Provincial Planning Pty Ltd v Pittwater Council - [2004] NSWLEC 562

Land and Environment Court

of New South Wales

CITATION: Provincial Planning Pty Ltd v Pittwater Council [2004] NSWLEC 562

PARTIES:
APPLICANT
Provincial Planning Pty Ltd
RESPONDENT
Pittwater Council

FILE NUMBER(S): 10317 of 2004

CORAM: Hussey C

KEY ISSUES: Development Application :- Mixed commercial/shop top development - density - height - streetscape - drainage - public interest

LEGISLATION CITED: Pittwater Local Environmental Plan 1993

CASES CITED:

DATES OF HEARING: 20-21/09/2004

DATE OF JUDGMENT: 10/15/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Cole, solicitor
SOLICITORS
Abbott Tout
RESPONDENT
Mr A Pickles, barrister
SOLICITORS
Mallesons Stephen Jaques

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Hussey C

15 October 2004

10317 of 2004 Provincial Planning Pty Ltd v Pittwater Council

JUDGMENT

Background

1 This appeal arises from the refusal of a development application for a mixed commercial/shop top housing development at 1442 - 1444 Pittwater Road, Narrabeen.

2 Insofar as several issues were initially identified, subsequent conferencing between the experts has resulted in a number of amendments to the proposal, thereby reducing the issues. For the appeal the outstanding issues concern:

· The bulk and scale of the proposal with particular reference to the streetscape impacts of the corner element at Pittwater Road/Walsh Street;

· Drainage;

The site

3 The site comprises 1442-1444 Pittwater Road (“(Pittwater Rd”) (Lot 100) and 4 Berry Avenue (“Berry Ave”) (Lot 19).

4 Lot 100 in DP 606248 – Pittwater Road, is an L shaped parcel with a 74 m frontage to Pittwater Road, and 46 m frontage to Walsh Street. The land is flat with an RL of approximately 3.00 AHD across the site. Lot 100 has an area of 3277 m sq.

5 Lot 19, DP 11087 is a regular shaped with a north south alignment fronting Berry Avenue. Although not zoned for residential purposes, the lot is the first of the conventional allotments along Berry Avenue, currently supporting a single storey dwelling. The lot has a frontage of 15.24 m, and a total area of 686.5 m sq.

6 The land fronting Pittwater Road (Lot 100) currently contains a commercial premises comprising a various retail uses including sale of pet supplies, a tile market, and a pool shop.

7 The land at No.4 Berry Street currently contains a single storey residential dwelling.

8 The development in this locality generally comprises commercial activities along Pittwater Road, with existing residential properties situated to the east. The area is subject to flood inundation, which is influenced by Narrabeen Lagoon.

The proposal

9 This proposal involves the demolition of the existing structures and the construction of ground level shops providing a retail space of approximately 1365 m sq. associated basement parking for 149 vehicles and landscaping. In conjunction with this, 28 “shop top” units are proposed.

10 The development is divided into Building A, which is the main building fronting Pittwater Road and Walsh Street. Building B is separate and fronts Berry Street and contains a ground floor commercial unit, together with 4 residential units.

Planning controls

11 The primary control is the Pittwater Local Environmental Plan 1993, under which the site is predominantly zoned 3c (Neighbourhood Business) and Pt 2(a) Residential “A”.

12 However, due to operation of the existing shops, it is agreed that the site has the benefit of existing use rights and therefore the proposal is permissible with consent.

13 Other controls that apply include:

· SEPP 65/RFDC
· Draft LEP 21 Pittwater applies, which proposes to zone the site as Warriewood Living Centre which permits the form of development proposed;
· DCP R4, Shop Top Housing;
· DCP – Pittwater 21;
· DCP 30 – Pittwater Flood Risk Management Policy (DCP 30).
· Locality Plan No. 24 - Narrabeen
· DCP No. 2 & E3 – Parking and Internal Roadways and Driveways.

14 Detailed evidence on behalf of council was presented by:

15 For the applicant, evidence was presented by:

· Mr J Vescio, consulting town planner (Exhibit B)
· Mr M Harrison, urban design consultant (Exhibit C)
· Mr J Chetham, consulting urban designer/landscape architect (Exhibit D)
· Mr D Bewsher, consulting engineer.

16 It is apparent from the evidence that the applicant has undertaken significant amendments to the original proposal so as to reduce external impacts.

17 In this regard, detailed assessment of the proposal has been undertaken and tabulated in the respective planner’s reports. From this, I accept that the proposal demonstrates substantial compliance with the numeric controls, except for the building height along Pittwater Road and the height of the 4th storey element at the corner of Walsh Street. Also there was a minor non-compliance with the number of units relative to the density provision. Nevertheless, it is the form of mixed use development allowed on this site and this is confirmed in the joint planners/urban designers’ conference report. On the basis of this agreement, I have considered the merits of the following outstanding issues.

18 The main concern with the height relates to:

19 According to Mr Procter, a more satisfactory bulk/scale relationship would be achieved by lowering the building and also elimination of this corner element. He does not consider it necessary to distinguish this corner because it is not particularly prominent in the landscape. In any case, he does not consider this visibility of the structure is a good yardstick.

20 Against this, Mr Harrison assessed the proposed height of the proposal, which is generally 9.6 m, apart from the corner element, against the height control of 8.5 m. Even though the proposal is about 1 m higher than the DCP control, he considers it nevertheless complies with the intent of the controls and more importantly the provisions of SEPP 65/RFDC. He says that the height excedance will be negligible, in the context of the approved development adjoining to the south, and is satisfactory.

21 In my assessment of these competing positions, I note initially that the development controls do not strictly apply, due to the agreed existing use right benefits. With regard then to the general height excedance along Pittwater Road, it is apparent that the proposal will have a 3 level presentation which is consistent with the recently approved development to the south. Insofar as it is marginally higher, this is due to the incorporation of greater floor/ceiling heights in the units to comply with the RFDC controls for improved internal amenity. When assessed in the context of the surrounding development, I consider this non-compliance with the DCP height control is marginal and not of sufficient magnitude to warrant rejection. Instead, I consider it demonstrates reasonable compliance with the “limited” desired future character statement and satisfies the RFDC provisions, which I give more weight.

22 The other matter concerns the 4th level corner element. In support of this corner element, Mr Harrison submitted the following references:

Mixed use in Urban Centres -Guidelines for mixed use development (published by UDAS/DUAP now DIPNR, in 2000) states on page 26 under the heading "Corner sites" that

Allowing corner buildings to rise one or two storeys higher than the surrounding height limit, where appropriate, may act as an incentive for mixed use development. Such a rule will:

Retain or increase the amount of residential accommodation while allowing ground floor commercial or retail uses

.Serve an urban design purpose, as a marker for street intersections.

Better Urban Living - Guidelines for urban housing in NSW (published by UDAS/DUAP, now DIPNR in 1998) states on page 22 under the heading “Heights", second last dot point::

· "reinforce street comers, corner buildings may be higher than adjoining buildings only where the additional height will not be detrimental to the streetscape

Residential Flat Design Code (published by PlanningNSW, now DIPNR, in 2002 with SEPP 65) states on page 90, third last dot point:

Express important comers by giving visual prominence to parts of the facade, for example, a change in building articulation, material or colour; roof expression or increased height.

and on page 91 there is Figure 03.53 which has the caption for a good example: "The roofline is punctuated by maisonette apartments which rise above the dominant horizontality of the building" and for the first dot point under the heading Better Design Practice:

Relate roof design to the desired built form. Some design solutions may include:

Last dash point: using special roof features, which relate to the desired character of the area, to express important corners.

23 From this he concludes that:

the proposal with particular reference to the upper floor provides the following essential ingredients of good urban design: character (a building/place with its own identity); continuity and enclosure (the public and private spaces and different uses are clearly distinguished); legibility the building/place has a clear image as is easy to understand in terms of its strategic/economic role); aesthetic (the element is a light weight recessive element which floats above the roof and the building utilises high quality materials).

24 In my assessment of this aspect of the proposal, I note Mr Procter’s preference for it to be removed. However, I have also considered the amended proposal which effectively reduces the floor area of this element and shifts it some 4 m away from Pittwater Road. Considering these changes and the clarification of the building materials and colours, I am satisfied this amended corner element will have minimal, if any impact on the streetscape. I am also satisfied its height will satisfactorily transition to the adjoining developments. Accordingly I do not consider it reasonable to further amend this element and consider it satisfactory in these circumstances.

25 The other significant issue that arose, concerns the drainage and flood inundation. This arises due to the low lying nature of the land and external influence of water level variations in Narrabeen Lagoon.

26 This issue was investigated by Mr P Brisby, council’s senior engineer and also by Mr D Bewsher, consulting engineer. Insofar as the land is low lying, I accept the engineer’s advice that the bulk of the site may only be subject to minimal inundation in major storm events and that the development of this proposal, on this site will have a minimal affect on the storage capacity in this catchment and would not exacerbate inundation of neighbouring properties.

27 However, one of the associated concerns relates to the appropriate storm event on which to base building levels. It appears that past practice in this area has been to adopt the 100 ARI storm event (1% AEP) level, plus a 500 mm freeboard for residential development. However, more recently, council has adopted the much more conservative Probable Maximum Flood (PMF) level, as appropriate to provide protection to persons and property. In this case, it has the effect of raising the design level to 4.25 m AHD, according to Mr Brisby.

28 Against this, Mr Bewsher has extensive drainage experience, with particular relevance to this Narrabeen Lagoon Catchment. Based on his risk management assessment of this proposal, he notes that the current information indicates that:

· The 1% AEP level is RL 2.7 m AHD, or
· The Flood Planning Level (FPL) is 3.2 m AHD, which is 1% AEP, plus a freeboard of .5m.

29 Accordingly, Mr Bewsher says this FPL equates to a flood event of about 10000 years. Increasing the level to the PMF, increases the security to a much higher level, which he considers is completely unnecessary and unreasonable, in this area.

30 In my assessment of this drainage issue I am satisfied to rely on the approach presented by Mr Bewsher. He is experienced in this catchment and has based his opinions on the provisions of the Australian Rainfall and Runoff practice, from which he considers relative costs/benefits and also current flood plain management practice which assesses relative risks. From this, he concludes that a reasonable flooding planning level is RL 3.20 m AHD, which is the current FPL, and that this complies with current best practice.

31 I consider this a reasonable planning level in these circumstances, rather than the much more conservative PMF level in the order of RL 4.25 m AHD. It also appears that the recent adoption of this PMF level, has not been made on the basis of any overall drainage strategy for this catchment and little consideration given to the effect of major storms on existing properties in surrounding areas. Insofar as further concerns were experienced about waterproofing the lift well, conditions of consent should be imposed to address this.

32 The remaining issue concerns matters raised by the objectors. These include that the building is too high, it will cause flooding and adverse impacts on neighbouring properties, particularly No. 6 Berry Street. As I have dealt with the building height and flooding issues, the outstanding matter is the impact on No. 6, in terms of flooding and vehicle noise. However, the further amendment to alter the basement access alignments and enclose the driveway will substantially reduce amenity to an acceptable level, in my opinion. I also consider that the revised landscaping along this common boundary will result in reasonable screening at this commercial/residential zone interface. Accordingly, the evidence before the Court does not indicate to me that these impacts are sufficient to warrant rejection or further amendment.

Conclusion

33 Having considered the evidence, the submissions and undertaken a view, I am satisfied this amended proposal demonstrates reasonable compliance with the controls.

34 The combined site is situated on the relatively busy Pittwater Road, which includes a number of commercial premises, that have redevelopment opportunities. Accordingly, the controls encourage mixed commercial/shop top development, in the form proposed.

35 Whilst there are minor non-compliances with the building height, I am nevertheless satisfied that the proposal will provide an acceptable level of internal amenity, without any undue external impacts and this is compatible with neighbouring development. In this regard I consider the additional height excedance of the amended corner element, to be reasonable at the proposed setback, so that it will not cause adverse streetscape impacts. In my assessment it will allow a reasonable transition to adjoining properties, which is appropriate for these zones and consistent with the development controls.

36 With respect to the drainage issue, I note that there was no substantive documentation presented regarding a drainage strategy to address potential flooding of all properties within the catchment. Instead it seems an ad hoc decision has been made to require individual developments to comply with a PMF level, that Mr Bewsher considers completely unreasonable. In the ultimate I rely on his evidence that the appropriate design level is RL 3.20 m AHD, which complies with current best practice and provides a reasonable level of security to this development and surroundings. Accordingly, I consider this proposal merits conditional consent.

Orders

37 Therefore the orders of the Court are:

1. The appeal is upheld.

2. Development consent is granted to development application No. N0760/13 for the demolition of existing structures and construction of a mixed commercial/shop top development comprising 28 residential units at 1442 Pittwater Road, North Narrabeen, subject to the conditions in Annexure “A”.

3. The exhibits may be returned except Exhibits 2, 12, B, C, E, F, G, L and M.

R Hussey

Commissioner of the Court

rjs

Conditions of Consent

This Consent is not an approval to commence building work. The works associated with this consent can only commence following the issue of the Construction Certificate.

A. PRESCRIBED CONDITIONS

1. All works are to be carried out in accordance with the requirements of the Building Code of Australia.

2. In the case of residential building work for which the Home Building Act 1989 requires there to be a contract of insurance in force in accordance with Part 6 of that Act, there is to be such a contract in force.

3. To allow a principal certifying authority or another certifying authority time to carry out critical stage inspections required by the principal certifying authority, the principal contractor for the building site, or the owner- builder must notify the principal certifying authority at least 48 hours before building work is commenced at the site if a critical stage inspection is required before the commencement of the work, in accordance with clause 162 of the Environmental Planning and Assessment Regulation 2000.

4. Critical stage inspections are to be carried out in accordance with clause 162A of the Environmental Planning and Assessment Regulation 2000.

5. A sign must be erected in a prominent position on any site on which building work, subdivision work or demolition work is being carried out:

a. showing the name, address and telephone number of the principal certifying authority for the work and,

b. showing the name of the principal contractor (if any) for any building work and a telephone number on which that person may be contacted outside working hours, and
c. stating that unauthorised entry to the work site is prohibited.

6. Any such sign is to be maintained while the building work, subdivision work or demolition work is being carried out, but must be removed when the work has been completed.

7. Residential building work within the meaning of the Home Building Act 1989 must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the following information:

a. in the case of work for which a principal contractor is required to be appointed:

i. the name and licence number of the principal contractor, and

ii. the name of the insurer by which the work is insured under Part 6 of that Act.

b. in the case of work to be done by an owner-builder:

i. the name of the owner-builder, and

ii. if the owner-builder is required to hold an owner-builder permit under that Act, the number of the owner-builder permit.

8. If arrangements for doing the residential building work are changed while the work is in progress so that the information notified under subclause (2) becomes out of date, further work must not be carried out unless the principal certifying authority for the development to which the work relates (not being the council) has given the council written notice of the updated information.

9. Conditions 8 and 9 do not apply in relation to Crown building work that is certified, in accordance with section 116G of the Act, to comply with the technical provisions of the State’s building laws.

B. MATTERS TO BE SATISFIED PRIOR TO ISSUE OF CONSTRUCTION CERTIFICATE

10. A contribution of $132,462.00 is to be made to Cashier Code SOPS, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Embellishment of Open Space, Bushland and Recreation in accordance with Section 94 Contributions Plan No . 2. The Contributions Plan may be inspected at Pittwater Council, Unit 11, No 5 Vuko Place, Warriewood. The Section 94 contribution is to be paid prior to issue of the Construction Certificate or Subdivision Certificate, where relevant. When making payment please complete and return the “Payment of Section 94” form attached to this consent.

11. A contribution of $23,625.00 is to be made to Cashier Code SLEL, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Public Library Services in accordance with Section 94 Contributions Plan No . 3. The Contributions Plan may be inspected at Pittwater Council, Unit 11, No 5 Vuko Place, Warriewood. The Section 94 contribution is to be paid prior to issue of the Construction Certificate or Subdivision Certificate, where relevant. When making payment please complete and return the “Payment of Section 94” form attached to this consent.

12. A contribution of $23,679.00 is to be made to Cashier Code SCSF, pursuant to Section 94 of the Environmental Planning and Assessment Act, 1979 (as amended), for Community Service Facilities in accordance with Section 94 Contributions Plan No . 18. The Contributions Plan may be inspected at Pittwater Council, Unit 11, No 5 Vuko Place, Warriewood. The Section 94 contribution is to be paid prior to issue of the Construction Certificate or Subdivision Certificate, where relevant. When making payment please complete and return the “Payment of Section 94” form attached to this consent.

13. Certification from a qualified acoustic Engineer, is to be submitted at the time of the lodgement of the Construction Certificate application certifying that all noise from plant and equipment meets the requirements of the Protection of the Environment Operations Act 1997. Any recommendations made which require specialised acoustic treatment, or the way in which the use is to operate, shall be complied with.

14. Three sets of detailed working drawings reflecting the approved plans prepared by Gelder Architect Group Drawing No’s DA00B; DA01D; DA02C; DA03C; DA04B; DA05C; DA06C; DA07C; DA08B; that comply in all respects with the Building Code of Australia and the conditions of the Development Consent are to be submitted prior to the release of the Construction Certificate.

15. In accordance with Clause 94 of the Environmental Planning and Assessment Regulation 2000, plans are to be submitted with the Construction Certificate application demonstrating how the building will be brought into full conformity with fire and spread of fire requirements of the Building Code of Australia.

16. Three sets of Drainage details showing site stormwater management are to be submitted prior to the release of the Construction Certificate. Such details are to be accompanied by a certificate from either a Licensed plumber or qualified practising Civil Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field, that the stormwater management system complies with the requirements of section 3.1.2 "Drainage" of the Building Code of Australia Housing Provision and AS/NZS 3500.3.2 - Stormwater Drainage. The details shall include disposal of site stormwater to a public system.

Driveways

17. Access driveways are to be 3.5m wide (maximum) at the property boundary of the residential allotments.

18. (a) Street Levels must be obtained from Council for all access driveways across the public road verge to road edge. The street levels provided by Council must be incorporated into and attached to design plans for the access driveway and internal driveway.

(b) A Deed of Agreement indemnifying Council must be entered into for construction of a cosmetic access driveway i.e. other than a plain concrete finish, within the public road reserve.

(c) All construction of the access driveway must be undertaken by a Council authorised contractor.

(d) Council’s Fees and Charges apply to Street Levels and Deed of Agreement for Access Driveway.

19. Three copies of plans, Street Levels provided by Council and a certificate submitted by a chartered Professional Engineer, Architect or Surveyor, confirming to the satisfaction of Council or the accredited certifier that the access driveway and internal driveway complies with Council’s policy DCP E3 “Driveways and Internal Roadways” and the Council street levels.

20. Three copies of an Erosion and Sediment Management Plan are to be submitted with the Construction Certificate application. Control over discharge of stormwater and containment of run-off and pollutants leaving the site/premises shall be undertaken through the installation of erosion control devices such as catch drains, diversion drains, energy dissipaters, level spreaders and sediment control devices such as hay bale barriers, filter fences, filter dams, sedimentation basins. Such plan is to be a accompanied by a certification from an appropriately qualified person, that the plans/ details have been designed in accordance with the requirements of the N.S.W. Department of Land and Water Conservation's "Urban Erosion and Sediment Control" manual.

21. The plan is to include specific details required to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition.

22. Three sets of a schedule of existing and proposed essential fire safety measures required to be installed within and/or in association with the building including the minimum standard for performance of each measure are to be submitted prior to release of the Construction Certificate. The schedule is to include a signed statement from a suitably qualified person confirming that all essential fire safety measures as required by the Building Code of Australia have been listed so as to ensure the safety of persons in the building in the event of an outbreak of fire.

23. Three sets of detailed landscape working drawings, which comply in all respects with the conditions of development consent, and generally in accordance with Landscape Plan MUL/1442N/DA/03 as prepared by John Chetham Associates, are to be submitted prior to release of the Construction Certificate. Each plan/sheet is to be certified by a qualified landscape architect, landscape designer/environmental designer or horticulturist, confirming that the plans/details provide for the works to be carried out in accordance with Development Control Plan No 23 – Landscape and Vegetation Management.

24. In particular, the landscape working drawing referred to in Conditions 23 is to provide full details of the following:

25. The landscape working drawing is to incorporate a landscape maintenance strategy for the owner/occupier to administer over a 2 year establishment period. This strategy is to address maintenance issues such as irrigation, soil testing, weeding, plant staking, fertilising, pest and disease control, replanting, remedial pruning and the like.

Further, provision is to be made for the landscape designer to visit the site on a 3 monthly basis from the date of issue of the Occupation Certificate

After the inspection, the landscape designer is to issue a report to the owner/occupier certifying that all plant material is healthy and performing to expectation.

26. As the works involve landscaping over a reinstated concrete slab, or include planter box planting, details of proposed watering systems, subsoil drainage and the waterproofing membrane are to be included in the landscape working drawing.

27. As the proposal involves earthworks, the applicant is to submit three copies of a soil erosion and drainage management strategy consistent with the requirements of the document “Urban Erosion and Sediment Control (1992)”, prepared by the Department of Land and Water Conservation, prior to issue of the Construction Certificate.

28. Three sets of Structural Engineering details relating to the slabs, footings, structural framing, are to be submitted prior to release of the Construction Certificate. Each plan/sheet is to be signed by a qualified practising Structural Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or who is eligible to become a corporate member and has appropriate experience and competence in the related field.

29. A Schedule of Works prepared by a qualified practicing Structural Engineer with corporate membership of the Institute of Engineers Australia (M.I.E), or is eligible to become a corporate member and has appropriate experience and competence in the related field is to be submitted in respect of the following items:

1. The details and location of all intercept drains, provided uphill of the excavation, to control runoff through the cut area.
2. The proposed method of disposal of collected surface waters is to be clearly detailed;
3. Procedures for excavation and retention of cuts, to ensure the site stability is maintained during earthworks.

30. Where earthworks such as excavation or filling are proposed, three sets of civil engineering details are to be submitted prior to the release of the Construction Certificate. Each plan/sheet is to be signed by a qualified practising Civil Engineer who has corporate membership of the Institution of Engineers Australia (M.I.E) or who is eligible to become a corporate member and has appropriate experience and competence in the related field.

31. Prior to issue of the Construction Certificate, details are to be submitted to Council or the Accredited Certifier that include, but are not limited to, all of the recommended conditions in the Geotechnical Reports 0520 – 1A dated 17th October 2003, 0520 – 1B dated 12th December 2003, 0520 – 2A dated 19th March 2004.

Form 2 of the “Geotechnical Risk Management Policy for Pittwater” is to be completed and submitted with the above details before issue of the Construction Certificate.

32. A Section 73 Compliance Certificate under the Sydney Water Act 1994 must be obtained. Application must be made through an authorised Water Servicing Coordinator. Please refer to “Your Business” section of Sydney Water’s web site at then the “e-developer” icon or telephone 13 20 92.

Following application a “Notice of Requirements” will detail water and sewer extensions to be built and charges to be paid. Please make early contact with the Coordinator, since building of water/sewer extensions can be time consuming and may impact on other services and building, driveway or landscape design.

The Section 73 Certificate must be submitted to the Principal Certifying Authority prior to occupation of the development/release of the plan of subdivision.

33. A pedestrian footpath within the public road reserve verge is to be constructed to a width of 1.5 metres for the full width of the development on all street frontages where no footpath currently exists.

34. (a) Street levels must be obtained from Council for works in the public road reserve. The requirements of Council must be incorporated into and attached to design plans.

(b) Council Fees and Charges apply to Street Levels, Footpath and Refuge Plans (Council contact Asset/Restorations Officer 9970 1348).

35. That the driveways be coloured or paved in a material to the satisfaction of Council, details being submitted prior to the Construction Certificate. All existing driveways to the site that are not required to provide vehicular access to the development are to be removed, and the kerb and gutter, footpath, and nature strip to be restored.

36. Prior to the issue of a Construction Certificate the Applicant is to submit the following information to Council in the form of a Construction Traffic Management Plan. This plan is to indicate the area to be used for the parking of contractor vehicles during the initial demolition and construction phase of the development. Upon completion of the construction of the basement carparks to a stage where the slabs are trafficable, all vehicles and materials are to be stored on site. The Plan is to nominate a project manager and their contact details for the duration of the project.

C. MATTERS TO BE SATISFIED PRIOR TO COMMENCEMENT OF WORK

37. A certificate prepared by an appropriate qualified person is to be submitted for the following building components, certifying to the satisfaction of Council or the Accredited Certifier that the nominated works have been carried out in accordance with the Building Code of Australia, relevant Australian Standards and any conditions of Development Consent. Works are not to progress past this point until Council or the Accredited Certifier has confirmed that this condition has been satisfied (see copy of form attached).

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

a. Building setout BS-1

38. So as to achieve safe and proper means of disposal of asbestos materials from buildings, only depots and contractors authorised by the Waste Services Authority are to be utilised. Approval must be obtained from the Service before disposal of any asbestos materials.

39. Prior to commencement of work, the applicant is to supply Council/Accredited Certifier and relevant adjoining property owners with a dilapidation report relating to the adjoining development at No.s 1440 Pittwater Road, 6 Berry Avenue, and 3 Walsh Street.

40. Where excavations extend below the level of the base of the footings of a building on an adjoining allotment of land, the person causing the excavation must give the owner of the adjoining property at lease seven (7) days written notice of their intention to excavate below the level of the base of the footing and furnish the adjoining property owner with particulars of the proposed work.

41. Prior to commencement of site works, the project manager is to submit evidence of a preorder for the supply of the plant material shown on the approved landscape working drawing, to Council or the accredited certifier.

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

42. Manager of Council’s Reserves, Recreation and Building Services Unit to be contacted 2 weeks prior to commencement of works in the road reserve area.

43. Prior to commencement of works, at least three photographs of the road reserve and footpath area adjoining the site, one front-on and one from each side of the property, are to be submitted to Pittwater Council with the notification of commencement of works, showing the condition of the street trees and road reserve. The photographs must be dated, and accompanied by a statement that they are a true and accurate representation of the scene depicted.

44. A permit under Part 3A of the Rivers and Foreshores Improvement Act, 1948 is required from the Department of Infrastructure, Planning and Natural Resources in relation to this development. You will find attached the Department's "General Terms of Approval" which are required to be included as part of any consent given by Council.

NOTE: If the plans are amended and there is a change to any works proposed within 40 metres of a waterway, Council needs to contact the Department to ascertain if the amended plans will require a fresh review.

The General Terms of Approval is not the actual permit and therefore a permit application is required to be made to the Department prior to commencement of work. Information regarding the above may be obtained by contacting the Department of Infrastructure, Planning and Natural Resources, 10 Valentine Avenue, Parramatta, NSW, 2150 or PO Box 3720, Parramatta, NSW, 2124. Telephone (02) 9895 6211, Facsimile (02) 9895 7281.

D. CONDITIONS TO MINIMISE THE IMPACT OF THE DEVELOPMENT ON THE NATURAL AND BUILT ENVIRONMENT

45. All works shall be carried out in accordance with the approved plans Gelder Architect Group Drawing No’s DA00B; DA01D; DA02C; DA03C; DA04B; DA05C; DA06C; DA07C; DA08B; ~~as amended in red (shown clouded)~~, or as modified by a condition of this consent.

46. Designated visitor/disabled parking spaces are to be sign-posted and kept clear and available at all times.

47. Car parking spaces for persons with disabilities shall have clear minimum dimensions of 3.5m x 5.5m. There shall be a minimum ceiling height of 2.5m of parking spaces for disabled persons.

48. Car parking spaces for persons with disabilities shall have appropriate pavement and pillar signage.

49. Directional signage to parking spaces for persons with disabilities shall be provided from the entry to the car park.

50. Kerb ramps shall be provided at all street and pedestrian crossings.

51. Access provisions for people with disabilities must be in compliance with 1428.1 'Design for Access & Mobility'.

52. Any proposed demolition works shall be carried out in accordance with the requirements of AS2601-1991 “The Demolition of Structures”.

Amongst others, precautions to be taken shall include compliance with the requirements of the WorkCover Authority of New South Wales, including but not limited to:

1. Protection of site workers and the general public.
2. Erection of hoardings where appropriate.
3. Asbestos handling and disposal where applicable.
4. Any disused service connections shall be capped off.

Council is to be given 48 hours written notice of the destination/s of any excavation or demolition material. The disposal of refuse is to be to an approved waste disposal depot.

53. In order to ensure safe handling of asbestos materials, the re-use or sale of asbestos building materials is prohibited.

54. Water conservation devices with an AAA rating must be installed, including tap flow regulators, shower head roses and dual flush toilets. All new hot water systems are to have a minimum rating of 3.5 stars.

55. All construction in the public road reserve must be undertaken by a Council authorised contractor.

56. Temporary sedimentation and erosion controls are to be constructed prior to commencement of any work to eliminate the discharge of sediment from the site.

57. Sedimentation and erosion controls are to be effectively maintained at all times during the course of construction and shall not be removed until the site has been stabilised or landscaped to the Principal Certifying Authority’s satisfaction.

58. An all weather accessway at the front of the property consisting of 50-75mm aggregate or similar material at a minimum thickness of 200mm and 15 metres long laid over geotechnical fabric is to be constructed prior to commencement of works.

59. Adequate measures shall be undertaken to remove clay from vehicles leaving the site so as to maintain public roads in a clean condition.

60. If the soil conditions require it, retaining walls associated with the erection or demolition of a building or other approved methods of preventing the movement of the soil, must be provided with adequate provision made for drainage.

61. All excavations and backfilling associated with the erection or demolition of a building must be executed safely and in accordance with appropriate professional standards.

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

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

64. The finished surface materials, including colours and texture of any building, shall be in accordance with the Schedule of finishes dated September 2001 No. 2/894/E08/01 SG. The roof colour is to be amended to be Windspray to minimise the impact of glare when viewed from the surrounding area.

65. deleted

66. deleted

67. deleted

68. A flood free pedestrian evacuation route separate from the vehicular access ramp must be available and clearly sign - posted

69. No odour nuisance, to the public or any adjoining premises, shall be created by the operation of any plant or equipment or any procedures carried out at the premises.

70. No noise nuisance shall be caused through the operation of any plant or equipment at the premises. Noise is considered a nuisance when it exceeds 5dB(A) above the background noise level.

71. At all times, commercial garbage and recycling, must be stored in physically separated rooms from residential garbage and recycling.

72. A separate Development Application must be submitted to Council if any of the commercial/retail areas are proposed to be used as food premises.

73. Truck deliveries and services to the premises, including residential and domestic garbage collection, must only occur within the following times.

Monday to Friday 7am – 8pm
Saturday 8am – 6pm
Sunday 9am-12pm

74. The seating of patrons on the public footpath so as to provide outdoor dining is subject to a separate application pursuant to the requirements of Pittwater Council's Policy no. 53, "Road Reserves/Private Use Of - Part 4 Use of Footpath Area for Cafes, Restaurants and Merchandise". Application details and information concerning the above may be directed to Council's Reserves and Recreation Officer – Graphics.

75. The footpath and adjacent roadway is to be kept free of obstruction by building materials and/or plant. All concrete trucks, pumps and associated plant are to be kept wholly within the site. No concrete or slurry is to be discharged into the street or the street drainage system.

76. If approved works are likely to cause pedestrian or vehicular traffic in a public place to be obstructed or if works involve the enclosure of a public place, then a hoarding or fence must be erected between the work site and the public place.

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

Any such hoarding, fence or awning is to be removed when the work has been completed.

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

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

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

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

81. This approval/consent relates only to the new work nominated on the approved consent plans and does not approve or regularise any existing buildings or structures within the property boundaries or within Council’s road reserve.

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

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

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

85. The landscaping is to be maintained for the life of the development.

86. Construction access to the property is to be via the approved driveway only.

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

88. Street levels are to be obtained for the construction of any access driveway crossing between the site and the constructed roadway in accordance with Condition 19.

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

90. No other works are to be carried out in Councils Road Reserve without its approval.

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

92. A clearly legible “Site Management Sign” is to be erected and maintained throughout the course of works on the site. The sign is to be centrally located on the main street frontage of the site and is to state in clearly legible lettering the following: -

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

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

· Street levels are to be obtained for the construction of any access driveway crossing between the site and the constructed roadway in accordance with Condition 19.

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

· No other works are to be carried out in Councils Road Reserve without its approval.

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

NOTE: It is an offence to occupy the building or part thereof to which this consent relates prior to issue of an Occupation Certificate.

93. Certification from an accredited access adviser that the completed building complies with the approved plans must be provided prior to occupation.

Carparking

94. All parking areas and driveways are to be sealed to an all weather standard, line marked, signposted and maintained prior to occupation/use of the site.

95. In order to avoid vehicular conflict, the ingress and egress crossings shall be suitably sign posted.

96. Three copies of plans together with street levels provided by Council and a certificate submitted by a Chartered Professional Engineer confirming to the satisfaction of Council or the accredited certifier that the works in the public road reserve comply with Council requirements and street levels.

97. Deleted

Component Certificates

98. A certificate prepared by an appropriate qualified person is to be submitted for the following building components, certifying to the satisfaction of Council or the accredited certifier that the nominated works have been carried out in accordance with the Building Code of Australia, relevant Australian Standards and any conditions of Development Consent. Works are not to progress past this point until Council or the Accredited Certifier has confirmed that this condition has been satisfied (see copy of form attached).

a. Ground floor levels FL-1

b. Subsequent floor levels FL-2

c. External Finishes EF-1

d. Roof ridge levels RL-1

e. Excavation and/or filling EX-1

f. Landscaping LS-1

g. Mechanical ventilation (Noise levels) MVN-1

99. Disabled facilities (Public Buildings/SEPP5) DF-1

100. On completion of the erection of the building, the Owner of the building shall submit to Council or the accredited certifier a Fire Safety Certificate with respect to each essential fire safety measure installed in association with the building – as listed on the Fire Safety Schedule. Such certificate must be received by Council or the accredited certifier prior to occupation of the building.

Copies of the Fire Safety Certificate(s) must also be forwarded by the Owner to the Commissioner of the NSW Fire Brigades, and copies displayed in a prominent location specified in the schedule, within the building.

The owner must also submit a copy of the Fire Safety Certificate to Council and the Commissioner of the NSW Fire Brigades on an annual basis from the date of issue of the Occupation Certificate.

101. A fire blanket is to be installed in any kitchen area, prior to occupation of the building.

102. Prior to issue of the Occupation Certificate it will be necessary for the applicant to provide to Council the name and contact details of the private contractor engaged in collecting the commercial/industrial garbage and recyclable materials from the site.

103. Prior to issue of the Occupation Certificate the applicant shall contact Sydney Water’s Trade Waste Officer and submit to Council evidence of a Trade Waste Agreement.

104. The applicant shall provide Council with documentation relating to the servicing of the grease trap on a quarterly basis. Servicing of the Contract shall be conducted by a suitably qualified contractor to Council's satisfaction.

105. The residential garbage room must be clearly labelled as “residential garbage room” and be of sufficient size to hold the following number and size of bins:

9 x 240L bins + 1 x 80 L bins for garbage

6 x 240L paper and 6 x 240L container recycling bins

106. Garbage rooms must comply with the following:

107. Prior to the issue of the Occupation Certificate, an Accredited Certifier/Licensed Builder is to certify to the satisfaction of Council or the Accredited Certifier that any requirements of Department of Land and Water Conservation have been satisfied.

108. Prior to release of Occupation Certificate, the following shall be provided to Council or the Accredited Certifier:

· Assessment of compliance of landscape as constructed works to approved plans/conditions of consent prepared by qualified AILA listed landscape architect.

· Engineer’s certification of compaction of sub-base to all pavement areas in accordance with CBR ratios.

· Certification by registered plumber in relation to construction of drainage of stormwater across Council setback areas.

· Provision of external watering points at 6m centres across the site frontage.

· Evidence of 2 Year maintenance contract in relation to management of proposed trees, groundcovers, walling and paving in setback areas to street frontages across the site.

109. A certificate is to be submitted by a qualified practising landscape architect, landscape/environmental designer or horticulturist, certifying that the proposed automatic watering system and/or subsoil drainage and any associated waterproofing membrane have been installed in accordance with the details shown on the approved landscape working drawing and/or the manufacturer’s specification. Works are not to progress past this point until Council or the accredited certifier has confirmed that this condition has been satisfied (see copy of form LS-IRR attached).

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

110. A landscape practical completion report is to be prepared by the consultant landscape architect/designer and submitted to Council or the accredited certifier within 7 working days of the date of practical completion of all landscape works. This report is to certify that all landscape works have been completed in accordance with the landscape working drawing. A copy of this report is to accompany the request for issue of an Occupation Certificate.

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

111. Prior to issue of the Certificate of Occupation, the applicant is to submit evidence of an agreement for the maintenance of all site landscaping by a qualified horticulturist, landscape contractor or landscape architect, for a period of 2 years, from the date of issue of the Certificate of Occupation.

112. At the completion of the landscape maintenance period, the consultant landscape architect/designer is to submit a final report to Council or the accredited certifier within 7 working days, certifying that all plant material has been successfully established and that all of the outstanding maintenance works or defects have been rectified prior to preparation of the report.

113. The redundant driveway is to be reinstated with kerb, footpath and suitably landscaped.

114. New electrical connections are to be carried out using underground cabling.

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

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

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

118. The building is not to be occupied or used until an Occupation Certificate has been issued, confirming that the project complies with the relevant standards and the conditions of development consent. The request for an Occupation Certificate is to be accompanied by a copy of all of the Compliance Certificates required by the conditions of development consent (see copy of form attached).

119. Prior to issue of the Occupation Certificate, Form 3 of the “Geotechnical Risk Management Policy” is to be completed and submitted to Council or the Accredited Certifier. Certificates are to be submitted where the recommendations of the approved Geotechnical Reports 0520 – 1A dated 17th October 2003, 0520 – 1B dated 12th December 2003, 0520 – 2A dated 19th March 2004 require sign-offs during the construction phase to achieve the “acceptable level of risk” criteria specified in the Geotechnical Risk Management Policy.

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

a ADDITIONAL CONDITIONS

121. The construction certificate plans are to be amended to reflect the amendments depicted in sketches (Exhibit G) SK01-SK07 dated 20/09/04. (Annexure “B”)

122. A 1.0m wide planter box being erected along the southern extremity of the terrace to unit 22. Such planter is to be a min. 600mm high and planted with a hedge species achieving a height of 1600mm above Finished Floor Level.

123. The colonnade along Pittwater Road is to extend to the property boundary (and corner of Walsh to an equivalent amount) by extension of the first floor terraces. The construction certificate plans are to be amended accordingly.

124. The paving is to be extended to abut the existing footpath in Pittwater Road.

125. Mechanical ventilation motor rooms shall be contained within the basement. Any exhaust vent shall be limited to roof cowells extending no more than 750mm above the roof profile, and be at least 5.0m from the external perimeter of the building. Any variation in this means of designing the mechanical ventilation shall require a separate development application. No noise emission shall exceed 5d(B)A and above background level measured at the nearest residential dwelling.

126. All advertising signs are to be kept below awning level or flush with the colonnade fascia. A separate development application being submitted for any signage other than for “exempt and complying” development.

127. The middle 6 bays to Pittwater Road elevation are to be treated in a darker tone to assist in the “articulation” of the building.

128. Sliding shutters are to be provided to the western elevation of the 2nd floor windows.

129. The crest of the driveway ramps being a minimum RL3.21 AHD and the plans shall be amended accordingly.

130. a. An audible and visual alarm system which alerts occupants to the need to evacuate, sufficiently prior to likely inundation to allow for the safe evacuation of pedestrians and vehicles ids to be installed;

b. Signage being clearly displayed to identify the appropriate procedure and route to evacuate; and

131. The glazed splayed corner element on the corner of Walsh Street and Pittwater Road shall be provided with external horizontal slatted timber screens.

132. The driveway to building B (Berry Street) is to be fully enclosed from a distance 4.0m from the front boundary. The enclosure and the proposed roller door to building ‘B’ (Berry St) shall not cause noise emissions in excess of 5 d(B)A above background level when measured at the window of the dwelling at No. 6 Berry Avenue. Details of the means of compliance shall be provided at construction certificate stage.

133. The lift well shall be waterproofed in accordance with detailed plans submitted to and approved by council.

_______________________

R Hussey
Commissioner of the Court

b Ljr/rjs

G. ADVICE ONLY

All public buildings

You are reminded of your obligations under the provisions of the Disability Discrimination Act.

Class 2 to 9 buildings

This approval does not prejudice any action in respect of upgrading the building pursuant to the provisions of the Section 121B of the Environmental Planning and Assessment (Amendment) Act, 1997.

i. General

Failure to comply with the relevant provisions of the Environmental Planning and Assessment Act, 1979 (as amended) and/or the conditions of this Development Consent may result in the serving of penalty notices (on-the-spot fines) under the summary offences provisions of the above legislation or legal action through the Land and Environment Court, again pursuant to the above legislation.

The applicant is also advised to contact the various supply and utility authorities, ie Sydney Water, Sydney Electricity, Telstra etc. to enquire whether there are any underground utility services within the proposed excavation area.

It is the Project Manager's responsibility to ensure that all of the Component Certificates/certification issued during the course of the project are lodged with Council. Failure to comply with the conditions of approval or lodge the Component Certificates/certification will prevent Council from issuing the Occupation Certificate or the Building Certificate.

In accordance with Section 80A(1)(d) and (e) of the Act, any consent given shall be void if the development to which it refers is not commenced within five (5) years after the date of approval, provided that Council may, if good cause be shown, grant an extension of renewal of such consent beyond such period.

To ascertain the date upon which the determination becomes effective, refer to Section 83 of the Environmental Planning and Assessment Act, 1979 (as amended).

Should any of the determination not be acceptable, you are entitled to request reconsideration under Section 82A of the Environmental Planning and Assessment Act, 1979. Such request to Council must be made in writing together with a $500 fee, within 1 year from the date of determination.

If you are dissatisfied with this decision, Section 97 of the Environmental Planning and Assessment Act, 1979, gives you a right of appeal to the Land and Environment Court within 12 months of the date of endorsement of this Consent.

CITATION:	Provincial Planning Pty Ltd v Pittwater Council [2004] NSWLEC 562
PARTIES:	APPLICANT Provincial Planning Pty Ltd RESPONDENT Pittwater Council
FILE NUMBER(S):	10317 of 2004
CORAM:	Hussey C
KEY ISSUES:	Development Application :- Mixed commercial/shop top development - density - height - streetscape - drainage - public interest
LEGISLATION CITED:	Pittwater Local Environmental Plan 1993
CASES CITED:
DATES OF HEARING:	20-21/09/2004
DATE OF JUDGMENT:	10/15/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Cole, solicitor SOLICITORS Abbott Tout RESPONDENT Mr A Pickles, barrister SOLICITORS Mallesons Stephen Jaques