Hassell Pty Ltd v Warringah Shire Council - [2000] NSWLEC 49

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Hassell Pty Ltd v Warringah Shire Council [2000] NSWLEC 49

PARTIES: APPLICANT
Hassell Pty Ltd
RESPONDENT
Warringah Shire Council

FILE NUMBER(S): 10739, 10740, 10741 of 1999

CORAM: Sheahan J

KEY ISSUES: Development :- Resubdivision of existing lots - weight to be given to Draft Local Environmental Plan - adequacy of stormwater disposal - impact on threatened species

LEGISLATION CITED: Environmental Planning and Assessment Act 1979,
Warringah Local Environmental Plan,
Draft Warringah Local Environmental Plan 1999

CASES CITED: Blair v Curran (1933) 62 CLR 464;
Commonwealth v Sciacca (1988) 17 FCR 476;
Cook v Faithland (1993) 79 LGRA 308;
Kolivas v Port Phillip City Council (No. 48937 of 1996, 18 November 1997);
Lambidis v City of Parramatta (1995) 37 NSWLR 320;
Lean v Ku-ring-gai Council (24 September 1998, Talbot J);
Minister for Immigration v Kurtovic (1989-1999) 92 ALR 93;
Mirvac v Parramatta Council [1999] NSWLEC 239;
North Sydney Council v Standley (1998) 97 LGERA 433;
Partridge v Ku-ring-gai Council (20 June 1986, Cripps J);
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589;
Russo v Kogarah Council (Sheahan J 14 August 1998) [1999] NSWCA 303;
Warringah Council v Ardel Ltd [2000] NSWLEC 7;
Wiest v Department of Public Prosecutions (1988) 23 FCR 472

DATES OF HEARING: 21, 22, 23, 24, 26, 28 February 2000

DATE OF JUDGMENT:
05/12/2000

LEGAL REPRESENTATIVES:
APPLICANT
Mr N Hemmings QC
Solicitors
Allen Allen & Hemsley
RESPONDENT
Mr T Robertson, Barrister
Solicitors
Wilshire Webb

JUDGMENT:

IN THE LAND AND Matter Nos: 10739-10741

ENVIRONMENT COURT of 1999

OF NEW SOUTH WALES Coram: Sheahan J

12 May 2000

HASSELL PTY LIMITED

Applicant

v

WARRINGAH COUNCIL

Respondent

JUDGMENT

1. Introduction

1. These three appeals follow the refusal by Warringah Council (“ the Council ”) of three separate development applications for the subdivision of land in what has become known as the “ Ardel site ” at Aquatic Drive, Allambie Heights.

2. I record that I had the benefit of a site inspection and the assistance of Commissioner Graham Brown, who heard these three appeals with me, and had also assisted me in the earlier proceedings (Matter Nos 10427 and 10428 of 1997, 19 March 1998).

2. The Site

3. The total Ardel site (“ the site ”) is located to the south of Aquatic Drive, and was known as lot 2854 in Deposited Plan 822350. The site has an area of 3.644 hectares.

4. The site slopes generally from south to north. A depression runs the full length of the site from north to south, approximately in the centre of the site.

5. The sites of the proposed developments are lots 7, 17, 23 and 26 in the approved subdivision of the site, as shown in Figure 1 (“ subject sites ”). The areas of each of these allotments, as shown on the development plans prepared by Hassell Pty Ltd and submitted with the applications, are as follows:

· Lot 7 - 2,530m2

· Lot 17 - 1,002m2

· Lot 23 - 1,747m2

· Lot 26 - 742m2

6. The remaining allotments in the approved subdivision comprise 24 conventional allotments, ranging in area from 400m2 to 740m2, and five lots to be dedicated to Council, including open space reserves and a water quality control pond (“ WQCP ”), having a total area of 11,884m2.

7. Construction of the approved subdivision has commenced, and at the time of the hearing, the roadway was partially completed, the creek line had been altered, work commenced on the WQCP, and other work had been started on some of the approved lots.

8. The three appeals do not align with the existing lots but have the following configuration:

· Appeal No. 10739 of 1999 - part of lot 7 and lot 17

· Appeal No. 10740 of 1999 - lots 23 and 26

· Appeal No. 10741 of 1999 - part of lot 7

9. The lots associated with each appeal are shown in Figure 2.

3. The Proposal

10. Three development applications have been made to subdivide the subject sites, being lots 7, 17, 23 and 26 in the approved subdivision, into seventeen allotments, each with a detached dwelling.

11. The applications contain site specific designs for dwellings on each of the proposed lots. The outline of these dwellings is shown in Figure 1.

4. The Issues

12. The Council at its meeting of 3 November 1999 adopted ten reasons for its refusal of each of the three DAs.

13. For these proceedings the Council raised the following matters:

1. Whether pursuant to Section 79(c)(1)(a)(ii) of the Environmental Planning and Assessment Act (as amended) 1979 (‘the EP&A Act’) and draft Warringah Local Environmental Plan 1999, the proposal is inconsistent with the desired future character for the Aquatic Drive locality and the built form controls contained within the relevant locality statement.
2. Whether pursuant to Section 79(c)(1)(a)(ii) of the EP&A Act, the proposal does not fulfil, as intended, the objectives and provisions of Development Control Plan 19.
3. Whether pursuant to Section 79 (c)(1)(b) of the EP&A Act, the proposal would set an undesirable precedent for future development in the area.
4. Whether pursuant to Section 79 (c)(1)(b) of the EP&A Act, the proposal does not address issues relating to safety and amenity.
5. Whether pursuant to Section 79 (c)(1)(b) of the EP&A Act, measures to mitigate stormwater have not satisfactorily addressed and the proposed pond may be subject to modification.
6. Whether pursuant to Section 79 (c)(1)(b) of the EP&A Act, the proposal does not adequately address the risks to downstream areas and therefore the precautionary principle should apply.
7. Whether pursuant to Section 79 (c)(1)(b) of the EP&A Act, the proposal would compromise the viability of threatened species and areas set aside to preserve the significant environmental features of the site.
8. Whether pursuant to Section 79 (c)(1)(c) of the EP&A Act, the site is not suitable for development without adequate landscaped open space.
9. Whether pursuant to Section 79 (c)(1)(d) of the EP&A Act, the proposal is not consistent with the advice of the EPA when the land was rezoned, to retain the majority of trees on the subject land.
10. Whether pursuant to Section 79 (c)(1)(e) of the EP&A Act, the proposal fails to address matters mentioned above relating to the public interest.
11. Whether the development applications have fulfilled the following conditions precedent:
(a) Whether there is likely to be a significant effect on threatened species, populations or ecological communities or their habitats.
(b) If so, whether the Development Applications are accompanied by a Species Impact Statement.
(c) Whether the development is integrated development by reason of the requirements for approval under:

- Section 201 of the Fisheries Management Act 1994
- Part 3A of the Rivers and Foreshores Improvement Act 1948

- Section 10 of the Water Act 1912

12. Whether the development is in accordance with the principles of ecologically sustainable development.

13. Whether the development is in accordance with the NSW State Rivers Estuaries policy.

14. Several of those issues were not pursued during the hearing, and the main issues for the court to determine emerged as:

1. the weight to be given to draft Warringah Local Environmental Plan 1999?
2. the adequacy of the stormwater disposal system?
3. the impact on the threatened species, particularly the Red Crowned Toadlet and the Tetratheca Glandulosa community?
4. whether the subject sites or parts of the sites are appropriately classified as “ Duffys Forest ” vegetation community?
5. whether the design and location of the proposed dwellings is acceptable?

5. Planning Controls

5.1 Warringah Local Environmental Plan 1985

15. The subject site is zoned 2(e) Residential “ E ” pursuant to Warringah Local Environmental Plan 1985 (“ WLEP 1985” ), as amended. In this zone, dwelling houses, attached dwellings and group buildings are permissible only with development consent.

16. Clause 10 of WLEP 1985 requires development consent for, among other things, subdivision of land, where more than one allotment is to be created.

17. Clause 11 relates to subdivision in residential zones, and contains numerical controls for subdivision in a number of designated areas throughout the LGA. This clause, however, does not specify any numerical controls, including minimum allotment sizes, for the subject sites.

5.2 Warringah Development Control Plan No.19 - Allambie Heights

18. Warringah Development Control Plan No 19 - Allambie Heights (“ DCP No 19 ”) is a site specific DCP applying to land located to the west of the Spastic Centre, Allambie Heights.

19. The DCP divides such land into three precincts. The subject site is located entirely within Precinct 3, which has specific objectives.

20. DCP No 19 also contains four principal elements of control, relating to site planning, streets, streetscape, and building siting and design. Within each of these principal elements are several sub-elements.

5.3 Draft Warringah Local Environmental Plan 1999

21. The site is located within the G11 Aquatic Drive locality pursuant to Draft Warringah Local Environmental Plan 1999 (“ Draft WLEP ”) which was exhibited during October 1998. This plan will ultimately repeal WLEP 1985.

22. The Draft WLEP is divided into five parts, of which three are relevant to this site:

Part 2 - Control of Development
Clause 7 requires development consent be obtained for the type of development proposed in these applications.
Clause 12 sets out various matters that require consideration during the assessment process. They include ensuring that the development is consistent with:
(a) the General Principles of Development Control in Part 4
(b) the Desired Future Character described in the relevant Locality Statement in Part 5 of this plan; and
(c) and relevant State policies in Schedule S7.
Clause 14 sets out the categories of development
Clause 18 sets out how built form will be controlled.
Clause 20 sets out the requirements for subdivision. These are further detailed in Schedule S13 (subdivision matters).
Clause 21 sets out the requirement for a site analysis. These are further detailed in Schedule S2 (site analysis).

Part 4 - General Principles of Development Control
This part sets out a number of general requirements with which development should be consistent. The requirements are in the form of principles that should be considered during the assessment process.
The principles cover a number of areas, including issues relating to general matters, health and safety, public domain, site planning and building design, traffic access and parking, soil and water management, and heritage.

Part 5 - Locality Statements

6. Res judicata and/or issue estoppel

23. A preliminary issue arose in these proceedings when Council attempted to tender expert reports dealing with the WQCP and flora and fauna issues.

24. It was submitted by Counsel for the applicant, Mr Hemmings QC , that the tender should be rejected on at least the basis of principles in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 . It was argued that the matters in the particular reports had been determined by this court between the same parties in the earlier proceedings, and, therefore, cannot be revisited.

25. On the previous occasion there were before the court various plans indicating conceptually where the dwellings may be constructed on the lots now the subject of these appeals. However, in the previous appeal, the applicant expressly refrained from a commitment to those concepts, indicating that they were no more than a representative outline of possible houses. In fact, those details were provided only at the request of the Council, and their rudimentary or conceptual nature was significant to any question of estoppel in these later proceedings.

26. The correct application of the estoppel principles precludes any revisitation of the court’s decision to approve the original subdivision, which include the WQCP and other civil works now under construction, but does not preclude the court from discharging its statutory duties under ss 38 and 39 of the Land & Environment Court Act 1979 and s 79C of the Environmental Planning and Assessment Act 1979 (“ EPA Act ”) in determining these new and specific development applications, even though they raise issues which may relevantly and partially have been canvassed and determined in the earlier proceedings.

27. I gave detailed reasons for my decision and reviewed the authorities relied upon by both parties.

28. The disputed reports were admitted as tendered ( Exhibits W11-W17 ), despite some alleged lateness, but only insofar as they deal with impacts and issues relevant to the current applications.

7. Findings on the issues

7.1 The weight to be given to the draft WLEP?

29. The Draft WLEP was not a consideration in the previous appeal, but, pursuant to s 79C of the EPA Act it is a relevant consideration in these proceedings.

30. The amount of weight to be given to it is dependent on its imminence and certainty, the extent of conflict between the proposed development and the planning objectives contained in the draft LEP, and the existence and applicability of any savings clause in the draft LEP.

31. The Draft WLEP is a document that will ultimately replace all current planning instruments within the Warringah local government area. It has been exhibited, it was adopted by the Council in May 1999, and it has been referred to the Department of Urban Affairs & Planning (“ DUAP ”) for submission to the Minister and then, hopefully, gazettal.

32. The most recent correspondence from DUAP to the General Manager of the Council, dated 8 February 2000, stated in part ( Exhibit W34 fol 16 ):

This letter confirms that a meeting between Council Officers, DUAP and the Parliamentary Counsel, has now taken place. Revisions to the draft plan, suggested by Parliamentary Counsel, have been drafted by Warringah Council and have been referred to the Parliamentary Counsel with a request for an opinion as to whether the plan can legally be made.

In relation to the heritage provisions of the draft plan, the Department has now received confirmation that the changes to the draft plan, advised by the Heritage Council, are acceptable to Council. On receipt of the legal opinion from the Parliamentary Counsel the necessary planning reports will be finalised and the plan will be forwarded to the Minister for his determination without delay.

33. Draft WLEP was exhibited without a savings clause and the correspondence between the Council and DUAP ( Exhibit W34 ) indicated a disagreement as to the form of any savings clause that should be included in the draft WLEP when it is submitted to the Minister to make the plan.

34. The Council is seeking a clause that would “ save ” only prohibited development, and DUAP has indicated that it would be recommending to the Minister a clause that would generally take the following form:

Local environmental plans and deemed environmental planning instruments apply to development applications lodged but not finally determined before the commencement of this plan as if this plan had been exhibited but had not commenced.

35. The difference in the two approaches is significant in that the current application would not be saved by the Council’s proposed clause, whereas the DUAP version would still see the draft WLEP as a matter to be considered in the assessment of the application, notwithstanding its gazettal.

36. In considering the evidence from both parties I cannot reasonably conclude that the draft WLEP is imminent or certain, nor is there any evidence to suggest what form of savings clause will eventually be included.

37. On the basis of the correspondence from the Council ( Exhibit W34 fol 4) to DUAP it appears that any commitment to finalisation of draft WLEP is being further extended by DUAP because of other commitments.

38. While the differences between the objectives in WLEP 1985 and draft WLEP are significant, I am not convinced that this is sufficient for greater weight to be given to the draft WLEP.

39. It follows then that the principal planning instruments for the assessment of this application are LEP 1985 and DCP No 19.

7.2 The adequacy of the stormwater disposal system
7.2.1 The adequacy of the WQCP to accommodate the proposed development?

40. A relevant question that has to be answered in relation to the WQCP and the disposal of stormwater is whether the previous approval by the court included any provision for development of the subject sites.

41. If the previous application included provision for the development on these lots and it was found that the allowance for development was similar to that proposed in this application then there is no utility in reviewing the design of the WQCP as the current application does not propose any change to that previously approved by the court.

42. On the other hand, if no allowance was made for the development as now proposed, what needs to be determined is the additional impact this would have on the WQCP and the disposal of stormwater. It is not, however, a review of the WQCP and stormwater disposal arrangements per se.

43. The evidence of Mr Rick Morse, the applicant’s expert in these proceedings and also in the previous proceedings, was that the design included an allowance for the development of the subject lots.

44. This was disputed by Dr Steven Perrens, the hydrological engineer engaged by Council for these proceedings, in his original statement ( Exhibit W14 ), but qualified in his statement in reply, in which he states that Mr Morse’s “ original analysis gave a value for the percentage impervious that is close to my estimate ” however, this “ is entirely fortuitous and is no justification for lack of rigour ”. ( Exhibit W15 , par 2.2).

45. On this basis, I accept that the design of the WQCP and the stormwater disposal made an appropriate allowance for the development of the subject sites.

7.2.2 Implications for Manly Dam?

46 Despite the conclusion above, I will deal with those circumstances which have changed since the previous hearing, and briefly with some other issues raised in these proceedings.

47 Mr Morse, in the previous proceedings, indicated that 140% retention of phosphorus would be achieved through the WQCP (i.e. the WQCP would retain all the phosphorus produced on the site plus 40% of what came onto the site from the catchment). This would represent a nett improvement in the quality of water entering Manly Dam Reserve.

48 This was disputed by the respondent’s expert in those proceedings, Mr Greg Britton, who suggested that only 120-125% may be retained and, in a worst case scenario, only 100%.

49 Mr Britton’s conclusions were not dissimilar to those of Dr Perrens, who claimed a retention of 118-120% and, in a worst case scenario, a range between 98% (ie a loss of 2%) and a retention of 105%, depending on the particular approach to calculating the retention of phosphorus.

50 Importantly, Dr Perrens’ conclusions were based on a total review of the development including those lots not subject to these appeals.

51 Mr Britton was not called to give evidence in these proceedings.

52 In the previous hearing, the evidence of Mr Morse was preferred above that of Mr Britton, and, despite the additional evidence presented by Dr Perrens, I see no reason to move away from acceptance of Mr Morse’s evidence.

53 On 20 July 1999, after the Court’s previous decision regarding this site, the Council adopted the Northern Beaches Stormwater Management Plan (“ Stormwater Management Plan ”) whose primary goal is “to facilitate the coordinated management of stormwater within the Northern Beaches catchment to maximise ecologically sustainable development and the social and economic benefits of sound environmental stormwater management practices ” ( Exhibit W3 , page V).

54 The Stormwater Management Plan was reputedly prepared by Mr Britton and it provides for short and long term objectives for New Urban Development amongst other matters. The relevant short term objective is to reduce nutrient loads discharged to creeks and streams by 45%, and the long term objective is a 30% reduction ( Exhibit W3 , p 47).

55 While Dr Perrens disagrees with a number of assumptions made by Mr Morse in estimating the phosphorus reduction by the WQCP, he estimates that the actual reduction in phosphorus is in the order of 118-120%, rather than the 140% claimed by Mr Morse. His assessment is based on a time series analysis to account for hydraulic behaviour within the different sections of the WQCP.

56 Dr Perrens also disputes Mr Morse’s calculations because, in his opinion, about 60% of all flow will discharge as overflow from the WQCP and will receive minimal treatment. In addition, the quick removal of stormwater from the pond will negate any possible benefits from capturing a “ first flush ” of pollutants.

57 Mr Morse counters this argument by stating that the proposal exceeds the objectives in the Stormwater Management Plan by retaining the equivalent of 140% of phosphorus.

58 Mr Morse also disagrees with Dr Perrens in relation to the ability of the WQCP to treat nutrients, citing the effectiveness of the “ Lawrence Curves ”, which he considers produce a more conservative conclusion because of the clearly better performance of the proposed WQCP.

59 The conclusions of Dr Perrens and Mr Morse, in the end analysis, are not that dissimilar, only in the order of 8-10%, and, both conclude that the proposed WQCP would likely achieve reduced levels of nutrients leaving the site.

60 While it was explained that a greater overall reduction in nutrient level could be achieved by the location of the WQCP in stream, as distinct from locating it in a position that only treated the run off from the subject site, the fact remains that this provides a general benefit to the quality of the water in the catchment, and not only from the subject site.

61 There was also much evidence on the effects of the “ first flush ”. Dr Perrens stated that he did not necessarily consider that the first flush would actually transport nutrients into the WQCP for treatment. He cited a number of overseas authorities to support his position.

62 Mr Morse accepted much of Dr Perrens’ evidence but concluded by saying that he was unaware of any studies that dealt specifically with a catchment of this size or one with this incidence of impermeable surfaces. In his opinion, the effect of the first flush had to relate to the specific catchment and, in this case, with an impervious area of approximately 50%, Mr Morse considered that his conclusions were justified.

63 Again, on this matter, the court believes that the evidence of Mr Morse should be preferred, principally because his evidence was more site specific.

64 At issue also was the base level of phosphorus; Dr Perrens criticising the reliance on the previous study conducted by J H & E S Laxton entitled “ Water Quality at Allambie Heights ” ( Exhibit H13 ). In his opinion, the data was not representative, appropriate or applicable, principally because of the limited data collection period.

65 To a certain degree, Mr Morse accepted Dr Perrens’ criticisms. However, he indicated that the Laxton data was not the only data relied upon to reach his conclusions. Also used was the Sydney Water Board’s data for the Greendale Creek catchment, which also contained industrial uses.

66 On this basis, I accept that the applicant’s base figures for phosphorus are appropriate.

67 Dr Perrens was also critical that no hydraulic analysis was carried out, but this was refuted by Mr Morse who cited the work carried out by Egis Consulting. Mr Morse went on further to say that this analysis was available but, an offer to supply any further data required by the respondent, was not taken up.

68 Issue was also taken by Dr Perrens on the desirability of undertaking a time series analysis for rainfall to determine the appropriate sizing and performance of the WQCP.

69 A similar argument was put by Mr Britton at the previous hearing, but little utility was seen in undertaking this exercise because the evidence suggested that it would result in little change to Mr Morse’s conclusions.

70 Also since the court’s last decision the Department of Land & Water Conservation (“ DLWC ”) has produced a document entitled “ The Constructed Wetlands Manual - Volumes 1 & 2 ” (“ Wetlands Manual ”).

71 The respondent addressed this document through a statement jointly authored by Mr Rod Weise and Mr Malcolm Brown, an engineer and environmental consultant, respectively.

72 Their conclusions are that there are a number of aspects of the WQCP which do not accord with the Wetlands Manual.

73 Specifically they say:

74. Evidence for the applicant was again on this occasion provided by Associate Professor Herbert Bavor. He saw the departures from the Wetlands Manual as merely different approaches designed to optimise efficiency for the specific location. He cited in support of his position, the acceptance by the Environmental Protection Authority (“ EPA ”) and DLWC of the WQCP design, notwithstanding any departures from the Wetlands Manual.

75. While the Wetlands Manual provides very valuable detailed information on the construction of wetlands, I see no reason for it to be followed to the point where the specific characteristics of the site become secondary considerations.

76. As in the previous hearing, both Mr Morse and Associate Professor Bavor were impressive and knowledgeable witnesses with far ranging expertise in wetland construction. No new evidence was produced that would suggest that their conclusions were incorrect, and in addition Messrs Weise and Brown were unconvincing during cross-examination.

77. I am also mindful of the agreement, to the design, by the EPA and DLWC.

78. Even if Dr Perrens’ results were accepted, and the reduction in phosophorus leaving the site was in the order of only 120%, in my view, some allowance should be made for the fact that the majority of the development of the site was considered prior to the adoption by the Council of the Stormwater Management Plan. While no specific evidence was provided on how the subject sites should address the objectives of the Stormwater Management Plan, I remain satisfied that in overall terms, the WQCP will achieve an improvement in the quality of water draining to Manly Dam, and that it is an important feature of this project.

79. Reports were tendered from Dr Lillian Eckert an expert in aquatic ecology and Associate Professor Dominic Cheng an ecologist who has undertaken a number of water quality studies at Manly Dam. Neither was required for cross examination on their reports, but having examined their reports and I conclude that the current proposal does not raise any other issues that were not fully addressed in the previous hearing.

7.3 The impact on threatened species, particularly the Red Crowned Toadlet and the Tetratheca Glandulosa community?

7.3.1 Red Crowned Toadlet

80. The presence of the Red Crowned Toadlet on the site was accepted in the previous hearing and, after the evidence, it was found that the potential loss of toadlet habitat was not significant. The evidence of Dr Lionel Braithwaite was also accepted to the effect that the species is well represented in other areas which are not likely to be subject to the same development pressures as the site.

81. The evidence for the Council on this matter was provided by Mr David Robertson. He stated that no new information has been provided by the applicant and because of this it is not possible to assess the potential impacts of the development on the site. Criticism is also made of the previous assessment, having been conducted in very dry years and, therefore, likely to have underestimated the distribution and abundance of the toadlet.

82. Dr Braithwaite gave evidence again and he maintains that the conclusions he reached in the previous hearing have not changed and, in his opinion, the subject development is highly unlikely to have a significant adverse effect on the local population of the species. This conclusion is based on the characteristics of the habitat, the “ opportunistic ” characteristics of the breeding biology of the species, evidence that the prime breeding habitat is elsewhere, other than the Ardel site, and that the area of habitat affected by the development is small relative to the area of habitat in the Manly Dam Reserve, and elsewhere.

83. The applicant’s position, which was accepted by the court previously, was based on the “ 8 part test ”, required by s 5A of the EPA Act. In relation to the subject application Dr Braithwaite states that the “ 8 part test ” was used as the basis for his current report and that his conclusions did not change.

84. Since the previous hearing no further surveys have been undertaken on the site or in the locality. From the previous surveys only one location (No.6) was close to or located within lot 26. Having previously found that the loss of some examples of the Red Crowned Toadlet is likely to occur without significantly impacting on the species, the potential loss in this location is acceptable. This conclusion is based on the fact that the toadlet is still located in this position; a fact that was not proven and possibly unlikely because of their migratory nature and the activity which has been carried out on the site between the two hearings.

85. Consequently, I can conclude that the development of the subject sites is not likely to have a significant effect on the Red Crowned Toadlet.

7.3.2 Tetratheca Glandulosa

86. The existence of Tetratheca Glandulosa on the site was acknowledged in the previous hearing and, after considering the evidence, it was accepted that its location by survey allowed the subdivision of the lots to be designed to maximise the retention of Tetratheca Glandulosa. The retention of 80-90% of the population was considered acceptable when taken in the overall context of the incidence of the species elsewhere.

87. Mr Robertson’s evidence essentially provides a critique of the applicant’s new expert botanist, Mr James Warren’s, findings on this issue. He sees serious inconsistencies with the “ 8 part test ” and other areas of his statement. Based on this, he describes Mr Warren’s findings as “ unconvincing ” and as contradicting earlier information about the species.

88. Specifically, Mr Robertson takes issue with Warren’s comments that any species found on lot 26 can be transplanted and with his ability to be able to accurately identify Tetratheca Glandulosa.

89. Mr Warren initially misidentified Tetratheca Glandulosa on lot 26, but, in his oral evidence, he explained the difficulty in distinguishing Tetratheca Glandulosa from the more common species. His final conclusions that no Tetratheca Glandulosa existed on the subject sites were based on advice from the National Herbarium of NSW after providing samples of those species over which he had some doubt.

90. As there was no evidence to refute the conclusions of Mr Warren that no Tetratheca Glandulosa existed on lot 26, there can be no impact on this species from this development.

7.4 Whether the site is “

Duffys Forest Vegetation Community

”?

91. The NSW Scientific Committee, established by the Threatened Species Conservation Act 1995 (“ TSC Act ”), recently listed the Duffys Forest Vegetation Community as an endangered ecological community in Part 3 of Schedule 1 of the TSC Act. This listing post dates the previous decision of the court, although the Duffys Forest Vegetation Community was a recognised vegetation community at the time of the previous hearing.

92. The Final Determination of the NSW Scientific Committee contains a range of plant species potentially characterising the Duffys Forest Vegetation Community as well as distinguishable soil types and soil landscapes.

93. It was common ground that the area at issue was in the general location of the area previously set aside at the north-east corner of the site for the protection of the Tetratheca Glandulosa.

94. Mr Robertson refers to the area as “ transitional Duffys Forest ”. This area was identified on a map prepared by Mr Robertson and includes not only the area previously set aside for the protection of the Tetratheca Glandulosa (lots 30 and 31) but two proposed dwelling sites on lot 26.

95. Mr Robertson concludes that there is very strong evidence to suggest that the vegetation community in lots 30, 31 and 26 is “ transitional Duffys Forest” . He notes that fifty one (86.4%) of the species identified in the Final Determination have been recorded on lots 30, 31 and 26, and include many of the dominant species of the community.

96. On the issue of soils, the applicant relied upon the evidence of Dr Pamela Hazelton, a soil scientist. She concluded that the soil characteristics and landscape are those of the Somersby Soil Landscape, and that the soil investigated was a common laterite. This has occurred as an associated landscape within the Lambert Soil Landscape.

97. The soil type is the same as specified in the Somersby Soil Landscape which matches the description of the soil type, ie lateritic (ironstone) derived soil, described in the Final Determination for the Duffy Forest Vegetation Community.

98. Evidence on behalf of the applicant was provided by Mr Warren. In terms of plant species, his conclusion is that the site does not contain Duffys Forest vegetation as determined by the NSW Scientific Committee. In his oral evidence he accepted that the site was close to satisfying the criteria in the Final Determination, but the lack of Grevillia Caleyi was sufficient, in his view, to reject its classification as Duffys Forest Vegetation Community on the basis of plant species.

99. Mr Warren also relied on a report by Mr Michael Doherty of CSIRO Wildlife & Ecology, dated November 1998, and entitled “ Statement of Environmental Effects for Development of part Crown Land Reserve and Ardel land at Allambie Heights, in relation to the history of Duffys Forest Vegetation Community as an Endangered Ecological Community ”.

100. This report states, in part:

Despite having apparent floristic affinities with the Duffys Forest vegetation community, the definition provided by the Scientific Committee does not cover the combination of vegetation, soil type and topographic position found in the area through which the Crown Road passes or on the Ardel land. (Exhibit H7,

101. On the question of soil, Mr Morse disagreed with Dr Hazelton’s classification. He prepared a soil survey of the subject site in November 1995 ( Exhibit H7 , App 3) and found that the soils on the subject site are formed on the Lambert Soil Landscape and not Somersby or Blacktown landscapes identified in the Final Determination.

102. Mr Doherty, while accepting that the available mapping is not conclusive, considers that the site can be best described as transitional between Lucas Heights and Lambert soil landscapes, but not the Somersby or Blacktown soil landscapes. As with the Somersby and Blacktown soil landscapes, iron nodules also exist in soils of the Lucas Heights soil landscape.

103. Mr Doherty also states that, at the very least, the area above the subject site is shale of arguable origin. That area, while shale influenced, is downslope of the possible occurrence of Duffys Forest Vegetation Community, even if it does occur on parts of the Lucas Heights soil landscape.

104. While accepting the coarse scale of the mapping, the location of the subject site is some 500 metres off the main ridgeline and is not indicative of the flat ridgetop environment upon which the Duffys Forest vegetation is found.

105. It was generally agreed that the determination of whether the land is classified as Duffys Forest Vegetation Community involves three tests, these being the species composition, the soil type, and the soil landscape.

106. On the species composition, cl 3 of the Final Determination lists 59 species which characterise the Duffys Forest Vegetation Community. As noted above, and generally agreed, around 86% of these species have been recorded in lots 30, 31 and 26.

107. Clause 4 of the Final Determination states that “ the total species list of the community is considerably larger than that in 3 (above) with many species present in only one or two sites or in very small quantity ”.

108. Clause 6 of the Final Determination states that “ the endangered shrub Grevillia Caleyi is restricted to Duffys Forest Vegetation Community though it is not necessarily present at all locations of the community ”.

109. Importantly, Mr Robertson’s conclusions are based on lots 30, 31 and 26. However, lots 30 and 31are proposed to be retained in their natural state because of the need to preserve the existing examples of Tetratheca Glandulosa.

110. In my view, the evidence clearly shows a link between the species on the site and those specified in the Final Determination.

111. While the Grevillia Caleyi was not found on the site, its absence does not guarantee that the vegetation community could not be classified as Duffys Forest. On the specific issue of plant species, the site could not be excluded from being a potential Duffys Forest Vegetation Community.

112. On the matter of soils, I prefer the evidence of Mr Morse, principally because of the more thorough investigation carried out for his soil analysis. In coming to this conclusion, I acknowledge that the time spent on the site (some 30 minutes on lots 31 and 30, but none on lot 26) by Dr Hazelton, was not of her choice, and less than ideal for a thorough assessment.

113. While Dr Hazelton found iron nodules on the site, Mr Doherty also stated that iron nodules also exist in the soils of the Lucas Heights soil landscape so not too much reliance can be placed on the existence of iron nodules on the site.

114. Notwithstanding that the site has been mapped on the Sydney 1:100,000 sheet as Lambert Soil Landscape, I would agree that little can be drawn from this soil landscape mapping because of the scale of the mapping and the small area under investigation. Clearly, preference should be given to a more site specific analysis.

115. Dealing with the soil landscape the Final Determination sets out he environment upon which the Duffys Forest Vegetation Community occurs.

116. It is described as “ lateritic (ironstone) and deeply weathered shale derived soils on the ridgetops in the Duffys Forest/Ingleside/Belrose area well within Warringah, Pittwater and Ku-ring-gai Council areas ” (par 1) and “ lateritic soils on the ridgetops including part of the Somersby and Blacktown Soil Landscapes in the Duffys Forest/Terry Hills/Ingleside/Belrose areas. The soil can be distinguished from the surrounding sandstone soils by colour and the usual presence of ironstone modules ” (par 5).

117. In Mr Morse’s Soil Survey, he draws a strong distinction between the subject site and the lot to its north. The distinction between ridgetop land and land located off the ridgetops is clearly shown in his report.

118. The comments of Mr Doherty, in my view, provide an accurate description of the site in topographic terms. He states that if any areas in Allambie Heights are likely to show affinities with the Duffys Forest vegetation type, it will be those areas immediately to the north of the Warringah Aquatic Centre, and areas adjacent to the Wakehurst Parkway in this vicinity, closer to the main ridgeline and away from creeklines.

119. It is not acceptable for there to be a reasonably strong link with the designated plant species, without establishing an equally strong relationship with soil types and soil landscapes. Based on the evidence, I am not convinced that this relationship exists to the point where it could reasonably be established that the site contains the Duffys Forest Vegetation Community.

120. Overall, I must conclude that the subject site does not contain the Duffys Forest Vegetation Community, based on the specific matters raised in the Final Determination.

121. On this basis, s 5A of the EP&A Act has no part to play.

7.5 Whether the design and location of the proposed buildings is acceptable?

122. Evidence for the respondent was provided by Mr Paul Mitchell, a consultant town planner. His evidence relied, to a large extent, on an assessment based on the draft WLEP, which he described as a reflection of the Council’s current intentions for the site and locality. In his opinion, determining weight should be given to the draft WLEP over DCP 19.

123. On this issue, the applicant’s consultant town planner, Mr Stuart Harding, disagreed with Mr Mitchell, citing that DCP 19 is still the current planning control for the site. In any event, Mr Harding concludes that the proposal is not inconsistent with the relevant parts of draft WLEP.

124. I have already determined for reasons given earlier in this judgment that the principal planning controls for this proposal are WLEP 1985 and DCP 19, and the court’s assessment of the proposal should reflect the controls in those documents.

125. The specific issues raised by the respondent are:

126. On the issue of setbacks, Mr Mitchell relied on the draft WLEP Locality Statement for Aquatic Drive to conclude that a 10m setback should be provided. He does, however, acknowledge that the 10m setback could have been intended to apply to development on Aquatic Drive itself, rather than development on an internal road within the site. This was in fact confirmed through the Council’s list of amendments to draft WLEP supplied to DUAP dated 9 July 1999 ( Exhibit W34 ). In any event, Mr Mitchell describes the setbacks as insufficient.

127. Mr Harding, in his oral evidence accepted that the garages would be visible when looking down the street. However, he would not consider that the garages proximate to the street are dominant or have any adverse urban design impact.

128. On this matter, I accept the evidence of Mr Harding.

129. With the development of higher density housing must come compromises in certain areas, including setbacks. The intention of DCP 19 is clear and the degree of higher density development was considered appropriate when considered in the previous hearing. In fact, at that time the Council argued that insufficient higher density housing was to be provided with the development of the total site.

130. With the provision of landscaping, I accept that the reduced setbacks are acceptable.

131. The setback to the creek was also seen as an issue. However, the relationship between the lots and the creek was dealt with in the previous hearing and considered to be appropriate.

132. Mr Mitchell also took issue with the provision of open space on each of the proposed lots. Based on his calculations, there is total non-compliance with the 50% provision required under draft WLEP. He, however, accepts that the private open space provision is complied with in terms of DCP 19. For this reason, I find the private open space provision acceptable.

133. Mr Mitchell addresses the question of Ecologically Sustainable Development (“ ESD ”) in some detail in his report. His conclusions are that the proposal will have a negative effect on a significant number of sustainability indicators, particularly those relating to the retention of green spaces and biodiversity, and, to some degree, transportation. He accepts that other indicators, such as energy, and air quality and water, materials and water, may be able to be imposed through appropriate conditions.

134. Mr Mitchell’s comments, while being valid, must be considered in the context of the particular site. While there may be a very valid argument that the site should be retained in its natural state, the fact remains that it has been zoned for residential purposes. It is in this light that it must be considered.

135. The impact on flora and fauna has been extremely thoroughly researched and was subjected to much discussion in the two hearings before this court, as has the potential impact on Manly Dam. Its location close to public transport is also a matter essentially decided when the land was rezoned in 1992.

136. I also note that despite Mr Mitchell’s concerns over the lack of consideration given to the ecological sustainability of the development, those matters he considers could be adequately addressed through specific conditions, have not been included in the draft conditions.

8. Conclusion & Conditions

137. I have determined that all three appeals should be upheld, principally on the basis that the majority of issues raised by the Council were addressed in the previous hearing, and because the developments involved seem to the court to comply with the objectives of WLEP 1985 and DCP 19.

138. Where new matters, such as the Draft WLEP, the Stormwater Management Plan, and the inclusion of the Duffys Forest Vegetation community into Schedule 1 of the TCS Act, were raised, the evidence suggested that these matters were either adequately addressed in the previous hearing, or could not justify a refusal of the applications.

139. The conclusion in the previous hearing stated that the applicant had meaningfully addressed the constraints that have an impact on the site, and a similar comment could be made for the subject applications.

140. The parties successfully negotiated the appropriate conditions to impose on each of the applications and the court is content to adopt these in the approvals.

9. ORDERS

141. The formal orders of the court are:

A

B

C

Exhibits W5-W7

Proceeding no. 10740 of 1999

Without Prejudice Conditions of Consent

Land and Environment Court Proceeding 10739 of 1999

Development Application 1938 DA

Proposing the subdivision of proposed Lot 7 into 2 Lots and

a residue, the subdivision of proposed Lot 17 into 3 Lots and the

erection of a dwelling house on each of the 5 Lots

1. Development being generally in accordance with plans numbered 9901(3)DA-1B, dated 9.7.99, 9901(3)DA-2D, 9901(3)DA-3D both dated 16.8.99, 9901(3)DA-4C dated 21.7.99, 9901(3)DA-5C, dated 16.8.99, 9901(3)DA-6B, dated 14.7.99, 9901(3)DA-7C, dated 16.8.99, and landscape plan numbered PSL2633/DA02 “A” as modified by any conditions of this consent. (C1)

2. At least 2 days prior to work commencing on site Council must be informed, by the submission of Form 7 of the Environmental Planning and Assessment Regulation 1998 of the name and details of the Principal Certifying Authority and the date construction work is proposed to commence. (C168)

2A No works authorized by this consent in connection with the erection of the proposed dwelling-houses shall be carried out prior to the registration by the Registrar-General under Part 23 of Conveyancing Act 1919 of the plan of subdivision for which consent was granted by the Land and Environment Court of New South Wales in proceedings number 10427 of 1997 and in proceedings number 10739 of 1999 .

3. Compliance with Building Code of Australia

4. Residential Building Work

b) in the case of work to be done by any other person:

(2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purpose of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part. (C377)

5. Toilet Facilities

(1) Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

(2) Each toilet provided:

(3) The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced.

(4) In this clause:

- accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in Clause 95B of the Regulation.

6. A Construction Certificate is required to be approved by either Council or an Accredited Certifier, prior to the commencement of any works on the site. (C165)

7. Any Construction Certificate that may be issued in association with this development consent must ensure that any certified plans and designs are generally consistent (in terms of site layout, site levels, building location, size, external configuration and appearance) with the approved Development Application plans and conditions. (C166)

8. A survey certificate prepared by a registered Surveyor being submitted to the P.C.A. at the following stages of construction:

(ii) engaged piers;

(iii) structural support poles/columns of the building.

(b) At ground level to ensure the finished floor levels are in accordance with the approved levels, prior to concrete slab being poured/flooring being laid.

(c) At completion of the roof frame confirming the finished roof/ridge height is in accordance with levels indicated on the approved plans. (C323)

9. The hours of construction and/or work being restricted to Monday to Friday, 7am to 5pm, Saturday 7am to 1pm, no work on Sunday and Public Holidays, where the construction or work in the opinion of Council interferes with the amenity of the neighbourhood by the emission of noise, chemical or physical pollutants or otherwise. In respect of noise, the L10 level (average maximum noise levels) measured over a period of 15 minutes when the construction site is in operation must not exceed background noise level by more than 10dB(A). (C325)

10. All works on the site shall be undertaken to prevent erosion and transport of soil and sediment off the site and onto adjoining properties. Measures shall be taken in accordance with the requirements of Warringah Council’s Specification for Erosion and Sediment Control and a plan detailing the measures shall be submitted to the Council for approval prior to issue of the Construction Certificate. The plan is to detail measures to protect the creek and riparian vegetation adjacent to dwelling 17.01 and 17.03 during all construction works including the erection of boundary fences.

11. Provision shall be made throughout the period of construction to prevent transmission of soil to the public road and drainage system by vehicles leaving the site. (C44)

12. Compliance Certificate (Inspections) are required at the following stages of construction:

(a) Preliminary – immediately following the setting out of the development footprint prior to excavation and/or formation of footings or slabs with environmental protection measures and toilet facilities installed.

(b) Building Envelope – completion of the envelope skeleton prior to fixing of internal linings (where applicable).

(c) Final – prior to occupation/use, the satisfactory completion of the building works with respect to:

13. The fee(s) required for a Council Compliance Certificate inspection(s) is $1,500.00 and it is to be paid prior to Council issuing the Construction Certificate. NOTE: Each Compliance Certificate inspection fee is $100.00. Where Construction Certificates and Compliance Certificates are issued by external accredited certifiers the above fee is not required. (C397)

14. The following component certificates are required to be submitted to Council prior to occupation/use of the building, to ensure compliance with the Building Code of Australia and relevant Australian Standards: (C399)

1. Structural Engineers certificate covering the supervision of all structural work and adequacy of the building.

2. Electrical contractors certificate stating the smoke alarm system has been installed in accordance with AS 3786-1993 “Fire Alarms”.

3. Plumbing and Drainage contractors certificate indicating that sewer/waste water system has been installed and completed in accordance with the Sydney Water requirements.

4. Accredited waterproof installers certificate which certifies the waterproofing system has been applied in accordance with the manufactures recommendations and AS 3470-1994 “Waterproofing of Wet Areas in Residential Buildings”.

5. Registered pest contractors certificate which states termite control measures have been installed in accordance with AS 3660.1-1995 “Protection of Buildings from subterranean termites Part 1 New Buildings”. (C300)

15. Stormwater being piped to either Council’s street drainage system or to the interallotment drainage easement. (C301)

16. Prior to the release of the Construction Certificate, the accredited certifier to ensure that stormwater from each allotment can be piped by gravitational means to the stormwater system located in proposed Lot 29.

17. Deleted.

18. The grass verge to the roadway to be graded for its full width to a crossfall of 3% rising from the top of kerb unless tree preservation or retaining wall construction does not permit this. (C82)

19. Building waste containers or “skips” and the like are not to be placed within the public road reserve unless approval from Warringah Council has been obtained prior to issue of the Construction Certificate and appropriate fees paid. (C105)

20. A construction management plan being submitted to Council for approval prior to release of Construction Certificate. The plan to detail:

(a) The location of all trees on individual allotments, and adjoining land in proximity of the work and nominating those to be retained and those to be removed as per drawing PSL 2633/DA02 “A”.

(b) The method of protection of those trees to be retained specifying how tree roots, trunks and canopies are to be protected. Particular regard to be had to those trees located within the construction zone of the works and adjacent to fences, dwellings and roadways.

(c) The cut and fill ratio and volume of material involved in the construction of driveways and dwelling houses and nominating where fill material is to be imported from or exported to.

(d) The location of soil stockpiles, material compounds and the extent of construction activity.

(e) Proposed staging of the works.

(f) The location of all boundary fences.

20A. Those trees nominated for removal on drawing PSL2633/DA02A may be removed to carryout the works subject of this consent.

21. All vehicle access for the construction period shall be confined to a stabilized entry/exit/crossing and driveway 3 metres wide installed and maintained to the reasonable satisfaction of Council or the principal certifying authority to prevent damage to the Council road. (C107)

22. Payment to Warringah Council of a $10,000 bond as security against damage to Council’s roads caused by the transport and disposal of materials and equipment to an from the site to Account No. 009 TF037. This amount to be paid prior to the issue of the Construction Certificate and to be verified by the accredited certifier. (C108)

23. All disturbed areas adjacent to the works on Council’s road and footpath are to be restored to the satisfaction of Council.

24. All construction and restoration work on Council’s road and footpath area are to be carried out strictly in accordance with the approved drawings and Council’s Standard Specifications. (C110)

25. The total cost of all construction and restoration works on Council’s road and footpath shall be borne by the developer/applicant. (C112)

26. No excavation or construction work to commence on site until all silt/sediment control measures are in place. (C317)

27. The creation of easements to drain water in favour of either proposed lot over the stormwater drainage and detention system and Council drainage lines where it drains through any other proposed lot.

28. The submission of a plan prepared by a registered surveyor showing the location of water, gas, Telecom, electricity and stormwater drainage in relation to boundaries and/or relevant easements. The plan should be a copy of the final plan of subdivision on which the above items are clearly annotated. (C26)

29. The provision of separate electricity, gas, Telecom, sewer and water services to each lot. The certifier to verify that these services are able to be provided prior to the issue of the Construction Certificate. (C27)

30. All electrical and telephone mains in new subdivisions are to be placed underground. You are therefore requested to contact the appropriate utility authorities to ensure that the policy is adhered to in this subdivision. The adjustment of public utilities and services as necessary are to be effected at the full cost to the applicant. (C43)

31. The payment of $10,000.00 in cash or bank guarantee to account WCPB 3320-B3330 prior to issue of a Construction Certificate as security to ensure that:

32. All utilities/services and street lighting to be installed prior to the release of the subdivision certificate. (C60)

33. The Council approved plans are to be stamped by Sydney Water and notice of requirement letter obtained and both submitted to the Principle Certifying Authority (PCA) prior to issue of the Subdivision Certificate. A section 73 Compliance Certificate under the Sydney Water Act 1994 is to be submitted to the PCA prior to occupation of the development or issue of Subdivision Certificate. Sydney Water may require works to be constructed and/or developer charges to be paid and accordingly an application is to be made to Sydney Water. (C58)

34. With the application for the Subdivision Certificate the applicant is required to submit a completed subdivision certificate form, a final plan of subdivision and nine copies, prepared in accordance with the requirements of the Conveyancing Act. All plans of survey are to show connections to at least two Survey Co-Ordination Permanent Marks. (C59)

35. The public footways and roadways adjacent to the site shall be maintained at all times during the course of the work in a safe condition. (C88)

36. Provision of 5 vehicle crossing(s), 4 metres wide in accordance with Warringah Council Drawing No. A4-3330 to approved levels and specifications. An application for street levels is to be made prior to issue of the Construction Certificate. (C89)

37 Construction of approved kerb laybacks in accordance with the details shown on Warringah Council Plan A4-2276. (C90)

38. The submission to Council or the private certifier of four (4) copies of Civil Engineering plans for the design of roadworks and stormwater drainage works required in Lots 7.06 and 7.07 and Lots 17.01 to 17.03 including long and cross sections, details of proposed structures and specifications. Such designs shall be:

(a) Prepared and submitted on A1 size sheets,

(b) Undertaken by a Consulting Civil Engineer (or by such other person as may be approved by Council),

(c) Approved and stamped by Council or the private certifier prior issue of the construction certificate,

(d) Subject to the prescribed Engineering Development Fees paid to Council prior to the release of the Construction Certificate (to be paid into Account 12912),

(e) Upon completion of the works, the applicant is to provide to Council 2 copies of “work as executed plans”. The plans are to show relevant dimensions and finished levels and are to be certified by a surveyor. Also the applicant is to provide to Council in an approved formal details of all public infrastructure created as part of the works,

(f) All Civil Engineering works are to be fully supervised by the consultant responsible for their design, or by such person as may be approved by Council, and on completion certified to be in accordance with the approved plans, conditions of construction and Council’s standard specification for engineering works,

(g) A maintenance period of six (6) months shall apply to the work, after it has been completed and approved in writing by Council or the Principal Certifying Authority. In that period the applicant shall be liable for any part of the work which fails to perform in the manner outlined in Council’s specifications, or as would reasonably be expected under the design conditions.

Council will require a Security Deposit/Bank Guarantee prior to issue of the final Compliance Certificate or Subdivision Certificate to ensure rectification of any defects during the maintenance period. (C93)

39. A declaration by a registered surveyor shall be provided to evidence that all construction has been effected within the appropriate property and easement boundaries. This shall be in the form of a copy of the final subdivision or easement plan, with the distances from the boundaries to the edges of these structures endorsed in red thereon and signed by the surveyor. (C97)

40. The payment of the following developer contributions prior to the approval of the Construction Certificate.

$2,030.00 to S94 Part A – Embellishment of Open Space – Warringah Area (AC 28002)

$940.00 to S94 Part E – Warringah Mall Public Library – (AC 28019)

$5.010.00 to S94 Part F – Child Care Centres – (AC 28020)

$1,070.00 to S94 Part I – Roads and Traffic Management – (AC 28023)

$3,545.00 to S94 Part G – Community Centres – Warringah Council – (AC 28021)

$12,595.00 Total Section 94 Fee

These amounts have been calculated using the Warringah Section 94 Contributions Plan. They are current at the time of issue of this Consent. They will be adjusted at the time of payment according to the quarterly CPI (Sydney – All Groups Index). An updated schedule of Council’s contribution rate is issued each quarter and is available at Council’s office. Please ensure that you provide details of this Consent when paying contributions so that they can be easily recalculated.

41 The Landscape Plan to be amended as follows:

Remove

Replace

Remove

Replace

Remove

Replace

Remove

Replace

Remove from the Planting Schedule: Grevillea rosmarinifolia and Westringia fruticosa. Replace with either: Lambertia Formosa, Persoonia levis, Hakea sericea, H. teretifolia, Prostranthera denticulate, Callistemon linearis or other plants on the schedule.

Remove from the Planting Schedule: Grevillea “Bronze Rambler”. Replace with either: Dampiera stricta, Goodenia bellidifolia, Scaevola ramosissima, Tetratheca ericifloia, Dianella caerulea var. producta.

42. Each dwelling is to be provided with adequate site facilities including a garbage bin enclosure, mailbox and clothesline. These facilities are to be designed to be conveniently located and visually attractive.

Without Prejudice Conditions of Consent

Land and Environment Court Proceeding 10740 of 1999

Development Application 1933 DA

Proposing the subdivision of proposed Lot 23 into 5 Lots and

subdivision of proposed Lot 26 into 2 Lots and the erection of

a dwelling house on each Lot

1. Development being generally in accordance with plans numbered 9901(1)DA-1A, dated 30.4.99, 9901(1)DA-2C, dated 21.7.99, 9901(1)DA-3C dated 21.7.99, 9901(1)DA-4C, dated 16.8.99 9901(1)DA-5B, dated 16.8.99, 9901(1)DA-6A, dated 9.7.99, 9901(1)DA-7C, dated 21.7.99, 9901(1)DA-8A, dated 14.7.99, 9901(1)DA-9A, dated 21.7.99, and landscape plan No. PSL2633/DA03, dated May 1999 as modified by any conditions of this consent. (C1)

2. At least 2 days prior to work commencing on site Council must be informed, by the submission of Form 7 of the Environmental Planning and Assessment Regulation 1998 of the name and details of the principal Certifying Authority and the date construction work is proposed to commence. (C168)

2A No works authorized by this consent in connection with the erection of the proposed dwelling-houses shall be carried out prior to the registration by the Registrar-General under Part 23 of Conveyancing Act 1919 of the plan of subdivision for which consent was granted by the Land and Environment Court of New South Wales in proceedings number 10427 of 1997 and in proceedings number 10740 of 1999 .

3. Compliance With Building Code of Australia

4. Residential Building Work

b) in the case of work to be done by any other person:

(2) A certificate purporting to be issued by an approved insurer under Part 6 of the Home Building Act 1989 that states that a person is the holder of an insurance policy issued for the purpose of that Part is, for the purposes of this clause, sufficient evidence that the person has complied with the requirements of that Part. (C377)

2. Toilet Facilities

(1) Toilet facilities are to be provided, at or in the vicinity of the work site on which work involved in the erection or demolition of a building is being carried out, at the rate of one toilet for every 20 persons or part of 20 persons employed at the site.

(2) Each toilet provided:

(3) The provision of toilet facilities in accordance with this clause must be completed before any other work is commenced.

(4) In this clause:

- accredited sewage management facility means a sewage management facility to which Division 4A of Part 3 of the Local Government (Approvals) Regulation 1993 applies, being a sewage management facility that is installed or constructed to a design or plan the subject of a certificate of accreditation referred to in Clause 95B of the Regulation.

6. A Construction Certificate is required to be approved by either Council or an Accredited Certifier, prior to the commencement of any works on the site. (C165)

7. Any Construction Certificate that may be issued in association with this development consent must ensure that any certified plans and designs are generally consistent (in terms of site layout, site levels, building location, size, external configuration and appearance) with the approved Development Application plans and conditions. (C166)

8. A survey certificate prepared by a registered Surveyor being submitted to the P.C.A. at the following stages of construction:

(ii) engaged piers;

(iii) structural support poles/columns of the building.

(b) At ground level to ensure the finished floor levels are in accordance with the approved levels, prior to concrete slab being poured/flooring being laid.

(c) At completion of the roof frame confirming the finished roof/ridge height is in accordance with levels indicated on the approved plans. (C323)

9. The hours of construction and/or work being restricted to Monday to Friday, 7am to 5pm, Saturday 7am to 1pm, no work on Sunday and Public Holidays, where the construction or work in the opinion of Council interferes with the amenity of the neighbourhood by the emission of noise, chemical or physical pollutants or otherwise. In respect of noise, the L10 level (average maximum noise levels) measured over a period of 15 minutes when the construction site is in operation must not exceed background noise level by more than 10dB(A). (C325)

10. Provision shall be made throughout the period of construction to prevent transmission of soil to the public road and drainage system by vehicles leaving the site. (C44)

11. All works on the site shall be undertaken to prevent erosion and transport of soil and sediment off the site and onto adjoining properties. Measures shall be taken in accordance with the requirements of Warringah Council’s Specification for Erosion and Sediment Control and a plan detailing the measures shall be submitted to the Council for approval prior to issue of the Construction Certificate. The plan is to detail measures to protect the creek and riparian vegetation adjacent to dwellings 23.01, 23.02, 23.03, 23.04 and 23.05 during all construction works including erection of boundary fences.

12. Compliance Certificate (Inspections) are required at the following stages of construction:

(a) Preliminary – immediately following the setting out of the development footprint prior to excavation and/or formation of footings or slabs with environmental protection measures and toilet facilities installed.

(b) Building Envelope – completion of the envelope skeleton prior to fixing of internal linings (where applicable).

(c) Final – prior to occupation/use, the satisfactory completion of the building works with respect to:

13. The fee(s) required for a Council Compliance Certificate inspection(s) is $2,100.00 and it is to be paid prior to Council issuing the Construction Certificate. NOTE: Each Compliance Certificate inspection fee is $100.00. Where Construction Certificates and Compliance Certificates are issued by external accredited certifiers the above fee is not required. (C397)

14. The following component certificates are required to be submitted to Council prior to occupation/use of the building, to ensure compliance with the Building Code of Australia and relevant Australian Standards: (C399)

1. Structural Engineers certificate covering the supervision of all structural work and adequacy of the building.

2. Electrical contractors certificate stating the smoke alarm system has been installed in accordance with AS 3786-1993 “Fire Alarms”.

3. Plumbing and Drainage contractors certificate indicating that sewer/waste water system has been installed and completed in accordance with the Sydney Water requirements.

4. Accredited waterproof installers certificate which certifies the waterproofing system has been applied in accordance with the manufactures recommendations and AS 3470-1994 “Waterproofing of Wet Areas in Residential Buildings”.

5. Registered pest contractors certificate which states termite control measures have been installed in accordance with AS 3660.1-1995 “Protection of Buildings from subterranean termites Part 1 New Buildings”.

(C300)

15. Stormwater being piped to either Council’s street drainage system or to the interallotment drainage easement. (C301)

16. Prior to the release of the Construction Certificate, the accredited certifier to ensure that stormwater from each allotment can be piped by gravitational means to the stormwater system located in proposed Lot 29. (C129)

17. Deleted.

18. The grass verge to the roadway to be graded for its full width to a crossfall of 3% rising from the top of kerb unless tree preservation or retaining wall construction does not permit this .

19. Building waste containers or “skips” and the like are not to be placed within the public road reserve unless approval from Warringah Council has been obtained prior to issue of the Construction Certificate and appropriate fees paid. (C105)

20. A construction management plan being submitted to Council for approval prior to release of the Construction Certificate. The plan to detail:

(a) The location of all trees on individual allotments, and adjoining land in proximity of the work and nominating those to be retained and those to be removed as per drawing PSL 2633/DA03 dated May 1999.

(b) The method of protection of those trees to be retained specifying how tree roots, trunks and canopies are to be protected. Particular regard to be had to those trees located within the construction zone of the works and adjacent to fences, dwellings and roadways.

(c) The cut and fill ratio and volume involved in the construction of driveways and dwelling houses and nominating where fill material is to be imported from or exported to.

(d) The location of soil stockpiles, material compounds extent of construction activity.

(e) The retention and protection of the two trees nominated to be removed adjacent to Lot 30 near the boundary with Lot 26 within the “road reserve area”.

(f) Proposed staging of the works.

(g) The location of all boundary fences.

20A. Those trees nominated for removal on drawing PSL2633/DA03 may be removed to carryout the works the subject of this consent subject to the provisions of condition 20.

21. All vehicle access for the construction period shall be confined to a stabilized entry/exit/crossing and driveway 3 metres wide installed and maintained to the reasonable satisfaction of Council or the principal certifying authority to prevent damage to the Council road. (C107)

22. Payment to Warringah Council of a $10,000.00 bond as security against damage to Council’s roads caused by the transport and disposal of materials and equipment to an from the site to Account No. 009 TF037. This amount to be paid prior to the issue of the Construction Certificate and to be verified by the accredited certifier. (C108)

23. All disturbed areas adjacent to the works on Council’s road and footpath are to be restored to the satisfaction of Council. (C111)

24. All construction and restoration work on Council’s road and footpath area are to be carried out strictly in accordance with the approved drawings and Council’s Standard Specifications. (C110)

25. The total cost of all construction and restoration works on Council’s road and footpath shall be borne by the developer/applicant. (C112)

26. No excavation or construction work to commence on site until all silt/sediment control measures are in place. (C317)

27. The creation of easements to drain water in favour of either proposed lot over the stormwater drainage and detention system and Council drainage lines where it drains through any other proposed lot.

28. The submission of a plan prepared by a registered surveyor showing the location of water, gas, Telecom, electricity and stormwater drainage in relation to boundaries and/or relevant easements. The plan should be a copy of the final plan of subdivision on which the above items are clearly annotated. (C26)

29. The provision of separate electricity, gas, Telecom, sewer and water services to each lot. The certifier to verify that these services are able to be provided prior to the issue of the Construction Certificate. (C27)

30. All electrical and telephone mains in new subdivisions are to be placed underground. You are therefore requested to contact the appropriate utility authorities to ensure that the policy is adhered to in this subdivision. The adjustment of public utilities and services as necessary are to be effected at the full cost to the applicant. (C43)

31. The payment of $10,000.00 in cash or bank guarantee to account WCPB 3320-B3330 prior to issue of a Construction Certificate as security to ensure that:

32. All utilities/services and street lighting to be installed prior to the release of the subdivision certificate. (C60)

33. The Council approved plans are to be stamped by Sydney Water and notice of requirement letter obtained and both submitted to the Principle Certifying Authority (PCA) prior to issue of the Subdivision Certificate. A section 73 Compliance Certificate under the Sydney Water Act 1994 is to be submitted to the PCA prior to occupation of the development or issue of Subdivision Certificate. Sydney Water may require works to be constructed and/or developer charges to be paid and accordingly an application is to be made to Sydney Water. (C58)

34. With the application for the Subdivision Certificate the applicant is required to submit a completed subdivision certificate form, a final plan of subdivision and nine copies, prepared in accordance with the requirements of the Conveyancing Act. All plans of survey are to show connections to at least two Survey Co-Ordination Permanent Marks. (C59)

35. The public footways and roadways adjacent to the site shall be maintained at all times during the course of the work in a safe condition. (C88)

36. Provision of 7 vehicle crossing(s), 4 metres wide in accordance with Warringah Council Drawing No. A4-3330 to approved levels and specifications. An application for street levels is to be made prior to issue of the Construction Certificate. (C89)

37. Construction of approved kerb laybacks in accordance with the details shown on Warringah Council Plan A4-2276. (C90)

38. The submission to Council or the private certifier of four (4) copies of Civil Engineering plans for the design of roadworks and stormwater drainage works required in Lots 23.01 to 23.05 and Lots 26.1 and 26.2 including long and cross sections, details of proposed structures and specifications. Such designs shall be: