Formston v Pittwater Council - [2004] NSWLEC 50

Land and Environment Court

of New South Wales

CITATION: Formston v Pittwater Council [2004] NSWLEC 50

PARTIES:
APPLICANTS
Katie Formston, Helen Kaminski, John MacRae and Pat MacRae
RESPONDENT
Pittwater Council

FILE NUMBER(S): 10319 of 2004

CORAM: Nott C

KEY ISSUES: Development Application :- Subdivision of steep land into four lots - size of lots - subject to slip - means of vehicular access - pedestrian access via an inclinator - removal of trees - visual impact - bushfire threat - threatened species

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, s 97

CASES CITED:

DATES OF HEARING: 3-7 November 2003

DATE OF JUDGMENT: 02/23/2004

LEGAL REPRESENTATIVES:

APPLICANTS
Mr C J Leggat, barrister
SOLICITORS
Wilshire Webb
RESONDENT
Ms H P Irish, barrister
SOLICITORS
Malleson Stephen Jaques

JUDGMENT:

10319 of 2003
Nott C
23 February 2004

Katie Formston, Helen Kaminski, John MacRae and Pat MacRae
Applicants
v
Pittwater Council
Respondent

Reasons for Judgment

Overview

four-lot subdivision

erection of a house

three double garages and a visitor carparking space

inclinator (with its waiting stations or platforms) and a stairway

2 . An earlier version of the development application had been recommended for refusal by a council town planner and by the council’s development unit. The council’s environment and planning committee resolved to refuse the application on 1 September 2003.

3 . The current amended plan of the proposed subdivision is dated 31 October 2003 (ex E) and is reproduced at par 26 below. Details of the proposed house, carparking court, access, inclinator and stairway, and of the erosion and concept stormwater controls can be seen in the amended architectural DA plans 02E and 03C (ex B), 05C and 06B (ex G), 10A to 12A (ex H), 18B (ex AD), and plan ex Z. The landscape concept plan of Mr W Ashton dated 1 November 2003 is ex F.

4 . The amended statement of issues is dated 8 October 2003. The main issues related to the size of the proposed lots and character of the locality, the steepness and stability of the land, adequacy of access, visual impact, threatened species and bushfire protection.

5 . Written or oral evidence for the applicants was given by: Ms K Formston, who is one of the applicants and a chartered architect; Mr M Green, surveyor; Mr D Fish, town planner, horticulturist and landscape designer; Mr W Ashton, landscape architect; Mr K Hill, arborist; Mr D Craig, acoustic consultant; Mr D Murray, engineering geologist; Mr R Hardy, civil engineer; Mr P Conacher, environmental consultant; Mr J Travers, bushfire consultant; Dr R Lamb, visual and landscape consultant.

6 . Written or oral evidence for the council was given by: Mr R Bridgewater, 35 Bakers Road; Mr G Fletcher, 38 Bakers Road; Ms M D Laidlaw, consultant town planner; Mr N Skelton, arborist; Mr G Kotze, engineering geologist; Mr J Back, Planning Services Officer, NSW Rural Fire Service; Mr L Dyce, council’s Manager of Planning and Assessment. There were also a large number of written objections from local residents.

7 . It was the council’s case that the present development application should be refused. In the event that the Court was minded to grant consent, the parties spent considerable time in formulating draft conditions of consent. Annexure A to this judgment contains the “without prejudice” conditions as drafted by the council which, with a few exceptions, were agreed to by the applicants, and I have made a few amendments in the light of the submissions. However, the council submitted that many of the conditions left open for further determination important aspects of the development, and that there should be greater certainty in the conditions before any consent was granted. In my consideration of certain of the issues, I will refer to some of these draft conditions.

8 . The applicants (particularly Ms Formston) have worked hard and obviously expended considerable sums in obtaining expert evidence and in seeking to present a good case in support of their application in respect of a very difficult parcel of land.

9 . The steep topography, geotechnical instability and problems of access pose serious difficulties to be overcome in an acceptable manner. A massive amount of excavation of the subject land would be required (relating to the proposed driveway, manoeuvring area, garages, waiting station for the inclinator, and lower section of the inclinator rail). The narrow single-lane vehicular carriageway along the “upper access” of Bakers Road to the entrance of the subject land is substandard in width and in having gradients of up to 24%. Accepting nevertheless that the upper access may be used by additional cars, on the evidence I have not been persuaded that the upper access should be permitted to be used for the large number of truckloads of excavated material that would have to be removed from the subject land. Alternatively, the safety and practicality of moving excavated material from the upper access by some form of chute or conveyor system down the 10-m high embankment to trucks parked on the main carriageway of Bakers Road would have to be better documented and assessed, and the specific proposal notified to neighbours who might be affected.

10 . In relation to the possible adverse impacts for the residents at the adjoining house at 35 Bakers Road, there will be a significant visual change to the area behind the existing house at No 29 by reason of the loss of a large number of trees and the replacement of the bushland with concrete driveway, manoeuvring area, three double garages, inclinator station, visitor car space and an additional house.

11 . The carrying out of a deep excavation only 300 mm or less from the common boundary with No 35 for the proposed driveway retaining wall poses some risk to the house at No 35, even though the risk could be substantially reduced by having the work supervised by a geotechnical engineer. It may be possible to further reduce the degree of risk to No 35 by eliminating the visitor carparking space and increasing the setback of the retaining wall of the driveway by at least 2 m from part of the common boundary with No 35. The undisturbed land that would then remain along the common boundary could be used for landscaping.

12 . Having reviewed all the evidence, I am of the opinion that there are some important unresolved problems relating to vehicular access, excavation and construction that should be the shown by further investigations or other evidence as being capable of being properly dealt with, before any consent or deferred commencement consent is granted.

13 . For these reasons, as well as for the reasons given more fully below, I am not satisfied on the balance of probability that it would be appropriate to grant consent in respect of the present application. This decision of course does not preclude a fresh development application, even one containing elements similar to the present application, which would need to be advertised and should be determined by the council on its merits.

Subject land (exiting lots), and Bakers Road

14 . The subject land comprises three existing lots, which are owned by the applicants. Set out in the following table are details of the ownership and the areas of the existing lots, taken from DP 206824 (registered 18 April 1962, revised 21 August 1997):

Residential Address No.	Owner	Existing lot	Area (sq m)
29 Bakers Rd	H Kaminski	Lot 1 DP 206824	1,359
31 Bakers Rd	J & P MacRae	Lot 2 DP 206824	1,220
33 Bakers Rd	K Formston	Lot 5 DP 206824	2,738

Total area

5,317 sq m

15 . Below is a plan showing the layout of the existing lots in the subject land, which is identified by street Nos 29, 31 and 33. The plan also shows the adjoining properties and Bakers Road reserve, within which is the upper access:

16 . The current access handle for No 31 is 4.57 m wide, and the adjoining handle for No 33 is also 4.57 m wide. There are mutual rights-of-way over these two access handles in favour of Nos 31 and 33; and No 29 has the benefit of rights-of-way over both handles.

17 . The northern boundary of the subject land is the road reserve of Bakers Road, as seen on the above plan. Within the upper part of the road reserve there is a single-lane carriageway, which is located just outside the subject land and which I have described on the above plan as the “upper access” . I use the term “upper” to distinguish the access from the main carriageway of Bakers Road, which is located down an embankment from the upper access. However, both the upper access and the main carriageway of Bakers Road are downhill from the subject land.

18 . The upper access is the only means of vehicular and pedestrian access for Nos 27 and 27A Bakers Road, for the three existing lots in the subject land and for Nos 35, 37 and 39 Bakers Road. The upper access slopes upwards from the north-east to the south-west. Where the upper access crosses a small portion of the frontages of Nos 35 and 37, it becomes a private right-of-way.

19 . Immediately adjoining the northern side of the upper access is a vegetated area within the road reserve having a steep drop down to the main carriageway of Bakers Road, which is more or less centrally located within the road reserve. The main carriageway of Bakers Road gives access to Nos 41 and 43. Properties on the northern side of Bakers Road include Nos 20-30 (not shown on the above plan).

21 . One of the severe constraints on re-development of the subject land is that most of the land is steeply sloping bushland, generally falling from the rear south-western boundaries down to the north-eastern or northern boundaries, as described in more detailed below.

Planning controls

Minimum lot-size of 700 sq m, exclusive of any access corridor

22 . The subject land is zoned residential 2(a) under Pittwater Local Environmental Plan 1993 and is in a foreshore scenic protection area. In accordance with clause 11(2) of the LEP, the subject land is not to be subdivided unless each lot created by the subdivision will have an area of not less than 700 sq m, “exclusive of any access corridor” . The LEP does not define “access corridor”.

23 . If (which is not the case) the lot-size in clause 11(2) were a “non-discretionary standard” , the proposed lots could not be refused because of size, if they had an area of 700 sq m or more excluding access corridors: see s 79C(2) and (6) of the Environmental Planning and Assessment Act 1979 . However, the lot-size of 700 sq m (exclusive of access corridors) in the LEP is an ordinary development standard, and there may be many reasons as a matter of merit why in a particular case a larger lot-size than the minimum would be required. The mere fact that there is compliance with the minimum requirement of an ordinary development standard does not give an entitlement to a development consent.

Development control plans and policies

(1)

Development Control Plan No LP15 – Bayview and Church Point Locality Plan

(2)

Development Control Plan No 2 – Car parking

(3)

Development Control Plan No E3 – Driveways and Internal Roadways

(4)

Development Control Plan No 10 – Subdivision and Code for Subdivision

(5)

Development Control Plan No 23 – Landscape and Vegetation Management

(6)

Development Control Plan No 25 – Conservation of Biodiversity

(7)

Interim Geotechnical Risk Management Policy

(8)

Interim Policy Requirements for the Subdivision of Land in Sensitive Areas – Barrenjoey Peninsula and Pittwater Areas

(9)

Council Tree Preservation and Management Order

(10)

Council Policy No 60 – Multiple Access – Special Crossings.

Steepness of the subject land

25 . The following Gradients plan, taken from Ms Laidlaw’s report, shows some the existing slopes of the subject land. The plan indicates that through the centre of No 29A there is a slope downwards to the north-east of 49%. Through the centre of the indicative house-site on No 33, the slope is 62%. From the rear upper boundary of No 31 to the new boundary in front of the house on No 31, the downward slope of the proposed right-of-way is 72%.

Plan of proposed subdivision and size of lots

26 . I reproduce a copy of the plan of proposed subdivision dated 31 October 2003 (ex E ):

27. Comparing the above subdivision plan with the plan of the exiting lots (par 15), broadly speaking proposed lot 1 is the front part of the current area of 29 Bakers Road, which contains the existing house and which will continue to the known as No 29. Proposed lot 4 , which will have a street address of No 29A Bakers Road, includes what was the rear part of No 29 and a small part of the current front area of No 31. As part of the proposed development, a new pole-house will be erected on No 29A.

28 . Proposed lot 2 is divided into two separate sections, having areas of 1,039 sq m and 200 sq m. The existing pole-house on the larger section of lot 2 will continue to be known as No 31. The smaller section of lot 2 is part of the proposed access corridor and carparking court, located on the lower part of the subject land. Proposed lot 3 is also contained in two sections, having areas of 2,400 sq m and 88 sq m. The larger section of proposed lot 3 contains most of the current area of No 33. (The proposed subdivision adjusts the current location of the common boundary between Nos 31 and 33.)

29 . As seen on the proposed plan of subdivision, the existing access handles and rights-of-way will be eliminated, and new rights-of-way and easements for services created. The existing carparking spaces within the existing access handle to No 31 will be incorporated in proposed lot 1 and be part of the new No 29.

Size of proposed lots exclusive of access corridors

31 . The following table gives the street address, lot numbers and relevant areas of the proposed lots:

Table of Proposed Lots

Proposed
lot

Proposed
Address No.

Total Area of proposed lot
(sq m)

Approx. area of lot excluding access corridors
(sq m)

Lot 1

29 Bakers Rd

725

700

Lot 4

29A Bakers Rd

868

742 to 792.5

Lot 2

31 Bakers Rd

(1,039 + 200 =)
1,239

939 to 1,031

Lot 3

33 Bakers Rd

(2,400 + 88 =)
2,488

2,438

32. As mentioned earlier (par 28), there are two separate areas of land that comprise proposed lot 2, and the same is the case for lot 3. In the third column of the table of proposed lots, the two separate areas are shown within brackets followed by the total area of the lot. Adding the total areas of the four proposed lots in the third column, the subject land has an area of 5,320 sq m. As disclosed by the survey in DP 206824, the total area is 5,317 sq m (par 14 above).

33 . There was an issue as to whether proposed lots 1 and 4 would comply with the minimum area of 700 sq m exclusive of access corridors, and there was a difference of opinion as to what was the area of proposed lot 2 exclusive of the access corridor.

34 . In the fourth column of the table of proposed lots, it has not been possible on the evidence to give precise figures for the area of each lot exclusive of access corridors. Although there was evidence from a registered surveyor concerning the access corridors (ex Y), this evidence related to an earlier version of the development application plans that did not include any stairway adjacent to the inclinator; and I also note there are certain inaccuracies in some dimensions on the proposed subdivision plan (ex E), as mentioned in par 35 below. Ms Laidlaw made calculations of what she considered to be the relevant areas and she had doubts as to whether each of proposed lots 1 and 4 would achieve the minimum area of 700 sq m after the exclusion of access corridors. Mr Fish also made calculations (ex AG), which indicated there would be more than the minimum area for each lot. The main difference between Mr Fish and Ms Laidlaw was that Ms Laidlaw was of the opinion that the actual width of the rights of carriageway shown on the subdivision plan (par 26 above) should logically be taken as the access corridors, and Ms Laidlaw also allowed a greater manoeuvring area in the carparking court. In contrast, Mr Fish (in relation to the inclinator and stair) took as the access corridor only the width of the inclinator carriage and the width of the stair and did not allow for any additional width of supporting foundations or retaining walls or any room on the sides of the structure to carry out maintenance from ground level.

35 . There are several minor inaccuracies in the proposed subdivision plan, and the plan is of a small scale and not fully dimensioned. I mention the inaccuracies, not as a reason for refusal of the application (which will be refused for other reasons), but so that appropriate adjustments may be made in any future development application. First, the earlier version of the subdivision plan reproduced in Ms Laidlaw’s report (ex 4 figure 2) shows the rear south-western boundary of proposed lot 1 as a straight line of 23.4 m terminating at the south-eastern side boundary of the subject land. In the currently proposed subdivision plan that dimension of 23.4 m remains unchanged, but in fact the rear boundary does not terminate in a straight line at the side boundary but dog-legs to include some of the land (2.75 m x 3 m) formerly in proposed lot 4. The other dimensions on the current plan of subdivision, 8.6 m and 11.2 m, indicate that the boundary in question is now 19.8 m and not 23.4 m. Secondly, both the deposited plan and the survey plan dated May 2002 (ex C) show the south-eastern boundary of the whole of the subject land as 109.22 m. However, the currently proposed subdivision plan (par 26) shows the same boundary as having dimension of 42.15 m (lot 1), 38.7 m (lot 4) and 31.1 m (pt lot 2), a total length of 111.95 m. Comparing the current plan of subdivision with the earlier plan (ex 4 figure 2), it appears that the south-eastern side boundary of proposed lot 4 of 38.7 m should be reduced by about 2.75 m. It is not clear whether these minor inaccuracies affect the total area shown on the current subdivision plan for lot 4 as being 868 sq m inclusive of access corridors.

36 . In relation to the area of proposed lot 1 exclusive of the access corridor, I have inserted 700 sq m in the fourth column of the table at par 31. The access corridor that has been excluded from lot 1 is marked (E) on the plan at par 26 above. If (by reason of the inaccuracy in the subdivision plan referred to in the preceding paragraph) there is any small shortfall of a few square metres in the minimum area required by the LEP, the small shortfall could be made good by adding several additional square metres to lot 1 from the land currently in the north-eastern corner of proposed lot 4. This could be done by way of a condition of consent, if the size of the lots and other aspects of the proposed development were otherwise satisfactory.

37 . In relation to proposed lot 4 (No 29A), there are three areas that need to be excluded. First, the access handle that is part of lot 4 has an area of approx. 7.5 sq m. Secondly, part of the manoeuvring area within proposed lot 4 that would need to be used by the owners of the garage for lot 2 has an area of 19 sq m (although Ms Laidlaw was of the opinion that a larger area was required). Thirdly, there is no dimension given for the width of the right-of-way and easement for services (B), but it scales at about 5 m for a length along lot 4 of about 20 m, giving an area of 100 sq m. Deducting these three areas from the total area of lot 4 of 868 sq m, the area of lot 4 exclusive of access corridors would be 742.5 sq m. Alternatively, if the access corridor associated with the inclinator on lot 4 is regarded as having a width of only about 2.5 m (for the structure of the inclinator and stairway and a minimal amount of clearance either side of the structure), the area of lot 4 exclusive of the access corridors would be about 792 sq m.

38 . However, the width of 2.5 m for the inclinator and stairway structure may be inadequate, particularly in proposed lot 4 where, at the lower end of the lot, there has to be a deep cutting in the landform and the erection of substantial retaining walls on both sides of the structure. These retaining walls, which would be within the right-of-way, should be regarded as part of the access corridor.

39 . The total area of proposed lot 2 is 1,239 sq m. To determine the area of lot 2 exclusive of access corridors, it is first necessary to deduct 160 sq m, being the area contained in the separate small part of lot 2 that would be used by other lot-owners for vehicular access as well as by the owners of lot 2. The actual area of the garage for lot 2 should not be deducted. Secondly, it is then necessary to deduct the additional area of the right-of-way within the main part of lot 2, which would contain the inclinator and stairs: the right-of-way has a length of about 28 m by a width of 5 m and an area of about 140 sq m. However, if the access corridor for the inclinator (with some minimal side clearance) is taken to be a more limited area of 2.5 m wide extending from the north-eastern boundary of the main section of lot 2 up to and including the top landing platform of the inclinator and the short walkway to the boundary of proposed lot 3, the area of lot 2 associated with the inclinator is about 48 sq m. These two areas—the area for vehicular access and the area associated with the inclinator—have to be deducted from the total area of 1,239 sq m. Therefore, the area of proposed lot 2, exclusive of access corridors, would be in the range of 939 sq m to 1,031 sq m, depending on how much is attributed to the access corridor relating to the inclinator.

40 . The area of proposed lot 3 includes an area of about 50 sq m for a visitor carparking space and the access to the waiting station of the inclinator. It is proposed to give a right of use to all lot-owners over this 50 sq m, which in effect would amount to an access corridor. In my opinion it is not necessary to deduct the other small part of lot 3 that will contain the garage for the exclusive use of the owners of lot 3. Therefore, the area of proposed lot 3 exclusive of the access corridor is 2,438 sq m.

41 . There is an argument that an access corridor should include an easement for services, because such an easement ordinarily gives a right of access to maintain the services. However, even if the whole of the right-of-way and easement for services marked (B) on the plan of proposed lots 2 and 4 should be regarded as an access corridor, the smaller of the two areas for those lots shown in the fourth column of the table at par 31 above would apply, and lots 2 and 4 would still have in excess of the minimum area of 700 sq m required by the LEP.

Are the proposed lot-sizes appropriate?

42 . The applicants presented evidence to the effect that the proposed lots were consistent with the adjoining three-lot subdivision approved in 1993, now known as Nos 27A, 27B and 27 Bakers Road. However, there are several reasons why the 1993 subdivision should not be relied upon as a precedent for approving the proposed development. The areas of the three approved lots (1,229 sq m, 1,200 sq m and 1,200 sq m) are substantially greater than the areas of proposed lots 1 and 4. Moreover, the report to the council in 1993 recommending approval stated that the usable site areas, excluding the rights of carriageway and access corridor from the approved lots, were 1,080 sq m, 1,115 sq m and 1,034 sq m. Again, these areas are substantially larger than the areas of proposed lots 1 and 4 (exclusive of the access corridors). In addition, the 1993 report states that the driveway and building platforms involve a maximum cut of 1 m to 1.5 m. In contrast, significant excavation has to occur for the proposed carparking court, up to 6 m in depth. (The parties did not take me on an inspection of the access and inclinator on the adjoining property, and the information concerning this adjoining subdivision comes from the 1993 council report.)

43 . While there are reasons for refusing the present application because of the size of proposed lots 1 and 4, there are nevertheless several reasons that might be thought to support the applicants’ proposal. One reason is that the smallest proposed lot, lot 1, is at the bottom of the slope of the subject land and has a frontage to the upper access of Bakers Road. A small number of trees in the front of the house at No 29 can be retained or several new trees planted. However, a large number of trees will be lost from the rear part of the property currently known as No 29 (because of the large cleared area needed for the carparking court and for the proposed house on No 29A).

44 . Another reason that could be advanced in support of at least some components of the present development application is that the current lots comprising the subject land were approved by Warringah Council in May 1961, with No 33 containing an area of 2,738 sq m. So it might be said that there was some expectation by that council that No 33 could be used for a dwelling house. The present development application was amended to exclude the erection of a house on No 33. But the application includes the erection of an inclinator and the construction of garages on the subject land that could be used by the occupants of a future house on No 33. The proposed lot 3, having a total area of 2,488 sq m, still contains most of the land in the current No 33 and remains a very large lot. In order to provide reasonable carparking facilities for this proposed lot 3 and at the same time provide a garage for the existing house at No 31, the applicants considered it necessary to generate additional income by creating proposed lot 4 (No 29A). The proposed carparking court separates the existing house at No 29 from the rear upper part of the land currently in No 29. This almost discrete upper part of the current land in No 29 (together with some land of the current No 31) forms the new No 29A.

45 . As mentioned in the evidence for the applicants, although the proposed lots 1 and 2 are relatively small, the average lot-size of the four proposed lots is 1,329 sq m. If the areas of the access corridors in this case were deducted, the average area of the proposed lots would be 1,204 sq m (using the lower of the figures in the fourth column of the table par 31). However, this is not necessarily a strong argument in favour of the proposed subdivision—there is a large area of development of hard surfaces on the small part-lots that contain the driveway and carparking court, and there would be a significant loss of bushland on lot 4 (No 29A) because of the proposed new house, which would have its front balcony located only about 4 m from the proposed garages. The LEP itself does not envisage lot-averaging.

46 . It is necessary to weigh the legitimate desires of the applicants to make the subject land more usable against adverse impacts of the development involving the proposed driveway, carparking court, the inclinator and waiting station and the proposed house at No 29A. As I mentioned, all this development is located close together and is also close to the existing house at No 29. Among the impacts of this development will be the removal of a large number of trees at the rear of the house at No 29. The adjoining property that would be most affected by the proposed changes to the locality and by the proximity of the development is 35 Bakers Road (see par 133 ff. below).

47 . Ms Laidlaw said that she would have no objection to inclinator access being provided for the existing No 33 but she objected to the creation of the additional lot at No 29A. Certainly, if there was no new house on proposed lot 4, there would be fewer trees removed, and the carparking court would not have to be as large.

48 . Various alternatives to the present application were considered by the applicants, which are set out in the statement of environmental effects. One possible option might be that the applicants enter into agreements whereby they extinguish or modify the current rights-of-way, so that the owners of No 31 can exclusively use one or two of the existing carparking spaces in the current access handle to No 31, and so that the owner of the current No 33 is given exclusive use of the lower part of the access handle of No 33 for tandem parking to occur. This carparking arrangement is not altogether good, but at least there would be carparking spaces on the subject land for the existing lots. The cars would be able to enter in a forward direction. It would be necessary to establish that the particular dimensions of the spaces and driveway would enable a car to leave by reversing a short distance and turning up into the “upper access” of Bakers Road before being driven out in a forward direction. In doing the reversing turn into the upper access, the swept path of the car should not encroach across the front corner of the property at No 35 unless an easement or right-of-way is obtained for that purpose. An inclinator would still be required. This possible option, which does not involve the creation of an additional lot, has similarities to the applicants’ option B.

49 . Another option that would not involve the creation of a new lot was suggested by Ms Laidlaw in the joint statement (ex X): three carparking spaces (side by side and not in tandem) could be provided at the base of the existing access handles, and the rights over the existing access handles modified by agreement among the applicants in order to enable this to occur. If one of the three car spaces was allocated to No 31, the other two would be allocated to No 33, or vice versa. These existing handles have a combined width of 9.1 m. This width would allow a 1-m wide landscape strip between the common boundary of No 35 and the subject land. There would also be sufficient width for the central car space to be 2.4 m wide and for the space on either side of it to be 2.7 m wide (the extra 300 mm being required under the Australian standard for carparking, where an outside car space adjoins a solid structure such as a retaining wall). Again, the swept path of the reversing car should not encroach upon the north-eastern front corner of No 35.

50 . An argument was advanced on behalf of the applicants to the effect that the proposed four-lot subdivision was a better way of providing vehicular access and parking for Nos 31 and 33 than the alternatives mentioned in the statement of environmental effects. However, this does not necessarily mean that the proposed development is itself satisfactory. As the council’s planning officer indicated, this argument assumes that the alternatives would be likely to be approved by the council or are economically feasible.

51 . The detailed submissions of local residents should also be taken into account. They expressed views to the effect that the proposed lots were under-sized lots, that there were problems with access and parking, and that the proposed carparking court and new residence would require the removal of a large number of trees and would detract from the bushland character of the locality.

52 . Ms Laidlaw was of the opinion that there would be a significant change to the bushland character by reason of the loss of so many trees in the carparking court area immediately behind the house at No 29. And there is only about 4 m between the balcony of the proposed new house at No 29A and the proposed garages. This change to the character of the locality by the loss of trees in the carparking court would be noticed by adjoining neighbours, particularly those who live along the upper access of Bakers Road, even though the garages of the carparking court itself would be obscured to a large extent by the existing house on No 29. In contrast to what would occur on the subject land, the bushland character is retained on the upper slopes at the rear of the adjoining properties at Nos 35 and 37 (although some clearing has taken place in the front of the house at No 39 which, unlike its adjoining neighbours, is erected at the upper part of the property).

53 . Because of the congestion of development in and surrounding the proposed garages, there is limited opportunity there to provide significant landscaping. If the areas of proposed lots 1 and 4 were larger (which does not appear to be possible), then there might be greater opportunity for landscaping.

54 . The applicants’ architectural plans envisage the retention of several trees near the proposed rear retaining wall of the garages. However, I consider that those trees are not likely to survive for two reasons. First, the deep excavation for the retaining wall is likely to sever tree roots. Secondly, an examination of the existing ground levels on the survey plan and of the finished landform adjacent to the top of the retaining wall indicates that the existing ground in the vicinity of the trunks of the trees would probably have to be lowered and tapered down to the top of the retaining wall. In the joint statement of Mr D Fish, Dr R. Lamb and Ms D Laidlaw it was agreed that the cut along the southern side of the garage court would be between 6.1 m and 6.6 m. If there was to be no disturbance to be ground surface to the south of the rear garage retaining wall (where the trees are located), the wall would have to be similarly in excess of 6 m high to retain the uphill land to the south, in which case the wall apparently would have to rise about 2 m above the garage roof. Yet section 01 of plan would DA01E (ex B) shows the rear wall and roof to be only about 4.2 m high, with the ground line tapering down to the top of the wall.

55 . The proposed landscaping (ex F) in the 4-m wide space between the southern retaining wall of the garages and the elevated deck at the lower level of the proposed two-level pole-house on No 29A would have to grow to a height of between about 5 m and 7 m before it reached the deck at the lower level. (This elevated deck is at what is perhaps inaptly called the “ground floor” of the house.)

Council’s sensitive areas interim policy for subdivision
56 . The council’s Interim Policy Requirements for the Subdivision of Land in Sensitive Areas – Barrenjoey Peninsula & Pittwater Areas includes the following policy statements:

b) A person shall not subdivide land within the zone No 2(a) if the allotment or allotments intended to be created have a slope in excess of 30 % measured between the highest and lowest points on any such allotment(s).

c) A person shall not subdivide land in a sensitive area unless each allotment so created has an area of not less than 1,200 square metres.
d) For the purpose of calculating the site area of a hatchet-shaped allotment, the area of the access corridor of that allotment shall be excluded.

57 . In accordance with criteria in a schedule to this policy, the existing lots in the subject land are in a “sensitive area” , either because the lots have slopes exceeding 23% measured between the lowest and highest point on the lots, or because in excess of 50% of the area of the lots is obscured by the canopies of trees when viewed from directly above by way of aerial photographic survey.

58 . So in accordance with (c) of the interim policy above, the lots created should have an area of not less than 1,200 sq m exclusive of access corridors. In fact, if the policy were to be applied, not only are the proposed lots in a sensitive area but the lots have gradients substantially in excess of 30% measured between the highest and lowest points, indicating that no subdivision at all to create a new lot should occur (see par (b) above of the interim policy). In particular, proposed lot 4 (No 29A) has a gradient of 40% measured from the highest point to the lowest point adjacent to be south-eastern boundary; measured down the centre of proposed lot 4 from the rear upper boundary to the front boundary, the gradient is 49%. Other details of the steep gradients are shown on the plan that I reproduced at par 25 above.

59 . Mr L Dyce, the council’s manager of planning and assessment, gave evidence that he has worked with the council for 10 years supervising assessment of development applications for subdivisions. He said that to the best of his knowledge, the council’s interim subdivision policy has been applied consistently to subdivisions in the environmentally sensitive areas.

60 . The council’s bundle of documents contained many detailed letters of objection to the current application and to an earlier application to develop the subject land. There were written objections from the owners of Nos 20, 22, 24, 26, 27A, 30, 35, 39, 41, and 45 Bakers Road. A repeated objection was that the proposed lots (other than lot 3) do not comply with the council’s minimum area of 1,200 sq m exclusive of access corridors. Some of the letters of objection mentioned the fact that the interim policy actually sought to prohibit the creation of an additional lot where (as occurs in the present application) the slope exceeds 30% measured from the highest point to the lowest point of the lot.

61 . Mr Fish said that he was unaware of any subdivision that did not comply with the interim policy, other than the subdivision on the adjoining property. I have earlier made a comparison of this one exception with the proposed development (see par 42 above).

62 . Warringah Council, which formerly administered this part of the Pittwater Council area within which the subject land is located, had tried to have its local environmental plan amended to increase the size of lots to 1200 sq m for lots created by subdivision in sensitive areas. However, the Department of Planning rejected the draft LEP, as the proposed lot-size was inconsistent with directions under s 117 of the Environmental Planning and Assessment Act 1979. Correspondence and other documents between the council and the Department of Planning are contained in ex AC. A minute paper dated 11 March 1992 by the Regional Manager (Sydney North) of the department states that whilst the council had appeared to justify the need to protect sensitive lands, there was no justification for the lot-size of 1200 sq m as opposed to say 800 sq m or 1,000 sq m.

63 . Having regard to the correspondence from the Department of Planning, I propose to give no weight to the council’s interim policy, insofar as it purports to require a minimum lot-size as large as 1200 sq m exclusive of access corridors. It could be that some lesser lot-size, such as between 800 sq m and 1,000 sq m (exclusive of access corridors), might be appropriate for sensitive lands as a general policy, but I do not wish to express a definite opinion about a general policy matter.

64 . Apart from council’s interim policy, as a matter of discretion under s 79C of the Environmental Planning and Assessment Act 1979 a significantly larger lot-size than the minimum of 700 sq m (exclusive of any access corridor) may be required in a particular case having regard to such matters as the steep gradients of the subject land, geotechnical instability and the protection of flora and fauna.

Inclinator, stairs and services

65 . The plans tendered at the beginning of the hearing provided for no pedestrian access to Nos 29A, 31 and 33, in the event that the inclinator could not be used. Having regard to the steep slope of the subject land, I indicated to the parties that it was unacceptable that no alternative means of access was shown. The applicants subsequently tendered an amended plan (ex AA), but the stairway shown adjacent to the inclinator on this plan had no immediate landings and was only 600 mm wide. The applicants apparently assumed that all that was necessary was for a service-type stair next to the inclinator, to meet the requirements of WorkCover in relation to the inclinator. However, I expressed the tentative view that it was quite unsafe to have a continuous flight of stairs of about 47 m (measured down the nosing line of the treads). This stairway would be the only means of pedestrian access for three different lots in cases of emergency or where the inclinator did not work or where for one reason or another people chose to use the stairway rather than the inclinator.

66 . The applicants presented photographic evidence of a stairway attached to an inclinator serving two dwellings at Nos 10 and 10A Beach Road, Palm Beach (ex AB). This stairway is very steep, and there are no intermediate landings. From a safety point of view, I would not be inclined to approve such a stairway for the subject land, where the stairway would be the only means of egress on foot for the occupants of three dwellings if the inclinator was not working.

67 . Towards the end of the hearing, the applicants tendered a further amended plan DA-18B and sketch of a stairway (ex AD). This plan increased the internal width of the stairway to 1 m, and provided seven landings (not including the platform at each end of the stairway), the landings being spaced no greater than 18 risers apart. Even if the Building Code of Australia did not strictly apply, I am of the opinion that a stair complying with clause 3.9.1.3 should be installed for safety reasons. The purpose of limiting the length of a flight of stairs by providing landings is to restrict the distance a person could fall down the stairs.

68 . The actual length of the inclinator rail, measured up the slope as seen in section 05 of plan DA-02E (pt ex B), is 47 m. The slope of the rail is about 64 percent or 33 degrees. At the bottom entry station to the inclinator, the rail is cut into the natural ground level to a depth of about 4 m. The rail continues to be in a cutting for about 12 m of its length up the slope, where it then rises above ground and continues for the rest of its length above natural ground level. At the station or platform (RL 59.2) giving access to the proposed house on No 29A, the rail is about 3.2 m above ground (and it appears that an elevated walk-bridge rises up to the elevated ground-floor level at RL 59.5 of the proposed house). At the common boundary between Nos 29A and 31, the rail is about 4.3 m above ground, as scaled from section 05. The inclinator carriage has a height above the rail of approximately 2.2 m.

69 . Ms Irish submitted that there were insufficient details concerning the stairway. In particular, it was not clear whether someone using the pedestrian bridge from the proposed house at No 29A would be able to step safely across the sloping inclinator rail and onto the stairway. I tend to agree. Some redesign of the stairway at this location would clearly be needed. Among other things, the closest landing in the stairway (plan DA18B, ex AD) is below the level of the bridge and below the waiting platform on the other side of the rail. There would probably be a number of ways of overcoming the problem of access to the stairway. A supplementary stair could perhaps descend from the waiting platform and pass under the elevated rail and rise up on the other side to connect with a landing in the main stairway—but this would mean moving the whole inclinator and main stairway, as there is insufficient space between the side of the rail and the north-western side boundary of the subject land for such a connecting stair. A better and more simple solution might be reversing the position of the rail and stair, so that bridge from the house on No 29A would connect directly to a landing in the stairway on the south-eastern side of the rail, and this landing in turn would connect to the inclinator platform, all at the one level. The same problem of access would not arise in relation to the walk-bridges from houses on proposed lots 2 and 3 to the terminating station, since this station platform wraps around the sides and end of the rail.

70 . Query whether a balustrade may be needed for safety on both sides of the stairway, because the stairway is elevated several metres above the ground at different places. The plans show a balustrade only on the north-western side of the stair. If a balustrade is needed or highly recommended on both sides of the stairway, the stairway presumably would have to be moved out further from the inclinator track. The current plans show that the south-eastern side of the stairway is only separated from the track by about 300 mm, and a balustrade at that distance from the track would impede the movement of the inclinator carriage. If consent had been granted, draft condition 15AD may have required an increase in the width of the combined stairway and inclinator, in order to prevent obstruction of the inclinator by any such balustrade.

71 . A more detailed design of the inclinator, stairway and supporting structures (showing the extent of excavation for footings and retaining walls) would also appear desirable, because the proposed inclinator for some of its length is within a drainage depression where flooding has occurred in the past, and because of the history of instability of adjoining lands.

Loss of trees

72 . The identification and location of many of the trees on the subject land and the condition of trees is dealt with in the report of arborist Mr K. Hill dated 11 October 2003 (ex M). On the architectural plans, the location of many of the trees is shown. On behalf of council, environmental scientist Mr N. Skelton prepared a report dated 14 October 2003 relating to the impact of the proposed development on the trees, bushland, flora and fauna (ex 6). They produced a joint expert report (ex 10).

73 . In their joint report, Mr N Skelton and Mr K Hill differed on a number of points. Mr Skelton said there are 229 trees on the whole of the subject land, whereas Mr Hill said there are 346. This large difference as to the number of trees was mainly due to the different views the experts had as to what constituted a tree under the DCP.

74 . To accommodate the proposed house on No 29A, the parking court and the inclinator, there would be a loss of at least 64 trees according to Mr Skelton, or 55 trees according to Mr Hill. The trees to be removed assessed by both experts did not include additional trees that might need to be removed because of bushfire hazard. Nor do the figures given by the experts include any additional trees required to be removed because of geotechnical requirements or because of trenching for utility services. As well, about 32 trees (according to the council’s expert) would need to be removed for a future house on No 33.

75 . Apart from the loss of about 20 trees that would be underneath the proposed pole-house at No 29A, it is not clear that the several trees in front of the house near the proposed garages would survive (see par 54 above).

76 . In their joint report, Mr Skelton concluded that the number of trees lost was not acceptable under DCP 23, DCP 25 and DCP LP 15, whereas Mr Hill came to the opposite conclusion.

77 . When assessing the impact of tree loss, in favour of the proposed application it is necessary to take into account the bushland management plan (ex Q), and the landscape plan (ex F). And see draft conditions 6, 25-26 and 75-81 in Annexure A hereto. There would be an improvement in the property to the extent that there would be a continual weed removal program and other measures taken to revegetate the site, subject to complying with bushfire hazard reduction guidelines or conditions. But this bushland management program and landscaping, limited by the need to carry out bushfire protection, would only partially compensate for the removal of trees for the carparking court and for the proposed house on the No 29A and in respect of any future house on No 33. (Under the heading “Are the lot-sizes appropriate?” (above), I have referred to the visual impact of the proposed development as viewed from adjoining properties.)

Visual impact as viewed from the foreshore and waterway

78 . As viewed from the foreshore, it seems that the impact of the proposed house at No 29A and the lower part of the inclinator would not be readily visible. As was pointed out on my inspection of the locality, trees on other properties between the front of the subject land and the foreshore would appear to largely obscure the view towards the proposed house. As regards the upper part of the inclinator, the canopies of the trees that will remain on the subject site behind the proposed house on No 29A would overhang and also tend to screen the inclinator. As viewed on the waterway about 300 m from the foreshore, one of the objectors suggested in a written submission that the proposed house on No 29A and a future house on No 33 would be more visible. I think that this is likely to be the case. However, the proposed house and possible future house on No 33 could be made to blend in with the bushland by being finished in bushland-type colours, as seen in Ms Formston’s colour schedule in the statement of environmental effects. And see the colour photo-montage (appendix K of the statement of environmental effects), which shows a view from the waterway of the foreshore and of possible houses partly visible on the hillside of the subject land.

79 . The weight of the evidence, including the specialist evidence of Dr Lamb, leads me to conclude that if the proposed development was otherwise acceptable, it should not be refused because of any adverse visual impact as viewed from the foreshore or waterway. However, as I indicated, there are concerns about the visual impact for adjoining neighbours.

Bushfire protection

80 . In relation to bushfire protection, reference should be made to Planning for Bushfire Protection (2001) produced by NSW Rural Fire Service and PlanningNSW.
81 . In a letter dated 29 July 2003 the NSW Rural Fire Service stated:

The Rural Fire Service does not recommend the proposed development based upon poor accessibility. The proposal provides minimal opportunity for five agencies to access the property and provide suitable fire suppression for the dwelling.

However, the letter went on to suggest various conditions should consent be granted. One of those conditions was:

Trees within the property should not form a continuous canopy (there must be a minimum 2 m separation between tree canopies) and no part of the tree to overhang within 5 m of any building.

82 . During the hearing, the experts on bushfire protection, Mr J. Travis (for the applicants) and Mr J. Black (from the Rural Fire Service for the respondent) came to an agreement and produced a joint statement (ex 13). The parties’ agreed draft conditions relating to bushfire protection are conditions 14, 15, 15A-15AE in annexure A hereto (assuming it was otherwise appropriate to grant consent).

Threatened species

Joint report of experts
83 . The joint expert statement on the flora and fauna (ex 20) by Mr N Skelton (for council) and Mr P Conacher (for the applicants) was to the following effect:

Introduction
The flora and fauna experts agree that the site includes all of the existing properties 29, 31 and 33 i.e. including the existing houses.
The disturbance considered is due to the proposed house 29A, the building envelope of 33, the parking facilities, the inclinator and any paths from the inclinator.
For the purposes of this experts’ joint statement the number of trees to be removed is taken as the upper numbers identified by Nicholas Skelton in the joint experts statement between Nicholas Skelton and Kyle Hill in relation to the arborists issues.

1. Quality of the habitat on the site
Council’s expert considers the site to be a relatively intact and high value habitat with few weeds and with good connections to adjacent bushland. However, the alignment of the inclinator is very weedy.
The Applicants’ expert says the site 29A including the carparking facilities has moderate levels of weed invasion and moderate habitat value, lot 33 contains low levels weed invasion and moderate habitat value and the alignment of the inclinator is heavily weed infested with moderate habitat value.

2. The site is within a wildlife corridor.
Applicants’ expert: yes for No 33 and no for No 29. However fauna will use the trees.
Council’s expert considers the site is within a wildlife corridor.

3. The site is within core or fragmented bushland as mapped in DCP 25.
Both experts agree with the statement.

4. The Council’s Tree Preservation Order defines a tree.
Both experts agree with the statement.

5. Extent of the disturbance assessed
Applicants’ expert agrees with the upper numbers of trees as identified by Nicholas Skelton in the joint Arborist statement with Kyle Hill.
Council’s expert says 106 of the 229 trees (46%) will be removed and 35 % (not including fire hazard measures or requirements) of the bushland will be disturbed as a result of the proposal.

6. Disturbance due to geotechnical requirements has not been assessed.
Both experts agree with the statement.

7. Disturbance due to any bushfire hazard protection requirements have not been assessed including any stairs.
Applicants’ expert disagrees. Council’s expert agrees.

8. Disturbance due to trenching for connection of utilities from houses to the inclinator alignment has not been assessed. There are opportunities to provide acceptable connection of facilities but these are not shown on the plans.
Both experts agree with the statement.

9. The disturbance considered will not significantly impact on the Endangered Pittwater Spotted Gum Forest Ecological Community, however, the impact will contribute to the general ecological impact of the proposal.
Both experts agree with the statement.
10. The disturbance considered so far is not likely to have a significant impact on the following threatened fauna species due to absence of suitable habitat on the site for these species. These species were mentioned in the Applicants reports and do not need to be considered further.
Both experts agree.

Giant Burrowing Frog
Rosenberg’s Goanna
Bush Stone-curlew
Regent Honeyeater Swift Parrot
Sooty Owl.

11. Threatened species that do have foraging habitat on the site but there is not important breeding, nesting or resting habitat are listed below. These species generally are highly mobile and have large home ranges. The amount of habitat, proposed to be removed, is not likely to have a significant effect on the viability of any local population of these species or their habitats. Each of these species should not be considered to give determining weight on its own. However, the impact of the proposal on these threatened species does contribute to the general ecological impact of the proposal. The impact on any one of these species is not likely to require a Species Impact Statement on its own.
Both experts agree.

Superb Fruit-dove
Barking Owl
Masked Owl
Powerful Owl
Spotted-tailed Quoll
Koala
Grey-headed Flying Fox
Common Bentwing-bat
Little Bentwing-bat
Eastern Freetail-bat
Eastern False Pipistrelle
Greater Broad-nosed Bat
Southern Brown Bandicoot.

12. Threatened species that the site is important habitat for and the disturbance resulting from the proposal is likely to significantly impact on the viability of a local population are listed below. The proposed impact is of a scale and there are sufficient uncertainties that further investigation into the significance of this proposal is required in the form of a Species Impact Statement:
Applicants’ expert says No species meet this statement.
Council’s expert says,

a. Red-crowned Toadlet,
b. Glossy-black Cockatoo, and the
c. Squirrel Glider

meet these criteria .

13. The buildings are positioned to reduce tree loss
Applicants’ expert agrees. Council’s expert disagrees.

14. The amount of habitat loss is acceptable under Council’s DCP23, DCP25 and LP15
Applicants’ expert agrees. Council’s expert disagrees.
15. The disturbance will affect the function of the wildlife corridor.
Both experts agree with the statement.

16. The Bushland Management Concept Plan meets the requirements of Council’s DCP23, DCP25 and LP15. (Note: the Landscape Concept Plan and Site Analysis Plan and the Landscape Strategy Report are not included as they are not part of the Applicant’s expert’s reports)
Applicants’ expert agrees. Council’s expert disagrees.

84 . In determining whether the proposed development is likely to significantly affect threatened species, populations or ecological communities, the consent authority may take into account the ameliorative measures that are proposed or required as part of the development. In Smyth v Nambucca Shire Council [1999] NSWLEC 226, 105 LGERA 65 at 69, Lloyd J said:

That this must be so is clear from the reference to whether it is the “development” which is likely to significantly affect threatened species, populations or ecological communities, or their habitats. It is not a question of whether the land contains threatened species, populations or ecological communities, or their habitats. The only reference to the land [in s 78A(8)(b)] is whether the land is, or is part of, critical habitat… The focus of the provisions is on the development, which necessarily includes any ameliorative measures which are proposed as part of such development.

85 . The main issue between the experts concerned item 12 in the above joint statement. In his investigations, Mr Conacher did not find any Red-crowned Toadlet on the subject land. However, in the week before the commencement of the hearing, Mr Skelton heard the call of a Red-crowned Toadlet. On behalf of the applicants Mr Leggat stated that the applicants accepted the veracity of Mr Skelton and were prepared to accept conditions which would protect the possible habitat of the Toadlet. See draft conditions 6(19) and (20) and 7B in annexure A hereto. In accordance with one of the conditions, any future house on No 33 would have to be erected to the north-west of tree numbered 35 and 36. Having regard to these conditions it was agreed that a species impact statement would not be necessary in respect of the Red-crowned Toadlet.

86 . As regards the Glossy-black Cockatoo and the Squirrel Glider, Mr Skelton (in ex 6) raised matters going to the adequacy of the assessment on behalf of the applicants, and I think that there is justification for some of Mr Skelton’s criticisms. However, the written material on behalf of the applicants was supplemented by oral evidence from Mr Conacher in relation to the eight-part test in section 5A of the Environmental Planning and Assessment Act 1979 .

87 . Although there is clearly conflicting evidence on the issue, it seems that there is some evidence upon which a consent authority could, if so minded, come to a decision that the proposed development is not likely to have a significant effect on threatened species, populations or ecological communities, or their habitats.

Flooding and stormwater drainage

88 . The property of Mr Bridgewater at No 35 (which has its side and rear boundaries bounded by part of the subject land) has been affected by stormwater coming down the hillside. Residents who live on the lower side of the main carriageway of Bakers Road raised serious concerns about damage to their properties from stormwater. It seems that the flooding is due in a large part to waters flowing from or across the subject land.

89 . To look at the enormity of the problems that occurred in the past, reference should be made to the folder of colour photographs (ex 12) relating to the damage that occurred on 6-7 January 1989 at 28 Bakers Road, owned by Dr Jean Battersby. The photographs were taken half an hour after the initial force of the inundation. In the first photo, mud and water are seen entering the front door of the house on No 28. In the second photo, fast-moving water is seen flowing out the other side of the house. Photos 3 and 4 show muddy waters in the garage of No 28 and flowing into the pool. Photos 7 and 8 show mud and water cascading over a retaining wall several metres high, which subsequently collapsed. A caption to photo 14 indicates 1 m of mud in the pool. Other photos indicate extensive damage, including damage to the concrete driveway of No 28 (the old concrete had to the jack-hammered out and a new concrete driveway constructed).

90 . Although it is not altogether clear on the evidence, it appears that since the 1989 flooding, a drainage pit has been installed on the northern side of the carriageway of the upper access of Bakers Road (5 m from the access handles of the land). From this pit water flows to another pit in the embankment between the upper access and the main carriageway of Bakers Road. Two existing pipes, having diameters of 300 mm and 375 mm, drain water from the subject land into the pit on the embankment. From this pit a single 375 mm diameter pipe drops down to the main carriageway of Bakers Road and passes under it. Further details concerning the council’s drainage system for this part of Bakers Road are not disclosed in the evidence. The Council has also undertaken drainage works in Minkara Road (at the top of the catchment area). But according to Mr R Bridgewater of No 35 Bakers Road, there have been further instances of flooding.
91 . There is a note on council’s file from Mr P Brisby of the council’s engineering department:

It appears that a satisfactory hydraulic analysis has been undertaken by Robert Brell engineers.
However it is still essential that a stormwater concept plan be provided showing proposed locations of OSD systems and in particular the overflow arrangements at the rear of the proposed new garage to ensure that overflows are diverted down the driveway and not on to 35 Bakers Rd.

92 . In the light of the matters raised by the objectors, it is not clear to me that the extent of the hydraulic analysis that has been undertaken is satisfactory. In the statement of environmental effects there are nine pages of handwritten notes dated 1 and 28 June 2002 and 30 August 2003 (plus a catchment sketch and graph) by Robert Brell. The stated purpose of the notes was to determine the ARI =100 year runoff discharging to the rear of the proposed garages and to pipe the water under the garages to the pit in the upper access. The calculations indicated that a 525 mm pipe was required for that purpose. The sketch of the catchment does not embrace the indicative site of a future house on No 33 or sub-surface drains, which would have to drain water across to a pipe within easements for services. It is not clear that the increased run-off from the hard surfaces of the proposed carparking court (as distinct from the runoff in the natural state of the land) has been calculated. On the basis that a 525 mm pipe is used for the pit outlet for the run-off from the upstream catchment, the comment is made on p 7 of the notes: “Should a severe blockage occur at the pit inlet grate, overflow will pass down the access steps to the inclinator and flow directly down the driveway.” The architect’s plan DA06B (pt ex G) shows the pit being referred to as located at the base station of the inclinator.

93 . Assuming that appropriate pit sizes and pipe sizes are provided within the subject land to cater for all the overland flow onto the subject land from the catchment and to cater for the run-off from the proposed development (and assuming that sub-surface drains as recommended by the geotechnical engineers are provided, which are not mentioned in Mr Brell’s notes), it is not clear whether sufficient consideration has been given as to how council’s drainage system in the upper access of Bakers Road will be able to cope with the water being discharged to it from the proposed development and from other sources.

94 . From the proposed pit at the inclinator, the architect’s plan shows a 525 mm pipe entering a pit in the proposed driveway on the subject land. The architect’s plan additionally shows that that pit will receive water via a 225 mm pipe from a surface grate pit (receiving water from the proposed garage roofs and the concrete car-manoeuvring area). Mr Brell’s diagram at p 8 does not show this additional 225 mm pipe entering the driveway pit. Mr Brell estimated that the capacity of the 375 mm pipe leaving the driveway pit would accept 400 l/s and that the pit would surcharge 87 l/s, which presumably would mean that the existing driveway pit would have to be modified or increased in size according to a specification from a drainage engineer.

95 . The architect’s plan then shows the 325 mm pipe from the modified driveway pit on the subject land passing under the upper access of Bakers Road to the pit in the embankment. According to the architect’s plan, this pit in the embankment also receives water from the pit on the carriageway of the upper access, into which water flows from No 29 and also surface water flowing down the carriageway of the upper access. All these flows leave the single pit in the embankment of the upper access via a 375 mm pipe that drops down to the main carriageway of Bakers Road. On the other side of Bakers Road are the properties that have experienced severe flooding in the past.

96 . In a letter to the council’s officer Mr Raven dated 15 December 2002 the applicants stated, “… we have no intentions of carrying out works within the street, as the works associated with the proposed subdivision and dwelling house construction is founded on the principle that run-off from the site will be restricted to those which are currently occurring.” However, it seems to me that the council has to be properly satisfied that that principle will be achieved or that the council’s drainage system can adequately cope with any additional or prolonged flows from the proposed development.

97 . If surcharging occurs at the pit just outside the subject land in the upper access, causing water to overtop the kerb and flow down the embankment, or if surcharging or a blockage occurs at the pit in the embankment, the stability of the embankment supporting the upper access could be adversely affected. For this reason, the geotechnical engineers were concerned that surface waters on the upper-access carriageway should not enter the embankment through defective pavement in the carriageway or overflow down the embankment. It seems to me that the proposed development should not materially increase the likelihood of surcharging or blockage occurring that would affect the upper access or its embankment.

98 . A council can be liable in negligence or nuisance for damage occurring from increased run-off from development that it has carried out or approved: cf. Rudd v Hornsby Shire Council (1972) 31 LGRA 120; Ku-ring-gai Municipal Council v Bonnici [2002] NSWCA 313; Alamdo Holdings Pty Ltd v Bankstown City Council [2003] NSWSC 1074. A council is not necessarily relieved from an action in negligence because it has relied on a certificate or report from a consultant, if the council using reasonable care should have been aware that the particular certificate or report was inadequate.

99 . There are various “without prejudice” draft conditions in annexure A hereto relating to stormwater, particularly relating to dealing with stormwater that would naturally tend to run along the line of the supporting foundations of the inclinator and stairway (e.g. condition 1AA(e)). However, the conditions do not expressly address the adequacy of the public drainage system to cater for any increased or prolonged flows from the proposed development (nor deal with what should happen in that case) but the conditions seem to assume that the drainage system is adequate (e.g. conditions 7 and 72).

Is No 33 (proposed lot 3) suitable for a future house?

100 . Originally, the applicants proposed to erect a house on No 33. However, the present development application was amended, and the plans now show only an indicative footprint for a house on No 33. Any future house on No 33 would have to be the subject of a future development application.

101 . However, part of the justification for the proposed inclinator and for one of the two-car garages in the parking court is obviously that it would be intended that a house would be erected on No 33. When considering a subdivision application, it is relevant to have regard to the likely future use of the subdivided lots: cf. Seraphina Bell Pty Ltd v Willoughby Municipal Council (1967) 69 SR (NSW) 344 (FC) at pp 359-360 per Walsh JA, with whom Wallace P and Holmes JA agreed on this point.

102 . The owners of 39 Bakers Road objected to the proposed development on a number of grounds relating to the indicative house that might later be erected, including loss of privacy (visual and aural), lack of spatial separation from the indicative house and land instability.

103 . Excluding the access handle, the proposed lot 3 contains most of the land in the current No 33 and is still in a very large lot. Had it not been for the discovery of a habitat for the Red-crowned Toadlet (referred to above at par 85), the preferable place to erect a dwelling would be towards the south-eastern end of the subject land where the land is less steep, and where there would be quite adequate separation of the new house from existing dwellings. Nevertheless, a major portion of any new house could probably still be offset from the house at No 39. Because of the size of proposed lot 3 (No 33), I do not think it could be said categorically that the council would never approve any dwelling house on the lot. Whether any particular house should be approved would depend upon the merits of the proposal. There are clearly many hurdles to overcome, including the provision of suitable access, the detailing of an acceptable method of getting building materials and equipment to the site, and the construction of the house in a manner which would not be likely to risk damage to the house below at No 39, where Mr Fletcher has lived for 30 years.

Geotechnical evidence

104 . The subject site is identified on council’s Geotechnical Risk Management Map 2003. Many letters of objection were received by the council concerning landslip and geotechnical problems. Mr Fletcher of No 39 Bakers Road gave the following history:

History of Landslip and Flooding of Upper End of Bakers Road

July 1961 , No. 33 was subdivided and a bitumen driveway was constructed down the right of way to connect to Council’s constructed driveway to No.29. As the right of way is a watercourse, the driveway was completely washed away within 3 years.

June 1964 , Nos 35 - 49 were subdivided. No 41 was constructed shortly after by excavating into the hillside. The subsequent landslip resulted in a 4 metre high concrete retaining wall bordering 3 sides of the house.

June 1974 , the entire bank in front of Nos 35 & 37 collapsed from the driveway down to Bakers Road. Council subsequently constructed a crib block wall and replaced the driveway which is zoned as Bakers Road.

1977 , the embankment in front of No. 41 collapsed onto Bakers Road resulting in the construction of another crib block wall.

November 1987 , the embankment in front of No. 37 collapsed from the driveway down to Bakers Road. Council’s Engineer Chris Hunt, supervised the extensive retaining works which took weeks to complete.

1989 , a retaining wall collapsed which had been constructed on the lower side of Bakers Road to provide driveway access to the newly subdivided Nos 36 & 38. The consultant engineer involved had retired and gone interstate so that Council’s Engineer Chris Hunt, supervised the extensive and very costly reconstruction works mainly funded by Council.

January 1989 , floodwaters originating from the watercourse on the right of way (Nos 31 & 33), caused extensive damage to Nos 28; 30 & 35 Bakers Road. Council subsequently undertook some remedial drainage works and kerbing. Although expensive flood damage had occurred previously to these properties, it had never been on this scale.
1996 , landslip occurred behind No 41 Batters Road.
*********
There are now at least 6 geotechnical reports on No 33: Golder Associates 1987; Jeffery & Katauskas 1999; Jack Hodgson 1995;Douglas Partners 2000; Jack Hodgson 1998; Douglas Partners 2002.
There are serious discrepancies between the reports about the extent and methods of necessary subsurface investigation, generalisability of findings across the site, the existence and implications of the watercourse and assessments of the likely stability of the site after development. No engineer would guarantee the stability of this slope and it’s therefore imperative that safety is not compromised. We don’t want another Thredbo .

See also Mr Fletcher’s sketch (ex 14) illustrating where slips occurred in the upper access and on adjoining properties.

105 . Regard should be had to the above-mentioned geotechnical reports mentioned by Mr Fletcher that are contained in the council’s bundle of documents (ex 3). At the hearing, the applicants tendered reports by Mr D Murray of Douglas Partners dated May 2002, 30 June 2003 and 7 October 2003. Besides the earlier reports in the council’s bundle of documents, the council tendered evidence from Mr G Kotze.
106 . The joint expert report by the geotechnical engineers is of considerable importance and I set out in full:

Joint Report by G P Kotze and D E Murray – 28 October 2003

A joint site inspection was carried out by G P Kotze and D E Murray on 22 October 2003. The geotechnical issues raised in the Statement of Evidence by G P Kotze and discussed in the Douglas Partners letter of 7 October 2003, were jointly reviewed on site and agreed as follows.
i) Common Access Drive from Bakers Road
To minimise any potential to adversely impact the stability of the common access drive, it was agreed that:

A vehicular weight or load restriction should be imposed on construction traffic using the common access drive. The maximum load/weight to be defined by Council.

A dilapidation report documenting the condition of the pavement and concrete kerb should be undertaken prior to the commencement of the proposed works. Any damage caused to the pavement or concrete kerb of the access drive during construction of the proposed works should be made good by the Applicant.

An ongoing maintenance responsibility should be formalised between all parties serviced by the common access drive whereby the pavement and the concrete kerb along the northern edge of the common access drive is maintained intact to prevent stormwater from discharging into or onto the slopes below the access drive.

ii) Proposed Excavation Channel for Inclinator
To maintain adequate levels of excavation stability and workforce safety it was agreed that:

The excavation of this channel should be carried out under geotechnical supervision.

All fill, soil and extremely to highly weathered rock horizons exposed in this excavation should be treated with both temporary shoring (or geotechnically approved battering back where possible) and permanent support (or geotechnically approved battering back where possible).

The permanent support measures to be implemented for the excavation should be designed by a suitably qualified and experienced engineer. The design of the support measures should be endorsed by a suitably qualified and experienced geotechnical practitioner.

iii) Stability of Cuttings/Excavations in Access Corridor to 31 and 33 Bakers Road
To achieve and maintain adequate levels of slope stability on both sides of the access corridor, it was agreed that:

All fill, soil and extremely to highly weathered rock horizons on both sides of the access corridor should be subject to either engineered earthworks and drainage control or to appropriate retention measures to ensure adequate levels of stability are maintained within and along the inclinator/drainage route.

The earthworks and/or retention measures to be adopted should be designed by a suitably qualified and experienced engineer. The design of these measures should be endorsed by a suitably qualified geotechnical practitioner.

iv) Rock Cutting at Upper End of Access Corridor
To ensure that the fractured, partly detached and potentially unstable rock mass in the sandstone cutting at the upper end of the access corridor cannot fail and impact the inclinator and drainage route, the subject rock mass should either be removed or stabilised such as by using a suitable conventional rock bolt, prior to the commencement of construction or development works in the access corridor. The removal or stabilisation of the rock mass should be carried out under geotechnical supervision.

v) Future Drainage of No 33 Bakers Road
To support the geotechnical feasibility of constructing a residence on No 33 in the future, it was agreed that hydrological documentation should be provided to confirm that all stormwater collected on No 33, including run-off from any overlying catchment(s), can be suitably piped away from No 33 in compatibility with the proposed developments on 29 and 31 Bakers Road.

vi) Proposed New Car Parks and Inclinator Excavations
A construction sequence, OH & S Safety Plan and Geotechnical Inspection Programme for the proposed car park and inclinator channel excavations should be compiled. This sequence/programme should be endorsed by a suitably experienced and qualified geotechnical practitioner prior to the commencement of any work on the site.

vii) General
In addition to the above, all the recommendations presented in the Douglas Partners reports relating to the proposed developments should be adhered to. Certifications of design compliance of all proposed excavations, retaining walls and residential foundations should be obtained from suitably qualified and experienced structural and geotechnical engineers, prior to the commencement of any works on the site.
There were no points of geotechnical disagreement regarding the DA requirements of the proposed developments.
[Signed:]

G P Kotze,
Chief Engineering Geologist,
GHD LongMac

D E Murray,
Senior Engineering Geologist,
Douglas Partners.

107 . Many of the draft conditions of consent relate directly or indirectly to geotechnical matters or to the inclinator, carparking court and driveway to it, stormwater, excavated material, and the upper access of Bakers Road. See conditions 1AA, 1A, 7-9, 10, 12, 24, 31, 32, 44-49, 50, 62, 88, 91, 98, 100-106. Although as a matter of law it may be open to the Court to impose such conditions, some of the conditions involve further investigations or specifications that may disclose other problems, and as a matter of merit in this particular case I would be hesitant to grant development consent (in the hope that all would work out well) when more certainty could be obtained before deciding whether to grant development consent.

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

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

50. The footpath and adjacent roadway is to be kept free of obstruction by building materials and/or plant without Council’s prior written approval. All concrete trucks, pumps and associated plant are to be kept wholly within the site. No concrete or slurry is to be discharged into the street or the street drainage system.
51. If approved works are likely to cause pedestrian or vehicular traffic in a public place to be obstructed or if works involve the enclosure of a public place, then a hoarding or fence must be erected between the work site and the public place.

If necessary, an awning or other structure is to be erected, sufficient to prevent any substance from, or in connection with, the work falling into the public place. Further, the work site must be kept lit between sunset and sunrise if it is likely to be hazardous to persons in the public place.

Any such hoarding, fence or awning is to be removed when the work has been completed.
NOTE: Hoardings and temporary awnings erected on or over public places are required to be subject to a separate approval from Council.

52. A sign is to be erected in a prominent position on the site stating that unauthorised entry to the work site is prohibited and showing the name of the person in charge of the work site and a telephone number at which that person may be contacted outside working hours. No sign is required where works are internal only or where the premises are occupied continuously during and outside working hours.

53. Toilet facilities are to be provided at or in the vicinity of the work site during the duration of the development.

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

55. All plumbing and drainage fixtures are to be concealed and not exposed to public view on buildings over one storey in height.

56. Timber log retaining walls are not permitted and are not to be included in the proposed development. Details of land fill behind retaining walls to be provided.

57. No open solid fuel/wood burning fireplaces and stoves permitted other than those that comply with AS 4013-1992. Open fireplaces and/or timber fuel burning stoves are not permitted.

58. The installation of in-sink food waste disposal units is prohibited due to the increased loading placed on the Warriewood Sewage Treatment Plant particularly during wet weather.

59. All external glazing is to have a maximum reflectivity index of 25%.

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

61. Use of the inclinator being restricted to a total of 24 movements per day during 7am and 10pm time period and two movements between 10pm and 7am (except in emergencies). The maximum noise level associated with the inclined passenger lift is not to exceed 60dB(A), when measured one metre from any adjoining residential building.
62. No storage of building materials or building waste, excavated fill or topsoil storage is to occur within the dripline of trees shown on the approved landscape working drawing(s) as being retained or within protective fenced areas. No fill is to be introduced in the area of native vegetation or habitat remaining on the site.

Drainage is to be arranged such that fill, building materials or contaminants are not washed into protective fenced areas.

Further, the project manager is to erect signs advising all contractors and visitors to the site that no works or storage are to take place within the dripline of existing trees.

64. In accordance with Pittwater Council’s Tree Preservation and Management Order, all existing trees as indicated on Survey Plan No.112:01 DA01, Rev. E, dated 1.10.03, shall be retained except where Council’s prior written consent has been obtained, or where after approval of the relevant Construction Certificate Application/s, trees stand within the envelope of approved buildings or within the alignment of approved permanent paved vehicular access roads and parking areas.

65. Revegetation is to be carried out as soon as the site preparation/excavation has been completed.

66. Any variation which substantially alters the landscape design intent or potentially conflicts with a condition of development consent is to be approved by Council or the accredited certifier prior to implementation. Written notification and justification of the variation is to be provided by the landscape architect/designer.

68. In the interests of fauna habitat conservation, the keeping of domestic cats on properties is discouraged and it is recommended that dogs be restricted to within the building at night and otherwise to be either within a fenced compound on the lot or on a lead and if kept, cats be restricted to within the building at night.

69. All declared noxious weeds under the Noxious Weeds Act 1993 together with other environmental weeds are to be removed and/or controlled using an appropriate technique.

70. All natural landscape features, including natural rock outcrops, natural vegetation, soil and watercourses, are to remain undisturbed except where affected by necessary works detailed on approved plans and if any Aboriginal Engravings or Relics are unearthed during construction all work is to cease immediately and the Metropolitan Local Aboriginal Land Council (MLALC) and National Parks and Wildlife Service (NPWS) are to be notified.

71. The development is not to result in the redirection of surface water onto any adjoining property.

72. All stormwater is to be piped to the Council street drainage system in Bakers Road.

73. The removal or destruction of bush rock has been listed as a Key Threatening Process under the NSW Threatened Species Conservation Act, 1995. No bush rock is to be removed or destroyed or buried without prior consultation and approval by NSW National Parks and Wildlife Service and Council.

75. Guards or fences are to be provided around native vegetation as identified/ nominated on the approved plans. The guards or fences are to be installed prior to the commencement of any work on the site. No works, including utility installations (eg. water, sewer, telephone, drainage), are to be undertaken within 4 metres of the trunk of any such trees. The tree guards shall be a minimum 1200mm high at least four (4) metres from the base of the nominated tree/s and constructed from timber posts and rails or posts and suitable plywood panels.
77. The developer or contractor will take all measures to prevent damage to trees and root systems during site works and construction activities including provision of water, sewerage and stormwater drainage services. In particular, works, erection of structures, excavation or changes to soil levels within 5 metres of the trunks of trees to be retained are not permitted unless part of the development as approved, and the storage of spoil, building materials, soils or the driving or parking of any vehicle or machinery within 5 metres of the trunk of a tree to be retained, is not permitted.

NOTE: Trees that are part of an Endangered Ecological Community or are habitat for threatened species and endangered populations must comply with the requirements of the Threatened Species Conservation Act, 1995. Failure to do so may result in a penalty up to a maximum of $250,000.00 and jail sentences.
Failure to comply with the requirements of the Pittwater Council Tree Preservation and Management Order may result in a penalty up to a maximum of $20,000.00 .

78. All works within 5 metres of the existing trees to be retained including pruning, demolition, excavation, civil works, fencing and the like must be carried out by hand under the supervision of an experienced and qualified Arborist. Should roots larger than 50mm be encountered all excavation works are to cease immediately and a qualified Arborist is to advise on the impacts of the roots’ removal on the tree’s survival and report to Council’s Landscape Architect.

If tree roots are present a pier and beam method of footing construction is to be adopted so as to bridge/span any identified lateral roots.

79. When working within the drip line of the trees, hand digging is to occur in sensitive areas. Liaison on a daily basis is to be maintained during the excavation works between the Builder and Arborist. No filling or compaction shall occur over tree roots within the area defined by the outer drip line of the crown. Root protection/ compaction mitigation in the form of planks or metal decking supported clear of the ground fixed to scaffolding is to be installed as required.

80. Advise contractors and visitors to the site of the purpose for the tree/ native vegetation/ habitat protection/exclusion fencing installed in accordance with this consent by the placement of a suitable warning sign.

81. The removal of trees on Lot 3 (No.33 Bakers Road) is to be further considered in relation to the subsequent development application for the house on the lot and no trees within the designated building envelope are to be removed as part of the subdivision works.

82. A site fence and/or silt and sediment control fence is to be erected and maintained during the course of works along any street frontage boundary to the site.
83. A clearly legible “Site Management Sign” is to be erected and maintained throughout the course of works on the site. The sign is to be centrally located on the main street frontage of the site and is to state in clearly legible lettering the following: -

Builder’s name, builder’s telephone contact number during work hours.

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

Street levels are to be obtained for the construction of any access driveway crossing between the site and the constructed roadway in accordance with Condition B27.

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

No other works are to be carried out in Council’s Road Reserve without its approval.

No skip bins or materials are to be stored on Council’s Road Reserve.

E. MATTERS TO BE SATISFIED PRIOR TO ISSUE OF OCCUPATION CERTIFICATE

NOTE: The issue of interim or partial Occupation Certificates is not permissible within the terms of this consent unless otherwise specifically stated. Prior to the issue of an Occupation Certificate of the proposed garages and house the principal certifying authority is to ensure that Council’s assets, including road, kerb and gutter and drainage facilities adjacent or near to the site have not been damaged as a result of the works. Where such damage has occurred, it is to be repaired to Council’s written satisfaction prior to the issue of an Occupation Certificate or suitable arrangements put in place to effect those repairs at a future date to Council’s written satisfaction. Should this process not be followed, Council will pursue action against the principal accredited certifier in relation to the recovery of costs to effect such works.
NOTE: It is an offence to occupy the building or part thereof to which this consent relates prior to issue of an Occupation Certificate.

84. A certificate prepared by an appropriate qualified person is to be submitted, where relevant, for the following building components: Pest control, Geotechnical requirements, Ground floor levels, Footings/slabs/piers/retaining walls, Bearers and joists and subfloor ventilation, Wall, roof frames and window location, Wet areas, Masonry construction, accessories and weatherproofing, Subsequent floor levels, Stair construction, Balustrading adequacy, Artificial lighting and mechanical ventilation, Roof cladding, Roof ridge levels, Smoke alarms, Site stormwater management, Onsite stormwater detention, Driveway construction, Excavation and/ or filling, Inclinator , Inclinator noise, Landscaping , Bushland Management Strategy , Native vegetation planting, Arborist, BCA certification (parking garages), Structural certification (parking garages, inclinator).

The certificate is to certify the satisfaction of Council or the accredited certifier (on the relevant Council certification forms) that the nominated works have been carried out in accordance with the Building Code of Australia, relevant Australian Standards and any conditions of Development Consent. Works are not to progress past this point until Council or the Accredited Certifier has confirmed that this condition has been satisfied.

Where this confirmation of compliance is issued by a private certifier, for the purposes of keeping a public record, a copy of the letter is to be forwarded to Council within 5 working days of the date of issue.

85. Prior to completion of the project, the inclinator rail and support posts are to be painted dark green or similar, to limit its visual impact when viewed from the surrounding area.

Where the project is being supervised by a private certifier, for the purposes of keeping a public record, a copy of the report is to be forwarded to Council within 5 working days of the date of issue.

86. Street numbers are to be affixed to the building or entry gate prior to occupation. House numbering can only be authorised by Council. Before proceeding to number each lot/occupancy in your development, approval must be sought from Council’s Planning and Assessment Business Unit. Australia Post specifies the size and location of letterboxes.

87. Certification is to be provided to Council by an experienced civil engineer who is NPER accredited by the Institution of Engineers (Australia) that the drainage/stormwater management system has been installed to the manufacturer’s specification and completed in accordance with the engineering plans and specifications this consent.

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

89. The building on lot 3 (No 29A Bakers Road) is not to be occupied or used until an Occupation Certificate has been issued, confirming that the project complies with the relevant standards and the conditions of development consent. The request for an Occupation Certificate is to be accompanied by a copy of all of the Compliance Certificates required by the conditions of development consent
90. Prior to issue of the Occupation Certificate, certification is required in accordance with the Geotechnical Risk Management Policy for Pittwater that construction works have been carried out so as to comply with the recommendations and specifications contained in the geotechnical reports referred to in Conditions 1AA and 3..

Form 3 of the Geotechnical Risk Management Policy is to be completed and submitted to Council or the Accredited Certifier.

91. A positive covenant/ restriction on the use of land is to be created to the satisfaction of Council’s solicitor in favour of Pittwater Council where there are any specific management, maintenance or main caning requirements in these conditions to ensure the geotechnical risk of the development is managed in accordance with Pittwater Council’s Interim Geotechnical Risk Management Policy dated June 2003.

The terms of the covenant are to be based on the recommendations and specifications contained in the geotechnical reports referred to in Conditions 1AA and 3, in addition to any further recommendations and specifications of a qualified practising Geotechnical Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field. .

92. {The two paragraphs of this condition were objected to by the applicants as unfair.} A positive covenant/ restriction on the use of the private driveway within the road reserve of Bakers Road bounding the subject land and benefiting Council is to be created to require on-going maintenance/inspections to ensure that the development achieves the “acceptable level of risk” criteria over the life of the development.

The terms of the covenant are to be based on the recommendations and specifications contained in the geotechnical reports referred to in Conditions 1AA and 3, in addition to any further recommendations and specifications of a qualified practising Geotechnical Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field.

93. A positive covenant is to be created on the title to ensure the on going maintenance and performance of the on-site stormwater detention and stormwater drainage system. The terms of the covenant are to be in accordance with Councils standard wording.

F. MATTERS TO BE SATISFIED PRIOR TO ISSUE OF SUBDIVISION CERTIFICATE

94A The surveyed area of Lot 1 and 4 exclusive of access corridors must be certified as not less than 700m2 .
94. A contribution of $ 4906 is to be made to Cashier Code SOPS, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Open Space Embellishment, in accordance with Section 94 Contributions Plan No.2. The Contributions Plan may be inspected at Pittwater Council, Unit 11, No 5 Vuko Place, Warriewood. The Section 94 contribution is to be paid prior to issue of the Construction Certificate or Subdivision Certificate, where relevant. When making payment please complete and return the “Payment of Section 94” form attached to this consent.

A contribution of $ 875 is to be made to Cashier Code SLEL, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Public Library Services, in accordance with Section 94 Contributions Plan No.3. The Contributions Plan may be inspected at Pittwater Council, Unit 11, No 5 Vuko Place, Warriewood. The Section 94 contribution is to be paid prior to issue of the Construction Certificate or Subdivision Certificate, where relevant. When making payment please complete and return the “Payment of Section 94” form attached to this consent.

A contribution of $ 877 is to be made to Cashier Code SCSF, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Community Facilities, in accordance with Section 94 Contributions Plan No.18. The Contributions Plan may be inspected at Pittwater Council, Unit 11, No 5 Vuko Place, Warriewood. The Section 94 contribution is to be paid prior to issue of the Construction Certificate or Subdivision Certificate, where relevant. When making payment please complete and return the “Payment of Section 94” form attached to this consent.

95. Appropriate easements are to be created where service lines or drainage lines pass through private property other than the lot which they benefit. Full details in this regard are to be submitted to Council, prior to release of the Subdivision Certificate.

96. Appropriate Rights of Way and Rights of Carriageway are to be created over the common driveway burdening and benefiting the proposed lots, to provide for suitable legal pedestrian access to the dwellings and appropriate vehicular access and manoeuvring to the parking areas to lots 2, 3 & 4 and also the area occupied by the inclinator servicing lots 2, 3 & 4. Full details in this regard are to be submitted to Council, prior to the commencement of construction.

97. A Certificate is to be submitted by a qualified practising Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a Corporate member and has appropriate experience and competence confirming to the satisfaction of Council or the accredited certifier that the on site stormwater detention has been constructed in accordance with the plans nominated on the Development Consent and relevant conditions of Development Consent. The Subdivision Certificate will not be released until this certification has been submitted and Council or the accredited certifier has confirmed that this condition has been satisfied.

98. A Certificate is to be submitted by a qualified practising Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a Corporate member and has appropriate experience and competence confirming to the satisfaction of Council or the accredited certifier that the driveway has been constructed in accordance with the approved plans and/or Council’s DCP-E3 and/or AS 2890.1-1993 and relevant conditions of Development Consent. The Subdivision Certificate will not be released until this certification has been submitted and Council or the accredited certifier has confirmed that this condition has been satisfied.

99. A copy of the Section 73 Compliance Certificate issued under the provisions of the Sydney Water Act, 1994, is to be forwarded to Council or the accredited certifier, prior to release of the Subdivision Certificate.

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

G SPECIAL CONDITIONS ARISING FROM GEOTECHNICAL ENGINEERS JOINT STATEMENT

101. The applicant shall commission an investigation by a geotechnical engineer and structural engineer prior to the commencement of any works and prior to the release of the linen plan of subdivision, to establish the condition of the upper access (within the reserve of Bakers Road) from its commencement with the main carriageway of Bakers Road for its length up to and 6 m beyond the western boundary of the subject land, including the subsurface conditions of the upper access. That report shall establish the required engineering standards for proper construction of the driveway and the proposed passing bay for normal domestic use for seven dwellings and for emergency access and any works required to ensure the driveway is drained to Council’s required standards and is designed to prevent stormwater from discharging into or onto the slopes below the access drive. The report shall also stipulate any load limit that is required in respect of construction vehicles, normal use and emergency use. A copy of that report shall be submitted for the approval of the Council.

102. {Objected to buy the Council.} Prior to the issue of the construction certificate, a deed of agreement indemnifying council shall be entered into for the use of the upper access (referred to in condition 101 above).

103. Prior to the issue of the occupation certificate for the dwelling on Lot 4, the driveway from the dedicated section of Bakers Road up to the entrance to the common driveway serving the approved development shall be constructed to the standard stipulated in the report referred to in Special Condition 101 including the proposed passing bay within Lot 1 above and at the full cost of the applicant. A copy of the design for any re-construction work shall be submitted to Council’s Director, Engineering Services for approval prior to the commencement of any work.

104. Prior to the issue of the occupation certificate for the dwelling on Lot 4, the driveway from the common private driveway serving the development up to the western end of the driveway, adjacent to 39 Bakers Road, shall be made good in respect of any damage caused during the construction process.

105. Prior to the commencement of any works, the applicant shall be responsible for the erection of a sign indicating the load limits as referred to in Special Condition 1.
106. The works associated with the construction of the inclinator and stair shall be undertaken prior to the occupation of any dwelling on Lot 4.

__________________________

CITATION:	Formston v Pittwater Council [2004] NSWLEC 50
PARTIES:	APPLICANTS Katie Formston, Helen Kaminski, John MacRae and Pat MacRae RESPONDENT Pittwater Council
FILE NUMBER(S):	10319 of 2004
CORAM:	Nott C
KEY ISSUES:	Development Application :- Subdivision of steep land into four lots - size of lots - subject to slip - means of vehicular access - pedestrian access via an inclinator - removal of trees - visual impact - bushfire threat - threatened species
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, s 97
CASES CITED:
DATES OF HEARING:	3-7 November 2003
DATE OF JUDGMENT:	02/23/2004
LEGAL REPRESENTATIVES:	APPLICANTS Mr C J Leggat, barrister SOLICITORS Wilshire Webb RESONDENT Ms H P Irish, barrister SOLICITORS Malleson Stephen Jaques

Proposed lot	Proposed Address No.	Total Area of proposed lot (sq m)	Approx. area of lot excluding access corridors (sq m)
Lot 1	29 Bakers Rd	725	700
Lot 4	29A Bakers Rd	868	742 to 792.5
Lot 2	31 Bakers Rd	(1,039 + 200 =) 1,239	939 to 1,031
Lot 3	33 Bakers Rd	(2,400 + 88 =) 2,488	2,438