Commonwealth of Australia v North Sydney Council - [1998] NSWLEC 54

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Commonwealth of Australia v. North Sydney Council [1998] NSWLEC 54

PARTIES: Commonwealth of Australia v. North Sydney Council

FILE NUMBER(S): 10106 of 1998

CORAM: Sheahan J

KEY ISSUES: :-

LEGISLATION CITED: Environmental Planning and Assessment Act 1979
Land & Environment Court Act 1979
Contaminated Land Management Act 1997
North Sydney LEP 1989
State Regional Environmental Plan 23
State Environmental Planning Policy 56

CASES CITED:

DATES OF HEARING: 29, 30 June, 1, 2, 3 July, and 4 August 1998

DATE OF JUDGMENT:
10/14/1998

LEGAL REPRESENTATIVES:
Mr D P F Officer, QC with T Hale, Barrister
Mr M Craig, QC

JUDGMENT:

1. This is an appeal in Class 1 of the Court’s jurisdiction against the Council’s refusal of a development application (“DA”) proposing the redevelopment for residential purposes of the site currently occupied by the Royal Australian Navy’s submarine establishment, known as “HMAS Platypus”, which is located close to the head of the southern foreshore of Neutral Bay.

Preamble - Underlying and Background issues

(1) The Defence Power

2. The subject development application assumes, but does not include, substantial site works, which are yet to be commenced, to prepare the site for the proposed residential redevelopment. The Court was asked to accept that the preparatory site works envisaged by the Commonwealth - demolition of buildings, site reconfiguration, and remediation of contamination - would all be completed prior to the commencement of the residential project. Those works are to be carried out by the Commonwealth in purported exercise of its powers under the
3. Constitution (ss 51(vi) and 52), regarding defence matters, and will not be the subject of this or any other DA to the Council.

4. The evidence makes clear that a very significant site excavation and fill operation will be required. The Council argues that more is intended than is probably required by site contamination, but there is before the Court no evidence of what is in fact required. In terms of what is intended in this regard, the plans indicate that some elevations of 18m and approximately 22m will be excavated to about 8.5m, and that some of the site will be excavated to 5.5m, and some to 2.9m. A building known as the Exhauster House, which assumes some significance in this matter, is situated at 9.10m.

5. For its part, the Commonwealth asserts its statutory right as a proponent to define in its DA the precise ambit of the consent sought. In any “normal” case, any “development”, in the nature of remediation and other site works, which requires a DA, need not necessarily be approved before the DA for any construction works on the site. In assessing a DA one does not revisit/reopen an earlier consent the DA takes as a “given”.

6. This reliance by the proponent on its exclusive constitutional powers so far as site preparation is concerned clothes with hypotheses some elements of the development proposal involved in this appeal, which are not easily capable of proper assessment in the usual way under the Environmental Planning & Assessment Act 1979 (“EPAA”) s 90. The Commonwealth says that the consent authority or the Court must apply s 90 to the DA as it is presented .

(2) Heritage

7. Mr Craig, on behalf of the Council, complains that the existing cliffs on the site have heritage significance and if not excavated, would leave a topography which would ensure greater diversity and less density of residential development. In his written submissions, he described the Commonwealth’s position in regard to the remediation and preliminary site works as a “rather complicated fiction the
8. Commonwealth requires the consent authority to accept … to treat this site as a blank, post-remediation”.

9. The Court is in no doubt that the heritage and excavation aspects of the redevelopment of this site would have been, in Mr Craig’s words, “ticklish questions for the consent process”. However, this Court is not the appropriate arbiter of the validity or otherwise of the Commonwealth’s position.

10. Mr Officer points out that the Commonwealth is bound by its own environmental and heritage legislation, in particular, the Environment Protection (Impact of Proposals) Act 1974 and the Australian Heritage Commission Act 1975. He advised the Court that this site is not listed under the Heritage Commission legislation, and that the relevant Minister had made the necessary determinations under the Impact of Proposals legislation, rendering any remediation works or building demolition involved in the preparation of the site “irrelevant” to the hearing of this appeal. He submits that the Court on this appeal has no more right to review those matters than it would have to review any previous development consent for preparatory work on a site.

9. Despite the above circumstances, the Court notes that the development application and the case presented by the Commonwealth acknowledge the industrial and maritime history of this site. In essence, the Commonwealth argues that approval of this development will set the stage for a substantial improvement of the site.

10. The Statement of Issues raises the question of whether the heritage significance of the site has been properly addressed in the application. Mr Officer submitted that all the proposals that have already been agreed upon by the Commonwealth, or have been included in this DA, have been the subject of the most comprehensive study ever undertaken in New South Wales, including a detailed heritage assessment.

11. The building known as the Exhauster House is to be preserved, as is the framework of the Retort House. There was some argument about the fact that the Retort House had always been cladded and had always housed interesting machinery, but it seems to be clear on the evidence that the only real heritage item involved in the Retort House itself is its old imported “demountable” iron frame. As Mr Officer noted, the Retort House “was built to be moved”, and the only issue of heritage relevance raised by the DA, as presented, is where its old frame should be re-located on the site.

12. The old coal bunker is also acknowledged as quite significant, but apparently cannot be retained because it is highly contaminated. Notwithstanding the Commonwealth’s position, the Court received some evidence on this and other heritage aspects of the site.

(3) The Wharf

13. The development application also does not deal with the very substantial concrete wharf structure located at the mean high water mark on the Harbour periphery of the site. The wharf is owned by the NSW Office of Marine Administration and is currently leased to the Commonwealth. Upon expiry of the lease, the Office of Marine Administration has a right to require the demolition of the wharf as one option in determining its future. A separate DA ( Exhibit C17 ) has been lodged with Council for the continued use of this wharf facility for open space purposes.

14. The evidence suggests that the NSW Department of Urban Affairs & Planning (“DUAP”) contemplates that the wharf might retain some maritime use. The applicant wants the wharf retained but there is a serious issue as to the cost of its future maintenance, etc, a burden the Council does not wish to have thrust upon it. Documents tendered ( Exhibit N37 ) when the hearing was reopened on 4
15. August show that the fate of the wharf is far from clear at this stage. It is an important issue for the site but is not before the Court in this appeal.

(4) The NSW Government

15. The NSW Government’s Minister for Urban Affairs & Planning intervened in these proceedings pursuant to Land & Environment Court Act 1979 s 64(2), but led evidence and made submissions only on questions of the nature, adequacy and utility of the open space provided for in the proposal.

16. As the site is on the foreshores of Sydney Harbour, it has been and remains of considerable interest to the State. That interest has manifested in public statements and intergovernmental negotiations over the years and now underpins State Environmental Planning Policy No.56 - Sydney Harbour Foreshores and Tributaries (“SEPP 56”), which was made pursuant to the EPAA on 21 August 1998 , while the Court’s decision on this appeal was reserved.

17. SEPP 56 schedules the “HMAS Platypus” site as land in respect of which any development will be regarded as “state significant development”, for which the NSW Minister for Urban Affairs & Planning is to be the consent authority. The SEPP sets out a number of “guiding principles” relating to the planning and development of the sites to which it applies, and provides for the Minister to seek the views of the relevant Council on any particular development application it covers.

18. The transitional provisions of SEPP 56 preclude the Minister from becoming the consent authority for the development application involved in this appeal because the appeal had been made to the Court before the SEPP commenced. Those transitional provisions specify that such applications are to be determined as if SEPP 56 had not been made.

(5) The compass of the issues in the appeal

19. A significant volume of evidence was presented to the Court, including on matters touched upon above, such as heritage issues and the “starting point” topography of the site, and I acknowledge the assistance of Senior Assessor P R Jensen in my consideration of all that material.

20. As the hearing progressed the compass of the merits issues actually before the Court became relatively small, focussing mainly on issues of urban design and open space, but the underlying intergovernmental issue assumed considerable significance, namely the impact of the Commonwealth-State relationship on the planning controls under the EPAA: How is Commonwealth owned and/or administered land to be treated under State planning laws when its original Commonwealth purpose is to be changed, as in this case?

(6) “Public land”

21. The Council as consent authority has dealt with this site as “public land” and this has inevitably led to a perception and an argument that such public land should largely be “given back to the people”. A site-specific Development Control Plan (“DCP”), reflecting this position, was adopted in 1998, requiring that approximately half the site should not be built upon, so that it can and would be made available as open space for public purposes.

22. On the other hand, Mr Officer submits that the site should be treated no differently from privately owned land, as the Council’s approach benefits only nearby or regional citizens, rather than the public at large, who are the successors of the broad Australian community whose taxes paid the compensation when the site was resumed for Naval purposes in 1942.

(7) Conclusion

23. These very important underlying or background matters are not before the Court for determination, or even pronouncement, in these proceedings, but I thought it appropriate that they should be raised in this preamble to the consideration of those matters which actually do arise for the Court to deal with, however hypothetically, in determining the appeal.

24. In summary, this is a large site which will require substantial preparation for its conversion to a new non-Naval use or uses but those preparation works are not the subject of this appeal. Secondly, the amount of “public” space provided in the application is a significant issue on which the Court must strike an appropriate balance in this appeal. The Court must approach that question against the background of the commercial realities which both Commonwealth and State Governments have recognised in approaching the future of such significant Commonwealth sites, rather than any fundamental principle which flows from the Commonwealth’s long-time exclusive use of such a prime site near other public parks.

The site and its locality

25. The subject site is rich in industrial and maritime history, and its role in Sydney Harbour has been and remains of great significance.

26. In 1877 it became the site of the first gasworks north of the harbour, and that major industrial use continued until 1942, when it was acquired by the Commonwealth for naval purposes. Exhibit N1 is a series of photographs taken between 1876 and 1902; Exhibit N2 shows the site as it appeared in 1942; and Exhibit N3 shows the site as at 1982. For the purpose of the gasworks use the land was very substantially modified by excavation and benching, to accommodate a number of buildings of an industrial complexion, at least one of which was extremely large.

27. When the land was resumed in 1942 and that major gasworks building demolished, a number of Navy-related buildings were constructed. In particular, at the south-eastern end of the site, an extremely large rectangular industrial building was constructed and is known as the Royal Australian Naval Torpedo Maintenance Building or “RANTME”.

28. The Commonwealth now proposes to move its submarine operations to the west coast of Australia, and the Navy no longer has any need for this site. Its future has been the subject of public speculation and intergovernmental dialogue, and the Commonwealth now seeks development consent, presumably as a forerunner to its disposal.

29. The site, as it now stands in Commonwealth ownership, is generally rectangular in shape and occupies an area of 1.83ha. Across much of its waterfront is 3385 square metres of concrete wharf area, which is the subject of a separate DA ( Exhibit C17 ) currently before Council.

30. At an earlier stage of the site’s history, large gasometers sat on the top part of the peninsula, but some years ago that area was redeveloped for a multi-storey residential flat complex, known as “Iora”, which has views over the site to the north and down into the arm of Neutral Bay.

31. The evidence indicates that the remaining part of the High Street peninsula, as well as areas of North Sydney north and south of this peninsula, were characterised by low density residential development at between 20 and 70 dwellings per hectare. The notable exception to this is “Iora”, which has a site density of 104 dwellings per hectare.

32. Rather more useful than a verbal description of the disposition of the present and proposed buildings on the subject site is access to drawings etc which have
33. been included among the annexures to this judgment. However, it is appropriate to note that some salient features of the development are:

· the location of six-storey flat buildings against the face of the cliff immediately below “Iora” on the southern-western side of the site;
· the redevelopment of the site presently occupied by the RANTME building as low rise residential flats;
· the construction of semi-detached housing between the waterfront and the six-storey flats; and lastly
· the creation of a vegetated space running along the waterside periphery of the site, connecting to the immediately adjoining Kesterton Park.

33. In opening the Council’s case, Mr Craig indicated the Council had no wish to repeat the “mistakes”(?) of “Iora”. It would appear, however, that “Iora” was approved by the Council, indeed possibly under delegated authority. “Iora” certainly looks stark when looking at the subject site, front-on, from the wharf opposite, but when one looks from Kurraba Point, or perhaps from the open waters of the Harbour, “Iora” fits quite effectively into the backdrop of the North Sydney CBD.

34. Generally north of the site towards Anderson Park are some private dwellings with private mooring facilities. The proposed narrow strip of green open space between proposed waterfront buildings and the wharf would make a useful start to a track from Kesterton Park to Anderson Park, but, in the foreseeable future, it is unlikely that there will be access to the foreshore between the northern boundary of the site and the southern boundary of Anderson Park.

35. Generally south of the site, towards Kesterton Park, is a small but not easily accessed Council reserve, the utility and beauty of which may well be enhanced by approval of this project.

The application in more detail

36. On 19 December 1997 the Commonwealth of Australia, through the person of Mr B Blackley, presented a development application to North Sydney Council. This application anticipated the construction of 95 dwellings and other elements of the development as contained in an accompanying statement of environmental effects (“SEE”). The description of the development includes the following items:

60 units, described as the “Cliff apartments” (3 x six-storey residential-flat buildings, comprising 12 pairs of maisonettes, 24 one-storey apartments, and 12 two-storey penthouses. 18 will be one-bedroom, 20 will be two, and 22 three).

Exhibit C25

· The construction of vehicular access to the site from both the existing High Street and Kiora Close access points. (The latter was also varied - see Exhibit C15 ).
· The construction of pedestrian walkways and steps throughout the development including a pedestrian connection between Kiora Close and the Neutral Bay foreshore.
· Modifications to the Exhauster House and its use as a recreational and community facility for future residents of the development.

· Re-erection of the Retort House framework within the open space area of the site and its use as a landscape structure.
· Landscaping throughout the site.

37. The DA includes no application for subdivision.

38. Some of the DA drawings appear in Appendix 2 to this judgment.

The Council’s position

39. On 5 January 1998 the matter was advertised and the receipt of submissions by the public solicited. In addition, Council wrote to the New South Wales Heritage Office and the Australian Heritage Commission seeking comments on the application.

40. Following the receipt of a number of submissions by the public, the Council received an officer report on the 30 March 1998 recommending that the Council resist an appeal to the Land and Environment Court: By this stage the DA was deemed to have been refused, and the Class 1 application had been filed on 18 February 1998 .

41. At the 30 March 1998 meeting the Council resolved that:

· A request being made to the Land and Environment Court that the matter be heard by a Judge in preference to an Assessor.
· The process of public participation continuing after the hearing date is known.
· Council commissioning an independent traffic study.
· Council compiling a list of all affected residents.

42. By May 1998 the reasons cited by the Council for its refusal in the first instance were refined into the Statement of Issues in the following terms:

“ Urban Design and Planning
1. Whether the proposed waterfront dwellings on the northern sector of the site are appropriate or whether that part of the site should be provided for public open space purposes in accordance with the North Sydney Development Control Plan for “HMAS Platypus”, Neutral Bay.

2. Whether there is an appropriate relationship between the proposed development and the existing concrete wharf.

3. Whether the proposed developed should be approved having regard to:

(a) The visual impact of the proposed development.

(b) The relationship between the southern corner of the site and the streetscape of High Street.
(c) The setbacks proposed from the south-eastern boundary of the site.
(d) The design of buildings on the northern sector of the site.
(e) The proposed roads and traffic circulation system.
(f) The amount and quality of landscaped area on the site.
(g) The impact of the proposal on the amenity of neighbouring residential properties.
(h) The provisions of North Sydney Development Control Plan for HMAS Platypus, Neutral Bay.
(i) The provisions of cl 46 of the North Sydney Development Control Plan No. 1.
(j) The provisions of Sydney Regional Environmental Plan No. 23.

4. Whether the extent of excavation proposed is either necessary or desirable.

Heritage
5. Whether the Heritage significance of the site has been properly addressed in the application.
6. Whether the proposed development should be approved having regard to the heritage provisions of Sydney Regional Environmental Plan No. 23.

Functionality
7. Whether potential contamination of the site has been properly addressed in the application.

8. Whether the proposed spiral ramp at the northern end of the site is appropriate.

9. Whether the proposal is appropriate in terms of the likely amount of traffic to be generated and the number of car parking spaces proposed.”

The Commonwealth’s position

43. Counsel for the Commonwealth pointed out that this is simply an application to erect 95 dwellings and ancillary facilities and landscaping. As I have noted above, demolition, excavation and remediation are not the subject of the DA and are assumed to have been completed. With this in view, the Commonwealth wants (or agrees to) a deferred commencement consent , so that everyone is satisfied the site is suitable for the subject development, once the remediation has been completed.

44. Accordingly, North Sydney Council and this Court have had to consider the development proposal, on the basis of a site assumed to have been cleared of all improvements, save for the frame of the “Retort House”, and the whole of the “Exhauster House”. Demolition will include the coal bunker area and other
45. buildings, as well as some stone walls/cliffs, thought by many to have some heritage significance.

Planning Controls

45. Under the provisions of the North Sydney Local Environmental Plan 1989 as amended, the site of the “Naval Dock Yard” is zoned Special Uses 5A (Defence). No doubt in anticipation of the possibility of reuse of the site, under the Local Environmental Plan (“LEP”), this particular zone allows residential-flat buildings (and attached dwellings), amongst a number of other purposes, quite apart from the particular purpose indicated, defence. Evidently on this basis the proposed use of the site for residential purposes and as configured in the drawings in the appendix, is permissible with consent.

46. In addition to the LEP, the Council controls the design and siting of residential development through a general DCP which was adopted in January 1991 ( Exhibit N6 ). However, in January 1998 a further DCP was prepared specifically directed at the “HMAS Platypus” site ( Exhibit N7 ). That site-specific DCP came into effect on 5 February 1998 . As the diagram extracted from this document make very clear, the overt intention of the Council was to ensure that something approaching half of the site should be not built upon, so as to be available for use as open space for public purposes.

The issues clearly within the appeal

(1) Open Space

47. The DA involves an additional 5486 sq metres of public open space - 30% of the site. 4086 sq metres of that will be added effectively to Kesterton Park. EPAA Section 94, it is argued, would require only 1070 sq metres.

48. The Minister intervened in the appeal to express concerns about foreshore open space - both its adequacy and its utility - particularly the long strip of open space in the north sector of the site. Fundamentally, the Council also wants a wider “park” area on the waterfront - 35m in the DCP c.f. 10m in the DA. This would entail deletion from the proposal of the 10 waterfront residences, which, in turn, would presumably require a total redesign of the rest of the project to obtain what everyone seems to agree is a desirable “stepped” effect from the waterfront up to “Iora”.

(2) Urban Design

49. Building design/appearance in the context of nearby residences was raised as an issue. Blank wall appearance to High Street was amended during course of hearing, and the cut off of “Iora” Unit No.3’s view was also attended to in those amendments. ( Exhibit C25 ).

50. An issue was also raised alleging inadequacy of the separation of the High Street houses from the southern site boundary - 1.2m cf 3m.

The Evidence

51. Because of the unusual features of this matter, to which I referred at the beginning of this judgment, the Court thinks it appropriate to provide an extensive summary of all the evidence before it, even though it exhibits some factual inconsistencies.

(a) The Council’s Witnesses

52. The first, and a key, Council witness, Mr Terry Byrnes , is a planning consultant and architect, who lives near the subject site and had some involvement in the community consultation process in May-June 1997. He had prepared for the Council a comprehensive statement (describing the development, the history of its processing by the Council, its receipt by the public) and a commentary to amplify the issues cited by the Council as a basis for refusal.

53. With regard to the relation of the development to the proposed public open space along the foreshore and its visual impact on that area, Mr Byrnes made a number of points, of which the following is a precis:

· The proposed waterfront units dominate the foreshore at the pedestrian level by a continuous blank wall over their entire length.
· From above the residents look down directly on to that public area: the result is a “shooting gallery” of open space flanked by a wharf of unknown future and residents barricaded behind a wall of unrelieved monotony.
· The amount of landscaped space provided on the site is inadequate because of its limited area, its disposition and uncertainty as to the actual use relating to the future of the wharf.

54. On the question of the appropriateness of the relationship between the proposed development and the existing wharf, Mr Byrnes had a number of points to make, from which the following are extracted:

· The application excluded the wharf from the current site and this represents an artificial device to avoid related issues based upon future divided responsibility for the structure below the High Water Mark.
· The proposed use of the “foreshore” as a continuous public access is totally frustrated by its division from the water, if there is to be use of the wharf for some non-open space purpose.

55. Discussing the relationship between the southern corner of the site and the streetscape of High Street, Mr Byrnes made the following points:

· The Council’s site specific DCP contains an internal contradiction. This has resulted in the development being proposed at a greater height at the street frontage than would be permitted normally.
· The presentation of a predominantly blank facade to High Street makes the proposal unacceptable.
· The non-compliance in terms of height would perhaps be acceptable with a more appropriately detailed residential facade to the street.

56. On the provision of setbacks, as provided under the Council’s site specific DCP, Mr Byrnes noted the following:

· The south-eastern building in the development is set back less than half the required 3 m over a distance of 20 m with no landscaping.
· Relative to the adjoining building at No. 140 High Street, there is an actual separation of 4 m.
· Overshadowing is contributed by the non-compliance with setback, although it is conceded this is less than from the existing building.
· Overshadowing should be considered as if the existing building did not exist.

57. Mr Byrnes was critical of the staircase access in the northern sector of the site, involving a rise of 20 m. In particular, he was critical of the decision to create a large independent structure to provide such a staircase access.

58. Conceding that the residential amenity of “Iora” which would be largely preserved by the proposal due to its lower height, Mr Byrnes criticised the proposal as relating too closely to “Iora”. In this context, describing the results as involving “a continuous form of development”, he also criticised the proposal as involving an unacceptably large foreshore development. He referred to the waterfront houses as being uniformly spaced at a consistent setback from the foreshore and involving a regimented building layout. This, he said would result in “devastation of a highly visible site” and achieve development that
59. “enshrines the repetitive and boring aspects of the lack-lustre industrial buildings”.

60. He criticised the absence of landscape planting between buildings, saying it reflected the general shortfall of open space within the site. Further, this contributed to the “excessive density and scale of the buildings proposed”.

61. With regard to the impact of the proposal on the amenity of neighbouring residential properties, Mr Byrnes reiterated his criticisms of the reduced setback along the southern boundary of the site and associated excessive height. He was also concerned at the possibility of overlooking of neighbouring properties associated with the extensive network of stairs for public use proposed along the northern boundary. Turning to the implications of the extent of excavation proposed in the development and the consequential visual impact of development on its surroundings, Mr Byrnes made a number of comments:

· Re the southern site adjoining High Street, Mr Byrnes conceded that this could be seen as coming “closest to being satisfactory and conforms closely to the expectations under the controls”. However, he reiterated the need for alleviation of impacts and improvements to the design. In this context, he was critical of the curved roof forms as being at odds with the traditional roofing of the buildings opposite and in the vicinity, associated with a Conservation zoning under the North Sydney LEP .

· Re the northern site, Mr Byrnes was critical of it as paying “no respect to the site as a formation and heritage item” and falling “well outside critical Council requirements under its DCPs”. Further, he was of the opinion that it was contrary to the objectives of State Regional Environmental Plan No. 23 .

· Re the proposed taller buildings adjoining the cliff face, Mr Byrnes said that excavation was predicated on the need for abatement of contamination of the site by the previous industrial use. In this context, he said there was nothing
· to suggest that the extent of excavation proposed would be either too much or too little and said that excavation provided no solution to contamination generated by the adjoining site, “Iora”.

61. Mr Byrnes was critical of the extent to which the cliff face would be obscured by new development. In particular, he criticised the visual conjunction of the proposed development with “Iora” above and described it as involving “one cascading development on the foreshore rising to 12 storeys”. Beyond this, he was critical of the parallel disposition of the blocks of development in this part of the site. In this regard, he observed that the 10 units along the foreshore created obstruction of direct Harbour view for 26 of the studio apartments and at least 7 apartments above.

62. Referring to the issue of road and traffic circulation and the proposed spiral ramp system at the northern end of the site, Mr Byrnes was critical of the proposed carriageway width as being inadequate. In particular, he pointed to the narrow bend located south of Hipwood Street and its requirement to cope with a volume of traffic generated by the proposed development substantially greater than at present.

63. From this basis, Mr Byrnes went on to criticise the residential density proposed in the subject development. In this context, he referred to dwellings in the locality as involving densities of approximately 20 dwellings per ha to be compared with the density of the proposed development at 52 units per ha. He noted that “Iora” represented an exception involving, he said, 81 units per ha.

64. Addressing the provision of carparking facilities on the site, Mr Byrnes described the development as involving “vastly insufficient parking for visitors”.

65. Referring to the heritage significance of the site, Mr Byrnes also examined whether the proposed development should be approved having regard to the
66. heritage provisions of SREP No. 23. In this context, he observed that the heritage significance of the site seemed to have been ignored, particularly concerning with the extent of excavation proposed. Mr Byrnes was also of the opinion that the war-time role of the Submarine Base and its continuing significance to the Australian Navy had been given no recognition at all.

67. Looked at in the context of the earlier use of the site by the Gas Company, he was also of the opinion that the coal loading tunnels, representing a most significant relic on the site, had been noted as optionally retained and then disregarded.

68. Finally, Mr Byrnes considered the extent to which site contamination might be seen as requiring demolition. In this context, he expressed the opinion that remediation of the site would be appropriate before any development application was considered and consent issued. This would allow the extent of excavation required for remediation purposes to be justified.

The under-provision of open space and its disposition is grossly remiss. The obviousness of the site from the Harbour makes this under-provision even more damning in such circumstances…At the high levels of residential density proposed the traffic volumes as estimated are even by the applicant’s own standards at the margins of acceptability and reliant upon the implementation of necessary traffic adjustments within High Street…

There is no doubt that some concession with respect to height provisions under draft 2(c) zoning is in order and acknowledged in the site’s specific DCP which on the northern sector provide some screening of the ugly cliff face; but without losing the essential expression of the cliff line as part of the heritage quality of the site. The applicant chooses to further insert low rise structures at the foot of that high rise screen, at the expense of open space and setback of development from the water. The end result is a repetitious, boring and totally inappropriately conceived development; one that owes more to the process of extrusion than urban design. It combines the worst features that characterise the unwanted industrial buildings on the site while ignoring the essential grain of the immediately adjacent foreshore developments to which it must relate. Regrettably, the strongest visual relationship will be with the “Iora” residential-flat development rising above the proposal. Thus when viewed from within Neutral Bay or the opposite shore, the combined effect is that of an avalanche of development from a height of five to seven storeys above the cliff to the water line. A built foreshore building development up to twelve storeys in height and 170 to 180 m long is anything but what contemporary expectations would justify for any North Sydney Foreshore.

The applicant has brought before the Court an application that with minor amendments would prove satisfactory in relation to its southern sector, but is otherwise totally inappropriate.”

69. Professor G P Webber is an architect and town planner, who lives elsewhere in Neutral Bay. He addressed the issues relied upon by the Council as justification for its refusal of the project:

Issue 1 - Urban Design and Planning
· The future of the wharf is undetermined and there are various goods reasons in favour of both demolition and retention. It must be assumed at this stage that the adequacy of the open space could only be assessed in its own right without the wharf.
· Conformity with the DCP would obviously preclude the possibility of any buildings in the area occupied by the “wharf front houses” along the foreshore.
·
· Spaces along the foreshore would be directly and closely overlooked from the courtyards of 10 townhouses and from their first and second-storey balconies and windows, affording no opportunity for privacy for the public. The nature of planting would tend to reinforce the appearance of it being part of a private waterfront estate.
· Good planning precedents suggest that residential accommodation should be between 20 and 30 m away from adjoining park land.
· Cremorne Point Reserve provides approximately 30 m in depth in a similar context.
· Public Open Space with a depth of 10 m would fall well short of a desirable quality.

Issue 2 - Relationship between the proposed development and the wharf
· Without knowledge of the future of the wharf there are many significant imponderables.
· It is unreasonable to expect the Court to determine the application without any knowledge of the future of this critical element in the environment.

Issue 3(a) - Visual Impacts
· Major adverse visual impacts will be those from the water and nearby foreshores.
· The applicant’s approach has not translated into integrating the site with adjacent residential areas.
· The visual character of the existing houses is very different from that proposed or that which could be achieved in the new development.
· Regularity would tend to produce a somewhat institutional character in a water front which is otherwise characterised by irregularity and diversity.
· The overall appearance seen from the Harbour and foreshores would be of a massive wall of buildings six storeys high on the subject site, surmounted by the already very prominent bulk of the six and seven-storey high “Iora” units.

Issue 3(b) - High Street Streetscape
· Units on the southern part of the site are an appropriate response in general although there are reservations.
· The units that abut High Street are rather uncomfortably truncated and require some reconsideration.
· The pergola type structure to the street front “gate house” unit involves overshadowing impact.

Issue 3(c) - Setbacks from the south-eastern boundary
· Setback along the southern boundary should at least match that of the neighbour to No. 140 High Street. This will reduce privacy and overshadowing impacts.

Issue 3(f) - Amount and quality of landscaped area on site
· The total landscaped area at 48% of the site is substantially below the LEP requirement and reflects the undue dominance of the building mass.
· The area of 1400 m2 the applicant offers to dedicate in lieu of the Section 94 Cash Contribution is no more than a narrow walkway.
· The 4086 m2 proposed for dedication would represent in effect the remainder of the open space along the foreshore as defined in the development application drawings (approximately 30% of the total site area).

· This land is already in public ownership and would involve a transfer between the Commonwealth and the State.

Issue 3(h) - The Provisions of “HMAS Platypus” DCP
· The development falls far short of achieving the objectives in relation to visual amenity, residential character and scale, massing and form of the proposal.
· In regard to land use the application disregards the development control plan in relation to the northern part of the site.

“I consider that the application should not be approved by the Court, the primary reasons being related to inadequacy of foreshore open space, the difficulties which arise in fairly assessing the application without the future of the existing concrete wharf being resolved and the excessive visual bulk of the development as perceived from the water and nearby foreshores. The spiral ramp at the northern end of the site is unsatisfactory and requires fundamental reconsideration rather than design amendment.”

71. In response to questions in cross examination, and taken to the example of Cremorne Point, Professor Webber conceded that it was typical of peninsulas that they had large spaces at the tip associated with narrow access paths. He also agreed that such pathways were frequently used for jogging and pedestrian access. In addition, he conceded that the 10 m dedication proposed provides a similar width to the pathway on Cremorne Point giving access to the land at the end of the peninsula. However, he was concerned that because of the elevation of terraces associated with the waterfront houses, this would involve substantial overlooking of the space proposed.

72. Professor Peter Droege provided a short statement of evidence from which a few points are extracted as follows:

· The proposal is extremely dense and the site is visually encumbered by other recent developments.
· It would be appropriate to avoid the appearance of a solid mass of buildings in this special spot.
· A strong disconnection from the “Iora” development above is appropriate.
· A reduction in site density would be necessary to maximise a sense of openness, accessibility and greenery.
· The ten units currently proposed for the foreshore are too close to the water edge for a useful public space to emerge.

73. Mr Alexander Tzannes , architect, provided a short statement of evidence which in large measure supported the position of the three previous witnesses. At a later stage and in response to questions, interestingly, Mr Tzannes was not able to subscribe to the description of the development as “boring, repetitious and involving a process of extrusion as a substitute for urban design”.

74.

Dr Richard Lamb

“It has been argued by the applicant that this change is for the better, ie that there is intrinsically higher scenic and aesthetic value in residential development of the site compared with the existing maritime uses. This is a proposition that is arguable to say the least. I will argue that a continuing presence of the working character of the Harbour balanced with improved amenity, genuine and guaranteed public access to the waterfront, appropriate and accessible landscape works and appropriate residential building form and massing would be an appropriate aesthetic improvement to the site. However, I do not consider that this scheme comes up to this standard and I also consider that there are too many opportunities missed and questions unanswered as regards the function of the critical landscape, waterfront and connection to other open space reserves.”

75. Dr Lamb’s statement of evidence contains an annexure which explains the process that he uses to assess the implications of a site and its development in visual terms. His conclusions in regard to this development are expressed in the following table:-

EXTENT OF VISUAL IMPACTS

FactorExtent of Impact

Change in intrinsic visual character of the site.Moderate - High.

Change in the visual character of residential land of the Bay generally.Moderate.

Change in the visual character of the Bay and waterway taken together.Moderate - High.

Visual absorption capacity.Moderate.

Overall extent of visual impact.Moderate.

76. On the basis of that summation Dr Lamb provided a number of comments on the issues in the case relating to visual impact, including the following:

· A major cause of impacts will be the design and location of elements of the scheme.
· The repetitious nature of the buildings, and the unrelieved horizontal and vertical extent of them will be the basis of this concern.
· The inclusion of the wharf in the scheme gives a false impression of the degree of open space that the development would enjoy.
· The landscaped scheme for the development itself is also rather fanciful.
· It is not either feasible or necessary to screen architecture that is worth designing on the Harbour Foreshore nor is it realistic.
· The general aims of SREP 23, in particular 2(1)(c), (e) and (i), are relevant to this issue.
· The development proposed does not meet any of these objectives.
· The value of the place would be diminished by the excavation and removal of the last coal bunker and an extensive area of the cliff face.

77. In response to questions, Dr Lamb made it clear that he had not assessed the development in architectural terms; his interest was purely in the physical
78. relationships established between the development and its surroundings. He conceded that his scientific approach to visual assessment was not to be seen as expressed in terms of “visual perception”, confirmed his concern at the loss of “vibrancy” on the foreshore, and added it was the “sameness” and monolithic character of the proposed development that was a concern in terms of its visual impact. He also considered that landscaping proposed for the development would not achieve the appropriate level of amelioration of what would be seen.

79. Mr Lester Tropman is an architect, whose evidence was directed in the main to the heritage value of the site, the impact of the proposed development, and the significant themes associated with the site, such as its maritime industrial antecedents, topography, the structures located upon it and finally the impact of a new development on the integrity of the site:

· The cliffs and platforms are significant remnants of the gasworks and the amount of excavation work proposed appears to be for the benefit of the new building proposal rather than necessary remediation.
· The proposal relates to excavated levels and property boundary lines rather than to the existing topography.
· The Exhauster House is retained but will be submerged behind residential buildings. Its gabled roof should be reinstated.
· The Retort House is supported on a masonry base and its steel structure is protected by cladding—when re-erected it will be a lattice work element devoid of its previous form and become a sham or conceit and will probably quickly erode away in the exposed marine environment. Some of its fixtures and fittings could have heritage value.

79. The Council also called a number of residents to give evidence, namely Mr Robert Norman (Unit 48 of “Iora”), Mr Warren Lewis (5/105 High Street), Mr Denny Linker and Ms Carol Baker (114 High Street):

· While Council did not press traffic as an issue, Mr Norman is concerned at the potential injection of vehicles into the already crowded peninsula and that this would have implications for access along High Street.
· Mr Lewis had been a member of the consultative group established to consider the development application, but considered that the consultation process had been “manipulated”. He was critical of the accuracy of minutes provided following meetings of this group; he considered that it had lacked appropriate control, and that there had been clear pressure to avoid dissent amongst the members.
· Mr Linker expressed his preference for the whole site to be open space, but considered that a reasonable “fall back” would involve a minimum component of such space set at 30%. However, he was not prepared to agree that 30% of the site could be seen as a reasonable allocation on the basis of its disposition within the development. In this context, he believed that a 100 ft (33 m) foreshore reservation could be seen as appropriate. In this same context, he referred to foreshore sites as being “as scarce as hens’ teeth” and this could be seen as representing a regional issue. Mr Linker was also concerned with traffic impact, not only in terms of access to the peninsula but also relating to circulation within the site. He was of the opinion that it was both monotonous and repetitious and in that regard could be regarded as the “toaster” of Neutral Bay.
· Ms Baker , a former Mayor of North Sydney, was also concerned at the extent of open space and considered that the houses provided along the foreshore represented an “ambit claim” on the part of the Commonwealth. She was of the opinion that a 100 ft strip along the northern part of the development was reasonable and a proper reflection of increasing public demand for open space. In this context, she characterised the Commonwealth as operating in “greedy developer” mode, and said that the density of the development was far more than would be expected on such a site.

(b) Evidence from the State Government

80. Mr Galasso relied on reports from Mr Peter Olive , an Executive Director of DUAP, and from Dr Deborah Dearing , a Manager from the Department, who also gave oral evidence. Dr Dearing’s report was directed at the significance of the waterfront location and the adequacy and utility of the open space proposed to be provided as part of the development. She was critical of the effective area of the space proposed to be provided for the public, not so much in terms of its size but related to its utility. She had concluded that of the 3,300 m2 provided, only about 600 to 700 m2 would be recognisable as public green space and used for that purpose. This was to be compared with the useable area of the adjoining Kesterton Park in the vicinity of 4,350 m2. In this regard, she observed that approximately a third of the green space provided would be useable only as an access route between Kesterton Park and the site itself.

81. With regard to the area at the northern end of the site flanked by the wharf, Dr Dearing was of the opinion that this “long thin space in front of the houses” would be unlikely to be used by anyone other than the residents whose houses would directly front onto it. She considered the area to be provided as uninviting and one which would create doubts as to ownership. In this context, she also noted that given that access to it was “single ended”, it was also doubtful if the public would venture past private frontages. She said that there were many examples of narrow foreshore strips where this problem of public versus private ownership could be observed around Port Jackson. Her solution to this perceived problem was to propose that the residential units adjoining the waterfront strip should be reduced by six and that the open space thereby made available could then be used to augment the elongated land adjoining the wharf.

82. The principal purpose of Mr Olive ’s evidence would appear to be to alert the Court to the implications of SREP 23 and a draft DCP which was in the process of development as a supplement to the SREP. In this Development Control Plan, guidelines for redevelopment sites included ambitions:

· To ensure continuous and inviting public access to the foreshore.
· To identify suitable areas that can be conserved and made available to the public.
· To provide public road access to the foreshore park when a park is being provided.

“Any development must include substantial public foreshore of high standard promoting active public use. It should not have private development directly abutting a public pedestrian “strip” but involve an attractive transition between private development and public foreshore (such as a public street).”

84. Finally, Mr Olive referred to the Government’s announcement of March 1998 in which new arrangements for the administration of the shores of Port Jackson were set out. These would include consolidating the planning and consent powers of Local Government areas abutting the foreshore under the aegis of the Minister for Urban Affairs and Planning. In addition, a single Foreshore Management Authority would be established to replace all existing Corporations and Authority Boards. Mr Olive also referred to the intention to have “sites of State significance” not involving the City of Sydney declared as a part of this process. (The Court notes that SEPP 56 has since been gazetted in furtherance of some of these objectives).

(c) The Commonwealth’s case

85. Mr William Morrison is an architect principal of the partnership Conybeare Morrison. His statement of evidence explains the background to the application and subsequent dispute, identifies the persons involved in the development team, and refers to the “Urban Design Report and Development Proposal” which had been presented to the North Sydney Council in December 1997. ( Exhibit C4 ). This substantial and comprehensive document combined an environmental study, strategic plan and development proposals. It set out a comprehensive array of principles as the basis for the development proposals that had arisen. In addition, the strategy diagram which was also apparently a direct response to these principles, has been extracted for reference purposes and is annexed with other drawings, etc.

86. The development principles are appropriately included here, on the basis that they provide the rationale for the strategic approach applied in the development plan, and further explain the dichotomy as between the applicant’s approach to the site and the Development Control Plan adopted by the Council:

Control vehicular access	Maximise water access
Supply all carparking	Reinforce established building line
Allow pedestrian movement	Adopt sound ESD principles
Enhance built form	Retain cliff face
Allocate open space	Maintain density
Extend landscape	Manage ownership
Balance land use	Development process
Conserve past heritage	Ensure public accessibility
Respect land form	Provide disable access
Optimise views

87. Directly associated with the development of the strategy plan were specific design principles which included:

· Setting - Respect the strength and beauty of the sandstone rock faces. Provide landscaping which reinforces the dramatic vertical forms of the cabbage tree palms and pines against the rock faces.

· Scale - Ensure that the scale of the new development is of a suitable large and bold form which captures the waterfront spirit of the place and is not overwhelmed by the sandstone rock faces.

· Massing and Form - New buildings should have a horizontal form and the massing should be broken to allow for landscaped areas to connect through to the waterfront.

· Proportion - Ensure the development respects the massive proportions of the rock faces and has regard to the architectural character and style denoting waterfront activity.

· Detail - Develop a level of detail that reflects the energy and diversity of shipping and waterfront activities.

88. The strategy plan as applied to the development proposals was said to embrace a number of features. From this list particular elements can be extracted as relevant to the dispute that is before the Court:

· Provision of waterfront open space and an extension to the neighbouring parkland.
· Development of an integrated system of pedestrian access to and along the foreshore.

· Retain certain heritage items.
· Integrate the site with its surroundings through landscaping.
· Articulate the built form to relate to adjacent properties.
· Achieve environmental improvements to surroundings.
· Provide a public access road from High Street.

89. Mr Morrison’s statement of evidence provided both a direct response to the issues raised by the Council as a basis for its rejection of the development application, and a case in justification of the proposal. The following important points emerged from his evidence:

· The discernible rock ledge under the RANTME building guided the open space design he arrived at.
· “Iora” is “stark in the landscape” but the cliff apartments are designed to be a backdrop building behind the waterfront dwellings, which are an important continuation of the form of waterfront development already nearby. The “incongruous and stark” “Iora” project will benefit from the stepped-down development to the wharf.
· He considers the 10m strip and 5m garden area adequate for access, landscape and passive recreation enjoyment of the waterfront area.
· During the hearing he redesigned the controversial northern “spiral” to close up its open concrete look and make it blend better into the cliff. ( Exhibit C15 ).
· He also redesigned some features to rectify the adverse effect the proposal had on the views from unit 3 of “Iora”, and to improve the frontage appearance to High Street. ( Exhibit C25 ).
· The project was not designed to require excavation, but designed on the basis of combining his team’s ideas with a knowledge of the Commonwealth’s remediation plans. He agreed in cross-examination that substantial bulk earthworks were required and had been included in the Commonwealth’s works.

· He carried out his own heritage investigation, as well as relying on other sources. He conceded that he had identified the cliff edge as significant at an early stage, but he was then informed that it was to be affected by remediation works, to ensure that flows were trapped on the boundary.
· The Gate House has some streetscape merit, but has been significantly modified and is better replaced.
· The Council’s site-specific DCP was very late - it came to light only when the development application had been finalised and lodged.

90. The next Commonwealth witness, Professor Phillip Cox , had prepared a statement of evidence in support of the project and in particular directed at its urban design. In response to the criticisms contained in the Council’s statement of issues, a number of points can be extracted from Professor Cox’s statement as follows:

· The two-storey waterfront architecture to the north of the site has been continued on the subject land and is sympathetic to that environment.
· The development to the west of the site against the cliff face does not rise above Kiora Close and does not interfere with the views and amenity of the area.
· The development as seen from the public access points will be seen as minimal development and with the proposed landscaping would be seen as an integral low scale development of the Harbour foreshore.
· The proposal allows for public access and parkland continuing the existing Kesterton Park headland with that of Neutral Bay. Access along the development between Adderstone Avenue and the waterfront is not permitted due to private ownership, however a staircase has been provided to Kiora Close to allow a continuous walk from north to south along the foreshore.

·
· The development always conforms to the height controls and is well within the envelope of existing buildings.
· There are no problems of scale as stated between the northern development and that of “Iora” itself, and sensitivity has been shown in High Street by reducing the scale to two to three storeys compatible with the existing residential scale.

91. Professor Cox provided the following summary of his perceptions of the proposed development:

· The visual impact of the proposed development is minimal…the proposal is modest in scale and is sympathetic to the environment, both from land and water.
· The development is sympathetic to the character and scale of the existing architecture and streetscape of High Street.
· The design of buildings on the northern sector of the site is compatible with existing residences.
· The development is sensitive to the scale imbalances in the existing rock escarpments and resolves the gradation of scale in a sensitive and appropriate way.

92. In response to questions, Professor Cox amplified his use of the expression “almost too modest for the site”, and explained that this was associated in the main with the height of the proposed development. In particular, it was his belief that the residential-flat blocks adjoining the cliff-face could have extended above the walkway bounding the “Iora” site, but he later agreed that, in a political context, such an intrusion into the views of flats in the “Iora” development would not be seen as desirable. In relation to the contention that the development could be seen as ‘boring and repetitious”, Professor Cox pointed to Georgian terraces or Victorian terrace design as an indication that straight lines do not necessarily provide a boring urban design solution. In regard to the facade design of the south block, as it related to the streetscape,
93. Professor Cox conceded that a better design solution in detail would have been appropriate.

94.

Dr

Alexander Cuthbert

“The applicants propose to transfer 30% of the site into public open space which seems a reasonable figure given the adjacent developments…within an urban context 30% of a site given over to public open space in addition to landscaping and other amenities is quite generous.”

94. In relation to the question of open space associated with the northern part of the development and whether it was appropriate for low rise dwellings in this area to be removed, Dr Cuthbert made the following points:

· Buildings in this locality would seem to be appropriate because they are virtually invisible from any point except the other side of the Bay.
· Buildings in this location do not occupy waterfront areas to the exclusion of access as do other residential developments in the area.
· The scale and character of buildings is in keeping with the adjacent areas.
· The foreshore buildings soften the visual impact of the six-storey buildings behind creating a graded visual aspect to the water’s edge.

95. With regard to visual impact, Dr Cuthbert made the point that “Iora” presently provides accommodation for over half the current population of the peninsula. He was of the opinion that the residential density of the proposed development appeared to be significantly lower than that associated with a large proportion of development on surrounding residential land. “Iora” involves 104 dwellings per hectare, whereas the development application subject to appeal involves 64 dwellings per hectare.

96. Dr Cuthbert would not wish to see the “Iora” development replicated because of its visual prominence, but he denied that the development proposed, lying as it does in front of the “Iora” complex, would emphasise its prominence. On the contrary, he considered that a gradation of building from the waterfront to the “Iora” development would be beneficial.

97. Ms Julie Bindon , a planning consultant, had prepared a comprehensive statement of evidence which in most respects proved complementary to statements by other witnesses supporting the applicant. Her evidence was particularly relevant to the question of provision of public open space.

98. In Ms Bindon’s opinion this part of the North Sydney Local Government Area (“LGA”) could be seen as very well served with open space. In this context, she was of the opinion that providing more open space than that proposed in the project was unreasonable and that the amount and disposition of space as presently proposed could be seen as generous.

99. Ms Bindon noted the standard contained in the Council’s Section 94 Contribution Plan, 26.7 m2 per resident, represents the current provision in the North Sydney LGA. On an assumption that there was likely to be an increase of 2,000 persons in the LGA, this was seen as generating a demand for an additional 5.34 hectares in the LGA, a proportion of which was anticipated to be provided by transfer of land by the State Government. This would include Luna Park and foreshore land adjoining railway reservations, together with surplus Roads and Traffic Authority land adjoining the Freeway. As a result of this, the area to be provided through EPAA Section 94 contributions would be reduced by 4.3 hectares to a total provision of 1.04 hectares. Again, relating this to the anticipated population growth of the LGA of 2,000 persons, this would translate into 5.2 m2 per additional person in any new development.

100. Ms Bindon then applied this figure, 5.2 m2 per person, to the proposed development and said this led to a requirement of 1071 m2 of public open space. This could be compared with the actual provision in the development of 5486.3 m2 which constituted over 500% more than would normally be required under the Section 94 Plan. In addition, the amount of space provided, when divided by the anticipated resident population of the development, would give a space standard of 26.63 m2 per resident. This she said was consistent with the rate currently applying to existing development throughout the LGA.

101. Ms Bindon noted that the Council’s DCP for “HMAS Platypus” site appeared to provide for 44% of the site to be used for public open space purposes. This would equate with an of 8147 m2 and represented a 760% increase over what would normally be required under the Section 94 Plan for new development in the Council area.

“The proposed development complies with the aims, objectives and special provisions of the relevant planning controls and is a reasonable development in environmental planning terms. It is not incompatible with other developments in the locality and would not adversely effect the amenity of the area or significantly affect in any adverse way the amenity of adjoining properties. On the contrary it will, in my opinion, provide a number of benefits to the amenity of adjoining properties and to the community in terms of additional high quality foreshore open space and improved scenic quality of the Bay.”

103. The suggestion that the open space, to be provided at the northern end of the site, could be seen as “visually mean” was not accepted: On the contrary, Ms Bindon said that the 10 m width as proposed could be seen as perfectly acceptable for the uses intended. This was to function as a local park as opposed to a regional park, involving a high amenity derived from its
104. orientation towards the waterfront. On the basis of the s 94 plan formula the waterfront strip need be only 5-6m wide.

105. Emeritus Professor John Haskell had prepared a statement of evidence from which a number of points are extracted as follows:

· The provision of a series of five waterfront duplex dwellings is sensible and appropriate.
· The provision of 35 m wide “possible open space” as indicated on the DCP for “HMAS Platypus” is both excessive and unnecessary.
· Adequate open space for organised games etc is already available nearby in Anderson Park.
· It would be ridiculous to duplicate such facilities immediately fronting the cliff buildings.
· A 10 m broad band of landscaped open space gives an attractive and generous green edge to the scheme.
· The carefully modulated and articulated architecture of the proposal together with the striking skyline of the “Iora” development behind will combine to create a building ensemble that will be exceptional for Sydney.
· This is an exciting and unique comprehensive urban design proposal which has the capability of making a signal contribution to the achievement of the “richness” in residential development sought by North Sydney Council.

105.

Ms Oi Choong

“The landscape proposal for the development provides for substantial aesthetic environmental and recreational benefits not currently enjoyed on the site. There is adequate landscape area to provide a quality environment and the landscape areas and built form are integrated into an aesthetically and environmentally pleasing composition…an increase in the landscaped area especially of the public parkland, would not alter the recreational and environmental benefits provided in this scheme. However, ensuring a high quality design of the parkland and a sustained maintenance programme will make a difference. An enduring memorable parkland legacy can be achieved by imaginative design. Integration of the built form from the landscape, realistic funding, clear guidance from the Council and commitment to the on-going maintenance and management of this newly created foreshore resource.”

107. In response to questions, Ms Choong said she considered the 10m strip of land proposed behind the wharf could be seen both as a link and as a destination. In this context, she did not believe that a greater width could be seen as desirable because the points of public interest on the peninsula could be seen as the headland and Anderson Park at the back of the Bay.

108. Mr Donald Godden a heritage consultant, was called to give evidence on behalf of the applicant. He confirmed that the Retort House had been seen as having historical significance principally because of its prefabricated cast iron frame. In this regard, Mr Godden said that its fabric was more significant than its current location or cladding. It had been built to be moved, and the present cladding was not seen as having any historic worth. Mr Godden had once considered the “rock-faced cliffs” as having high heritage value, but after further investigation he was no longer of this opinion.

109. Mr Neil Ingham , a consultant town planner, had prepared a comprehensive statement of evidence, and provided extracts from relevant maps. Referring to the application of the SREP 23 directed at Sydney and Middle Harbours, together with the associated DCP prepared in 1990 and its more recent draft replacement, Mr Ingham noted the requirement to provide a master plan or development plan for each site. As he pointed out, this was the derivation of the DCP prepared by the “HMAS Platypus” planning team which was presented to the Council as a part of the development application documents. In this same general context, Mr Ingham described the evolution of North Sydney Council’s own DCP for the site and provided a drawing to show the salient differences between the two control plans emanating from these two sources.

110. As a prelude to his consideration of the issues raised by the Council as a basis for refusal, Mr Ingham had extracted from the Council’s DCP the following objectives:

"(i) That the overall visual amenity and appearance of the Neutral Bay foreshore and streetscape of High Street are enhanced.

(ii) That residential development on the site contributes to the “richness” in residential development in the area.

(ii) That the scale, massing and form of development on the site reflect the prevailing character of existing residential development along High Street and abutting the foreshores of the surrounding peninsula (excluding “Iora” which is not considered characteristic).
(iii) That a substantial portion of the foreshores of the site be retained in public ownership as a park and that opportunities be created for public access and pedestrian connections across the site and to foreshore public open space (eg Kesterton Park) in the surrounding area.

(ii) That the existing wall structure, if retained, be utilised for waterfront activities (such as boat storage, launching) which are compatible with recreational uses along the foreshore open space area.

(ii) There is sufficient provision of on-site car parking to cater for the carparking requirements of future residential development.

(ii) That items and aspects of heritage significance be appropriately incorporated in future development on the site.
(iii)

(ii) That the site be remediated to appropriate standards.”

111. In addition, as a useful aide memoir, Mr Ingham had provided in his report a tabular presentation of the area consumed by various components of the development, together with an analysis of the percentage of the total site:

Proposed Development

Ref.	Land Area	Proposed Use	% of Site
A B	866.3 m2 1285.8 m2	· Waterfront Houses: 4 semi-detached dwellings · Waterfront Houses: 6 semi-detached dwellings (all @ 3 storey and 4 bedroom)	4.62 10.51
C	5320.5 m2	Cliff-face Dwellings: · 24 (2 storey maisonette and loft apartments on the lower levels: 6 @ 2 bed + 18 @ 1 bed) · 24 (single storey apartments on the central two levels: 10 @ 3 bed + 14 @ 2 bed) · 12 (2 storey penthouse apartments on the upper levels: all @ 3 bed)	24.98
D	3753.5 m2	High Street Dwellings: · 1 (attached 2 storey, 4 bedroomed house on High Street) · 9 (attached townhouses of 2 storey plus attic in the middle zone: all @ 3 bed) · 3 (single storey apartments adjacent to the High Street: all @ 3 bed) · 12 (single storey, waterfront reserve apartments 6 @ 4 bed + 6 @ 3 bed)	19.91
E1	1400 m2	Public Open Space: · Dedicated in lieu of, and in addition to s 94 contribution requirement of 1099 m2, (see Section 5.2.6).	7.6
E2	4086.3 m2	Other Open Space	22.27
E3	1637.6 m2	Public Road	8.92
TOTAL SITE	18,3050 m2	100%

“The indicative uses map provided with the DCP seems to suggest that approximately 51% of the site should become public land including a foreshore open space with an average width of approximately 35 m. The DCP effectively prohibits the row of proposed waterfront dwellings between the residential-flat building and the waterfront…the line of two-storey dwellings between the wharf and the six-storey cliff-face residential buildings is an important urban design element in reducing the scale and bulk of the proposal providing a varied and stepped form of residential development. …I do not believe there is any reasonable planning justification for the provision of open space as indicated in the Council’s DCP for the site. The width of the proposed public open space and the landscaped treatment of this area is substantial enough to allow the free movement and flow of people and the numbers that could potentially be anticipated to be attracted by the proposed site and the locality generally. The proposed public open space will provide excellent continuous views to Neutral Bay and the Harbour.”

“The proposed development is consistent with the character of surrounding development and presents an appropriate relationship to the waterfront and to adjoining and adjacent residential uses…the existing appearance of the site both from the landward side and from Neutral Bay and the Harbour will be greatly improved by the proposed development with the removal of the massive building structures which currently dominate the site and the waterfront, with a residential development that steps back up the site in a manner that is consistent with surrounding development.”

“The proposed development provides an important transitional built form in the locality which provides waterfront dwellings within close proximity to the foreshore, scaling up to the larger residential buildings which seem to dominate the ridge line of Neutral Bay and the surrounding locality.”

“I cannot understand how any perceived minor deficiency of landscaped open space could bring about any adverse impact on residents of the proposed development or those of the surrounding locality.”

117. Discussing the impact of the development on the amenity of adjoining owners, Mr Ingham made a number of points:

· The proposal will substantially improve the views for adjoining properties to Neutral Bay and the Harbour.
· It will substantially improve solar access to surrounding properties and reduce the extent of overshadowing.
· It increases the setback of buildings from adjoining properties and provides appropriate separation in terms of privacy and overlooking.
· It provides a use, scale and bulk of development for the site that is consistent with the surrounding development.
· It provides public access to a substantial area of continuous foreshore open space for use by residents of the development, surrounding locality and visitors to the area.

· Indicative Uses map comparing the DA proposal with the site-specific DCP;

and then:
· a one page extract from Council’s site-specific DCP; and
· a photographic impression of the proposed development in its setting

Following the Annexures, are two Appendices :
· Appendix 1 - Extract from Technical Bulletin No.3 (one page)
· Appendix 2 - A selection of 10 Drawings from the DA.

Orders

158. The orders of the Court are as follows:

1. The appeal in matter No.10106 of 1998 is upheld .
2. The development application DA 1725/97, for 95 dwellings, on the site known as the “HMAS Platypus” land, is determined by the grant of consent , subject to the provisions of s 91AA of the Environmental
3. Planning & Assessment Act 1979, and subject to the conditions set out in the Attachment to this judgment.
4. The exhibits may be returned, with the exception of N16, N35, N37, C15, C17, C22 and C25 .

159. In accordance with the usual practice there will be no order as to costs.

I HEREBY CERTIFY THAT THIS AND THE PRECEDING 55 PAGES ARE A TRUE AND ACCURATE RECORD OF THE REASONS FOR JUDGMENT HEREIN OF THE HONOURABLE JUSTICE T.W. SHEAHAN.

Associate:
Dated: 14 October 1998

ATTACHMENT
CONDITIONS DOCUMENT

Conditions imposed on consent granted by the Land & Environment Court of New South Wales IN MATTER 10106 OF 1998 to Development Application DA 1725/97 made by the commonwealth of australia to north sydney Council
_________________________________________________________

(A) This Consent is a DEFERRED COMMENCEMENT Consent under Section 91AA of the Environmental Planning & Assessment Act 1979 and shall become effective on and from the date of delivery of the judgment of the Land & Environment Court in Appeal No.10106 of 1998, namely 14 October 1998.

(B) This DEFERRED COMMENCEMENT Consent is valid for a period of 5 years from the date of that judgment and, pursuant to Section 91AA, is granted subject to the following:

DC1 A copy of the final remedial action plan ("RAP") providing details of the measures and steps to be undertaken to make the land safe for the purpose for which it is to be used must be provided to the Council. The RAP must be in conformity with any of the Environmental Protection Authority's guidelines from time to time for the preparation of such plans.

DC2

("CLM Act").

DC3 A site auditor accredited under the CLM Act will certify to North Sydney Council, and the Court, that part of the site, which does not include the proposed public open space, is suitable for the residential development which is the subject of this consent.

DC4

The period in which these deferred commencement conditions must be satisfied is 5 years from the date of this consent or the consent will lapse in accordance with Section 91AA (4) of the Environmental Planning and Assessment Act 1979.

(C)

1 The development being carried out generally in accordance with plans numbered 97128-DA-01 to 97128-DA-24, Landscape Plan (L1) and Sections (L2) and (L3) dated 27/11/97, received by Council on 19 December 1997, Plan titled Vehicular Access via Spiral Ramp to levels 4 & 5, dated June 1998, and Site Plan, level 7 plan, level 8 plan and north-west elevation, dated July 1998, all prepared by Conybeare Morrison & Partners.

Reason:

2 The balcony/patio structure appearing on the site plan (drawing no.97128-DA-01), adjoining the eastern comer of the southern most wharf front house is to be deleted, with the building plans to be modified accordingly.

Reason

3 Appropriate measures are to be incorporated into the spiral access ramp at the northern end of the site accessed from Kiara Close (such as partial enclosure of the structure), to mitigate against the impacts of noise emissions from cars using the ramp, on the acoustic amenity of surrounding properties, with details to be included in the building plans to the satisfaction of Councils Director of Planning and Environmental Services.

Reason:

4 (a) Following landscaping being carried out to the satisfaction of Council's Director of Planning and Enviromental Services in accordance with the landscape plan approved pursuant to condition 34 and prior to occupation of the residential development the land designated E1 and E2 in Figure 4.1 in the applicant's Statement of Environmental Effects must be dedicated or transferred to North Sydney Council for use as public open space.

(b) Neither the applicant or any other owner of the site from time to time shall surrender or agree to modify or extinguish the right of way 4.57 metres wide and variable width created by DP800538 appurtenant to the site. This condition does not prevent the applicant or other owner from time to time of the site from consenting to the opening of Kiara Close as a public road and this condition will cease to have effect in respect of the easement affecting any part of Kiara Close which may be opened as a public road.

5 Unless otherwise approved by Council, Building materials SHALL not be placed on Council's footpaths or grass verges and a suitable sign to this effect SHALL BE erected adjacent to the street alignment.

( Reason: Safety and Access)

6 Provision shall be made for wheelchair access to the building on the site for disabled persons in accordance with AS 1428 Parts 1 to 4. Particular attention should be given to tactile ground surface indicators for the orientation of people with vision impairment to the satisfaction of Council's Director of Planning and Environmental Services.

( Reason: Disabled Access)

Reason

10 The reflectivity index of reflective glass in external walls of the proposed development is to be no greater than 20%. Written confirmation of the reflectivity of the glazing is to be submitted with the building application.

( Reason: Amenity)

11 All precaution must be taken to prevent any damage likely to be sustained to adjoining properties. Adjoining owner property rights must be observed at all times. Where damage occurs to adjoining property all necessary repair or suitable proposal for necessary repairs are to be undertaken by the applicant in consultation with and with the consent of the affected property owner prior to Council issuing a Certificate for Classification for occupation of the development or issue of a building certificate.

In the event that no suitable agreement between the relevant parties has been reached within a period of 21 days from the date from which the Council notifies the owner/builder or applicant of the damage, then the matter is to be the subject of further consideration by Council for appropriate action in relation to the damage or issue of the certificates.

( Reason : Structural Safety)

12 A maximum of 227 off-street car parking spaces shall be provided and, except where elsewhere stipulated, each space shall be a minimum of 5.5 m x 2.5 m located, prepared and marked to the satisfaction of the Director of Planning and Environmental Services. The spaces shall be provided in the ratio of:-

161 spaces for residential uses
66 visitors spaces for residential uses.

( Reason : Environmental and Safety)

13 Any basement area not required for carparking shall be shown as "storage area" in the required building application.

( Reason: Compliance)

14 Of the total number of off-street car parking spaces required in condition 12 at least 5 space(s) shall be 3 m x 5.5 m minimum and clearly marked for disabled drivers' parking.

Reason:

15 The off-street car parking area shall not be used as a Public Car Parking Station.

( Reason: Statutory)

Reason:

17 A minimum headroom of 2 m shall be provided over all car parking areas.

( Reason: Statutory)

18 Only one common television aerial shall be installed in multi occupancy block. Details to be submitted to the satisfaction of the Director of Planning and Environmental Services with the building application.

( Reason : Visual Amenity)

19 A contribution pursuant to the provisions of Section 94 of the Environmental Planning and Assessment Act 1979, as specified under the North Sydney Section 94 Contribution Plan adopted on the 17 May 1993 for the services detailed in column A and, for the amount detailed in column B shall be made to Council prior to the release of any approval under the Local Government Act, 1993.

A B
$
Library Acquisition $ 9,686.00
Library Building Equipment $ 1,731.00
Community Centres $19,089.00
Childcare $20,882.00

The total contribution is

Reason:

20 A schedule of external colours, finishes and materials for all new work shall be submitted with the building application, to the satisfaction of the Director of Planning and Environmental Services.

( Reason: Visual Amenity)

21 Mail deliveries shall be in accordance with Australia Post Guidelines. In general, a clearly marked mailbox (or group of mailboxes) shall be provided within 500 mm of the footpath alignment for premises at ground level, or adjacent to the main entrance to the development, where applicable.

( Reason: Access and Information)

22 A copy of all Council approved plans, specifications and documents incorporating conditions of approval shall be kept on site at all times so as to be readily available for perusal by any officer of Council.

( Reason: To ensure compliance with approved plans)

23 Except where approved by the Council; Demolition, earthworks, building construction and landscaping works approved by this development consent SHALL BE RESTRICTED to within the hours of 7.00 am to 5.00 pm Monday to Friday and on Saturday to within the hours of 8.00 am to 1.00 pm inclusive, with NO WORK on Sundays and Public Holidays.

Excavation works SHALL BE RESTRICTED to within the hours of 8.00 am to 5.00 pm Monday to Friday ONLY. (Excavation work includes the use of any excavation machinery and the use of jackhammers, rock breakers, excavators and the like, regardless of whether the activities disturb or alter the natural state of the existing ground stratum or are breaking up/removing materials from the site).

The builder and excavator shall display on-site their contact telephone number which is to be clearly visible and legible from any public place adjoining the site.

Reason

24 All plant and equipment used in the erection of the building, including concrete pumps, wagons, lifts, mobile cranes, etc. shall, unless otherwise agreed by the Director of Planning and Environmental Services, be situated within the boundaries of the site and so placed that all concrete slurry, discharged water, debris and the like shall be discharged onto the building site.

25 A Bond of $5,000 shall be deposited for the construction/reconstruction of the vehicular crossing prior to release of Stamped Approved Plans.

Reason:

26 The applicant shall apply for a vehicle crossing permit and this shall incorporate Council's required levels within the building application. The applicant shall construct (reconstruct) full-width concrete vehicular crossings to all entrances and exits in accordance with Council's standard plans and specifications. Construction shall include all service adjustments and shall
include any regarding of adjacent footpaths and kerb and gutter required to the satisfaction of the Development Engineer.

( Reason : To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic)

27 The applicant shall, with the required building application, provide appropriate details of the proposed treatment of High Street in the vicinity of the main vehicular entry. All works in this regard are to be constructed at the expense of the applicant. Details are to be to the satisfaction of the Director of Planning and Environmental Services.

Reason:

28 All redundant lay-backs and vehicular crossings shall be reinstated to conventional kerb and gutter, foot-paving, grassed verge as appropriate. All costs shall be borne by the applicant, locations shall be clearly shown on the building application.

( Reason : To facilitate vehicular access to private sites, without disruption to pedestrian and vehicular traffic, and the preservation of on street parking spaces)

29 The applicant shall reconstruct the footpath along the High Street frontage. The path is to be constructed for the full width of the footpath to Council's specifications and to levels approved by the Council Engineer. The specification of the paving blocks shall be determined by Council.

Installation of the paving blocks shall be carried out to the satisfaction of the Council Engineer. Where directed the footpath formation shall be carried beyond the boundary of the property to provide a transition, acceptable to the Council Engineer, to existing footpath levels.

( Reason : Safety and amenity)

30 A Bond of $25,000 shall be deposited for the construction of kerb and gutter and footpath paving works. (See attached schedule).

( Reason: Safety and statutory)

31 Council will accept a Bank Guarantee for the purpose of a Security Bond. The Bank Guarantee shall be in a form acceptable to Council.

( Reason: Statutory)

32 The unbuilt-upon portion of the site, together with all unbuilt-upon roofs over basement parking and the like, shall be landscaped and/or paved.

( Reason: Maintenance of environmental amenity)

( Reason : Maintenance of environmental amenity)

34 On-site works shall not commence until landscape plans have been approved by the Director of Planning & Environmental Services.

( Reason : Maintenance of environmental amenity)Deleted

35 The details of the stormwater design are to be submitted for approval at BA stage and are to be to the satisfaction of the Director of Planning & Environmental Services.

( Reason : Health and Safety)

36 No approval is given to the erection of any advertising or building identification signage. Such signage is to be subject to separate application

( Reason: Compliance)

37 The person acting upon this Consent shall submit to Council a certificate from Sydney Water under Section 73 of the Water Board (Corporatisation) Act, 1994, demonstrating that the Authority's requirements, if any, in relation to this development have been met, prior to the release of the stamped building plans. Under no circumstances will Council release plans without the certificate.

( Reason: Statutory)

38 A suitably located site with adequate area and access SHALL BE made available to Sydney Electricity at a nominal sum of $2.00 for the establishment of a distribution centre, if and when required.

( Reason: Information)

39 Twenty eight (28) days' notice shall be given to the Design and Technical Services Development Unit prior to the commencement of works to enable suitable supervision of the works in progress. Inspections are required at various stages of construction for all work that reverts to Council's care and control. These inspections are to be in accordance with Guidelines.

( Reason : Safety and information)

40 A Bond of $10,000 shall be deposited for the construction of drainage works that revert to Council's care and control.

( Reason : Statutory)

The plans are to be approved by the Development Engineer prior to the commencement of any work or prior to the release of Stamped Approved Plans.

Reason:

42 Where overland flow occurs to the site, a formal drainage system designed to conform with Council's stormwater management policy, including the creation of appropriate drainage reservations and/or easements where necessary, shall be constructed. Engineering details shall be submitted for approval by the Development Engineer with the building application.

Reason

43 Plans detailing the proposed vehicular access shall be submitted to Council for approval prior to the lodgement of the building application. The building application shall clearly show the approved vehicular crossing and access. The following details must be submitted at the time of application for approval of the vehicular access:

(ii) Sections to be taken from the centre-line of the roadway through to the parking area itself and shall include all changes of grade both existing and proposed.
(iii) The sections shall show all relevant levels and grades (both existing and proposed) including those levels stipulated as boundary levels by the Development Engineer.
(iv) The sections shall show the calculated clearance to the underside of any overhead structure.
(v) A longitudinal section along the gutter line showing how it is intended to blend the vehicular crossing into the existing kerb and gutter.

Reason:

44 All redundant lay-backs and vehicular crossings shall be reinstated to conventional kerb and gutter, foot-paving, grassed verge as appropriate. All costs shall be borne by the applicant, locations shall be clearly shown on the building application.

Reason:

45 All utility services shall be adjusted, to the correct level, to the satisfaction of the Council Engineer and the relevant public authority.

( Reason: Statutory)

46 All costs associated with the dedication of land to Council, creation of easements, etc. shall be borne by the applicant.

( Reason: Statutory)

47 The applicant shall engage a specialist Hydraulics Engineer to carry out an evaluation of Council's stormwater drainage system and the effect of the proposed development on this system. The results of this evaluation shall be submitted with all other drainage details to the Council Engineer. Approval by the Development Engineer must be obtained prior to the commencement of any work or prior to the release of the Building Approval. All necessary upgrading works required to the existing system shall be carried out in association with this development and at the applicant's cost.

( Reason: Local Flooding)

48 The required building application shall include garbage bay facilities to the satisfaction of the Director of Planning and Environmental Services. Such facilities shall include provision for the separation and storage in appropriate categories of material suitable for recycling. The applicant should discuss this matter with Council's Division of Planning and Environmental Services prior to submission of the required building application.

( Reason: Environmental)

Reason

Note: Advice can be obtained in relation to the above by contacting Council's Waste Educator.

Reason

51 All costs associated with the dedication of land to Council, creation of easements, etc. shall be borne by the applicant.

( Reason : Amenity)

52 The applicant shall bear all costs associated with the adjustment of all public utilities affected by the work. The applicant shall submit, at the time of lodgement of the Building Application, written evidence of liaison with the public utility authorities.

( Reason : Amenity)

53 All utility services shall be adjusted, to the correct level, to the satisfaction of the Council Engineer and the relevant public authority.

( Reason: Safety)

54 All areas designated Storage" in the carparking levels are to be fully enclosed by means of metal mesh walling/barriers and are to be separated from adjoining carparking spaces by concrete rims not less than 200mm high from finished floor level, in order to prevent their use as additional carparking areas.

( Reason : Limit traffic impacts)

55 No trees on public property (footpaths, roads, reserves, etc.) shall be removed or damaged during construction including the erection of any fences, hoardings or other temporary works.

( Reason : Protection of existing environmental infrastructure)

56 All precautions shall be taken to adequately protect trees on public property against damage during construction, including the erection of fences or hoardings. Provision shall be made in the construction of the hoarding for the growth of existing protected street tree/s.

Reason

57 A Security Bond of $20,000.00 for protection of trees in public places shall be deposited before release of Approved Stamped Plans. (See attached schedule).

( Reason: Protection of existing environmental infrastructure)

58 If any tree is removed or damaged Council shall deduct from this Bond the reasonable cost of replacement with a tree of the same species and to the same stage of growth it would have attained at the completion of the work.

( Reason: Protection of existing environmental infrastructure)

59 In the case of any tree which cannot be replaced with a similar specimen, the Security Bond for that tree will be forfeited to Council.

( Reason: Protection of existing environment public infrastructure)

60 The building application shall be accompanied by a completed Energy Performance Report modelled on an approved computer program and certified by an accredited energy auditor in the manner set out in schedule 6A of North Sydney Council's Energy Efficiency Controls.

( Reason : Energy Efficiency)

61 Details are to be included with the building application, confirming that the energy efficiency and water conservation measures identified in part 8.7 of the Urban Design and Development Proposal Report by Conybeare Morrison & Partners (dated December 1997), have been incorporated into the development including; Geothermal Heat exchange air-conditioning, photovoltaic cells for production of energy and irrigation by stormwater.

( Reason: Energy Efficiency and Water Conservation)

62 A suitable location is to be determined for the Retort House in consultation with Council. The structure is to be conserved (including any refurbishment and painting), relocated and reconstructed in accordance with the conservation management plan at no expense to Council, to the satisfaction of Council's Director of Planning and Environmental services.

( Reason : Heritage Conservation)

63 The Exhauster House is to be protected during construction and conserved in accordance with the conservation management plan within the residential development, to the satisfaction of Council's Director of Planning and Environmental services. Details to be submitted with the Building Application.

(Reason: Heritage Conservation)

64 A commemorative plaque is to be erected on the site, depicting previous structures and uses on the site. The design and location of the plaque is to be determined in consultation with Council's Heritage Conservation Committee and Director of Planning and Environmental Services.

( Reason: Heritage Conservation)

(a) All details of drainage to protect and drain the site during the construction processes;
(b) All sediment control devices, barriers and the like;
(c) Sedimentation tanks, ponds or the like;
(d) Covering materials and methods;
(e) A schedule and programme of the sequence of the sediment and erosion control works or devices to be installed and maintained.

Reason:

66 No consent is given or implied for strata subdivision. This shall be subject to separate application.

( Reason: Statutory)

67 The colour, texture and substance of all external materials being to the satisfaction of the Council. Details are to be provided with the Building application for approval. For properties located in a Conservation Area or that are Heritage Items, prior consultation with Council's Heritage Planner is recommended.

( Reason : Compliance & Heritage Conservation)

68 A photographic survey of adjoining properties, detailing the physical condition of those properties both internally and externally including such items as walls, ceilings, roof, structural members and other similar items, SHALL BE submitted to Council with the building application. On completion of the development and prior to occupation of the building a certification to the effect that no damage has resulted to adjoining premises is to be provided to Council. If damage is identified which is considered to require rectification, the damage or satisfactory proposal for rectification of the damage is to be made as soon as
possible and prior to Certificate of Classification being given. The certificate of damage is to be provided by a professional engineer.

Reason:

in civil works design, or survey company of Registered Surveyors with "Preliminary Accreditation" from the Institute of Surveyors NSW Incorporated and is to include:

( Reason : Local Flooding)

Note:

Reason

All details are to be to the satisfaction of the Director of Planning and Environmental Services.

Reason:

72 Prior to the commencement of works a detailed dilapidation survey of High Street to the south of Clarke Road, Hipwood Street and Kiara Close shall be prepared and submitted to Council. The developer shall bear all costs of damage to these roads, beyond normal wear and tear.

( Reason : Protection of Infrastructure)

73 Appropriate fencing shall be provided to prevent access to the concrete wharf by the public should it's circumstance be unresolved at the completion of works. Details to be submitted and agreed to by the Director of Planning and Environmental Services prior to the commencement of construction works.

( Reason: Protection of Public Safety)

The type of device and installation is to be approved by Council's Municipal Engineer. The maintenance of this installation is the responsibility of the applicant.

Reason:

75 During construction the applicant shall pay a monthly fee to Council, to cover accelerated depreciation to Council's road infrastructure. This fee is to be determined from the number of truck movements using the site in association with the construction works. The fee is to be computed based on the following table:

3 axle single units $5
4 axle single units $6
4 axle or less double unit, 1 unit is truck $7
5 axle double unit, 1 unit is truck $8
6 or more axle double, 1 unit is truck $9
5 axle or less multi units $10
6 axle multi units $10

These rates are to be indexed in accordance with CPI.

The estimated number of axle loadings will be based on the traffic count data. This data will be collected from the installation by the consultant appointed pursuant to condition D66 and be provided to the applicant and to Council.

The calculation of the fee payable pursuant to this condition shall exclude any truck movements which are not associated with rehabilitation or construction works.

( Reason : Protection of infrastructure)

76 The applicant shall monitor existing noise levels at the boundaries of the site for a period of two (2) weeks prior to the commencement of work at 7am, 1 2pm and 5pm. Details of these readings shall be submitted to Council prior to commencement of works.

( Reason : Environmental protection)

77 A suitably qualified Engineering Consultant shall provide a plan of stormwater management for each phase of work on the site. This plan is to conform with the Clean Waters Act and Environment Protection Authority requirements and is to be prepared prior to commencement of civil works.

( Reason : Environmental protection)

78 Prior to approval of a building application or issue of a construction certificate, a conservation management plan must be prepared for preservation and conservation of the Retort House structural frame, the Exhauster House, and so much of the seawall as is located within the boundaries of the site and remains following the remediation of the site, to the satisfaction of the Director of Planning and Environmental Services.

Unauthorised use or work undertaken prior to an approval or not in accordance with an approval is an offence carrying a penalty of up to $100,000 pursuant to the Environmental Planning & Assessment Act, 1979.

NORTH SYDNEY COUNCIL
SECURITY BOND & FEE SCHEDULE

HMAS PLATYPUS, HIGH STREET, NORTH SYDNEY
DEVELOPMENT APPLICATION

SECURITY BONDS AMOUNT

Drainage Bond $10,000.00

Vehicular Crossing Bond $5,000.00

Engineering Construction Bond $25,000.00

Section 94 Contribution $51,388.00

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Citations

Commonwealth of Australia v North Sydney Council [1998] NSWLEC 54

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CITATION:	Commonwealth of Australia v. North Sydney Council [1998] NSWLEC 54
PARTIES:	Commonwealth of Australia v. North Sydney Council
FILE NUMBER(S):	10106 of 1998
CORAM:	Sheahan J
KEY ISSUES:	:-
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979 Land & Environment Court Act 1979 Contaminated Land Management Act 1997 North Sydney LEP 1989 State Regional Environmental Plan 23 State Environmental Planning Policy 56
CASES CITED:
DATES OF HEARING:	29, 30 June, 1, 2, 3 July, and 4 August 1998
DATE OF JUDGMENT:	10/14/1998
LEGAL REPRESENTATIVES:	Mr D P F Officer, QC with T Hale, Barrister Mr M Craig, QC