Emily II Investments v Rockdale City Council and anor

Findings 36 In considering the competing submissions, I agree with the conclusions of Mr McEwen. While there is some logic to the submission of Mr Gough that the Model Provisions definitions should be included with the other definitions in cl 8, there is nothing within cl 8 or cl 10 or anywhere else in LEP 2000 to suggest that this is the way that these definitions should be considered. In the absence of any specific provision to support Mr Gough's submission, I accept that the definitions imported from the Model Provisions are simply activated through cl 10, rather than cl 8. The effect is that the supermarket is appropriately categorised as a "shop", as there is no building or place used for a purpose elsewhere specifically defined in cl 8. 37 I also accept the submission of Mr McEwen on the use of the word "site" in the definition of "mixed use premises". The zoning table identifies that "mixed use premises" is one of the purposes for which development may be carried out. The word "site" in the definition of "mixed use premises" does not detract from its permissibility generated by the zoning table. I am also satisfied that the singular and plural submission of Mr Gough is overcome by s 8(b) of the Interpretation Act 1987.

38 The decision of Maryland Development highlights the tension between the definitions of "shop" and "general store". As submitted by Mr McEwen, the differences between the definitions hinges largely on the particular characteristics of the premises in question. In Maryland Development, comprehensive details of the product lines to be carried were available (see pars 34, 119 and 120). It would be fair to say that these details were ultimately found by His Honour to be an important consideration in the categorisation of the use as a "general store". In this case, the extent of the product lines was generally limited to the term "full line supermarket". In the absence of any greater detail on the types of products to be sold, it is open to the Court to categorise the supermarket as a "shop".

39 While the Court is bound by the requirements of the LEP 2000 in determining what land uses are permissible or prohibited, in practical terms it seems an absurdity when two separately defined land uses (that is, a "shop" and a "general store") are virtually identical in terms of their operation, however one is permissible and the other is prohibited.

40 For the reasons mentioned in the preceding paragraphs, I am satisfied that the proposed development is appropriately categorised as a "mixed use premises" and consequently is permissible within the 3(a) and 3(c) zones. Regional planning implications The evidence 41 Mr Witherby and Mr Beckley state that the 3(a) zoning cannot be considered as a reflection of state policy as the Draft South Subregional Strategy identifies the area in which the proposal is located as separate to and smaller than Bexley town centre. The assessment of the development application needs to be seen in the context of a suite of planning controls, extending from state policy, LEP 2000, LEP 155 and DCP 27. In the opinion of Mr Witherby and Mr Beckley the type of development proposed is inconsistent with the range of planning controls applicable to the site.

42 Mr Witherby and Mr Beckley also agree that State Environmental Planning Policy No. 66 - Integration of Land Use and Transport (SEPP 66) and the policy The Right Place for Businesses and Services- Planning Policy still has currency as the proposed development will not anchor the nearby higher order Bexley town centre and that the centre will be commercially threatened by the proposed development. The proposed development would tend to discourage investment in the Bexley town centre and this would further the urban blight, already noticeable in the centre. While accepting that the proposed development would be of little detriment to the Rockdale town centre, the agreed position of Mr Witherby and Mr Beckley is that the proposed development would not strengthen this centre. 43 Mr Beckley notes that Development Control Plan 68 - Bexley Town Centre (DCP 68) does not apply to the site. The boundary of DCP 68 extends only to the western side of Bexley Public School. The purpose of DCP 68 is to encourage "development to contribute to a positive future for Bexley". In his opinion, this will not be achieved with the construction of a full line supermarket outside the Bexley town centre.

44 In relation to Draft South Subregional Strategy, Ms McCabe states that, at best, the document informs council's planning processes, particularly in the preparation of a comprehensive local environmental plan. It is not a document that should dictate the assessment of an individual development application. Ms McCabe describes SEPP 66 as having no application as Planning Circular PS-08-13 (13 November 2008) states that draft SEPP's not made within three years of exhibition should not be a consideration in the assessment of development applications.

45 Ms McCabe further states that the 3(a) zoning of the site envisages the potential use of the land for a range of uses, including a supermarket and office premises. There are no limits on retail or commercial uses. The zoning was created in complete knowledge of the existing zoning of the Rockdale and Bexley centres. The proposal is on land planned for the type of uses proposed in the application, is in close proximity to transport networks and walking distance to the Bexley shopping centre. There is nothing in any regional strategy, including the NSW Retail and Centres Policy that would limit the use of the land for the proposed development. The appropriateness or otherwise of a supermarket on the site relies only on its merits and this is appropriately tested against the provisions of LEP 2000 and DCP 27.

Findings 46 On this issue, the evidence of Ms McCabe must be accepted. The controls in LEP 2000 and DCP 27 must be the principle means of determining whether the proposed development is appropriate or not. I agree with Ms McCabe that planning documents such as the Draft South Subregional Strategy, SEPP 66 and accompanying documents and the NSW Retail and Centres Policy are important documents for councils in local planning however they cannot be seen as a valid basis to override existing properly prepared local planning controls such as LEP 2000 and DCP 27. It must be presumed that the consequences of zoning the site 3(a) were fully understood by the council when it resolved to allow the rezoning in 1999. 47 It is difficult to give any substantive weight to DCP 68 as a basis for the refusal of the application as it does not apply to the site. Again, significant weight has to be given to the 3(a) zoning of the site and the site-specific DCP 27.

48 While the experts put their minds to whether sites could be amalgamated to allow the construction of a full line supermarket within the Bexley town centre, I do not accept that this is a necessary or appropriate part of the determination of the proposed development application. The question that needs to be answered is simply whether the proposed development is appropriate on the site and not whether it is more appropriately located at another site.

The zone objectives The 3(a) zone objectives 49 The objectives of the 3(a) zone are: (a) to encourage appropriate business activities which contribute to economic growth and employment opportunities within the area, and (b) to provide a range of retail, commercial and professional services in appropriate localities, and (c) to promote urban consolidation policies by permitting the establishment of additional residential space in the form of mixed developments. The evidence 50 Mr Beckley states that the proposal does encourage employment opportunities and economic growth however the scale and intensity of the proposal is not appropriate for the immediate area. Given the disconnection from the Bexley shopping centre, the proposal infringes objective (a). The proposal also offends objective (b) in that while providing a range of retail, commercial and professional services, the underground supermarket significantly increases the intensity of the commercial use to an inappropriate level at this location. Mr Beckley further states that the proposed development is inconsistent with objective (c) in that while the proposed development provides for some residential development, this component represents a small component of the total floor space. In his opinion, the provision of a minor residential component within the development does not sufficiently promote urban consolidation.

51 Ms Lee comes to the opposite conclusion. She states that the proposed development is consistent with objective (a), in that a diversity of uses is provided that will contribute to both employment and economic growth. The proposal is also consistent with objective (b) as the proposed development provides the opportunity for a range of retail, commercial and professional services and objective (c) because of the higher density housing provided in the development.

52 Ms McCabe comes to a similar conclusion as Ms Lee. She states that the proposed development meets the objectives of both zones. She further states that the appropriateness or otherwise of the proposed development is determined by the underlying zone. In this case the 3(a) and 3(c) zones permits shops and commercial premises and neither seek to restrict the size of shops. Similarly there are no specific provisions in LEP 2000 that limit the nature of the uses in the 3(a) zone.

Findings - 3(a) zone objectives 53 Clause 12(3) of LEP 2000 imposes preconditions to the Court exercising the power to grant consent to the proposed development. The clause requires that the development must be "consistent with one or more of the objectives of the zone". A finding of inconsistency must see the appeal dismissed and a finding of consistency would enliven the power to grant development consent subject to a merit assessment.

54 I agree with Ms Lee and Ms McCabe that the proposed development is not inconsistent with any of the zone objectives. I can comfortably conclude that the proposed development will contribute to economic growth and employment opportunities in the area because of the opportunities available through the construction of the building, the provision of a range of retail, commercial and professional services through the proposed shops and office areas and promote urban consolidation policies by permitting the establishment of residential consistent development, consistent with that required by cl 41(3)(b). 55 I fail to understand the evidence of Mr Beckley on the scale and intensity of the development given the satisfaction with the height and FSR requirements in DCP 27. Similarly, I fail to understand the evidence of Mr Beckley on the insufficient amount of residential development given the limitations imposed by cl 37(4). 56 A consistent theme running through the evidence from the council and the Chamber of Commerce was the inappropriate location for a supermarket in relation to the existing Bexley shopping centre. Much of the evidence indicated that a supermarket could reasonably be located in the general area but the location should be within the existing Bexley shopping centre. While there are some obvious benefits to this location, a location outside the Bexley shopping centre is not necessarily a matter that, by itself, would lead to a finding of inconsistency with the zone objectives.

57 Presumably, the council when rezoning the site in 1999 to the 3(a) zone understood that the site would ultimately be used for a use or uses allowed by the 3(a) zoning. The 3(a) zone is the highest order commercial zone in the Rockdale local government area. The potential uses would include a supermarket, given the size of the site. The provisions of DCP 27 reinforce the potential (or even likelihood) of a supermarket being located on the site as specific requirements are provided for a supermarket. Similarly, it would presumably be understood that the site would be developed to its maximum potential under LEP 2000 and DCP 27 in terms of floor space and form.

58 The question of whether the site is suitable for the proposed development has been assessed against the relevant provisions of DCP 27 later in the judgment and found to be acceptable despite some variations to the requirements in DCP 27. 59 In considering the requirements in cl 12(3), I am satisfied that the proposed development is consistent with one or more of the objectives of the 3(a) zone in which it is located and the power to grant development consent is available, subject to a merit assessment.

The 3(c) zone objectives 60 The objectives of the 3(c) zone are: ( a) to provide a level of local retail and commercial facilities which services the immediate residential community, and (b) to ensure that the nature, scale and type of development is compatible with adjacent residential development, and (c) to ensure that development within neighbourhood centres does not detract from the economic viability of the commercial centres in Zone 3 (a) within the City of Rockdale. The evidence 61 Mr Witherby and Mr Beckley state that the proposed development is inconsistent with the objectives of the 3(c) zone as the scale of the overall proposal is greater than that required to service the immediate residential community. The nature, scale and type of development, specifically a supermarket of the size proposed, is incompatible with adjacent to residential development and the entire development would detract from the economic viability of the Bexley town centre.

62 Ms McCabe states that the proposal is consistent with the objectives of the 3(c) zone in that the development would service immediately adjoining residents. Further, the nature and scale of the development is as envisaged by the controls and the proportion of the development within the 3(c) zone is only a minor part of the overall development. Findings - the 3(c) zone objectives 63 I agree with the conclusions of Ms McCabe. The site contains 3(a) and 3(c) zoned land. The majority of the site (3239 sq m or 92%) falls within 3(a) zoned land. The remaining 3(c) zoned land (288 sq m or 8%) has a frontage to Forest Road and is surrounded by 3(a) zoned land. While the 3(c) zoned land has different requirements for development, in practical terms a better urban design outcome is achieved through the development of 3(c) zoned land in conjunction with the 3(a) zoned land notwithstanding the different zone objectives and development requirements. The unchallenged evidence of Ms Lee was that the combined development of the 3(a) and 3(c) zoned land was an approach encouraged by council staff (including Mr Kulchar) at a meeting in September 2007.

64 Because of the size and location of the 3(c) zoned land, I am satisfied that it could not be inconsistent with the 3(c) zone objectives even if considered as a separate area and not as part of the overall development of the site. I accept that because of the relatively small area of 3(c) zoned land and it's location on Forest Road, the land could not be incompatible with adjacent residential development and detract from the economic viability of the commercial centres in Zone 3 (a) within the City of Rockdale. It is also likely that the 3(c) zoned land will service the immediate residential community. 65 In considering the requirements in cl 12(3), I am satisfied that the proposed development is consistent with one or more of the objectives of the 3(c) zone in which it is located and the power to grant development consent is available, subject to a merit assessment.

The planning contentions 66 The contentions can be grouped into the following main areas: o the SEPP 1 objection, o streetscape/ character o economic impacts o building design, and o amenity impacts. The SEPP 1 objection 67 The SEPP 1 objection states that the FSR for the 3(c) zoned is 2.48: 1, whereas cl 37(1) provides for a maximum FSR of 1:1. Clause 37 of LEP 2000 identifies the objective of the FSR development standard as: To control the intensity and scale of development of land zoned business so that development will be in accordance with the land's environmental capacity and zone objectives. 68 The SEPP 1 states that the scale and intensity of development on this portion of the site is not beyond the environmental capacity. The proposed development is within the limits in terms of traffic generation and noise and will not cause adverse impacts to neighbouring properties. The scale and built form, as a whole, has been designed to ensure a suitable relationship with the neighbouring properties. The bulk is distributed over the site to ensure that the development creates a suitable urban outcome when presented in the broader streetscape. Notwithstanding the exceedance of the FSR, the design of the development to Forest Road presents a consistent built form and alignment with the neighbouring properties. 69 The SEPP 1 objection concludes by stating that the proposed development is consistent with the requirements of the policy and will result in a more holistic and beneficial use of the site than if the FSR standard was applied directly. The application of the standard is unreasonable and unnecessary in this case.

The assessment approach 70 A means of dealing with a SEPP 1 objection is set out in Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46, where a number of questions are asked. The first question asks whether the subject planning control is a development standard. In this regard there was no dispute that the answer to this question was yes. The second question asks what is the underlying object or purpose of the standard. The third question asks whether compliance with the development standard is consistent with the aims of SEPP 1. The aims state: 3. This policy provides flexibility in the application of planning controls operating by virtue of development standards in circumstances where strict compliance with those standards would, in any particular case, be unreasonable and unnecessary or tend to hinder the attainment of the objects specified in section 5(a)(i) and (ii) of the Act. 71 This question also asks does compliance with the development standard tends to hinder the attainment of the objects specified in s 5(a)(i) and (ii) of the EPA Act. These objects state: 5.The objects of this Act are: (a) to encourage - (i) the proper management, development and conservation of natural and artificial resources, including agricultural land, natural areas, forests, minerals, water, cities, towns and villages for the purpose of promoting the social and economic welfare of the community and a better environment; (ii) the promotion and coordination of the orderly and economic use and development of land. 72 The fourth question asks whether compliance with the development standard is unreasonable or unnecessary in the circumstances of case. The fifth, and final question asks whether the objection is well founded.

73 The comments of Preston CJ in Wehbe v Pittwater Council [2007] 156 LGERA 446 are also relevant. This judgment supplements the findings in Winten and identifies a number of ways of establishing that compliance is unreasonable or unnecessary. Wehbe acknowledges that the most commonly used way of addressing a SEPP 1 objection is to establish that compliance with the development standard is unreasonable or unnecessary because the objectives of the development standard are achieved notwithstanding non-compliance with the standard (or the Winten tests) (Test 1).

74 A second way is to establish that the underlying objective or purpose is not relevant to the development with the consequence that compliance is unnecessary (Test 2). 75 A third way is to establish that the underlying objective or purpose would be defeated or thwarted if compliance was required with the consequence that compliance is unreasonable (Test 3).

76 A fourth way is to establish that the development standard has been virtually abandoned or destroyed by the council's own actions in granting consents departing from the standard and hence compliance with the standard is unnecessary in unreasonable (Test 4).

77 A fifth way is to establish that the zoning of particular land was unreasonable or inappropriate so that a development standard appropriate that that zoning was also unreasonable or unnecessary as it applied to that land and that compliance with the standard in that case would also be unreasonable or unnecessary (Test 5).

78 I have previously addressed the issue of consistency with the 3(c) the zone (see pars 63 to 65) and found the proposed development to be consistent with these objectives. For similar reasons, I am satisfied that Tests 2, 3 and 5 in Wehbe support a variation to the development standard in that the purpose is not relevant to the development, that the underlying objective or purpose would be defeated or thwarted if compliance was required and the 3(c) zone is inappropriate because of its small size and the fact it is surrounded by 3(a) zoned land.

79 For these reasons, strict compliance with the FSR development standard for the 3(c) zoned land is unreasonable and unnecessary in the circumstances of this case. It follows that the SEPP 1 objection is well founded. The DCP 27 planning framework 80 The relevant parts of the DCP 27 are cl 1.1, The Structure of this Plan where it relevantly states: * Objectives describe what is meant to be achieved by the design elements. * Standards requirements which, when met, evidence that the development meets the Objectives. These measures will, in most cases, be applied by Council in determining a development application. However, they may be varied by Council if it can be shown that a development meets the Objectives and Planning Criteria through some other means. This Development Control Plan aims to ensure that the subject land use is redeveloped in a manner which is compatible with its local context and that the resultant development is sympathetic to the existing character of the locality and makes a positive contribution to this section of Forest Road. 81 Clause 5 provides General Objectives of The Plan. The relevant objectives are: (a). enable a mixture of commercial and residential land uses on the subject site in an integrated and co-ordinated manner; (b) ensure that infill development of the subject land is sympathetic to the existing development within the locality and responds to the surrounding built environment and community expectations; (c) protect the residential amenity of adjoining properties, including visual and acoustic privacy; (h) provide appropriate setbacks, stepping and envelope controls for development to be carried out on the site, having regard to the nature and location of adjoining development; and

82 Clause 9 provides objectives and standards for Parking and Loading. The relevant objective is: (b) To ensure that the streetscape is not dominated by car parking structures. 83 The relevant standard is: (d) Car parking facilities including access ways and ventilation should not dominate the view of the development from the street, and should be visually compatible with the development. 84 Clause 13 provides objectives and standards for Setbacks and Envelope Controls. The relevant objectives are: (a) To ensure that the future development of the site adequately responds to the site's location and context.

(b) To ensure that the building frontage, alignment, and the height and length of walls are of appropriate scale, character and visual bulk. 85 The relevant standards are: ( b) The setback to Frederick Street to be a minimum of 8.5 m to the Frederick Street property boundary. The rear property boundary setbacks (i.e. to the north-east property boundary) to be a minimum of 12 m. (c) The setback to Frederick Street may be reduced to 4.0 m, but only where offset by an increase in the setback to between 14 m and 27 m (minimum) to the north eastern boundary of the site (refer figure 2). In addition, the area between the north-eastern property boundary and the building line is to be suitably landscaped to maintain the privacy and amenity of adjoining residential development. 86 Clause 15 provides objectives and standards for Commercial Uses. The relevant objectives are: (a) To encourage commercial land uses along with the Forest Road frontage of the site, while restricting the expansion of commercial land uses into residential streets. (b) To ensure that new development on the site does not detract from the commercial viability of the Bexley and Rockdale town centres. 87 The relevant standards are: (a) Commercial uses on the site are to be confined to the Forest Road frontage. (b) Council reserves the right to limit the hours of operation of any commercial/retail use to reasonable hours to protect the amenity of surrounding residential areas. (c) Council reserves the right to restrict certain uses which may detract from existing commercial centres at Bexley and Rockdale (eg supermarkets, fruit markets, etc), or uses which may detract from residential amenity. Streetscape/character The evidence 88 Mr Beckley states that the strategic basis for rezoning the site was to allow a mixed use development that would confine commercial uses to be Forest Rd frontage (where there is a lower residential amenity) and allow for a transition to the adjoining low density residential area.

89 In accepting that amendments to the plans have created a more visually interesting built form, Mr Porter maintains that the fundamental problem still remains in that the proposal provides for an internal semi-public space that internalises activity and detracts from the public domain. In his opinion, this is a direct consequence of the extent of internal retail space with the result that the internal circulation space competes with the street and public domain rather than complementing it. Mr Porter also raises concern over the-non active Forest Road Street frontage, the lack of an appropriate response to the existing residential streetscape and adjoining properties by way of an inadequate setback and stepping back of the building at the upper levels to Frederick Street. Mr Porter also raises concern over the effect that the car parking and loading dock entries have on the residential amenity of Frederick Street. 90 Mr Dickson disagrees with the conclusions of Mr Beckley and Mr Porter. He states that the character of the proposed development has a strong relationship with the character of the existing community. There is a generally two-storey retail facade with the third storey set back, individual shopfront articulation and consistent low awning height above glazed shopfront windows facing Forest Road.

91 Mr Dickson states that the proposed development provides an improved boundary edge for adjacent residential properties. The proposed building has upper level setbacks to increase privacy for adjacent residences and minimise building scale. Landscaping and an acoustic wall provide an additional buffer for the adjoining property at 157 Frederick Street. Additional street planting is provided along Frederick Street and the building articulation provided in Forest Road is carried through to the Frederick Street elevation. Mr Dickson's comparative sections of the existing and proposed buildings indicate a general consistency in overall form.

92 Ms Lee supports the conclusions of Mr Dickson and states that the southern elevation of the building has been designed to step down in physical form to provide an appropriate transition to the adjoining residential land uses. Landscaping and the selection of appropriate materials surrounding the entry to the car park have been carefully chosen to soften the appearance of the building and ensure that the southernmost portion reads as a residential element when viewed from Frederick Street. This allows for the bulk, scale and appearance of the structure to be compatible with the local context. The findings Forest Road 93 Notwithstanding the variations to the DCP, I accept the conclusions of Mr Dickson and Ms Lee. Some cognisance needs to be taken of the relatively pedestrian unfriendly environment of this frontage. Forest Road carries a large volume of traffic, including heavy vehicles and the public area is not a desirable location for an active public domain. Its functional role is largely as a thoroughfare but with access to the retail activities of the proposal and some shop fronts. With the existing traffic constraints, I am satisfied the building provide a commensurate level of activity.

94 Mr Dickson's evidence provides a thorough assessment of the Forest Road streetscape and I accept his conclusions that the proposed development provides a quality building design through a range of building materials, facade articulation and the continuation of the footpath awning. Frederick Street 95 This frontage of the building raises a number of issues when compared to the requirements of DCP 27. Again, I accept the design of the building is acceptable despite the variations to the DCP requirements. DCP 27 seeks to relate development on the site to the residential development further to the south in Frederick Street through a minimum 4 m setback, the exclusion of commercial uses and limitations on the car park/loading area entry.

96 In accepting that the general aim of relating any development on the site to the residential component of Frederick Street is desirable, I am satisfied that the aim can be achieved without strict compliance with the relevant requirements of DCP 27. The form and nature of the proposed development (and any development based on DCP 27) will be clearly seen as commercial. This is a natural consequence of the 3(a) zoning. I do not accept that the provision of a minimum 4 m setback to Frederick Street alters this perception or provides as association with the nearby residential development in any meaningful way. The proposed zero setback is consistent with the Forest Road frontage, the existing commercial building on the site and generally most commercial developments in a 3(a) zone. As with the Forest Road streetscape, the building design provides an interesting and varied facade, consistent with what would be expected for a commercial site. The streetscape provides for two retail tenancies, part of the principal access to the commercial and retail component of the building and access to the residential component. The impact, if any, on the residential properties in Frederick Street is negligible and what would be reasonably expected for the site, given the less attractive, smaller and busier Forest Road frontage.

97 Similarly, the entrance to the underground car park and loading facilities is consistent with the commercial use of the site. It could not be expected to be in any other location given that the entrance cannot be located in Forest Road and for traffic safety reasons is best located at the maximum distance from the corner of Forest Road and Frederick Street. While it was argued that the size of the car park entrance/loading dock entry was directly related to the inclusion of a supermarket in the development (and this may well be correct) I am not satisfied that a development without a supermarket, and not unreasonably seeking to maximise development of the site in accordance with the requirements of LEP 2000 and DCP 27, would require a car park entrance/loading dock entry that would not be substantially different to that proposed in this application. 98 The objective in cl 15(a) seeks to restrict the expansion of commercial land use into residential streets however given the constraints mentioned in the preceding paragraph, I am satisfied that the proposed development restricts commercial development in Frederick Street as much as is practicably possible.

Impact on residential properties in Fredrick Street 99 Based on the site view, the residential properties on the opposite side of Frederick Street are located some 35 m from the site. The closest residential property in Frederick Street is directly behind the site at 157 Frederick Street. DCP27 provides for a setback of 2.75 m to this property and a maximum height of 65 m AHD (or around 13 m in height at the common boundary). DCP 27 also requires the development to be stepped in plan and/or elevation at the upper levels but without specifying a setback (cl 13(2)(e)) and at least four hours sunlight is to be provided to the adjoining residential properties between 9 a.m. and 3 p.m. in midwinter (cl 13(2)(f)).

100 The proposed development provides for setbacks to the main part of the building of 6 m to 8.5 m at the ground level, 12 m at the first level and 14 m at the second level. In my view, the proposed setbacks to 157 Frederick Street are generous given the requirements in DCP 27. It would appear from DCP 27 that the upper level setbacks are largely governed by the satisfaction of the solar access requirements for the adjoining property. Given the orientation of the lots and the proposed and existing building forms, I am satisfied that the solar access requirements will be easily met by the proposed development because of the generous setbacks. It is likely that the required amount of solar access could still be achieved with lesser setbacks. The significant setbacks at the upper levels have the added benefit of providing a better relationship and greater compatibility with the adjoining residential context because of greater separation and the stepping of the setbacks with height. In my view, this is far more effective in providing a positive relationship with adjoining residential development than the provision of a 4 m setback to Fredrick Street. 101 The Court was directed to the judgment of Zhang v Canterbury City Council (2001) 115 LGERA 373 where Spigelman CJ (at par 75) stated that the provisions of a DCP are to be considered as a fundamental element in, or a focal point to, the decision-making process particularly, if there are no issues relating to compliance with a local environmental plan. His Honour also relevantly stated that a provision of the DCP directly pertinent to the application is entitled to significant weight in the decision-making process but it is not in itself determinative.

102 In this case, cl 1.1 of DCP 27 provides the opportunity to vary the requirements subject to the satisfaction of certain criteria. I am satisfied that it has been shown that the proposed development meets the relevant objectives and planning criteria of DCP 27. In my view, the proposed development satisfies the General Objectives (b) and (h), objective 9(b), objectives 13(a) and (b) and objective 15(a) and as such, strict compliance with the standards in DCP 27 is not required. Economic impacts The evidence 103 Mr Leyshon and Mr Stephens agreed that there will be minimal synergies between the site and Bexley town centre because of the distance between the two areas. Mr Leyshon is of the view that some shoppers will patronise both areas as part of a single shopping visit however Mr Stephens considers the likelihood to be low having regard to the emphasis on car-based travel and the likely replication of convenience retail shops. 104 There was also agreement that even though Mr Leyshon or Mr Stephens adopt different populations for their different trade areas, there is scope for additional supermarket floor space to serve either trade area. Mr Leyshon goes as far to say that the area is substantially under serviced with full line supermarkets although Mr Stephens maintains that residents are relatively well served by existing supermarkets in centres adjacent, but not within, the trade area. 105 As Mr Leyshon and Mr Stephens use different methodologies to calculate the available supermarket spending based on their trade areas, they consequently have different conclusions on the impact on the Bexley town centre. Mr Leyshon estimates an impact of -7.2% (-$3.3 million) whereas Mr Stephens estimates in impact of -11.8% (-$4 million). Mr Leyshon does not consider that either impact estimate will materially affect the viability of Bexley town centre. Mr Stephens considers the potential for store closures and relocation of businesses from the Bexley town centre to be high.

106 Mr Leyshon considers the test imposed by cl 15(1)(b) should be read as requiring a material impact on the commercial viability of Bexley town centre. The test of a material effect on the viability of the centre is whether or not it would lose a core retail or commercial function within the centre, which would result in its role in the centres hierarchy being threatened. Mr Leyshon is of the view that this will not occur as a result of the proposed development.

107 Mr Stephens states that the meaning of cl 15(1)(b) should be read in conjunction with the overall intention of DCP 27 and other provisions in the plan. In his opinion, this leads to the conclusion that there should be smaller scale commercial uses on the site. In this context, the reference to detracting from the commercial viability of Bexley town centre should be seen as an intention to limit the scale and type of development for development in the Bexley village area (that is the 3(c) zoned land adjoining the site) compared to the Bexley town centre. Findings 108 Apart from the general consideration of the likely economic impacts of development in the locality (s 79C(b) of the EPA Act), potential economic impacts are raised by cl 15(1)(b) in DCP 27 where it provides that new development on the site does not detract from the commercial viability of the Bexley and Rockdale town centres. I did not understand there to be any issue by the experts over an unacceptable impact on the Rockdale town centre.

109 The experts disagree on the impact on Bexley town centre based on their interpretation of cl 15(1)(b). As a starting point, cl 15(1)(b) does not relate to individual shops but the town centre. I do not accept that the clause, (because of the use of the word "detract") can be read so narrowly so as to restrict the use of the site if there was any, no matter how small, impact on an individual shop or groups of shops. For the clause to have any meaning, there must be a quantifiable and more than minimal impact.

110 The threshold test used by Mr Stephens for cl 15(1)(b) is not, in my view, the appropriate test as any reliance on the intent of DCP 27 to limit the size of a development is clearly flawed given the absence of any such requirements in DCP 27 and more importantly in LEP 2000. 111 Mr Leyshon adopts as his threshold test for cl 15(1)(b), a material impact, as do the respondents town planning experts, Mr Beckley and Mr Witherby. As there is general agreement on the material impact threshold test for cl 15(1)(b), I accept it is reasonable in the circumstances.

112 It is clear that the proposed development will have an impact on Bexley town centre. It will provide another focus for commercial activity away from the existing Bexley town centre. This, however must have been contemplated when the site was rezoned to 3(a) without any restrictions on the amount of floor space and uses which would normally apply to 3(a) zoned land. In the absence of any such restrictions, it would be unrealistic to think that the site would be developed with a floor area less than is allowed under the planning controls. Even if a supermarket was not contemplated for the site, a significant amount of retail floor space is still potentially available and would still create another focus for commercial activity away from the existing Bexley town centre.

113 On the basis that the appropriate test in cl 15(1)(b) is to show that there will be a material impact on the commercial viability of the Bexley town centre, I accept the conclusions of Mr Leyshon. While maintaining that there will be an unacceptable impact, Mr Stephens accepts that there is a substantial undersupply of supermarket floor space, even in his adopted trade area, to the point where additional supermarkets could be accommodated.

114 I accept that a potential loss of between $3.3 million and $4 million from the Bexley town centre may create some adjustment to the makeup of the Bexley town centre through the movement and closure of some businesses and there will be other short-term impacts however I agree with Mr Leyshon that any impacts needs to be considered in the long-term rather than the short-term. 115 I also agree with Mr Leyshon that there are a number of core businesses within the Bexley town centre, such as the hotel, RSL Club, Post Office that are likely to be unaffected by the proposed development. The existing IGA supermarket within the Bexley town centre was seen by many of the lay witnesses as the focal point of the centre. This supermarket may potentially suffer a reduced turnover however based on the agreed substantial undersupply of supermarket floor space (even in the smaller catchment advocated by Mr Stephens) it is likely to continue operation. I am not satisfied that the adjustment of some commercial activities in the Bexley town centre through the development of an appropriately zoned site could be seen as having a material impact. It must be remembered that competition between trade competitors is not a relevant planning consideration (Fabcot Pty Ltd v Hawkesbury City Council [1997] NSWLEC 27)

116 The undisputed evidence was that the Bexley town centre was trading well notwithstanding a relatively high vacancy rate for shops. There was some difference of opinion between Mr Leyshon and Mr Stephens on the reason for the vacancy rate that did not necessarily relate to the quantum of floor space.

117 There is also some merit in Mr Leyshon's argument that a new significant anchor tenant, such as a full line supermarket, will attract additional patrons to the area and not just the site. The amount of retail space (beyond the supermarket) proposed in the development is limited compared to the floor space in the Bexley town centre and while the retail space within the proposed development is likely to be seen as desirable because of the location of a supermarket within the same building, the potential clearly exists for the Bexley town centre to benefit from the existence of the proposed development, even if in the longer term.

118 For the reasons mentioned above and in accordance with cl 15(1)(b) of DCP 27, I find that the proposed development will not detract from the commercial viability of the Bexley town centre.

Traffic, parking and unloading facilities Forest Road/Frederick Street/Broadford Street intersection 119 Mr Coady and Mr McLaren agreed that if traffic signals are installed at the Forest Road/Frederick Street/Broadford Street intersection, the additional traffic demand on the intersection from the development, will not have an unacceptable effect on intersection performance. The applicant accepted a condition of consent to install traffic signals. Off street car parking provision 120 The councils DCP requires a total of 212 spaces, being made up of 20 spaces for the residential component and 192 spaces for the retail/commercial component. The proposed development provides a total of 206 spaces or 205 spaces when one space is allocated for a courier parking space. The deficiency is therefore 7 car parking spaces. 121 Mr Coady and Mr McLaren agreed that the deficiency in car parking is not a matter that requires correction because of the likely complementary and dual use of car parking associated with the mixed use nature of the development.

122 I concur with the conclusions of Mr Coady and Mr McLaren.

Unloading facilities for the liquor outlet 123 Mr McLaren raised concerns over the movement of liquor outlet goods from the loading dock to the bottle shop, as it may involve movements of goods through the retail arcade to the lift shared by supermarket customers, bottle shop customers, office users and service to lift for the residential component of the development.

124 Following the amendment of the plans to provide an additional goods lift to service the liquor outlet, Mr McLaren accepted that his concerns have been adequately addressed.

The loading dock 125 Loading facilities for the proposed development are provided from Frederick Street. Four loading docks are provided (excluding the courier loading bay in the basement) with two docks allocated for the supermarket and two docks allocated to the remaining retail and commercial uses. Trucks will enter in a forward direction and when necessary, use an electric turntable to reverse into the appropriate loading dock. When unloading is completed the trucks will leave the loading area onto Frederick Street in a forward direction. An Operation Management Plan (the Plan) will control the operation of the loading facilities. In general, the Plan provides for: o a dedicated loading dock manager to coordinate delivery schedules, o restriction on the number and size of truck deliveries, o complaint management procedures, and o a corrective action plan.

126 Mr McLaren expressed concern over the Plan and how the servicing requirements of each of the retail tenancies, commercial tenancies, bottle shop and residential apartments will be managed on a day-to-day basis.

127 Mr Jamie Milner, a Development Engineer with the council, provided evidence of a conversation with a colleague from Hurstville City Council on the operation of a similar loading facility at a Coles supermarket at West Oatley. He stated that problems associated with the loading dock included drivers crossing double yellow lines when leaving the loading dock and drivers not parking in the designated areas when the loading dock was being used. He further stated that the loading dock had been the subject of at least eight reports to the councils Traffic Committee since, based on his internet inquiries, since its operation although these reports did not necessarily relate to the unacceptable use of the loading dock.

128 Mr Coady maintains that the Plan can operate effectively providing that deliveries to the other uses in the building are subject to the same restrictions as deliveries to the Coles supermarket. This will require close consultation and cooperation with the Coles supermarket manager. There will also need to be a provision in any leases for the retail tenancies, commercial office, liquor store and residential apartments requiring that occupants comply with delivery instructions and arrangements in the Plan.

129 Mr Peter Mitchell, the Senior Project Manager for NSW, Queensland and ACT for Coles also provided evidence. He stated that, in his experience the use of a turntable is acceptable for multiple docks and that turntables have been used in the least two other stores, largely because of limitations on the size of the sites on which they are located. In his opinion, the Plan can satisfactorily address the operation of the loading docks.

130 In considering the issue of whether the plan of management will address the operation of the loading dock, the planning principle in Renaldo Plus 3 Pty Limited v Hurstville City Council [2005] NSWLEC 315 states that in considering whether a management plan is appropriate for a particular use and situation, the following questions should be considered: 1. Do the requirements in the management plan relate to the proposed use and complement any conditions of approval? 2. Do the requirements in the management plan require people to act in a manner that would be unlikely or unreasonable in the circumstances of the case? 3. Can the source of any breaches of the management plan be readily identified to allow for any enforcement action? 4. Do the requirements in the management plan require absolute compliance to achieve an acceptable outcome? 5. Can the people, the subject of the management plan, be reasonably expected to know of its requirements? 6. Is the management plan to be enforced as a condition of consent? 7. Does the management plan contain complaint management procedures? 8. Is there a procedure for updating and changing the management plan including the advertising of any changes? 131 The concerns of Mr McLaren relate to questions 2, 3, 4 and 5 and specifically whether the users of the loading dock can be managed to ensure that there will not be unacceptable overlapping of deliveries and thereby potentially creating traffic impacts in the locality.

132 As I understand, there was no issue between the experts on the number of loading docks provided for the development. Also, that if deliveries were properly organised, sufficient time was available to unload delivery trucks given the number of loading docks and anticipated unloading times.

133 To address the concerns of Mr McLaren, the applicant proposes the following conditions, in addition to or supplementary to the Plan: o the installation of a Traffic Light System for the loading dock to indicate when the loading dock is full or the turntable being used (condition 8), o all loading, unloading and transfer of goods is to be from the loading area (condition 19 and 20), o limitations on the size of vehicles using the loading dock (condition 21), o compliance with the Bexley Village Operation Management Plan (condition 21a), o the appointment of a loading dock manager (condition 21b), o notification of the use of the loading dock for the residential tenancies (condition 21c), and o the provision of priority access to pedestrians on Frederick Street (condition 21e). 134 In considering questions 2, 3, 4 and 5 in Renaldo Plus 3, I am satisfied that based on conditions proposed by the applicant and the contents of the Plan, that: o it would not require delivery drivers to act in an unreasonable manner once they had been made aware of the particular requirements (question 2), o any breach of the proposed conditions of consent can be readily identified because the offending truck can be easily identified (question 3), o absolute compliance would be the appropriate goal however a random or occasional non-compliance that may see a truck queued at the entrance to the loading dock would not necessarily result in unacceptable outcome (question 4), and o delivery drivers could reasonably be expected to know of the specific requirements of the loading facilities through the loading dock manager (question 5). 135 The evidence provided by Mr Milner on the operation of the loading dock at West Oatley did not raise any issue with the operation of a turntable within the loading dock and the reliance on a plan of management, that would suggest that these particular characteristics necessarily create any unacceptable impacts in the local area. The most significant impact identified by Mr Milner was that drivers, when leaving the loading dock in a forward direction, sometimes cross double lines onto the opposite side of the road. In my understanding, this occurrence is the direct result of the drivers of the trucks and not the operation or design of the loading dock, as vehicles can leave the loading dock without crossing on to the wrong side of the road, based on the appropriate turning path diagrams. Amenity impacts on adjoining residential properties 136 Ms Lee, Mr Dickson, Mr Kulchar and Mr Porter addressed this issue in part, in a joint report. Some areas of disagreement have been addressed elsewhere in the judgement and agreement was reached on most other issues. The areas of agreement are: o the proposed setback distances and associated planter boxes minimise the potential overlooking to adjoining properties, o the acoustic wall along the eastern side boundary is appropriate, o the landscape treatment adjoining 157 Frederick St is adequate, and o the proposal does not result in adverse impacts to adjacent residential properties. 137 Mr Cooper addressed the issue of noise. He relies on the previous noise assessments undertaken by Bassett Consulting Engineers in 2008. Additional information has been provided for noise associated with the driveway, loading dock, masonry fencing and noise from plant and equipment. The additional information confirmed the conclusions in the Bassett Consulting Engineers report. Mr Cooper notes that the acoustic environment of the area is not one of a pristine residential area but an area that is subject to a significant degree of road traffic noise. For residential properties on Frederick St, in close proximity to the development, the existing acoustic environment would mask the majority of traffic movements in and out of the proposed development. For residential properties further to the east in Frederick Street, the traffic movements will comply with the EPA assessment criteria for collector roads. 138 In his opinion the council's standard noise conditions of consent that incorporate relevant standards and EPA criteria are appropriate and there is no basis for refusal of the subject application on acoustic grounds.

139 In the absence of any contradictory expert evidence, I accept the conclusions of Mr Cooper. 140 Mr Coady and Mr McLaren addressed the additional traffic generated by the proposed development and the likely impact on Frederick Street. They agree that the Frederick Street is appropriately classified as a collector road and while there will be an increase in the level of activity in Frederick Street (and Broadford Street) the maximum environmental capacity of those streets will not be exceeded. There was also agreement between the experts that the proposal will not have an unacceptable effect on the residential amenity of Frederick Street as a consequence of traffic activity from large rigid vehicles. I accept the conclusions of Mr Coady and Mr McLaren on this issue. Conditions 141 The issue of right turn movements from the loading dock into Frederick Street remained an issue between Mr Coady and Mr McLaren. Mr Coady maintained that right turn movements could be conducted with minimal impact on traffic movements whereas Mr McLaren expressed some concerns that this movement would unacceptably impact on traffic movements. As a compromise, Mr Coady suggested a six-month trial period to assess any impacts of the turning movement (see condition 21d). In my view, this is an appropriate means of dealing with the dispute between the experts.

142 The following conditions remained in dispute between the parties:

143 Condition 59 and 60 - these conditions addresses the operating hours for the proposed loading dock and particularly on Sunday's end Public Holidays. The applicant seeks to use the loading dock from 8 a.m. whereas the council seeks 10 a.m. because of the proximity to the residential properties in Frederick Street. As there was no issue regarding noise raised by Mr Cooper, I accept the applicant's submission that 8 a.m. is an appropriate time. 144 Condition 69 - this condition requires the payment of a contribution under s94. There was some dispute over the actual amount to be paid based on the amount of credit for existing dwellings. Mr Garry Green gave evidence on behalf of the applicant. Part of the site is owned by Mr Green's family and he provided evidence on the number of individual dwellings based on his experience of having resided at the premises for many years. Mr Green also provided evidence on his understanding of the number of dwellings in the remaining properties that made up the site. Based on his assessment of the number of dwellings, the total contribution was $21,699.48.

145 Mr Cole, for the council, submitted that a search of council's records revealed no approvals for the number of dwellings stated by Mr Green. Based on the council records of the number of dwellings approved on the site, the total contribution is $63,107 43.

146 In the absence of any approvals or records to substantiate the number of dwellings stated by Mr Green, I accept the appropriate contribution is $63,107.43. Orders 147 The Orders of the Court are: 1. The appeal is upheld. 2. Development Application 2008/246 for the demolition of all existing improvements and the construction of a mixed retail, commercial and residential development at 159 Frederick Street and 286A, 290-298 Forest Road, Bexley is approved subject to the conditions in Annexure A. 3. The exhibits are returned with the exception of exhibit X.

      G T Brown
      Commissioner of the Court

Emily II Investments Pty Ltd v Rockdale City Council

Property: 159 Frederick Street, ROCKDALE NSW 2216, 286A & 290 - 302 Forest Road BEXLEY NSW 2207 Lot B DP 375889, Lot 3 DP 1114882, Lot 4 DP 1114882, Lot A DP 375889, Lot C DP 327795, Lot B DP 327795, Lot A DP 380056, Lot B DP 380056, Lot X DP 33367, Lot Y DP 33367, Lot A DP 327795, Lot 31 DP 1353 Proposal: Demolition of existing structures & construction of 3 storey mixed retail, commercial & residential development including 10 residential units & carparking spaces

The above development is approved subject to the following conditions:

The following conditions restrict the work to the detail provided in the Development Application and are to ensure that the development is complete.

1A The detailed design documentation for the design and signal phasing of the proposed traffic signals at the intersection of Forest Road and Fredrick Street / Broadford Street shall be submitted to and approved by the New South Wales Roads and Traffic Authority. 1B The traffic signals at the intersection of Forest Road and Fredrick Street / Broadford Street shall be installed and implemented in accordance with the approved design documentation prior to issue of an occupation certificate.

1. The term of this consent is limited to a period of five (5) years from the date of approval. The consent will lapse if the development does not commence within this time. The development must be implemented substantially in accordance with the plans listed below, the application form and on any supporting information received with the application, except as may be amended in red on the attached plans and by the following conditions. Architectural plans prepared by Voorderhake Architects and Dickson Rothschild architects/urban designers: (a) LE 272-0000 E Title Sheet Issue E - 16.02.09 (b) LE 272-100 E Survey Issue E - 16.02.09 (c) LE 272-1000 E Plan Site Issue E - 16.02.09 (d) LE 272-1100 E Plan Carpark-3 Issue E - 16.02.09 (e) LE 272-1200 E Plan Carpark-2 Issue E - 16.02.09 (f) LE 272-1300 F Plan Carpark-1 Issue F - 15.05.09 (g) LE 272-1400 F Plan Lower Ground Issue F - 15.05.09 (h) LE 272-1500 F Plan Ground Issue F - 15.05.09 (i) LE 272-1600 E Plan Commercial Issue E - 16.02.09 (j) LE 272-1700 E Plan Residential Issue E - 16.02.09 (k) LE 272-1800 E Plan Roof Issue E - 16.02.09
2. (l) CC 272-2100 C Elevations Issue C - 14.02.09 (m) LE 272-3100 E Sections Issue E - 16.02.09 (n) LE-L001 Street Landscape Treatment Plan Issue A - 03.02.09 (o) LE-L002 Landscape Plan & Section A Issue A - 03.02.09 (p) LE-L003 Panting Image Palette Issue A - 03.02.09 (q) LE-L004 Landscape Plan & Section A, B + C Issue A - 03.02.09 (r) LE 272-4100 E Sun Studies General Issue E - 16.02.09 (s) LE 272-4200 E Sun Studies Neighbour Issue E - 16.02.09 The landscape plan is to be amended prior to issue of the construction certificate as follows: i. in accordance with paragraph 6 of the Joint Landscape Report prepared by Narelle Sonter and Thomas Kulchar and filed with the Court on 26 March 2009. The note '90 Waterhousia Hedge' is to be replaced with the note 'Waterhousia Floribunda at 5 metre intervals with a double row of Syzigium Australe between the Waterhousia Floribunda at 1.5metre intervals'; and ii. to include a note requiring that the landscaping adjacent to the loading dock be no greater than 500mm in height at maturity. The architectural plans are to be amended prior to issue of the construction certificate as follows: i. the height of the wall on the northern boundary between gridline 4.5 and 7 is not to be higher than 3.5 metres above the finished ground level of the adjoining residential property; ii. the roof level of the top of the parapet over the vehicular entry ramp adjoining 157 Frederick Street is to be built at no higher than RL 55.250; and iii. to incorporate the amendments and additional details shown in figures 1, 9, 10, 11 and 12 in appendix A of the joint Urban Design and Town Planning report prepared by Kristy Lee, Nigel Dickson, Thomas Kulchar and Simon Porter, dated 30 March 2009 (Exhibit E).

3. All new building work must be carried out in accordance with the provisions of the Building Code of Australia (BCA).
4. A Construction Certificate must be obtained from Council or an Accredited Certifier prior to any building work commencing. The development must be implemented and all BASIX commitments thereafter maintained in accordance with BASIX Certificate Number 234918M other than superseded by any further amended consent and BASIX certificate. Note: Clause 145(1)(a1) of the Environmental Planning & Assessment Regulation 2000 provides: A certifying authority must not issue a construction certificate for building work unless it is satisfied of the following matters: -
5. s (a1) that the plans and specifications for the building include such matters as each relevant BASIX certificate requires. Note: Clause 154B(2) of the Environmental Planning & Assessment Regulation 2000 provides: "A certifying authority must not issue a final occupation certificate for a BASIX affected building to which this clause applies unless it is satisfied that each of the commitments whose fulfilment it is required to monitor has been fulfilled." Note: For further information please see http://www.basix.nsw.gov.au.
6. A separate development application shall be submitted for the Strata Subdivision.
7. A separate development application shall be submitted for the use of retail and commercial uses on the site other than the supermarket and drive through liquor shop which are approved by this consent.
8. Some forms of signage require separate development consent. Please refer to DCP 29 - Outdoor Advertising and DCP 57 - Exempt and Complying Development for more information. 8a. The Supermarket and liquor shop shall operate between the hours of 7am - 10pm Monday to Sunday. The Traffic Light System for the Loading Dock shall be installed and make provision for the following separate lights mounted in a clear position next to the Loading Dock roller shutter; 8b. a. A red light activated when the loading dock is full or when the turntable is operating to warn trucks not to wait. b. A flashing orange light activated when the roller shutter is open to warn pedestrians that trucks are entering/departing the loading dock. 8c. The acoustic screen constructed adjacent to the driveway for the carpark shall be constructed of transparent materials if greater than 500mm high to ensure compliance with AS2890.1:2004.
9. The residential units shall not be used for any commercial, industrial or business purposes without prior development consent.
10. Balconies shall not be enclosed at any future time.
11. This approval is not to be construed as permission to erect any structure on or near a boundary contrary to the provisions of the Dividing Fences Act.
12. Excavation, filling of the site (with the exception of the area immediately under the building envelope), or construction of retaining walls are not permitted unless shown on the approved plans and authorised by a subsequent construction certificate.
13. Mail boxes must be installed along the street frontage of the property boundary in accordance with Australia Post Guidelines. Prominent house numbers are to be displayed, with a minimum number size of 150 mm in height for each number and letter in the alphabet.
14. A street/shop number shall be prominently displayed at the front of the development. The street number shall be a minimum of 120 mm in height to assist emergency services and visitors to locate the property. The numbering shall be erected prior to commencement of operations.
15. As malicious damage (graffiti) is often an offence committed at such developments, strong consideration is to be given to the use of graffiti resistant materials, particularly on fences and all ground floor areas. Alternatively a malicious damage (graffiti) plan is to be included in the Plan of Management (POM) addressed under Condition 94.

dEVELOPMENT sPECIFIC CONDITIONS The following conditions are specific to the Development Application proposal:

16. Approval for the footpath dining is not expressed or implied and a separate approval is required for the footpath dining. In this regard you are advised to contact Council to obtain a copy of the licensing agreement entitled Outdoor Dining Licensing Agreement. 16a. The occupants of the residential premises are to be given unimpeded lift access to the ground level external courtyard area during the hours of 7am to 10pm Monday to Sunday inclusive.
17. Materials, goods or machinery shall not be stored, placed or otherwise permitted to stand between the building line and the street alignment.
18. Signs or goods shall not be displayed or placed on the public footpath or any other part of the public road at any time unless undertaken in accordance with Council's Development Control Plan No. 52 - Goods and Signs on Public Places.
19. All loading, unloading and transfer of goods to and from the loading bay and premises shall take place wholly within the property
20. Loading areas are to be used only for the loading and unloading of goods, materials etc. not for any other purpose.
21. Loading and unloading within the site shall be restricted to commercial vehicles not exceeding the size and mass description of the Heavy Rigid Vehicle (HRV) from AS2890.2:2002. Commercial vehicles greater in size and mass than the HRV are not permitted to enter the site. 21a. Access and or deliveries to the loading dock is to be in accordance with the Bexley Village Operation Management Plan dated12 May 2009 (Exhibit F in the proceedings).The management plan is to be amended to incorporate a Corrective Action Plan which addresses actions to be taken in the event that the management plan is not complied with by a delivery vehicle. 21b. The loading dock is to be managed by a loading dock manager during the hours of operation of the loading dock. Council is to be notified of the name and contact details of the loading dock manager from time to time. The loading dock manager must be dedicated to attending and supervising the loading dock at all times during which the loading dock may operate so as to ensure that the loading dock operates and any necessary corrective action is taken in accordance with the Bexley Village Operation Management Plan referred to in conditions 21a. 21c. The Strata Plan for the site is to incorporate the Bexley Village Operation Management Plan, whether by way of By-Law or other requirement so as to require the Owners' corporation and all owners and operators to comply with the Bexley Village Operation Management Plan. It shall be a condition of any tenancy of the building that all necessary loading or unloading be undertaken via the loading dock in accordance with the Bexley Village Operation Management Plan. For a six month trial period from the day that the loading dock commences operation, drivers of trucks 8.8m long or greater shall not depart the loading dock, or protrude over the footpath, until there is sufficient space in the northbound traffic lanes in Frederick Street to accommodate their vehicle without overhanging the southbound traffic lanes.

21d. If satisfactory operation of the loading dock is not achieved during that six month trial period, the following condition will apply:

Prohibition of the right-turn movement from the loading dock into Frederick Street for vehicles 8.8m long or greater during the weekday AM and PM peak periods, that is between 6.00 - 10.00am and 3.00 -7.00pm. 21e. Access to the basement carpark and loading dock incorporated in the development will be via an access driveway arrangement which gives priority to pedestrians on Frederick Street and which is illustrated on the sketch plan included as Appendix D to the Statement of Evidence of John Coady (9 February 2009). 21f The building setback at grid location 9A is to be increased and a planter bed added on the ground floor only. Planting in the planter beds on the ground floor should be no greater than 500mm at maturity. 21g The acoustic fence is to be constructed of part transparent material as per Figure JC3 of the joint Traffic Report prepared by Craig McLaren and John Coady, filed with the Court on 9 March 2009..

22. Parking spaces other than those associated with the residential use shall not be enclosed without further approval of Council. The enclosure of such car spaces is not permitted unless the enclosure complies with the design requirements of AS2890.1. The existing and future owners (Registered Proprietor) of the property will be responsible for the operation and maintenance of the detention system. The Registered Proprietor will: i) permit stormwater to be temporarily detained by the system; ii) keep the system clean and free of silt, rubbish and debris;

23.       iii) maintain, renew and repair the whole or parts of the system so that it functions in a safe and efficient manner; and in doing so complete the same within the time and in the manner specified in written notice issued by the Council;
          iv) carry out the matters referred to in paragraphs (ii) and (iii) at the proprietor's expense;
          v) not make alterations to the system or elements thereof without prior consent in writing of the Council.
          vi) permit the Council or its authorised agents from time to time upon giving reasonable notice (but at any time and without notice in the case of emergency) to enter and inspect the land for compliance with the requirement of this clause;
          viii) comply with the terms of any written notice issued by the Council in respect to the requirements of this clause within the time stated in the notice.
    

24. The rainwater tank shall be routinely de-sludged and all contents from the de-sludging process disposed - solids to the waste disposal and de-sludged liquid to the sewer.
25. The use of mechanical plant including air conditioners, fans, compressors, condensers, freezers, swimming pool or spa pumps (whether commercial or domestic) shall not cause sound pressure levels in excess of the criteria given in the - EPA Noise Guide for Local Government (amended 2009).
26. Residential air conditioners shall not cause 'offensive noise' as defined by the Protection of the Environment Operations Act 1997 or contravene provisions of the Protection of the Environment (Noise Control) Regulation 2008 where emitted noise from a residential air conditioner can be heard within a habitable room in any other residential premises at night
27. All external glazing shall have a maximum reflectivity of 20%.
28. The off-street parking areas associated with the subject development shall be designed strictly in accordance with AS2890.1:2004.
29. Internal height clearance shall be designed throughout the car park and access driveway in accordance with AS2890.1:2004.
30. .
31. All lights shall comply with the Australian Standard AS4282 - 1997 "Control of the Obtrusive Effects of Outdoor Lighting". In this regard, the lighting of the premises shall be directed so as not to cause nuisance to the owners or occupiers of adjacent/adjoining premises or to motorists on adjoining or nearby roads.
32. Hot and cold water hose cocks shall be installed to the garbage room.
33. The building shall be designed so that internal spaces impacted by road traffic noise shall comply with the recommended criteria set out in the EPA's Environmental Criteria for Road Traffic Noise.
34. The residential intertenancy walls and floors of the development shall be insulated not less than the requirements of Part 5 of the BCA.
35. All vertical plumbing, other than roofwater heads and downpipes, shall be concealed within the brickwork of the building.
36. External paths and ground surface adjoining the walls of the building shall be graded and drained away from the dwelling in such a manner as to not cause a nuisance to adjoining properties.
37. Where natural ventilation fails to comply with the provisions of the BCA, mechanical ventilation shall be provided in accordance with Australian Standard, 1668, Part 2.
38. Balustrades shall be constructed from a solid/opaque material to a minimum height of 1000mm. The top of the balustrade shall be a minimum height of 1200mm.
39. Receptacles are to be provided in commercial development for the disposal of cigarette rubbish. The receptacles are to be located adjacent to the entrances of the buildings on private property. The receptacles are to be attractive and functional and maintenance of the receptacles is the responsibility of the building owner/manager.
40. All hot water systems/units which are located on the balcony of a dwelling/unit must be encased in a recessed box on the balcony with the lid/cover of the box designed to blend in with the building. All associated pipe work is to be concealed.
41. Provide permanently illuminated exit signs to the existing building on or near exit doors in accordance with Part E4.5 of the BCA and AS/NZS 2293.1:1998
42. A system of emergency lighting shall be provided in the existing building within the stairway, corridors and other necessary areas and be installed in accordance with the requirements of Part E4.2 and E4.4 of the BCA and AS/NZS 2293.1:1998.
43. A system of fire and smoke alarms and/or detection system (as applicable) shall be provided throughout the building
44. Provide hose reels to the existing building in accordance with the relevant provisions of Part E1.4 of the BCA and AS 2441:1988
45. Provide protection of existing openings as outlined in Part C3.2 and C3.4 of the BCA.
46. Provide portable extinguishers to the existing building(s) containing an extinguishing agent suitable for the risk being protected. They shall be being installed in accordance with Part E1.6 of the BCA and AS 2444:2001.
47. Provide hydrants to serve the building(s) in accordance with the relevant provisions of Part E1.3 of the BCA and AS 2419:1994 and certify the installation on completion
48. The building shall be design and constructed to comply with section D of the BCA in relation to Access and Egress provisions of the BCA.
49. Sprinklers systems must be installed in accordance with part E1.5 of the BCA.
50. The species selection and location of planting shall maximise winter solar access and summer shade to dwellings.
51. Screening species shall be included into the side setbacks to improve privacy between adjacent dwellings
52. Retaining walls over 600mm in height shall be designed and specified by a suitably qualified structural engineer
53. All pavements shall comply with AS/NZ 4586:1999 standards Class W (low) for slip resistance on both private and Council property.
54. The approved completed landscape works shall be maintained for a period not less than 12 months. On completion of the maintenance period, a Landscape Architect shall provide a report to the certifying authority (with a copy provided to Council if Council is not the principal certifying authority) stating the landscape maintenance has been carried out in accordance with approved landscape plans and designated specifications before release of the nominated landscape bond
55. All condensation from the air conditioning unit shall be discharged into the sewerage system
56. The air handling system and associated cooling tower shall be designed, installed and maintained in accordance with the requirements of the Public Health Act 1991 (Part 4 Microbial Control), the Regulations made there under, the Australian Standard As 3666-1989 Air Handling and Water Systems in Buildings - Microbial Control and the relevant Code of Practice issued by the NSW Health Department.
57. The evaporative Cooling system shall be designed, installed and commissioned in accordance with the provisions of the Public Health Act 1991, Public Health I Microbial Control Regulation 2000, Australian Standard 3666.1 "Air Handling and Water Systems of Buildings - Microbial Control - Design, installation and commissioning", and the current code of practice published by the NSW Health department
58. Supermarket and Liquor outlet are only permitted to operate between the hours of 7am - 10pm Monday to Sunday. The loading dock is to operate only within the following hours;
59. Monday to Friday 7am - 8pm Saturdays 7am - 8pm Sunday / Public Holiday 8am - 8pm
60. Delivery trucks shall not enter Fredrick Street prior to 7am and following 8pm Monday to Saturday and prior to 8am and following 8pm on Sunday.
61. The loading dock roller door is to be closed once trucks have entered the site for loading / unloading.
62. Noise emissions from the premises, including deliveries, loading, unloading, vehicle movements, mechanical plant (associated with the commercial component of the development) shall not exceed the EPA's intrusive noise criterion of background plus 5dB(A) when assessed on an Leq contribution over 15 minutes. Such criteria shall apply at any point on or in residential properties external to the development.
63. .

Prior to Issue of The Construction Certificate The following conditions must be completed prior to the issue of the Construction Certificate.

64. A Footpath Reserve Restoration Deposit of $46,095.00 shall be paid to Council prior to the issue of a construction certificate. This is to cover repair of any damages, or other works to be done by Council. This includes construction, removal, or repair as required to: kerb and guttering, existing or new driveways; paved areas and concrete footpaths. The deposit may be lodged with Council in the form of a Bank Guarantee., If payment is made after the end of the financial year, the amount shall be adjusted in accordance with Council's adopted fees and charges
65. A fee is payable to Council for a Soil and Water Management Sign (811) of $12.40. If payment is made after the end of the financial year, the amount shall be adjusted in accordance with Council's adopted fees and charges.
66. For work costing $25,000 or more, a Long Service Leave Levy shall be paid. For further information please contact the Long Service Payments Corporation on their Helpline 13 1441.
67. An application for Boundary levels shall be made to Council's Customer Service Centre prior to issue of the Construction Certificate. All boundary works, egress paths, driveways and fences shall comply with this level. A fee of $408.00 is payable to Council for the determination of boundary levels. If payment is made after the end of the financial year, the amount shall be adjusted in accordance with Council's adopted fees and charges.
68. The connection of stormwater drainage pipes to the new kerb inlet pit in Frederick Street must be inspected by Council prior to backfilling. A payment of $214.55 is required prior to the issue of the Construction Certificate for inspection of the connection and/or alteration to the Council pipeline. If payment is made after the end of the financial year the amount is to be adjusted in accordance with Council's adopted fees and charges. Where the inspection is unsatisfactory, each additional inspection will incur an extra charge
69. A Section 94 contribution of $63,107.43 shall be paid to Council. Such contributions are only used towards the provision or improvement of the amenities and services identified below. The amount to be paid is adjusted at the time of payment, in accordance with the contribution rates contained in Council's current Adopted Fees and Charges. The contribution is to be paid prior to the issue of the construction certificate. Copies of Council's Section 94 Contribution Plans may be inspected at Council's Customer Service Centre, Administration Building, 2 Bryant Street, Rockdale. If Council is appointed as the Principal Certifying Authority (PCA) then structural engineer's details shall be submitted prior to the issue of the Construction Certificate; such structural drawings shall be certified by the Structural Engineer that the design complies with the relevant S.A.A. Codes for the following: i) the footings of the structure; ii) the footings of the slab-on-ground (having due regard to the possible differential settlement of the cut and fill areas); iii) all reinforced concrete floor slabs; iv) all reinforced concrete stairs;
70. v) the piers to natural ground or rock, detailing the size and position of the piers; vi) the retaining wall; vii) the work required to stabilise the excavation; viii) the work required to stabilise the footpath area; ix) the design of each roof truss type showing the layout of each truss on a marking plan and the method of connecting each truss to its supporting members of the method of bracing; x) all structural steel work; xi) fire rated ceilings/fire protective ceilings.
71. Prior to the issue of the Construction Certificate a certificate from a practicing Structural Engineer, registered with NPER, shall be submitted to Council stating that the subsurface structural components located on the boundary of the public road, including but not limited to the slabs, walls and columns, have been designed in accordance with all SAA Codes for the design loading from truck and vehicle loads.
72. To ensure the development is compatible with the surrounding environment, colours and finishes of the roof and walls are to be as per the materials and finishes board/plan submitted with the DA. Exception is the 'rough stone cladding' on the loading dock surrounds and south eastern lower wall is to be replaced by dimensioned sandstone in ashlar coarse.
73. A system of fire and smoke alarms and/or detection system (as applicable) shall be provided throughout the building. Details shall be submitted for assessment and approval prior to application for a Construction Certificate
74. Provide hose reels to the existing building in accordance with the relevant provisions of Part E1.4 of the BCA and AS 2441:1988. Details of the location shall be submitted for approval prior to installation.
75. Provide protection of existing openings as outlined in Part C3.2 and C3.4 of the BCA.
76. A list of the essential services to be installed in the building shall be submitted to Council in accordance with the relevant requirements.
77. The residential dwellings are to be designed and constructed to achieve interior noise levels which comply with Australian Standard 2021- 2000 Acoustic - Aircraft Noise Intrusion. An appropriately qualified Noise Consultant is to advise on appropriate measures to be incorporated in the design of the building so that it will meet this standard. The information shall be submitted to Council prior to issue of the Construction Certificate.
78. Compliance with Council's Development Control (DCP) 28 - Requirements for Access. Compliance with this condition will require the design and fitout of the commercial/retail areas to be in accordance with Australian Standard 1428.1-2001. Note: Compliance with Council's Development Control Plan (DCP) 28 - Requirements for Access and the BCA does not necessarily guarantee that the development meets the full requirements of the Disability Discrimination Act (DDA) 1992. It is the responsibility of the applicant to make the necessary enquiries to ensure that all aspects of the DDA legislation are met.
79. The 4 disabled car spaces as identified on the approved plans shall be identified and reserved at all times and have an uninterrupted minimum headroom clearance of 2.5 metres free of all obstructions, such as service pipes, fittings etc for use by vehicles fitted with roof mounted wheelchair racks.
80. The applicant shall confer with Energy Australia to determine if an electricity distribution substation is required. Written confirmation of Energy Australia's requirements shall be obtained prior to issue Construction Certificate
81. The applicant shall confer with Energy Australia to determine if installation of electricity conduits in the footway is required. Written confirmation of Energy Australia's requirements shall be obtained prior to issue Construction Certificate.
82. The applicant shall confer with Energy Australia to determine if satisfactory clearances to any existing overhead High Voltage mains will be affected. Written confirmation of Energy Australia's requirements shall be obtained prior to issue Construction Certificate
83. Any building to be erected over or near the existing Sydney Water pipeline is to be approved by Sydney Water. A copy of Sydney Water's approval and requirements are to be submitted to Council prior to issuing a Construction Certificate.
84. 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 contact Sydney Water. The consent authority or a private accredited certifier must ensure that a Quick Check agent/Sydney Water has appropriately stamped the plans before issue of any Construction Certificate. A dilapidation survey shall be undertaken of the properties at; · 274 & 276 Forest Road
85. · 104-114 Herbert Street · 286 & 288 Forest Road · 157 & 155 Frederick Street and/or Council infrastructure, including but not limited to all footpaths, kerb and gutter, stormwater inlet pits, and road carriageway pavements, in the vicinity which could be potentially affected by the construction of this development. Any damage caused to other properties during construction shall be rectified. A copy of the dilapidation survey and an insurance policy that covers the cost of any rectification works shall be submitted to the Accredited Certifier (AC) prior to issue of the Construction Certificate. The insurance cover shall be a minimum of $10 million.
87. A Waste Management Plan shall be prepared and implemented in accordance with Development Control Plan No. 53
88. The air conditioning & mechanical ventilation systems shall comply with the requirements of the BCA, and applicable standards AS1668.1-1998 The Use of Ventilation and Air-conditioning in Buildings Part 1: Fire and Smoke Control in Multi-compartment Buildings, and AS 1668.2 - 2002: The Use of Ventilation and Air-conditioning in Buildings Part 2: Ventilation Design for Indoor Air Contaminant Control. The system shall be certified by a suitably qualified and experienced mechanical engineer prior to the issue of a Construction Certificate. A copy of the certificate shall be provided to the Principal Certifying Authority (PCA). A copy shall also be provided to Council if Council is not the PCA
89. The air cooling system shall comply with the requirements of the BCA, and/or relevant standards AS1668.1-1998 The Use of Ventilation and Air-conditioning in Buildings Part 1: Fire and Smoke Control in Multi-compartment Buildings, and/or AS 1668.2 - 2002: The Use of Ventilation and Air-conditioning in Buildings Part 2: Ventilation Design for Indoor Air Contaminant Control. The system shall be certified by a suitably qualified and experienced engineer at the completion of installation prior to the issue of an Occupation Certificate. A copy of the certificate shall be provided to the Principal Certifying Authority (PCA). A copy shall also be provided to Council if Council is not the PCA
90. Stormwater management requirements for the development site, including the final discharge/end connection point, must comply with DCP 78 - Stormwater Management.
91. A visitor car space shall also operate as a car wash bay. A tap shall be provided. A sign shall be fixed saying 'Visitor Car Space and Car Wash Bay'. The runoff shall be directed and treated as per DCP 78. Details shall be provided with the plans accompanying the Construction Certificate.
92. Prior to the issue of the Construction Certificate, detailed drainage design plans for the management of stormwater are to be submitted to Council or an Accredited Certifier for assessment and approval. Design certification, in the form specified in DCP 78, and drainage design calculations are to be submitted with the plans. Council's DCP 78 sets out the minimum documentation requirements for detailed design plans.
93. Suitably landscaped planter boxes as indicated in the approved architectural and landscape plans are to be provided on NE and SE elevations of residential levels, which do not compromise the minimal provision of private open space for residential units.
94. A Plan of Management (POM), detailing day to day management operations of the centre shall be submitted to Council prior to the issue of the Construction Certificate. The Plan of Management is to include but is not limited to, details of centre management contacts, security measures, maintenance of central courtyard, graffiti removal, trolley collection, control of unsocial conduct, management of waste, presentation of the site. This POM shall be consistent with any relevant conditions of consent.

Prior to Commencement of Works The following conditions must be completed prior to the commencement of works. Prior to the commencement of works a permit shall be obtained from Council pursuant to Section 138 of the Roads Act 1993. In order to issue the permit, details shall be submitted to Council for assessment and approval to in relation to the following: 94a. i) The construction of a new kerb inlet pit in Frederick Street on the alignment of the existing 450mm diameter RCP. ii) The construction of paving and other streetscape works in Frederick Street and Forest Road. iii) The construction of awnings over the Frederick Street and Forest Road footpaths. 95. Council's warning sign for soil and water management must be displayed on the most prominent point on the building site, visible to both the street and site workers. The sign shall be erected prior to commencement of works and shall be displayed throughout construction. 96. Soil and sedimentation controls are to be put in place prior to commencement of any work on site. The controls are to be maintained in effective working order during construction. The controls are to be designed and installed in accordance with the Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Regional Organisation of Council. Copies of the guidelines are available from Council 97. A Soil and Water Management Plan shall be prepared in accordance with Soil and Water Management for Urban Development Guidelines produced by the Southern Sydney Region Organisation of Councils. A copy of the plan must be submitted to Council. The Plan must include details of the erosion and sediment controls to be installed on the building site. A copy of the Soil and Water Management Plan must be kept on-site at all times and made available on request. Sediment control devices shall not be located beneath the driplines of trees, which are to be retained. 98. A sign must be erected at the front boundary of the property clearly indicating the Development Approval Number, description of work, builder's name, licence number and house number before commencement of work. If owner/builder, the Owner/Builder Permit Number must be displayed. A sign must be erected in a prominent position on any work site on which work involved in the erection or demolition of a building is being carried out: i) stating that unauthorised entry to the work site is prohibited, and ii) showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. 99. Any such sign is to be removed when the work has been completed. This condition does not apply to: iii) building work carried out inside an existing building or iv) building work carried out on premises that are to be occupied continuously (both during and outside working hours) while the work is being carried out. 100. Prior to the commencement of work, Tree Protection Zones shall be established with protective fences at least 1.2 metres high erected around each tree Camellia street tree. The protective fences shall consist of parawebbing or chain wire mesh mounted on star pickets or similar metal posts, shall be in place prior to the commencement of any work on site and remain until the completion of all building and hard landscape construction. Excavations for services, waste bins, storage of materials and equipment, site residue, site sheds, vehicle access or cleaning of tools and equipment are not permitted within the Tree Protection Zones at any time 101. Prior to the commencement of any work on site, a sign shall be placed in a prominent position on each protective fence identifying the area as a Tree Protection Zone and prohibiting vehicle access, waste bins, storage of materials and equipment, site residue and excavations within the fenced off area 102. The site shall be secured by a 1500 mm (minimum) high temporary fence for the duration of the work. Gates shall be provided at the opening points. 103. Where construction/building works require the use of a public place including a road or footpath, approval under Section 68 of the Local Government act 1993 for a Barricade Permit is to be obtained from Council prior to 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. When the work involved in the erection or demolition of a building: i) is likely to cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient, or ii) building involves the enclosure of a public place, 104. a hoarding or fence shall be erected between the work site and the public place. When necessary, an awning is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place. Any such hoarding, fence or awning is to be removed when the work has been completed. The work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place. 105. Toilet facilities are to be provided, at or in the vicinity of the work site, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site and the toilet facilities must be designed and installed in accordance with the provisions of clause 781 of the Environmental Planning and Assessment Regulation 1994, and be installed before any other work is commenced. 106. A system of fire and smoke alarms and/or detection system (as applicable) shall be provided throughout the building. Details shall be submitted for assessment and approval prior to commencement of works Consultation with Energy Australia is essential prior to commencement of work. Failure to notify Energy Australia may involve unnecessary expense in circumstances such as: 107. i) where the point of connection and the meter board has been located in positions other than those selected by Energy Australia or ii) where the erection of gates or fences has restricted access to metering equipment. 108. Where clearances to any existing overhead High Voltage mains are affected, the builder shall make arrangements with Energy Australia for any necessary modification to the electrical network in question. These works shall be at the applicant's expense. Energy Australia's requirements under Section 49 Part 1 of the Electricity Supply Act 1995 shall be met prior to commencement of works or as agreed with Energy Australia.

During Demolition / Excavation / Construction The following conditions must be complied with during demolition, excavation and or construction. 109. A copy of the Construction Certificate and the approved plans and specifications must be kept on the site at all times and be available to Council officers upon request. 110. Hours of construction shall be confined to between 7 am and 6.30 pm Mondays to Fridays, inclusive, and between 8 am and 3.30 pm Saturdays with no work being carried out on Sundays and all public holidays. For Class 2, 3 and 4 structures, the building works are to be inspected during construction, by the principal certifying authority (or other suitably qualified person on behalf of the principal certifying authority) to monitor compliance with Council's approval and the relevant standards of construction encompassing the following stages: i) at the commencement of the building work, and 111. ii) prior to covering waterproofing in any wet areas, for a minimum of 10% of rooms with wet areas within a building, and iii) prior to covering any stormwater drainage connections, and iv) after the building work has been completed and prior to any occupation certificate being issued in relation to the building. Documentary evidence of compliance with Council's approval and relevant standards of construction is to be obtained prior to proceeding to the subsequent stages of construction and copies of the documentary evidence are to be maintained by the principal certifying authority and be made available to Council officers upon request. For Class 5-9 structures, the building works are to be inspected during construction, by the principal certifying authority (or other suitably qualified person on behalf of the principal certifying authority) to monitor compliance with Council's approval and the relevant standards of construction encompassing the following stages: i) at the commencement of the building work, and 112. ii) prior to covering any stormwater drainage connections, and iii) after the building work has been completed and prior to any occupation certificate being issued in relation to the building. Documentary evidence of compliance with Council's approval and relevant standards of construction is to be obtained prior to proceeding to the subsequent stages of construction and copies of the documentary evidence are to be maintained by the principal certifying authority and be made available to Council officers upon request. Upon inspection of each stage of construction, the Principal Certifying Authority (or other suitably qualified person on behalf of the Principal Certifying Authority) is also required to ensure that adequate provisions are made for the following measures (as applicable), to ensure compliance with the terms of Council's approval: 113. s Sediment control measures s Provision of perimeter fences or hoardings for public safety and restricted access to building sites. s Maintenance of the public place free from unauthorised materials, waste containers or other obstructions. 114. Ground water shall only be pumped or drained to Council's stormwater system if the water is clean and unpolluted. The standard used to determine the acceptability of the quality of the water is the 'Australian and New Zealand Environment and Conservation Council - Australian Water Quality Guidelines for Fresh and Marine Waters 1992'. Note: Prior treatment and/or filtration of the water may be necessary to achieve acceptable quality, including a non-filterable residue not exceeding 50 milligrams/litre or small quantities may be removed by the services of a Licenced Liquid Waste Transporter. It is an offence under the provisions of the Protection of the Environment Operations Act 1997 to pollute the stormwater system. 115. Demolition operations shall not be conducted on the roadway or public footway or any other locations, which could lead to the discharge of materials into the stormwater drainage system. 116. All waste generated on site shall be disposed of in accordance with the submitted Waste Management Plan A Registered Surveyor's check survey certificate or compliance certificate shall be forwarded to the certifying authority detailing compliance with Council's approval at the following stage/s of construction: i) After excavation work for the footings, but prior to pouring of concrete, showing the area of the land, building and boundary setbacks. 117. ii) Prior to construction of each floor level showing the area of the land, building and boundary setbacks and verifying that the building is being constructed at the approved level. iii) Prior to fixing of roof cladding verifying the eave, gutter setback is not less than that approved and that the building has been constructed at the approved levels. iv) On completion of the building showing the area of the land, the position of the building and boundary setbacks and verifying that the building has been constructed at the approved levels. v) On completion of the drainage works (comprising the drainage pipeline, pits, overland flow paths, on-site detention or retention system, and other relevant works) verifying that the drainage has been constructed to the approved levels, accompanied by a plan showing sizes and reduced levels of the elements that comprise the works. 118. All excavation and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards and guarded and protected to prevent them from being dangerous to life or property. When excavation associated with the erection or demolition of a building extends below the level of the base of the footings of a building or an adjoining allotment of land, you shall. i) preserve and protect the building from damage and 119. ii) underpin and support the building in an approved manner, if necessary and iii) give notice of intention to excavate below the level of the base of the footings of a building on an adjoining allotment of land to the owner at least 7 days prior to excavation and furnish particulars of the excavation to the owner of the building being erected or demolished. Note: The owner of the adjoining allotment of land is not liable for any part of the cost of work carried out for the purposes of this clause, whether carried out on the allotment of land being excavated or on the adjoining allotment of land. In this conditions allotment of land includes a public road and any other public place. When soil conditions require it: 120. i) retaining walls associated with the erection or demolition of a building or other approved methods of preventing movement of the soil shall be provided, and ii) adequate provision shall be made for drainage. Wind blown dust from stockpile and construction activities shall be minimised by one or more of the following methods: 121. i) spraying water in dry windy weather ii) cover stockpiles iii) fabric fences 122. Works shall not encroach onto or over adjoining properties, including retaining walls, fill material or other similar works. Soil shall not be lost from adjoining sites due to construction techniques employed on the subject site. 123. Works shall not encroach onto or over adjoining properties, including retaining walls, fill material or other similar works. Soil shall not be lost from adjoining sites due to construction techniques employed on the subject site. All contractors shall comply with the following during all stages of demolition and construction: s A Waste Container on Public Road Reserve Permit must be obtained prior to the placement of any waste container or skip bin in the road reserve (i.e. road or footpath or nature strip). Where a waste container or skip bin is placed in the road reserve without first obtaining a permit, the Council's fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council's Customer Service Centre. 124. s A Road Opening Permit must be obtained prior to any excavation in the road reserve (i.e. road or footpath or nature strip). Where excavation is carried out on the road reserve without first obtaining a permit, the Council's fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council's Customer Service Centre. s A Hoarding Permit must be obtained prior to the erection of any hoarding (Class A or Class B) in the road reserve (i.e. road or footpath or nature strip). Where a hoarding is erected in the road reserve without first obtaining a permit, the Council's fees and penalties will be deducted from the Footpath Reserve Restoration Deposit. Permits can be obtained from Council's Customer Service Centre. s A Crane Permit must be obtained from Council prior to the operation of any activity involving the swinging or hoisting of goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway. Permits can be obtained from Council's Customer Service Centre. s A Permit to Dewater or Pump Out a site must be obtained prior to the discharge of pumped water into the road reserve, which includes Council stormwater pits and the kerb and gutter. Permits can be obtained from Council's Customer Service Centre 125. The existing dwelling/structure shall be demolished and removed from the site prior to works commencing. All demolition work shall be carried out in accordance with Council's Demolition and Erection of Buildings Code, with AS2601 - 2001: The Demolition of Structures and with the requirements of the WorkCover Authority of NSW. 126. Stockpiles are not permitted to be stored on Council property (including nature strip) unless prior approval has been granted. In addition stockpiles of topsoil, sand, aggregate, soil or other material shall be stored clear of any drainage line or easement, natural watercourse, kerb or road surface 127. Building and demolition operations such as brickcutting, washing tools or paint brushes, and mixing mortar shall not be performed on the roadway or public footway or any other locations which could lead to the discharge of materials into the stormwater drainage system 128. All disturbed areas shall be stabilised against erosion within 14 days of completion, and prior to removal of sediment controls 129. Stormwater from roof areas shall be linked via a temporary downpipe to an approved stormwater disposal system immediately after completion of the roof area 130. Building, demolition and construction works not to cause stormwater pollution and being carried out in accordance with Section 2.8 of Council's Stormwater Pollution Control Code 1993. Pollutants such as concrete slurry, clay and soil shall not be washed from vehicles onto roadways, footways or into the stormwater system. Drains, gutters, roadways and access ways shall be maintained free of sediment. Where required, gutters and roadways shall be swept regularly to maintain them free from sediment. Note: The Applicant may be liable to prosecution under the Environmental Planning and Assessment Act 1979 for a breach of an approval condition, or under the Protection of the Environment Operations Act 1997, if its employees, agents or sub-contractors allow sediment, including soil, excavated material, building materials, or other materials to be pumped, drained or allowed to flow to the street, stormwater pipes or waterways. The Applicant shall ensure that its employees, agents or sub-contractors understand and maintain sediment control measures Owners/Applicants/Builders and demolishers are required to confine access to building and demolition sites to no more than two 3m driveways, and provide a footpath protection pad over Council's footpath at these points (see attached detail). Within the site, provision of a minimum of 100mm coarse crushed rock is to be provided for a minimum length of 2 metres to remove mud from the tyres of construction vehicles. 131. An all weather drive system or a vehicle wheel wash, cattle grid, wheel shaker or other appropriate device, shall be installed prior to commencement of any site works or activities, to prevent mud and dirt leaving the site and being deposited on the street. Vehicular access is to be controlled so as to prevent tracking of sediment onto adjoining roadways, particularly during wet weather or when the site is muddy. Where any sediment is deposited on roadways it is to be removed by means other than washing and disposed of appropriately. In addition builders / demolishers are required to erect a 1.5m high fence along the whole of the street alignment other than at the two openings. Such protection work, including fences, is to be constructed, positioned and maintained in a safe condition to the satisfaction of the Principal Certifying Authority, prior to the demolition of the existing structures and commencement of building operations 132. Existing site and/or street trees shall be adequately protected from damage during operations. 133. Trees located within adjoining properties or Council's nature strip shall not be removed or pruned without the written consent of Council in the form of a Permit issued under Council's Tree Preservation Order

Prior to Issue of Occupation Certificate or Commencement of Use The following conditions must be complied with prior to issue of the Occupation Certificate or Commencement of Use. 134. An Occupation Certificate shall be obtained in relation to the approved works prior to any use or occupation of the building. 135. Appropriate signage and tactile information indicating accessible facilities shall be provided at the main entrance directory, or wherever directional signage such as lifts or building directories or information is provided to those buildings where access and facilities for people with disabilities has been provided. Such signage shall have regard to the provisions of AS1428.1 and AS1428.2. 136. Tactile differentiation on floor surfaces indicating change of gradient shall be provided to those buildings where access and facilities for people with disabilities has been provided. This includes the external parts of the building, eg. access walkways and ramps. Such differentiation shall have regard to the provisions of AS1428.4. 137. Where Council's park/reserve is damaged as a result of building work or vehicular building traffic, this area shall be restored by Council at the applicant's expense. Repairs shall be completed prior to the issue of the Occupation Certificate 138. All excess excavated material, demolition material, vegetative matter and builder's rubbish shall be removed to the Waste Disposal Depot or the Regional Tip prior to final inspection. Note: Burning on site is prohibited. 139. Ground level surfaces are to be treated with anti-graffiti coating to minimise the potential of defacement. In addition, any graffiti evident on the exterior facades and visible from a public place shall be removed forthwith. 140. All landscape works are to be carried out in accordance with the approved landscape plans. The landscaping is to be maintained to the approved standard at all times. 141. All works within the road reserve, which are subject to approval pursuant to Section 138 of the Roads Act 1993, shall be completed and accepted by council 142. The vehicular entrances of the development shall be signposted at the Frederick Street elevation, in order to clearly distinguish the entry and exit points for the development, and the loading bay entry point. Complementary signage shall be provided within the development to clearly distinguish the vehicle exit and exit route. 143. Vehicles shall enter and exit the site in a forward direction at all times. A plaque with minimum dimensions 300mm x 200mm shall be permanently fixed to the inside skin of the front fence, or where there is no front fence a prominent place approved by the Principal Certifying Authority, stating the following: "Vehicle shall enter and exit the site in a forward direction at all times". 144. Prior to completion of the building works, a full width vehicular entry is to be constructed to service the property. Any obsolete vehicular entries are to be removed and reconstructed with kerb and gutter. This work may be done using either a Council quote or a private contractor. There are specific requirements for approval of private contractors 145. The width of the driveway for the basement car park and width of the loading bay access driveway shall be in accordance with the dimensions as indicated on approved plans . 146. Any gate or roller door erected to ensure security for the basement shall be located in order to permit the queuing of two (2) vehicles when waiting to enter the basement garage. 147. Off-street car spaces shall be provided in accordance with the approved plan and shall be sealed and linemarked to Council's satisfaction. The pavement of all car parking spaces, manoeuvring areas and internal driveways shall comply with Australian Standard AS3727 - Guide to Residential Pavements A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained from Sydney Water Corporation. 148. Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section of the web site www.sydneywater.com.au then refer to "Water Servicing Coordinator" under "Developing Your Land" or telephone 13 20 92 for assistance. Following application a "Notice of Requirements" will advise of water and sewer infrastructure to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer infrastructure can be time consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to occupation of the development 149. Prior to occupation, a registered surveyor shall certify that the driveway(s) over the footpath and within the property have been constructed in accordance with the approved driveway profile(s). The certification shall be based on a survey of the completed works. A copy of the certificate and a works-as-executed driveway profile shall be provided to Council if Council is not the Principal Certifying Authority. 150. Where the installation of electricity conduits is required in the footway, the builder shall install the conduits within the footway across the frontage/s of the development site, to EnergyAustralia's specifications. EnergyAustralia will supply the conduits at no charge. A Road Opening Permit must be obtained from Council prior to the installation of the conduits. The builder is responsible for compaction of the trench and restoration of the footway in accordance with Council direction. A Compliance Certificate from Energy Australia shall be obtained prior to the issue of the Occupation Certificate. 151. An appropriately qualified Noise Consultant is to certify that Australian Standard 2021- 2000 Acoustic - Aircraft Noise Intrusion has been met before an occupation certificate will be issued. 152. Testing and evaluation of the building insulationis to be carried out at post construction stage by a suitably qualified acoustical engineer to showcompliance with Conditions 33 and 34 A report is to be submitted to the Principal Certifying authority prior to the issue of the Occupation Certificate. 154. Acoustic compliance testing shall be conducted 6 months after occupation of the commercial component of the development to ascertain compliance with condition 62. Such compliance testing shall be conducted by an accredited acoustic engineer/consultant whose firm is independent of any acoustic consultants involved in teh development application or supervision during construction. The results of the compliance testing shall be submitted to Council within 21 days of such testing. Any non-compliance shall be corrected within 30 days and the development re-tested and a report provided to Council wihtin 10 days of such testing. 155. A certificate is to be provided to Council that all wet areas have been effectively waterproofed (prior to tiling) in accordance with AS3740 and the product manufacturer's recommendations. 156. A Landscape Architect shall provide a report to the certifying authority (with a copy provided to Council, if Council is not the principal certifying authority) stating that the landscape works have been carried out in accordance with the approved plans and documentation. 157. Prior to occupation or use of the premises, a qualified mechanical engineer shall certify that the mechanical ventilation/air conditioning system complies in all respects with the requirements of Australian Standard 1668, Part 1 & 2. 158. Prior to occupation a Chartered Professional Engineer shall certify that the stormwater system has been constructed in accordance with the approved plans and as required by Council's DCP 78 - Stormwater Management. The certificate shall be in the form specified in DCP 78 and include an evaluation of the completed drainage works. A works-as-executed drainage plan shall be prepared by a registered surveyor based on a survey of the completed works. A copy of the certificate and works-as-executed plan(s) shall be supplied to the Principal Certifying Authority. A copy shall be provided to Council if Council is not the Principal Certifying Authority 159. A positive covenant pursuant to the Conveyancing Act 1919 shall be created on the title of the lots that contain the stormwater detention facility to provide for the maintenance of the detention facility. 160. The drainage system shall be constructed in accordance with the approved drainage plans and any amendments in red. All stormwater drainage plumbing work shall comply with the NSW Code of Practice: Plumbing and Drainage and Australian Standard AS3500 161. The owner of the premises shall inform Sydney Water that a Rainwater tank has been installed in accordance with applicable requirements of Sydney Water 162. The overflow from the rainwater tank shall be directed to the storm water system. 163. All plumbing work for the installation and reuse of rainwater shall comply with the NSW Code of Practice: Plumbing and Drainage and be installed in accordance with Sydney Water "Guidelines for rainwater tanks on residential properties. 164. A first flush device shall be installed to reduce the amount of dust, bird faeces, leaves and other matter entering the rainwater tank.

ROADS ACT Construction related activities must not take place on the roadway without Council approval. 165. Short-term activities (including operating plant, materials delivery) that reduce parking spaces, affect access to a particular route or prevent or restrict the passage of vehicles along the road must not occur without a valid Temporary Roadside Closure Permit. Activities involving occupation of the parking lane for durations longer than allowed under a Temporary Roadside Closure Permit require a Construction Zone Permit and must not occur prior to the erection of Construction Zone signs by the RTA. Permit application forms should be lodged at Council's Customer Service Centre allowing sufficient time for evaluation. An information package is available on request. Where applicable, the following works will be required to be undertaken in the road reserve at the applicant's expense: 166. i) construction of a new fully constructed concrete vehicular entrance/s; ii) removal of the existing concrete vehicular entrance/s, and/or kerb laybacks which will no longer be required; iii) reconstruction of selected areas of the existing concrete Footpath/vehicular entrances and/or kerb and gutter In addition to the works in the road reserve listed above, the following modification and/or improvement works to Council's road and drainage infrastructure will be required to be undertaken at the applicant's expense: 167. i) The construction of a new kerb inlet pit in Frederick Street on the alignment of the existing 450mm diameter RCP. ii) The construction of paving and other streetscape works in Frederick Street (limited to the area immediately in front of 159 Frederick Street) and Forest Road (limited to the area immediately in front of 286A, 288, 290, 292, 294, 296, 298, 300 & 302 Forest Road). Note: Detailed plans of the works are required to be submitted to Council for assessment and approval pursuant to Section 138 of the Roads Act 1993, prior to the issue of the Construction Certificate. 168. All footpath, or road and drainage modification and/or improvement works to be undertaken in the road reserve shall be undertaken by Council, or by a Private Licensed Contractor subject to the submission and approval of a Private Contractor Permit, together with payment of all inspection fees. An estimate of the cost to have these works constructed by Council may be obtained by contacting Council on 9562 1670. The cost of conducting these works will be deducted from the Footpath Reserve Restoration Deposit, or if this is insufficient the balance of the cost will be due for payment to Council upon completion of the work. The following details shall be submitted to Council for assessment and approval pursuant to Section 138 of the Roads Act 1993, in relation to the awnings over Forest Road and Frederick Street: i) Detailed design plans and specifications, including structural details; and 169. ii) Design certificate. The awning shall be designed by a Chartered Professional Engineer (Structural). Note: Awnings are required to be set back a minimum of 600 mm from the kerb face and be a minimum height of 2.4 metres above the footpath level. Drainage from the awning shall be connected to the stormwater system for the development. Following completion of the installation of the awning a certificate from a Chartered Professional Engineer (Structural) shall be submitted to Council stating that the awning has been constructed in accordance with the design plans and specifications. 170. Any driveway works to be undertaken in the footpath reserve by a private contractor requires an "Application for Consideration by a Private Contractor" to be submitted to Council together with payment of the application fee. Works within the footpath reserve must not start until the application has been approved by Council. 171. All works associated with the development shall be at no cost to the RTA. 172. Subject to the approval of the Rockdale Local Traffic Committee, the bus zone on the Frederick Street frontage of the site will be relocated to a position determined by the Committee. The cost associated with removal of the existing signage and installation of the new signage will be borne by the applicant. 173. "No Parking" restrictions are required to be installed along Frederick Street for the full frontage of the development site, subject to the approval of the Rockdale Traffic Committee. 174. All traffic control during construction must be carried out by accredited RTA approved traffic controllers. 175. The developer is to arrange with the RTA's Transport Management Centre (TMC) for any required road occupancy license during construction and if the operation of the pedestrian signals on Forest Road will be affected. 176. The existing Bus Zone fronting the site on Forest Road is to remain, and the remaining frontage of Forest Road is to be signposted 'No Stopping'. 177. Existing AM and PM clearway restrictions shall apply to the development frontage at all times. 178. A work zone will not be permitted on Forest Road 179. All works subject to design approval by the RTA shall be completed in accordance with RTA conditions and RTA agreements.

G T Brown 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.