CHOF5 Little Bay Pty Limited v Randwick City Council [2009] NSWLEC 1421 (23 December 2009)

Last Updated: 21 March 2012

NEW SOUTH WALES LAND AND ENVIRONMENT COURT

CITATION:
CHOF5 Little Bay Pty Limited v Randwick City Council [2009] NSWLEC 1421
This decision has been amended. Please see the end of the judgment for a list of the amendments.

PARTIES:
APPLICANT
CHOF5 Little Bay Pty Limited

RESPONDENT
Randwick City Council

FILE NUMBER(S):
10672
10427 of 2009

CATCHWORDS:
DEVELOPMENT APPLICATION :- Stage 1 master plan,

LEGISLATION CITED:
Environmental Planning and Assessment Act 1979
State Environmental Planning Policy Infrastructure 2007
Land and Environment Court Act 1979
Randwick Local Environmental Plan
State Enviornmental Planning Policy 65

CORAM:
Murrell C

DATES OF HEARING:
30 January 2009, 1, 2, 3 and 23 December 2009

EX TEMPORE DATE:
23 December 2009

LEGAL REPRESENTATIVES

APPLICANT
Mr C McEwan (Senior Counsel)
SOLICITOR
Mr D O'Donnell
Mallesons Stephen Jaques

RESPONDENT
Mr A Seton, (solicitor)
SOLICITOR
Marsdens Law Group

JUDGMENT:

THE LAND AND

ENVIRONMENT COURT

OF NEW SOUTH WALES

Murrell C

23 December 2009

10672 of 2009 CHOF5 Little Bay Pty Limited v Randwick City Council

This determination was given extemporaneously

and has been edited prior to publication

JUDGMENT

1. The applicant in these proceedings is seeking approval for a Stage 1 master plan for the property known as 1408 Anzac Parade, Little Bay.
   
2. The subject site is some 13.6 hectares in size with an eastern boundary of 300 metre to Anzac Parade. To the south is the largely progressed Prince Henry Hospital redevelopment. Redevelopment of this site is for a large residential estate with various dwellings forms and densities. The boundary to the southern with the Prince Henry site is some 580 metres.
   
3. To the north of the subject site is the existing settlement at Malabar comprised of: the Department of Housing aged units of single storey; and two and three storey walk-up flats. This boundary is some 765 metres.
   
4. The boundary to the east with Lot 12 is irregular and this lot is owned by the University of NSW. The Coast Golf Course adjoins the subject site and the golf course has a long term lease from Landcom and the University of New South Wales, a lease of some 73 years.
   
5. The proposal in the context of Anzac Parade. To the north of the Department of Housing units there is the Long Bay Correctional Centre, a large institutional building of some considerable size, and on the opposite side of Anzac Parade there are Department of Housing units up to some five storeys as well as low scale single storey and 2-storey dwelling houses along Anzac Parade.
   
6. The development application was lodged under s 83B, of the Environmental Planning and Assessment Act and the approval requires a master plan to be approved as well as Stage 1 development and this is not in issue between the parties. There is a variety and mixture of housing types totalling or facilitating some 450 dwellings on the subject site ranging from apartments to single dwellings. There are some 28 allotments and some ten, what are termed super lots, for multi-unit or apartment style development.
   
7. The development application was submitted with a great deal of supporting documentation including a site analysis and of comprehensive and detailed urban design criteria for future development of the subject land.
   
8. In terms of the history of the site it is noted that there is a current approval for a subdivision into 149 allotments that was approved in 2007.
   
9. When the Court met on site the first morning of the proceedings Mr Seton summarised the issues and contentions for the council. That is:

(1) The density is excessive and that it is an overdevelopment of the site in terms of bulk and scale, the height is excessive, adverse impacts on the water supply for the golf course and the public interest.

10. The Court heard from a number of resident objectors on site. The chairman of the La Perouse Precinct Committee expressed concern about the overdevelopment of the subject site, in particular the buildings proposed for Lots 6 and 11 would be out of character with the area. He is of the opinion that there would be a detrimental effect on Anzac Parade and there would be a long wall effect created by the proposed development situated within what he described as a low density area. In his opinion there should be a maximum of two to three storeys for the subject site and building 6 in particular he considered is entirely out of character being six storeys on the golf course. He is also concerned about the floor space ratio provided on the individual super lots up to 1.54 in certain circumstances. He considers that the development proposal circumvents the rezoning process and that the site will be developed for residential flat building which in his opinion is inappropriate. He also expressed concern about the lack of facilities for the future residents of the site.
    
11. The owners of 36 Gubbetah, evidence was given with concern about the loss of privacy on the dwelling house in the Prince Henry site that adjoins the subject development. He is also concerned about the inappropriate scale of Lot 6 and that there should be a stepping-down effect to the coast in his opinion. The proposal will overlook from the five storeys and one cannot screen a development of five storeys from the rear of the owner of No. 36. He is concerned about the scale and proximity to No. 36 and he considered that Lot 6 will resemble a lighthouse on the coast as such.
    
12. From the adjoining property at 34 Gubbetah, concern was expressed about the five storey development behind her property and the upstairs bedrooms where there is glazing and the impact of a development of five storeys on privacy and residential amenity. Concern was also expressed that strict guidelines for the Prince Henry site had to be adhered to in terms of the master plan and that the previous approval for 149 lots is appropriate for the subject land.
    
13. The resident from No. 60 Gubbetah is concerned about Lot 6 and the effect of this building views because of its bulk and height No. 60 adjoins the golf course on the Prince Henry site. Concern was also expressed about precedent.
    
14. The Court also heard concerns from a number of other residents on the site and also has had the opportunity of reading the council’s bundles which contains the various objections. It is noted that the proposed development was widely notified and there were about ten objections and a petition with 168 signatures as such.
    
15. A number of experts gave evidence to the Court. On behalf of the applicant: Ms Gabrielle Morrish, consultant town planner urban designer; Professor Tzannes, urban designer architect; Mr John Wynne, a consultant town planner; Mr Tim Rogers, traffic consultant; and Mr Mark Tooker, a hydrologist, gave evidence to the Court. For the respondent: Mr Michael Brown, town planner, gave evidence as did Mr Richard Dekker, hydrologist; Mr Ken Moon from the RTA gave evidence on the traffic issue; and Kerry Kynacou, council’s planner, gave evidence as did Mr John Flanagan, council’s engineer.
    
16. The Court has assessed the development application in the context of the statutory planning framework that applies to the subject site and all the evidence to the Court. As this is an extempore judgement I will not go through it in great detail here but suffice to say I have had regard to all the local planning provisions and controls and State Policies that apply to the subject site.
    
17. The State Environmental Planning Policy Infrastructure 2007 and cl 104, relates to the need to obtain the concurrence of the RTA to development. In particular it states that before determining a development application for development to which this clause applies the consent authority must give written notice to the RTA, and take into consideration any submission that the RTA provides and then any potential traffic safety, road congestion or parking implications of the development.
    
18. The RTA does not object to the development per se but does not grant concurrence to or consent to the road opening, that is the site having direct access across south bound traffic on Anzac Parade over the central verge median. Instead the RTA have indicated that traffic from the proposed development that wishes to travel north should be required to turn left and go south to the roundabout recently constructed for the Prince Henry site.
    
19. The subject development application falls under sch 3 of the Infrastructure SEPP and this includes apartments or residential flat buildings or areas used where there are more than 200 motor vehicles so clearly this SEPP infrastructure is applicable. The Court does have the power under s 39 of the Land and Environment Court Act to grant approval in circumstances where the RTA refuses same.
    
20. The Randwick Local Environmental Plan I will briefly indicate the more relevant provisions. The Court must have regard to the objectives of the plan, there is no dispute that the objectives of the plan would be satisfied by the proposed development. I have also had regard to the 2(b) zone given the fact that there is an interface to the north with 2(b) residentially zoned land and also the 2(d) zone which is the Prince Henry site, that interfaces with the subject site to the south.
    
21. The Court in its consideration has paid particular attention to cl 17, that is zone number 5, special uses zone. The special uses zone objectives include: to accommodate development by public authorities; (f) to allow for the redevelopment of land no longer required for a special use and subcl (3) development for the following purposes which includes dwellings and dwelling houses. There is no dispute the proposed development is permissible with consent.
    
22. The provision in this Special Uses Zone is not one that occurs regularly in LEP’s with the objective “to allow for the redevelopment of land” which is why there are a number of uses, not just the special uses identified in the zone that are permissible.
    
23. The Court must also have regard to the heritage provisions of the LEP given that the site contains heritage conservation area for certain Aboriginal sites and the miocene and ochre that are found on the subject site.
    
24. The Court must also have regard to cl 32 of the Randwick LEP which is floor space ratios and subcl (5) states: “the maximum floor space ratio for the building of boarding houses, dwellings et cetera, multi-unit housing, is 0.5 to 1” for zone 5. There are also provisions for master plans cl 40A and the requirements are established under this clause on matters that must be taken into consideration. As I said, there is no dispute that this is a s 83 application and satisfies the relevant provisions.
    
25. The definitions in the LEP are also relevant for floor space ratio and gross floor area. The site area is a relevant definition in terms of the calculation of the FSR. The site area in relation to development means “the area of land to which an application for consent to carry out development relates but does not include any part of that land on which the development is not permitted or under this plan or any other environmental planning instrument.”
    
26. The other controls that the Court must have regard to include the State Environmental Planning Policy 65 for urban design. There are 10 urban design principles that the Court must have regard to in the assessment of the development application. I also note that the development application has been through a rigorous assessment in terms of council’s own urban design panel and there have been numerous reports from the urban design panel through the course and the evolution of the subject development application. These were provided to the Court and the Court has the benefit of these.
    
27. The council also referred the development application for an independent assessment and this supported the development application on its merits together with the assessment process and consultation that had been undertaken in the processing of the development application.
    
28. The Council provided a Statement of Contentions. The contentions include “the development application should be refused as it will result in likely future development that is excessive in terms of density and does not comply with cl 32, that is the floor space ratio”. There is no dispute there is power to determine the development application. The particulars relate the 0.5:1 FSR and the council contends that the super lots range in FSR is 0.7:1 to 1.54:1 for the proposed development.
    
29. The Council also contends the development application should be refused as it will result in overdevelopment of the site and lead to buildings of excessive bulk and scale and adverse impacts on the streetscape. The Council further contends the development should be refused as: “it will result in buildings that are excessive in height and out of character with the locality, in particular the controls for Lots 6 and 11; it is likely to have an adverse impact on the water supply to the golf course; and the it is not in the public interest having regard to community expectations and issues raised in submissions.”
    
30. At the end of the day there was considerable agreement between the experts in the joint conferencing and the Court had the benefit of joint reports and concurrent evidence.
    
31. Mr Brown considers that the development application should be refused and in many respects his concerns relate to the process. He considers that it is more appropriate for the subject site to go through a rezoning process because it is providing for residential development that will be in his opinion not consistent with what one would envisage by a 0.5:1 floor space ratio and there should be via a rezoning under part 3 of the Environmental Planning and Assessment Act.
    
32. The Court has the benefit of hearing from the experts jointly. The experts on behalf of the applicant consider that the proposed development is worthy of consent and that it will provide for a residential development that is not out of character with the area and that will fit comfortably in the context of its neighbours to the north and the neighbours to the south.
    
33. Mr Brown is of the opinion, and the submission was made on behalf of the council, that the residential development to the west on the opposite side of Anzac Parade is generally of a lower scale. I could see on the view the residential development to the west is a number of single storey dwelling houses to Anzac Parade together with the residential flat buildings of the Department of Housing from some decades ago are generally lower in topography. The divided carriageway of Anzac Parade provides a considerable separation distance.
    
34. The development opposite the subject site on the western side is some 60 metres away with the intervening road and verge between the eastern and western side of Anzac Parade. Furthermore the character of individual sections of Anzac Parade can be appreciated. In my assessment there is no need for a transition given the very large separation distances and also given the fact that these large sites require their own identity. Providing their own identity also means that the large sites should also fit with adjoining areas but it does not mean that they should produce a sameness in my merits assessment.
    
35. Mr Brown was of the opinion that the site should be developed in a similar form to the Prince Henry site, however the opportunities and constraints of this site must be carefully analysed in formulating a design concept for the master plan. I am satisfied that the design concept master plan before the Court now acknowledges and embraces good urban design principles. That is of SEPP 65. On connectivity, the subject development master plan will allow for connectivity not only within the site but to the sites to the north and the south and clear legibility. The urban design principles articulated in the proposed development provides for great legibility, with a grid pattern of streets and there are view corridors which will enhance the public domain and open space areas throughout the total site. There is only a gentle fall in topography of the subject site, it was previously a mined and currently is or was used by the University of New South Wales for playing fields and medical research facilities. It is proposed that the building on the subject site be demolished for the subject development application.
    
36. The proposed development in my assessment will provide for a clear sense of place. The design concepts maximise or optimise the northern orientation with the east-west access for the road system and these provide for long vistas through to the golf course and the ocean.
    
37. Not that it is relevant to my consideration of this DA however in my opinion a subdivision for 150 lots would replicate a sameness and is not the best outcome for the subject site. One must bear in mind that the subject site is some 14 kilometres from the CBD and much of that distance is travelled along Anzac Parade. Anzac Parade varies significantly from one part to another and given the size of the subject site, given its juxtaposition with the adjoining Prince Henry Hospital redevelopment site and given the fact that the impacts can be contained within the subject site I am satisfied there is no need for the development to be one that is passive in terms of not providing an identity and character of its own along this portion of Anzac Parade.
    
38. The proposed development in my assessment, having regard to all the urban design principles, is eminently suitable for the site. I am satisfied that the master plan proposal comprehensively assesses the need to have regard to the site constraints and opportunities and the proposed master plan with its guidelines and a subdivision pattern will facilitate a development that has clear character but at the same time provides for a fit with its neighbours to the north and south and is not one that would be unexpected as a redevelopment of this large site. It is clear that the area generally is in transition and it was agreed between the experts that the Department of Housing site to the north, which is still in single ownership, will be redeveloped sooner rather than later and that clearly this proposed development will provide for a character of its own.
    
39. The fact that there is a road on the east-west access on the northern side of the site provides for a 17 metre separation and there is an additional 3 metre setback of the proposed buildings in that area. I am satisfied that there will be no adverse impacts on the existing development and/or future development and the proposed development will not inhibit the potential for development of the site to the north when it occurs. Also there will be the opportunity to provide for connections between the developments sites.
    
40. The interface with the adjoining zones is important. However this is a very large site of 13.6 hectares and in my assessment the impacts of the proposal are designed and contained within the site.
    
41. I am also satisfied that the proposed building’s on Anzac Parade is not of a scale and does not represent overdevelopment. Clearly there has been a conscious decision to provide for the more prominent buildings in the Prince Henry development also on the edge of the site along Anzac Parade. The proposed development will be antipathetic in terms of what is expected of development within this area. The area at the moment is relatively low scale in terms of the older development and clearly this is going to change in the future. At the same time the development of this site in accordance with the master plan I am satisfied will provide not only clear identity but will not provide for adverse impacts on adjoining existing development. The proposal provides for single dwelling lots adjoining the Prince Henry site dwellings on Gubbetah and there is more than acceptable separation distances to the proposed super lots and multi-storey buildings.
    
42. The issue that Mr Brown raised about the rezoning process and the fact that the site has some sites with a floor space ratio up to 1.54:1 has been carefully considered. I am persuaded by the applicant that the entire site should be included for the calculation of FSR and this is in accordance with the construction under the Randwick Local Environmental Plan and there is no reason to exclude the open space areas in my opinion.
    
43. The Court notes that the design concept plan, provides for development on approximately 50% of the land, the rest being devoted to public domain areas, roads, parks and conservation of the ochre and miocene sites.
    
44. I consider that the development will provide for variety in terms of not only the type of housing that is provided but also variety in terms of one’s visual experience and the clear grid pattern of the roads will provide for an identity that is distinct from the development to the south and there is no reason as to why the total Anzac Parade corridor should be developed with a sameness and this is inappropriate in urban design terms.
    
45. The floor space issue has been dealt with on the basis of the entire site and I accept the applicants evidence in this regard. The council officers’ report on the maximum FSR of the super lots states that “the future DAs of these super lots would require a SEPP1 objection and council would need to consider the merits of any variation from the standard, however given that the council is in the process of preparing a comprehensive LEP the subject site could be rezoned to residential similar to the Prince Henry site and the proposed built form controls (of the master plan) could be adopted as the development standards for the subject site to avoid the need for SEPP1 objections”.
    
46. The applicant concedes that future development of the individual lots under the current planning regime would require SEPP1s, however it is clear that the council’s practice has been that the site could in fact proceed to be rezoned. The council officers also note that density is not the only determinant in achieving a certain urban character. The height is equally important and to respond to the context and the topographic character of the site I am satisfied the master plan achieves a coherent building scale with the Prince Henry development.
    
47. The issue of Lot 6, that is the lot that adjoins the golf course, there was some discussion about whether there should be an additional requirement for the setback of the upper floor which has been adopted for the Prince Henry site.
    
48. I have considered the context of the subject site and its relationship with the golf course and the generous setbacks that are provided to the golf course. I am of the opinion that this is a matter that should be left for the future design and I should not interfere with the design integrity of a future building for the subject site that will be assessed on its own merits. I am of the opinion that a development of the size and the slender nature of the buildings is one that is for the subject site and will provide for a relationship with the golf course that allows a number of people to take advantage of the golf course and the relationship of the golf course and the open space areas within Lot 6 as such. I see no need to impose to constrain at this point the future architecture of those buildings on Lot 6.
    
49. With respect to the condition on Lot 5, that is the setback, it transpired that the applicant had sought to acquire part of the large road verge from the Council and there has been no progress in this regard. However, the applicant is seeking a zero lot boundary for the buildings on Lot 5. In my assessment I do no have the benefit of the design of the building on the adjoining Prince Henry Hospital site to be satisfied that a zero lot boundary is the most appropriate. In my assessment a zero lot boundary should not be allowed at this stage. If in the future the applicant acquires the verge to allow then the setback to be contained within its land then the future of Lot 5 and the setbacks may be reconsidered at that time, however the zero lot boundary is not a matter that I should allow at this point without regard to a future design and without regard to having the facts of the design of the building to the south. It was argued that the urban design advice has been that it would provide for a more defined edge and that may be the case, but I do not have the benefit of all the facts to assess same.
    
50. In terms of Lot 11 and its relationship with the Department of Housing development and Anzac Parade I am satisfied that the proposal is not an overdevelopment with larger buildings along Anzac Parade, given its width, given its relationship, given the topography and given the opportunity to provide character to the area. The proposed development in my assessment is not an overdevelopment. There is a great deal of merit for a development that provides for a variety of housing types with a central core area of open space and the proposal will provide for interest and visual differentiation to provide for the identity that should be welcomed and embraced in this particular area.
    
51. The Court has reviewed the documentation and many of the principles such as ESD have certainly been considered in the design or the master concept plan including, as I stated, good site orientation, a clear street pattern, water recycling, renewable energy and other matters of design details.
    
52. The concept plan does facilitate for a development that with appropriate execution should achieve a good outcome both in urban design terms and in terms of sustainability. Furthermore it meets the objectives of the Act as a orderly and economic use of the subject site.
    
53. The Court, as I said, had regard to the Urban Design Review Panel’s recommendations. Suffice to say that they are supportive of the design and consider that it will be one that provides for a most appropriate development. One of their concerns was the proposed development was not of a high enough density having regard to it being so well located in terms of the CBD. In my assessment the proposed development sustainable and has merit in terms of the floor space ratios proposed having regard to the infrastructure already available within the area.
    
54. The Court was provided with the applicant’s preferred conditions and the council’s wording of conditions. I have already touched on two of the main ones that were in contention, I will go now to the other conditions.
    
55. Condition 3 and the concept plan proposal in stage 1 of the development council states “must be implemented” and the applicant seeks to have this changed to “must be generally in accordance with the following documentation”. In my opinion it is more appropriate to put “generally in accordance”, this is a detailed design concept plan which means that it should be adhered to but nonetheless it is appropriate that the word “generally in accordance with the following documents” be the condition of consent. This is for a staged development and this represents stage 1 and the master plan.
    
56. In terms of the setback of the fifth floor on Lot 6 as I have stated it is appropriate to be left to the architectural design of the dwelling and having regard to its relationship with the golf course.
    
57. I am satisfied that the proposed development of six storeys plus the undercroft area basement will not be inappropriate in terms of its relationship with the golf course. There were concerns raised about overshadowing of the golf course. This would not warrant refusal of the application in my assessment.
    
58. The other matters in condition 5 relate to the definition of gross floor area and in this regard I do not consider that at this point in time that it is appropriate to amend it by reference to the standard LEP template and therefore I have deleted this I have already indicated the need for a condition for setback along Anzac Parade, once again this matter may be re-assessed with greater material if appropriate at a future date and if in fact further discussions with the council on the acquisition of the 5 metre area of verge.
    
59. With respect to the vehicle entrance to Anzac Parade the Court is conscious of the need to have regard to the principles in terms of Ausroads and in terms of the general principles of good traffic management. However at the end of the day when pressed Mr Moon considered whilst this is a designated road it does have lower traffic than such roads and given the size and relationship of the road whilst there may be a possibility of queuing this he agreed would be remote. While the access point is an additional access point along Anzac Parade, that the RTA is generally opposed to, I am satisfied that this large site with some 380 metre frontage to Anzac Parade, and even having regard to the fact that this access way would not be the same distance as other access points along Anzac Parade nonetheless having weighed up all of the evidence of Mr Moon and Mr Rogers I am persuaded that it is more efficient and more practicable to provide for the access across Anzac Parade. As Mr Rogers said, “yes an additional access point provides for another opportunity for accidents” and he used the analogy of “so does an additional car on the road”. In my assessment it is impractical to require vehicles to head south to the large roundabout recently being constructed before they can head north and given the distances it is not inappropriate given the size of the subject site for the access point to be allowed.
    
60. Furthermore, the RTA at any future time if there are changes to the road, changes to the volume of traffic with increased densities, development in this area, the RTA can close these opening access points and this is a matter that I have considered in terms of granting approval under s 39 of the Land and Environment Court Act having regard to the principles articulated in the infrastructure SEPP. In particular, the requirement that I must have regard to potential traffic safety, road congestion or parking implications of the development, and I am satisfied that the safety considerations are ones that would not warrant refusal of this road opening. There are two manoeuvres required or two turns required as opposed to seven if one goes to the roundabout in terms of conflict points and I am satisfied that there is no reason as to why the direct access should not be provided to the subject site at this point in time. I stated, this is a large site which will house some 450 dwellings ultimately.
    
61. Condition 50 has generally been agreed to between the parties as handed up today excepting for one sentence and that is the last sentence. “The water management plan must be undertaken in general compliance with the stormwater management report prepared by WorleyParsons and refers to specific figures. The design shall ensure that water collected in bio-retention basin number 1 will be directed to the remaining part of pond 2 on the coast golf course.” The issue was that the golf course was concerned or is concerned about a reduced amount of water for the purposes of the golf course.
    
62. The council requires the additional sentence of “the additional amended details shall be submitted to council for approval and be approved prior to the issuing of a construction certificate for construction of the bio-retention basins”. The applicant’s version or preferred sentence is “the additional amended details shall be certified by an appropriate qualified engineer and submitted to council prior to the issuing of a construction certificate for construction of the bio-retention basins”.
    
63. It has been submitted today that the Regulation 161 provides for the PCA to be read in place of council for such works or matters, that is stormwater plans. I am satisfied that there has been a stormwater management report and that the proposal has to be in accordance with those figures. I am also satisfied that this is a matter that should be left to the appropriate qualified engineer to provide the construction details in accordance with same. As such the applicant’s sentence will be inserted in condition 50.
    
64. The hydrologists at the end of the day were generally in agreement. It came down to whether in fact the applicant should be paying the cost of certain works on the golf course for the additional storage of water for the use of the golf course. The golf course has had the benefit for many years of the storage of water on the subject site, however in the development of the subject site it is not the responsibility of the applicant to either pay or provide for continued storage on their land of the water used for the irrigation of the golf course. In this regard I consider that it would be an unreasonable condition to require same. Clearly the golf course will need to accommodate the extra storage on its land at its cost.
    
65. With respect to the safety requirement of the golf course in terms of the relocation of the tee to the eleventh hole and pedestrian links from the development site through the golf course the Court heard evidence from Mr Flanagan. In the Court’s assessment, I am persuaded that the safety analysis should be carried out prior to the lodgement of the stage 2 development application. I say this as it will no doubt inform and provide input to the development of not only the specific lots but the pedestrian links and furthermore it does provide the opportunity for the golf course to consider the containment of its impacts within its own boundaries. I consider that the safety analysis is not onerous and could inform the processes and future design and therefore it is required before the lodgement of the stage 2 development application.
    
66. It is important to note that the fact that there is an existing subdivision approval for 149 lots is not a matter for my consideration. I have given serious consideration to the objectors concerns. However in the assessment of the application before the Court overall merits and a holistic and comprehensive regard to the merits of the subject development application this area in the future will not remain a low residential area and in the context of regional strategies and plans for Sydney with its close proximity of 14 kilometres from the centre clearly it is one that appropriately can accommodate housing with providing good amenity for the proposed residents and without adversely impacting on the amenity of existing residential properties in the locality.
    
67. In conclusion having considered the development application and having considered the statutory planning regime under which I must consider it, this includes cl 46 on heritage of the LEP, cl 32 in the LEP, cl 40 of the LEP, the master plans and the subsequent regime under the Environmental Planning and Assessment Act 1979, SEPP65, principles for urban design and the infrastructure SEPP, and having regard to the concepts of zone interfaces and the need for the development to provide for and to fit with the existing development and future development within the area. I am satisfied that the proposed development is one that warrants approval and that the concept plan and the stage 1 works should be granted consent.
    
68. Accordingly, the formal orders of the Court are:

(1) The appeal in respect of the land known as 1408 Anzac Parade, Little Bay, being Lots 10 and 11 in DP 1127719, is upheld;

(2) The development application under s 83B of the Environmental Planning and Assessment Act for a master plan and stage 1 works including subdivision into twenty-eight lots and ten super lots is approved subject to the conditions contained in annexure A;

(3) The exhibits, except 3, 16, A, N and T, are returned to the parties.

___________________

J S Murrell

Commissioner of the Court

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Figure 1

[<img src="/lecjudgments/2009nswlec.nsf/files/10672_of_2009fig1.JPG/$file/10672_of_2009fig1.JPG" alt="figure 1">]

Appeal No: 10672 of 2009

Annexure ‘A’
Conditions of Consent

Chof5 Little Bay Pty Limited v Randwick City Council

1. Consent is granted to the concept proposal and Stage 1 of the staged development application only in respect of the land described as Lots 10 and 11 in Deposited Plan 1127716, 1406-1408 Anzac Parade, Little Bay subject to the conditions that follow.
   
2. This consent does not authorise the carrying out of development on any part of the site other than Stage 1 which comprises:

· Demolition of existing structures on the site and removal of certain trees.

· Bulk earth and infrastructure works (including remediation, regrading, road construction and landscaping).

· Installation of utility services and stormwater management.

· Subdivision of the subject land into 28 single residential lots, 10 superlots and open space areas.

3. The concept plan proposal and Stage 1 of the development must be generally in accordance with the following documents:
   

· Little Bay Stage 1 Plan (Revision D August 2009), prepared by Hill Thalis Architecture + Urban Projects, Candalepas Associates & McGregor Partners and received by Council on 26 August 2009.

· Statement of Environmental Effects including all Appendices A to Z and AA, prepared by Urbis, dated February 2009 and received by Council on 13 February 2009.

· Draft subdivision plans numbered Sheet 1 of 3 to Sheet 3 of 3, prepared by Tasy Moraitis, dated 12 June 2009 and received by Council on 17 June 2009.

and the application form, and on any supporting information received with the application, pursuant to the following conditions:

4. While this consent remains in force, determination of any further development application in respect of this Stage 1 Development Application must not be inconsistent with this consent and the plans and documents referred to in condition 3 above.
   

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:

5. The Little Bay Stage 1 Plan (Revision D August 2009) prepared by Hill Thalis Architecture & Urban Projects, Candalepas Associates and McGregor Partners and received by Council on 26 August 2009 shall be amended to include the following:
   

(a) Inclusion of the following additional performance controls in the Stage 1 Plan:

· Garages are to be located within the building envelope of the associated dwelling and behind the front building line.

· Solid front fences facing the street are to be no higher than 1.2m.

· Fencing is to be integrated with the building and landscape design through the use of compatible materials and detailing.

· Roof design is to minimise bulk, scale and overshadowing, and must relate to the size and scale of proposed development.

· Roof top solar heating panels shall be installed so as not to be dominant from the street.

· All clothes drying areas shall be provided so as not to be visible from the street.

· All dwellings shall have a minimum of one (1) habitable rooms orientated to overlook streets and public open spaces to maximise opportunities for casual surveillance.

· Entrances to dwellings and buildings are to be clearly visible from the street and approaches to dwelling entries are to be visible from within dwellings.

· All garages for detached/semi-attached/row dwellings must be setback a minimum of 5.0 metres from the street alignment unless the proposed development provides parking from a rear lane or basement. Lot 10 is exempt from this requirement if courtyard housing is proposed consistent with the Preliminary Plan of Courtyard Housing prepared by Hill Thalis and Candalepas Associates dated 13 May 2008.

6. Development of the site must be implemented in accordance with the General Terms of Approval issued by the NSW Department of Water and Energy as detailed in the letter dated 14 August 2009 in relation to the subject Development Application.
   
7. Development of the site must be implemented in accordance with the General Terms of Approval issued by the NSW Department of Environment and Climate Change as detailed in the letter dated 26 March 2009 in relation to the subject Development Application.
   
8. Development of the site should incorporate the recommendations of the Safer by Design Crime Risk Evaluation prepared by the NSW Police Force and received by Council on 22 May 2009.
   
9. All future residential development on the subject site shall be in accordance with the design principles contained in The Little Bay Stage 1 Plan (Revision D August 2009) prepared by Hill Thalis Architecture & Urban Projects, Candalepas Associates and McGregor Partners and received by Council on 26 August 2009.
   
10. Educational signage about the Eastern Suburbs Banksia Scrub Endangered Ecological Community and its conservation significance shall be placed at several clearly visible locations along the exclusion fence to the west of the remnant to raise awareness of future landholders and the public about the important values of this area. Details are to be submitted to and approved by the certifying authority prior to issue of the occupancy certificate for the first dwelling.
    
11. To protect and actively manage Aboriginal heritage (the Ochre site) and threatened species (the Eastern Suburbs Banksia Scrub Endangered Ecological Community) values on the land and to ensure that the local Aboriginal community retains ongoing access to the Ochre site for ceremonial purposes as well as to alert future landholders to the important values of these areas, the owner of the subject land shall enter into a conservation agreement under Part 4 Division 12 of the National Parks and Wildlife Act 1974 with the Minister administering the Act (Minister for Environment and Climate Change) prior to the sub-division certificate being issued. This conservation agreement shall cover the registered Ochre site together with a surrounding buffer area and the mapped critical habitat for the Eastern Suburbs Banksia Scrub remnant on the land. The conservation agreement shall incorporate management principles for the protection and active management of these significant areas and shall be registered with the sub-division plan for the land in accordance with this condition. In relation to the Ochre site, the management principles shall include the preparation and implementation of a Plan of Management for the Creek Corridor inclusive of the Ochre Site and address access arrangements to the Ochre site by the Aboriginal community. The landowner will be responsible for meeting the costs of preparing the conservation agreement. Details are to be submitted to and approved by the certifying authority prior to issue of the construction certificate.
    
12. A construction management plan and plan of management for the ESBS remnant is to be prepared in conjunction with relevant landowners and any lessees, including The Coast Golf Club and the Department of Environment and Climate Change to ensure the appropriate ongoing management, maintenance and longer term viability of the ESBS. Details are to be submitted to and approved by the certifying authority prior to issue of the construction certificate.
    

The following condition is applied to meet additional demands for public facilities:

13. In accordance with Council’s Section 94A Development Contributions Plan effective from 2 July 2007, the following monetary levy must be paid to Council.
    

Category	Cost	Applicable Levy	S94A Levy
Development cost $100,001 - $200,000	-	0.5%	-
Development Cost More than $200,000	$44,512,317	1%	$445,123.17

The levy must be paid in cash, bank cheque or by credit card prior to a construction certificate being issued for the proposed development. The development is subject to an index to reflect quarterly variations in the Consumer Price Index (CPI) from the date of Council’s determination to the date of payment.

Council’s Section 94A Development Contribution Plans may be inspected at the Customer Service Centre, Administrative Centre, 30 Frances Street, Randwick or at www.randwick.nsw.gov.au.

Traffic / Civil Works conditions

The following conditions are applied to provide adequate provisions for access, transport and infrastructure:

14. Prior to the issuing of construction certificate for any civil infrastructure works on land proposed for dedication to Council the applicant shall submit to Council for approval, and have approved, engineering details, specifications, plans and quality plans for all filling/excavation works, drainage construction works, roadworks, kerb and gutter construction, footpath construction, construction of earth retaining structures, landscaping works and site regrading, (including detailed levels, contours and cross sections that make reference to both existing and proposed surface levels). The engineering details and specifications shall specifically relate to those areas within the development site that are proposed for dedication to Council and shall include level and survey information, materials to be used, construction techniques and testing procedures and shall be prepared in consultation with Council. The engineering details and specifications must be prepared by suitably qualified engineering consultants who must certify that the details and specifications meet current engineering practice and relevant standards. The applicant must liaise with Council’s Development Engineer Coordinator prior to preparation of the subject details/specification. Note: Council will not take dedication of any area/infrastructure that has not been constructed in strict compliance with the approved details/specification.
    
15. The drainage construction specification and details referred to in the previous condition shall include the following:
    

· Supply, laying and backfilling of the stormwater pipelines.

· Construction of stormwater pits and other associated structures.

The applicant shall note the following when preparing the specification:

1. All future Council stormwater pipelines shall be constructed with spigot and socket rubber ringed jointed, steel reinforced concrete pipeline (RRRCP). The Council stormwater pipelines shall be a minimum of 375mm diameter. Prior to backfilling, the pipeline shall be inspected and approved by the Certifying Authority.
   

Generally backfill material for the pipeline trench shall be:-

- clean sand.

- watered in.

- compacted in 150 mm layers with a minimum 97% relative compaction.

Note that should Council be the Certifying Authority, the applicant shall liaise with Council’s Director of Asset and Infrastructure regarding payment for the required inspections (2 working days clear notice shall be given prior to the required inspection/s)

2. All standard extended kerb inlet pits shall be constructed:-
   

(i) in “situ” (a precast pit will be acceptable only in a park or reserve).

(ii) in accordance with Council’s drawings SD 3 or SD 8 (subject to the depth and/or the size of the pipeline).

(iii) with a minimum concrete strength of 32 Mpa.

100. All standard junction pits shall be constructed:-
     

(i) in “situ” (a precast pit will be acceptable only in a park or reserve).

(ii) in accordance with Council’s drawing SD 4.

(iii) with a minimum concrete strength of 32 Mpa.

4. All other pits that cannot be constructed to the above details shall be designed by a structural engineer. The detail of the pit/s shall in general, be similar to SD 3 (for an inlet pit) or SD 4 (for a junction pit). Note that all pits shall be;-
   

(i) benched with a minimum 75 mm concrete.

(ii) constructed with a minimum concrete strength of 32 Mpa.

16. The minimum design serviceable life for all road pavements shall be 40 years, (with the minimum design traffic ESA’s for the travel lanes of the pavement and the parking areas to be obtained from Council’s Development Engineer Coordinator) and designed in accordance with AUSTROADS PAVEMENT DESIGN GUIDE. All other infrastructure i.e. kerb and gutter, footpaths, retaining walls, pipe drainage etc shall have a minimum design serviceable life of 40 years. The specification and engineering details prepared for the Construction Certificate must demonstrate compliance with this requirement.
    
17. All civil infrastructure that is to be dedicated to Council must be constructed strictly in accordance with the Council approved specification and in compliance with the above minimum design serviceable life requirements.
    
18. All civil construction works within/associated with the development site shall be constructed in accordance with the approved engineering details and specifications referred to above and shall be undertaken and paid for by the applicant.
    
19. Road Works Layout Plan 1 of 2 (Plan ref c2-01 Rev 3) dated 12.02.09 prepared by Robert Bird Group and Road Works Layout Plan 2 of 2 (Plan ref c2-02 Rev 3) dated 12.02.09 prepared by Robert Bird Group, as they relate to travel lane, parking lanes, verge widths only are approved. Approval is also given to the intersection details on the reference plans, conditional upon vehicular turning manoeuvres/swept paths being analysed as conditioned elsewhere in this report. Any future Development Application for the site and any Stage 1 Construction Certificate must demonstrate compliance with the travel lane, parking lanes, verge widths and concrete footpath widths shown on these plans.
    
20. All internal roads within the development site shall be dedicated to Council, at no cost to Council, following construction of the roads to Council’s design standards and specification.
    
21. Deleted.
    
22. All civil infrastructure within the development must be constructed to Council’s design standards and specifications. The applicant must liaise with Council’s Development Engineer Coordinator regarding the Council’s relevant design standards and specification prior to lodgement of any Construction Certificate for Stage 1 works.
    
23. Prior to the issuing of a Construction Certificate for Stage 1 works the applicant must provide swept path details for a 9.5 metre garbage truck, (10.5 metre turning radius).. The applicant shall note that satisfactory collection of domestic waste must be considered when designing the road network and or travel lane/footpath/parking lane configuration of the road network.
    
24. Those areas of open space within the development site that are proposed for dedication to Council, (i.e. the areas referred to within the submission as "The Urban Lounge" and "Brand Park"), shall be dedicated at no cost to Council, following construction of the open space and the provision of infrastructure serving and within the open space to Council's design standards, specification and in accordance with the Council' approved Public Domain Plan.
    
25. The number of carspaces to be provided within the development site shall, as a minimum, be in general accordance with the relevant sections of Council’s Development Control Plan – Parking. Details of parking provision calculations and proposed allocation of spaces shall be provided with any future Development Application.
    
26. Prior to the issuing of a Construction Certificate for any Stage 1 works the applicant shall submit for approval and have approved by Council's Traffic Engineer a detailed construction traffic management plan. The plan shall demonstrate how construction and delivery vehicles will access the development site during the demolition and construction phase of the development.
    
27. Prior to the issuing of any construction certificate for any or all of the proposed roads within the road network the applicant must demonstrate to Council, through the use of detailed swept path analysis, that the internal road design will operate satisfactorily for service and delivery vehicles, (i.e. will satisfy Section 3 of AS 2890.2-2002). The swept path analysis must be prepared using the largest trucks/worst case likely to service the various areas of the development.
    
28. The applicant must meet the full cost for Council or a Council approved contractor to repair/replace any damaged sections of Council's footpath, kerb & gutter, nature strip etc which are due to building works being carried out at the above site. This includes the removal of cement slurry from Council's footpath and roadway.
    
29. A separate written approval from Council is required to be obtained in relation to all works which are located externally from the site within the road reserve/public place, in accordance with the requirements of the Roads Act 1993. This consent operates as an approval pursuant to Section 138 of the Roads Act 1993. Detailed plans and specifications of the proposed works are to be submitted to and approved by the Director of City Services prior to commencing any works within the road reserve/public place.
    

All works within the road reserve/public place must be carried out to the satisfaction of Council and certification from a certified practicing engineer is to be provided to Council upon completion of the works.

Relevant Council assessment and inspection fees, as specified in Council's adopted Pricing Policy, are required to be paid to Council prior to commencement of the works.

30. The design requirements of the vehicular access points off Anzac Parade shall be in accordance with the RTA Road Design Guide and other Australian Codes of Practice. The certified copies of the design plans shall be submitted to Council for consideration and approval by both Council and the RTA prior to the issue of a Stage 1 Construction Certificate and prior to the issuing of any future development consent. The developer shall be responsible for all public utility adjustment/relocation works, necessitated by the above work and as required by the various public utility authorities and/or their agents. The RTA fees for administration, plan checking, civil works inspections and project management shall be paid by the developer prior to the release of the approved road design plans.
    
31. The southern vehicular entry/exit point must be designed for left in / left out vehicular movements. The northern entry point must be designed for left and right in and out vehicular movements. The applicant must submit to Council for approval, and have approved details of traffic measures to be positioned in Anzac Parade to stop motorists from crossing the central median opposite the southern access point (as required by the RTA).
    
32. All proposed retaining walls located on or near the future common boundary between land proposed for dedication to Council and land to remain in private ownership, (including land that will be under the care and control of the proposed Community Association), must be wholly located within the private land and in private ownership. The applicant must liaise with Council’s Development Engineer Coordinator to obtain Council’s requirements for these retaining walls prior to lodgement of a Stage 1 Construction Certificate.
    

Security Deposit Conditions

The following condition is applied to provide adequate security against damage to Council’s infrastructure:

33. The following damage/civil works 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) $20000.00 Damage / Civil Works Security Deposit

The damage/civil works security deposit may be provided by way of a cash or cheque or bank guarantee with the Council and is refundable upon:

· A satisfactory inspection by Council that no damage has occurred to the Council assets such as roadway, kerb, guttering, drainage pits footway, or verge; and

· Completion of the civil works as conditioned in this development consent by Council.

The applicant is to advise 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/demolition works.

Alignment Level Conditions

The following conditions are applied to provide adequate provisions for future civil works in the road reserve:

34. The design alignment level (concrete/paved/tiled level) at the Anzac Parade property boundary for roadworks, access ramps and pathways or the like, must be obtained in writing from Council’s Development Engineer Coordinator prior to the issuing of a construction certificate fro any civil works fronting Anzac parade. The levels will reflect the Council/RTA’s approved design plans for the 2 entry/exit roads.
    

Any enquiries regarding this matter should be directed to the Development Engineer Coordinator. The design alignment level at the property boundary must be strictly adhered to.

35. The design alignment levels (concrete/paved/tiled level) issued by Council and their relationship to the roadway/kerb/footpath must be indicated on the building plans for the construction certificate.
    
36. The above alignment levels and the site inspection by Council’s Development Engineer has been issued at a prescribed fee of $1804 calculated at $44.00 (inclusive of GST) per metre of site frontage for new works fronting Anzac Parade. This amount is to be paid prior to a construction certificate being issued for the development.
    

Service Authority Conditions

The following conditions are applied to provide adequate consideration for service authority assets:

37. A public utility impact assessment must 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.
    
38. The applicant must meet the full cost for telecommunication companies, gas providers, Energy Australia and Sydney Water to adjust/repair/relocate their services as required. The applicant must make the necessary arrangements with the service authority.
    
39. Documentary evidence from the relevant public utility authorities confirming that their requirements have been satisfied, must be submitted to the certifying authority prior to a construction certificate being issued for the development.
    
40. Any electricity substation required for the site as a consequence of this development shall be located within a residential site, (i.e. not in any road reserve or recreational area) unless it can be demonstrated to Council that Energy Australia requires a substation to be located on future public land, and shall be screened from view. The location and elevation shall be shown on detailed drawings and specifications. The applicant must liaise with Energy Australia regarding provision of substations prior to lodging any Construction Certificate for the road network.
    
41. All public utility / telecommunication services within the site must be located underground. The applicant must obtain Council’s requirements for lighting of those areas proposed for dedication to Council and submit for approval details to Council prior to the grant of a Stage 1 Construction Certificate Council currently requires all street lighting to be provided on Energy Australia approved light poles and connected to the Energy Australia street lighting system.
    
42. The applicant shall meet the full cost of any overhead power lines and telecommunication cables located on the frontage of the site to Anzac Parade to be relocated underground and all redundant power poles to be removed. The applicant shall liaise directly with the relevant service utility authorities to organise for the wires/cables to be relocated. All wires cables must be relocated underground to the satisfaction of the relevant service utility authority prior to the issuing of an occupation certificate for the development.
    
43. A Section 73 Compliance Certificate under the Sydney water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to “Your Business” section of Sydney Water’s web site at www.sydneywater.com.au then the “e-developer” icon or telephone 13 20 92.
    

Following application a “Notice of Requirements” will detail water and sewer extensions to be built and charges paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

The Notice must be issued to the Principal Certifying Authority prior to the construction certificate being issued.

The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to release of the plan of subdivision.

External Authority Conditions

44. Any future development application or Construction Certificate application seeking approval for drainage infrastructure must demonstrate compliance with all Department of Water and Energy requirements regarding discharge of stormwater into the central water course / wetlands / bio-retention basins.
    
45. Prior to the lodgement of any future development application or Construction Certificate seeking approval for drainage infrastructure, the applicant must liaise with Department of Water and Energy regarding safety issues surrounding the open channel. Future development applications seeking approval for drainage infrastructure must demonstrate compliance with all safety requirements issued by the Department. Any future development application for drainage infrastructure must also detail how potential public liability issues associated with the channel. The proposed side slopes of the channel should be to the satisfaction of the Department of Water and Energy.
    
46. The applicant is advised that a suitable drainage easement, (in favour of Council) must be created over the central water course / wetlands / bio-retention basins. The creation of a suitable restriction as to user and positive covenant will also be required over the proposed water course / wetlands / bio-retention basins. The timing and wording for the creation of the easement/restriction/covenant shall be to Council’s satisfaction.
    
47. All new development is to be consistent with the requirements of the NSW Fire Brigade Bushfire Hazard Section. Details of compliance shall be submitted with subsequent development applications for any new buildings on the subject site.
    
48. The Little Bay Geological Site is to be retained intact and all works associated with this development are to be designed and undertaken so as not to result in any adverse impact on the Geological Site. Prior to the issuing of a Stage 1 Construction Certificate the applicant must submit to the Certifying Authority for approval, and have approved, a detailed, construction management plan demonstrating measures to be undertaken such that the Little Bay Geological Site is fully protected.
    
49. Prior to commencement of construction, the Applicant shall prepare a construction management plan which details all bulk earth, drainage and remediation works within the Critical Habitat of the Eastern Suburbs Banksia Scrub (ESBS) area; and which indicates how dust, stormwater, soil and erosion management issues will be dealt with on site to avoid impact on the ESBS area. Prior to the issuing of a Stage 1 Construction Certificate the applicant must submit to the Certifying Authority for approval, and have approved, a detailed, construction management plan demonstrating measures to be undertaken such that the ESBS area is fully protected.
    

Drainage Conditions

The following conditions are applied to provide adequate provisions for drainage and associated infrastructure:

50. The management of stormwater within the development site, (in particular the design principles and operation of the Central Drainage Corridor, including wetlands, overflow channels and bio-retention basins) must be undertaken in general compliance with the Stormwater Management Report prepared by Worley Parsons (Appendix O), including Figures 2-7 inclusive. The applicant shall note, however, that Council requires additional and/or amended details on the proposed method for ensuring that water leaving the bio-retention basins will be directed to those water storage areas within the Coast Golf Course that provide water for irrigation purposes, (i.e. additional/amended to the details shown in Figure 5 of Appendix O). The additional/amended details shall be certified by an appropriately qualified engineer and submitted to Council prior to the issuing of a construction certificate for construction of the bio-retention basins.
    

50A. The details for the irrigation water collection system in the bio-retention basins shall be designed and certified by an appropriately qualified engineer to limit the losses into deep seepage (ground water) to a maximum of 5Ml per year, such that the collected water from the drains within the bioretention basins plus the surface runoff after completion of the proposed development is equal to or more than the current surface runoff to the golf course.

50B. Deleted.

51. Prior to the issuing of a Construction Certificate for any Stage 1 works and prior to the issuing of development consent for any future Development Application the applicant shall submit to the Principal Certifying Authority for approval, and have approved, a detailed stormwater drainage plan. The applicant must liaise with Council, prior to preparation of the drainage plan, to obtain Council’s requirements for drainage works within, and adjacent to the development site.
    

Details shall include, but not be limited to:

· A detailed drainage study/analysis identifying the catchment areas upstream of the site and the stormwater flows generated from these catchments, together with the catchment areas within the site and the flows generated from same. The study/analysis shall identify the overland flow rates and depths of flow from storm events up to the 1 in 100 year annual recurrence interval within the streets of the subdivision.

· Deleted.

· Confirmation of the existing and proposed finished surface levels within the development site. Documentation of the change in surface levels is required together with volumes of material imported or exported from the site.

· Gross pollutant trap details (GPT). Note that any proposed GPT shall be designed in accordance Council’s specification and guidelines for determining Gross Pollutant Trap/s. The GPT’s are to be located within the road carriageway or within easements over Community Property in favour of Council.

· Stormwater drainage plans, pipeline longitudinal sections and calculations in general accordance with the recommendations of the Floodplain Management Manual” and “Australian Rainfall and Runoff, 1997 Edition).

· Typical cross sections for all roads and laneways.

52. The calculations, plans, longitudinal sections and details for the roads and stormwater drainage referenced above shall include the following information:
    
    1. A detailed drainage design at a scale of 1:200 and a catchment area plan at a scale of 1:1000 or as considered acceptable by the Certifying Authority, and drainage calculations prepared in accordance with the Institution of Engineers publication, Australian Rainfall and Run-off, 1987 edition.
       
    2. 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.
       

Note: Generally all proposed stormwater drainage pipelines shall be capable of discharging a minimum 1 in 20 year storm flow.

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

4. Details of all stormwater overland flowpaths, (volume, depth, width and safety factor).
   
5. 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.
   

(f) The details of the wetlands, raingardens and bioretention basins and the collector system leading to the boundary.

7. A drainage plan and longitudinal section with all utility services accurately plotted for the stormwater pipelines must be provided. It should be noted that notwithstanding the calculations, the minimum pipe diameter acceptable within Council's street system and/or easement is 375mm.
   
8. All public utility services, where they are to be laid parallel to the Council stormwater pipeline, shall be located a minimum of 1.5 metres from the centreline of the stormwater pipeline.
   

53. Any interallotment stormwater drainage line must be designed, as a minimum, to accommodate stormwater flows generated by the 1 in 20 year storm event. Suitable width easements are to be created over the line of any interallotment drainage system in conjunction with any plan of subdivision for the development site, (the pipeline is to be centrally located within the easement). In the situation where no legal overland flow route exists for flows generated by storm events greater than the 1 in 20 year storm event the interallotment drainage line and the required drainage easement must be capable of containing within the easement and discharging storm water flows generated by storm events up to the 1in 100 year storm event.
    

The minimum easement width shall be 1.0 metre for light-weight pipes up to and including 300mm in diameter. Easement widths for drainage lines that are not light-weight, (e.g. concrete), and larger than 300mm in diameter should be sufficient to enable maintenance equipment to access the pipeline.

54. Council requires that all new stormwater pipelines be of sufficient capacity to provide for a storm recurrence interval of 20 years with an overland floodway that is to be capable of containing a 1in 100 year flood within the boundaries of the drainage, landscaping and site works over such pipes and/or easement must ensure that the natural floodway or water course is not blocked or altered in such a way to flood private properties. No buildings or structures must be located within the easement.
    
55. Suitable width drainage easements must be created over the line of any existing/ new / relocated or upgraded stormwater pipelines within the site, under the control of Council. Minimum easement widths are as follows:
    

· Pipeline diameter is 1,200mm or less -easement width required = 3.0m

· From 1,200mm to and including 1,500mm diameter -easement width required =3.5m

· Above 1500mm diameter -easement width required to Council's satisfaction.

Note: no buildings or structures must be located within the easement.

56. Deleted.
    
57. The proposed internal roadways, any drainage easements and overland flow routes shall be designed to drain the 1 in 100 year storm event and to consider personal and structure safety and the hazard factor, (product of velocity and depth of flow) This safety factor shall not exceed a value of 0.4 at any location. (i.e. VD< 0.4). Any Stage 1 Construction Certificate must document how these requirements are to be met.
    
58. All stormwater run-off naturally draining to the site must be collected and discharged through this property's stormwater system.
    
59. Any future Development Application or Stage 1 Construction Certificate must demonstrate compliance with the following:
    

· All habitable floor levels on allotments adjacent to the central watercourse must be a minimum of 500mm above calculated 1in 100 year ARI water levels.

· All habitable floor levels on allotments away from the water course / ponds and riffles must be a minimum of 300 millimetres above calculated 1in 100 year ARI water levels.

· The internal pipe system must be designed to cater for the critical 1 in 20 year ARI storm event with overland flows contained within the roadways or other suitable flowpaths for up to the 1in 100 year storm event. The applicant must fully demonstrate compliance with this requirement and make specific reference to the operation of the bioretention swales during major storm events.

· The velocity depth restriction of VDs < 0.4 for a 1 in 100 year ARI storm should be applied along the overland flow paths.

60. At the completion of the proposed bulk earthworks, the applicant must submit to the Principal Certifying Authority documentation, (prepared by a suitably qualified engineer/registered surveyor), confirming that the finished bulk earthwork levels have been carried out in strict accordance with the approved Stage 1 Plan.
    
61. Any future Development Application or Stage 1 Construction Certificate must provide full details on the operation of the bio-retention swales. Sufficient detail must be provided for Council or the Certifying Authority to assess the suitability of the swales in their proposed locations and the impact of the swales on pedestrian and vehicular access to the proposed allotments.
    
62. The care, control and maintenance of any bio-retention swale located within the development site shall remain the responsibility of the proposed Community Association. Appropriate restrictions on use and/or positive covenants shall be in place to ensure compliance with this requirement, prior to issue of a sub-division certificate for the subject site. Similarly, all drainage infrastructure associated with the overland flow into the central drainage corridor, boardwalks, retaining walls and the overland flowpath as shown on the document “Figure 7 Management of External Overall Flow” in Appendix O prepared by Worley Parsons, must remain under the care and control of the proposed Community Association.
    
63. A detailed maintenance schedule for the Central Drainage Corridor, including wetlands, overflow channels and bio-retention basins shall be submitted to Council for review and comment prior to the granting of a subdivision certificate.. Note: all maintenance on the Central Drainage Corridor, including wetlands, overflow channels and bio-retention basins shall be the responsibility of the applicant and the Community Association.
    

Stage 1 Subdivision Conditions

64. Prior to the issue of a Subdivision Certificate for the Torrens title subdivision of the subject land into 28 allotments for detached dwellings and 10 superlots under the Stage 1 development consent:
    

· It must be demonstrated to Council that the conditions of this development consent for Stage 1 have been satisfied and their compliance verified by the Principal certifying Authority;

· It must be demonstrated to Council that suitable rights of carriageway, easements for services, support and stormwater lines, as required will be created upon registration of the plan of subdivision;

· It must be demonstrated to Council that suitable easements, restrictions on use and positive covenants over the proposed bio-retention swales and the various components of the central drainage corridor, as required will be created upon registration of the plan of subdivision; and

· Details of critical stage inspections carried out by the Principal Certifying Authority, together with any other certification relied upon must be provided to Council.

Waste Management Condition

65. Deleted.
    

Golf Course Condition

66. Prior to the lodgement of a Stage 2 Development Application the applicant shall engage a suitably qualified consultant to undertake a safety analysis of those developments proposed in close proximity to the eleventh hole of the Coast Golf Course and of the pedestrian links from the development site through the golf course. The safety analysis is required to determine if the type and proximity of the development to the Coast golf Course and the identified pedestrian links would pose an unacceptable safety risk for the proposed allotments in the eastern portion of the development site and to pedestrians. The safety analysis should make recommendations on any safety measures that may be required including any revisions to the course layout.
    

Landscape Conditions

The following conditions are applied to provide adequate provisions for landscaping and to maintain reasonable levels of environmental amenity:

67. Street tree selection and planting locations must be to Council's satisfaction. The applicant must contact Council's Landscape Development Officer prior to lodgment of any future development application for the site and prior to lodgment of any Construction Certificate for Stage 1 works to obtain Council’s requirements for street tree selection and planting locations.
    
68. The Construction Certificate application for The Urban Lounge and for Brand Park must include irrigation details for the proposed landscape areas within those elements. Typically Council requires an automatic irrigation system to be installed throughout all the landscaped areas. Such system shall provide full coverage to all the landscaped areas with no overspray onto driveways and pathways. The system shall comply with all Sydney Water requirements, and relevant Australian Standards. Note: landscaped areas must contain a predominance of species that require minimal watering once established or species with water needs that match rainfall and drainage conditions.
    
69. Construction Certificate for Stage 1 works must include a detailed Public Domain Plan. The subject plan shall be submitted to Council for approval and must demonstrate the strategies that are proposed for the urban design of the public domain (including any open space reserves) and the provision of good pedestrian access, recreational diversity and environmental sustainability. The strategies will include
    

· tree planting strategy,

· water management strategies,

· footpath strategy,

· Park planning strategy

Further to this, the Public Domain Plan shall also include details of individual treatments throughout the site. These treatments shall be consistent with Council's management requirements. The details shall be a detailed design showing plans elevations, sections, the materials and finishes for the following elements, (where relevant):

· Street tree planting

· Footpath treatments

· Street furniture

· Street lighting

· Street signs

· Kerb ramps

· Lighting

· Automatic irrigation systems

· Water features

· Pavements

· Retaining walls and balustrades

· Bicycle facilities

70. The applicant will be responsible for meeting all costs associated with constructing those public areas to be dedicated to Council. A separate suite of Landscape Plans for these public areas shall be submitted to, and be approved by, Council’s Director of City Planning, prior to issuing a Construction Certificate for the subject public areas, and will include (but not be limited to) the following items:
    

· Plans, elevations, sections;

· Planting plans and plant schedules;

· Site furniture such as seats/benches, bins, drinking fountains, lighting, signage;

· Playgrounds and associated equipment, softfall, fencing, shade structures, barbeques and surrounds;

· Supplier details, warranties;

· As built’ drawings upon completion;

71. All playground equipment and softfall must be in accordance with the relevant Australian Standards. Prior to Council accepting dedication of the playground equipment and softfall certification must be provided to Council confirming that the playground equipment and softfall have been constructed / installed to the relevant Australian Standards and in accordance with the approved design.
    
72. The applicant shall liaise with Council’s nominated representatives in relation to all works proposed on property which is to be dedicated to Council.
    
73. Critical habitat as mapped in the Department of Environment and Climate Change’s Critical Habitat Declaration Report (2007) for the Eastern Suburbs Banksia Scrub remnant on the land shall be retained and actively managed for conservation in accordance with the management principles outlined in the conservation agreement between the owner of the subject land and the Minister administering the Act (Minister for Environment and Climate Change) as required for the mapped critical habitat for the Eastern Suburbs Banksia Scrub remnant pursuant to Part 4 Division 12 of the National Parks and Wildlife Act 1974 with the Minister administering the Act. A buffer of between minimum 10 and maximum 15 m will be retained between this remnant and any roads or subdivision lots on the land. The critical habitat will be fenced to exclude access on the western side where it abuts the road and allotment No 6 (as indicated on the Development Application submission) and a planted buffer of locally endemic coastal heath species will planted along the outside of this exclusion fence. A pedestrian pathway of crushed sandstone should define the outer edge of the planted buffer but should not be part of it
    
74. Any Asset Protection Zones (APZs) required for this development shall not impinge on the critical habitat for the Eastern Suburbs Banksia Scrub remnant. All APZs must be outside of the protective buffer mapped in the Department of Environment and Climate Change’s Critical Habitat Declaration Report (2007) for the Eastern Suburbs Banksia Scrub Endangered Ecological Community.
    

Tree Management

75. Approval is granted for the removal of those trees on the development site that are located within the proposed work zone.
    
76. The applicant shall ensure the long term health and stability of those trees located on properties adjoining the development site and within close proximity of development site boundaries.
    

The following conditions are applied to maintain reasonable levels of environmental health, safety and amenity:

77. Remediation and validation works shall be carried out in accordance with the “Interim Advice Letter – Remedial Action Plan – Little Bay” prepared by the appointed site auditor Graeme Nyland, dated 5 February 2009 and all the documents forming part of the review, as listed by the auditor in this interim advice letter, except as may be amended by the conditions of this consent.
    
78. The whole site (including the central corridor and the ESBS remnent on the subject land) must be remediated to meet the relevant criteria in the National Environment Protection (Assessment of Site Contamination) Measure (NEPM) 1999 and the following requirements must be complied with:
    
    1. A NSW Department of Environment & Climate Change (formerly EPA) Accredited Site Auditor, accredited under the Contaminated Land Management Act 1997, must be appointed to assess the suitability of the site for its intended development and use.
       
    2. A Site Audit Statement and Summary Site Audit Report is to be submitted to Council which verifies that the land has been remediated and the site is suitable for the intended development and satisfies the relevant criteria in the NEPM 1999.
       

Any requirements contained within an Environmental Management Plan (EMP) which forms part of the Site Audit Statement and Site Audit Report, form part of this consent and must be implemented accordingly. Council is required to be consulted with prior to the development of the EMP and any comments made by Council are required to be taken into consideration prior to finalising the EMP.

Any EMP is required to be included on the Certificate of Title for the subject land under the provisions of section 88 of the Conveyancing Act 1919 prior to the Statutory Site Audit Statement being issued.

100. The site remediation must be carried out to the satisfaction of the Accredited Site Auditor and a Site Audit Statement and Summary Site Audit Report must be submitted to Council prior to a subdivision certificate being issued for the development.
     

4. Remediation works shall be carried out in accordance with the requirements of the Contaminated Land Management Act 1997, environmental planning instruments applying to the site, guidelines made by the NSW Department of Environment & Climate Change and Department of Infrastructure Planning & Natural Resources, Randwick City Council’s Contaminated Land Policy 1999 and the Protection of the Environment Operations Act 1997.
   
5. Should the remediation strategy including the ‘capping’ or ‘containment’ of any contaminated land, details are to be included in the Site Audit Statement (SAS) and Environmental Management Plan (EMP) to the satisfaction of the Site Auditor.
   

Details of the SAS and EMP (including capping and containment of contaminated land) are also required to be included on the Certificate of Title for the subject land under the provisions of section 88 of the Conveyancing Act 1919.

6. All land to be dedicated to the Council must be remediated in accordance with the relevant legislative provisions and guidelines and shall be subject to a Site Audit Statement. The Council will not accept the dedication of any land the subject of on-site containment or capping of asbestos or other contaminants.
   
7. Any fill importation to the site is to be monitored and classified by the Site Auditor appointed for remediation of the site or a person with his qualifications. Only ‘Virgin Excavated Natural Material’ (VENM) or ‘Excavated Natural Material’ (ENM) which has been validated to the satisfaction of the Site Auditor and provided to Council is to be imported to the site, as detailed in the NSW DECC Waste Classification Guidelines (2008).
   
8. A Site Remediation Management Plan must be prepared prior to the commencement of remediation works by a suitably qualified environmental consultant and be implemented throughout remediation works. The Site Remediation Management Plan shall include measures to address the following matters:
   

· general site management, site security, barriers, traffic management and signage;

· hazard identification and control;

· worker health & safety, work zones and decontamination procedures;

· prevention of cross contamination;

· site drainage and dewatering;

· air and water quality monitoring;

· disposable of hazardous wastes;

· contingency plans and incident reporting; and

· details of provisions for monitoring implementation of remediation works and persons/consultants responsible.

A copy of the Site Remediation Management Plan is to be forwarded to Council prior to commencing remediation works.

1. Hazardous or intractable wastes arising from the demolition, excavation and remediation process being removed and disposed of in accordance with the requirements of WorkCover NSW and the Environment Protection Authority, and with the provisions of:
   

· New South Wales Occupational Health and Safety Act, 2000;

· The Occupational Health and Safety (Hazardous Substances) Regulation 2001;

· The Occupational Health and Safety (Asbestos Removal Work) Regulation 2001;

· Protection Of the Environment Operations Act 1997 (NSW) and

· NSW DECC Waste Classification Guidelines (2008).

10. The works must not cause any environmental pollution, public nuisance or, result in an offence under the Protection of the Environment Operations Act 1997 or NSW Occupational Health & Safety Act (2000) & Regulations (2001).
    
11. Any variations to the proposed remediation works or remediation action plan shall be approved by the Site Auditor and a written statement is to be provided to the Council by the Site Auditor prior to the commencement of such works, which confirms the Site Auditors approval of the amended remediation action plan / works.
    

50. Any new information which is identified during remediation, demolition or construction works that has the potential to alter previous conclusions about site contamination or the remediation strategy shall be notified to the Site Auditor and Council immediately in writing.
    

The written concurrence of the Site Auditor must be obtained prior to implementing any changes to the remediation action plan or strategies.

13. All trucks and service vehicles leaving the site shall go through a suitably constructed on site truck wash down area, to ensure no tracking of material occurs from the site onto roads adjoining the site. Details are to be submitted to Council in the Site Management Plan.
    
14. Prior to the commencement and throughout the duration of the remediation and construction works adequate sediment and stormwater control measures shall be in place and maintained on site at all times. Sediment laden stormwater shall be controlled using measures outlined in the manual Managing Urban Stormwater Soils and Construction produced by the NSW Department of Housing.
    
15. Remediation work shall be conducted within the following hours:

Monday – Friday 7am – 5pm

Saturday 8am – 5pm

No work permitted on Sundays or Public Holidays

16. A sign displaying the (24 hour) contact details of the remediation contractor (and the site manager if different to remediation contractor) shall be displayed on the site adjacent to the site access. This sign shall be displayed throughout the duration of the remediation works.
    

79. The Site Audit Statement must, where no guideline made or approved under the NSW Contaminated Land Management Act is available (as with asbestos), clearly state the source of the standard adopted in determining the suitability of the land for the intended development and use and must also demonstrate its suitability to Council.
    

In relation to any asbestos contamination, a comprehensive remediation strategy and remedial action plan must be developed, to the satisfaction of the Site Auditor and NSW Department of Health or other suitably qualified and experienced specialist to the satisfaction of the Site Auditor.

The remediation strategy and remedial action plan must demonstrate that the land will be remediated in accordance with relevant guidelines (if any) and to a level or standard where no unacceptable health risk remains from asbestos exposure, which shall be verified upon completion of the remediation works to the satisfaction of the Site Auditor.

80. The applicant is to engage the services of a suitably qualified environmental consultant to respond to enquiries and complaints made by the community or Council in relation to contamination, remediation and construction site management matters.
    

A specific contact number is to be made available for such enquiries and complaints (including an after-hours emergency contract number) and a complaints register is to be maintained to record all such enquiries, complaints and actions taken in response to same, which is to be made available to Council officers upon request.

The following conditions are applied to maintain the heritage significance and amenity of the site and locality:

Aboriginal Consultation

81. Liaison established with the La Perouse Aboriginal Land Council is to be maintained during the approvals process until all issues arising in relation to management of Aboriginal cultural heritage have been resolved.
    
82. The La Perouse Aboriginal Land Council should be invited to monitor initial topsoil stripping and earthworks in the areas marked blue on Figure 16 in the Aboriginal Heritage Impact Assessment report prepared by Archaeological and Heritage Management Solutions P/L. They should be given at least one weeks notice prior to commencement of the work to provide sufficient time to arrange for a representative to be present during the work.
    
83. The La Perouse Aboriginal Land Council should be consulted about ongoing management of the Ochre site. Decisions about any activities that affect the Ochre site, including access, public presentation and appropriate uses, should be made in consultation with the Land Council.
    
84. The La Perouse Aboriginal Land Council should be consulted during the design and construction of any proposed pedestrian overpass bridge, to ensure the design is appropriate and will not result in any direct or indirect impact on the Ochre site.
    
85. Any applications under Section 87 / Section 90 of the National Parks and Wildlife Act 1974 should be undertaken in accordance with procedures set out in DECC’s Interim Community Consultation Requirements for Applicants 2004.
    
86. A copy of the Aboriginal Heritage Impact Assessment report prepared by Archaeological and Heritage Management Solutions P/L should be forwarded to La Perouse Aboriginal Land Council and they should be invited to provide written comment on the cultural significance of the study area and our recommendations regarding management of Aboriginal heritage within the Study area.
    

Archaeological Management

87. No further archaeological investigations are warranted in advance of the proposed Stage 1 Plan.
    
88. Detailed provisions for protection of the Ochre site and Critical Exposure Area during construction works and detailed measures for on-going management of the Ochre site and Critical Exposure Area to be included in the Central Corridor plan of Management. The Plan of Management is to be prepared after approval of the Stage 1 development application. The Plan of Management must be prepared in consultation with the Department of Environment and Climate Change (DECC), the La Perouse Aboriginal Land Council and a suitably qualified Aboriginal heritage consultant.
    
89. Any works or any other activities that might disturb current ground surfaces within the area bounded by the blue buffer line in on Figure 15 in the Aboriginal Heritage Impact Assessment report prepared by Archaeological and Heritage Management Solutions P/L but outside the orange line on that figure (ie the registered Aboriginal Heritage site) must be undertaken in consultation with and under the supervision of the La Perouse Aboriginal Land Council. Any planting, weed control or erosion control works within this area should be undertaken win consultation and with the agreement of the La Perouse Aboriginal Land Council and should form part of the Central Corridor Plan of Management.
    
90. The La Perouse Aboriginal Land Council should be invited to monitor topsoil stripping and excavation works (including bulk excavation, remediation, cut and fill and excavation for services) in the area marked blue on Figure 16 in the Aboriginal Heritage Impact Assessment report prepared by Archaeological and Heritage Management Solutions P/L, to ensure any Aboriginal sites or objects buried beneath fills are identified and appropriately managed.
    
91. The Construction Management Plan for the site should be prepared with reference to the Central Corridor Plan of Management and include detailed provisions that ensure the Ochre site and the Critical Exposure Area are not disturbed either directly or indirectly by construction works. Details of compliance are to be provided prior to the issue of construction certificate.
    
92. Site managers and supervisors should be provided with a copy of the Central Corridor Plan of Management and the Aboriginal Heritage Impact Assessment report prepared by Archaeological and Heritage Management Solutions P/L. All construction personnel and contractors should be provided with a brief induction by the site managers and/or supervisors that describes protective and management requirements under the Central Corridor plan of Management and clearly states their legal obligations under Section 90 of the national Parks and Wildlife Act 1974.
    
93. Appropriate works shall be constructed between the base of the Ochre cliff and the edge of the proposed water body to ensure ochreous materials eroding out of the cliff face are contained and not washed into the water body. These works shall be generally in accordance with the Aboriginal Heritage Impact Assessment report prepared by Archaeological and Heritage Management Solutions P/L.
    
94. There are currently no requirements for permits or consents from the Department of Environment and Climate Change (DECC), however, if any Aboriginal sites or objects are found during site construction work, excavation should cease immediately in that area. The La Perouse Aboriginal Land Council should be notified and advice sought before work can recommence. It is an offence under Section 90 of the National Parks and Wildlife Act 1974 to disturb, deface or destroy an Aboriginal site or object without prior consent of the Director General of DECC.
    
95. Two copies of the final version of the Aboriginal Heritage Impact Assessment report should be sent to the DECC Aboriginal Heritage Information Management System reports archive.
    

Geological Heritage

96. Any work program for excavation within the Palaeovalley Area should include a detailed Work Method Statement that ensures that:
    

· Excavation does not adversely impact on the heritage values of the Palaeovalley Area; and

· Uncovered significant geological information or specimens are appropriately investigated, recorded and saved.

- Access to the site should be made available to qualified researchers during excavation within the Palaeovalley Area. (This should include Dr JW Pickett, Department of Mineral resources, and Dr H Martin, UNSW, as well as others who may be nominated by the NSW Geological Heritage Committee of the Geological Society of Australia).

97. Significant test drilling within the Palaeovalley Area should be recorded on a list. This list, together with corresponding drill logs, should be provided to Londonderry Core Library of the Department of Mineral resources along with any cuttings or core requested by the Core Library.
    

The following conditions are applied to ensure that the development satisfies relevant standards of construction, and to maintain adequate levels of health, safety and amenity during demolition, excavation and construction:

98. The requirements and provisions of the Environmental Planning & Assessment Act 1979 and Environmental Planning & Assessment Regulation 2000, must be fully complied with at all times.
    

Failure to comply with these legislative requirements is an offence and may result in the commencement of legal proceedings, issuing of `on-the-spot` penalty infringements or service of a notice and order by Council.

99. All building work must be carried out in accordance with the provisions of the Building Code of Australia (BCA), in accordance with Clause 98 of the Environmental Planning and Assessment Regulation 2000.
    
100. Prior to the commencement of any building works, a construction certificate must be obtained from Council’s Building Certification Services or an accredited certifier, in accordance with the provisions of the Environmental Planning & Assessment Act 1979 and Environmental Planning & Assessment Regulation 2000.
     

A copy of the construction certificate, the approved plans & specifications and development consent conditions must be kept on the site at all times and be made available to the Council officers and all building contractors for assessment.

101. Prior to the commencement of any building works, the person having the benefit of the development consent must:-
     
     1. appoint a Principal Certifying Authority for the building work, and
        
     2. appoint a principal contractor for the building work and notify the Principal Certifying Authority and Council accordingly in writing, and
        
     3. notify the principal contractor of the required critical stage inspections and other inspections to be carried out, as specified by the Principal Certifying Authority, and
        
     4. give at least two days notice to the Council, in writing, of the persons intention to commence building works.
        
102. The building works must be inspected by the Principal Certifying Authority (or another certifying authority if the Principal Certifying Authority agrees), in accordance with sections 109 E (3) of the Environmental Planning & Assessment Act 1979 and clause 162A of the Environmental Planning & Assessment Regulation 2000, to monitor compliance with the relevant standards of construction, Council’s development consent and the construction certificate.
     

The Principal Certifying Authority must specify the relevant stages of construction to be inspected in accordance with section 81A (2) (b1) (ii) of the Environmental Planning & Assessment Regulation 2000 and a satisfactory inspection must be carried out, to the satisfaction of the Principal Certifying Authority, prior to proceeding to the subsequent stages of construction or finalisation of the works (as applicable).

Documentary evidence of the building inspections carried out and details of compliance with Council’s consent is to be maintained by the Principal Certifying Authority. Details of critical stage inspections carried out and copies of certification relied upon must also be forwarded to Council with the occupation certificate.

The principal contractor must ensure that the required critical stage and other inspections, as specified in the Principal Certifying Authority’s “Notice of Critical Stage Inspections”, are carried out to the satisfaction of the Principal Certifying Authority and at least 48 hours notice (excluding weekends and public holidays) is to be given to the Principal Certifying Authority, to carry out the required inspection, before carrying out any further works.

103. A sign must be erected and maintained in a prominent position on the site for the duration of the works, which contains the following details:
     

· name, address, contractor licence number and telephone number of the principal contractor, including a telephone number at which the person may be contacted outside working hours,

· name, address and telephone number of the Principal Certifying Authority,

· a statement stating that “unauthorised entry to the work site is prohibited”.

104. Deleted.

105. Prior to the issuing of an interim or final occupation certificate, a statement is required to be obtained from the Principal Certifying Authority, which confirms that the development is not inconsistent with the development consent and the relevant conditions of development consent have been satisfied.
     

Details of critical stage inspections carried out by the principal certifying authority together with any other certification relied upon must also be provided to Council with the occupation certificate.

106. The required Long Service Levy payment, under the Building and Construction Industry Long Service Payments Act 1986, is to be forwarded to the Long Service Levy Corporation or the Council, prior to the issuing of a Construction Certificate, in accordance with Section 109F of the Environmental Planning & Assessment Act 1979.
     

At the time of this development consent, Long Service Levy payment is applicable on building work having a value of $25,000 or more, at the rate of 0.35% of the cost of the works.

107. All building, plumbing and drainage work must be carried out in accordance with the requirements of the Sydney Water Corporation.
     

The approved Construction Certificate plans must be submitted to a Sydney Water Quick Check agent or Customer Centre prior to commencing any building or excavation works, to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if any further requirements need to be met.

If suitable, the plans will be appropriately stamped. For Quick Check agent details please refer to Sydney Water’s web site at www.sydneywater.com.au and go to the Building, Developing and Plumbing, then Quick Check or Building and Renovating or telephone 13 20 92.

The principal certifying authority must ensure that a Quick Check Agent/Sydney Water has appropriately stamped the plans before commencing any works.

The following group of conditions have been applied to ensure the structural adequacy and integrity of the proposed building and adjacent premises:

108. Deleted.
     
109. 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 potential vibration emissions. The report, must demonstrate the suitability of the proposed methods of construction to overcome any potential damage to nearby land/premises.
     

Any practices or procedures specified in the engineer’s report in relation to the avoidance or minimisation of structural damage to nearby premises, must be fully complied with and incorporated into the documentation 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.

110. 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 demonstrates that damage should not occur to any adjoining premises and public place as a result of the works.
     

Any practices or recommendations specified in the engineer’s report in relation to the avoidance or minimisation of structural damage to nearby premises or land must be fully complied with and incorporated into the documentation for the construction certificate.

111. The installation of ground or rock anchors underneath any adjoining premises including (a public roadway or public place) must not be carried out without specific written consent of the owners of the affected adjoining premises (including the Council if bounding a public place) and details of compliance must be provided to the certifying authority prior to the commencement of any excavation or building works.
     
112. A Certificate 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 issuing an occupation certificate, which certifies that the building works satisfy the relevant structural design requirements of the Building Code of Australia.
     

The following conditions are applied to ensure that the development satisfies relevant standards of construction, and to maintain adequate levels of health, safety and amenity during construction:

113. 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 supported to prevent them from being dangerous to life, property or buildings.
     

Retaining walls, shoring or piling must be provided to support land which is excavated in association with the erection or demolition of a building, to prevent the movement of soil and to support the adjacent land and buildings, if the soil conditions require it. Adequate provisions are also to be made for drainage.

Retaining walls, shoring, or piling must be designed and installed in accordance with appropriate professional standards and the relevant requirements of the Building Code of Australia and Australian Standards. Details of proposed retaining walls, shoring or piling are to be submitted to and approved by the Principal Certifying Authority for the development prior to commencing such excavations or works.

114. The adjoining land and buildings located upon the adjoining land must be adequately supported at all times.
     

If an excavation associated with the erection or demolition of a building extends below the level of the base of the footings of any building located on an adjoining allotment of land, the person causing the excavation must:

preserve and protect the building /s on the adjoining land from damage; and

effectively support the excavation and building; and

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 and particulars of the works to the owner of the adjoining land.

Notes

This consent and condition does not authorise any trespass or encroachment upon any adjoining or supported land or building whether private or public. Where any underpinning, shoring, soil anchoring (temporary or permanent) or the like is proposed to be carried out upon any adjoining or supported land, the principal contractor or owner-builder must obtain:

1. the consent of the owners of such adjoining or supported land to trespass or encroach, or
2. an access order under the Access to Neighbouring Land Act 2000, or

100. an easement under section 88K of the Conveyancing Act 1919, or

4. an easement under section 40 of the Land & Environment Court Act 1979, as appropriate.
   

Section 177 of the Conveyancing Act 1919 creates a statutory duty of care in relation to support of land. Accordingly, a person has a duty of care not to do anything on or in relation to land being developed (the supporting land) that removes the support provided by the supporting land to any other adjoining land (the supported land).

115. Except with the written approval of Council’s Manager of Health, Building & Regulatory Services, all building, demolition and associated site works (including site deliveries) must only be carried out between the hours of 7.00am to 5.00pm on Monday to Friday inclusive and (except as detailed below) between 8.00am to 5.00pm on Saturdays.
     

All building, demolition and associated site works are strictly prohibited on Sundays, Public Holidays and also on Saturdays adjacent to a Public Holiday.

In addition, the use of any rock excavation machinery or any mechanical pile drivers or the like is restricted to the hours of 8.00am to 5.00pm (maximum) on Monday to Friday only, to minimise the noise levels during construction and loss of amenity to nearby residents.

116. A report prepared by a suitably qualified and experienced consultant shall be submitted to the Principal Certifying Authority (PCA) and a copy is to be provided to Council upon commencement of works (or as may otherwise be specified by the PCA or Council), certifying that noise and vibration emissions from the construction of the development satisfies the relevant provisions of the Protection of the Environment Operations Act 1997, Councils conditions of consent and relevant Standards relating to noise and vibration. In support of the above, it is necessary to submit all relevant readings and calculations made.
     

Any recommendations and requirements contained in the report are to be implemented accordingly and should noise and vibration emissions not comply with the terms and conditions of consent, work must cease forthwith and is not to recommence until details of compliance are submitted to the PCA and Council.

117. Noise and vibration emissions during the construction of site works must not result in damage to nearby premises or result in an unreasonable loss of amenity to nearby residents and the relevant provisions of the Protection of the Environment Operations Act 1997 must be satisfied at all times.
     

Noise and vibration from any rock excavation machinery and pile drivers (or the like) must be minimised by using appropriate plant and equipment and silencers and a construction noise and vibration minimisation strategy, prepared by a suitably qualified consultant is to be implemented during the works, to the satisfaction of the Principal Certifying Authority

118. Deleted.

119. Public safety and convenience must be maintained at all times during demolition, excavation and construction works and the following requirements must be complied with:
     
     1. The roadway, footpath and nature strip must be maintained in a good, safe condition and free from any obstructions, materials, soils or debris at all times. Any damage caused to the road, footway or nature strip must be repaired immediately, to the satisfaction of Council.
        
     2. Building materials, sand, soil, waste materials, construction equipment or other materials or articles must not be placed upon the footpath, roadway or nature strip at any time and the footpath, nature strip and road must be maintained in a clean condition and free from any obstructions, soil and debris at all times.
        
     100. Bulk bins, waste containers or other articles must not be located upon the footpath, roadway or nature strip at any time without the prior written approval of the Council. Applications to place a waste container or other articles in a public place can be made to Council’s Health, Building & Regulatory Services department.
          
     4. Temporary toilet facilities are to be provided, at or in the vicinity of the work site throughout the course of demolition and construction, to the satisfaction of WorkCover NSW and the toilet facilities must be connected to a public sewer or other sewage management facility approved by Council.
        
     5. A temporary timber, asphalt or concrete crossing is to be provided to the site entrance across the kerb and footway area, with splayed edges, to the satisfaction of Council, unless access is via an existing concrete crossover.
        
     6. 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.
        
     7. A local approval application must be submitted to and be approved by Council's Building Services section prior to commencing any of the following activities upon any part of the footpath, road or nature strip or in any public place:-
        

Install or erect any site fencing, hoardings or site structures

Operate a crane or hoist goods or materials over a footpath or road

Placement of a waste skip or any other container or article in a public place.

120. A Construction Site Management Plan is to be developed and implemented prior to the commencement of demolition, excavation or building works. The site management plan must include the following measures, as applicable to the type of development:
     

· location and construction of protective fencing / hoardings to the perimeter of the site;

· location of site storage areas/sheds/equipment;

· location of building materials for construction;

· provisions for public safety;

· dust control measures;

· site access location and construction

· details of methods of disposal of demolition materials;

· protective measures for tree preservation;

· provisions for temporary sanitary facilities;

· location and size of waste containers/bulk bins;

· details of proposed sediment and erosion control measures;

· construction noise and vibration management;

· construction traffic management provisions.

· Maintaining the existing water supply and storage from the subject site to the golf course during construction.

The site management measures are to be implemented prior to the commencement of any site works and be maintained throughout the works, to maintain reasonable levels of public health, safety and convenience, to the satisfaction of Council. A copy of the approved Construction Site Management Plan must be maintained on site and be made available to Council officers upon request.

121. During demolition excavation and construction works, dust emissions must be minimised, so as not to result in a nuisance to nearby residents or result in a potential pollution incident.
     

Adequate dust control measures must be provided to the site prior to the works commencing and the measures and practices must be maintained throughout the demolition, excavation and construction process, to the satisfaction of Council.

Dust control measures and practices may include:-

· Provision of geotextile fabric to all perimeter site fencing (attached on the prevailing wind side of the site fencing).

· Covering of stockpiles of sand, soil and excavated material with adequately secured tarpaulins or plastic sheeting.

· Installation of a water sprinkling system or provision hoses or the like.

· Regular watering-down of all loose materials and stockpiles of sand, soil and excavated material.

· Minimisation/relocation of stockpiles of materials, to minimise potential for disturbance by prevailing winds.

· Revegetation of disturbed areas.

122. During construction stages, sediment laden stormwater run-off shall be controlled using the sediment control measures outlined in the manual for Managing Urban Stormwater – Soils and Construction, published by the NSW Department of Housing.
     

Details of the proposed sediment control measures are to be detailed in the Site Management Plan and must be submitted to and approved by the principal certifying authority 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 be maintained throughout construction. A copy of the approved details must be forwarded to the Council and a copy is to be maintained on-site and be made available to Council officers upon request.

Details of proposed sediment and erosion control measures shall include; a site plan; indicating the slope of land, access points & access control measures, location and type of sediment & erosion controls, location of existing vegetation to be retained, location of material stockpiles and storage areas, location of building operations and equipment, methods of sediment control, details of drainage systems and details of existing and proposed vegetation.

Stockpiles of soil, sand, aggregate or other materials must not be located on any footpath, roadway, nature strip, drainage line 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, nature strips, in any public place or any location which may lead to the discharge of materials into the stormwater drainage system.

A warning sign for soil and water management must be displayed in a prominent position on the building site, visible to both the public 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.

123. Public safety must be maintained at all times and public access to the site and building works, materials and equipment on the site is to be restricted.
     

A temporary safety fence is to be provided to protect the public, located to the perimeter of the site. Temporary fences are to have a minimum height of 1.8 metres and be constructed of cyclone wire fencing, with geotextile fabric attached to the inside of the fence to provide dust control, or other material approved by Council.

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.

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.

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.

Temporary fences and hoardings are to be structurally adequate, safe and be constructed in a professional 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.

If it is proposed to locate any site fencing, hoardings or amenities upon any part of the footpath, nature strip or any public place, the written consent from Council’s Building Services section must be obtained beforehand and detailed plans are to be submitted to Council for consideration, together with payment of the weekly charge in accordance with Council’s adopted fees and charges.

124. The demolition, removal, storage, handling and disposal of materials and all building work must be carried out in accordance with the following requirements (as applicable):
     

· Australian Standard 2601 (2001) – Demolition of Structures

· Occupational Health and Safety Act 2000

· Occupational Health and Safety (Hazardous Substances) Regulation 2001

· Occupational Health and Safety (Asbestos Removal Work) Regulation 2001

· WorkCover NSW – Guidelines and Codes of Practice

· Randwick City Council’s Asbestos Policy

· The Protection of the Environment Operations Act 1997 and Protection of the Environment Operations (Waste) Regulation 1996.

125. A Demolition Work Plan must be prepared for the development in accordance with Australian Standard AS2601-2001, Demolition of Structures.
     

The Work Plan must include the following information (as applicable):

· The name, address, contact details and licence number of the Demolisher /Asbestos Removal Contractor

· Details of hazardous materials, including asbestos

· Method/s of demolition and removal of asbestos

· Measures and processes to be implemented to ensure the health & safety of workers and community

· Measures to be implemented to minimise any airborne asbestos and dust

· Methods and location of disposal of any asbestos or other hazardous materials

· Other relevant details, measures and requirements to be implemented as identified in the Asbestos Survey

· Date the demolition and removal of asbestos will commence

The Demolition Work Plan must be submitted to Council and the Principal Certifying Authority (PCA), not less than two (2) working days before commencing any demolition works. A copy must also be maintained on site and be made available to Council officers upon request.

126. Any work involving the demolition, storage and disposal of asbestos products and materials must be carried out in accordance with the following requirements:
     
     1. Randwick City Council’s Asbestos Policy (adopted 13 September 2005).
        

A copy of Council’s Asbestos Policy is available on Council’s web site at www.randwick.nsw.gov.au in the Building & Development section or a copy can be obtained from Council’s Customer Service Centre.

2. A WorkCover licensed demolition or asbestos removal contractor must undertake removal of more than 10m2 of bonded asbestos (or as otherwise specified by WorkCover or relevant legislation). Removal of friable asbestos material must only be undertaken by contractor that holds a current friable asbestos removal licence.
   

100. On sites involving the removal of asbestos, a professionally manufactured sign must be clearly displayed in a prominent visible position at the front of the site, containing the words ‘DANGER ASBESTOS REMOVAL IN PROGRESS” and include details of the licensed contractor. The sign shall measure not less than 400mm x 300mm and the sign is to be installed prior to demolition work commencing and is to remain in place until such time as all asbestos has been safely removed from the site.
     

4. Asbestos waste must be stored, transported and disposed of in compliance with the Protection of the Environment Operations Act 1997 and the Protection of the Environment Operations (Waste) Regulation 1996. Asbestos waste must be disposed of at an approved waste disposal depot (refer to the DEC or Waste Service NSW for details of sites). Copies of all receipts detailing method and location of disposal must be maintained on site and be provided to Council officers upon request, as evidence of correct disposal.
   
5. A Clearance Certificate or Statement, prepared by a suitably qualified person (i.e. an occupational hygienist, licensed asbestos removal contractor, building consultant, architect or experienced licensed building contractor), must be provided to Council upon completion of the works prior to an Occupation Certificate being issued, which confirms that the asbestos material have been removed appropriately and the relevant requirements contained in the Asbestos Survey and conditions of consent in relation to the safe removal and disposal of asbestos, have been satisfied.
   

ADVISORY MATTERS:

1. 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/demolition works.
   
2. The applicant is advised that the Construction Certificate plans and specification must comply with the provisions of the Building Code of Australia (BCA).
   

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.

The applicant and developer is advised to ensure that the development is not inconsistent with Council's consent and if necessary consult with Council’s Building Certification Services or your accredited certifier prior to submitting your construction certificate application to enable these matters to be addressed accordingly.

3. The applicant/owner is advised that this approval does not guarantee compliance with the provisions of the Disability Discrimination Act 1992 and the applicant should therefore consider their liability under the Act. In this regard, the applicant is advised that compliance with the requirements of the Building Code of Australia and Australian Standard 1428.1 - Design for Access and Mobility does not necessarily satisfy the objectives of the Disability Discrimination Act 1992.
   

The applicant/owner is requested to give consideration to providing access and facilities for people with disabilities in accordance with Australian Standard 1428 Parts 1, 2, 3 and 4 - Design for Access and Mobility, which may be necessary to satisfy the objectives of the Disability Discrimination Act 1992.

_______________________
J S Murrell
Commissioner of the Court

AMENDMENTS:

21/03/2012 - Annexure A added - Paragraph(s) Annexure A