Andary v Council of the City of Sydney

Daniel Bek v Sydney City Council; Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek [2008] NSWLEC 262 Jonah Pty Ltd v Pittwater Council (2006) LGERA 408 CASES CITED: Seaside Properties v Wyong Shire Council [2004] Groeneveld v Wollongong City Council [2009] NSWLEC 149 Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153

DATES OF HEARING: 11/03/10 and 30/06/10, final written submissions 21/07/10

APPLICANT Mr A Gough, solicitor of Storey and Gough LEGAL REPRESENTATIVES: RESPONDENT Mr M Wright, barrister instructed by Mr A Singh of Council of the City of Sydney

THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10754 of 2009 Andary v Council of the City of Sydney

JUDGMENT 1 Commissioner: This is an appeal against the refusal by the Council of the City of Sydney (the council) of development application D/2009/403 (the application) under the Environmental Planning and Assessment Act 1979 (EPA Act) at 536A King Street, Newtown (the site). The application form describes the development as: Continue use of premises as a service station as per South Sydney LEP 1998 and use existing internal mechanical bays for purposes of washing and greasing of vehicles as per service station definition under SSLEP 1998. 2 The main issues in dispute between the parties are whether: i. the primary use of the site is a service station ii. the noise and traffic generated by the car wash will result in acceptable amenity impacts on adjoining residential properties. 3 The parties also disagreed on some conditions of consent and costs under s97B of the EPA Act. The site and its locality 4 The site has a primary frontage to the west on King Street (8.31m), a secondary frontage to the north west on Angel Street (31.24m) and is irregular in shape with an area of about 610sqm. 5 The site is developed with a single storey building, petrol bowsers and signage. Vehicular access to the site is off Angel Street and King Street. The site is approved for use as a service station however, the parties do not agree on the current use, which is discussed later in the judgment. 6 Adjoining development on King Street is a spray painting and smash repairs workshop to the south (538 King Street) and a café to the north on the opposite corner of Angel Street (532-536 King Street). Two residential flat buildings adjoin the site to the east (1 and 15-17 Iredale Street) 7 Development within the vicinity of the site is retail/commercial and shop top housing along King Street and residential flat buildings, single dwelling houses and terraces to the east of King Street. Background 8 A history of relevant approvals for the site is in the Amended Statement of Facts and Contentions (Exhibit 1). On 8 December 1952 the council approved an application for use of the site as a service station and car parking (DA 1052/52). Development applications were subsequently approved for changes and extensions to the service station use, including mechanical repairs (DA265/54) and a workshop (DA 850/62). 9 On 12 May 2008, the council refused a development application (D/2008/31) for alterations and additions to the existing service station to provide a car wash facility, café with outdoor timber decking, corrugated metal fencing on the eastern boundary, signage and awnings. The application was subject of a Class 1 appeal (10708 of 2008) which was discontinued. 10 On 16 September 2008, Sheahan J upheld the council's application in Class 4 proceedings to cease use of the unauthorised car wash (Daniel Bek v Sydney City Council; Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek [2008] NSWLEC 262). 11 The application, the subject of this appeal, was lodged on 25 March 2009 and refused by council on 29 May 2009. A conciliation conference under s34 of the Land and Environment Court Act (LEC Act) was held. The parties did not reach agreement and the s34 conference was terminated. The A/Assistant Registrar granted leave on 4 February 2010 for the applicant to rely on amended plans. 12 The parties agreed to my disposing of the matter under 34(4)(b)(i). The hearing commenced on 11 March 2010 and was adjourned as the applicant was granted leave to rely on further amended plans to provide acoustic measures including a boundary wall and awning over the car wash area (amended application). Council did not oppose the amendments but reserved its rights in respect of costs thrown away as a consequence of the applicant's application to adjourn under s97B of the EPA Act. Due to slippages in the timetable, the hearing continued on 30 June 2010, with written submissions being filed by the applicant on 9 July, the respondent on 16 July and the applicant's submissions in reply on 20 July 2010. Further written submissions were also made on costs. 13 Mr Gough, for the applicant, states that the amended application seeks consent for: the use of two existing internal mechanics bays for the purposes of washing and greasing of vehicles. The proposed hours of operation of the proposed use are 9:00am to 5:00pm, Monday to Sunday inclusive. The proposed use will utilise three (3) vehicle parking spaces adjacent to the eastern boundary. The application further seeks consent to the construction of an acoustic fence along part of the eastern elevation to a height of 3.3 metres, the construction of an acoustic awning over the area directly adjacent to the existing mechanics bays and the construction of a plexiglass acoustic barrier on the north-eastern boundary. The proposed operation of the use is outlined in the Plan of Management dated April 2010. In summation the carwash use will operate in conjunction with the existing service station use. All washing, vacuuming and drying of vehicles will be conducted within the existing mechanics bays. Planning controls 14 The site is zoned Mixed Use 10 under South Sydney Local Environmental Plan 1998 (LEP 1998). Service station and car wash are both permissible, as innominate uses, with consent. 15 Service Station is defined under LEP 1998 as: service station means a building or place used for the fuelling of motor vehicles involving the sale by retail of petrol, oil or other petroleum products, whether or not the building or place is also used for one or more of the following purposes: (a) the hiring of trailers, or (b) the retail selling or the installing of spare parts and accessories for motor vehicles, or (c) the washing and greasing of motor vehicles, or (d) the repairing and servicing of motor vehicles (other than repair or servicing involving body building, panel beating or spray painting), or (e) the retail selling or hiring of small consumer goods. 16 Car wash is not separately defined in LEP 1998. The applicant is not seeking consent to operate a car wash as a separate use but as part of the approved service station use. Mr Gough submits that the purpose of the application is to 'enable vehicles to be washed upon the property without having to use the petrol fuelling services'. He submits that this is necessary due to the definition of 'service station' in LEP 1998. 17 Clause 10 of LEP 1998 provides: Except as otherwise provided by this plan, the Council must not grant consent to the carrying out of development on land to which this plan applies unless the Council is of the opinion that the proposal is consistent with the objectives of the zone within which the land is located. 18 Although not raised as a contention, Mr Wright, for the council, submits that the proposal does not meet the following objectives of the Mixed Use 10 zone: (g) to minimise any adverse impact on residential amenity by devising appropriate design assessment criteria and applying specified impact mitigation requirements by the use of development control plans, and (h) to ensure that the nuisance generated by non-residential development, such as that related to operating hours, noise, loss of privacy, vehicular and pedestrian traffic or other factors, is controlled so as to preserve the quality of life for residents in the area. 19 The site adjoins a 2(b) Residential (Medium Density) Zone under LEP 1998. 20 South Sydney Development Control Plan 1997 (DCP 1997) is also relevant. The evidence 21 The Court visited the site on two occasions and heard evidence from residents on the original and amended application. Their principle concern was that the operation of the commercial car wash had severely impacted upon their amenity, particularly through noise, traffic, water spray and unacceptable behaviour. They stated that the previous operation of the site as a service station had acceptable impacts but that it now operated as a car wash and they disputed whether petrol or other service station activities occurred. They had no confidence that the proposed car wash would operate in accordance with the management plan or that conditions of consent would be complied with. They recognised that the proposed acoustic fence may reduce noise but considered that it increased bulk along their boundary. 22 The Court heard expert evidence from: For the council o Mr T Wise, planning issues o Dr R Tonin, acoustic issues o Mr T Rogers, traffic issues

For the applicant o Mr D O'Toole, planning issues o Mr S Giglio, acoustic issues o Mr R Varga, traffic issues Primary use 23 Mr Wise and Mr O'Toole agree the existing approval permits the use of the site as a service station with two associated mechanical bays. Both experts agree that service station and car wash are both permissible uses within the Mixed Use zone. 24 The key disagreement between the experts centred on whether the service station use would be the dominant use on the site. 25 Mr O'Toole states that: The submitted plans demonstrate that the proposed car wash use will occupy a very small portion of the site compared to the majority of the site which will appear as a service station with the provision of 4 petrol pumps with 7 hoses and a convenience type store typically attached to service station uses. …… It is my opinion that the use of car washing facilities on the site is not the principle use. 26 Mr O'Toole was of the opinion that the definition of service station in LEP 1998 allows the washing of cars to also occur on the site under the existing consent. He considers that the Plan of Management (PoM) outlines the operation of the site for both fuelling of cars and car washing. Although, he acknowledged under cross examination that the PoM could be more specific on matters such as manoeuvring of cars and complaints management but that this could be required as a condition of consent. 27 Mr O'Toole accepts that there will be 'some very minor impacts' to adjoining residents from noise and traffic movements associated with the car wash use, however, in his opinion this would be less than the approved use of the mechanical bays. 28 Mr Wise held the contrary opinion that: The lack of detail in the development application, including no commentary on the premises operation, any signage details and inadequate site plans and floor plans, together with the sites history of unauthorised uses rendered it impossible for Council to consider the application as a service station with an ancillary car wash use. 29 Mr Wise considered that it had not been demonstrated that the car wash would not result in unacceptable noise and traffic impacts. In his opinion the continued operation of the mechanical bays as workshops would have much less impact than a car wash. Further, he stated that: A commercial car wash in this location, in any form, other than the washing of a car after being serviced by a mechanic, would be unacceptable given the site constraints. 30 Mr Wright submits that as a threshold question, the Court must be satisfied that the proposed use is consistent with what is applied for in the development application, which is a continuation of the 'existing service station' use. He submits that the only features of the proposal that fall within the definition of 'service station' under LEP 1998 are the petrol bowsers for the retail sale of fuel and the convenience store. The evidence of the residents is that there is no present 'sale by retail of petrol, oil or petroleum products' and that the proposal will therefore not be a continuation of a service station use. 31 Mr Wright submits that from the evidence, the car wash will be the dominant use of the site or at the very least, an independent use and not ancillary to the service station. Further he submits that there is inadequate evidence to assess the impacts of the proposal.

32 Mr Gough submits that there are no prohibited uses in the Mixed Use 10 zone and the permissibility of the proposal is not dependent upon its characterisation as a 'service station'. Further, he submits that from the evidence the Court would be satisfied that the proposal continues the approved use of the site as a service station that operates the car wash from two internal bays which were approved for mechanical repairs and servicing. Noise and amenity 33 The main concern raised by the residents was the impact of noise on their residential amenity based on the operation of the unauthorised car wash. The application was amended to provide a plexiglass acoustic barrier on the existing brick boundary wall adjoining 1 Iredale Street, a new acoustic fence (3.3m high) adjoining 15-17 Iredale Street and an acoustic awning over the car wash waiting area. Dr Tonin and Mr Giglio recommended conditions which include: o noise criteria for use of the premises and for mechanical plant and equipment, o the vacuum units and water compressors be permanently located within a plant room in the internal car wash bays, o certification that the construction of the acoustic works complies with the specifications, o the operation of the premises should be in accordance with the PoM, and o the washing, active drying, cleaning vacuuming and polishing of cars only take place in the internal car wash bays. 34 The acoustic experts agree that with these measures the noise impacts of the proposal are acceptable. 35 The applicant has agreed to the proposed conditions recommended by the acoustic experts and to operate the premises in accordance with the PoM. However, the draft conditions include additional noise conditions that are in dispute between the parties, which are discussed later in the judgment. 36 Mr Wise was concerned about the visual impact of the proposed acoustic fence which he considered would impinge on the amenity of the neighbouring properties. A wall of this height is considered overbearing and poorly conceived and detracts from neighbouring properties. Further, he was concerned about the cleaning and maintenance of the plexiglass. 37 The owners of 1/1 Iredale Street were also concerned about the visual impact of the proposed plexiglass addition to the existing fence. 38 Mr O'Toole considered that both the acoustic fence and the plexiglass would have an acceptable visual impact. The fence adjoins an area of 15-17 Iredale Street which is used for off street parking and the plexiglass is angled away from the private open space area of 1/1 Iredale Street. He estimated the ground level of the private open space to be about 500mm higher than the ground level of the site. Therefore the overall height of the plexiglass barrier (about 2.5m) when viewed from 1/1 Iredale Street would not be visually intrusive or of excessive bulk. 39 Mr Wright also raised questions as to whether the existing wall upon which the plexiglass barrier is to be constructed is structurally sound and wholly within the site. The acoustic experts agreed that the plexiglass could be supported on a separate structure within the site provided the acoustic integrity of the plexiglass with the fence is maintained. Traffic 40 Mr Varga's initial Statement of Evidence concluded that traffic generated by the carwash: …. is very low, and it is therefore reasonable to conclude that the carwash will not have any unacceptable traffic implications in terms of either road network capacity or residential amenity. 41 Further, Mr Varga stated that the parking for the proposal: ….does not require the provision of any carparking spaces, other than the space required for cars waiting to be washed. That requirement is satisfied by the provision of 3 parking spaces for vehicles waiting to be washed. Although in practical terms it is unlikely that more than 2 waiting bays will be required. Accordingly it is reasonable to conclude that the proposed development will not have any unacceptable parking implications… 42 Mr Varga and Mr Rogers agree that: the Traffic and Parking Statement of Evidence prepared by RV (dated 23 February 2010) demonstrates that the proposed car wash (provided it operates the same as the existing car wash) and the existing service station will not result in any adverse traffic or parking impacts for surrounding residential properties. 43 Mr Varga and Mr Rogers also assessed the amended application and the provision of the awning. They agreed that: …the proposed awning will not affect manoeuvrability into carwash spaces and bays, not will it affect the vehicular accessibility of the site. 44 The traffic experts recommended a number of conditions including that all parking and queuing for the car wash and service station should be provided on site. 45 During cross-examination Mr Wright questioned the experts on the manoeuvring and management of vehicles on site for the car wash and the service station use. He highlighted issues about access to the three angled parking bays and the greasing and servicing of vehicles in the internal car wash area. The traffic experts considered the angled bays to be acceptable except potentially for a large car accessing the eastern parking bay but agreed that the provision of parallel bays would resolve any concern. The traffic experts acknowledged that they had not considered of the use of the carwash bays for other uses and that this may have potential parking implications. The applicant has agreed to conditions requiring parallel bays and that there be no greasing or servicing of cars in the car wash area. 46 Mr Wright raised issues about the potential for cars to queue for long periods (up to an hour) in Angel Street while waiting for a car wash and the potential conflict this may cause. The traffic experts did not accept that cars would wait in Angel Street for protracted periods. Mr Gough refers to the traffic surveys undertaken by Mr Varga of the unauthorised car wash where he observed that: At no time throughout the course of the surveys were there any vehicles waiting or queuing outside the boundaries of the site. The practical operating capacity of the carwash is 4 vehicles per hour. That capacity was reached on a number of occasions between 10:30am-1:30pm on Saturday, however it is noted that all vehicles were fully contained within the site when this occurred. 47 The traffic experts agreed that cars would leave the property if the spaces were full, rather than wait and queue for up to an hour. Although they recognised that if vehicles should occasionally queue out into Angel Street this would be for a short period and result in only a minor impact. 48 The traffic experts were satisfied about the management and manoeuvring of cars within the site and access to the car wash and/or the fuel pumps. They were also not concerned about existing the site via the northern Angel Street exit or entering it off King Street, which are the current situation. Findings 49 The unauthorised operation of the car wash has had unacceptable impacts on the amenity of adjoining neighbours and is not ancillary to the service station use of the site. In Daniel Bek v Sydney City Council; Sydney City Council v Sydney Tool Supplies Pty Ltd & Daniel Bek Sheahan J found at [38] that: …..it is clearly established by the evidence before me that the primary or dominant use of the premises at present is as a carwash/café, which is having significant adverse impacts on the amenity of the adjoining owners most immediately affected.

50 The evidence of the residents and Mr Wise places considerable weight on the operation and impacts of the unauthorised car wash and the unacceptable actions of previous operators. 51 Both Mr Gough and Mr Wright referred to Jonah Pty Ltd v Pittwater Council (2006) LGERA 408, where at [35-38] His Honour states: In undertaking the merit determination of whether to grant or modify a development consent, it is irrelevant to enquire as to who is the current owner/operator, or who might be the future owner/operator, or whether the present owner/operator has in the past acted or used the land unlawfully, or whether the future owner/operator is likely in the future to act or carry out any approved use unlawfully. ……

The above conclusion that mere unlawfulness of past use is not a relevant factor does not mean, however that past use - without any consideration of its unlawfulness cannot ever be relevant.

For instance, past conduct (regardless of whether it is unlawful) may have given rise to unacceptable impacts, such as unacceptable acoustic impacts on adjoining properties. The experience of impacts of the past use could be relevant in evaluating, first, the likely impacts of a prospective use for which consent is sought of the same or similar character, extent, intensity and other features as the past use, secondly, the acceptability of the likely impacts and thirdly, if likely impacts are considered to be unacceptable, the appropriate measures that ought to be adopted to mitigate the likely impacts to an acceptable level. Past use would, therefore be of relevance but it is for proper planning reasons, not because the past use happened to be unlawful. The unlawfulness of the past use is not relevant. 52 Mr Wright submits that The Council does not rely upon the unlawfulness of the past or present use of the site. The Applicant claims that the proposed use is to be a continuation of the present use of the site. The Council therefore relies upon evidence of the present use to demonstrate that the impacts of a continuation of that use will be of similar character, extent and intensity and will have unacceptable adverse impacts…. it is appropriate to consider the past operation of the car wash on the site and its unacceptable impacts on residential amenity. 53 Mr Gough submits that: The proposed use is not of a similar character, extent or intensity to the previous unauthorised use. The evidence of the surrounding residents indicates that vehicles were being washed and vacuumed throughout the site and external to the mechanics bays. The proposed development does not seek approval to wash or vacuum vehicles outside the mechanics bays and seeks to construct an awning and acoustic wall on the eastern boundary. The impacts associated with the prior use of the property are not similar or comparable to the proposed use of the site. The past conduct of the operator is therefore not a relevant planning consideration. 54 Consistent with the decision of Preston CJ in Jonah, the illegal actions of past, present and future owners/operators are an irrelevant enquiry in the consideration of the merits of the application. It must be assumed that an owner/operator will comply with the consent and its conditions. 55 The past unauthorised use of the site, as a car wash is, however, a relevant consideration to assist in the assessment of the likely impacts of the proposal and how these can be mitigated. I acknowledge the concerns of the residents and the submissions of council that a proposal for a car wash that is of similar character, extent or intensity to the previous unauthorised use would be unacceptable. However, the application does not seek approval for the 'continuation of the present use of the site' as a commercial car wash. Rather, it seeks to continue the approved service station use and use the internal mechanical bays for washing of vehicles as shown on the amended plans. 56 I do not accept the evidence of Mr Wise or the submission of Mr Wright that there is inadequate information to assess the application or to determine whether the primary use of the site will remain as a service station. This submission may have been correct in relation to the original application, however, the adjournments, amended plans and further information now provide sufficient detail. While there are some matter which require further resolution, including the PoM, these are not beyond what can appropriately be conditioned as part of any development consent. 57 Mr Wright submits that the threshold question is whether the use is consistent with what is applied for in the development application. He emphasises that the application seeks to 'continue the existing service station use' and that the evidence of the residents is that the site is not now used as a service station. I accept that this is the case which is also the conclusion drawn by Sheahan J. However, I do not understand that the application is seeking to continue the unauthorised use of the site. The approved use of the site is for a service station and the application is seeking to continue this approved use including the washing of cars. 58 Both 'service station' and 'car wash' are permissible uses in the Mixed Use zone under LEP1998. However, the application is not seeking approval for a car wash or for a car wash and service station as two separate uses. To be consistent with what is applied for in the development application, I must be satisfied that the application adequately demonstrates that the service station use will remain the dominant use of the site and that the car wash will not operate as a separate, independent use. 59 Parts of the site will be used for access to the carwash bays and three parking spaces will be provided for cars waiting to be washed. The plans indicate four fuel pumps that can be utilised by eight cars. The evidence of the traffic experts is that the operation of the car wash will not restrict access to or the use of the fuel pumps. The fuelling of motor vehicles must occur on the site for it to be a service station use under the definition in LEP 1998. I am satisfied that the plans indicate that this can feasibly occur. The PoM and conditions specify that the car wash cannot operate unless the service station use is operating, whereas the service station can operate without the car wash. I accept that the proposal, if operated in accordance with the plans, the PoM and the conditions of consent will be a continuation of the service station use and that the car wash will be ancillary to this use. 60 Mr Gough submits that the purpose of the application is to 'enable vehicles to be washed upon the property without having to use the petrol fuelling services'. The definition of 'service station' in LEP 1998 requires the site to be used for the fuelling of motor vehicles involving the sale by retail of petrol, oil or other petroleum products but also allows for the washing… of motor vehicles. I do not interpret this to mean that a car can only be washed if it has also used the petrol fuelling services. Therefore, the need to apply for approval for the washing of vehicles on the site is not clear as this can occur under the existing consent, provided it is not a dominant, separate or independent use. 61 However, the existing consent does not regulate with any specificity the service station use of the site with ancillary car wash activities, which can occur on the site without any further approval. The application includes physical measures such as the acoustic fence and awning as well as management measures proposed through the conditions and a PoM which regulate the washing of cars and the service station use. 62 In circumstances where washing of cars can occur on the site, the measures proposed mitigate impacts that could occur under the existing consent. The question is therefore whether these measure mitigate the impacts to an acceptable level. 63 Both Mr Wright and Mr Gough referred to the decision of Bly C in Seaside Properties v Wyong Shire Council [2004] NSWLEC 117 as an appropriate framework to consider the potential impacts from the proposal given its location at the interface of the mixed use and a residential zone. At [25] Bly C states: As a matter of principle, at a zone interface as exists here, any development proposal in one zone needs to recognise and take into account the form of existing development and/or development likely to occur in an adjoining different zone. In this case residents living in the 2(b) zone must accept that a higher density and larger scale residential development can happen in the adjoining 2(c) or 2(d) zones and whilst impacts must be within reason they can nevertheless occur. Such impacts may well be greater than might be the case if adjacent development were in and complied with the requirements of the same zone. Conversely any development of this site must take into account its relationship to the 2(b) zoned lands to the east, south-east, south and south-west and the likely future character of those lands must be taken into account. Also in considering the likely future character of development on the other side of the interface it may be that the development of sites such as this may not be able to achieve the full potential otherwise indicated by applicable development standards and the like. 64 The amenity expectations of the residents must recognise their location adjoining an existing service station and a mixed use zone. Conversely, the development expectations of the service station must recognise its sensitive location adjoining existing residential development in a residential zone. Within this context the evidence is that the proposal will not result in noise or traffic impacts that are unreasonable. The proposal is therefore consistent with the objectives of the Mixed Use 10 Zone in LEP 1998 and the relevant requirements of DCP 1997. Noise 65 I acknowledge that the acoustic fence and the plexiglass barrier will have a degree of visual impact when viewed from adjoining properties. However, I do not consider that of itself this would warrant refusal of the application. There is currently an unauthorised corrugated iron fence along the boundary with 15-17 Iredale Street that is unsightly which the acoustic fence will replace. The acoustic fence is about 3m high and is not uncharacteristic of a mixed use zone. Although it is higher than a boundary fence in a residential zone it adjoins the onsite parking area of the flats at 15-17 Iredale Street and would have an acceptable visual impact from this area and is unlikely to impact on the outlook from these units from which no objections were received. 66 The plexiglass barrier on the existing wall is angled away from the open space at 1/1 Iredale Street which is at a higher level than the site. Therefore the height and visual impact of the barrier is lessened to an acceptable level. 67 The proposed acoustic fence and plexiglass are acceptable given that they will mitigate noise impacts of the service station which would occur to some extent even if this application were not approved. 68 The issues about the structural adequacy and location of the existing boundary wall to 1 Iredale Street and maintenance of the plexiglass are matters which can be dealt with by conditions and would not warrant refusal of the application. Traffic 69 Council contends that the traffic generated by the proposed car wash and existing service station will adversely affect the amenity for surrounding residential properties. Mr Wright submits that the issues of manoeuvring and management of cars, the potential queuing on Angel street, access to the parking bays and the greasing and servicing of vehicles demonstrate that the traffic and parking implications have not been adequately assessed and will result in adverse impacts on the amenity of neighbours. 70 Mr Gough submits that the evidence of the traffic experts is that proposal: …. will not adversely affect the amenity of the surrounding residential area, will provide an acceptable amount of on-site parking, will have sufficient area to enable vehicles to safely manoeuvre and will not affect the performance of the King Street/Angel Street intersection, given that the additional traffic flows from the car wash are statistically insignificant. 71 Angel Street is not a through road and there is no direct vehicular access along Angel Street between the site and the adjoining properties at 1 Iredale or 15-17 Iredale Street and the surrounding residential area. There is therefore limited opportunity for resident cars accessing their properties to be in direct conflict with cars using the service station. However, queuing of cars in Angel Street for long periods could impact on the amenity of pedestrian and the occupants of nearby dwellings and would be unacceptable. The increase in car movements to and from the service station from the car wash is not significant and the traffic experts are satisfied that the cars wash, if operated in accordance with the conditions of approval and the PoM, will not adversely affect the amenity of surrounding residential properties. 72 The applicant would accept a condition for parallel rather than angled parking bays which the traffic experts agree would resolve any potential conflict. The applicant has also proposed a condition to require that the greasing and servicing of vehicles shall not occur on the property. This is consistent with the premise that the traffic experts assessed the use of the internal workshop area only for washing of cars and therefore removes any potential conflict or need for additional parking.

Conditions 73 The parties disagreed on the following conditions: Condition 1 74 The applicant is objecting to part of Condition 1 which seeks the removal of the existing unauthorised metal poles. I accept council's submission that these poles are within the area proposed to be used for car wash parking and will impede the use of these spaces and the construction of the acoustic fence. Condition 2 - Noise attenuation 75 The applicant seeks to replace the words An acoustic consultant (acceptable to council)…. with A suitably qualified acoustic consultant….I accept council's submission that the requirement is not unreasonable given that the satisfaction of whether the noise impacts are acceptable is reliant on construction of the acoustic measures in accordance with the specification. It is not unreasonable that an acoustic consultant that is acceptable to both the council and the applicant undertake this certification. Condition 4A 76 The applicant proposes the condition that the greasing and servicing of vehicles shall not occur on the property. As discussed above this addresses concerns about this activity occurring in the internal car wash bays. It does not indicate that the use of the site is not predominantly for a service station given that there is no requirement in the definition of service station in LEP 1998 that greasing and services must occur on site in a similar manner that fuelling of vehicles must occur. Condition 12 - Hours of operation 77 Council seeks to restrict the hours of operation for the site to 9am to 5pm Monday to Friday and 10am to 3pm Saturday, Sunday and public holidays. The applicant is seeking 9am to 5pm Monday to Sunday. 78 The traffic and acoustic experts did not raise concern about the hours of operation proposed by the applicant. As I understand the existing approval has no condition limiting the hours of operation of the existing service station. The condition will provide certainty as to the hours of operation which are not unreasonable given the zoning of the site, its location and the expert evidence that the proposal will not result in unacceptable amenity impacts. Condition 13 - Plan of Management 79 The condition requires that a PoM be prepared to address operation and management procedures. The applicant submits that a PoM has been prepared. While the PoM submitted with the application is generally adequate, the planning experts have identified some deficiencies including the complaints management procedures. Given the importance of the management of the site in mitigating impacts, I accept that the PoM should be further refined to address the matters raised in the condition. I have amended condition 13 to require amendments to the PoM submitted in the proceedings. 80 I note Mr Wright's criticism that the PoM does not identify the future lessee or operator by name. Mr Gough submits that the PoM specifies that these are to be provided and that the property owner is currently undertaking legal action to evict the leaseholder and that the details will be included in the PoM once a new lease is entered into. While the consent goes with the land and not with an individual it is important to identify an 'effective and reliable point of contact' in the PoM. It is not unreasonable to require the contact details of the owner as well as the operator in the PoM to ensure that there is a person to whom resident complaints can be addressed and who is ultimately responsible for the implementation of the PoM. The condition is also amended to include this requirement. Condition 14 - additional noise testing The condition requires noise monitoring four times a year for the life of the consent. The applicant accepts this for the first year but not for the life of the consent. I accept that it is unreasonable to require testing on an ongoing basis once it has been established through the initial period of monitoring that the car wash can operate in accordance with the noise criteria. The other aspects of the condition are reasonable and I do not accept the other changes to the condition proposed by the applicant. Condition 22 and 23 81 The conditions propose different noise criteria to those agreed to by the acoustic experts. No reason is provided for the proposed changes other than that the noise criteria in the proposed conditions have been reviewed by Dr Tonin and are pressed. However, Dr Tonin and Mr Giglio agreed to different criteria in their joint report. They were not questioned on the agreed criteria during the hearing. In my view, it is unreasonable to now seek to impose different criteria without further explanation, expert evidence or the agreement of the applicant. 82 In addition to the above conditions, the following changes in response evidence during the hearing are required: Amend Condition 2(a) 83 To require structural certification that the proposed plexiglass acoustic barrier can be built on the existing boundary wall and will be constructed wholly within the site.

Amend Condition 3 - Approved development 84 Include a description of the proposal to ensure that there is no ambiguity about what is the approved development given the evolution of the proposal through the amended applications. Delete Condition 4 - use: separate DA required 85 This condition is deleted as it limits the consent to the use of the existing mechanical bays as a car wash and would require a further development application to erect structures. The application involves works and the use of the whole site. New condition 4 86 Require the angled car spaces to be parallel. New condition 7(e) 87 Require that the car wash only operate in conjunction with the service station. Costs 88 Council is seeking costs under s97B of the EPA Act. The council reserved its position on costs when it agreed to the adjournment sought by the applicant for further amended plans in March 2010. 89 Section 97B provides: (1) This section applies to proceedings if the Court, on an appeal by an applicant under section 97 allows the applicant to file an amended development application (other than to make a minor amendment). (2) In any proceedings to which this section applies, the Court must make an order for the payment by the applicant of those costs of the consent authority that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of the appeal. (3) The regulations may provide for circumstances in which subsection (2) does not apply. (4) This section has effect despite the provisions of any other Act or law. 90 Mr Gough submits that the 'original application' for the purpose of s97B(2) is that for which leave was granted on 4 February 2010. Council made no submission in this respect. I have therefore accepted that this is the 'original application' for the purpose of determining whether the works are minor and for the assessment of any costs (see Groeneveld v Wollongong City Council [2009] NSWLEC 149 at [34]). 91 The parties disagree whether the amendments are minor. To determine whether the amendments are minor a comparison between the 'original application' and the amended application needs to be undertaken. The principle changes being the provision of the acoustic awning and the plexiglass barrier. The amended application also reduced the height of the proposed acoustic fence by 1m and amended the PoM. 92 Both Mr Wright and Mr Gough refer to the principles outlined by Pepper J in Futurespace Pty Ltd v Ku-ring-gai Council [2009] NSWLEC 153, where at [42] Her Honour states: A review of Cachia and the two Groeneveld decisions reveal the following principles that may, at a minimum, assist in determining whether the amendments are "minor" for the purpose of s 97B of the EPAA: (a) first, the question of what is 'minor' is one of fact and degree (Cachia at [25] and the first Groeneveld at [14]); (b) second, regard must be had not to the number of amendments, but to their cumulative or overall effect in the context and location of the proposed development (Cachia at [26], the first Groeneveld at [14] and the second Groeneveld at [29]); (c) third, where a significant re-assessment of the development application is required by the proposed amendments the amendments are unlikely to be classified as minor (the first Groeneveld at [15] and [19]); (d) fourth, merely because the amendments do not involve a change in concept does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [31]); (e) fifth, merely because the amendments do not raise an entirely new issue does not mean that they are not minor (the first Groeneveld at [17] and the second Groeneveld at [30]); (f) sixth, merely because the amendments are responsive to issues raised by the council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor; (g) seventh, the fact that the amendments do not require re-notification is an irrelevant consideration in determining whether or not the amendments should be classified as minor (the first Groeneveld at [16] and the second Groeneveld at [32]); and (h) eighth, an absence of evidence by the consent authority that costs will be incurred or work will be undertaken by it in relation to the proposed amendments may be taken into account but is not determinative (the first Groeneveld at [17]). 93 Mr Gough submits that: Principle 1 dictates that the question is one of fact and degree. The second principle requires the Court to consider the cumulative and overall effect of the amendments and to have regard to the location and context of the development. The proposed development is located within an existing approved service station which contains a large awning over the majority of the external area. The new awning addition and fence modifications will make a negligible cumulative difference when looking at the overall development site. The site is located in the built up suburb of Newtown. The amendments are a small change to a larger development. In Robert Gilbert Coshott and Ljiljiana Coshot v Woollahra Council [1996] NSWLEC 256 the Court was determining whether amendments were minor for the purpose of public notification. Justice Bannon stated: It is true that there were changes in the approved plans from the original plans. Notably the balcony at the rear was larger and the lift and storage arrangements were different. It is a matter of degree whether changes are major or minor. In a small project any change may be major. In a large scale project such as a three or four storey Vaucluse mansion, the relative effect of change may be minimal…..In my opinion the overall effect of the changes were minor. Visually the awning and wall addition will be subsumed into the overall development and will not alter the nature or operation of the development. The third principle of Futurespace v Ku-ring-gai requires an analysis of the re-assessment required. The subject amendments would not have required a 'significant re-assessment', as: - the structures are of a small scale and simple design. - the acoustic fence adjoining no. 17 Iredale Street has been reduced in height by 1 metre. - the acoustic barrier affixed to the wall with No 1 Iredale Street could have been addressed via a condition of development consent. - the awning adjacent to the work bays is no higher than the metal fence currently erected on the eastern boundary of the property. An additional site inspection was not required - the reassessment by council was restricted to an analysis of the expert reports prepared by the Applicant. Council in considering the amended plans and reports did not amend the Statement of Facts and Contentions prepared on 19 January 2010. The matters and topics raised in principles 4 to 8 of Futurespace v Ku-ring-gai would not result in the Court being satisfied that the amendments are not minor. 94 Mr Wright submits that: First, the question of what is ''minor'' is one of fact and degree. The amendments to this application are anything but minor. The Applicant recognised this fact in seeking the adjournment as it was plain that it could not continue with the hearing without having revised plans drawn up and having the proposed amendments renotified and assessed by the parties' acoustic experts and town planners. It is telling that the need for these significant changes to the development application only became apparent to the Applicant after receiving suggestions from the Council's acoustic expert, Dr Tonin in the course of the on-site hearing. Secondly, the cumulative or overall effect of the amendments must be assessed in the context and location of the proposed development. The proposed acoustic screen and acoustic "car port" are substantial physical structures in the context of this site. They are located directly adjacent to and on the boundary with the most affected residents. Even on the Applicant's own case, the structures are the primary means by which the acoustic impacts of the proposal are to be managed and are therefore an essential element in the assessment of the development application. These measures had to be prepared pursuant to an acoustician's specification and had to be the subject of further expert evidence from the parties' acoustic experts. Given the scale of the proposed structures and their proximity to adjoining properties (and the zone interface) they also had to be the subject of further evidence from the parties' town planning experts. The facts in Robert Gilbert Coshott and Ljiljiana Coshott v Woollahra Council [1996] NSWLEC 256 are completely different to the present case. Bannon J was dealing with the question whether the Council was estopped from denying the existence of a building approval. The decision is of no assistance to the Court. Thirdly, do the amendments require a significant reassessment of the development application? It is obvious from the foregoing that the amendments here required a significant reassessment of the development application. Fourthly, merely because the amendments did not involve a change in concept does not mean that they are not minor. To the extent that it is possible to understand the Applicant's "concept" either from its development application or from its submissions, the fact that the proposed use is not changing is simply not to the point. A further substantial physical structure is proposed on a small and highly constrained site in a location which will have a direct effect upon immediately adjoining residents. Fifthly, merely because the amendments did not raise an entirely new issue or issues does not mean they are not minor. That the Council did not amend its Statement of Facts and Contentions is also not to the point. The amendments necessitated detailed further assessment of the application. Sixthly, merely because the amendments are responsive to issues raised by the Council or narrow the issues in contention between the parties is not relevant to the determination of whether they are minor. In this case, the amendments did not narrow the issues but required consideration of additional impacts including visual and nuisance impacts upon adjoining residents. Seventhly, the fact that amendments do not require re-notification is irrelevant. Here the amendments did require re-notification and as a result additional objections were made. Eighthly, an absence of evidence from the consent authority that costs will be incurred or work will be undertaken is relevant but not determinative. Here further costs were incurred and further work was undertaken by way of re-notification, re-assessment, the filing of further expert evidence and the need for the continuation of the hearing for a full day several months after the amendments were (belatedly) made. 95 The assessment of whether the amendments are minor must be assessed against the application which is to be amended. Prior to the amendment, the application proposed no acoustic measures other than a note on plan that the existing boundary fence meet acoustic specifications. These are specified in Mr Giglio's report (Exhibit E) as being an increase in the height of the current metal fence (which council submit's is unauthorised) by 1m and a downturn noise barrier at the edge of the awning. No other external structures where proposed. 96 The applicant sought to further amend the plans to address acoustic concerns of residents and raised by Dr Tonin. The amended plans propose a new acoustic boundary fence, an acoustic plexiglass barrier and an acoustic awning. They are "substantial" structures located adjacent or on the boundary of the most affected residents and are essential to manage the acoustic impacts of the proposal. The structures required re-notification, further re-assessment by the experts, and a consideration of additional impacts, including visual impact. When considered against the previous application and within the context and location of the site, I accept Mr Wright's submission that the cumulative or overall effect of the changes is not minor. Orders 97 The orders of the Court are therefore: 1. The appeal is upheld. 2. The development application (D/2009/403) for the continuation of the use of the site as a service station in accordance with the definition of 'service station' in South Sydney Local Environmental Plan 1998, including the washing of vehicles within the two internal car wash bays and the construction of an acoustic fence, an acoustic awning and a plexiglass acoustic barrier at 536A King Street, Newtown, is approved subject to the conditions in Annexure A. 3. The exhibits, except Exhibits A, B, M and 1, may be returned. 4. Pursuant to s 97B(2) of the Environmental Planning and Assessment Act 1979, the applicant is to pay the respondent the costs from the 12 March 2010 that were incurred in respect of the assessment of, and proceedings relating to, the original development application the subject of this appeal. The costs to be as agreed or assessed.

      Annelise Tuor
      Commissioner of the Court

PART A CONDITIONS TO BE SATISFIED PRIOR TO CONSENT OPERATING The consent is not to operate until the following conditions are satisfied, within 12 months of the date of this determination: (1) The existing unauthorised galvanised iron fence and existing unauthorised metal poles shall be removed before the sound attenuation works referred to in condition 2 below are carried out. (2) SOUND ATTENUATION All sound attenuation works required by the Joint Expert Report prepared by Sebastian Giglio and Renzo Tonin, dated 22 June 2010, must be fully installed and acoustically tested prior to the use commencing, including: (a) The acoustic fence and acoustic awning structure and plexiglass acoustic barrier in accordance with the drawing dated 7 April 2010 prepared by IMJ Project Consultants and the Acoustic Report prepared by Sebastian Giglio, dated 30 April 2010. Structural certification shall be provided to demonstrate that the existing boundary wall can support the plexiglass acoustic barrier and that this will be wholly within the site or an alternate design must be submitted. (b) The vacuum units and the water compressors shall be located in a dedicated plant room and shall be constructed within the workshop abutting the south-eastern rear masonry wall. The walls and roof of the enclosure shall be constructed of 25mm thick ply or 13mm thick compressed fibrous cement sheet attached to a metal or timber frame with all joints sealed with acoustic sealer. A 25mm thick solid core door shall be provided for access incorporating acoustic Raven perimeter and drop seals. The inside surface of the acoustic enclosure shall incorporate acoustic absorption material (Tontine 25mm thick batts density 20kg/cum) with protective facing comprising perforated metal 30% open area or similar; (c) All penetrations in the plant room described above shall be as small as possible and shall be acoustically sealed to an acoustic consultant's specification; (d) The plant room shall be mechanically ventilated and shall incorporate acoustic silencers to be specified by an acoustic consultant; (e) The compressors and attached pipe-work shall be mounted on vibration isolators to be specified by an acoustic consultant; An acoustic consultant (acceptable to Council) shall be engaged to inspect the construction of the plant room, ventilation equipment, vibration isolation, acoustic fence, acoustic awning structure and plexiglass acoustic barrier and shall provide a written report to Council prior to the use commencing certifying that the construction complies with this specification; The acoustic consultant referred to in this condition must be a member of the Australian Acoustical Society, Engineers Australia or the Australian Association of Acoustical Consultants. Amended plans must be submitted to Council clearly confirming compliance with this condition. PART B CONDITIONS OF CONSENT (ONCE THE CONSENT IS IN OPERATION) Upon compliance with the conditions contained in Part A, the consent will become operative subject to the following conditions, as may be amended by such other conditions that may arise as a result of compliance with conditions/information required in Part A. 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. (3) APPROVED DEVELOPMENT (a) The approved development is for the continuation of the use of the site as a service station in accordance with the definition of 'service station' in South Sydney Local Environmental Plan 1998, including the washing of vehicles within the two internal car wash bays and the construction of an acoustic fence, an acoustic awning and a plexiglass acoustic barrier. (b) Development must be in accordance with Development Application No. D2009/403 dated 25 March 2009 and the Acoustic Report prepared by Sebastian Giglio dated 30 April 2010 and the Traffic and Parking Report prepared by Varga Traffic Planning dated 23 February 2010 and the following drawings: Drawing Number Architect Date Sheet 01 IMJ Project Consultants 7 April 2010 Sheet 02 IMJ Project Consultants 7 April 2010 Floor Plan Layout IMJ Project Consultants 14 December 2010

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. (4) PARKING The three (3) angled parking spaces adjacent to the eastern boundary shall be parallel to the boundary and shall be for cars waiting to use the internal car wash bays. (4A) USE The greasing and servicing of vehicles shall not occur on the property. (5) ENCROACHMENTS - NEIGHBOURING PROPERTIES No portion of the proposed structures shall encroach onto any adjoining property. (6) ENCROACHMENTS - PUBLIC WAY No portion of the proposed structures, including gates and doors during opening and closing operations, shall encroach upon Council's footpath area. (7) CAR WASH BAYS (a) A maximum of 2 internal car wash bays are approved as part of this development consent. (b) The washing, active drying, cleaning, vacuuming and polishing of cars must only take place in the internal car wash bays marked on the stamped approved plans. (c) All wash bay discharges are to be disposed of according to the requirements of Council to the sewer which requires a trade waste agreement with Sydney Water. (d) All car washing and vehicle servicing shall be conducted in a wash bay which is roofed and bunded to exclude rainwater, and which is drained to an internal point connected to the sewer in accordance with a Sydney Water Trade Waste agreement. (e) The car wash shall not operate independently of the service station. (8) SIGNAGE STRATEGY A separate development application is to be submitted seeking approval of a signage strategy and external colour scheme for the building and site. The signage strategy development application must include information and scale drawings of the location, type, construction, materials and total number of signs appropriate for the building and use. (9) SIGNAGE RESTRICTION Any form of inflatable or mechanically ventilated or operated advertising device or signage shall not be used to advertise any activity at the site at any time. (10) 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. (11) REFLECTIVITY The Certifying Authority must ensure that the visible light reflectivity from building materials used on the roof of the proposed awning do not exceed 20% prior to issue of the Construction Certificate. (12) HOURS OF OPERATION (a) In order to minimise noise impact to surrounding residences, the use of the site including deliveries to the site, shall be restricted to 9am to 5.00pm, Monday to Sunday. (b) Any works associated with the carwash use must cease by 5:00pm, Monday to Sunday. This includes the washing, cleaning, vacuuming, polishing and active drying of vehicles. (13) PLAN OF MANAGEMENT The use of the site shall be in accordance with a Plan of Management tendered as Exhibit A in the proceedings with the following amendments: (a) all operational and management procedures to be employed, to ensure that the premises can operate without disturbance to the surrounding locality. The plan must reflect the whole of the premises operations. (b) The plan must include but not be restricted to; compliance with all other operational conditions of this consent; hours of operation; the management of parking of vehicles on site and the management of the movement of vehicles within the site and to and from the site, noise; security management and handling complaints, including the contact details of the owner and operator of the premises. The plan must be submitted to and approved by Council prior to a Construction Certificate being issued and must not be amended without the prior written approval of the Council. Note: The Council will be entitled circulate any proposed amendments to residents in the locality for their comments before granting approval to any proposed amendments. (14) ADDITIONAL NOISE TESTING At least 4 times in the first calendar year for the life of this consent, the following additional noise monitoring must be undertaken: (a) A suitably qualified acoustic consultant must be appointed . The consultant must be a member of the Australian Acoustical Society, Engineers Australia or the Association of Australian Acoustical Consultants. The acoustic consultant (acceptable to Council) must measure and verify that the noise emanating from the site when operated at on a weekend or public holiday in condition No 22 "Noise From Use". The name of the acoustic consultant must be provided to and approved by Council before any additional noise testing is carried out. The acoustic consultant should liaise with Council for the purposes of organising access to the nearest residential premises for the purpose of undertaking this noise monitoring. The acoustic consultant shall, if necessary, make recommendations to ensure that the noise emanating from the premises complies with the noise criteria in condition 22 "Noise From Use". (b) The noise measurements must be: (i) undertaken without the knowledge of the applicant, manager or operator of the premises; and (ii) taken on at least three different occasions on three different days of the week (excluding Monday, Tuesday and Wednesday) between the 9:00am and 5:00pm; and (iii) submitted to Council within 7 days of the testing. (c) If the acoustic consultant recommends that additional treatment or works be undertaken under condition (a) above, those recommendations must be: (i) submitted to Council with the noise measurements as required in (b)(iii) above; and (ii) implemented to the acoustic consultant's satisfaction within 30 days of the acoustic consultant's recommendations being submitted to Council If the acoustic consultant's recommendations are not implemented in accordance with this condition, the site must not be used for the purpose of car washing until such time as the recommendations are implemented and verified. (d) All fees and costs associated with the noise measurements, assessment and reporting shall be the responsibility of the Applicant. (15) COMPLAINTS Where a noise complaint is received by Council from a place of different occupancy and the noise source is proven by a Council Officer to be non-compliant with Conditions 22 and 23, the Council may employ a consultant to measure noise emanating from the property and to recommend (if necessary) appropriate actions to ensure compliance with Condition 22 and 23. The consultant must be a member of the Australian Acoustical Society, Engineers Australia or the Association of Australian Acoustical Consultants. The cost of such appointment and associated work shall be borne by the operator of the service station/car wash on site, who shall also ensure the recommendations of the acoustic consultant are implemented. (16) COPIES OF CONSENTS AND MANAGEMENT PLANS A full and current copy of all current development consents and management plans for the operation of the premises must be kept on-site and made available to Police or Council Officers, or Special Investigator upon request. (17) NO SPEAKERS OR MUSIC OUTSIDE Speakers must not be installed and music must not be played in any of the outdoor areas associated with the premises including the public domain. The sound emitted from any speakers located within the premises must not be audible at the boundary of any affected receiver or at the window of any affected receiver located on the first floor or above. (18) SIGNS/GOODS IN THE PUBLIC WAY No signs or goods are to be placed on the footway or roadway adjacent to the property. (19) 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. (20) CAR WASH ACCESS At all times, vehicles associated with car wash use must not obstruct access to the petrol pumps onsite or the public way. The queuing and the standing of vehicles must be managed in accordance with the plan of management to allow any vehicle accessing the petrol pumps to be driven onto and off the site in a forward direction and to prevent the queuing of vehicles in the public road or across the pedestrian footpath in Angel Street or King Street. (21) WAITING VEHICLES At all times vehicles awaiting car wash or mechanical service, or awaiting collection after being washed or mechanically serviced, must stand entirely within the property. (22) NOISE FROM USE The use of the premises shall 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) A sound pressure level at any affected premises that exceeds the background (LA90 15 min.) noise level in the absence of the noise under consideration by more than 5 dB(A). The source noise level shall be assessed as LAeq, 15 min and adjusted in accordance with DECCW guidelines for tonality, frequency weighting, impulsive characteristics, fluctuations and temporal content.

(23) NOISE - MECHANICAL PLANT AND EQUIPMENT Noise associated with the use of mechanical plant and equipment 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 affected receiver. (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 8 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 8 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. Vibration associated with the use of mechanical plant and equipment must not give rise to a vibration level exceeding the "preferred values" in Table 2.2 and Table 2.4 of the document "Assessing Vibration: a technical guideline (February 2006)" published by DEC. (24) AMENITY The use of the premises shall not adversely affect the amenity of the neighbourhood by reason of the emission or discharge of noise, fumes, vapour, steam, dust, waste water, waste products, oil or other substances harmful to the environment. (25) PROTECTION OF STORMWATER No waste water, chemicals or other substances harmful to the environment shall be permitted to discharge to Council's stormwater system. Only clean, unpolluted water is permitted to discharge into the stormwater system. (26) WASTE OIL Waste oil shall be stored in a covered and suitably bunded area pending regular removal to a waste oil recycler. (27) WASTEWATER TREATMENT DEVICES All wastewater treatment devices (including drainage systems, sumps, traps and pumps) must be regularly maintained in good working order to ensure that they remain effective. A maintenance schedule shall be developed and incorporated into the Plan of Management and kept on-site at all times for staff to comply with. All liquid and solid wastes collected from the treatment device must be disposed of in accordance with relevant environmental protection and waste control legislation. (28) SPILL CLEAN-UP Sufficient supplies of appropriate absorbent materials shall be kept on site to recover any liquid spillage. Liquid spills shall be cleaned up using dry methods, by placing absorbent material on the spill and sweeping or shovelling the material into a secure bin. Materials used to clean up must be disposed of to an appropriately licensed waste facility. (29) PROCESS / STORAGE BUNDING All works, fuel service and storage areas where spillages may occur shall be bunded. The capacity of the bunded area shall be calculated as being equal to 110% of the largest storage or process vessel/container in the area or 10% of the total volume of the vessel/containers accommodated in the area, whichever is the greater. All bunded areas shall be graded to a blind sump to facilitate testing of collected wastewater and provide a low point for pump out. Bunded areas shall be suitably treated to prevent the ingress of stormwater. (30) MECHANICAL VENTILATION (a) The premises must be ventilated in accordance with the Building Code of Australia and AS1668.1-1998 and AS1668.2-1991. (b) Details of any mechanical ventilation and/or air conditioning system complying with AS1668.1-1998 and AS1668.2-1991, 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 1B PRIOR TO CONSTRUCTION CERTIFICATE/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. (31) BCA - NEW BUILDINGS WORKS - CLASS 2-9 BUILDINGS (a) Pursuant to Clause 98 of the Environmental Planning and Assessment Regulation 2000, the proposed building work must comply with the Building Code of Australia (BCA) including: (i) Structural provisions - Part B1; (ii) Fire resistance and stability - Part C1; (iii) Provision for escape (access and egress) - Part D1; (iv) Construction of exits - Part D2; (v) Access for people with disabilities - Part D3; Note : Compliance with the access provisions of Part D3 may necessitate design modifications prior to a construction certificate being issued. (vi) Fire fighting equipment - Part E1; (vii) Emergency lighting, exit signs and warning systems - Part E4; (viii) Damp and weatherproofing - Part F1; (ix) Sanitary and other facilities - Part F2; (x) Energy Efficiency - Artificial lighting and power - Part J6; (b) If compliance with the deemed-to-satisfy provisions of the BCA and the matters listed in condition (a) above cannot be achieved, an alternative building solution in accordance with Part A0 of the BCA must be prepared by a suitably qualified and accredited person and be submitted to the Certifying Authority illustrating how the relevant performance requirements of the BCA are to be satisfied. Prior to a Construction Certificate being issued, the Certifying Authority must ensure that the building complies with the Building Code of Australia. (c) The BCA matters identified in (a) above are not an exhaustive list of conditions to verify compliance or non-compliance with the BCA. Any design amendments required to achieve compliance with the BCA must be submitted to Council. Significant amendments may require an application under Section 96 of the Act to be lodged with Council to amend this consent. Note : The provisions of Clause 94 of the Environmental Planning and Assessment Regulation 2000 have been considered in the assessment of the proposed development. (32) STRUCTURAL CERTIFICATION FOR EXISTING BUILDING - ALTERATIONS AND ADDITIONS A qualified practising certified structural engineer must provide structural certification to Council (where Council is the Certifying Authority) verifying that existing structures can adequately support the proposed new loads (awning and plexiglass screen) and the structural design complies with the Structural Provisions of Part B1 (Vol 1) and Part 2.1 (Vol 2) of the Building Code of Australia prior to a Construction Certificate being issued. The proposed additional loads and/or alterations must not cause a decrease in the existing structural performance of the building including its performance under earthquake actions (AS1170.4). Note : Where a condition of consent has been imposed under the provisions of Clause 94 of the Environmental Planning and Assessment Regulation 2000, the building (part or whole) may be required to comply fully with Part B1 of the of the Building Code of Australia including compliance with the earthquake loads standard, AS1170.4. (33) ENVIRONMENTAL MANAGEMENT PLAN A Demolition and Construction Environmental Management Plan (EMP) must be developed and submitted to Council for approval. The EMP shall provide a comprehensive and complete action and implementation plan to ensure that the anthropological and natural environment is not unacceptably impacted by the proposal. The EMP shall include but not be necessarily limited to the following measures: i) Measures to control noise emissions from the site; ii) Measures to suppress odours and dust emissions; iii) Selection of traffic routes to minimise residential noise intrusion; iv) Measures to identify hazardous materials and the procedures for removal and disposal including asbestos. v) A plan for community liaison and notification including a procedure to deal with any complaints during demolition and construction phases of the project. (34) NOISE GENERATING USES - ACOUSTIC IMPACT ASSESSMENT AND IMPACT A written report from a suitably qualified acoustic consultant who is a member of the Australian Acoustical Society, Engineers Australia or the Association of Australian Acoustical Consultants assessing the impact of noise emissions from the proposal shall be submitted to Council. The report should include: a) The identification of noise receivers potentially affected by the proposal; b) The assessment criteria required by these conditions; c) Assessment of the existing acoustic environment at the receiver locations in accordance with AS1055-1997 'Acoustic - Description and Measurement of Environmental Noise' and current DEC Guidelines; d) The identification of future and/or existing operations from the proposed use giving rise to the emission of noise and prediction of resultant noise at the identified receiver locations. The method of noise prediction shall be justified and include an evaluation of prevailing atmospheric or other conditions that may promote noise propagation; and e) A statement that the proposed use is capable of complying with the design criteria together with details of any necessary acoustic control measures that will be incorporated into the development or use. (35) WASTE AND RECYCLING MANAGEMENT - MINOR The proposal must comply with the relevant provisions of Council's Policy for Waste Minimisation in New Developments 2005 which requires facilities to minimise and manage waste and recycling generated by the proposal. (36) STORMWATER AND DRAINAGE - MINOR DEVELOPMENT The drainage system is to be constructed in accordance with Council's standard requirements as detailed in Council's 'Stormwater Drainage Connection Information' document dated July 2006. This information is available on Council's website - www.cityofsydney.nsw.gov.au . (37) CONNECTION TO SEWERS OF SYDNEY WATER CORPORATION Waste water arising from the use must be directed to the sewers of the Sydney Water Corporation (SWC) under a Trade Waste License Agreement. The pre-treatment of wastewater may be a requirement of the Corporation prior to discharge to the sewer. Details of the Corporation's requirements should be obtained prior to the commencement of construction work. (38) STRUCTURAL CERTIFICATION FOR DESIGN - BCA (ALL BUILDING CLASSES) Prior to the issue of a Construction Certificate, structural details and a Structural Certificate for Design by a qualified practising structural engineer and in accordance with Clause A2.2(a)(iii) of the Building Code of Australia (applicable to class 2-9 building) and Clause 1.2.2(iii) of Volume 2 of the BCA (applicable to Class 1 and 10 buildings) must be submitted to the satisfaction of Council (where Council is the Certifying Authority). (39) BARRICADE PERMIT Where construction/building works require the use of a public place including a road or footpath, approval under Section 138 of the Roads 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. (40) 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". (41) COST OF SIGNPOSTING All costs associated with signposting for any kerbside parking restrictions and traffic management measures associated with the development shall be borne by the developer. (42) 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 and agreed to by the Sydney Traffic Committee prior to any work commencing on site. (43) SYDNEY WATER CERTIFICATE (QUICK CHECK) (a) The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water's sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. Plans will be appropriately stamped. For Quick Check agent details please refer to the web site www.sydneywater.com.au , (see Building Developing and Plumbing then Quick Check) or telephone 13 20 92. (b) The consent authority or a Certifying Authority must ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans before the commencement of work. (44) ANNUAL FIRE SAFETY STATEMENT FORM An annual Fire Safety Statement must be given to Council and the NSW Fire Brigade commencing within 12 months after the date on which the initial Interim/Final Fire Safety Certificate is issued or the use commencing, whichever is earlier. (45) FIRE SAFETY CERTIFICATE TO BE SUBMITTED A Fire Safety Certificate must be submitted to the Principal Certifying Authority for all of the items listed in the Fire Safety Schedule prior to an Occupation Certificate being issued. A copy of the Fire Safety Certificate must be submitted to Council if it is not the Principal Certifying Authority. SCHEDULE 1C DURING CONSTRUCTION/PRIOR TO OCCUPATION/COMPLETION (46) 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". (47) LOADING AND UNLOADING DURING CONSTRUCTION The following requirements apply: (a) All loading and unloading associated with construction activity must be accommodated on site. (b) 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. (c) A Works Zone may be required if loading and unloading is not possible on site. If a Works Zone is warranted an application must be made to Council at least 8 weeks 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. (d) 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. (e) The structural design of the building must allow 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. (48) 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. (49) 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. (50) 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. (51) 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. (52) 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. (53) NOISE CONTROL VERIFICATION The Principal Certifying Authority (PCA) must ensure that a statement from an accredited acoustic consultant certifying that the acoustic mitigation measures identified in the noise assessment report required by condition 34 are suitably incorporated into the development, and the noise criteria in the subject report have been met prior to the issue of an Occupation Certificate. Note: noise attenuation works may require the submission of a separate development application or amended development application for Council consideration. (54) 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. (55) SYDNEY WATER CERTIFICATE Consent must be obtained from Sydney Water for the discharge of trade waste water to the foul sewer system before the use commences. SCHEDULE 2 PRESCRIBED CONDITIONS The prescribed conditions in accordance with Division 8A of the Environmental Planning and Assessment Regulation 2000 apply: Clause 98 Compliance with Building Code of Australia and insurance requirements under the Home Building Act 1989 Clause 98A Erection of signs Clause 98B Notification of Home Building Act 1989 requirements Clause 98C Conditions relating to entertainment venues Clause 98D Conditions relating to maximum capacity signage Clause 98E Conditions relating to shoring and adequacy of adjoining property Refer to the NSW State legislation for full text of the clauses under Division 8A of the Environmental Planning and Assessment Regulation 2000. This can be accessed at: http://www.legislation.nsw.gov.au

          Annelise Tuor
          Commissioner of the Court

12/11/2010 - Conditions not attached - Paragraph(s) Annexure A

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