Mesabo Pty Limited v Mosman Municipal Council

Land and Environment Court (NSW)|2004-09-23

The applicant is to provide a 1:20 scale detailed design of an open picket fence and gate at No.89 which reflects the design and style of the verandah detail proposed at No.89, incorporating current stone base.

(xiii) Materials and Finishes To ensure works do not unduly impact on the heritgage setting of the houses, materials and finishes shall be complimentary to the character and streetscape of the area. Highly reflective roofing materials shall not be used. The Applicant is to provide a 1:20 detailed drawing of proposed verandahs, associated stairs and handrails of No. 87 and No. 89 and link structure between No. 87 and No. 89. The drawing is to provide details of finished external surface material, including colours, types, brand, style and texture. The drawing must be certified as suitable by Professor Richard Mackay and approved by the Council or certifying authority.

The Applicant is to provide an open picket fence at No. 89, which reflects the design and style of the verandah detail proposed at No. 89, incorporating current stone base.

a band of coloured paving along the common boundary of No. 87 and No. 89 to define the original allotment boundary. This boundary paving to return towards No. 87 at the position of original front fence corner post; 2. a band of coloured paving 1m wide from the front gate of No. 87 to the front steps; a band of coloured paving along the front boundary of the driveway adjacent to No. 85; and 3. otherwise the front drive-through is to be finished in buff coloured pavers to match those existing pavers at No. 89. 3. Prior to the Commencement of Site Works (a) The following measures must be satisfied prior to the commencement of site works, including any works relating to demolition, excavation or vegetation removal. (i) Notice of Intent to Commence Site Works In accordance with Section 81A(2) of the Environmental Planning and Assessment Act 1979 , no site works (including building works, demolition, excavation or the removal of vegetation) are to commence until: (a) the Construction Certificate has been issued; (b) the person benefiting from the consent has appointed a Principal Certifying Authority (PCA) by way of completing Form 7A (attached at the end of the consent); (c) in instances where Council is not the PCA, the PCA has, no later than 2 days before the building work commences, notified Council of his or her appointment by way of forwarding a completed copy of Form 7A and notified the person benefiting from the consent of any critical stage inspections and other inspections that are to be carried out in respect of the building work by way of completing Form 7B (attached at the end of this consent). In instances where Council is the PCA, Council has completed Form 7B if necessary and forwarded it to the person benefiting from the consent. (d) the person benefiting from the consent, if not carrying out the work as an owner-builder, has (by way of completing Form 7C): + appointed a principal contractor for the building work who must be the holder of a contractor licence if any residential building work is involved; and + notified the PCA of any such appointment; and + unless that person is the principal contractor, notified the principal contractor of any critical stage inspections and other inspections that are to be carried out in respect of the building work; and (e) the person benefiting from the consent has given Council at least 2 days' notice of the person's intention to commence the erection of the building by way of completing Form 7D.

(ii) Protection of Adjoining Areas If site or building works will: + cause pedestrian or vehicular traffic in a public place to be obstructed or rendered inconvenient or unsafe; or + involve the enclosure of a public place; or + have the potential to damage adjoining private land by way of falling objects then a temporary hoarding, fence or awning must be erected between the work site and the adjoining area. Any such hoarding, fence or awning must be removed when the work has been completed. The fence must be constructed prior to the commencement of works and where adjoining public land shall be covered in cyclone wire mesh to discourage the fixing of posters or graffiti. (iii) Sediment & Erosion Controls Temporary sedimentation and erosion controls shall be constructed prior to commencement of any site works in order to prevent the discharge of sediment from the site. The controls shall be designed and installed in accordance with the requirements of the NSW Department of Conservation and Land Management's " Urban Erosion and Sediment Control " manual. Note: this document is now available from the Department of Infrastructure, Planning and Natural Resources. (iv) Lapsing of Consent if Site Works Not Commenced In accordance with Section 95(1) of the Act, this consent shall lapse unless work has physically commenced on the land within 5 years from the date of the consent or in instances where no work is required, the use has commenced within 5 years from the date of the consent. (v) Public Liability Insurance Public liability insurance to the value of $5,000,000 must be taken out by the builder or owner to protect any person, firm or company from injury, loss or damage sustained as a consequence of the carrying out of site works, including all excavation, demolition and construction works. A copy of the policy must be provided to Council or the Accredited Certifier. (vi) Facilities

First aid facilities shall be provided consistent with requirements under Centre Based and Mobile Child Care Services Regulation (No. 2) 1996. Details to be submitted with a construction certificate application.

Suitable fire fighting equipment shall be provided consistent with requirements under Centre Based and Mobile Child Care Services Regulation (No. 2) 1996 . Details to be submitted with a construction certificate application. 4. DURING SITE WORKS / CONSTRUCTION (a) The following conditions must be satisfied during site and construction works. (i) Compliance with the Building Code of Australia

All works are to be carried out in accordance with the requirements of the Building Code of Australia. (ii) Demolition All demolition work must be carried out in accordance with the provisions of A ustralian Standard 2601-2001: The Demolition of Structures . (iii) Demolition Where asbestos material shall be removed or disturbed as a result of any proposed demolition, alteration or addition, all work must be carried out by a person licensed under chapter 10 of the Occupational Health and Safety Regulation 2001 and undertaken in accordance with the requirements of clause 29 of the Protection of the Environment Operations (waste) Regulation 1996 . All asbestos to be removed must be disposed of at a tip recommended by the NSW Environment Protection Authority and under no circumstances shall be re-used or sold. (iv) Signs for Building and Demolition Sites For safety reasons, a sign must be erected in a prominent position on the premises clearly displaying the following information: (a) the name, address and telephone number of the principle certifying authority for the work; and (b) showing the name of the person in charge of the work and a telephone number at which that person may be contacted during and outside work hours; and (c) stating that unauthorised entry to the work site is prohibited. Any such sign shall be maintained while the building work or demolition work is being carried out, but must be removed when the work has been completed. This condition does not apply in relation to building work or demolition work that is carried out inside, and does not affect the external walls of, an existing building. (v) Site Work Hours In order to maintain the amenity of adjoining properties, audible site works shall be restricted to between 7.00am and 6.00pm, Monday to Friday and 8.00am to 1.00pm Saturday. Inaudible site works may also take place between 7.00am and 8.00am on Saturdays. No site works shall be undertaken on Sundays or public holidays. Unless otherwise approved within a Construction Traffic Management Plan, construction vehicles, machinery, goods or materials shall not be delivered to the site outside the approved hours of site works. (vi) Sediment & Erosion Controls Sedimentation and erosion controls must be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the principal certifying authority's satisfaction. (vii) Dust Control Appropriate measures (e.g. fine water spray) shall be employed during demolition, excavation and construction works to prevent the emission of dust and other impurities into the surrounding environment. All such measures shall be co-ordinated with site sedimentation controls to ensure polluted waters do not leave the site. (viii) Council Property The land and adjoining areas shall be kept in a clean and tidy condition at all times. No construction vehicles, building materials, waste, machinery or related matter shall be stored on the road or footpath for the duration of works unless separate approval has been obtained from council's traffic committee for the establishment of a construction zone. Under no circumstances will any person be allowed to mix or dispose of concrete, mortar or slurry within council property. (ix) Driveway The existing concrete gutter bridge crossing to 87 Shadforth Street is to be removed and reconstructed in accordance with council's standard drawing no.s007 for gutter bridge crossing, where required to facilitate the widening of the driveway. The levels at the boundary alignment of the property along the Shadforth street frontage shall be defined by the existing levels. (x) Protection of Landscape Features All natural landscape features including trees and other vegetation, natural rock outcrops, soil and watercourses shall remain undisturbed except where affected by necessary works detailed on approved plans. (xi) Protection of Landscape Features To minimise impacts upon trees to be retained, no permanent fill or storage of building materials, excavated fill or topsoil during site works shall take place within their drip lines. (xii) Protection of Landscape Features To minimise disturbance to retained trees, no excavation shall take place within the critical root zone, measured as a radius from the trunk of the tree. Excavation may occur between the critical and primary root zones but only by hand under the supervision of an experienced arborist or tree surgeon. Species Location Critical Root Zone Jacaranda mimosofolia Front yard No. 89 4.0m Alnus jorrulensis Rear yard No. 87 4.0m Ulmus parvifolia Adjoining property at 158 Raglan Street near rear boundary of No.87 4.0m

In the event that major structural or feeder roots are encountered between the critical and primary root zones, the arborist is to recommend and or implement appropriate measures to ensure the retention of the tree. If these measures involve structural alterations to the building or work, such measures must be certified by a practicing Structural Engineer that the modified plans/details comply with the relevant Building Code of Australia and/or Australian Standards. (Note: Council's Tree Management Officer may be contacted for advice regarding appropriate tree protection measures).

(xiii) Tree Preservation With the exception of the Alnus Jorrulensis in the rear land of No. 89 all street trees and trees on private property that are protected under Mosman Council's Tree Preservation Order 2003, shall be retained except where council's prior written consent has been obtained, or where after approval of the relevant construction certificate, trees stand within the envelope of approved buildings or within the alignment of approved permanent paved vehicular access roads and parking areas. (xiv) Tree Removal The existing tree situated between parking spaces 3 and 4 shall be removed and those parking spaces shall be then relocated 1 metre further east, with spaces 3 and 4 each being 5.4 meters long in accordance width AS2890.1 (2004). (xv) Air Conditioning Units To control noise impacts for adjoining properties, no external air conditioning unit shall be installed without prior consent. Applicants may have regard to council's complying development controls for external air conditioning units under the Exempt and complying Development DCP . This condition applies for both during construction works and for the life of the development. (xvi) Food Premises All food preparation areas are to comply with the Food Act 2003 and the relevant standards of the National Foods Standards Code and the Centre Based and Mobile Child Care Services Regulation (No. 2) 1996. (xvii) Waste Storage Area For safety, amenity and maintenance reasons, the waste storage area (being the existing garage at no. 87) must be constructed to the following standards: (A) Floors must be constructed of concrete, graded and drained to an approved drainage outlet connected to the sewer and finished to a smooth even trowelled surface;

(B) Walls must be constructed with solid impervious material and shall be cement rendered internally to a smooth even steel trowelled surface;

(D) All entry points into the room must be bounded to prevent the escape of liquid waste. Bunding shall be for 110% of the likely liquid storage waste and constructed in such a manner that does not obstruct the removal of waste receptacles from the room or create a safety risk to users;

(G) The ceiling must have a minimum height of 2.1m from floor level and be finished with a smooth faced non-absorbent material capable of being easily cleaned;

(H) Waste storage areas shall prevent the access of vermin;

(I) Waste receptacles used shall be compatible with Mosman council's waste collection service;

(J) The door to the storage area shall be weatherproof and able to be opened from the inside at all times; and

(K) Hot and cold water hose cocks shall be located inside or within close proximity to the waste storage areas to facilitate cleaning.

(xx) Local Government Act 1993 This consent does not authorise the carrying out of any of the following activities, which require the separate approval of council under section 68 of the Local Government Act 1993 : (a) Place a waste storage container in a public place (b) Swing or hoist goods across or over any part of a public road by means of a lift, hoist or tackle projecting over the footway Note: A person who fails to obtain an approval or who carries out an activity otherwise than in accordance with an approval is guilty of an offence under Sections 626 and 627 of the Local Government Act 1993 . (xxi) Approved Plans A copy of the stamped approved plans must be kept on site for the duration of site works and be made available upon request to either the principal certifying authority or an officer of the Council. (xxii) Change of Building Use A building in respect of which there is a change of building use must comply with the Category 1 fire safety provisions applicable to the proposed new use. Note: The obligation under the sub-clause to comply with the Category 1 fire safety provisions may require building work to be carried out even though none is proposed or required in the relevant development consent.

Prior To The Release Of The Occupation Certificate (a) The following conditions must be satisfied prior to the issue of the Occupation Certificate. (i) Critical Stage Inspections To ensure building works are carried out properly and in accordance with the conditions of this consent, with the building code of Australia and or with relevant Australian standards, the following critical stage inspections are to be carried out: + at the commencement of the building work; + after excavation for, and prior to the placement of, any footings; + prior to pouring any in-situ reinforced concrete building element; + prior to covering of the framework for any floor, wall, roof or other building element; + prior to covering waterproofing in any wet areas; + prior to covering any stormwater drainage connections; + smoke alarms prior to any occupation certificate being issued in relation to the building; + mechanical ventilation where mechanical means for ventilating a room is required prior to any occupation certificate being issued in relation to the building; + access and mobility if disabled parking is provided prior to any occupation certificate being issued in relation to the building; and + final inspection after the building work has been completed and prior to any occupation certificate being issued in relation to the building.

The critical stage inspections must be carried out by the Principal Certifying Authority PCA, or if the PCA agrees, by another certifying authority excepting the final inspection which must be carried out by the PCA. Notes: Records of the above critical stage inspections will be required to be submitted prior to the release of the Occupation Certificate - see later conditions of consent. If you intend engaging Council to undertake the inspections, please telephone the area Building Surveyor or Council's Case Officer on 9978 4044 to arrange a suitable time. (ii) Food Preparation A compliance certificate must be submitted to the Accredited Certifier, certifying that the food preparation area has been constructed in accordance with the requirements of the Food Act 2003 and condition 4(a)(xvi). A person suitably qualified and experienced in regard to the design and fit out of commercial food premises must prepare the compliance certificate. (iii) Deleted (iv) Deleted (v) Sydney Water A section 73 compliance certificate under the S ydney Water Act 1994 must be obtained. Application must be made through an authorised water servicing coordinator. Please refer to "your business" section of Sydney water's web site at www.sydneywater.com.au then the "e-developer" icon or telephone 13 20 92. Following application, a "notice of requirements" will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design. The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to the release of the Occupation Certificate or Subdivision Certificate as applicable or whichever may occur first. A copy of any Trade Waste Agreement required by Sydney Water shall be submitted to Council prior to the release of the Occupation Certificate. (vi) Side and Rear Fencing All boundaries behind the building line shall be enclosed with 1.8m fences/walls to protect the privacy of future occupants as well as adjoining owners (where not already treated in this manner) unless an adjoining owner agrees to the provision of an alternate fence/wall that fence/wall shall be erected in lieu of the fence/wall required by this condition.

PRIOR TO OCCUPATION (a) The following conditions must be satisfied prior to occupation of the development. (i) Compliance Certificates and Inspection Records Where Council is not the principal certifying authority, a copy of any compliance certificates and or records of inspections received by the PCA shall be forwarded to Council prior to occupation or commencement of the use. (ii) Occupation Certificate Occupation or use, either in part or full, shall not take place until an occupation certificate has been issued. The occupation certificate must not be issued unless the building is suitable for occupation or use in accordance with its classification under the Building Code of Australia and until all preceding conditions of this consent have been complied with. Where Council is not the Principal Certifying Authority, a copy of the Occupation Certificate together with registration fee must be provided to Council.

(iii) Kerb Side Parking and Sign Posting Kerb side parking in front of No.s 87 and 89 Shadforth Street, and extending 2.2 metres north of the northern site boundary (in front of No. 91) shall be signposted and restricted to "10 Minute parking, 7.00am - 9.30am and 3.00pm - 6.00pm, Monday to Friday". The applicant must meet the cost of the Council in providing the necessary signposting. (iv) Management Plan The applicant shall submit a Plan of Management to Council for approval, to be administrated by the operator of the child care centre through the life of the development, demonstrating procedures to manage numbers of children in outdoor areas and use of outdoor areas for play. The Plan of Management must: + Provide for a limitation on the use of the outdoor play area at the rear of No. 89 Shadforth Street to children aged 6 weeks to 2 years with a general limit of 5 children at any one time. + Provide for a limitation on the use of the outdoor play area at the rear of No. 87 Shadforth Street to children aged between 2 years and 5 years with a general limit of 10 children at any one time. + Provide for a limitation on the use of the open space/verandah area between No.s 87 and 89 to children aged between 2 years and 5 years with a general limit of 8 children at any one time. + Specify the standard hours during which the outdoor areas will be used. + Specify the circumstances in which these limits might not be able to be met (for example in times of inclement or excessively hot weather, for open days on limited occasions during each year, during orientation for new children). + Provide for a prohibition on children being permitted to be on site forward of the front building line unless accompanied by a parent or carer. 7. During Occupation (a) The following conditions must be satisfied during occupation or use of the development. (i) Noxious Weeds To prevent the spread of undesirable and invasive species and to ensure the preservation of urban bushland, all noxious weeds shall be removed and continually suppressed. A list of noxious weeds may be obtained from council or viewed on its web site at http://www.mosman.nsw.gov.au and then under "environment" and "trees and weeds". (ii) Occupation The premises shall be occupied solely for the approved use. No change of use or additional use of any part of the premises shall take place without prior development consent (other than for exempt development). (iii) Operating Hours To ensure reasonable neighbourhood amenity, hours of operation are restricted to the following times: Monday to Friday 7.00am - 6.00pm

There is no approval to operate on the Weekends under any circumstances. (iv) Deleted

(v) Acoustic The rear windows to the outbuilding (at the rear of No. 89 Shadforth Street) adjacent to the common boundary with No. 160 Raglan Street are to be permanently closed and sealed. If required, as a result of this condition, to comply with the BCA ventilation standards criteria, mechanical ventilation shall be installed.

(vi) Number of Children The maximum number of children to be enrolled to attend the child care centre is not to exceed 58, with no more than: (a) 14 of the children being 0-2 years of age, of which: (a) 24 of the children being 2-3 years of age; and (b) 20 of the children being 3-5 years of age. The maximum number of children permitted on-site for purposes other than accompanying parents/carers of those enrolled children being dropped off or collected from the child care centre shall be 58, at any time except for open days and orientation sessions.

(vii) Open Space - Play time. The outdoor play area shall not be used by children for a period greater than 3 hours per day. Such outdoor use shall occur only between the hours of 9.30am- 11.30am and 2.30pm to 4.30pm. A maximum of 23 children shall be allowed to play outside at any one time except: during inclement or exsessively hot weather; open days; and orientation for new children.

(viii) Car parking Staff shall only park in designated parking spaces 1, 2, 3, 4 and 5. (ix) Drive Through Facility The drive through facility is to be used only to drop off and pick up children when there is no car parking space available at any of the three designated kerbside parking spaces adjacent to nos. 87 and 89. In those circumstances the vehicle shall stand for a period not exceeding 10 minutes. Other than this, the drive through facility is not to be used for parking. (x) Waste Storage The garbage room is to be designed and maintained so as to prevent the emission of offensive odour. To prevent the emission of offensive odour, any nappies or sanitary items must be disposed of appropriately by being individually bagged and placed in a commercial waste service container. (xi) Deliveries and Waste Collection Deliveries of goods and the contracted collection of wastes associated with the child care centre are restricted to the hours of 10.00am - 2.00pm and 6.30pm - 8.00pm, Monday to Friday except for the delivery of milk and deliveries by staff using their own vehicles.

(xii) Landscaping Landscaping shall be maintained in a state which accords with the approved plan for the duration of the existence of the use except during periods where water restrictions are imposed. (xiii) Advertising Signs No advertisement shall be erected on or in conjunction with the development without prior development consent unless the advertisement is 'exempt development' under council's Exempt and Complying Development DCP . (xiv) Number of Staff The number of (full-time and part-time) staff on the premises at any one time shall not exceed ten (this is including a supervisor and a cook). (xvi) Lighting To maintain amenity for adjoining properties, all external lighting installed shall comply with Australian Standard 4282-1997 "Control of the Obtrusive Effects of Outdoor Lighting'.

External lighting about the premises shall be designed in accordance with Council's "Lighting Code for Residential Areas" to avoid loss of amenity for adjoining residents.

(xvii) The owener/operator/manager must ensure that the premises are operated gernally in accordance with the approved Plan of Management required prior to the occupation and as referred to in Condition 6(iv) above.

          J S Murrell
          Commissioner of the Court
          ljr

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

CITATION : Mesabo Pty Limited v Mosman Municipal Council [2004] NSWLEC 492 revised - 28/09/2004 APPLICANT Mesabo Pty Limited PARTIES : RESPONDENT Mosman Municipal Council FILE NUMBER(S) : 10166 of 2004 CORAM: Murrell C Development Application :- Child care centre in residential area noise impacts on adjoining residential properties KEY ISSUES: intensity of development demand for on street parking impact of proposed alterations additions on heritage item and conservation area

At a glance

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Judgment (34 paragraphs)

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Cases Cited (1)

Cited By (6)