Woolworths Ltd v Orange City Council

[2003] NSWLEC 264

>

Land and Environment Court

of New South Wales

CITATION:

Woolworths Ltd v Orange City Council [2003] NSWLEC 264 revised - 11/11/2003

PARTIES:

APPLICANT:
Woolworths Ltd

RESPONDENT:
Orange City Council

FILE NUMBER(S):

11075 of 2002

CORAM:

Murrell C

KEY ISSUES:

:- Proposed 'Woolworths+ Plus Petrol' outlet
Impact on the character of the area

Impact of traffic in the locality·

Impact on the heritage significance of items and the precinct

Public interest

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979· Orange Local Environmental Plan 2000

CASES CITED:

DATES OF HEARING:

2, 3, 4, 5 June, 1 August 2003

DATE OF JUDGMENT:

10/31/2003

LEGAL REPRESENTATIVES:

APPLICANT:
Mr M Craig, QC

SOLICITORS
Mallesons Stephen Jaques

RESPONDENT:
Mr W O'Rourke, solicitor

SOLICITORS
Deacons

JUDGMENT:

IN THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

11075 of 2002

Murrell C

31 October 2003

Woolworths Limited

Applicant
v

Orange City Council

Respondent

Judgment

Introduction

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act (the Act) against the refusal by Orange City Council of a development application for a petrol filling station known as ‘Woolworths +Plus Petrol’.

2 By way of background the council acquired the subject site in April 2002 to allow a reconfiguration of the intersection to improve traffic management. William Street has been identified as a by-pass road for through traffic and part of the site has been excised by the council is to provide for improved manoeuvrability, in particular, ‘B-Double’ truck movements turning into William Street from Bathurst Road/Summer Street. The remainder of the site was to be sold and Woolworths propose to lease this as a ‘Woolworths Plus Petrol’ filling station to serve the customers of its supermarket located in the centre of town and others.

3 The council granted consent to the demolition of the building on the subject land in June 2002. The subject development application was lodged with council in July 2000. As the owner of the land the council engaged an independent consultant to assess the development application and approval was recommended. However, in December 2002 council resolved to rescind its previous resolution to grant approval.

Site and environs

4 The site, being Lot 20 in DP1043017, is known as Nos. 357 to 361 Summer Street and is located on the north-western corner of the intersection with William Street. Summer Street is also known as the Mitchell Highway or the continuation of Bathurst Road. Refer to Fig 1 for the locality/zoning map.

5 The site is on the south-eastern perimeter of the main commercial and shopping centre of Orange. On the curve of the road before William Street there is the Five Ways Uniting Church and a row of terraces known as ‘Bowen’-refer to Fig 2. The main Summer Street shopping centre of Orange commences at William Street and to the west of the site in Summer Street there is a number of older shops of generally two storey construction while opposite there are car showrooms. To the north in William Street there is a heritage building known as the ‘Orange City Band Hall’ and opposite in William Street the conservation area of East Orange starts and continues for several blocks. Refer tosrtetscape elevation to William Street at Fig 3.

6 A portion of the site on the southern boundary has been excised to allow for traffic management improvements to the intersection as William Street to become a by-pass to the Orange City Centre.

7 The site the subject of the development application has a total area of 1022 m2 with an eastern boundary to William Street measuring approximately 50m, the Summer street northern boundary of some 22 m, and a western boundary about 48 m.

The proposal

8 The proposed development is described in the development application as a petrol filling station and associated signage. The elevations are at Fig 4 and the proposal is comprised of the following :

• 4 multi-hose electric fuel pumps;
• 1 LPG gas dispenser;
• 8 filling bays;
• 3 underground petrol storage tanks; and
• 1 underground LPG storage tank;
• an air and water pump;
• carparking for 4 cars;
• the construction of a 77 m2 pay kiosk with an overhead canopy of approximately 250 m2 linking the fuel dispensers to the pay kiosk.

Relevant planning controls and guidelines

10 The subject site is zoned - 3(b) ‘Business Services’ under the Orange Local Environmental Plan 2000. The aims of the LEP are stated in clause 2 as:

(a) encourage development which complements and enhances the character of the City,

(b) provide for a range of development opportunities which contribute to the social, economic and environmental resources of the City in a manner that allows present and future generations to meet their needs by implementing the principles for ecologically sustainable development,

(c) conserve and enhance the water resources on which the City depends, particularly water supply catchments,

(d) manage rural land as an environmental resource that provides economic and social benefits for the City,
(e) provide a range of housing choices in planned urban and rural locations to meet population demands,

(f) recognise and manage valued environmental heritage, landscape and scenic features of the City,

(g) manage development in the vicinity of major industry and utilities for the benefit of the community,

(h) improve accessibility within and around the urban area of Orange by providing for traffic relief routes.

11 The objective of the 3 (b) Zone is “to provide a range of commercial activities, primarily professional and trade services, and offices which support but do not detract from the role of the CBD as the primary business centre within the City. In order to protect the role of the CBD, retailing is limited and, as such, shopping centres, bulk retail centres, supermarkets or other major retail facilities are not appropriate within this zone”.

12 Service stations are a permissible use in the zone, with consent, and the following definition appears in the LEP. Service station means a building or place used for the fuelling of vehicles and retail sale of petrol, oil and other petroleum products, whether or not the building or place is also used for anyone or more of the following:

(a) the sale by retail of spare parts and accessories for motor vehicles,

(b) the cleaning of motor vehicles,
(c) installation of accessories,
(d) inspecting, repairing and servicing of motor vehicles (other than body building, panel beating or spray painting),
(e) vehicle and trailer hire,
(f) the retail selling or hiring of small consumer goods.

13 The LEP contains two other business zones: 3A – ‘Regional Centre’; and 3C – ‘Bulk Retail’. Figure 1 shows the site in the context of the zonings.

14 Clause 54 relates to retailing in the 3(b) zone and provides as follows:

54 Retailing in Zone 3 (b)

(1) Consent may be granted for shops within Zone 3 (b) only where the consent authority is satisfied that the development will not detract from the role of the CBD as the major business centre in the City.

(2) This clause does not allow the establishment of supermarkets, bulk retail centres, department stores or discount department stores or substantial shopping centres or complexes within Zone 3 (b).

15 The heritage provisions, cll 74 – 77 inclusive are relevant to the assessment of the development application and the relevant provisions are as follows:

74 Objectives for heritage conservation

(a) to conserve the environmental heritage of the City of Orange, and

(b) to provide the opportunity for public information and participation in heritage matters, and

77 Development in the vicinity of heritage items
The consent authority may grant consent to development affecting land in the vicinity of a heritage item, heritage conservation area, archaeological site or potential archaeological site only after considering an assessment of the impact that the development would have on the heritage significance, curtilage and setting of the item or heritage conservation area as well as the impact of the development on any significant views to or from the heritage item or conservation area.

16 State Environmental Planning Policy No. 11 relating to traffic generating develents requires the development application to be referred to the Roads and Traffic Authority. Council referred the matter to the RTA and advice was provided that the development was not opposed but made a number of recommendations to be considered in the determination. The proposal is also the subject of an assessment under the State Environmental Planning Policy No. 33 – Hazardous and Offensive Development. A hazardous analysis was prepared for the proposed development which is not contested.

The issues

17 A statement of issues was filed and reads as follows:

1. Whether the proposed development will have a detrimental impact on the amenity of the locality having regard to section 79C(1)(b), (c) and (d) of the Environmental Planning and Assessment Act 1979. In particular, whether the proposed development will be compatible with the visual amenity of the locality by reason of its excessive bulk and scale.
2. Whether the proposed development will have a detrimental impact on the amenity of the locality due to generating an unacceptable level of traffic congestion in the vicinity of the intersection of Summer and William Streets, Orange.
3. Whether the proposed development is in the public interest.

18 During the Court proceedings the issues focussed on: the impact of the proposed development on the character of the area – the heritage items and conservation area; and the impacts on the locality in terms of traffic congestion near the intersection.

Evidence and submissions

19 On behalf of the respondent evidence was given to the Court by Mr J Coady, consultant traffic engineer and Mr A Reneki, manager of development approvals with Orange Council.

20 A number of resident objectors and councillors also gave evidence to the Court including:

• Mr S C Nugent,
• Ms J M Lacey,
• Ms B J Holland,
• Ms I D Watts,
• Councillor R H Kidd
• Ms J P Kenirg,
• Mr A J MacDougall,.
• Mr C E Everett,
• Councillor P R Hetherington,
• Councillor C Gryllis,
• Councillor M M Gleeson

21 For the applicant evidence was given to the Court by:

• Mr N Ingham, consultant town planner,
• Mr T Rogers, consultant traffic engineer, and
• Mr R Staas, consultant heritage architect.

22 The Court also had the benefit of a site inspection carried out on the second day of the proceedings with representatives of the parties.

23 On the fourth day of the proceedings the matter was adjourned to allow the applicant the opportunity to respond to issues raised by the Court.

24 I have carefully considered all the evidence to the Court including that of the expert witnesses and the resident objectors. I have also had the benefit of the Statements of Evidence together with the written documentation tendered in this matter.

25 The residents who gave evidence to the Court expressed concern about the impact of the proposal on the conservation area and the heritage items in the vicinity of the site. Furthermore they are on the opinion that the proposed petrol filling station is out of character with the area and the village of East Orange. The following provides a summary of the concerns of the individual objectors who gave oral evidence to the Court.

26 Ms Holland, the president of the Orange Historic Society, told the court that the Society has developed an historic walk of the East Orange Village and the proposal is regarded as ‘too modern’ and it will impact on the visual character of the village and the heritage items of the Band Hall and the Uniting Church. She also told the court that is she is concerned about increased traffic around the intersection and the safety of pedestrians although she was not aware of the proposal by council to provide pedestrian crossings.

27 Ms Keniro, is a member of the Heritage Group and expressed concern about the visual presentation of the proposal and that a service station was not conducive to the character of the area. She also considered that the proposal would conflict with the traffic and number of pedestrians in the area.

28 Mr Everett, president of the Orange Heritage Group, also had concerns about traffic, heritage issues and the signage in that it would spoil the entrance to the city. In response to the screening of the brick wall to the adjoining restaurant he did not see the amendments to resolve his objection to the proposal. However with respect to the design of the pay kiosk he thought it may but there should be no sign on the eastern elevation to William Street.

29 Mr MacDougall who owns a terrace in the ‘Bowen’ row considered that a petrol outlet in this location near the approach to the city was not appropriate.

30 Ms Lacey, the owner of the newsagency west of the subject site, expressed concern about the increased traffic on the congested intersection. She also expressed concern about the lack of architectural merit and the fact that the proposal does not reflect the village character of the area. She was also concerned about items in the nature of confectionery that may be sold in the petrol outlet and the economic impact that this would have on the viability of her business which also provided a service to the community.

31 Mr Watts told the Court that he was concerned about the impact on the unique village character of the area and that to pull down the shops and redevelop the site with a petrol station would destroy the visual approach to Orange.

32 Councillor Hetherington expressed concern about the impact of the proposal on the gateway and the increased traffic flow and the safety concern of the inter-section and the conflict with proposals for its upgrading to allow tankers and semi-trailers to be diverted down William Street.

33 Councillor Gryllis said his main concern was the safety of residents and the impact of traffic and queuing to buy petrol. He considers that service stations in the CBD are an inconvenience for pedestrians although he conceded that they are permissible in the zone and you would expect to find them in the CBD and the adjoining commercial area. He also considers the proposal to be unrelated to the streetscape.

34 Councillor Gleeson expressed concern about cars queuing for cheaper petrol and considers the proposal to be too close to a major corner.

35 Councillor Kidd informed the Court that this is a busy intersection in a heritage precinct with cultural significance and it is also the birthplace of Kenneth Slessor that is marked by a plaque located several properties to the north. He said that there are other sites that would be more suitable for the proposal in terms of traffic. He acknowledged that the subject site permits service stations as an express use and council had no proposal to rezone the site.

Traffic

36 Council’s consultant traffic engineer, Mr Coady, recommended that the entry from Summer Street be deleted such that all access be from William Street. Prior to the Court hearing the matter an amended plan was submitted and this issue was resolved accordingly. The experts agreed that there is capacity in the road network to accommodate the traffic generation of the proposal. Furthermore the experts agreed that the proposed development will not compromise the options to upgrade the intersection of Summer and William Streets.

37 The traffic engineers conferred prior to the proceedings and following inquiries made by the court concerning the distance of the entry from the intersection and the capacity for vehicles to queue on site waiting to re-fuel. An amended plan was tendered and the respondent raised no objection to what became exhibit ‘P’ in the proceedings.

38 The evidence of the experts is that there is no reason why the development application should be refused on traffic grounds. The experts are satisfied that the proposal complies with the Australian Standards concerning the separation distance from the corner to the entry point. The amended plan shows the entry point an additional 1 m from the corner to satisfy the AS. The experts, by way of joint statement agreed that this is acceptable and as such are satisfied that the proposal will not interfere with the reconfiguration of the intersection. The experts also agreed that vehicles and petrol tankers could be accommodated on the site in terms of number of cars and queuing capacity as well as the turning circles for larger vehicles.

39 Mr Coady gave evidence that from a strategic planning perspective he did not consider the subject site to be a good site for a service station. On cross-examination he acknowledged that it is desirable for petrol outlets to be on the periphery of a centre and located on a main road rather than on the back blocks of town in terms of customer convenience.

40 He told the Court that it is not unusual for ‘plus petrol’ outlets to be located on tight/smaller sites compared to contemporary service stations located on larger sites, although he conceded that is he had not undertaken a survey of all such outlets. Mr Rogers agreed that the site is smaller than many service station sites however he did not consider it to be tight and that it is similar to the Tamworth plus petrol outlet that is also on a corner side street with the highway and has a similar layout and size. In his opinion the subject site has appropriate access driveway layout and that there is room for 13 vehicles filling or waiting.

41 Mr Coady said the subject site has limitations in terms of the number of fuel dispensers and site circulation, for example, one would need to check air and water before filling up. However, he is of the opinion that it can work in a satisfactory way from a traffic point of view with vehicles moving in the same direction. On cross-examination he acknowledged that the concern of queuing could also be accommodated on the site and that there would not be any unacceptable traffic implications from the proposed development. As such he is of the opinion that the proposal is acceptable in a traffic management sense.

42 In terms of the reported accident history for this intersection Mr Rogers stated that it does not indicate any pattern that would suggest unusual issues and that the reported history is low for an intersection and that there is unlikely to be an unacceptable risk to pedestrians as a result of the proposed development. Mr Ingham provided pedestrian counts within the vicinity that were small, and even if I accept that at times there may be greater numbers, care in crossing roads needs to be taken at all times and I accept the evidence of the experts.

Heritage/Conservation Area/Streetscape

43 The resident objectors expressed concern that the proposed development would not been in character with the village and the conservation area of East Orange and that it would impact on the heritage items in the vicinity of the subject site. Mr Staas and Mr Ingham provided evidence for the applicant, however the council in the assessment
process of the application and in these proceedings did not seek the comments of a heritage expert. A town planner also did not give evidence in support of council’s refusal.

44 During the proceedings the court enquired of Mr Staas as to whether the proposed structure would make a positive contribution to the Streetscape. He described the proposal as minimalist, neutral and a contemporary expression of the built form with an appropriate scale and bulk. However, on further consideration he advised the Court that in the circumstances a more sympathetic design could be achieved by picking up elements of the Band Hall for the pay kiosk and as such the proposal could make a positive contribution to the streetscape. The amended plan at exhibit P shows the pay kiosk with a pitch roof and brick masonry construction with colours sympathetic to the Band Hall as opposed to the original plan with a minimalist flat roof construction.

45 The treatment of the two-storey brick wall of the ‘Chinwa’ restaurant erected on the boundary was also addressed during the proceedings. The applicant proposed that a metal screen be constructed within the boundary of the subject site with the evergreen vine of ‘Honeysuckle’ or ‘European Woodbine’. In Mr Staas’ opinion this together with the proposed hedges elsewhere on the site would be appropriate in heritage terms.

46 The issue of the relationship of the site with the conservation area is one that is of concern to the residents. From the site inspection and a walk of the conservation area it is a most cohesive and clearly identifiable area. The question for the Court in these proceedings is to determine whether the proposed development would impact on the conservation area (shown in figure 1) and the heritage items in terms of clause 77 of the LEP.

47 To determine this issue I have assessed the amended plan at exhibit P, and carefully considered it in its context. With the benefit of the site inspection I agree with Mr Staas’ statement that there is a substantial, physical and visual separation of the road between the subject site and the conservation area. Furthermore the subject site in my assessment clearly belongs to the commercial area with other support services on the western side of William Street and this is reflected in the zone boundary. The western side of William Street has a distinctly different character to the eastern side and I am satisfied that the proposed development would not impact on the conservation area especially having regard to the visual and physical separation provided of the road pavement, kerb, unpaved area, and trees. In this regard the expert evidence presented on behalf of the applicant has persuaded me that the proposal is satisfactory and that it would not have adverse impacts that would warrant refusal of the application..

48 I recognise that the shop on the corner of Summer Street is to be demolished for the proposal, however, it is on the corner of the beginning of a row of shops in the commercial area and the rhythm within the row of shops to the west will not be interrupted. Furthermore the council has already approved the demolition of the buildings on the site and the rear is a vacant area. As such I am persuaded by Mr Ingham’s evidence.

49 The assessment of the impact of the proposal on the heritage items and streetscape while it partially overlaps with my assessment in terms of the conservation area nonetheless there are other factors that I address in my assessment below.

50 With respect to the Orange City Band Hall I am satisfied that the proposed development as amended and shown in exhibit P respects the importance and heritage significance of this item. The proposal provides for a generous setback of some 7.5m that includes a landscape strip and a 3 m wide vehicular access on the northern boundary to a car parking area. In my assessment this allows the item to be viewed from the main Street and William Street as an important heritage item commensurate with its significance and purpose. Furthermore the design of the pay kiosk appropriately reflects elements of this heritage item while not competing in terms of height, scale or bulk. As such the proposal is sympathetic and provides a satisfactory presentation in the streetscape as well as providing a satisfactory relationship with the Band Hall. Furthermore there is no advertising on the eastern canopy facing William Street and the conservation area.

51 The Bowen Terrace and the Uniting Church are two significant heritage items that must also be taken into consideration in the assessment of the application. It was agreed that the photomontage correctly shows the height of the proposal relative to other buildings. The subject site is visible in the broad sweep approaching the town from the east with the Bowen Terrace and Church providing a unique entry and landmarks for the city of Orange as seen in Fig.2. The proposal as shown in the amended plans has rationalised the signage and the height of the price pylon is such that it will not be visible on the skyline but will be seen against the wall of the shop on the western boundary.

52 With the benefit of the photographs and streetscape elevations as shown in Figure 3 I am satisfied that the significance of the Bowen Terrace and Church is maintained and the cumulative impact of signage as seen on the southern side of the approach to the city, is not exacerbated by the proposal. The proposal and signage is satisfactory in its context displaying a relatively low bulk and scale.

53 In my overall assessment I am satisfied that the proposed development will not significantly adversely impact on the visual amenity and the surrounding area. Furthermore it can be seen from the William Street elevation in Fig. 3 that the proposal is of a low bulk and scale. In terms of the economic impact on businesses in the area the site is appropriately zoned and this is not a matter that would warrant refusal of the application.

54 With respect to the traffic impacts I accept the evidence of the experts who agree that despite the relatively small size of the site that the proposed development satisfies the relevant standards and the proposal is acceptable in traffic management terms.

55 I am also satisfied that the site is suitable for the proposed use as a petrol filling outlet on the periphery of the town centre having regard to the objectives of the zone in the LEP. While the size of the site places a restriction on the intensity of development, in my assessment it is capable of accommodating the development as described in the plans and development application

56 The question for the court is not what would be the best use and development for the subject site but rather whether the development as now proposed is satisfactory and whether the impacts are acceptable. On the basis of my assessment above I have concluded that the proposal as amended warrants approval.

Conclusion

57 The application has been the subject of considerable community interest and some sixty submissions were received raising objection to the proposal to which I have given consideration. My assessment has also been in the context of all matters that I must consider in the relevant statutory planning framework, and on balance, I find that the proposal is worthy of approval and would not be against the public interest

Orders

58 On the basis of my assessment above the orders of the Court are:

1. The appeal is upheld.
2. The development application No. 02/065, for a petrol filling station at the corner of William Street and Summer Street Orange, is determined by the grant of development consent subject to conditions as set out in Annexure ‘A’.
3. The exhibits except for 2, C, O, P, and Q are returned.

J S Murrell

Commissioner of the Court

Conditions of Development Consent

Annexure A

Woolworths Ltd v Orange City Council

DEVELOPMENT APPLICATION NO: 02/065 DA

1. The development shall be carried out in accordance with the plans DA01 Issue B dated 22 July 2003, DA02 Issue C dated 24 June 2003, DA03 Issue C dated 22 July 2003, and DA 04 Issue B dated 22 July 2003 drawn by Scott Carver Pty Ltd, PP4/BB/A12 Issue 4 dated 15 January 2002 drawn by Scott Carver Pty Ltd, 2800-M02 Issue C (2 sheets) dated July 2003 drawn by Myros Design Pty Ltd, PC002 Issue B dated 22 July 2003 drawn by Henry & Hymas, and LA 01 Issue C dated 28 July 2003 drawn by Scott Carver Pty Ltd.

2. The construction of an access driveway off Summer Street is prohibited.

3. The existing bluestone (basalt) kerb and gutter in William Street shall be retained. Where such bluestone exists in the location of the proposed ingress and egress onto William Street, the bluestone gutter shall be retained and the existing kerb shall be incorporated into the vehicular layback adjacent to the gutter.

4. All controls identified in the potential hazard assessment by Myros Design dated 25 July 2002 shall be maintained on-site and regularly tested for performance, where appropriate.

5. Fascia signage on the southern side of the central canopy shall be restricted to that shown on plan DA 03 Issue C. No fascia signage shall be installed on the eastern side of the central canopy without further development consent.

6. The applicant shall ensure materials and colour of materials used to construct the eastern walls and northern walls of the pay booth are non-reflective and not contrasting to the colours of the Orange City Band Hall.

7. Lighting shall be installed in the manner described in the Statement of Environmental Effects. There shall be no spill over lighting from the subject site to outside the site.

8. All entry and exit points shall be clearly defined with signposting according to Australian Standard AS1742.

9. All road works relevant to the proposed development shall be carried out at the cost of the applicant. All plans of road works including pavement design shall be submitted to the Roads and Traffic Authority or Council (as appropriate) for approval.

10. All advertising signage shall be contained on the subject site with no carry over onto the footpath.

11. All landscaping carried out on the subject site shall not impair driver or pedestrian sight lines.

12. The existing street tree in William Street shall be relocated at the applicant's expense to a position in William Street adjacent to the boundary of the subject site as approved by and under the supervision of the Parks Manager.

PRESCRIBED CONDITIONS

13. All building work shall be carried out in accordance with the requirements of the Building Code of Australia.

THE FOLLOWING CONDITIONS WILL NEED TO BE SATISFIED PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE

14. Following the demolition of the vacant buildings on the subject site, the applicant shall commission a geotechnical assessment and environmental screening assessment of the subsurface materials to establish the extent of contamination beneath the subject site. In the event that any contaminated material is identified in these assessments, the subject site shall be remediated in a manner consistent with the Contaminated Lands Act prior to the construction of the service station.

15. The applicant shall apply for a Construction Certificate from a Principal Certifying Authority and shall provide sufficient detail to allow assessment of a class 6 building against the requirements of the Building Code of Australia.

16. The demolition and erection of any buildings must not be commenced until:
i. Detailed plans and specifications of the building have been endorsed with a construction certificate by:
1. The consent authority, or
2. An accredited certifier, and
ii. The person having the benefit of the development consent:
1. Has appointed a principal certifying authority, and
2. Has notified the consent authority and the council (if the council is not the consent authority) of the appointment, and
iii. The person having the benefit of the development consent has given at least 2 days notice to the council of the persons intention to commence the erection of the building.

17. Prior to commencing work the applicant must pay the Long Service Leave Levy.

18. Prior to the commencement of building work, the owner shall apply to Council for approval to carry out water supply work, sewer work, stormwater work and to connect such work to Council’s services. Within the city of Orange, Council is the water and sewer authority. Any work which requires any alteration or new work to water, sewer or stormwater must be inspected by Council prior to concealment.

19. Due to the extensive nature of the construction works and their proximity to the public footpath, the applicant shall provide public liability and public risk insurance cover for a minimum of $10M, endorsed to cover Council for its respective rights and interests. (6O)

20. Prior to the erection of any hoarding the applicant shall apply for approval from Orange City Council. The hoarding shall be constructed in a sound and workmanlike manner to the required standard of the NSW WorkCover Authority. (6Q)

21. All wastes from the construction phase of this project shall be deposited at a licensed or approved waste disposal site. The project manager shall prepare a waste management plan that describes the nature of wastes to be removed, wastes to be recycled, destination of all wastes, and route to be taken by vehicles transporting wastes to disposal sites. This information shall be supplied to Council prior to the issue of a Construction Certificate. (16O)

22. Engineering plans, showing details of all proposed work and adhering to any conditions of development approval, shall be submitted to the Principal Certifying Authority for approval prior to issue of a Construction Certificate.

23. A water and soil erosion control plan shall be submitted, to the Principal Certifying Authority for approval, prior to issue of a Construction Certificate in accordance with the Orange City Council Development and Subdivision Code. The works included in the approved water and soil erosion control plan shall be implemented prior to construction work commencing.

24. Certification from Orange City Council, stating that liquid trade waste measures comply with Orange City Council’s Liquid Trade Waste Policy, shall be submitted to the Principal Certifying Authority prior to issuing of a Construction Certificate.

Where applicable, the applicant shall enter into a Trade Waste Contract with Orange City Council in accordance with the Orange City Council Liquid Trade Waste Policy prior to the issuing of a Construction Certificate.

25. Deleted.

WORK REQUIRED BY THE FOLLOWING CONDITIONS WILL NEED TO BE COMPLETED DURING CONSTRUCTION

26. All work on the site shall be carried out between the hours of 7.00 am and 6.00 pm Monday to Friday inclusive, 7.00 am to 5.00 pm Saturdays, and 8.00 am to 5.00 pm on Sundays and Public Holidays. Written approval must be obtained from the General Manager of Orange City Council to vary these hours. (1O)

27. Two days before any site works, building or demolition begins:

A Notice to Commence Building Works (Form 7) must be submitted to the Principal Certifying Authority.

PLEASE NOTE: THE PRINCIPAL CERTIFYING AUTHORITY MUST BE NOMINATED ON THIS FORM

Council is to be notified when work will commence.

28. A suitable and effective rubbish/waste enclosure is to be established and maintained. (5B)

29. A temporary on-site toilet is to be provided and must remain throughout the project or until an alternative facility meeting Council’s requirements is available on-site. (2B)

30. Construction works within close proximity to the boundaries of the adjoining allotments are to be carried out so that no damage is caused to those properties. (100)

31. The building shall be set out by a registered surveyor, and a copy of the survey sketch indicating the position of the building in relation to the boundaries shall be submitted to Council.

32. All plumbing and drainage (water supply, sanitary plumbing and drainage, stormwater drainage and hot water supply) is to comply with the Local Government (Water, Sewerage and Drainage) Regulation, 1998 and Australian Standard 3500 - National Plumbing and Drainage Code. Such work shall only be installed by a licensed plumber and is to be inspected and approved by Council prior to concealment. (1E)

33. Access for people with disabilities must be provided to and within the building by means of a continuous path of travel:

through the principal public entrance

to facilities and other areas within the building deemed appropriate by the applicant, having considered the requirements of the Disability Discrimination Act.

34. Any adjustments to existing utility services that are made necessary by this development proceeding shall be at the full cost of the developer.

35. The provisions and requirements of the Orange City Council Development and Subdivision Code shall be applied to this application and all work constructed within the development shall be in accordance with that Code.

The developer shall be entirely responsible for the provision of water, sewerage and drainage facilities capable of servicing all the lots from Council’s existing infrastructure.

36. All driveway and parking areas shall be sealed with concrete and shall be designed for all expected loading conditions, provided however that the minimum pavement depth for gravel and flush seal roadways shall be 200mm and be in accordance with the Orange City Council Development and Subdivision Code.

37. All stormwater shall be collected within the site in a grated stormwater pit and piped to the kerb and gutter on the property frontage.

38. All sewage from the site shall be piped to the standard sewerage access chamber within the lot and over Council's existing 150mm-diameter sewer main.

39. Heavy-duty concrete kerb and gutter laybacks and footpath crossings shall be constructed in William Street in the positions shown on the plans submitted with the development application, reference number DAO1 and DAO2 issue C. The works shall be carried out to the requirements of the Orange City Council Development and Subdivision Code.

40. All existing kerb and gutter laybacks, which are not proposed to be used, shall be replaced with Bluestone (basalt) kerb and gutter and the adjacent footpath area re-graded to the shape and level requirements of footpaths in the Orange City Council Development and Subdivision Code.

41. The existing Country Energy power pole stay shall be relocated clear of all proposed work, at the full cost of the developer.

42. The 3.0 metre wide Right of Carriageway on the site shall be constructed in a concrete pavement as detailed in Orange City Council Development and Subdivision Code.

THE FOLLOWING CONDITIONS WILL NEED TO BE SATISFIED PRIOR TO THE ISSUE OF AN OCCUPATION CERTIFICATE

43. The existing central concrete median strip in William Street shall be extended northwards to a point 5m to the north of the northern end of the entry driveway to the development from William Street. A sign shall be installed adjacent to the exit driveway on William Street which states that the driveway is for exit only.

44. The installation of all tanks and pipework shall be inspected and certified in accordance with the stages listed in the potential hazard assessment.

45. A procedures manual describing the operational procedures for each of the Hazard Prevention Equipment and likely emergencies listed in the potential hazard assessment shall be compiled prior to the sale of any fuel. This manual shall be used for training purposes.

46. A construction plan shall be submitted to Council following the completion of the geotechnical assessment identifying the materials of excavation to be used and the environmental safeguards to be adopted with respect to air quality, noise, erosion and sediment control, and ground vibration.

47. A copy of the survey sketch indicating the position of the building in relation to the boundaries shall be submitted to Council prior to issue of an occupation certificate. (15D)

48. A Final Fire Safety Certificate is to be provided to Council prior to issue of an occupation certificate.

49. The use or occupation of the approved development shall not commence until such time as all conditions of this development consent have been complied with and an Occupation Certificate (Form 12) has been issued by the Principal Certifying Authority. (2T)

50. All of the foregoing conditions shall be at the full cost of the developer and to the requirements and standards of the Orange City Council Development and Subdivision Code, unless specifically stated otherwise. All work required by the foregoing conditions shall be completed prior to the issue of an Occupation Certificate unless stated otherwise.

THE FOLLOWING CONDITIONS WILL NEED TO BE SATISFIED AT ALL TIMES DURING OPERATION

51. Noise from the premises shall not exceed an LA10(15 minute) noise emission criterion of 45 dB(A) 7am to 6pm Monday to Saturday, and at all other times, an LA10(15 minute) noise emission criterion of 35 dB(A). Measurement is taken at the boundary of the worst affected residence to determine compliance with this condition.

52. All references to wisteria on LA 01 Issue C dated 28 July 2003 drawn by Scott Carver Pty Ltd shall be replaced with a reference to honeysuckle and/or European woodbine.