no adverse impact on the amenity of the surrounding area by light overspill. All lighting shall comply with the Australian Standard AS 4282:1997 The Control of Obtrusive Effects of Outdoor Lighting and Schedule 3 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Amdt 2007) .
      The responsibility for property numbering is vested solely in Council .

The property and mailing addresses for this development will be:-

      Units 1-46 / 101 Spurway Drive Baulkham Hills NSW 2153 refer below:

      Please note that the units are to be numbered consecutively by building and NOT as per submitted plans.
      Building 1 Units 1-12
      Building 2 Units 13-24
      Building 3 Units 25-35
      Building 4 Units 36-46
      The 2 Proposed Villas will have Primary and Mailing addresses of:
      119 & 120 Eagleview Drive Baulkham Hills NSW 2153 (Note that the most easterly will be numbered 120 Eagleview)

      The Street, Unit and Villa Numbers must be clearly displayed at the front of the properties to assist emergency service providers locate a destination with ease and speed, in the event of an emergency. A location plan showing positioning of all Units must be installed at the main entrance to the complex. Clear and accurate signage must be displayed at all lift entrances, underground parking areas and on each building.

      bay structure. Letterboxes for the apartments and villas are to be incorporated into the garbage
      Australia post requires there be one (1) single group of cluster mail boxes. Should more than one (1) cluster be required, contact Australia Post for their approval. The number of mail boxes be provided is to be equal to the number of flats/units/townhouses/villas etc. plus one (1) for the proprietors. Mail boxes are to have a minimum internal dimension of 230mm wide x 160mm High x 330mm long and are to be provided with an opening of 230mm x 30mm for the reception of mail.
      Strata by-laws are to be prepared which provide that building services such as all equipment forming part of and associated with air-conditioning equipment, security screens, lifts, fire protection, equipment, sump equipment, garage exhaust system and lights are to be for the exclusive use and enjoyment of the lot owners for the time being and that such owners and not the Owners Corporation SP 44999, are responsible for all fees associated with such services and the maintenance, repair and replacement of these services. The by-laws to this effect must be registered with the Department of Lands prior to the issue of an Occupation Certificate.
      The following conditions are required by the NSW Police Service or as otherwise agreed by the NSW Police and Council in writing:
      (i) Lighting is required to meet minimum Australian Standards to ensure safety by improving visibility and detection of offenders. Special attention should be given to lighting for the entry/exit points from the building, carpark and driveway areas. Site transition lighting is needed to reduce vision impairment ie: walking from light to dark places.
      (ii) Landscape works are to be maintained at all times to minimise concealment and entrapment opportunities.
      (iii) Police support the use of security shutters at the vehicle entrance to each of the basement carpark areas.
      (iv) The basement carpark be painted white to reflect light.
      (v) The site is to be clean and maintained at all times, including repair of vandalism and graffiti, replacement of carpark lighting and general site cleanliness.
      (vi) Many graffiti vandals favour porous building surfaces, as ‘tags’ are difficult to remove and often a ghost image will remain even after cleaning. Easily damaged building materials may be less expensive to purchase initially, but their susceptibility to vandalism can make them a costly proposition in the long term, particularly in at-risk areas. Playgrounds can also be a target for arson attacks. These matters should be considered when selecting materials for construction of the playground.
      (v) It is recommended that:
          all authorised staff are allocated access cards to provide activation of security shutters to basement area and lobbies.
          CCTV should be used to monitor common areas, lobbies, driveways and basement carparks to ensure resident safety.
          sensor lights and a security company be used during construction of the works.
          a sign be placed identifying the vehicle access into the site.
      Construction of the garbage and recycling bin storage area(s) is to be in accordance with ‘The Hills Shire Council Storage Facility Design Specifications’. Storage facility is to be provided for a minimum of five (5) 1,100L bulk garbage bin(s) (collected weekly) and twenty (20) 240L recycling bins (emptied fortnightly).
      Council will provide each villa with a minimum of one 140 litre garbage bin (emptied weekly), one 240 litre recycling bin (emptied fortnightly) and one 240L garden organics bin (emptied fortnightly). Storage of the bins allocated to each unit is to be:

i within the lot boundary of each unit;


ii. incorporated into the landscape design of each unit;


iii. screened and not visible from the street;


      Garbage and recycling bins are to be ordered no earlier than (3) days prior to occupancy of the development. The bins are to be ordered by the property owner or agent acting for the owner by calling Council’s Domestic Waste Line on Ph 1800 623 895.

      (a) Window and door glazing which faces the golf course of the apartment style units is to be toughened glass to mitigate potential damage from golf balls. Details are to be provided prior to the issue of a Construction Certificate.

(b)


      Trailing plants are to be provided along the full length of the northern site boundary to cascade over and satisfactorily screen the existing and the proposed retaining wall. The plant species are to include Grevillea (Royal Mantel), Helichrysun Petiolare, Juniper Conferta and Trachelospermun Jasminoides.
      The deep soil planting garden beds along the full length of the northern site boundary as shown on the landscape plan referred to in Condition 1 are to be planted with screen trees, shrubs, groundcover and trailing plants with a minimum width of 2.0m inclusive of the concrete block retaining wall along the site boundary and the hedge screen planting is to match the fence height .
      All large screen trees along the northern boundary are to be evergreen and in this regard the Pyrus calleryana "Bradford" and "Cherry Walk" shown in drawing No LP01 is to be replaced with Syzygium leuhmannii (Riberry); Elaeocarpus eumundii (Eumundi Quandong) or Allocasuarina littoralis (Black Sheoak) and Drawing No LP01 amended prior to the release of the Construction Certificate..
      The submission of documentary evidence to the Certifying Authority, including a Notice of Requirements, from Sydney Water Corporation confirming that satisfactory arrangements have been made for the provision of water and sewerage facilities.
      Following an application a “Notice of Requirements” will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Co-ordinator, since building of water / sewer extensions can be time consuming and may impact on other services and building, driveway and landscape design.
      For all basement car parking areas, stormwater pump-out system is required to be provided in accordance with the following:
      (a) A holding tank sized to store the run-off from a 1:100 year ARI (12 hour) storm event;
      (b) A two pump (alternating) system capable of emptying the holding tank at the lowest of either the Permissible Site Discharge (PSD) rate or the rate of inflow for a 1:5 year ARI (5 hour) storm event;
      (c) An alarm system to alert a pump failure;
      (d) 100.0mm freeboard to all nearby parking spaces;
      (e) The system must be connected to the Onsite Stormwater Detention (OSD) system before being discharged to the street (under gravity).
      All relevant plans, calculations, hydraulic details and manufacturer specifications for the pump(s) must be submitted along with certification from the designer to ensure the design complies with the above requirements.

Prior to the issue of the Construction Certificate:

      • a report prepared by a suitably qualified Access Consultant accredited by the Association of Consultants in Access Australia ( ) shall be submitted to Council or the Certifying Authority demonstrating the developments compliance with the provisions of relevant provisions of Schedule 3 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Amdt 2007) on development standards concerning access and useability.
      • the submission to Council of plans reviewed by an Access Consultant regarding the relocation and reconstruction of a pedestrian footpath and kerb ramps from the development to the intersection of Spurway Drive and Windsor Road generally as shown in drawing entitled CP Path Reconstruct dated June 2010 and in accordance with Clause 26 of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Amdt 2007); and
      • the submission to Council or the certifying authority of suitable documentary evidence that the Owners’ Corporation No SP 44999 has granted consent to the carrying out of the works on behalf of the Owners Corporation on the common property, in particular the reconstruction (rectification) of the non compliant Reconstruct dated June 2010.pathway to Windsor Road as shown in drawing entitled CP Path
      Draft copies of all legal documents (deed of agreement, request documents, etc;) where required as part of this consent shall be submitted to Council for checking prior to the issue of a Construction Certificate.
      Submission of an Erosion and Sediment Control Plan to the Principal Certifying Authority, including details of:

(a) Allotment boundaries


(b) Location of the adjoining roads


(c) Contours


(d) Existing vegetation


(e) Existing site drainage


(f) Critical natural areas


(g) Location of stockpiles


(h) Erosion control practices


(i) Sediment control practices

      (j) Outline of a maintenance program for the erosion and sediment controls
      (NOTE : For guidance on the preparation of the Plan refer to ‘Managing Urban Stormwater Soils & Construction’ produced by the NSW Department of Housing).
      An acoustic statement is required to be submitted prior to the issue of the Construction Certificate ensuring the following is achieved:
      (a) The L 10 (20 minute) internal noise level with windows and external façade doors closed shall not be greater than 40 dB(A).
      (b) The L 10 (20 minute) internal noise level, with windows and external façade doors normally open, shall be less than 50 dB(A)
      The requirements of (b) may be equally satisfied by the alternative provision of either a mechanical or natural ventilation system or a special acoustic design solution as approved by Council.
      Drawing No A1.10E and Drawing No a1.11E A are to be amended prior to the issue of the construction certificate by including a fixed privacy screen along the western side of the balconies to apartments 3.2 and 3.8 and 4.1 respectively so as to provide further safety screening from errant golf balls.
      The trees that are to be retained are to be protected during all works with 1.8m high chain wire fencing which is to be erected at least three (3) metres from the base of each tree and is to be in place prior to works commencing to restrict the following occurring:
      Stockpiling of materials within the root protection zone,
      Placement of fill within the root protection zone,
      Parking of vehicles within the root protection zone,
      Compaction of soil within the root protection zone.
      All areas within the root protection zone are to be mulched with composted leaf mulch to a depth of not less than 100mm.
      The installation of services within the root protection zone is not to be undertaken without consultation with Council’s Tree Management Officer.
      A Traffic Control Plan (TCP) is required to be prepared and submitted in strict compliance with the requirements of the current Australian Standard 1742.3 (Traffic Control Devices for Works on Roads) and the current RTA Traffic Control and Work Sites Manual. The persons preparing the TCP must have the relevant RTA accreditation to do so.
      NOTE: Where subsequent amendments to the approved TCP are required, a new plan shall be prepared and submitted to Council prior to implementation.
      Erosion and sedimentation controls shall be in place prior to the commencement of site works; and maintained throughout construction activities until the site is landscaped and/or suitably revegetated. The controls shall be in accordance with the details approved by Council and/or as directed by Council Officers. These requirements shall be in accordance with Managing Urban Stormwater – Soils and Construction produced by the NSW Department of Housing (Blue Book).
      A stabilised all weather access point is to be provided prior to commencement of site works, and maintained throughout construction activities until the site is stabilised. The controls shall be in accordance with the requirements with the details approved by Council and/or as directed by Council Officers. These requirements shall be in accordance with Managing Urban Stormwater – Soils and Construction produced by the NSW Department of Housing (Blue Book).
      A copy of the Erosion and Sediment Control Plan must be kept on site at all times during construction and made available to Council officers on request.
      Applicants are advised to consult with Telstra and Australia Post regarding the installation of telephone conduits and letterboxes respectively.
      Unimpeded access must be available to the electricity supply authority, during and after building, to the electricity meters and metering equipment.
      The building plans must be submitted to the appropriate Sydney Water office to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements. If the development complies with Sydney Water’s requirements, the building plans will be stamped indicating that no further requirements are necessary.

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

      dust screens must be erected around the perimeter of the site and be kept in good repair for the duration of the work;
      all dusty surfaces must be wet down and any dust created must be suppressed by means of a fine water spray. Water used for dust suppression must not be allowed to enter the street or stormwater system;
      all stockpiles of materials that are likely to generate dust must be kept damp or covered.

Work on the project to be limited to the following hours: -

      Monday to Saturday - 7.00am to 5.00pm ;
      No work to be carried out on Sunday or Public Holidays.
      The builder/contractor shall be responsible to instruct and control sub-contractors regarding the hours of work. Council will exercise its powers under the Protection of the Environment Operations Act, in the event that the building operations cause noise to emanate from the property on Sunday or Public Holidays or otherwise than between the hours detailed above.
      Under clause 97A of the Environmental Planning and Assessment Regulation 2000 it is a condition of this development consent that all commitments listed in BASIX Certificate No. 224540M be complied with
      A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. from Sydney Water Corporation.
      Application must be made through an authorised Water Servicing Co-ordinator. Please refer to the Building Development and Plumbing section of the web site and then refer to Water Servicing Co-ordinator under “Developing Your Land” or telephone 13 20 92 for assistance.
      Prior to the issue of the Occupation Certificate, a report prepared by a suitably qualified Access Consultant accredited by the Association of Consultants in Access Australia ( ) shall be submitted to Council or the Certifying Authority demonstrating the developments compliance with the provisions of relevant provisions of the State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 (Amdt 2007) on development standards concerning access and useability.
      The landscaping of the site being carried out prior to issue of the Occupation Certificate in accordance with the approved plan. All landscaping is to be maintained at all times in accordance with BHDCP Part D, Section 3 – Landscaping.
      A final inspection shall be carried out to ensure compliance with all the conditions of the Development Consent, prior to the issue of an Occupation Certificate. Such certificate shall be issued prior to the occupation/use of the units and villas.
      The strata by-laws required to be created by condition of consent are to be registered with the Department of Lands prior to the issue of an Occupation Certificate. A copy of the registered documents is to be submitted to Council.
      The construction of the stormwater pump-out system (where carried out) shall be certified as complying with the approved design by a suitably qualified hydraulic engineer.
          The submission to Council for endorsement of all necessary documentation together with the relevant endorsement fee prescribed in Council’s Schedule of Fees and Charges for the creation of the following over the title of the property:
              A positive covenant to ensure on-going maintenance of the stormwater pump-out system is carried out at six (6) monthly intervals (minimum). The wording must specifically indemnify Council from all costs associated with the maintenance of the system.
              NOTE: The wording of the above must nominate The Hills Shire Council as the authority to release, vary or modify such.
              A restriction as to user restricting the use or occupation of any dwellings for housing for older people or people with a disability as required by Condition 2.
          The endorsed request documents must be lodged with the NSW Department of Lands and a copy of the registered documents submitted to Council.
          NOTE: An updated title search document will NOT suffice. A copy of the actual endorsed document(s) must be submitted to satisfy this requirement.
      All allotments included in this consent must be consolidated into a single property title prior to the issue of an Occupation Certificate. A copy of the registered plan must be submitted to Council as evidence of consolidation upon registration.
      The notice of modification required by condition 2A of this consent shall be lodged with the Council in accordance with clause 97 of the Environmental Planning and Assessment Regulations 2000 prior to the issue of the Occupation Certificate.
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