Miller v Pittwater Council

[2014] NSWLEC 1087

Land and Environment Court

New South Wales

Medium Neutral Citation:

Miller & anor v Pittwater Council [2014] NSWLEC 1087

Hearing dates:

23, 24 January 2014; 11 March 2014; 31 March 2014

Decision date:

15 May 2014

Jurisdiction:

Class 1

Before:

Fakes C

Decision:

1. The appeal is upheld.

2. Development application N0108/13 for the subdivision of one yet to be created lot into two lots, including the provision of services, off-street parking and tree removal, at 232-234 Barrenjoey Road, Newport (Lot D DP367601 and Lot 5A DP 399973) is approved subject to the conditions in Annexure 1.

Catchwords:

SUBDIVISION; Access; Tree removal; impact on views; previous Court approval

Legislation Cited:

Environmental Planning & Assessment Act 1979
Pittwater Local Environmental Plan 1993

Cases Cited:

Miller v Pittwater Council [2011] NSWLEC 1117
Segal & v Waverley Council [2005] NSWCA 310
Zhang v Canterbury City Council [2001] NSWCA 167

Category:

Principal judgment

Parties:

Gabriel & Chelsea Miller (Applicants)
Pittwater Council (Respondent)

Representation:

Applicants: Mr M Staunton (Barrister)
Respondent: Ms H Irish (Barrister)
Applicants: Sattler & Associates
Respondent: King & Wood Mallesons

File Number(s):

10717 of 2013

Judgment

1. COMMISSIONER: The applicants appeal Pittwater Council's refusal of development application DA N0108/2013 for subdivision of one yet to be created lot into 2 lots at 232 and 234 Barrenjoey Road, Newport (the site). The proposal also includes provision of services, off-street parking and tree removal.

1. The appeal is made under s 97(1)(a) of the Environmental Planning & Assessment Act 1979 (the Act).

The site and locality

1. The site is steeply sloping and heavily vegetated, with rocky outcrops towards the top of the slope. Pittwater 21 Development Control Plan (P21DCP) identifies the site as being slip affected. Bushrangers Hill Reserve adjoins the north-eastern portion of the site. There is an extended and vegetated road reserve along the Barrenjoey Road frontage.

1. The site is surrounded by residential development of varying age and design; typically single dwellings in landscaped settings. Adjoining dwellings to the south are accessed via a right of carriageway from Barrenjoey Road. The right of carriageway benefits and burdens the site and these adjoining properties.

1. Residential development to the north along Barrenjoey and Bungan Head Roads is of a conventional nature with lots generally addressing the streets.

Relevant background and the proposal

1. The overall site comprises two vacant lots - Lot D in DP367601 (232 Barrenjoey Road) and Lot 5A in DP 399973 (234 Barrenjoey Road) and has a combined area of 4255.5m2.

1. In 2011, the Court granted approval for a four-lot subdivision (Miller v Pittwater Council [2011] NSWLEC 1117). An existing driveway from Barrenjoey Road provides direct access to Lots B and D with access to Lot C via a Right of Carriageway from Bungan Head Road. The existing driveway also provides access to a parking area to service Lot A. Access from the car park to Lot A is via a proposed inclinator to be eventually constructed along the southern boundary of the site. Amongst other things, the 2011 approval also includes conditions requiring the implementation of a Vegetation Management Plan that includes additional tree planting and ongoing bush regeneration.

1. The 2011 approved lots, less the access area, have the following net areas:

• Lot A 1614m2
• Lot B 700m2
• Lot C 737m2
• Lot D 704.5m2

1. The current appeal before the Court proposes the further subdivision of Lot A into 2 lots. New Lot A on the upper, eastern portion of the lot includes the indicative location and design of a dwelling approved in the 2011 consent, and has a net area of 700m2 (with an additional 426m2 access handle).

1. New Lot B is down slope and to the west of new Lot A. New Lot B is to the east of the 2011 approved Lot B. The site area is 847m2. The indicative dwelling footprint is 175.54m2. A 2011 condition requiring the height of any building to be no more than 8.5m remains.

1. A parking pad off the western side of the existing driveway provides the proposed parking for future occupants of new Lot B. Direct access to the new lot will be via the inclinator anticipated in the 2011 consent and shown on the plans for the original Lot A in that consent. It is proposed that new Lot B will have reciprocal rights over the use and maintenance of the future inclinator. Stair access is also required as an alternative to the inclinator.

1. Works relating to the 2011 approval are in progress and partly completed. These include widening and upgrading of the right of carriageway from Barrenjoey Road, excavation for parking, and the erection of fences around approved lot boundaries. Some trees have been removed from approved Lot C. The construction of the parking area has resulted in the placement of fill on the embankment between the parking area and Barrenjoey Road, which in turn has had a detrimental impact on a number of existing trees.

The hearing

1. The parties' experts assisted the Court. The applicants' experts were: Ms Melanie Howden (Arboriculture), Mr Ross Fleming (Planning) and Mr Robert Varga (Access and Parking). The respondent's experts were: Mr Guy Paroissien (Arboriculture) and Ms Rebecca Englund (Planning, Access and Parking).

1. The hearing commenced in late January 2014 with an inspection of the site. Mr Milligan, a town planner and agent for some of the adjoining owners made submissions concerning safety aspects regarding the use of the shared carriageway.

1. The location of the proposed parking was noted and the possible impacts of its construction on Tree 40 discussed. Loss of vegetation arising from earlier works was observed and discussed.

1. The location of the proposed inclinator was noted, in particular its position relative to the partly constructed parking spaces for already approved lots. Preliminary plans for access stairs were discussed.

1. The site was accessed via informal steps through earlier approved lots. Access through proposed new Lots A and B is best described as 'bush-bashing'. The earlier approved lot and location of the proposed building pad at the top of the site were inspected. The proposed locations of the boundaries, access point, landscaped area and building pad on new Lot B were identified.

1. The trees most likely to be affected were identified on the plans and in the field. It was noted that a number of trees identified as having a high retention value were indicated for removal because of the likely impact of a future dwelling. It appeared on site that relocating the proposed building pad to the north might have less impact on the better quality trees and therefore potentially less impact overall.

1. The site was viewed from the south from Barrenjoey Road and distantly, from the west, from Rowland Reserve in Bayview.

1. In Court, Mr Staunton made opening submissions for the applicants and Ms Irish for the respondent. Mr Varga and Ms Englund gave evidence on parking and access issues. Arboricultural evidence was commenced however following the discussions raised on site in regards to the location of the proposed building envelope on new Lot B and the likely impact on quality trees, it was agreed that, amongst other things, amended plans and other documentation be prepared to show an alternative location, including sections and landscaping. The hearing was adjourned. The parties' experts reviewed the amended plans and prepared supplementary joint reports. The hearing resumed on 11 March with final submissions on 31 March.

The amended plans

1. The amended plans show the concept dwelling relocated to the north, a repositioning of the proposed access to the inclinator relative to the proposed nearest eastern boundary with Lot A, less excavation than the original plans, compliance with the 8.5m height limit, and no part of the concept dwelling being more than 2 storeys. The amended landscape plans show indicative access stairs near the proposed inclinator as well as relocating the level area of private open space to the north of the dwelling as opposed to the west as shown on the original plans. The applicant prepared concept plans showing the indicative location and design of formal stairs from the parking platform to Lot A (Exhibit M).

1. The amended plans also include a 'Construction Methodology'. Explanatory notes on the plan give the sequencing of the operations. The existing parking area is to be used as a staging area; the inclinator will be installed with a construction platform; the suspended slab parking area to be installed and then used as a staging area; tree removal; site preparation, tree protection measures, silt fencing; foundations to be excavated by hand and auger; materials and equipment to be transported by inclinator and/or construction of a conveyor system; construction of initial building platform to be used for material storage; no material is to be stored or stockpiles outside of building footprints and parking areas; and construction vehicles to wait elsewhere and be called up as required.

1. It is important to note that the current application does not include the actual construction of the inclinator or the alternative access stairs. However, this is an issue raised by council in its submissions and draft conditions.

1. This judgment is based on the amended proposal and plans.

The issues

1. The council refused the application on the following grounds.

• Inappropriate subdivision: non-compliance with the minimum lot size in P21DCP; unsuitability of site due to slope, loss of vegetation, access, and likely construction management issues.
• Tree loss and visual impact: unreasonable and excessive removal of trees; impacts on views from Barrenjoey Road, the waterway and reserves to the west; inconsistent with the desired future character of the Newport Locality.
• Access: non-compliance with standards and requirements of P21DCP;
• Owner's consent: potential impacts on a boundary tree (Tree 40).

1. Contentions 1 and 2 will be considered together as the matters are related and raise common issues of lot dimensions, slope, loss of vegetation - including from construction, visual impact, and the desired future character of the locality. The contention regarding owner's consent and the impact on Tree 40 is resolved by the tree being shown to be on the applicants' land and by an agreed condition drafted by the parties' arborists.

1. As the desired future character underlies a number of contentions. It is useful at this stage to note that the site is within the Newport Locality. Clause A4.10 P21 DCP includes a description of the 'Desired Character'. In essence the desired future character includes dwellings integrated with the landform and landscape with height limits below the tree canopy. Development on slopes is to be stepped down or along the slope. A balance is to be achieved between maintaining features of the natural environment and development. As far as possible, the locally native tree canopy is to retained and enhanced to assist development blending into the natural environment.

Lot dimensions/ subdivision

1. The council contends that further subdivision of the site is inappropriate. Council maintains that the applicants have failed to adequately demonstrate that the site is suitable for further subdivision, or that an additional dwelling with a reasonable level of amenity could be introduced on the site.

Controls and evidence

1. The site is zoned 2(a) Residential "A" in Pittwater Local Environmental Plan 1993 (PLEP). Clause 11 covers 'Subdivision in residential zones'. Clause 11(2) sets a minimum allotment size created by subdivision in the locality in which the site is situated of 700m2.

1. Draft Pittwater Local Environmental Plan 2013 (Draft PLEP) applies. The site is proposed to be zoned E4 - Environmental Living. The relevant zone objectives are essentially to provide for low impact, low density residential development that minimises unnecessary impacts on the natural characteristics of the site and achieves the desired character of the locality. The latest draft retains the 700m2 subdivision lot size although an earlier version proposed a minimum subdivision lot size of 1200m2. Council minutes of 20 December 2013 indicate that a number of submissions had raised objections to the proposed larger minimum lot size and that further investigation and consultation on the appropriateness of the larger lot size be undertaken in the early part of 2014, following the finalisation of the Draft LEP 2013.

1. Pittwater Development Control Plan 21 (P21DCP) is relevant.

1. The relevant outcomes of the subdivision controls in B2.2 P21DCP are:

• Achieve the desired future character of the locality.
• Maintenance of the existing environment.
• Equitable preservation of views and vistas to and /or from public/private places.
• The built form does not dominate the natural setting.

1. The controls in cl B2.2 in Part B P21DCP specify a minimum lot size of 1200m2* for land subdivided in Zone 2(a) identified as Area 1 on the Dual Occupancy Map. The site is located in Area 1. The 'advisory note' for this lot size states:

*It is noted that these areas are in excess of the minimum area prescribed in Pittwater Local Environmental Plan 1993. This recognises the environmental, visual, and residential amenity attributes of areas 1 and 2 on the Dual Occupancy map.

1. Lot area excludes the part of the lot used for access. Clause B2.2 also requires a minimum lot width at building lines of 16m and a minimum lot depth of 27m. The minimum area for building shall be 175m2.

1. Relevantly:

Any lot (or lots) [is/] are to be capable of providing for the construction of a building which is safe from hazards, does not unreasonably impact on the natural environment, does not adversely affect heritage, and can be provided with adequate and safe access and services.

1. Land in zone 2(a) shall not be subdivided if the intended allotment has a slope in excess of 30% measured between the highest and lowest points. The planners agree that the slope of both new lots is in excess of 30% and therefore does not comply with P21DCP.

1. The amended plans illustrate the footprint of an indicative dwelling of 175.45m2, a portion of which is in the narrowest part of new Lot B. The footprint area complies with P21DCP.

1. The planners agree that the site is appropriately described as sensitive land. The planners disagree on whether the proposal is consistent with the outcomes anticipated by the B2.2 controls.

1. Mr Fleming considers that the lot is capable of siting a future dwelling that meets those outcomes. Ms Fleming maintains that the site is too heavily constrained by slope, existing significant vegetation and proximity to the ridgeline and that given the non-compliances with lot depth, as well at the intent of the 1200m2 lot size in P21DCP, that overall the proposal does not meet the objectives and should be refused.

Submissions

1. Notwithstanding the provisions of PLEP1993 and DPLEP2013, Ms Irish submits that council minutes show that a 1200m2 minimum lot size on land to be zoned E4 is still an open issue about which council has resolved to undertake further investigations and consultation. In any event, Ms Irish contends that the proposed subdivision should be refused as it fails to meet the relevant objectives of PLEP or P21DCP as it does not achieve the desired future character, does not maintain the existing environment of minimise unnecessary impacts, and will result in the dominance of built form over the natural setting. She presses the non-compliance with Lot depth and slope.

1. Ms Irish asserts that the applicants have failed to demonstrate that the site is suitable for further subdivision and that a dwelling with an expected level of amenity can be built on the site. In this regard she relies on the evidence of Ms Englund.

1. Mr Staunton submits that, by virtue of s 74C(5) of the Act, the size of the proposed lots is compliant with the minimum lot size controls in PLEP1993 and DPLEP2103. He also relies on the direction provided in s 79C(3A)(b) for flexibility in the application of the provisions of a DCP. Mr Staunton states that while cl B2.2 does not permit development on slopes in excess of 30%, he maintains that the applicant has produced a geotechnical report and concept drawings that demonstrate the new lot can be safely developed.

Findings

1. In considering the relevance of the 1200m2 lot size in P21DCP, as submitted by Mr Staunton, s 74C(5)(b) of the Act applies. This states that a provision of a DCP has no effect if it is inconsistent or incompatible with a provision of an environmental planning instrument applying to the same land. Therefore the applicable lot size is 700m2. As stated above, new Lot A will have a net area of 700m2 with an additional 426m2 access handle. New Lot B will have an area of 847m2. Therefore both proposed lots comply with the minimum lot size control in PLEP1993 and Draft PLEP 2013.

1. I also note that the 2011 consent approved lots smaller than 1200m2. I also agree with the applicants that the size of the proposed new lots is not dissimilar to surrounding development, including a recently approved subdivision at 230 Barrenjoey Road.

1. Where a development application does not comply with all the standards in a DCP, s 79C(3A)(b) of the Act requires the consent authority, in this case the Court, to be flexible in applying the provisions of a DCP and allow alternative solutions that achieve the objects of the relevant standards. The key consideration is whether the proposed development meets the objectives of the relevant controls in cl B2.2, P21DCP.

1. The lot width complies with cl B2.2 P21DCP in that it exceeds 16m at the building line however, depending on where the building line is measured; because of the irregular lot shape, the depth varies from about 21m to 28m. A compliant depth is 27m. In regards to the minor non-compliance with lot depth on part of proposed new Lot B, I agree with Mr Fleming in that the indicative plans show that an otherwise compliant dwelling can be accommodated on the site.

1. The findings in Zhang v Canterbury City Council [2001] NSWCA 167 at [75], state that a DCP must be considered as a 'fundamental element' or 'focal point' of the decision making process and any relevant provisions are entitled to significant weight but may not be determinative. Indeed, s 79C(1)(a)(iii) of the Act requires consideration of any development control plan. However, s 79C(3A)(b) permits a flexible approach in applying provisions of a DCP to allow reasonable alternative solutions that achieve the objects of those standards for dealing with that aspect of the development.

1. In this regard, there is no dispute that the slope exceeds the control in the DCP and it is clear that construction of a dwelling on the site will be challenging and unsuitable for a conventional slab on ground dwelling. I am not convinced that steep slopes are uncommon or unusual in Pittwater LGA. The challenges will be abundantly clear to anyone considering purchasing the already approved Lot A.

1. Crozier Taylor Geotechnical assessed the site using the relevant industry publication and Pittwater Council's Geotechnical Risk Management Policy 2009. All existing hazards were found to achieve the 'Tolerable' risk criteria. The Geotechnical Report, dated April 2013, and included in the application (Exhibit B) concludes:

The site is considered suitable for the sub-division and residential development and can achieve the 'Acceptable' risk criteria over the design life of the development, required by Council's Policy, provided that the recommendations outlined in this report and any subsequent reports for individual lot development are followed.....Each building lot will require a separate geotechnical investigation and report to be submitted with their individual Development Applications once design for those developments is determined.

1. On balance, I am satisfied on the evidence that the relevant outcomes of cl B2.2 (see [32]) are achieved, and the application should not be refused on the basis of non-compliance with the slope control in cl B2.2. As stated in the Geotechnical Report, further detailed investigations and recommendations will be required when any DAs are lodged for any future dwelling on the lots.

1. Therefore, the appeal cannot be refused on the basis of lot size and, in my view, should not be refused on the basis of non-compliance with lot depth or slope.

Tree loss, Visual impact and Desired future character

1. The council's contention is that the proposed subdivision and indicative additional dwelling will result in an unreasonable loss of established canopy trees, thus resulting in an unacceptable visual impact and inconsistency with the desired future character.

Controls

1. The outcomes of cl B2.2 Land Subdivision - Residential Zoned land P21DCP relevant to this contention are:

• Achieve the desired future character of the locality.
• Maintenance of the existing environment.
• Equitable preservation of views and vistas to and/or from public/private places.
• The built form does not dominate the natural setting.

1. The relevant element of the control is "does not unreasonably impact on the natural environment" (see [35]).

1. The site is located within a Flora and Fauna Enhancement area and a wildlife corridor. The outcomes of the control in cl B4.4 P21DCP are the "conservation, enhancement and/or creation of habitats for threatened species, endangered populations and the long-term viability of locally native flora and fauna and their habitats". Amongst other things, the controls require that "development shall result in no significant onsite loss of canopy cover or net loss in native canopy trees". Variation to the controls is permitted in a range of listed circumstances, most relevantly where a development is proposed in the area of least impact on native vegetation and where there will be no net loss of native vegetation.

1. As stated above, also relevant are outcomes of clauses A4.10 Newport Locality, B2.2 Land Subdivision - Residential Zoned Land, D10.1 Character as viewed from a public place, D10.3 Scenic Protection, and D10.7 Front Building Line of P21DCP. Essentially, the common theme of the objectives is that the desired future character is to be achieved, the environment is to be maintained, and the built form is not to dominate the natural setting. The desired future character for the Newport Locality is given in [27].

Arboricultural evidence

1. The arboricultural evidence considers the likely direct and indirect impacts of the indicative dwelling and proposed parking area and associated landscaping, as well as access - stairs and inclinator. The experts rely on a number of Impact Assessment reports and surveys prepared by Ms Howden.

1. A Tree Summary Table in Exhibit V - Further supplementary joint report - arboriculture indicates the following:

• 26 trees likely to be removed:

• I noxious species,

• 19 of low landscape significance, 7 of which are unstable,

• 4 of moderate landscape significance, 3 of which are unstable; and

• 2 of high landscape significance both of which are unstable.

• 7 trees likely to be impacted

• 1 of low landscape significance,

• 3 of moderate landscape significance, and

• 3 of high landscape significance.

• 28 trees unlikely to be affected

• 6 of low landscape significance,

• 14 of moderate landscape significance, 1 of which is unstable,

• 7 of high landscape significance, and

• 1 of very high landscape significance.

1. The arborists agree that the relocated building envelope will result in slightly fewer trees of high and moderate landscape significance being removed; however, slightly more have the potential to be impacted but overall, slightly more trees of moderate to high significance will be retained.

1. While Mr Paroissien agrees that the amended footprint provides for substantially improved retention of canopy trees with medium and high significance/retention value in the southern part of proposed new Lot B, he maintains his opinion that:

• the proposal removes trees relied upon in the 2011 approval - in particular paragraphs [41] and [42] of Miller 2011; and
• it is inevitable that actual vegetation and tree loss will be greater because of activities associated with the tree removal and the construction process, excavation and level changes for the dwelling and landscaping, and from 'edge' effects.

1. In Mr Paroissien's opinion, the edge effects are likely to be greater as a consequence of relocating the footprint towards the centre of the lot. These edge effects include changes in microclimate providing more favourable conditions for weeds, thus creating the potential for impacts on the remaining vegetation. Mr Paroissien cites the direct and indirect tree loss as a consequence of works already undertaken for the 2011 approval as support for his opinion that there will be further impacts on vegetation (see para [12] of this judgment).

1. Ms Howden accepts that tree removal will be inevitable however, in her opinion, the loss is not unreasonable given the zoning of the site and the retention of a significant portion of vegetation and tree canopy. While she notes that the current appeal is in regards to a sub-division, she relies on the relevant Conditions of Consent in the 2011 approval requiring the implementation of, and on-going commitment to, a Vegetation Management Plan that includes planting of canopy trees and other vegetation and on-going bush regeneration. In her opinion, these measures will protect and enhance the landscape setting of any future dwelling. Ms Howden does not share Mr Paroissien's concerns about edge effects.

1. Amongst other things, contention 2(a) raises the issue of a lack of information regarding 'construction management' and the potential impacts on trees to be retained. As described in paragraph [22] of this judgment, the amended plans include a summary of the proposed construction methodology. During the hearing, the use of the area proposed for level open space as a site for materials storage was discussed.

1. While acknowledging she is not an expert in building and construction, Ms Howden considers that providing the construction activities are carried out as indicated, the potential for tree loss will be minimised. Mr Paroissien considers the proposed construction management plan to be inadequate and unrealistic. In his opinion there is inadequate provision for material/waste storage and it is not clear how the inclinator, given its close proximity to trees, will be able to effectively transport materials. He considers that given the absence of tree protection measures during the previous works, he has little confidence that the proposed construction management plan will provide for adequate protection of trees to be retained.

1. Mr Paroissien states that if the subdivision is approved, the proposed area of open space should be constructed first so that the area can be used for waste/ materials storage. He also considers that any construction materials for this area, such as rocks for the proposed retaining wall, be delivered in the area of the nominated dwelling footprint.

1. In regards to the impacts of the proposed construction of the parking pad on Tree 40, the arborists drafted an agreed condition of consent that would enable its long-term retention (Exhibit O). The arborists also drafted a condition of consent regarding planting to screen the proposed parking platform (Exhibit Q).

1. The arborists agree that the latest landscape plans depicting the proposed stairs adjacent to the inclinator indicate there will be minimal disturbance to the soil profile and that with appropriate supervision and use of hand tools, the stairs can be constructed with minimal impact on nearby trees.

Planning evidence

1. In regards to visual amenity, from a planning point of view, the council contends that the desired future character is not achieved and the proposal will have unreasonable visual impacts on the natural environment as a consequence of the creation of an extra lot and subsequent development entailing the excessive removal of canopy trees thus resulting a dominance of built form.

1. Ms Englund considers that the (amended) location of the proposed dwelling will result in it appearing wider when viewed from Barrenjoey Road and the waterway, and that the link to Bushrangers Hill will be diminished. Mr Fleming does not agree and opines that the revised building footprint moves any future dwelling to a point further below the ridgeline, which in his opinion is a better outcome. Mr Fleming notes that a band of vegetation will be retained between all future dwellings.

1. With respect to the visual impact of the proposed parking platform, the planners agree that the location of it is not compliant with the 10m minimum front setback prescribed by cl. D10.7 in P21DCP.

1. The relevant outcomes of Cl. D10.7 Front building line (excluding Newport Commercial Centre) include (as summarised):

• Achievement of the desired future character of the Locality;
• Equitable preservation of views and vistas to and/or from public/private places;
• Maintenance of amenity of residential development adjoining a main road;
• Retention and enhancement of vegetation to reduce the visual impact of the built form; and
• Enhancement of existing streetscapes in keeping with height of the natural environment.

1. Variations to the controls are permitted if the outcomes of the control are achieved. A number of circumstances that may enable a variation are listed. The DCP also states:

Where carparking is to be provided on steeply sloping sites, reduced or nil setbacks for carparking structures and spaces may be considered, however all other structures on the site must satisfy or exceed the minimum building line applicable.

1. Given what he describes as a 'narrow cone of view' from Barrenjoey Road, Mr Fleming considers that strict compliance with the control is unnecessary. He states that the actual setback to the street is in excess of 18m and maintains that the proposed landscaping and vegetation management plan will meet the objectives of the controls.

1. Ms Englund considers that the proposed additional parking platform within the front setback will result in the accumulation of parking structures fronting Barrenjoey Road, which is inconsistent with cl D10.1 - Character as viewed from a public area. This clause requires that parking structures must not be the dominant site features when viewed from a public place. She does not consider that the circumstances of the site warrant a variation to the controls in cl D 10.7.

Submissions

1. Ms Irish adopts Ms Englund and Mr Paroissien's concerns about tree loss and unacceptable impacts on remaining trees. She maintains that it cannot be asserted that there is no net loss of canopy trees and that the long-term viability of locally native flora and fauna and their habitats will be not be affected.

1. Ms Irish relies in part on the findings of the Commissioners in Miller 2011 in regards to minimising the visual impact of the development by retaining a substantial band of vegetation on what is proposed Lot B. She contends that no weight should be given to the photomontage prepared for the earlier matter showing the proposal from Rowland Reserve.

1. Mr Staunton contends that of the 26 trees identified for removal, ten of them are unstable and could be removed without consent under cl 36(3) of PLEP. Of the remaining 16 trees, two are of high landscape significance, one is of moderate significance, and the remaining trees are of low landscape significance. He asserts that the arborists agree that new planting is possible both on Lot B and to screen the proposed parking platform and that Exhibits O and Q are consistent with the Vegetation management Plan (VMP). Mr Staunton maintains it is unnecessary to amend the Vegetation Management Plan at this stage, as it is more appropriate to do so when an application is made for a dwelling on new Lot B.

1. Mr Staunton submits that the 'banding' of vegetation referred to in the 2011 decision will be retained, there will be substantial separation between each proposed dwelling, and any future dwelling will sit in a landscaped setting below the canopy. He contends that the outcomes in cl B2.2 don't require buildings to be invisible but that the built form is secondary to the natural setting. He argues that there is no unreasonable impact on views from public lands and that the desired future character is achieved.

Findings

1. While the site is in a Flora and Fauna Enhancement area, there is no suggestion/ contention that there are any threatened species or communities on the site. There is no ecological evidence that considers any impact on specific local fauna or their habitats.

1. The application itself does not propose the removal of trees other than those to be removed for the construction of a carparking platform for new Lot B and potentially fencing. However, as the lot will be for residential purposes, tree and vegetation removal on new Lot B will be inevitable should a dwelling be constructed. The proposed tree removal associated with a future dwelling on (new) Lot A remains unchanged.

1. Given the existing extent of canopy cover, the control requiring that development shall result in no significant onsite loss of canopy cover or net loss in native canopy trees, is difficult to achieve on proposed new Lot B, or indeed, on any of the 2011 approved lots.

1. In Miller 2011 the impact on tree canopy and loss of vegetation was a key contention. The council places some emphasis on the interpreted intent in that decision to specifically retain the band of vegetation across proposed new Lot B. The Commissioners noted the weedy nature of the vegetation near Barrenjoey Road and the better quality vegetation, in particular the canopy trees, being on the upper portion of the site. The condition requiring a VMP and bush regeneration addressed this. At [39] the Commissioners stated: 'The number of trees in itself is not the focus of the Court's attention but at the end of the day it is whether the proposed development satisfies the provisions of the DCP and design [sic] future character, which is clearly a landscaped area with native vegetation'.

1. At [40] the Commissioners noted that both a quantitative and qualitative approach to assessing tree loss was required. At [41] they concluded that the vegetation management plan indicated an enhancement of the native vegetation on site that met the DCP requirement for 'no net loss of native vegetation'.

1. From [42] to [47] the Commissioners' considerations can be summarised as:

• The proposed site is zoned residential, is not part of Bushranger Reserve, it is reasonable to expect the site would be developed for residential purposes; existing vegetation would be retained as far as possible with 'no net loss of vegetation' but there will be a loss of canopy trees; vegetation is important in the locality; the proposed dwellings will sit comfortably within a landscaped setting and will be secondary in terms of natural native vegetation when viewed from public areas [42];
• The proposal achieves the desired future character; there is a maximum of two storeys in a natural landscape setting integrated with the landform and the landscape [43];
• Restrictions on building height to ensure development is below the canopy to ensure that canopy trees predominate [44];
• Balance achieved between maintaining landforms/ landscapes; as far as possible locally native tree canopy and vegetation will be retained and enhanced [45];
• The bushland management plan provides for long term maintenance of the existing environment [46];
• Clear bands of canopy trees will separate three levels of dwelling footprints so that they will not appear to cascade down the hill as in other areas where there is not the significant banding of natural vegetation to be retained and reinforced; equitable preservation of views from public areas; the dwellings will be secondary to the natural vegetation [47].

1. The findings in Segal & v Waverley Council [2005] NSWCA 310 consider that while consistency in administrative decision-making can be useful, a Commissioner of the Land & Environment Court is not bound by the decision of another Commissioner as each case must be considered in the context of its individual circumstances. However, there is a duty to give reasons for a decision.

1. While the circumstances in this matter are similar to the circumstances in 2011, from what I can gather from the evidence, in 2011, there was no dwelling proposed on the western portion of then Lot A, that is, on the area proposed as new Lot B. Therefore, this was something the Commissioners at that time did not need to consider, and therefore, neither was any proposed removal of any vegetation from that area. At the end of the day, the Commissioners assessed the information that was available to them and made their determination.

1. While I accept Mr Paroissien still has reservations about future impacts and edge effects, it was agreed that relocating the proposed platform to the north would result in less direct impact on high retention value trees. I agree with Mr Staunton's summary of the arborists' findings outlined in paragraph [58]. As the Commissioners stated in 2011, there must be both qualitative and quantitative assessments on tree/vegetation loss.

1. The application before me is for subdivision however I must be satisfied that a dwelling can be accommodated on the site. Where the starting point is almost full canopy cover, maintaining that into the future yet permitting appropriate development is difficult and not necessarily possible. However, I am satisfied that the building platform has been located on a portion of proposed Lot B that results in less impact on significant canopy trees and does not unreasonably impact on the natural environment. The Vegetation Management Plan approved in the 2011 consent continues to operate but may be subject to amendment when a further development application is lodged for a dwelling. The indicative landscape plan indicates that replacement canopy trees and other native vegetation can be planted.

1. There is no dispute that the site represents challenges for future construction. Building on proposed Lot B presents similar challenges to anyone purchasing and building on approved Lot A. The 'heavy lifting' in terms of tree protection measures will necessarily come when a development application is lodged for construction of a dwelling on the site. Conditions of consent at that time should also include a requirement for a detailed Construction Management Plan incorporating necessary tree protection measures to be submitted at the appropriate stage. However, to the extent necessary, the measures indicated by the arborists should be adopted for this application.

1. In the circumstances, I do not find the removal of trees to be excessive or unreasonable, and there is no compelling evidence to suggest that long-term viability of locally native flora and fauna is unreasonably threatened.

1. In regards to the impacts on views to and or from public and private places, I agree with the applicants' position that the views of any proposed dwelling from Barrenjoey Road will be very limited and restricted by existing or newly approved dwellings to the north and south.

1. With respect to the very distant views of the site from Rowland Rowland Reserve, I agree with Mr Fleming that moving the proposed dwelling platform to the north sets it further below the ridgeline which has the effect of creating a better balance between the built form and the natural setting. I also agree that shifting the platform to the north retains larger, more significant and sustainable canopy trees in the south-western portion of proposed Lot B which will provide a wider buffer of vegetation between the clearing necessary for the approved inclinator and dwellings to the south. While shifting the platform to the north brings the proposed dwelling and landscaping closer to the rear of 13 Bungan Head Road, for reasons discussed below, I do not consider this will have any unreasonable or adverse impacts on views from that property. Therefore I find there will be equitable preservation of views and vistas to and/ from public/ private places.

1. The 8.5m height limit is retained which sets any future dwelling below the canopy and bands of tree canopy are retained. This achieves the outcome requiring that built form does not dominate the natural setting.

1. In terms of the desired future character of the locality, an issue central to many parts of the DCP, I find the proposal achieves this by:

• Not compromising the low density residential nature of the locality;
• Providing an indicative design of a maximum two-storey dwelling which steps down the slope, in a natural landscaped setting integrated with the landform and the landscape;
• Maintaining the height limit is below the tree canopy;
• Providing evidence that a future dwelling can be designed to be safe from hazards (geotechnical report; proposed steps, inclinator);
• Achieving a balance between maintaining the landforms, landscapes and other features of the natural landscape and development of the land; and
• As far as possible, retains and enhances the locally native tree canopy and vegetation thus assisting development to blend into the natural environment.

1. The proposal also satisfies the controls in cl D10.3 Scenic Protection - General in P21DCP in that is minimises the visual impact on the natural environment when viewed from any waterway, road or public reserve. It achieves the outcomes by achieving the desired future character of the locality and ensuring that the bushland landscape is the predominant feature of Pittwater with the built form being the secondary component of the visual catchment.

1. In regards to the proposed parking platform, the controls in cl D10.1 Character as viewed from a public place - require that garages, carports and other parking structures must not be the dominant site feature when viewed from a public place.

1. The proposal is for a parking platform. There are no architectural plans for any garage or carport but the platform will be constructed on piers and elevated above the slope leading down to Barrenjoey Road.

1. While I agree that soil disturbance as a consequence of the construction of the driveway and parking areas associated with the 2011 approval has had a detrimental impact on the health and therefore screening capacity of the existing vegetation on that slope, I am satisfied that the draft condition (Exhibit Q) specifying additional planting, will rectify this situation and suitable screening will be provided. Therefore, I consider the relevant control in cl D10.1 is achieved.

1. In my opinion, I also consider the outcomes of cl D10.7 Front building line are achieved and in the circumstances the variations to setbacks for steeply sloping sites should apply.

1. Overall I find that, subject to the imposition of appropriate conditions, the application should not be refused on the basis of tree loss and visual impact.

Access

1. The council's contention is that the applicant has failed to demonstrate a suitable off-street parking arrangement for the proposed additional lot, and adequate pedestrian access between the existing parking area and the and the proposed residential dwellings is not provided.

1. The particulars include no demonstrated compliance with AS/NZ 2890.1-2004 in regards to the proposed parking area and for other users of the shared carriageway; lack of information about necessary access agreements; an extension of the inclinator not in accordance with the 2011 approval; works as executed not in accordance with the 2011 approval; no on-site parking; and failure to provide a Traffic Assessment Report.

1. Several parts of the DCP apply. Of relevance is cl C4.2 Land Subdivision - Access Driveways and Off-Street Parking Facilities in P21DCP. The 'outcomes' are the safe and functional access for vehicles, cyclists and pedestrians as well as the provision of safe and convenient access for parking on each lot. The indicative dwelling shown on the plan would require two parking spaces (cl B6.5). Where an internal driveway is to be located within a Right of Way (ROW), the driveway is to be constructed as part of the subdivision works.

1. Cl B6.4 Internal Driveways requires all driveways and ramps to be designed in accordance with the relevant Australian Standards. The controls also specify safety requirements, width, profiles, drainage and finishes. Relevantly, where an existing driveway is proposed to be used, the applicant must demonstrate compliance with the controls.

1. B6.5 considers off-street parking. A large dwelling with two or more bedrooms requires two off-street spaces. On steeply sloping sites and those with high environmental value, the DCP allows car parking solutions to be negotiated for each site. Shared vehicular access is permitted where there is mutual agreement. Provisions for car parking on the steepest sloping sites may be waived subject to consideration of the merits of each case.

1. Incline Passenger Lifts and Stairways are covered in cl C1.19. The required outcome is that incline passenger lifts (inclinators) and stairways are to cause minimal visual and acoustic disturbance to the environment and neighbours. They are to be designed and installed to be as close to ground level as possible with excavation and tree removal to be kept to a minimum. On steeply sloping existing lots, inclinators are preferred to driveways but must be assessed on merit. Inclinators will not be accepted in lieu of vehicular access for new subdivisions.

1. The development proposes a parking pad off the western side of the existing driveway that provides two parking spaces for future occupants of new Lot B. Direct access to the new lot will be via the inclinator shown on the approved plans for the original Lot A in the 2011 consent. It is proposed that new Lot B will have reciprocal rights over the use and maintenance of the inclinator. Stair access is also required as alternative to the inclinator. The proposed inclinator is a 'Rail Glider' (details in Exhibit G).

Evidence - parking/driveway

1. On site and in a further submission, Mr Vaughan Milligan, a Development Consultant, made submissions on behalf of the owners of 230 Barrenjoey Road who have a right of carriageway over the existing driveway. He stated that the surface levels of the driveway have been lowered and this makes access to his client's property difficult. He contends that adding the proposed parking platform for new Lot B will narrow the right of carriageway and make access even more difficult than it currently is. He submits that there is an opportunity to improve the access to allow for a single turning movement and that the current application will perpetuate an existing difficult three-point turn. On site, Mr Milligan acknowledged that there has always been a need to negotiate a three-point turn to enter/exit his clients' property.

1. Mr Robert Varga for the applicant and Ms Englund for the council participated in joint conferencing and gave oral evidence. The experts agree that the proposed subdivision does not provide off-street parking on proposed Lot B and is therefore non-compliant with cl C4.2 which requires the design of each new lot to provide on-site parking.

1. In Mr Varga's opinion, the provision of 2 off-street parking spaces meets the requirements of cl B6.5.

1. In regards to the as-built parking platform, the previously approved plans nominated only a single RL of 57.5 and did not make any allowances for drainage or suitable transitions to the existing driveways to the south of the site. Mr Varga notes that the as -built platform is about 300mm lower than the point where the RL 57.3 is shown on the approved plans. He says the current arrangement was deemed to be the only practical way of accommodating the required stormwater drainage and necessary transitions in slope. He states that otherwise vehicles would have scraped and there would have been an unsafe drop on the upper western side of the driveway. In his view, the as-built platform achieves a better and safer outcome than the approved plans.

1. Mr Varga opines that the 2011 approved plans anticipated a three-point turn. He has tested the turning area in a B85 vehicle and prepared swept path diagrams indicating that a large B99 vehicle can undertake a simple three-point turn in accordance with the requirements of AS2890.1. Mr Varga also notes that the proposed platform for new Lot B does not encroach onto the Right of Way that benefits the neighbours.

1. Ms Englund maintains her opinion that the provision of parking is inadequate and inconsistent with the outcomes of cl C4.2 that requires provision of safe and convenient access and parking on each lot. She contends there is insufficient information as to how safe access is to be gained to a land-locked lot. She presses all elements of the council's contentions.

1. Roads and Maritime Services (RMS) reviewed the application and raised no objections as they considered it unlikely to generate significant traffic on their road network.

Evidence - access - inclinator and stairs

1. Although more detailed plans were provided in regards to the inclinator, formal access stairs from the parking area, and 'bush' stairs providing alternative pedestrian access beside the inclinator, Ms Englund maintains her concerns in regards to adequacy and safety. For example she stated that in her opinion, the alternative access stairs shown on the landscape plan would not comply with BCA requirements. There are sections with too many treads and the risers are not of a consistent height. She also expressed concerns over possible conflicts between the stairs and the inclinator. In her view, the applicants have not demonstrated safe access from the inclinator onto the parking platform.

1. Mr Fleming stated that in his opinion the BCA is silent on the type of access stairs shown on the landscape plans but they provided safe alternative access that would not be in conflict with the operation of the inclinator. He stated that the Rail Glider is a customised product that complies with AS 1735.8 - 1986 SAA Lift Code Part 8 - Inclined Lifts. It does not require a pit for the motor and can come to ground level. Both side and rear doors can be fitted.

Submissions

1. Ms Irish submits that the applicants have not demonstrated a suitable off-street parking arrangement for new Lot B, or adequate pedestrian access between the existing parking area and the future dwellings. She maintains that the proposal does not comply with the relevant clauses of P21DCP, in particular that safe and convenient access and parking be provided on each lot. Ms Irish presses the concerns of the other users of the right of carriageway. She asserts that the Court should prefer Ms Englund's evidence.

1. Ms Staunton questioned Ms Englund's expertise and in regards to traffic management, and her interpretation of the BCA and inclinator standards. He contends that an easement for parking and access will be created to enable legal access for any future owner of new Lot B. He maintains that what is proposed, and detailed in Exhibits M and U, is an appropriate, alternative solution as envisaged by the DCP. In addition he submits that the formal access stairs from the car park to the top of the excavation, and the proposed Railglider inclinator, comply with the relevant standards.

1. The parties' submissions on conditions relating to the as-built parking arrangements and the inclinator are discussed later in the judgment.

Findings

1. It is clear that parking cannot be provided on new Lot B however cl B6.5 P21DCP enables alternative solutions for steeply sloping sites and shared vehicular access can be permitted. Clause C1.19 states that inclinators are preferred to driveways however inclinators will not be accepted on new subdivisions.

1. In considering the access stairs and inclinator, the inclinator was anticipated in the 2011 consent and its location is shown on Lot A on the approved plans. There are no conditions of consent in the 2011 approval that specifically deal with the inclinator; approval is inferred as it is shown on the approved site plans. The application before me does not seek to construct the inclinator but rather to extend part of it to provide access to new Lot B. Providing an additional stop on an already approved inclinator does not seem unreasonable. The concept stair details show compliance with BCA requirements. The landscape plans in Exhibits T and U indicate that the construction of bush stairs is possible and will provide safe means of pedestrian access.

1. Notwithstanding the fact that the existing parking area does not comply with the plans approved by the 2011 consent, from a practical point of view and with the benefit of the site inspection, I am satisfied that the common driveway can be negotiated in a safe manner. Pedestrians moving to or from the proposed parking platform for Lot B would be capable of seeing vehicles entering or leaving the right of way. The explanation of the reasons for the non-compliant levels, that is the need to provide drainage and to achieve the practical transitioning of the various entry and exit points, appears to be to be completely reasonable. If indeed it has avoided an unsafe edge on the western side, I would have to agree with Mr Varga that this might have achieved a safer outcome than strict compliance with the one level indicated on the 2011 approved plan.

1. It would also appear from the evidence that other users of the right of carriageway have always had to negotiate a three point turn when entering or exiting their properties. I am satisfied by Mr Varga's swept path diagrams, that a large B99 vehicle can safely negotiate the right of carriageway. Therefore the proposal maintains the status quo. However, I agree with the parties that conditions must be imposed to prevent any obstruction of the right of carriageway.

1. I find no grounds to dismiss the application on the basis of parking and safe use of the common driveway. Overall, I am satisfied that in the particular circumstances of the site, the proposal meets the essential outcomes of safe and convenient parking and safe and functional access for vehicles and pedestrians, albeit not on the actual lot, but reasonable by virtue of the variations allowed in P21DCP.

Other issues

1. While not raised in council's amended Statement of Facts and Contentions, the planners in their supplementary joint report (Exhibit 16) discussed the implications of the relocation of the area of private open space from the west to the north of the indicative dwelling.

1. Clause 1.7 Private Open Space in P21DCP requires, amongst other things, a minimum of 80m2 of private open space of which there must be a minimum principal area of 16m2 with a minimum dimension of 4m and a grade no steeper than 5%. It should be directly accessible from living areas and have good solar orientation. In some circumstances, a balcony located above ground level can also be included as private open space.

1. Ms Englund is concerned that the new position will have an unreasonable impact on the amenity of the adjoining property to the north at 13 Bungan Head Road. The owner of that property made a submission to that effect when the amended plans were notified. She also considers that the proposed private open space will have inadequate visual privacy given the proximity of windows and decks on 13 Bungan Head Road; the closest deck being only 5m from the proposed area of open space. Similarly, she opines that the open space is likely to be overshadowed by that dwelling.

1. Mr Fleming disagrees. In his opinion, the rear south-western portion of 13 Bungan Head Road is about 9.7m from the indicative landscaped area. He also notes that the dwelling at 13 Bungan Head Road is oriented to take advantage of its northerly aspect and the views to the north and that there is only a minimal setback of that dwelling across the common boundary.

Findings

1. In this regard I accept Mr Fleming's evidence and his assessment of the orientation and setback of 13 Bungan Head Road. The amended plans show that the principal rear private open space of No 13 primarily adjoins Bushranger's Hill Reserve. Any direct overlooking from the rear yard of No 13 into the private open space of any future dwelling on proposed Lot B will be limited and mitigated by the installation of a fence and landscaping. Substantial canopy cover will be retained. Any specific privacy matters should be dealt with at the time a development application is lodged for any future dwelling. I also note that the indicative area of open space complies with the controls. The application should not be refused on this basis.

Conclusions

1. After viewing the site, assessing the evidence, hearing the parties' submissions and considering the matters to be considered in s 79C(1) of the Act, I find that development application DA N0108/2013 for subdivision of one yet to be created lot into 2 lots at 232 and 234 Barrenjoey Road, Newport, and associated works, should be approved subject to conditions.

1. A number of draft conditions of consent are contested. These are discussed below and summarised in paragraph [147].

Contested conditions - submissions and findings

1. It is common ground that the as-built car parking slabs, retaining walls and manoeuvring areas do not accord with the plans approved in the 2011 consent. Both parties made submissions as to how this may be resolved; all options require the imposition of deferred commencement condition 1.

1. The council contends that the applicant must submit a modification application pursuant to s 96AA to modify the 2011 consent so that the existing structures, extent of excavation and levels are approved consistent with the as-built development shown in level and detail survey Sheet 3 of 4, prepared by Stutchbury Jacques Pty Ltd, dated 7 November 2013.

1. The applicants propose the same outcome but that the 2011 consent be modified pursuant to s 80A(1)(b) and s 80A(5) the Act and cl 97 of the Regulation; or, in the alternative, that a building certificate pursuant to s 149D of the Act be granted.

1. While noting my comments in [122] of this judgment, in the circumstances I consider it reasonable for the applicant to submit a s 96AA modification application as requested by council. In my view this provides for a clearer process as the modification relates to an earlier consent. However, because of the need for an additional application to council, the timeframe for compliance with Part A of the conditions will be three years as requested by the applicant rather than the 18 months proposed by the council.

1. Deferred commencement conditions 1-6 are as proposed by council in Exhibit 21.

1. Part B: A(1) is amended to include the words 'plans A09 and A10 by Inscape' where indicated by the applicants' marked up version in Exhibit W.

1. The applicants' proposed amendment to Part B- B(12) is not pressed.

1. A significant difference between the parties is whether the Court should impose a condition of consent requiring the applicants to construct the inclinator and access stairs prior to the subdivision of the land. This is part of condition B17 in Part B. The applicants seek the deletion of the following portion: "The inclinator, stairs shown in the undated Concept Stair Detail and Section at scale 1:50, inclinator pathway and stairs in the access handle, and".

1. Ms Irish contends that s 80(A)(1)(f) of the Act provides that a condition of consent may be imposed if it requires the carrying out of works relating to any matter referred to in s 79C(1) applicable to the development the subject of the consent. In addition, s 81A(3) makes separate and clear provision for a development consent that enables the subdivision of land to authorise the carrying out of physical activity in connection with the subdivision; which in her view could and should include the inclinator and stairs.

1. Mr Staunton reiterates the applicants' position that the development application does not seek approval for the construction of the inclinator or access stairs. The purpose of the plans and drawings in Exhibits M and U as well as the proposed dwelling footprints and access points from the inclinator are simply to demonstrate that a dwelling, including access, can be provided on proposed Lot B in accordance with the requirements of cl B2.2 in P21DCP. Access to Lot B will be via a right of way over Lot A.

1. After considering the submissions, I agree with the applicants' version of condition B-B(17). The applicants have not sought approval for the construction of the inclinator and stairs. The concept details clearly indicate that compliant access from the car park is possible and the inclinator and 'bush' stairs within the access handle are clearly anticipated in many other conditions of consent and on the plans. Given the time period over which the consent operates, and the time it may take to sell the lots, it is quite possible that there may be improvements in the design of inclinators. The applicants' choice may not meet the demands of the future purchasers of the newly created lots. Practical considerations of security and maintenance of an inclinator on a site where there are no occupants may prove difficult. Therefore, from a practical point of view the construction of the inclinator and stairs should be a component of any development application for a future dwelling on Lot A or new Lot B.

1. However, to provide clarity and certainty to prospective purchasers of Lot A and new Lot B, there must be a detailed explanation of who is responsible, and, in general terms, the timing of necessary works. This could be incorporated into the s 88B Instrument referred to in condition F10 in Part B.

1. As the applicants only propose the construction of the parking platform, they press the deletion of condition C24 in Part B. Given my findings on construction of the inclinator and stairs I agree with the applicants' version and this condition is deleted. No other changes to conditions in sections C, D or E are pressed. I note the applicants' suggestion that the portion of condition C20 dealing with revegetation of the western frontage of Barrenjoey Road could be a deferred commencement condition. As council does not press this, I propose to leave it as part of condition C20.

1. I agree with the applicants that condition F3 be modified by deleting the words 'upstream properties' and replacing them with 'new lot/s the subject of this consent'.

1. Condition F10 in Part B deals with the creation of easements and rights of way/carriageway. The applicants' alternative replacement condition is preferred and it should address the issue I raised in paragraph [143]. Reference should be included to the applicable plans A09 and A10. Similarly the applicants' replacement version of F15 is preferred.

1. Summary of the changes made by me to the draft conditions of consent in Exhibits 21 and W [an electronic version of the applicants' marked up version has been edited to reflect the changes I have made] and now incorporated into Conditions of Consent in Annexure A:

• Part A:

* The information required by the deferred commencement conditions is three (3) years.

* Council's version of deferred commencement conditions 1-6 in Exhibit 21.

• Part B:

* A1 include the words 'plans A09 and A10 by Inscape' where indicated by the applicant's marked up version in Exhibit W.

* B17 delete the words "... inclinator, stairs shown in the undated Concept Stair Detail and Section at scale 1:50, inclinator pathway and stairs in the access handle, and"

* Delete condition C24.

* Modify F3 by deleting the words "upstream properties" and replacing them with "new lot/s the subject of this consent".

* Replace F10 in accordance with [146].

* Replace F15 with "Prior to the issue of a subdivision certificate, the Applicant is to provide evidence that it has obtained a subdivision certificate for the subdivision in relation to the yet to be created lots approved by the Land and Environment Court in proceedings 10411 of 2010.

Orders

1. The Orders of the Court are:

(1)   The appeal is upheld.

(2)   Development Application N0108/13 for the subdivision of one yet to be created lot into two lots, including the provision of services, off-street parking and tree removal, at 232-234 Barrenjoey Road, Newport (Lot D DP367601 and Lot 5A DP 399973) is approved subject to the conditions in Annexure A.

(3)   All exhibits except 1, 21,A, B, E, M, R, U and W are returned.

____________________________

Judy Fakes

Commissioner of the Court

ANNEXURE A

Decision last updated: 16 May 2014