Provincial Planning Pty Ltd v Warringah Council - [2004] NSWLEC 186

No judgment structure available for this case.

Land and Environment Court

of New South Wales

CITATION: Provincial Planning Pty Ltd v Warringah Council [2004] NSWLEC 186

PARTIES:
APPLICANT
Provincial Planning Pty Ltd
RESPONDENT
Warringah Council

FILE NUMBER(S): 10065 of 2003

CORAM: Hoffman C

KEY ISSUES: Development Application :- Demolition of existing building - erection of new industrial warehouses and office building with strata sub-division - landslip hazard - visual impact - desired future character of industrial/commercial precinct - height exceedance - protection of remnant bushland and flora and fauna - landscaped area - on-site parking and truck bays - local traffic generation

LEGISLATION CITED: Warringah Local Environmental Plan 2000
State Environmental Planning Policy No. 34
Environmental Planning and Assessment Act 1979

CASES CITED:

DATES OF HEARING: 18 - 19/12/2003

EX TEMPORE
JUDGMENT DATE : 03/15/2004

LEGAL REPRESENTATIVES:

APPLICANT
Mr J Cole,
SOLICITORS
Abbott Tout
RESPONDENT
Mr S Patterson, solicitor
SOLICITORS
Wilshire Webb

JUDGMENT:

IN THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

10065 of 2003

Hoffman C

15 March 2004

Provincial Planning Pty Ltd
Applicant

v

Warringah Council

Judgment

Introduction
1. This was a class one appeal No. 10065 of 2003 between Provincial Planning Pty Limited and Warringah Council in regard to the refusal of a proposal for demolition of existing industrial buildings at 122 to 126 Old Pittwater Road, Brookvale, and the erection of new industrial warehouses and office buildings with strata sub-division.
The site and statutes
2. The site is on three allotments with total dimensions of 54.9 m frontage and 261 to 281 m depth having an area of 19,751.2 m2 or 1.97 ha.
3. The site runs uphill on land that is designated as potential landslip hazard under the Warringah Local Environmental Plan 2000. At the top end of the site there is a natural bushland area beyond the existing buildings. Part of it is designated Zone G3 Open Space Reservation under the same statute. The rest of the site below is zoned G10 Brookvale Industrial West Precinct. The proposed uses are permissible with consent under the planning scheme.

The proposal
4. The original development application comprised six buildings at various intervals up the hill, all sitting on a podium structure that is stepped up the hill. Inside the podium was a larger warehouse and a smaller warehouse and industrial uses together with multi-level carparking and truck loading and unloading bays. Above the podium in three of the buildings were smaller industrial bays, and in the other three buildings above the podium were offices including a child care centre, a cafe and gym facility and show rooms. The latter facilities were category 3 under the statute and a public hearing was required before any decision could be made. The applicant had deleted these facilities to eliminate that requirement.
5. The application was further amended with the consent of the respondent prior to the hearing to delete the building at the upper end of the site and preserve a 25 m wide bushland buffer in the G10 Zone between the Open Space Reservation Zone G3 and the development. This meant there were now only five buildings above the podium level and 286 car spaces including six disabled persons spaces, and at least one truck bay in each of the warehouse and factory units.
6. The offices furthest uphill were four floors high, having below them three levels of carparking and plant rooms. The next building down hill was three floors high of offices above the podium with the smaller warehouse below and carparking.
7. The next building downhill on top of the podium was two storeys of factory bays, the upper one having level vehicle access from the next step up the podium. The remaining two buildings above the podium were closest to Old Pittwater Road and were single storey factory bays, one with parking on its roof. The larger warehouse space was below them in the podium.
8. To give vehicle access to all these facilities there was a long driveway up the slope on the southern side of the site with a series of off-ramps onto each step on the podium.
9. For pedestrians there was a combination stairway and pathway amongst narrow landscape strips between the driveway and the southern boundary of the property.
10. On both north and south sides of the development were existing industrial and warehouse and commercial uses. On the north side the adjoining development stepped up the hill similar to the proposal although not as large in size. On the northside the podium was built right to the northern boundary in the proposal with landscaping in planter boxes on top of some steps of the podium giving vegetation strips between 1 m and 4 m wide.
11. The three factory bay buildings above the podium were built right to the side boundary. The planter boxes occurred at the north end of the vehicle paving and manoeuvring areas. The two office buildings above the podium varied on the north between 4 m and 3 m side set back in which there was planter box vegetation on top of the podium.
12. On the south side of the proposal the existing adjoining development was excavated into the hill so that adjacent the uppermost building of the proposal there was a rock face many metres deep and this gradually reduced in height at points closer to Old Pittwater Road.
13. Just uphill of the amended development was a rock ledge about 2 – 3 m high that ran across the site north to south. The deleted building would have been excavated into and above that natural feature. The council was satisfied that retaining the rock ledge was desirable in preserving the bushland above and widening the faunal corridor adequately for their protection. Also, it would retain an existing physical barrier between the buildings and the bush. This also assisted protection from bushfire since it provided a barrier of rock between the proposed buildings and the bushland.
14. The excavation for the upper building and podium would be 18 m deep at that point. Only the top two floors of offices facing the hill would be above natural ground slope at that point.
15. On the down hill side, the four floors of the office plus one floor of the podium would be above the natural ground slope.
16. The reduction of the size of this very large development had satisfied the council, and it had resolved to seek consent orders at the time it came before the Court as in Exhibit 7.
17. There were a large number of objections to the proposal even in its amended form and the Court needed to consider:

the terms of the consent orders and
their compliance with the statutes and controls and their merits and
to consider the concerns raised by the objectors and
the proposed conditions of consent.

Original reasons for refusal

Environmental Planning and Assessment Act

Warringah Local Environmental Plan 2000

Local Environmental Plan

Environmental Planning and Assessment Act

19 . As previously noted, some of these issues had been resolved by amendments to the drawings and these were contained in Exhibit C and comprised what was referred to during the hearing as “the Issue C design”.

Mr J P Henri objector and resident of 22 Allenby Park Parade, Allambie Heights, a house that abutted the bushland part of the site at the top of the hill. Mr Henri was Chair of the Allambie Heights Neighbourhood Committee and raised a number of concerns put by the committee.
Mr M Houston objector of 33 Corkery Crescent in regard to the bushland and fauna preservation concerns.
Associate Professor Wheen, objector and resident of 25 Allenby Park Parade on the visual impact of the proposal, and the accuracy or not of the survey levels relevant to the proposal, and, the potential land slip.
Ms A Sharp, objector, of 77 Brighton Street Harbord in regard to the protection of the scenic qualities of the Brookvale valley.
Mr M Jackson, objector, of 16 Karabah Place in regard to potential landslip, visual bulk, hydrological impact on the vegetation and protection of the scenic quality of the Brookvale Valley.

Mr A Colenbrander, geotechnical engineer,
Mr J Hewitt, traffic and parking engineer,
Mr C Wiafe, of the Sydney Regional Development Advisory Committee advising of the committee considerations, the traffic and parking generation of the proposal, and
Dr S Ambrose, ecologist.

Professor Wheen was a surveyor and had prepared documents and graphics illustrating his concerns and they were in evidence.

Mr V Squillace, architect for the project and
Mr D Murray, engineering geologist.

Mr D Murray and from Mr P Campbell, drainage engineers,
Mr J Vescio, town planner,
Ms M Dallas, aboriginal artefact archaeologist,
Mr P Stricker, Bachelor of Science,
Dr T Smith-White and Ms M Smith-White, all flora and fauna experts and
Mr R A Free, bushfire management expert.

25 . From a consultancy Project Planning Associates, there was a report on traffic and parking engineering matters jointly put by Mr J Coady and Mr Varga and Mr J Lovell. Mr G Elmes submitted documents on air conditioning plant. Mr G Beasley was surveyor for the proposal.
26 . Except for Mr Squillace and Mr Murray, none of these experts were required for cross-examination.
The evidence
27 . The Court was told joint meetings of the experts had resolved all relevant matters, and each had been considered to have little and/or acceptable impact and could be dealt with by way of appropriate conditions of consent.

28 . For example, initial concerns over the potential presence of Red Crowned Toadlets was resolved because it had not been found on site, and its only recorded habitat was some distance away from the site on Allenby Reserve. The toadlets small home range meant the site was beyond its reach.

29 . There were 63 objections to the original development application and twenty-eight to the revised proposal.

30 . The Court was taken on a view by the objectors and the parties up to the bushland area, and up to and around the rock ledge and the various survey pegs showing the position of the upper building. The pegs did show the excavation would commence right at the foot of the ledge and due to its irregular shape, in some places it appeared the face of the ledge itself may be excavated to a minor extent.

31 . The Court was also taken to vantage points around the Brookvale Valley such as the roof of the carpark at the Brookvale shopping centre from which photomontages had been projected, and from hills at Harbord facing west. The site was clearly visible from these areas and generally from within the visual catchment shown by Professor Wheen in Exhibit 10.

32 . Mr Henri said there were five industrial sites in the Brookvale West industrial precinct that extended up to the bush. Forty-eight years ago was the initial zoning to protect the area of open space reservation zoning of the bush now in the G3 Zone. The neighbourhood committee accepted that some industrial development would occur on the land below the bush, but it had to be acceptable development under the controls. Of major importance to the community was the scenic protection of the area. The strip of bushland between the valley and Allambie Heights was crucial in that regard and for the protection of the flora and fauna in the bush corridor.

33 . Equal in importance was the potential landslip. Despite the site being in a designated landslip area, there was no geotechnical report with the original development application and that greatly concerned the objectors especially those with houses on the Allenby Park Parade above the site. Mr Henri’s own house was there and backed onto the bush.

34 . From a house in the Parade during the view, the Court was shown that one could see, through the trees, the balloons above the survey pegs at the back of the upper building. It was about 100 m downhill from the house allotment. The residents feared a serious landslip could affect the whole hillside.

35 . They were concerned the latest geotechnical report said rock bolts would be needed even on the northern boundary. There was no consent from those adjoining owners and the podium building went flush with the boundary all the way up the construction site.

36 . The council had, in the consent orders condition, that if rock bolts were needed, the podium must be set back 3 m from the north boundary. Mr Henri was concerned about the long term maintenance of any rock bolts and other support structures and essential services such as drainage to prevent land slip.

37 . The height and bulk of the proposal was next in priority. The removal of the original uppermost building (that was actually in two wings and had a multi level basement carpark) had reduced the visual impact, but the exceedance of the 11 m height limit was not justifiable. On a site that was to start fresh from the ground up there should be no need for any non-compliances, in the opinion of the neighbourhood committee.

38 . On the down hill side the height limit would be exceeded by between 4 m and 6 m and on top of that, the lift and stair shafts projected 2½ m above the roof, so visually the height exceedance could possibly be 8½ m. No air-conditioning plant room was shown on the roof and Mr Henri was concerned that it might be an “add-on” later. The Court was assured in Exhibit M that all air-conditioning plant including condensers would be in the plant rooms, low down in the building, ventilating to the carpark and vehicle ramps. The council put a condition that no such equipment or other roof structures or services could project higher than the height of the lift overrun shown on the plans.

39 . Another concern of the Allambie Heights Committee was noise. During the view the buzz of activity from the valley was audible up at the Allenby Park houses. Mr Henri said it went on while ever the Brookvale shopping centre was open and to a lesser extent afterwards, probably due to refrigeration and air conditioning equipment. He himself was concerned that lift motor noise and air conditioning equipment et cetera at the roof level would add to this significantly because the upper building of the proposal was only 100 m away.

40 . An adjunct of the noise concerns was the construction period. He said the Brookvale shopping centre construction and noise went on until 11 pm at night. That should not be allowed in this proposal.

41 . On ecology of the bushland area, he thought the flora and especially the fauna were not adequately surveyed to understand its importance. Residents and bushwalkers had records of 32 bird species using the bush as in Exhibit 6.

42 . Traffic was the last major concern of the neighbourhood committee. As local residents using Brookvale centre they knew Old Pittwater Road only had two exit points in that locality, namely Condamine Street and new Pittwater Road. Old Pittwater Road was a congested thoroughfare and carried all the local industrial traffic and about half of the entries and exits to the shopping centre. The street had traffic jams several times a day, every day.

43 . The proposal had 270 car spaces plus all the trucks to two warehouses and twenty-nine factory bays. That traffic must have significant impacts on the road conditions in the opinion of the local residents.

44 . Associate Professor Wheen was a surveyor and had prepared photomontages in Exhibit 9 based on photos of the site from the Woolworths’ carpark. He had used the elevations cut out from the plans of the proposal. He agreed they did not reveal true perspective but he had adjusted the scale of the elevations using the site pegs and markers as located on the photos so that it showed the roof level of the upper most building against the existing scenery and the width of the building.

45 . He said it was the lower buildings that were out of perspective, the upper one was reasonably accurate. He believed it would appear as four storeys high, higher than the rock cutting behind the Hanimex building to the north of the site and higher than a large building with a green fascia on the side of the hill to the south. The latter was No. 148 Old Pittwater Road.

46 . These estimates were contested by the applicant and the Court required a surveyor to accurately survey the AHD of the cutting behind the Hanimex building at No. 114 Old Pittwater Road and the roof of the building with the green fascia at No. 148 Old Pittwater Road.

47 . Associate Professor Ween estimated there were 108 streets in the valley and hills around from which the project would be seen. He thought the upper building even on the reduced scheme would have significant and undesirable visual impact.

48 . On the landslip concerns, he thought the geo-technical report seemed to be based on the engineering assessment of the existing rock face on site above the existing buildings. That rock face was only half way up the hill of the proposal. The uphill rock could be quite different. The strata of the existing rock face had clay fault lines which indicated slip planes. It could be worse uphill.

49 . In regard to the rock anchors, or rockbolts, he was amazed at the conditions allowing a change such as moving the podium building 3 m off the north boundary if it was needed after bulk excavation and testing was done. What else would change, he wondered. A change like that should require an application for amendment.

50 . Another condition, No. 68 required more bore holes up at the uppermost building site to discover its geology, prescribed construction methods and stabilisation of excavated rock faces over the life of the building and drainage systems. Professor Wheen said it was too late to do that after consent. That information should be provided beforehand.

51 . Mr Houston was a supervisor of bushland restoration. He said the bush above the proposal was remnant Sydney sandstone woodland that was largely free of weed invasion and it is important to keep it undisturbed. There was some weed invasion up at the Allenby Park Parade end due to the domestic gardens there. The lower bushland on the site was the best quality, and had not been burnt in thirty years and the multiple fauna using the bushland was a testament to its quality. It was a shame in his opinion, to see any of it removed in order to build the upper buildings of the proposal. His home looked across to the site from the south. He would see the full side elevation of the proposal. He agreed that the reduction of the proposal was an improvement but the bush and its fauna were of such quality it should not be lost in his opinion.

unacceptable visual impact,
bushland destruction,
loss of habitat wildlife corridor,
inconsistent with the transition between the G10 and the G3 zones,

hydrology impact, loss of groundwater due to the huge excavation may deprive the uphill vegetation and cause its decline,
distress put on the remaining wildlife corridor by narrowing it.

53 . Mr Jackson said the drawings of such a large project being in several sections made it difficult to comprehend its totality. A model would have helped he said. The drawings also made it difficult to relate the impact of the proposal relative to the existing groundline. He also represented the Allambie Heights Neighbourhood Committee and supported the refusal of the proposal on the same grounds as the other objectors.

54 . Mr Squillace explained the plans of the project and clarified several matters. He had the surveyors Proust and Gardner certify levels for numbers 114 and 148 Old Pittwater Road, in Exhibit O.

55 . The top of the cutting above No. 114, the Hanimex building was at 50.6AHD. The roof of the units at No. 148 were at 49.3AHD. The roof of the upper building of the proposal was at AHD57 so it was about two storeys above them, not four storeys as feared by the objectors. The top of the proposed rock cut on the subject site was about 50AHD so it was about the same as the cut behind the Hanimex building.

56 . He said the roof of No. 148 was currently 5 m below the height limit so in theory it could apply for extensions and be as high as the proposal.

57 . In Exhibit B and Exhibit U he had calculated the landscaped areas of the site. The area of the G3 Zone was about 6000 m2 and that was to be kept. The area of bush in the G10 industrial zone down to level 30AHD where the existing carpark and building were, was about 7000 m2. Of this industrial zone bushland, 2000 m2 was to be kept giving a total with the G3 Zone bush of 8000 m2 to be kept on a site of 19,757 m2. That gives about 41 % of the site as bush. This is greatly in excess of council’s requirements.

58 . He calculated the amount of new landscaping within the area of the buildings and that was approximately 2863 m2. So 10,800 m2 approximately of the site of 19,700 m2 would have vegetation on it. That was 55 % of the site to be landscaped.

59 . Of the new landscaping, 80 % was deep rooted planting, not planter box vegetation so there would be trees growing at the sides and in amongst the buildings. The planter boxes were big enough to have trees also.

60 . He had taken Professor Wheen’s montages and coloured them in Exhibit S. There were softer hues proposed for colours of the building instead of white as shown in Professor Wheen’s montage. Mr Squillance said that the building would not stand out against the bushland as much as the objectors feared.

61 . He had also predicted sight lines in Exhibit Q from Old Pittwater Road in front of the site looking up the driveway with the known height of the trees above the upper building. He said the trees would appear above the upper building, the roof would not penetrate the skyline even from that close a point of observation. He thought condition 58’s provisions on colours should be extended to all buildings.

62 . Mr Murray, the applicant’s geologist had met with Mr Colenbrander the council’s geologist, and their joint report was in Exhibit 2. He said the deep neighbouring excavations were indicative of what would be found on site. The additional bores and engineering design contained in the joint report and translated into conditions would ensure the long term stability of the excavation.

63 . He had designed excavations on the adjoining site some years ago. In Exhibit N, the excavation at the rear of the Hanimex building was shown to be 21 m in height. That is a deeper cut than the proposal and it had been stable as unsupported rock face for many years. The next site south of the proposal was also very deeply excavated. Due to the shallow soils over the solid rock, he said any landslip would only be about 3 m up from the top of the proposed excavation, but that would be prevented by a batter with vegetation or a retaining wall and catch drain at the top of the excavation.

64 . The fissures noted by Professor Wheen, with clay in them were fractured and did not constitute large slip planes. They would not go uphill far from any excavation. Certainly they would not cause any slippage up to the houses 100 m uphill. There could be localised failure of the rock face during excavation, that was why the joint report required excavation to be done in stages with maximum height of face as 1.5 m in soil and 3 m in rock. That would enable localised conditions to be examined by a geologist and steps taken to eliminate failures so that on completion the excavation would be stable. Rock bolts et cetera would be double protected for corrosion with a life of at least sixty years which was the current industry expectation and design life of any building.

65 . Mr Murray and Mr Colenbrander had assessed the site under the Australian Geo-Mechanics Society guidelines and the Pittwater Council’s Interim Geo-technical Risk Management Policy of June 2003, which they agreed were applicable to this site. They had agreed the risk of land slide on the site was “low” to “very low” under those guidelines. Up at the Allenby Park Parade houses, Mr Murray classified them as “barely credible” risk category which is the lowest risk of all categories.

66 . He was not concerned about drainage as the rock ledge above the excavation had such a shape to it that it naturally directed surface water to each side boundary where there would be the main drain pipes for the site. This would reduce the volume of rainwater to be collected from the excavated rock face and minimise the subterranean water pressures on the structures which of course, would be drained. The design of this system would incorporate the retention of the existing surface and sub-surface waters supplies to the bushland above the site.

67 . Mr Vescio had done a supplementary report in Exhibit U on the amended proposal. In regard to the protection of surface and subterranean water supplies to the bushland above the site, it was quite obvious from seeing the existing huge excavations on the other sites that the bushland above them did not appear unhealthy in any way, nor did the existing bush above the existing carpark on the site appear unhealthy.

68 . The aerial photo of the Brookvale Valley and Allambie Heights and Harbord area in Exhibit L show that the amended proposal only extended westwards to about the line of the existing other industrial development on the Allambie Heights hill slope. The surveyors levels for numbers 114 and 148 Old Pittwater Road, and the view of the site from the Woolworths’ carpark, and from Harbord, show that the height of the excavation proposed on this site was about the same as the top of the excavation on No. 114 and the existing building on No. 148 Old Pittwater Road. It was true the roof of the proposal was about two storeys above that, but in the context of the total scene of shopping centre and other industries in the valley, it would not appear significantly higher.

69 . The band of bushland on the slopes would remain intact, only being reduced to the same width as above the other industrial sites, and would retain a buffer to the houses on the top of the hill. The proposal would fit into that context in Mr Vescio’s opinion.

70 . It only brought development of the subject site up to about the level of works on the nearby and adjoining industrial lots. The existing site had old buildings, it and the locality would benefit by redevelopment. True the other older sites nearby might redevelop in the future, but this proposal did not set a precedent of greatly exceeding the levels to which other existing development went. Also the height exceedance of the proposal was only at the eastern facades of the upper two buildings. On the western facades they both complied due to the slope of the hill. To that extent their height exceedance could be seen as acceptable given the sacrifice of industrial zoned land for the retention of bushland.

71 . From the street, the trees would still be seen above the top of the upper building as in Exhibit Q and from further away as in Exhibit S. The proposal did not build out the skyline in respect of the scenic character of the Brookvale valley.

72 . A reading of the statute shows that visual impacts relate to streetscape at the site not “as seen from a distance”. Neither party had an issue with streetscape appearance as the setbacks and landscaping of the street comply with council’s requirements, and the view of the office component is about 140 m away from the street up a landscaped driveway. The uppermost building would be framed by the tree canopies above it. Those are the relevant objectives of the height control standard of 11 m and they are met even with the exceedances. That being the case, an exception under cl 20 of the Warringah Local Environmental Plan 2000 may be granted in Mr Vescio’s opinion.

Conclusions
73 . Overall the Court has come to the following conclusions.

74 . The State Environmental Planning Policy No. 34 for major employment generating industrial development applies to the proposal. It was forwarded to Planning NSW which advised it considered the application a local matter and could be dealt with under the Warringah Local Environmental Plan 2000 . There was no reason for the Court to go further on the matter of the referral.

The Brookvale Industrial West locality will remain an industrial and employment centre incorporating industries, warehouses and ancillary service uses. New development or significant redevelopment will be designed to incorporate landscape and to soften the visual impact of industrial buildings and their associated parking and other paved areas as viewed from the street. At the interface of the locality with adjoining and adjacent residential areas, buildings will be sited and designed and the use of the land managed to minimise interference with the amenity of such residential areas. Allotments are to be consolidated where necessary to ensure the development of one allotment will not render an adjoining allotment unsuitable for development”.

76 . The evidence shows the proposal has no conflicts with the future character statement. It is the built form requirements of the height limit only where there is non-compliance with the statute. The survey levels in Exhibit O show that the bulk excavation go only as far up the hill slope as adjoining development and rock excavations. That is consistent with the visual impact existing developments have on the valley. The proposed building will appear two storeys above that, not four storeys, and the colours proposed will make the building recessive against the bush.

77 . For the reasons advanced by both parties seeking consent orders, the Court agrees that in this case an exception under cl 20 of the Warringah Local Environmental Plan should be granted for the buildings only. However the Court is concerned about additional structures on the roof. The draft condition allowed other structures as high as the lift overrun. It is shown as 2½ m above the roof. That would raise the height exceedance to three storeys and could involve structures such as telecommunications aerials et cetera .

78 . The condition is open-ended as to structures on the lift overrun roof. The proposal shows a photo voltaic cell bank, 10 m by 3 m in area, and 0.75 m high on the western half of the roof away from the eastern edge of the building where it would have been visible from the valley. There is another cell bank shown on one of the factory bay roofs. The Court has concluded there should be greater control in that regard and no exception granted under cl 20 of the local environmental plan. That is, no projections or structures to be permitted on, or above, the lift overrun roof of the westernmost office building of the proposal. Any structures or projections above any roof as the remaining parts of the proposal are to be located only on the western-half of the particular roof and be no more than 0.7 m high and kept low enough or treated to merge with the colours of the proposal and have minimum visibility from any point in the valley using the naked eye.

79 . The landscaping planter boxes, paving et cetera on various podium levels, and above factory units F5 to F10, and the carparking and fire escape stair above factory units F5 to F10, are permitted as part of the building component. Draft condition 8 is to be appropriately amended.

80 . Further the Court has been told all air conditioning condenser units for the office components that require external air are to be installed in the plant rooms or carpark areas beneath the office components. This should eliminate any potential noise reaching the residents uphill. Any plant or equipment for the factory units are to be installed inside the factory units. There is no need for such equipment on the roofs of buildings.

81 . The provision of a 25 m buffer of bushland in the industrial G3 Zone adjoining the reservation in the G10 Zone has met the requirements of the council’s flora and fauna expert in regard to cl 52 of the local environmental plan. The development will have a fence between it and the bush on the G3 Zone to allow the bushland to be undisturbed as far as possible. Weed removal programs on the site in the G3 and the G10 zone reserve will improve the adverse affects caused on the property by the residential houses and gardens along Allenby Park Parade.

82 . The bushfire risk is minimal to the development, as any likely bushfire will run uphill, not downhill, according to the expert. The relevant conditions for bushfire control have been proposed by the parties. Other superseded controls had been intended for the sixth building which has been deleted in order to provide for the 25 m buffer.

83 . Clauses 52 and 58 of the local environmental plan appear to be satisfied.

84 . In regard to cl 56 of the Local Environmental Plan , the 25 m buffer enables the rock ledge across the site to be retained, and then to act as a natural boundary between development and bushland. In preserving the 25 m of bushland in the G3 Zone, the reserved remnant bushland in the G10 Zone is protected as far as the council statute requires, otherwise the council would have in the year 2000, rezoned the bush in the G3 Zone as open space reservation also.

85 . In regard to cl 57, even though the local environmental plan shows the site as landslip area, the council’s geo-technical expert has agreed the potential for landslip on this land is, under the applicable guidelines for assessment, in the category of “low” to “very low” and the risk for houses on Allenby Park Parade is in the category “barely credible risk”, the lowest of all categories. The geo-technical experts are satisfied the proposal will be safe from landslip. If the council’s expert did not have that opinion, the Court would require further investigations prior to any consent being given.

86 . The stormwater disposal system has also been reported upon and considered by the experts who raise no additional concern in its implications for landslip. Clause 57 is therefore satisfied.

87 . In regard to cl 63 of the environmental plan, there would be few industrial sites in urban areas similar to Brookvale that provide 55 % of the site area as landscaping, with eight tenths of it being bushland or deep soil planting areas for tree growth. The Court is satisfied the evidence shows the applicable provisions for cl 63 could be satisfied, except that the only landscape plans before the Court are for the original proposal with six buildings above the podium and no 25 m bushland buffer in the G3 Zone.

88 . The draft conditions put by the parties allow the final landscape drawings to be certified by a private certifier. The Court is not satisfied with that as it should be prepared to the council’s satisfaction to represent the community interest.

89 . Clause 66 of the Local Environmental Plan requires consideration of the side and rear setbacks, progressive increase of setbacks as height increases, articulations of buildings to give visual relief, and landscape plantings to soften the built forms and to be consistent with nearby development, and not to dominate the street or surrounding spaces. This is the most contentious matter remaining for the Court to consider.

90 . There is no doubt the development will be seen from near and far and that it is big. The question to be answered is whether that visual impact is unreasonable. The assessment of the planning experts is important here. There is no real conflict with the Brookvale Industrial West Precinct statement of desired future character. The purposes of the height standard are met in that it does not project above the tree canopy of the adjoining open space reservation and will be beneath the tree canopy height of the bush in the G3 Industrial Zone.

91 . More trees will be grown between the industrial buildings and along the south boundary and to a lesser extent, the northern boundary and on the street front setback. That is another reason for the council to approve the amended landscape plans in condition 49, and it should ensure that all these matters are appropriately amended in plans that are subsequently to be implemented by the applicant. Given that the landscape works are appropriately executed and maintained for the life of the project, and the other conditions are complied with, the Court accepts that cl 66 can be satisfied as the articulation of the buildings on the site, the draft vegetation plans and the setbacks indicate it will not dominate the street and will be consistent with other development in the area, and the potential redevelopment of adjoining lots.

1. The appeal is upheld.

2. Development application No. 2002/1837DA for the demolition of existing structures and the erection of five buildings above a podium at Nos. 122 to 126 Old Pittwater Road, Brookvale, is approved as a deferred commencement consent subject to the conditions contained in Annexure A.

3. The exhibits are returned to the parties except for Exhibits 2, 3, 4, 5, 7, 8 and Exhibits B, C, D, E, F, H, M, O, P, R, S, T and V.

_______________

of the Court

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Provincial Planning Pty Ltd v Warringah Council [2004] NSWLEC 186

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CITATION:	Provincial Planning Pty Ltd v Warringah Council [2004] NSWLEC 186
PARTIES:	APPLICANT Provincial Planning Pty Ltd RESPONDENT Warringah Council
FILE NUMBER(S):	10065 of 2003
CORAM:	Hoffman C
KEY ISSUES:	Development Application :- Demolition of existing building - erection of new industrial warehouses and office building with strata sub-division - landslip hazard - visual impact - desired future character of industrial/commercial precinct - height exceedance - protection of remnant bushland and flora and fauna - landscaped area - on-site parking and truck bays - local traffic generation
LEGISLATION CITED:	Warringah Local Environmental Plan 2000 State Environmental Planning Policy No. 34 Environmental Planning and Assessment Act 1979
CASES CITED:
DATES OF HEARING:	18 - 19/12/2003
EX TEMPORE JUDGMENT DATE :	03/15/2004
LEGAL REPRESENTATIVES:	APPLICANT Mr J Cole, SOLICITORS Abbott Tout RESPONDENT Mr S Patterson, solicitor SOLICITORS Wilshire Webb