Robinson Moeskops Architects v Wingecarribee Shire Council - [2005] NSWLEC 140

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION:
Robinson Moeskops Architects v Wingecarribee Shire Council [2005] NSWLEC 140

PARTIES:
APPLICANT:
Robinson Moeskops Architects
RESPONDENT:
Wingecarribee Shire Council

FILE NUMBER(S):
11300 of 2004

CORAM:
Bignold J

KEY ISSUES:
Development Application :- long day child care centre-resident objections-Evidence of Court Appointed Experts-Council supports development subject to imposition of conditions limiting environmental impact.

DATES OF HEARING: 01/03/2005

EX TEMPORE JUDGMENT DATE:
03/01/2005

LEGAL REPRESENTATIVES:
APPLICANT:
Mr P Rigg (Solicitor)
SOLICITORS
Deacons
RESPONDENT:
Mr B Bilinsky (Solicitor)
SOLICITORS
B Bilinsky

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

BIGNOLD J

1 MARCH 2005

11300 of 2004 ROBINSON MOESKOPS ARCHITECTS v WINGECARRIBEE SHIRE COUNCIL
JUDGMENT

: HIS HONOUR

1 This is an appeal pursuant to the Environmental Planning and Assessment Act 1997, s 97 against the decision of the Council refusing development consent to an application to establish on premises known as No 51 Retford Road, Bowral a long term child care centre. The Council’s decision originally was to refuse development consent for reasons stated in the Notice of Determination to the Applicant. Those reasons (briefly stated) concern the adverse effects upon the amenity enjoyed by residents within the locality, the hours of operation would produce an adverse effect upon amenity and that the proposed development would have unacceptable noise impacts upon adjoining properties. Further reasons are to the effect that development represents an overdevelopment of the site, that the development will create an unacceptable increase in traffic generation and will result in traffic hazard concerns both for traffic and pedestrian movements.

2 Following the lodging of the appeal against the Council’s determination, the Court, in accordance with existing practice, directed the appointment of Court appointed experts in respect of two issues—namely the traffic and parking implications of the proposed development and secondly the acoustical impact of the proposed development. The appointment of those two experts Mr Hallam (the traffic expert) and Dr Tonin (the acoustical expert was prompted by the Council’s Statement of Issues (Exhibit C) which raised traffic and acoustical impacts of the proposed development on the surrounding locality as the principal issue. Those issues enumerated in the Statement of Issues are amplified and fleshed out versions of the reasons for the Council’s original decision refusing development consent (that I have earlier summarised).

3 Following upon receipt of the reports of the Court appointed experts and following receipt of the further addendum report of Dr Tonin—prepared in response to the developer’s proposal to reduce the scale of the proposed child care centre from 80 child places to 59—the Council has at today’s hearing indicated its revised position which would not oppose the grant of development consent subject to the imposition of a regime of conditions of development consent which have been drafted with the benefit of the advice of the two Court appointed experts and in particular with the advice of Dr Tonin in relation to the acoustical impacts.

4 However, the Council has led evidence from a number of residents who opposed the development in its original form and supported their opposition with detailed written submissions to the Council and on the hearing of the case today when the Court conducted a view of the premises, the proposed development site and its environs in Retford Road, the Court received further evidence from a number of the objecting residents who had provided written objection to the Council at any earlier stage in the processing of the application. The Court has not only had the benefit of that evidence but has had the benefit of the view of the site and its environs. In particular the Court has had the benefit of experiencing the environment and ambience of this part of Bowral in the Retford Street existing residential development and has had the benefit of an appreciation of the state of development in the locality. That view and the observations made at the view support the statement contained in the Statement Of Basic Facts (Exhibit B) prepared on behalf of the Council which indicates that this part of the suburb or township of Bowral is a neighbourhood characterised by single storey detached cottages on lot sizes generally greater than the minimum area prescribed by the Council’s Development Control Plan. The statement goes on to say that “the locality is an established older area of Bowral”, a point that was much emphasised in the written objections to the Council, which give the impression that, generally speaking, the residents of this particular part of the township of Bowral are long standing residents of an older age group whose families have in the main grown up. I, of course generalise but that is the thrust of many of the written submissions which suggested to the Council that a more appropriate location for the establishment of a long care child care centre would be in the more recently developed suburb of East Bowral where younger families with children dominate in terms of the existing demographic profile.

5 The Court, and the residents at the earlier part of the hearing today conducted on the development site, also had the benefit of Dr Tonin who assisted the Court and the residents in answering questions and explaining his opinions of acoustical assessments and as to how he considered the proposed development to have an ultimately acceptable acoustical impact brought about chiefly by the reduction in the number of children (ie the maximum number of children to be accommodated from the original 80 to the current 59) together with the installation of acoustical boundary fencing and the adoption of a significantly controlled outdoor activity management program (as detailed in the conditions limiting the times, the physical area and the number of children permitted to engage in outdoor activities at the premises when developed). The relevant time limits are for forty-five minutes maximum in the morning and forty-five minutes maximum in the afternoon.

6 A number of residents raised concerns about the efficacy or sufficiency or the workability of such a management regime suggesting that perhaps the quantity of outdoor activity did not comply with the relevant standards set by the Department of Community Services. (Of course, the obtaining of development consent to the proposed development is not of itself sufficient to sanction the commencement of such an activity and licensing under the ageios of the DOCS of any such establishment would be required in addition to development consent).

7 In any event the outdoor activity regime with the reduced number of child intake together with the proposed acoustical barriers to be erected on the eastern, western (and now southern) boundaries as proposed by Dr Tonin in his addendum report (as supplemented by his oral testimony) lead him to conclude that the acoustical impact of the proposed development would be acceptable on its environment, that is recognising the general ambience of quietness and the distinctly settled residential character of this part of Bowral.

8 I have carefully considered the matters raised by the objectors both in their written submissions to the Council and in their further evidence before me at the site this morning. My assessment of the objections is that the majority focus upon the traffic generation and traffic safety conditions on Retford Street and I can well understand and appreciate the concerns that have been expressed. No doubt a development on this site (which comprises a little more than 2000 square metres) of a child care centre will generate far more traffic movements than would occur with a conventional residential development particularly if each of the two blocks (which combine to constitute the development site) only had one house erected on each of the two parts. However, having regard to the opinions and assessments of traffic implications contained in Mr Hallam’s report (Exhibit D) and notwithstanding the concerns expressed by the residents I am satisfied that his expert opinions ought to be accepted. Of course one is always conscious of the fact that traffic experts assessing traffic implications of a development in a local environment will bring to bear their specialised knowledge in a manner that may be different from the perceptions and experiences of local drivers and pedestrians, and therein lies the nub of the difference in the opinions of the local residents who live and drive and walk in Redford Street compared with the professional observations assessments and the evaluations undertaken by Mr Hallam. However, Mr Hallam’s expertise in this area is highly respected and having read his report (Exhibit D) I am entirely satisfied with the opinions that he expresses. For example at page 11 of his report he notes the following:

On balance and taking into account general traffic and pedestrian movements and the relevant guidelines and development control plans I have considered the environmental capacity implications of the proposal to be satisfactory.

9 His conclusions are expressed at p 12 of his report in which he approves of the revised site plan (which made some minor changes to parking arrangements, aisle widths, entry points and the like) and he has reached the view that the proposal is satisfactory.

10 The third conclusion is expressed in the following terms:

I have considered the external traffic implications of the proposal in detail. The road and traffic environment will remain satisfactory with the addition of the extra development traffic. I conclude that the issues relating to external traffic impact on amenity and safety are not reasons to refuse the development consent.

11 I adopt Mr Hallam’s assessment of the traffic implications. His report of course was done when the proposal was for a maximum of 80 children to be accommodated. Needless to say with the significant reduction to a maximum operation involving 59 children the traffic implications will be far less than what they were when he assessed them on the basis of a centre for 80 children. Accordingly, there is a very comfortable in-built margin in my acceptance of Mr Hallam’s expert traffic opinion by virtue of the fact that he was assessing a development for up to 80 children whereas the development for which the Applicant now seeks approval is up to a maximum of 59.

12 I appreciate (as I experienced first hand) the unusual alignment or configuration of Retford Street just a couple of hundred metres to the west of the subject land, where there is quite a bend and a curve and I appreciate and accept the local residents’ evidence that that configuration creates safety difficulties particularly with speeding cars. (That no doubt was an aspect of the traffic evaluation that Mr Hallam undertook.)

13 A number of the residents’ objections were directed to the acoustical impacts, that is the impact of children at the centre generating typical noises from such developments. I have mentioned that Dr Tonin in his original report saw substance in these objections, some of which led him to conclude that acoustical barriers of up to five metres height would be required along two the side boundaries of the development site (an obviously unacceptable aesthetic result). In his addendum report (with the reduction of the child maximum intake from 80 to 59) his recommended acoustical barriers are significantly reduced in height to half the size he originally had prescribed, that is 2.5 metres high barriers on the west, east and now southern boundaries at the site. I accept the immediately adjacent residents’ concerns that they are high enclosures for the site on three sides and that there will be inevitably some adverse affects of the presence of such high acoustical barriers close to these common boundaries. For example, the Neilssen residence adjoining on the eastern side of the development site has its eaves line at about that height and the acoustical barrier will have some adverse effect apparently upon prevailing breezes and the like. (The acoustical barrier will be located of course on the western side of the Neilssen home.)

14 I am also conscious of the fact that Mrs Hamilton, the neighbour on the western boundary cares for a son who requires continuous care and is said to be likely to be perturbed by the nature and intensity of the development proposed and is likely to be concerned about the proximity of the acoustical barrier 2.5 metres high close to the common boundary. However, I did note on the view that the Hamilton home is set much further back from its common boundary with the development site than is the case with the Neilssen home on the eastern boundary, and notwithstanding the concerns which I perfectly understand that were made on behalf of Mrs Hamilton by Mrs Sinclair (who represented her today) and for Mrs Hamilton’s son I am satisfied that the apprehended adverse impact will not be as significant as they currently apprehend it to be.

15 I have given considerable thought, in deference to the content of the objections, to the appropriateness in terms of suitability of the site for the proposed development to be established in this locality. A number of the residents in their objections (and again today) pointed out that only 100 or 200 metres to the west of the subject site the Council a couple of years ago had refused consent to a more modest scaled child care development at No 39 Retford and indeed the owners of No 39 have raised objection to the present proposal, no doubt feeling if they could not get an approval for their development why were things any different a little way along the street? Again my view today satisfied me that the property, No 39 is situate right on the curve or bend in Retford Street that I have earlier mentioned and is obviously not nearly as capacious a lot as is the present lot (which is perfectly rectangular on almost flat land with an area of 2030 square metres). I do not need of course to compare the developments other than to point out the obvious differences between their respective sites which were observable on the view today.

16 I accept the residents’ claims that the proposed development will be experienced as an intrusion into the existing environment, and I accept that the building form on the development site will be at least the equivalent of two very large dwellings joined together. The overall floor area for this single storey structure (but nonetheless having a high roof line) is 530 or 540 square metres which is the equivalent of two (perhaps three) very large homes put together. The site however, as I have pointed out, is a very large site and if one were to have a 270 square metre home on a 1000 square metre block and the same replicated development next door (with a modest side boundary set back separating the houses) one would not be taken aback by such a scenario in a residential area. Here the building is of course one building with an address to the street having a front elevation of some forty-one metres. I accept that that is an extensive building with a high roof line which is not at all characteristic of the modest cottage style development prevalent in the locality. But given the different nature of the development, given the capacity for landscaping, given the outdoor space around the building it does not, in point of fact, represent a very large footprint for a 2000 square metre development site despite a number of the objectors thinking the building was a “gross over-development”. Nor does it involve an excessive floor space ratio. Indeed, the ratio is a modest 0.25:1.

17 All in all, and having regard to the full gamut of the evidence (both expert and lay) and with the benefit of the view that I had today and the evidence I received from the residents I am satisfied that the position ultimately adopted by the Council, being a considered position brought about by its responsible consideration of the contents of the Court appointed experts’ advice (which the Council has evidently accepted) is entirely understandable. I too have accepted the expert evidence, recognising the eminent reputations both of Mr Hallam and Dr Tonin respectively in traffic assessment and acoustical assessment and notwithstanding the residents’ objections and the grounds for their objections many of which I sympathetically understand.

18 Notwithstanding the fact that this development will be in the nature of what has been fairly described as a commercial intrusion into a quiet established residential area, I am nonetheless of the opinion that with the regime of conditions in place and being strictly enforced, that the development is ultimately an acceptable (albeit essentially foreign) change introduced into an existing residential environment.

19 I do not want my description of the proposal being a “foreign element” to be overstated, since, of course, the development of child care centres more often than not occurs in residential areas, not only in the country areas but in Metropolitan Sydney as do schools and churches which are generally to be regarded as adjunct residential development. Rather, when I refer to “foreign” I mean that it is of a type and a scale, which is different (and significantly different) from the prevailing and settled residential patterns in the area.

20 However, I am satisfied having regard to the evidence in its totality that the site is suitable for the proposed development, which subject to the regime of conditions that has been agreed upon between the parties and which I will impose should bring the development into a state of co-existence with the settled residential pattern which will not be as intrusive or as unacceptable as the local residents have apprehended it to be. That is not to give but scant regard to their objections and the force of them. They were very impressively put together both in their written objection from and in their evidence today. The matters they raised were of considerable weight and deserving of great attention and consideration which I have given them in my planning evaluation of the proposal. However, on balance, and particularly in the light of my acceptance of the opinions of Mr Hallam and Dr Tonin, I am of the view that the appeal should be allowed and development consent be granted subject to the conditions of development consent which are encapsulated in Exhibit L. The exhibits may be returned and the Council is directed to provide a re-engrossed copy of the conditions for incorporation in the Court’s Orders.

CONDITIONS OF DEVELOPMENT CONSENT

ROBINSON MOESKOPS ARCHITECTS –V- WINGECARRIBEE SHIRE COUNCIL

No. 11300 of 2004

GENERAL – DEVELOPMENT CONSENT CONDITIONS

ADMINISTRATION AND COMPLIANCE

Compliance

1. Compliance

2. Qualifications and Responsibility for Documentation

3. Developers Representative during Construction of Works

At least of 48 hours prior to commencement of any construction works on site the applicant must nominate to Council in writing their representative (Construction Supervisor) who will be responsible for all aspects of construction and site control, including Traffic Control, Sediment and Erosion Control and liaison with Council Officers and all other Authorities.

· Name of Representative:

· Company :

· Position:

· Contact Ph:

· Contact Fax:

· After Hours Contact:

· Signature of Representative:

· Signature & Acceptance of representative by the Developer:

· The nominated " Construction Supervisor" shall hold qualifications acceptable for Corporate Membership of the Institute of Engineers, Australia, or be Approved by the Director and/or has, or possess, proven experience and suitable relevant qualifications for the control, supervision and management of civil engineering works as required for carrying land development to the satisfaction of Council’s Director of Planning and Environment.

Prior to commencing any works on site the Construction Supervisor shall:-

· Give Council seven (7) days written notice of intention to enter the site, and

· Submit to Council a proposed Schedule of Works.

Failure to comply with the above requirements will result in an immediate Stop Work Order.

4. Hours of Demolition and Construction Works

5. Workers Compensation & Public Liability

6. Hours of Operation

7. Number of Enrolments

8. Use of Outside Play Areas

The number of children in the outside play areas shall not exceed:

a) 15 children in each of the two Eastern play areas; and,

b) 15 children in the Western play area.

The time of use of the play areas shall not exceed;

a) in the Eastern play areas 45 minutes in total in the morning and 45 minutes in total in the afternoon; and,

b) in the Western play area 45 minutes in the morning and 45 minutes in the afternoon.

The Western play area shall be restricted to 0-2 year olds.

9. Outdoor Play Areas

10. Construction Certificate

Environmental Planning and Assessment Act 1979

11. Other Approvals

Prior to any work commencing, written approval under Section 68 of the Local Government Act 1993 shall be obtained for stormwater drainage, sanitary drainage and water plumbing, from the Council as the appropriate Water Supply Authority.

Roads Act

12. Approval for Operation

Centre Based and Mobile Child Care Services Regulations (No 2) 1996’

13. Demolition Approval

The existing dwelling shall only be demolished in accordance with the requirements of AS 2601-2001 "The Demolition of Structures".

Precautions to be taken shall include compliance with the requirements of the WorkCover Authority of New South Wales, in respect to:-

(a) Protection of site workers and the general public.

(b) Erection of hoardings where appropriate.

(c) Asbestos and lead based paints handling and disposal where applicable.

Land Title

14. Detention Basin Maintenance

The creation of a "Positive Covenant" on the title of the land of the proposed development requiring that the proposed detention basin be maintained in a safe and functional manner. The Section 88B Instrument shall also make provision for Council to conduct maintenance on the subject basin at the owner's expense if the basin is not maintained to the agreed standard. Details to be provided for the approval of the Director Environment and Planning WITH THE CONSTRUCTION CERTIFICATE APPLICATION or in accordance with Council’s standard terms .

15. Detention Basin Alterations

WITH THE CONSTRUCTION CERTIFICATE APPLICATION.

16. Title Restrictions Re Drainage

Details of function, form and levels of essential earth or other surface works including floodways, shall be noted on the Title of the land burdened to ensure the permanency and designed operation of such facilities.

CIVIL ENGINEERING WORKS AND SERVICES

17. Provision of Works and Services

The provision, by the Applicant at their expense, of the following works and services to be documented and constructed in accordance with Council's Development Control Plan Nos 12 and 41, to the satisfaction of the Council’s Development Control Engineer. PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE the Applicant must obtain approval for the works to be undertaken by submitting adequate documentation including plans, calculations and specifications, to Council which establish that the proposed works are in accordance with all Council's standards and all other relevant Codes and guidelines.

18. Water and Sewer Authority Conditions

Prior to issue of a Construction Certificate, the Applicant must obtain approval from Council (as the Water Supply Authority under Section 68 of the Local Government Act ) for the works to be undertaken by submitting adequate documentation including plans, calculations and specifications which establish that the required works are in accordance with all Council's standards and all other relevant codes and guidelines.

Water service connections and sewer junctions are not to be located under sealed driveways. This may require widening of the access points to those shown on approved Plan.
Stormwater Drainage

19. Connection to Kerb

All stormwater connections to the kerb shall be done using minimum 2mm thick galvanised steel section in accordance with Council’s Standard Drawing No SD102 in accordance with the standards of Development Control Plan 41.

20. Control of Peak Discharge

Adequate and suitable infrastructure is to be provided to ensure the peak discharge from the site is no greater than the pre-developed peak discharge. This infrastructure shall be designed for the 100 year ARI design storm and Council's Development Control Plan No 41. Any stormwater temporarily stored on site shall be done in a manner that does not jeopardise public safety. The Applicant shall provide a risk assessment with the Construction Certificate Application. The onsite detention shall be incorporated into a water re-use strategy. Water re-use shall be required for all non-potable water uses.
Parking, Loading, Access and Roadworks

21. Driveways and Parking

Internal driveways, turning areas and twenty (20) off street vehicular parking spaces including the provision of a disabled access parking space as shown on Plan No. DA04.11.1 prepared by Robinson Moeskops Architects dated June 2004, are to be constructed with an all-weather surface of coloured, patterned reinforced concrete. Parking spaces 3, 8 and 12 are for the use of staff of the Centre.
The parking spaces are to be line marked.

22. Road Shoulder

Road shoulder widening shall be surfaced with two coat bitumen seal to the satisfaction of the Council’s Development Control Engineer to make provision for vehicles parking on the northern side of Retford Road.

23. Construction of Footpath in Footway on Frontage

Concrete paving 1.2 metres wide shall be constructed in the footway on the frontage of the development to Retford Road. The remainder of the footway is to be regraded and grassed. The sewer manhole extending above the existing footpath level shall be incorporated into the new footpath levels to avoid creating a trip hazard.

24. Construction of Footway Crossing

Commercial vehicular footway crossings shall be constructed in accordance with Council’s Standard Drawing No. SD108, for access to the development.

25. Traffic Control Plan

At least seven (7) days prior to the commencement of work, the Applicant shall submit to Council a Certified Traffic Management Plan for each activity of work in accordance with the current version of Roads and Traffic Authority document " Traffic Control at Work Sites" . This Plan must include each construction activity which involves works on or adjacent to public land. If the work site alters, further Plans are to be submitted to Council for its approval. A copy of the Plan is to be kept on site at all times.

Sewer Mains

26. Compliance Certificate for Sewer Main

Prior to issue of a Construction Certificate, the Applicant shall provide the Principal Certifying Authority with a copy of the Compliance Certificate for the sewer main constructed in accordance with plans approved by Construction Certificate 03/1626.
The sewer main shown passing through Lot 201 DP 524020 has been constructed as part of a subdivision of this property which has not been registered. The Applicant shall make application to Council, including payment of the appropriate fee, for a Compliance Certificate to be issued in relation to this sewer main. The Compliance Certificate will be issued for the construction of the sewer main only and will not include other items required by conditions of consent for the subdivision (DA03/0778). The Compliance Certificate will not be issued unless all matters relating to construction and documentation of the sewer main have been provided including but not limited to results of testing, work as executed plans, restoration, provision of maintenance bond, etc.

27. Inspections by Council

At least 48 hours prior to the covering of the following works, Council shall be notified by the Construction Supervisor for the licensed contractor, that the following works are ready for inspection:
(a) Piering in vicinity of sewer main.

28. Building within Vicinity of Sewer Main

Where a building is constructed within the area of influence of the sewer main, the weight of the building shall be distributed away from the sewer main by pier and beam construction. The piers shall be designed by a Professional Engineer and shall be embedded on firm foundation at least 300mm below the invert of the pipe with a minimum horizontal clearance from the pipe of 600mm.

The area of influence of the sewer main is considered that area within the angle of repose of 45o for normal loam/clay/sand foundations, or 600 for rock foundations measured 600mm from the outside of the pipe from the trench bottom.

Notwithstanding the above, a building shall not be erected within 1.2m of a sewer manhole and unobstructed personal access of minimum width of 900mm shall be provided to any manhole located upon private property.

Engineer's details for piering in the vicinity of the sewer main shall be approved by Council prior to the issue of the Construction Certificate.

Water Mains Supply

29. Construction of Water Service

A water service shall be installed to the development by Council at the Applicant's cost.

Council's application form shall be completed by the Applicant and the appropriate fee paid.

30. Construction of Sewer Sidelines

Sidelines and junctions shall be installed for sewer connections to the development by Council at the Applicant's cost.

Council's application form shall be completed by the Applicant and the appropriate fee paid.
General

31. Integral Energy Requirements

32. Telstra / AGL - Where Applicable

33. Works as Executed Plans

34. Relocation of Existing Services

35. Certification of Internal Civil Works

On completion of works and prior to occupation, certification from a practising qualified Engineer shall be submitted to Council detailing that all internal civil works (ie, internal driveways, paths and stormwater drainage systems including any onsite detentions) are in accordance with the approved plans and specifications.

ENVIRONMENTAL MANAGEMENT

Landscaping and Vegetation

36. Landscape Bond

PRIOR TO RELEASE OF THE CONSTRUCTION CERTIFICATE

37. Existing Vegetation

The existing vegetation proposed to be retained along the eastern and western property boundaries is to be supplemented with additional plantings to the satisfaction of Council's Town Planner. A Landscape Plan to address noise and privacy impacts upon adjoining properties is to be submitted prior to release of the Construction Certificate.

38. Landscape Vegetation

Any landscape vegetation location within 2m of either side of the driveway entrances is to be selected from species that have a maximum mature height of not more than 1m, so as not to obscure sightlines for vehicles entering and leaving the carpark area.

39. Disposal of Vegetation

Any trees removed with Council consent and any other vegetation cleared in association with this development shall be disposed of in accordance with Council’s Waste Management Plan. For minor additions and outbuildings removed vegetation shall be either mulched for reuse on site or transported to an approved waste/recycling facility.
No vegetation shall be burnt except with an approval issued by Council under Clause 9 (2) of the Protection of the Environment (Control of Burning) Regulation 2000 .

40. Tree Removal

No tree removal is authorised by this consent other than in accordance with the site plan prepared by Robinson Moeskops Architects Drawing No DA 04.11.1A dated June 2004.
Noise Pollution Controls

41. The Applicant must comply with relevant noise control provisions contained within the Protection of the Environment Operations Act 1997 and Noise Control Regulations and Policies to ensure local amenity is not adversely affected by noise impacts associated with the development.

42. Noise emitted from the premises shall not exceed a level of 47 LAeq(15 min) at any time during operating hours when measured at any point within the boundary of Number 55 and Number 45 Retford Road. Noise levels shall be measured in accordance with Australian Standard AS1055 1997 “Acoustics – Description and Measurement of Environmental Noise”. No penalty shall be applied for tonality or impulsiveness.

43. A 2.5 metre high acoustically impervious barrier shall be constructed on the site;

(a) on the eastern side, between the play area and the boundary commencing 9 metres from the northern boundary and abutting the southern boundary,
(b) on the western side, separated from the boundary by 1.5 metres and commencing 5 metres from the northern boundary and abutting the child care building,

(c) on the southern side on the boundary abutting the eastern barrier, enclosing the southern play area and abutting the building,

(d) the plans of the noise walls are to be submitted to the Court-appointed Noise Expert for approval. These plans are to be approved prior to any issue of a Construction Certificate. The cost of this assessment by the Court-appointed Noise Expert shall be borne by the Applicant.

44. The acoustic barrier shall be constructed from lightweight concrete panels or equivalent material up to a height of 2 metres with a 500 mm high transparent plexiglass panel above having a minimum thickness of 6mm. All gaps in the construction shall be sealed with acoustic sealing compound such as CSR Gyprock Firemastic

Waste Management

45. Waste Management

46. Waste Management Plan

The approved Waste Management Plan must be displayed on site and implemented during construction and ongoing operation of the development. Evidence of recycling/disposal actions and waste management contracts are to be maintained for three years from the date of commencement of work.

47. Waste Management Plan

Section 2 of Council's standard Waste Management Plan is to be completed in accordance with Development Control Plan 49 to the satisfaction of Council's Director Environment and Planning, prior to the issue of the Construction Certificate for the development .

48. Waste Storage

The garbage room is to be designed and maintained so as to prevent the emission of offensive odour. To prevent the emission of offensive odour, any nappies or sanitary items must be disposed of appropriately by being individually bagged and placed in a commercial waste service container.

CONTRIBUTIONS AND DEDICATIONS

49. Section 94 Contributions

Payment to Council of contributions levied in respect of Sec 94 of the Environmental Planning & Assessment Act subject of this development consent to be made PRIOR TO THE ENDORSEMENT AND RELEASE OF THE CONSTRUCTION CERTIFICATE , or as elsewhere specified.

50. Contributions

The contribution by the Applicant of monies for the following designated purposes PRIOR TO THE RELEASE OF THE CONSTRUCTION CERTIFICATE. The exact amount of contribution will be calculated at the rate applicable at the time of payment and will reflect the current contribution rates, which are reviewed annually. Copies of the Contributions Plans are available at Wingecarribee Shire Council's Administration Building in Moss Vale. The current contribution rate is noted below.
Roads and Traffic Management Facilities Contributions Plan (Effective 01/07/93)

The payment of a monetary contribution towards the improvement of local roads to which the development has an impact due to the vehicular movements generated by the development.
Road Sub Plan 2

No LOTs/ETs Rate $ Total $ Account No.

540 4.80 2,592 109010.1406.SP201

Stormwater Drainage Contributions Plan (Effective 21/06/93)

The payment of a monetary contribution towards the augmentation of the stormwater drainage systems within the catchment, of which the development is a part of and has an impact on.

No LOTs/ETs Rate $ Total $ Account No.

100/200 = 5.5 386 2,123 109010.1403.MRFS

Administration Contributions Plan (Effective 23/05/01)

The payment of a monetary contribution to be applied against the cost of Contribution Plan Administration.

No LOTs/ETs Rate $ Total $ Account No.

1 336 336 109010.1401.CPA01

Payment of the above contributions is to be by BANK CHEQUE OR CASH and is to be accompanied by the attached sheet entitled " Record of Payment of Contribution" . Should the Applicant pay by personal or company cheque the plans subject to this approval will not be available for collection until such time as the cheque has been honoured (ie. a minimum of 10 days).

51. Water Supply Authority Contributions

(Water and/or Sewer Facilities)

Water Management Act 2000.

The current rates of contribution applicable are as follows:

Water Supply Contributions Plan

The payment of a monetary contribution towards the augmentation of the headworks water supply system that services the development.

No LOTs/ETs	Rate $	Total $	Account No.
3.14	1,754	5,507.56	2-7500.1409.WEA01.C131

No LOTs/ETs	Rate $	Total $	Account No.
3.14	73	229.22	2-75000.1409.WPW01.C131

Sewerage Contributions Plan

The payment of a monetary contribution for headworks sewerage system that serves the development.

No LOTs/ETs	Rate $	Total $	Account No.
5.9	3,876	22,868.40	3-6500.1407.SPW01.C141

Compliance Certificate

Compliance Certificate fees, in accordance with Council's Revenue Policy are as follows and shall be paid concurrently with developer contributions:-

Water - 141901-1536 $90.00 - Sewer - 141901-1536 $90.00 = $180.00

Prior to the final release, the Applicant shall arrange for Council's Technical Services Division to inspect the infrastructure constructed to ensure Water and Sewer requirements which have been met.

The Construction Certificate will not be issued until the Water Management Act contributions have been paid and/or secured and the approval of Council has been obtained.

BUILDINGS

52. Compliance with Building Code of Australia

All walls within 3m of a side or rear boundary shall have the appropriate fire resistance level required by the Building Code of Australia. All windows and doors within 3m of a boundary shall be protected in accordance with Part C3 of the Building Code of Australia (ie, windows that are automatically or permanently fixed in the closed position).

Details of the proposed method of complying with Part C3 of the Building Code of Australia and the proposed method of ventilating rooms with fixed windows are to be submitted to Council with the Construction Certificate application.

Design and Components

53. Energy Efficiency

The building shall be provided with the following minimum energy efficient measures:

54. Disabled Persons Access and Facilities

(a) Access for people with disabilities must be provided to and within buildings as set out in Table D3.2 of the Building Code of Australia by means of a continuous path of travel in accordance with AS1428.1:-

(i) from the allotment boundary at the main points of entry; and

(ii) from any carparking space on the allotment (whether within or outside the building) provided in accordance with D3.5; and

(iii) from any adjacent and associated accessible building on the allotment; and
(iv) through the principal public entrance.

(b) Disabled Sanitary Facility

The sanitary facility shall be constructed in accordance with the requirements of AS1428.1 Design for Access and Mobility General Requirements for Access .
The Applicant must comply with the provisions of the Commonwealth Disability Discrimination Act 1992.

55. Fencing

The Applicant shall screen the development.

Minimum provision and maintenance thereafter at the developer's expense of permanent and effective screen fencing of 1.8m height hardwood timber lapped and capped fencing to the side and rear boundaries of the site, to maintain the privacy of residents of the site and other properties. This shall be modified for the eastern and western property boundaries to meet the requirements of the Court appointed noise expert.

Building Services

56. Hydraulic Engineer Plans

The application for a Construction Certificate and/or Section 68 Application shall include two (2) copies plans and specifications, including one coloured set, of detailed plans prepared by a consulting hydraulics engineer of:

(i) the sanitary plumbing and drainage;

(ii) the hot and cold water supply systems;

(iii) the stormwater drainage and disposal system, including the layout of roof drainage / surface drainage / sub-surface drainage; and

(iv) on site hydrant and hose reels. Street hydrants may suffice if proof of adequate pressure and flow rates to comply with AS2419 is provided.
Food Preparation

57. The premises must be set up and operated in accordance with the Food Act, the Food Regulations and the Food Safety Standards.

58. The flooring in the food preparation and storage areas must be able to be effectively cleaned, be impervious to grease, food particles and water to prevent pest infestation.

59. Walls and ceilings in the food preparation and storage areas must be sealed to prevent dust and pests getting into the area and must be impervious to grease, food particles and water and must be easy to clean and unable to harbour vermin.

60. Fixtures, fittings and other equipment must be designed constructed, located and installed so that they will not contaminate food, can be easily and effectively cleaned to prevent pest infestation. Adjacent surfaces must be able to be easily and effectively cleaned.

61. The premises shall be registered with Council as a food premises upon the commencement of business operations.

62. Any premises must be provided with a dish washing and glass washing machine or a double bowl sink.

Endorsement of Date of Consent:28 February 2005

NOTES:

1. To ascertain the date upon which the consent becomes effective refer to Section 83 of the Act.

2. This consent will lapse unless the development subject of this consent is commenced within a period of five (5) years in accordance with Section 95 of the Environmental Planning and Assessment Act, 1979 except in the case of staged developments where the provisions of Section 95 (1)(b) of the Environmental Planning and Assessment Act apply.

3. Section 97 of the Act confers on an Applicant who is dissatisfied with the determination of a consent authority a right of appeal to the Land and Environment Court exercisable within 12 months after receipt of this notice.

4. The approval granted by the Council does NOT consider nor negate or vary any private easement, covenant or restriction. The owner is advised to investigate any encumbrance or restriction that may be noted on the title to the land.

5. All conditions on this consent have been imposed having regard to all matters listed for consideration under Section 79C of the Environmental Planning & Assessment Act 1979.

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Citations

Robinson Moeskops Architects v Wingecarribee Shire Council [2005] NSWLEC 140

Most Recent Citation

IENCO and CITY OF MELVILLE [2007] WASAT 56

Cases Citing This Decision

2

Driscoll and Shire Of Augusta-Margaret River [2008] WASAT 219

IENCO and CITY OF MELVILLE [2007] WASAT 56

Cases Cited

0

Statutory Material Cited

0

CITATION:	Robinson Moeskops Architects v Wingecarribee Shire Council [2005] NSWLEC 140
PARTIES:	APPLICANT: Robinson Moeskops Architects RESPONDENT: Wingecarribee Shire Council
FILE NUMBER(S):	11300 of 2004
CORAM:	Bignold J
KEY ISSUES:	Development Application :- long day child care centre-resident objections-Evidence of Court Appointed Experts-Council supports development subject to imposition of conditions limiting environmental impact.
DATES OF HEARING:	01/03/2005
EX TEMPORE JUDGMENT DATE:	03/01/2005
LEGAL REPRESENTATIVES:	APPLICANT: Mr P Rigg (Solicitor) SOLICITORS Deacons RESPONDENT: Mr B Bilinsky (Solicitor) SOLICITORS B Bilinsky