Balmain Care for Kids Pty Ltd v Leichhardt Municipal Council

Land and Environment Court (NSW)|2009-05-15|Before: Mr J

The applicant must bear the cost of construction of the following works: a) Closure of the redundant vehicle crossing at the Dick Street frontage of the site.

b) Reconstruction of the concrete kerb, concrete gutter and asphalt footpath at the location of the closed vehicle crossing to Dick Street. Development Consent does NOT give approval to undertake any works on Council property. An application must be made to Council for a Roadworks Permit under Section 138 of the Roads Act 1993 and Section 68 of the Local Government Act 1993 for approval to construct these works .

The Roadworks Permit must be provided prior to the issue of a Construction Certificate.

These works must be constructed in accordance with the conditions of the Roadworks Permit and be completed prior to the issue of an Occupation Certificate.

Note: The cost of adjustment or relocation of any public utility service shall be borne by the owner/applicant. Where the finished levels of the new works will result in changes to the existing surface levels, the cost of all necessary adjustments or transitions beyond the above scope of works shall be borne by the owner/applicant. PRIOR TO THE COMMENCEMENT OF WORKS

An application for any of the following on public property (footpaths, roads, reserves) shall be submitted and approved by Council prior to the commencement of works. a) Construction zone. b) A pumping permit. c) Mobile crane. c) Skip bins other than those authorised by Leichhardt Council.
Site cranes and hoists may be erected within the boundaries of the site subject to compliance with the relevant provisions of Australian Standard AS 1418:2005 Crane, hoists and winches, Australian Standard AS 2549:1996 Cranes (including hoists and winches) and Australian Standard AS 2550:2002 Cranes, hoists and winches. Cranes must not swing or hoist over any public property unless the relevant approval under Local Government Act 1993, Crown Lands Act 1989, or the Roads Act 1993 has been obtained prior to the commencement of works.

The use of the cranes and hoists must comply with the approved hours of construction. The cranes must not be illuminated outside approved working hours other than safety beacons required by the Civil Aviation Safety Authority. No illuminated signs are to be erected upon or displayed upon any crane. 38. The proposed structure(s) to be erected must stand wholly within the boundaries of the allotment. No portion of the proposed fences/retaining walls, including gates and doors during opening and closing operations, shall encroach onto adjoining properties or upon public property. 39. The site must be secured and fenced prior to works commencing. If necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling onto public property. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons on public property. If the work involves the erection or demolition of a building and is likely to cause pedestrian or vehicular traffic on public property to be obstructed or rendered inconvenient, or building involves the enclosure of public property, a hoarding or fence must be erected between the work site and the public property.

Separate approval is required to erect a hoarding or temporary fence on public property prior to the commencement of works. Approvals for hoardings, scaffolding on public land must be obtained and clearly displayed on site for the duration of the works.

Any hoarding, fence or awning is to be removed when the work is completed. 40. Any person or contractor undertaking works on public property must take out Public Risk Insurance with a minimum cover of ten (10) million dollars in relation to the occupation of, and approved works within public property. The Policy is to note, and provide protection for Leichhardt Council, as an interested party and a copy of the Policy must be submitted to Council prior to commencement of the works. The Policy must be valid for the entire period that the works are being undertaken on public property.

Prior to the commencement of works, the Principal Certifying Authority shall be notified in writing of the name and contractor licence number of the owner/builder intending to carry out the approved works.

At least forty-eight (48) hours prior to the commencement of works, a notice of commencement form and details of the appointed Principal Certifying Authority shall be submitted to Council.
Prior to the commencement of works, a sign must be erected in a prominent position on the site on which the erection or demolition of a building is being carried out. The sign must state: a) Unauthorised entry to the work site is prohibited.

b) The name of the principal contractor (or person in charge of the site) and a telephone number at which that person may be contacted at any time for business purposes and outside working hours.

c) The name, address and telephone number of the Certifying Authority for the work. Any such sign must be maintained while the work is being carried out, but must be removed when the work has been completed.

The area beneath the canopy of the tree to be retained must be fenced prior to the commencement of works. The fencing must encompass the maximum possible area covered by the drip line of the canopy and must remain in place until the completion of building works. The fencing should be a minimum of 1.8 metres high chainlink or welded mesh fencing. The fencing is to be maintained for the duration of the building works. Services should be located to avoid disturbing tree roots. Trenches required for the installation of services should be located outside of the fenced area.

All areas within the perimeter of the safety fencing are to be covered with woodchip mulch to a depth of 100mm. All steep gradients unable to be effectively covered with mulch are to be protected with hessian cloth to be kept at a moisture level sufficient to ensure the preservation of tree root systems. 45. The location and facilities for the collection, storage and disposal of waste generated within the premises shall be submitted to and approved by Council prior to the commencement of works. DURING WORKS

Building work must be restricted to the hours of 7:00am to 5:30pm Monday to Friday inclusive, 7:00am to 1:00pm Saturday. Work is not be carried out on Sunday or Public Holidays.

Building materials and machinery are to be located wholly on site.

Development of the site shall be carried out in accordance with the recommendations of both the Preliminary Contamination Assessment and the Hazardous Materials Identification Survey and Management Plan prepared by Earth Air Water Consulting and Monitoring Pty Limited, dated July 2007.

The development site must be inspected at the following stages during construction: a) At the commencement of the building work, and

b) Prior to covering any stormwater drainage connections, and

c) After the building work has been completed and prior to any occupation certificate being issued in relation to the building. 50. Noise arising from the works must be controlled in accordance with the requirements of the Protection of the Environment Operations Act 1997 and guidelines contained in the New South Wales Environment Protection Authority Environmental Noise Control Manual.

During all phases of demolition, excavation and construction, it is the full responsibility of the applicant and their contractors to: a) Ascertain the exact location of the Council stormwater drainage pipeline and associated pits traversing and/or adjacent to the site in the vicinity of the works.

b) Take measures to protect the in-ground Council stormwater drainage pipeline and associated pits.

c) Ensure dedicate overland flow paths are satisfactorily maintained through the site. Stormwater drainage pipes can be damaged through applying excessive loading (such as construction machinery, material storage and the like). All proposed structures and construction activities must be sited fully clear of Councils stormwater drainage pipes, pits, easements, watercourses and overland flow paths on the site. If the Council pipeline is uncovered during construction, all work must cease and the Principal Certifying Authority and Council must be contacted immediately for advice. Any damage caused to the Council stormwater drainage system must be immediately repaired in full as directed and at no cost to Council. 52. A copy of the approved plans must be kept on site for the duration of site works and be made available upon request.

Where any works are proposed in the public road reservation, the following applications must be made to Council, as applicable: a) For installation or replacement of private stormwater drainage lines or utility services, including water supply, sewerage, gas, electricity, etc. an application must be made for a Road Opening Permit .

b) For construction/reconstruction of Council infrastructure, including vehicular crossings, footpath, kerb and gutter, stormwater drainage, an application must be made for a Roadworks Permit . Note: Private stormwater drainage is the pipeline(s) that provide the direct connection between the development site and Council's stormwater drainage system, or street kerb and gutter. 54. With the exception of those parts of the property that drain to Foy Street via an easement in the basement carpark, stormwater runoff from all roof and paved areas within the property must be collected in a system of gutters, pits and pipelines discharged by gravity to the kerb and gutter of a public road. Any existing component of the stormwater system that is to be retained must be checked and certified by a Licensed Plumber or qualified practicing Civil Engineer to be in good condition and operating satisfactorily.

If any component of the existing system is not in good condition and /or not operating satisfactorily, it must be upgraded.

The requirements of the Soil and Water Management Plan must be maintained at all times during the works and any measures required by the Soil and Water Management Plan shall not be removed until the site has been stabilised to the Principal Certifying Authority's satisfaction.

All noxious weeds are identified in the Noxious Weeds Act 1993. Any noxious weeds on the site must be treated in accordance with their classification. A complete list of declared noxious weeds within the Leichhardt Local Government Area can be found on the New South Wales Department of Primary Industries web site at www.dpi.nsw.gov.au/agriculture/noxweed.

Any fill used with the proposal shall be virgin excavated material (such as clay, gravel, sand, soil and rock) that is not mixed with any other type of waste and which has been excavated from areas of land that are not contaminated with human made chemicals as a result of industrial, commercial, mining or agricultural activities and which do not contain sulphate ores or soils.

Construction material and vehicles shall not block or impede public use of footpaths or roadways.

Prior to the issue of an Occupation Certificate, all noise control measures specified in the plans and relevant documentation under condition 1 are to be carried out and certified by a practising qualified acoustic consultant/engineer. Certification shall be in writing to the satisfaction of the Principal Certifying Authority.

All allotments involved in this proposal must be consolidated into one allotment. Evidence of registration shall be submitted to Council or the Principal Certifying Authority prior to the issue of an Occupation Certificate.
Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must ensure that an Operation and Management Plan has been prepared and implemented for the basement pump-out system. The Plan must set out the following at a minimum: a) The proposed maintenance regime, specifying that the system is to be regularly inspected and checked by qualified practitioners.

b) The proposed method of management of the facility, including procedures, safety protection systems, emergency response plan in the event of mechanical failure, etc. The Plan must be prepared by a suitably qualified professional and provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate. 62. An Occupation Certificate must be obtained prior to any use or occupation of the development or part thereof. The Principal Certifying Authority must ensure that all works are completed in compliance with the approved Construction Certificate plans and all conditions of this Development Consent.

Provision must be maintained for access to and within the building on the site for persons with a disability in accordance with the provisions of Australian Standard AS 1428.1:2001 Design for access and mobility - General requirements for access - new building work prior to the issue of an Occupation Certificate.

A licence to operate the child care centre must be obtained from the New South Wales Department of Community Services and fully complied with prior to the issue of a final Occupation Certificate. Note: An interim Occupation Certificate will be required to obtain the licence. The age breakdown and the number of children attending the child care centre shall not exceed the maximum number of approved child care places advised by the New South Wales Department of Community Services. Prior to the issue of an Occupation Certificate the owner/operator must have in place an emergency evacuation plan that encompasses the requirements of the New South Wales Fire Brigade and outlines the procedures by which staff will be trained in emergency procedures.

An Occupation Certificate must be obtained prior to any use or occupation of the development or part thereof. The Principal Certifying Authority must ensure that all works are completed in compliance with the approved Construction Certificate plans and all conditions of this Development Consent.

Prior to the issue of an Occupation Certificate, the Principal Certifying Authority must ensure that all works have been completed in accordance with the approved Waste Management Plan referred to in this development consent. Proof of actual destination of demolition and construction waste shall be provided to the Principal Certifying Authority prior to the issue of an Occupation Certificate.
Prior to the issue of an Occupation Certificate, the Principal Certifying Authority is to be satisfied that all landscape works, including the removal of all noxious weed species, have been undertaken in accordance with the approved landscape plan and conditions of Development Consent.

All letter boxes must be constructed and located in accordance with the relevant provisions of Australian Standard AS/NZS 4253:1994 Mailboxes and to Australia Post's satisfaction. Work is to be completed prior to the issue of an Occupation Certificate.

A street / shop number must be clearly displayed at the ground level frontage of the building prior to the issue of an Occupation Certificate. A separate application must be made to Council if new street numbers or a change to street numbers is required.

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 132092 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 the Certifying Authority prior to the issue of an Occupation Certificate.

Tactile ground surface indicators complying with Australian Standard AS 1428.4:2002 Design for access and mobility - Tactile indicators must be provided at the point of common public access to the building and at the vehicular access points to assist people with visual impairments in gaining access to and from the public way and the premises prior to the issue of an Occupation Certificate. Such works are to be undertaken wholly within the boundaries of the site.

Prior to the issue of an Occupation Certificate, the Principle Certifying Authority must ensure that the stormwater drainage system has been constructed in accordance with the approved design and relevant Australian Standards. A plan showing pipe locations and diameters of the stormwater drainage system, together with certification by a Licensed Plumber or qualified practicing Civil Engineer that the drainage system has been constructed in accordance with the approved design and relevant Australian Standards, must be provided to the Principle Certifying Authority prior to the issue of an Occupation Certificate.

Prior to the issue of an Occupation Certificate, the Principle Certifying Authority must ensure that all approved road, footpath and/or drainage works, including vehicle crossings, have been completed in the road reserve in accordance with Council Roadworks Permit approval. Written notification from Council that the works approved under the Roadworks Permit have been completed to its satisfaction and in accordance with the conditions of the Permit, must be provided to the Principle Certifying Authority prior to the issue of an Occupation Certificate.

Prior to the issue of an Occupation Certificate, the Principle Certifying Authority must ensure that all aspects of the flood risk management report have been implemented in accordance with the approved design and relevant Australian Standards. Certification by a qualified practicing Civil Engineer that all aspects of the flood risk management report have been implemented and constructed in accordance with the development consent and with relevant Australian Standards must be provided to the Principle Certifying Authority prior to the issue of an Occupation Certificate.

Prior to the issue of an Occupation Certificate, the Principle Certifying Authority must ensure that the vehicle access and off street parking facilities have been signposted and line marked in accordance with the relevant Australian Standards.

ONGOING CONDITIONS OF CONSENT 76. Within 30 days of commencement of operation of the Child Care Centre at full or near full capacity an acoustic compliance test shall be undertaken to verify compliance with condition 4. A report relating to that test shall be submitted to Council within 10 days of the test. If the report identifies non-compliance with condition 4 additional noise control measures and/or alterations to the Plan of Management shall be implemented in accordance with condition 77 within 21 days to ensure compliance with condition 4. In that event a second acoustic compliance test shall be undertaken within 7 days of the additional noise control measures/ alterations to the Plan of Management being implemented. A report relating to that test shall be submitted to Council within 7 days of the test. Acoustic compliance testing shall be carried out by an independent accredited acoustic consultant/engineer who has had no prior association with this development.

In the event that the acoustic analysis reveals a breach, measures must be immediately implemented, such as an increase in staff supervision and/or reduction in numbers of children attending the site to ensure compliance. Upon remedial action measures being implemented, further testing, within a period of eight weeks, must be carried out at an exact date/time unknown by the operators of the facility. All costs associated with additional monitoring are to be borne by the owner or operator. The Plan of Management shall be amended to reflect any changes to the operation of the centre resulting from the remedial measures.
The consent of the neighbouring properties from which measurements are to be taken must be obtained by the acoustic engineer carrying out the analysis. A right of access for acoustic monitoring purposes is not implied by these conditions. In the event that access is denied from a neighbouring site, the monitoring is required to be carried out on the site boundary adjacent to 10, 12 and 14 Foy Street at ground and first floor levels.

Operation of the proposed child care facility (including and future new proprietors/operators) must be carried out in accordance with the approved Plan of Management.

Any basement car parking space must not be individually enclosed without prior development consent.

Driveways and parking spaces must not be used for manufacture, storage or display of goods, materials and equipment. The spaces must be available at all times, for all vehicles associated with the development.

The Operation and Management Plan for the basement pump-out system, approved with the Occupation Certificate, must be implemented and kept in a suitable location on site at all times.

At all times, the loading, car parking spaces, driveways and footpaths must be kept clear of goods and must not be used for storage purposes.

An annual Fire Safety Statement must be given to Council and the New South Wales Fire Brigade commencing within twelve (12) months after the date on which the initial Interim / Final Fire Safety Certificate is issued.
All outdoor lighting must not detrimentally impact upon the amenity of other premises and adjacent dwellings and must comply with, where relevant, Australian Standard AS 1158.3:2005 Lighting for roads and public spaces - Pedestrian Area (Category P) lighting - Performance and design requirements and Australian Standard AS 4282:1997 Control of the obtrusive effects of outdoor lighting.

No advertisement shall be erected on or in conjunction with the proposed development without prior development consent unless the advertisement is 'exempt development' under Council's Development Control Plan No. 35 - Exempt and Complying Development.
The premises shall not be used for any purpose other than that stated in the Development Application, i.e. child care facility without the prior consent of the Council unless the change to another use is permitted as exempt development under Leichhardt Development Control Plan 35 - Exempt and Complying Development. The use of the premises as a child care facility, is defined under the Leichhardt Local Environmental Plan 2000 as follows:

Child care facility means a building or place used for the purpose of supervising or caring for children (such as a service of the kind provided at centres for long day care, child minding, pre-school or occasional care, or a multi-purpose child care or neighbourhood centre) which: a) caters for 6 or more children up to 12 years old, and b) may include an educational function, and c) may be used for the hourly care of infants to enable their carer to participate in short-term activities, and d) may operate for the purpose of gain, and e) is not home based,but does not include home based child care. 88. Suitably constructed waste disposal containers with securely fitting lids must be kept on the property for the storage of any clinical, contaminated or related waste prior to the final disposal of the material at a facility approved by the Department of Environment and Climate Change NSW.

All newly planted trees on site must be appropriately maintained on an on-going basis. Maintenance includes watering, weeding, removal of rubbish from tree bases, pruning, fertilizing, pest and disease control and any other operations required to maintain a healthy vigorous tree.

A. This Determination Notice operates or becomes effective from the endorsed date of consent.

B. Prior to the issue of the Construction Certificate, the applicant must make contact with all relevant utility providers (such as Sydney Water, Energy Australia etc) whose services will be impacted upon by the development. A written copy of the requirements of each provider, as determined necessary by the Certifying Authority, must be obtained.

E. Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act 1979 and/or the conditions of this consent may result in the serving of penalty notices or legal action.

F. Works or activities other than those approved by this Development Consent will require the submission of a new development application or an application to modify the consent under Section 96 of the Environmental Planning and Assessment Act 1979.

G. This decision does not ensure compliance with the Disability Discrimination Act 1992. Applicants may wish to investigate their potential for liability under that Act.

H. This development consent does not remove the need to obtain any other statutory consent or approval necessary under any other Act, such as (if necessary): a) Application for Approval under Section 68 of the Local Government Act 1993 for any activity under that Act, including any erection of a hoarding.

c) Application for a Construction Certificate under Section 109(1)(B) of the Environmental Planning and Assessment Act 1979 .

d) Application for an Occupation Certificate under Section 109(C)(2) of the Environmental Planning and Assessment Act 1979 .

g) Development application for demolition if demolition is not approved by this consent.

h) Development application for subdivision if consent for subdivision is not granted by this consent.

i) An application under the Roads Act 1993 for any footpath / public road occupation. A lease fee is payable for all occupations. I. In accordance with section 81A of the Environmental Planning and Assessment Act 1979, the person benefiting from this consent is notified that if Council is engaged as the Certifying Authority, critical stage inspections to be carried out will include those listed under the sub-heading "Critical Stage Inspections" in this consent. If additional inspections are required, further notice will be provided.

      T A Bly
      Commissioner of the Court
      ljr

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

CITATION : Balmain Care for Kids Pty Ltd v Leichhardt Municipal Council [2009] NSWLEC 1146

Universal Child Care Pty Ltd v Leichhardt Municipal Council [2007] NSWLEC 808 CASES CITED: Universal Childcare Pty Limited v Pittwater Council [2007] NSWLEC 665 Design 23 v Woollahra Municipal Council [2009] NSWLEC 1114

39 Mr Cooper explained that the 1 1/2 hours per day standard was the relevantly applicable standard and that he has consistently used this for eight years. He also pointed out that the Court has, in the past, accepted this standard referring to several cases including Universal Childcare Pty Limited v Pittwater Council [2007] NSWLEC 665. In Universal Childcare Murrell C accepted the evidence of Mr Cooper (the parties' single acoustic expert) that the generally accepted noise requirements for the duration of children's free play are: o For 1.5 hours of free play - background plus 10dB(A) o For 2.5 hours of free play - background plus 7dB(A) o For above 2.5 hours of free play - background plus 5dB(A). 40 Mr Cooper also referred to the above-mentioned case of Universal Child Care where the council proposed a condition allowing an exceedence of 10 dB(A) for up to 1 1/2 hours. However the judgment concluded that the appeal should be dismissed and did not address this condition.

41 In response Mr Atkins referred to the Court's decision in Design 23 v Woollahra Municipal Council [2009] NSWLEC 1114. In Design 23 Brown C accepted the evidence of acoustic experts Mr N Gross and Mr R Tonin who used the Association of Australian Acoustical Consultants Technical Guideline - Child Care Centre Noise Assessment (May 2008) for their assessment. (Mr Gross and Mr Tonin are members of that association but Mr Cooper is not). For residential receptors (in this case the adjoining town houses) the Association's guideline standard is: o Up to 2 hours (total) per day - the L eq 15 min noise level emitted from the outdoor play area shall not exceed the background noise level by more than 10 dB at the assessment location. o More than 2 hours (total) per day - the L eq 15 min noise level emitted from the outdoor play area shall not exceed the background noise level by more than 5 dB at the assessment location. 42 According to the Technical Guideline publication: The recommendations in this guideline are based on the common practice of AAAC members and the results of a NSW Australian Acoustical Society (AAS) Technical Meeting in September 2007 on Child Care Noise. 43 Mr Cooper was nevertheless concerned that the guideline standard should not be utilised because he understood that it was the common practice of Association members to apply the + 10 dB(A) standard for 1 1/2 rather than 2 hours.

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

Parties

Cases Cited (4)

Cited By (1)