Warlam Pty Ltd v Marrickville Council

Warlam Pty Ltd v Marrickville Council - [2009] NSWLEC 23 - NSWLEC 2009 case summary — Zoe

[20]

10 However, as is common ground, the existing development is permitted under the existing use provisions in Part 4 Division 10 (ss 106 - 109B) of the EPA Act. Section 106 relevantly defines an "existing use" as "the use of a building, work or land for a lawful purpose immediately before the coming into force of an environmental planning instrument which would, but for Division 4A of Part 3 or Division 4 of Part 4, have the effect of prohibiting that use…" Section 107(1) provides that, except where expressly provided by the EPA Act, "Nothing in this Act or an environmental planning instrument prevents the continuance of an existing use". Section 108 authorises regulations to be made respecting use. Under cl 41(1)(a) of the Environmental Planning and Assessment Regulation 2000 (EPA Regulation) an existing use may "be enlarged, expanded or intensified". Under cl 41(1)(b), an existing use may be "altered or extended". No authority has addressed the meaning of paragraph (b), but it must be different from paragraph (a). Paragraphs (a) or (b) may or may not be viewed as including the notion of "evolution" of an existing use which has been held, without reference to any statutory provision, to be permissible: Grace v Thomas Street Café Pty Ltd [2007] NSWCA 359, (2007) 159 LGERA 57 at [61]. Evolution in this context does not include evolution into a different use. The analogy of an ape evolving into man is unsound in existing use law since man is a different species. Clause 41(1)(d) provides that an existing use "may be changed to another use, but only if that other use is a use that may be carried out with or without development consent under the Act". Neither cl 41(1) nor evolution permits a different residential use that is prohibited. Thus, if, as the applicant contends, the proposed development is only an evolution of and/or only enlarges, expands or intensifies the existing use, it is permissible with consent. Otherwise it is prohibited and consent cannot be granted to the development application.

[25]

18 I would summarise the existing use principles, so far as may be relevant, as follows: (a) existing use provisions in planning legislation are designed to permit continuation of a use of land for the purpose for which it was used immediately before later regulation that prohibited it wholly or partly or upon conditions. The rationale is that it is unjust to deprive an owner of the right to use land for an existing purpose: Royal at 309; Grace at [56]; (b) accordingly, existing use provisions should be as liberally construed as the language in its context allows: Dorrestijn at 105; Grace at [67]; (c) in order to reconcile the right of the owner to use land for an existing purpose with the right of the local authority to enforce the conflicting objectives of planning legislation, the courts refuse to categorise the purpose of an existing use so narrowly that natural changes in the method of using land or carrying on a business or industry will render an existing use right valueless. Likewise, the courts refuse to categorise the purpose of an existing use so widely that land or premises could be used for a prohibited purpose that was not part of its use at the time of commencement of the prohibiting regulation. Accordingly, a test has been devised which requires characterisation of the purpose of the land to be described only at that level of generality which is necessary and sufficient to cover the individual activities, transactions or processes carried on at the relevant date. The test is not so narrow that it requires characterisation of purpose in terms of the detailed activities, transactions or processes which have taken place. The test is not so general that the characterisation can embrace activities, transactions or processes which differ in kind from the use which the activities etc, as a class have made of the land: Royal at 309-310; (d) a statement of the purpose for which land is being used is a description or characterisation of what is being done with or upon the land, not an account of the motives of the persons involved in that activity: Shire of Perth at 534. Royal at 311, Woollahra at 714; (e) land may be used for more than one purpose. If activities, processes or transactions are capable of being treated as all or the majority of the species of a genus, then the genus may properly be regarded as describing the purpose of the use. If they are not, then the only conclusion may be that the land has been used for more than one purpose: Royal at 311; Grace at [59]; (f) the task is always to categorise the purpose (or each purpose) to which premises have been put: Grace at [60]; (g) that involves an inquiry into what, according to ordinary terminology, is the appropriate categorisation of the purpose of the use. A useful criterion to apply is that which would appeal to practical minds as appropriate in the context of town planning legislation: Shire of Perth at 535; Pioneer at 507-508; (h) in determining whether a use is protected by existing use provisions, there are two distinct steps. First, identify the purpose for which land was being used as at the date of the later planning regulation which prohibited that use. The land may continue to be used for that purpose. Secondly, identify whether the use of the land thereafter is generally for the same purpose: Royal at 311; (i) the design or form of a building is not determinative of its use. For example, a building might be constructed of units which are capable of residential use. But if the units are used for professional offices, the use would not be a residential flat building: North Sydney Municipal Council v Sydney Serviced Apartments at535; (j) categorisation of uses is a matter of fact and degree and borderline cases will inevitably arise: Shire of Perth at 535; (k) a use can naturally evolve over time and changes in the method of operation of a particular category of use will not deny existing use rights: Grace at [60]. 19 The following characterisations of uses are illustrative. The use of premises for pottery making was not categorised more generally as a use for the purpose of light industry: Shire of Perth v O'Keefe (1964) 110 CLR 529. The use of premises for professional offices need not ordinarily be categorised with greater particularity (such as by reference to the particular profession): Shire of Perth at 535. The general term "shop" is an insufficient description of a purpose. Thus, premises used as a butcher's shop were not properly to be categorised more generally as a shop: Shire of Perth at 535. Similarly, premises used as a retail food shop were not to be categorised more generally as a neighbourhood village retail shop: Woollahra Municipal Council v Banool Developments. The use of the Sydney showground was for the purposes of a showground and speedway and could not properly be described as for the purpose of open air concerts, notwithstanding that five concerts had been held there over 25 years: Royal at 312. Premises which warehoused electrical goods and other goods were categorised as a warehouse, notwithstanding that that would permit the storage of goods not previously stored: North Sydney Municipal Council v Boyts Radio at 61. Premises used as a milk bar with takeaway food were not classified as a café or refreshment room: Grace. 20 In the present case it is common ground that the existing use is for the purpose of a boarding house, but there is a contest as to whether the proposed use is also for the purpose of a boarding house. I do not attach significance (nor did the parties in closing submissions) to evidence that some contemporary boarding houses have in-room cooking and fridge facilities. That evidence begs the question whether those developments are boarding houses.

[27]

23 Similarly, in Karmel & Co Pty Ltd (as Trustee for Urbanski Property Trust) v Federal Commissioner of Taxation [2004] ATC 2075 at [26] the Administrative Appeals Tribunal held that garages converted into accommodation units and rented out were not a boarding house as (inter alia) the element of board was missing. 24 On the other hand, the variety of forms that a boarding house may take, including the extent to which meals are provided, was acknowledged by the Administrative Appeals Tribunal in Adelaide Caravan Park Pty Ltd and Department of Industry, Technology and Commerce (1985) 7 ALD 756 at [57]: "It is well known that boarding-houses may also vary in the type of accommodation and amenities offered and the extent to which meals are provided and the use of either self-contained or shared washing and toileting facilities." 25 The council's 1976 approval of a building application in relation to the existing development described it as a "lodging house", perhaps because no board was provided: see [5] above. 26 It is appealing to a practical mind to adopt a categorisation of a use which is significant in the context of the LEP as an important planning instrument. This is so notwithstanding that cl 41 of the EPA Regulation does not mandate characterisation of a use in accordance with specific classifications in the LEP. Attention is then focussed on the LEP definitions of a "boarding house" and a "residential flat building" and the significant planning consequences which flow from each characterisation. The carparking requirements for a residential flat building are much greater than for a boarding house. In this case, where the applicant proposes that the maximum number of residents in the proposed development will be 20, there is a requirement for 19 carparking spaces if it is categorised as a residential flat building but only 3 carparking spaces if it is categorised as a boarding house: see council's Development Control Plan No 19 Parking Strategy. The rationale is that residents of boarding houses are anticipated to generally belong to a lower socio-economic group, with less car ownership or usage than residents of residential flat buildings. Contributions by developers under s 94 of the EPA Act are required for residential flat buildings but not for boarding houses: see Marrickville s 94 Contributions Plan 2004. This may be in order to encourage development of affordable housing for those in low socio-economic groups.

[45]

(b) further, or alternatively, there was an estoppel by representation: Ku-ring-gai Municipal v Minister for Planning [2008] NSWLEC 174 at [88] 43 In the case of 59 The Boulevarde, the council sought consent orders that the appeal be allowed and development consent be granted. At that point, upon inquiry by the Court, the council's legal representative communicated to the Court the council's position that the proposed development was a boarding house, as follows: "The council has taken the view that this is what it would say is a modern boarding house, whereby the rooms are self contained in that they contain their own little kitchen and own little combined washing and drying machine but it also proposes now to have that communal element of a nice large communal living area, a communal kitchen, so that that communal nature that is what the council says is an element of a boarding house type use now exists with what is before the court and on that basis it is satisfied that what is proposed by this application is alterations and additions and additions to a boarding house and not a change of use to a residential flat building which, as you would be aware, is now prohibited by virtue of the Environmental Plan Assessment Regulation." 44 This cannot be a case of res judicata because the earlier proceedings related to a different development. The distinction between res judicata and issue estoppel was addressed in Chamberlain v Deputy Commissioner of Taxation (1987-1988) 164 CLR 502 at 507 quoting Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 597 (omitting footnotes): "The distinction between res judicata (in England called 'cause of action estoppel') and issue estoppel was expressed by Dixon J in Blair v Curran in these terms: 'in the first the very right or cause of action claimed or put in suit has in the former proceedings passed into judgment, so that it is merged and has no longer an independent existence, while in the second, for the purpose of some other claim or cause of action, a state of fact or law is alleged or denied the existence of which is a matter necessarily decided by the prior judgment, decree or order.'

[49]

50 The Development Control Plan also provides, in s B.7, the bases upon which the council will consider lowering the number of required car parking spaces for a development from the number that would otherwise be calculated according to the Development Control Plan. The bases are discussed under five headings: type of development, site characteristics, public and alternate forms of transport, locality analysis, and service/benefits local community. 51 A consent authority is required to take into consideration a development control plan which is relevant to the development the subject of a development application: s 79C(1)(a)(iii) EPA Act. The emphasis to be given to a development control plan appears in the following three propositions in Zhang v Canterbury City Council [2001] NSWCA 167, (2001) 51 NSWLR 589 at [75] per Spigelman CJ. First, although the Court has a wide-ranging discretion, the discretion is not at large and is not unfettered. Secondly, the provisions of a development control plan are to be considered as a fundamental element in or a focal point of the decision-making process. Thirdly, a provision of a development control plan directly pertinent to the application is entitled to significant weight in the decision making process but is not determinative. If a proposal does not meet the development control plan's requirements, the Court may still grant consent, in appropriate cases, having given the development control plan consideration in the way required in Zhang and having considered all other matters that are relevant under s 79C of the EPA Act 1979. 52 Mr Coady, a traffic engineer, gave evidence on the behalf of the applicant concerning parking demand. His justifications for departure from the provisions of the Development Control Plan are on two principal bases as stated in his report: first, the proposal is generously served by access to public transport bus services; secondly, there is more than sufficient available on-street parking to provide for any additional parking needs of the proposed development. 53 Mr Coady's parking report shows that there are five government bus services, including one running down Wardell Road itself outside the premises, which provide a wide range of access for residents of the premises to community facilities, shopping centres and public transport connections to the rail system. Mr Coady's report also sets out details of a parking survey undertaken on a Wednesday, in September 2008, between 7.00am and 9.00pm. The survey was undertaken of on-street parking spaces within a walking distance of approximately 200 metres of the site. The survey showed that, within this parking catchment, approximately one third of the spaces, or 67 parking spaces, was the minimum number of spaces available during the survey period. Within a much closer radius, along Wardell Road between the closest cross streets to the north and south, a minimum of seven spaces were available during the survey period. 54 Whilst the council criticised the adequacy of the parking survey, I am satisfied that it provides a sufficient basis, particularly concerning the evening parking demand when residents in the vicinity are likely to have returned from their daily activities, to permit assessment of this aspect of the proposal. There is no evidence of, for example, a major shopping centre that would cause some form of aberrant parking demand in the vicinity at weekends. 55 It emerged in evidence that there is a sporting oval in the vicinity, outside the parking survey area. Mr Coady conceded that there was likely to be some generation of parking demand related to sporting activities at the oval. However, I do not consider, on the basis of the information contained in Mr Coady's survey, that this is likely to create any difficulties for residents in the vicinity of the site, given the number of available spaces in the survey area and the small number of spaces (two) of extra on-street parking demand generated by the proposal. 56 Evidence was given by Mr Coady and Mr Erkin, town planner for the council, that it was possible to create an additional stacked parking space along the eastern boundary of the premises if the waste disposal area and ramp access were rearranged. However, they agreed that such a stacked parking space would be undesirable as it had the potential for creating conflict between unrelated users and was unlikely to function satisfactorily. 57 Similarly, they agreed it would be possible to move the existing parking space further to the north along the boundary and create an additional parking space across the front of the two residential rooms at the Wardell Road frontage. To do this would require the removal of the private open space areas for each of these rooms and the removal of a significant amount of the landscaping proposed across the frontage. Mr Erkin agreed that this was an undesirable planning and design outcome. 58 Otherwise, additional parking could be provided on the site only by a significant redesign of the proposal, if the accepted development potential of the site is to be realised. Some of the present ground floor elements of the development would have to be raised so that parking below could be provided. Although there was no detailed evidence on this point from either side, it would appear likely, on the basis of the past plans, that to do that would have unacceptable impacts on neighbouring properties. 59 However, unless there were to be a radical redesign of the proposal, any additional parking on the site will involve reversing into Wardell Road.

[51]

62 I now turn to the question of the provision of a stormwater drainage easement. 63 The applicant seeks approval for a pump-out system to enable stormwater to be disposed of at the front of the property into council's stormwater drainage system along Wardell Road. 64 Marrickville Council's Stormwater and On-Site Detention Code of February 1999, evinces, in paragraph 4.5, the council's preference for gravity transport of stormwater to the council's drainage system. However, the document does provide for an exception, as follows: "Exception to acquiring an easement may be given at the discretion of Council's Director, Technical Services for sites that do not drain to the street, only where extensions to existing residential building or replacement of an existing house or dual occupancy is proposed, and genuine attempts at acquiring a downstream easement have failed. Written documentation of these attempts, including reasonable financial consideration, must be included in any application for exception. If an exception is granted a pump/sump system may be provided." 65 Although the proposal is not for an "existing residential building or replacement of an existing house or dual occupancy", the parties have accepted that this provision is the appropriate basis for dealing with this issue. 66 The site slopes from its Wardell Road frontage, to the north, towards properties that have frontages to Stoke Avenue. Two properties fronting Stoke Avenue, Nos 3 and 5, have boundaries that abut the site. 67 In the context of an earlier development application, not the subject of the present proceedings, approaches were made in 2005 by the applicant's director or by its managing real estate agent to the owners of these two properties for drainage easements over them. The information contained in the letters from the applicant's managing real estate agent contained scant detail of what would be involved if an easement were to have been granted by either of these property owners. 68 By letter dated 20 September 2005, the owners of 3 Stoke Avenue indicated that they needed further information before being able to consider whether or not they would be prepared to grant an easement for gravity drainage purposes. The applicant's director replied by letter on or about 27 September 2005 to the owners noting that these owners had concerns about "possible effect on a long-standing tree" but he did not provide any further information concerning construction activity if the easement were to be provided. The letter included the assertion "Again, I reiterate that an easement can not be forced on you." This statement is not accurate since statutory processes are available which could do just that, albeit with compensation payable by the developer. 69 Nothing came of that earlier application. The present proceedings were commenced in July 2008. There does not appear to have been any further contact between the applicant and the owners of either 3 or 5 Stoke Avenue until late January 2009, about a month before the hearing. On 27 January 2009, the applicant's solicitors wrote to the owners of these two properties attaching the terms of the council's proposed deferred development consent condition relating to a stormwater easement. The letter included the following: "Can you please write back to this office with your position in regard to this issue - eg will you agree to the creation of a drainage easement? If you require to be compensated for the creation of a drainage easement - what do you consider is adequate compensation? Or are you opposed to the creation of a drainage easement on any basis?" 70 On 16 February 2009 one of the owners of 3 Stoke Avenue wrote to the applicant's solicitors stating, among other things: "On the occasions you spoke to my son and my husband you indicated your client did not in fact want an easement on our property - her is merely going through the process so as to be able to tell the court that he could not get an easement. This seems to be consistent with the fact that you have not provided us with a valuation for the easement - you have left it to us to determine its value. We are of the view it is for your client to have any easement on our property valued, when he seeks an easement. We will not provide any further comment on an easement in the absence of a valuation as we are in no position to consider the matter properly.

[52]

Please confirm in writing that your client does not in fact want an easement - he merely seeks our objection to the granting of such. Alternatively please provide us with a proper valuation." 71 On 17 February 2009 the applicant's solicitors wrote to each of these property owners and made an offer of $8,000 for the grant of a drainage easement. The offer was expressed to be open for seven days. The applicant's solicitor stated "If we have not heard from you by that time we will take it that you do not consent to the grant of an easement". 72 At no time did the applicant provide the owners of the properties to the rear with a valuation, information concerning location of the proposed easement and what would be constructed within it, and information as to construction methodology. 73 One of the owners of 3 Stoke Avenue gave evidence on site, which I accept, that she had been provided with no information, prior to having questions put to her during the course of the site view, about possible tree protective measures, scope of works and the nature of the compensatory payment that would be made, if an easement were to be granted. Whilst her reaction to the proposed development is, on other bases, not positive, she repeated what she had indicated in her letter of 16 February 2009: that, if appropriate valuation information were made available, she and her husband would be in a position to give rational consideration to the proposal. She also indicated that appropriate protective measures for the trees on her property was a relevant matter for consideration by her and her husband as were other matters relating to construction methodology. 74 Although the owners of 3 Stoke Avenue were not prepared to consider an easement in 2005, given the paucity of information made available to them, I do not consider that to have been unreasonable. I do not consider that it provides any basis to found a submission that they would not be prepared to give proper consideration to granting an easement, if sufficient information were now provided to them.

[59]

Plan No. Plan/Certificate Date Prepared by and Issue Type 0513- DA103C Site plim 16 September 2008 Kennedy Associates Architects 0513- DA104C Demolition plans 16 September 2008 Kennedy Associates Architects 0513- DA105C Project overview 16 September 2008 Kennedy Associates Architects 0513- DA106C Ground floor plan 16 September 2008 Kennedy Associates Architects 0513- DA106.1C Ground floor showing furniture layout 16 September 2008 Kennedy Associates Architects 0513- DA107C First floor plan 16 September 2008 Kennedy Associates Architects 0513- DA107.1C Ground floor showing furniture layout' 16 September 2008 Kennedy Associates Architects 0513- DA108C First floor plan continued 16 September 2008 Kennedy Associates Architects 0513- DA109C Roofplan 16 September 2008 Kennedy Associates Architects 0513- DA110C Sections 16 September 2008 Kennedy Associates Architects 0513- DA111C Sections 16 September 2008 Kennedy Associates Architects 0513- DA112C Elevations 16 September 2008 Kennedy Associates Architects 0513- DA113C Elevations 16 September 2008 Kennedy Associates Architects 0513- DA114C Elevations 16 September 2008 Kennedy Associates Architects 0513- DA115C Material and colour finishes 16 September 2008 Kennedy Associates Architects 0513- DA121C Accessibility plan 16 September 2008 Kennedy Associates Architects

          Landscape Plan                              August 2008            Therese McGroder
                                                                             Landscape Design

[60]

Reason: To confirm the details of the application as submitted by the applicant. 2. The use of the boarding house complying at all times with the Plan of Management prepared by Willana Associates, dated September 2008, as amended by the following conditions. A copy of the Plan of Management is to be annexed to each and every tenancy/occupation agreement for a room. Reason : To ensure residents abide by the rules and regulations identified in the Boarding House Plan of Management. 3. All tenancy/occupation agreements for rooms within the boarding house shall be for a minimum period of three (3) months. Reason: To' confirm the details of the application as submitted by the applicant and to ensure the development is the permanent place of residence for occupants. 4. No stove, oven, cooktop or dishwasher to be installed within any of the rooms of the boarding house excluding the common kitchen. Reason: To ensure that the rooms do not constitute a dwelling. 5. One refrigerator with a maximum capacity of 430L may be installed in each room. Such restriction does not apply to the common kitchens. Reason: To confirm the terms of Council's approval. 6. The premises being used exclusively as a boarding houses as defined under Marrickville Local Environmental Plan 2001, containing a manager/caretaker's room and fourteen (14) rooms with not more than 28 boarders in total. The premises not being adapted for use as backpacker's accommodation, serviced apartments or a residential flat building. Reason: To ensure that the premises are used exclusively as a boarding house for not more than 28 boarders. 7. A manager/caretaker must permanently reside at the boarding house, occupy the manager/caretaker's room and undertake the tasks referred to in section 2.4 of the Operational Plan of Management approved by condition 2 of this consent. Reason : To confirm the details of the use of the boarding house as submitted with the application. 8. The manager/caretaker for the boarding house being responsible to regularly ensure that all uncollected mail (from room numbered mail boxes) or mail deposited into the house mail box is distributed to the boarders. The manager/caretaker is to also ensure that junk mail is collected and disposed of and that the mail box area is kept tidy at all times and free and clear access is provided to the area Reason: To ensure the amenity of the boarders. 9. The communal living room and communal kitchen being maintained at all times for the use of the boarders in accordance with the Operational Plan of Management referred to in condition 2 of this consent. Reason : To ensure the amenity of the boarders. 10. The approved house rules regarding the use of common living area and the common kitchen are to be clearly displayed within those areas at all times. Reason : To ensure an orderly use of the boarding house. 11. The manager/caretaker for the boarding house being responsible for ensuring that the communal landscaped areas and the landscaping in all private courtyards is maintained to a high standard .. Reason : To ensure maintenance of the landscaping. 12. The ground floor communal kitchen being fitted out with washing up facilities, a cooktop, oven, fridge and storage space with such utilities being maintained in working order at all times. Reason : To ensure the amenity of the boarders. 13. An intercom system complying with AS1428.1 is to be installed in the communal living area on the ground floor to enable all residents to contact the manager/caretaker. Reason : To ensure the amenity of person with a disability. 14. All rooms within the boarding house must be connected to a centralised electricity, water and gas (if installed) service and room tariffs must not include a separate charge for these services. Reason : To ensure the utility charges are included in the tariff and that the boarders know their commitments towards the rental and energy charges. 15. All residents must be provided with a weekly or fortnightly tariff receipt. Reason : To monitor affordability of tariffs for tenants.

[65]

Reason: To ensure compliance with the terms of the Department of Planning in granting concurrence under State Environmental· Planning Policy No. 10 - Retention of Low-Cost Rental Accommodation and to assist in the provision of low cost accommodation. 18. One (1) off-street car parking space being provided, paved, linemarked and maintained at all times prior to the commencement of the use. Reason: To ensure on-site car parking is provided as part of the development. 19. No injury being caused to the amenity of the neighbourhood by the emission of noise, smoke, smell, vibration, gases, vapours, odours, dust, particular matter, or other impurities which are a nuisance or injurious or dangerous or prejudicial to health, the exposure to view of any unsightly matter or otherwise. Reason: To ensure the operation of the premises does not affect the amenity of the neighbourhood. 20. A separate application being submitted to, and approved by, Council prior to the erection of any advertisements or advertising structures. Reason : To ensure the compliance of any advertisements or advertising structures with the requirements of Council's Advertising Code. 21. All building work must be carried out in accordance with the provisions of the Building Code of Australia. Reason : To ensure the work is carried out to an acceptable standard and in accordance with the State's building code. 22. Any adjustment or augmentation of any public utility services including Gas, Water, Sewer, Electricity, Street lighting and Telecommunications required as a result of the development shall be at no cost to Council and undertaken before occupation of the site. Reason: To ensure all costs for the adjustmenVaugmentation of services arising as a result of the redevelopment are at no cost to Council. 23. Residents of the development shall not be eligible for any existing or future resident parking scheme for the area. The person acting on this consent shall advise any prospective tenant of this condition. Reason: To ensure the development does not reduce the amount of "on street" parking currently available. 24. All roof and surface stormwater from the site any catchment external to the site that presently drains to it, shall be collected in a system of pits and pipelines/channels and major storm event surface flow paths and being discharged to a Council controlled stormwater drainage system in accordance with the requirements of Marrickville Council Stormwater and On Site Detention Code. The maximum discharge allowable to Council's street gutter is 25 litres/second. Reason : To provide for adequate site drainage. 25. All stormwater drainage being designed in accordance with the provisions of the 1987 Australian Rainfall and Runoff (A.RR), Australian Standard AS3500.3.2-1998 'Stormwater Drainage-Acceptable Solutions' and Marrickville Council Stormwater and On Site Detention Code. Pipe and channel drainage systems shall be designed to cater for the twenty (20) year Average Recurrence Interval (A.RI.) storm in the case of low and medium residential developments, the twenty (20) year A.RI. storm in the case of high density residential development and commercial and/or industrial developments and the fifty (50) year A.RI. sform in the case of heavy industry. In all cases the major event surface flow paths shall be designed to cater for the one hundred (100) year A.RI. storm. Reason: To provide for adequate site drainage. 26. No encroachments onto Council's road or footpath of any service pipes, sewer vents, boundary traps, downpipes, gutters, stairs, doors, gates, garage tilt up panel doors or any structure whatsoever shall not be permitted. Any encroachments on to Council road or footpath resulting from the building works will be required to be removed before occupation of the site. Reason : To ensure there is no encroachment onto Council's Road. BEFORE COMMENCING DEMOLITION. EXCAVATION AND/OR BUILDING WORK For the purpose of interpreting this consent, a Principal Certifying Authority (PCA) means a principal certifying authority appointed under Section 109E(1) of the Environmental Planning and Assessment Act 1979. Pursuant to Section 109E(3) of the Act, the PCA is principally responsible for ensuring that the works are carried out in accordance with the approved plans, conditions of consent and the provisions of the Building Code of Australia. 27. No work shall commence until: a) A PCA has been appointed. Where an Accredited Certifier is the appointed, Council shall be notified within two (2) days of the appointment; and b) A minimum of two (2) days written notice given to Council of the intention to commence work. Reason: To comply with the provisions of the Environmental Planning and Assessment Act. 28. A Construction Certificate shall be obtained before commencinq buildinq work. Building work means any physical activity involved in the construction of a building. This definition includes the installation of fire safety measures. Reason: To comply with the provisions of the Environmental Planning and Assessment Act. 29. Sanitary facilities are to be provided at or in the vicinity of the work site in accordance with the WorkCover Authority of NSW, Code of Practice 'Amenities for Construction'. Each toilet shall be connected to the sewer, septic or portable chemical toilet before work commences.

[69]

Reason: To prevent soil erosion and sedimentation of the stormwater network. 37. The applicant shall apply as required for all necessary permits including crane permits, road opening permits, hoarding permits, footpath occupation permits and/or any other approvals under Section 68 (Approvals) of the Local Government Act, 1993 or Section 138 of the Roads Act, 1993. Reason: To ensure all necessary approvals have been applied for. 38. Where it is proposed to carry out works in public roads or Council controlled lands, a road opening permit shall be obtained from Council before the carrvina out of any works in public roads or Council controlled lands. Restorations shall be in accordance with Marrickville Council's Restorations Code. Failure to obtain a road opening permit for any such works will incur an additional charge for unauthorised openings in the amount of $1,879.70, as provided for in Council's adopted fees and charges. Reason: To ensure that all restoration works are in accordance with Council's Code. 39. The applicant shall provide details of the means to secure the site and to protect the public from the construction works. Where the means of securing the site involves the erection of fencing or a hoarding on Council's footpath or road reserve the applicant shall submit a hoarding application and pay all relevant fees before commencement of works or the issue of the Construction Certificate; whichever occurs first. Reason : To secure the site and to maintain public safety. 40. A detailed Traffic Management Plan to cater for construction traffic shall be submitted to and approved by Council before commencement of works or the issue of the Construction Certificate, whichever occurs first. Details shall include proposed truck parking areas, construction zones, crane usage, truck routes etc. Reason: To ensure construction traffic does not unduly interfere with vehicular or pedestrian traffic, or the amenity of the area. 41. The applicant shall submit a dilapidation report including colour photos showing the existing condition of the footpath and roadway adjacent to the site before the issue of the Construction Certificate or before the commencement of works (including any demolition works) whichever occurs first. Reason: To ensure the existing condition of Council's infrastructure is clearly documented.

[72]

Reason: To ensure that the required levy is paid in accordance with the Building and Construction Industry Long Service Payments Act. 46. Deleted. 47. Subject to the provisions of this condition, site drainage shall be by means of a gravity system. The developer is to assess the property across which an easement to drain water is the most practicable (in terms of construction costs and value of the easement) and is to obtain: (a) a valuation of the value to obtain an easement to drain storm water through the adjoining property, prepared by a registered valuer. (b) a construction management plan indicating the path of the proposed easement and all measures: (i) to protect and avoid damage to existing trees, including the preparation of an arborist's report in regard to any tree that will be impacted upon by the proposed easement. (ii) to reinstate existing vegetation. (iii) to reinstate existing paths, driveways and/or car parking areas. (c) a draft plan of surveyor sketch sufficient to annex to a Department of Lands Dealing form to register the easement; The developer shall serve such documents upon the adjoining owners of the lot the subject of an intended easement together with an offer to pay compensation (in accordance with the valuation report) and carry out works in accordance with those documents (which offer is to include the time for such events). The adjoining owners may, within 28 days of receipt of service of the documents accept the offer for the creation of the easement to drain storm water. If the adjoining owners do not accept the offer to create the easement within 28 days, or indicate that they require any amendments to the offer, or reject the offer, the developer may install a pump out storm water drainage system that will discharge to Wardell Road. If the adjoining owner does not permit reasonable access to the developer to the adjoining land for the purposes of the preparation of the documents referred to in this condition, the aeveloper may install a pump out storm water drainage system that will discharge to Wardell Road. 48. Plans, details and calculations of an on site detention system in accordance with Marrickville Council Stormwater and On Site Detention Code shall be submitted to and accepted by Council before the issue of a Construction Certificate. The design of the OSD system shall comply with the following:- (i) The on site detention system shall be designed for all storm events from the 1 year to the 1 in 100 year storm event, with discharge to a Council controlled storm water system limited to pre-development conditions with the maximum allowable discharge to Council's street gutter limited to 25 litres/second (20 year ARI); (ii) Storage for the 1 year storm event shall be provided fully below ground; (iii) Dry-weather flows of any seepage water including seepage from landscaped areas will not be permitted through kerb outlets and must be connected directly to a Council stormwater system. Alternatively the water may be stored separately on site and reused for the watering of landscaped areas or discharged using a timed pump out system between the hours of midnight and 4.00am; (iv) For sites greater than 1000sqm the allowable discharge will be limited to the equivalent fully pervious discharges for the site area; (v) Details of the Height v Storage and Height v Discharge relationships shall be submitted; (vi) Details of external catchments currently draining to the site shall be included on the plans. Existing natural overland flows from external catchments may not be blocked or diverted, but must be captured and catered for within the propos.ed site drainage system. Where necessary an inter-allotment drainage system shall be incorporated into the design; and (vii) Details of the 1 in 100 year overflow route in case of failure\blockage of the drainage system shall be provided; (viii) Any pumpout/ sump system shall consist of two (2) pumps and a storage tank. The pumps being arranged for staggered starts (duty and stand-by) with an automatic switch-over facility to change the duty pump. (ix) The design of the pumpout/ sump system shall comply with the requirements of AS/NZS 3500.3.2: 1998. Reason: To ensure the development does not increase the stormwater runoff from the site and to ensure that there are no dry-weather flows of any seepage water. 49. The applicant shall provide security in a manner satisfactory to the Director Technical Services in the amount of $1,220.20 before the issue of a Construction Certificate as surety for the proper completion of the footpath and/or vehicular crossing works required as a result of this development. Reason: To provide security for the proper completion of the footpath and/or vehicular crossing works. 50, Before the issue of a Construction Certificate the owner or builder shall sign a written undertaking that they shall be responsible for the full cost of repairs to footpath, kerb and gutter, or ,other Council property damaged asa result of construction of the proposed development. Council may utilise part or all of any Building Security Deposit (B.S.o.) or recover in any court of competent jurisdiction, any costs to Council for such repairs. Reason: To ensure that all damages arising from the building works are repaired at no cost to Council. 51 . Deleted.

[74]

compliance with the requirements of Australian Standard AS 2601 'The demolition of structures' with specific reference to health and safety of the public, health and safety of the site personnel, protection of adjoining buildings and protection of the immediate environment; all works involving the demolition, removal, transport and disposal of asbestos cement is to be carried out in accordance with the 'Worksafe Code of Practice for Removal of Asbestos' and the requirements of the WorkCover Authority of NSW and the Department of Environment and Climate Change; all building materials arising from the demolition and construction are to be disposed of in an approved manner in accordance with Marrickville Development Control Plan No. 27 - Waste Management and any applicable requirements of the Department of Environment and Climate Change; sanitary drainage, stormwater drainage, water, electricity and telecommunications are to be disconnected in accordance with the requirements of the responsible authorities; the generation of dust and noise on the site must be controlled; the site must be secured to prohibit unauthorised' entry; g) suitable provision must be made to clean the wheels and bodies of all vehicles leaving the site to prevent the tracking of debris and soil onto the public way; h) all trucks and vehicles associated with,the demolition and construction, including those delivering to or removing material from the site, only having access to the site during work hours nominated by Council and all loads must be covered; i) all vehicles taking materials from the site must be loaded wholly within the property· unless otherwise permitted by Council; j) all vehicles carrying materials to, or from the site must have their loads covered with tarpaulins or similar covers; k) no waste collection skips, spoil, excavation or demolition and construction material frpm the site being deposited on the public road, footpath, public place or Council owned property without the approval of Council; and I) the person acting on this consent is responsible for ensuring that all contractors and sub-contractors associated with the demolition and construction are fully aware of these requirements. Reason: To ensure that the demolition and construction work is carried out safely and impacts on the surrounding area are minimised. 56. The works are required to be inspected at critical stages of construction, by the PCA or if the PCA agrees, by another Certifying Authority. The last inspection (c) can only be carried out by the PCA. The critical stages of construction are: a) At the commencement of the building work; b) For Class 2, 3 and 4 buildings, prior to covering waterproofing in any wet areas (a minimum of 10% of wet areas within a building); c) Prior to covering any stormwater drainage connections, and after the building work has been completed and prior to any occupation certificate being issued in relation to the building; and

[81]

Reason: To ensure compliance with the relevant provisions of the Environmental Planning and Assessment Regulations and Building Legislation Amendment (Quality of Construction) Act. 62. The landscaping of the site being carried out prior to occupation or use of the premises in accordance with the approved plan, and being maintained at all. times to Council's satisfaction. Reason : To ensure adequate landscaping is maintained. 63. (i) Upon completion of the required noise attenuation measures referred to in the "Before the Issue of a Construction Certificate" Section of this Determination and prior to the occupation of the boarding house a report being prepared and submitted to Council's satisfaction by an accredited Acoustics Consultant, certifying that the final construction meets AS2021- 2000 as set down in the subject condition of this consent. Such report shall include external and internal noise levels to ensure that the external noise levels during the test are representative of the typical maximum levels that may occur at this development; and (ii) Where it is found that internal noise levels are greater than the required dB(A) rating due to faulty workmanship or the like, necessary corrective measures shall be carried out and a further certificate being prepared and submitted to Council in accordance with the requirements as set down in Part (i) of this condition. Reason: To reduce noise levels within the proposed boarding house from aircraft and to ensure that the proposed noise attenuation measures incorporated into the dwellings satisfactorily comply with the relevant sections of Australian Standard 2021-2000. 64. With the regard to the On Site Detention System (OSD), a Positive Covenant in accordance with supplement 7 of Marrickville Council Stormwater and On Site Detention Code shall be placed on the Title in favour of Council before occupation of the site. Reason: To ensure that the integrity of the OSD system is maintained and to comply with Marrickville Council Stormwater and On Site Detention Code. 65. All instruments under Section 88B of the Conveyancing Act used to create easements or right-of-ways shall include the condition that such easements or right-of-ways may not be varied, modified or released without the prior approval of Marrickville Council. Reason : To ensure Council's interests are protected. 66. All works required to be carried out in connection with drainage, crossings, alterations to kerb and guttering, footpaths and roads resulting from the development shall be completed before occupation of the site. Works shall be in accordance with Council's Standard crossing and footpath specifications and AUS-SPEC#2-"Roadworks Specifications". Reason: To ensure applicant completes all required work. 67. Before occupation of the site written verification from a suitably qualified professional civil engineer, stating that all stormwater drainage and related work has been and constructed in accordance with the approved plans shall be submitted to and accepted by Council. In addition, full works-as-executed plans, prepared and signed by a registered surveyor, shall be submitted to Council. These plans must include levels for all drainage structures, buildings (including floor levels), finished ground levels and pavement surface levels. Reason: To ensure drainage works are constructed in accordance with approved plans.

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