Rasko Holdings Limited v Burwood Council

[2005] NSWLEC 333

Land and Environment Court

of New South Wales

CITATION:	Rasko Holdings Limited v Burwood Council [2005] NSWLEC 333
PARTIES:	APPLICANT: Rasko Holdings Limited (ACN 000 984 878) RESPONDENT: Burwood Council
FILE NUMBER(S):	10137 of 2005
CORAM:	Watts C at 1
KEY ISSUES:	Development Application :- Alter and add to nursing home Side setbacks Landscaped area Building height at the rear
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 ss 79C 97 - Burwood Planning Scheme Ordinance, (BPSO) - State Environmental Planning Policy (Seniors Living) 2004, (SEPP (Seniors Living))
CASES CITED:	Arminella Pty Limited v Ryde City Council [1999] NSWLEC 237 - Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported) - Winten Property Group Limited -v- North Sydney Council, [2001] NSWLEC 46
DATES OF HEARING:	15/06/2005
DATE OF JUDGMENT:	06/23/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr G Newport, barrister instructed by Mr P Kapetas, solicitor SOLICITORS: Tzovaras Legal RESPONDENT: Mr C J Leggat, barrister instructed by Ms L R Finn, solicitor SOLICITORS: Abbott Tout Lawyers

JUDGMENT:

Appeal No: 10137 of 2005

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

23 June 2005

10137 of 2005 - Rasko Holdings Limited v Burwood Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Burwood Council (the council) of a development application to alter and add to the existing ‘Goondee’ nursing home to accommodate sixty-three (63) residents in lieu of the existing registered forty-nine (49) at Lot 1, DP 717609, being No 13 Jersey Road, Strathfield.
2 I visited the land in company with the parties on the morning of the hearing, when the town planning experts explained the proposal and its impacts.
3 I have concluded that the application should succeed when considered under s 79C of the Environmental Planning and Assessment Act 1979 .

The land
4 The land is situated on the northern side of Jersey Road. It is rectangular in plan with a frontage to Jersey Road of 36.07m, a depth of 54.865m and an area of some 1,979m2. The land falls about 1.3m from the Jersey Road frontage towards the rear. Thus stormwater disposal is difficult and as no easement has been obtained through the down stream property a pump-out system is proposed to replace the existing pump-out stormwater system.
5 Erected on the land is a part single-storey and part two-storey building located on the western portion of the land near No 15 Jersey Road. The eastern portion of the land is used partially for parking, as an ambulance access and landscaped area. The existing building is set back around 12.17m from the Jersey Road frontage, 350mm at the kitchen and otherwise around 3.3m from the western boundary, 740mm from the northern boundary, and around 14.3m from the eastern boundary, [Note: Survey Exhibit A].
6 The Jersey Road frontage and eastern boundary are presently well landscaped. There is a large Camphor laurel tree around 20m high near the rear boundary. Apparently, a sewer pipe runs parallel to and near the rear boundary under this tree.
7 Jersey Road comprises a mix of residential uses, a school, a church and dwelling houses. Nearby, to the north and the west (at No 17 Jersey Road) is Santa Sabina Convent and College, comprising two-storey and three-storey buildings. At No 15 Jersey Road to the west of the land there is a single-storey dwelling house. To the east of the land is an accessway around 6m in width that links to the college’s delivery and staff parking area. Further to the east at No 9 Jersey Road is a dwelling on a large parcel of land. To the south of the land, across Jersey Road are single-storey and two-storey buildings and the Chinese Seventh-Day Adventist Church. At No 12 Jersey Road is an aged care facility.

Relevant planning controls

Burwood Planning Scheme Ordinance, (BPSO)
8 Under the provisions of the BPSO, the land is zoned Residential 2(a) and the proposal is permissible with consent as a two-storey aged persons facility. It is also permissible as a ‘residential care facility’ with consent under State Environmental Planning Policy (Seniors Living) 2004, (SEPP (Seniors Living)). Residential care facility is defined in SEPP (Seniors Living) as:

…a ‘residential care facility’ is residential accommodation for seniors or people with a disability that includes:
(a) meals and cleaning services, and
(b) personal care or nursing care, or both, and
(c) appropriate staffing, furniture, furnishings and equipment for the provision of that accommodation and care,
not being a dwelling, hostel, hospital or psychiatric facility.

9 Under that instrument there would be a single-storey limit at rear 25% of the site.
10 Under SEPP (Seniors Living), other requirements are those related to:
· parking -1 space per 10 dwelling/ beds and 1 space per 2 employees;
· amenity and streetscape;
· solar access;
· privacy;
· disabled access – accessibility;
· stormwater disposal;
· crime prevention; and
· waste management. 11 The subject site is not listed as a local heritage item and is not within a conservation area.
12 Santa Sabina Convent and College and its grounds, located to the north and west of the subject land, is listed as a heritage item, under Burwood Local Environmental Plan No 19 , (BLEP19). Of importance is the Santa Sabina Convent building façade, the former Sydney Bank building and the original main convent building on The Boulevarde. No issue was raised of any state or regional heritage significance and thus no referral was made to the Heritage Council of NSW under cl 24 of SEPP (Seniors Living).

The proposal and its history
13 Development application No D 259/2000 was lodged with the respondent council on 2 September 2004, to alter, add and to expand the operation from the existing registered forty-nine (49) resident nursing home at the land to accommodate sixty-three (63) residents.
14 The part single-storey and part two-storey additions would be sited around a central courtyard, with around this courtyard, first floor terraces. The proposed floor space ratio (FSR) would be 1.01:1 (with the basement included), of which the FSR for the ground and first floor levels would be 0.95:1.
15 A basement car parking level is proposed to accommodate eleven (11) cars, a loading/unloading bay, a kitchen with storage rooms and staff amenities. Two car parking spaces are also proposed at ground level.
16 The maximum height of the new additions would be 8m, compared with the existing two-storey portion of a height of 9.2m.
T17 The setbacks to the Jersey Road frontage would be around 11.5m maintaining the existing front setback of 11.5m minimum dimension from the street to the projecting columns or 12.17m to the wall. The proposed setbacks to the eastern boundary would be 1.5m and to the western boundary at ground floor level of 0.975m-1.275m and on the first floor level of 3.3m-5m. The proposed setback to the northern boundary and to Santa Sabina College would be 740mm, as presently exists, [Note: Survey Exhibit A].

Notification
18 The application was notified to nearby owners and occupants between 15 to 28 September 2004 and the council received eight submissions and a petition.
19 On 28 September 2004, the council notified the applicant/architect that the stormwater concept plans were unsatisfactory.
20 On 16 November 2004, the applicant's solicitors advised the council that the adjoining college had been approached to seek a drainage easement for stormwater disposal. A further letter was received advising that the college had refused to grant an easement.
21 On 3 December 2004, the council notified the applicant that the proposal would not comply with the SEPP (Seniors Living) in regard to the FSR, landscaped area, excessive bulk, unsatisfactory stormwater concept plans and height at rear. The architect was notified on 10 December 2004.
22 On 21 February 2005, the applicant's solicitor requested the council to determine the application as submitted.

The council’s decision
23 When the appeal was filed on 23 February 2005, the council had not determined the application.
24 However, on 12 April 2005, the council formally refused the application on the following grounds:
1. The variations to the development standards relating to FSR and Landscaped area contained in the Seniors Living Policy.
2. The proposal is considered an overdevelopment of the site.
3. The overall bulk of the proposal is excessive, given the width and length of the proposal and inadequate setbacks from the side and rear boundaries.
4. The proposed landscaped area is inadequate for the recreational use of the occupants, visitors and staff.
5. Solar access for residents of the proposal is not considered sufficient in view of the location of the landscaped area as proposed.
6. Access to the landscaped areas, in particular to the front courtyard and courtyards along the western and northern boundaries, is restricted and not satisfactory.
7. The proposal does not satisfy the following development criteria and design requirements of SEPP (Senior Living) 2004:
(a) Clause 31(c)(i) and (ii) in that the proposal does not provide adequate side and rear setbacks to reduce the bulk and scale of the additions.
(b) Clause 34 - The proposed stormwater concept plans do not satisfy Council's Technical Services & Operations Division and the Stormwater Management Code.
(c) Clause 38(4)(c) - The rear of the west wing is 8m in length in excess of the allowed one (1) storey height permitted in the rear 25% portion of the site and has significant bulk.
(d) Clause 79(b) - The proposed FSR of the development at 1.01:1 exceeds the allowable FSR of 1:1 set out in the SEPP.
(e) Clause 79(c) - The landscaped area does not satisfy the minimum

requirement of 25m2 per bed, and as such is not acceptable.
8. The loading/unloading bay size and the location of the ambulance bay are unsatisfactory and do not comply with Council's DCP No. 22 – Car Parking.

The hearing
25 The appeal was filed on 23 February 2005 on the basis of a deemed refusal.
26 At the hearing the court received written evidence on behalf of the respondent council from:
· Mr M Sue, town planner; and
· Mr P Cormican, hydraulic engineer.

27 On behalf of the applicant written evidence was tendered by:
· Mr G Shiels consultant town planner;
· Mr M Boudib consulting engineer; and
· Ms N Chadwick, aged care consultant.

28 Messrs Shiels and Sue prepare a joint statement on several of the issues in dispute, [Note: Exhibit 8].

The issues
29 On 17 March 2005 the council filed a statement of issues.
1. SEPP (Seniors Living) 2004

The proposal does not satisfy the following development criteria and design requirements of SEPP (Seniors Living) 2004:
(a) Clause 31(c)(i) and (ii) in that the proposal does not provide adequate side and rear setbacks to reduce the bulk and scale of the additions.
(b) Clause 34. The proposed stormwater concept plans do not satisfy Council's Engineering Services and The Stormwater Management Code.
(c) Clause 38(4)(b). The rear of the west wing is 8 metres in excess of the allowed one storey height and has significant bulk.
(d) Clause 79(b). The proposed FSR is 1.05:1 [now 1.01:1] in excess of 1:1.
(e) Clause 79(c). The landscaped area does not satisfy the minimum of 25m2 per bed and is therefore not acceptable.
2. Bulk
The overall bulk of the proposal is excessive due to the width and length of the proposal and inadequate setbacks from side and rear boundaries.
3. Landscaped Area
(a) The proposed landscaped area is inadequate for the recreational use of the occupants, visitors and staff.
(b) Access to the landscaped areas, in particular the front courtyard and courtyards along the western and northern boundaries is restricted and unsatisfactory. 4. Traffic/ Parking:
(a) The size of the loading/unloading bay is unsatisfactory.
(b) The location of the ambulance bay is unsatisfactory. 5. Overdevelopment:
In view of the above the proposal is considered to be an overdevelopment of the site.

30 The salient issues were the side setbacks, landscaped area and building height at the rear.

The evidence and findings

Building setbacks
31 Under cl 31 of the SEPP (Seniors Living), under the heading of neighbourhood amenity and streetscape:

The proposed development should:

(a) recognise the desirable elements of the location’s current character…
(b) retain, complement, and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and
(c) maintain reasonable neighbourhood amenity and appropriate residential character by:
(i) providing building setbacks to reduce bulk and overshadowing, and
(ii) using building form and siting that relates to the site’s land form, and
(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and
(iv) considering where buildings are located on the boundary, the impact of the boundary walls on neighbours, and
(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and
(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and
(f) retain wherever possible major existing trees, and
(g) …

32 Messrs Sheils and Sue in a joint statement agreed there are no numeric requirements for side and rear boundary setbacks contained in SEPP (Seniors Living), [Note: Exhibit 8 p 1].
33 Mr Sue, the council’s town planning expert, was of the opinion that the proposed setbacks would be inadequate when compared with setbacks required under the council’s planning controls for residential flat buildings in the area. He was particularly concerned with compliance with cl 31(c)(ii) of the SEPP (Seniors Living) and stated:
The development has the bulk and form of a residential flat development and greater setbacks from the boundaries is expected, in comparison with the setbacks for a dwelling house. The setbacks provide additional screening of the building and reduce the overall bulk. Where existing wall setbacks are maintained (along the western and northern boundaries), no objections are raised, however, the proposed development intends to reduce the setback along the western boundary at the ground level, for additional accommodation. The wall along the northern boundary is extended, and to retain the existing setback is not considered acceptable, in terms of the bulk and siting of the works.

34 Mr Shiels, the applicant’s expert, was of the opinion that the council’s setback requirements for residential flat buildings should not be applied to the present application. In the absence of any specific controls under the SEPP (Seniors Living), he suggested that the setbacks should be considered in the context of the adjoining and surrounding development. He referred to the Santa Sabina Convent and College as comprising a two-storey and three-storey development located some distance from the northern boundary of the land. He referred to other landmarks in the vicinity of the land and concluded that:
My opinion is that the proposed side and rear setbacks are appropriate in the context of surrounding development.

35 Mr Leggat, counsel for the respondent, submitted that having regard for the aim of SEPP (Seniors Living) and in particular, “(b) setting out design principles that should be followed…” cl 31 and other design principles set out in Division 2 are included to ensure that development ‘fits in’ with the residential character of the area. He submitted, on this basis that the proposed development fails to maintain an appropriate residential character because the applicant in this proposal seeks to span almost the entire width of a very wide site and as a result it fails to reduce bulk and to provide the necessary building setbacks. He also referred to the applicant’s concession that the width of the proposal would be unique in the street.
36 Mr Newport, counsel for the applicant, submitted, that although the size of the proposal would be greater than the existing building and others in the street, architectural features have been introduced into the design to reduce visual bulk. He pointed to the fact that the proposal largely complies with a floor space ratio, FSR of 1:1 and in order to provide for “adequate internal amenity” and there must be a joining of the existing building with the new, to provide for two wings and this by inference would bring the proposal closer to the side boundaries.
37 He submitted that based on the evidence of Mr Shiels, [Note: Exhibit D p 17] that when viewed from the street it presents as a “…cohesive and articulated façade, which is supplemented by considerable landscaping”. He submitted that the proposal would have a more than satisfactory appearance in the streetscape.
38 I am satisfied that viewed from the street, the façade of the proposal would be sufficiently articulated to break down the scale and harmonise it with adjoining and nearby properties. At the front the setback of the existing would be maintained with the new section and thus I am satisfied that it would be consistent with the requirements of the SEPP (Seniors Living). The western setbacks at the first floor would be around 5m and sufficiently setback and at the ground floor only sections of the proposal would come close to the boundary. The minimum setback would be increased when compared with the existing ground floor setbacks. Although, the rear façade close to the common boundary with the college, would be increased in width (while maintaining the same setback as the existing), I consider the proposal to be satisfactory in its relationship and that it would not adversely impact on the amenity of the college. On the eastern side the tree-lined accessway to the college would provide a reasonable buffer with the dwelling at No 9 Jersey Road, so the proposal would not dominate or cause unreasonable overshadowing of that neighbouring property.
39 I prefer the evidence of Mr Shiels to that of Mr Sue with regard to the setback issue. I do note that Mr Sue did not object to maintaining the 740mm-setback to the northern boundary for the single-storey section above the basement largely contained within the existing building. I also accept the submissions of Mr Newport, and contrary to the submissions of Mr Leggat, that the proposal would maintain reasonable neighbourhood amenity, an appropriate residential character and would meet the relevant aim of SEPP (Seniors Living). For the reasons set out above I would not refuse this application for reason of inadequate side and rear setbacks.

Landscaped area
40 Under this heading there are two aspects of the council’s Issue No 3 that must be decided. The first is whether or not the landscaped area provision in the SEPP (Seniors Living) is a development standard and the second is whether sufficient landscaped area is proposed.
41 Clause 79 of the SEPP (Seniors Living) states; under the heading of “…Standards that cannot be used to refuse development consent for residential care facilities”, that:

A consent authority must not refuse consent to a development application made pursuant to this Chapter for the carrying out of development for the purpose of a residential care facility on any of the following grounds:

(a) building height; if all proposed buildings are 8 metres or less in height, or
(b) density and scale: if the density and scale of the buildings when expressed as a floor space ratio is 1:1 or less;
(c) landscaped area: if a minimum of 25 square metres of landscaped area per residential care facility bed is proved,

(d) car parking:…

42 The heading to Part 7 of SEPP (Seniors Living) also refers to ‘development standards’ in lieu of simply ‘standards’ in the heading to cl 79, in the same instrument. Mr Leggat, counsel for the respondent, submitted in this regard that:
“[B]ecause Part 7 [of the SEPP (Seniors Living)] is expressly stated to contain ‘development standards’, it is inconceivable that the drafters of the SEPP were oblivious to the importance of the phrase…”

43 Mr Shiels, town planner for the applicant, was of the opinion that the requirements of the SEPP (Seniors Living) cannot be a development standard or maxim that applies to a frail-aged facility, [Note: Exhibit D p 14]. In arriving at that conclusion he had regard for the note attached to cl 79: “The provisions of this clause do not impose any limitations on the grounds on which a consent authority may grant consent.” On that basis he said:
It is only a standard where, if complied with, it cannot be used by the consent authority to refuse an application.

44 Mr Newport submitted that it is not a development standard for the same reason and that it is not a requirement, which sets a maximum. The task of the Court is to determine in its discretion whether there would be reasonable compliance with the requirement.
45 I have come to the conclusion that it is probably a non-discretionary development standard applying to development applications other than for complying development. Under s 79C(3) of the Environmental Planning and Assessment Act 1979 :
If an environmental planning instrument …contains non-discretionary development standards and development the subject of a development application does not comply with those standards:

(a) subsection 2 does not apply and the discretion of the consent authority under this section and section 80 is not limited as referred to in that subsection, and
(b) a provision of an environmental planning instrument that allows flexibility in the application of a development standard may be applied to the non-discretionary development standard.

46 I have had regard also to the note attached to cl 79 of the SEPP (Seniors Living) quoted above in para 43. Considering the construction of s 79C(3) of the Act, cl 79(c) of SEPP (Seniors Living) and the accompanying note, I am of the opinion that the standard is a non-discretionary development standard and some flexibility in its application is permitted without considering an objection under SEPP1.
47 The proposed landscaped area, as calculated by Mr Sue for the council, would be 590m2. Under the provisions of the SEPP (Seniors Living), the required landscaped area would be 1,600m2 based on a residential care facility with sixty-four (64) beds @ 25m2 per residential care bed. As the number of beds in the proposal has been reduced to sixty-three (63) the shortfall in area of landscaped area would be of the order of 1,010m2.
48 Mr Sue, pointed to the fact that the 590m2 of landscaped area provided for the use of occupants, visitors and staff, would not meet the minimum standard of 25m2 of landscaped area per residential care facility bed. He stated that the applicant has proposed only 9.2m2 of landscaped area per residential care facility bed and also it is proposed to build upon the existing eastern landscaped area, of about 1,000m2 that was previously set-aside as a recreational area.
49 Mr Sue also was of the opinion that the proposed forecourt, combined with landscaped area located on the southern side of the existing building, the central ground floor northern courtyard measuring 5.7m wide x 15.5m in length, the first floor terraces and other pockets of open space would be inadequate to cater for the needs of the residents.
50 Mr Shiels stated [Note: Exhibit D p 17:
Indeed, my experience with aged and infirm facilities is that very little outdoor space is provided. The emphasis in these facilities is more towards improving the internal spaces and providing small outdoor functional spaces.
Many of the residents in this establishment are bedridden and they are transported from their permanent bed to a transportable bed when and if they are taken outside. Also, there is a high level of dementia patients in this establishment who require a reasonable level of security. Residents using the open areas do so in a passive way. They will sometimes sit in groups in the presence of a carer.
Also, the SEPP (Seniors Living) does not contain any performance criteria or objectives for landscaped area. It is difficult therefore to ascertain why the SEPP mentions this amount of landscaped area.
The proposed terrace areas provided on the first floor are not …landscaped areas within the definition under clause 3 of the SEPP. As indicated, these terrace areas provide 94.28 square metres of functional open space in addition to the 590 square metres of landscaped area.
In summary, in my opinion the landscaped area is not a development standard and has little relevance to the proposal.

51 Ms Chadwick was also of the opinion that, “[n]ursing home residents in general do not utilise outdoor areas for exercise as this type of activity is held within the facility for a small number of able people.” [Note: Exhibit F, p 2]
52 I accept the evidence of Mr Shiels and Ms Chadwick that the requirement for 25m2 of landscaped area per residential care bed would be excessive in the particular circumstances of this case. For the type of residential nursing home care such as that provided by ‘Goondee’ presently and as proposed, 9.2m2 per bed of landscaped area would be satisfactory. I would not refuse consent for reason of non-compliance with the 25m2 standard. If I am wrong in this interpretation of a non-discretionary development standard, I have considered the applicant’s SEPP1 objection in this respect.
53 Mr Sue considered the extent of the shortfall in the landscaped area would be excessive and the SEPP No 1 objection for a variation to the development standards could not be supported.
54 Mr Leggat identified the underlying objectives of the standard as including the provision of adequate amenity for residents and their guests, the control of bulk and maintenance of setbacks. He said, as the provision of 9m2 per bed fails to meet the objectives of the standard compliance with the standard, compliance with the standard cannot be said to be unreasonable or unnecessary.
55 The applicant lodged an objection, under State Environmental Planning Policy No 1 - Development Standards , (SEPP No 1), and requested flexibility in the application of the standard on the following grounds:
· The proposed landscaping adequately screens adjoining properties.
· There is ample passive landscaping for the occupants.
· The Jersey Road forecourt central courtyard and first floor terraces are conveniently located for the occupants to use.
· There is adequate landscaping to soften the appearance of the building.
· The provision is consistent with the SEPP (Seniors Living) 2004 objectives.
· The landscaping reduces the bulk and scale of the development. 56 I have considered the SEPP1 objection to the 25m2 of landscaped area per residential care bed as a minimum standard that cannot be used to refuse development consent in the light of the decision of his Honour Justice Lloyd in Winten Property Group Limited -v- North Sydney Council, [2001] NSWLEC 46, paras 22 – 26. His Honour at para 26 stated that in applying the principles of Hooker Corporation Pty Limited v Hornsby Shire Council (NSWLEC, 2 June 1986, unreported):
…it seems to me that SEPP1 requires answers to a number of questions (not necessarily in the following order). First, is the planning control in question a development standard? Second, what is the underlying object or purpose of the standard? Third, is compliance with the development standard consistent with the aims of the Policy, and in particular does compliance with the development standard tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act? Fourth, is compliance with the development standard unreasonable or unnecessary in the circumstances of the case? Fifth, is the objection well founded? In relation to the fourth question, it seems to me that one must look to see whether a development, which complies, with the development standard is unreasonable or unnecessary, as noted by Cripps J in the Hooker Corporation case.

57 Taking each question posed by his Honour Lloyd J and answering it:
1. For the purposes of this assessment, I accept that the 25m2 of landscaped area per residential care bed as a minimum that cannot be used to refuse development consent is a development standard.
2. The underlying object or purpose of the standard is to provide adequate amenity for residents and their guests, to control bulk and to maintain setbacks.
3. Compliance with the development standard would tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act. The quality as opposed to quantity of the proposed forecourt central courtyard and first floor terraces being conveniently located for the occupants to use would provide pleasant surroundings for the occupants of the proposed nursing home.
4. Compliance with the development standard would be unreasonable or unnecessary in the circumstances of the case.
5. The objection well founded. 58 I accept that the provision of 9.2m2 of landscaped area per bed is adequate and consistent with SEPP (Seniors Living) objectives and I would not refuse the application for this reason.

Building height at rear
59 Under cl 38(4)(c) of SEPP (Seniors Living) under the heading of development standards – minimum sizes and building height, “…a building located in the rear 25% area of the site must not exceed one storey in height” in a residential zone where residential flat buildings are not permitted. In the Residential 2(a) zone in this part of Strathfield, “…residential flat buildings not exceeding two storeys for aged persons” are permitted under the BPSO.
60 I accept the submission of Mr Newport and the evidence of Mr Shiels that as a limited form of residential flat building is permitted in the Residential 2(a) zone, cl 38(4)(c) of the SEPP (Seniors Living) does not apply. If it does not apply, this issue falls away.
61 Mr Leggat submitted otherwise and urged on the Court a different interpretation of the subclause. He considered this to be a development standard and submitted that the Court must consider whether the applicant’s SEPP1 objection in respect of cl 38(4)(c) was well founded and whether, in the circumstances of this case, compliance with the development standard is unreasonable or unnecessary. Were I wrong in concluding otherwise, I have considered the applicant’s State Environmental Planning Policy No 1 (SEPP 1) objection.
62 Mr Sue identified a non-compliance with this development standard and determined that the proposal would exceed this height, by a length of around 8m for the northern portion of the western wing near No 17 Jersey Road. He concluded that this excess in height would accommodate four (4) beds, storage and occupant amenities on the first floor, at the northwestern corner of the site.
63 Mr Sue stated that:

The overall length of the first floor west wing is 36.4m, which is considered excessive. Compliance with the development standard is recommended, to reduce the bulk and scale by a further 8m. The SEPP No 1 objection is not well founded and not supported on planning grounds.

64 Although there was no evidence in this respect, I noticed on the site inspection that part of the sky would be obscured from viewpoints in the driveway of No 15 Jersey Road, and thus some loss of daylight from the dome of the sky could be expected to that part of the land in the vicinity of the driveway. It might be assumed that to a lesser extent, some daylight would be lost to the terrace near the entrance to that dwelling. Although, difficult to quantify, I have determined, that loss to be insignificant, taking into account the remoteness of the terrace from the proposed two-storey section and the intervening landscaping on No 15 Jersey Road.
65 There was evidence that there would be no significant overshadowing of No 15 Jersey Road in the morning after 9.00 am in midwinter, [Note: Exhibit H]. Although there was no evidence and no shadow diagrams showing shading in the morning in the summer months on the terrace of that property, there could be expected to be some overshadowing at that time. The solid balustrade surrounding that terrace would cause some shade.
66 The objection from Jordan and Lidia Marchesin, the residents of No 15 Jersey Road were found in Exhibit 6 Tab 7 paras 5 and 6:
On the western elevation, which borders our property, there are large expanses of blank, windowless walls up to 2 storeys high, only broken by other blank walled single storey projections closer to our boundary than is the existing old building now. The first side projection offset will be only 975mm from our boundary, the second 1275mm, and the rear 1045mm. Altogether there is proposed to be at least 15 metres of building about 1metre from our eastern boundary. There is only room for a narrow path between the proposed buildings and our fence.
This two-storey high extension behind the existing building, proposed to be nearly three times as deep as the existing old building, will block out the early to mid-morning sun to the terrace at our front entrance and main bedroom. Apart from the reduced amenity of this space, it will mean that the terrace will stay damper and increase the growth of mould there. As we are elderly ourselves, this will increase the slipperiness of this main entrance are with consequent risk of falls.

67 To gauge whether the overshadowing and slight loss of daylight would be unreasonable, I have applied a rule of thumb used to determine setbacks, in the absence of any specific requirements as to height and setback in the SEPP (Seniors Living). To determine a reasonable setback for a two-storey building located in the normal building area, a building would need be setback and contained under a 45-degree plane constructed at the top of a 1.8m high fence on the boundary passing over the subject land.
68 As was identified during the hearing the existing ground level near the garage on No 15 Jersey Road is 24.51m AHD, and if, to this were added, the height of a 1.8m high fence, the top of the fence would be at 26.32m AHD. If a building were erected contained under a 45-degree plane commencing at the top of that fence, the height at the roof of that building, at the wall line, setback 5m, would be 31.32m AHD. However, the height of the roof of the proposal setback on the first floor 5m from the boundary at that point would be 31.42m AHD and would thus exceed the height plane by 100mm or slightly more at the eaves.
69 At the hearing, the intrusion into the 45-degree plane was calculated by the architect at around 450mm with the eaves being determined at a height of 31.77m AHD. Thus it seems that the excess in height would be between 100mm and 450mm. If the rule of thumb were applied, the proposal could be seen as being too close by between 100mm and 450mm or too high by between 100mm and 450mm. This breach at a distance of around 11m from the terrace on No 15 Jersey Road could be seen as being insignificant. I would not refuse the application for reason of inadequate setback on the western side.
70 Also, I have taken into consideration the form of development on the land at No 15 Jersey Road and the presence of a driveway and garage near the western boundary of the subject property and the terrace, to which the residents refer, being set around 6m back from the common boundary with the subject land. I have also taken into account that a residential flat building not exceeding two-storeys in height for aged persons would be permitted on the subject land under the Residential 2(a) zoning. As a result I consider that some flexibility in the application of the 25% standard is warranted in the circumstances of this case.
71 Although Mr Sue was of the opinion that the proposed two-storey section on the western side would be sufficiently setback (greater than the 3.5m that he specified) he considered it to be too long in the north south direction and to be overpowering as a result. Given the proposed setback to the wall of around 5m I am satisfied that his concerns for the length of the proposed western wall to be unfounded.
72 Mr Leggat submitted that as a result of the excessive bulk along the western side of the proposal:
Compliance with the standard cannot be said to be unreasonable or unnecessary in circumstances where, as here, non-compliance with the standard result in an adverse impact contrary to the objective of the standard.

73 The applicant’s SEPP No 1 objection to this development standard, was on the following grounds:
· The height complies with the maximum 8m permissible.
· The design, bulk, scale, size, siting and height compliments surrounding buildings.
· The additional height has no adverse impact on the adjoining properties in terms of solar access, bulk and scale.
· No loss of privacy.
· No detrimental effects to solar access or loss of views. 74 I have applied the Winten principles:
1. For the purposes of this assessment, I accept that the planning control that a building located in the rear 25% area of the site must not exceed one storey in height, is a development standard.
2. The underlying object or purpose of the standard is to protect the amenity of adjoining residents in terms of overshadowing, loss of daylight and avoid a dominating effect.
3. The proposal would be sufficiently setback on the first floor at 5m to ensure consistency with the aims of the Policy, and in particular the non-compliance with the development standard would not tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the EPA Act.
4. Compliance with the development standard would be unreasonable or unnecessary in the circumstances of the case.
5. The objection is well founded.
75 I am of the opinion that the underlying purpose of the building height at the rear standard to reduce the impact of development on adjoining residents living in No 15 Jersey Road, in this case would be sufficiently met. There is a driveway and garage of that property abutting the subject land, and there is also a terrace at the main entrance, the amenity of which must be considered.
76 I am of the opinion that the flexibility afforded by SEPP1 in the application of the development standard of a single-storey height of building in the rear 25% area of the site should be applied in the circumstances of this case and I have determined that the objection is well founded. I would not refuse the application for reason of non-compliance with that standard.

Other matters
77 Mr Leggat submitted that if the decision in Arminella Pty Limited v Ryde City Council [1999] NSWLEC 237 were to apply, the present application should be refused consent. This is despite the specific use under SEPP (Seniors Living) not being in issue.
78 Arminella was a case dealing with an appeal under s 56A of the Land and Environment Court Act 1979 against the decision of a Commissioner in respect of a development for aged and disabled housing under SEPP5. The appeal was dismissed and the fact that the Commissioner, in that case, adopted the proposition that reasonable access to facilities and services are mandatory not only for the frail and/or disabled, but for a wider group who are independent, mobile and active and those who are frailer, was not an error of law. Mr Leggat submitted that here, if the Court were to approve the present application for the provision of accommodation only for the frail aged, as proposed, a mistake in law would be committed.

79 There appears to be no clause in SEPP (Seniors Living) similar to that found in cll 9 and 12 of SEPP5 that would require facilities to be provided for “…the elderly and frail and/or disabled.” Court’s emphasis added. Under SEPP (Seniors Living) the aim is “…to encourage the provision of housing including residential care facilities, that will increase the supply and diversity of residences that meet the needs of seniors or people with a disability.” Court’s emphasis added. The drafters have been careful to use ‘or’ rather than “and/or” as the conjunction. On that basis I am satisfied that the present application is distinguished from that in Arminella.
80 I do not accept that submission and I am content to grant consent to the proposal on the basis that:

Goondee Nursing Home provides care and accommodation for frail aged people, who can only gain admittance once they have been address by an Aged Care Assessment Team, who mostly operate out of hospitals. This enables the elderly to gain admittance to a Commonwealth funded aged care bed place. [Note: Exhibit F p 1]

81 In regard to Issue 1(d) and cl 79(b), Messrs Shiels and Sue agreed that the non-compliance with the floor space ratio (FSR) control of 1:1 would be 1% in excess and that this non-compliance would be minor, [Note: Exhibit 8 p 1]. It was also agreed that if this were the only matter for consideration it would not be significant. Also the SEPP (Seniors Living) allows for some floor space within a basement to be discounted. Here, the respondent argues that as the basement would be more than 1.5m out of the ground it cannot be considered a basement. This is not a control that has found its way into the SEPP (Seniors Living). I am satisfied that this minor non-compliance would not be sufficient of itself to warrant refusal of the application.
82 In regard to Issue No 2, Messrs Shiels and Sue could not agree and Mr Sue was of the opinion that the proposal’s non-compliance with a number of the planning controls contributed to its ‘excessive bulk’. Mr Shiels was of the opinion that as there were no standards applying to this form of building the proposal would need to be considered in the context of the surrounding development, [Note: Exhibit 8 p 2] and it was satisfactory.
83 Having considered the application against the planning controls I am satisfied that it is not an overdevelopment of the site as suggested by Mr Sue.
84 Messrs Shiels and Sue agreed that access to the landscaped areas would be satisfactory and Issue No 3(b) was no longer in dispute, [Note: Exhibit 8 p 2].
85 Messrs Shiels and Sue agreed that Issue No 4 could be resolved if the two (2) car parking spaces provided at ground level at the front were changed to loading and unloading area and ambulance bay, [Note: Exhibit 8 p 2].
86 The parties agreed that the stormwater hydraulic engineering design would be resolved by imposing a appropriate conditions. On this basis this issue would not be a reason to refuse the application.
87 There was no issue between the parties that the applicant had not prepared an adequate site analysis. There was no dispute between the parties that the Camphor laurel tree near the rear boundary should be removed, apparently since it is growing over a sewer line. Under cl 31(h) of the SEPP (Seniors Living) applicants are urged to “…retain wherever possible major existing trees”. No condition is imposed, however, despite it being considered by the council, a ‘weed’ species, it would continue to provide a pleasant vegetative ambiance for the occupants of the nursing home. Before that tree is removed it would be prudent to obtain an independent safe useful life expectancy (SULE) report to ensure that it is absolutely necessary to remove this tree.
88 For the above reasons, the appeal is upheld.

Conditions
89 The conditions are those in Exhibit 7 as amended by those in Exhibit 10.

Orders
90 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. The State Environmental Planning Policy No 1 objections to the development standards of building height at rear and landscaped area are well founded and are upheld.

3. Development application No D 259/2000 lodged with the respondent council on 2 September 2004, to alter and add to the existing nursing home to accommodate sixty-three (63) residents in lieu of the existing registered forty-nine (49) at Lot 1, DP 717609, being No 13 Jersey Road, Strathfield, is approved subject to Conditions B1 to Traffic Engineering 7 in Annexure A.

4. The exhibits with the exception of Exhibits A, B, C, G, J, 1, 2, 7 and 10 are returned.

S J Watts
Commissioner of the Court
sw

Annexure A

Rasko Holdings Limited v Burwood Council

No 13 Jersey Road, Strathfield
DA No. D259/2004
Alterations and additions to an existing nursing home

A. A Deferred Commencement Consent is granted, pursuant to Section 80(3) of the Environmental Planning and Assessment Act 1979 to Development Application No. D259/2004, for carrying out alterations and additions to the existing nursing home at No. 13 Jersey Road, Strathfield, to increase the residential accommodation from 49 to 63, subject to the following conditions:

1. Submission of a detailed drainage plan prepared by a competent practising hydraulic/civil engineer. The plan shall demonstrate that the development has no adverse effects on adjoining properties as a result of flooding and stormwater runoff and that there is adequate protection for buildings against the ingress of surface runoff.
2. The consent is not to operate until the applicant has satiffied Council that the proposed stormwater drainage system adequately caters for disposal of stormwater from the site.

B. The development conditions that apply, following compliance with the conditions of the Deferred Commencement Consent in Part A, to the satisfaction of Council, are as follows:

1. The development being carried out in accordance with the plans and specifications submitted on 2 September 2004, except where amended by the conditions of consent.

2. The fees and/or bonds shown in the Table of Fees, are to be paid to Council or another approved collection agency (the Long Service Levy Corporation and its agents and an approved insurer under the Home Building Act 1989 ) and suitable evidence of payment is to be provided to the Principal Certifying Authority prior to the issuing of a Construction Certificate .

TABLE OF FEES

FEES/BONDS TO BE PAID TO COUNCIL OR TO THE NOMINATED BODY
PRIOR TO ISSUING A CONSTRUCTION CERTIFICATE

3. Damage Deposit - security deposit against damage occurring to Council's assets (footpath, road, stormwater, kerb and gutter etc) during building work $11,600
(Payment to be made to Council prior to issue of a Construction Certificate and/or commencement of demolition/bulk excavation)


NOTE: This deposit is refundable if no damage occurs.

4. Construction by Council of the proposed Vehicular Crossing and if applicable removal of existing redundant Vehicular Crossing $18,987.
(Payment to be made to Council)

5. Deleted.

6. If Council is nominated as the Principal Certifying Authority (PCA) an inspection fee is to be paid.

This fee is for 30 Inspections and includes the final Occupation Certificate issuance. Any additional inspections, including re-inspections, shall be levied and paid to Council upon booking of an appointment at the rate of $88.00 (including GST) per half hour or part thereof. $2,640.00
(Payment to be made to Council)
7. Building and Construction Industry Long Service Corporation levy $4,000.00
(Payment to be made to Council, the Corporation or its Agent)

8. Security deposit against construction by Council of a new footpath,
road traffic facilities & associated works. The applicant shall lodge
with Council a bond or bank guarantee, satisfactory to Council, in the
amount of: Jersey Road Category 4 Street. $56,500.00
(Payment to be made to Council prior to the issue of a
Construction Certificate and/or commencement of demolition/
bulk excavation)



BUILDING

1. An application for a Construction Certificate is to be made to Council or an Accredited Certifier. Council's 'Construction Certificate Application' is to be used where application is made to Council. Copies are available upon request. A Construction Certificate must be obtained prior to the commencement of building work .

2. Structural engineer's details prepared and certified by an Accredited Certifier or practising Structural Engineer for all reinforced concrete and structural members being submitted to the Principal Certifying Authority for approval.

3. The Accredited Certifier or Structural Engineer is to also supervise the construction. A Compliance Certificate from the Accredited Certifier or supervising Structural Engineer is to be submitted to the Principal Certifying Authority before an Occupation Certificate is issued stating that all reinforced concrete and/or structural members have been erected in accordance with his/her requirements and the relevant SAA Codes.

4. The building being erected in type B construction for a Class 7(a) and 9(a) building in accordance with the Building Code of Australia, Part C.

5. Fire Resistance Levels of all structural members, including external and internal walls, spandrels, external and internal columns, lift shafts and stair shafts, ventilation, pipe and like shafts, floors and roofs shall comply with the requirements of Specification C1.1 of the Building Code of Australia. Details of the method of achieving this must be noted on the plans or in the specifications prior to the issuing of a Construction Certificate .

6. All materials used in the building must comply with early fire hazard criteria of Specification C1.10 of the Building Code of Australia.

7. Openings in walls closer than 3 metres from a fire source feature are to be protected in accordance with Clause 3.4 of the Building Code of Australia.

8. Openings in floors, walls and shafts for services must comply with C3.12, C3.13 and C3.14 of the Building Code of Australia. Details of the method of achieving this must be noted on the plans or in the specifications prior to the issuing of an amended Construction Certificate .

9. All holes cut in the floor slabs for pipes or ducts to be properly sealed off at each floor level with concrete the full thickness of the floor slab.

10. Means of egress complying with Section D of the Building Code of Australia. Details of the method of achieving this must be noted on the plans or in the specifications prior to the issuing of an amended Construction Certificate.

11. The minimum unobstructed width of required exit stairs, clear of handrails, shall be 1000mm. Details of the method of achieving this must be noted on the plats prior to the issuing of an amended Construction Certificate .

12. A swinging door in a required exit or forming part of a required exit shall swing in the direction of egress unless it serves a building or part with a floor area not more than 200 square metres, it is the only required exit from the building or part and is fitted with a device that will automatically hold it in the open position. Sanitary and airlock compartments excluded. Details of the method of achieving this must be noted on the plans prior to the issuing of an amended Construction Certificate .

13. The building being provided with both access and sanitary facilities for people with disabilities. The sanitary facilities are to be provided in accordance with F2.4 of the Building Code of Australia (BCA) and are to comply with the requirements of Clause 10 of AS 1428.

Access is to be provided to and within the building so as to comply with all the requirements of Part D3 of the BCA and the relevant provisions of AS 1428, in particular:-


a. Access is to be provided from the allotment boundary at the point of entry from a road to the entrance floor.

b. Access is to be provided through the principal public entrance.

c. Suitable identification signs and/or symbols, as well as necessary directional signs, incorporating the symbol for access by disabled people, being provided to comply with Clause 14.

d. Attention is directed to Clause 7 in respect of the clear circulation space required to doorways.

e. Access is to be provided from any carparking space which is required to be provided by D3.5 of the BCA.


f. A carparking space required to be provided by D3.5 of the BCA. is to be identified, on the floor and behind the space, for use by disabled people and a series of signs are to be provided from the driveway entrance to indicate the location of the space.

g. Required stairways complying with the requirements of Clause 9.

h. The step at the front door being reduced to nil at the threshold by the provision of a short ramp (450 mm maximum length and 1:8 maximum gradient) to facilitate access for disabled people.

Details of the method of achieving this must be noted on the plans or in the specifications prior to the issuing of an amended Construction Certificate .

14. Doors serving as required exits must comply with D2.19, D2.20 and D2.21 of the Building Code of Australia

15. The treads and rises of the internal stairs being in accordance with the dimensions set down in Table D2.13 of the Building Code of Australia.

16. Illuminated exit signs complying with Australian Standard 2293 - Emergency Lighting in Buildings, E4.5 and E4.8 of the Building Code of Australia, must be installed on, above or adjacent to the doors referred to in E4.5 of the Building Code of Australia.

17. Emergency lighting complying with Australian Standard 2293 - Emergency Lighting in Buildings and E4.2, E4.3 and E4.4 of the Building Code of Australia must be installed in the building. Additional details and a floor plan prepared by an Accredited Certifier, Electrical Engineer or other suitably qualified person must be submitted to the Principal Certifying Authority for approval prior to installation and must include the following:-


a. The location of proposed emergency light fittings and exit signs;

b. The height of which fittings are to be mounted;

c. The location of all distribution boards;


d. The brand, code number and photometric classification of the fittings to be used.

18. Hose reels shall be installed in accordance with S 2441 and E1.4 of the Building Code of Australia. Where located internally hose reels are to be not more than 4m from a required exit on each floor of the building. Hose reels shall not be installed so that they will pass through doorways fitted with fire doors or smoke doors (except as provided for in E1.4(b)(iv). The nozzle end of the fully extended hose reel when laid to avoid partitions and other barriers shall reach every part of the floor of the storey served by the hose reel. Additional hydraulic details prepared by an Accredited Certifier, Hydraulical Engineer or other suitably qualified person must be submitted to the Principal Certifying Authority for approval prior to installation and must include the following:-


a. The location of proposed hose reel/s;

b. The length of every proposed hose reel;

c. Hydraulic calculations to show that the system will satisfy the requirements of AS 2441.
19. Hydrants shall be designed and installed in the building/s and/or on the site in accordance with clause E1.3 of the Building Code of Australia and AS 2419. Additional hydraulic details prepared by an Accredited Certifier, Hydraulic Engineer or other suitably qualified persons must be submitted to the Principal Certifying Authority for approval prior to the installation and must include the following:-


a. The location of proposed hydrant/s;

b. Hydraulic calculations to show that the system will satisfy the requirements of AS 2419.1.

c. A Compliance Certificate which verifies that the design meets with the requirements of the Building Code of Australia.

20. The building being equipped with a smoke alarm system as required by Table E2.2a 4 of the Building Code of Australia. The system is to satisfy the requirements of Specification E2.2a of the Building Code of Australia and in particular is to comply with the relevant parts of AS 1670. Photo-electric type detectors are to be installed in patient care areas and alternate photo-electric and ionisation detectors must be installed in paths of travel to exits from patient-care areas. Manual call points must be installed in evacuation routes.

21. Warm water installations are to be installed in accordance with the requirements of AS/NZS 3666.1.

22. Mechanical ventilation/air conditioning details are to be submitted to the Principal Certifying Authority for approval prior to installation and must include the following:-

a. The location and size of proposed ductwork;

b. The location of equipment;

c. The performance characteristics of the proposed motor/s and fan/s;

d. The air flow characteristics of the system.

At the completion of work, a Compliance Certificate from an Accredited Certifier, Mechanical Engineer or other suitably qualified person, to the effect that the ventilation system has been installed and performs in accordance with the provisions of Part F4 of the Building Code of Australia, Australian Standard 1668 "SAA Mechanical Ventilation and Air Conditioning Code", Part 1 and Part 2, Australian Standard 3666-1989 and the Noise Control Act, 1975, must be submitted to the Principal Certifying Authority before an Occupation Certificate is issued.

23. All fire safety measures are to be maintained. The fire safety measures and their minimum standard of performance are designated in the following Schedule 1.

SCHEDULE 1
FIRE SAFETY SCHEDULE

PROPOSED FIRE SAFETY MEASURES

MEASURE STANDARD

Access panels, doors and hoppers to fire-resisting
shafts C3.13 BCA
Automatic fail-safe devices To the standard of the
original design

Automatic fire detection and alarm systems AS 1670
Emergency lighting AS 2293
Emergency warning and intercommunication systems AS 2220
Exit signs AS 2293
Fire doors AS 1905
Fire hydrant systems AS 2419
Fire seals protecting openings
in fire-resisting components of the building Hose reel systems C3.15 BCA
Mechanical air handling systems AS 1668
Portable fire extinguishers AS 2444
Smoke detectors and heat detectors AS 1603
Warning and operational signs E3.3 BCA
Fire dampers AS1682
Emergency lifts AS1735

A Fire Safety Certificate (copies available from Council) is to be given to the Certifying Authority prior to applying for an Occupation Certificate or Interim Occupation Certificate and thereafter once in every 12-month period an Annual Fire Safety Statement is to be given to Council. The certificate and statement attest to both the inspection of all essential fire safety measures by a properly qualified person and to the regular maintenance of the fire safety measures. A copy of the Fire Safety Certificate and the Fire Safety Schedule are to be given to the Commissioner of New South Wales Fire Brigades by the building owner and copies of these documents are to be prominently displayed in the building. Similarly copies of Annual Fire Safety Statements are to also be given to the Commissioner and displayed in the building.


24. Fresh Air Delivery – a report must be submitted from a suitable qualified person on the mechanical ventilation system. Such report must indicate whether the completed Air Handling System supplies the required fresh air requirements as specified as per AS 1669. Any work required must be completed prior to an Occupation Certificate being issued.

25. Emergency lifts: Emergency lifts must be provided to the building in accordance with AS 1735.2 (ES3.4, Building Code of Australia).

26. Stretcher facilities: Stretcher facilities must be provided in one lift (refer E3.2, Building Code of Australia).

27. Compliance with the requirements of D1.6 and D2.21 of the Building Code of Australia, a door serving as a required exit, forming part of a required exit or in a path of travel to a required exit, must be readily openable from the side facing the person seeking egress, by a single hand downward action on a single device which is located between 900mm and 2200mm from the floor.

28. Strict compliance with table 3, Type B construction, FRL of Building Elements, Building Code of Australia.

29. Method of achieving this requirement to be submitted to Council prior to issuing of an amended Construction Certificate. Note: Method may be nominated on plans or specifications.

30. To comply with specification C1.10 & Clause 8 (Fire Hazard Properties for Air Handling Systems): Rigid and flexible ductwork in a Class 9 building must comply with the fire hazard properties set out in AS 4254.

31. To comply with Clause C2.12(a) (Separation of Equipment), equipment other than that described in sub-clause (b) & 9c) must be separated from the remainder of the building to be 120/-/-, as per C2.12 of the Building Code of Australia.

Method of achieving this requirement to be submitted to Council prior to issuing of an amended Construction Certificate. Note: Method may be nominated on plans or specifications.
32. To comply with Clause C2.13 of the Building Code of Australia which stipulates that an electricity supply system located within the buildings must be separated from any other part of the buildings by construction having an FRL of not less than 120/120/120.
Method of achieving this requirement to be submitted to Council prior to issuing of an amended Construction Certificate. Note: Method may be nominated on plans or specifications.

TOWN PLANNING

1. Samples and details of all external surface materials being submitted for Council's approval, prior to the issuing of a Construction Certificate.

2. Demolition or construction work including deliveries of materials, etc, which would result in footpaths and/or roads being blocked shall not be carried out on Saturdays.

3. The noise emitted by the air-conditioning equipment being inaudible in your neighbours' homes between 10pm and 7am weekdays and 10pm and 8am on weekends and public holidays.

4. The applicant shall take all necessary precautions to adequately protect adjoining properties during demolition. This shall include the submission to Council of specific details of the protection to be employed prior to demolition commencing.

5. The two (2) car spaces, located at ground level and adjacent to the entrance of the nursing home, are to be allocated as an ambulance bay and a loading/unloading bay, with a minimum bay width of 3m.

6. The entry awning/porch structure is to be set back a minimum of 9m from the Jersey Road front boundary.

7. The garbage bay walls are not to exceed the existing height of the front fence masonry piers. The proposed pitched tile roof shall be deleted.

8. All service loading and unloading deliveries are to take place within the property.

9. A detailed landscape plan prepared in accordance with Council's Landscaping Code, by an Accredited Certifier, qualified landscape architect or practising landscape consultant and submitted to Council for consideration. The plan shall indicate all existing trees on the site and those to be removed. The approved landscape plan or evidence of its approval is to be submitted to the Principal Certifying Authority, prior to the issuing of a Construction Certificate.

10. The landscaping of the site being carried out in accordance with the approved landscape plan prior to the issuing of an Occupation Certificate. The landscaping is to be maintained for a minimum period of two (2) years from the date of the Occupation Certificate.

11. Any mature trees required to be removed from the site are to be replaced with the equivalent number of super advanced trees of a species suitable to Council prior to the issuing of an Occupation Certificate.

12. Landscaping and planter boxes are to have indigenous/mature plants to reduce water usage.

13. All works are to be located within the site boundaries.

14. The kitchen and basement exhaust systems are to be an integral part of the building and not located at the site boundary. Exhaust ducts and mechanical equipment are not to be visible from Jersey Road.

15. Installation of water saving appliances and fittings – dual flushing toilets, shower heads and taps.

16. Installation of energy saving appliances for the hot water systems (solar or heat pump systems) refrigeration, heating and cooling systems, lighting, cooking, dishwasher, clothes washing and drying.

17. The roof/ceiling is to be insulated to reduce energy usage.

18. Install skylights for natural lighting to the toilets, bathrooms, stairway and kitchen, to reduce electrical energy usage.

19. Provision of a stormwater harvesting and recycling system for landscape watering and compliance with Basix requirements. The system is to be identified in the Construction Certificate plans.

20. A Section 73 Compliance Certificate under the Sydney Water Act, 1994 must be obtained. Application must be made through an authorized Sydney Water Servicing Coordinator (for details see e-Developer at or telephone 13-20-92). The Section 73 Certificate must be submitted to the Principal Certifying Authority (PCA) prior to the release of any linen plan of subdivision and/or Occupation Certificate of the development.

HEALTH SERVICES

1. All food preparation, handling and storage are to be carried out in accordance with provisions of the Food Act 2003, the Food Regulation 2004 and the Food Safety Standards.

2. Prior to the opening or occupation of the kitchen, the applicant shall forward to Council on the appropriate form enclosed, the following:-

a. Name, residential address and contact phone number of the business proprietor or licensee

b. Name, address and contact phone number of the building owner.


3. An insectocutor or similar non-chemical device is to be installed for fly and insect control.

4. The fitout of the kitchen is to be in accordance with Australian Standard AS 4674-2004 “Design, construction and fit out of food premises” the Food Safety Standards.

5. A change-room with adequate clothes space facilities for employees is to be provided to the satisfaction of the Council.

6. Drop-in panel removable ceilings are not permitted. Ceilings are to be constructed of a rigid smooth faced, non absorbent material and could include plasterboard and fibrous cement or other approved material. They are to be painted with a washable gloss paint of a light colour. The intersection of the walls and ceiling is to be tight jointed, sealed and dustproof.

7. Floors are to be constructed of materials which are impervious, non-slip, non-abrasive, resistant to lactic acid and fatty acids, cement render over concrete, quarry tiles, magnesite or other approved material. The floor is to be finished to a smooth even surface, graded and drained. The intersections of the floors with walls and exposed plinths are to be coved.

8. Floor wastes drained to the sewer are to be installed in the food preparation and the wet areas.

9. Walls are to be of solid construction, finished with glazed tiles, stainless steel or laminated plastic adhered directly to the wall to a height of 2 metres above floor level. Walls where not tiled are to be cement rendered, set with plaster and steel trowelled to a smooth even surface, painted with a washable gloss paint of a light colour. 10. Benches, draining boards, table-tops etc, are to be of rigid, smooth-faced non-absorbent material, free of cracks, crevices or cavities - such as stainless steel or other approved material.

11. All equipment, machinery, shelving etc, shall be fixed on solid concrete plinths or alternatively, mounted on round metal legs at least 200mm off the floor. Hollow plinths are not permitted.

12. All shelving throughout the premises is to comply with the following:-

a. Shelving shall be of glass, metal, plastic, coated timber or other approved materials;

b. The surface of shelving, including edges, is to be smooth, non-absorbent and free of cracks, crevices or cavities; and


c. All shelving is to be of solid construction.

13. Provide a wash hand basin in a central location within the food preparation area. The basin must be supplied with hot and cold water provided through a mixing tap, together with a sufficient supply of liquid soap and single use (e.g. paper) towels or another approved hand drying device.

14. Provide an accurate temperature measuring device (e.g. probe thermometer) that measures the temperature of food being stored and/or displayed to +/- 10 Celcius.

a. Cold potentially hazardous foods must be stored and displayed at a temperature of less than 50 Celcius.

b. Hot potentially hazardous foods must be stored at a temperature of more than 600 Celcius.

15. Foodstuffs at no time are to be stored or left to cool on the floor. All foodstuffs are to be kept at a minimum height of 300mm above floor level.

16. Where a refrigerated cool room is installed within the premises it is to be provided with lighting and safety devices to comply with Clause G1.2 of the Building Code of Australia.

17. A temperature gauge is to be provided externally to each coolroom, chiller, freezer room or low temperature room.

18. The coolroom floor is to be made impermeable.

19. A mechanical exhaust ventilation system must be provided to the premises that complies with Australian Standard 1668, Parts 1 & 2. Exhaust ventilation shall be provided over all food cooking appliances including stoves, salamanders, hotplates, deep fryers and grill plates.

Note: The system must be certified by a qualified practicing mechanical engineer and evidence provided to Council upon completion of works and prior to commencement of trading.
20. A Waste Management Plan , complying with the requirements of Burwood Council’s Development Control Plan No. 17, is to be submitted to and approved by Council prior to the commencement of any works, including demolition and/or construction work. The Plan is to address waste management issues, with particular regard to the following:

a. Demolition and excavation phase
b. On site waste management during construction phase
c. Ongoing waste management when facility is in operation

ENGINEERING

1. All activities and works external to the site, or that affect public roads, are to be carried out in accordance with Council's Code for Activities Affecting Roads.

2. A road-opening permit shall be obtained for all works carried out in public or Council controlled lands. Restoration of landscaping, roads and paths shall be carried out by Council at the applicant's expense in accordance with Council's restoration rates. The applicant or any contractors carrying out works in public or Council controlled lands shall have public liability insurance cover to the value of $10 million, and shall provide proof of such cover to the Principal Certifying Authority prior to carrying out the works.

3. Spoil and building materials shall not be placed, stored or caused to fall within any public roadway or footpath. Waste containers shall be placed in accordance with Council's Code for Activities Affecting Roads. Council's fee shall be paid prior to the placement of the waste containers.

4. The builder is to ensure footpaths and roads affected by construction works are kept safe and prevent any damage to Council property. The builder shall erect and maintain where necessary approved hoardings, barricades, warning signs and night warning lamps to ensure public safety. Pedestrian access across the footpath must be maintained at all times.

5. The following matters shall apply to the damage deposit listed in the Table of Fees:-


a. This deposit is refundable if no damage occurs. Any damage caused will be repaired at Council's restoration rates, at the applicant's expense. All or part of the deposit will be forfeited to cover damage to Council's property during the course of demolition and/or construction.

b. Council will only carry out two inspections of the Council's footpath, kerb and gutter, drainage system and roadway, prior to works commencing and at the completion of all work covered by this consent. Council is aware that damage may be caused by individual contractors that culminates in the damage inspected at Council's final inspection. The applicant is responsible for attributing any part of the damage to their individual contractors. Council will not refund any part of a damage deposit until the completion of the work covered by this consent.

6. The following matters apply to the construction of the proposed vehicular crossing listed in Table of Fees:-


a. A vehicular crossing 4 m wide to Jersey Road shall be constructed by the applicant, at the applicant’s cost, in accordance with Council’s construction permit requirements.

b. The cost of any necessary adjustments to public utility services is not included, and shall be paid by the applicant to the relevant authority prior to Council commencing the work.

c. The driveway shall be 1m clear of any pits, lintels, poles and 2m clear of trees in the road reserve.

d. All redundant vehicular crossings shall be removed and replaced with kerb and gutter and footpath at no cost to Council.

7. Internal driveway levels shall be designed and constructed to conform with existing footpath and road profiles such that vehicles are not damaged while accessing the property. Council footpath and road profiles will not be altered for this purpose.

8. Deleted.

9. The applicant is to have prepared a longitudinal section of the proposed vehicular ramp access, drawn at 1:25 natural scale.


a. The longitudinal section shall be prepared by a competent practicing civil engineer in accordance with AS 2890.1.

b. The design is to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate.

10. Temporary measures shall be provided during demolition, excavation and/or construction to prevent sediment and polluted waters discharging from the site.


a. An erosion and sediment control plan showing such measures shall be prepared by a competent practicing hydraulic/civil engineer in accordance with Supplement 10 of Council's Stormwater Management Code.

b. The erosion and sediment control plan is to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate or commencement of demolition.


11. All demolition and excavation materials are to be removed from the site or disposed of on site using methods that comply with relevant environmental protection legislation.

12. Vehicles removing demolished materials from the site shall access and depart from the site through Jersey Road and The Boulevarde. Vehicles involved in removing materials from the site shall be limited to an 8 tonne gross weight.

13. A detailed drainage study shall be prepared by a competent practicing hydraulic/civil engineer and submitted to the Principal Certifying Authority.

a. The study shall demonstrate that the development has no adverse effects on adjoining properties as a result of flooding and stormwater runoff and that there is adequate protection for buildings against the ingress of surface runoff.

b. The drainage study is to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate.

14. Deleted.

15. A detailed drainage design shall be submitted to the Principal Certifying Authority.


a. The design and calculations shall indicate the details of the proposed method of stormwater disposal and shall be prepared by a competent practicing hydraulic/civil engineer in accordance with Council's Stormwater Management Code.

b. Allowance shall be made for surface runoff from adjacent properties, and to retain existing surface flow path systems through the site. Any redirection or treatment of these flows shall not adversely affect any other property.

c. Overflow paths shall be provided to allow for flows in excess of the capacity of the pipe/drainage system draining the site, as well as from any on-site stormwater detention storage.

d. The design is to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate.

16. Details and calculations shall be prepared by a competent practicing hydraulic/civil engineer. They shall include:


a. a catchment plan,

b. plans showing proposed and existing floor, ground and pavement levels to AHD,

c. details of pipelines/channels showing calculated flows, velocity, size, materials, grade, invert and surface levels,

d. details and dimensions of pits and drainage structures,

e. hydrologic and hydraulic calculations,

f. details of any services near to or affected by any proposed drainage line,

g. any calculations necessary to demonstrate the functioning of any proposed drainage facility is in accordance with Council's requirements.

h. The depth and location of any existing stormwater pipeline and/or channel being connected to shall be confirmed by the applicant on site. Certification of such is to be provided to Council prior to the release of the construction certificate.
The details and calculations are to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate.
17. On-site stormwater detention storage shall be provided in conjunction with the stormwater disposal system.


a. This storage shall be designed by a competent practicing hydraulic/civil engineer in accordance with Council's Stormwater Management Code and submitted to the Principal Certifying Authority.

b. The maximum permissible discharge from the site via a pump out system for all design storm events is limited to 20 litres/second.

c. The design is to be reviewed by Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate.


18. The Council stormwater works consist of a connection to the kerb in Jersey Road. The connection shall be at 45 degrees to the kerb alignment.

19. Deleted.

20. Deleted.

21. The stormwater works on the development property and connection to Council's or Sydney Water’s stormwater system are to be inspected during construction by a competent practicing hydraulic/civil engineer. The inspections are to be carried out at the stages of construction listed in the following schedule. A compliance Certificate verifying that the construction is in accordance with the approved design, this development consent and satisfies the relevant Australian Standard is to be submitted to the Principal Certifying Authority before proceeding beyond the relevant stage of construction.

SCHEDULE OF CONSTRUCTION STAGES REQUIRING INSPECTION

a. Following placement of pipe bedding material. Confirm trench/pipe location, adequacy of depth of cover, bedding material and depth.
b. Following joining of pipes and connection to Council's stormwater system.

c. For on-site detention systems:-

(i) Following set out of detention tank/area to confirm area and volume of storage.
(ii) Following placement of weep-holes, orifice and/or weir flow control, outlet screen and overflow provision.
d. Following backfilling. Confirm adequacy of backfilling material and compaction.

22. Following completion of all drainage works:-


a. Works-as-executed plans, prepared and signed by a registered surveyor, shall be prepared. These plans shall include levels and location for all drainage structures and works, buildings (including floor levels) and finished ground and pavement surface levels. These plans are to be reviewed by the competent practicing hydraulic/civil engineer that inspected the works during construction.

b. The Principal Certifying Authority is to be provided with a Compliance Certificate from a competent practicing hydraulic/civil engineer. The Compliance Certificate shall state that all stormwater drainage and related work has been constructed in accordance with the approved plans and consent conditions as shown on the work-as-executed plans, prior to the issuing of an Occupation Certificate.


23. Habitable floor levels shall be a minimum of 150mm above the surrounding finished ground levels. Garage floor levels shall be a minimum of 100mm above the surrounding finished ground levels.

24. A Positive Covenant under section 88E of the Conveyancing Act shall be created on the title of the property(s) detailing the following:

i) Overland surface flow path
ii) Finished pavement and ground levels
iv) On-site Stormwater Detention system
v) Pump and rising main system

incorporated in the development. The wording of the Instrument shall include but not be limited to the following:-
a. The proprietor of the property agrees to be responsible for keeping clear and the maintenance of the facilities consisting of:-

i) The overland surface flow path.
ii) Prevention of the erection of any structures or fencing to obstruct the overland flow path.
iii) On-site Stormwater Detention system.
iv) Pump and rising main system.

b. The proprietor agree to have the facilities inspected annually by a competent practicing hydraulic/civil engineer.

c. The Council shall have the right to enter upon the land referred to above, at all reasonable times to inspect, construct, install, clean repair and maintain in good working order the facilities in or upon the said land; and recover the costs of any such works from the proprietor.

d. The registered proprietor shall indemnify the Council and any adjoining landowners against damage to their land arising from failure of the pump facility or stormwater system.

The applicant shall bear all costs associated with the preparation of the 88E Instrument. The wording of the Instrument shall be submitted to, and approved by Council prior to lodgement at the Land Titles Office. Evidence that the Instrument has been registered at the Land Titles Office shall be submitted to Council, prior to issuing of an Occupational Certificate.


25. Deleted.

26. The pump system is only permitted for the drainage of the basement areas where the finished slab is below the ground level. The following conditions are to be satisfied:-

a. A pump and rising main design shall be submitted to the Principal Certifying Authority and shall satisfy the following conditions:-
(i) The holding tank for the pump shall be capable of storing runoff from a one hour, 1 in 100 year ARI storm event.
(ii) The pump system shall consist of two (2) pumps, connected in parallel, with each pump being capable of emptying the holding tank at a rate equal to the lower of the allowable on site detention discharge rate, or the rate of inflow for the one hour duration storm.
(iii) An overflow, flashing light and audible alarm are to be provided, to warn of pump failure.
(iv) Full details of the holding tank, pump type, discharge rate and the delivery line size are to be documented.
(v) Any drainage disposal to the street gutter, from a pump system must have a stilling sump provided at the property line, and connected to the street gutter by a suitable gravity line.
(vi) The capacity of the stilling sump and outlet pump shall be determined and verified by calculations which are to be documented.

b. Pumping system details shall be submitted to Council or an Accredited Certifier - Civil Engineering. The Principal Certifying Authority is to be provided with a Compliance Certificate verifying that this condition has been complied with, prior to the issuing of a Construction Certificate.

c. The applicant shall submit written evidence to the Principal Certifying Authority that a contract has been let for the regular maintenance of the pump system for a minimum period of 12 months. Information to be submitted to the Principal Certifying Authority prior to issuing of an Occupation Certificate.

STREETSCAPE:

27. Proposed streetscape upgrade works are limited to undergrounding of power and Optus crossing the road and undergrounding of connections as described in the Council’s sketch plan J/13.

28. Associated Roadway Costs:

That the applicant shall accept responsibility for all costs associated with the design; construction; alteration; adjustment; relocation or restoration of any works on the public way including: kerb; gutter; pavement; footpath paving; landscaping; street furniture; signage; drainage and public utility services. The reinstatement of any damaged kerb and gutters are to be in materials similar to those existing. Such works are to be carried out by Council’s workforce unless otherwise agreed in writing by the Director Technical Services and Operations;

29. Security Bond or Bank Guarantee:

All survey, design and documentation, contract administration, supervision, obtaining of approvals, and construction costs for works identified in the plan associated with the upgrading and repairing of public pavements and surrounding areas, services, re-landscaping, sign posting, pedestrian fencing, improved street lighting and banner poles, stormwater services, adjustment to public utility services, undergrounding of all overhead public utility services, street tree planting, irrigation, and all other works associated with the subject design, are to be borne by the applicant and all works are to Council’s Technical Services and Operations Department’s satisfaction. Detail plans of the works are to be submitted to Council’s Engineering Department for approval prior to the issue of a Construction Certificate .


30. In respect of Fees/Conditions (4) and (8) the funds paid or guaranteed may be used or called upon at Council’s discretion in part or in full for completing the public works indicated as required in connection with this consent or for remedying any defects in such public works that arise within six (6) months of practical completion. If there are remaining funds at the end of the defects period, the unused funds or original guarantee will be returned to the applicant. During the 6 month defects period, the applicant shall maintain the works in a safe, clean and attractive condition, and promptly repair damage due to faulty work or materials, wear and tear including any such works conducted by a service company (such costs of which may be recoverable by the applicant from the utility company by negotiation).

31. The applicant shall enter into an agreement satisfactory to the Council to cover any variation to the costs estimated in relation to Fees/Conditions (4) and (8) inclusive that may reasonably be incurred by Council in addition to the amount of the bond or bank guarantee, including any costs incurred in the relocation of any services of a utility organization. The executed agreement shall be submitted to the Principal Certifying Authority prior to the release of a Construction Certificate.

32. Public Domain Plan:
The following requirements apply:-
Three (3) copies of a detailed Public Domain Plan shall be prepared by an architect, urban designer or landscape architect and shall be approved by Council (to be lodged with the Director Technical Services and Operations) prior to the 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.
The Public Domain Plan shall be as follows:-

a. Drawn at 1:100 scale; 1:200 will be acceptable for larger sites of over 200m street frontage.
b. Show the entire layout and type of paving including kerb and gutter.
c. 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 maps, notice boards, benches, bollards, bins, kiosks, APT’s, and phone booths), utility poles, parking meters, pedestrian and traffic signals, service pits, stormwater pits and signage (including street nameplates, historical, parking and traffic).
d. 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.
e. Include 1:50 scale cross sections through pedestrian ramps and vehicle crossings.
f. Include specifications of the proposed works.

33. The Public Domain Plan shall incorporate the standard specifications and details of the relevant Burwood Council policies and standards, adapted to suit the specific site requirements as advised by the Director Technical Services and Operations and may include:-
a. Adjustment to paving grades to provide a maximum crossfall of 2.5% from building line to top of kerb.
b. Repaving in accordance with Council policies and specifications.
c. The relocation or provision of new vehicle crossovers and pedestrian ramps including the consequent relocation of existing service pits, traffic signals, kerb corner radii, signs, street furniture and street trees.
d. The retention of existing street trees and the provision of new street trees to comply with the Council Street Tree Strategy and Landscape Masterplan.
e. The repair and where required the resetting of all stone kerbing to a uniform grade. Where adjustments require substantial kerb and gutter demolition, the carriageway shall be reconstructed or resurfaced (as required) to the centre line of the carriageway or to sufficient distance from the kerb to achieve a uniform transition into the existing pavement profile.
f. The retention and repair of any existing pavement lights.
g. The retention and repair of any existing serviceable stone gutters to achieve a uniform kerb and gutter longitudinal grading free of vertical displacement of greater than 5mm between adjacent units.
h. The realignment and level adjustment of service pit lids to correspond to new kerb ramps and paving, and where required, provision of new infill type service pit lids.
i. Protection or replacement by the developer of all City assets to be retained as part of Public Domain works and recovery and return of any City assets where such removal has been approved.


34. 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 Burwood Council Certificate of Completion. Burwood Council will require all non-complying parts to be rectified prior to issue of this consent.

35. An “Application for Approval of Footpath Levels and Gradients” must be submitted at the Council’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 Burwood Council Schedule of Fees and Charges.

36. Landscaping:

· That a detailed landscape plan and specification for the site in accordance with the approved DA landscape plan shall be prepared by a qualified Landscape Architect, be submitted to the Certifying Authority with the application for a Construction Certificate. The Certifying Authority shall then submit a copy of the approved Landscape Plan and Specification to Council’s Director Technical Services and Operations prior to the issue of a Construction Certificate .

· The Landscape Plan shall nominate:

a. Materials and Finishes -Plans, sections and schedules to indicate type, extent, layout, setout, installation requirements of all hardworks and surface finishes (i.e. lighting, walls, paving, furniture, fixtures, fences, disabled access) including the relationship to adjoining finishes in accordance with the approved DA landscape plan. Garden walls and edging are to be masonry or approved materials that compliment the architecture and character of the development.

b. Levels and Drainage- Plans, details and or sections indicating existing and proposed nominal levels, stairs and ramps for disabled access, fall arrows, inlet pits, sub surface drainage, swales or detention points.

c. Planting Plan- Plan and schedules indicating layout, location, species, size at installation, staking requirements and numbers of each species. Details of ground preparation, soil mix and staking/ tree guards. Mulch to be hardwood chip at 75mm depth. Planting layout and massing shall be in accordance with the approved DA landscape plan. Minimum requirements for planting to be as follows:
Material Mature Height Min. Spacing Min. Size
Trees 75L (min. 2.0m tall)
Shrubs >3.0m 1/4m2 10L
Shrubs 1.0-3.0m 1/2m2 5L or 200mm pot
Groundcovers <1.0m 6/ per m2 150mm pot
· Car Park Landscaping:
That advanced species trees are to be planted throughout the carparking area(s) at a minimum rate 1 tree per 10 car parking spaces for double rows of parking and 1 tree per 5 car spaces for single rows of parking and around the carpark in accordance with Council's Landscaping Code. Understorey planting is to accompany the tree planting. The landscaping details are to be submitted to and approved by Council prior to the issuing of an Occupation Certificate.

37. Public Authority Matters, Underground Telecommunications & Undergrounding of Services:

· That the applicant shall submit to Council a letter from a licensed telecommunications carrier confirming that satisfactory arrangements have been made for the provision of underground telephone services to the site / building(s), prior to the release of the Subdivision Certificate / Occupation Certificate;

· Deleted;

· Electricity and telecommunication cabling shall be placed underground at the applicant’s expense from the development site to the main power lines and telecommunication cables in accordance with the specifications of Energy Australia and telecommunications suppliers. The following work must be carried out:

· Where the property is located on the opposite side of the street to the main power lines and telecommunication cables, the house services are to be placed underground from the development site to the nearest location on the opposite side of the street for connection to the existing mains supply as directed by Energy Australia and the telecommunications carrier. The method of construction across the road carriageway shall be by directional boring beneath the road pavement; or,

· Where the property is located on the same side of the street as the main overhead power lines and telecommunication cables, all services are to be placed underground across the full width of the frontage of the site. Any overhead powerlines and telecommunication cables that cross the road from the development site must also be placed underground and the cabling installed and distributed to properties in accordance with the Supplier’s and Carrier’s requirements.

38. Prior to the issue of a Construction Certificate, the applicant must contact:

(a) The Engineer Planning and Supply Negotiations (West) Energy Australia on 131 535, to obtain quotation to underground power supply lines and where appropriate a quotation to underground the main overhead power supply lines adjacent to the frontage of the subject property.

(b) The Telecommunications carrier on 1100 advising that undergrounding of the telecommunication cabling is required.
39. If required, an easement (within the property) shall be created in favour of electrical and telecommunications suppliers:

(a) For the provision of underground services and above ground pillar boxes for access to their equipment;

(b) The easement is to be 3m wide abutting the property boundary at the point of entry and 1.5m within the property;

(c) Where the easement is to be enclosed, minimum headroom of 2m is required above the floor level;

(d) The required easement shall be created and registered prior to the issue of an Occupation Certificate or use of the building.

40. The wording of the easement shall be approved by Energy Australia and the Telecommunications Carrier where applicable prior to lodgement at the Land and Property Information (formerly Land Titles Office). Proof of lodgement is to be provided to Council prior to the issue of a Construction Certificate . Proof of registration of the easement for services shall be provided to Council prior to the issue of an Occupation Certificate or use of the building.

41. If required, street lighting must comply to the Australian Standard for pedestrian area lighting, 1158.3.1 ‘Performance and installation design requirements’ and be consistent with the requirements of Energy Australia.

42. Any disturbance to footpaths as a result of the undergrounding of services shall be restored at no cost to Council. A Works Permit from Council’s Customer Service Centre must be obtained prior to undertaking the work.

43. A plan indicating the depth and location of all services (i.e. gas, water sewer, electricity, telecommunication, traffic lights, etc.) within the area affected by the development shall be submitted to Council prior to the issue of a Construction Certificate.

44. Any adjustments required shall be at no cost to Council. The relevant authority’s written consent for any adjustments or works affecting their services shall be obtained prior to the issue of a Construction Certificate.

45. Paving: The applicant shall make a separate application to the Director of Technical Services and Operations for any paving on the public way for approval (under the Roads Act, 1993). The applicant/owner shall complete the work wholly in accordance with the requirements of the Director of Technical Services and Operations (including responsibility for the full cost of the work, payment of fees, lodgement of a security deposit and public liability.

TRAFFIC – ENGINEERING

1. Turning area in basement carpark to be kept free of parked vehicles.

2. Parking spaces to comply with the requirements of AS 2890.1 (2004).

3. A minimum height clearance of 2.2m is required, with 2.5m clearance required from the access point to the disabled space location.

4. Internal ramps, aisle widths, gradients, column setbacks and basic off-street parking layout must be in accordance with AS 2890.1 (2004).

5. Prior to construction, a nominated truck route must be submitted to Council’s Manager Engineering Development & Projects, for approval.

6. Access to the basement visitor parking spaces to be made available during visiting hours to the nursing home.

7. The following minimum off-street parking spaces (within the basement parking area) be provided:

a. One (1) disabled/visitor space.
b. Seven (7) staff spaces.
c. Three (3) visitors spaces.

S J Watts
Commissioner of the Court