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[2005] NSWLEC 140
General information, not legal advice.
Land and Environment Court (NSW)
2005-03-01
Bignold J, Mr P
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The applicant shall ensure all contractors engaged to carry out works pursuant to the Approved Plans carries current Workers Compensation Insurance and holds Public Liability Insurance for $10,000,000 cover. 6. Hours of Operation
The hours of operation being limited to between 7.00am and 6.00pm, Mondays to Fridays, to maintain the amenity of the locality. Operation of the Centre is not permitted on weekends. 7. Number of Enrolments
This consent permits a maximum number of fifty nine (59) children to be enrolled at the Centre. This number shall be the maximum number of children licensed for the facility through the Department of Community Services. Maximum number of staff employed at the Centre shall be thirteen (13). 8. Use of Outside Play Areas
The number of children in the outside play areas shall not exceed:
a) 15 children in each of the two Eastern play areas; and,
The time of use of the play areas shall not exceed;
a) in the Eastern play areas 45 minutes in total in the morning and 45 minutes in total in the afternoon; and,
b) in the Western play area 45 minutes in the morning and 45 minutes in the afternoon.
The Western play area shall be restricted to 0-2 year olds.
A maximum number of fifteen (15) children are permitted within the outdoor play areas at any one time during the hours of operation of the Centre. This number may only be exceeded on a total of ten (10) special event functions throughout any single year. 10. Construction Certificate
The building works shall not commence until a Construction Certificate has been issued in accordance with the Environmental Planning and Assessment Act 1979 . 11. Other Approvals
Prior to any work commencing, written approval under Section 68 of the Local Government Act 1993 shall be obtained for stormwater drainage, sanitary drainage and water plumbing, from the Council as the appropriate Water Supply Authority.
Prior to any work commencing, written approval is required under Section 138 of the Roads Act to carry out any works within the road reserve. 12. Approval for Operation
Operation of the Centre shall be in accordance with the provisions of the Department of Community Services ' Centre Based and Mobile Child Care Services Regulations (No 2) 1996' and any other Regulations specified by the Department of Community Services. 13. Demolition Approval
The existing dwelling shall only be demolished in accordance with the requirements of AS 2601-2001 "The Demolition of Structures".
Precautions to be taken shall include compliance with the requirements of the WorkCover Authority of New South Wales, in respect to:-
(a) Protection of site workers and the general public.
(c) Asbestos and lead based paints handling and disposal where applicable.
Any disused service connections shall be capped off to Council's requirements. The disposal of refuse is to be to an approved waste disposal depot. Land Title 14. Detention Basin Maintenance
The creation of a "Positive Covenant" on the title of the land of the proposed development requiring that the proposed detention basin be maintained in a safe and functional manner. The Section 88B Instrument shall also make provision for Council to conduct maintenance on the subject basin at the owner's expense if the basin is not maintained to the agreed standard. Details to be provided for the approval of the Director Environment and Planning WITH THE CONSTRUCTION CERTIFICATE APPLICATION or in accordance with Council's standard terms .
The creation of a "Restriction as to User" on the Title of the land of the proposed development to prevent any change in shape or alteration in structure of the proposed detention basin after the final approval of the structure has been given by Council. Details to be provided for the approval of the Director Environment and Planning WITH THE CONSTRUCTION CERTIFICATE APPLICATION. 16. Title Restrictions Re Drainage
Details of function, form and levels of essential earth or other surface works including floodways, shall be noted on the Title of the land burdened to ensure the permanency and designed operation of such facilities.
CIVIL ENGINEERING WORKS AND SERVICES 17. Provision of Works and Services The provision, by the Applicant at their expense, of the following works and services to be documented and constructed in accordance with Council's Development Control Plan Nos 12 and 41, to the satisfaction of the Council's Development Control Engineer. PRIOR TO THE ISSUE OF A CONSTRUCTION CERTIFICATE the Applicant must obtain approval for the works to be undertaken by submitting adequate documentation including plans, calculations and specifications, to Council which establish that the proposed works are in accordance with all Council's standards and all other relevant Codes and guidelines. 18. Water and Sewer Authority Conditions Prior to issue of a Construction Certificate, the Applicant must obtain approval from Council (as the Water Supply Authority under Section 68 of the Local Government Act ) for the works to be undertaken by submitting adequate documentation including plans, calculations and specifications which establish that the required works are in accordance with all Council's standards and all other relevant codes and guidelines.
Water service connections and sewer junctions are not to be located under sealed driveways. This may require widening of the access points to those shown on approved Plan.
All stormwater connections to the kerb shall be done using minimum 2mm thick galvanised steel section in accordance with Council's Standard Drawing No SD102 in accordance with the standards of Development Control Plan 41.
Parking, Loading, Access and Roadworks 21. Driveways and Parking Internal driveways, turning areas and twenty (20) off street vehicular parking spaces including the provision of a disabled access parking space as shown on Plan No. DA04.11.1 prepared by Robinson Moeskops Architects dated June 2004, are to be constructed with an all-weather surface of coloured, patterned reinforced concrete. Parking spaces 3, 8 and 12 are for the use of staff of the Centre.
The parking spaces are to be line marked. 22. Road Shoulder Road shoulder widening shall be surfaced with two coat bitumen seal to the satisfaction of the Council's Development Control Engineer to make provision for vehicles parking on the northern side of Retford Road. 23. Construction of Footpath in Footway on Frontage Concrete paving 1.2 metres wide shall be constructed in the footway on the frontage of the development to Retford Road. The remainder of the footway is to be regraded and grassed. The sewer manhole extending above the existing footpath level shall be incorporated into the new footpath levels to avoid creating a trip hazard. 24. Construction of Footway Crossing Commercial vehicular footway crossings shall be constructed in accordance with Council's Standard Drawing No. SD108, for access to the development. 25. Traffic Control Plan
At least seven (7) days prior to the commencement of work, the Applicant shall submit to Council a Certified Traffic Management Plan for each activity of work in accordance with the current version of Roads and Traffic Authority document " Traffic Control at Work Sites" . This Plan must include each construction activity which involves works on or adjacent to public land. If the work site alters, further Plans are to be submitted to Council for its approval. A copy of the Plan is to be kept on site at all times.
Sewer Mains 26. Compliance Certificate for Sewer Main Prior to issue of a Construction Certificate, the Applicant shall provide the Principal Certifying Authority with a copy of the Compliance Certificate for the sewer main constructed in accordance with plans approved by Construction Certificate 03/1626.
The sewer main shown passing through Lot 201 DP 524020 has been constructed as part of a subdivision of this property which has not been registered. The Applicant shall make application to Council, including payment of the appropriate fee, for a Compliance Certificate to be issued in relation to this sewer main. The Compliance Certificate will be issued for the construction of the sewer main only and will not include other items required by conditions of consent for the subdivision (DA03/0778). The Compliance Certificate will not be issued unless all matters relating to construction and documentation of the sewer main have been provided including but not limited to results of testing, work as executed plans, restoration, provision of maintenance bond, etc.
Where a building is constructed within the area of influence of the sewer main, the weight of the building shall be distributed away from the sewer main by pier and beam construction. The piers shall be designed by a Professional Engineer and shall be embedded on firm foundation at least 300mm below the invert of the pipe with a minimum horizontal clearance from the pipe of 600mm.
The area of influence of the sewer main is considered that area within the angle of repose of 45o for normal loam/clay/sand foundations, or 600 for rock foundations measured 600mm from the outside of the pipe from the trench bottom.
Notwithstanding the above, a building shall not be erected within 1.2m of a sewer manhole and unobstructed personal access of minimum width of 900mm shall be provided to any manhole located upon private property.
Engineer's details for piering in the vicinity of the sewer main shall be approved by Council prior to the issue of the Construction Certificate.
Water Mains Supply 29. Construction of Water Service A water service shall be installed to the development by Council at the Applicant's cost. Council's application form shall be completed by the Applicant and the appropriate fee paid. 30. Construction of Sewer Sidelines Sidelines and junctions shall be installed for sewer connections to the development by Council at the Applicant's cost. Council's application form shall be completed by the Applicant and the appropriate fee paid.
Underground electricity shall be provided to service the development in accordance with the requirements of Integral Energy. The Applicant prior to release of the Construction Certificate will be required to submit to Council documentary evidence certifying that the requirements of Integral energy have been obtained. The requirements of Integral Energy will need to be met prior to occupation of the development. 32. Telstra / AGL - Where Applicable
The Applicant shall ascertain from Telstra and/or AGL the requirements for the development. 33. Works as Executed Plans
Following the completion of the work, one full set of work-as-executed drawings shall be submitted to and retained by Council. Sufficient details including locations and levels of the below ground infrastructure are required in order to enable a complete check of the work as executed to be compared to the original approved design. Any deviation from the approved engineering plans shall be shown on the work-as-executed drawings. Each sheet of the drawings shall carry the certification of the developers supervising engineer. 34. Relocation of Existing Services
Where existing services including drainage, sewerage and water may be required to be relocated as a result of the development, a plumber's permit is required from Council prior to commencing work. Inspection of these works by Council as the Water Supply Authority is required. 35. Certification of Internal Civil Works
On completion of works and prior to occupation, certification from a practising qualified Engineer shall be submitted to Council detailing that all internal civil works (ie, internal driveways, paths and stormwater drainage systems including any onsite detentions) are in accordance with the approved plans and specifications.
The Applicant shall lodge with Council a Bond in the form of cash or irrevocable bank guarantee for the sum of $3,000, to ensure that the landscaped area is maintained to the satisfaction of Council for a period of not less than one year from the date of completion of the development. Council would have the right to enter the property and to carry out the work by day labour or contract at the expense of the Applicant.
The Bond must be lodged with Council PRIOR TO RELEASE OF THE CONSTRUCTION CERTIFICATE . 37. Existing Vegetation The existing vegetation proposed to be retained along the eastern and western property boundaries is to be supplemented with additional plantings to the satisfaction of Council's Town Planner. A Landscape Plan to address noise and privacy impacts upon adjoining properties is to be submitted prior to release of the Construction Certificate. 38. Landscape Vegetation Any landscape vegetation location within 2m of either side of the driveway entrances is to be selected from species that have a maximum mature height of not more than 1m, so as not to obscure sightlines for vehicles entering and leaving the carpark area. 39. Disposal of Vegetation Any trees removed with Council consent and any other vegetation cleared in association with this development shall be disposed of in accordance with Council's Waste Management Plan. For minor additions and outbuildings removed vegetation shall be either mulched for reuse on site or transported to an approved waste/recycling facility.
No vegetation shall be burnt except with an approval issued by Council under Clause 9 (2) of the Protection of the Environment (Control of Burning) Regulation 2000 . 40. Tree Removal No tree removal is authorised by this consent other than in accordance with the site plan prepared by Robinson Moeskops Architects Drawing No DA 04.11.1A dated June 2004.
Noise Pollution Controls 41. The Applicant must comply with relevant noise control provisions contained within the Protection of the Environment Operations Act 1997 and Noise Control Regulations and Policies to ensure local amenity is not adversely affected by noise impacts associated with the development.
In accordance with Council's Development Control Plan No 49 an approved litter receptacle with a tight fitting lid shall be provided on site for the disposal of builder refuse that may be wind blown. The bin shall be onsite during all demolition and construction works. Sorting of waste materials shall occur on site in accordance with Council's approved Waste Management Plan. 46. Waste Management Plan The approved Waste Management Plan must be displayed on site and implemented during construction and ongoing operation of the development. Evidence of recycling/disposal actions and waste management contracts are to be maintained for three years from the date of commencement of work.
CONTRIBUTIONS AND DEDICATIONS 49. Section 94 Contributions
Payment to Council of contributions levied in respect of Sec 94 of the Environmental Planning & Assessment Act subject of this development consent to be made PRIOR TO THE ENDORSEMENT AND RELEASE OF THE CONSTRUCTION CERTIFICATE , or as elsewhere specified.
This clause does not override the provisions of the condition relating to supervisory charges and those connected with engineering works listed elsewhere on this consent. 50. Contributions The contribution by the Applicant of monies for the following designated purposes PRIOR TO THE RELEASE OF THE CONSTRUCTION CERTIFICATE. The exact amount of contribution will be calculated at the rate applicable at the time of payment and will reflect the current contribution rates, which are reviewed annually. Copies of the Contributions Plans are available at Wingecarribee Shire Council's Administration Building in Moss Vale. The current contribution rate is noted below.
Roads and Traffic Management Facilities Contributions Plan (Effective 01/07/93) The payment of a monetary contribution towards the improvement of local roads to which the development has an impact due to the vehicular movements generated by the development.
Road Sub Plan 2 No LOTs/ETs Rate $ Total $ Account No. 540 4.80 2,592 109010.1406.SP201
Stormwater Drainage Contributions Plan (Effective 21/06/93) The payment of a monetary contribution towards the augmentation of the stormwater drainage systems within the catchment, of which the development is a part of and has an impact on.
No LOTs/ETs Rate $ Total $ Account No. 100/200 = 5.5 386 2,123 109010.1403.MRFS
Administration Contributions Plan (Effective 23/05/01) The payment of a monetary contribution to be applied against the cost of Contribution Plan Administration.
No LOTs/ETs Rate $ Total $ Account No. 1 336 336 109010.1401.CPA01
Payment of the above contributions is to be by BANK CHEQUE OR CASH and is to be accompanied by the attached sheet entitled " Record of Payment of Contribution" . Should the Applicant pay by personal or company cheque the plans subject to this approval will not be available for collection until such time as the cheque has been honoured (ie. a minimum of 10 days).
Contribution Towards (Water and/or Sewer Facilities) - Council as the appropriate Supply Authority shall require the payment of a developer contribution towards the provision of (Water and/or Sewer Facilities) required to serve the development in accordance with Division 5 Part 2 Chapter 6 of the Water Management Act 2000. The current rates of contribution applicable are as follows:
Water Supply Contributions Plan (Effective 23/07/97) The payment of a monetary contribution towards the augmentation of the headworks water supply system that services the development.
Contributions to Existing Infrastructure (Assets) No LOTs/ETs Rate $ Total $ Account No. 3.14 1,754 5,507.56 2-7500.1409.WEA01.C131
Contributions to Proposed Infrastructure (Works) No LOTs/ETs Rate $ Total $ Account No. 3.14 73 229.22 2-75000.1409.WPW01.C131
Sewerage Contributions Plan (Effective 23/07/97) The payment of a monetary contribution for headworks sewerage system that serves the development.
Contributions to Proposed Infrastructure (Works) No LOTs/ETs Rate $ Total $ Account No. 5.9 3,876 22,868.40 3-6500.1407.SPW01.C141
Compliance Certificate fees, in accordance with Council's Revenue Policy are as follows and shall be paid concurrently with developer contributions:-
Water - 141901-1536 $90.00 - Sewer - 141901-1536 $90.00 = $180.00
Prior to the final release, the Applicant shall arrange for Council's Technical Services Division to inspect the infrastructure constructed to ensure Water and Sewer requirements which have been met.
The Construction Certificate will not be issued until the Water Management Act contributions have been paid and/or secured and the approval of Council has been obtained.
BUILDINGS 52. Compliance with Building Code of Australia
All walls within 3m of a side or rear boundary shall have the appropriate fire resistance level required by the Building Code of Australia. All windows and doors within 3m of a boundary shall be protected in accordance with Part C3 of the Building Code of Australia (ie, windows that are automatically or permanently fixed in the closed position).
Details of the proposed method of complying with Part C3 of the Building Code of Australia and the proposed method of ventilating rooms with fixed windows are to be submitted to Council with the Construction Certificate application.
Design and Components 53. Energy Efficiency
The building shall be provided with the following minimum energy efficient measures:
Walls: R1.5 insulation Ceiling: R3.0 insulation Roof: Sarking and R1 insulation blanket Windows and Doors: Weather seals 54. Disabled Persons Access and Facilities (a) Access for people with disabilities must be provided to and within buildings as set out in Table D3.2 of the Building Code of Australia by means of a continuous path of travel in accordance with AS1428.1:-
(i) from the allotment boundary at the main points of entry; and
(ii) from any carparking space on the allotment (whether within or outside the building) provided in accordance with D3.5; and (iii) from any adjacent and associated accessible building on the allotment; and
(iv) through the principal public entrance. (b) Disabled Sanitary Facility
The sanitary facility shall be constructed in accordance with the requirements of AS1428.1 Design for Access and Mobility General Requirements for Access .
The Applicant must comply with the provisions of the Commonwealth Disability Discrimination Act 1992.
Minimum provision and maintenance thereafter at the developer's expense of permanent and effective screen fencing of 1.8m height hardwood timber lapped and capped fencing to the side and rear boundaries of the site, to maintain the privacy of residents of the site and other properties. This shall be modified for the eastern and western property boundaries to meet the requirements of the Court appointed noise expert.
Building Services 56. Hydraulic Engineer Plans The application for a Construction Certificate and/or Section 68 Application shall include two (2) copies plans and specifications, including one coloured set, of detailed plans prepared by a consulting hydraulics engineer of:
(iii) the stormwater drainage and disposal system, including the layout of roof drainage / surface drainage / sub-surface drainage; and
(iv) on site hydrant and hose reels. Street hydrants may suffice if proof of adequate pressure and flow rates to comply with AS2419 is provided.
Food Preparation 57. The premises must be set up and operated in accordance with the Food Act, the Food Regulations and the Food Safety Standards.
To ascertain the date upon which the consent becomes effective refer to Section 83 of the Act.
This consent will lapse unless the development subject of this consent is commenced within a period of five (5) years in accordance with Section 95 of the Environmental Planning and Assessment Act, 1979 except in the case of staged developments where the provisions of Section 95 (1)(b) of the Environmental Planning and Assessment Act apply.
Section 97 of the Act confers on an Applicant who is dissatisfied with the determination of a consent authority a right of appeal to the Land and Environment Court exercisable within 12 months after receipt of this notice.
The approval granted by the Council does NOT consider nor negate or vary any private easement, covenant or restriction. The owner is advised to investigate any encumbrance or restriction that may be noted on the title to the land.
All conditions on this consent have been imposed having regard to all matters listed for consideration under Section 79C of the Environmental Planning & Assessment Act 1979.
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.
Robinson Moeskops Architects
Wingecarribee Shire Council
CITATION : Robinson Moeskops Architects v Wingecarribee Shire Council [2005] NSWLEC 140