Marina Bay Developments Pty Limited v Pittwater Council

Land and Environment Court

of New South Wales

CITATION: Marina Bay Developments Pty Limited v Pittwater Council [2006] NSWLEC 531

PARTIES: APPLICANT:
Marina Bay Developments Pty Limited
RESPONDENT:
Pittwater Council

FILE NUMBER(S): 10147 of 2006

CORAM: Watts C at 1

KEY ISSUES: Deemed Refusal - Development Application :- Character and built form
Excavation
Privacy and
Cumulative impact

LEGISLATION CITED: Environmental Planning and Assessment Act 1979, ss79C and 97
Pittwater Local Environmental Plan 1993, (PLEP)
Draft Pittwater 21 Local Environmental Plan, (DPLEP)
State Environmental Planning Policy - (Seniors Living) 2004, (SEPP-SL)
Seniors Living Policy - Urban Design Guidelines for Infill Development, (SL Guidelines)
Pittwater 21 Development Control Plan, (DCP21)
State Environmental Planning Policy 71 - Coastal Protection, (SEPP71)

CASES CITED: GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268;
Hewitt v Hurstville Council (2001) NSWLEC 294 (21 December 2001);
Hooker Corporation Pty Limited v Hornsby Shire Council NSWLEC, 2 June 1986;
Tenacity v Warringah Council [2004] NSWLEC 140;
Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46

DATES OF HEARING: 15/08/2006 and 16/08/2006

DATE OF JUDGMENT:
08/25/2006

LEGAL REPRESENTATIVES: APPLICANT:
Mr P R Clay, barrister instructed by Mr M A Staunton, solicitor
SOLICITORS:
Staunton Beattie
RESPONDENT:
Mr J E Robson, SC, with Mr A M Pickles, barrister, instructed by Ms D J Townsend, solicitor
SOLICITORS:
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Watts C

25 August 2006

10147 of 2006 - Marina Bay Developments Pty Limited v Pittwater Council

JUDGMENT

1 This is an appeal under s 97 of the Environmental Planning and Assessment Act 1979, against the deemed refusal by Pittwater Council (the council) of a development application to demolish the existing structures and to construct six (6) x 3 bedroom units under State Environmental Planning Policy (Seniors Living) 2004, (SEPP-SL), at Lot 1, DP 11518, being No 2085 Pittwater Road, Bayview.

2 I visited the land in company with the parties on the morning of the hearing, and local residents gave oral evidence.

3 I have concluded that the application should succeed when considered on merit under s 79C of the Environmental Planning and Assessment Act 1979.

The land

4 The land is situated on the southern side of Pittwater Road to the east of Bakers Road; a road that links with Corniche Road that runs to the south of the land. The land is rectangular in plan with a splayed frontage to Pittwater Road of 31.77m, a variable depth of 57.38m/65.19m and an area of 1,789m2. The land falls down about 13m in a northerly direction down towards Pittwater Road.

5 Erected on the land is an existing two-storey sandstone, brick and weatherboard dwelling with tiled roof located towards the rear. A fibro garage is located at the front of the land. A concrete driveway provides access to this existing garage and to an additional parking area adjacent to the existing dwelling. A rough faced sandstone front fence is erected on the front alignment.

6 Nearby development is characterised by single-storey and two-storey detached residential dwellings set in generous gardens. There is a public pathway 3.66m wide adjacent to the eastern boundary of the land that provides pedestrian access between Pittwater and Corniche Roads.

7 Parts of the land are founded on Sydney sandstone, however, and exploratory bore holes were driven and indicate that firm foundation material is at around 1m to 1.5m below a layer of overburden.

8 Adjoining the land to the west is a B J Waterhouse-designed dwelling at No 2089 Pittwater Road. This dwelling is said to be a potential heritage listing under the PLEP. A rough faced sandstone wall encloses the front garden of this property. A fine Magnolia grandiflora is situation in the front garden and provides shade and amenity.

Relevant planning controls

Pittwater Local Environmental Plan 1993, (PLEP)

9 Under the provisions of the PLEP the land is zoned Residential 2(a) and the proposal is permissible with consent only under State Environmental Planning Policy - (Seniors Living) 2004, (SEPP-SL). The land is also in Area 1 wherein dual occupancy is prohibited.

State Environmental Planning Policy - (Seniors Living) 2004,

(SEPP-SL)

10 Mr Robson, SC, in an outline of the respondent’s submissions has conveniently set out the statutory framework.

1. But for the facultative provisions of SEPP-SL, the proposed six dwelling multi-unit housing development would be prohibited upon the subject site.

2. The SEPP allows development

upon condition that such development is

3. An important aim of the Policy is that the form of housing which it facilitates

That aim will be achieved where the proposal:

(a) ...meets the development criteria and standards specified in this Policy, and

achieves a built-form that responds to the characteristics of its site and form.

4. The obligation to mould the development to the requirements of the Policy is reinforced by placing upon the consent authority a number of important pre-conditions to the ability to exercise the power to grant consent.

· Consent must not be granted unless the consent authority is satisfied that the proposed development demonstrates that adequate regard has been given to the principles set out in Division 2 (SEPP-SL, cl 30).

· Consent must not be granted to carry out development for the purpose of self-contained dwellings unless the proposed development complies with the standards specified in Division 4 (SEPP-SL, cl 51).

5. The density ratios in Part 7 of the Policy (development standards that cannot be used as grounds to refuse consent) are subordinate to the design principles in Part 3 Division 2. This outcome is mandated by c1 78:

The note, which follows cl 78, informs as to the meaning of [SEPP-SL] cl 78.

Good design is critical to meriting these density ratios.

6. …

Character

7. Division 2 of SEPP-SL requires recognition of the desirable elements of

8. Clause 29 of the Policy requires the consent authority to take into consideration the provisions of the Seniors Living Policy Urban Design Guidelines in the determination of the subject development application. The Guideline requires that a contextual approach be adopted.

...it is important to emphasise that all developments should adopt a contextual approach. That is, the design should respond to both neighbourhood and streetscape character, and the opportunities and constraints offered by the specific site (Guidelines page 2).

is required (SL Guidelines page 4).

9. It is both legitimate and incumbent upon the applicant to have regard to relevant Council LEPs and DCPs for the purpose of discerning the character of an area (SL Guidelines page 5).

10. Mr Juradowitch (page 6) states that the key feature of the locality is the dominance of landscaping over buildings. This is consistent with the desired character statement in DCP 21, (A4.4, p 43), which makes reference under ‘Desired Character’ to the following:

11. Outcomes for the locality are stated in DCP21, D4.1:

12. DCP 21 sets a minimum side setback for multi-unit housing of 3m and requires a further setback for the second storey (D4.6).

13. The requirements of DCP 21 identify the constraints, which must be taken into account in the design process.

14. …

15. Clause 31(c) of SEPP-SL provides the blueprint for maintaining reasonable neighbourhood amenity and appropriate residential character. (I have extracted the relevant parts cl 31 since it is an important clause in SEPP-SL.)

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

(b) …

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

(ii) using building form and siting that relates to the site's land form; and

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

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

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

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

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

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

11 Other planning controls include:

· State Environmental Planning Policy - (Seniors Living) 2004, (SEPP-SL), Clauses 2(1)(c), 25, 27, 28, 29, 31, 32, 33, 35, 36, 38(4a), 81(a)(b)(e);

· Seniors Living Policy - Urban Design Guidelines for Infill Development, (SL Guidelines), Part 1 Responding to Context, Part 3 Impacts on Streetscape, Part 4 Impacts on Neighbours;

· Pittwater 21 Development Control Plan, (DCP21), Sections A4.4, B4.3, C 1.1, C1.3, C1.4, C1.5, C1.9, C1.18, D4.1, D4.2. D4.3, D4.4, D4.6, D4.8, D4.10, D4.11, D4.13;

· Environmental Planning and Assessment Act 1979, ss79C and 97;

· Draft Pittwater 21 Local Environmental Plan, (DPLEP);

· State Environmental Planning Policy 71 - Coastal Protection, (SEPP71) Clauses 2(1)(e)(k), 8(d)(f), [p(i)].

12 Part A4.4 of DCP21 identifies the context and desired character of the Church Point and Bayview Locality within which the land is located as predominantly low-density, with single-storey and two-storey residences in a natural landscape setting. The desirable elements include the low-density character; the pre-dominant scale and setback of existing development; development that addresses the street, integrates with the public domain, and is at a human scale.

The proposal and its history

13 Development application No N0787/05 was lodged with the respondent council on 1 December 2005 to erect a seniors’ living development comprising six (6) x 3 bedroom units in accordance with the provisions of SEPP-SL on the land.

14 The proposal would have four levels stepping back up with the slope of the land:

· Basement car park at 3.32m AHD.

· Apartment No 1 at 6.32m AHD and Apartment No 2 at 7.92m AHD.

· Apartment No 3 at 9.52m AHD and Apartment No 4 at 11.12m AHD.

· Apartment No 5 at 12.72m AHD and Apartment No 6 at 14.32m AHD.

· Parapet over Apartment No 5 at 16.02m AHD and over Apartment No 6 at 17.62m AHD.

· Top of lift motor room at 18.22m AHD.

15 Basement car parking is proposed for twelve (12) vehicles including a visitor’s space, together with ancillary storage and garbage facilities. A lift is proposed to provide internal access from the basement to the residential apartments above.

16 Before the hearing commenced the applicant amended the proposal and reduced the FSR to below 0.5:1. Following the recommendation of the Court-appointed town planner the applicant setback the development a further 1m from Pittwater Road, however this caused a breach of the rear 25% requirement of SEPP-SL and a State Environmental Planning Policy No 1, (SEPP1) objection to that standard has now been provided.

Amended plans

17 Mr Juradowitch stated:

Revised plans were submitted in July 2006 in response to my preliminary town planning report to reduce slightly floor space and increase landscaped area. The primary changes to the original plans are summarized as follows;

· Building width has been reduced and side setback increased, particularly along the northern side boundary;

· Site coverage has been reduced by 3% and landscaped area increased;

· Outward pergolas on terraces deleted and planter areas on terraces increased;

· Planter boxes now utilized on terraces in place of privacy screens to neighbours;

· Front setback increased by 1 metre with a corresponding 1 metre reduction in rear setback;

· The floor space ratio (under Council's definition) has been reduced from 0.528:1 to 0.498:1 including a minor reduction in apartment sizes totalling 63.4m2;

· The roof has been lowered by 1090mm;

· Basement car park marginally reduced in size and the under croft area at front of building substantially eliminated;

· Side setback of basement car to No 2089 Pittwater Road increased to 1 metre;

· Common open space area enlarged to 30m2 plus landscaped area and is to provide with seating and shading.

The design divides the building into two connected components off set from each other in the vertical and horizontal plane, and separated by the building entry, lift and fire stairs. Each wing provides for 3-north east facing apartments orientated towards Pittwater Road and fronted by large terraces off living rooms and master bedrooms.

The proposed apartments are single level with lift and stair access to the ground level entry and the basement car park. Each apartment contains 3 bedrooms, an en suite, bathroom, living room and kitchen/casual dining area. The apartments are relatively generous in size, with floor areas ranging from 135.73m2 to 141m2. Four apartments have front terraces of 70m2 whilst the two apartments at ground level have terraces of approximately 50m2. The two topmost apartments have large private rear yards.

State Environmental Planning Policy No 1 objection

18 Responding to Mr Juradowitch’s Preliminary Town Planning Report dated 30 June 2006, the applicant agreed to reposition the proposal about 1m further south to increase the setback to Pittwater Road and to reduce the bulk of the development as viewed from the adjoining properties.

19 This resulted in a technical non-compliance with Clause 38(4)(c) of SEPP-SL as a small portion of the development located in the rear 25% of the land would be two-storeys in height by definition and not single-storey as required. A SEPP1 objection, prepared by The Turnbull Group Pty Limited, Town Planners, was submitted with the amended application.

20 Under SEPP1 and having regard to the decisions of the Court in Hewitt v Hurstville Council (2001) NSWLEC 294 (21 December 2001), Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46 and Hooker Corporation Pty Limited v Hornsby Shire Council NSWLEC, 2 June 1986, unreported, consideration is required as to:

1. whether the ‘control’ is a development standard rather than a prohibition on development;

2. the objects and purposes of the standard;

3. whether the development is consistent with the aims of the policy in that strict compliance with the standard in the circumstances of the case would be unreasonable or unnecessary or tend to hinder the attainment of the objectives specified in s5(a)(i) and (ii) of the Environmental Planning and Assessment Act 1979; and

4. whether the objection is well founded.

21 There was no dispute between the parties that cl 38(4)(c) of SEPP-SL is a development standard and not a ‘prohibition’ in respect of development.

22 The objects and purpose of the control identified by the applicant’s town planner Mr G Boston, is to:

(i) control impacts on neighbours (refer diagram p3);

(ii) to limit the scale of development towards the rear of the site to a more modest scale to limit the impacts on adjoining properties (refer Design principles and better practice, Built form p6);

(iii) to minimise impacts on the privacy and amenity of existing neighbouring dwellings (Refer 4. Impact on neighbours, Objectives p10);

(iv) to minimise overshadowing of existing dwellings and private open space by new dwellings (Refer 4. Impact on neighbours, Objectives p10);

(v) to reduce the apparent bulk of development and its impact on neighbours (Refer 4. Impact on neighbours, Objectives p10); and

(vi) ensure that solar access to the private open space of neighbouring dwellings is not unreasonably reduced (Refer 4. Impact on neighbours, Rules of Thumb p11).

23 Mr Boston concluded:

The application provides for an appropriate built form response that is in accordance with the outcomes recommended by the CAE. The development provides for the orderly and economic use of the land in accordance with the applicable environmental planning control regime. The proposal is consistent with the implicit objectives of the standard as outlined.

The SEPP No 1 objection is able to be supported by the consent authority and the development can, in my opinion, be granted consent on its merits.

24 The April 2006 development application was notified to twenty-four (24) nearby owners and occupants and the council received eighty-four (84) submissions.

25 Many of the issues raised by objectors have been included in the council’s issues, however, Mr Juradowitch considered these submissions in his preliminary report and revised plans were lodged in July 2006.

26 The main points of concern were the cumulative impact of several seniors’ living developments in the locality, including:

· loss of green landscaped character.

· No 2089 Pittwater Road surrounded on both sides by seniors’ living apartments;

· increase in traffic;

· excessive floor space ratio in excess of 0.5:1;

· style of development unsympathetic to the low-scaled, low-density landscaped nature of the locality;

· inadequate side boundary setbacks and insufficient side boundary landscaping;

· scale and bulk of the proposed development - effectively four-storeys;

· over-development of the site - excessive density and number of apartments;

· out of scale with neighbouring development;

· not single storey for the rear 25% of the allotment;

· three-storeys in parts;

· excessive excavation and potential damage to neighbouring buildings;

· concerns about stability of slope and impact of excavation on slope stability;

· impacts on ground water and redirection of groundwater flows due to excavation and possible flooding;

· zoning does not allow residential flat buildings;

· overlooking and invasion of privacy;

· view loss and diminished outlook;

· overshadowing of public pathway;

· large eucalypts proposed for the rear yard will over time obstruct views;

· excessive site coverage;

· adverse impacts on streetscape and foreshore;

· inadequate front setback;

· adverse impacts on the scenic quality of the locality;

· adverse impacts on heritage values of 2089 Pittwater Road built in 1935, and designed by the famous architect B J Waterhouse;

· proposed 1.8m high stone fence on north western boundary adversely impacts on views and is too high for a fence within the front setback area;

· noise impacts on neighbours from persons using the large terraces located close to the side boundaries;

· lack of storage facilities for apartments as required by DCP 21;

· non-compliance with requirements for disabled access internally within the apartments;

· no provision for an external garbage storage room;

· long distance from facilities and services;

· constrained vehicle turning areas in basement car park;

· inadequate number of car spaces, particularly in relation to visitor parking;

· safety hazards of elderly and disabled persons crossing Pittwater Road - no pedestrian refuge available;

· construction vehicles parking in the public car park;

· insufficient information on site levels;

· visual impacts if air conditioning and other plant is installed on the roof;

· potential threat to an existing Magnolia Grandiflora near the western boundary;

· area not suitable for seniors’ living developments; and

· council should follow up on its request for an exemption from the seniors’ living policy.

The council’s decision

27 By notice dated 3 May 2006, the council refused the application for twenty-nine (29) reasons that are reflected in the amended issues.

The hearing

28 The appeal was filed on 23 February 2006.

29 At the hearing the court heard evidence on behalf of the respondent council from:

· Mr F Makin, resident of No 26 Eastview Road, Church Point, President of the Bayview – Church Point Residents Association Incorporated;

· Ms D Carter, resident of No 2089 Pittwater Road, Bayview;

· Mr R Smith, resident of No 43 Waratah Street, Mona Vale;

· Mr D Williams, resident of No 2081 Pittwater Road, Bayview;

· Mr G Sheidow, resident of No 2081A Pittwater Road, Bayview;

· Mr M Lee, resident of No 1 Corniche Road; Bayview;

· Mr M Dixon, resident of No 5 Corniche Road, Bayview;

· Mr A Piggott, town planner; and

· Dr L De Amrosis, geotechnical engineer.

30 On behalf of the applicant evidence was given by:

· Mr P Crozier, Geotechnical consultant;

· Mr G Boston, town planner.

31 Mr N Juradowitch, was the Court-appointed town planner and on the site inspection answered many questions concerning the amended plans.

32 Mr A Piggott, Town Planner, Pittwater Council prepared the statement of basic facts.

33 In accordance with the orders of the Registrar of the Land and Environment Court, a joint meeting of the experts was held on Friday, 11 August 2006 at the Lindfield offices of Ingham Planning Pty Limited. Mr N Juradowitch (NJ) Director of Ingham Planning and Court-appointed town planning expert met Mr G Boston (GB), Senior Associate of The Tumbull Group, Dr R Lamb (RL) of Richard Lamb & Associates and Mr A Pigott (AP) Senior Development Officer for Pittwater Council. The purpose of the meeting was to prepare a joint report and to discuss areas of disagreement and also to discuss the provisions of State Environmental Planning Policy (Seniors Living) 2004, in particular cl 31(a), (c) and cl 78. This report of Joint Planning Experts Conference came to Court as Exhibit 7.

The issues

34 On 10 August 2006, the council filed an amended statement of issues.

Character and built form

Particulars

Issues 1(a) – (c)

- SEPP (Seniors Living) 2004 – Clause 2(1)(c), 29. 30. 31(a). 31(c)

- Pittwater 21 DCP Section A4.4, D4.1, D4.2, D4.10, D4.13;

- Part 1, Part 3 and Part 4 of the Seniors Living Policy; Urban Design Guidelines for Infill Development.

Issue 1(b)

- The development with a site coverage of 48.8% fails to comply with the maximum 40% site coverage requirement of Pittwater 21 DCP D4.10.

Issue 1(c)

- SEPP (Seniors Living) 2004 -Clause 31(c)(i).

- Part 4 of the Seniors Living Policy: Urban Design Guideline for Infill Development. Given the boundary-to-boundary excavation, the development fails to locate deep soil zones to provide privacy between new and existing dwellings.

Cumulative impact

Amenity

Particulars

- SEPP (Seniors Living) 2004 - Clause 32(a)

- Pittwater 21 DCP - C1.5. The terrace areas of the northwestern units will be within 9m of the private open space area of the adjoining dwelling at 2089 Pittwater Rd, Bayview.

4 The cumulative effect of this development will have an unacceptable impact on the amenity of 2089 Pittwater Rd, Bayview having regard to the adjacent development at 2091 Pittwater Rd, Bayview and the proposed development on the subject site.

Particulars

- SEPP (Seniors Living) 2004 -Clause 81(e), Clause 33;

- Pittwater 21 DCP - C 1.4.

Access

Particulars

- SEPP (Seniors Living) 2004 - Clause 25(2)(a)

Particulars

SEPP (Seniors Living) 2004 - Clause 72

Excavation and Construction Impacts

View loss

Particulars

- Pittwater 21 DCP - C1.3.

- LEC Planning Principle regarding views -

Site analysis

Particulars

SEPP (Seniors Living) 2004 - Clause 28.

Maintenance access

Car wash bay

Particulars

- Pittwater 21 DCP - C1.18.

35 The council did not press issues 7, 8, 10, 12 and 13, however, some residents remained concerned about the car wash bay. The applicant has now reduced the FSR and the proposal would now comply with the SEPP-SL 0.5:1 and following emerged as the salient issues:

· Character and built form;

· Site coverage;

· Excavation;

· Privacy;

· Cumulative impact;

The evidence and findings

Character and built form

36 The council argued that the proposal would not be in keeping with the established and desired future character of the area as referred to in DCP21 [Note: Exhibit 1, Tab 14, Section A4.4, p 43]. The council’s concerns in this regard related to the fact that the proposal would have the form of a residential flat building, would have excessive site coverage; and involve deep excavation.

37 Under Division 2 of SEPP-SL recognition of the desirable elements of “…the location's current character (or, in the case of precincts undergoing a transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area, [Note: Exhibit 1 Tab 15, p 18, cl 31(a) of the SEPP-SL].

38 Clause 29 of SEPP-SL requires the Court to take into consideration a contextual site-specific design response under the SL Guidelines and:

“

it is important to emphasise that all developments should adopt a contextual approach. That is, the design should respond to both neighbourhood and streetscape character, and the opportunities and constraints offered by the specific site

39 In the report of the joint town planning experts’ conference in Exhibit 7, Mr Piggott’s (AP’s) evidence was recorded:

AP believes the proposed development will result in excessive building bulk and scale and that this will be exacerbated by the elevated and highly visible nature of the site. AP believes that the 3-Dimensional built form of the proposed development including the width and 3-4 storey presentation to the street does not complement or contribute to the character of the locality or the streetscape by virtue of its large size and excessive site coverage in comparison to neighbouring development and development in the local area. AP believes that the development will have an overbearing relationship to the neighbouring dwelling at 2089 Pittwater Road. AP considers that an appropriate design on the subject site should respond more strongly to the low-scale residential nature identified as the desired character, and should provide distinct visual separation of building elements in response to the detached dwelling context.

Mr Piggott reiterated this evidence in Court in support of the council’s case.

41 Mr Juradowitch was of the opinion that the amendments shown in the July 2006 revised plans had “…substantially addressed” his concerns expressed in relation to the earlier plans. The applicant had achieved this by reducing the floor space ratio, (FSR) to less than 0.5:1, increasing the landscaped area to at least 50% and providing a greater setback to side boundaries.

42 He considered also, that by increasing the front setback by 1m, the perceived building bulk had been reduced and the landscaped area had been increased. Replacing the tall fixed privacy screens to terraces with planter boxes and reducing the width of the building by 1200mm to provide space at the sides of the proposal for more effective landscape screening, the apparent bulk of the proposal had been diminished. As a result he considered:

The proposal achieves an acceptable interface with neighbouring properties in terms of building bulk, height, visual impact and landscaping.

43 Despite his preference to incorporate an indentation in the lower levels of the front façade, he acknowledged that the stepping back of the proposal with the slope of the land, in combination with the varied floor levels of the two building components and extensive landscaping within the front setback would “…significantly moderate the visual impact of the front elevation of the building”. He was of the opinion that the proposal, as amended, would achieve the appearance of an acceptable bulk and the visual impact to Pittwater Road and to Pittwater would be addressed, if the proposed landscaping is planted and maintained.

44 Mr Juradowitch’s (NJ) disagreed with Mr Piggott and stated that Floor Space Ratio (FSR) provides a measure of bulk and scale is recorded in Exhibit 7:

NJ stated that the FSR for the proposed development was below the requirements of SEPP (Seniors Living) and that this was a non-discretionary standard. NJ noted that the development would to some extent change the character of the area, however, some form of change is acknowledged in SEPP (Seniors Living). NJ noted the width of the proposed building would be 22m at the front and 25m at the rear and that this was not substantially greater than the existing dwelling on the site, which was 18.5m wide, given that the site is a relatively wide allotment.

NJ believes that the length of the building would not be readily perceived as the development is proposed to be stepped up the site and landscaped on all sides. The northern elevation as shown in the architectural drawings does not take into account the substantial extent of landscaping now proposed along this boundary in the revised plans. This combined with the stepped form would ensure that the building form would not appear as one single long elevation and result in an acceptable visual impact.

NJ acknowledged that from the street in front of the site the development would read as a single building however was of the opinion that this was not of itself enough reason to refuse the application.

45 Dr R Lamb and Mr G Boston who attended the joint planning conference, with Messrs Piggott and Juradowitch, were of the opinion that the proposal as amended would be acceptable. However, they disagreed with Mr Juradowitch that the proposal would require greater lower-level physical separation, to reduce the visual impact of its mass. Even so, Mr Juradowitch did not consider this deficiency of the design would be fatal to the application and they both supported this view of his. Mr Piggott did not agree with the other town planning and urban design witnesses in this regard.

46 Mr Robson, SC, drew the Court’s attention to Mr Juradowitch’s comments on the April 2006 plans:

The building will appear as a residential flat building, however this is a form which is permitted under the Seniors Living Policy and is not a basis upon which to refuse the development application.

47 Mr Robson, SC, submitted, in respect of that evidence, that Mr Juradowitch had misinterpreted the provisions of SEPP-SL. Contrary to what he said, cl 31 requires the proposal to recognise the desirable elements of the location’s current character, so that new buildings might contribute to that quality of character. If a residential flat building form were completely out of character, and the design principles under cl 31 of SEPP-SL were disregarded, further modification of the form of the building would be needed to bring it more into character, then under s 79 of the Act, it should be refused consent.

48 Mr Robson, SC, submitted that it is difficult to reconcile with his previous stance, the comments of Mr Juradowitch at page 5 of his final report, wherein he states:

In my opinion the overall form of the building is not a justifiable reason to refuse the development. As noted previously, the determinative issue in my view is the bulk and scale relationship of the building to its neighbours and as viewed from key vantage points, such as Pittwater Road and from Pittwater.

49 In his final report, Mr Juradowitch also states, [Note: Exhibit 1, Tab 19, p 11]

Seniors living developments in low-density residential environments almost invariably incorporate buildings significantly larger than existing dwellings. In these situations it is desirable to articulate the building horizontally and vertically so that it does not readily appear as a single large building mass. This has been achieved to some extent in the proposed development, although it will in my opinion essentially appear as a single large building from Pittwater Road and from Pittwater.

50 Mr Robson, SC, submitted that Mr Juradowitch’s view that there should be a greater visual break between the two lower levels and two upper levels of the building so that the two components would appear separate when viewed from Pittwater Road and Pittwater was “…entirely consistent with the view expressed by Mr Piggott that the scale of a building in terms of its bulk and visual mass does not respond adequately to that of the existing surrounding developments”.

51 Mr Robson, SC, submitted,

“It is established that an aspect of the character of the neighbourhood is that

. In this regard, the reliance on planter boxes is not consistent with the landscaping character of the neighbourhood; and such landscaping is incapable of screening bulky built forms.

52 Mr Clay submitted that the proposal would contribute positively to the area and would meet the requirements of cl 31(a) of SEPP-SL to “…recognise the desirable elements of the location’s current character (or, in the case of precincts undergoing transition, where described in local planning controls, the desired future character) so that new buildings contribute to the quality and identity of the area”, and cl 31(c) of SEPP-SL, “…to maintain reasonable neighbourhood amenity and appropriate residential character”.

53 He submitted that cl 31(e) of SEPP-SL “…embody planting that is in sympathy with, but not necessarily the same as, other planting in the streetscape”, had been not placed in issue by the council and as there has been “…no request to deal with this [and] in the absence of evidence”, it “…must remain not in issue”.

54 He submitted that the proposal would contribute to the quality and identity of the area as required by cl 31(a) of SEPP-SL as it is proposed to be landscaped with canopy trees and other perimeter planting stepping up the land with the slope.

55 On the site plan, in Exhibit 9, Mr Piggott indicated the viewpoints from which he considered the proposal to be out of character with the locality and neighbouring properties. He translated these viewpoints onto Section AA. From viewpoints C and D in front of the proposal in Pittwater Road he maintained that the proposal would not blend in. Despite this evidence, I am satisfied that from these viewpoints that the superstructure would be recessive in form and would rise up with the slope of the ground. I am satisfied from these viewpoints that the proposed landscaping on the terraces and the shadow line of each broken floor level would ensure the proposal would recede in the view. The elevation would also be broken in that the floor levels of the eastern part of the proposal would be at a higher level than those on the west.

56 I have a preference for maintaining an informal landscaped appearance in the front setback and to this end the deletion of the formal garden beds and replacing these with earth berms would, to my mind, assist in blending the proposal into the streetscape and in particular the front garden of No 2089 Pittwater Road. However as the conditions were received late and as I was not able to enquire as to the party’s views on this I have not conditioned this.

57 Senior Commissioner Dr Roseth, in the case of GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268 proposed principles with relation to SEPP 5, since superseded by SEPP-SL, concerning compatibility between a SEPP 5 development and the surrounding low-density zones and touched on neighbourhood amenity and streetscape. To the extent that these planning principles remain relevant they are:

· The first principle is that buildings in a SEPP 5 development do not have to be single-storey to be compatible with the streetscape even where most existing buildings are single-storey. The principle does not apply to conservation areas where single-storey dwellings are likely to be the major reason for conservation.

· The second principle is that where the size of a SEPP 5 development is much greater than the other buildings in the street, it should be visually broken up so that it does not appear as one building. Sections of a building, or separate buildings should be separated by generous breaks and landscaping.

· The third principle is that where a site has existing characteristics that assist in reducing the visual dominance of development, these characteristics should be preserved. Topography that makes development appear smaller should not be modified. It is preferable to preserve existing vegetation around a site’s edges to destroying it and planting new vegetation.

· The fourth principle is that a SEPP 5 development should aim to reflect the materials and building forms of other buildings in the street. This is not to say that new materials and forms can never be introduced, only that their introduction should be done with care and sensitivity.

58 I am satisfied that in the particular circumstances of this case, that each of the above principles applied to the proposal are adequately addressed.

59 Mr Robson, SC, questioned Mr Juradowitch about an appropriate neighbourhood fit and whether the proposal would be seen as being of good design as required under SEPP-SL. Mr Juradowitch referred to the words of the SL Guidelines concerning ‘good neighbourhood fit’, [Note: Exhibit 1, Tab 16, p 4]. He was of the opinion that after analysing the existing neighbourhood character and taking into account that the landscape concept plan shows native trees along the frontage maturing to a generous height, that the impact of the proposal would be positive. He considered the removal the existing garage on the land would be a positive feature and would open up views to and from the Carter’s residence at No 2089 Pittwater Road. He added that the stepped form of the proposal would make no greater impact near the Carter’s house than the existing steep bitumen drive along the western side of the land. He concluded that the proposal would make a positive contribution to the area and the stepping of the design with the slope of the land would ensure the proposal would not be antipathetic to the current character.

60 Mr Juradowitch’s evidence is helpful in this regard and I am assisted the composite photograph of this section of Pittwater Road provided by Mr F Makin, President of the Bayview – Church Point Residents Association Incorporated in Exhibit 6. Also the height poles erected on the land on the site inspection assisted me to confirm the height and bulk of the proposal.

61 The overall height of the proposal would not exceed the ridge height of the existing dwelling on the land at 18.22m AHD. The parapet height of the western part of the proposal would be at 16.02m AHD and the parapet height of the eastern part of the proposal would be at 17.62m AHD or 600mm below the existing ridge height.

62 The front elevation as shown in the plans in Exhibit A would be landscaped at each level around the sides, front and back and this would soften the impact of the proposal when viewed from the north. Many of the houses nearby are two-storeys in height, even No 2089 Pittwater Road is single-storey with an attic and the proposal would fit in with the neighbourhood and with each nearby dwelling.

63 Standing at Mr Piggott’s Points C and D on Pittwater Road, the western part of the proposal erected on the subject land, in perspective would appear to be around the ridge height of the existing building on the land. The eastern part being projected around 3m further to the north and elevated 1.6m above the western part would appear around one floor higher than the existing building, viewed from the same points in Pittwater Road. This fact is gained by assessing the angles of view on Section AA and interpolating for the eastern part of the proposal.

64 As the view becomes more oblique as with points A, E and G, the side elevation stepping with the landform and single-storey to two-storeys in height comes more into view. This is gauged by referring to the east and west elevations. I am satisfied that the western part of the proposal would relate well to the scale of the Waterhouse dwelling at No 2089 Pittwater Road and its Magnolia grandiflora in the front garden. I am also satisfied that the eastern part of the proposal would relate well to the building at No 2081A Pittwater Road to the east and upslope. The evidence of Mr Piggott that the proposal would not fit in does not persuade me. Despite the proposal being of stepped two-storey design, I am satisfied that it would be compatible with the streetscape and would satisfy the first principle under the Wombarra tests.

65 The second Wombarra principle would be satisfied, as even though the proposal would be of a size much greater than the other buildings in the street, it would be visually broken up so that it would not appear as one building. The proposal would broken-up horizontally and vertically and the terraces would be landscaped.

66 The third principle would be largely satisfied, as the proposal has been designed to make use of the slope of the land and this assists in reducing its visual dominance. The proposal would also be softened visually by new vegetation proposed around the perimeter of the land.

67 The fourth principle would be satisfied, as the proposal would incorporate materials that are found in the street. Although the proposed stepped building form is unlike other building forms in the street it is a form that is suitable given the steep slope of the land.

68 Despite an increase in density from one dwelling to six, I am satisfied that the Church Point and Bayview locality, would remain a low-density residential area, as required under the future desired character statement. The area would remain characterised by single-storey and two-storey residences in a natural landscape setting. Given the limitations on the access, it is unlikely that new SEPP-SL developments would be located far from the Pittwater Road frontage. Thus it might be expected that most of the existing dwellings in the area especially those up slope would remain or be replaced over time by similar dwellings.

69 The proposal would be of a height no greater than the existing tree canopy, and would reflect the predominant scale and setbacks of existing development. I am satisfied given the evidence of Mr Juradowitch that the proposal is designed to address the street, integrate with the public domain, and be at a ‘human scale’.

70 The proposal could not be seen as developing the hillsides or is in the vicinity of ridge tops on the southern side of Pittwater Road. I am satisfied that it would integrate with the natural landscape and topography. There are few indigenous trees and vegetation to be retained and as shown in the landscape concept plan new planting is proposed to enhance the treed character of the land and would assist in blending the proposal into the natural environment. I understand that the application is willing to consider not erecting side fences and the visual impact of fencing would be lessened thereby and would provide for the movement of wildlife across the land. Informal landscaping within the front setback would be an improvement as discussed above.

71 Mr Juradowitch concluded, [Note: Exhibit 1, Tab 19, pp 29-30]

Having regard to the nature and context of the site, the existing and desired future character of the area, the applicable planning controls and the outcomes envisaged by those controls, I am of the view that the proposed development as detailed in the revised plans dated July 2006 is worthy of conditional approval.

My principle concerns in relation to the April 2006 design of the development were summarised in my preliminary planning report as follows:

· Excessive building bulk exacerbated by the elevated nature of the site, the very large front terraces and extensive privacy screens and other structures on these terraces;

· Inadequate side setbacks and insufficient area for landscaping along the side boundaries, given the two-storey equivalent scale of the side elevations and the length of these elevations;

· The building does not complement or contribute to the character of the locality or the streetscape as a consequence of its large size and extensive site coverage in comparison to neighbouring development;

· Its overbearing relationship to the neighbouring and much lower property at No 2089 Pittwater Road, Bayview.

The above concerns that I identified in relation to the April 2006 plans have been substantially addressed in the revised plans by reducing the floor space ratio to less than 0.5:1, increasing the landscaped area to at least 50% and providing a greater setback to side boundaries. Perceived building bulk has been reduced by increasing front setback and landscaped area, replacing tall fixed privacy screens to terraces with planter boxes and reducing the width of the building by 1200mm to provide more effective screen landscaping to side boundaries. The proposal achieves an acceptable interface with neighbouring properties in terms of building bulk, height, visual impact and landscaping.

I have some reservations with the perceived bulk of the proposed building as viewed from Pittwater Road and Pittwater in the context of creating the perception of two smaller buildings, where it is proposed to construct a relatively large building within a low density residential environment. My preference would have been to increase building separation of the lower levels of the northwestern and southwestern components of the building from 2 metres to 4 metres and incorporate some landscaping between these components of the building.

In regard to building bulk it does need to be acknowledged that the stepping back of the building with the slope of the land, differentiation in the floor levels of the two building components and extensive landscaping proposed for the front setback will in combination significantly moderate the visual impact of the front elevation of the building. Accordingly, I am of the opinion that the proposal achieves an acceptable bulk and visual impact relationship to Pittwater Road and Pittwater, if the proposed landscaping is planted and maintained.

72 I accept the thrust of his evidence and I am satisfied that, although the proposal would be of a different visual character, its bulk and scale would be compatible with the streetscape and satisfactory when considered under s 79C of the Environmental Planning and Assessment Act 1979 and under the requirements of SEPP-SL. I would not refuse the application for reason of its character and built form.

73 Mr Piggott sought to apply the maximum 40% site coverage requirement of DCP21 Section D4.10. The site coverage of the proposal would be in the range of 48.8% [Note: Issue 1(b) above] and 49.6% [Note: Exhibit 1 Tab 19, Mr Juradowitch’s final report]. There is an argument that the DCP21 standard only gives an indication of the likely future character of an area where it applies and should not be seen to govern SEPP-SL development that has other standards to meet. Mr Piggott seemed to acknowledge this as he was of the opinion that this would provide a good indication of “…how the proposed development will sit within the context of the existing and future development on adjoining sites”.

74 Mr Juradowitch noted that SEPP-SL would override the requirements in DCP21 and would envisage some change in character as a result of an increase in the density of development.

75 The proposal would be setback from the front a distance of 18.5m on the east and 27.0m on the west measured parallel to the side boundaries and to the external enclosing walls of the proposal. The proposed planting beds and garden terraces that screen the basement walls would be setback from the front boundary at around 18.5m on the east and 27m on the west.

76 Mr Juradowitch was of the opinion that the proposed landscaped terraces create new useable recreation area and outdoor space that would add to the open space on the land. He was content that the setbacks would be adequate and together with landscaping to all four boundaries would provide a proper setting for the development.

77 I accept the evidence of Mr Juradowitch that the proposal would be seen in a landscaped setting and I am satisfied the proposed site coverage is sufficiently limited as to be not a reason to refuse the application.

Excavation

78 The excavation is deep and voluminous, however once the construction process is completed the building and reconstructed landscaping would fill the excavation.

79 As amended in July 2006, the proposal would not involve an excavation of the land from “boundary-to-boundary” as alleged in the issues and there are proposed deep soil zones to provide for screen planting along the side boundaries that would enhance privacy between new and existing dwellings.

80 During the hearing Mr Crozier, civil engineer for the applicant, gave a more detailed explanation of the steps to be taken in shoring the excavation. As a result, I am satisfied that it would be practicable to excavate the land and the deferred commencement conditions proposed seem adequate at this stage. It is clear that further site investigation would be needed and the method of stabilising the soil during excavation be further clarified. This would require:

· at least 4 cored boreholes put down across the building envelope to the base of the excavation;

· the rock cores are to be tested for strength and logged for defects with a view to forming a model for the design of the shoring support;

· groundwater levels are to be determined and samples of both overburden soil and groundwater are to be taken for testing;

· the above samples of soil and groundwater are to be tested for PASS conditions and the suitability of the groundwater for discharge off-site is to be determined;

· the geotechnical site model be used to determine the likely lowering of the groundwater level and the results given to an Arborist for evaluation of the effect on the existing trees and vegetation;

· the testing results are to be used to confirm the adequacy of the design for the shoring support as shown in the Schematic Excavation Staging Plans;

· a Method Statement is to be prepared to describe the excavation sequence;

· a detailed risk assessment is to be prepared for the excavation process using the adopted design and method statement.

81 Deferred commencement conditions are proposed to address these matters.

82 Other conditions require dilapidation studies to be undertaken of nearby properties to address any damage due to vibration.

83 Apart from the philosophical view that this is “scraping” the ground inappropriately as submitted by Mr Robson, SC, and non-renewable energy expended in the process, I am not persuaded that the application should be refused for reason of the extent of excavation.

Privacy

84 As explained by Mr Juradowitch, based on the July 2006 amendments of the plans, the site coverage of the proposal has been reduced by 3% from previous versions of the plans, to around 49.6%; landscaped area has been proportionally increased; the outward pergolas on the terraces have been deleted and planter areas on terraces increased in area. It is now proposed to plant screening vegetation in the proposed planter boxes on the terraces in place of privacy screens. The view to the neighbours properties especially that of No 2089 Pittwater Road would be through the screening vegetation growing in the planter boxes and along the side boundaries, as shown in the landscape concept plan prepared by Botanica in Exhibit B.

85 The proposed planting within the western side setbacks varies in width from 3.1m to 3.985m near the rear garden of Mr and Mrs Carter’s property at No 2089 Pittwater Road. It would comprise informal screen planting, of Banksia ericifolia, (Heath Banksia), Banksia integrifolia, Coastal Banksia, Syzigium australe, (Lilli Pilli), further to the south are Elaeocarpus reticulatus, (Blue Berry Ash) and other species that mature to between 5m and 8m.

86 Mr Juradowitch was of the opinion that if it were necessary, screens with horizontal timber slats around 600mm high could be included on the eastern and western sides of the terraces. He had recommended in his preliminary report on the application that the large screens originally proposed be deleted and landscaping be relied on for screening.

87 In the planter boxes at the edge of the terraces would be feature shrubs and bushes of low habit. I consider the low-height physical screens suggested by Mr Juradowitch to supplement the screening foliage would be unnecessary as the view from the terraces is likely to be ‘blinkered’ by the screening planting along the east and west sides of the development. The principle views are towards the north and the waters of Pittwater and not into nearby properties.

88 I would not refuse the application for reason of an adverse impact on privacy.

Cumulative impact

89 The council was concerned that having regard to other SEPP-SL developments that are either under construction at No 2091 Pittwater Road and on appeal at No 2079 Pittwater Road, that the cumulative impact on the existing and desired future character of the area would be detrimental.

90 I am required to consider the present development application on its merits and as outlined above, I am satisfied that the proposal for the subject land would fit in with the existing and desired future character of the area. Other developments will also need to be considered on their merits in context and if at some stage the consent authority considers a development will not achieve that end of fitting in, it should be refused.

91 However, I am satisfied that the present application is not one that should be refused for reason of cumulative impact.

Other matters

Potential heritage listing of No 2089 Pittwater Road

92 This matter was not given prominence in the council’s case however, Mr and Mrs Carter, the owners of No 2089 Pittwater Road were concerned to ensure that the proposal would not adversely impact on the architectural significance of their Waterhouse-designed dwelling.

93 This dwelling is of some architectural significance as is the May Gibbs house at Neutral Bay by the same distinguished architect and is setback around 1.1m off the common boundary with the subject land and at a variable distance off Pittwater Road, however, near the common boundary it is setback around 17m. A large Magnolia grandiflora in its front garden is a significant landscape element in the streetscape and filters the view of the house from some viewpoints in Pittwater Road. The ground floor level of this dwelling is around 4.0m AHD (estimated from survey in Exhibit B) and the ridge level is 11.71m AHD.

94 Mr Juradowitch stated, [Note: Exhibit 1, Tab 19, p 28]:

Given that the building is not a listed heritage item and the improved interface offered by the revised plans of July 2006, I do not consider that heritage impact issues would justify refusal of the application.

95 Existing on the subject land near this dwelling is a steep driveway that leads to the existing dwelling that would be removed if the proposal were erected.

96 As shown in the architectural plans in Exhibit A and the landscape concept plan in Exhibit B, there would be a retained garden bed setback 1m from the common boundary with the soil level at 4.42m AHD near the eastern side door to the dwelling on No 2089 Pittwater Road. Further to the south, near the back wall of No 2089 Pittwater Road there would be another retained planter bed setback a similar distance from the common boundary and with the soil level at 5.72m AHD. Further to the south would be another planter bed setback the same distance as the lower beds with the soil level at 6.72m AHD over the top of the basement car park. Other planter beds further to the south are proposed partly over the basement car park and partly in the side setback with soil at higher levels. This is described on Section BB on the western boundary. The terrace off the main bedroom of Apartment No 1 would be around 6.32m AHD and setback 3.985m from the common boundary. Thus people standing on that terrace with an eye height of around 7.92m AHD would be around 2.32m above those standing within the ground floor of No 2089 Pittwater Road. Facing onto the subject land are the kitchen of No 2089 Pittwater Road to the north and another room to the south. The back garden of No 2089 Pittwater Road would be at a level of around 4m AHD. The screening vegetation on the terraces and within the side setbacks would filter the view to and from the proposal.

97 Planter beds are proposed for the eastern and western parts of the proposal. Planter beds within the front setback are designed apparently to screen from view the proposal’s northern basement car park walls and to step the landscaping with the slope. Near No 2089 Pittwater Road there would be stepped landscaping of planter beds and a new driveway in place of the existing landscaping and driveway. The proposal’s Apartment 1 balcony edge would be setback around 1.5m behind the line of the southern wall of No 2089 Pittwater Road.

98 Given the height of the proposal behind the line of the southern elevation of No 2089 Pittwater Road, the landscaping and the additional setback to the new driveway, I am satisfied that the relationship between the proposal and this neighbouring dwelling would be acceptable and not a reason for refusal. I am also satisfied that the erection of the proposal would not adversely impact on the potential listing of No 2089 Pittwater Road as a item of environmental heritage. However, I do question the need for the planter beds to be retained as proposed. I would have thought that planting on a sloping earth berm would have been adequate to screen the basement walls of the proposal.

Neighbourhood amenity

99 Mr Robson, SC, submitted that that where a prohibited form of development under a local planning instrument is made permissible by a State environmental planning instrument the potential adverse amenity impacts should at least be minimised. To this end he submitted the applicant bears the onus of demonstrating that adequate regard has been given to the design principles in the Policy.

100 In this case he submitted the applicant has failed. The neighbours reside in this locality because they appreciate its existing character and they are entitled to expect that new buildings will contribute to the quality and identity of the area (cl 31(a)).

101 He submitted that this proposal, with its uncharacteristic bulk and scale, its inconsiderate siting and its lack of relationship to the site's landform should be refused.

102 Mr Juradowitch stated, [Note: Exhibit 1, Tab 19, p31]:

The majority of issues raised by objectors have been addressed in the discussion of issues identified by the Council. In my opinion the concerns of objectors in relation to overall bulk and scale, site coverage and inadequate landscaping to side boundaries were justified in relation to the April 2006 and supported my previous assessment that the proposal was an over-development of the site and out of character with the low density treed character of the area.

103 I have examined the relationship of the proposal with No 2089 Pittwater Road as set out above. To the east of the land other properties are well removed from the proposal as there is a 3.5m wide public right-of-way flanking this boundary of the land and there is a private driveway linking Pittwater Road to 2081A Pittwater Road and by foot to No 1 Corniche Road.

104 The rising stepped design of the proposal from north to south and stepping up from west to east to my mind provides a satisfactory visual relationship with all nearby buildings. The Carter’s property No 2089 Pittwater Road with its floor level of around 4.0m AHD, up to the Sheidow property at No 2081A Pittwater Road with its ground floor level at around 16m AHD to 17m AHD, to the Lee property at No 1 Corniche Road with a ground floor at 20.05m AHD and pool surrounds at 18.16m AHD, all relate well to the proposal and the proposal could be seen as a hub around which the nearby properties step with the topography. Landscaping is proposed on the subject land that would complement the landscaping on nearby properties and the hillside would appear to be hard man-made elements softened by landscaping. The proposal is remote from the ridge, which it might be expected will remain much as it is today.

105 Views would be available over the top of the proposal from a standing position on the deck surrounding the pool at the Lee property at No 1 Corniche Road. The proposed roof would not present as any greater mass in the view than the existing roof of the existing dwelling on the subject land. The colour of the proposed roofing material would need to be such as to not cause glare for nearby residents. Views would be available over the proposal from the Sheidow property No 2081A Pittwater Road and the Williams property at No 2081 Pittwater Road.

106 I would not refuse the application for reason of a lessening of neighbourhood amenity

Overdevelopment

107 This matter was raised by the residents and was not pressed strongly by the council and was not in issue.

108 Citing deficiency of setbacks, extensive excavation and adverse visual impact of boundary walls on neighbours, Mr Robson, SC, submitted that the proposal would be an overdevelopment of the site. He was critical of Mr Juradowitch’s “…slavish adherence to the FSR” under SEPP-SL. Mr Robson, SC, submitted that the proposal is required to be ‘a good neighbourhood fit” and it fails.

109 Mr Juradowitch considered the July 2006 amendments to the proposal and was of the opinion:

The revised plans are generally positive in relation to the objections raised, particularly in relation to increased side setbacks and landscaped area, especially along the northwestern boundary. Other improvements include replacement of privacy screens with plantings and lowering of roof height. Overall building envelope/bulk has been reduced somewhat from the April 2006 plans.

An objection was raised in relation to a perceived breach of the single-storey building height within the rear 25% of the site. My assessment indicated that there was no such breach, however in the revised plans where there is a 1 metre reduction in rear building setback, there is now a minor encroachment of the single storey building height limit within the rear 25% of the site. The extent of this encroachment is limited to a 0.9m2 portion of Bedroom 2 of Apartment 5 for a wall length of 600mm.

110 Mr Juradowitch in oral evidence said that although the original plans would have been overbearing on No 2089 Pittwater Road, with the increased setback and landscaping the proposal would not be sufficiently overbearing to warrant refusal. He agreed with Mr Robson, SC, that this was a matter of fact, degree and judgment.

111 I consider the FSR of the proposal is germane to the consideration of overdevelopment. The July amendments limit the FSR to 0.462:1 and as a result the application cannot be refused under SEPP-SL on the FSR grounds alone. I accept the thrust of Mr Juradowitch’s written and oral evidence and I am satisfied that the amended plans do not represent an overdevelopment of the land or would be unreasonably overbearing.

Front, side and rear fences

112 The panoramic photograph in Exhibit 6 is illustrative of the type of front fencing found along this stretch of Pittwater Road. The rough-faced sandstone front fence on the subject land is characteristic of the front fences in the area and links with one that is similar on No 2089 Pittwater Road. I consider the existing front fence should be the model of an appropriate front fence for the proposal. Condition 35 is imposed to this end. I have amended this condition to ensure that it would be built on the front alignment of the subject land and not setback 1m as proposed by the parties in the amended conditions.

113 I consider if the applicant persists with retaining walls in the front garden, which I prefer should be removed, these should also be of rough faced sandstone. I have also deleted that part of the condition that would require fences at and near the front to be 50% transparent.

114 At the site inspection local residents pointed out that they would prefer no side and rear fences enclosing the subject land. The reason for this was that the present landscaping is informal and wildlife passes through parts of the land. The residents were concerned that normal 1.8m high paling fences side and rear fences would be likely to impede the passage of animals and would be inappropriate visually. This is a matter best to be left to the applicant and the neighbours to consider, however, it seems to me a valid point. The area is most attractive for reason of its natural setting and to maintain this would be appropriate.

SEPP1 objection

115 The development standard to which this SEPP1 objection relates is cl 38(4)(c) of SEPP-SL that a building located in the rear 25% area of the site must not exceed 1 storey in height.

116 The area of non-compliance is limited to around 0.9m2 of floor space in Bedroom 2 of Apartment 3 or around 800mm of the length of the western external wall and 6700mm along the southern external wall (2.68m2 of gross floor area including external enclosing walls) and a maximum height on the western elevation of 1m above natural ground level. The extent of non-compliance is shown by means of a dotted line on plan DA-004(1) and in elevation on DA-101(1) prepared by Michael Fountain Architects Pty Limited in Exhibit A.

117 The parties were agreed that the non-compliance would not result in an increase in the perceived height of the building and Mr Juradowitch considered the applicant's SEPP 1 objection to be justified in the circumstances and would result in a positive outcome in terms of the objectives of the subject development standard.

118 I accept that evidence and I am satisfied that compliance with the standard would be unreasonable or unnecessary in the circumstances of the case and the SEPP1 objection to cl 38(4)(c) of SEPP-SL may be upheld.

119 For the above reasons, the appeal is upheld.

Conditions

120 The conditions are those in Exhibit 8 as amended after the hearing. Condition B24 remained in dispute. The applicant’s position was that the “…planting should be in accordance with the [Revised] Landscape Plan as amended by conditions”. The respondent’s position was that:

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

121 I prefer the applicant’s position. If the planting is not what is expected after three years, the council could consider taking action in Class 4 to enforce the conditions.

122 I have amended Condition 35 relating to the front fence it now reads:

35.

The front fence shall be of rough-faced sandstone, similar to the existing fence and: (i) be no higher than 1m above natural ground level; and (ii) deleted; and (iii) the side boundary fencing in the front setback area is to be no higher than 1m above natural ground level (iv) not restrict casual visual surveillance of the street, and (v) provide a 45 degree splay (or equivalent) either side of any vehicular entrance, minimum dimensions of 2m by 2m.

(vii) deleted.

123 The height of the proposal as shown on the plans is not to be exceeded and to this end Condition 37 is imposed.

37. No plant or equipment (including without limit air conditioning units) shall be permitted on the roof of the development. The maximum height of the building is as shown on the approved plans.

124 The 4,000-litre rainwater tank and the 19,000-litre on-site detention tank referred to in Conditions B10 and B11 are is to be installed within the building or in the case of the later in the building or under the driveway. The reason for this is that the front setback is required for landscaping.

Orders
125 My orders are:
1. The appeal under s 97 of the Environmental Planning and Assessment Act 1979 is upheld.

2. The State Environmental Planning Policy No 1 objection to cl 38(4)(c) of State Environmental Planning Policy – Seniors’ Living is upheld.

3. Development application No N0787/05 lodged with the respondent council on 1 December 2005 to erect a seniors’ living development comprising 6 x 3 bedroom units in accordance with the provisions of State Environmental Planning Policy – Seniors’ Living at Lot 1, DP 11518, being No 2085 Pittwater Road, Bayview, is granted a deferred commencement consent and subsequently it may be approved subject to Conditions A1 to D130 and advices to G135 in Annexure A.

4. The exhibits except for Exhibits A, B, C, D, E, F, G, J, K, L, M, N, O, 1 and 3 are returned.

S J Watts

Commissioner of the Court

The consequence of the Court’s decision in this appeal is the grant of development consent subject to detailed conditions. These conditions are not reproduced as part of this decision but are available for inspection at the Council. In addition, a copy the Court’s Orders and the conditions may be obtained from the Court’s registry upon payment of a fee. Details of the fee payable and process for obtaining a copy of the Orders and conditions are available on the Court’s web site at

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Citations

Marina Bay Developments Pty Limited v Pittwater Council [2006] NSWLEC 531

Most Recent Citation

Marina Bay Developments Pty Ltd v Pittwater Council [2006] NSWLEC 577

Cases Citing This Decision

Marina Bay v Pittwater Council [2008] NSWLEC 14

Marina Bay Developments Pty Ltd v Pittwater Council [2006] NSWLEC 577

Cases Cited

Statutory Material Cited

Winten Property Group Limited v North Sydney Council [2001] NSWLEC 46

GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268

Hewitt v Hurstville Council [2001] NSWLEC 294

CITATION:	Marina Bay Developments Pty Limited v Pittwater Council [2006] NSWLEC 531
PARTIES:	APPLICANT: Marina Bay Developments Pty Limited RESPONDENT: Pittwater Council
FILE NUMBER(S):	10147 of 2006
CORAM:	Watts C at 1
KEY ISSUES:	Deemed Refusal - Development Application :- Character and built form Excavation Privacy and Cumulative impact
LEGISLATION CITED:	Environmental Planning and Assessment Act 1979, ss79C and 97 Pittwater Local Environmental Plan 1993, (PLEP) Draft Pittwater 21 Local Environmental Plan, (DPLEP) State Environmental Planning Policy - (Seniors Living) 2004, (SEPP-SL) Seniors Living Policy - Urban Design Guidelines for Infill Development, (SL Guidelines) Pittwater 21 Development Control Plan, (DCP21) State Environmental Planning Policy 71 - Coastal Protection, (SEPP71)
CASES CITED:	GPC No 5 (Wombarra) Pty Ltd v Wollongong City Council [2003] NSWLEC 268; Hewitt v Hurstville Council (2001) NSWLEC 294 (21 December 2001); Hooker Corporation Pty Limited v Hornsby Shire Council NSWLEC, 2 June 1986; Tenacity v Warringah Council [2004] NSWLEC 140; Winten Property Group Limited v North Sydney Council (2001) NSWLEC 46
DATES OF HEARING:	15/08/2006 and 16/08/2006
DATE OF JUDGMENT:	08/25/2006
LEGAL REPRESENTATIVES:	APPLICANT: Mr P R Clay, barrister instructed by Mr M A Staunton, solicitor SOLICITORS: Staunton Beattie RESPONDENT: Mr J E Robson, SC, with Mr A M Pickles, barrister, instructed by Ms D J Townsend, solicitor SOLICITORS: Mallesons Stephen Jaques

[2006] NSWLEC 531

25/08/2006