M Gerstl and Associates Pty Ltd v Pittwater Council
[2011] NSWLEC 1075
•25 March 2011
Land and Environment Court
New South Wales
Medium Neutral Citation: M Gerstl & Associates Pty Ltd v Pittwater Council [2011] NSWLEC 1075 Hearing dates: 10 - 11 March 2011 Decision date: 25 March 2011 Before: Fakes C Decision: 1. Appeal upheld subject to conditions
Catchwords: DEVELOPMENT APPLICATION; impact on a significant tree; issues of bulk and scale; contested conditions Legislation Cited: Environmental Planning & Assessment Act 1979
Environmental Planning and Assessment Regulation 2000
Pittwater Local Environmental Plan 1993
Building Professionals Act 2005Category: Principal judgment Parties: M Gerstl & Associates Pty Ltd (Applicant)
Pittwater Council (Respondent)Representation: Mr I Hemmings (Applicant)
Mr N Eastman (Respondent)
Gadens (Applicant)
Mallesons (Respondent)
File Number(s): 10754 of 2010
Judgment
COMMISSIONER: This is an appeal pursuant to s 97(1) of the Environmental Planning & Assessment Act 1979 (the Act) against the deemed refusal by Pittwater Council (the council) of Development Application No. N0533/09 for the construction of a dwelling at 14A Prince Alfred Parade Newport Lot 172 in DP 709495 (the site).
It is noted that the original development application included a swimming pool. On 15 December 2010 the Court granted the applicant leave to amend DA N0533/09 and to rely on amended plans. Consequently, the swimming pool and some other elements of the original application were deleted.
The contentions raised by the council can be summarised as:
- The proposed development will have an unacceptable impact on the stability and long tern health and survival of a significant Spotted Gum ( Corymbia maculata ) partly located on the site and principally on the adjoining property to the south (12 Prince Alfred Parade (No 12));
- Impacts of bulk, scale and site coverage on the natural setting leading to unacceptable scenic impacts when viewed from Pittwater waterway; and
- The failure of the applicant to provide a construction management plan that details the methods to be used during the development process and which addresses the challenges posed by the physical limitations of the site.
The site and locality
The site is located on the western side of Prince Alfred Parade at the rear of 14 Prince Alfred Parade (No 14). The site does not have a frontage to Prince Alfred Parade but benefits from a Right of Carriageway over the winding and steeply sloping existing driveway on No 14. This driveway abuts part of the dwelling at No 14.
Apart from the Right of Carriageway there are a number of easements that are relevant. There is a 1m wide service easement that benefits the site adjacent to the southern boundary of No 14. Along the northern boundary of the site is an inclinator within a 1.5 m wide Right of Way that burdens the site and benefits No 14. There is also a 1m wide drainage easement on the northern side boundary. The site is also subject to a Positive Covenant limiting any building on the site to RL21.297 to preserve views from No 14.
The rear or western boundary is adjacent to reclaimed Crown Land adjoining the foreshore of Horseshoe Cove. The Crown Land is managed by the NSW Department of Lands and is leased to the owner of the site. It is a relatively flat grassy area retained by a sea wall. It does not form part of the site. According to the owner of No 12, the Crown Land enables public access to the foreshore.
The site falls steeply by approximately 15 m from front to rear boundaries. It is irregular in shape with an average width of about 20m and an average length of about 40m. The site area is 813.6 m 2 .
The site is vacant apart from the inclinator on the northern boundary, a stone retaining wall on the south-western corner and concrete stairs across the site. There is no significant vegetation on the site apart from the significant Spotted Gum approximately mid-way along the common boundary with No 12 and two smaller Tallowwoods ( Eucalyptus microcorys ) in the south-east corner of the site.
The site is located in the 'Newport Locality' as identified under Pittwater 21 Development Control Plan (P21DCP). The nearby development is predominantly low-density residential development of mostly two storey dwellings within remnant Spotted Gums and other vegetation. The foreshore properties are generally well set back from the foreshore. Most dwellings in this section of Prince Alfred Parade enjoy panoramic views of Pittwater.
The site is not visible from Prince Alfred Parade but is highly visible from the water of Horseshoe Cove in Pittwater. To the north of the site in the foreshore area is the Royal Motor Yacht Club and the Royal Prince Alfred Yacht Club is to the south. The foreshore includes a number of boatsheds and jetties.
The proposed development
The proposal before the Court is the construction of a part 2/ part 3 storey dwelling. The dwelling and associated open space is stepped down the slope of the site. The ground floor comprises mostly living areas, the first floor comprises 5 bedrooms and the top floor contains the garage, a turntable and a foyer to a lift and stairs
Relevant Planning Controls
The site is zoned Residential 2(a) pursuant to cl 9 Pittwater Local Environmental Plan 1993 . The proposed dwelling is permissible with consent.
Parts of Pittwater 21 Development Control Plan (P21DCP) are relevant.
As previously stated, the site is situated in the Newport locality (Part A4.10 P21DCP). The locality is characterised by steep slopes enabling views to many points. The desired character is low density residential, dwellings of a maximum 2 storeys in any one place, in a natural landscape setting integrated with the landform and landscape. This part seeks to ensure a balance between development and the natural environment. Part A4.10 states in part:
Future development will maintain a height limit below the tree canopy and minimise bulk and scale. Existing and new vegetation, including canopy trees, will be integrated with the development. Contemporary buildings will utilise faade modulation and/or incorporate shade elements, such as pergolas, verandahs and the like...Development on slopes will be steeped down or along the slope to integrate with the landform and landscape, and minimise site disturbance. Developments will be designed to be safe from hazards.
Part B3.1 P21DCP - Landslip Hazard applies to the site.
The site is located within Pittwater Spotted Gum Forest, and Endangered Ecological Community (PSGFEEC) and Part B4.7 of P21DCP applies. The relevant control is that development shall not have an adverse impact on this EEC.
Part B8.6 - Construction and demolition - Traffic Management Plan is relevant and goes to contention #3.
Part C1.1 - Landscaping outcomes include the built form to be softened and complemented by landscaping that reflects the scale and form of the development; canopy trees to be retained by use of pier and beam footings; and landscaping results in the long-term retention of Pittwater's locally native tree canopy. The relevant control is that all canopy trees and more than 50% of all other vegetation shall be locally native species.
Part D10.1 - Character as viewed from a public space applies. The relevant outcomes include: achievement of desired future character; visual impact of the built form is to be secondary to landscaping and vegetation; district and local views which reinforce and protect Pittwater's natural context to be enhanced and preserved; to ensure development adjacent to waterways or tother public open spaces compliments the landscape character, public use and enjoyment of that land.
Part D10.5 Height (excluding Newport Commercial Centre) has similar outcomes to those already listed for other parts of P21DCP. The control states that the maximum height of a building or structure shall be 8.5 m however there is an exemption for steep sites to a maximum of 10 m for minor parts of the building. This variation is permitted provided:
- The outcomes of the control are achieved,
- The building footprint is situated on a slope in excess of 30%
- The visual bulk of the development is minimised, particularly when viewed from down slope,
- Buildings are sited and designed to take into account the slope of the land to minimise the need for cut and fill by designs that allow the building to step down the slope.
The site is on environmentally sensitive land and therefore Part D10.13 Site Coverage - Environmentally sensitive land applies. The site coverage controls are a maximum of 40% site coverage and a minimum of 60% landscaped area. For this type of development a variation of up to 6% of the total site area may be provided as impervious landscape treatments provided these areas are for outdoor recreational purposes only.
D10.18 Scenic Protection Category One Areas applies. The outcomes are similar to those of other parts of P21DCP.
Evidence
Objectors
The hearing commenced on site with evidence from two resident objectors and an inspection of the site and the Spotted Gum in contention.
Mr Mazoudier represented the owners of No 14. He raised concerns about the following issues: the extent of the excavation and the possible impact on No 14; the need for a bond to provide compensation in the event of damage to No 14; the area occupied by the inclinator should be included in the site coverage calculations; the incompatibility of the design with the character if the site; the absence of a construction plan of management and concerns over the use of the right of way; uncertainty as to the finished height of the wall adjacent to the balcony of No 14; and a possible overrun of the height covenant by the lift. He stated that while there is a lawful right of way there is no driveway onto No 14A.
We had the benefit of a view of the site from the north-facing balcony of No 12. The owner of that property, Mr Walter has resided there since 1984. His concerns included the veracity of the various arborist's reports; the potential impacts of the proposed development on the remaining Spotted Gum; the adequacy of proposed drainage systems to cope with water moving down the right of way, across the site and potentially onto his property; uncertainty as to how the works will be undertaken, particularly given the limitations for access; the potential impacts of proposed landscape plantings on solar panels and landscaping on his property as well as on a pressurised sewer main on his northern boundary; and similar concerns to Mr Mazoudier with respect to site coverage calculations and the inclinator.
Arborists
Mr Andrew Scales gave arboricultural evidence for the applicant and Mr Guy Paroissien for the respondent; the arborists prepared a joint report. Prior to the hearing, leave was granted to the applicant to rely on a slightly amended plan (TPZ01) and report prepared by Mr Scales. The amended plan shows the calculated Tree Protection Zone (TPZ) modified by the deletion of an excavated area required for access to a study on the ground floor as well as the use of pier and beam construction as an alternative to a strip footing. Based on these amendments, the arborists prepared a supplementary joint report.
The Spotted Gum identified in the contentions is principally located on the adjoining property at No 12. The arborists agree that it is in good health, of high landscape significance and a characteristic species of the PSGFEEC. They agree that should it be removed or die its loss would have an adverse impact on the landscape character of the site.
In the supplementary joint report the arborists agree that based on a TPZ of 12m the area directly impacted by the proposed development is 12.9% with a further 6% affected by elevated structures. The experts agree that if the disturbance is limited to this extent then there will be a moderate impact on the tree that is within an acceptable range. However the arborists noted that there is potential for other impacts to occur as a result of the installation of services, the construction of landscaping structures including retaining walls, and from the installation of plants within the TPZ.
The experts agreed that detailed conditions of consent could be drafted to limit the extent of any additional impact. These conditions were discussed and both parties agreed on their inclusion in any final conditions of consent.
Findings - arboricultural impact
I am satisfied from the evidence and from the discussion during the hearing that while there will be an impact on the Spotted Gum, I am satisfied that the modifications to the design of the dwelling and the detailed conditions of consent recommended by the arborists will minimise the impact to an acceptable level. In this regard, Part B4.7 of the P21DCP is satisfied insofar as any development on the site will have some impact on the tree. Clearly the extent of any impact will depend on the strict adherence to the relevant conditions of consent. In part this also addresses some of the concerns of Mr Walter, the tree's owner. The relevant conditions are discussed later in this judgment.
Therefore the appeal should not be dismissed on the basis of an unacceptable impact on the tree.
Planners/ architect
Planning evidence was given by Mr Lindsay Fletcher for the applicant and by Mr Gordon Edgar, council's Executive Planner. The applicant and architect Mr Mark Gerstl gave concurrent evidence with the planners. The planners prepared a joint report.
The planners agree that apart from the Spotted Gum, the site is devoid of vegetation that could be termed 'natural landscape' or 'bushland character' and that any development must provide appropriate landscaping between the building and the foreshore. They also agree that the maximum height of the building is 9.5 m and the site coverage is 44.59% of the site area.
Mr Edgar's main concerns are that the proposed built form will dominate the natural landscape setting and the extent of overhanging encroachment into the TPZ threatens the viability of the Spotted Gum which is a critical element on the site. Mr Edgar's view is that lessening the bulk of the building and increasing the setback from the tree would result in a better outcome for the tree and improve the visual amenity of the building when viewed from the water.
With respect to bulk and scale, Mr Edgar is particularly concerned about the overhang and bulk of the cantilevered balcony on level 1 as well as a recessed area between 2 external walls on the southern side of level 1 adjoining an ensuite bathroom. He considers these two elements to be the most visually intrusive. He also considers that the conditional10m maximum height permitted in Part D10.5 of P21DCP should not be allowed as the relevant outcomes of the controls in this part, specifically minimising bulk and scale, are not achieved. Similarly Mr Edgar argues that the discretion to include an additional 6% of site coverage by impervious landscape treatment above the permitted maximum of 40% (P21DCP D10.3) should not be allowed on the same grounds.
Mr Fletcher and Mr Gerstl state that the cantilevered element is designed to reduce the heat load on the building and to make the building more energy efficient. The features identified by Mr Edgar are architectural elements to address DCP requirements for recessing and projecting features.
Mr Fletcher contends that development achieves the height objectives and other specified requirements in Part D10.5 and therefore the 10m maximum is appropriate. Likewise, Mr Fletcher considers the development to be compliant with Part D10.3 regarding site coverage.
During the course of the hearing, some of Mr Edgar's concerns about impacts on the tree were allayed by the recommendations of the arborists. In addition, Mr Gerstl responded to Mr Edgar's objections to the cantilevered balcony on level one. Using computerised graphics on CAD drawings, Mr Gerstl was able to demonstrate to Mr Edgar, and to the Court, the effect of reducing the extent of the overhang and the resulting change in the bulk of the building. Mr Gerstl used this technology to 'remove' a supporting wall and replace it with 3 piers in accordance with the recommendations of the arborists. These changes were acceptable to Mr Edgar as the contentions regarding height, bulk and scale were satisfactorily addressed. Mr Gerstl subsequently produced hard copy plans showing the modifications.
The contention relating to the absence of a construction management plan and the proposed conditions is discussed elsewhere in this judgment.
Findings - Planning
I am satisfied that the modified plans produced by Mr Gerstl during the hearing address both the issues raised by the arborists and by Mr Edgar. These changes in the dwelling combined with the inclusion of canopy trees forward of the building [as discussed during the hearing] create a better balance between the built and the natural landscape. I consider that the circumstances of the site with respect to steepness and lack of vegetation enable consideration of the permissible variation in the site controls and that the proposed maximum height of 9.5 m is within the permitted range. I am satisfied that the proposal complies with the relevant controls in P21DCP with respect to site coverage and the possible variation of 6% is appropriate.
Overall, I find there are no planning grounds on which refusal is warranted.
Submissions on proposed conditions
Construction Traffic Management Plan
The main condition in contention goes to Contention #3 in the Statement of Facts and Contentions. This relates to the lack of a construction management plan and the inability of the council to adequately assess the potential impacts of construction on the adjoining properties.
The council's position is that commencement of consent be deferred until the applicant submits a satisfactory construction management plan and council approves it. The council contends that the vehicular access to the site is via a steep, winding and relatively narrow right of way that is unsuitable for heavy vehicles. Similarly, the council is concerned about traffic problems that may arise from vehicles exiting onto Prince Alfred Parade. The site constraints also pose potential problems for on-site storage of materials. Discussions on site and at the hearing considered the possibility of access via the water. The objectors also raised issues relating to construction.
The relevant controls cited by the council are in Part B8.6 - Construction and Demolition - Traffic Management Plan in P21DCP. These states:
For all development where either excavated materials to be transported from the site of the importation of fill material to the site is 100m 3 or greater, a Construction Traffic Management Plan indicating truck movements, and truck routes is to be provided and approved by Council prior to the commencement of works.
All transport works must not cause adverse disruption or nuisance to adjoining residences, businesses or the street system.
In addition to truck movements and traffic routes, council's draft condition also requires information on the quantity of material to be transported; construction/ excavation hours; method of transportation of materials to and from the site; and storage areas. In addition, the council requires documented evidence of any necessary owners' consent should other land be used for access plus documented evidence pertaining to the proposed use of the Right of Way.
Mr Eastman for the council submits that cl 161 of the Environmental Planning and Assessment Regulation 2000 (the Regulation) enables certifying authorities to be satisfied as to a range of matters relating to the erection of a building - including excavation work. He contends that given the difficulties of the site, the council must be satisfied with the Construction Traffic Management Plan (CTMP) and is adamant that it be a deferred commencement condition.
Mr Hemmings for the applicant contends that even though the excavation is less than the 100m 3 specified in the P21DCP the applicant is content with a condition requiring the approval of an appropriate CTMP. However the applicant's position is that this should not be a deferred commencement condition. The proposed alternative condition states in part, that the CTMP be approved by the "principal certifying authority prior to the issue of a construction certificate". It also proposes alternative wording to the requirements for owners' consent. In response to cl 161 of the Regulation Mr Hemmings notes the use of the words 'certifying authorities' and the absence of any reference to councils.
Findings - CTMP condition
I accept that the location of the site and its position with respect to Prince Alfred parade poses challenges for the construction process. I consider it appropriate for a detailed CTMP to be submitted to council for approval as council controls the local roads and is likely have local knowledge and experience with developments on similarly difficult sites within its LGA. However, I do not accept that this should be a deferred commencement condition. To defer commencement would unduly disadvantage the applicant in delaying the certainty of the approval. As the planning and arboricultural contentions have been satisfactorily resolved, I see no compelling reason to defer the consent. While this site has its locational challenges I consider it unlikely to be unique in the context of Pittwater.
In this regard, the applicant's revised draft condition of consent C5.1 is to be amended to replace the words 'principal certifying authority' with the word 'council' in the leading sentence. 'Principal certifying authority' can remain elsewhere in this condition. Council's revised draft condition of consent Part 1 is deleted and replaced by C5.1.
Other conditions
Condition B16 is agreed between the parties.
Condition C4 refers to the requirement for Dilapidation Reports for Nos 12, 14 and 16 Prince Alfred Parade. The council's condition requires the developer to be responsible for the cost of any rectification of damage caused by the development prior to the release of the occupation Certificate. The applicant's version deletes this requirement.
I agree with the applicant's version as any disagreement between the developer and the owners of adjoining properties as to any damage that may or may not have been caused by the development is a matter between the parties. I have been given no compelling reason why a condition should be imposed to protect rights that would seem to me to ordinarily exist. However, I consider Condition C4 should be amended to ensure that a copy of the relevant dilapidation report is provided to the owners of each of the nominated properties prior to the issue of a construction certificate. As a consequence of this amendment to C4, condition E3 should be deleted.
Condition C7 for a detailed 'Tree Protection Plan' and specifications is agreed by the parties. However I note inconsistencies in conditions D10, D11 and D12 in both parties' revised draft conditions and, to that end, the Arborist Appraisal, Tree Management Plan and Arboricultural Report [all by Naturally Trees] in draft condition A1 - the table of plans and documents. The appendices to the 7 December 2010 report are generic and not site specific. The tree management plan TMP01 in that document does not include the changes agreed to in the supplementary joint report of the arborists and is not sufficiently detailed to be of any use. I consider that document to be redundant and any generic material in it should be customised for use on the site in accordance with the agreed changes to the plans, that is, as proposed in condition C7.
Condition C7 states that the detailed tree protection plan (TPP) and specifications document for the site is to be prepared and approved by the Principal Certifying Authority. This may be a drafting error but it would seem to me to contravene s 66(1)(a) of the Building Professionals Act 2005. Given the ecological and landscape significance of the Spotted Gum, the wording of this condition should be modified to clearly indicate that the applicant's arborist, perhaps in conjunction with council's arborist, prepare the TPP and specification. I have some discomfort with the plan being approved by the principal certifying authority however, this appears to have been agreed between the parties. However, as council is responsible for tree management in its LGA and the tree is principally located on the adjoining property at No 12, I consider it appropriate to amend C7 to include a sentence along the lines of "a copy of the Tree Protection Plan and Specification document is to be provided to council and to the owners of 12 Prince Alfred Parade prior to the issue of a construction certificate."
To avoid confusion, conditions A1, D10, D11, and D12 should be amended to reflect the agreed condition C7.
Conclusions
Based on the evidence before me, and the substantial resolution of the arboricultural and planning issues I am satisfied that the proposed development is permissible and meets the relevant controls in P21DCP. I commend the parties' experts for working co-operatively to resolve the outstanding contentions. While there are some conditions of consent to be tidied up, I find no basis on which the appeal should be rejected.
As a result of the foregoing, the Orders of the Court are:
(1) The appeal is upheld.
(2) Development consent is granted for Development Application No. N0533/09 (as amended) for the construction of a new dwelling at 14A Prince Alfred Parade Newport subject to conditions.
(3) The final conditions of consent reflecting the findings in this judgment are to be lodged electronically with the Court by close of business 30 March 2011 and final orders will be made in chambers. The conditions will be appended to the orders.
(4) Exhibits 1, A, E and F are retained, all other exhibits are returned.
J Fakes
Commissioner of the Court
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Decision last updated: 06 April 2011
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