Boston Blyth Fleming Pty Limited v Pittwater Council - [2010] NSWLEC 1203

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Boston Blyth Fleming Pty Limited v Pittwater Council [2010] NSWLEC 1203

PARTIES:
APPLICANT
Boston Blyth Fleming Pty Limited
RESPONDENT
Pittwater Council

FILE NUMBER(S): 10968 of 2009

CORAM: Hussey C

KEY ISSUES: DEVELOPMENT APPLICATION :- SEPP (HS & PD) development, bulk and scale, compatibility with neighbouring, scenic impact, vegetation, amenity impacts, drainage, access.

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004
Pittwater Local Environment Plan 1993
Pittwater 21 Development Control Plan
Draft Pittwater 21 Local Environment Plan

CASES CITED: Deaton v Pittwater Council [2008] NSWLEC 1370
Marina Bay Development Pty Ltd v Pittwater Council [2009] NSWLEC 1343

DATES OF HEARING: 21 May 2010, 18 and 19 June 2010, 8 September 2010

DATE OF JUDGMENT:
8 September 2010

LEGAL REPRESENTATIVES:
Mr C McEwen SC
with Mr M Staunton (barrister)
SOLICITOR
Sattler & Associates
RESPONDENT
Ms S Duggan (barrister)
SOLICITOR
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

30 July 2010

10968 of 2009 Boston Blyth Fleming Pty Limited v Pittwater Council
JUDGMENT

Background.

1 This appeal was lodged against council’s refusal of a development application for the demolition of an existing dwelling and the construction of 10 self contained SEPP (HS&PD) units at 2129 Pittwater Road, Church Point. The units are to be contained in 3 separate buildings A, B and C, as shown in Attachment A1.

2 The issues initially identified for the appeal are summarised as follows:

Excessive bulk and scale, in terms of the proposed buildings being out of character with surrounding development.
Scenic protection impacts.
Spatial separation and lack of screening.
Visual privacy.
Drainage.
Driveway access.
Public interest/objections

The site

3 The site comprises the following 4 lots:

4 The site has a moderate slope rising from the street frontage by approximately 15m higher to the rear of the site. There is a cross-fall within the site running south to north but there are some variations, particularly in relation to Lot 53, which runs in a more east west direction.

5 Development on the existing site known as Lot 52 consists of a 2 - storey brick dwelling with tile roof and associated terracing. Access to this dwelling is obtained from a sweeping driveway, which originates at Pittwater Road at the frontage of Lot 53 then traverses through Lot 53 terminating at a metal carport at the rear of the dwelling.

6 Development on Lot H is a rendered brick dwelling with associated swimming pool and carport in addition to an outbuilding with attached deck located at the south-western end of the site. This dwelling is accessed via a long driveway, which traverses the access handle to the northwest of the site. It is noted that the driveway encroaches on the property of 2131 Pittwater Road at the front boundary and is used by both parties.

7 Development on adjoining sites consists of single occupancy dwellings to all sides with a mix of architectural styles generally consisting of 1 and 2 storeys. However 3 storey dwellings are also apparent on the hillsides. Other SEPP developments are apparent within the locality, indicating some recent changes to the character of the existing area.

8 The site is moderately vegetated including a mix of exotic and native species including several significant specimens, in particular a very large liquidamber, which can be readily seen from the surrounding locality.

9 The general locality consists predominantly of residential allotments comprising dwelling houses (including 1, 2 and more stepped levels on the slope). The street frontages are landscaped with substantial remnant tree canopy. The majority of the properties enjoy high value close and distant water views.

10 The residential area is largely confined to the foot and upper levels of the escarpment on the western side of Pittwater Road, with land on the eastern side of the road down to MHWM used as foreshore Public Open Space, foreshore pedestrian walk, and a few private boatsheds.

The proposal

11 This proposal is for a 10 – unit housing development for seniors living or persons with a disability, under the provisions of SEPP (HS&PD). The development comprises:

Demolition of the existing structures on the site and associated site regrading;
The 10 units are configured as:
Associated landscaping,
Consolidation and re – subdivision of the land (boundary adjustment) and strata title subdivision of the 10 self contained SEPP (HS&PD) units.

12 The development proposal was amended during the course of the appeal, in response to the issues and objections raised. The amendments include:

Planning controls

13 The following controls apply:

Pittwater LEP 1993 (PLEP)

State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004; (SEPP (HS&PD));

SEPP – (Building Sustainability Index: Basix) 2004

Pittwater 21 Development Control Plan

Draft Pittwater 21 LEP;

Geotechnical Risk Management Policy for Pittwater 2007

The evidence

14 Detailed evidence was presented by:

15 In addition to this a number of written objections were lodged and they have been considered in conjunction with the oral evidence given on – site.

Planning context

16 Insofar as this form of RFB development is prohibited under the PLEP, it is otherwise permitted under the provisions of cl 15 of SEPP (HS&PD). Clause 5(3) resolves the inconsistency between the zoning table in PLEP and cl 15 by its provisions that the SEPP prevails over the PLEP controls. In these circumstances various performance controls are contained in the SEPP and they have precedence over any inconsistencies with the DCP controls.

17 Clause 31 deals with the design of in-fill self-care housing and requires the consent authority to take into consideration the provisions of the Seniors Living Policy: Urban Design Guideline for Infill Development. The desired design outcome for the development is also dependent the following provisions of clause 33:

Neighbourhood amenity and streetscape

The proposed development should:

(a) recognise the desirable elements of the location’s current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, and

(b) retain, complement and sensitively harmonise with any heritage conservation areas in the vicinity and any relevant heritage items that are identified in a local environmental plan, and

(c) maintain reasonable neighbourhood amenity and appropriate residential character by:

(i) providing building setbacks to reduce bulk and overshadowing, and

(ii) using building form and siting that relates to the site’s land form, and

(iii) adopting building heights at the street frontage that are compatible in scale with adjacent development, and

(iv) considering, where buildings are located on the boundary, the impact of the boundary walls on neighbours, and

(d) be designed so that the front building of the development is set back in sympathy with, but not necessarily the same as, the existing building line, and

(e) embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape, and

(f) retain, wherever reasonable, major existing trees, and

(g) be designed so that no building is constructed in a riparian zone.

18 Clause 40 contains the following designated development standards:

Development standards—minimum sizes and building height

(1)

General

A consent authority must not consent to a development application made pursuant to this Chapter unless the proposed development complies with the standards specified in this clause.

(2)

Site size

The size of the site must be at least 1,000 square metres.

(3)

Site frontage

The site frontage must be at least 20 metres wide measured at the building line.

(4)

Height in zones where residential flat buildings are not permitted

If the development is proposed in a residential zone where residential flat buildings are not permitted:

(a) the height of all buildings in the proposed development must be 8 metres or less, and

Note.

Development consent for development for the purposes of seniors housing cannot be refused on the ground of the height of the housing if all of the proposed buildings are 8 metres or less in height. See clauses 48 (a), 49 (a) and 50 (a).

(b) a building that is adjacent to a boundary of the site (being the site, not only of that particular development, but also of any other associated development to which this Policy applies) must be not more than 2 storeys in height, and

Note.

The purpose of this paragraph is to avoid an abrupt change in the scale of development in the streetscape.

(c) a building located in the rear 25% area of the site must not exceed 1 storey in height.

19 Clause 50 lists a number of standards, including those in clause 40 that cannot be used to refuse a complying development for self – contained dwellings.

20 From these controls, it is apparent that clause 33 (a) requires any development to recognise the current character so new buildings can contribute to the quality and identity of the area. In this regard, the Court was referred to the locality context statement in A4.4 of the DCP for the relevant “Church Point and Bayview Locality”, as follows:

The locality has developed into a predominantly low-density residential area, w

i

th dwel

l

ings built along the steep slopes and lowlands around the base of the plateau

.

The locality is characterised mainly by one and two-storey detached dwellings on 600

-

1

,

000 square metre allotments (some smaller blocks may exist)

, i

ncreasing to 1 hectare on the steeper slopes

.

The residential areas are of a diverse style and architecture

,

a common thread being the landscaped

,

treed frontages and subdued external f

i

nishes

.

Although parts of the locality are steep

,

the natural fall of the land in most cases has been retained

,

and where retaining walls have been constructed

,

these are screened by natural vegetat

i

on

.

Terraced gardens are not a feature of the area and should not be encouraged.

21 Even though the focus of the SEPP controls is on the compatibility with the current character, reference was also made to the locality statement dealing with Desired Future Character as follows:

The Church Point and Bayview locality wi

l

l remain a low-density residential area with dwelling houses a maximum of two storeys in any one place in a natural landscaped setting

,

integrated with the landform and landscape. Secondary Dwellings can be es

t

ablished in conjunction with another dwelling to encourage additional opportunities for more compact and affordable housing with minimal environmental impact in appropriate locations. Any dual occupancy dwellings will be located on lowlands in the locality on land that has less tree canopy coverage

,

species and habitat diversity and fewer other constraints to development. Retail

,

community and recreational fac

i

lities will serve the community

.

Future development is to be located so as to be supported by adequate infrastructure

,

including roads, water and sewerage facilities

,

and pUblic transport. The locality is characterised by steeply sloping blocks so the provision of facilities such as inclinators, driveways and carparking need to be sensitively designed

.

The shared use of vehicular/pedestrian access, and the use of rooftops as parking areas can be solutions that minimise the physical and visual impact on the escarpment or fo

r

eshore

.

Future development will maintain a height limit below the tree canopy

,

and minimise bulk and scale

.

Existing and new native vegetation

,

including canopy trees

,

will be integrated with the development

.

Views from the buildings shall be maintained below the tree canopy level capturing spectacular views up the Pittwater waterway. Contemporary buildings will utilise facade modulation and/or incorporate shade elements

,

such as pergolas

,

verandahs and the like

.

Building colours and materials will harmonise with the natural environment

.

Development on slopes will be stepped down or along the slope to integrate with the landform and landscape

,

and minimise site disturbance

.

Development will be designed to be safe from hazards

.

22 Insofar as there are a number numeric controls stated in the DCP to achieve this desired outcome, they relate to dwelling houses and dual occupancies because RFB’s are not permitted. However, reference to these DCP controls for the subject development provides a guide as to its compatibility with current and desired forms of future development.

23 Part D4.4 of the DCP prescribes a maximum building height of 8.5 metres, the proposal has a maximum height which varies between 7.4 metres and 8 metres. The development complies with the building envelope control. Clause D4.5 prescribes a front building line of 6.5m or established building line, the proposal is generally consistent with the established building line of 2131 Pittwater Road and the dwelling to east. D4.6 prescribes a side setback requirement of 1 m on one side and 2.5m on the other side. The development generally proposes minimum side setbacks (including to the basement) of 3m. The development also complies with the FSR (0.5: 1) and height numerical standards of the SEPP (6.5m to the underside of ceiling).

24 However, I note at this point that the development does not comply with the development standard contained in cl 40 of the SEPP relating to the height of the building in the rear 25% area of the site. Also there is a technical non – compliance with the restriction that building height must not exceed 2 storeys in height. I deal with the SEPP 1 objections to these standards later.

25 Apart from satisfying the numeric controls, the development also has to be of a design, which contributes to the quality and identity of the area. The applicant accepts that in making this assessment, “adequate regard” must and has been given to the design principles.

26 It is apparent to me that the context statement A4.4 and the desired future character description identifies the desirable elements of the subject area and provides a basis for the assessment of the proposal’s contribution to the area. These elements include predominantly low density dwellings of diverse styling in a mature landscape setting, generally of maximum 2 – storey height and stepping down the hillside to minimise site disturbance and predominantly below the tree canopy. Opportunities for secondary dwellings to be established in conjunction with the primary residence are envisaged so some increase in built form is anticipated. The shared use of pedestrian and vehicular access is encouraged.

27 Accordingly, the controls allow for some changes to built form and this is particularly relevant when considering the SEPP (HS&PD) developments objectives. This was recognised by Commissioner Bly in Deaton v Pittwater Council [2008] NSWLEC 1370 where he said:

52 It is important to recognize that despite the fact that residential flat buildings are prohibited in the 2(a) zone, residential flat buildings for the purposes of seniors living are permissible under SEPP SL. It cannot be argued that because there are no residential flat buildings in this locality, this form of development cannot occur, despite Palm Beach being such an iconic location. Similarly, just because the area has seen little change over many years this cannot justify the denial of opportunities for appropriate redevelopment. Indeed, if the aim of SEPP SL to encourage the provision of housing that meets the needs of seniors or people with a disability is to be met and subject to matters of infrastructure, services and good design, then seniors living housing development can be expected.

28 Then in the matter of Marina Bay Development Pty Ltd v Pittwater Council [2009] NSWLEC 1343 he said:

78 Finally, it is important to remember when dealing with the requirements of DCP 21 in relation to character where the existing predominantly low-density residential area with dwellings is sought to be maintained that this must be considered in the light of the aims of SEPP (HSPD) that include the need to increase the supply and diversity of residences that meet the needs of seniors or people with a disability and that this can be achieved in the form of residential flat buildings.

29 Accordingly, these comments regarding some changes to the built form are relevant in the context of the subject matter. I now deal with evidence on the desirable elements of the location, as identified in the issues for this matter.

Bulk and scale, landscape setting, scenic impact

30 This issue concerns the bulk and scale of Buildings B & C. In this regard I accept the Building A is of a form that is compatible with the surrounding development, particularly in light of the amendments to retain Tree 6. This retains mature tree canopy, provides effective screening of the units in this building and enables additional side boundary set backs. No objections were raised by council about the compatibility of the bulk and scale of this building.

31 The irregular shape of the consolidated site then results in Buildings B and C being orientated across the site and stepping down the slope. The amendments include a relatively minor increase in the side set back of Unit B.1 allow a 1.5m landscape strip. Also the provision of a widened 5.15m ‘green corridor’ separation between Units B2 and B3.

32 Mr Sanders says that the overall width of Buildings B and C is of excessive built form and that it will not be possible to satisfactorily screen them by landscaping, leaving them as incongruous and intrusive elements. He does not consider the 5.15m corridor is adequate to break up the visual impact of the 2 buildings and considers a better outcome would be for a reduced density of development. Part of his concern is that the proposal involves the removal of the large liquidamber and that the longevity of the landscaping cannot be guaranteed because of possible removal to obtain better views of Pittwater.

33 Against this, both Mr Fleming and Mr Scriviner support the proposed development in the proposed landscape setting. From my observations at the view, both from the waterway and surrounding area, it seems to me that views of B & C will be limited because they are behind and partially screened by Building A and No 2131. Whilst the removal of the liquidamber will initially create a loss of tree canopy, I note this is not an indigenous or protected species. I accept Mr Scrivener’s evidence that the replacement planting incorporates some 29 strategically placed canopy trees that will be complimentary to any development of the site and make positive landscaping contribution.

34 Insofar as Mr Sanders is concerned about the retention of the proposed landscaping, it seems to me that the landscape plan is to form part of the conditions of consent and therefore the compliance with the conditions can be enforced. However in this case, the applicant has offered an additional condition to the effect that if the required plantings are illegally removed to facilitate better views or other reasons, the Body Corporate will be responsible for their replacement of advance species of a size that would have been expected if the plantings were not harmed. This self – regulating condition provides additional security for the planting and retention of the proposed landscaping theme.

35 The site inspection from the water allowed a panoramic view of the neighbourhood to assess potential visual impacts. Within this scenic foreshore area there is a distinct cone of view of the dwellings to the north west of the existing SEPP development and a similar distance to the east of the site, with the subject development in the centre.

36 Accordingly, it is apparent to me that there is a predominance of built form that follows the contours of proposed Buildings B & C. Considering that the majority of these buildings are large detached dwellings, reference to the photo montage in Exhibit X indicates to me that the proposal will be compatible with the current character of this area. This montage also shows the other large, wide dwelling on the upper slopes that are in the cone of vision and that they exhibit substantial built form.

37 Taking into account that the SEPP allows a somewhat different built form to existing detached dwelling houses, in order to satisfy its objectives to provide a diversity of dwellings, I am satisfied that the bulk and scale for the development complies with the maximum FSR of 0.5:1 and that the built form will satisfactorily integrate with the neighbouring development.

38 I also accept that the landscaping has been carefully designed to incorporate local species, which will enable the maturity of an environment where the new dwellings are screened by the plantings and are beneath the tree canopy. This respects the desirable elements of this immediate area.

SEPP 1objections

39 An associated issue concerning the bulk and scale is the number of storeys in the rear 25% of the site because part of building C exceeds this, although the rear elevation is compliant. The applicant lodged a SEPP 1 objection to this development standard on the basis that the implicit objectives of the standard are:

to minimise amenity impacts associated with overlooking from the development into adjoining sites and to prevent visual amenity impacts associated with excess bulk and scale extending past the rear alignment of adjoining properties.

40 The SEPP 1 objection and associated evidence is that that strict compliance with standard is unnecessary and unreasonable in this case because:

41 I accept that the general aims of this standard is to limit the height of SEPP (HS&PD) development in the rear part of properties where this form of development could impact on the neighbours amenity, privacy, solar access and landscaping. But in this case the predominant 1-storey presentation to the rear neighbours, the setbacks, sloping topography do not in my assessment, result in any unsatisfactory impacts. Therefore I am satisfied this SEPP objection should be allowed.

42 As noted, there is a technical non-compliance with the provisions of cl 40(4)(b) in respect part of building A. The variation relates to approximately 50% of the depth of building A where the basement is proposed to be set into the slope of the land at grade. Accordingly the streetscape presentation of building A is technically 3 storeys although in terms of the positioning of requisite OSD tanks and to permit gravity fall to the street there is a sound technical reason not to require the excavation of this basement.

43 Building A conforms to the maximum permitted height of the SEPP being 7.4m above natural ground to the front elevation eave, less than the 8m permitted by the SEPP and the 8.5m permitted by the Council Pittwater 21 DCP. Further the maximum height of building A at RL 11.88 accords generally with the height of the adjoining dwelling at 2131 Pittwater Road which has two pavilions with ridge heights set at RL 10.10 and RL 12.05 respectively. Consistent with the aims of the control there is no abrupt change in building scale to the streetscape.

44 The basement carpark effectively provides a podium to the residential floors above. However, the visual presence of the basement is screened from the street by the extended landscaped building line setback in excess of 10m and by the offset of the carpark entrance to the street alignment via a curved entry driveway. These details coupled with the proposed stone boundary fence and the detail of the horizontal formatting of the building balconies and recessed glass lines within the streetscape elevation combine to reduce the presence of the parking entry void and basement level within the streetscape presentation.

45 The SEPP 1 concludes that compliance with the development standard is unreasonable and unnecessary because:

46 No objection was raised by council to this objection and I am satisfied that it is well founded and should be allowed.

Scenic protection

47 This issue concerns the visual impacts of Buildings B & C in terms of the control provisions of the DCP 21 Section D4.14 – Scenic Protection Category One Areas. It states a number of outcomes, relevantly including:

To achieve the desired future character of the Locality.
To preserve and enhance the visual significance of district and local views of Pittwater’s natural topographic features such as, ridges, upper slopes and the waterfront.
Maintenance and enhancement of the tree canopy…
Development shall minimise any visual impact on the natural environment when viewed from any waterway, road or public reserve.

48 I have dealt with merits of this issue within the bulk and scale issues. Whilst I note that the removal of the large liquidamber will initially cause some loss of tree canopy, I am satisfied that the replacement native vegetation will provide an appropriate tree canopy and ultimately enhance the landscape setting that will enable the proposed development to positively contribute to the current and desired future character outcomes.

49 In this regard, I have considered and given significant weight to the following assessment of council’s arborist:

An Arborist report (Tree Wise Men Australia Pty Ltd October 200B) has been provided and it assesses 35 trees across the site

,

most of which are within 5 metres of the proposed works. Of the 35 trees

,

only eight (8) are locally native species, and only three (3) trees are rated as significant, of which one (1) is actually exempt from Council's Tree Preservation Order (Tree 32 - a huge Liquidamber) but is considered significant due to its size and

biomass

.

At total of 27 trees are recommended for removal, of which most are located

within the development footprint

.

Of these, only five (5) trees are locally native, however this includes one of the other significant trees (Tree 13 - a Spotted Gum). This tree is on a lean north over the proposed dwellings and work will occur within its Critical Root Zone therefore the tree poses a significant risk to the targets below and a duty of care points to its removal unfortunately. Although the recommendations of the arborist report will result in a large loss of canopy onsite, a high proportion of the trees to be removed are exotic and undesirable exempt species, and with the removal of these trees and subsequent replacement

with Pittwater Spotted Gum Forest species is seen as more beneficial to restoring the ecological integrity of the site in the long term

.

Therefore the recommendations of the arborist report are accepted

.

For the trees to be retained or transplanted on site, all tree protection measures as specified are to be implemented as per the report

.

Spatial separation and screening

50 This contention initially concerned the separation of parts of the buildings and the associated impacts on neighbouring properties. However the applicant has endeavoured to respond to the contentions and concerns raised by neighbours, in the amended plans, on the following basis:

51 Building A/ No 2131; The concern is that the minimal building setback of the side of Unit A.1 will cause loss of visual privacy around the pool area and private open space areas. However the amended plan now retains Tree 6, which then sets the side setback of the living room some 6m. The other rooms along this sidewall are the living room (which has no side windows) and the bedroom with a set back of approximately 3m. Considering the relative setbacks and separation to the outdoor areas, the comparative deck levels, the screening effect of the existing boundary fence and the proposed screening landscaping, I am satisfied that the privacy amenity will be satisfactory.

52 Building B/ No 2131; The concerns are about potential overbearing impact and overlooking from the bedroom and balcony of Unit B.1 into the rear yard area and private open space of No 2131. The amendments have changed the terrace off the bedroom to a planter and the terrace off the living room is reduced and recessed. Specific landscaping is proposed within the 5m (approx) width setback area.

53 The areas of No 2131 impacted are the side courtyard and the rear yard area and bedroom area. Taking into account that approximately approximately 15m separates the courtyard, and assuming the landscaping fulfils its function, and that the primary orientation of the courtyard is away from the bedroom planter, I do not consider this concern is sufficient to merit alteration of this element.

54 My observations at the view were that the rear yard area is very much a secondary outdoor area where some overlooking would be unlikely to cause undue loss of amenity. The bedrooms facing the development have high light windows and are primarily oriented away from the proposed development. In the circumstances, I do not consider they would experience undue loss of amenity. Considering the attractive primary views towards Pittwater, I do not consider the non – translucent balustrade necessary in the circumstances.

Tree removal

55 This contention concerns the unacceptable removal of mature trees from the site, which detracts from the landscape setting. The trees identified in this regard are T6, T4, T26 and T32. As previously described, T6 is now retained and as it is a mature tree within the general streetscape, I am satisfied its retention makes a positive contribution to the character of the area. T32 is the liquidambar, which I note is listed as a noxious species. I am satisfied its removal and replacement with suitable native species will positively contribute to the desired future character of the area.

56 T4 is a brushbox and T 26 is a broad-leaved paperbark, which Mr Castor gives a significance rating of 3. As they are located within the building footprint, I have observed the landscaping contribution they make and considering the overriding objectives of the SEPP, do not consider it reasonable pursuant to cl 33 (f) of the SEPP to retain these trees, particularly taking into account the substantial native replacement landscaping. I rely on the unchallenged evidence of Mr Castor that it is reasonable to remove these 2 trees.

Overland flow path

57 This issue relates to a possible conflict between the function of the existing stormwater easement through the property and the proposed landscaping. The applicant’s consulting engineer Mr Karakinos, who says there will be no conflict, has reviewed the design of the pipeline within the easement and potential overland flows. I am satisfied from his evidence that this matter can be covered by conditions of consent.

Driveway access

58 This issue was raised in connection with the adequacy of the width of the common driveway in terms of the combined vehicular and pedestrian safety and convenience for Building B & C. Also, the neighbours lodged objections regarding the elevated appearance and possible noise nuisance from increased use of the driveway.

59 These concerns were addressed during the course of the appeal by the provision of additional details as shown in Exhibit C. Mr Nettle, the applicant’s traffic consultant undertook an assessment of the revised driveway on the basis of the DCP 21 controls, including reference to the provisions of AS 2890.1 (2004), as required by cl B6.4.

60 Mr Nettle noted that DCP 21 states:

Internal Driveway Width
Internal driveways shall be designed and constructed to a minimum practical width to accommodate access and turning movements to minimise the area of impervious pavement within the land.

61 By reference to clause 3.2.2 of the AS, he confirms that the revised driveway complies with the requirement of both the standard and the DCP.He says that:

62 I note however that Mr Sanders raised concerns about the adequacy of landscaping and pedestrian refuge along the driveway. However Mr Nettle says that the AS does not require such pedestrian refuges in situations as proposed but in any case there is an attractive internal pathway for pedestrians. I am satisfied to rely on the unchallenged evidence of Mr Nettle that the proposed driveway satisfies the relevant controls. In any case, it appears to me that the main users of the driveway will be residents who will be familiar with driveway constraints.

63 I am now satisfied that the revised horizontal alignment, with the recessed retaining walls should allow adequate internal planting as shown on the landscape plan to provide and effective screen to the properties to the west.

Objections

64 The main objections lodged concern amenity impacts on No 2131 and No 2131a Pittwater Road. Apart from this, other objections were lodged by neighbours in the area and are summarised as follows:

65 Some of the specific concerns raised by the residents of No 2131 have been dealt with previously and concern potential adverse amenity impact on 3 side of the property. The amended plans have resulted in changes to the proposed buildings to allow a reasonable level of amenity as discussed. However further submissions were made regarding appropriate conditions of consent, which I deal with subsequently.

66 The owner of No 2131a expressed concerns about loss of privacy due to the proposed glass walls facing his property and requests conditions requiring privacy screening.

Conditions

67 Insofar as council’s basic submission is that this development should be refused, draft conditions were submitted as required. These draft conditions are sought to be imposed in order to ameliorate perceived amenity impacts. However there was disagreement between the parties on the reasonableness of the following conditions.

68 Draft Condition 43 requires the balustrades on Units B1 and B2 to be finished in non – translucent material. In this regard I consider it reasonable to rely on Mr Fleming’s opinion that with the amended balcony set out, the intervening planting restricting downward looking, the separation distances to the primary outdoor areas of No 2131, and the secondary view corridor to these primary areas, then this condition is unreasonable. Furthermore it is apparent that this material would only be partially effective when occupants are seated.

69 Draft Condition 44 requires the addition of precast blades along the north-western side of the living room of Unit A3, similar to Unit A4. However I agree with Mr Fleming that the amendments now include a setback that exceeds council’s minimum set back control. Furthermore, the retention of Tree 6 will assist with maintenance of privacy and enable the planting of additional vegetation. In these circumstances, I do not consider this screening is reasonable.

70 Draft Condition 45 requires the fixing of fixed privacy screens of minimum height of 1.7m to the north – western wall of Unit B1 and Unit C1. In this regard, I consider it reasonable to rely on the opinion of Mr Fleming that this screening is not warranted because there is a noticeable height difference, there is a separation distance of approximately 40m to No 2131a and there is intervening landscaping, which provides reasonable privacy.

71 Draft Condition 46 requires the south – eastern terrace/pool area of Unit C3 to have partial fixed privacy screening adjacent to the pool area. Whilst I note Mr Fleming does not support this, nevertheless the potential amenity impacts was somewhat difficult to assess at the view. Considering the relative proximity of the outdoor areas and use of the pool area, I am satisfied this condition is reasonable.

Conclusions

72 Having considered the evidence, the submissions and undertaken a view I am satisfied that the amended application merits conditional consent. This form of SEPP (HS&PD) development is permitted on the site so as to increase the supply and diversity of residences that meet the needs of seniors or people with a disability.

73 The consolidation of the various existing lots results in a larger, irregular shaped lot. It seems to me that the proposed design has incorporates a detailed site analysis with careful consideration to the site constraints, resulting in the 3 buildings fitting into the site topography. Insofar as bulk and scale are contentions, the measure of FSR is a commonly accepted index for this and in this case the proposal comfortably complies with the SEPP development standard of 0.5:1. Based on the provisions of cl 50 of the SEPP this does not present grounds for refusal, despite Mr Sanders preference for a reduced number of units.

74 The other components of the buildings satisfy the maximum 2 – storey building height and general footprint controls in terms of satisfactory setbacks. The wider buildings generally follow the contours and in my assessment will fit in with the form of the existing residential neighbourhood.

75 Importantly the proposal addresses the exotic weed infestation of the property, which in my assessment will result in a positive landscaping outcome. The proposed landscaping includes a number of strategically placed canopy trees, which on maturity will provide attractive canopy cover for the development. These trees and the other landscaping have been carefully placed so as to allow reasonable Pittwater views.

76 In summary then, I am satisfied that this development recognises the locations desirable elements and that the building form is of good design, which will integrate with the proposed landscaping treatment will provide a high level of internal amenity for the residents and result in a positive contribution to the quality and identity of the area.

77 Insofar as a considerable number of objections were lodged, I am satisfied that the amendments together with the conditions of consent as discussed, should result in a reasonable level of amenity for the neighbours, including the maintenance of substantive Pittwater views from neighbouring properties, despite the change in built form.

78 Accordingly the Court orders:

_________________________

R Hussey

Commissioner of the Court

Annexure ‘AA’

Conditions of Consent

Boston Blyth Fleming Pty Ltd v Pittwater Council

For DA No 549/08 at 2129 Pittwater Road, CHURCH POINT (Lot 51 DP 709248), (Lot 52 DP 709248), (Lot 53 DP 709248), 2133 Pittwater Road (Lot H, DP 415249) Demolition of the existing site improvements and construction of ten (10) self contained dwellings pursuant to SEPP (Housing for Seniors or People with a Disability) 2004 and consolidation and re-subdivision of the land

PART 1

Conditions of Approval

This consent is not an approval to commence building work. The works associated with this consent can only commence following the issue of the Construction Certificate.

Note: Persons having the benefit of development consent may appoint either a council or an accredited certifier as the principal certifying authority for the development or for the purpose of issuing certificates under Part 4A of the Environmental Planning and Assessment Act. When considering engaging an accredited certifier a person should contact the relevant accreditation body to ensure that the person is appropriately certified and authorised to act in respect of the development.

A. Prescribed Conditions:

1.1 All works are to be carried out in accordance with the information provided by the applicant supporting the application, including the SEE, and in accordance with Plans numbered DA00- DA11 (inclusive) Issue E, dated 11.05.10, prepared by Church Point Trust, Subdivision Plan, dated 15-7-09, prepared by Barrie Green and Associates, Plans numbered 1 of 4, 2 of 4, 3 of 4, and 4 of 4 dated 12.05.09, prepared by Paul Scrivener, Plan 1 of 12 – 12 of 12 (inclusive) dated 10.5.10, prepared by Paul Scrivener, Accessibility report, dated 14 October 2008, prepared by Accessibility Solutions as further updated by correspondence dated 18 May 2009 prepared by Accessibility Solutions, Geotechnical Report, Ref:28108, dated October 2008, prepared by Crozier Geotechnical Consultants, Traffic and Transport Report, Ref 08220, dated October 2008, prepared by Transport and Traffic Planning Associates as further updated by correspondence dated 18 May 2009, prepared by Transport and Traffic Planning Associates as further updated by Report referenced 08220, dated June 2010 prepared by Traffic and Transport Planning Associates , Arborist Report, dated October 2008 ref:1939, prepared by Tree Wise Men, as further updated by correspondence dated 3 May 2010, prepared by Tree Wise Men Australia Pty Ltd, Construction/Excavation Method Statement, dated 5 May 2009, prepared by Crozier Geotechnical Consultants, Excavation support/construction statement, ref SY080465, dated 6 May 2009, prepared by ACOR Consultants Pty Ltd, Flood Risk Assessment Report, dated 1 May 2009, prepared by ACOR Consultants Pty Ltd, Driveway Detail Plans 16910 - 1/A, dated 10/5/10, 16910-2, dated May 10, 16910-3/A, dated 10/5/10, all prepared by T.J Taylor Consultants Pty Limited, as amended in red (shown clouded) or as modified by any conditions of this consent.

1.2 All works are to be carried out in accordance with the requirements of the Building Code of Australia.

1.3 In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, there is to be such a contract in force.

2. Critical stage inspections are to be carried out in accordance with clause 162A of the Environmental Planning & Assessment Regulation 2000. To allow a Principal Certifying Authority or another certifying authority time to carry out critical stage inspections required by the Principal Certifying Authority, the principal contractor for the building site, or the owner-builder must notify the Principal Certifying Authority at least 48 hours before building work is commenced and prior to further work being undertaken.

3. A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

a. showing the name, address and telephone number of the Principal Certifying Authority for the work, and

b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working house, and

c. stating that unauthorised entry to the work site is prohibited.

4. Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the following information:

a. in the case of work for which a principal contractor is required to be appointed:

i. the name and licence number of the principal contractor, and
ii. the name of the insurer by which the work is insured under Part 6 of that Act.

b. in the case of work to be done by an owner-builder:

i. the name of the owner-builder, and
ii. if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

5. If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the Principal Certifying Authority for the development to which the work relates (not being the Council) has given the Council written notice of the updated information.

6. The hours of construction are restricted to between the hours of 7.00am and 5.00pm Monday - Friday and 7.00am to 1.00pm on Saturdays. No works are to be carried out on Sundays or Public Holidays. Internal building work may be carried out at any time outside these hours, subject to noise emissions from the building or works not being audible at any adjoining boundary.

B. Matters to be incorporated into the development and maintained over the life of the development:

1. The recommendation of the risk assessment required to manage the hazards as identified in Geotechnical Report prepared by Crozier Geotechnical Consultants are to be incorporated into the construction plans.

2. The Estuarine Planning level is 2.0m AHD.

3. The minimum floor level shall be at or above the Estuarine Planning level.

4. The minimum floor level of an enclosed garage shall be at or above the Estuarine Planning level.

5. The proposed stormwater inlet structure as detailed in the "Flood risk assessment" prepared by ACOR Consultants dated May 2009 is to be constructed as part of this development.

6. As part of the integrated stormwater management plan, suitably positioned stormwater quality improvement devices shall be installed and operated in accordance with Manufacturer's Specifications and associated operational guidelines.

7. There is to be no altering of levels within the emergency flowpath over the existing stormwater drainage line that drains along the eastern boundary of the site (see Site Layout Plan, which forms appendix B to the Flood Risk Assessment Report, dated 1 May 2009, prepared by ACOR Consultants Pty Ltd). No hard surface is to be placed over the said emergency flowpath. The emergency flowpath is to comprise soil in order to facilitate landscaping in accordance with Plan 1 of 12 – 12 of 12 (inclusive) dated 10.5.10, prepared by Paul Scrivener.

8. All construction of the access driveway across the public road verge must be undertaken by a Council authorised contractor.

9. Council's fees and charges apply to street levels and Deed of Agreement for access driveways.

10. The existing landscaping required to be retained together with any additional landscaping required by this Development Consent is to be maintained for the life of the development.

A copy of these development consent conditions and the approved landscaped plans shall be provided to the successors in title to the property or any part of it. The Owners Corporation shall enter into a maintenance contract with an appropriately qualified landscape contractor to ensure compliance with this condition.
The Owners Corporation of the property from time to time shall lodge with the council annually after the issue of a final occupation certificate a report from the contracted landscaper certifying compliance with this condition and confirming that any vegetation which has failed or been removed or damaged has been replaced at a height and maturity commensurate with what that vegetation should have achieved according to the approved landscape plan and the time passed since it was planted.

11. Screen planting is to be provided, which after three years will, in conjunction with the canopy planting, screen 50% of the built form when viewed from the street. Species selection is to incorporate locally native species. This screen planting is to be retained over the life of the development and replaced if any part of it should die or be destroyed or removed.

12. All natural landscape features, including natural rock outcrops, natural vegetation, soil and watercourses, are to remain undisturbed except where affected by necessary works detailed on approved plans.

13. In accordance with Pittwater Council’s Tree Preservation Order, as trees stand within the envelope of an approved development area, all existing trees as indicated to be retained in the Survey Plan and/or approved Landscape Plan shall be retained except where Council's prior written consent has been obtained. For all other tree issues not related to a development application, applications must be made to Council’s Tree Management Officers.

14. A minimum of 200mm clearance is to always be maintained to the tree trunk from proposed bearers, joists and decking.

15. Locally native canopy trees are to be planted onsite to replace trees approved for removal. Canopy tree species are to be as per the approved Landscape Plan or selected from the list pertaining to the vegetation community growing in the locality as per the vegetation mapping and Native Plants for Your Garden book available from Pittwater Council and on the website (

16. Where fencing is required to contain a domestic animal the enclosed area shall be up to 25% of the site cover and in a location that does not impede passage of native wildlife between sites.

17. For the life of the development, domestic pet animals are to be kept from entering wildlife habitat areas at all times. Dogs and cats are to be kept in an enclosed area or on a leash such that they cannot enter areas of bushland, unrestrained, on the site or on surrounding properties or reserves. Ferrets and rabbits are to be kept in a locked hutch/run at all times.

18. Any vegetation planted outside approved landscape zones is to be consistent with:

a. Species listed in the Ecological Sustainability Plan or Bushland Management Plan

b. Species listed from the Endangered Ecological Community

Native Plants for Your Garden

19. Over the life of the development all declared noxious weeds are to be removed/controlled in accordance with the Noxious Weeds Act 1993. Environmental weeds are to be removed and controlled. Refer to Pittwater Council website ( for noxious/environmental weed lists.

20. No environmental weeds are to be planted on the site. Refer to Pittwater Council website ( for environmental weed lists.

21. Any new fencing is to be made passable to native wildlife. As a guideline, hole dimensions should be 150mm wide X 100mm long at ground level spaced at 6 metre intervals.

22. This approval/consent relates only to the new work nominated on the approved consent plans and does not approve or regularise any existing buildings or structures within the property boundaries or within Council's road reserve.

23. Deleted

24. Permanent seating is to be provided in the landscaped area for the benefit of the residents.

25. Building facades to any public place including balconies and carpark entry points must not contain any stormwater, sewer, gas, electrical or communication service pipe or conduit that is visible from the public place

26. Garbage enclosures/stores shall be provided and maintained in accordance with section C1.12 Waste and Recycling Facilities of Pittwater 21 DCP.

27. Where waste water is directed to the Sydney Water sewerage system the installation of in-sink food waste disposal units is prohibited due to the increased loading placed on the Warriewood Sewage Treatment Plant particularly during wet weather.

28. Any solid fuel or wood burning appliances shall comply with Australian Standard AS 4013-1992 or any subsequent amending standard.

29. All pool overflow water and waste water from the filtration process is to be directed to the sewer when available or to an approved on site disposal system.

30. No water pollution shall result from the operation of any plant or equipment or activity carried out.

31. Noise from the operation of any plant or equipment at the premises shall not exceed 5dB(A) above the background noise level.

32. All utility services including overhead power supply and communication cables located in the adjacent road verge & those to service the development are to be placed and/or relocated underground for the total frontage of the development site to any public road at the full cost to the developer.

33. Deleted

34. Deleted

35. New electrical connections are to be carried out using underground cabling.

36. Materials and colour schemes are to be in accordance with the samples submitted to Council with the application. No white or light coloured roofs are permitted.

37. The commitments identified in the BASIX Certificate and on the plans or specifications are to be fulfilled and maintained for the life of the development.

38. Deleted

39. This consent does not authorise any access to be gained over 2131 Pittwater Road.

40. The driveway accessing Building A is to be a maximum 4.5m in width when measured at the front property boundary.

41. Any crash barrier associated with the northern driveway is to be constructed in accordance with the relevant Australian standards. (AS.1170.1)

42. Deleted

43. Deleted.

44. Deleted.

45. Deleted.

46. The South-eastern terrace/pool area of Unit C3 is to have a fixed privacy screen located at the southeastern end for the full length of the terrace/pool area. The screen is to be a minimum 1.7m in height when measured above the respective terrace/pool area level and is to have a maximum opening of 25%.

47. Construction vehicles of a weight/payload greater than 3.5 tonnes are not to utilise the northern driveway for the purposes of accessing the site.

48. No plants/air-conditioners or gas hot-water systems are to be placed on the roof of the development.

49. Fencing located within the front building line of the site (10.0m when measured from Pittwater Road) is to be a maximum height of 1.0m when measured above natural ground level.

50. Building A is to be fitted with a security door which includes a camera/intercom system to allow the residents of building’s A, B and C the ability to view visitors before allowing entry.

51. A lockable storage area of minimum 8 cubic metres per dwelling shall be provided. This may form part of a carport or garage.

52. Formative trimming is to be undertaken to the Spotted gums located between Building B and the property at 2131 Pittwater Road for the first five (5) years to minimise branch overhang over that property.

53. The Spotted gums located between Building B and the property at 2131 Pittwater Road are to be located so that the tree centres are a minimum of 5.0m from the building on 2131 Pittwater Road.

54. The Spotted gums nominated to be located within the landscaped zone to the northwest of 2131 Pittwater Road and the proposed driveway which gains access to Building B and C of the development are to be replaced with Banksia Integrifolia.

55. External lighting associated with the development is to be designed, installed and maintained in accordance with the Australian Standard AS4282 “The control of the obtrusive effects of outdoor lighting”.

56. The privacy blades to bedroom B1 in Unit A3 shall be aligned at an angle of 30 degrees to the plane of the glazing of the bedroom.

1. Prior to issue of the Construction Certificate, Form 2 of the Geotechnical Risk Management Policy for Pittwater (Appendix 5 of P21 DCP) is to be completed and submitted to the Principal Certifying Authority.

2. Plans and details of the proposed stormwater inlet structure are to be prepared by a Civil Engineer and submitted to the Principal Certifying Authority prior to issue of a Construction Certificate.

3. Engineering plans including specifications and details of the on-site stormwater detention system, are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Such details are to be accompanied by a certification by a qualified experienced practising Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, confirming that the plans/details comply with B5.8 of Pittwater 21 DCP.

Note: Where Council is the Principal Certifying Authority, 3 sets of engineering plans are to be submitted.

4. Engineering details showing the stormwater quality treatment system are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Such details are to be accompanied by a certification by a qualified practicing Water Engineer with corporate membership of the Institute of Engineers Australia ( MIE Aust), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, confirming that the plans/details comply with B5.10 of Pittwater 21 DCP.

5. Drainage plans including specifications and details showing the site stormwater management are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Such details are to be accompanied by a certificate from (as appropriate) either a Licensed plumber or qualified practising Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a Corporate member and has appropriate experience and competence in the related field, that the stormwater management system complies with the requirements of section 3.1.2 Drainage of the Building Code of Australia Housing Provision and AS/NZS 3500.3.2 - Stormwater Drainage. The details shall include disposal of site stormwater (if the site is in a known slip area the stormwater disposal system must comply with the recommendations of a Civil (Geotechnical) Engineers report).

Note: Where Council is the Principal Certifying Authority 3 sets of plans/specifications are to be submitted.

6. Plans, street Levels provided by Council and a certificate submitted by a chartered Professional Engineer, Architect or Surveyor, confirming to the satisfaction of the Accredited Certifier or Council that the access driveway and internal driveway complies with the requirements of Pittwater 21 DCP Control B6.2 and the Council street levels are to be submitted to the Principal Certifying Authority with the Construction Certificate application.

7. Applicants will be required to obtain prior to the issue of a Construction Certificate, a Section 139 Certificate for Works on the Public Road Reserve issued by the Council under the provisions of Section138 of the Roads Act 1993 for the design and construction of any works located on the road reserve.

8. A Dilapidation Report is required in relation to the adjoining properties at 2125 and 2131 Pittwater Road and 28 and 30 Bakers Road. The report is to be prepared by a qualified Geotechnical Engineer.

9. Civil engineering details of the proposed excavation/landfill are to be submitted to the Accredited Certifier or Council with the Construction Certificate application. Each plan/sheet is to be signed by a qualified practising Civil Engineer who has corporate membership of the Institution of Engineers Australia (M.I.E) or who is eligible to become a corporate member and has appropriate experience and competence in the related field.

10. Submission of construction plans and specifications and documentation which are consistent with the approved Development Consent plans, the requirements of Building Code of Australia and satisfy all conditions shown in Part B above are to be submitted to the Principal Certifying Authority.

11. The Accredited Certifier or Council must be provided with a copy of plans that a Quick Check agent/Sydney Water has stamped before the issue of any Construction Certificate.

12. The applicant is to consult with Sydney Water to establish whether there are any Section 73 Compliance Certificate requirements for this proposal, under the provisions of the Sydney Water Act, 1994. A copy of any Notice of Requirements letter which may be issued by Sydney Water, is to be provided to the Private Certifying Authority with the Construction Certificate application.

Application must be made through an authorised Water Servicing Coordinator. Please refer to the Building Developing and Plumbing section of the web site then refer to "Water Servicing Coordinator" under "Developing Your Land" or telephone 13 20 92 for assistance.

13. Any proposed demolition works shall be carried out in accordance with the requirements of AS2601-1991 The Demolition of Structures.

Amongst others, precautions to be taken shall include compliance with the requirements of the WorkCover Authority of New South Wales, including but not limited to:

1. Protection of site workers and the general public.

2. Erection of hoardings where appropriate.

3. Asbestos handling and disposal where applicable.

14. Structural Engineering details relating to the development are to be submitted to the Accredited Certifier or Council prior to release of the Construction Certificate. Each plan/sheet is to be signed by a qualified practising Structural Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field.

15. A contribution of $63 000 is to be made to Cashier Code SOPS, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Embellishment of Open Space, Bushland and Recreation in accordance with Section 94 Contributions Plan No.2. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate.

16. A contribution of $14 000 is to be made to Cashier Code SLEL, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Public Library Services in accordance with Section 94 Contributions Plan No.3. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate.

17. A contribution of $24 500 is to be made to Cashier Code SCSF, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Community Services Facilities in accordance with Section 94 Contributions Plan No.18. The Contributions Plan may be inspected at Pittwater Council, No 1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate.

18. A contribution of $35 000 is to be made to Cashier Code SVSS, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for providing improved Village Streetscapes in accordance with Section 94 Contributions Plan No.19. The Contributions Plan may be inspected at Pittwater Council, No1 Park Street, Mona Vale. The Section 94 contribution is to be paid prior to issue of the Construction Certificate.

19. Certification from the Accredited Access Adviser that design details and specifications comply with the Accessibility Control, SEPP Housing for Seniors or People with a Disability, and the DA Access Report, must be submitted to the Accredited Certifier or Council with the Construction Certificate application.

20. Plans and details demonstrating that the commitments identified in the BASIX Certificate that apply to the construction certificate or complying development plans and specifications are fulfilled.

1. All excavated material is to be removed from the site.

2. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.

3. All excavations associated with the erection or demolition of a building must be properly guarded and protected to prevent them from being dangerous to life or property.

4. Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must preserve and protect the building from damage and, if necessary, underpin and support the adjoining building in an approved manner.

5. Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site.

6. Sedimentation and erosion controls are to 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.

7. Adequate measures shall be undertaken to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition.

8. The site is to be fully secured by a fence to all perimeters to the site to prevent unauthorised access both during the course of the works and after hours.

9. No works are to be carried out in Council's Road Reserve without the written approval of the Council.

10. A Road Opening Permit, issued by Council, must be obtained for any road openings, or excavation within Councils Road Reserve associated with the development on the site, including stormwater drainage, water, sewer, electricity, gas and communication connections. During the course of the road opening works the Road Opening Permit must be visibly displayed at the site.

11. No skip bins or materials are to be stored on Councils Road Reserve.

12. A site fence and silt and sediment control fence is to be erected and maintained during the course of works along any street boundary and park/reserve boundary to the site.

13. A clearly legible Site Management Sign is to be erected and maintained throughout the course of the works. The sign is to be centrally located on the main street frontage of the site and is to clearly state in legible lettering the following: -

14. All construction in the public road reserve must be undertaken by a Council authorised contractor.

15. A satisfactory construction traffic management plan (CTMP) prepared by a suitably qualified traffic consultant is required to be submitted to the Private Certifying Authority prior to the commencement of any site works. The plan is to detail:

16. As there are existing trees to be retained within 5 metres of proposed development works, all recommendations as outlined in the supplied arborist report by Tree Wise Men Australia Pty Ltd dated October 2008 are required to be complied with before and throughout the development period, particularly with regard to the following:

a. Works, erection/demolition of structures, excavation or changes to soil levels within 5 metres of existing trees are not permitted unless part of the development as approved, and the storage of spoil, building materials, soil or the driving and parking of any vehicle or machinery within 5 metres of the trunk of a tree to be retained is not permitted;

b. Where specified, tree guards are to be provided to all trees as indicated in the report, and are to be installed prior to the commencement of any work on the site. Tree guard materials and dimensions are specified in the arborist report;

c. All works within 5 metres of existing trees including demolition, excavation, civil works, fencing and the like must be carried out by hand and under the supervision of an experienced and suitably qualified arborist. In the event that major structural or feeder roots are encountered, the arborist is to advise the builder to carry out appropriate action to ensure the retention of the tree.

d. Signage is to be erected advising all contractors and visitors to the site that no works or storage are to take place within the dripline of existing trees.

17. Prior to commencement of site works, the project manager is to submit evidence to the Principal Certifying Authority of a pre-order for the supply of the plant material shown on the approved landscape working drawings and specifications.

18. During site excavation, topsoil which is to be used in later landscape works is to be stockpiled on site and stabilised during construction works. Stockpiles are to be stored outside of hazard areas and not located within the dripline of existing trees which are to be retained.

19. Protection fencing measures (including sedimentation fences) are to be installed in accordance with all approved plans including those specified in the Arborist Report and/or Ecological Sustainability Plan or Bushland Management Plan. Protection measures are to be maintained for the duration of works. Protection fencing that is no longer required is to be removed once all works are completed.

20. A stamped copy of the approved plans is to be kept on the site at all times, during construction.

21. Toilet facilities are to be provided in a location which will not detrimentally affect the amenity of any adjoining residents at or in the vicinity of the work site during the duration of the development.

22. Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must give the owner of the adjoining property at lease seven (7) days written notice of their intention to excavate below the level of the base of the footing and furnish the adjoining property owner with particulars of the proposed work.

23. Demolition works must be carried out in compliance with WorkCovers Short Guide to Working with Asbestos Cement and Australian Standard AS 2601 1991 The Demolition of Structures.

The site must be provided with a sign containing the words DANGER ASBESTOS REMOVAL IN PROGRESS measuring not less than 400mm x 300mm and be erected in a prominent visible position on the site. The sign is to be erected prior to demolition work commencing and is to remain in place until such time as all asbestos cement has been removed from the site and disposed to a lawful waste disposal facility.

1. Prior to issue of the Occupation Certificate, Form 3 of the Geotechnical Risk Management Policy (Appendix 5 of P21 DCP) is to be completed and submitted to the Principal Certifying Authority.

2. A positive covenant/ restriction on the use of land is to be created prior to the issue of the Occupation Certificate where the recommendations of the approved Geotechnical Report requires on-going maintenance / inspections to ensure that the development achieves the acceptable level of risk criteria over the life of the development, the terms of which are to require the landowner to comply with the recommendations contained in that report.

3. A certificate by a Civil Engineer is to be provided to the Principal Certifying Authority stating that the proposed stormwater inlet structure has been constructed in accordance with the recommendations of the ACOR Consultants report prior to issue of an Occupation Certificate.

4. Certification is to be provided to Private Certifying Authority by a qualified experienced practising Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, that the on-site detention system has been completed in accordance with the engineering plans and specifications required under this consent.

5. A positive covenant is to be created on the land title of the development site to ensure the on going maintenance and performance of the on-site stormwater detention system. Proof of the creation of the positive covenant is to be provided to the Private Certifying Authority with the Occupation Certificate application. The terms of the positive covenant are to be in accordance with Councils standard wording as follows:

1. The proprietor of the burdened lot from time to time shall do all things necessary to maintain, repair and replace the outlet grates and pipes and structures of and incidental to the stormwater detention system within the land so burdened to the satisfaction of Pittwater Council and in this regard must comply with any written request of the Council within such reasonable time period as nominated in the said request.

2. Where the proprietor of the burdened lot fails to comply with any written request of Pittwater Council referred to in 1) above the proprietor shall meet all reasonable cost incurred by the Council in completing the works requested.
3. Full and free right for Pittwater Council and every person authorised by it to enter upon the burdened lot in order to inspect, maintain, cleanse, replace, repair any pipeline, grate, pit, other structure or alter surface levels to ensure the on-site detention system within the land so burdened functions as designed.

4. Such improvements, alterations or amplifications to the stormwater detention system on the land shall be made at anytime and as from time to time as Pittwater Council shall by notice in writing reasonably require.

5. Nothing shall be done upon the land or allowed to remain upon the land which:

a) Alters the level of the land or b) Impedes or interferes with the normal flow of stormwater or other water through the stormwater and detention structures constructed on the land or which interferes with their proper operation.

6. Certification is to be provided to a Private Certifying Authority by an experienced Water Engineer who is NPER accredited by the Institute of Engineers, Australia that the stormwater treatment system has been completed in accordance with the engineering plans and specifications required under this consent.

7. Certification is to be provided to the Principal Certifying Authority by a qualified experienced practising Civil Engineer, with corporate membership of the Institute of Engineers Australia (M.I.E.), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, that the drainage/stormwater management system has been installed to the manufacturer's specification (where applicable) and completed in accordance with the engineering plans and specifications required under this consent.

8. A certificate submitted by a Chartered Professional Engineer confirming to the satisfaction of the Principal Certifying Authority that the works in the public road reserve comply with Council requirements is to be provided with the Occupation Certificate application.

9. Prior to issue of an Occupation Certificate photographic evidence of the condition of the street trees and road reserve and area adjoining the site after the completion of all construction, must be submitted to the Principal Certifying Authority showing that no damage has been done and if damage has been done that it has been fully remediated. The photographs shall be accompanied by a statement that no damage has been done (or where damage has been remediated that Council has approved that work). In this regard Council’s written agreement that all restorations have been completed satisfactorily must be obtained prior to the issue of any Occupation Certificate.

10. Restoration of all damaged public infrastructure caused as a result of the development to Councils satisfaction. Councils written approval that all restorations have been completed satisfactorily must be obtained must be provided to the Private Certifying Authority with the Occupation Certificate application.

11. Evidence of a 12 month maintenance program is to be submitted to the Private Certifying Authority with the Occupation Certificate application for the maintenance of all landscaped areas as required under this consent. During this period the nominated contractor shall maintain all approved landscape areas inclusive of weeding, watering, mowing and replacement of failed plant material.

12. A landscape practical completion report is to be prepared by the consultant landscape architect/designer and submitted to the Principal Certifying Authority with the Occupation Certificate application. This report is to certify that all landscape works have been completed in accordance with the landscape working drawings and specifications.

13. Three (3) nest boxes (refer to Pittwater Council website for suggested models) are to be appropriately installed in trees not affected by development. This must be certified by a Bushland Management Consultant or Council as being complete and adequate.

14. An Occupation Certificate application stating that the development complies with the Development Consent, the requirements of the Building Code of Australia and that a Construction Certificate has been issued must be obtained before the building is occupied or on completion of the construction work approved by this Development Consent.

15. A copy of the Section 73 Compliance Certificate issued under the provisions of the Sydney Water Act, 1994, is to be forwarded to Council or the Private Certifying Authority with the Occupation Certificate.

16. All sole occupancy units are to have approved hard-wired smoke alarms installed and maintained over the life of the development. All hard-wired smoke alarms are to be Australian Standard compliant and must be installed and certified by any appropriately qualified electrician prior to the issue of any Occupation Certificate.

17. Street numbers are to be affixed to the building prior to occupation.

18. Address street numbering can only be authorised by Council. Before proceeding to number each lot/occupancy in your development, approval must be sought from Councils Planning and Assessment Business Unit.

You are advised to contact Australia Post regarding the required size and location of letterboxes.

19. A qualified acoustic engineer is to certify that the maximum noise level associated with the pool filter does not exceed 5dB(A) above ambient background level, when measured from any adjoining premises.

20. All external face brick walls are to be properly cleaned down following completion of the wall and prior to occupation.

21. A restriction on use of the land is to be created on the title of any new lots, the terms of which burden the said lots, benefit Council and restrict the occupancy of the lot to persons defined in State Environmental Planning Policy (Housing For Seniors or People with a Disability) as to "Senior people" or "people with a disability" or people who live with older people or people with a disability. All matters relating to this restriction on use of the land are to be finalised prior to release of the Occupation Certificate.

22. Any lease or tenancy or agreement prepared for a residence within this development is to contain terms which prohibit occupation of the residence by persons other than those specified in State Environmental Planning Policy (Housing for Seniors or People with a Disability) as senior or disabled persons together with any person who live with aged or disabled person(s). Further the "by laws" of any body corporate created through strata subdivision of the development are to contain terms which prohibit the use of any strata unit other than by persons specified in State Environmental Planning Policy (Housing for Seniors or People with a Disability) as senior or disabled together with any bona fide carer(s).

23. An Accredited Access consultant is to certify that the development has complied with the construction certificate details and the design details and technical specifications relevant to recommendations in the approved Access Assessment Report, and in accordance with all relevant accessibility provisions of State Environmental Planning Policy (Housing for Seniors or People with a Disability).

24. Certification is to be provided that the commitments identified in the BASIX Certificate have been fulfilled.

25. Certification is to be provided by an appropriately qualified acoustic engineer that the noise generated by traffic movements on the northern driveway meet the requirements of the Department of Environment and Climate Change Industrial Noise Policy in relation to adjoining residential properties.

F. Matters to be satisfied prior to the issue of Subdivision Certificate:

1. Appropriate Rights of Way and Rights of Carriageway are to be created over the common driveway burdening and benefiting the proposed lots, to provide for suitable legal pedestrian access to the dwellings and appropriate vehicular access and manoeuvring to the parking areas on both lots. These can be created by the Subdivision Plan and an accompany 88B Instrument.

2. The 88B instrument is to include a provision on the title of the consolidated lot (2129 Pittwater Road) which requires the body corporate of the development to employ a caretaker/business to specifically transport the waste bins to the street front for the development on waste collection days and then return them to the respective buildings upon the waste being collected every week of the year.

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7. The applicant is to lodge an application for a Subdivision Certificate with Council or an accredited certifier. The Subdivision Certificate is to be obtained prior to lodgement of the plans with the Land Titles Office.

Note:

In the case of Strata Subdivision Plans the Subdivision Certificate may also be issued by an accredited certifier.

8. A Section 73 Compliance Certificate issued under the provisions of the Sydney Water Act 1994 is to be provided to the Principal Certifying Authority with the Subdivision Certificate application.

9. Lot 51 DP 709248, Lot 52 DP 709248, and Lot 53 DP 709248 are to be consolidated into one lot. This can be achieved through registration of the Plan of Subdivision.

10. The following documents and payments are to be submitted to Council in a single package to ensure the efficient release of the Subdivision Certificate:-

(i) Evidence of Payment of the Section 94 Contribution.

(ii) A copy of the Section 73 Compliance Certificate issued under the provisions of the Sydney Water Act, 1994.

(iii) Copies of the Subdivision Plans (original plus 6 copies).
(iv) The Private Certifying Authority Compliance Certificate. Each component of the works as outlined above are to be certified as being carried out in accordance with the relevant plans and documentation by suitably qualified professional persons as outlined in this development consent. In particular, the construction of the Water Management System is to be supervised and certified by person(s) with appropriate experience and expertise in Environmental Science, Hydrology and Hydraulics, and must be NPER registered members of the Institution of Engineers (Australia).

11. All works associated with the water management system required under the terms of this consent are to be completed prior to the issue of the Subdivision Certificate.

Certification is to be provided to the Principal Certifying Authority with the Subdivision Certificate application, by an appropriately qualified professional, that works associated with the water management system have been carried out and completed in accordance with the Water Management Report.

_______________________

R Hussey

Commissioner of the Court

G. Advice:

1. Electrical insect killing light devices should not be used outside and not installed anywhere that they can attract and kill micro-bats.

2. Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act, 1979 (as amended) and/or the conditions of this Development Consent may result in the serving of penalty notices (on-the-spot fines) under the summary offences provisions of the above legislation or legal action through the Land and Environment Court, again pursuant to the above legislation.

3. The applicant is also advised to contact the various supply and utility authorities, ie Sydney Water, Sydney Electricity, Telstra etc. to enquire whether there are any underground utility services within the proposed excavation area.

4. It is the Project Managers responsibility to ensure that all of the Component Certificates/certification issued during the course of the project are lodged with the Principal Certifying Authority. Failure to comply with the conditions of approval or lodge the Component Certificates/certification will prevent the Principal Certifying Authority issuing an Occupation Certificate.

5. In accordance with Section 95(2) of the Act, this consent will lapse if the development, the subject of this consent, is not commenced within 2 years after the date from which this consent operates.

6. To ascertain the date upon which the determination becomes effective, refer to Section 83 of the Environmental Planning and Assessment Act, 1979 (as amended).

7. The approved plans must be submitted to a Sydney Water Quick Check agent or Customer Centre to determine whether the development will affect Sydney Water’s sewer and water mains, stormwater drains and/or easements, and if further requirements need to be met. The approved plans will be appropriately stamped. For Quick Check agent details please refer to the web site at then see Building Developing and Plumbing then Quick Check, or telephone 13 20 92.

8. You are reminded of your obligations under the objectives of the Disability Discrimination Act (DDA) 1992.

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Citations

Boston Blyth Fleming Pty Limited v Pittwater Council [2010] NSWLEC 1203

Most Recent Citation

RPNA Water Views Pty Ltd v Northern Beaches Council [2020] NSWLEC 1225

Cases Citing This Decision

1

RPNA Water Views Pty Ltd v Northern Beaches Council [2020] NSWLEC 1225

Cases Cited

2

Statutory Material Cited

5

Deaton v Pittwater Council [2008] NSWLEC 1370

Marina Bay Development Pty Ltd v Pittwater Council [2009] NSWLEC 1343

CITATION:	Boston Blyth Fleming Pty Limited v Pittwater Council [2010] NSWLEC 1203
PARTIES:	APPLICANT Boston Blyth Fleming Pty Limited RESPONDENT Pittwater Council
FILE NUMBER(S):	10968 of 2009
CORAM:	Hussey C
KEY ISSUES:	DEVELOPMENT APPLICATION :- SEPP (HS & PD) development, bulk and scale, compatibility with neighbouring, scenic impact, vegetation, amenity impacts, drainage, access.
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 State Environmental Planning Policy (Housing for Seniors or People with a Disability) 2004 Pittwater Local Environment Plan 1993 Pittwater 21 Development Control Plan Draft Pittwater 21 Local Environment Plan
CASES CITED:	Deaton v Pittwater Council [2008] NSWLEC 1370 Marina Bay Development Pty Ltd v Pittwater Council [2009] NSWLEC 1343
DATES OF HEARING:	21 May 2010, 18 and 19 June 2010, 8 September 2010
DATE OF JUDGMENT:	8 September 2010
LEGAL REPRESENTATIVES:	Mr C McEwen SC with Mr M Staunton (barrister) SOLICITOR Sattler & Associates RESPONDENT Ms S Duggan (barrister) SOLICITOR Mallesons Stephen Jaques