38-52 Waterloo Street Surry Hills Pty Ltd, Con and Antonia Haralambis v City of Sydney Council

Land and Environment Court (NSW)|2009-10-28

CITATION : 38-52 Waterloo Street Surry Hills Pty Ltd, Con and Antonia Haralambis v City of Sydney Council [2009] NSWLEC 1364

APPLICANT 38-52 Waterloo Street Surry Hills Pty Ltd, Con and Antonia Haralambis PARTIES : RESPONDENT City of Sydney Council

KEY ISSUES: SECTION 96 APPLICATION :- changes to approved development whether increase in floor space ratio has acceptable environmental and amenity impacts and would be a precedent for other developments.

CASES CITED: Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75 Meck v Waverley Council (2) [2005] NSWLEC 363

APPLICANT Mr G Green, solicitor of Pikes Lawyers LEGAL REPRESENTATIVES:

RESPONDENT Mr S Kondilios, solicitor of Maddocks Lawyers

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10584 of 2009 38-52 Waterloo Street Surry Hills Pty Ltd, Con and Antonia Haralambis v City of Sydney Council

JUDGMENT 1 This is an appeal against the deemed refusal by the Council of the City of Sydney (council) of an application under s 96(2) of the Environmental Planning and Assessment Act 1979 to modify development consent (D/2006/1083/F) for a mixed-use development at 38-52 Waterloo Street, Surry Hills (the site).

2 The main issue in dispute between the parties is whether the excess floor space and additional habitable floor will be a precedent for other development in the area. Site and its context 3 The site is located on the southeast corner of Adelaide and Waterloo Streets with a frontage of 52 m to Adelaide Street and 26.5 m to Waterloo Street. The total site area is 1,678 sqm, although as a result of various amalgamations, the site area has decreased to 1672 sqm since the original approval.

4 A mixed-use commercial/residential development is currently under construction on the site. This comprises a 6-storey building fronting Waterloo Street (the Waterloo Street Building) and a 5-storey building fronting Adelaide Street (the Adelaide Street building).

5 In Waterloo Street, the site adjoins the Readers Digest building (71-110 Cooper Street), which is a heritage item, a pair of terraces at 54-56 Waterloo Street and the Clarendon Hotel (156-158 Devonshire Street), which is also a heritage item.

6 In Adelaide Street, the site adjoins a contemporary 5-storey mixed-use building (1-25 Adelaide Street) known as the Citta Development. There are other large scale residential developments nearby including the Department of Housing development (164A to 188 Devonshire Street) and 82-92 Cooper Street.

7 The western side of Waterloo Street is characterised by 2-storey terraces, which are a mixture of residential and commercial uses. The eastern side is characterised by warehouses style buildings and commercial buildings. Planning Controls 8 The site is zoned Mixed-use 10 under South Sydney Local Environmental Plan 1998 (LEP 1998). The proposal is permissible with consent.

9 South Sydney Development Control Plan 1997 (DCP 1997) Urban Design permits a max floor space ratio (FSR) of 2:1 with a bonus FSR of up to 0.25:1 of the site area in certain circumstances. The approved development provides an FSR of 2.8:1 and the proposal will increase this to 2.98:1 (based on the original site area of 1678 sqm).

10 DCP 1997 permits a maximum height of 12 m. The approved development is a part 5, part 6 storey building with a maximum height of RL 64 which exceeds the height limit in DCP 1997. The proposal does not increase the overall height of the building but changes level 5 of the Adelaide Street building from non-habitable to habitable space.

11 The site is within the Foveaux Street Conservation Area and is in the vicinity of two heritage items listed under LEP 1998, being the Readers Digest Building and the Clarendon Hotel.

12 State Environmental Planning Policy No 65 - Design Quality of Residential Flat Development (SEPP 65) and the Residential Flat Design Code (the Code) are also relevant. The background and the proposal 13 The background to the s 96 application is detailed in the Statement of Facts and Contentions, the Statement of Facts and Contentions in Reply.

14 South Sydney Council approved an application (U03-00410) for a master plan for the site on 22 October 2003 (Stage 1 consent). This approved demolition of the existing improvements and redevelopment of the site for a part 5, part 6 storey mixed use development with basement parking. The original application sought approval for a sixth floor on the Adelaide Street building with a proposed FSR of 2.98:1. This was withdrawn from the application to match the setback and height of the Citta Building. The development approved under the Stage 1 had an FSR of 2.8:1 and a maximum height for the Adelaide Street building of RL58.3 and RL61.3 for the Waterloo Street building. The approval included the requirement for public domain improvements for the 'bonus FSR'

15 The council approved a Stage 2 application (D/2006/1083) on 28 May 2007 for a part 5, part 6 storey mixed use development with roof top terraces (Stage 2 consent). A number of s 96 applications for minor amendments have subsequently been approved. The Stage 2 consent and subsequent amendments approved an FSR of 2.8:1 and maximum height for the Adelaide Street building of RL61.3 and RL64.0 for the Waterloo Street building. The approval included a Voluntary Planning Agreement (VPA) for public domain improvements for the 'bonus FSR'.

16 The applicant has withdrawn a S96 application (D/2006/1083/E) seeking consent for an additional level of accommodation on the Adelaide Street building to provide two apartments.

17 The current s 96 application (D/2006/1083/F) seeks to: o Increase in size the retail tenancies facing Adelaide Street (59 sqm); o Reconfigure level 5 of the Adelaide Street building to partly infill the terraces to provide a bedroom with ensuite for the six units on level 4 (160 sqm) o Use the area above the carpark entry ramps as storage instead of plant (72.5 sqm) o Straighten the lower level of the rear of units 4.01-4.06 (18.3 sqm). o Change the use of a residential unit (3.04) to a commercial office. 18 The proposal increases the gross floor area by 309.8sqm, which represents an overall FSR of 2.98 (based on the original site area of 1678 sqm) and 2.99:1 (based on the reduced site area of 1672 sqm) . The proposal does not increase the height of the development beyond the approved height.

19 Part of the work for which consent is sought has been constructed. A VPA for public domain works for the extra FSR has been advertised and is agreed to as a condition of consent. The Evidence 20 The Court visited the site and heard evidence form objectors whose principal concern was that the proposal exceeded the FSR and height controls and would adversely impact on the character of the area and its residential amenity.

21 Mr S McDonald, for the applicant, and Mr J Reid, for the council provided expert planning evidence. The principal disagreement between these experts focused on whether the increase in FSR was acceptable, particularly the additional floor space on level 5 of the Adelaide Street building.

22 The experts agreed that the additional area would not result in any adverse or additional environmental impacts such as overshadowing, view loss or privacy impacts. They also agreed that the addition would not be seen from the public domain and that the overall appearance of the development would remain unchanged.

23 Although, Mr Reid, in response to concerns raised by residents, considered that the bulk of the proposal, when viewed form the upper apartments in 82-92 Cooper Street, would increase.

24 Mr Reid's principle concern was that the FSR exceeded that which had been approved under the Stage 1 and Stage 2 consents. He stated that the Stage 1 consent had considered the context of the proposal and permitted a height and FSR in excess of that permitted under DCP 1997 on the basis that the proposal responded approprially appropriately to its mixed context, particularly, the Readers Digest Building and the Citta development.

25 In Mr Reid's opinion the Stage 2 consent and subsequent amendments were consistent with the Stage 1 consent. He noted that concern over the additional roof top terrace and stairwells on level 5 of the Adelaide Street Building had been expressed by council staff as part of the assessment of the Stage 2 application. However, this concern is not reflected in the report to council in relation to the Stage 2 development application, which increased the height of the Adelaide Street building beyond that approved under the Stage1 consent.

26 Mr Reid considered that the proposal would result in an additional storey and that this together with the FSR exceedence would set a precedent for other developments. He stated that other sites, including the Citta development, had held pre DA discussions seeking to add an extra storey.

27 Mr McDonald held the contrary opinion that the proposal was acceptable as it was a minor addition of floor space within the approved building height and envelope. The proposal cannot be seen from the public domain and will not result in adverse amenity impacts on other properties. In his opinion the proposal would not set a precedent as each application should be considered on its merits and would need to be assessed within its relevant context and resultant environmental impacts.

The proposed addition of bedrooms and ensuites to residential apartments at level 5 does not alter the approved height of the building as it is substantially contained within the area previously approved for the level 5 envelope, terraces, and apartment entry ways, and will be adequately setback from the lower levels of the building to minimise any visual impacts upon the streetscape or adjoining heritage items.

The infill at level 5 will continue to be setback from the Adelaide Street frontage and from the levels of the building below, maintaining the existing built form relationship between the modified development and the "Readers Digest" Building.

The infill level is an alternative to already approved structures at this same level. Currently approved are structures enclosed on three side, including roofing. The proposed modifications will add a fourth, glazed, wall. As a result there is no resultant increase in overshadowing and no privacy impacts to adjoining properties. 29 Mr Reid also objected to the other changes, which resulted in an increase in the FSR of the building but provided no assessment of any adverse impacts resulting from these proposed changes other than the precedent that would be set by further exceeding the FSR control in DCP 1997.

30 Mr McDonald the increase in FSR to be acceptable. He that:

The proposed modifications do not substantially alter the architectural design, the footprint, height, scale, or the approved building envelope or façade composition of the building envelope as originally approved by council. 31 In relation to the change of the residential unit on level 3 to a commercial use, Mr Reid did not raise concerns about adverse amenity impacts resulting from the commercial use of the unit but was concerned that a separate entry access was not provided which would result in workers and visitors of the commercial space interacting with residents of the building. In his opinion this was contrary to the intent of the Code, which recommends separate entry for different uses in a mixed use development. The Central Sydney Development Control Plan 1996, although not applicable to the site, also requires separate entries. Mr Reid suggested that the commercial use should be located on a lower floor with direct access from a commercial use on ground level.

32 Mr McDonald stated that the proposed office is small in area and directly accessible from the lift lobby. No general public access is permissible as all access to the building is by security access. The building is a mixed use development and retail and residential users will use common areas at ground level and in the basement. The proposed commercial use has been disclosed in the proposed By Laws to purchasers. In his opinion, the change of use is minor with no adverse impacts.

Findings 33 I accept Mr McDonald's evidence. No issue was raised that the proposed changes are not substantially the same development as approved in the Stage 2 consent, which is consistent with the Stage 1 consent.

34 The approval of the roof top terraces, including the access stairs, enclosed areas and pergolas effectively added a sixth storey to the Adelaide Street building. While the storey was non-habitable space and not included in the FSR calculation for the development, it has determined the envelope of the building.

35 The proposal will extend and enclose the approved level 5 envelop to the north. However, this will not add to the overall bulk of the building. The opportunity to view this level is limited. The experts agree that it cannot be viewed from ground level or the public domain. Its appearance when viewed from other developments will not change, other than when viewed from 82-92 Cooper Street. However, this building is some 75m from the site and the change to level 5 from the introduction of glazing will not result in any material increase in bulk.

36 A 1.8m high screen around the plant area on the roof of level 5 has previously been approved ((D/2006/1083/C). This increase in the height and bulk of the building would have a greater impact than the introduction of glazing in the northern façade of level 5.

37 I note that the structures on level 5 were approved to provide access to the roof terraces for the apartments below and to support solar panels, which have now been deleted. Alternate outdoor open space is provided for these units off the living areas on level 4. Mr Reid did not press the retention of the roof terraces on the basis of amenity for the units or the visual amenity that the may provide to other buildings in the area. The proposed bedrooms are setback from the edge of the building with landscaped planter boxes along the north and south, which will maintain, to some extent, the greening of the building sought to be achieved by the terraces. Further Mr McDonald stated that the use of level 5 as bedrooms would be likely to result in fewer impacts than the use of this level as roof terraces, which had the potential for outdoor entertaining. 38 The experts agree that the proposal does not result in any adverse environmental or amenity impacts. The principal concern of Mr Reid is that it exceeds the FSR control in DCP 1997 and may set a precedent. However, the approval of the Stage 1 consent has already permitted a significant variation to the FSR and height control in DCP 2009 on the basis of a contextual assessment of the site and surrounding development. The Stage 2 consent approved an additional level on the Adelaide Street building. Although this did not approve habitable space, or additional FSR it did increase the height and envelop of the building beyond that approved under the Stage 1 consent and has established the overall height, bulk and scale of the building.

39 The proposal converts non-habitable space for use as bedrooms and thereby increases the FSR of the development. However, it does not increase the overall height or bulk of the building nor does it increase the density or occupancy of the development, as the number of units remains the same. In the absence of any identifiable adverse impacts resulting from the proposed changes to level 5 and to the other areas of the building I find that the proposal meets the objective of the FSR control in DCP 1997:

To control the floor space of new development to ensure its intensity respects and reflects the overall built form and does not detrimentally affect the amenity of the area. 40 In reaching this conclusion, I have placed considerable weight on the approval of the structures on level 5 and the absence of environmental and amenity impact. If level 5 had not been approved under the Stage 2 consent, the addition of an extra storey for the provision of the bedrooms may not have been acceptable.

41 I also accept Mr McDonald's evidence in regard to the proposed change of a residential unit to a commercial use. No adverse impact have been identified that would warrant refusal of this aspect of the proposal.

42 In dealing with precedent Mr Green, for the applicant, referred to Meck v Waverley Council (2) [2005] NSWLEC 363 where I considered the issue of precedent and the decision of Lloyd J in Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75: 46 In Goldin & Anor v Minister for Transport Administering the Ports Corporatisation and Waterways Management Act 1995 [2002] NSWLEC 75, Lloyd J held that if the Court was considering an application for development which was both objectionable in itself and where there was sufficient probability that there would be further applications of a like kind, the fact that consent would operate as a precedent might be taken into consideration.

47 I accept the proposition that this development may operate as a precedent, however, as stated above the overall bulk and scale of the building is already approved and is therefore already a precedent. The basement space, the potential four habitable floors and the exceedence in the FSR control result from the previous approvals and conditions. The alternative to approving the s96 application would be that the space is not permitted to be used. This would not change the appearance or impact of the building. As discussed above there are no amenity impacts from the use of the space on adjoining residents or the future occupants of the building that would warrant its refusal.

48 I acknowledge that it may be used as a precedent, however, in my opinion the approved bulk and scale of the development is clearly out of character with the area and is a precedent of what not to approve rather than what to approve.

43 It is likely that approval of the application may operate as a precedent for other applications, at least to the extent that there may be further applications of a like kind. However, any such application would need to be considered on its merits within the context of the planning controls. It is incumbent on council to ensure that the planning controls reflect the desired outcomes for future development within an area.

Orders 44 The Orders of the Court are therefore; 1. The appeal is upheld. 2. The application under s 96(2) of the Environmental Planning and Assessment Act 1979 to modify development consent (D/2006/1083/F) for a mixed-use development at 38-52 Waterloo Street, Surry Hills is approved subject to the conditions in Annexure A. 3. The exhibits, except exhibit A, may be returned

      Annelise Tuor
      Commissioner of the Court
      ljr

Annexure 'A' Conditions of Consent Haralambis v City of Sydney Council SCHEDULE 1A Approved Development/Design Modifications/Covenants and Contributions /Use and Operation Note: Some conditions in Schedule 1A are to be satisfied prior to issue of a Construction Certificate and some are to be satisfied prior to issue of Occupation Certificate, where indicated. (1) APPROVED DEVELOPMENT (a) Development must be in accordance with Development Application No. D2006/01083 dated 4 July 2006 and Statement of Environmental Effects prepared by City Plan Services dated June 2006 and the following drawings : Drawing Number Architect Date 1.00 Issue C Frost Architecture 08/06/2006 1.01 Issue C Frost Architecture 27/09/2006 1.02 Issue D Frost Architecture 27/09/2006 1.03 Issue I Frost Architecture 27/09/2006 1.04 Issue K Frost Architecture 27/09/2006 1.05 Issue N Frost Architecture 27/09/2006 1.06 Issue N Frost Architecture 27/09/2006 1.07 Issue N Frost Architecture 27/09/2006 1.08 Issue N Frost Architecture 27/09/2006 1.09 Issue N Frost Architecture 27/09/2006 1.10 Issue M Frost Architecture 27/09/2006 1.11 Issue N Frost Architecture 27/09/2006 1.12 Issue L Frost Architecture 27/09/2006 1.13 Issue N Frost Architecture 27/09/2006 1.14 Issue N Frost Architecture 27/09/2006 1.15 Issue J Frost Architecture 27/09/2006 1.16 Issue F Frost Architecture 27/09/2006 1.17 Issue D Frost Architecture 27/09/2006 1.18 Issue E Frost Architecture 27/09/2006

Development must be in accordance with Development Application No. D2006/01083/B dated 5 October 2007 and Statement of Environmental Effects prepared by SJB Planning dated 4 October 2007 and the following drawings: Drawing Number Architect Date S96 1101 A Candalepas Associates 05/10/2007 S96 1102 A Candalepas Associates 05/10/2007 S96 1103 A Candalepas Associates 05/10/2007 S96 1104 A Candalepas Associates 05/10/2007 S96 1105 A Candalepas Associates 05/10/2007 S96 1106 A Candalepas Associates 05/10/2007 S96 1107 A Candalepas Associates 05/10/2007 S96 1108 A Candalepas Associates 05/10/2007 S96 1109 A Candalepas Associates 05/10/2007 S96 1110 A Candalepas Associates 05/10/2007 S96 1111 A Candalepas Associates 05/10/2007 S96 1201 A Candalepas Associates 05/10/2007 S96 1202 A Candalepas Associates 05/10/2007 S96 1203 A Candalepas Associates 05/10/2007 S96 1301 A Candalepas Associates 05/10/2007 S96 1302 A Candalepas Associates 05/10/2007 S96 1303 A Candalepas Associates 05/10/2007 S96 1304 A Candalepas Associates 05/10/2007

Development must be in accordance with Development Application No. D2006/01083/C dated 1 May 2008 and Statement of Environmental Effects prepared by SJB Planning dated 30 August 2008 and the following drawings: Drawing Number Architect Date S96 1000 B Candalepas Associates April 2008 S96 1101 B Candalepas Associates April 2008 S96 1102 B Candalepas Associates April 2008 S96 1103 B Candalepas Associates April 2008 S96 1104 B Candalepas Associates April 2008 S96 1105 B Candalepas Associates April 2008 S96 1106 B Candalepas Associates April 2008 S96 1107 B Candalepas Associates April 2008 S96 1108 B Candalepas Associates April 2008 S96 1109 B Candalepas Associates April 2008 S96 1110 B Candalepas Associates April 2008 S96 1111 B Candalepas Associates April 2008 S96 1201 B Candalepas Associates April 2008 S96 1202 B Candalepas Associates April 2008 S96 1203 B Candalepas Associates April 2008 S96 1301 C Candalepas Associates April 2008 S96 1302 C Candalepas Associates April 2008 S96 1303 B Candalepas Associates April 2008 S96 1304 B Candalepas Associates April 2008 S96 1951 B Candalepas Associates April 2008

(Section 96 Modification - D/2006/1083/C - 1 July 2008) As amended by Section 96 Application D2006/01083/F dated 25 June 2009 and the following drawings: Drawing Number Architect Date S96 1101 D Candalepas Associates 18 June 2009 S96 1102 D Candalepas Associates 18 June 2009 S96 1103 D Candalepas Associates 18 June 2009 S96 1104 D Candalepas Associates 18 June 2009 S96 1105 E Candalepas Associates 9 July 2009 S96 1106 E Candalepas Associates 9 July 2009 S96 1107 D Candalepas Associates 18 June 2009 S96 1108 D Candalepas Associates 18 June 2009 S96 1109 D Candalepas Associates 18 June 2009 S96 1110 D Candalepas Associates 18 June 2009 S96 1111 D Candalepas Associates 18 June 2009 S96 1201 D Candalepas Associates 18 June 2009 S96 1202 E Candalepas Associates 9 July 2009 S96 1203 D Candalepas Associates 18 June 2009 S96 1301 D Candalepas Associates 18 June 2009 S96 1302 D Candalepas Associates 18 June 2009 S96 1303 D Candalepas Associates 18 June 2009 S96 1951 E Candalepas Associates 9 July 2009

(Amended by the Land and Environment Court in proceedings no 10584 of 2009, D/2006/1083/F) and as amended by the conditions of this consent: (b) In the event of any inconsistency between the approved plans and supplementary documentation, the plans will prevail. (c) An amended construction certificate is to be issued prior to the commencement of works associated with D/2006/1083/F. (Amended by the Land and Environment Court in proceedings no 10584 of 2009, D/2006/1083/F) (d) A modified Voluntary Planning Agreement is to be entered into prior to the issue of an amended construction certificate. The Voluntary Planning Agreement is to be to the same form and value as that advertised by the City of Sydney Council between 13 September 2009 and 16 October 2009. (Amended by the Land and Environment Court in proceedings no 10584 of 2009, D/2006/1083/F) (2) DESIGN CHANGES The design of the Adelaide Street building shall be modified as follows: (a) The windows in the south facing units on level 1 and 2 of the Adelaide Street building shall be screened or off-set in order to protect privacy. The amendments are to be submitted for the approval of Council prior to a Construction Certificate being issued. (3) FLOOR SPACE RATIO - ALL OTHER AREAS The following applies to Floor Space Ratio: (a) The Floor Space Ratio for the business use must not exceed 0.43:1; for the residential use must not exceed and for the mixed use must not exceed 2.36:1 calculated in accordance with the South Sydney Local Environmental Plan 1998. For the purposes of the calculation of FSR, the Gross Floor Area of the business component is 731.5sqm 724.5sqm, 732.5sqm for the residential component 3,963.5sqm 3,9790sqm, 3962.5sqm and the total Gross Floor Area is 4,695sq m. (b) The total floor space calculated in accordance with the South Sydney Local Environmental Plan 1998 must not exceed 2.99:1. For the purposes of calculation of FSR the Gross Floor Area of the entire development is 5005.2 sqm and the site area is 1672 sqm. Should the site area be reduced then the total FSR and corresponding Gross Floor Area must be reduced accordingly. (Section 96 Amendment 2 November 2007) (Section 96 Modification - D/2006/1083/C - 1 July 2008) (Amended by Land and Environment Court in proceedings no 10584 of 2009, D/2006/1083/F) (c) Prior to an Occupation Certificate being issued, a Registered Surveyor must provide certification of the total and component Gross Floor Areas (by use) in the development, utilising the definition under South Sydney Local Environmental Plan 1998applicable at the time of development consent, to the satisfaction of the Principal Certifying Authority. (4) BUILDING HEIGHT (a) The height of the Adelaide Street building must not exceed RL61.30 RL64.00 (AHD) to the top of the building. The height of the Waterloo Street building must not exceed RL61.3 RL64.00 (AHD) to the top of the building. (Section 96 Modification - D/2006/1083/C - 1 July 2008)

(Section 96 Modification - D/2006/1083/D - 1 September 2008) (b) Prior to an Occupation Certificate being issued, a Registered Surveyor must provide certification of the height of the building, to the satisfaction of the Principal Certifying Authority. (5) LAND CONTAMINATION A preliminary environmental site assessment is to be carried out before any construction work or work ancillary to the construction work is carried out, but not including demolition works. Where the preliminary investigation indicates that the site is suitable for the intended use, a Site Audit Statement prepared by a NSW EPA accredited auditor is to be submitted to Council, before any above ground work commences certifying that the site is suitable for the intended use. OR Where the preliminary investigations indicate that a detailed environmental site assessment is to be undertaken the detailed site assessment is to be carried out in accordance with the NSW EPA guidelines. (a) Where the detailed environmental site assessment indicates that the site is suitable for the intended use a Site Audit Statement is to be submitted to Council, before any above ground work commences certifying that the site is suitable for the intended use. (b) Where the detailed site assessment states that that a Remediation Action Plan (RAP) is to be undertaken, the RAP is to be prepared in accordance with the NSW EPA guidelines and peer reviewed by a NSW EPA accredited auditor. (c) The site is to be remediated and validated in accordance with the reviewed RAP. Prior to the execution of works associated with the built form of the development (excluding building work directly related to remediation) a Site Audit Statement is to be submitted to Council clearly indicating that the site is suitable for the proposed use. Conditions on the Site Audit Statement shall form part of the consent. (d) Where the Site Audit Statement is subject to conditions that require ongoing review by the Auditor or Council these should be discussed with Council before the Site Audit Statement is issued. (6) FIT OUT OF RETAIL / COMMERCIAL TENANCIES A separate development application must be submitted at the appropriate time for the fitout and use of the ground floor tenancies. The application shall provide details of the layout of the retail tenancies, the location of entry points and the design details of shopfronts. The design of the layout is to ensure transparency, accessibility and activation. (7) REPORTS TO BE COMPLIED WITH The development shall be in accordance with the recommendations of the following reports submitted with the development application. (a) Access Report, prepared by Morris - Goding dated 16 June 2006. (b) Acoustic Report prepared by Acoustic Logic Consultancy, dated 7 June 2006. (c) Wind and Reflectivity Report prepared by Heggies, dated 31 October 2007. (d) Traffic Noise Report, prepared by Acoustic Logic Consultancy, dated 7 June 2006. (Section 96 Amendment 2 November 2007) (8) SECTION 94 EASTERN PRECINCT CITY OF SYDNEY DEVELOPMENT CONTRIBUTIONS PLAN 2006 As a consequence of this development, Council has identified an additional demand for public amenities and facilities. Pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended ), and City of Sydney Section 94 Contributions Development Contributions Plan 2006 the following monetary contributions towards the cost of providing facilities and amenities are required. Contribution Category Amount Community Facilities $35,278.60 Public Domain $50,352.10 New Open Space $409,681.32 Accessibility $4,132.28 Management $4,469.26 Total $503,913.56 The above payments will be adjusted according to the relative change in the Consumer Price Index using the following formula. Contributions at Time of Payment = C x CPI2 / CPI1 where: C is the original contribution amount as shown above; CPI2 is the Consumer Price Index: All Groups Index for Sydney available from the Australian Bureau of statistics at the time of payment; and CPI1 is the Consumer Price Index: All Groups Index for Sydney available from the Australian Bureau of Statistics at the date of calculation being - December 2006 155.8 . The contribution must be paid prior to the issue of a Construction Certificate. Payment may be by EFTPOS (debit card only), CASH or a BANK CHEQUE made payable to the City of Sydney. Personal or company cheques will not be accepted. Please contact Council's Planning Administration staff to confirm the amount payable, prior to payment. Copies of the City of Sydney Section 94 Development Contributions Plan 2006 may be inspected at Council's offices. (Amended by the Land and Environment Court in proceedings no 10584 of 2009, D/2006/1083/F) (9) CAR PARKING SPACES AND DIMENSIONS A maximum of 62 off-street car parking spaces must be provided. The design, layout, signage, line marking, lighting and physical controls of all off-street parking facilities must comply with the minimum requirements of Australian Standard AS/NZS 2890.1 - 2004 Parking facilities Part 1: Off-street car parking and Council's Development Control Plan. The details must be submitted to and approved by the Principal Certifying Authority prior to a Construction Certificate being issued. (10) ACCESSIBLE CAR PARKING SPACES Of the required car parking spaces, at least 8 must be 3.2m x 5.5m minimum (with a minimum headroom of 2.5m) and must be clearly marked and appropriately located as accessible parking for people with mobility impairment. The design and layout of accessible car parking for people with mobility impairment is to be provided in accordance with Australian Standard AS/NZS 2890.1 - 2004 Parking facilities Part 1: Off-street car parking and the 'City of Sydney Access Development Control Plan 2004. The details must be submitted to and approved by the Principal Certifying Authority prior to a Construction Certificate being issued. (11) SERVICE VEHICLE SIZE LIMIT The size of vehicles servicing the property must be a maximum length of 6m. (12) COST OF SIGNPOSTING All cost of signposting for any kerbside parking restrictions and traffic management measures associated with the development shall be borne by the developer. (13) TREES (a) The Paperbark trees (No's 1 and 6) identified in the submitted Arborist Report by Tree Wise Men located in Waterloo Street and Adelaide Street, Surry Hills are approved for removal. (b) Tree No's 1 and 6 are to be replaced consistent with the City's Street Tree Masterplan - Golden Robinia ( Robinia psuedoacacia 'Frisia' ). The Minimum size of the replacement trees is 100 litres that conform to Natspec requirements. (c) General street tree protection for trees located adjacent to the site is to be installed and supervised by a qualified arborist prior to any construction work commencing. Protection measures are to be implemented as identified in the submitted arborist report (attachment D) by Tree Wise Men dated October 2006. (d) Tree protection for street trees located adjacent to the site is to be installed and supervised by a qualified arborist prior to any scaffold/hoarding being erected. Protection measures are to be implemented as identified in the submitted arborist report (attachment G) by Tree Wise Men dated October 2006. (e) All recommendations contained in the Arborist's Report prepared by Tree Wise Men dated October 2006, must be implemented during construction and use of the development. (14) TREE PROTECTION DURING CONSTRUCTION Stockpiling, storage or mixing of materials, washing of equipment, vehicle parking, disposal of liquids, machinery repairs and refuelling, disposal of building materials such as cement slurry, siting of offices or sheds and the lighting of fires, must not occur within 5m of the trunk of any tree to be retained. (15) STREET TREE HOARDING PROTECTION Street trees must be protected during the erection of hoarding and construction works as follows: (a) Tree trunk and major limb protection must be undertaken before or during the installation of the hoarding. The protection must: (i) be installed by a qualified arborist (AQF Level 3); and (ii) include the wrapping of the tree's trunk with hessian or similar material to limit damage to the trunk and major branches, within 0.5m of the hoarding. (b) Materials or goods, including site sheds, must not be stored or placed: (i) around or under the tree canopy; or (ii) within two (2) metres of tree trunks or branches. (c) Protective fencing (1.8 metre chain wire mesh fencing) must be erected on top of the hoarding to protect branches during the construction works. (16) ENCROACHMENTS In accordance with Council's requirements, any balconies, bay windows, sun blinds and architectural façade features are not to encroach upon the alignment of the public way in excess of 450mm. (17) LIGHTING SPECIFICATIONS The following lighting specifications are required to be implemented as part of the Planning Agreement. (a) The pole and luminaire specification for lighting along Adelaide Place to that which is existing, including the use of 35W CDMT metal halide lamps. (b) Vertical imminence calculations are required to be submitted for Waterloo Street. (18) DESIGN DETAILS (MAJOR DEVELOPMENT) The design details of the proposed building facade including all external finishes, colours and glazing must be in accordance with the materials schedule and sample board, and specifications prepared by Frost Architecture dated June 2006 Candalepas Associates, dated October 2007 April 2008. (Section 96 Amendment 2 November 2007) (Section 96 Modification - D/2006/1083/D - 1 September 2008)

(19) PROHIBITION ON PARTICIPATION IN RESIDENT PARKING PERMIT SCHEME All owners, tenants and occupiers of this building are not eligible to participate in any existing or proposed Council on-street resident parking schemes. The owner of the dwelling must advise in writing all intending owners, tenants and occupiers of the dwelling, at the time of entering into a purchase / lease / occupancy agreement, of this prohibition. (20) SIGNAGE TO INDICATE NON PARTICIPATION IN RESIDENT PARKING PERMIT SCHEME Signs reading 'all owners, tenants and occupiers of this building are advised that they are not eligible to obtain an on-street resident parking permit from Council' must be located in prominent places such as at display apartments and on all directory boards or notice boards, where they can easily be observed and read by people entering the building. The signs must be erected prior to an Occupation Certificate being issued and must be maintained in good order at all times.

(21) SECURITY GATES Where a car park is accessed by a security gate, that gate must be located at least 6 metres within the site from the street front property boundary. The security gate is to be operated by remote control. (22) SIGNS AT EGRESS Appropriate sign(s) must be provided and maintained within the site at the point(s) of vehicular egress, compelling drivers to stop before proceeding onto the public way. (23) VEHICLES ENTER/LEAVE IN FORWARD DIRECTION All vehicles must always be driven onto and off the site in a forward direction. (24) ALLOCATION FOR VISITOR PARKING The visitor parking spaces must not at any time be allocated, sold or leased to an individual owner/occupier and must be strictly retained as common property by the Owners Corporation. (25) LOCATION OF VISITOR PARKING All visitor parking spaces must be grouped together, and located at the most convenient location to the car parking entrance. All spaces must be clearly marked 'visitor' prior to the issue of an occupation certificate. (26) INTERCOM FOR VISITORS The visitor spaces must be accessible to visitors by the location of an intercom (or card controller system) at the car park entry and at least 7m clear of the kerb line, wired to all units (prior to an Occupation Certificate being issued). (27) SIGN FOR VISITOR PARKING A sign, legible from the street, must be permanently displayed to indicate the availability of visitor parking. (28) ALLOCATION OF ACCESSIBLE CAR PARKING SPACES For residential development, accessible car parking spaces for people with mobility impairment are only to be allocated as visitor parking or to adaptable units. Where allocated to adaptable units, the unit(s) and car spaces must be linked in any future strata subdivision of the building. (29) BICYCLE PARKING The layout, design and security of bicycle facilities either on-street or off-street must comply with the minimum requirements of Australian Standard AS 2890.3 - 1993 Parking Facilities Part 3: Bicycle Parking Facilities except that: (a) all bicycle parking for occupants of residential buildings must be Class 1 bicycle lockers, and (b) all bicycle parking for staff / employees of any land uses must be Class 2 bicycle facilities, and (c) all bicycle parking for visitors of any land uses must be Class 3 bicycle rails. (30) LOADING WITHIN SITE All loading and unloading operations associated with servicing the site must be carried out within the confines of the site, at all times (and must not obstruct other properties/units or the public way). (31) LOADING/PARKING KEPT CLEAR At all times the service vehicle docks, car parking spaces and access driveways must be kept clear of goods and must not be used for storage purposes, including garbage storage. (32) TRAFFIC WORKS Any proposals for alterations to the public road, involving traffic and parking arrangements, must be designed in accordance with RTA Technical Directives and must be referred to the Sydney Traffic Committee for approval prior to any work commencing on site. (33) ASSOCIATED ROADWAY COSTS All costs associated with the construction of any new road works including kerb and gutter, road pavement, drainage system and footway shall be borne by the developer. The new road works must be designed and constructed in accordance with the City's "Development Specification for Civil Works Design and Construction". (34) LANDSCAPING OF THE SITE (a) A detailed landscape plan, drawn to scale, by a landscape architect or approved landscape consultant, must be submitted to and approved by Council prior to a Construction Certificate being issued. The plan must include: (i) Location of existing and proposed structures on the site including existing trees (if applicable); (ii) Details of earthworks including mounding and retaining walls and planter boxes (if applicable); (iii) Location, numbers and type of plant species; (iv) Details of planting procedure and maintenance; (v) Details of drainage and watering systems. All landscaping in the approved plan is to be completed prior to and Occupation Certificate being issued. (b) Prior to a Construction Certificate being issued, a maintenance plan is to be submitted for approval of the Principal Certifying Authority and complied with during occupation of the property. (35) SIGNS - SEPARATE DA REQUIRED A separate development application for any proposed signs (other than exempt or complying signs under Council's exempt and complying DCPs) which are either externally fitted or applied must be submitted for the approval of Council prior to the erection or display of any such signs. (36) REMOVAL OF GRAFFITI The owner/manager of the site must be responsible for the removal of all graffiti from the building within 48 hours of its application. (37) NO SPRUIKING/AMPLIFIED NOISE No persons (such as those commonly known as spruikers) or recordings or other devices which have the effect of spruiking are to be located on Council owned property. Furthermore, the sound level of any spruiking or amplified noise generated within privately owned land must not be audible on Council's footpath adjoining the subject property. (38) SHOP FRONTS (a) All shop front glazing must be clear and untinted and must not be obscured by blinds, curtains or the like. (b) Security roller shutters must not be installed on the outside of the shop front. Any security grill to be located on the inside of the shop front must be an open grille and see through and not a solid metal type. Details are to be submitted to Council or the Principal Certifying Authority prior to a Construction Certificate being issued. (39) WASTE AND RECYCLING COLLECTION (a) The collection of waste and recycling must only occur between 7.00am and 8.00pm weekdays and 9.00am and 5.00pm weekends and public holidays, to avoid noise disruption to the surrounding area. (b) Garbage and recycling must not be placed on the street for collection more than half an hour before the scheduled collection time. Bins and containers are to be removed from the street within half an hour of collection. (40) CARE OF BUILDING SURROUNDS In addition to Council's daily street sweeping and cleansing operations, the owner/manager of the building shall ensure that the forecourt and the surrounds of the building including pavements and gutters are to be kept clean and free of litter at all times. (41) NOISE - USE Noise caused by the approved use including music and other activities must comply with the following criteria: (a) The use must not result in the transmission of " offensive noise " as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy. (b) The L10 noise level emitted from the use must not exceed 5dB above the background (L90) noise level in any Octave Band Centre Frequency (31.5 Hz to 8 k Hz inclusive) between the hours of 7.00am and 12.00 midnight when assessed at the boundary of the nearest affected property. The background noise level must be measured in the absence of noise emitted from the use. (c) The L10 noise level emitted from the use must not exceed the background (L90) noise level in any Octave Band Centre Frequency (31.5 Hz to 8 k Hz inclusive) between the hours of 12.00 midnight and 7.00am when assessed at the boundary of the nearest affected property. The background noise level must be measured in the absence of noise emitted from the use. (d) Notwithstanding compliance with (a) and (b) above, the noise from the use must not be audible within any habitable room in any residential property between the hours of 12.00 midnight and 7.00am. (42) NOISE - MECHANICAL PLANT Noise associated with mechanical plant must not give rise to any one or more of the following: (a) Transmission of " offensive noise " as defined in the Protection of the Environment Operations Act 1997 to any place of different occupancy. (b) An indoor LAeq sound pressure level contribution in any place of different occupancy greater than 3 dB(A) above the L90 background level in any octave band from 31.5 Hz to 9 kHz centre frequencies inclusive between the hours of 7am to midnight and 0 dB(A) above the L90 background level in any octave band from 31.5 Hz to 9 KHz centre frequencies inclusive between the hours of midnight to 7am the following morning. However, when the L90 background levels in frequencies below 63 Hz are equal to or below the threshold of hearing, as specified by the equal loudness contours for octave bands of noise, this subclause does not apply to any such frequencies. (43) AIR CONDITIONERS IN RESIDENTIAL BUILDINGS The air conditioner/s must not: (a) Emit noise that is audible within a habitable room in any other residential property (regardless of whether any door or window to that room is open): (i) before 8.00am and after 10.00pm on any Saturday, Sunday or public holiday; or (ii) before 7.00am and after 10.00pm on any other day. (b) emit a sound pressure level when measured at the boundary of any other residential property, at a time other than those specified in (i) and (ii) above, which exceeds the background (LA90, 15 minute) by more than 5dB(A). The source noise level must be measured as a LAeq 15 minute. (44) EXTERNAL LIGHTING A separate development application is required to be lodged and approved prior to any external floodlighting or illumination of the building or site landscaping. SCHEDULE 1B Prior to Construction Certification/Commencement of Work/Health and Building Note: Prior to the issue of the Construction Certificate, sufficient information must be forwarded to the certifying authority (whether Council or a private accredited certifier) illustrating compliance with the relevant requirements of the Building Code of Australia (and a copy forwarded to Council where Council is not the certifying authority). If Council is to be the certifying authority, please contact the Building Unit to discuss the requirements prior to submission of the application for construction certificate. (45) DEMOLITION/SITE RECTIFICATION (if cost is under $50m) The following conditions apply to the development: (a) Demolition or excavation must not commence until a Construction Certificate has been issued for construction of the substantive building. (b) Prior to the Construction Certificate being issued, documentary evidence must be provided to Council that the owner of the site has entered into a Deed with Council, the cost of preparation and execution of such Deed (including stamp duty and registration fees) to be borne by the applicant, which contains such conditions as the Council reasonably requires to ensure the matters set out in this condition are adequately provided for. (c) Without limiting the generality of paragraph (b), the Deed must provide for: (i) a bank guarantee to be provided in the sum of $419,500 dollars as security for the costs of such works provided that: a. the maximum liability under the Deed must not exceed $419,500 dollars; and b. the Council may accept a lesser amount as security if substantiated by detailed design and Quantity Surveyor costing for works which meet the objectives of the condition. (ii) Council to be given sufficient contractual rights to be able to ensure that in any of the following events namely: a. demolition of the existing building has commenced but not been completed; b. the existing building has been demolished; or c. the site has been excavated; or d. the structure has commenced to be erected; that it, or any person authorised by it, may enter the site and carry out such works at the cost of the applicant (or such other person as the consent authority may approve) as may be then appropriate in the circumstances in each of the abovementioned events, to: e. make the building safe and attractive at ground level; f. allow the ground level to be landscaped and made attractive from any public vantage point; or g. for the hole to be covered to allow it to be landscaped and made attractive from any public vantage point; or h. in the event that the new building is constructed beyond the ground floor, to allow any hoardings to be removed and the ground floor development to be completed to a tenantable stage; AND to call on such bank guarantee to cover the cost thereof. (d) If the site is commenced to be developed and there is suspension in activity for 6 months (or suspensions of activity which in the aggregate exceed 6 months), resulting in an unattractive building site appearance, then the Council will have the readily enforceable rights to: (i) require certain works including but not limited to those works necessary to achieve the results referred to in sub-clause (c) (ii)e - h to take place on the site; and (ii) in the event of default, must have the right to enter and carry out these works and to call upon security in the nature of a bank guarantee to cover the cost of the works. (e) The Deed may provide for the release of the Bank Guarantee at such time that the Final Occupation Certificate for the approved development is released. If the approved development also relates to works to existing buildings, the relevant Final Occupation Certificate is the one that relates to that part of the approved development which involves the demolition and new construction. (46) ADEQUATE PROVISION FOR MECHANICAL VENTILATION Adequate provision should be made for the installation of mechanical exhaust ventilation for future food premises where cooking heating or similar food preparation is to be carried out. (47) FOOTPATH DAMAGE BANK GUARANTEE Prior to a Construction Certificate being issued the owner of the site must provide a bank guarantee for the sum $85,800 dollars equivalent to 85.8m of footway adjacent to the Waterloo Street frontage and the Adelaide Street frontage of the development site, as security for rectification of any damage to the public way. (48) PHOTOGRAPHIC ARCHIVAL DOCUMENTATION - MAJOR WORKS Procedure For buildings or structures with heritage significance, the archival documentation, and the number and type of selected enlarged photographs required in (a(ii)) will be determined by the significance and quality of the building or structure. Refer to Council's Heritage Specialist to determine the particular architectural/design features of the building/site that may need to be recorded. This information will then provide the scope of work for the applicant's photographer. For buildings or structures with no heritage significance the archival documentation requirements are less comprehensive, and may just be limited to contextual and exterior photographs only. However, this will depend upon the type, complexity and significance of the building, and should be confirmed with the Area Planning Manager, and if necessary Council's Heritage Architect. It should be noted that for both categories of building, a two stage process applies. Stage 1 is the briefing and photographic documentation onto B&W contact sheets and slides. Stage 2 is the selection of and production of B&W enlargements] (a) Archival recording for deposit in the City of Sydney Archives must be carried out prior to the removal of any significant building fabric or furnishings from the site, during the removal of fabric on site that exposes significant building fabric or furnishings, and after work has been completed on site, as considered appropriate by the conservation architect commissioned for the project. (b) The archival record of significant building fabric or furnishings at the site must be submitted to and approved by Council prior to the commencement of any work on site and prior to a Construction Certificate being issued. (c) The archival record of significant building fabric or furnishings that is exposed during demolition or construction and after work has been completed on site is required to be submitted to Council prior to an Occupation Certificate being issued. (d) The form of recording is to be a photographic documentation of the site and its context, and the exteriors and interiors of the existing building(s) photographed, where appropriate, using a camera/lens capable of 'perspective correction', comprising: (i) 35mm colour slides, numbered and referenced to the site and building plans, and presented in archival quality storage sheets; (ii) 35mm or 120mm black and white film, numbered and referenced to the site and building plans, with negatives developed to archival standards, and one copy of a contact sheet printed on fibre-based paper to archival standards; (iii) selective black and white enlargements to be advised by Council , printed on fibre-based paper to archival standards to a minimum size of 20cm x 25cm, illustrating the location and context of the site/building, the relationship of adjacent buildings, building elevations, and important interior and exterior architectural spaces and features of the building/site; (e) A summary report of the photographic documentation, detailing; (i) the project description, method of documentation, and any limitations of the photographic record; (ii) written confirmation that development and printing is of archival quality; and (iii) photographic catalogue sheets, which are referenced to a site plan and floor plans no larger than A3, and indicating the location and direction of all photos (black & white prints and slides) taken. (f) Written confirmation that the Council reserves the right to use the photographs for its own purposes and for genuine research purposes. (49) WASTE AND RECYCLING MANAGEMENT - RESIDENTIAL (a) A Waste Management Plan is to be submitted for the approval of Council prior to a Construction Certificate being issued. The plan must comply with the Council's Policy for Waste Minimisation in New Developments 2005 . All requirements of the approved Waste Management Plan must be implemented during construction of the development. The Waste Management Plan is to detail the nature and location of an appropriate off street standing / storage area to facilitate Council's domestic waste collection service from Waterloo Street. (b) The building must incorporate designated areas or separate garbage rooms constructed in accordance with Council's Draft Policy for Waste Minimisation in New Developments 2005 , to facilitate the separation of commercial waste and recycling from residential waste and recycling. UPON COMPLETION OF THE DEVELOPMENT (c) Prior to an Occupation Certificate being issued, the Principal Certifying Authority must obtain Council's approval of the waste and recycling management facilities provided in the development and ensure arrangements are in place for domestic waste collection by Council. (50) NO DEMOLITION PRIOR TO A CONSTRUCTION CERTIFICATE Demolition or excavation must not commence until a Construction Certificate has been issued for construction of the substantive building . (51) EROSION AND SEDIMENT CONTROL - BETWEEN 250 AND 2,500SQM Prior to the commencement of demolition/excavation/construction work, an Erosion and Sediment Control Plan (ESCP) must be submitted to and be approved by the Principal Certifying Authority. The ESCP must: (a) Conform to the specifications and standards contained in Managing Urban Stormwater : Soils and Construction (Landcom, 2004); the Guidelines for Erosion and Sediment Control on Building Sites (City of Sydney, 2004); and the NSW Protection of the Environment Operations Act 1997. (b) Include a drawing(s) that clearly shows: (i) location of site boundaries and adjoining roads (ii) approximate grades and indications of direction(s) of fall (iii) approximate location of trees and other vegetation, showing items for removal or retention (iv) location of site access, proposed roads and other impervious areas (v) existing and proposed drainage patterns with stormwater discharge points (vi) north point and scale (c) Specify how soil conservation measures will be conducted on site including: (i) timing of works (ii) locations of lands where a protective ground cover will, as far as is practicable, be maintained (iii) access protection measures (iv) nature and extent of earthworks, including the amount of any cut and fill (v) where applicable, the diversion of runoff from upslope lands around the disturbed areas (vi) location of all soil and other material stockpiles including topsoil storage, protection and reuse methodology (vii) procedures by which stormwater is to be collected and treated prior to discharge including details of any proposed pollution control device(s) (viii) frequency and nature of any maintenance program (ix) other site-specific soil or water conservation structures. (52) TEMPORARY GROUND ANCHORS, TEMPORARY SHORING AND PERMANENT BASEMENT/RETAINING WALLS For temporary shoring, a separate application under Section 68 of the Local Government Act 1993 must be lodged to Council. For temporary ground anchors projecting under the road reserve, a separate application under Section 138 of the Roads Act 1993 must be lodged with Council. For new permanent basement wall/s or other ground retaining elements (not being anchors projecting under the road reserve):- (a) Prior to a Construction Certificate being issued, the following documents must be submitted to the Principal Certifying Authority (PCA) and a copy to Council (if Council is not the PCA): (i) Dilapidation Report of adjoining buildings/structures. (ii) Evidence that public utility services have been investigated. (b) If adjoining a Public Way: (i) Evidence of a $10 million dollar public liability insurance policy specifically indemnifying the City of Sydney, valid for at least the duration of the project. The original document must be submitted to Council. (ii) Bank guarantee in accordance with the Council's fees and charges. The original document must be submitted to Council. (c) Prior to commencement of work: (i) The location of utility services must be fully surveyed and the requirements of the relevant public utility authority complied with; and (ii) The following documents must be submitted satisfactory to the PCA and a copy to Council (if Council is not the PCA): a. Structural drawings and certification as prescribed elsewhere in this consent. b. Geotechnical report and certification as prescribed elsewhere in this consent. (d) Prior to issue of Occupation Certificate, the Principle Certifying Authority must receive written and photographic confirmation that the restoration of the public way has been complete in accordance with the following: (i) All ground anchors must be de-stressed and isolated from the building prior to completion of the project. (ii) The temporary structure, including foundation blocks, anchors and piers must be removed above and below the public way, prior to completion of project, down to a depth of 2m. (iii) All timber must be removed. (iv) All voids must be backfilled with stabilised sand (14 parts sand to 1 part cement). (v) All costs for any reinstatement of the public way made necessary because of an unstable, damaged or uneven surface to the public way must be borne by the owner of the land approved for works under this consent. (e) The Bank Guarantee may be released after the Private Certifier submits certification to Council that all the works described in (d) above have been completed and that there is no remaining instability, damage or unevenness to the Public Domain as a result of the Development. This certification is to include relevant photographs and must be to the satisfaction of the Director City Planning. (53) ASBESTOS REMOVAL All demolition works involving the removal and disposal of asbestos cement must only be undertaken by contractors who hold a current WorkCover Asbestos or "Demolition Licence" and a current WorkCover "Class 2 (Restricted) Asbestos Licence and removal must be carried out in accordance with NOHSC: "Code of Practice for the Safe Removal of Asbestos" and the City of Sydney Asbestos Policy. (54) CLASSIFICATION OF WASTE Prior to the exportation of all waste from the site, the materials must be classified to determine where the waste may be legally taken. The Protection of the Environment Operations Act 1997 provides for the commission of an offence for both the waste owner and the transporters if the waste is taken to a place that cannot lawfully be used as a waste facility. (55) ASBESTOS REMOVAL SIGNAGE Standard commercially manufactured signs containing the words "DANGER ASBESTOS REMOVAL IN PROGRESS" measuring not less than 400mm x 300mm are to be erected in prominent visible positions on the site. (56) SIGNAGE LOCATION AND DETAILS (a) A site notice board must be located at the entrance to the site in a prominent position and must have minimum dimensions of 841mm x 594mm (A1) with any text on the notice to be a minimum of 30 point type size. (b) The site notice board must include the following: (i) contact person for the site; (ii) telephone and facsimile numbers and email address; and (iii) site activities and time frames. (57) NOTIFICATION OF ASBESTOS REMOVAL All adjoining properties and those opposite the development must be notified in writing of the dates and times when asbestos removal is to be conducted. The notification is to identify the licensed asbestos removal contractor and include a contact person for the site together with telephone and facsimile numbers and email address. (58) ELECTRICITY SUBSTATION If required, the owner must dedicate to the applicable energy supplier, free of cost, an area of land within the development site, but not in any landscaped area, to enable an electricity substation to be installed. The size and location of the substation is to be submitted for approval of Council and Energy Australia, prior to a Construction Certificate being issued .

(59) UTILITY SERVICES To ensure that utility authorities are advised of the development: (a) A survey is to be carried out of all utility services within and adjacent to the site including relevant information from utility authorities and excavation if necessary, to determine the position and level of services. (b) Prior to the commencement of work the applicant is to negotiate with the utility authorities (e.g. Energy Australia, Sydney Water, and Telecommunications Carriers) in connection with the relocation and/or adjustment of the services affected by the construction of the underground structure. Any costs in the relocation, adjustment or support of services are to be the responsibility of the developer. (60) NO DEMOLITION PRIOR TO A CONSTRUCTION CERTIFICATE Demolition or excavation must not commence until a Construction Certificate has been issued for construction of the substantive building . Note: The bank guarantee required by this condition does not need to be provided if a separate bank guarantee is lodged as part of an approval for a hoarding over the public way. (61) APPLICATION FOR HOARDINGS AND SCAFFOLDING ON A PUBLIC PLACE (a) A separate application is to be made to Council for Approval under Section 68 of the Local Government Act 1993 to erect a hoarding or scaffolding in a public place and such application is to include:- (i) Architectural, construction and structural details of the design in accordance with the Policy for the Design and Construction of Hoarding (September 1997) and the Guidelines for Temporary Protective Structures ( April 2001). (ii) Structural certification prepared and signed by an appropriately qualified practising structural Engineer. (iii) Evidence of the issue of a Structural Works Inspection Certificate and structural certification will be required prior to the commencement of demolition or construction works on site. (iv) Assessment of the impacts of construction and final design upon the City of Sydney's street furniture such as bus shelters, phone booths, bollards and litter bins and JCDecaux street furniture including kiosks, bus shelters, phones, poster bollards, bench seats and littler bins. The applicant is responsible for the cost of removal, storage and reinstallation of any of the above as a result of the erection of the hoarding. In addition, the applicant will be responsible for meeting Council's lost revenue as a result of the removal of street furniture. Costing details will be provided by Council. The applicant must also seek permission from the telecommunications carrier (eg Telstra) for the removal of any public telephone. (b) Should the hoarding obstruct the operation of Council's CCTV Cameras, the applicant shall relocate or replace the CCTV camera within the hoarding or to an alternative position as determined by Council's Contracts and Asset Management Unit for the duration of the construction of the development. The cost of relocating or replacing the CCTV camera is to be borne by the applicant. Further information and a map of the CCTV cameras is available by contacting Council's CCTV Unit on 9265 9232. (c) The hoarding must comply with the Councils policies for hoardings and temporary structure on the public way and graffiti must be removed from the hoarding within one working day. (62) BARRICADE PERMIT Where construction/building works require the use of a public place including a road or footpath, approval under Section 68 of the Local Government Act 1993 for a Barricade Permit is to be obtained from Council prior to the commencement of work. Details of the barricade construction, area of enclosure and period of work are required to be submitted to the satisfaction of Council. (63) STRATA SUBDIVISION - APPROVAL OF STRATA PLAN REQUIRED Any proposal to strata sub-divide the development will require a separate application must be made to Council or an accredited certifier to obtain approval of the strata plan under section 37 of the Strata Schemes (Freehold Development) Act 1973. (64) LAND SUBDIVISION - SEPARATE DA REQUIRED Any proposal to sub-divide the site will require a land subdivision requires separate development consent and therefore the lodgment of a separate development application and subsequent approval from the Council of the plan of subdivision under Part 4A of the Environmental Planning and Assessment Act 1979 . (65) LOT CONSOLIDATION All land titles within the site must be consolidated into one lot. A plan of consolidation must be registered with the Land and Property Information Division of the Department of Lands, prior to an Occupation Certificate being issued. (66) PUBLIC DOMAIN PLAN Three copies of a detailed Public Domain Plan must be prepared by an architect, urban designer or landscape architect and must be approved by Council (to be lodged with the Public Domain Section) prior to a Construction Certificate being issued. It is recommended that draft plans should be submitted for comment prior to formal submission for approval. The Public Domain Plan must be prepared in accordance with the City of Sydney's Public Domain Manual. (67) ALIGNMENT LEVELS (a) Prior to a Construction Certificate being issued, footpath alignment levels for the building must be submitted to Council for approval. This submission must be accompanied by a plan prepared by a Registered Surveyor showing the existing location, size and levels (AHD) of all service covers, trees, poles and street furniture, kerb, gutter and alignment levels of 10m cross sections, alignment levels at proposed and existing vehicular and/or pedestrian entrances within the footway adjacent to and extending 20 metres past either side of the site. (b) These alignment levels, as approved by Council, are then to be incorporated into the plans submitted with the application for a Construction Certificate. (68) PAVING MATERIALS The surface of any material used or proposed to be used for the paving of colonnades, thoroughfares, plazas, arcades and the like which are used by the public must comply with AS/NZS 4586:2004 (including amendments) "Slip resistance classification of new pedestrian surface materials". (69) RECEPTACLES FOR CIGARETTE BUTTS An adequate number of receptacles for the disposal of cigarette butts are to be provided on the site, adjacent to the entrance/s to the building. Prior to a Construction Certificate being issued, the location and design of the receptacle/s must be approved by Council. The receptacle/s must: (a) be located entirely on private property and must not be located on or over Council's footpath; (b) not obstruct any required means of egress or path of travel from the building required by the Building Code of Australia ; (c) be appropriately secured to the building; The emptying and maintenance of the receptacle/s must be done on a daily basis and is the responsibility of the building owner/manager and will not be undertaken by Council. (70) STORMWATER AND DRAINAGE - MAJOR DEVELOPMENT On-site detention, treatment and re-use is encouraged. (a) Prior to a Construction Certificate being issued, details of the proposed stormwater disposal and drainage from the development including a system of on-site stormwater detention in accordance with Council's standard requirements and details of the provision and maintenance of overland flow paths must be submitted to and approved by Council. All approved details for the disposal of stormwater and drainage are to be implemented in the development. (b) Any proposed connection to the Council's underground drainage system will require the owner to enter into a Deed of Agreement with the Council and obtain registration on Title of a Positive Covenant prior to Construction Certificate being issued and prior to the commencement of any work within the public way. (c) The requirements of Sydney Water with regard to the on site detention of stormwater must be ascertained and complied with. Evidence of the approval of Sydney Water to the on-site detention must be submitted prior to a Construction Certificate being issued. (d) An "Application for Approval of Stormwater Drainage Connections" must be submitted to the Council with the appropriate fee at the time of lodgement of the proposal for connection of stormwater to the Council's drainage system. (71) MECHANICAL VENTILATION The premises must be ventilated in accordance with the Building Code of Australia and Council's Ventilation Code . (b) Details of any mechanical ventilation and/or air conditioning system complying with Council's Ventilation Code , the Building Code of Australia and relevant Australian Standards must be prepared by a suitably qualified person certified and certified in accordance with Clause A2.2(a)(iii) of the Building Code of Australia, to the satisfaction of the Certifying Authority prior to the issue of a Construction Certificate. (c) Prior to issue of an Occupation Certificate and following the completion, installation, and testing of all the mechanical ventilation systems, a Mechanical Ventilation Certificate of Completion and Performance in accordance with Clause A2.2(a)(iii) of the Building Code of Australia, must be submitted to the Principal Certifying Authority. SCHEDULE 1C During Construction/Prior to Occupation/Completion (72) RIGHT OF CARRIAGEWAY Prior to the issue of an Occupation Certificate for the development, a documentary Right of Carriageway is to be created over the basement level trafficable aisles and vehicle entry ramp from Waterloo Street providing access to and from the basement car park of the building adjoining to the east of the subject site, being No 1-25 Adelaide Street. The Right of Carriageway is to be registered on Title of the subject site and is to be created appurtenant to the adjoining property, Lot 1 in DP 1095397, is to be appropriately defined in stratum, limited to the structure of the ramps and aisles of the subject building, in terms granting unrestricted rights of vehicle access and the vehicle occupants in the event of any emergency and to Council's satisfaction." (73) OCCUPATION CERTIFICATE TO BE SUBMITTED An Occupation Certificate must be obtained from the Principal Certifying Authority and a copy submitted to Council prior to commencement of occupation or use of the whole or any part of a new building, an altered portion of, or an extension to an existing building. (74) BASIX All commitments listed in each relevant BASIX Certificate for the development must be fulfilled prior to an Occupation Certificate being issued. (75) HOURS OF WORK AND NOISE - OUTSIDE CBD The hours of construction and work on the development must be as follows: (a) All work, including building/demolition and excavation work, and activities in the vicinity of the site generating noise associated with preparation for the commencement of work (eg. loading and unloading of goods, transferring of tools etc) in connection with the proposed development must only be carried out between the hours of 7.30am and 5.30pm on Mondays to Fridays, inclusive, and 7.30am and 3.30pm on Saturdays, with safety inspections being permitted at 7.00am on work days, and no work must be carried out on Sundays or public holidays. (b) All work, including demolition, excavation and building work must comply with the City of Sydney Building Sites Noise Code and Australian Standard 2436 - 1981 "Guide to Noise Control on Construction, Maintenance and Demolition Sites". (76) SYDNEY WATER CERTIFICATE A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation. Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section on the web site www.sydneywater.com.au then refer to "Water Servicing Coordinator" under "Developing Your Land" or telephone 13 20 92 for assistance. Following application a "Notice of Requirements" will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to Council or the Principal Certifying Authority prior to an Occupation Certificate or subdivision/strata certificate being issued. (77) EROSION AND SEDIMENT CONTROL The Soil and Water Management Plan (SWMP) or Erosion and Sediment Control Plan (ESCP) which has been approved by the Principal Certifying Authority must be implemented in full during the construction period. During the construction period; (a) erosion and sediment controls must be regularly inspected, repaired and maintained in working order sufficient for a 10 year Average Recurrence Interval (ARI) rainfall event; (b) erosion and sediment control signage available from Council must be completed and attached to the most prominent structure visible at all times when entering the site for the duration of construction; and (c) building operations and stockpiles must not be located on the public footway or any other locations which could lead to the discharge of materials into the stormwater system. (78) PROTECTION OF STREET TREES DURING CONSTRUCTION All street trees adjacent to the site not approved for removal must be protected at all times during demolition and construction, in accordance with Council's Tree Preservation Order. Details of the methods of protection must be submitted to and be approved by Council prior to the issue of the Construction Certificate and such approval should be forwarded to the Principal Certifying Authority. All approved protection measures must be maintained for the duration of construction and any tree on the footpath which is damaged or removed during construction must be replaced. (79) COVERING OF LOADS All vehicles involved in the excavation and/or demolition process and departing the property with demolition materials, spoil or loose matter must have their loads fully covered before entering the public roadway. (80) VEHICLE CLEANSING Prior to the commencement of work, suitable measures are to be implemented to ensure that sediment and other materials are not tracked onto the roadway by vehicles leaving the site. It is an offence to allow, permit or cause materials to pollute or be placed in a position from which they may pollute waters. (81) LOADING AND UNLOADING DURING CONSTRUCTION The following requirements apply: (a) All loading and unloading associated with construction must be accommodated on site. (b) A Works Zone is required if loading and unloading is not possible on site. If a Works Zone is warranted an application must be made to Council prior to commencement of work on the site. An approval for a Works Zone may be given for a specific period and certain hours of the days to meet the particular need for the site for such facilities at various stages of construction. The approval will be reviewed periodically for any adjustment necessitated by the progress of the construction activities. (c) The structural design of the building must permit the basement and/or the ground floor to be used as a loading and unloading area for the construction of the remainder of the development. (d) If, during excavation, it is not feasible for loading and unloading to take place on site, a Works Zone on the street may be considered by Council. (e) In addition to any approved construction zone, provision must be made for loading and unloading to be accommodated on site once the development has reached ground level. (82) NO OBSTRUCTION OF PUBLIC WAY The public way must not be obstructed by any materials, vehicles, refuse, skips or the like, under any circumstances. Non-compliance with this requirement will result in the issue of a notice by Council to stop all work on site. (83) ACCESS DRIVEWAYS TO BE CONSTRUCTED Approved concrete driveways are to be constructed for all vehicular access to the construction site in accordance with the requirements of Council's "Driveway Specifications" to the satisfaction of Council. (84) USE OF MOBILE CRANES The following requirements apply: (a) For special operations including the delivery of materials, hoisting of plant and equipment and erection and dismantling of on site tower cranes which warrant the on-street use of mobile cranes, permits must be obtained from Council for the use of a mobile crane. The permits must be obtained 48 hours beforehand for partial road closures which, in the opinion of Council will create minimal traffic disruptions and 4 weeks beforehand in the case of full road closures and partial road closures which, in the opinion of Council, will create significant traffic disruptions. (b) Mobile cranes operating from the road must not be used as a method of demolishing or constructing a building. (c) Special operations and the use of mobile cranes must comply with the approved hours of construction. Mobile cranes must not be delivered to the site prior to 7.30am without the prior approval of Council. (85) SURVEY CERTIFICATE AT COMPLETION A Survey Certificate prepared by a Registered Surveyor must be submitted at the completion of the building work certifying the location of the building in relation to the boundaries of the allotment. (86) STREET NUMBERING - MAJOR DEVELOPMENT Prior to an Occupation Certificate being issued, street numbers and the building name must be clearly displayed at either end of the ground level frontage in accordance with the Policy on Numbering of Premises within the City of Sydney . If new street numbers or a change to street numbers is required, a separate application must be made to Council. SCHEDULE 2 The prescribed conditions in accordance with Clause 98 of the Environmental Planning and Assessment Regulation 2000 apply to the development. (87) The prescribed conditions are as follows: (a) The work must be carried out in accordance with the requirements of the Building Code of Australia (as in force on the date the application for the relevant construction certificate is made). (b) This condition does not apply: (i) to the extent to which an exemption is in force under Clause 187 or 188, subject to the terms of any condition or requirement referred to in Clause 187(6) or 188(4) of the Environmental Planning and Assessment Regulation 2000 ; or (ii) to the erection of a temporary building. (88) In the case of residential building work for which the Home Building Act 1989 requires that there be a contract of insurance in force in accordance with Part 6 of that Act, that such a contract of insurance is in force.

              Annelise Tuor
              Commissioner of the Court
              ljr

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Judgment (62 paragraphs)

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Cases Cited (2)