Ziade v Randwick City Council

[1999] NSWLEC 255

Land and Environment Court

of New South Wales

CITATION:

Ziade v Randwick City Council [1999] NSWLEC 255

PARTIES

APPLICANT
Ziade

RESPONDENT
Randwick City Council

NUMBER:

10230 of 1999

CORAM:

Pearlman J

KEY ISSUES:

Development :- parking and traffic impact

LEGISLATION CITED:

Environmental Planning and Assessment Act 1979
Randwick Local Environmental Plan 1998
Randwick Development Control Plan No 2
Randwick Development Control Plan 1998

DATES OF HEARING:

10/12/1999; 10/13/1999; 11/04/1999

DATE OF JUDGMENT DELIVERY:

11/29/1999

LEGAL REPRESENTATIVES:

APPLICANT
Mr P C Tomasetti (Barrister)

SOLICITORS
Gregory J Halpin

RESPONDENT
Mr D P Wilson (Barrister)

SOLICITORS
Bowen & Gerathy

JUDGMENT:

IN THE LAND AND 10230 of 1999

ENVIRONMENT COURT Pearlman J

OF NEW SOUTH WALES 29 November 1999

JACK ZIADE

Applicant

v

RANDWICK CITY COUNCIL

Respondent

JUDGMENT

Introduction

1. This appeal concerns the Ritz Cinema at Randwick.

2. The applicant, Mr Jack Ziade, has appealed against the deemed refusal by Randwick City Council “(the council”) of his development application to increase the number of cinemas at the Ritz.

The proposed development

3. The proposed development involves the demolition of an existing building at 39 St Pauls Street, Randwick, located immediately adjacent to the existing Ritz Cinema at 43 - 47 St Pauls Street. The proposal involves erecting, in place of the demolished building, two additional cinema auditoriums providing total seating for 345 people, as well as provision for eight off-street parking spaces, and an administration office and a staff room. It is intended to carry out minor alterations to the existing cinema building so as to provide a link between the existing and new buildings.

4. The intention is that the facade of the new building will match the extensions to the existing Ritz Cinema to the east, it being intended to restore the symmetry of the existing building.

5. The Ritz Cinema is located in an area of Randwick known locally as “the Spot”, which is largely centred around St Pauls Street and La Perouse Road.

6. It has operated as a cinema since it was first built in 1937. In the beginning, it had only a single cinema screen with seating for approximately 1000 people, and it made no provision for on-site parking.

7. In 1996, the council granted development consent to extensions to the Ritz Cinema, involving the provision of three extra cinema auditoriums and restoration of the original auditorium. A condition of development consent required the applicant to make a financial contribution to 35 additional on-street car parking spaces in the vicinity.

8. The 1996 development consent also imposed a condition limiting the number of patrons on the site at any one time to 1233. This was later modified to 1253 pursuant to an application under s 102 of the unamended Environmental Planning and Assessment Act 1979. The applicant has indicated to the Court that he is willing to comply with a condition which continues to limit the number of patrons to 1253.

9. The current development application was lodged with the council on 12 November 1998.

The statutory controls

10. The site of the proposed development, 39 St Pauls Street, is within zone 3B (Local Business Zone) under the Randwick Local Environmental Plan 1998, and the proposed development is permissible with consent.

11. At the time the development application was lodged with the council, Randwick Development Control Plan No 2 (“DCP No 2”) applied, and fixed parking controls for the municipality. No specific control was provided for theatres or cinemas, but in relation to places of public assembly, the minimum requirement was specified as one space per ten seats.

12. In December 1998, the council adopted a new development control plan in relation to parking (“DCP 1998”). It did have a control specifically relating to theatres, but that control did not provide for a numerical standard. Instead, it provided that parking requirements in relation to theatres would be derived from “[a]ssessment based on a transport survey” .

The parking and traffic issue

13. The council raised five issues in its statement of issues, but they fundamentally reduce to one issue, which is whether the impact of the proposed development on parking and traffic will be unacceptable.

14. There is no doubt that parking and traffic is a matter of major concern at the Spot. Evidence about the current problems of parking and traffic was given by Mr B O’Halloran, Mr B Devery, Mr P A Chilcott, Dr E Tork, Ms J F Williams, Mr A Tosti and Mr P W McDonagh. They all either reside in the vicinity of the Spot or they conduct business there. Their evidence may be summarised as follows:

(i) There is at present significant pressure on parking and traffic in the Spot, generated by the Ritz Cinema, and also by approximately 16 restaurants which are located in and around the Spot;

(ii) There are times when traffic in St Paul’s Road and adjacent streets is chaotic, which results in gridlock, delay, noise, increased air pollution, driver frustration and hazard for pedestrians;

(iii) There are times when there is little or no parking available in St Paul’s Road and in adjacent streets for local residents, local business owners and their customers;

(iv) Insufficient parking has led to blocking of bus stops, double parking, and parking in private driveways and on footpaths;

(v) The Ritz Cinema appears to local observers to contribute significantly to the parking and traffic problems so described;

(vi) There are times when the parking and traffic problems are compounded by the operation of the Ritz Cinema, such as evenings and on weekends, and especially at times of changeovers of sessions, that is, when one session is finishing and another is about to start.

15. These problems were reiterated in 173 written objections lodged with the council, and in a petition of about 840 signatures.

16. All these persons fear a worsening of the parking and traffic problems if the Ritz Cinema is permitted to expand. A number of them commented particularly on the fact that the consequence would be a greater number of films screened at greater frequency thus leading to an increase in the peak attendances of patrons.

17. I should add at this point that there was evidence of support for the proposed development. Ms M P Miller gave oral evidence. She said that she regularly attends cinema screenings at the Ritz, and she supported its expansion, because it would provide a greater choice of films. Furthermore, a petition of support containing over 6000 signatures and 30 letters of support, predominantly from people who owned or ran businesses in the Spot, were also tendered.

The applicant’s response

18. The applicant does not deny that there are parking and traffic problems in the Spot (although it denies that the Ritz Cinema is solely responsible for those problems). Its case is, however, that there will be a reduction in those problems in the future, as a consequence of a decline in overall attendances at the Ritz which will follow increased competition from new or expanded cinema multiplexes in the Ritz’s trade area, and that accordingly the proposed development will not contribute to the existing situation.

19. The applicant relies upon the evidence of Mr P D Leyshon, who is a research analyst and town planner. Mr Leyshon analysed the impact upon audience attendance levels at the Ritz Cinema following upon the opening of the 16 screen cinema complex at Fox Studios in Moore Park and the proposed expansion of the existing cinema at Westfield in Bondi Junction projected to open for trade in 2002.

20. Mr Leyshon’s conclusion was that audience attendance levels at the Ritz Cinema will decline by 32.6 per cent if the proposed development does not proceed, and will decline by 22.4 per cent even if the proposed development does proceed.

21. His conclusion was based upon a number of findings including the following:

(a) Cinema attendance per capita in Australia is increasing but, following the trend in the United States, it is anticipated that this will level off at five visits per person per annum;

(b) The number of cinema screens in the eastern suburbs of Sydney is currently 21, of which the Ritz Cinema has four. Fox Studios and Westfield at Bondi Junction will add a minimum of 24 additional screens to that region within the next one to three years;

(c) Fox Studios, in particular, will have a strong impact because of its high profile location and the supporting retail and entertainment facilities which it provides. (In giving oral evidence, Mr Leyshon said that the impact from Fox Studios would constitute most of the 32.6 per cent or 22.4 per cent decrease in attendance, because it was closer to the Ritz and because of its size);

(d) Multiplex cinemas enjoy significant competitive advantages over small independent cinemas, in their ability to screen both mainstream and art-house movies, in their better seating, systems and patron facilities, and in their lower management costs. In particular, they have the capacity to run “blockbusters” with a higher degree of frequency than do independent cinemas.

22. The council tendered a report from Mr A Hack of Hill PDA in which Mr Hack commented upon Mr Leyshon’s report. Mr Hack generally concurred with the data and information provided by Mr Leyshon, although he thought that the percentage decrease in audience attendance levels would, especially over the long term, be somewhat less than Mr Leyshon had concluded. However, Mr Hack seemed to be in no doubt that the Ritz Cinema will lose trade.

23. Mr C E Hallam, a traffic engineer, gave evidence on behalf of the council about the impact of the proposed development on parking and traffic generation. He concluded that the additional 345 seats which the proposed development will provide would increase the demand for parking in the area of the Ritz Cinema to between 42 and 60 spaces, and that demand would exacerbate an already unsatisfactory situation. However, in coming to this conclusion, Mr Hallam put aside the impact of Fox Studios and the Westfield Bondi Junction proposal, and he also ignored the limit of occupation of 1253 which the applicant accepts.

24. On the other hand, Mr B J R Masson, a traffic engineer who gave evidence on behalf of the applicant, took into account these matters, and concluded that there will be considerable alleviation of parking pressure in the vicinity of the Spot, which would be further improved by the eight spaces which the proposed development is to provide. His conclusion was that the proposed development would not have adverse impacts on parking availability or on local residential amenity.

25. The requirements prescribed by DCP No 2 and DCP 1998 did not loom large in the assessment of this proposed development. In making his assessment, Mr Hallam noted that DCP No 2 did not set out a parking control in relation to theatres, and that DCP 1998 came into force after the development application had been lodged. Accordingly, Mr Hallam adopted the approach and utilised the estimates of Mr E Smith, the consultant who had prepared the parking and traffic report which accompanied the development application. In Mr Hallam’s opinion, that was an approach based on “first principles” . Mr Masson did not refer to either DCP No 2 or DCP 1998, accepting instead that parking demand would be reduced.

Should consent be refused?

26. The Court’s task is to determine the applicant’s development application by deciding whether development consent should be granted or refused. In so doing, the Court is required to determine whether the impact of the proposed development is or is not such as to require refusal. That task requires an assessment of the impact of the particular proposal, and it is important to bear in mind that the Court cannot require the proposed development to cure the existing parking and traffic situation at the Spot.

27. The evidence of Mr Hallam establishes that an increase of 345 seats will, applying the assumptions and calculations which he did, lead to a demand for at least 42 car spaces.

28. That demand, however, must be assessed in its context and not in isolation. An important factor to take into consideration is the reduction of attendance levels at the Ritz Cinema. The evidence is incontrovertible that there will be a reduction of those levels as a result of increased competition. The extent of the reduction is less precise, because Mr Leyshon and Mr Hack have estimated different figures. But both agree that a reduction in attendance levels is inevitable, at least over the next few years, and it will occur whether or not the proposed development proceeds.

29. What is the consequence of a reduction in attendance levels upon the demand for parking? Mr Masson addressed this issue, and concluded that the reduction in attendance levels will lead to a reduction in parking demand, and will ameliorate the current parking situation in the vicinity of the Ritz Cinema. Mr Hallam did not address this issue at all, expressly stating that he did not take into account Mr Leyshon’s evidence.

30. I accept therefore that there will be a reduction in parking demand. I accept also that the applicant will be required, if consent is to be granted, to limit the maximum number of patrons attending the Ritz Cinema at any one time to 1253. These two factors combine to underpin a conclusion that the proposed development will not have an adverse impact upon the parking and traffic situation in the vicinity of the Ritz Cinema.

31. There is another matter to consider, and that is the concerns of the local residents and occupants. Those who gave evidence expressed a fear that, if there were to be more cinema auditoriums available, there would be more frequent screenings, and the consequence would be that the peaks of audience attendance would be more regular and frequent. They were concerned that this would lead to exacerbation of the parking and traffic situation at those times.

32. Neither Mr Masson or Mr Hallam addressed this concern, but nonetheless I take it into account as a real concern which those local residents and occupants hold. It must, however, be evaluated having regard to first, the reduced attendance levels projected for the Ritz Cinema, and consequent decreased parking and traffic impact, secondly, the impact upon parking and traffic from the numerous restaurants at the Spot, and, thirdly, the views of the supporters of the proposed development who, judging by the respective petitions and letters, outnumber those who oppose it. In the balance, it seems to me that the concern of the local residents and occupants does not justify refusal of development consent.

Conditions

33. As required by the rules of the Court, the council tendered a draft of conditions it would seek to impose if the Court were minded to grant development consent. Most of these conditions were acceptable to the applicant, and some of the changes which the applicant requested were acceptable to the council, I deal only with those which were in dispute as follows:

Condition 5:

34. The council sought an addition to this condition to provide that “… [t]here shall be no queuing outside the premises or on Council’s footpath or public streets”.

35. The applicant objected to such an addition on the ground that it cannot control patrons outside of the premises. I think that the applicant’s objection is justified, and I will delete this addition.

Condition 6:

36. This condition required the last screening to end no later than midnight.

37. The applicant objected to such a condition, on the basis that it is common in the industry for late night screenings to occur, and such occasions would be no more than a dozen times per year.

38. However, a noise assessment by Renzo Tonin & Associates Pty Ltd was tendered. It concluded that there would be no adverse noise impact from the proposed development. The potential noise impact was assessed on a description of the existing environment, which included a statement (at p 2) that “… [e]xisting operating hours are generally 9.30am to 12.00 midnight seven days a week and will remain unchanged”.

39. In light of this evidence, condition 6 should be imposed.

Condition 8 (formerly 8 and 8A):

40. The applicant objected to this condition as onerous and unreasonable, but I think that the condition is justified, having regard to the fact that the limit of patrons to 1253 is a critical factor in the impact of the proposed development on parking and traffic in the vicinity, and the council should have the power to check compliance through the applicant’s records.

Condition 9:

41. The applicant objected to this condition upon three grounds. First, the applicant pointed out that the condition was based upon the additional floorspace which has not yet been determined with absolute precision, (although the applicant has calculated the amount to be 255 m2) and it asserted that the condition should not be in such an imprecise form. Secondly, there was no evidence that the contributions plan upon which the condition was based had been adopted by the council. Thirdly, since these proceedings had been vacated in August upon the application of the council, the applicant should have the benefit of having the contribution determined as at August rather than the current date.

42. I consider that the condition should be imposed in the form drafted by the council. The additional floorspace can be calculated from the plans, and the condition is not so imprecise as to be uncertain. The condition specifies that it is based upon a contributions plan effective from 2 September 1999 and there is no evidence to the contrary. Lastly, it is appropriate that the condition is based upon a current contributions plan, despite the adjournment of the proceedings.

Condition 20(b) (now deleted):

43. The council sought payment by the applicant of a full reconstruction of Aeolia Lane. The applicant objected to the imposition of such a condition, and, since there is no evidence which would support it, I propose to omit it.

Condition 54 (now deleted):

44. The council sought a condition requiring the applicant to ensure that there would be no emissions or discharges which would give rise to an offence under the Protection of the Environment Operations Act 1997 and its Regulations.

45. This obligation falls upon the applicant by law, and a condition to this effect is not justified.

46. In addition to these matters I have made a reference in condition 1 to figure 1 of Mr Masson’s report which sets out the amended car parking layout so as to make it clear that the proposal is based on the provision of seven on-site parking spaces in the basement (which are shown on figure 1) and only one car parking space on the ground floor parking area as recommended by Mr Masson.

Conclusion

47. For the foregoing reasons, I have concluded that the proposed development application should be determined by the grant of development consent.

48. In coming to that conclusion, I have noted that the applicant has lodged an objection under State Environmental Planning Policy No 1 in relation to non-compliance of the proposed development with the floor space and building height requirements of the Randwick Local Environmental Plan 1998. No objection was taken by the council in respect, and I accept that the objection is well founded and that compliance with those standards is unreasonable or unnecessary in the circumstances of this case.

49. Accordingly, my formal orders are as follows:

(1) The appeal is upheld.

(2) Development application number 1076/98/6F for the demolition of the existing building, the construction of two cinema auditoriums and the provision of eight on-site car spaces at 39 St Pauls Street Randwick is determined by the grant of development consent subject to the conditions specified in annexure ‘A’.

(3) The exhibits may be returned, except for exhibits 1 and 2.

50. I make no order as to costs.

ANNEXURE ‘A’

CONDITIONS OF CONSENT

JACK ZIADE v RANDWICK CITY COUNCIL

Property: 39 St Pauls Street, Randwick

1. The development shall be implemented substantially in accordance with the details set out on the plans numbered DA 01 to DA 04 dated 1.11.98, and on the application form and on any supporting information received with the application, except as amended in red on the plans and in accordance with figure 1 of the report of Masson Wilson Twiney dated August 1999 and by the conditions specified hereunder.

2. The colours, materials and finishes of all external components of the building and hard surfaces are to be compatible with the adjacent development and maintain the amenity of the environment.

A sample board, indicating the materials, colours, textures and finishes of all external components of the building are to be submitted to and approved by the Director of Planning and Environment, in accordance with section 80A(2) of the Environmental Planning and Assessment Act 1979, prior to a construction certificate being issued for the proposed development.

3. Eight staff car parking spaces shall be provided on site and be available for such use at all times.

4. A maximum total number of 1253 seats may be occupied in the six cinemas at any time.

The applicant must prepare a plan of management addressing but not limited to measures to ensure that the number of seats occupied at any one time in the cinema complex does not exceed 1253. Details of the plan of management shall be provided to Council prior to the issue of the occupation certificate.

5. There shall be no more than 1253 patrons of the cinema complex at 39 - 47 St Pauls Street, Randwick on the premises at any time.

6. The last screening session shall end no later than midnight.

7. The owner/occupier of the cinema complex shall keep and maintain accurate records of:

(i) Times of showing in each cinema daily;

(ii) Ticket sales for each showing in each cinema daily;

(iii) Admissions whether for payment of money or otherwise to each showing in each cinema daily.

8. The Council shall engage an auditor to carry out audits monthly of the site to confirm compliance with the terms of condition 4.

The site owner shall reimburse the costs of Council for its engagement of an independent auditor. That payment is to be made within 14 days of submission of an invoice from Council.

Records of each sitting for each cinema must be provided to the auditor at the time of inspection to confirm compliance with the requirement that the maximum number of seats that are occupied within the complex does not exceed 1253. A copy of the records must be provided to Council’s Department of Planning and Environment on the first day of the first month of each quarter.

9. The land the subject of this consent must be consolidated into one allotment of land within three months of the completion of development.

10. In accordance with Council's Section 94 Contributions Plan effective from 2 September 1999 a monetary contribution is to be paid to Council for the provision of townscape improvement for an amount calculated at $52 per additional square metre of additional floor space on site. This amount shall be paid by cash or bank cheque prior to the approval of the construction certificate. Council’s Section 94 Contributions Plan may be inspected at the Customer Service Centre, Administrative Centre, 30 Frances Street, Randwick.

In accordance with Council’s Section 94 Contributions Plan effective from 2 September 1999 an administration charge of $425 is to be paid to Council. This amount must be paid by cash or bank cheque prior to the approval of the construction certificate. Council’s Section 94 Contributions Plan may be inspected at the Customer Services Centre, Administrative Centre, 30 Frances Street, Randwick.

11. The ceilings to the former ladies toilet, to be occupied by the new ramp, are to have a plain set joint to the cornice.

12. Internal elevations at the same scale as the detailed plans are to be provided to the Director of Planning and Environment prior to a construction certificate being issued for the proposed development for the proposed works at ground floor level.

13. Colour, texture, style, size and type of finish of the materials to be used on the exterior of the building are to be compatible with those of the existing building. Samples/details shall be provided to the Director of Planning and Environment prior to a construction certificate being issued for the proposed development.

14. Archival and photographic recording of the configuration of the foyer area in the vicinity of the former toilet and any significant fabric uncovered during the course of the work must be prepared and lodged in the council’s library.

15. An interpretive display of historic photographs and drawings illustrating the form of the original cinema building must be provided in the public foyer.

16. With the exception of tiling or other toilet finishes, demolition of the enclosing walls of the former ground floor ladies toilet must be kept to the minimum practical to achieve the access required so as to retain the sense of enclosure and the amount of significant fabric.

17. An application for the Heritage Council’s approval shall be submitted under section 60 of the Heritage Act 1977 prior to work commencing. This shall include further details of the proposed demolition and of the proposed finishes to the walls referred to in condition 13.

18. Decorative external ventilation grills on the front facade of the building must be retained.

Security Deposit Conditions

19. The following security deposit requirement is to be complied with prior to a construction certificate being issued for the development, as security for making good any damage caused to the roadway, footway, verge or any public place; or as security for completing any public work; and for remedying any defect on such public works, in accordance with section 80A(6) of the Environmental Planning and Assessment Act 1979:

(a) $1000 - Security damage deposit

The damage deposit may be provided by way of cash or cheque with the Council and is refundable upon the applicant advising Council, in writing, of the completion of all building works and/or obtaining an occupation certificate, if required.

The applicant is to advise Council in writing and/or photographs of any signs of existing damage to the Council roadway, footway or verge prior to the commencement of any building works.

Traffic Conditions/Civil Works Conditions

20. The applicant shall meet the full cost for Council to construct a heavy duty vehicular crossing in Aeolia Lane to provide vehicular access/egress for the proposed car park.

21. All new walls adjacent to vehicular crossings shall be lowered to a maximum height of 600 mm above the internal driveway level, splayed, or suitably set back so that a driver of a stopped vehicle 2 m behind the street boundary line can observe pedestrians up to 2 m from the crossings.

Alignment Level Conditions

22. The design alignment level shall match the existing back of concrete footpath in St Pauls Street. The design alignment in Aeolia Lane shall be 50 mm above the centreline.

23. The above alignment levels have been issued by the Council’s Department of Asset and Infrastructure Services at a prescribed fee of $143 calculated at $12 per metre of site frontage. This amount is to be paid prior to a construction certificate being issued for the development.

24. The alignment levels and their relationship to the roadway/kerb/footpath must be indicated on the building plan for the construction certificate.

The design alignment level at the street boundary, as issued by Council, shall be strictly adhered to.

Service Authority Conditions

25. A public utility impact assessment shall be carried out on all public utility services on the site, roadway, nature strip, footpath, public reserve or any public areas associated with and/or adjacent to the development/building works and include relevant information from public utility authorities and exploratory trenching or pot-holing, if necessary, to determine the position and level of service.

26. The applicant shall meet the full cost for Telstra, Energy Australia, Sydney Water or Natural Gas Company to adjust/relocate their services as required. The applicant shall make the necessary arrangements with the service authority.

27. Documentary evidence from the public utility authorities confirming that all of their requirements have been satisfied, shall be submitted to the certifying authority, prior to a construction certificate being issued for the development.

Drainage Conditions

28. The applicant shall renew the Council controlled stormwater pipeline located within the proposed development site. The pipeline shall be designed to cater for stormwater flows generated by a 1 in 100 year storm event

29. The applicant shall meet the full cost of all work required by Council to be carried out in connection with the renewed/relocation/upgrading of the stormwater pipeline within the property, such work to be carried out in accordance with plans and specifications submitted to and approved by the Director of Asset and Infrastructure Services. It is recommended that the applicant discuss design requirements with the Department of Asset and Infrastructure Services, prior to preparation of design plans.

30. The applicant shall meet the full cost of the creation of a drainage easement over the line of any existing or upgraded stormwater pipelines within the site, under the control of Council. The easement shall be a minimum of 3 m in width.

31. Engineering calculations and plans with levels reduced to Australian Height Datum in relation to site drainage shall be submitted to and approved by the certifying authority, prior to a construction certificate being issued for the development. The drawings and details shall include the following information:

(a) A detailed drainage design supported by a catchment area plan, at a scale of 1:100 or as considered acceptable by Council, and drainage calculations prepared in accordance with the Institution of Engineers publication, Australian Rainfall and Run-off, 1987 Edition.

(b) A layout of the proposed drainage system including pipe sizes, type, grade, length, invert levels, etc, dimensions and types of all drainage pipes and the connection into Council’s stormwater system. This may involve either connection to the Council's street gutter, or into a Council stormwater pit.

All proposals should indicate the location of the closest Council stormwater pit and line regardless of the point of discharge. This information can be obtained by a visual inspection of the area and perusing Council’s drainage plans.

(c) Generally all internal pipelines shall be capable of discharging a 1 in 20 year storm flow. However the minimum pipe size for pipes that accept stormwater from a surface inlet pit shall be 150 mm diameter. The site shall be graded to direct any surplus run-off (ie above the 1 in 20 year storm) to the proposed drainage system.

(d) The separate catchment areas within the site, draining to each collection point or surface pit classified into the following categories:

(i) Roof areas

(ii) Paved areas

(iii) Grassed areas

(iv) Garden areas

(e) Where buildings abut higher buildings and their roofs are “flashed in” to the higher wall, the area contributing shall be taken as: the projected roof area of the lower building, plus one half of the area of the vertical wall abutting, for the purpose of determining the discharge from the lower roof.

(f) Proposed finished surface levels and grades of car parks, internal driveways and access aisles which are to be related to Council’s design alignment levels.

(g) The details of any special features that will affect the drainage design eg the nature of the soil in the site and/or the presence of rock etc.

(h) All stormwater run-off naturally draining to the site shall be collected and discharged through this property’s stormwater system. Such drainage shall if necessary, be constructed prior to the commencement of building work.

32. On-site stormwater detention shall be required for this development (this shall include any proposed landscaping works). The following conditions shall apply:

(i) The maximum discharge from the above site is not to exceed that which would occur during a 1 in 10 year storm of 1 hour duration for the existing site conditions. All other stormwater run-off from the above site for all storms up to the 1 in 20 year storm is to be retained on the site for gradual release to the kerb and gutter or drainage system as required by the Director of Asset and Infrastructure Services. Provision is to be made for satisfactory overland flow should a storm in excess of the above parameters occur.

For small areas up to 0.5 ha, determination of the required cumulative storage shall be calculated by the mass curve technique as detailed in Technical Note 1, Chapter 14 of the Australian Rainfall and Run-off Volume 1, 1987 Edition.

Where possible the detention tank shall have an open base to infiltrate stormwater to the groundwater. Note that the ground water and any rock stratum has to be a minimum of 2 m below the base of the tank.

(ii) All site stormwater shall be discharged by gravity to the kerb and gutter in St Pauls Street or into the upgraded pipeline located within the development site.

33. The applicant shall provide for a detention volume of up to the 1 in 100 year, plus an additional 50 per cent of storage volume should no overland escape route be provided for storms greater than the design storm.

34. Should a pump system be required to drain any portion of the site the system must be designed with a minimum of two pumps being installed, connected in parallel (with each pump capable of discharging at the permissible discharge rate) and connected to a control board so that each pump will operate alternatively. The pump system must also be designed and installed strictly in accordance with “Section 8.4 PUMP SYSTEMS” as stipulated in Randwick City Council’s Private Stormwater Code.

35. The detention area shall be regularly cleaned and maintained to ensure it functions as required by the design.

36. The stormwater detention area shall be suitably signposted where required, warning people of the maximum flood level.

37. The floor level of all habitable and storage areas adjacent to the detention area shall be a minimum of 300 mm above the maximum water level for the design storm or alternately a permanent 300 mm high water proof barrier is to be constructed.

38. A sediment/silt arrester pit shall be provided within the site at the street boundary prior to the site stormwater discharging by gravity to the kerb/the street drainage system.

39. A “Work as Executed” plan prepared and signed by a registered surveyor or engineer shall be submitted to Council’s Director of Asset and Infrastructure Services at the completion of the works showing the location of the detention basin with finished surface levels, contours at 0.2 m intervals and volume of storage available. The outlet pipe from the detention basin to its connection with Council’s drainage system, shall be indicated on this plan in conjunction with the following information:

(i) location

(ii) pipe diameter

(iii) gradient

(iv) pipe material ie PVC or EW etc

(v) orifice size (if applicable)

40. Seepage shall be drained directly into an absorption pit or Council’s underground drainage system.

Seepage is not to be drained to the kerb and gutter in St Pauls Street.

41. Any absorption trenches/pits shall be designed in accordance with “Section 8.5 ABSORPTION TRENCHES” as stipulated in Randwick City Council's Private Stormwater Code.

42. The internal floor area of the garbage area shall be graded and drained to the sewer to the approval and requirements of Sydney Water and a copy of the consent shall be forwarded to the certifying authority and the Council. Alternatively, the internal floor area of the garbage area shall be graded and drained to a suitably sized holding tank on the site. This tank shall be periodically drained by a tanker and disposed of at a liquid waste depot.

43. All drainage details for the site shall be prepared by a suitably qualified hydraulic consultant who shall, at the completion of the works, certify that the drainage works have been constructed in accordance with the approved drainage plans.

44. A “restriction as to user and positive covenant” shall be placed on the title of the subject property prior to the final Council inspection for this property. This restriction as to user shall indicate the location and dimensions of the detention area. (This is to ensure that no works which could affect the design function of the detention system shall be permitted to be carried out without the prior consent in writing of the Council.)

Such restriction and positive covenant shall not be released, varied or modified without the consent of the Council.

Environmental Amenity Conditions

The following conditions are applied to satisfy the provisions of section 79C of the Environmental Planning and Assessment Act 1979 and to maintain reasonable levels of environmental amenity.

45. There must be no encroachment of any part of the structure/s onto the adjoining premises or onto Council’s road reserve, footway or public place except for any awning shown in the plans the subject of this development consent.

46. All plumbing and drainage pipes, other than rain water heads, gutters and downpipes, must be concealed within the building.

47. Power supply and telecommunications cabling to the development shall be underground.

Noise Emission Conditions

The following conditions are applied to ensure that noise emissions from the development satisfy legislative requirements and maintain reasonable levels of the amenity to the area.

48. The operation of all plant and equipment shall not give rise to an ‘offensive noise’ as defined in the Protection of the Environment Operations Act 1997.

In this regard, the operation of any plant or equipment on the site shall not give rise to an L10 sound pressure level which is 5dB(A) greater than the A-weighted90L background sound pressure level, measured at any point on a residential boundary or within any residential dwelling.

49. The use of the cinema complex and the operation of plant and equipment shall not give rise to the transmission of a vibration nuisance.

50. A report, prepared by a suitably qualified and experienced consultant in acoustics, shall be submitted to the Council prior to an occupation certificate being issued for the development, certifying that noise and vibration emissions from the development comply with the provisions of the Protection of the Environment Operations Act l997 and conditions of Council’s approval.

Waste Management Conditions

The following condition is applied to ensure that adequate provisions are made for the management of waste from the development.

51. The applicant is advised that it is prohibited to dispose of waste materials in the domestic garbage service. All waste materials must be collected by Council’s Trade Waste Service or waste contractor authorised by the Waste Service of New South Wales and details of the proposed service to serve the development are to be submitted to Council prior to occupation.

Pollution Control Conditions

The following condition is applied to satisfy the relevant pollution control criteria and to maintain reasonable levels of health, safety and amenity to the locality.

52. The location and height of the discharge of mechanical ventilation systems are required to satisfy the relevant provisions of the Building Code of Australia and AS1668 and details are to be provided in the relevant plans and specifications for the construction certificate.

Prescribed Conditions and Fire Safety

The following conditions are applied to ensure that the development satisfies the provisions of the Environmental Planning and Assessment Act 1979 and Regulations.

53. All new building work must be carried out in accordance with the provisions of the Building Code of Australia, in accordance with Clause 78A of the Environmental Planning and Assessment Regulation 1994.

54. All excavations and backfilling associated with the erection or demolition of a building must be executed safely in accordance with appropriate professional standards and excavations are to be properly guarded and protected to prevent them from being dangerous to life or property, in accordance with clause 78D of the Environmental Planning and Assessment Regulation 1994.

55. Retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil, must be provided if the soil conditions require it and adequate provisions made for drainage, in accordance with clause 78E of the Environmental Planning and Assessment Regulation 1994.

56. If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must comply with the provisions of clause 78F of the Environmental Planning and Assessment Regulation 1994 - “Support for Neighbouring Buildings”, and must:

(i) preserve and protect the building from drainage; and

(ii) if necessary, underpin and support the building in an approved manner; and

(iii) at least seven (7) days before excavating below the level of the base of the footings of a building on an adjoining allotment of land (including a public road or public place), give notice of the intention to do so to the owner of the adjoining land and furnish particulars of the excavation to the owner of the building being erected or demolished.

57. In accordance with clause 78G of the Environmental Planning and Assessment Regulation 1994:

(i) If the work involved in the erection or demolition of a building is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or the building involves the enclosure of a public place, a hoarding or fence must be erected between the work site and the public place.

(ii) If necessary, an awning is to be erected sufficiently to prevent any substance from, or in connection with, the work from falling into the public place or adjoining premises.

(iii) The public place adjacent to the work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place and any such hoarding, fence or awning is to be removed upon completion of the work.

58. A sign must be erected on the site in a prominent, visible position, prior to commencing any demolition, excavation or building works, stating that ‘unauthorised entry to the site is prohibited’ and showing the name of the person in charge of the work site and a telephone number at which the person may be contacted outside working hours, in accordance with clause 78H of the Environmental Planning and Assessment Regulation 1994.

In the case of residential building work, the sign is also required to detail the licence number of the building contractor or the permit number of the owner-builder, in accordance with the Home Building Act 1989 and Regulations.

59. Toilet facilities are to be provided, at or in the vicinity of the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site and the toilet facilities must be designed and installed in accordance with the provisions of clause 78I of the Environmental Planning and Assessment Regulation 1994, and be installed before any other work is commenced.

Structural Conditions

The following conditions are applied to ensure the structural adequacy and integrity of the proposed building and adjacent premises.

60. A report shall be prepared by a professional engineer and submitted to the certifying authority prior to the issuing of a construction certificate, detailing the proposed methods of excavation, shoring or pile construction, including details of vibration emissions and detailing any possible damage which may occur to adjoining or nearby premises that may be caused by the proposed building and excavation works.

Any practices or procedures specified in the engineer’s report in relation to the avoidance or minimisation of structural damage to nearby premises, are to be fully complied with and incorporated into the plans and specifications for the construction certificate.

A copy of the engineers report is to be submitted to the Council, if the Council is not the certifying authority.

61. Driven type piles/shoring must not be provided unless a geotechnical engineer’s report is submitted to the certifying authority, prior to the issuing of a construction certificate, which states that damage should not occur to any adjoining premises and public places as a result of the works.

62. A dilapidation report prepared by a professional engineer or suitably qualified and experienced building surveyor shall be submitted to the certifying authority prior to the commencement of demolition, excavation or building works detailing the current condition and status of all buildings, including ancillary structures (ie including dwellings, residential flat buildings, commercial/industrial building, garages, carports, verandahs, fences, retaining walls, swimming pools and driveways etc) located upon all of the premises adjoining the subject site.

The report is to be supported with photographic evidence of the status of the buildings and a copy of the report must also be forwarded to the Council and to the owners of each of the abovestated premises, prior to the commencement of any works.

63. The installation of ground or rock anchors underneath any adjoining premises including (a public roadway or public place) must not be carried out without the specific written consent of the owners of the affected adjoining promises and (where applicable) details of compliance must be provided to the certifying authority prior to the commencement of any excavation or building works.

64. A Certificate of Adequacy prepared by a professional engineer shall be submitted to the certifying authority (and the Council, if the Council is not the certifying authority) prior to occupation of the building, certifying the structural adequacy of the building and that the building works satisfy the relevant structural design requirements of the Building Code of Australia.

Construction Management Conditions

The following conditions are applied to ensure that the development satisfies the terms of Council’s approval and relevant standards of construction, and to maintain adequate levels of health, safety and amenity during construction.

65. A copy of the construction certificate, the approved plans and specifications and development consent conditions must be kept on the site at all times and be available to the Council officers upon request.

66. The building works are to be inspected by the principal certifying authority (or other suitably qualified person on behalf of the applicant) to monitor compliance with Council’s approval and the relevant standards of construction.

Documentary evidence of compliance with Council’s approval and relevant standards of construction is to be maintained by the principal certifying authority.

Upon inspection of each stage of construction, the principal certifying authority (or other suitably qualified person on behalf of the applicant) is also required to ensure that adequate provisions are made for the following measures (as applicable), to ensure compliance with the terms of Council’s approval:

(i) Sediment control measures;

(ii) Provision of perimeter fences or hoardings for public safety and restricted access to building sites;

(iii) Maintenance of the public place free from unauthorised materials, waste containers or other obstructions.

67. In addition to the matters contained in the Environmental Planning and Assessment Regulation 1994, the following matters are to be completed in accordance with the terms and conditions of this development consent, prior to the occupation of the building:

(a) car parking and vehicular access;

(b) stormwater drainage;

(c) external finishes and materials.

68. A works-as-executed fire services plan is to be submitted to the Council prior to occupation of the development, detailing the location of the essential fire safety measures installed within the building premises.

69. A Registered Surveyors check survey certificate or compliance certificate is to be forwarded to the principal certifying authority (and a copy is to be forwarded to the Council, if the Council is not the principal certifying authority), detailing compliance with Council’s approval at the following stage/s of construction:

(a) Prior to construction of each floor level showing the land, building and boundary setbacks and verifying that the building is being constructed at the approved level.

(b) On completion of the erection of the building showing the area of the land, the position of the building and boundary setbacks and verifying that the building has been constructed at the approved levels.

70. Building and demolition works must only be carried out between the hours of 7.00 am to 6.00 pm Monday to Saturday inclusive and all building activities are strictly prohibited on Sundays and public holidays, except with the specific written authorisation of Council’s Manager of Environmental Health and Building Services.

71. The use of any rock excavation machinery or any mechanical pile drivers is restricted to the hours of 8.00 am to 5.00 pm (maximum), Monday to Friday inclusive and from 8.00 am to 1.00 pm on Saturday, to minimise the noise levels during construction and loss of amenity to nearby residents.

A report prepared by a suitably qualified and experienced consultant in acoustics shall be submitted to Council prior to the commencement of any excavation or building works, certifying that noise and vibration emissions from the construction of the development will comply with the provisions of the Protection of the Environment Operations Act 1997, the Noise Control Manual published by the Environment Protection Authority and relevant conditions of this approval.

72. Noise emissions during the construction of the building and associated site works must comply with the relevant provisions of the Protection of the Environment Operations Act 1997 and the Noise Control Manual published by the Environment Protection Authority, except as may be amended by the conditions of this approval.

73. Building materials, sand, waste materials or construction equipment must not be placed upon the footpath, roadway or nature strip at any time.

74. Bulk bins/waste containers must not be located upon the footpath, roadway or nature strip at any time without the prior written consent of the Council, unless exempt under Council’s Local Approvals Policy.

75. A Site Construction Management Plan is to be submitted to and approved by the Council or an accredited certifier prior to the commencement of demolition, excavation or building works, and the following measures are to be implemented prior to the commencement of any site works and be maintained throughout the works, to maintain adequate levels of public health and safety. The management plan must include the following measures, as applicable:

(i) Location and construction of protective fencing/hoardings to the perimeter of the site;

(ii) Location of site storage areas/sheds/equipment;

(iii) Location of building materials for construction;

(iv) Provisions for public safety;

(v) Dust control measures;

(vi) Site access location and construction;

(vii) Details of methods of disposal of demolition materials;

(viii) Protective measures for tree preservation;

(ix) Provisions for temporary sanitary facilities;

(x) Location and size of waste containers/bulk bins;

(xi) Soil and water management plan; comprising a site plan; indicating the slope of land, access controls, location/type of sediment control/s, material stockpile storage/control methods;

(xii) Construction noise/vibration management.

76. During construction stages, sediment laden stormwater run-off shall be controlled using the sediment control measures outlined in the manual for Managing Urban Stormwater: Construction Activities, published by the Environment Protection Authority.

Details of the proposed sediment control measures must be submitted to and approved by the Council or an accredited certifier prior to the commencement of any site works. The sediment and erosion control measures must be implemented prior to the commencement of any site works and a copy of the approved details must be made available to Council officers upon request.

77. Stockpiles of soil, sand, aggregate or other materials must not be located on any drainage line, natural watercourse, footpath, roadway or any public place and the stockpiles must be protected with adequate sediment control measures.

Building operations such as brick cutting, washing tools or equipment and mixing mortar are not permitted on public footpaths, roadways, in any public place or any location which may lead to the discharge of materials into the stormwater drainage system.

78. A warning sign for soil and water management must be displayed in a prominent position on the building site, visible to both the street and site workers. The sign must be displayed throughout the construction period. Copies of a suitable warning sign are available at Council’s Customer Service Centre for a nominal fee.

79. Public access to the site and building works, materials and equipment on the site is to be restricted, when work is not in progress or the site is unoccupied.

A ‘B Class’ overhead type hoarding is required to be provided to protect the public, located adjacent to the development, prior to the commencement of any works on the site which comprise:

(i) any works or hoisting of materials over a public footway or adjoining premises; or

(ii) any building or demolition works on buildings which are over 7.5 m in height and located within 3.6 m of the street alignment.

A temporary hoarding or fence is to be provided to protect the public, located to the perimeter of the site in all other locations (unless the site is separated from the adjoining land by an existing structurally adequate fence, having a minimum height of 1.5 m) and hoarding or fence is to be installed prior to commencing any works on the site and be maintained throughout construction. Hoardings or fences are to have a minimum height of 1.8 m and be constructed of solid plywood sheeting (painted white) or of cyclone wire fencing with geotextile fabric attached to the inside of the fence, to provide dust control.

Hoardings or fences are to be structurally adequate and be constructed in a good and workmanlike manner and the use of poor quality materials or steel reinforcement mesh as fencing is not permissible.

The public safety provisions and temporary fences must be in place prior to the commencement of any demolition, excavation or building works and be maintained throughout construction.

Details of the proposed hoardings or fences located upon the site are to be submitted to and approved by the Principal Certifying Authority and be installed prior to commencing any demolition, excavation or building works.

Details of any hoardings, fences or other enclosures that are proposed to be located upon the footpath or any public place, must be submitted to and approved by Council’s Director of Planning and Environment, prior to commencement of any works and any enclosures or structures located upon a footpath or public place are subject to a weekly charge in accordance with Council’s adopted fees and charges.

80. Temporary hoardings or fences are required to be constructed in accordance with the following requirements:

(a) Hoardings and fences are not to obstruct access for services including fire services.

(b) A temporary timber crossing is to be provided to the site entrance across the kerb and footway area, with splayed edges.

(c) A stable and level, non-slip timber/metal walking platform or firm road base material is to be provided adjacent to the hoarding/fence across the front of the site, to maintain an unobstructed and suitable footway for pedestrians at all times.

(d) The hoarding/fence must be constructed so that it will not obstruct the view of motorists, pedestrians or traffic lights.

(e) Access gates to the site shall not open over the footway/road.

(f) The applicant/builder is required to hold Public Liability Insurance, with a minimum liability of $10 million and a copy of the Insurance cover is to be provided to Council prior to the construction of any hoarding/fence upon the road reserve/footway.

81. ‘B Class’ overhead type hoardings are required to be constructed in accordance with the following requirements:

(a) The hoarding is to be designed so that the wind loads comply with AS1170.2. Superimposed loads from site sheds and materials not to exceed 40 per cent of the design live loads. The structure should have a factor of safety of 1.5 against overturning and 2 against sliding.

(b) Footings to the hoarding are to be located and designed so as not to have an adverse affect upon underground services or the like. The hoarding is to be able to withstand a vehicle impact and removal of any one column anywhere in the structure and a minimum length of 2 m of wall supporting the deck on any one side supporting the structure is required.

(c) Metal parts of the hoarding or associated structures to be not less than 4 m from any power line, transmission line or transmission apparatus or 1.5 m from non conductive materials, such as timber.

(d) Adequate artificial lighting is to be provided to the hoarding.

(e) A suitable system of buffer railing or barriers, particularly at locations such as an intersection or sharp bend.

(f) A minimum overhead clearance of 2.2 m is to be provided below the hoarding.

(g) The street side of the hoarding is to be open for at least 2/3 of its full height for the length of the structure to prevent a tunnel affect.

(h) Waterproofing of the deck above the footway is required to be provided and adequate provisions are to be made for the disposal of stormwater.

(i) The hoarding is to be painted white or other light colour acceptable to Council.

(j) Site sheds or accommodation located on top of a hoarding within a designated crane area or where materials are being lifted over are required to sustain a 10Kpa load and a protective fence and handrails are to be provided.

(k) The hoarding is to be erected and maintained fully in accordance with the requirements of WorkCover New South Wales

(l) Suitable access for people with disabilities is to be maintained at all times, across the front of the site.

(m) A certificate of structural adequacy prepared by a professional engineer is to be submitted to the certifying authority upon installation (and a copy of the certificate is to be forwarded to the Council if it is not the certifying authority) certifying the structural adequacy of the hoarding and compliance with Council’s conditions of consent and relevant requirements of WorkCover New South Wales.

Access and Facilities For Disabled Conditions

The following condition is applied to provide access and facilities for people with disabilities.

82. Access and facilities for people with disabilities must (as a minimum) be provided in accordance with the relevant provisions of the Building Code of Australia.

The following advisory matters are included

1. A Local Approval application is required to be submitted to and approved by Council, in accordance with the provisions of section 68 of the Local Government Act 1993 in relation to the place of public entertainment, prior to the commencement of the proposed activity.

2. The applicant is advised that the construction certificate plans and specifications must comply with the provisions of the Building Code of Australia.

In this regard, the development consent plans do not show compliance with the deemed-to-satisfy provisions of the Building Code of Australia, including:

(a) Part C3 - Protection of openings

(b) Part D1 - Provisions for escape

(c) Clause D1.2 - Number of exits required

(d) Part D2 - Construction of exits

(e) Part D3 - Access for people with disabilities

(f) Part E1 - Fire fighting equipment

(g) Part E2 - Smoke Hazard Management

(h) Part E4 - Emergency lighting, exit signs and warning systems

(i) Part F2 - Sanitary and other facilities

(j) Section H - Special Use Buildings

Details of compliance with the relevant provisions of the Building Code of Australia and conditions of development consent are to be provided in the plans and specifications for the construction certificate.

3. The applicant is advised that the development consent plans do not indicate compliance with the deemed-to-satisfy provisions of the Building Code of Australia and compliance may necessitate variations to the development consent plans. In this regard, any variations which alter the configuration, size, layout or design of the building, may necessitate an amendment to the development consent (or a new development application), and Council’s Area Building Surveyor or an accredited certifier should be consulted prior to the lodgement of an application for a construction certificate.