Australian Super Developments Pty Ltd v Pittwater Council

DATES OF HEARING: 13,14 July 2005 EX TEMPORE JUDGMENT DATE : 07/14/2005

APPLICANT M. Craig QC with A. Pearman

SOLICITORS Mallesons Stephen Jaques

JUDGMENT: THE LAND AND ENVIRONMENT COURT OF NEW SOUTH WALES

10431 of 1981 AUSTRALIAN SUPER DEVELOPMENTS PTY LIMITED v PITTWATER COUNCIL

JUDGMENT 1 HIS HONOUR: I have come to the conclusion that the application before the Court for the modification of existing development consent, tracing back to a decision of 1982, should be approved. In coming to that conclusion, I have been considerably assisted by the manner in which the parties have presented their respective cases. I should make it clear that the Council's participation in the case has not been in defence of a decision that it took in relation to the modification application, for the simple reason that the application has been made to the Court and the Court being the original consent authority has been called upon in the present case to determine the modification application.

2 The modification application is of some antiquity, having been originally lodged in 2003 or early 2004, and the processing of it in the Court has been complicated by virtue of the fact that one of the documents adopted in the 1982 approval was found to be missing. It was only as a result of interlocutory proceedings in this Court, that that missing link was resolved, not by the discovery of the document in specie, but by the decision of Pain J holding that a particular document which was brought to her attention, was probably the document referred to in the 1982 consent. That factual finding was obviously essential to the performance by the Court of its statutory duty under s 96 to determine the modification application because that duty requires a comparison of the development as proposed to be modified with the development as originally consented to. With the benefit of that interlocutory decision, I have been able to come to the conclusion that the threshold test of the modified development being substantially the same as the originally approved development is satisfied in this case, and no-one has put anything to the contrary.

3 In the exercise of my discretion under s 96, I have of course, placed considerable reliance upon the evidence given by residents of the existing Peninsula Gardens Retirement Village. Their evidence was taken on-site as part of an extensive view that I undertook yesterday in the presence of the parties, and I found that evidence to be very helpful and perfectly understandable.

4 Stage 1 of the development comprises some 73 self care units in the nature of villas and some 40 serviced apartments in all, contributing to an existing resident population of some 120 persons. The development enjoys the benefit of a most agreeable community centre offering a wide range of recreational, cultural and sporting opportunities. It came into existence at an early stage in the development in accordance with the strictures of the 1982 development consent requiring its existence within a certain period of time or at a time when some 50 per cent of the self care units were in occupation.

5 The community centre, of course, has the capacity to serve a much larger community than the existing 120 residents and is sufficiently capacious to meet the needs of the entire approved development which was for some 185 self care units and 40 serviced apartments. The proposed modified development will reduce the number of housing units in stage 2 from 112 to 73, but the units will be more capacious and commodious and the anticipated population yielded by the new development is likely to be similar in number to that originally contemplated by the 185 self care approved units.

6 The residents' concern, as I say, was perfectly understandable. The existing development is a most agreeable development with a most agreeable ambience, no doubt contributed to by the propinquity of a large bushland reserve, the Katandra Reserve situated to the west, and up the escarpment, the Warriewood/Bayview escarpment. The development site, which comprises some seven hectares, is located in the foothills of that escarpment, rising to contours of around 40 metres at its highest point.

7 The development site is amphitheatre in physical configuration, and the stage two development will be located on the slopes of the amphitheatre, generally to the north and west of the existing development. It is an undeniable fact that the entire development including the modified stage two, will significantly lead to the loss of most of the tree canopy of a very densely forested area on the unbuilt-upon area. Naturally, for residents of the existing stage one, that will have a profound physical and aesthetic impact. Many of their concerns were directed to that physical change which will be inevitable. I interpose that the change in terms of the loss of existing vegetation on the upper slopes of the site would be identical under the modified proposal as it would under the originally approved proposal.

8 I should say that the residents' evidence was very even-handed. Whereas a number of the residents were concerned at the loss of the bushland which currently forms the backdrop to the existing development, a number of residents also recognised the need for the village population to be increased so that the facilities enjoyed by the existing residents might be more equitably financed. At the moment, the developer apparently is subsidising existing residents significantly in the operation of the community centre. With the influx of the anticipated new population with the stage two development, the funding of that important community resource will be more adequately managed and shared among a more numerous paying consumer group.

9 The concerns for the proposed development expressed by a number of the residents deal with the imponderables of construction noise, co-existing with the present quiet environment enjoyed optimally by the existing residents. I am satisfied that the parties, through their expert advisers, have come up with a regime of conditions, which the Applicant has offered to the Court, which seeks to accommodate in a fair and balanced way, the legitimate interests of the existing residential community in the village and the legitimate interests of the Applicant, to complete the development. Obviously, a certain amount of physical dislocation will be inevitable. There was particular concern expressed about possible traffic conflicts between construction vehicles using the single, internal road system, which is currently the exclusive vehicular access arrangement within the site, and the vehicles of existing residents. In that respect, a number of residents have raised the question of the use at least during the construction period for the stage two development, and perhaps beyond such period, of access to Gulia Street which is located on the eastern boundary of the existing development site. At the moment, that entitlement of a land fronting a public road, to enjoy access conferred both by Common Law and the Roads Act 1993, has been effectively curtailed by dint of condition 30 imposed on the original development consent. That condition, which was accepted by the parties at the time that consent was granted, precluded vehicular access to the site, except for emergency fire vehicles or other emergency vehicles. This precluded the residents of the village using the public road system leading to the site on its eastern boundary via Gulia Street, Minmai Street and Old Samuel Road.

10 In my view, the legitimacy of the claim of the existing residents to be able to utilise the existing public road system situated to the east of the site via the Gulia Street connection, is a matter of considerable importance to the future development of stage two and the preservation of maximum amenity for the residents of stage one. I appreciate, having looked at my reasons in the 1982 decision, that resident opposition was principally raised by residents living to the east of the subject site, that is, residents in Gulia, Minmai and Old Samuel Road. Those residents, no doubt, will be affected by any decision which might lead to the curtailment of the present prohibition on the use of vehicular access to the site. Nonetheless, the conditions formulated by the parties contemplate a revisit of that question. In my opinion, and without in any way intruding into that ultimate decision, the circumstances of the case have changed considerably from those that existed in 1982. The legitimate claims by existing residents to have the benefit of that vehicular access and thereby facilitate the construction of stage two without any significant access problems experienced by the residents of stage one, makes a compelling case for that question to be revisited. No doubt though, such reconsideration of the question would necessarily take place after the Council canvasses the opinion of the residents of Gulia Street and the related road system situated to the east of the subject site.

11 The parties, through their experts, have addressed matters of potential flooding problems that may be created for the downstream properties by the development of stage two. Those matters are adequately dealt with in the conditions proffered by the parties.

12 The Court has had the benefit of the opinions of the Court appointed ecological expert, Mr Warren, and his reports are in evidence. In his opinion, the proposed modification poses no adverse consequences to threaten species, flora or fauna. He acknowledges, as I have earlier stated, the obvious fact that the development of stage two both in its modified form or alternatively in its originally approved form, will significantly remove the majority of canopied trees from the affected areas of the site to be developed. Although he notes that the south-western, corner involving quite a large area and a lot of existing vegetation, will not be touched by the stage two development, he also makes the point, which I accept, that the landscape requirements of the proposed conditions contemplate the planting of a very large number of native trees to replace the loss of existing trees consequent upon the carrying out of the development. He also draws attention to the physical propinquity of the Katandra Bushland Reserve and of course, the close proximity of the Ku-ring-gai National Park. His overall assessment is that the development of stage two, as proposed to be modified, is ecologically acceptable. I accept his opinion in that respect.

13 The conditions that the parties have proffered are wide ranging and in my view adequately achieve a fair balance between the legitimate interests of the existing stage one residents of Peninsula Gardens and the developer's legitimate interest to complete the development, by completing stage two. Stage two may well be undertaken on a staged basis which would of course have an obvious benefit for existing residents rather than the clear felling of the whole of the site to be affected by the stage two proposal, as would be the case if the development were not staged.

14 The conditions carefully formulated by the parties, with the benefit of their respective expert input for which I am very grateful, propose a regime which requires inter alia the preparation of a detailed construction process plan of management to be submitted to the Council and requiring its approval. This plan will deal with such things as construction periods, construction noise, access arrangements and the like. In my view, these conditions adequately vouchsafe an outcome which is fair in the interests of all parties. As was pointed out in the course of the presentation of the case, it is to the benefit of the existing residents of Peninsula Gardens, that the developer of the stage two development, be wholly responsible for the entire development, and that therefore it behoves the Applicant, in implementing the stage two approval as modified, to consider and take into account the legitimate interests in the preservation and maximisation of amenity issues enjoyed by the current residents of stage one and I am confident that will happen.

15 For all of the reasons given, it is appropriate therefore in my judgment, that the modified development be approved, subject to the conditions that the parties have propounded. There will be a minor change to condition 43 which the parties are invited to submit to me with the necessary amendment to give effect to what was discussed during the course of presentation of the case. The application for seeking the modification of the 1982 consent is granted subject to the conditions which form part of Exhibit 2 and which exhibit should remain with the Court papers.

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