Asia Digital Investments Pty Ltd v Northern Beaches Council

Parties advise that contentions are satisfied

1. Prior to the commencement of the hearing, the parties advised that all contentions had been resolved with amending plans and additional information. This includes the following expert reports: Field Experts Joint report/s Planning Applicant: Greg Boston Planning Joint Expert Report (JER), 9 October 2024 Respondent: Jeff Mead Urban design Applicant: Shaun Carter Urban design JER, 9 October 2024 Respondent: Geoff Baker Heritage Applicant: James Phillips Heritage JER, 9 October 2024 Respondent: Michael Edwards Geotechnical engineering Applicant: Woodie Theunissen Geotech JER, 16 October 2024 Respondent: Simon Mortimer Supplementary Geotech JER, 19 October 2024

1. Council now agrees to the grant of consent. While the parties did not formally file consent orders, the requirements of the Court's Practice Note - Class 1 Residential Appeals (at paragraph 99) have been followed.
2. The parties tendered a joint submission on jurisdictional matters (Ex 8) which outlines and provides further references to the evidence necessary to allow the Court to determine whether it is lawful and appropriate to grant the consent having regard to the whole of the relevant circumstances, including the proposed conditions. This statement sets out how relevant statutory provisions have been complied with, and how objections have been taken into account. I give consideration to these matters in the next sections, commencing with objector submissions from paragraph 17.
3. The parties advise that the objectors were notified of their agreement, including the proposed plans and conditions of consent, and were provided details of the Court hearing and an opportunity to be heard.

Public submissions

1. The parties advise that the DA was publicly exhibited and notified in accordance with the requirements. The first public exhibition and notification period was from 15 April to 13 May 2022. The application was amended following advice from the Northern Beaches Design and Sustainability Advisory Panel (DSAP), then renotified and exhibited between 30 September and 14 October 2022.
2. In response to the two public exhibition periods, the Council received 93 submissions. Further submissions were made at the hearing, which commenced with a site view and included inspections of properties adjoining the site to the east (at 1110 Barrenjoey Road) and south (at 1100 Barrenjoey Road). The Court heard oral evidence from these neighbours as well as members of Protect Pittwater, the Palm Beach & Whale Beach Association, and Coasters Retreat. I have read the submissions which have been tendered in the Council's bundle (Ex 2, tabs 10 and 11).
3. Generally, the objectors' concerns may be summarised as: 1. Non-compliance with the building height limit and insufficient planning grounds to justify the variation from the development standard. 2. Bulk and scale, impacting upon the adjoining heritage item Barrenjoey House. 3. Inconsistency with zone objectives and the character of the locality. 4. View loss, visual impacts, privacy and solar access impacts arising from the development. 5. Geotechnical risks, particularly for adjoining properties. 6. Non-compliance with the parking rates of the Pittwater 21 Development Control Plan (PDCP).
4. Below I address these concerns which for me also capture the essential merits issues in this evaluation, noting that some involve jurisdictional findings. I then address the remaining jurisdictional preconditions to the grant of consent under the relevant environmental planning instruments, from paragraph 58.

Contravention of development standard

1. The proposed development breaches the height development standard in cl 4.3 of PLEP. Clause 4.3(2) refers to the Height of Buildings Map, which shows a maximum height of 8.5m for this site. Details of the non-compliant heights in the amended proposal are as follows (Ex 8, p 9): The street-facing dormer windows breach have a height of 10.3 metres, resulting in a breach of 1.8 metres or 21.1%; The street-facing parapet has a height of 11.5 metres, resulting in a breach of 2.65 metres or 31.1%; The clerestory windows have a height of 11 metres, resulting in a breach of 2.5 metres or 29.4%; and The roof-top plant enclosure has a height of 10.8 metres , resulting in a breach of 2.3 metres or 27%.
2. Asia Digital has submitted a written request under cl 4.6(3) of PLEP seeking to justify the contravention of the development standard. The latest request, addressing the amended development, was prepared by Boston Blyth Fleming and dated 19 June 2024 (Ex A, tab 7) ('the request'). The request seeks to justify the contravention of the height development standard by demonstrating that compliance is unreasonable or unnecessary in the circumstances and that there are sufficient environmental planning grounds to justify contravening the development standard.
3. As to the first matter, the request contends that compliance with the height development standard is unreasonable or unnecessary because the objectives are achieved notwithstanding the noncompliance. The objectives of the height development standard are set out in cl 4.3(1) as follows: 1. to ensure that any building, by virtue of its height and scale, is consistent with the desired character of the locality, 2. to ensure that buildings are compatible with the height and scale of surrounding and nearby development, 3. to minimise any overshadowing of neighbouring properties, 4. to allow for the reasonable sharing of views, 5. to encourage buildings that are designed to respond sensitively to the natural topography, 6. to minimise the adverse visual impact of development on the natural environment, heritage conservation areas and heritage items.
4. With regard to the first objective, the request notes that the amended proposal incorporates feedback from the DSAP and Council's heritage, urban design and planning advisor with the height, scale and design of the development considered to be consistent with the desired character of the Palm Beach Locality for the following reasons:

• The 3 storey building incorporates pitched roof forms and is of a design which is both sympathetic to its context and contemporary in its use of materials and forms in response to local climate and the "seaside village" character anticipated by the Palm Beach Locality Statement.
• The adoption of a design which relates to the built form proportions, eave levels and control lines of Barrenjoey House whilst maintaining contextually appropriate setbacks.
• The creation of a publicly accessible plaza, open to the sky, at the northern end of the site to facilitate the provision of a feature tree whilst providing broader public benefit in terms of its usage and the maintenance of views to the southern façade of Barrenjoey House.
• The provision of additional landscaping adjacent to the southern boundary of the property where the development interfaces with the adjoining dwelling house.
• The provision of a deep and generously proportioned colonnade adjacent to the frontage of the property including level access to the adjacent commercial tenancies.

1. The request contends that objective (b) is achieved because: "the non-compliant building height breaching elements will not result in a built form which is incapable of coexisting in harmony with surrounding and nearby development to the extent that it will appear inappropriate or jarring in a streetscape and urban design context. … Importantly, the proposed development will provide an active and diverse street frontage to attract pedestrian traffic and contribute to vibrant, diverse, and functional streets and public spaces in accordance with the objectives of the zone. Further, despite the numerical departure there is no undue environmental or amenity impacts to the surrounding or adjoining properties or on the public domain in terms of overshadowing, view loss, privacy impacts or heritage impacts. Accordingly, limiting the building height to compliance with the standard would not deliver any measurable environmental or amenity benefits nor would this support the objective of enabling residential development."
2. With respect (c), the request contends that the shadow diagrams (DA.50-DA.52.B Ex A, tab 24) demonstrate that at least 3 hours of solar access will be maintained to the living areas and adjacent private open space areas of all surrounding residential properties between 9am and 3pm on 21st June with the distribution of floor space across the site minimising overshadowing of neighbouring properties.
3. With respect to objective (d), the request contends: "Having inspected the site and surrounds to determine available view lines we have formed the considered opinion there are no view impacts on surrounding development … The height and massing of the development has been appropriately distributed of across the site with the design outcome, notwithstanding the building height breaching elements, achieving a view sharing scenario having regard to the view sharing principles established by the Land and Environment Court in the matter of Tenacity Consulting v Warringah [2004] NSWLEC 140."
4. With respect to objective (e), the request contends: "The proposed works are generally located within the previously disturbed areas of site with the additional excavation primarily related to the provision of a basement level of car parking. I note that the building has been designed with a hipped roof form to Barrenjoey Road the angle of which generally reflects the pre-existing undisturbed natural topography of the land."
5. With respect to objective (f), the request notes that the site is not heritage listed nor within a heritage conservation area, but is adjacent to the heritage listed Barrenjoey House. In this regard, the final design detailing has been settled in consultation with Weir Phillips Heritage and Planning with the accompanying Heritage Impact Statement concluding: "The proposed works will have the opportunity to construct of the sympathetically designed modern infill building that supports the ongoing significance of the area as a neighbourhood precinct, will have an acceptable impact on the Barrenjoey House. The proposed new building is contemporary in character but demonstrates respect for the key forms, architectural proportions and materiality of the item. The building demonstrates appropriate setbacks; it is similar in height and scale to Barrenjoey House. Openings are vertically proportioned which represents the vertical articulation of Barrenjoey House. The elevations articulated through to the use of timber verandah posts and modulated gabled roof form. The proposed finishes and colours of timber, masonry and tiles will sit comfortably within the vicinity of Barrenjoey House and other items in the vicinity. The proposed works will have no impact on the ability to understand the significance of the nearby heritage listed items. No significant view corridors will be blocked. The building will read in the setting of nearby items as one of several buildings of a similar massing and scale."

Heritage impacts

1. As noted above at pars [7] and [25], the site is adjacent to a listed heritage item, Barrenjoey House.
2. The revised proposal reflects lengthy discussions between the experts about the relationship with Barrenjoey House. During the hearing, Mr Carter emphasised the importance of design features which reduce bulk and scale so as not to dominate Barrenjoey House, in particular the pavilion approach with two forms and a recessed central bay, the design of the second floor to read as a mansard roof, the increased setback to Barrenjoey House and the new public courtyard. Figure 2 shows the relationship between Barrenjoey House and the proposed development. Figure 2: Photomontage (Ex A, tab 7, p 12).
3. Conclusions from the Heritage Impact Statement are provided above at paragraph 25. The parties' heritage experts agree in their joint report that the revised proposal: is of an acceptable height, scale, form, massing, separation and setback to Barrenjoey House, such that the proposed development will no longer have an adverse visual impact on the heritage item. (para 7) incorporates design features that positively enhance the visual quality of the overall architectural expression, providing enhanced visual interest and regard to the adjoining heritage item through vertical and horizontal proportions. (para 10) minimises the impact on the heritage significance, provides an adequate buffer zone (transition zone) and maintains and respects significant views to the heritage item. (para 23)
4. The parties' heritage and urban design experts agree in their joint reports, and accepting their agreed position, I am satisfied that the proposed development is consistent with the objectives of the heritage provisions in cl 5.10 PLEP and part B1.2 of PDCP.

Amenity impacts for neighbouring properties

1. The objectors raised concerns regarding view loss, visual, privacy and solar access impacts from the development.
2. Public submissions must be considered under s 4.15(1)(d) of the EPA Act. In this case the matters raised in the public submissions are relevant also to other heads of consideration under s 4.15. The evaluation of public submissions, particularly in relation to expert evidence provided by the parties, is a matter of common consideration in this Court. In New Century Developments Pty Ltd v Baulkham Hills Shire Council (2003) 127 LGERA 303; [2003] NSWLEC 154 [61], Lloyd J held that the Court must consider but not "blindly accept" the subjective fears and concerns raised in public submissions. Referring to those findings, in GFM Investment Group Pty Ltd in its capacity as Trustee for GFM Home Trust Subtrust No. 7 v Inner West Council [2023] NSWLEC 1112 [41], Walsh C discussed means of evaluating evidence provided by the public: "Where practical, a useful means of verifying (or otherwise) the content of the lay submissions is through use of the experts already giving sworn evidence and bound, under the Expert Witness Code of Conduct, to assist the court impartially. The position adopted by government officials can also be useful (eg through Council assessment reports)."
3. In this matter, the position adopted by government officials and the sworn evidence provided by the parties' experts is all in the same direction. Accordingly, I prefer that evidence to the contrary arguments submitted by the objectors.
4. The issues raised by the objectors are discussed above in relation to height at pars [23] to [26], and the Planning JER provides: The height breach is agreed to not cause any unacceptable impacts on amenity of surrounding properties, in terms of shadowing, privacy or views (paragraph 11).
5. The objectors also raise concerns about impacts due to departures from the guidance on setbacks provided in PDCP and the Apartment Design Guide (ADG). While PDCP suggests a 3.5m front setback, the proposed development has a front setback of 2m at ground and first floor levels, and on level 2 the roof edge is set back 1.25m. While the ADG provides for setbacks of 3-9m, the proposed development has setbacks of 1-3m.
6. The parties' planning and urban design experts agree in their joint reports that the proposed setbacks are contextually appropriate, respond to the setbacks established by immediately adjoining development and are consistent with those reasonably anticipated for shop top housing. I accept the expert evidence and am satisfied that the proposed setbacks are appropriate and consistent with the objectives of the PDCP and ADG.
7. In respect of submissions on behalf of 1100 Barrenjoey Road concerning privacy, the conditions of consent now provide that the provision of obscured glazing on all level 2 south facing windows will be increased to 1.8m (condition 12).
8. In respect of submissions on behalf of 1100 Barrenjoey Road concerning overshadowing, shadow diagrams (DA.50-DA.52.B Ex A, tab 24) show that there is not an unreasonable shadow impact and that the massing is less than the maximum permissible on the site. The Urban Design JER confirms that the experts agree there will not be unacceptable impacts to the amenity of 1100 Barrenjoey Road.
9. In respect of submissions on behalf of 1100 Barrenjoey Road concerning view loss, Viewpoint 07 and 08 of DA.76 (Ex A, tab 24) provides view analysis from the living and bedrooms that may be affected by the proposal. These viewpoints show that 1100 Barrenjoey Road maintains the majority of its water view looking west from the bedroom, and will maintain broad views of the water and Barrenjoey Road looking north from the living space. During the site view, the experts explained that 1100 Barrenjoey Road currently benefits from views across the vacant site, and that any development on the site would impact on views. The parties' experts agree that the proposal provides for a reasonable sharing of views, consistent with the principles in Tenacity Consulting v Warringah [2004] NSWLEC 140.
10. In respect of submissions on behalf of 1110 Barrenjoey Road regarding views down to the proposed roof, I accept the expert evidence that the pitch has been designed to reduce impacts and services are enclosed, with a planter box to provide further screening (DA.04 Ex A, tab 24). Additionally, condition 12 has been updated to require light-coloured pebbles to be used on the roof. While there were submissions which requested a shifting of the rear setback 1m to the west, I was not convinced this would have a meaningful positive impact in all of the circumstances.
11. The parties' planning and urban design experts agree, and I am satisfied, that there will not be unreasonable impacts to the amenity of neighbouring properties.

Geotechnical risks

1. Clause 7.7 applies to land identified in the Geotechnical Hazard Map. The site is mapped as Geotechnical Hazard H1. Accordingly, cl 7.7 requires the consent authority to consider whether the development takes into account the geotechnical risks in cl 7.7(3). Additionally, cl 7.7(4) provides that consent must not be granted unless: (a) the consent authority is satisfied that the development will appropriately manage waste water, stormwater and drainage across the land so as not to affect the rate, volume and quality of water leaving the land, and (b) the consent authority is satisfied that - (i) the development is designed, sited and will be managed to avoid any geotechnical risk or significant adverse impact on the development and the land surrounding the development, or (ii) if that risk or impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that risk or impact, or (iii) if that risk or impact cannot be minimised - the development will be managed to mitigate that risk or impact.
2. Substantial work has been undertaken by the parties to satisfy cll 7.2 and 7.7 of PLEP. The proposal provides extensive documentation demonstrating that geotechnical risk has been considered and is adequately mitigated:

• Geotechnical Monitoring & Contingency Plan prepared by JK Geotechnics dated 14 October 2024 (Ex A, tab 13B);
• Civil engineering plans prepared by Van de Meer Consulting (Ex A, tabs 28 and 29);
• Three dimensional (3D) Numerical Analysis Geotechnical Monitoring and Contingency Plan prepared by JK Geotechnics dated 14 October 2024 (Ex A, tab 13C);
• Updated Seepage Analysis and Geotechnical Assessment prepared by JK Geotechnics dated 14 October 2024 (Ex A, tab 13D)
• Northern Beaches Geotechnical Risk Management Policy for Pittwater Forms 1 and 2 dated 17 October 2024 (Ex A, tabs 14 and 15).
• Structural Statement on Shoring Design prepared by Van de Meer dated 11 July 2024 (Ex A, tab 17).

1. The Geotechnical JER confirms that the revised proposal takes into account the Council's contentions and the objectors' concerns, and: "appropriately mitigates the geotechnical risk in accordance with Northern Beaches Council Policy for geotechnical risk management and general industry practise for developments of a similar nature. In particular the risk posed to both the development and land surrounding the development has been satisfactorily addressed through the additional documentation and associated commitments provided by the Applicant." (par 6.1)
2. Mr Theunissen and Mr Mortimer were questioned about the concerns raised by objectors during the hearing in regard to geotechnical risks. Both confirmed that all risks had been considered and were appropriately addressed, including through discussion on site. Mr Theunissen and Mr Mortimer provided a document summarising their consideration, including responses to all of the new risks raised (Ex 9). As a result, the conditions of consent have been updated as follows: "any amendment made to the Geotechnical Monitoring and Contingency Plan must be submitted to the Council, and made publicly available by Council, so that adjoining properties may have access to this information" (see Condition 16); "prior to receiving a construction certificate, Sydney Water must be notified and provided a copy of construction plans, the Geotechnical Monitoring and Contingency Plan and a copy of the conditions of consent" (see Condition 35).
3. I note the concerns raised by objectors in submissions and during the hearing in relation to geotechnical risks. However, weight should go to expert evidence in this situation.
4. I accept the expert geotechnical advice and am satisfied directly in regard to cll 7.7(4)(a) and 7.7(4)(b).

Parking

1. The proposal includes 21 car parking spaces, a shortfall of 3 retail visitor parking spaces from Table 1 of cl B6.3 in PDCP.
2. Clause B6.3 of PDCP allows for variations where public parking is available. The parties' planning experts agreed, in their joint expert report dated 9 October 2024, that the variation is appropriate in the circumstances: The experts agree that having regard to the variation considerations within Table 1 of Clause B6.3 P21DCP applicable to restaurants and cafés the shortfall in retail car parking is appropriately offset by the availability of public parking immediately adjacent the site a d that that the outcomes/objectives of ClausevB6.3 P21DCP have been satisfied. (paragraph 25)
3. I am satisfied that the parking proposed for this development is acceptable.

Other jurisdictional preconditions to the grant of consent

1. Before turning to merit issue of whether development consent ought to be granted to the proposed development, it is necessary to demonstrate that the other jurisdictional preconditions to the determination of the development application by the grant of consent have been met. Council submits that these other jurisdictional preconditions are satisfied. The Court, exercising the functions of the consent authority on the appeal, needs to be satisfied itself that the preconditions have been met.

Integrated development

1. The proposal is integrated development.
2. Approval is required under the Water Management Act 2000 as the proposed basement excavation requires approval for dewatering under s 90(2). Water NSW provided General Terms of Approval on 14 June 2022 (Ex 2, tab 4). Water NSW's conditions have been incorporated at condition 47.
3. Section 2.119 of State Environmental Planning Policy (Transport and Infrastructure) 2021 (SEPP Transport and Infrastructure) applies to the DA as the site has a frontage to a classified road, Barrenjoey Road. Section 2.119(2) specifies matters as to which the consent authority must be satisfied before granting consent. On 4 May 2022 TfNSW confirmed that it has no objection to the DA (Ex 2, tab 3). TfNSW's conditions have been incorporated into the agreed conditions of consent 21, 38, 39 and 49. I have considered the matters in s 2.119(2) and the advice of TfNSW and the parties' experts. As required by s 2.119(2), I am satisfied the proposed vehicle access is appropriate, that the proposed development will not adversely affect the safety, efficiency and ongoing operation of the classified road and that appropriate measures have been taken to ameliorate potential traffic noise and vehicle emissions within the development from the road.
4. Section 2.48(1)(b)(ii) of SEPP Transport and Infrastructure applies to the proposal as the site is immediately adjacent to an electricity substation. Prior to the grant of consent, s 2.48 (1)(b)(ii) requires the consent authority to notify the relevant electricity supply authority and to consider any response provided within the prescribed timeframe. Ausgrid provided their approval (Ex 2, folio 31) and their conditions have been incorporated at condition 4.

Coastal development

1. Chapter 2 of State Environmental Planning Policy (Resilience and Hazards) 2021 ('SEPP Resilience and Hazards') applies to the development. Because the site is in the coastal environmental area, s 2.10(1) requires the consent authority to consider whether the proposed development is likely to cause an adverse impact on the following matters: (a) the integrity and resilience of the biophysical, hydrological (surface and groundwater) and ecological environment, (b) coastal environmental values and natural coastal processes, (c) the water quality of the marine estate (within the meaning of the Marine Estate Management Act 2014), in particular, the cumulative impacts of the proposed development on any of the sensitive coastal lakes identified in Schedule 1, (d) marine vegetation, native vegetation and fauna and their habitats, undeveloped headlands and rock platforms, (e) existing public open space and safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (f) Aboriginal cultural heritage, practices and places, (g) the use of the surf zone.
2. Section 2.10(2) provides: Development consent must not be granted to development on land to which this section applies unless the consent authority is satisfied that - (a) the development is designed, sited and will be managed to avoid an adverse impact referred to in subsection (1), or (b) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (c) if that impact cannot be minimised - the development will be managed to mitigate that impact.
3. Because the site is in the coastal use area, s 2.11(1)(a) requires the consent authority to consider whether the proposed development is likely to have an adverse impact on the following: (i) existing, safe access to and along the foreshore, beach, headland or rock platform for members of the public, including persons with a disability, (ii) overshadowing, wind funnelling and the loss of views from public places to foreshores, (iii) the visual amenity and scenic qualities of the coast, including coastal headlands, (iv) Aboriginal cultural heritage, practices and places, (v) cultural and built environment heritage
4. Section 2.11(1) further provides that consent must not be granted unless the consent authority: (b) is satisfied that - (i) the development is designed, sited and will be managed to avoid an adverse impact referred to in paragraph (a), or (ii) if that impact cannot be reasonably avoided - the development is designed, sited and will be managed to minimise that impact, or (iii) if that impact cannot be minimised - the development will be managed to mitigate that impact, and (c) has taken into account the surrounding coastal and built environment, and the bulk, scale and size of the proposed development.
5. Section 2.12 provides that consent must not be granted unless the consent authority is satisfied that the proposed development is not likely to cause increased risk of coastal hazards on that land or other land.
6. The Geotechnical JER and conditions 15, 16, 18 and 45 confirm that there will be no adverse impacts and appropriate mitigation of any risks to the integrity and resilience of the biophysical, hydrological and ecological environment. The Statement of Environmental Effects (Ex A, tab 4, pp 29-30) confirms that the proposed development will have no adverse impact on the natural coastal processes and environment, marine flora and fauna, access or amenity of the foreshore area and the beach, and there will be no risk of coastal hazards as a result of this development. The site is not within the surf zone (Ex A, tab 4, p 30). The Planning JER confirms that the proposal provides for an appropriate character and contextual outcome.
7. I have considered these materials and am satisfied that the requirements of ss 2.10, 2.11 and 2.12 have been met such that consent may be granted.

Contamination of land

1. Section 4.6 of SEPP Resilience and Hazards imposes preconditions to the grant of consent to development on land that is contaminated. Section 4.6(1)(a) requires that a consent authority consider whether land is contaminated. Subsequent provisions apply if the land is found to be contaminated and/or remediation is required.
2. The site has a long history of use as a fish and chip shop, with objector evidence at the hearing indicating at least 70 years of use for this purpose. According to the evidence, there are no known land uses or activities that may result in the contamination of land.
3. The site is not identified as a contaminated site on the NSW Environmental Protection Agency's list of notified sites, nor is it in the vicinity of any listed sites.
4. Accordingly, I am satisfied that the site is not contaminated and suitable for its proposed use in its current state, and that the requirements of s 4.6 are met.

Apartment design quality

1. The State Environmental Planning Policy (Housing) 2021 ('Housing SEPP') imposes preconditions to the grant of consent for residential apartment development. Prior to the grant of consent, s 147(1) provides that consent must consider the following: (a) the quality of the design of the development, evaluated in accordance with the design principles for residential apartment development set out in Schedule 9, (b) the Apartment Design Guide, (c) any advice received from a design review panel within 14 days after the consent authority referred the development application or modification application to the panel.
2. Section 29 of the Environmental Planning and Assessment Regulation 2021 (EPA Regulation) requires that a development application relating to residential apartment development must be accompanied by a statement by a qualified designer. Section 29(2)(b) requires further that the statement by the qualified designer must provide explain how the development addresses the design quality principles and the objectives in Parts 3 and 4 of the Apartment Design Guide.
3. In accordance with s 147 of the Housing SEPP and s 29 of the EPA Regulation, Asia Digital has provided a statement by a qualified designer addressing the design quality of the development in accordance with the design quality principles and the Apartment Design Guide (Ex A, tab 19).
4. In accordance with s 147(1)(c) of the Housing SEPP, advice was provided by the Design and Sustainability Advisory Panel on 28 April 2022 and was considered in the determination of the DA (Ex 8).
5. I have considered the amended DA, including the amended architectural drawings and design statement. I have taken into consideration the design quality of the proposed development (as amended), evaluated in accordance with the design quality principles and the Apartment Design Guide, and the advice of the Design and Sustainability Advisory Panel.

Flood planning

1. The site is in the flood planning area. Clause 5.21 of PLEP imposes preconditions to the grant of consent for development in the flood planning area. Clause 5.21(2) requires that consent must not be granted unless the consent authority is satisfied the development: (a) is compatible with the flood function and behaviour on the land, and (b) will not adversely affect flood behaviour in a way that results in detrimental increases in the potential flood affectation of other development or properties, and (c) will not adversely affect the safe occupation and efficient evacuation of people or exceed the capacity of existing evacuation routes for the surrounding area in the event of a flood, and (d) incorporates appropriate measures to manage risk to life in the event of a flood, and (e) will not adversely affect the environment or cause avoidable erosion, siltation, destruction of riparian vegetation or a reduction in the stability of river banks or watercourses.
2. In deciding whether to grant consent, cl 5.21(3) requires consent authority to consider the following matters: (a) the impact of the development on projected changes to flood behaviour as a result of climate change, (b) the intended design and scale of buildings resulting from the development, (c) whether the development incorporates measures to minimise the risk to life and ensure the safe evacuation of people in the event of a flood, (d) the potential to modify, relocate or remove buildings resulting from development if the surrounding area is impacted by flooding or coastal erosion.
3. Asia Digital has submitted a Floodplain Management Report prepared by Van der Meer consultants dated 20 June 2024 (Ex A, tab 12) which addresses the matters in cll 5.21(2) and 5.21(3). The recommendations of the Floodplain Management Report have been incorporated into the conditions of consent at condition 17. I have considered that report and am satisfied that the proposed development meets the requirements of cl 5.21(2) such that consent may be granted.

Acid sulphate soils

1. The site is mapped as Class 5 (lowest risk) on Council's Acid Sulphate Soils Map. For land within this class, cl 7.1(2) of PLEP provides that development consent is required for: Works within 500 metres of adjacent Class 1, 2, 3 or 4 land that is below 5 metres Australian Height Datum and by which the watertable is likely to be lowered below 1 metre Australian Height Datum on adjacent Class 1, 2, 3 or 4 land.
2. Clause 7.1(4) of PLEP provides that development consent is not required if: (a) a preliminary assessment of the proposed works prepared in accordance with the Acid Sulfate Soils Manual indicates that an acid sulfate soils management plan is not required for the works, and (b) the preliminary assessment has been provided to the consent authority and the consent authority has confirmed the assessment by notice in writing to the person proposing to carry out the works.
3. Asia Digital has submitted a preliminary acid sulphate soil investigations report prepared by JK Environments dated 1 December 2020 (Ex A, tab 3). The report concludes that an acid sulphate soils management plan is not required for the proposed development.

Earthworks

1. Clause 7.2 of PLEP lists matters for consideration regarding earthworks. The objective of cl 7.2 is to ensure that consent is not granted for earthworks which will have a detrimental impact on environmental functions and processes, neighbouring uses, cultural or heritage items or features of the surrounding land. To that end, cl 7.2(3) specifies matters which must be considered prior to the grant of consent. I have considered the relevant matters, noting certain overlapping concerns, with cl 7.7 and am satisfied that the objectives are cl 7.2 are met.

Biodiversity protection

1. Part of the site is identified on the Biodiversity Map, which means that the jurisdictional preconditions in cl 7.6 must be satisfied before consent may be granted. Clause 7.6(3) requires that the consent authority consider: 1. whether the development is likely to have - 1. (i) any adverse impact on the condition, ecological value and significance of the fauna and flora on the land, and 2. (ii) any adverse impact on the importance of the vegetation on the land to the habitat and survival of native fauna, and 3. (iii) any potential to fragment, disturb or diminish the biodiversity structure, function and composition of the land, and 4. (iv) any adverse impact on the habitat elements providing connectivity on the land, and 1. any appropriate measures proposed to avoid, minimise or mitigate the impacts of the development.
2. Clause 7.6(4) further provides that the consent authority must be satisfied that: 1. the development is designed, sited and will be managed to avoid any significant adverse environmental impact, or 2. if that impact cannot be reasonably avoided by adopting feasible alternatives - the development is designed, sited and will be managed to minimise that impact, or 3. if that impact cannot be minimised - the development will be managed to mitigate that impact.
3. The Statement of Environmental Effects and Supplementary Statement of Environmental Effects prepared by Boston Blythe Flemming Planners (Ex A, tabs 4, 5, 6) addresses cl 7.6. I have considered this report and am satisfied that the requirements of these clauses have been met such that consent may be granted to the proposed development.

Essential services

1. Clause 7.10 requires the consent authority to be satisfied that all essential services at 7.10(a)-(e) are available or will be available when required.
2. Adequate supply of water, sewerage, electricity and vehicular access will be provided, and conditions from Water NSW, TfNSW and Ausgrid have been incorporated as noted above at paragraphs 59-60.
3. Adequate stormwater drainage will be provided, as detailed in the stormwater plans (Ex A, tab 27) and conditions 15, 19, 45 and 46.
4. Adequate parking will be provided, as discussed above at paragraphs 54-56.
5. I am satisfied that the requirements of cl 7.10 are met.

Merits of the proposed development

1. On the matter of merit, the proposal is consistent with the planning controls and has no unacceptable environmental consequences. The parties' planning and urban design experts agree, and I accept, that the proposal is in the public interest. The Planning JER states: 28. The experts agree that approval of the application would be in the public interest given the proposals consistency with the applicable planning regime and the absence of unacceptable environmental consequences. 29. Informing this opinion, the experts have reviewed the public submissions made in response to the notification of the application and is satisfied that the amended application appropriately responds to the issues raised and that there are no matters that would warrant refusal of the application.
2. The proposed development will provide much needed amenity, commercial business, and housing to the Palm Beach Locality, in a form that is respectful of the adjacent heritage item.

Conclusion

1. For the reasons outlined above, I am satisfied that the proposal warrants the grant of consent in accordance with agreed draft conditions.

Orders

1. The Court orders: 1. The written request seeking to justify the contravention of the height of buildings development standard at cl 4.3 of Pittwater Local Environmental Plan 2014, prepared by Boston Blyth Fleming and dated 19 June 2024, is upheld. 2. The appeal is upheld. 3. Development consent is granted to Development Application No. DA2022/0469 for construction of a shop top housing development above basement carparking at 1102 Barrenjoey Road, Palm Beach, subject to the conditions of consent in Annexure A. 4. All exhibits are retained except Ex B, Ex 1, 2, 3, 4 and 5.

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