Urbanesque Planning Pty Ltd v Singleton Shire Council

[2010] NSWLEC 1047

Land and Environment Court

of New South Wales

CITATION:	Urbanesque Planning Pty Ltd v Singleton Shire Council [2010] NSWLEC 1047
PARTIES:	APPLICANT Urbanesque Planning Pty Ltd RESPONDENT Singleton Shire Council
FILE NUMBER(S):	10510 of 2009
CORAM:	Tuor C
KEY ISSUES:	DEVELOPMENT APPLICATION :- demolish existing building and construct bottle shop with drive through Impact on conservation area and heritage items traffic, social and environmental impact and noise.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Singleton Local Environmental Plan 1996 Singleton Development Control Plan 2009
CASES CITED:	Helou v Strathfield Municipal Council [2006] NSWLEC 66 Randell Pty Ltd v Willoughby City Council (2005) 144 LGERA 119
DATES OF HEARING:	19 November 2009 and 5 February 2010
DATE OF JUDGMENT:	10 March 2010
LEGAL REPRESENTATIVES:	APPLICANT Mr S Klinger, solicitor RESPONDENT Mr P Jayne, solicitor

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Tuor C

10 March 2010

10510 of 2009 Urbanesque Planning Pty Ltd v Singleton Shire Council

JUDGMENT

1 This is an appeal against the refusal by Singleton Shire Council (the council) of a development application (DA5/2009) under the Environmental Planning and Assessment Act 1979 (the Act) for demolition of existing retail and residential premises and construction of a new liquor store with drive through at 72 George Street, Singleton (site).

2 The main issue between the parties is whether the new building has an adverse impact on the adjoining heritage items and the Singleton Heritage Conservation Area.

Site and context

3 The site is located on the corner of George Street (New England Highway) and Kent Street. It has a frontage of 20.11m to George Street and 50.29m to Kent Street with an overall area of 1,012sqm.

4 The site is developed with a single storey retail and a two storey retail/residential building. The George Street Singleton Streetscape Study prepared in 1987 by Tresev Pty Ltd describes 72 George Street as:

Retail shops….. [Corner portion of site]
A plain and reasonably unobtrusive façade to an infill corner redevelopment of appropriate scale and form which replaced the original corner site. Continuation of awning to more impressive adjacent building structures minimises impact of low scale and poor detailing. Shop front window treatment and finishes are of dubious character. The side of the building fronting to Kent Street is poorly resolved.

Ground floor hairdressing salon, first floor residential (two storey portion of the site)
Imposing two storey façade with restrained brick work articulation at top of parapet and simple plaster stucco design above, possibly not the original building. As with other portions of the site, window treatments are not very sympathetic to original configurations.

5 The site adjoins the former Mechanics Institute (74 George Street) to the south and is opposite the former Patrick Plains Shire Council (corner Macquarie and George Streets). Both buildings are listed as heritage items of regional significance under Singleton Local Environmental Plan 1996 (LEP 1996). A number of buildings near the site along George Street are listed as local heritage items and the former Post Office (27 George Street and Ewebank (88 George Street) are listed as heritage items of State significance.

6 The site is within the Singleton Heritage Conservation Area. The part of George Street where the site is located is characterised by one and two storey commercial buildings, which are built either to or set back from the street alignment.

Planning controls

7 The site is in Zone 3 (Business Zone) under Singleton Local Environmental Plan 1996. The proposal is permissible with consent.

8 Clause 16(3) of LEP 1996 provides:

Except as otherwise provided by this plan, the Council shall not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the carrying out of the development is consistent with one or more of the objectives of the zone within which the development is proposed to be carried out.

9 The objectives of Zone 3 (Business Zone) are:

(a) to provide for commerce, retailing, offices and other similar commercial development and services in suitable locations,
(b) to maintain and enhance the character and amenity of commercial areas, to promote good urban design and to retain heritage values where appropriate.

10 The site is in the vicinity of a number of heritage items identified in LEP 1996. Clause 27 provides:

The Council shall not grant consent to development on land in the vicinity of a heritage item unless it has made an assessment of the effect the carrying out of that development will have on the heritage significance of the item and its setting.

11 The site is within a Heritage Conservation Area under LEP 1996. Clause 28(3) states:

When determining a development application required by this clause, the Council must take into consideration the extent to which the carrying out of the proposed development would affect the heritage significance of the heritage conservation area.

12 Cl 32 of LEP 1996 applies to development along major roads including the George Street. Cl 32(2) provides

(2) The Council shall not consent to development on land to which this clause applies unless it is satisfied that:
(a) the development, by its nature or intensity, or the volume and type of traffic likely to be generated, is unlikely to constitute a traffic hazard or to materially reduce the capacity and efficiency of a main road, and
(b) the development is of a type, whether or not related to the characteristics of the land on which it is proposed to be carried out, that justifies a location in proximity to a main road, and
(c) the location, standard and design of access points, and on-site arrangements for vehicle movement and parking, ensure that through traffic movements on a main road are not impeded, and
(d) the views of the local traffic committee or Regional Advisory Committee (as appropriate) have been obtained and considered by the Council.

13 Singleton Development Control Plan 2007 was in force at the time the development application was lodged. This was amended in December 2009 by Singleton Development Control Plan 2009 (DCP 2009). The parties did not raise any issue as to which version of the DCP is applicable to the site. Mr Jayne, for the council, refers to DCP 2009 and the heritage exerts refer to the 2007 version. As I understand there is no material difference in the versions relevant to the application and I have adopted Mr Jayne’s reference to DCP 2009.

14 Part D of DCP 2009 provides General Development Provisions for Commercial and Retail development (Element 3) and Heritage (Element 8). Part E of DCP 2009 provides Locality Based Provisions, which include controls for the Singleton Heritage Conservation Area. The Character Statement includes:

The Singleton Heritage Conservation Area was one of the most important early settlements in the Hunter Valley….

Prior to the construction of the Dunolly Ford Bridge and the Singleton Crossing Bridge (New England Highway) over the Hunter River, people crossed the Hunter River using a River crossing (Ford) which ran from George Street to (now named) Dunolly Road. The original road layout of the township is largely attributable to this crossing, because the roads which frame the grid layout (ie.John Street, Queen Street and George Street) diverge to the common river crossing point. The grid layout fills-out the space between these roads.

Concentration of earlier public and commercial buildings in George Street running back from the river. Later expansion of the town is reflected in the north-south street grids to the south and east.

The old township’s aesthetic significance is derived from the intactness of its excellent residential and commercial streetscapes and the unique urban character and special qualities created by the intersections of its two street grid systems.

……

… The Singleton Township Conservation Area is considered to be of State Significance.

15 The criteria in s2.1 include:

In George Street there is a greater mix of single storey and two storey buildings, buildings on the alignment: and buildings setback from the alignment.

….

…New development in this part of the township should take into account existing setbacks, height of buildings and proportions.

16 The criteria in s2.2 require that development “be designed in a manner which respects and preserves the special characteristics of the conservation area.” These characteristics include:

Main Street
The buildings that line George Street are generally two storeys in height and commercial/civic in nature. Due to the orientations of the two grid patterns, the corner sites are prominent.

Corner buildings
The corner buildings within the township play a key role in Singleton unique character. The junctions of the two grid systems provide unusual corner conditions at many of the major intersections.

The intersection of Macquarie, Kent, and George Streets is an example of this, with the Former Patrick Plains Chamber building addressing the corner at a 45 ^o angle.

Vistas
The long streets intersecting George Street create vistas by providing clear views through to landmark buildings, especially corner buildings. Kent Street views of the former Patrick Plains Shire Council Chambers is an example of such a vista.

George Street
…George Street has retained many buildings of varying periods. The most notable change is the visual impact of signage along the length of the street. The buildings front the footpath forming walls along the street of a predominantly two storey scale.

17 Section 4 of DCP 2009 provides objectives and criteria for the characteristics of the Singleton Heritage Conservation Area that need to be retained. Section 3.3 identifies qualities that should be protected including:

The surviving public and commercial buildings, particularly concentrated on George and Campbell Streets.
The unique special qualities and vistas created by the intersections of the town’s two different street grid systems

18 Section 3.3 encourages the following forms of development including:

Additions and infill developments which respect the scale, form and proportions of the existing buildings in the locality.

The issues and evidence

19 The Court visited the site and surrounding area on 19 November 2009. A number of objectors provided evidence. Their main concerns were the demolition of the existing buildings on the site, particularly the two storey component and the impact that the new building would have on the conservation area and nearby heritage items. A number of objectors raised concerns about the traffic likely to be generated by the proposal and its impact on the existing road system and demand for parking. There was concern about the potential social impacts of the bottle shop use and the need for a further bottle shop as this will impact on existing operations and result in an increase in anti social behaviour. The Mechanics Institute, which is used by various community groups, and the owners of 1 Kent Street were also concerned about the noise impacts of the proposal.

Heritage

20 Dr P Pollard, for the council, and Ms S Azzi, for the applicant, provided heritage evidence. The experts agreed that the Singleton Heritage Conservation Area is of state significance and that while the condition of the existing building did not warrant its retention any infill building should maintain this significance. In their initial joint report Ms Azzi and Dr Pollard generally agreed that:

The single storey element of the existing structure has little if any aesthetic heritage value. The very poor physical condition of both the single and two storey structures is agreed to have reduced the buildings to a non viable economic prospect for renovation. This, coupled with the extent of modifications made over time to both single and two storey structures are agreed to have rendered them to a situation in which demolition is justifiable. The only point of difference between Dr Pollard and Ms Azzi in regard to the existing structures is that Pollard considered the two storey element to contribute positively to the overall streetscape – largely by virtue of its textures and generally vertical character. The existing two storey building’s height was considered by him to assist in the streetscape., as it offered something of a visual “step” to the grander scaled Mechanics Institute building adjacent. In this regard Pollard considered that a new structure incorporating some taller element would be preferable to the informally low scale new building. In the applicant’s Statement of Heritage Impact, p14 the two storey section of the existing building has lost most of its heritage significance due to the alterations and additions over time, but due to the surviving dentil detailing to the upper gable facing George Street and the surviving chimney top it was assessed as having low local significance. However the value of its contribution when weighed against the poor condition of the structure was considered by Dr Pollard to be insufficient as to require retention of the structure.

21 Dr Pollard’s main concern was the replacement infill building as originally proposed (exhibit A) as he did not consider it would have an acceptable impact on the significance of the conservation area for three main reasons:

the proposal should be setback to provide greater visibility of the former Mechanics Building and reflect the change in the grid pattern occurring on the corner,
the materials and detailing of the proposal are not adequate, and
the landscaping and vista to the former Patrick Plains Shire Council building along Kent Street.

22 During the hearing the heritage experts prepared a further joint report (exhibit 10), which outlined agreed principles for an amended design that sought to address the concerns about the original proposal.

23 The amended application was renotified and a number of submissions were received which reiterated the concerns of the original proposal. Dr Pollard and Ms Azzi prepared a further joint report and generally agreed that the amended proposal was acceptable subject to some further minor amendments, which have been incorporated into conditions.

Findings

24 The site is in a prominent corner location at the junction of the two historic street grids within Singleton Conservation Area, which is of State significance and adjoining or in the vicinity of a number of heritage items. The removal of an existing commercial building and the replacement infill building have the potential to adversely impact the significance of the Singleton Conservation Area and the items in the vicinity. I accept Dr Pollard’s evidence that the original proposal was unacceptable. The key considerations are whether the existing building should be retained and whether the replacement building has an acceptable heritage impact.

25 In Helou v Strathfield Municipal Council [2006] NSWLEC 66, Moore C set out the questions to be considered when determining the acceptability of an application to demolish a contributory item in a heritage conservation area:

1. What is the heritage significance of the conservation area?

2. What contribution does the individual building make to the significance of the conservation area?

The starting point for these questions is the Statement of Significance of the conservation area. This may be in the relevant LEP or in the heritage study that led to its designation. If the contributory value of the building is not evident from these sources, expert opinion should be sought.

3. Is the building structurally unsafe?

Although lack of structural safety will give weight to permitting demolition, there is still a need to consider the extent of the contribution the building makes to the heritage significance of the conservation area.

4. If the building is or can be rendered structurally safe, is there any scope for extending or altering it to achieve the development aspirations of the applicant in a way that would have a lesser effect on the integrity of the conservation area than demolition?

If the answer is yes, the cost of the necessary remediation/rectification works should be considered.

5. Are these costs so high that they impose an unacceptable burden on the owner of the building? Is the cost of altering or extending or incorporating the contributory building into a development of the site (that is within the reasonable expectations for the use of the site under the applicable statutes and controls) so unreasonable that demolition should be permitted?

If these costs are reasonable, then remediation/rectification (whether accompanied by alteration and/or extension or not) should be preferred to demolition and rebuilding.

6. Is the replacement of such quality that it will fit into the conservation area?

If the replacement does not fit, the building should be retained until a proposal of suitable quality is approved.

26 The experts disagreed on the contribution the existing building made to the conservation area. However, I accept the opinion of Dr Pollard that the original two storey part of the building is of some significance and makes a positive contribution to the Singleton Conservation Area. While it would be preferable that this section of the building be retained, the experts agree that the extent of alterations to the building and its poor condition make this option unfeasible. The application was accompanied by a Structural Adequacy Report prepared by Geoff Craig and Associates Pty Ltd (Structural Report) which concluded that:

Overall, the quality of the construction of the building and extensions is generally poor and details of the existing foundations are unknown. On this basis, we consider that any refurbishment and/or upgrading of the existing structures could not be certified to comply with current Structural Engineering and Building Code of Australia Standards.

27 It is not unusual that a pre-1900s building may not meet current standards. I do not accept that it would not be feasible to upgrade the building to meet these standard but the question is whether it is reasonable to do so given the likely costs and the significance of the building. Council did not raise issue with the Structural Report and I accept Dr Pollard’s evidence that while the two storey element contributes to the Singleton Conservation Area, its contribution when weighed against the poor condition of the structure is insufficient to require retention of the structure.

28 The question then becomes whether the replacement building will have an acceptable impact on the Singleton Conservation Area and the heritage items in the vicinity. The experts have agreed that the amended proposal is generally acceptable, although Dr Pollard maintained his concern about the setback to George Street.

29 I am satisfied that the form of the building is appropriate in the streetscape, which contains a mixture of one and two storey buildings with no consistent building setback to the street alignment. The single storey scale of the building will provide views of the former Mechanics Institute building and is similar in scale to the single storey building, which adjoins the former Mechanics Institute building to its south (76 George Street). The proposal is built to the street alignment. While I acknowledge Dr Pollard’s opinion that the proposal could be setback from George Street to open up the corner and provide views of the former Mechanics Institute building, I accept that the proposal maintains the alignment of the existing building and has a similar setback to 76 George Street. The former Mechanics Institute building is setback further from the street and lined by two side laneways. This arrangement frames the former Mechanics Institute building and I accept Ms Azzi’s opinion that this maintains the existing historical relationship between the site and the former Mechanics Institute and is appropriate in the streetscape.

30 The original proposal was tilt up slab construction, which Dr Pollard considered would not achieve appropriate detail or be characteristic of the Singleton Conservation Area. The proposal has been amended to be brick construction in different colours or rendered with details such as exposed downpipes and recessed faux windows. It is important that the colours, materials and details indicated on the plans (exhibit D) are implemented in the construction of the building and a condition is imposed to require this. There are also no details of the windows and doors on the George Street façade or the faux windows (decorative fillet lines) so a condition has been included which requires these details to be submitted for approval.

31 DCP 2009 identifies that views along Kent Street to the former Patrick Plains Shire Council are important to maintain. The proposed building does not obscure any views of this building. The rear of the site is currently vacant and unsightly. This area will be used for parking and as the drive though area for the bottle shop. The experts agreed that, subject to satisfactory landscaping, the view to former Patrick Plains Shire Council would be acceptable. A condition had been imposed to require planting of trees on the site and within the front planting area to screen and soften the parking area and the view to the former Patrick Plains Shire building.

32 The experts agreed that proper integration of signage into the building is important to the streetscape and is a requirement of DCP 2009. During the hearing they indicated appropriate location for signage (exhibit 16) but no details or size of the signage were specified. Due to the lack of detail I have not incorporated this as part of the approval and a condition has been imposed that a further signage strategy is required to be submitted for approval, which provides details of the signage. Clearly, an illuminated sign box projecting from the façade of the building would not be appropriate and any signage that faces or is viewed together with the former Mechanics Institute building should be carefully considered.

33 The proposal, if implemented in accordance with the conditions, will have an acceptable impact on the Singleton Conservation Area and the heritage items in the vicinity and meets the requirements of LEP 1996 and DCP 2009.

Other issues

34 The objectors raised concerns about traffic, social impacts and noise. These were initially also raised by council but have been resolved by further expert evidence or through conditions.

Traffic

35 Traffic was initially raised as a contention in the appeal as a traffic report was not lodged with the application that assessed the impacts of the development of the George Street and Kent Street intersection, as required by cl 32 of LEP 1996. A traffic report prepared by TPK & Associates Pty Ltd was subsequently provided and reviewed by Council. Council no longer presses the traffic issues. A number of residents were concerned about the impact of the proposal on traffic but in the absence of any alternate expert traffic evidence, I accept that this is not a reason to refuse the application.

Social and economic impacts

36 The parties joint expert social planner, Ms S George, prepared a report on the social impacts of the proposal. The report concludes that:

The proposed development is unlikely to result in an unreasonable social impact for residents of the immediate vicinity, Singleton Suburb or of the Singleton LGA due to:
the available demographic and socio-economic data which reveal that the population of Singleton is faily affluent and robust compared to the Sydney Statistical Division and the NSW average;
the Singleton LGA has recorded no incidents of assaults or offensive behaviour on packaged liquor (bottle shop) premises in the years 2005-2008;
the available literature suggests that the social impact risks associated with packaged liquor premises are less than those associated with on licence premises such as hotels;
the subject site is to utilise an existing licence located within the suburb of Singleton and Singleton LGA and therefore results in no increase in liquor outlet density in those areas.

37 Mr Jayne referred to the decision of Baston JA in Randell Pty Ltd v Willoughby City Council (2005) 144 LGERA 119 where at [21] – [33] His Honour summarised the principles relevant to a consideration of social and environmental impact under s 79C(1)(b) of the Act. Mr Jayne outlined the principles as follows:

(a) the mere threat of competition to existing businesses, if not accompanied by a prospect of a resultant overall adverse effect upon the extent and adequacy of facilities available to the local community if the development be proceeded with, will not be a relevant town planning consideration

(b) if a development jeopardises a facility already presently enjoyed by a community or planned for it in the future, whether that jeopardy be due to physical or financial causes, and if the resultant community detriment will not be made good by the proposed development itself, that would be a proper town planning consideration to be taken into account.

(c) the section does not require the consideration of economic impact on individual competitors, except to the extent that any impact on individual competitors, or competition generally, demonstrates economic impact in the locality as an environmental or planning matter.

38 The Royal Hotel was concerned about the adverse impact that the proposal would have on their existing operation and the potential loss of staff. However, Mr Jayne’s submission, which I accept, is that in applying the above principles, the potential for an adverse impact upon an individual trader, such as the Royal Hotel, is not a relevant consideration.

39 The proposal therefore has an acceptable social and economic impact and this is not a reason for refusal of the application.

Noise

40 The users of the former Mechanics Institute building are concerned about potential noise impacts from the proposal, particularly from the air conditioning unit and cool room. The owners of 1 Kent Street are also concerned about noise impacts from people parking and using the driveway. A noise assessment report was not submitted with the application. The applicant has agreed to conditions that require an assessment and to undertake any attenuation measures required, including a noise attenuation wall adjoining 1 Kent Street and enclosing the air-conditioning unit and cool room on the boundary with the former Mechanics Institute building. The noise impacts of the proposal can be managed to ensure there is not an unreasonable impact on the amenity of adjoining properties.

41 The proposal therefore has an acceptable noise impacts and this is not a reason for refusal of the application.

42 The orders of the Court are:

1. The appeal is upheld.
2. Development Application development application (DA5/2009) for demolition of existing retail and residential premises and construction of a new liquor store with drive through at 72 George Street, Singleton is approved subject to the conditions in Annexure A.
3. The exhibits, except Exhibits 2, A and D, are returned.

_______________________

Annelise Tuor
Commissioner of the Court

Annexure ‘A’

Conditions of Consent

Urbanesque Planning Pty Ltd

v

Singleton Shire Council

1. APPROVAL IN ACCORDANCE WITH THE PLANS

1.1. The development will be carried out in accordance with the development application, accompanying plans and documents described as:

(a) Statement of Environmental Effects prepared by GWH Construction (NSW) Pty Ltd undated and submitted on 02/04/09;

(b) The following plans prepared by GWH Construction (NSW) Pty Ltd described as;


1.1.b.1. Drawing 1: Cover sheet

1.1.b.2. Drawing 01a: Site Analysis/ Demolition Plan Scale 1:200 17.10.08 Rev 02

1.1.b.3. Drawing 05: Sediment Control Plan Scale 1:200 17.10.08 Rev 01


(c) Statement of Heritage Impact prepared by Carste Studio Pty Ltd (Sylvia Azzi) dated December 2008 and submitted on 02/04/09; and

(d) Structural Adequacy Report prepared by Geoff Craig & Associates Pty Ltd dated 21 October 2008 and submitted on 02/04/09.

(e) The following plans prepared by Carste Studio Pty Ltd and received with an accompanying letter on 1 December 2009:


1.1.e.1. Amended “Elevations and Photo Montage” (dated 30/11/09); and

1.1.e.2. Amended site “Plan” (dated 30/11/09).


For abundant clarity, both of the drawings listed in Condition 1.1(e) prevail, to the extent of any inconsistency, over the earlier drawings listed in Condition 1.1(b).

Notes:

Any alterations to the drawings and/or documentation, as approved by Council, will require further Council consent as per s96 of the Environmental Planning and Assessment Act.

No other works or activities, other than those approved by this consent notice, may be carried out without prior consent from Council.

Reason: To ensure that the development is carried out in accordance with the submitted plans and accompanying documentation.

2.1. Consent for the development will lapse after 5 years. Note that this relates to the period within which the development must commence.

Reason: To specify the period for the lapsing of consent.

3.1. A Noise Impact Assessment (NIA) shall be undertaken by a qualified acoustic engineer in accordance with the Noise Guide for Local Government and Environmental Criteria for Road Traffic Noise publications and should include the following as a minimum:

(a) Project description

(b) Relevant guideline or policy that has been applied

(c) Background noise measurements

(d) Details of instruments and methodology used for noise measurements (including reasons for settings and descriptors used, calibration details)

(e) A site map showing noise sources, measurement locations and noise receivers

(f) Noise criteria applied to the project

(g) Noise predictions for the proposed activity

(h) A comparison of noise predictions against noise criteria

(i) A discussion of proposed mitigation measures, the noise reduction likely and the feasibility and reasonableness of these measures

(j) How compliance can be practically determined taking into account the requirements of Conditions 3.3, 3.4 and 3.5 (below).


3.2. The report should consider the locality, the operational noise of the premises, the hours of operation of the premises and the noise impacts of traffic accessing and exiting the premises.

3.3. A Noise mitigation/attenuation wall shall be constructed along the entire length of the common boundary with 1 Kent Street. The wall is to be constructed from masonry/brick and be a minimum of 1500mm in height and 270 mm in width. The dimensions and materials for this wall would be subject to confirmation in the NIA. The owners of 1 Kent Street may vary the type of fence by agreement with the developer.

3.4. A Noise mitigation/attenuation wall/fence shall be constructed along the entire length of the common boundary with 74 George Street. Any such design must take into account and/or incorporate any noise attenuation features recommended in the Conditions below. The dimensions and materials for this wall would be subject to confirmation in the NIA.

3.5. The Applicant is to investigate and provide engineering details of works proposed to allow for the noise mitigation of the Building’s external air conditioning and cool room refrigeration equipment. The Applicant must ensure that the residential amenity of 1 Kent Street and/or the users of 74 George Street are not adversely affected by the noise from this equipment. Any mitigation/attenuation design must take into account and be consistent with the provisions of the Noise Guide for Local Government (EPA, 21 December 2004). The dimensions, materials and construction details for these mitigation measures would be subject to confirmation in the NIA.

3.6. The assessment and any mitigation features proposed shall be submitted to and approved by Council’s Manager Planning and Development prior to issue of the Construction Certificate.

3.7. Any mitigation measures proposed by the NIA shall be incorporated into the development in order to ensure compliance prior to operation.


Reason: To ensure that the development does not impact on the residential amenity of adjoining development.

4.1. A lighting/illumination plan is to be submitted to and approved by Council’s Manager Planning and Development prior to issue of the Construction Certificate.

4.2. The Applicant must ensure that light spillage from the site will not adversely impact on the amenity of landowners and users of adjoining properties.


Reason: To ensure that the development does not impact on the residential amenity of adjoining development.

5.1. Prior to any work commencing on this site the existing building/s must first be photographed and documented, including provision of measured and dimensioned drawings in accordance with the NSW Heritage Office guidelines: “Guidelines for photographic recording of heritage items” & in accordance with “How to prepare archival records of heritage items”.

5.2. The report to include archival photographs as per those guidelines, including photographic direction and location, provided on a plan of the existing buildings. This report to be submitted to the Heritage Advisor for consideration.

5.3. The archival report to be undertaken by a suitably qualified Heritage Architect/ Heritage professional. The details of this person and their company are to be provided to Councils' Heritage Advisor for approval prior to the report commencement.

5.4. If the same company who undertook the Statement of Heritage Impact for this proposal is undertaking this further portion of work, notification is not required.


Reason: To ensure that the proposed development is carried out in accordance with the supporting documentation and the NSW Heritage Office Guidelines.

6.1. Proposed advertising signs are to have details included such as proposed location/s and a sample of the graphic design and colours for those signs is to be included.

6.2. The faux windows (decorative fillet lines) forming a rectangular space on the front and side façades of the building are not to include advertising signage as it is detrimental to the Heritage Conservation Area.

6.3. The location of permanent building identification signage and the on-going location of advertising must be clearly identified on a set of elevation plan(s) and be submitted to and approved by the Council’s Manager Planning and Development prior to the issue of a Construction Certificate.

6.4. All signage and advertising material must only be displayed on and/or around the building (and the site) in accordance with the plans submitted in Condition 6.3 above.


Reason: To ensure that the proposed development does not detract from the character of the Heritage Conservation Area.

7.1. External colours and brick and rendered surface selections are to be nominated by providing a manufacturer’s sample chip, colour name and specifications on a drawing of the elevations, indicating where those colours and materials are to be provided, together with details of the doors and windows to the George Street elevation, for the approval of the Council’s Manager Planning and Development prior to the issue of the Construction Certificate.

7.2. The external colours and materials must be consistent with the scheme depicted in the drawing “Elevations and Photo Montage” prepared by Carste Studio Pty Ltd and dated 30/11/09 (“the Amended Elevations”).

7.3. The faux windows (decorative fillet lines) forming a rectangular space on the front and side façades of the building in the Amended Elevations must be constructed as recessed masonry panels with brick sills.


Reason: To ensure that the proposed development does not detract from the character of the Heritage Conservation Area.

8.1. Vehicles being loaded or unloaded are to stand wholly within the loading bays designated on the approved plans. Under no circumstances are designated loading bays to be used for the storage of goods or waste materials.

8.2. At no time will vehicles be loaded or unloaded at the kerbside or across the public footpath.

8.3. All vehicles must enter and exist the site in a forward direction.

8.4. All delivery, loading and unloading must only occur during the business hours specified in Condition 26.

8.5. This condition will be complied with for the term of this consent.


Reason: To ensure that the proposed development is designed, constructed and managed in a manner to minimise its impact on the amenity of the area.

9.1. Should any work be undertaken with respect of Council’s kerb and gutter, such as constructing a new kerb crossing the work will be undertaken in accordance with Council’s specifications. Any redundant kerb crossings will be re-instated.

9.2. The work is to be completed prior to occupation of the subject premises.


Reason: To ensure that Council infrastructure remains intact and appropriately constructed.

10.1. The applicant will repair any damage to a public road or associated structures such as kerb & gutter, drains, footpath and utility services caused as a consequence of the development works.

10.2. The work is to be completed to Council’s satisfaction prior to occupation of the subject premises.


Reason: To ensure that any damage to Council owned or maintained infrastructure is repaired.

11.1. Any alterations to existing surface levels on the site shall be undertaken in such a manner as to ensure that no additional surface water is drained onto or impounded on adjoining properties.

Reason: To ensure that such alterations to surface levels do not disrupt existing stormwater flows in the vicinity.

12.1. On-site parking will be provided for a minimum of seven (7) vehicles and will be designed in accordance with Council’s Car Parking Development Control Plan (available at Council’s offices) and AS 2890.1.

12.2. The work is to be completed to Council’s satisfaction prior to occupation of the subject premises.


Reason: To ensure that provision is made for adequate manoeuvring and parking of vehicles within the development which meets the expected demand generated by the development.

13.1. All redundant vehicular accesses shall be removed and the footpath, road shoulders and kerb and gutter, where applicable, restored to match existing conditions at no cost to Council prior to use of the building or issue of an Occupation Certificate for the building.

Reason: To ensure that vehicular access to the development occurs efficiently and safely in accordance with approved plans and unnecessary accesses are restored at no cost to Council.

14.1. All driveways, access corridors and car parking areas are to be designed in accordance with AS2890.1 & 2 - Parking Facilities. The largest vehicle type allowed to enter the site shall be 8.8m service vehicle. The car parking areas shall be constructed with a base course of adequate depth to suit design traffic loadings with concrete or Asphalt surfacing, graded and drained in accordance with Council’s Development Engineering Specifications.

14.2. The awning at the rear of the development shall have a minimum clearance height of 3.6m above finished ground level.


Reason: To ensure the orderly and efficient use of on-site parking and drive-through facilities and ensure that adequate provision is made on-site for the loading and unloading of goods.

15.1. The vehicular entrance and exit driveways and the direction of traffic movement within the site shall be clearly indicated by means of reflective signs and pavement markings prior to occupation of the building.

15.2. This condition will be complied with for the term of this consent.


Reason: To ensure that clear direction is provided to the drivers of vehicles entering and leaving the premises in order to facilitate the orderly and efficient use of on-site parking spaces and driveway access and in the interest of traffic safety and convenience.

16.1. The applicant shall demonstrate that the development will not increase the limits of upstream and downstream flooding for floods over the range of 1 in 1 year to the 1 in 100 year Average Recurrence Interval (ARI) storm events by the inclusion of on-site stormwater detention controls.

16.2. A detailed drainage design shall be prepared for the disposal of roof and surface water from the site, including any natural runoff currently entering the property.


Reason: To ensure that the development is adequately drained and will not increase the flood hazard or flood damage to other properties or adversely affect flood behaviour.

17.1. A suitable qualified landscape architect or horticulturalist is to undertake landscape design taking into consideration the adjoining and adjacent properties along Kent Street (“the Amended Landscaping Plan”). The Amended Landscaping Plan is to be approved by Council’s Development Engineer prior to the issue of a Construction Certificate.

17.2. The Amended Landscaping Plan must consider the “Landscaping Plan” prepared by GWH Architecturals and dated 17.10.08 Ref: 003L (Rev 01) and submitted with the original application.

17.3. The Amended Landscaping Plan must be consistent with the indicative landscape areas depicted on the Amended “Plan” prepared by Carste Studio Pty Ltd and dated 30/11/09.

17.4. The Amended Landscaping Plan must incorporate and provide for the planting and maintenance of medium to large shade trees in each landscape area of a minimum mature height of 4 metres and landscaping to screen the car park from the street and adjoining properties.

17.5. The Amended Landscaping Plan must provide for and screen the enclosure of 4.0 x 2.5 metre Waste Area and the adjoining enclosure of the external Refrigeration and Air Conditioning Plant adjacent to the eastern corner of the building.

17.6. All landscaping works are to be completed prior to the issue of the Occupation Certificate.

17.7. Landscaping is to be maintained for the life of the development in a tidy and orderly manner.


Reason: To ensure that the landscaping enhances the overall appearance of the premises and adds to the appearance of the locality.

18.1. The provision, at no cost to Council, of Singleton Signature paving for the full street frontage of the development in George Street. Paving bedding and joint details are to be in accordance with Council’s standard drawings for streetscape paving.

18.2. The provision, at no cost to Council, of concrete foot paving behind the existing kerb line of the Kent street frontage is to be provided.

18.3. The footpath is to be 1.2m wide and is to include a minimum 100mm concrete with F72 reinforcement and to be constructed on 75mm compacted road base on compacted sub grade.

18.4. All other details are to be in accordance with Singleton Council’s construction specifications. All works are to be completed prior to the issue of an Occupation Certificate.


Reason: To provide for adequate pedestrian access to the site and locality.

19.1. Vehicle parking spaces on Kent Street in front of the proposed development shall be removed to achieve right turn traffic movements from the proposed development.

19.2. The existing No Standing area is to be extended to 42m from the George Street frontage (up to the western edge of the driveway entry).


Reason: To ensure that provision is made for adequate manoeuvring and safe on- street parking in the locality.

20.1. Two (2) “heritage-type” bollards, located approximately 3.0 metres apart, are to be located at the driveway exit as indicated on the annexed sketch “Pedestrian Safety Detail” dated 08/02/10.

20.2. A traffic calming device such a speed hump and appropriate signage shall also be displayed at the vehicular exit advising drivers to watch for pedestrians.


Reason: To ensure the safety of pedestrians and avoid incidents.

21.1. The applicant shall submit a report from a suitably qualified and experienced engineer in respect of the proposed development, such report to verify that:-

(a) any damage to the proposed development sustained in a flood will not generate debris capable of causing damage to downstream buildings or property;

(b) the building structure will be able to withstand the force of flood waters (including buoyancy forces) and the impact of debris;

(c) all finishes, plant fittings and equipment subject to inundation will be of materials and functional capability resistant to the effects of flood waters.

Note: The report shall be submitted to and approved by Council prior to release of the Construction Certificate.

Reason: To minimise the extent of property damage and the risk of injury in the event of flooding of the site.

22.1. The registered proprietor of the land shall be responsible for all costs incurred in the necessary relocation of any services affected by the required construction works. Council and other service authorities should be contacted for specific requirements prior to commencement of any works.

Reason: To ensure that any required alterations to utility infrastructure are undertaken to acceptable standards at the developer’s cost.

23.1. Waste will be collected for disposal at appropriate locations and removed at regular intervals and must not under any circumstances be allowed to accumulate on site.

23.2. All collection of waste from the site must only occur during business hours specified in Condition 26.

23.3. An enclosed/screened waste storage area of approximately 4.0 x 2.5 metres is to be constructed adjacent to the eastern corner of the building.

23.4. Waste handling facilities will be provided so that:


(a) stored waste does not create offence by emission of dust, leachate, odour, unsightliness or an environment suitable for vermin;

(b) putrescible waste is stored in shaded, ventilated, waterproof and vermin-proof conditions;

(c) storage containers will be conveniently located both for the user and the waste collector;

(d) storage containers will be readily manoeuvred from the waste storage area to the collection vehicle;

(e) lids for the storage containers will prevent entry of water and be of light weight material or such construction as to be readily operated by the user.


23.5. All waste, rubbish and the like, deposited on the property must be cleaned up, picked up and properly disposed of at least on a weekly inspection basis by either:

(a) The owners of the Property; or

(b) The Owners must ensure that all leases for the Property must contain a clause that the lessee and/or any staff under their control undertake such inspections.


23.6. This condition will be complied with for the term of this consent.

Reason: To ensure compliance with Council requirements.

24.1. Any vandalism and graffiti are to be removed from proposed building at the earliest possible time.

24.2. This condition will be complied with for the term of the approval.


Reason: To ensure that the premises appear will kept and maintained and vandalism is not encouraged.

25.1. Any security alarm system installed on the subject land shall be a “back-to-base” type system.

25.2. This condition will be complied with for the term of the approval.


Reason: To ensure the amenity of the residential neighbourhood is not unreasonably jeopardised by the development.

26.1. Following commencement of occupation, the premises will operate or trade only between the times stated as follows:
Monday to Thursday……………………...9am – 8pm

Fridays and Saturdays……………………9am – 10pm

Sundays and Public Holidays………….....10am – 8pm

26.2. This condition will be complied with for the term of this consent.

Note: Should the proposed development have noise impacts on adjoining or adjacent development that are unable to be mitigated to a reasonable standard then acceptable operating hours as suggested by the NIA are to prevail over the above.

Reason: To minimise adverse impact in the locality.

27.1. The use and occupation of the site including construction plant and equipment installed thereon, shall not give rise to any offensive noise or vibration within the meaning of the Protection of the Environment Operations Act , 1997.

27.2. This condition will be complied with for the term of this consent.


Reason: To ensure that the environmental quality of adjoining land is not adversely affected by the generation of excessive noise levels.

28.1. A reinforced concrete access crossing shall be constructed from the kerb and gutter to the property boundary, including a layback in the kerb, in accordance with Council’s Engineering Specifications and AS2890.

28.2. All works within a public road must be inspected and approved by Council under the Roads Act 1993 as the Roads Authority. Driveway levels across Council’s footpath are to be submitted to and approved by Council. Access crossing construction is to be inspected by Council after excavation and placement of reinforcement and on completion. Invoice for such inspection carried out by Council’s Development Engineer will be forwarded at that time.

28.3. Where work is not prepared, ready for inspection, applicants will be required to re-book inspections through the Customer Service Centre for the next available day and a re-inspection fee may be charged.

28.4. Where water main cocks are under the access crossing approved cast iron main cock covers are to be placed. The covers are to be fixed plumb and square to the centreline of each main and 100mm NSW uPVC minimum Class 9 pressure pipe is to be used as a protective sleeve between the cover and the main cock.

28.5. All works are to be completed and approved by Council and inspection invoices paid prior to the issue of an Occupation Certificate.


Reason: To ensure the provision of safe, adequately defined and properly constructed means of vehicular access from the road to the development.

29.1. The applicant shall ensure that arrangements are made for Council to carry out inspections of the development at the following stages of construction as applicable:

(a) Internal drainage lines before the floor is laid, or concrete placed.

(b) External drainage lines before backfilling of the trenches.

(c) The access crossing construction after excavation and prior to placement of reinforcement.

(d) The access crossing upon completion.


29.2. Requests for inspections may be made either by telephone [phone] or in person at the Customer Services Counter.

29.3. Inspection requests are subject to the following:-


(a) Applicants are required to nominate the relevant development application number and location prior to the inspection request being granted.

(b) Clerical staff only will receive all requests for inspections.

(c) Where work is not prepared, ready for inspection, applicants will be required to re-book inspections through the Customer Service Centre for the next available day and a re-inspection fee may be charged.

(d) Inspections must be received before 3.30 pm on the working day prior to when the inspection is required.

(e) Inspections within the township of Singleton will generally be carried out as AM or PM inspections.

(f) Where Council has been appointed as the PCA, inspection requests will not be accepted if evidence of payment of building insurance under the Home Building Act, 1989 or evidence of an owner builders permit has not been received by Council

Council Policy

Reason: To ensure that adequate notice is given to Council for a required inspection.

30.1. A signboard (minimum size 600mm x 400mm) must be erected in a prominent position indicating the following:-

(a) Name, address and telephone number of the Principal Certifying Authority for the work; and

(b) Name of the principal contractor for any building work and a telephone number on which that contractor may be contacted outside working hours; and

(c) Stating that unauthorised entry to the work site is prohibited.


30.2. The signboard must be maintained during the course of building/demolition works and removed upon completion.

30.3. Clauses 98A of the Environmental Planning & Assessment Regulation 2000.


Reason: To facilitate identification of the building site and those persons responsible for the control of activities on the site.

31.1. The plans enclosed with your development consent are not approved for construction. A Construction Certificate must be issued prior to work proceeding.

31.2. Prior to the commencement of work for the construction of Drive-Thru Liquor Store it will be necessary to obtain a Construction Certificate and notify the Principal Certifying Authority of the license or permit number of the Principal Contractor and proof of any appropriate insurance in accordance with the Home Building Act, 1989.


Note: If a Construction Certificate is approved by an independent accredited certifier it will be necessary to lodge the Construction Certificate and other approved documents with Council a minimum of two (2) days prior to the commencement of work.

Reason: To ensure compliance with the Environmental Planning & Assessment Act and Regulations.

32.1. The applicant shall ensure arrangements are made for inspections to be carried out during the course of construction and as required by the Principal Certifying Authority.

Reason: To ensure inspections are carried out as required by the Principal Certifying Authority.

33.1. The building shall not be occupied or used until an Occupation Certificate has been issued by the Principal Certifying Authority.

33.2. Please be advised that Section 109H (1B) of the Environmental Planning and Assessment Act, 1979 prevents the Principal Certifying Authority from issuing an occupation certificate until all pre-determined conditions of development consent have been completed.


Reason: To ensure compliance with the provisions of the Environmental Planning & Assessment Act, 1979.

34.1. It is the responsibility of the applicant to construct the building in compliance with the Environmental Planning & Assessment Act 1979, amendments thereto and the Building Code of Australia.

Reason: To ensure awareness of the legislation that the application has been determined under.

35.1. The applicant/builder may be required to open up, take down or remove any work that is carried out contrary to any approval/consent issued by the Principal Certifying Authority or other consent authority.

Reason: To ensure the work complies with the Act and Regulations and to enable the Principal Certifying Authority to issue an Occupation Certificate.

All demolition works must be carried out in accordance with AS 2601 “Demolition of Structures”.

Reason: To ensure the safety of persons engaged in or around the works and to ensure environmental safeguards are in place.

37.1. A temporary closet shall be provided on site from the commencement of building work. No inspections will be made until the closet is installed.

37.2. A temporary closet shall be:-


(a) A chemical closet supplied by a contractor approved by Council.

Reason: To ensure that adequate sanitary provisions are provided and maintained on the building site for use by persons engaged in building activity.

38.1. Suitable provision for the containment of building waste materials generated by the building process, shall be provided within the boundaries of the building site prior to any construction work being commenced above natural or excavated ground level, as follows:-

(a) Such containment measures are to be either by means of a screened area of silt stop fabric or shade cloth, having dimensions of 1.8 x 1.8 x 1.2 metre high area OR equivalent size waste disposal bin.

(b) The provision of a suitable enclosure or bin shall be maintained for the term of the construction to the completion of the project.

(c) The enclosure or bin shall be regularly cleaned to ensure proper containment of the building wastes generated on the construction site.

(d) Building waste shall be disposed of at an approved waste disposal or recycling facility. Building waste shall not be disposed of by burning on site.

Council Policy

Reason: To protect the amenity of the adjoining area by the management of building waste materials within the building site to maintain a clean environment and promote safety on site.

39.1. The applicant must ensure that all waste material generated from the work is adequately stored and is removed from the site during demolition and clean up works.

39.2. All waste materials must be removed to an approved waste disposal facility in accordance with the appropriate WorkCover requirements. In the case of asbestos, prior arrangements may need to be made with the operator of the facility.


Reason: To prevent any rubbish leaving the site which could reduce the amenity of the area.

40.1. If the work involved in the erection/demolition of a building:

(a) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or

(b) involves the enclosure of a public place


a hoarding or fence must be erected between the work site and the public place.
40.2. If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public space.

40.3. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

40.4. Approval for any footpath occupation must be gained from Council’s Operations Division.

40.5. Any such hoarding, fence or awning is to be removed when the work has been completed.


Reason: To assist in the promotion of safety in and around the site.

41.1. The proposed building(s) must be constructed in accordance with the current requirements for efficient energy use. The Principal Certifying Authority (PCA) is to be satisfied that the proposed building(s) will comply with Section J of the Building Code of Australia (BCA).

Reason: To reduce greenhouse gas emissions by the efficient use of energy.

42.1. Access to the building shall be provided for disabled persons in accordance with the provisions of Part D3 of the Building Code of Australia and AS1428.1.

Reason: To ensure provision is made for disabled access to the building.

43.1. The building shall be provided with disabled facilities in accordance with the provisions of Table F 2.4 of the Building Code of Australia.

Reason: To ensure facilities for disabled persons are provided in the building.

44.1. All plumbing and drainage works shall be carried out by a licensed plumber in accordance with the provisions of the National Plumbing and Drainage Code AS 3500, and Singleton Council where applicable.

Reason: To ensure that all plumbing and drainage works comply with the relevant standards.

45.1. A work as executed sanitary drainage plan, drawn to scale, indicating the layout of all internal fixture points, external fixtures such as yard gullies and educt vents and connection point to Council’s sewer main must be submitted to Council. It is preferable that this plan be made available at the time of the inspection to Council’s field staff however in any event must be submitted with the Occupation Certificate.

Reason: To ensure that an accurate record is kept of all sanitary drainage work.

46.1. Prior to occupation of the building, the applicant shall submit to Council a Final Fire Safety Certificate in respect of each essential fire safety measures installed in the building indicating that:

(a) the measure has been inspected and tested by a person (chosen by the owner of the building) who is competent to carry out such an inspection and test; and

(b) the measure was or was not (as at the date on which it was inspected or tested) found to have been designed and installed, and to be capable of operating, to a standard not less than that required by or under the Environmental Planning and Assessment Regulation or by the Council.


46.2. The building owner shall cause Council to be given a Fire Safety Statement every 12 months after the first Fire Safety Statement is supplied, certifying that the fire safety measures have been maintained in an operable condition.

46.3. The Fire Safety Statement shall be in a form approved by Council. One copy shall be displayed in a prominent position on the premises, one copy being submitted to Council and one copy to the NSW Fire Brigade.

46.4. Clauses 170, 171, 172, 173, 174, 175, 176 and 177, Environmental Planning & Assessment Regulation 2000


Reason: To ensure that each of the essential services is installed and is capable of operating to the appropriate standard .

47.1. The applicant is advised that assessment and approval of this application by Council does not guarantee that the building will comply with the provisions of the Disability Discrimination Act 1993 . The applicant should ensure that investigations are carried out to determine liability under this Act.

47.2. The application to build is assessed in accordance with the relevant building laws and it remains the responsibility of the builder/applicant to ensure compliance with other laws, including anti-discrimination legislation.

47.3. Australian standards 1428 Parts 1, 2, 3, 4, Design for Access and Mobility is a comprehensive guide on disability access.

48.1. Prior to the occupation of the building, the Applicant shall submit to the Council for approval, a Social Management Plan, setting out harm minimisation measures and strategies to minimise alcohol-induced antisocial behaviour. The measures and strategies should take into account and/or include (but not limited to) the following:

(a) The Operator of the development shall be a member of the Singleton Chamber of Commerce, and/or work in cooperation with the Council to implement any Crime Prevention Strategy adopted by the Council;

(b) Ensure that the building, property and its immediate environment is adequately monitored, illuminated and maintained at all times;

(c) Ensure that adequate Property security (both passive and active) measures are installed;

(d) Rapid removal of graffiti on the Property within 24 hours;

(e) Participation/support for Community Education Programs, for example, financial support of “Hunter Life Education” programs in Primary/Secondary Schools;

(f) The use and display of “responsible consumption of alcohol” posters or other visual/audio media;

(g) Ensure that no liquor is permitted to be consumed on the Property;

(h) Provide for a mechanism (forum) that would allow adjoining landowners to discuss any issues and/or concerns arising from the operation of the business to be considered and any mitigation measures employed, on an at least 6 monthly basis for the first 2 years of operation;

(i) The Plan should take into account the following documents:


48.1.i.1. Guidelines for Developing a Crime Prevention Strategy (NSW Attorney General);

48.1.i.2. Singleton Local Government Area: Crime Prevention Strategy 2009/10 – 2012/13 (adopted 02/07/09);

48.1.i.3. Safer by Design (NSW Police Force);

48.1.i.4. Joint Expert Report (Social Planning) of Sarah George filed on 26 October 2009 in (these) Land and Environment Court Proceedings 10510/09;

48.1.i.5. Any relevant recommendations contained in the Community Impact Statement (CIS) required to be submitted to the Office of Liquor, Gaming and Racing.


Reason: To ensure that measures and strategies are implemented to minimise antisocial behaviour as the result of the excessive consumption of alcohol.

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